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2009 Procurement Review--Statutes, Regulations, Executive Orders



Contents

Statutes

Executive Orders

Regulations

American Recovery and Reinvestment Act of 2009

E. O. 13494

Federal Acquisition Regulation (FAR)

E. O. 13495

FAC 2005-29
Omnibus Appropriations Act, 2009

E. O. 13496

FAC 2005-30

E. O. 13502

FAC 2005-31

Weapons Systems Acquisition Reform Act of 2009

E. O. 13222

FAC 2005-32

E.O.  13520

FAC 2005-33

Department of Defense Appropriations Act, 2010

FAC 2005-34
FAC 2005-35

National Defense Authorization Act, 2010

FAC 2005-36

FAC 2005-37

FAC 2005-38

Presidential Memorandum of March 4

Other FAR Revisions

Presidential Notice of September 10

Dept. of Defense FAR Supplement (DFARS)

Individual Agencies

Bureau of Industry and Security

Commerce Department

Defense Department

Energy Department

EPA

Federal Accounting Standards Advisory Board

GAO

GSA

Homeland Security

HHS

HUD

Labor Department

OMB

Postal Service

SBA

State Department

Department of Transportation

Treasury Department

USDA (Agriculture)

Veterans Affairs

                           

Statutes

The American Recovery and Reinvestment Act of 2009, Public Law 111-5, was enacted February 17, 2009.

The Omnibus Appropriations Act, 2009, Public Law 111-8, is dated March 11.

The Weapons Systems Acquisition Reform Act of 2009, Public Law 111-23, is dated May 22, 2009.

The National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84) was enacted October 28, 2009.

The Department of Defense Appropriations Act, 2010, Public Law 111-118, was enacted December 19, 2009.

       

Executive Orders

Executive Order 13494 makes unallowable the costs of "any activities undertaken to persuade employees—whether employees of the recipient of the Federal disbursements or of any other entity—to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees’ own choosing."

Executive Order 13495 requires service contracts to include a clause requiring a follow-on service contractor to give the previous contractor's employees a right of first refusal to continue work on the contract. 

Executive Order 13496 requires government contractors and subcontractors to post notices informing employees of their collective bargaining rights. Failure to do so can result in contract termination and debarment.

Executive Order 13502 authorizes federal agencies to require project labor agreements (collective bargaining agreements) on large scale construction projects (those whose cost to the federal government equals or exceeds $25 million) when certain criteria are met.

Executive Order 13222 Extension: Export control regulations--in a notice issued August 13, President Obama continued for one year Executive Order 13222, which declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States in light of the expiration of the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et seq.).

Executive Order 13520 (Nov. 20, 2009), entitled "Reducing Improper Payments," requires, inter alia, agencies to publish lists of the entities that have received the greatest amount of outstanding improper payments under government contracts, grants, etc. 

President Obama's Memorandum of March 4, entitled "Government Contracting," suggests we may be seeing fewer cost reimbursement contracts and less reliance on limited competition (including sole source) contracts and outsourcing.

Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), the President issued a notice dated September 10, which continues for one year the national emergency declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States.

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-29, Amendment 1

FAC 2005-29, Amendment 1 (FAR Case 2007-013, "Employment Eligibility Verification"): The effective and applicability dates of this FAR case were delayed to January 19 and February 20, respectively. (Subsequently, the effective date of the employment eligibility verification regulations was delayed until May 21, 2009; and then again until June 30; and yet again to September 8.) Beginning February 20, contracting officers are required to  (i) include the new clause at 52.222–54, entitled "Employment Eligibility Verification," in  solicitations in accordance with the prescription at FAR 22.1803; and (ii) modify, on a bilateral basis, existing indefinite-delivery/indefinite-quantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends beyond August 20, 2009, and the amount of work or number of orders expected under the remaining performance period is substantial.

FAC 2005-30

Item I, a final rule entitled "Federal Procurement Data System ("FPDS")" (FAR Case 2004-038), (i) establishes the FPDS as the single authoritative source of all procurement data for a host of applications and reports, such as the Central Contractor Registration (CCR), the Electronic Subcontracting Reporting System (eSRS), the Small Business Goaling Report (SRGR), and Resource Conservation and Recovery Act (RCRA) data; and (ii) requires contracting officers to verify the accuracy of contract award data prior to reporting the data in FPDS.

Item II, a final rule entitled Commercially Off-the-Shelf ("COTS") Items  (FAR Case 2000-305), (i) amends the FAR to implement Section 4203 of the Clinger-Cohen Act of 1996 (41 U.S.C. 431) with respect to the inapplicability of certain laws to contracts and subcontracts for the acquisition of COTS items, (ii) establishes a new FAR section 12.103, which  outlines the treatment of COTS items, and (iii) provides a new definition of a COTS item and revised definitions of "domestic end product" and "domestic construction material."

Item III, a final rule entitled "Exemption of Certain Service Contracts from the Service Contract Act ("SCA") FAR Case 2001-004, (i) revises the current SCA exemption in the FAR and adds an SCA exemption for contracts for certain additional services that meet specific criteria and (ii) adds to the "Annual Representations and Certifications" clause at FAR 52.204-8, the conditions under which each listed provision applies or (for the more complex cases) a check-off for the contracting officer to indicate whether the provision is applicable to the solicitation.

Item IV, an interim rule entitled "Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts-Section 844 of the National Defense Authorization Act for Fiscal Year 2008 (Interim)" (FAR Case 2008-003), (i) implements Section 844 of the National Defense Authorization Act for Fiscal Year 2008; (ii) amends FAR 6.305 to require agencies to make available for public inspection within 14 days after contract award the justification required by FAR 6.303-1, on the website of the agency and at the FedBizOpps website or (in the case of a contract award permitted under FAR 6.302-2) a posted justification within 30 days after contract award; and (iii) requires contracting officers to screen all justifications for contractor proprietary data and remove all such data prior to publication.

Item V, a final rule entitled SAFETY Act: Implementation of DHS Regulations (FAR Case 2006-023), implements the provisions of the SAFETY Act, which provides incentives for the development and deployment of anti-terrorism technologies by creating a system of "risk management" and a system of "litigation management."

Item VI, a final rule entitled "Electronic Products Environmental Assessment Tool ("EPEAT")" (FAR Case 2006-030), adopts the previous interim rule without change so as to (i) require use of EPEAT when acquiring personal computer products such as desktops, laptops, and monitors pursuant to the Energy Policy Act of 2005 and Executive Order 13423, (ii) revise FAR Subpart 23.7 and (iii) prescribe a clause at 52.223-16 (also included in 52.212-5 for acquisition of commercial items) in all solicitations and contracts for the acquisition of personal computer products, services that require furnishing of personal computer products for use by the Government and services for contractor operation of government-owned facilities.

Item VII,  a final rule entitled "Combating Trafficking in Persons (FAR Case 2005-012), (i) implements Section 3(b) of the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003, (ii) requires that contracts contain a clause allowing the agency to terminate the contract if a contractor, contractor employees, subcontractor, or subcontractor employees engage in severe forms of trafficking in persons or procures a commercial sex act during the period of performance of the contract, or uses forced labor in the performance of the contract, and (iii) provides that the contracting officer may consider whether the contractor had a Trafficking in Persons awareness program at the time of a violation as a mitigating factor when determining remedies; and a website where the contractor may obtain additional information about Trafficking in Persons and examples of awareness programs.

