Stan Hinton

Home
Contact Me
2017 Blog
2016 Blog
2015 Blog
2014 Blog
2013 Blog
2012 Blog
2011 Blog
2010 Blog
2009 Blog
2008 Blog
2007 Blog
2017 Procurement Review
2016 Procurement Review
2015 Procurement Review
2014 Procurement Review
2013 Procurement Review
2012 Procurement Review
2011 Procurement Review
2010 Procurement Review
2009 Procurement Review
2008 Procurement Review
2007 Procurement Review
Statutes
Regulations
Directives
Courts
GAO
Boards
SBA
Agency Sites
More Agencies
Periodicals
Research
 

 

2010 Procurement Review--Statutes, Regulations, Executive Orders



Contents

Statutes

Executive Orders

Regulations

The Small Business Jobs Act of 2010

E. O. 13256

Federal Acquisition Regulation (FAR)

E. O. 13549

Supplemental Appropriations, Act, 2010 FAC 2005-39
FAC 2005-40

Consolidated Appropriations Act, 2010

FAC 2005-41
FAC 2005-42
FAC 2005-43
FAC 2005-44
FAC 2005-45
FAC 2005-46
FAC 2005-47
FAC 2005-48

March 10 Memorandum

Other FAR Revisions

April 26 Memoranda

Presidential Determination 2010-13

Dept. of Defense FAR Supplement (DFARS)

Individual Agencies

Army

Bureau of Industry and Security

Commerce Department

Defense Department

Department of Education

Department of Transportation

Energy Department

Federal Accounting Standards Advisory Board

GAO

GSA

Homeland Security

HUD

Interior

Labor Department

NARA

Navy

OFPP

OMB

SBA

State Department

Treasury Department

USDA (Agriculture)

                           

Statutes

The Small Business Jobs Act of 2010, inter alia, closes the loophole that had favored HUBZone business during set asides, and places HUBZone, SDVOSB, and women-owned small businesses in parity with one another.

The Supplemental Appropriations Act, 2010, inter alia, requires information in the FAPIIS system, except past performance information, to be publicly available. 

The Consolidated Appropriations Act, 2010, inter alia, requires agencies to prepare annual inventories of service contracts.

       

Executive Orders and Related Publications

Executive Order 13256  (dated Dec. 29, 2009 and published January 5, 2010) "prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism." It is accompanied by a memorandum to agencies containing directions for implementing the E. O., as well as a document listing those officials who are authorized to classify items as SECRET or TOP SECRET.

Executive Order 13549 (dated August 18, 2010) establishes (and provides details of) a Classified National Security Information Program designed to safeguard and govern access to classified national security information shared by the Federal Government with State, local, tribal, and private sector entities.

President Obama issued a memorandum dated March 10 entitled "Finding and Recapturing Improper Payments," which directs OMB to develop guidance within 90 days for increased use of Payment Recapture Audits to identify improper payments that have been made to contractors.

The President issued two more memoranda on April 26 establishing interagency task forces to increase federal contracting opportunities for (i) small businesses and (ii) veteran-owned and service disabled veteran-owned small businesses. Pursuant to these memoranda regarding enhancing the use of small businesses in federal contracting, interested parties were invited to offer their views concerning (i) removing barriers to small business participation in federal contracting; (ii) using innovative strategies and technologies to increase opportunities for small business contractors; and (iii) identifying successful agency and private sector outreach practices for matching small businesses with contracting and subcontracting opportunities. A public meeting on these issues will be held on June 28 in the auditorium of the Department of Commerce at 1401 Constitution Avenue NW, Washington, D.C.

Presidential Determination No. 2010-13 continued for one year the exercise of certain authorities under the Trading with the Enemy Act with respect to Cuba, as implemented by the Cuban Assets Control Regulations at 31 C.F.R. Part 515.

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-39

Federal Acquisition Circular (FAC) 2005-039  includes the following six items, plus a technical amendment:

Item I (FAR Case 2009-035), entitled "Extend Use of Simplified Acquisition Procedures for Certain Commercial Items," is a final rule revising FAR subpart 13.5, ‘‘Test Program for Certain Commercial Items,’’ to implement section 816 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84) by extending the program for two more years.

Item II (FAR Case 2008-012), entitled "Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items ," is a final rule (adopting the prior interim rule with few changes) to implement section 814 of the National Defense Authorization Act for Fiscal Year  2008,  which requires alignment of the threshold for cost or pricing data on noncommercial modifications of commercial items with the Truth In Negotiation Act (TINA) threshold for cost or pricing data.

Item III (FAR Case 2008-040), entitled "Use of Standard Form 26 -- Award/Contract," is a final rule (i) revising FAR parts 15 and 53 instructions for use of the Standard Form (SF) 26 to strengthen the prohibition against using block 18 of the form when awarding a negotiated procurement and  to emphasize that block 18 should only be checked when awarding a sealed bid contract and (ii) revising the final sentence of the current FAR 53.214 because the updated SF 26, which was issued in April 2008, makes the sentence unnecessary.

Item IV (FAR Case 2008-006), entitled "Enhanced Competition for Task- and Delivery- Order Contracts--Section 843 of the Fiscal Year 2008 National Defense Authorization Act," is a final rule adopting the prior interim rule with changes and  amending the FAR to implement Section 843, Enhanced Competition for Task and Delivery Order Contracts, of the National Defense Authorization Act for Fiscal Year 2008. which contains several requirements regarding enhancing competition within federal contracting, including: (i) limitation on single-award task and delivery-order contracts greater than $100 million; (2) enhanced competition for task and delivery orders in excess of $5 million; and (3) restrictions on protests in connection with issuance or proposed issuance of a task- or delivery-order except for a protest on the grounds that the order increases the scope, period, or maximum value of the contract under which the order is issued, or a protest of an order valued in excess of $10 million.

Item V (FAR Case 2008-036), entitled "Trade Agreements--Costa Rica, Oman, and Peru," is a final rule adopting the interim rule without changes amending the FAR to implement the Dominican Republic--Central America--United States Free Trade Agreement with respect to Costa Rica, the United States-Oman Free Trade Agreement, and the United States-Peru Trade Promotion Agreement.

Item VI (FAR Case 2008-015), entitled "Payments under Fixed-Price Architect-Engineer Contracts," is a final rule  amending the FAR to revise the withholding of payment requirements under FAR 52.232–10, a change that was initiated by the SBA's Advocacy Office, a part of the SBA Office of Advocacy’s Regulatory Review and Reform Initiative ("r3 initiative"), which was established to help small businesses address the cumulative federal regulatory burden.

Item VII is a technical amendment to FAR 14.202-4.

FAC 2005-40

FAC 2005-40 consists of one item, FAR Case 2008-027, entitled "Federal Awardee Performance and Integrity Information System," a final rule  to implement the Federal Awardee Performance and Integrity Information System (FAPIIS), as required by section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. FAPIIS is designed to improve the Government’s ability to evaluate the business ethics and expected performance quality of prospective contractors and protect the Government from awarding contracts to contractors that are not responsible sources.

FAC 2005-41

FAC 2005-41 also contains one item, FAR Case 2009-005 ("Use of Project Labor Agreements for Federal Construction Projects"), a final rule that implements Executive Order 13502 by amending the the FAR  (i) to provide that an agency may, if appropriate, require that every contractor and subcontractor engaged in construction on a federal construction project agree, for that project, to negotiate or become a party to a project labor agreement with one or more labor organizations, (ii) to identify factors that agencies may consider to help them decide, on a case-by-case basis, whether the use of a project labor agreement is likely to promote economy and efficiency in the performance of a specific construction project, and (iii) to identify multiple strategies for timing the Federal Government’s receipt of project labor agreements.

FAC 2005-42

FAC 2005-42 includes the following 11 items plus technical amendments:

Item I (FAR Case 2009-012) entitled "American Recovery and Reinvestment Act of 2009--Whistleblower Protections" is a final rule adopting (with changes) the interim rule amending the FAR to implement section 1553 of Division A of the Recovery Act ("Protecting State and Local Government and Contractor Whistleblowers") by prohibiting non-Federal employers from discharging, demoting, or discriminating against an employee as a reprisal for disclosing information.

Item II (FAR Case 2005-040) entitled "Electronic Subcontract Reporting System (eSRS)" is a final rule amending the FAR to require that contractors’ small business subcontract reports be submitted using the Electronic Subcontracting Reporting System (eSRS), rather than Standard Form 294 - Subcontract Report for Individual Contracts and Standard Form 295 - Summary Subcontract Report.

Item III (FAR Case 2009-010) entitled "American Recovery and Reinvestment Act of 2009--Publicizing Contract Actions" is a final rule adopting (with changes) an interim rule amending the FAR to implement OMB Memorandum M–09–10, entitled "Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009," (the Recovery Act) with respect to publicizing contract actions, which has since been supplemented, amended, and clarified by Memorandum M–09–15.

Item IV (FAR Case 2008-003) entitled "Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts--Section 844 of the National Defense Authorization Act for Fiscal Year 2008" is a final rule adopting (with changes) an interim rule amending the FAR to implement section 844 of the 2008 National Defense Authorization Act, which details the requirements for the public availability of justifications and approvals after the award of of a federal contract.

