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2011 Procurement Review--Statutes, Regulations, Executive Orders



Contents

                           

Statutes

As explained in this congressional report, a statute (P.L. 111-350) revised 41 U.S.C. (Public Contracts) to eliminate errors, inconsistencies, and obsolescence that has crept in gradually over the years, and, while it does not involve substantive changes to the current law, it does result in significant revisions to the old section number system. For example, the Contract Disputes Act is now at 41 U.S.C. 7101-7109 instead of its old location at sections 601-613. 

Public law 111-383 is entitled the Ike Skelton National Defense Authorization Act for Fiscal Year 2011

Public law 112-10 is entitled the Department of Defense and Full-Year Appropriations Act, 2011

National Defense Authorization Act for Fiscal Year 2012

Public law 112-33, Continuing Appropriations Fiscal Year 2012

Consolidated Appropriations Act, 2012

       

Executive Orders and Related Publications

President Obama issued a Memorandum of March 11, 2011, entitled "Government Reform for Competitiveness and Innovation."

The President issued Executive Order 13576, dated June 13, which establishes additional committees and requires further studies to facilitate earlier mandates to streamline and cut waste from government procurement. 

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-49

FAC 2005-49 includes one item, FAR Case 2010-016 (Public Access to Federal Awardee Performance and Integrity Information System), an interim interim rule that implemented section 3010 of the Supplemental Appropriations Act, 2010, by amending  the FAR to notify contractors of the new statutory requirement for public access to FAPIIS and creates a new FAR clause to support the posting of information in FAPIIS consistent with section 3010. All information posted in FAPIIS on or after April 15, 2011, except for past performance reviews, will be  publicly available. 

FAC 2005-50

FAC 2005-50 includes the following nine items, plus technical amendments:

FAR Case 2008-030 ("Proper Use and Management of Cost-Reimbursement Contracts"): An interim rule amended the FAR to provide regulatory guidance on the proper use and management of other than firm-fixed-price contracts (e.g., cost-reimbursement, time-and-material, and labor-hour) in order to implement section 864 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which aligns with the Presidential Memorandum on Government Contracting, issued on March 4, 2009, directing agencies to save $40 billion in contracting annually by FY 2011 and to reduce the use of high-risk contracts. 

FAR Case 2007-012 ("Requirements of Acquisitions Pursuant to Multiple-Award Contracts"): An interim rule amended the FAR to implement section 863 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, entitled "Requirements for Purchase of Property and Services Pursuant to Multiple-Award Contracts," which mandates enhanced competition for orders placed under multiple-award contracts, including the GSA’s Federal Supply Schedules. If an individual order over the simplified acquisition threshold does not follow the section 863 competitive procedures, section 863 requires that a notice of, and the determination to waive competition for, the order be published in FedBizOpps within 14 days after award.   

FAR Case 2009-038 ("Justification and Approval for Sole-Source, 8(a) Contracts"): An interim rule amended the FAR to implement section 811 of the National Defense Authorization Act for Fiscal Year 2010 and to encourage agencies to maximize the effective use of competition by making certain that the proper J&A is obtained prior to award of 8(a) sole-source contracts over $20 million. 

FAR Case 2008-007 ("Additional Requirements for Market Research"): A final rule adopted, with changes, the prior interim rule amending the FAR to implement section 826, Market Research, of the National Defense Authorization Act for Fiscal Year 2008, which requires the head of an agency to take appropriate steps to ensure that any prime contractor of a contract (or task order or delivery order) in an amount in excess of $5 million for the procurement of items other than commercial items engages in market research as necessary before making purchases.

FAR Case 2011-004 ("Socioeconomic Program Parity"): An interim rule amended the FAR to implement section 1347 of the "Small Business Jobs Act of 2010," which clarifies the Contracting Officer's ability to use discretion when determining whether an acquisition will be restricted to small businesses participating in the 8(a), HUBZone, or SDVOSB programs by noting that there is no order of priority among these programs. Comments are due by May 16. 

FAR Case 2008-034 ("Use of Commercial Services in Item Authority"): A final rule adopted, without change, the prior interim rule amending the FAR to implement section 868 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which provides that the FAR shall be amended with respect to the procurement of commercial services, specifically services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace. These services may be considered commercial items only if the contracting officer has determined in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such services. The rule details the information the contracting officer may consider in order to make this determination.

FAR Case 2009-040 ("Trade Agreements Thresholds"): A final rule adopted,  without change, the prior 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.

FAR Case 2009-025 ("Disclosure and Consistency of Cost Accounting Practices for Contracts Awarded to Foreign Concerns"): A final rule adopted, without changem the prior interim rule amending the FAR to align it with a CAS Board clause ("Disclosure and Consistency of Cost Accounting Practices-Foreign Concerns").

FAR Case 2009-026 ("Compensation for Personal Services"): A final rule adopted, without change, the prior interim rule amending the FAR to align it with the following revised CAS Board standards: "Cost Accounting Standard for composition and measurement of pension cost";  and "Accounting for the cost of deferred compensation."

FAC 2005-51

FAC 2005-51 consists of the following two items: 

FAR Case 2010-015 (Women-Owned Small Business Program): An interim rule amended the FAR extensively to implement the SBA's regulations establishing the Women-Owned Small Business Program ("WOSB").

FAR Case 2009-029 (Clarification of Standard Form 26 Award/Contract): A final rule clarified Standard Form 26 by, inter alia, by making changes above blocks 17 and 18 and in block 18 to make it clear that block 18 should not be used when awarding a negotiated procurement and should only be checked when awarding a sealed bid contract. 

FAC 2005-52

FAC 2005-52 consists of the following six items:

FAR Case 2010-001 ("Sustainable Acquisition"): An interim rule amended the FAR to implement Executive Order 13514 (Federal Leadership in Environmental, Energy, and Economic Performance) and Executive Order 13423 (Strengthening Federal Environmental, Energy, and Transportation Management) by requiring (a) federal agencies (i) to leverage agency acquisitions to foster markets for sustainable technologies, materials, products, and services and (ii) to implement high performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices in applicable acquisitions and (b) contractors to support the goals of an agency’s environmental management system.

FAR Case 2008-020 ("Contract Closeout"): A final rule (i) revised the FAR sections related to closing out contract files, including steps for clearing final patent reports and quick-closeout procedures and (ii) set forth a description of an adequate final indirect cost rate proposal and supporting data.

FAR Case 2008-009 ("Prohibition on Contracting with Inverted Domestic Corporations") is a final rule adopting (with changes) the interim rule amending the FAR to implement section 743 of Division D of the Omnibus Appropriations Act, 2009, which prohibits the award of appropriated fund contracts to any foreign incorporated entity that is treated as an inverted domestic corporation or to any subsidiary of one.

FAR Case 2009-039 ("Buy American Exemption for Commercial Information Technology--Construction Materials"): A final rule adopted, without change, the prior interim rule amending the FAR to implement section 615 of Division C, Title VI, of the Consolidated Appropriations Act, 2010, to authorize an exemption from the Buy American Act for the acquisition of information technology that is a commercial item. 

FAR Case 2010-017 ("Oversight of Contractor Ethics Programs"): A final rule amended the FAR to add a contract administration function to ensure that contractors have implemented the mandatory contractor business ethics program requirements.

The final item in the Circular was a set of technical, editorial changes to the FAR, including revised Standard Forms 1447 ("Solicitation/Contract"), 1449 ("Solicitation/Contract/Order for Commercial Items"), and Optional Form 347 ("Order for Supplies or Services") in FAR Part 53.  