Item VIII, a final rule entitled "Trade Agreements--New Thresholds" (FAR Case 2007-016) adopts the previous interim rule without change and adjusts the thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements as determined by the United States Trade Representative, according to a formula set forth in the agreements.

Item IX is an editorial change to FAR 15.101-2.

FAC 2005-31

Federal Acquisition Circular 2005-31 has been published. It includes the following six items:

Item I, a final rule entitled "Small Business Size Representation" (FAR Case 2006-032), implements the Small Business Administration's (SBA) final rule published on November 15, 2006 (71 FR 66434), entitled "Small Business Size Regulations; Size for Purposes of Governmentwide Acquisition Contracts, Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) Business Development/Small Disadvantaged Business; Business Status Determinations." The new rule adopts (with several changes) the interim rule originally published at 72 FR 36852 (July 5, 2007) and applies to solicitations issued and contracts awarded on or after April 20, 2009. Moreover, all long-term contracts as defined in the rule, awarded to small business concerns prior to June 30, 2007, that have not yet been modified to include FAR 52.219-28, must be modified to include FAR 52.219-28 within 90 days after the effective date of this final rule. Basically, the new rule requires businesses to re-certify their status as small at various points during long-term contracts.

Item II, an interim rule entitled "Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items" (FAR Case 2008-012), implements Section 814 of the National Defense Authorization Act for Fiscal Year 2008, which requires  the harmonization of the threshold for cost or pricing data on non-commercial modifications of commercial items with the Truth In Negotiation Act (TINA) threshold for cost and pricing data. The new threshold is $650,000, and it will be adjusted as necessary to maintain the required consistency in the future.  

Item III, a final rule entitled "Amendments to Incorporate New Wage Determinations" (FAR Case 2008-014), amends the FAR  to preclude a possible scenario where a contracting officer has to unnecessarily reevaluate proposals already eliminated from a competition. The new rule corrects the inconsistency at FAR 22.404-5(c)(3) by changing the language to indicate a contracting officer shall amend solicitations to incorporate new wage determinations and furnish the wage rate information to all offerors that have not been eliminated from the competition, if the closing date for receipt of offers has already passed. 

Item IV, a final rule entitled "Least Developed Countries that are Designated Countries" (FAR Case 2008-021), amends FAR 25.003's lists of designated and least-developed countries and the contract clauses at FAR 52.225-05 and 52.225-11.

Item V, an interim rule entitled "Federal Food Donation Act of 2008 (Pub. L. 110-247)" (FAR Case 2008-017), to implement the Federal Food Donation Act of 2008, which encourages executive agencies and their contractors, in contracts for the provision, service, or sale of food, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that provide assistance to food-insecure people in the United States. 

Item VI entitled "Technical Amendments" makes miscellaneous editorial changes to the FAR.

 FAC 2005-32

Federal Acquisition Circular 2005-32 has been published. It contains six regulations, the first five of which are issued under the American Recovery and Reinvestment Act of 2009 (the "Recovery Act"):

Item I, an interim rule entitled "Buy American Act Requirements for Construction Materials" (FAR Case 2009-008) prohibits the use of funds appropriated or otherwise made available by the Recovery Act for any project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.

Item II, an interim rule entitled "Whistleblower Protections" (FAR Case 2009-012) prohibits federal employers from discharging, demoting, or discriminating against employees as a reprisal for disclosing information concerning violations of the Recovery Act.

Item III, an interim rule entitled "Publicizing Contract Actions" (FAR Case 2009-010) amends the FAR to reflect new requirements for (i) posting of presolicitation notices; (ii) announcing contract awards; (iii)  entering awards into the Federal Procurement Data System (FPDS); and (iv) actions that are not fixed-price or competitive.

Item IV, an interim rule entitled "Reporting Requirements" (FAR Case 2009-009), which implements the portion of the Recovery Act known as the  ‘‘Jobs Accountability Act,’’  requires contractors that receive awards (or modifications to existing awards) funded, in whole or in part, by the Recovery Act to report quarterly on the use of the funds.

Item V, an interim rule entitled "GAO/IG Access" (FAR Case 2009-011) adds alternate clauses to FAR 52.214–26, "Audit and Records–Sealed Bidding," FAR 52.212–5, "Contract Terms and Conditions Required to Implement Statutes or Executive Orders–Commercial Items," and FAR 52.215–2, "Audit and Records-Negotiation." Moreover, FAR 12.504(a)(7) is amended for contracts using Recovery Act funds to apply 41 U.S.C. 254d(c) and 10 U.S.C. 2313(c), Examination of Records of Contractor, to commercial item subcontracts that are otherwise exempt when subcontractors are not required to provide cost or pricing data. Likewise, FAR 13.006(d) is amended for contracts using Recovery Act funds to apply 52.215–2, "Audit and Records-Negotiation" to contracts and subcontracts which are otherwise exempt because they are under the simplified acquisition threshold.

Item VI, an interim rule entitled "GAO Access to Contractor Employees" (FAR Case 2008-011), implements Section 871 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA) (Pub. L. 110–417), which allows the GAO to interview current contractor employees during the audit of the contractor’s records. FAR 52.215–2(d)(1) "Audit and Records-Negotiation," is revised to allow for the required access by inserting before the period: "‘and to interview any current employee regarding such transactions." FAR 52.214–26(c) "Audit and Records-Sealed Bidding" is revised to allow for the required access by inserting before the period: ‘‘and also the right to interview any current employee regarding such transactions."

FAC 2005-33

Federal Acquisition Circular 2005-33 includes two items. Item I (FAR Case 2008-036) is an interim rule, which allows contracting officers to purchase the goods and services of Costa Rica, Oman, and Peru without application of the Buy American Act if the acquisition is subject to the applicable trade agreements. Item II, entitled Contractor's Request for Progress Payments (FAR Case 2005-032), is a final rule that incorporates improvements related to requests for progress payments and the Standard Form 1443, Contractor’s Request for Progress Payments, used to request those progress payments.

FAC 2005-34

Federal Acquisition Circular (FAC) 2005-34 includes three items.

Item I (FAR Case 2006-022), a final rule entitled "Contractor Performance Information" implements the President's March 4 Memorandum on Government Contracting by promoting the use of a standard performance information reporting system, the Past Performance Information Retrieval System (PPIRS)

Item II (FAR Case 2008-009), an interim rule entitled "Prohibition on Contracting with Inverted Domestic Corporations" implements Section 743 of Division D of the Omnibus Appropriations Act, 2009 (Public Law 111–8), which prohibits the award of contracts using appropriated funds to any foreign incorporated entity that is treated as an inverted domestic corporation or to any subsidiary of one. An inverted domestic corporation is one that used to be incorporated in the United States, or used to be a partnership in the United States, but now is incorporated in a foreign country, or is a subsidiary whose parent corporation is incorporated in a foreign country, the purpose being to avoid United States taxes on business income generated in foreign countries. Comments are due by August 29. 