Item V (FAR Case 2008-007) entitled "Additional Requirements for Market Research" is an interim rule amending the FAR to implement section 826 of the National Defense Authorization Act for Fiscal Year 2008, which established additional requirements in subsection (c) of 10 U.S.C. 2377 that, as a matter of policy, are extended to all executive agencies. Specifically, the head of the agency must conduct market research before issuing an ID/IQ task or delivery order for a noncommercial item in excess of the simplified acquisition threshold, and a prime contractor with a contract in excess of $5 million for the procurement of items other than commercial items is required to conduct market research before making purchases that exceed the simplified acquisition threshold for or on behalf of the Government.

Item VI (FAR Case 2009-011) entitled "American Recovery and Reinvestment Act of 2009--GAO/IG Access" is a final rule adopting (with changes) an interim rule amending the FAR to implement sections 902, 1514, and 1515 of the Recovery Act.

Item VII (FAR Case 2009-014) entitled "New Designated Country--Taiwan" is a final rule adopting (without change) an interim rule amending the FAR to add Taiwan as a designated country, due to the its accession to membership in the World Trade Organization Agreement on Government Procurement.

Item VIII (FAR Case 2009-013) entitled "Nonavailable Articles" is a final rule amending the FAR to revise the list of articles determined to be domestically nonavailable.

Item IX (FAR Case 2009-025) entitled "Disclosure and Consistency of Cost Accounting Practices for Contracts Awarded to Foreign Firms" is an interim rule amending the FAR to align it with the revised CAR Board clause entitled "Disclosure and Consistency of Cost Accounting Practices--Foreign Firms."

Item X (FAR Case 2009-026) entitled "Compensation for Personal Services" is an interim rule amending the FAR to align it with revised CAS 412 ("Cost Accounting Standard for composition and measurement of pension cost") and 415 ("Accounting for the cost of deferred compensation").

Item XI (FAR Case 2009-018) entitled "Payrolls and Basic Records" is an interim rule revising the FAR "Payrolls and Basic Records" clause to implement a DOL rule to protect the privacy of workers.

FAC 2005-43

FAC 2005-43 includes the following five items:

Item I (FAR Case 2008-011) entitled "Government Property" is a final rule effective August 2 amending FAR Part 45 (Government Property) and its associated contract clauses.

Item II (FAR Case 2008-035) entitled "Registry of Disaster Response Contractors" is a final rule effective August 2 adopting, without changes, the prior interim rule amending the FAR to implement the Department of Homeland Security Appropriations Act, 2007, section 697, which requires the establishment and maintenance of a registry of disaster response contractors.

Item III (FAR Case 2010-008) entitled "Recovery Act Subcontract Reporting Procedures" is an interim rule revising the FAR clause at 52.204-11 to (i) to require first-tier subcontractors with Recovery Act funded awards of $25,000 or more, to report jobs information to the prime contractor for reporting into http://FederalReporting.gov and (ii) to require the prime contractor to submit its first report on or before the 10th day after the end of the calendar quarter in which the prime contractor received the award, and quarterly thereafter. 

Item IV (FAR Case2008-023) entitled "Clarification of Criteria for Sole Source Awards to Service-disabled Veteran-owned Small Businesses" is a final rule effective August 2 that revises the language in FAR 19.1306(a)(1), which deals with sole source awards to HUBZone small business concerns based on 15 U.S.C. 657a(b), to match the language in FAR 19.1406(a)(1) to alleviate confusion on the appropriate use of the criteria needed to conduct a sole source SDVOSB concern acquisition.

Item V (FAR Case 2009-040) entitled "Trade Agreements Thresholds" is an interim rule amending the FAR to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. 

FAC 2005-44

FAC 2005-44 includes one item:

FAR Case 2008-039, entitled "Reporting Executive Compensation and First-Tier Subcontract Awards," is an interim rule (whose reporting requirements will be implemented in phases) which amends the FAR to implement section 2 of Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-82), as amended by section 6202 of the Government Funding Transparency Act of 2008 (Pub. L. 110-252), which requires the OMB to establish a free, public, website containing full disclosure of all federal contract award information. This interim rule eventually will require contractors to report executive compensation and first-tier subcontract awards on contracts and orders expected to be $25,000 or more (including all options), except classified contracts and contracts with individuals. This information will be available to the public. The phased reporting requirements are as follow. Until September 30, 2010, any newly awarded subcontract must be reported if the prime contract award amount was $20,000,000 or more. From October 1, 2010, until February 28, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $550,000 or more.  Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25,000 or more. 

FAC 2005-45

FAC 2005-45 includes the following three items:

FAR Case 2008-024 ("Inflation Adjustment of Acquisition-Related Thresholds") is a final rule effective October 1 amending the FAR to implement section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, which requires an adjustment every 5 years of acquisition-related thresholds for inflation using the CPI for all urban consumers, except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds. The FAR Councils have used the same methodology to adjust nonstatutory FAR acquisition-related thresholds in 2010.

FAR Case 2005-036 ("Definition of Cost or Pricing Data") is a final rule effective October 1 amending the FAR to clarify the distinction between "certified cost or pricing data" and "data other than certified cost or pricing data," and to clarify the requirements for the submission of cost or pricing data.

FAR Case 2009-008 ("American Recovery and Reinvestment Act of 2009--Buy American Requirements for Construction Materials") is a final rule effective October 1, adopting, with changes, an interim rule amending the FAR to implement section 1605 of the American Recovery and Reinvestment Act of 2009.

FAC 2005-46

FAC 2005-46 includes the following seven items:

Item I (FAR Case 2009-007), entitled "Equal Opportunity for Veterans," is an interim rule amending the FAR to implement DOL regulations on equal opportunity provisions for various categories of military veterans. This rule sets forth revised coverage and definitions of veterans covered under the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) and includes new reporting requirements established under the VEVRAA and the Jobs for Veterans Act (JVA). 

Item II (FAR Case 2010-012), entitled "Certification Requirement and Procurement Prohibition relating to Iran Sanctions," is an interim rule amending the FAR to implement section 102 and partially implements section 106 of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010. Section 102 requires certification that each offeror, and any person owned or controlled by the offeror, does not engage in any activity for which sanctions may be imposed under section 5 of the Iran Sanctions Act of 1996, as amended (the Iran Sanctions Act). Section 106 imposes a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran.. 

Item III (FAR Case 2008-016), entitled "Termination for Default Reporting," is a final rule, effective October 29, to establish procedures for contracting officers to provide contractor information, such as terminations for cause or default and defective cost or pricing data, into the Past Performance Information System (PPIRS) and Federal Awardee Performance and Integrity Information System (FAPIIS) module within PPIRS.

Item IV (FAR Case 2008-008), entitled "Award-Fee Language Revision," is a final rule, effective October 29, adopting, with changes, the interim rule amending the FAR to implement section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364), section 867 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417), and the OFPP Policy guidance memorandum dated December 4, 2007, entitled "Appropriate Use of Incentive Contracts."

Item V (FAR Case 2009-020), entitled "Offering a Construction Requirement--8(a) Program," is a final rule effective October 29 which revises FAR subpart 19.8, Contracting with the Small Business Administration (The 8(a) Program), to conform to SBA regulations, by changing the location for submitting offering letters to the SBA for a construction requirement for which a specific offeror is nominated.

Item VI (FAR Case 2009-028), entitled "Encouraging Contractor Policies to Ban Text Messaging While Driving," is an interim rule amending the FAR to implement Executive Order 13513, issued on October 1, 2009, entitled ‘‘Federal Leadership on Reducing Text Messaging while Driving,’’ which was issued to demonstrate federal leadership in improving safety on the nation’s roads and highways, and to enhance the efficiency of federal contracting by preventing the unsafe practice of text messaging by federal contractors while driving in connection with government business and by promoting economy and efficiency in federal procurement, and by seeking to prohibit the disruption of government business and federal procurement, as a result of unsafe text messaging practices. . Comments are due by November 29. You've got to be kidding me.

Item VII (FAR Case 2009-039), entitled "Buy American Exemption for Commercial Information Technology--Construction Material," is an interim rule amending the FAR to implement section 615 of Division C, Title VI, of the Consolidated Appropriations Act, 2010 (Pub. L. 111–117), which authorizes an exemption from the Buy American Act for the acquisition of information technology that is a commercial item. 

FAC 2005-47

FAC 2005-47 includes the following six items (plus technical amendments): 

Item I (FAR Case 2010-006), entitled "Notification of Employee Rights Under the National Labor Relations Act," is an interim rule  to implement Executive Order 13496 (as previously implemented by the DOL), which requires contractors to display a notice to employees of their rights under Federal labor laws, including (as the DOL has determined) the National Labor Relations Act. Comments are due by February 11, 2011.

Item II (FAR Case 2006-005), entitled "HUBZone Program Revisions," is a final rule effective January 12, 2011, which implements revisions to the SBA's HUBZone Program and requires that (i) for award of a HUBZone contract, a HUBZone small business concern must be a HUBZone small business concern both at the time of its initial offer and at the time of contract award; and (ii) for general construction or construction by special trade contractors, a HUBZone small business concern must spend at least 50 percent of the cost of contract performance incurred for personnel on its own employees or subcontract employees of other HUBZone small business concerns. (The 50 percent requirement may be waived in some circumstances.)