FAC 2005-53 

FAC 2005-53 includes the following six items:

FAR Case  2009-007 ("Equal Opportunity for Veterans"): A final rule adopted, with changes, the prior interim rule amending the FAR to implement DOL regulations on equal opportunity provisions for various categories of military veterans by revising the coverage and definitions of veterans covered under the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 and including new reporting requirements established under both that Act and the Jobs for Veterans Act.

FAR Case  2009-023 ("Unique Procurement Instrument Identifier"): A final rule amended the FAR to standardize the use of unique Procurement Instrument Identifiers (PIID) throughout the Government in order to eliminate inconsistent agency policies and procedures for PIIDs, which subjected users of contract data, including the Government, contractors, and the public, to potential duplicate, overlapping, or conflicting information from the different federal agencies.

FAR Case  2009-036 ("Uniform Suspension and Debarment Requirement"): A final rule adopted, with changes, the prior interim rule amending the FAR to implement section 815 of the National Defense Authorization Act for Fiscal Year 2010, which extends the flow down of limitations on subcontracting with entities that have been debarred, suspended, or proposed for debarment.

FAR Case  2011-015 ("Extension of Sunset Date for Protests of Task and Delivery Orders"): An interim rule amended the FAR to implement section 825 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, which extends the sunset date for protests against the award of task or delivery orders by DoD, NASA, and the Coast Guard from May 27, 2011, to September 30, 2016.

FAR Case  2009-028 ("Encouragement of Contractor Policies to Ban Text Messaging While Driving"): A final rule adopted, with changes, the prior interim rule amending the FAR to implement E.O. 13513, dated October 1, 2009, entitled "Federal Leadership on Reducing Text Messaging while Driving."

FAR Case  2009-034 ("TINA Interest Calculations"): A final rule amended the FAR to revise the FAR clauses on price reduction for defective pricing to require compound interest calculations be applied to Government overpayments as a result of defective cost or pricing data.

FAC 2005-54

FAC 2005-54 includes the following nine items plus technical amendments:

FAR Case 2010-006  ("Notification of Employee Rights Under the National Labor Relations Act"): A final rule adopted, without change, the prior interim rule amending the FAR to incorporate the DOL regulations that implemented E.O. 13496.

FAR Case 2008-025  ("Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions"): A final rule added a subpart 3.11 to the FAR to implement the policy on personal conflicts of interest by employees of government contractors as required by section 841(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417) (41 U.S.C. 2303). 

FAR Case  2009-019 ("Small Disadvantaged Business Program Self-Certification"): A final rule adopted, without changes, the prior interim rule amending the FAR to incorporate revisions made by the SBA to its small disadvantaged business program, specifically to permit subcontractors to self-represent their SDB status to prime contractors in good faith when seeking federal subcontracting opportunities.   

FAR Case 2010-012  ("Certification Requirement and Procurement Prohibition Relating to Iran Sanctions"): A final rule adopeds, with changes, the prior interim rule amending the FAR to to implement sections 102 and 106 of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, which, respectively, (i) require 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 and (ii) impose a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran. 

FAR Case 2010-018  ("Representation Regarding Export of Sensitive Technology to Iran"): An interim rule amended the FAR to add a representation to implement section 106 of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, which imposes a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran. 

FAR Case 2011-024  ("Set-Asides for Small Business"): An interim rule amended the FAR to implement section 1331 of the Small Business Jobs Act of 2010, which addresses set-asides of task- and delivery-orders under multiple-award contracts, partial set-asides under multiple-award contracts, and the reserving of one or more multiple-award contracts that are awarded using full and open competition. 

FAR Case 2009-041  ("Sudan Waiver Process"): A final rule amended the FAR to revise the prohibition on contracting with entities that conduct restricted business operations in Sudan and to add specific criteria including foreign policy aspects that an agency must address when applying to the President or his appointed designee for a waiver of the prohibition on awarding a contract to a contractor that conducts restricted business operations in Sudan. The rule also describes the consultation process that will be used by the OFPP in support of the waiver request review. 

FAR Case  2011-014 ("Successor Entities to the Lesser Antilles"): A final rule amended the FAR to revise the definitions of "Caribbean Basin country" and "designated country"’ due to the change in status of the islands that comprised the Netherlands Antilles.

FAR Case  2009-006 ("Labor Relations Costs"): A final rule amended the FAR to implement the E.O. on Economy in Government Contracting, issued on January 30, 2009, and amended on October 30, 2009, which treats as unallowable the costs of any activities undertaken to persuade employees, whether 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.  

 

Other FAR Revisions

FAR Case 2009-004 ("Enhancing Contract Transparency") withdrew the previously issued advance notice of proposed rulemaking and noted that, because of comments received in response to that notice, no changes to the FAR in this area are contemplated at this time.

FAR Case 2010-005 covered a proposed rule to update FAR references to authoritative accounting standards to harmonize with FASB's Accounting Standards Codification of Generally Accepted Accounting Principles. 

FAR Case 2010-010 (Service Contracts Reporting Requirements): A proposed rule would amend the FAR to implement section 743 of Division C of the Consolidated Appropriations Act, 2010, by requiring service contractors for executive agencies (except the DoD) covered by the Federal Activities Inventory Reform (FAIR) Act of 1998 to submit information annually in support of agency-level inventories for service contracts. 

FAR Case 2010-009: A proposed rule would amend the FAR to clarify the requirements for reporting, reutilization, and disposal of government property and the contractor's obligations under the "Government Property" clause. 

FAR Case 2011-001: A proposed rule would significantly amend the FAR's organizational conflict of interest regulations by providing additional coverage regarding contractor access to nonpublic information and adding related provisions and clauses. 

The FAR published its preliminary plan for retrospective review of FAR provisions, which is available for review here.

FAR Case 2009-024: As a result of the GAO's bid protest decision in Murray-Benjamin Electric Co., the FAR Council proposed to amend FAR Part 8 (i) to limit FAR 8.002 and 8.003 to a discussion of the mandatory Government sources of supplies and services and (ii) to add  a new FAR section to encourage agencies to give priority consideration to using certain sources, despite the fact that the use of the listed sources is not mandatory.

FAR Case 2009-042: A proposed rule would amend the FAR to provide governmentwide standardized past performance evaluation factors and performance ratings and to require all past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS), all as a result of recommendations from Government Accountability Office Report number GAO–09–374, Better Performance Information Needed to Support Agency Contract Award Decisions and OFPP’s memorandum dated July 29, 2009, entitled "Improving the Use of Contractor Performance Information." Subsequently, corrections to the previously-published rule regarding documenting contractor performance were issued.

FAR Case 2010-004: A proposed rule would amend the FAR to implement changes to the Farm Security and Rural Investment Act and require contractors to report the biobased products purchased under service and construction contracts, which, in turn, will allow federal agencies to monitor compliance with the federal preference for purchasing biobased products. 

FAR Case 2011-003: A proposed rule would amend the FAR to enable the use of appropriate payment provisions for time-and-materials and labor-hour contracts, addressing potential problems with the new time-and-materials regulations.

