1. New Developments Federal Bar Association Conference November 8, 2012
Levator Norsworthy, Jr.
Deputy General Counsel (Acquisition)
Department of the Army

2. Road Map New DoD-wide Conference Policy
Interim Army Guidance for Implementation of New OSD Conference Policy
Supplemental Conference Guidance and Data Call for Proposed FY13 Conferences
H.R National Defense Authorization Act for FY 2013
Section 802 – Requirements relating to contracts for purchase of helicopters for Afghan Security Forces
Section 815 – Limitation on funding pending certification of implementation of requirements for competition
Section 816 – Contractor responsibilities in regulations relating to detection and avoidance of counterfeit electronic parts
Section 817 – Additional definition relating to production of specialty metals within the U.S.
Section 819 – Compliance with Berry Amendment required for uniform components supplied to Afghan military or Afghan National Police
Section 833 – Consideration and verification of information relating to effect on domestic employment of award of defense contracts
Section 834 – Energy savings performance contract report
Section 902 – Requirement for focus on urgent operational needs and rapid acquisition
Patent Security Reviews: Designation of Commander, US Army Materiel Command

3. New DoD-wide Conference Policy
On September 29, 2012, DEPSECDEF issued new DoD-wide Conference Policy, subject: Implementation of Conference Oversight Requirements and Delegation of Conference Approval Authority.
The intent of the requirements of the new policy is “not to negatively impact operations critical to the day-to-day execution of our national security mission, but rather to ensure that conferences the Department sponsors are executed in a responsible manner and that we are prudent when sending personnel to conferences hosted by others, to include validating that a conference is a necessary and cost-effective way to achieve a particular mission.”
Implements a tiered approval structure for conference oversight responsibilities.
The Policy memo contains four attachments:
Attachment 1 contains the Responsibilities of the SECDEF, DEPSECDEF and delegated Approval Authorities.
Attachment 2 provides the definition of a conference and exemptions.
Attachment 3 provides the definition of conference costs.
Attachment 4 provides the annual reporting requirements.

4. New DoD-wide Conference Policy
Attachment 1: Responsibilities
SECDEF and DEPSECDEF – accountable for all of DoD’s conference related activities.
Approval Authorities – responsible for ensuring compliance with all applicable law and policy in making their authorizations. Requires coordination with legal counsel!
Approval Authorities must:
Determine that a conference is necessary and cost-effective. This should include considering alternative means of delivering the relevant information, including usage of remote collaboration tools and other real-time communication methods (e.g., teleconferencing, videoconferencing, webinars, online sharing applications).
Presume that physical co-location as part of a conference is not required in majority of cases.
Entertainment-related expense prohibited – when determining whether an expense is a prohibited expense, use common sense and good judgment, but if any doubt…seek legal advice!
Jointly hosted conferences (more than one DoD Component) - Designate a lead Component to obtain single approval.
Approval Timing - Do not make commitments to vendors or hotels, enter into a co-sponsorship relationships, no cost contract, or other arrangement with a NFE until after obtaining the requisite conference approval.
Approval Levels: Continued

5. New DoD-wide Conference Policy
Approval Levels:
Conferences over $500,000:
Secretary of the Army and Under Secretary of the Army, without further delegation.
All conferences, regardless of cost, that involve a co-sponsorship relationship or no-cost contract with a NFE and/or a request for approval of spousal travel – as well as for all conferences hosted by a non-DoD entity where the total cost of attendance to their DoD Component exceeds $20,000:
Conferences between $100,000-$500,000 (may delegate to):
ASA(ALT); ASA(CW); ASA(FM&C); ASA(I&E); ASA(M&RA): Army General Counsel; Commander, US Forces Command; Commander US Army TRADOC; Commander, US Army Materiel Command; Director, Army National Guard; Commander, US Army Reserve Command; and Administrative Assistant to the Secretary of the Army.
Conferences below $100,000 as well as all conferences hosted by a non-DoD entity where the total cost of attendance is $20,000 or below:
Secretary of the Army and Under Secretary of the Army may delegate to appropriate GOs/SES in their organization.