Item III (FAR Case 2008-032), entitled "Preventing Abuse of Interagency Contracts," is an interim rule amending FAR subpart 17.5 to implement section 865 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, by (i) broadening the scope of coverage to address all interagency acquisitions (with limited exceptions), rather than just those conducted under the Economy Act; (ii) requiring agencies to support the decision to use an interagency acquisition with a determination that such action is the "best procurement approach"; (iii) directing that assisted acquisitions be accompanied by written agreements between the requesting agency and the servicing agency documenting the responsibilities of the respective parties, including the planning, execution, and administration of the contract; (iv) requiring the development of business cases (concerning which OMB is developing additional guidance, which will be referenced in the FAR once it is issued) to support the creation of multi-agency contracts; and (v) requiring the senior procurement executive for each executive agency to submit an annual report on interagency acquisitions to the Director of OMB. Comments are due by February 11, 2011.

Item IV (FAR Case 2009-019), entitled "Small Disadvantaged Business Self-Certification," is an interim rule designed to conform the FAR to revisions in the SBA's regulations and to clarify that (i) small disadvantaged business (SDBs) may provide written statements to primes self-certifying their status as SDBs and (ii) primes may rely on these statements in awarding subcontracts to SDBs. Comments are due by February 11, 2011.

Item V (FAR Case 2009-036), entitled "Uniform Suspension and Debarment Requirement," is an interim rule amending the FAR to implement section 815 of the National Defense Authorization Act for Fiscal Year 2010, which extends the flowdown of the restriction on subcontracting to lower tier subcontractors that have been suspended or debarred, with some exceptions for contracts for the acquisition of commercial items and commercially available off-the-shelf items. Comments are due by February 11, 2011.

Item VI (FAR Case 2008-031), entitled "Limitation on Pass-Through Charges," is a final rule (adopting the prior interim rule with changes), effective January 12, 2011, amending the FAR (i) to implement section 866 of the Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year 2009 (which applies to executive agencies other than DoD) and section 852 of the John Warner NDAA for FY 2007, (which applies to DoD) and (ii) to minimize excessive pass-through charges by contractors from subcontractors, or from 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.

FAC 2005-48

FAC 2005-48 includes the following four items:

Item I (FAR Case 2011-005), entitled "Repeal of the Small Business Competitiveness Demonstration Program," is a final rule effective January 31, 2011, which removes subpart 19.10 of the FAR in order to comply with the requirements of section 1335 of the Small Business Jobs Act of 2010. 

Item II (FAR Case 2009-027), entitled "Personal Identity Verification of contractor Personnel," is a final rule effective January 31, 2011, which amends the FAR to provide additional regulatory coverage to reinforce the requirement of collecting from contractors all forms of Government-provided identification once they are no longer needed to support a contract.

Item III (FAR Case 2009-031), entitled "Terminating Contracts," is a final rule effective January 31, 2011, which amends the FAR to clarify which procedures for terminating contracts apply to contracts for commercial items.  

Item IV (FAR Case 2009-018), entitled "Payrolls and Basic Records," is a final rule adopting the interim rule (with one change) that amends the FAR's "Payrolls and Basic Records" clause in order to implement a Department of Labor rule that protects the privacy of workers.

Other FAR Revisions

A proposed rule would (i) amend the FAR to implement Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, which requires an adjustment every 5 years of acquisition-related thresholds for inflation using the Consumer Price Index for all urban consumers (except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds) and (ii) use the same methodology to change nonstatutory FAR acquisition-related thresholds for adjustment in 2010.

FAR Case 2009-004 ("Enhancing Contract Transparency"): Comments are sought by July 12 concerning how best to amend the FAR to enable public posting of contract actions, should such posting become a requirement in the future, without compromising contractors’ proprietary and confidential commercial or financial information.

FAR Case 2009-006 ("Labor Relations Costs"): A proposed rule would amend FAR 31.205-21 to implement Executive Order 13494, Economy in Government Contracting, (issued on January 30, 2009, and amended on October 30, 2009) and to designate as unallowable the costs of any activities undertaken to persuade employees of the recipient of 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 employee’s own choosing.

FAR Case 2009-023: a proposed rule would standardize the use of Unique Procurement Instrument Identifiers (PIIDs) throughout the Government and extend the requirement for using PIIDs to all solicitations, contracts, and related procurement instruments. 

FAR Case 2009-027 ("Personal Identity Verification of Contractor Personnel"): Another proposed rule would revise the FAR to provide additional regulatory coverage in Subpart 4.13 and in clause 52.204–9 to reinforce the requirement of collecting from contractors all forms of government-provided identification once they are no longer needed to support a contract.

FAR Case 2009-029 ("Clarification of Standard Form 26--Award/Contract") is a proposed rule to amend the FAR to  to revise (i) the header for blocks 17 and 18 and (ii) block 18 of the Standard Form 26 to clarify that block 18 should not be used when awarding a negotiated procurement and should only be checked when awarding a sealed-bid contract.

FAR Case 2009-031 ("Terminating Contracts"): A proposed rule would amend the FAR to, inter alia, clarify the FAR 49.502(a) prescription for the "Termination for Convenience of the Government (Fixed Price) (Short Form)" clause to apprise contracting officers that there are alternative clauses that can be used for terminations up to the simplified acquisition threshold. 

FAR Case 2009-034 ("TINA Interest Calculations"): A proposed rule would amend the FAR to revise the clauses at FAR 52.214–27, 52.215–10 and 52.215–11 to require compound interest calculations be applied to Government overpayments as a result of defective cost or pricing data. 

FAR Case 2009-038: The FAR Council plans to hold tribal consultation and outreach meetings in October to discuss rulemaking associated with section 811 of the National Defense Authorization Act for FY 2010, Public Law 111-84, which addresses requirements for the justification and approval of sole-source contracts over $20 million under the 8(a) small business development program.

FAR Case 2009-041 (Sudan Waiver Process): A proposed rule would amend FAR section 25.702 (Prohibition on Contracting with Entities that Conduct Restricted Business Operations in Sudan) to add specific criteria an agency must address in a waiver request and a waiver consultation process regarding foreign policy aspects of the waiver request for consultations. This information will be provided, in a waiver request, to the President or his appointed designee for consideration of whether the prohibition on awarding a contract to a contractor that conducts business in Sudan should be waived.

FAR Case 2009-043 ("Time-and-Materials (T&M) and Labor-Hour (LH) Contracts for Commercial Items"): This proposed rule would amend the FAR to implement recommendations of GAO Report 09–579 ("Minimal Compliance with New Safeguards for Time-and-Materials Contracts for Commercial Services and Safeguards Have Not Been Applied to GSA Schedules Program").

Department of Defense FAR Supplement (DFARS)

Final Rules

DFARS Case 2008-D046: The DoD converted the interim rule issued July 29, 2009, to a final rule without any changes. The rule amends the DFARS 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 by waiving the applicability of the Buy American Act for some foreign supplies and construction materials and specify procurement procedures designed to ensure fairness.

DFARS Case 2006-D051: The DoD also converted the interim rule issued January 10, 2008, to final without any changes. The rule implements 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-D005: The DoD modified Part 217 of the DFARS by adopting as final, with several changes, the then-current interim rule (i) to address statutory provisions relating to interagency procurements on behalf of DoD, and (ii) to add new policy (a) to cover the requirements of Section 801(b) of the National Defense Authorization Act for Fiscal Year 2005 regarding the circumstances under which property and services in excess of the simplified acquisition threshold can be acquired through civilian agencies and (b) to expand existing DFARS definitions.

DFARS Case No. 2004-D010: The DoD adopted as final, with changes, an interim rule (i) amending the DFARS (Subpart 204.73) to address  contractor responsibilities to comply with existing Department of Commerce and Department of State export control laws and regulations and (ii) prescribing  a contract clause (DFARS 252.204-7008) to address those responsibilities.

DFARS Case No. 2006-D053: The DoD adopted as final, without change, an interim rule that requires the Milestone Decision Authority  for a major defense acquisition program to select the contract type for a development program that is consistent with the level of program risk in accordance with section 818 of the National Defense Authorization Act  for Fiscal Year 2007.

DFARS Case No. 2008-D002: The DoD adopted as final, with minor changes, an interim rule amending the DFARS to implement sections 886 and 892 of the National Defense Authorization Act for Fiscal Year 2008, which (i)  provide authority for the DoD to limit competition when acquiring products or services in support of operations in Iraq or Afghanistan and (ii) address competition requirements for the procurement of small arms for assistance to Iraq or Afghanistan.

DFARS Case 2008-D032 ("Service Contract Surveillance") is a final rule amending the DFARS to ensure that the requirement for a quality assurance surveillance plan is addressed for each contract with a dollar value above the simplified acquisition threshold, and that contracts for services have appropriate performance management or surveillance plans prepared for the work being performed under the contract.

DFARS Case 2009-D022, entitled "Finland--Public Interest Exception to the Buy American Act," is a final rule issued to reflect a determination by the Secretary of Defense that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of articles, materials, and supplies produced or manufactured in Finland.

DFARS Case  2007-D011, entitled "Letter Contract Definitization Schedule," is a final rule adopting, without changes, a proposed rule amending the DFARS to 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 contract actions.

DFARS Case 2007-D009, entitled "Ground and Flight Risk Clause," is a final rule amending the DFARS to revise and combine contract clauses addressing assumption of risk of loss under contracts that furnish aircraft to the Government so that the requirements will apply consistently to all contract types.

DFARS Case 2010-D016 (Continuation of Contracts--Deletion of Redundant Text): This final rule eliminates the now redundant text of DFARS 209.405–1,  which limits the placement of orders against contracts with contractors that have been debarred, suspended, or proposed for debarment, because, on December 11, 2003, the final rule published under FAR Case 2002–010 (68 FR 69250) incorporated these restrictions into the FAR.