FAR Case 2009-016: A proposed rule would amend the FAR to conform to the Federal Circuit's decision  in Rothe Development Corp. v. DoD, 545 F.3d 1023 (Fed. Cir. November 4, 2008) (which declared 10 U.S.C. 2323 unconstitutional). Section 2323 was the basis for the DoD's small disadvantaged business program and the 10 percent price advantage for SDBs. The proposed rule would amend the FAR (i) to remove coverage at FAR subpart 19.11, FAR subpart 19.12, corresponding clauses at FAR 52.219–22, Small Disadvantaged Business Status, FAR 52.219–23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns, FAR 52.219–24, Small Disadvantaged Business Participation Program—Targets, FAR 52.219–25, Small Disadvantaged Business Participation Program—Disadvantaged Status and Reporting, and FAR 52.219–26, Small Disadvantaged Business Participation Program—Incentive Subcontracting; and (ii) to remove references to FAR subpart 19.11, 19.12, and corresponding clauses in FAR parts 1, 2, 4, 12, 14, 15, 19, 22, 26, 52, and 53. Other FAR provisions in section 19.12 and related sections that address the award of subcontracts to SDBs and that are rooted in the Small Business Act were not at issue in the Rothe decision and, therefore, retain their legal status. These include the authority (i) to provide monetary incentives to prime contractors to encourage subcontracting opportunities to SDBs and (ii) to use an evaluation factor or subfactor to evaluate the participation of small businesses as subcontractors. Comments on the proposed rule are due by November 8, 2011. 

FAR Case 2010-013: A proposed rule would amend the FAR to require contractors to complete training that addresses the protection of privacy, in accordance with the Privacy Act of 1974, and the handling and safeguarding of personally identifiable information.

FAR Case 2010-014: A proposed rule would amend the FAR to limit the use of generic substitutes instead of DUNS numbers, and update the policies and procedures associated with reporting in the Federal Procurement Data System. Additionally, changes are proposed for the clauses requiring contractor registration in the CCR database and DUNS number reporting.

FAR Case 2011-022: A proposed rule would revise the FAR to implement the removal of Federal Information Processing Standard (" FIPS") 161 based on the notice posted in the Federal Register  on September 2, 2008 (73 FR 51276) by the Department of Commerce, withdrawing the  FIPS requirement because it was obsolete and had not been updated to adopt current voluntary industry standards, federal specifications, federal data standards, or current good practices for information security. The withdrawal of this standard created a gap in the FAR, which will be closed by the proposed rule by clarifying the use of American National Standards Institute X12, as the valid standard to use for computer-generated forms. FAR 53.105 is being amended; it will continue allowing agencies and the public to generate standard and optional forms on their computers.

Department of Defense FAR Supplement (DFARS)

Final Rules

DFARS Case 2008-D049: DoD amended the DFARS to require contractors to report the loss of government property to the DCMA eTools application.

DFARS Case 2008-D050: DoD amended the DFARS to require contractors to tag, label, or mark government-furnished property items identified in the contract as subject to serialized item management.

DFARS Case 2006-D021 ("Award Fee Contracts"): DoD amended the DFARS to address award-fee contracts, including eliminating the use of provisional award-fee payments. 

DFARS Case 2009-D033: DoD adopted as final, without change, a prior interim rule amending the DFARS to to implement the Fiscal Year 2010 National Defense Authorization Act, section 820, entitled "Publication of Notification of Bundling of Contracts of the Department of Defense," by adding a requirement at DFARS 205.205–70 to publish a notification of the intention to bundle a DoD procurement at least 30 days prior to (i) releasing a solicitation or (ii) placing an order without a solicitation.

DFARS Case 2011-D001: DoD amended the DFARS to eliminate the Small Business Competitiveness Demonstration Program.

DFARS Case 2009-D027: DoD adopted as final, without change, a prior interim rule amending the DFARS to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010, which authorizes an agency that is an element of the intelligence community to award a contract for supplies or services in excess of the simplified acquisition threshold for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency.

DFARS Case 2009-D020 (Payments in Support of Emergencies and Contingency Operations): A final rule adopted, with minor changes, the prior interim rule amending the DFARS to exempt both military payments related to contingencies and certain payments related to emergencies and the release or threatened release of hazardous substances from the requirements of the Prompt Payments Act.

DFARS Case 2008-D042 (Preservation of Tooling for Major Defense Acquisition Programs): A final rule amended the DFARS to implement section 815 of the National Defense Authorization Act for Fiscal Year 2009, which addresses the preservation of tooling for major defense acquisition programs and (i) requires that the milestone decision authority (MDA) approve a plan for the preservation and storage of such tooling  prior to Milestone C approval; (ii) requires the MDA to periodically review the plan to ensure that it remains adequate and in the best interest of DoD; and (iii) provides a mechanism for the Secretary of Defense to waive the requirement under certain circumstances.

DFARS Case 2008-D006 (Multiyear Contract Authority for Electricity from Renewable Energy Sources): A final rule established that the head of the contracting activity may enter into a contract for the purchase of renewable energy for a period in excess of five years, not to exceed ten years, only after a determination of the cost effectiveness of the proposed purchase has been made based upon a business case analysis and only if it would not be possible to purchase electricity from the source in an economical manner without the use of a contract for a period in excess of five years.

DFARS Case 2011-D026 (Repeal of Restriction on Ballistic Missile Defense Research, Development, Test, and Evaluation): A final rule implemented section 222 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111–383), which repeals the restriction on the purchase of Ballistic Missile Defense research, development, test, and evaluation from foreign sources.

DFARS Case 2009-D029 (Safety of Facilities, Infrastructure and Equipment for Military Operations): A final rule adopted, without change, the prior interim rule amending the DFARS to implement section 807 of the National Defense Authorization Act for Fiscal Year 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 inspected for safety and habitability prior to use, and that such facilities should be 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.

DFARS Case 2008-D011 (Acquisition of Commercial Items): A final rule adopted, with minor editorial changes, an interim rule amending the DFARS to implement two sections of the National Defense Authorization Act for Fiscal Year 2008: (i) Section 805, which  specifies when time-and materials or labor-hour contracts may be used for commercial item acquisitions; and (ii) Section 815, which (a) provides identifies situations in which a major weapon system, subsystems of major weapon systems, or components and spare parts for major weapon systems may be acquired using procedures established for the acquisition of commercial items and (b) clarifies that the terms "general public" and "nongovernmental entities" do not include the Federal Government or a State, local, or foreign government.

DFARS Case 2010-D010 (Ownership or Control by a Foreign Government): A final rule adopted, without change, an interim rule that implemented revisions to DoD Directive-Type Memorandum 09–019, "Policy Guidance for Foreign Ownership, Control, or Influence (FOCI)," which revises the description of communications security material that is "proscribed information."

DFARS Case 2011-D016: DoD revised the first two paragraphs in the definition of multiple-award contract at DFARS section 207.170-2 to read as follows: "Multiple-award contract means--(1) A multiple-award schedule contract issued by the General Services Administration or Department of Veterans Affairs as described in FAR subpart 8.4; (2) A multiple award task-order or delivery-order contract issued in accordance with FAR subpart 16.5. . . ."

DFARS Case 2009-D037 (Electronic Ordering Procedures): A final rule required insertion of a new DFARS ordering clause (252.216-7006) in lieu of the standard FAR ordering clause in solicitations and contracts when a definite-quantity contract, a requirements contract, or an indefinite-quantity contract is contemplated.

DFARS Case 2009-D028 (Guidance on Personal Services): A final rule adopted, with changes, an interim rule amending the DFARS to implement section 831 of the National Defense Authorization Act for Fiscal Year 2009, which required DoD to develop guidance on personal services contracts.