6. New DoD-wide Conference Policy
Attachment 2: Determination of a Conference
General Definition: Federal TR/JFTR/JTR: a meeting, retreat, seminar, symposium, or event that involves attendee travel. Also applies to training activities that are considered to be conferences under 5 CFR
Conferences are also called: conventions, expositions, symposiums, seminars, workshops, or exhibitions. In these instances, indicia of a formal conference often include but are not limited to registration fees, published substantive agenda, and scheduled speakers or discussion panels. Look to see if these events are held at hotels or conference centers.
Local events also may qualify as conferences – payment of a registration, exhibitor, sponsor, or conference fee, etc.
Exemptions:
Meetings to carry out statutory command and staff oversight functions…such as investigations, inspections, audits, or non-conference planning site visits.
Meetings to consider internal agency business matters held in government/military facilities
7%Meetings to carry out planning or execution of operational or operational exercise activities or pre-deployment, deployment, or post-deployment activities…such as planning and preparation for and execution of wargames, military exercises, and operational deployments.
Bi-lateral and multi-lateral international cooperation engagements that do not exhibit indicia of a formal conference focused on diplomatic relations.
Formal classroom training held at government/military facilities…such as instruction at War Colleges, NDU, JAG School, or DAU.
Change of command, award, funeral, or other such ceremonies held in government/military facilities.
Events where the primary purpose of DoD’s participation is military recruiting and/or military recruitment advertising.

7. New DoD-wide Conference Policy
Attachment 3: Definition of Conference Costs
Conference expenses: include all direct and indirect costs paid-where the total expense must include expenses paid by all Components within the department not just a single organization.
Conference expenses include, but not limited to: Authorized travel and per diem expenses; Hire of rooms for official business; Audiovisual and other equipment usage; Computer and telephone access fees; Printing; Registration, exhibitor, sponsor, or conference fees; Ground transportation and/or parking fees; Outlays for conference preparation and planning; Speaker fees; and Administrative expense
Exemptions:
Federal employee time for conference preparation and planning
Federal employee time for attendance at the conference or en route
Security costs to ensure the safety of attending governmental officials
Revenues:
Collected registration fees, exhibitor fees, and sponsor fees
Total Conference Cost: net value of any fees or revenue received by the Department through the conference

8. New DoD-wide Conference Policy
Attachment 4: Reporting
Annual Reporting to Deputy Chief Management Officer – all Department hosted conferences where the total expenses are in excess of $100,000.
Quarterly Reporting to DEPSECDEF - all Department hosted or attended conferences regardless of cost.
The attachment provides additional information on the content of the reports.

9. Interim Army Conference Policy
On October 17, 2012, the Secretary of the Army issued an interim guidance, subject: Interim Guidance for Implementation of New OSD Conference Policy.
Reiterates approval authorities outlined in attachment 1. Secretary and the Under Secretary are the approval authorities for:
Army-hosted conferences with total costs exceeding $500,000.
All conferences, regardless of total costs, that involve a co-sponsorship relationship or a no-cost contract with a non-Federal entity and/or a request for approval of spouse travel
Army attendance at all conferences hosted by a non-DoD entity when the total cost of attendance to the Army exceeds $20,000.
Interim Guidance issued to comply with DEPSECDEF’s conference policy while the Army develops a more detailed and comprehensive approach, which will be codified in a new Army directive – first quarter FY13 with an effective date of January 1, 2013.
Rescinds all previous delegations.
In the Secretary’s absence, the Under Secretary will be the approval authority for all Army-hosted conference related actions that are not further delegated – see above.
Approval Levels: Continued