DFARS Case 2009-D017 (Continuation of Essential Contractor Services): This final rule, adopts, with changes the interim rule amending the DFARS to add policy and a contract clause (DFARS 252.237–7023) requiring that contractors providing essential contractor services, as determined by the requiring activity, shall be prepared to continue such services during periods of crisis.

DFARS Case 2009-D029 (Safety of Facilities, Infrastructure, and Equipment for Military Operations) is an interim rule designed to implement section 807 of the National Defense Authorization Act of 2010, which requires that facilities, infrastructure, and equipment that are intended for use by military or civilian personnel of the DoD, in current or future military operations, should be (i) inspected for safety and habitability prior to use and (ii) brought into compliance with generally accepted standards for the safety and health of personnel to the maximum extent practicable consistent with the requirements of military operations and the best interests of DoD to minimize the safety and health risk posed to such personnel. Comments are due by December 28.

DFARS Case 2009-D040 (Trade Agreements--New Thresholds): This final rule adopts as final (without change)  the interim rule that amended the DFARS to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

DFARS Case 2009-D041 (Balance of Payments Program Exemption for Commercial Information Technology--Construction Material): This final rule amends the DFARS to implement the exemption from the Balance of Payments Program for construction material that is commercial information technology.

DFARS Case 2008-D024: DoD has adopting as final, with changes, an interim rule amending the DFARS to implement determinations made by the Under Secretary of Defense for Acquisition, Technology, and Logistics with regard to the acquisition of items containing para-aramid fibers and yarns manufactured in foreign countries that have entered into a reciprocal defense procurement memorandum of understanding with the United States.

DFARS Case 2009-D010: The DoD has adopted, as final, an interim rule amending the DFARS to add Taiwan as a designated country, due to the accession of Taiwan to membership in the WTO's Government Procurement Agreement.

DFARS Case 2008-D034 (Management of Unpriced Change Orders) is a final rule that adds new policy to address section 812 of the National Defense Authorization Act for Fiscal Year 2010 by  amending the DFARS to make requirements for DoD management and oversight of unpriced change orders consistent with those that apply to other undefinitized contract actions.

DFARS Case 2006-D057 (Excessive Pass-Through Charges) is a final rule to delete the interim DFARS language implementing section 852 of the National Defense Authorization Act for Fiscal Year 2007 (which requires that pass-through charges on contracts or subcontracts that are entered into for or on behalf of DoD are not excessive in relation to the cost of work performed by the relevant contractor or subcontractor) because the interim language was made obsolete with the publication of the FAR interim rule at 74 FR 52853 on October 14, 2009. Subsequently, a correction was issued because the original publication had incorrectly removed and reserved two C.F.R. sections.  

DFARS Case 2009-D024 (Reporting of Commercially Available Off-the-Shelf Items that Contain Specialty Metals--Deletion of Obsolete Clause) is a final rule amending the DFARS to delete the requirement for contractors to report commercially available off-the-shelf items that contain foreign specialty metals and are incorporated into noncommercial end items.

DFARS Case 2008-D011: DoD initially adopted as final (without changes) the interim rule that amended the DFARS to implement sections 805 and 815 of the National Defense Authorization Act for Fiscal Year 2008 by specifying when time-and-materials or labor-hour contracts may be used for the acquisition of commercial items, and revising the language to address the conditions under which major weapon systems or subsystems may be treated as commercial items. Subsequently, however, DoD  delayed confirmation of the interim rule  as a final rule to allow consideration of public comments that had been misplaced.

DFARS Case 2003-D028: DoD issued a final rule extensively updating and revising Part 247 ("Transportation") of the DFARS concerning  transportation issues under DoD contracts.

DFARS Case 2009-D035 ("Payment of Costs Prior to Definitization--Definition of Contract Action") adopts as final, without change, the interim rule amending Part 217.7401(a) of the DFARS by changing the definition of "contract action" to include task orders and delivery orders.

DFARS Case 2008-D039 ("Government Rights in Design of DoD Vessels") adopts as final, without change, the interim rule amending Parts 227 and 252 of the DFARS to implement section 825 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 and the Vessel Hull Design Protection Amendments of 2008, which clarifies the Government’s rights in technical data in the designs of a DoD vessel, boat, craft, or components thereof.

DFARS Case 2010-D015: A new DFARS clause 252.203-7003 (entitled "Agency Office of the Inspector General") has been added, which reads as follows: "The agency office of the Inspector General referenced in paragraphs (c) and (d) of FAR clause 52.203–13, Contractor Code of Business Ethics and Conduct, is the DoD Office of the Inspector General at the following address: DoD Office of the Inspector General, Investigative Policy and Oversight, 400 Army Navy Drive, Suite 1037, Arlington, VA 22202–4704, Toll Free Telephone: 866–429–8011."

DFARS Case 2008-D047: This final rule establishes a standard DoD method of specifying Government-assigned serial numbers contractually and requires (i) the contractor (a) to associate these serial numbers with the Unique Item Identifier (UII) assigned by the contractor and (b) to register them in the DoD Item Unique Identification (IUID) Registry along with the UII and (ii) the Government and the contractor to reach an agreement prior to use of the serial numbers in constructing the end item UII.

DFARS Case 2008-D040: This final rule adopts, with changes, the prior interim rule that implements section 884 of the National Defense Authorization Act for Fiscal Year 2009, which requires DoD to ensure that, to the maximum extent practicable, in all carriage contracts in which a fuel-related adjustment is provided for, any fuel-related adjustment is passed through to the person who bears the cost of the fuel to which the adjustment relates.

DFARS Case 2008-D027 (Cost and Software Data Reporting System) is a final rule to amend the DFARS to address DoD Cost and Software Data Reporting system requirements for Major Defense Acquisition Programs and Major Automated Information Systems. 

DFARS Case 2009-D034 (Contract Authority for Advanced Component Development or Prototype Units) is a final rule (adopting the prior interim rule with only a minor change) amending the DFARS to implement section 819 of the National Defense Authorization Act for Fiscal Year 2010, which places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations. 

DFARS Case 2010-D025 (Services of Senior Mentors) implements previously issued DoD memoranda on Senior Mentors (who are retired DoD personnel that provide training to active DoD personnel) and has no impact on the general public. 

DFARS Case 2009-D025 (Contractor Insurance/Pension Review) is a final rule adopting without any changes the proposed rule to remove and relocate the requirements for conducting a Contractor Insurance/Pension Review from Procedures, Guidance, and Information (PGI) to the DFARS.

DFARS Case 2006-D029 (Restriction on Ball and Roller Bearings) is a final rule amending the DFARS to implement DoD annual appropriations act requirements and to require that each ball or roller bearing be manufactured in the United States, its outlying areas, or Canada, and that the cost of the bearing components manufactured in the United States, its outlying areas, or Canada, exceed 50 percent of the total cost of the bearing components of that ball or roller bearing.

DFARS Case 2010-D004 (Restrictions on the Use of Mandatory Arbitration Agreements) is a final rule (adopting a prior interim rule with changes as a results of comments received from the public ) which prohibits the use of funds appropriated or otherwise made available by the DoD Appropriations Act for Fiscal Year 2010 for any contract for noncommercial items (including task or delivery orders and bilateral modifications adding new work) in excess of $1 million, if the contractor restricts its employees to arbitration for claims under title VII of the Civil Rights Act of 1964, or torts related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

DFARS Case 2009-D015 (Organizational Conflicts of Interest in Major Defense Acquisition Programs) is a final rule amending the DFARS to implement section 207 of the Weapon Systems Acquisition Reform Act of 2009, which addresses organizational conflicts of interest in major defense acquisition programs.

DFARS Case 2009-D012 (Foreign Participation in Acquisitions in Support of Operations in Afghanistan) is a final rule amending the DFARS (i) to waive section 302(a) of the Trade Agreements Act of 1979, as amended, which prohibits acquisitions of products or services from nondesignated countries, in order to allow acquisition from the nine South Caucasus/Central and South Asian (SC/CASA) states; and (ii) to determine the inapplicability of the Balance of Payments Program evaluation factor to offers of products (other than arms, ammunition, or war materials) from the SC/CASA states to support operations in Afghanistan.

 

The DoD published the updated charter of the ASBCA as Appendix A, Part 1 of the DFARS.

Interim Rules

DFARS Case No. 2008-D023: The DoD promulgated an interim rule adding several requirements to the DFARS related to the authority and funding requirements for multiyear contracts for major weapons systems, in order to implement section 811 of the National Defense Authorization Act for Fiscal Year 2008 and section 8008 of the Fiscal Year 2007 Defense Appropriations Act, and the same language in subsequent DoD appropriations acts. Subsequently, the DoD issued a final rule with only minor editorial corrections to the interim rule.

DFARS Case 2009-D017: The DoD issued an interim rule  to add policy and a contract clause requiring that contractors providing essential contractor services must be prepared to continue such services during periods of crisis.

DFARS Case 2009-D035: The DoD issued another interim rule to implement section 812 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84, enacted October 28, 2009). Section 812 (entitled "Revision of Defense Supplement Relating to Payment of Costs Prior to Definitization") makes the limitations on payment of costs prior to definitization of unpriced change orders applicable to all categories of undefinitized contractual actions, "including undefinitized task orders and delivery orders"  and already has been partially implemented in DFARS Case 2008–D034. The current case implements the balance of the section by specifically including the category of "task orders and delivery orders" in the definition of "contract action" at DFARS 217.7401.