DFARS Case 2009-D004 (Minimizing the Use of Materials Containing Hexavalent Chromium): A final rule amended the DFARS to minimize the use of materials containing hexavalent chromium in items acquired by DoD by prohibiting the delivery of items containing more than 0.1 percent by weight hexavalent chromium in any homogeneous material under DoD contracts unless there is no acceptable alternative.

The rules of the ASBCA were updated (i) to increase, from $10,000 to $50,000, the threshold for the applicability of small claims procedures for the disposition of appeals; (ii)  to increase from $50,000 to $100,000, the threshold for the applicability of accelerated procedures for the disposition of appeals; and (iii) to amend rule 21.1(a) by inserting after "50,000 or less" the following language: "[o]r, in the case of a small business concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less."

DFARS Case 2011-D017: A final rule amended the DFARS to correct several anomalies resulting from recent changes relating to the source of ball and roller bearing components, the eligibility of Peruvian end products under trade agreements, and participation by foreign contractors in acquisitions in support of operations in Afghanistan.

DFARS Case 2011-D006: A final rule amended the DFARS to make some administrative corrections relating to DFARS clause 252.203–7003, Agency Office of the Inspector General.

DFARS Case 2009-D018: A final rule amended the DFARS to make clear that the enforcement of warranties is essential to DoD’s material readiness by implementing a policy memorandum of the Undersecretary of Defense for Acquisition, Technology and Logistics dated February 6, 2007, which required definition of the requirements to track warranties for Item Unique Identification-required items in the DoD Item Unique Identification Registry.

DFARS Case 2011-D024: Another final rule amended the DFARS to implement section 826 of the National Defense Authorization Act for Fiscal Year 2011, which requires that the threshold limitation of $50 million for contracts and subcontracts under the DoD pilot program for transition to follow-on contracting after use of other transaction authority  includes the dollar value of all options.

DFARS Case 2011-D030: A final rule revised the DFARS to modify terminology and address internal contract administration requirements associated with the Synchronized Predeployment and Operational Tracker (SPOT) system.

DFARS Case 2011-D004: A final rule (i) specified that the  Defense Procurement and Acquisition Policy, Program Development and Implementation Office is the office responsible for maintaining order code assignments and (ii) moves order code procedures from the DFARS to the DFARS Procedures, Guidance, and Information volume.

DFARS Case 2010-D023: A final rule amended the DFARS to ensure contractor employees accompanying U.S. Armed Forces are made aware (i) of the DoD definition of sexual assault as defined in DoD Directive 6495.01, Sexual Assault Prevention and Response Program and (ii) that many of the offenses addressed in the definition are covered under the Uniform Code of Military Justice.

DFARS Case 2011-D035: A final rule (i) implemented section 8102 of the DoD and Full-Year Continuing Appropriations Act, 2011 and similar sections in subsequent appropriations acts, and (ii) extended the restriction on the use of mandatory arbitration agreements (when awarding contracts that exceed $1 million) to the use of 2011 and subsequent fiscal year funds appropriated or otherwise made available by this Act or any subsequent DoD appropriation act.

DFARS Case 2011-D029: A final rule amended  the definitions of "Caribbean Basin country" and "designated country" in the clauses at DFARS 252.225–7021 ("Trade Agreements") and 252.225–45 ("Balance of Payments Program—Construction Materials Under Trade Agreements") due to the change in the political status of the islands that comprised the Netherlands Antilles.

DFARS Case 2010-D027: DoD adopted as final, without change, an interim rule amending the DFARS to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010, which prohibits contractor personnel from interrogating detainees under the control of DoD.

DFARS Case 2009-D008: A final rule amended DFARS coverage regarding government property to conform to changes in the FAR.

DFARS Case 2010-D022: A final rule added a contract clause (DFARS 252.209-7010: Critical Safety Items) to clearly identify any items being purchased that are critical safety items so that the proper risk-based surveillance can be performed.

DFARS Case 2011-D025: This final rule adopted the prior interim rule with minor changes to implement part of the National Defense Authorization Act for Fiscal Year 2011, which provides a domestic nonavailability exception to the requirement (known as the Berry Amendment) to acquire only domestic hand or measuring tools.

DFARS Case 2010-D026: A final rule amended the DFARS to require contractors to display the DoD hotline poster in common work areas.

DFARS Case 2011-D010: A final rule amended the DFARS to increase the use of fixed-price incentive (firm target) contracts, with particular attention to share lines and ceiling prices. 

DFARS Case 2010-D017: A final rule amended the DFARS to establish a standard procedure for offerors responding to solicitations for commercial items and initial provisioning spares to propose an alternative line item structure that reflects the offeror’s business practices for selling and billing commercial items and initial provisioning spares for weapon systems.

DFARS Case 2009-D011: A final rule conformed the DFARS to higher-level changes in the C.F.R. relating to annual representations and certifications.

DFARS Case 2010-D024: A final rule amended the DFARS to remove the requirement to use DoD-unique forms to prepare contractor performance evaluations for construction and architect-engineer services. 

DFARS Case 2011-D037: A final rule amended the DFARS to clarify that a contracting officer’s representative must be an employee, military or civilian, of the U.S. Government, a foreign government, or a NATO/coalition partner, and that contractor personnel shall not serve as contracting officer’s representatives.

DFARS Case 2009-D023: Another final rule amended the DFARS Appendix F, Material Inspection and Receiving Report, to incorporate new procedures for using the electronic Wide Area WorkFlow (WAWF) Receiving Report.

DFARS Case 2009-D026: A final rule reorganized and updated DFARS coverage for multiyear acquisitions.

DFARS Case 2010-D013: A final rule amended the DFARS to strongly encourage discussions prior to award for source selections of procurements estimated at $100 million or more.

DFARS Case 2010-D014: A final rule amended the DFARS to update requirements relating to the use of passive radio frequency identification (RFID).

DFARS Case 2011-D036: A final rule amended the DFARS to conform references to the new Codification of Title 41, United States Code, "Public Contracts."

DFARS 2007-D002: DoD adopted as final, with changes, an interim rule amending the DFARS to comply with section 3504 of the National Defense Authorization Act for Fiscal Year 2009, which addresses requirements that apply to riding gang members and DoD-exempted individuals who perform work on U.S.-flag vessels under DoD contracts for transportation services.

DFARS 2011-D028: A final rule amended the DFARS to revise the definition of "qualifying country end product" by eliminating the component test for qualifying country end products that are commercially available  off-the-shelf items.

DFARS Case 2011-D051 (Administering Trafficking in Persons Regulations): A final rule amended the DFARS to add a requirement to maintain surveillance over contractor compliance with duties and responsibilities pertaining to trafficking in persons when those duties are incorporated in contracts. 

DFARS Case 2011-D021 (Fire-Resistant Fiber for Production of Military Uniforms): A final rile adopted, with changes, an interim rule amending the DFARS to implement the section of the National Defense Authorization Act for Fiscal Year 2011 that prohibits specification of the use of fire-resistant rayon fiber in solicitations issued before January 1, 2015.

DFARS Case 2010-D020 (Representation Relating to Compensation of Former DoD Officials): DoD amended the DFARS to require offerors to represent whether former DoD officials who are employees of the offeror are in compliance with post-employment restrictions.

DFARS Case 2010-D018 (Responsibility for Government Property): A final rule amended the DFARS to extend the government self-insurance policy to government property provided under negotiated fixed-price contracts that are awarded on a basis other than submission of certified cost or pricing data. 