10. Interim Army Conference Policy
Delegation of Approval Authority:
$100,000-$500,000:
Commanders of Army Commands for conferences hosted by their respective commands; and
Administrative Assistant to the Secretary of the Army (AASA) for all other Army-hosted conferences.
No further delegation authorized
$100,000 or less for conferences sponsored or funded by their respective commands, organizations or activities.
Commanders of Army Commands for conferences sponsored or funded by their respective commands;
Direct Reporting Units (headed by a GO or SES) for conferences sponsored or funded by their respective organizations or activities; and
HQDA Principal Officials for conferences sponsored or funded by their respective organizations or activities.
No further delegation authorized.
Exemptions: if an event appears to meet an exemption forward the event with a legal review and justification for exemption to the AASA for decision.
Non-DoD Conferences: Continued

11. Interim Army Conference Policy
Approval Authority:
Army Attendance at Non-DoD Conferences:
Secretary of the Army is the decision authority for Army attendance at any non-DoD conference where the total Army costs exceed $20,000. In his absence, the Under Secretary is the decision authority.
AASA is delegated the decision authority when the total costs are less than $20,000.
Suspends Army attendance at non-DoD conferences between now and December 31, 2012, unless the Secretary has previously approved the attendance…such as AUSA Annual Meeting, or an exception is granted.
Exception requests must be endorsed by commanders of Army Commands, Army Service Component Commands and Direct Reporting Units (headed by a GO or SES) or HQDA Principal Official.

12. OAA Supplemental Conference Guidance
Supplemental Conference Guidance and Data Call for Proposed FY13 Conferences issued by OAA on October 29, 2012
Provides supplemental guidance on Conference Definition and Exemptions
If an event that otherwise would be considered a conference based on the DoD Policy appears to meet one or more of the listed exemptions:
Prepare a request for exemption that includes specific details about the event, such as dates, location, purpose, number of attendees, and estimated costs;
Include the specific exemption(s) that may apply and a detailed justification/explanation for why the exemption(s) should apply;
Include an appropriate legal review; and
Ensure that the request is endorsed by the commander of the appropriate ACOM, ASCC, or DRU or HQDA Principal Official and send the request to OAA for decision
Data Call for FY13 Conferences: to ensure approval authorities have the necessary info to exercise their obligations and responsibilities, an Army-wide inventory of upcoming conferences is required.
No later than 29 November 2012
Must be endorsed by appropriate commander or HQDA Principal Official

13. OAA Supplemental Conference Guidance
Army Hosted Conferences (Approval Levels):
Criteria for Army Hosted Conferences
Approval Authority
Alternate Authority
Cost exceeds $500,000 SA
USA
Regardless of cost, involves a no-cost contract with a non-Federal entity
Regardless of cost, includes a co-sponsorship with a non-Federal entity
Regardless of cost, involves spouse travel at Government expense
Cost between $100,000 and $500,000 for organizations, activities, and units reporting to FORSCOM
CG, FORSCOM
SA, USA
Cost between $100,000 and $500,000 for organizations, activities, and units reporting to TRADOC
CG, TRADOC
Cost between $100,000 and $500,000 for organizations, activities, and units reporting to AMC
CG, AMC
Cost between $100,000 and $500,000 for organizations, activities, and units not reporting to FORSCOM, TRADOC, or AMC
AASA
Army hosted with cost less than $100,000
Commanders of ACOMs, ASCCs and DRUs (headed by a GO/SES), and HQDA Principal Officials

14. OAA Supplemental Conference Guidance
Non-DoD Hosted Conferences (Approval Levels):
Conference Criteria
Approval Authority
Alternate Authority
Non-DoD hosted with estimated Army-wide cost exceeding $20,000 SA
USA
Non-DoD hosted with estimated Army-wide cost less than $20,000
AASA
SA, USA

15. National Defense Authorization Act for FY 2013
H.R. 4310
National Defense Authorization Act for FY 2013
Selected Provisions 15 15