DFARS Case 2009-D014: The DoD published an interim rule amending the DFARS to implement the provisions of Section 202 of the Weapons Systems Acquisition Reform Act of 2009, entitled "Acquisition Strategies to Ensure Competition throughout the Lifecycle of Major Defense Acquisition Programs," which:  (i)  requires that the acquisition strategy for each Major Defense Acquisition Program (MDAP) include measures to ensure competition at both the prime contract and subcontract level of the MDAP throughout its life cycle as a means to improve contractor performance and adequate documentation of the rationale for selection of the subcontractor at any tier; and (ii) requires specified actions to ensure fair and objective ‘‘make-buy’’ decisions by prime contractors on MDAPs and (whenever a decision regarding the source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system) actions to ensure that the contract is awarded on a competitive basis with full consideration of all sources. Subsequently, the DoD adopted the interim rule as final with no changes.

DFARS Case 2010-D004: The DoD has issued an interim rule to implement Section 8116 of the FY 2010 DoD Appropriations Act (Pub. L. 111–118), which  prohibits the use of funds appropriated or otherwise made available by the Act for any contract (including task or delivery orders and bilateral modifications adding new work) in excess of $1 million, if the contractor restricts its employees to arbitration for claims under title VII of the Civil Rights Act of 1964, or torts related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. The interim rule does not apply to the acquisition of commercial items, including commercially available off-the-shelf items.

DFARS Case 2009-D040, entitled "Trade Agreements Thresholds," is an interim rule to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

DFARS Case 2009-D034, entitled "Contract Authority for Advanced Component Development or Prototype Units," is an interim rule to implement section 819 of the National Defense Authorization Act for Fiscal Year 2010, which places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations and, in certain circumstances, limits the dollar value, period of performance, and time for exercise of such contract line items or contract options.

DFARS Case 2009-D027, entitled "Limitations on Procurements with Non-Defense Agencies," is an interim rule to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010 authorizing the placing of contracts for property and services in excess of the simplified acquisition threshold by certain non-DoD agencies for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency.

DFARS Case 2009-D020 is an interim rule amending the DFARS to bring DoD into compliance with the OMB's implementation of the Prompt Payment Act by exempting military contingencies, and certain payments related to emergencies and the release or threatened release of hazardous substances. Comments are due by September 13.

DFARS Case 2009-D036 is an interim rule amending the DFARS  to implement section 814 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84), which requires agency heads to notify the congressional defense committees within 30 days after making any determination to award a task or delivery order exceeding $100 million to a single source. In addition, if the task or delivery order concerns DOD intelligence activities, the agency head also is required to provide notification within 30 days of the determination to the Permanent Select Committee on Intelligence of the House of Representatives if the order relates to tactical intelligence and intelligence related activities, and to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives if the order relates to intelligence and intelligence-related activities other than those activities previously mentioned.

DFARS Case 2009-D033 is an interim rule amending the DFARS to implement section 820 of the National Defense Authorization Act for Fiscal Year 2010, entitled ‘‘Publication of Notification of Bundling of Contracts of the Department of Defense,’’ which requires DoD contracting officers (i) to publish a notification consistent with the requirements of FAR 10.001(c)(2) on FedBizOpps.gov, or any successor site, at least 30 days prior to the release of a solicitation for a bundled acquisition and (ii) if the DoD agency has determined that measurably substantial benefits are expected to be derived as a result of bundling, to include within the notification a brief description of those benefits. The acquisitions covered by section 820 are defined at 820(b) as those that are funded entirely by DoD funds and covered by FAR 7.107.

DFARS Case 2009-D039 is an interim rule amending the DFARS to implement section 823 of the National Defense Authorization Act for Fiscal Year 2010, which requires contracting officers to consider reducing or denying an award fee if actions by a contractor or subcontractor jeopardize the health or safety of government personnel. Comments are due by January 11, 2011.

DFARS Case 2008-D006 is an interim rule implementing section 828 of the National Defense Authorization Act for Fiscal Year 2008, which authorizes the Secretary of Defense to enter into a contract for a period not to exceed 10 years for the purchase of electricity from sources of renewable energy.

DFARS Case 2010-D010: DoD issued an interim rule implementing revisions to DoD Directive-Type Memorandum 09–019, entitled "Policy Guidance for Foreign Ownership, Control, or Influence (FOCI)," which revises the description of communications security material that is "proscribed information."

DFARS Case 2009-D028 ("Guidance on Personal Services") is an interim rule that revises DFARS Parts 211 and 237 to enable further implementation of section 831 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires DoD to develop guidance related to personal services contracts.

DFARS Case 2009-D002 (the companion case to FAR Case 2005-040) is an interim rule amending DFARS  219.708 and 252.219 to provide DoD-specific procedures and policies related to DoD’s implementation of the Electronic Subcontracting Reporting System (eSRS).

DFARS Case 2007-D002 is an interim rule amending the DFARS to implement section 3504 of the National Defense Authorization Act for Fiscal Year 2009, which addresses requirements (e.g., holding either a transportation security card or a Merchant Mariner's Document and/or passing a background check) that apply to "riding gang members" (i.e. foreign nationals who perform work while the ship is underway beyond standard vessel maintenance and repair)  and other  DoD-exempted individuals performing work on U.S. flag vessels under DoD contracts for transportation services.

DFARS Case 2010-D027 (Prohibition on Interrogation of Detainees by Contractor Personnel) is an interim rule to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84), which prohibits contractor personnel from interrogating detainees under the control of the Department of Defense, but also allows the Secretary of Defense to waive the prohibition for a limited period of time, if determined necessary to the national security interests of the United States.

DFARS Case 2009-D011 (Annual Representations and Certifications) is a proposed rule to amend the DFARS to conform to FAR requirements concerning Annual Reps and Certs. Comments are due by January 24, 2011.

DFARS Case 2010-D013 (Discussions Prior to contract Award) is a proposed rule (recommended by the DoD Source Selection Joint Analysis Team) to strongly encourage discussions prior to award for source selections of procurements estimated at $100 million or more. Comments are due by January 24. 

DFARS Case 2009-D038 (Business Systems--Definition and Administration) is an lengthy, extensive set of proposed changes to the DFARS designed to improve the effectiveness of DoD oversight of contractor business systems, and, after receiving 370 comments on the original proposed rules, the DoD has published revised proposed rules. Comments on the latest proposals are due by January 3, 2011.

DFARS Case 2009-D008 (Government Property) is a proposed rule to revise DFARS part 245, Government Property, to reflect recent revisions to FAR part 45, Government Property.

Proposed Rules

DFARS Case 2009-D025: DoD proposed to relocate the requirements for conducting a Contractor Insurance/Pension Review from Procedures, Guidance, and Information to the DFARS.

DFARS Case 2009-D041, entitled "Balance of Payments Program Exemption for Commercial Information Technology," is a proposed rule that would amend the DFARS to implement the exemption from the Balance of Payments Program for construction material that is commercial information technology.

DFARS Case 2008-D047 ("Government-Assigned Serial Number Marking") is a proposed rule which would require contractors to apply government-assigned serial numbers in human readable format on major end items, when required by law, regulation, or military operational necessity.

DFARS Case 2008-D049 ("Reporting of Government Property Lost, Stolen, Damaged, or Destroyed") is a proposed rule to amend the DFARS to require contractors to report loss, theft, damage, and destruction government property to the DCMA "eTools" application.

DFARS Case 2006-D021 ("Award Fee Contracts") is a proposed rule to amend the DFARS to address award-fee contracts, including eliminating the use of provisional award-fee payments.

DFARS Case 2009-D012: The DoD proposed to amend the DFARS to implement (i) the July 9, 2009 waiver (issued by the Deputy Secretary of Defense) of the section 302(a) of the Trade Agreements Act of 1979, as amended (which generally prohibits acquisitions of products or services from nondesignated countries) in order to allow acquisition from the nine South Caucasus/Central and South Asian (SC/CASA) states; and (ii) the Deputy Secretary's determination of inapplicability of the Balance of Payments Program evaluation factor to offers of products (other than arms, ammunition, or war materials) from those SC/CASA states to support operations in Afghanistan. Subsequently, on December 29, this rule became final. 

DFARS Case No. 2009-D038 (Business Systems--Definition and Administration): DoD proposed to amend the DFARS to improve the effectiveness of DoD oversight of contractor business systems by (i) defining contractor business systems as accounting systems, estimating systems, purchasing systems, earned value management systems (EVMS), material management and accounting systems (MMAS), and property management systems, and (ii) implementing a business systems clause which includes payment withholding that allows administrative contracting officers to withhold a percentage of payments, under certain conditions, when a contractor’s business system contains deficiencies, including (a) interim payments under cost reimbursement contracts, incentive type contracts, time-and-materials contracts, or labor-hour contracts; (b) progress payments; or (c) performance-based payments.

DFARS Case 2009-D003: DoD proposed (i) to amend the DFARS to implement Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (which provides for adjustment every 5 years of statutory acquisition-related thresholds) and (ii) to review nonstatutory acquisition thresholds. 

DFARS Case No. 2009-D004: DoD proposed to amend the DFARS to address requirements for minimizing the use of hexavalent chromium in defense weapon systems, subsystems, components, and other items by prohibiting the delivery of items containing hexavalent chromium under DoD contracts unless an exception applies.