DFARS Case 2011-D032 (Simplified Acquisition Threshold for Humanitarian or Peacekeeping Operations): A final rule adopted, without change, an interim rule amending the DFARS to implement the statutory authority to invoke a simplified acquisition threshold that is two times the normal amount to support a humanitarian or peacekeeping operation. 

DFARS Case 2011-D008 (Accelerate Small Business Payments): Another final rule adopted, without change, an interim rule amending the DFARS to accelerate payments to all small business concerns. 

DFARS Case 2011-D050 (Extension of Department of Defense Mentor-Protégé Program): A final rule amended the DFARS to extend the date for submittal of applications under the DoD Mentor-Protégé Pilot Program for new mentor-protégé agreements and the date mentors may incur costs and/or receive credit towards fulfilling their small business subcontracting goals through an approved mentor-protégé agreement.

DFARS Case 2011-D031 (Management of Manufacturing Risk in Major Defense Acquisition Programs): DoD adopted as final, without change, an interim rule amending the DFARS to implement a section of National Defense Authorization Act for Fiscal Year 2011 requiring appropriate consideration of the manufacturing readiness and manufacturing-readiness processes of potential contractors and subcontractors as a part of the source selection process for major defense acquisition programs

DFARS Case 2009-D036 (Notification Requirements for Awards of Single-Source Task- or Delivery-Order Contracts): DoD adopted as final, with changes, an interim rule amending the DFARS to implement the National Defense Authorization Act for Fiscal Year 2010 regarding the notification requirements to Congress when awarding a single-award task- or delivery-order contract in excess of $103 million.

DFARS Case 2011-D053 (Transition to the System for Award Management): A final rule amended the DFARS for the transition of the Integrated Acquisition Environment systems to the new System for Award Management architecture. 

Interim Rules

DFARS 2009-D031 (Government Support Contractor Access to Technical Data) is an interim rule amending the DFARS to implement section 821 of the National Defense Authorization Act for Fiscal Year 2010, which authorizes certain types of government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a nondisclosure agreement having certain restrictions and remedies. 

DFARS Case 2011-D025 (Nonavailability Exception for Procurement of Hand or Measuring Tools): DoD issued an interim rule to implement section 847 of the National Defense Authorization Act for Fiscal Year 2011, which provides a nonavailability exception to the Berry Amendment requirement to acquire only domestic hand or measuring tools. 

DFARS Case 2011-D008: This interim rule accelerated payments to all small business concerns by, inter alia, revising DFARS section 232.903 to read as follows: "DoD policy is to assist small business concerns by paying them as quickly as possible after invoices and all proper documentation, including acceptance, are received and before normal payment due dates established in the contract." 

DFARS Case 2009-D038: DoD published an interim rule to improve DCMA and DCAA  oversight of contractor business systems by (i) defining such systems as accounting systems, estimating systems, purchasing systems, earned value management systems, material management and  accounting systems, and property management systems and (ii) implementing a contract clause at DFARS 252.242–7005, which allows contracting officers to withhold a percentage of payments, under certain conditions, when a contractor’s business system contains significant deficiencies. 

DFARS Case 2011-D021: DoD issued an interim rule amending the DFARS to implement section 821 of the National Defense Authorization Act for Fiscal Year 2011, which prohibits specification of the use of fire-resistant rayon fiber in solicitations issued before January 1, 2015.

DFARS Case 2011-D031: An interim rule amended the DFARS to implement section 812(b)(5) of the National Defense Authorization Act for Fiscal Year 2011, which instructs DoD to issue guidance that, at a minimum, requires appropriate consideration of the manufacturing readiness and manufacturing-readiness processes of potential contractors and subcontractors as a part of the source selection process for major defense acquisition programs. 

DFARS Case 2011-D034: An interim rule amended the DFARS to implement to implement section 866 of the National Defense Authorization Act for Fiscal Year 2011, which authorizes the Secretary of Defense to establish a pilot program to assess the feasibility and advisability of acquiring military-purpose nondevelopmental items in accordance with the streamlined procedures of the pilot program. 

DFARS Case 2011-D032: This interim rule amended the DFARS to to implement the authority provided by 10 U.S.C. 2302(7) to invoke a simplified acquisition threshold that is two times the amount specified at 41 U.S.C. 134 (formerly 41 U.S.C. 403(11)), as amended by section 807 of the National Defense Authorization Act for Fiscal Year 2005, to support a humanitarian or peacekeeping operation.

DFARS Case 2011-D023: An interim rule amended the DFARS to implement sections of the National Defense Authorization Act for Fiscal Year 2008, which establish minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions. 

DFARS Case 2011-D033: DoD issued an interim rule amending the DFARS to implement those sections of the National Defense Authorization Acts (NDAA) for FY 2011 and 2010 providing increased statutory authorities to reduce or deny award fees to companies found to jeopardize the health or safety of government personnel and adding a mechanism to decrease or eliminate a contractor’s award fee for a specific performance period. In addition, this rule modifies the regulations based on the section of the NDAA for FY 2009 which requires that information on the final determination of award fee be entered into FAPIIS. 

DFARS Case 2011-D046: DoD issued an interim rule to implement a section of the National Defense Authorization Act for Fiscal Year 2011, which provides that photovoltaic devices to be utilized in performance of any covered contract must comply with the Buy American Act, subject to the exceptions provided in the Trade Agreements Act of 1979 or otherwise provided by law. 

Proposed Rules

DFARS Case 2009-D043 ("Reporting of Government-Furnished Property") includes proposed amendments to the DFARS that would revise and expand reporting requirements for government-furnished property to include items uniquely and non-uniquely identified and to clarify policy for contractor access to Government supply sources.

DoD proposed to update the rules of the ASBCA at DFARS Appendix A, Part 2, to include the current monetary statutory limits and thresholds for (i) claim certification, (ii) the use of accelerated procedures,  and (iii) the use of small claims procedures. 

DoD, (i) in recognizing that some of its mandates, reporting requirements, and other acquisition practices encourage industry to adopt processes and make investments that increase costs, especially overhead costs, but do not contribute to value added in systems and services delivered to DoD and (ii) in order to implement the memorandum from Under Secretary of Defense (Acquisition, Technology, and Logistics) Dr. Ashton Carter, dated September 14, 2010, entitled "Memorandum to Acquisition Professionals," requested information from the industrial base to identify the sources of these costs, backed by specific, credible, convincing data, which will enable DoD to develop a fact-based program to reform cost-inflating practices.

DFARS Case 2011-D010 (Increase the Use of Fixed-Price Incentive (Firm Target) Contracts): A proposed rule would amend DFARS subpart 216.4 to require that contracting officers (i) give particular consideration to the use of fixed-price incentive (firm target) contracts, especially for acquisitions moving from development to production; and (ii) pay particular attention to share lines and ceiling prices for such contracts, with a 120 percent ceiling and a 50/50 share ratio as the default arrangement.

DFARS Case 2010-D011 (Independent Research and Development Technical Descriptions): A proposed rule would amend the DFARS to  require contractors to report IR&D projects generating annual costs in excess of $50,000. 

DFARS Case 2009-D026 (Multiyear Contracting): A proposed rulewould amend Part 217 of the DFARS to update and clarify the requirements for multiyear contracting. 

DFARS Case 2010-D022 (Identification of Critical Safety Items): DoD proposed to amend the DFARS to to add a contract clause that clearly identifies any items being purchased that are critical safety items so that the proper risk-based surveillance can be performed. 

DFARS Case 2010-D014: DoD published a proposed rule that would amend the requirements in the DFARS concerning the use of passive radio frequency identification (RFID).