Item III (FAR Case 2008-028), a final rule entitled "Role of Interagency Commission on Debarment and Suspension" implements Section 873(a)(1) and (2) of the National Defense Authorization Act for Fiscal Year 2009. The rule clarifies the role of the Interagency Committee on Debarment and Suspension when more than one agency has an interest in the debarment or suspension of a contractor.

FAC 2005-35

FAC 2005-35 includes one item, FAR Case 2009-015, entitled "Revocation of Executive Order 13202," which removes all references in the FAR to Executive Order 13202, which had prohibited the Government from requiring or prohibiting the use of project labor agreements by its construction contractors and subcontractors.

FAC 2005-36

Federal Acquisition Circular (FAC) 2005-36 includes the following six items (plus technical amendments):

Item I (FAR Case 2008-038), a final rule entitled "Federal Technical Data Solution (FedTeDS)" retires that system, removes all references to it from the FAR and substitutes references to the Governmentwide Point of Entry (GPE) system.

Item II (FAR Case 2007-021), a final rule entitled "Fair Labor Standards Act and Service Contract Act Price Adjustment Clauses" specifically requires the inclusion of FAR 52.222-43 and 52.222-44 in time-and-materials and labor-hour service contracts that are subject to the Service Contract Act.

Item III (FAR Case 2009-014), an interim rule entitled "New Designated Country--Taiwan" implements the designation of Taiwan under the World Trade Organization Agreement on Government Procurement (which took effect on July 15, 2009) and allows contracting officers to purchase goods and services made in Taiwan without application of the Buy American Act if the acquisition is covered by the World Trade Organization Agreement on Government Procurement.

Item IV (FAR Case 2008-004), a final rule entitled "Prohibition on Restrictions on Business Operations in Sudan and Imports from Burma" implements Section 6 of the Sudan Accountability and Divestment Act of 2007, which requires certification in each contract entered into by an executive agency that the contractor does not conduct certain business operations in Sudan. In addition, in accordance with Executive Orders 13310 and 13448, Burma is added to the list of countries from which most imports are prohibited.

Item V (FAR Case 2006-013), a final rule entitled "List of Approved Attorneys, Abstractors, and Title Companies" updates the procedures for the acceptance of a bond with a security interest in real property because the DOJ has discontinued maintenance of its former list of approved abstractors, attorneys, and title companies.

Item VI (FAR Case 2007-002), a final rule entitled "Cost Accounting Standards (CAS) Administration and Associated FAR Clauses" converts (without change) the interim rule that revised FAR 30.201–4(b)(1) and FAR 52.230–1 through 52.230–5 to maintain consistency between the FAR and CAS regarding the administration of the CAS Board’s rules, regulations and standards.

FAC 2005-37

FAC 2005-37 has been published and includes the following seven items (plus technical amendments):

Item I (FAR Case 2008-035), an interim rule entitled "Registry of Disaster Response Contractors," implements Section 697 of the Department of Homeland Security Appropriations Act, 2007 (6 U.S.C. 796), which requires (i) FEMA to establish and maintain a registry of contractors, who are willing to perform debris removal, distribution of supplies, reconstruction, and other disaster or emergency relief activities; and (ii) contracting officers to consult the Registry during market research and acquisition planning.

Item II (FAR Case 2007-008), a final rule entitled "Limiting Length of Noncompetitive Contracts in Urgent and Compelling Urgency Circumstances," implements section 862 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417) (hereinafter the "2009 NDAA") and the OFPP Administrator’s memorandum of May 31, 2007, by limiting the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances to the minimum contract period necessary to meet the requirements, and no longer than one year, unless the head of the agency determines that exceptional circumstances apply.

Item III (FAR Case 2008-026), a final rule entitled "GAO Access to Contractor Employees," implements section 871 of the 2009 NDAA,  which allows the GAO to interview current contractor employees during the audit of the contractor’s records.

Item IV (FAR Case 2008-034), an interim rule entitled "Use of Commercial Services Item Authority," implements section 868 of the 2009 NDAA, which provides that purchases of commercial services that are not offered and sold competitively in substantial quantities in the commercial marketplace may only be considered commercial items for the purposes of the FAR if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price of such services.

Item V (FAR Case 2008-031), an interim rule entitled "Limitations on Pass Through Charges," implements, inter alia, section  866 of the 2009 NDAA to minimize excessive pass-through charges by contractors from subcontractors, or of tiers of subcontractors, that add no or negligible value, and to ensure that neither a contractor nor a subcontractor receives indirect costs or profit/fee (i.e., pass-through charges) on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no, or negligible, value.

Item VI (FAR Case 2008-008), an interim rule entitled "Award Fee Language Revision," implements section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007, section 867 of the 2009 NDAA, and the OFPP guidance memorandum dated December 4, 2007, entitled "Appropriate Use of Incentive Contracts," and makes an extensive set of FAR revisions to improve agency decision-making procedures when using award-fee contracts.

Item VII (FAR Case 2009-003), a final rule entitled "National Response Framework," amends the FAR to reflect (i) the January 22, 2008, re-issuance of the FEMA National Response Plan as the National Response Framework and (ii) the elimination of the term ‘‘Incident of National Significance.’’

FAC 2005-38

Federal Acquisition Circular (FAC2005-38) has been published. It includes the following six items plus technical amendments:

Item I (FAR Case 2009-017), entitled "Revocation of Executive Order 13201, Notification of Employee Rights Concerning Payment of Union Dues or Fees," is a final rule that deletes FAR Subpart 22.16 and the corresponding clause at FAR 52.222–39, Notification of Employee Rights Concerning Payment of Union Dues or Fees (which had implemented E.O. 13201 and required contractors to post a notice informing employees of their rights concerning payment of union dues or fees and detailed that employees could not be required to join unions or maintain membership in unions to retain their jobs) because that E.O. was revoked by E.O. 13496 of January 30, 2009, entitled "Notification of Employee Rights Under Federal Labor Laws." See entry at February 4 below.

Item II (FAR Case 2006-026), entitled "Governmentwide Purchase Card Restrictions for Treasury Offset Program Debts ," is a final rule (effective February 1, 2010, that amends the FAR to restrict the use of the governmentwide commercial purchase card as a method of payment for offerors with debts subject to the Treasury Offset Program.

Item III (FAR Case 2005-041), entitled "Internet Protocol Version 6 (IPv6)," is a final rule that requires IPv6 compliant products to be included in all new IT acquisitions using IP, which is one of the primary mechanisms that define how and where information moves across networks.

Item IV (FAR Case 2008-017), entitled "Federal Food Donation Act of 2008 (Pub. L. 110-247)," is a final rule (adopting the previous interim rule without changes) amending the FAR to implement the Federal Food Donation Act of 2008 (Pub. L. 110–247), which encourages executive agencies and their contractors, in contracts for the provision, service, or sale of food, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that provide assistance to food-insecure people in the United States.

Item V (FAR Case 2006-021), entitled "Postretirement Benefits (PRB) FAS 106," is a final rule effective January 11, 2010, which amends the FAR to permit contractors to measure accrued PRB costs using either the criteria in Internal Revenue Code 419 or the criteria in FAS 106.

Item VI (FAR Case 2006-024), entitled "Travel Costs ," is a final rule effective January 11, 2010, which amends the FAR travel costs principle to ensure a consistent application of the limitation on allowable contractor airfare costs.