DFARS Case No. 2009-D015: DoD proposed to amend the DFARS  to implement section 207 of the Weapons Systems Acquisition Reform Act of 2009 (Pub. L. 111–23), which requires DoD to revise the DFARS to provide uniform guidance and tighten existing requirements for organizational conflicts of interest (OCIs) by contractors in major defense acquisition programs. Subsequently, on December 29, the final rule was published.

DFARS Case 2008-D042 ("Preservation of Tooling for Major Defense Acquisition Programs") would amend the DFARS to implement section 815 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires acquisition plans for major weapons systems to include a plan for the preservation and storage of special tooling associated with the production of hardware for major defense acquisition programs through the end of the service life of the related weapons system.

DFARS Case 2008-D050 ("Marking of Government-Furnished Property") would require contractors to tag, label, or mark items of government-furnished property identified in the contract when the government-furnished material and government-furnished property are subject to serialized item management.

DFARS Case 2007-D003 ("Presumption of Development at Private Expense") would amend the DFARS to implement section 802(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2007 and section 815(a)(2) of the NDAA for FY 2008 by establishing special requirements and procedures related to the validation of a contractor’s or subcontractor’s asserted restrictions on technical data and computer software.

DFARS Case 2008-D027 ("Cost and Software Data Reporting System") would add a new subpart 234.71 to the DFARS to set forth DoD Cost and Software Data Reporting system requirements for major defense acquisition programs and major automated information system programs.

DFARS Case 2006-D029 ("Restriction on Ball and Roller Bearings") would amend the DFARS to revise the domestic source restriction on acquisition of ball and roller bearings from the current rule (which requires that the bearings and the main bearing components be manufactured in the U.S. or Canada and is based on 10 U.S.C. 2534(a)(5), which expired on October 1, 2005) to a rule that interprets the annual defense appropriations act domestic source restriction on the acquisition of these items in a manner similar to the domestic source restriction of the Buy American Act.

DFARS Case 2009-D018 ("Warranty Tracking of Serialized Items") is a proposed rule to amend the DFARS to implement a policy memorandum of the Undersecretary of Defense for Acquisition, Technology, and Logistics dated February 6, 2007, that required definition of the requirements to track warranties for items subject to Item Unique Identification in the Item Unique Identification registry as an aid to enforcement of warranties, which is essential to the effectiveness of DoD’s material readiness. 

DFARS Case 2009-D023 is a proposed rule to amend DFARS Appendix F (Material Inspection and Receiving Report) to incorporate procedures for using the electronic Wide Area Workflow Receiving Report required for use in most contracts in lieu of the DD Form 250, Material Inspection and Receiving Report.

DFARS Case 2010-D001 ("Patents, Data, and Copyrights") is a proposed rule to update text on patents, data, and copyrights in order to (i) remove text and clauses that are obsolete or unnecessary; (ii) relocate and integrate the coverage for computer software and computer software documentation with the coverage for technical data to eliminate redundant coverage for these subjects; (iii) eliminate or combine the clauses associated with technical data and computer software, consistent with the revised and streamlined regulatory coverage; (iv) relocate, reorganize, and clarify the coverage for rights in works; and (iv)  relocate to the DFARS companion resource, Procedures, Guidance, and Information (PGI), text that is not regulatory in nature and does not impact the public.

DFARS Case 2009-D037: DoD proposed to amend the DFARS to to make electronic distribution procedures a routine part of order issuance by adding a new "Ordering" clause (and associated prescription) to establish a standard method for issuing orders via electronic means.

DoD proposed to update current policies and procedures to reflect the DoD FOIA Program as prescribed by Executive Order 13392 in order to ensure appropriate agency disclosure of information and offer consistency with the goals of 5 U.S.C. § 552.

DFARS Case 2009-D011 (Annual Representations and Certifications) is a proposed rule to amend the DFARS to conform to FAR requirements concerning Annual Reps and Certs. Comments are due by January 24, 2011.

DFARS Case 2010-D013 (Discussions Prior to contract Award): A a proposed rule (recommended by the DoD Source Selection Joint Analysis Team) would strongly encourage discussions prior to award for source selections of procurements estimated at $100 million or more. Comments are due by January 24. 

DFARS Case 2010-D023 (Definition of Sexual Assault): A proposed would would amend the DFARS to ensure that contractor employees who are authorized to accompany U.S. Armed Forces deployed outside the United States are aware (i) of the DoD definition of ‘‘sexual assault’’ as defined in DoD Directive 6495.01, Sexual Assault Prevention and Response (SAPR) Program and (ii) that such offenses are covered under the Uniform Code of Military Justice. 

DFARS Case 2009-D043 (Reporting of Government-Furnished Property): A proposed rule would amend the DFARS (i) to revise and expand reporting requirements for government-furnished property to include items uniquely and nonuniquely identified and (ii) to clarify policy for contractor access to government supply sources. 

 

Other Agencies 

Army

The Army Corps of Engineers proposed an interim "Continuing Contracts" funding clause for use only on specially designated civil works projects, which is designed (i) to provide options for funding contracts spanning more than one fiscal year after the enactment of statutory restrictions to the Corps’ continuing contract authority and (ii) to allow Congress more oversight over continuing contracts and better control over the rate at which funds are spent on projects so that contracts will obligate funds in close alignment with prerogatives reflected in budget documents and appropriations acts.

Bureau of Industry and Security

The Bureau of Industry and Security (BIS) issued corrections to a previously published final rule affecting Export Control Classification Numbers 1A004 and 5A001. T

The BIS also published a final rule to amend the Export Administration Regulations (EAR) to implement the understandings reached at the September 2009 plenary meeting of the Australia Group (AG) and to implement a decision recommended at the 2009 AG Plenary, specifically (i) to add  technical notes to the AG ‘‘Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software’’ in order to  clarify (a) the term "alloys,"’ as used in reference to the types of materials from which such equipment is made and (b) "nominal size,"’ as used in reference to the valves described on this AG control list and (ii) to amend the EAR to reflect the AG decision  to remove "white pox" virus from the AG List of Biological Agents for Export Control.

The BIS amended the EAR to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the November 2009 Plenary in Rio de Janeiro, Brazil, including clarifying the meaning of the term "production facilities."

The BIS made extensive changes to the EAR as a result of its comprehensive review of the CCL.

The BIS issued a final rule that (i) updates and clarifies export and reexport license requirements on striking weapons, restraint devices, shotguns and parts, optical sighting devices, and electric shock devices and (ii) adds equipment designed for the execution of humans to the CCL.

 The BIS revised the CCL to implement changes made to the Wassenaar Arrangement’s List of Dual Use Goods and Technologies (Wassenaar List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies at the December 2009 WA Plenary Meeting (the Plenary). Specifically, the new rule revises the EAR by amending certain entries that are controlled for national security reasons in Categories 1, 2, 3, 4, 5 Part I (telecommunications), 6, 7, and 9, revising reporting requirements, and adding, removing and amending EAR Definitions. The changes agreed to at the Plenary that pertain to Export Control Classification Numbers (ECCNs) 5A002, 5D002, 6A002, 6A003, 8A002 and all related ECCNs will be implemented in a separate rule. Moreover, the changes agreed to at the Plenary that pertain to raising the Adjusted Peak Performance (APP) for digital computers in ECCN 4A003 will be implemented in another  separate rule when the President’s report for High Performance Computers has been sent to Congress that sets forth the new APP in accordance with the National Defense Authorization Act for FY1998.

The BIS amended the EAR to implement changes to the Entity List on the basis of the annual review of that list conducted by the End-User Review Committee. Specifically, the rule removed five entities from the Entity List under Russia and made twenty-one modifications to the Entity List (consisting of modifications to eighteen Chinese entries and three Russian entries currently on the Entity List) by adding additional addresses, aliases and/or clarifying the names for these twenty-one entities.

The BIS proposed various changes to the DPAS regulations. The BIS also proposed to amend the EAR by adding ECCN 6A981 to the CCL to control passive infrasound sensors because of their military and commercial utility. Items under this new ECCN will be controlled for Regional Stability (RS) and Anti-Terrorism (AT) reasons. In addition, BIS proposes to control technology and software for the development, production, or use of these items for RS and AT reasons under revised ECCNs 6D991 and 6E991, respectively.

The BIS proposed an extensive set of changes to the CCL by adding a new exception (Strategic Trade Authorization or "STA") to the EAR, which would allow exports, reexports and transfers (in-country) of specified items to destinations that pose little risk of unauthorized use of those items so long as notification, destination control statement and consignee statement requirements were met. 

The BIS also requested comments concerning how the CCL could be more clear, positive, and tiered, including comments on the degree to which a controlled item provides the United States with a critical, substantial, or significant military or intelligence advantage and the availability of the item outside certain groups of countries.

 Commerce Department

The Commerce Department updated the entire Commerce Acquisition Regulation supplement to bring it in line with the FAR.

Defense Department

Effective December 23, DoD is waiving the requirements of 10 U.S.C. 2354 for the following defense items produced in the United Kingdom (which will permit procurement from sources in the United Kingdom): (i) air circuit breakers; (ii) welded shipboard anchor and mooring chain with a diameter of four inches or less; (iii) gyrocompasses; (iv) electronic navigation chart systems; (v) steering controls; (vi) pumps; (vii) propulsion and machinery control systems; and (viii) totally enclosed lifeboats.

Civilian Personnel Per Diem Bulletin 266 includes revised non-foreign overseas per diem rates for travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. Civilian Personnel Per Diem Bulletin 267,  270, and 272 list further revisions. 