DFARS Case 2009-D043 ("Reporting of Government-Furnished Property") included proposed amendments to the DFARS that would revise and expand reporting requirements for government-furnished property to include items uniquely and non-uniquely identified and to clarify policy for contractor access to government supply sources. 

DoD proposed to amend the DFARS to require contractors to display the DoD fraud hotline poster in common work areas.

DFARS Case 2010-D017 (Alternative Line-Item Structure): A proposed rule would establish a standard procedure for offerors to propose an alternative line item structure that reflects the offeror’s business practices for selling and billing commercial items and initial provisioning spares for weapon systems, including a proposed  new solicitation provision to facilitate offerors’ ability to propose such changes to the solicitation structure in their offers. 

DFARS Case 2010-D024 (Construction and Architect-Engineer Services Performance Evaluation): A proposed rule would amend the DFARS to remove the requirement to use DoD-unique forms to prepare contractor performance evaluations for construction and architect-engineer services. Comments are due by June 20.

DFARS Case 2010-D018 (Responsibility and Liability for Government Property): A proposed rule would amend the DFARS to extend the Government's self insurance policy to government property provided under negotiated fixed-price contracts that are awarded on a basis other than submission of certified cost or pricing data. 

DFARS Case 2009-D019 (Ships Bunker Easy Acquisition (SEA) Card and Aircraft Ground Services): A proposed rule would amend the DFARS to allow the use of U.S. Government fuel cards in lieu of a Purchase Order-Invoice-Voucher for fuel, oil, and refueling-related items for purchases not exceeding the simplified acquisition threshold. 

DFARS Case 2010-D020: A proposed rule would require that offerors represent whether former DoD officials employed by the offeror are in compliance with post-employment restrictions. 

DFARS Case 2011-D028: A proposed rule would amend the definition of "qualifying country end product" by eliminating the component test for qualifying country end products that are commercially available off-the-shelf items. 

DFARS Case 2011-D039: A proposed rule would amend the DFARS to to add a new subpart and associated contract clauses to address requirements for safeguarding unclassified DoD information. DoD extended the comment period to November 30,

DFARS 2011-D013: A proposed rule addressed competitive acquisitions in which only one offer is received and would require that, with some exceptions (i) if the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer must resolicit for an additional period of at least 30 days,  or (ii) if a period of at least 30 days was allowed for receipt of proposals, the contracting officer must determine prices to be fair and reasonable through price or cost analysis or enter negotiations with the offeror. 

DFARS 2011-D049: DoD proposed to amend the DFARS to clarify the requirements for the Canadian Commercial Corporation to submit data other than certified cost or pricing data. 

DFARS Case 2012-D001: DoD proposed to amend the DFARS to revise and expand reporting requirements for government-furnished property to include items uniquely and non-uniquely identified and clarify policy for contractor access to Government supply sources.

DFARS Case 2011-D027 (Updates to Wide Area WorkFlow): DoD proposed to update policy and procedures in the DFARS for electronic submission of payment requests and receiving reports through Wide Area WorkFlow and TRICARE Encounter Data System. Comments are due by January 20, 2012. 

DFARS Case 2011-D048 (Separation of Combined Provisions and Clauses): DoD proposed to amend the DFARS to separate provisions and clauses that are currently combined, in order to be in compliance with DFARS drafting conventions.

DFARS Case 2011-D047 (Application of Hexavalent Chromium Policy to Commercial Items): DoD proposed to amend the DFARS to clarify the applicability to commercial items of DoD policies relating to the use of materials containing hexavalent chromium. 

DFARS Case 2011-D042: DoD proposed the amend the DFARS to incorporate a proposal adequacy checklist for proposals in response to solicitations that require submission of certified cost or pricing data.

DFARS Case 2012-D003: DoD proposed to amend the DFARS to conform statutory titles to the new Positive Law Codification of Title 41, United States Code, "Public Contracts." 

Other Agencies 

Bureau of Industry and Security

The BIS issued a final rule amending the Export Administration Regulations (EAR) by clarifying the application-processing, issuance, and denial provisions concerning BIS's authority to revise, suspend, or revoke licenses

The BIS amended the Commerce Control List (CCL) in the Export Administration Regulations (EAR) in order to harmonize it with changes made at the December 2010 Wassenaar Arrangement Plenary meeting, by (i) amending CCL entries that are controlled for national security reasons in Categories 1, 2, 3, 4, 5 Parts I & II, 6, 7, 8, and 9, (ii) revising reporting requirements, and (iii) adding and amending various definitions in the EAR.

The BIS issued a final rule amending the EAR  to implement changes made to the Wassenaar Arrangement’s List of Dual Use Goods and Technologies that relate to raising the Adjusted Peak Performance (APP) for digital computers in ECCN 4A003.

The BIS amended the EAR,  Supplement No. 7 to Part 748--Authorization Validated End-User: List of Validated End-Users, Respective Items Eligible for Export, Re-export and Transfer, and Eligible Destinations--to add a column that lists Federal Register citations for the respective entries. 

The BIS amended the EAR to add controls on exports and reexports of U.S.-origin dual-use items to the new nation of the Republic of South Sudan.

In order to facilitate compliance with the comprehensive sanctions on Syria, the BIS amended the EAR by (i) moving the substantive provisions of those sanctions from General Order No. 2 in Supplement No. 1 to part 736 to a revised § 746.9 and (ii) making conforming changes to the EAR. 

The BIS issued a proposed rule that creates a new regulatory framework for the transfer of items on the United States Munitions List (USML) that (in accordance with section 38(f) of the Arms Export Control Act), the President determines no longer warrant control under that statute and that would be controlled under the EAR once the congressional notification requirements of section 38(f) and corresponding amendments to the International Traffic in Arms Regulations (ITAR), the USML, the EAR, and the CCL are completed. The proposed rule includes the transfer of an initial group of items from USML Category VII (Tanks and Military Vehicles) to the CCL. This rule also proposes amending the EAR to establish a process by which certain items moving from the USML to the CCL would be made eligible for License Exception Strategic Trade Authorization (STA), and proposes EAR amendments related to movement of USML items to the CCL, such as new definitions of several terms, including "specially designed," "end items,’" "parts," and "components." Finally, this notice proposes establishing a new holding Export Control Classification Number (ECCN) in which items that warrant a significant level of control, but are not otherwise classified on the CCL, may be temporarily placed.

Because the Netherlands Antilles dissolved on October 10, 2010, the BIS revised the EAR (i) to remove the Netherlands Antilles from all places where it is mentioned in the regulations; (ii) to add Curacao and Sint Maarten (the Dutch two-fifths of the island of Saint Martin) to the Commerce Country Chart (because they are now semiautonomous entities within the Kingdom of the Netherlands); (iii) to make clear that Bonaire, Saba, and Sint Eustatius are treated like the Netherlands (because they are dependencies and fall under the direct administration of the Netherlands) and will not be listed on the Commerce Country; and to revise the name "East Timor" to read "Timor-Leste" throughout the EAR, because this is the proper name of the country.

The State Department and Commerce Department each proposed various complementary regulation changes to implement portions of President Obama's Export Control Reform policy by moving items from the United States Munitions List ("USML") to the CCL.