Technical Amendments in the form of editorial changes are being made to FAR Parts 6, 8, 15, and 52.

 

Other FAR Revisions

A proposed rule (FAR Case 2007-021) would amend the FAR to explicitly require the use of the "Fair Labor Standards Act and Service Contract Act-Price Adjustment (Multi-Year and Option Contracts)" clause and the "Fair Labor Standards Act and Service Contract Act-Price Adjustment" clause in time-and-materials and labor-hour contracts that are subject to the Service Contract Act. The explanatory statements note that the clauses are widely used in such contracts now but that the absence of a specific prescription in the FAR leads to some inconsistencies. 

Proposed revisions would conform the FAR to changes in the SBA's regulations concerning the HUBZone program.

Another proposed rule (FAR Case 2008-015) would  change the withholding requirement for payments under fixed-price architect-engineer contracts from 10% to an amount determined by the Contracting Officer as being necessary to protect the Government's interests.

A proposed regulation (FAR Case 2008-023) that would clarify the requirements that have to be met for a sole source award to a service-disabled veteran-owned small business (FAR 19.1406). The proposed rule also would modify the language in the regulation concerning sole source awards to HUBZone small businesses (FAR 19.1306) to make it consistent with the changes to the SDVOSB regulations. The proposed rules respond to the GAO's decision in the matter of MCS Portable Restroom Service, B–299291, March 28, 2007.

Another proposed rule (FAR Case 2009-005) would implement President Obama's Executive Order 13502 by adding (i) a new FAR Subpart 22.5, Use of Project Labor Agreements for Federal Construction Projects; (ii) a new solicitation provision, entitled "Notice of Requirement for Project Labor Agreement," to be included in solicitations where the agency has exercised its discretion to require a project labor agreement; and (iii) add a new contract clause entitled "Project Labor Agreement."

An extensive set of proposed revisions and clarifications to various FAR government property provisions has been published (FAR Case 2008-011). Comments are due by October 5.

FAR Case 2009-013, entitled "Nonavailable Articles," is a proposal to revise the list of nonavailable articles at FAR § 25.104(a) to which the Buy America Act restrictions do not apply. Comments are due by October 6.

FAR Case 2009-009: registration at federalreporting.gov is now available for contractors required to register by FAR 52.204-11 pursuant to the American Recovery and Reinvestment Act. Moreover, guidance has been published to assist federal contractors who have contracts that are funded, in whole or in part, by the American Recovery and Reinvestment Act of 2009 and that include the FAR clause at 52.204–11,  in understanding the federalreporting.gov reporting tool.

FAR Case 2008-020: a proposed rule would amend the FAR to change the procedures for close out of contract files.

FAR Case 2008-016 is a proposed rule establishing procedures for contracting officers to report data concerning default terminations and defective cost or pricing data into the Past Performance Information System (PPIRS).

FAR Case 2008-027 is a proposed rule to amend the FAR to implement Section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires (i) the GSA to establish and maintain a data system containing specific information on the integrity and performance of covered federal agency contractors and grantees and (ii)  awarding officials to review the data system and consider other past performance information when making any past performance evaluation or responsibility determination. The new data system will be called the Federal Awardee Performance and Integrity Information System (FAPIIS). Comments are due by October 5.

FAR Case 2008–025, entitled "Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions," is a proposal to amend the FAR to address personal conflicts of interest by employees of Government contractors as required by section 841(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417). Comments are due by January 12, 2010.

 

 

Department of Defense FAR Supplement (DFARS)

Effective January 1, the DoD issued revised per diem travel rates for its civilian employees for travel in Alaska, Hawaii, Puerto Rico, and the Mariana Islands, and possessions of the United States.

A slew of regulations were published on January 15:

A final rule entitled "Clean Air Act and Clean Water Act Exemptions" (DFARS Case 2007-D022) establishes the procedures for awarding a contract  to a contractor that is otherwise excluded from Federal procurement programs due to a violation of the Clean Air Act or the Clean Water Act.

A final rule entitled "Contract Actions Supporting Contingency Operations or Facilitating Defense Against or Recovery From Nuclear, Biological, Chemical, or Radiological Attack" (DFARS Case 2008-D026) lowers the required level of DoD approval for determinations with regard to the use of emergency acquisition flexibilities for contract actions supporting contingency operations or facilitating defense against or recovery from nuclear, biological, chemical, or radiological attack.

A final rule entitled "Delegation of Authority for Single Award Task or Delivery Order Contracts" (DFARS Case 2008-D017) specifies that the authority to award of a single source task or delivery order contract exceeding $100 million may not be delegated below the level of the senior procurement executive.

A final rule entitled "DoD Law of War Program" (DFARS Case 2006-D035) includes requirements for DoD contractors to institute effective programs to prevent violations of the law of war by contractor personnel authorized to accompany U.S. Armed Forces deployed outside the U.S.

A final rule entitled "List of Firms Owned or Controlled by the Government of a Terrorist Country" (DFARS Case 2008-D025) establishes procedures for notifying the appropriate DoD office that a firm or its subsidiary may be owned or controlled by the government of a terrorist country.

An interim rule, with a request for comments, entitled "Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority" (DFARS Case 2008-D030) amends the DoD pilot program addressed in DFARS Subpart 212.70 "Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority" by establishing a new program expiration date of September 30, 2010, and adding items developed under research projects in accordance with 10 U.S.C. 2371 to the types of items to which the program applies.

A final rule entitled "Security-Guard Functions" (DFARS Case 2006-D050) adopts without change the previous interim rule extending until September 30, 2012, the period during which contractor performance of security-guard functions at military installations or facilities is authorized to fulfill additional requirements resulting from the terrorist attacks on the United States on September 11, 2001.

An interim rule, with a request for comments, entitled "Senior DoD Officials Seeking Employment With Defense Contractors" (DFARS Case 2008-D007) amends the DFARS to implement Section 847 of the National Defense Authorization Act for Fiscal Year 2008, section 847 of which addresses requirements for senior DoD officials to obtain a post-employment ethics opinion before accepting a position from a DoD contractor within two years after leaving DoD service.

A final rule entitled "Separation of Senior Roles in Source Selection" (DFARS Case 2008-D037) requires the military departments and defense agencies to certify every two years that no senior leader has performed multiple roles in the acquisition of a major weapon system or major service.

Another interim rule with request for comments, entitled "Statutory Waiver for Commercially Available Off-the-Shelf Items" (DFARS Case 2008-D009) implements a determination made by the Administrator for Federal Procurement Policy on February 14, 2008, in accordance with 41 U.S.C. 431, that the Buy American Act domestic component test is inapplicable to acquisitions of COTS items so that a COTS item will be treated as a domestic end product if it is manufactured in the U.S., without the need to track the origin of the item’s components.

An interim rule with request for comments entitled "Steel for Military Construction Projects" (DFARS Case 2008–D038) requires that American steel producers, fabricators, and manufacturers be given the opportunity to compete for contracts and subcontracts for the acquisition of steel for use in military construction projects or activities.