16. Applies to contracts awarded after the date of the enactment
Section 802 – Requirements relating to contracts for purchase of helicopters for Afghan Security Forces
Requires the SECDEF to use competitive procedures to award any contract for procurement of helicopters for the Afghan Security Forces when purchased with US funds.
Prohibits the SECDEF from making contract awards, directly or indirectly, to any entity controlled, directed, or influenced by:
A country that has provided weapons to Syria at any time after the date of the enactment of the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003; or
Any country that is currently a “state sponsor of terrorism”
State sponsor of terrorism is defined as any country the government of which the Secretary of State has determined has repeatedly provided support for acts of international terrorism pursuant to section 6(j) of the Export Administration Act of 1979, section 620A of the Foreign Assistance Act of 1961, or section 40 of the Arms Export Control Act.
Applies to contracts awarded after the date of the enactment 16 16

17. Section Limitation on funding pending certification of implementation of requirements for competition
Office of the SECDEF may obligate or expend not more than 80% of the funds appropriated in FY13 unless the SECDEF certifies that the DoD is implementing the requirements of section 202(d) of WSARA
Section 202(d) requires that:
Whenever a decision regarding source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system, the Secretary shall take actions to ensure that, to the maximum extent practicable and consistent with statutory requirements, contracts for such maintenance and sustainment are awarded on a competitive basis and give full consideration to all sources (including sources that partner or subcontract with public or private sector repair activities).
The SECDEF’s certification is to be accompanied by a briefing to the congressional defense committees on processes and procedures that have been implemented to maximize competition throughout the life-cycle of MDAPs, including actions to award contracts for performance of maintenance and sustainment of major weapon systems or subsystems and components of such systems and a representative sample of solicitations issued since May 22, 2009 that fulfills the objectives of section 202(d)

18. Section 816 – Contractor responsibilities in regulations relating to detection and avoidance of counterfeit electronic parts
This provision amends section 818(c)(2)(B) of NDAA for FY12 and 10 USC § 2302 note.
Section 816 provides:
The cost of counterfeit electronic parts and suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts are not allowable costs under DoD contracts, unless –
covered contractor has an operational system to detect and avoid counterfeit parts and suspect counterfeit electronic parts that has been reviewed and approved by the DoD
The counterfeit electronic parts or suspect counterfeit electronic parts were:
Procured from a trusted supplier; or
Provided to the contractor as Government property ; and
Covered contractor provides timely notice to the Government 18

19. Section 817 – Additional definition relating to production of specialty metals within the US
Provides clarity on what is “produced” and “melted” by amending 10 USC § 2533b(m) by adding a new paragraph (11)
The term “produced”, as used in subsections (a) and (b), means melted, or processed in a manner that results in physical or chemical property changes that are the equivalent of melting. The term does not include finishing processes such as rolling, heat treatment, quenching, tempering, grinding, or shaving.
10 USC § 2533b prohibits acquisition of:
The following types of end items, or components containing a specialty metal not melted or produced in US: aircraft, missile and space systems, ships, tank and automotive items, weapon systems, or ammunition.
A specialty metal that is not melted or produced in the US and that is to be purchased directly by the DoD or a prime contractor of the Department.

20. Section 819 – Compliance with Berry Amendment required for uniform components supplied to Afghan military or Afghan National Police
Requires the DoD to comply with Berry Amendment (10 USC § 2533a) for purchase of any textile components supplied by DoD to the Afghan National Army or the Afghan National Police for purposes of production of uniforms.
Strict compliance: No exceptions or exemptions apply, such as…
Procurements outside the US in support of combat operations or procurements in support of contingency operations.
Why?
Significant congressional interest over application of 10 USC 2355a(d)(1)/DFARS (d) exception for procurement of Afghan national Army and Afghan National Police uniforms.
Effective Date: applies to solicitations issued and contracts awarded after the date of the enactment.