The BIS issued a proposed rule that (i) describes how articles the President determines no longer warrant control under Category VIII (aircraft and related items) of the United States Munitions List (USML) would be controlled under the CCL in new Export Control Classification Numbers (ECCNs) 9A610, 9B610, 9C610, 9D610, and 9E610; (ii) would transfer control of military aircraft and related items now controlled under ECCNs 9A018, 9D018 and 9E018 to new ECCNs 9A610, 9D610 and 9E610; and (iii) addresses license exception availability for items controlled by the five new ECCNs that would be created. In a parallel effort, the State Department proposed to amend the ITAR to revise Category VIII (aircraft and related articles) of the  USML to describe more precisely the military aircraft and related defense articles warranting control on the USML.

The BIS published a proposed rule that describes how military gas turbine engines and related articles that the President determines no longer warrant control under Category VI, VII, or VIII of the United States Munitions List would be controlled under the CCL in new Export Control Classification Numbers (ECCNs) 9A619, 9B619, 9C619, 9D619 and 9E619. In addition, this proposed rule would control military trainer aircraft turbo prop engines and related items, which are currently controlled under ECCN 9A018.a.2 or .a.3, 9D018 or 9E018, under new ECCN 9A619, 9D619 or 9E619. 

The BIS published another proposed rule that  describes how articles the President determines no longer warrant control under Category VII (military vehicles and related articles) of the Munitions List  would be controlled under the CCL. This proposed rule re-proposed, with certain changes, five new ECCNs on the CCL that were originally proposed in a proposed rule published on July 15, 2011 (76 Fed. Reg. 41958). The revised ECCNs in this proposed rule were the result of continued deliberations of the BIS, DoD and the State Department and recommendations of commenters on the July 15 proposed rule. This proposed rule was published in conjunction with a proposed rule by the Department of State, Directorate of Defense Trade Controls, to remove from Category VII of the Munitions List (22 C.F.R. 121.1, Category VII) articles that the President determines no longer warrant control on that list. 

The BIS also published a proposed rule that described (i) how submersible vessels, oceanographic equipment and related articles that the President determines no longer warrant control under Category VI or Category XX of the USML would be controlled under the CCL in new Export Control Classification Numbers (ECCNs) 8A620, 8B620, 8D620, and 8E620 and (ii) how closed and semi-closed circuit (rebreathing) apparatus, engines and propulsion systems for submersible vessels, and submarine and torpedo nets, which are currently controlled under ECCN 8A018 would be covered. With this proposed rule, BIS also would establish a new, unilateral control on submersibles "specially designed" for cargo transport that are not currently subject to USML or CCL controls. A companion BIS proposed rule applies to surface vessels.

Defense Department

DoD's Per Diem, Travel and Transportation Allowance Committee published Civilian Personnel Per Diem Bulletin Number 273, which was quickly superseded by bulletins number 274, 275276, 277, and 278, each listing revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. 

A final rule, which supplemented DoD Instruction 3020.41, "Contractor Personnel Authorized to Accompany the U.S. Armed Forces"), (i) established policy, assigns responsibilities and provided procedures for the regulation of the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a covered contract during contingency operations, combat operations or other significant military operations; and (ii) assigned responsibilities and established procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal, as appropriate, of PSCs and PSC personnel.

DoD published interim rule adding an extensive set of regulations at 32 C.F.R. Part 158, entitled Operational Contract Support, which reflect the sustained employment of a large number of contractors in the U.S. Central Command area of responsibility; the importance of contractor oversight in support of the counter-insurgency operation in Afghanistan; and the requirement to effectively manage contractors during the transition in Iraq.

As required by statute and effective January 1, 2012, DoD removed DoD and Office of Personnel Management regulations concerning the National Security Personnel System (NSPS) from 5 C.F.R. Chapter XCIX.

DoD proposed changes to 32 C.F.R. Part 156 to update policies and responsibilities for the DoD Personnel Security Program in accordance with the provisions of current statutes and executive orders.

DoD proposed to update policy, responsibilities, and procedures to conform with section 21(e)(1)(B) of Public Law 90–629, as amended, for calculating and assessing charges for recoupment of nonrecurring costs on sales to non U.S. government customers of items developed for or by DoD. 

Department of Education

The Department of Education updated and reissued its acquisition regulation (EDAR) to harmonize it with current FAR and  Department policies. 

Department of the Interior

The Department of the Interior amended its Acquisition Regulation at 48 C.F.R. Part 1400 to be consistent with the FAR and to add a new clause at 48 C.F.R. 1452.201-70 covering contract administration roles and responsibilities, entitled "Authorities and delegations."

Department of Transportation

DOT issued a final rule making extensive improvements to the regulations at 49 C.F.R. Part 26 governing its disadvantaged business enterprise program by, inter alia, increasing accountability for recipients with respect to meeting overall goals, modifying and updating certification requirements, adjusting the personal net worth threshold for inflation, providing for expedited interstate certification, adding provisions to foster small business participation, and improving post-award oversight.

Energy Department

The DOE amended many sections of the its acquisition regulation, the DEAR, to to make changes to conform to the FAR, remove out-of-date coverage, and update references.

The DOE proposed to revise existing regulations covering contractor legal management (and make conforming amendments the DOE's Acquisition Regulation (DEAR)) in order to provide rules for handling legal matters and associated costs by certain contractors whose contracts exceed $100,000,000, as well as legal counsel retained directly by the DOE for matters in which costs exceed $100,000.

The DOE proposed to amend the DEAR sections concerning government property to conform to the FAR, remove outdated coverage, and update references. 

FAA

The FAA proposed revisions to 14 C.F.R. Part 17 to update, simplify, and streamline the current regulations governing the procedures for bid protests brought against the FAA and contract disputes brought against or by the FAA by adding a voluntary dispute avoidance and early resolution process. 

Federal Accounting Standards Advisory Board (FASAB)

The Federal Accounting Standards Advisory Board (FASAB) issued Statement of Federal Financial Accounting Standard 40, Definitional Changes Related to Deferred Maintenance and Repairs, which (i) amended Statement of Federal Financial Accounting Standard 6, Accounting for Property, Plant, and Equipment, and (ii) is available here.

FASAB requested comments on the Exposure Draft entitled "Deferred Maintenance and Repairs, Amending Statements of Federal Financial Accounting Standards 6, 14, 29 and 32."

General Services Administration (GSA)

GSAR Case 2006-G508: The GSA amended GSAR Part 570 to revise sections that provide requirements for acquiring leasehold interests in real property.

GSAR Case 2011-G503: The GSA amended the GSAR with an interim rule to implement policy and guidelines for contracts and orders that include information technology supplies, services and systems with security requirements.

GSA announced the publication of FTR Bulletin 11–05, which provided the annual changes to the RIT allowance tables  necessary for calculating the amount of a transferee’s increased tax burden due to an employee’s official permanent change of station. This bulletin and all other FTR Bulletins can be found here. The RIT allowance tables are located here.

The GSA issued Per Diem Bulletin 12-01 establishing revised per diem rates for lodging and meals for locations within CONUS.

FTR Case 2011-306: The GSA amended the FTR by increasing the set lump-sum rate amount to be paid for the miscellaneous expenses allowance when the employee chooses not to provide documentation of miscellaneous expenses.

The FTR was amended to reflect changes to the IRS Standard Mileage Rate for moving purposes (i.e., the rate at which agencies will reimburse an employee for using a privately owned vehicle for relocation on a worldwide basis). Specifically, the mileage rate relocation mileage rate is increasing to $0.235 until December 31, 2011.