A final rule entitled "U.S.-International Atomic Energy Agency Additional Protocol" (DFARS Case 2004-D003) adds a contract clause for use in contracts for research and development or major defense acquisition programs involving fissionable materials, other radiological source materials, or technologies directly related to nuclear power production,  requires a contractor to notify DoD if the contractor is required to report its activities under the U.S.-International Atomic Energy Agency Additional Protocol.

An interim rule with request for comments entitled "Whistleblower Protections for Contractor Employees" (DFARS Case 2008–D012) addresses protections for contractor employees who disclose information to government officials with regard to waste or mismanagement, danger to public health or safety, or violation of law related to a DoD contract.

Because it exceeded its 5% contracting goal in 2008, the DoD has suspended its 10% price evaluation adjustment for small disadvantaged businesses from March 13, 2009 to March 12, 2010.

New per diem rates have been published for travel by government employees in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and United States Possessions.

The DoD solicited suggestions from contractors concerning its acquisition strategy to fulfill the requirement that contractors working outside the United States have Defense Base Act insurance to provide workers compensation benefits in accordance with Section 843 of the National Defense Authorization Act for Fiscal Year 2009. 

The DoD sought comments concerning its upcoming revision of the Commercial Item Handbook.

Several DFARS regulations were issued on July 15--

DFARS Case 2008-D011 is an interim rule amending the DFARS to implement Sections 805 and 815 of the National Defense Authorization Act for Fiscal Year 2008. It lists the conditions under which (i) a time-and-materials or labor hour contract may be used for the acquisition of commercial items and (ii) major weapon systems and subsystems may be treated as commercial items.

DFARS Case 2006-D013 is a final rule implementing statutory provisions relating to the leasing of vessels, aircraft, and combat vehicles. It applies to long-term leases and charters and to contracts with a substantial termination liability.

DFARS Case 2006-D051 is an interim rule  implementing Section 802 of the National Defense Authorization Act for Fiscal Year 2008, which places limitations on the award of new contracts for lead system integrator functions in the acquisition of major DoD systems.

DFARS Case 2008-D044 is a final rule implementing Section 803 of the National Defense Authorization Act for Fiscal Year 2009, which requires the DoD to identify and evaluate, at all stages of the acquisition process, opportunities for the use of commercial computer software and other nondevelopmental software.

DFARS Case 2008-D005 is an interim rule implementing Section 801 of the National Defense Authorization Act for Fiscal Year 2008, which requires internal controls for procurements made by non-DoD agencies on behalf of DoD.

The DoD (DFARS Case 2007-D011) is also proposing revisions to the DFARS to clarify requirements regarding definitization of letter contracts and to specify that DoD letter contracts will be definitized using the DFARS procedures applicable to all other undefinitized contractual actions. Comments are due by September 14.

The DFARS (section 212.207(b)) has been corrected by adding the words "commercial item" in two places to clarify the particular definition to which that section is referring in specifying the types of services to which the rule applies.

The following DFARS amendments were published on July 29:

DFARS Case 2008-D035, entitled "Peer Reviews of Contracts," is a final rule that adds, inter alia, a DFARS section 201.170 ("Peer Reviews"), which (i) specifies that the Office of the Director, Defense Procurement and Acquisition Policy, will organize teams of reviewers and will facilitate Peer Reviews for all solicitations valued at $1 billion or more and for all contracts for services valued at $1 billion or more and (ii) requires the military departments, defense agencies, and DoD field activities to establish procedures for pre-award Peer Review of solicitations valued at less than $1 billion, and postaward Peer Review of contracts for services valued at less than $1 billion.

DFARS Case 2008-D003, entitled "Restriction on Acquisition of Specialty Metals," is a final rule that implements Section 842 of the National Defense Authorization Act for Fiscal Year 2007 and Sections 804 and 884 of the National Defense Authorization Act for Fiscal Year 2008 by  addressing restrictions on the acquisition of specialty metals not melted or produced in the United States.

DFARS Case  2008-D010, entitled "Clarification of Central Contractor Registration and Procurement Instrument Identification Data Requirements," is a final rule addressing requirements for ensuring the accuracy of contractor information in the CCR database and in contract documents and clarifying the requirements for proper assignment of procurement instrument identification numbers.

DFARS Case 2007-D006, entitled "Contract Reporting," is a final rule that updates DFARS text addressing reporting of contract actions, to remove references to obsolete reporting form DD 350, and to address current DoD procedures for reporting of contract actions in the Federal Procurement Data System ("FPDS").

DFARS Case 2007-D020, entitled "Government Property," is a final rule that extensively updates text throughout the DFARS addressing the management of government property in the possession of contractors. The updates are consistent with changes made to the FAR.

DFARS Case 2007-D008, entitled "Protection of Human Subjects in Research Projects,"  is a final rule that adds DFARS policy (i) addressing requirements for the ethical treatment of human subjects involved in research projects, (ii) adding a clause for use in contracts involving human subjects in research, and (iii) informing contractors of their responsibilities for compliance with 32 CFR Part 219; DoD Directive 3216.02; applicable DoD component policies; 10 U.S.C. 980; and, when applicable, FDA policies and regulations.

DFARS Case 2008-D029, entitled "Requirements Applicable to Undefinitized Contract Actions," is a final rule that (i) requires DoD departments and agencies to submit semi-annual reports regarding undefinitized contract actions exceeding $5 million; and (ii) establishes requirements for (a) obligation of funds for the undefinitized period consistent with the contractor’s proposal for that period; and (b) compliance with existing DFARS policy relating to profit computation for undefinitized contract actions.

DFARS Case 2008-D046, entitled "Trade Agreements--Costa Rica and Peru,"  is an interim rule that amends trade agreement provisions and clauses in DFARS Part 252 to implement the Dominican Republic-Central America-United States Free Trade Agreement with respect to Costa Rica, and the United States-Peru Trade Promotion Agreement, which were approved by Congress in the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (Pub. L. 109–53) and the United States-Peru Trade Promotion Agreement Implementation Act (Pub. L. 110–138) (19 U.S.C. 3805 note). Comments are due by September 28.

DFARS Case 2008-D040, entitled "Motor Carrier Fuel Surcharge," is an interim rule to implement Section 884 of the National Defense Authorization Act for Fiscal Year 2009, which requires the DoD to ensure that fuel-related adjustments in contracts for carriage are passed through to the person bearing the cost of the fuel to which the adjustment relates. Comments are due by September 28.

On November 19, the DoD adopted five previously interim rules, without any changes, as final DFARS rules:

DFARS Case 2008-D007 (entitled "Senior DoD Officials Seeking Employment with Defense Contractors") implements section 847 of the National Defense Authorization Act for Fiscal Year 2008, which addresses requirements for senior DoD officials to obtain a post-employment ethics opinion before accepting compensation from a DoD contractor within two years after leaving DoD service.

DFARS Case 2008-D012 (entitled "Whistleblower Protections for Contractor Employees")  implements section 846 of the National Defense Authorization Act for Fiscal Year 2008 and section 842 of the National Defense Authorization Act for Fiscal Year 2009, which address protections for contractor employees who disclose information to government officials with regard to waste or mismanagement, danger to public health or safety, or violation of law related to a DoD contract.

DFARS Case 2008-D015 (entitled "Competition Requirements for Purchases from Federal Prison Industries ") implements section 827 of the National Defense Authorization Act for Fiscal Year 2008, which requires the use of competitive procedures in the acquisition of items for which Federal Prison Industries has a significant market share.