In accordance with 10 U.S.C. 2330a as amended by section 807 of the National Defense Authorization Act for Fiscal Year 2008,  the Defense Threat Reduction Agency will make available to the public (at this website) the first inventory of activities performed pursuant to contracts for services .

DoD  proposed revisions to the FAR 52.219-7 class deviation regarding partial small business set-asides for DLA DESC bulk fuel solicitations in order to, inter alia, clarify that a small business will not be awarded a set-aside portion at a price higher than its offer price under the non-set-aside portion.

DoD issued an interim final rule amending 32 C.F.R. Part 241 to implement section 1110 of the National Defense Authorization Act for Fiscal Year 2010, which authorizes DoD to establish a Pilot Program for the Temporary Exchange of Information Technology (IT) Personnel under which there may be temporary assignments of DoD IT employees to private sector organizations and vice versa. 

Department of Education

The Department of Education proposed to reissue its acquisition regulation (the "EDAR") to update it to comply with current FAR and Education Department policies and requirements.

Department of Transportation

The DOT proposed to improve administration of the Disadvantaged Business Enterprise Program by increasing accountability for recipients with respect to good faith efforts to meet overall goals, modifying and updating certification requirements, adjusting the personal net worth threshold for inflation, providing for expedited interstate certification, and adding provisions to foster small business participation and improve post-award oversight.

Energy Department

The DOE amended the DOE Acquisition Regulation (DEAR) Subchapters E (General Contracting Requirements), F (Special Categories of Contracting), and G (Contract Management), to (i) conform to the FAR, (ii) remove out-of-date coverage, and  (iii) update references.

The DOE amended the DEAR to implement E. O. 13514, (Federal Leadership in Environmental, Energy and Economic Performance) to utilize agency acquisitions to foster markets for sustainable technologies and energy efficient and environmentally sustainable materials, products, and services. 

The DOE amended Subchapter I of the DEAR at 48 C.F.R. Part 970 (concerning Management and Operating Contracts) to conform it to the FAR. Effective December 10, the DOE is amending sections of the DEAR related to socioeconomic programs to conform them to the FAR. to remove outdated coverage, and to update references.

The DOE proposed to amend the DEAR to (i) revise the applicability and the policies and procedures involving the access to and ownership of records; (ii) to amend various contract clauses for consistent inclusion in all applicable contracts (not just M&O contracts) based on the type of work being performed, to ensure preservation and Government ownership of records; and (iii) to address inconsistencies relating to DOE contractor and subcontractor efforts in managing records in accordance with DOE retention requirements.

The DOE also proposed to amend the DEAR on Management and Operating Contracts to make changes to conform to the FAR, remove out-of-date coverage, and update references.

Federal Accounting Standards Advisory Board

                    Federal Travel Regulation

For official travel performed on or after January 1, 2010, the GSA's FTR per-mile reimbursement rates for official travel on privately-owned vehicles are as follows: privately-owned automobiles ($.50); motorcycles ($.47); airplanes ($1.29).

General Services Administration (GSA)

GSAR Case 2008-G503: The GSA revised Part 505 of the GSAR, entitled "Publicizing Contract Actions."

GSAR Case 2008-G504: The GSA revised Part 512 of the GSAR regarding the "Acquisition of Commercial Items."

GSAR Case 2006-G504: The GSA revised Part 516 ("Types of Contracts") of the GSAR to clarify the requirements for use of each type of contract.

GSAR Case 2008-G511: The GSA amended GSAR Part 541 (Acquisition of Utility Services) by adding two clauses specific to utility services: the "Availability of Funds" clause, which replaces the corresponding FAR clause, and the "Disputes" clause, which supplements the FAR clause.

FTR Bulletin 10-02: The GSA published a revised Standard Mileage Rate for moves within the continental United States, reducing the prior rate of 24 cents per mile to 16.5 cents. The revised rate is effective for travel during calendar year 2010. The GSA also published Per Diem Bulletin 11-01 updating per diem travels rates for CONUS for fiscal 2011.

FTR Bulletin 11-02: The GSA updated the Fly America Act information on the GSA web site with recent changes to the US–EU Open Skies agreement.

FTR Bulletin 11-03 established the privately-owned vehicle mileage reimbursement rates for calendar year 2011. 

FTR Case 2010-302: The GSA amended the FTR by (i) adding new terms and definitions for "official travel" and "transit system"; (ii) clarifying reimbursement for transportation at an official station while en route to and/or from an authorized TDY location; (iii) clarifying reimbursement for transportation expenses within the surrounding area of a TDY location and provisions for payment under the FTR; and (iv) specifying when the government contractor-issued travel charge card must be used while on official travel.

FTR Case 2010-303: This interim rule amended the FTR  by (i) adding terms and definitions for "Dependent," "Domestic partner," and "Domestic partnership," and (ii) revising the definition of "Immediate family" to include "Domestic partner" and children, dependent parents, and dependent brothers and sisters of the Domestic partner as named members of the employee’s household, and (iii) adding  references to domestic partners and committed relationships, where applicable, in the FTR.

FTR Case 2010-305: This final rule amended the FTR by (i) updating statutory references in a number of sections, (ii) providing additional guidance for determining distance measurements when traveling by privately owned aircraft, (iii) clarifying provisions regarding the use of personally owned vehicles for official travel, (iv) updating the addresses to which per diem review requests should be sent, and (v) changing the method by which agencies must report the use of government aircraft to carry senior federal officials and non-federal travelers.

FTR Case 2010-306: The GSA revised the FTR by (i) removing section 301–50.8, which contains language regarding limitations on travel arrangements for common carriers, commercial lodging, and car rental usage; (ii) revising (a) section 301–10.105 regarding the basic requirements for using common carrier transportation and (b) section 301–10.450 to provide guidance to travelers regarding renting vehicles under the Defense Travel Management Office’s (DTMO) U.S. Government Car Rental Agreement; (iii) revising section 301–11.11 to provide guidance to travelers who choose to obtain commercial lodging under a government lodging agreement; and (iv) updating references in section 301–73.106 and Appendix D to Chapter 301 to change "Surface Deployment Distribution Command" (SDDC) to "Defense Travel Management Office" (DTMO).

FMR Case 2010-102-2: The GSA amended the Federal Management Regulation (FMR) by updating its coverage on transportation management.

The GSA issued a proposed rule revising Part 102-38 of the Federal Management Regulation (FMR) by amending the provisions for the sale of personal property through Federal Asset Sales (FAS) Sales Centers.

Government Accountability Office (GAO)

The GAO issued the March 10, 2010, update of the third edition of Principles of Federal Appropriations Law.

Homeland Security

The DHS adopted the amendments to its Homeland Security Acquisition Regulation that were issued under an interim rule on August 17, 2009, as final, without change, to implement a statute limiting the acquisition of products containing textiles from sources outside the United States.

HSAR Case 2009-002 is a lengthy set of proposed changes to DHS' acquisition regulation (the "HSAR"), 48 C.F.R. Parts 3001-3053, to align existing content with the FAR; to implement Section 695 of the Post-Katrina Emergency Management Reform Act of 2006; to clarify agency acquisition regulations; to provide editorial corrections; and to comply with the statutory change restricting the length of certain noncompetitive contracts entered into by DHS to facilitate the response to or recovery from a natural disaster, act of terrorism, or other manmade disaster. 

HSAR Case 2009-003 ("Lead System Integrators") is an interim rule amending the HSAR to implement section 6405 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, which restricts contractors from acting as lead system integrators in the acquisition of DHS major systems if they have direct financial interests in the development or construction of any individual system or element of any system of systems they integrate (subject to stated exceptions).

HSAR Case 2009-005, entitled "Limitations on Subcontracting in Emergency Acquisitions," is a proposed rule to implement a statutory requirement limiting the use of subcontractors on cost-reimbursement type contracts entered into by the Department to facilitate the response to or recovery from a natural disaster or act of terrorism or other man-made disaster.

Housing and Urban Development

The Federal Housing Finance Agency issued final rules implementing the EAJA for eligible prevailing parties in adjudications against it.

Interior

The Department of the Interior issued an interim final rule making various administrative changes to its acquisition regulation to harmonize it with the FAR and to make other corrections. Subsequently, the agency adopted the rule as final.

Effective July 6, the Bureau of Indian Affairs in the Interior Department and the Indian Health Service in HHS made belated technical amendments to their joint regulations governing contracts and annual funding agreements under the Indian Self-Determination and Education Assistance Act to reflect, among other things, the dissolution of the Interior Board of Contract Appeals in favor of the CBCA.

Labor Department

The DOL issued a proposed rule which, in its final form, will implement Executive Order 13495 regarding the nondisplacement of qualified workers on service contracts.

The Bureau of International Labor Affairs updated the list required by Executive Order No. 13126, entitled "Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor,"  in accordance with the "Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor," to set forth the latest list of products, by country of origin, which the Departments of Labor, State and Homeland Security have a reasonable basis to believe might have been mined, produced, or manufactured by forced or indentured child labor. Federal contractors who supply products on this list are required to certify, among other things, that they have made a good faith effort to determine whether forced or indentured child labor was used to produce the item.

National Archives and Records Administration (NARA)

The Information Security Oversight Office amended National Industrial Security Program Directive No. 1 to provide guidance to agencies concerning the release of certain classified information (specifically, "proscribed information") to contractors that are owned or under the control of a foreign interest and have had the foreign ownership or control mitigated by a Special Security Agreement.

The same office published a Directive as a final rule implementing E.O. 13526 regarding classifying, safeguarding, and declassifying national security information. 