21. Section 833 – Consideration and verification of information relating to effect on domestic employment of award of defense contracts
Amends 10 USC 2305(a) by adding the provisions of subparagraph (6) as follows:
(6)(A) The head of any agency, in issuing a solicitation for competitive proposal, shall state in the solicitation that the agency may consider information (jobs impact statement) that the offeror may include in its offer related to the effects on employment within the US of the contract if it is awarded to the offeror.
(B) The information that may be included in a jobs impact statement may include the following:
(i) the number of jobs expected to be created in US or the number of jobs retained that otherwise would be lost, if the contract is awarded to the offeror.
(ii) the number of jobs created or retained in the US by the subcontractors expected to be used by the offeror in the performance of the contract.
(iii) guarantee from the offeror that the jobs created or retained in the US will not be moved outside the US after award of the contract.
(C) The KO may consider the information in the jobs impact statement in the evaluation of the offer.
(D) The agency may request further information from the offeror in order to verify the accuracy of the information in the jobs impact statement
(E) In the case of a contract awarded to an offeror that submitted a jobs impact statement with the offer for the contract, the agency shall, not later than 6 months after the award of the contract and annually thereafter for the duration of the contract extension, assess the accuracy of the jobs impact statement.
(F) SECDEF shall submit to Congress an annual report on the frequency of use within DoD of jobs impact statements in the evaluation of competitive proposals.
Directs FAR revision. 21

22. Section 834 – Energy Savings Performance Contract Report
Requires the Secretaries of the Army, Navy, and Air Force to submit a report on the use of energy savings performance contracts by the each of the services.
The report should include:
The amount of appropriated funds that have been obligated or expended and that are expected to be obligated or expended for energy savings performance contracts.
The amount of such funds that have been used for comprehensive retrofits.
The amount of such funds that have been used to leverage private sector capital, including the amount of such capital
The report is due by June 30, 2013.

23. Section 902 – Requirement for focus on urgent operational needs and rapid acquisition
Requires the SECDEF to designate a senior official in the Office of the Secretary of Defense as the principal official of the DoD responsible for leading the Department’s actions on urgent operational needs and rapid acquisition.
Responsibilities of the designated senior official:
Act as an advocate within DoD for issues related to the Department's ability to rapidly respond to urgent operational needs, including programs funded and carried out by the military departments.
Improve visibility of urgent operational needs throughout the Department, including across the military departments, the Defense Agencies, and all other entities and process in the Department that address urgent operational needs.
Ensure that tools and mechanisms are used to track, monitor, and manage the status of urgent operational needs within the Department, from validation through procurement and fielding, including a formal feedback mechanism for the armed forces to provide on how well fielded solutions are meeting urgent operational needs.
Urgent Operational Needs is defined as “capabilities that are determined by the Secretary of Defense, pursuant to the review process required by section 804(b) of the Ike Skelton NDAA for FY11 (10 USC § 2302 note), to be suitable for rapid fielding in response to urgent operational needs.”

24. Patent Security Reviews
Under the Invention Secrecy Act, DoD has the opportunity to recommend that patent applications, disclosure of which might be detrimental to national security, be held in secrecy for as long as their disclosure continues to pose a threat. DoD and the military departments have a process and system for distribution and review of potentially sensitive patent applications.
Timely review of these applications by appropriate technical/security is critical because failure to timely/appropriately review can have adverse national/security consequences:
Permitting the disclosure of technical information about current or expected U.S. capabilities and related vulnerabilities or countermeasures.
Enabling capabilities in the hands of enemy states or non-state actors that can threaten war fighters and the civilian population.
Undermining of DoD investments in R&D.
Adversely impacting U.S. economic competitiveness by frustrating patent applicant ability to secure patent rights.
On September 21, 2012, the Secretary of the Army designated the Commander, US Army Materiel Command as the Responsible Official for Army patent security reviews.
AMC has been assigned this mission due to AMC’s expertise in science and technology and its equities in protecting war fighters and R&D investments from technological threats. AMC has also been assigned the mission in lieu of the U.S. Army Legal Services Agency (USALSA) because AMC has command cognizance over the majority of the Army’s R&D centers. Lack of a command relationship and ignorance of the location of suitable technical reviewers impeded USALSA’s ability to execute effectively this mission leading to a backlog of thousands of unprocessed applications. AMC’s recent direct involvement has reduced the backlog substantially.

25. QUESTIONS?