DFARS Case 2008-D030 (entitled "Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority") implements section 824 of the National Defense Authorization Act for Fiscal Year 2009, which amended the DoD pilot program for transition to follow-on contracting after use of other transaction authority, to establish a new program expiration date and to include items developed under research projects within the scope of the program. The pilot program provides that certain items which do not otherwise meet the definition of ‘‘commercial item’’ may be treated as commercial items in the award of contracts and subcontracts that follow an other transaction agreement.

DFARS 2008-D038 (entitled "Steel for Military Construction Projects") implements section 108 of the Military Construction and Veterans Affairs Appropriations Act, 2009, which requires that American steel producers, fabricators, and manufacturers be given the opportunity to compete for contracts and subcontracts for the acquisition of steel for use in military construction projects or activities.

DFARS Case 2009-D010: The DoD published an interim rule (effective November 23) amending several clauses in Part 252 of the DFARS to add Taiwan as a designated country to the list of World Trade Organization Government Procurement Agreement designated countries, due to the accession of Taiwan to the World Trade Organization Government Procurement Agreement. Comments are due by January 22, 2010.

DFARS Case 2008-D039: The DoD issued an interim rule (effective November 23) amending the DFARS to implement section 825 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417), which clarifies the Government’s rights in technical data in the designs of DoD vessels, boats, craft, and components thereof, and the Vessel Hull Design Protection Amendments of 2008 (Pub. L. 110–434). Comments are due by January 22, 2010.

Several more DFARS regs were published on December 24:

DFARS Case 2007-D004, entitled "Allowability of Costs to Lease Government Equipment for Display or Demonstration," is a final rule specifying that monies paid to the Government for the leasing of government equipment are unallowable, except in the case of foreign military sales contracts.

DFARS Case 2005-D010, entitled "Definitions of Component and Domestic Manufacture," revises the definitions of those terms in order to clarify the distinction between foreign acquisition policies that apply only to top-level components of end products and those that apply to both top-level and lower-tier components of end products.

DFARS Case 2008-D009, entitled "Statutory Waiver for Commercially Available Off-the-Shelf Items," adopts as final (without change) the interim rule conforming the DFARS to the FAR changes implementing the waiver of the component test of the Buy American Act to contracts and subcontracts for the acquisition of COTS items.

Effective December 28, the Under Secretary of Defense (Acquisition, Technology, and Logistics) is waiving the limitation of 10 U.S.C. 2534 (which limits DoD procurement of certain items to sources in the national technology and industrial base) for the following defense items produced in the UK:

1. Air circuit breakers;

2. Welded shipboard anchor and mooring chain with a diameter of four inches or less;

3. Gyrocompasses;

4. Electronic navigation chart systems;

5. Steering controls;

6. Pumps;

7. Propulsion and machinery control systems; and

8. Totally enclosed lifeboats.

The DoD adopted as final (with only a minor change) the interim rule that amended the DFARS to implement Section 802(a) of the National Defense Authorization Act for Fiscal Year 2007 (and DoD policy mandates) to require the DoD to assess long-term technical data and computer software needs when acquiring major weapon systems and subsystems.

 

Other Agencies 

Bureau of Industry and Security

The Bureau of Industry and Security (BIS) proposed amending  its regulations (at 15 C.F.R. Part 701) concerning the reporting of offset agreements in sales of weapon systems or defense-related items to foreign countries or foreign firms in order to update and provide clarification with regard to the information U.S. companies are required to submit each year to BIS to support the preparation of the annual report to Congress on offsets in defense trade. 

The BIS has published revisions to the Commerce Control List (CCL) in the Export Administration Regulations (EAR) to implement changes made to the Wassenaar Arrangement’s List of Dual Use Goods and Technologies maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies.

The BIS published a final rule to amend certain requirements in the EAR that apply to Albania and Croatia, based upon the accession of those two countries to formal membership in NATO on April 1, 2009.

Commerce Department

The National Technology Information Service of the Department of Commerce is accepting orders for the 2009 edition of the Export Administration Regulations.

Defense Department

The DoD has issued an interim final rule adding a Part 159 to 32 C.F.R. entitled "Private Security Contractors Operating in Contingency Operations," which "establishes policy, assigns responsibilities and provides procedures for the regulation of the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a covered contract. It also assigns responsibilities and establishes procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal, as appropriate, of" private security contractors and their personnel."

The DoD's Per Diem, Travel and Transportation Allowance Committee has published Civilian Personnel Per Diem Bulletin Number 265, which lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and U.S. Possessions.

Energy Department

The DOE has published lengthy, detailed regulations concerning the federal procurement of energy efficient products pursuant to the National Energy Conservation Policy Act. The final rule became effective April 13.

The Department of Energy Acquisition Regulation (DEAR) has been amended to revise the security clause used in all contracts and subcontracts involving access authorizations to specifically require background reviews, and tests for the absence of any illegal drug, as defined in DOE regulations of uncleared personnel (employment applicants and current employees), who will require access authorizations. Background reviews will not be required for applicants for DOE access authorization who possess a current access authorization from another Federal agency.

Effective August 21, the Department of Energy is issuing an extensive set of technical amendments and corrections to its acquisition regulations (the DEAR).

Environmental Protection Agency

The EPA amended its acquisition regulation (the EPAAR) to revise the prescription for and the content of the "Technical Direction" clause by adding and defining two terms: (i) contracting officer technical representative and (ii) task order.

The EPA amended various provisions in the EPAAR concerning government property in order to consolidate the EPAAR physical property clauses (Decontamination, Fabrication, and Government Property), re-designate the prescription number in the data clause, and update the roles and responsibilities of the contractor, DCMA and CPC. 

Federal Accounting Standards Advisory Board

Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92–463), as amended, the Federal Accounting Standards Advisory Board (FASAB) has released the Exposure Draft on Subsequent Events: Codification of Accounting and Financial Reporting Standards Contained in the AICPA Statements on Auditing Standards. AU Section 560, Subsequent Events, of the AICPA Statements on Auditing Standards includes accounting and financial reporting guidance that is not discussed in the authoritative literature that establishes accounting principles. The objective of the proposed Statement is to incorporate that guidance into the authoritative literature of the FASAB. The Exposure Draft is available here.

General Services Administration (GSA)

The GSA  rewrote GSAR Part 502 re definitions of words and terms (GSAR Case 2008-0501); Part 503 re improper business practices and personal conflicts of interest; Part 509 re contractor qualifications (GSAR Case 2006-G512); Part 511 re describing agency needs (effective January 14, 2010); Part 513 re simplified acquisition procedures; Part 514 re sealed bidding; Part 528, covering bonds and insurance; Part 525 re foreign acquisition; Part 532, contract financing; Part 537 entitled service contracting; Part 542 regarding  contract administration and audit services (GSAR Case 2008-G512 ); Part 543 regarding contract modifications (GSAR Case 2008-G513); Part 546 covering quality assurance; and Part  549 covering termination of contracts.

The agency removed Part 547 (Transportation) from the GSAR.