Navy Department

The Deputy Assistant Secretary of the Navy, Acquisition and Logistics Management,  solicited comments that the Department of the Navy may use in drafting a policy that will establish a Preferred Supplier Program (PSP) under which contractors that have demonstrated exemplary performance, at the corporate level, in the areas of cost, schedule, performance, quality, and business relations would be granted Preferred Supplier Status and would, thereby, receive more favorable contract terms and conditions in DON contracts. However, the Navy subsequently withdrew this notice regarding the PSP. 

Office of Management and Budget (OMB)

OMB solicited public comments on the advisability of adopting the Economic Classification Policy Committee’s recommendations for NAICS updates for 2012.

Office of Federal Procurement Policy (OFPP)

In response to the March 4, 2009 Presidential Memorandum on Government Contracting, the OMB's OFPP issued a proposed policy letter clarify the circumstances when work must be reserved for performance by federal government employees consistent with section 321 of the National Defense Authorization Act for FY 2009, which requires OMB to (i) create a single definition for the term "inherently governmental function" that addresses any deficiencies in the existing definitions and reasonably applies to all agencies; (ii) establish criteria to be used by agencies to identify "critical" functions and positions that should only be performed by federal employees; and (iii) provide guidance to improve internal agency management of functions that are inherently governmental or critical.

The OFPP's  CAS Board proposed to harmonize CAS 412 and 413 with the Pension Protection Act (PPA) of 2006 (which amended the minimum funding requirements for defined benefit pension plans and required the Board to harmonize with PPA the CAS applicable to the government reimbursement of the contractor’s pension costs) by, inter alia, recognizing a "minimum actuarial liability" consistent with the PPA minimum required contribution, which should lessen the difference between the amount of pension cost reimbursable to the contractor in accordance with CAS and the amount of pension contribution required to be made by the contractor as the plan sponsor by PPA.

The OFPP also proposed to amend 48 C.F.R. Part 9903 to eliminate an exemption from the Cost Accounting Standards for contracts executed and performed entirely outside the United States, its territories, and possessions. Comments are due by December 20.

Small Business Administration (SBA)

The SBA issued a final rule to permanently adopt the current temporary size standard implemented under the American Recovery and Reinvestment Act that is now in effect through September 30, 2010 for the Surety Bond Guarantee Program, which provides that a business concern is small if such concern, combined with its affiliates, does not exceed the size standard for the NAICS code that corresponds to the primary industry of the business concern combined with its affiliates.

As part of a comprehensive review that will eventually cover all its size standard categories, the SBA published final rules revising (generally increasing, often significantly) its size standards in multiple categories within each of three NAICS sector groups: 44-45 (Retail Trade); 72 (Accommodations and Food Services); and  81 (Other Services).

The SBA made extensive amendments to 13 C.F.R. Part 127, currently entitled ‘‘Women-Owned Small Business Federal Contract Assistance Procedures,’’ (as well as other SBA regulations affected by these changes) in order to implement procedures authorized by the Small Business Act (Pub. L. 85–536, as amended) to help ensure a level playing field on which Women-Owned Small Businesses can compete for federal contracting opportunities. As revised, Part 127 will be entitled "Women-Owned Small Business Federal Contract Program." The SBA also announced the availability of a compliance guide for the Women-Owned Small Business (WOSB) Program, which sets forth in plain language the requirements for participation in the WOSB program and is intended to help small businesses understand the regulation and how it affects them. The guide is available here.

The SBA granted a class waiver of the nonmanufacturer rule for Configured Tape Library Storage Equipment, Product Service Code (PSC) 7025 Automated Data Processing (ADP) Input/Output and Storage Devices, PSC 7035 ADP Support Equipment, and PSC 7045 ADP Supplies, under the North American Industry Classification System (NAICS) code 334112 (Computer Storage Device Manufacturing).

The SBA granted a class waiver of the Nonmanufacturer Rule for Not-Portable, Liquid Chromatography Mass Spectrometry (CS–MS) Systems, High Performance Liquid Chromatography (HPLC) Systems, Gas Chromatography Mass Spectrometry (GC–MS) Systems, and, Inductively Coupled Plasma Mass Spectrometry (ICP–MS) Systems under Product Service Code (PSC) 6640 (Laboratory Equipment and Supplies), under North American Industry Classification System (NAICS) code 334516 (Analytical Laboratory Instrument Manufacturing).

The SBA granted a class waiver of the Nonmanufacturer Rule for Woven and Knit Impregnated with Flat Dipped Rubber/Plastic Gloves, under NAICS code 315992 (Glove and Mitten Manufacturing).

The SBA proposed numerous amendments to its small business size regulations to (i) clarify the effect, across all small business programs, of initial and appeal eligibility decisions on the procurement in question; (ii) increase the amount of time that SBA has to render formal size determinations; (iii) require that SBA’s Office of Hearings and Appeals (OHA) issue a size appeal decision within 60 calendar days of the close of the record, if possible; (iv) increase the amount of time that SBA has to file North American Industry Classification System (NAICS) code appeals; (v) alter the NAICS code appeal procedures to comply with a federal court decision; (vi) clarify that contracting officers must reflect final agency eligibility decisions in federal procurement databases and goal statistics; (vii) clarify how a contracting officer assigns a NAICS code and size standard to a multiple award procurement; and (viii) make other changes to size status protest and appeal rules. The proposed rule changes would affect 13 C.F.R. Parts 121, 124, 125, 126, and 134.

The SBA also proposed changes to 13 C.F.R. Part 127 (entitled "Women-Owned Small Business Federal Contract Assistance Procedures"), including eliminating the requirement for an agency-by-agency determination of discrimination, adopting both ‘‘numbers’’ and ‘‘dollars’’ measures of under-representation, and using the Fiscal Year 2006 CCR database as the data source for determining eligible industries under the WOSB Program.

The SBA proposed to waive the nonmanufacturer rule for herbicides, insecticides, and fungicides, under PSC 6840, under NAICS code 325120. Subsequently, the SBA decided to grant the waiver, effective July 29.

The SBA considered granting a class waiver of the nonmanufacturer rule for Optical Instrument and Lens Manufacturing, specifically GEN II and GEN III Image Intensifier Tubes, Product Service Code (PSC) 5855, and Night Vision Equipment, Emitted and Reflected Radiation, under NAICS code 333314 (Optical Instrument and Lens Manufacturing).

The agency decided not to issue a class waiver for Improved Outer Tactical Vests and related accessories under Product Service Code (PSC) 8470 (Armor Personal) under North American Industry Classification System (NAICS) code 339113 (Surgical Appliance and Supplies Manufacturing).

State Department

The State Department's Bureau of Verification, Compliance, and Implementation published a list of foreign persons and firms banned from selling to the Government, receiving FMS items or services, or obtaining items on the Munitions Control List because of violations involving the Iran, North Korea, and Syria Nonproliferation Act.

The agency amended the ITAR to require electronic submission of a request for a commodity jurisdiction determination using "Commodity Jurisdiction (CJ) Determination Form" (Form DS–4076).

The Department amended the ITAR to clarify that an exemption for technical data includes technical 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.

The State Department proposed to amend the ITAR to relax requirements placed on end-users to include information concerning employment of dual-nationals and third-country nationals in export licenses.

The agency also proposed to amend the ITAR by removing the requirement for prior approval or prior notification before proposals for foreign sales of significant military equipment or defense services to foreign persons may be made. Subsequently, the agency did, in fact, make this amendment.

As part of the President’s export control reform initiative, the State Department's Directorate of Defense Trade Controls (i) solicited public comments on revisions to the United States Munitions List that would make it a "positive list" of controlled defense articles (i.e., a list that describes controlled items using objective criteria rather than broad, open-ended, subjective, or design intent-based criteria), and (ii) requested that the public (a) "tier" defense articles based on the Administration’s three-tier control criteria and (b) identify those current defense articles that the public believes do not fall within the scope of any of the criteria’s tiers. 

The State Department also proposed to revise Category VII (tanks and military vehicles) of the Munitions List in the ITAR (22 C.F.R. Part 121) to provide more accurate descriptions of the products included in that category. 

Treasury Department

For the period July 1 through December 31, 2010 the Prompt Payment Act interest rate is 3 1/8%. The interest rate will be  2 5/8% for the period January 1 through June 30, 2011. 

United States Department of Agriculture (USDA)

The Department of Agriculture proposed (i) to amend the Guidelines for Designating Biobased Products for Federal Procurement to designate the following items within which biobased products would be afforded Federal procurement preference: disposable tableware; expanded polystyrene foam recycling products; heat transfer fluids; ink removers and cleaners; mulch and compost materials; multipurpose lubricants; office paper; topical pain relief products; and turbine drip oils; and (ii) to establish minimum required biobased contents for each of these items.

Veterans Affairs

The VA adopted as final, without changes, an interim final rule that implements portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, which requires the VA to verify ownership and control of veteran-owned small businesses, including service-disabled veteran-owned small businesses. The final rule defines the eligibility requirements for businesses to obtain ‘‘verified’’ status, explains examination procedures, and establishes records retention and review processes. In the same document, the VA also has implemented new interim final requirements, that eligible owners work full-time in the business for which they have applied for acceptance in the Verification Program, changes the time period for issuance of reconsideration decisions from 30 to 60 days, and changes the distribution of profits for limited liability companies and employee stock ownership plans and solicits comments on these regulatory amendments only.

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.