The agency amended the GSAR by adding a Part 519.70 to establish a mentor-protege program (i) to encourage GSA prime contractors to assist small businesses, including veteran-owned small businesses, service-disabled veteran-owned small businesses, HUBZone, small disadvantaged businesses, and women-owned small businesses, in enhancing their capabilities to perform contracts and subcontracts for GSA and other Federal agencies; (ii) to increase the base of small businesses eligible to perform GSA contracts and subcontracts; and (iii) to foster long-term business relationships between GSA prime contractors and small business entities and to increase the overall number of small business entities that receive GSA contracts, and subcontract awards.

The GSA proposed an extensive and lengthy rewrite a GSAR Part 538, entitled "Federal Supply Schedule Contracting." It also proposed a rewrite of GSAR Part 570, entitled "Acquiring Leasehold Interests in Real Property."

          Federal Travel Regulation

GSA Bulletin 09-02 clarifies the Federal Travel Regulation by describing the situations in which those on travel may be reimbursed for various special fees, including fees for checked baggage and seat assignments. The bulletin, itself, may be found by scrolling down to the "Bulletins" section on this page.     

The IRS and the GSA standard relocation mileage rate for privately owned vehicles has been reduced to $0.24 per mile for calendar year 2009.

In Per Diem Bulletin 09-05, the GSA revised the Federal Travel Regulation CONUS maximum per diem rates for Idaho, Maryland, and South Carolina.

The GSA amended the Federal Travel Regulation to clarify that travelers must deduct the appropriate amounts from their meals and incidental expense allowance when meals are part of a registration fee or otherwise paid for by the Government, in conjunction with attendance at conferences or other events while on official travel. The amendments also clarify that in limited instances, agencies may allow employees to claim the full allowance for meals when employees are unable to consume meals furnished by the Government. Effective May 11, the GSA has clarified the meal and incidental expense allowance for travel in excess of 12 hours but less than 24 hours

Effective August 20, the GSA is amending the FTR to update the list of travel purpose identifiers and incorporate new descriptive language for each identifier to enhance how travel costs are identified by Federal agencies.

With the publication of Bulletin 10-01, the GSA has revised the per diem rates for use in the continental United States for fiscal 2010. The GSA also has revised the FTR to include an updated table of meal cost adjustments for meals furnished by the Government or included in ticket prices.

The GSA amended FTR provisions covering premium class travel and transportation allowances.

The GSA (GSAR Case 2006-G506) is proposing to rewrite Part 523 of he GSAR. One of the proposed revisions changes the title of that part to "Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace," to correspond to the title in FAR Part 23. 

 Government Accountability Office (GAO)

The GAO has issued Principles of Federal Appropriations Law, Third Edition, Volume III, which supersedes the Second Edition, Volume IV, published in 2001.

Health and Human Services (HHS)

HHS published a complete revision of its acquisition regulation (the HHSAR) to reflect statutory, FAR, and governmentwide and HHS policy changes since the last revision to the HHSAR in December 2006. The revision will become effective January 26, 2010.

Homeland Security

The Department of Homeland Security (DHS) has issued an interim rule amending Parts 3025 and 3052 of its acquisition regulations (HSAR) to reflect restrictions in the American Recovery and Reinvestment Act on the purchase of certain foreign textile products (HSAR Case 2009-004). To be considered in connection with the final rule, comments must be submitted by September 16.

The Office of U.S. Citizenship and Immigration Services extended until March 4 the date for comments on the interim final rule originally published December 17, 2008 concerning the types of documentation acceptable for employment eligibility verification. The interim final rule, itself, was extended until April 3.

DHS issued a final rule amending the Homeland Security Acquisition Regulation (HSAR) to prohibit awards of s Federal Protective Service guard services contracts to firms owned, controlled, or operated by an individual who has been convicted of a serious felony. The rule is necessary to implement the provisions of Public Law 110-356, the Federal Protective Service Guard Contracting Reform Act of 2008. 

Housing and Urban Development (HUD)

Pursuant to the requirements of Executive Order 13502, HUD is removing a regulation that prohibits the use of project labor agreements on federal construction projects. 

Labor Department

The Office of Labor Management Standards of The Department of Labor has rescinded the regulations at 29 C.F.R. Part 470, which had required government contractors and subcontractors to post certain notices concerning the rights of union workers. This action is the result of President Obama's Executive Order 13496, which rescinds Executive Order 13201.

NASA

NASA amended its FAR Supp regulations concerning its mentor-protege program, inter alia, expand it to cover Veteran-owned, HUBZone, and NASA Small Business Innovation Research (SBIR) Phase II small businesses.

National Science Foundation

The NSF implemented final regulations covering the Program Fraud Civil Remedies Act.

Office of Management and Budget (OMB)

In accordance with the Small Business Paperwork Relief Act of 2002 (44 U.S.C. 3520), OMB  published lists of (i) the compliance assistance resources available to small businesses and (ii) the points of contacts in agencies to act as a liaison between the agency and small business concerns with respect to the collection of information and the control of paperwork.

Postal Service

The Postal Service published the final revisions to the rules of practice for the Postal Service Board of Contract Appeals, which was re-established by Section 847 of the  National Defense Authorization Act for Fiscal Year 2006. The final rules became effective June 1. 

Small Business Administration (SBA)

The SBA issued a new definition (effective May 3, 2010) of the term "employee" for purposes of the HUBZone program. The new definition at 13 C.F.R. 126.103 reads as follows: "Employee means all individuals employed on a full-time, part-time, or other basis, so long as that individual works a minimum of 40 hours per month. This includes employees obtained from a temporary employee agency, leasing concern, or through a union agreement or co-employed pursuant to a professional employer organization agreement. SBA will consider the totality of the circumstances, including criteria used by the IRS for Federal income tax purposes and those set forth in SBA’s Size Policy Statement No. 1, in determining whether individuals are employees of a concern. Volunteers (i.e., individuals who receive deferred compensation or no compensation, including no in-kind compensation, for work performed) are not considered employees. However, if an individual has an ownership interest in and works for the HUBZone SBC a minimum of 40 hours per month, that owner is considered an employee regardless of whether or not the individual receives compensation."

 The SBA published a document entitled "SBA Size Standards Methodology," which explains the SBA's process for analyzing and adjusting its size standards.

The SBA  waived the nonmanufacturer rule for Conductor and Control Cable (Aluminum); Conductor and Control Cable (Copper); Truck Trailer; All terrain vehicles (ATVs), wheeled or tracked; Snowmobiles and parts; Off-road ATV, wheeled or tracked; Noncurrent-Carrying Wiring Device Manufacturing, i.e., dead end tees and connectors, guy strain and link assemblies, bolts, washers, turnbuckles, twisted clips, steel angle assemblies, yoke plates, compression T connectors, press dies, anchor shackles, Y clevis ball and Y clevis sockets, yoke plates, and grounding clamps.

The SBA waived the nonmanufacturer rule for PSC 9130--Liquid Propellants--Petroleum Base Manufacturing.  

Effective April 1, the SBA terminated its waiver of the nonmanufacturer rule for PSC 3930, Warehouse Trucks and Tractors, Self-Propelled based on SBA’s recent discovery of small business manufacturers of these items.

Effective July 29, the SBA  waived the nonmanufacturer rule for 13 Watt CFLs, 26 Watt CFLs, and Occupancy Sensors Dual Technology.

The SBA terminated its waiver of the Nonmanufacturer Rule for radio telephones based on the SBA’s recent discovery of a small business manufacturer. Terminating this waiver will require recipients of contracts set aside for small businesses, service-disabled veteran-owned small businesses, or Participants in the SBA’s 8(a) Business Development Program to provide the products of small business manufacturers or processors on such contracts.

The SBA published an interim final rule that implements certain provisions of the American Recovery and Reinvestment Act of 2009 affecting small business investment companies (SBICs). These provisions increase the maximum amount of SBA leverage available to an SBIC, change the calculation of the maximum investment size that an SBIC is permitted to make, and simplify the requirement for an SBIC to devote a portion of its investment activity to smaller enterprises.

The SBA published a comprehensive list of all the currently approved class waivers from the nonmanufacturer rule

 The SBA issued an  interim final rule implementing provisions of the American Recovery and Reinvestment Act that pertain to the Surety Bond Guaranty (SBG) Program. Specifically, until September 30, 2010, the SBA is authorized (i) to guarantee bonds on contracts of up to $5,000,000 (or up to $10 million based upon the certification of a federal contracting officer) and (ii) to partially deny liability under its bond guarantee (but not on the basis of material facts disclosed to SBA in a guarantee application submitted under the Prior Approval Program). The rule also revises the size standard for participation in the SBG Program.

The SBA issued an interim rule adjusting various acquisition-related dollar thresholds to account for inflation.

The SBA has proposed to terminate the nonmanufacturer waiver for radio telephones. Comments are due by August 19. The SBA is also proposing to eliminate the class waiver under PSC 9130 for Liquid Propellants--Petroleum Base. Comments are due by August 21.

The SBA has proposed to increase the size standards for (i) five industries in NAICS Sector 72, Accommodation and Food Services: NAICS 721110, Hotels and Motels (from $7.0 million to $30 million); NAICS 721120, Casino Hotels (from $7.0 million to $30 million); NAICS 722211, Limited Service Restaurants (from $7.0 million to $10 million); NAICS 722212, Cafeterias (from $7.0 million to $25.5 million); and NAICS 722310, Food Service Contractors (from $20.5 million to $35.5 million); (ii) 18 industries in NAICS Sector 81, Other Services (The explanatory comments for the proposed changes are quite detailed and lengthy, but you can find a table listing the specific changes proposed for those 18 industries at 74 Fed. Reg. 53950 (Oct. 21, 2009)); and (iii) 48 industries in NAICS Sector, Retail Trade (A lengthy table listing both the industries affected by the proposed changes and those that will remain unchanged begins at 74 Fed. Reg. 53929 (Oct. 21, 2009)).

The SBA has proposed to amend its joint venture affiliation,  8(a),  and mentor-protege regulations in several important respects. First, whereas the current rule at 13 C.F.R. 121.3(h) limits joint ventures to submitting three offers over a two year period, the proposed rule changes the limit to three awarded contracts over that period. Moreover, the proposed rule makes clear that it is not intended as an absolute prohibition against the joint venture competing for more than three contracts, but only a statement that its members will be treated as affiliates if it does so. Secondly, the proposed rule specifically recognizes and allows the current practice of two entities who have reached the basic limit forming a new joint venture, but adds this caution: "At some point, however, such a longstanding inter-relationship or contractual dependence between the same joint venture partners will lead to a finding of general affiliation between and among them. For purposes of this provision and in order to facilitate tracking of the number of contract awards made to a joint venture, a joint venture must be in writing and must do business under its own name. . . ." These same rules will apply to SBA mentor-protege joint ventures involving an 8(a) protege. Third, the proposed rule emphasizes that the SBA is the only agency that may determine there is an exception from affiliation between a mentor and its protege, even in mentor-protege programs purportedly established by other agencies, such as the DoD's program. There are many other proposed revisions to the 8(a) and mentor-protege regulations. This is major proposed rulemaking that should be studied carefully.

 State Department

The State Department has amended the ITAR regarding Congressional certification for South Korea, which is now in the same category as the countries in NATO, Japan, Australia, and New Zealand requiring certification to Congress prior to granting any license for export of major defense equipment sold under a contract in the amount of $25,000,000 or more, or for defense articles or defense services sold under a contract in the amount of $100,000,000 or more.

Another ITAR amendment added an exemption for the temporary export of body armor for exclusive personal use to destinations not subject to restrictions under the ITAR § 126.1 and to Afghanistan and Iraq under specified conditions.

The State Department is proposing to amend Section 126.6 of the ITAR (pertaining to U.S. Government transfer programs and foreign-owned military aircraft and naval vessels) to clarify the circumstances when a license  by the Directorate of Defense Trade Controls is not required. Comments are due by January 25, 2010.

Another proposed ITAR amendment (22 C.F.R. § 125.4(b)(9)) would clarify that the exemption for technical data covers data, regardless of media or format, sent or taken by a U.S. person who is an employee of a U.S. corporation or a U.S. Government agency to a U.S. person employed by that U.S. corporation or to a U.S. Government agency outside the United States. Comments are due by January 25, 2010.

Treasury Department

Beginning January 1, 2010, the CDA prompt payment interest rate is 3 1/4 percent.

Department of Transportation

The Department of Transportation has issued several proposed rules concerning its Disadvantaged Business Enterprise (DBE) program, relating to (i) counting items obtained by a DBE subcontractor from its prime contractor; (ii) encouraging "unbundling" of contracts to facilitate participation by small businesses, including DBEs; (iii) improvements to the DBE application form; (iv) program oversight; (v) facilitating certification for firms seeking to work as DBEs in more than one state; and (vi) limitations on the discretion of prime contractors to terminate DBEs for convenience, once the prime contractor has committed to using the DBE as part of its showing of good faith efforts.

United States Department of Agriculture (USDA)

The USDA issued a final rule defining the following nine categories of biobased products that will receive federal procurement preference under the as provided for under section 9002 of the Farm Security and Rural Investment Act of 2002, as amended by the Food, Conservation, and Energy Act of 2008: (i) chain and cable lubricants; (ii) corrosion preventatives; (iii) food cleaners; (iv) forming lubricants; (v) Gear lubricants; (vi) general purpose household cleaners; (vii) industrial cleaners; (viii) multipurpose cleaners; and (ix) parts wash solutions. The USDA established a minimum biobased content requirement for each of these items.

Veterans Affairs

The VA announced it intends to deviate from the FAR 32.905 by adding an interim clause to the VA Acquisition Regulation, which will allow vendors to voluntarily submit invoices electronically.

The VA amended its acquisition regulation (the VAAR) to implement portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the Act) and Executive Order 13360, by permitting VA contracting officers either to restrict competitions to SDVOSBs or VOSBs or to award sole source contracts to such entities. The VA also issued an interim rule authorizing the VA to hear protests of SDVOSB and VOSB status until the VA and the SBA have completed the process of executing an interagency agreement so that the SBA can hear such protests. 

This website links to resources on the web concerning government contracting. It is not intended to provide legal advice. Moreover, I do not vouch for the completeness, currency, or accuracy of the sites to which it links. If you have  comments, suggestions for new links, or corrections, please email me.