FTR Case 2009-307: GSA proposed to amend the FTR by (i) incorporating recommendations of the Governmentwide Relocation Advisory Board concerning calculation of reimbursements for taxes on relocation expenses and (ii) altering the process for calculating reimbursements for taxes on extended TDY benefits to correct errors and to align that process with the proposed changes to the relocation income tax process.  

FTR Case 2011-309: GSA amended the FTR regarding (i) the reimbursement of lodging per diem expenses while on TDY and (ii) GSA’s policy concerning reimbursement for personally-owned residence and personally-owned recreational vehicle expenses while on TDY.

The GSA amended the FTR to permit agencies to establish internal policies and procedures for storage of a privately owned vehicle when an employee is assigned a temporary change of station  in support of a contingency operation. 

The GSA amended the FTR to establish policy for the transportation of the immediate family, household goods, personal effects, and one privately owned vehicle of a covered employee whose death occurred as a result of personal injury sustained while in the performance of the employee’s duty as defined by the agency.

The GSA posted a notice containing new procedures for contractors to follow in posting data to the CCR after April 15, 2011. Subsequently, the GSA  published a new notice (replacing the notice of May 16) concerning FOIA requests for contractor information in the CCR database.

The GSA proposed to amend the GSAR to restore guidance prescribing the use of GSA Form 1142 ("Release of Claims") in construction and building service contracts for purposes of making final payments and to ensure contractors are paid in accordance with their contract requirements and that they are neither overpaid or nor receiving improper payments for work performed.

The GSA sought comments concerning its retrospective review plan (which is available for review here) to implement the goals of E.O. 13563, "Improving Regulation and Regulatory Review," which was signed by President Obama on January 18, 2011.

The CBCA amended its rules of procedure to permit electronic filing of documents. 

Labor Department

The Department of Labor's OFCCP proposed to rescind two guidance documents addressing compensation discrimination ( (i) Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination and (ii) Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with respect to Systemic Compensation Discrimination) because these documents (a) limited OFCCP’s ability to effectively investigate, analyze and identify compensation discrimination and (b) were largely unused by the Federal Government contracting community.

The OFCCP also proposed to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination by covered federal contractors and subcontractors against individuals on the basis of disability and requires affirmative action on behalf of qualified individuals with disabilities. The proposed regulations would (i) strengthen the affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations; (ii) increase the contractor’s data collection obligations; and (iii) establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor’s affirmative action efforts. Revision of the non-discrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 was also proposed.

The DOL issued final regulations (but with the effective dating pending) to implement E.O. 13495 and to mandate the inclusion of a contract clause in service contracts requiring the successor contractor and its subcontractors to offer those employees employed under the predecessor contract, whose employment will be otherwise terminated as a result of the award of the successor contract, a right of first refusal of employment under the successor contract in positions for which they are qualified.

The DOL proposed to revise the list required by E. O. 13126 ("Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor") in accordance with the DOL's "Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor" by adding the following three products: bricks from Afghanistan and cassiterite and coltan from the Democratic Republic of the Congo.

NASA

NASA revised the NASA FAR Supplement (NFS) to update agency-level, government property-related provisions, clauses, prescriptions and procedures to be consistent with changes made to FAR Parts 45 (Government Property) and 52.245 by FAC 2005–17, which significantly rewrote those parts and changed property-related definitions, provisions, and contract clauses.

NASA deleted the requirement in the NFS for contractors to establish and maintain an Earned Value Management System for firm, fixed-price contracts.

NASA adopted as final, without change, a proposed rule amending the NASA FAR Supplement to require contracting officers to notify prospective contractors if they are found to be nonresponsible.

NASA adopted, without change, an interim final rule amending the NSF to implement the FAR award fee revision issued in FAC 2005–46. NASA also proposed to revise the NFS to update both the "Award Fee for Service Contracts" clause (NFS 1852.216–76) and the "the Award Fee for End Item Contracts" clause (NFS 1852.216–77) to clarify that the amount of award fee held in reserve, if any, shall not exceed $100,000 for the contract.

NASA proposed to revise the requirements in the NFS for contractors to establish and maintain an Earned Value Management System for firm, fixed-price (FFP) contracts. The proposal recognizes the reduction in risk associated with FFP contracts and is intended to relieve contractors of an unnecessary reporting burden. 

Office of Government Ethics

The Office of Government Ethics designated the Pension Benefit Guaranty Corporation as a distinct and separate component  within the Department of Labor for purposes of the one-year, post-employment, conflict-of -interest restriction at 18 U.S.C. 207(c) and has revised Appendix B to 5 C.F.R. Part 2641 accordingly. 

OFPP

OFPP's Cost Accounting Standards Board first sought public comments concerning an interim rule (effective August 11) revising the threshold for the application of CAS from its current ‘‘$650,000’’ to ‘‘the Truth in Negotiations Act (TINA) threshold, as adjusted for inflation’’ and later adopted the interim rule as final. The change was made because the CAS applicability threshold is statutorily tied to TINA, and the  wording change effectively revised the CAS threshold to $700,000 and will cause future changes to the CAS applicability threshold to self-execute upon any changes to the TINA threshold as they are implemented in the FAR. 

The OFPP amended 48 C.F.R. Part 9903 to eliminate the exemption from regulations regarding Cost Accounting Standards for contracts executed and performed entirely outside the United States, its territories, and possessions.

Effective February 27, 2012, the CAS Board revised CAS 412, "Composition and Measurement of Pension Cost," and CAS 413, "Adjustment and Allocation of Pension Cost" in order (i) to harmonize the measurement and period assignment of the pension cost allocable to government contracts and the minimum required contribution under ERISA, as required by the Pension Protection Act (PPA) of 2006, which amended the minimum funding requirements for qualified defined benefit pension plans and (ii) to include the recognition of a "minimum actuarial liability" and "minimum normal cost," which are measured on a basis consistent with the liability measurement used to determine the PPA minimum required contribution, and accelerate the recognition of actuarial gains and losses. 

Because it determined that no changes were required at the time, the CAS Board discontinued its reviews of (i) the CAS 403 thresholds at 48 C.F.R. 9904.403–40(c)(2) that require use of the three factor formula described at 48 C.F.R. 9904.403–50(c)(1) for allocating residual home office expenses; and (ii) the development of an amendment to CAS 416 regarding the use of the term catastrophic losses at 48 C.F.R. 9904.416–50(b)(1).

The CAS Board proposed to revise its regulations to clarify that the  exemption from CAS at 48 C.F.R. 9903.201–1(b)(15), the "(b)(15) FFP exemption," applies to firm-fixed-price contracts and subcontracts awarded on the basis of adequate price competition without submission of certified cost or pricing data. 

Office of Personnel Management

The Office of Personnel Management issued a final rule to redefine the geographic boundaries of the Northeastern Arizona and Southern Colorado appropriated fund Federal Wage System (FWS) wage areas. The final rule redefines Dolores, Montrose, Ouray, San Juan, and San Miguel Counties, Colorado, and the Curecanti National Recreation Area portion of Gunnison County, Colorado, from the Southern Colorado wage area to the Northeastern Arizona wage area.

The Office issued an interim rule abolishing the Monmouth, New Jersey, nonappropriated fund (NAF) Federal Wage System wage area and redefining Monmouth County, NJ, to the Burlington, NJ, NAF wage area because the closure of Fort Monmouth will leave the Monmouth wage area without an activity having the capability to conduct a local wage survey.

Small Business Administration (SBA)

The SBA revised its 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 (from the current 10 days to "15 business days, if possible"); (iii) require SBA’s OHA to 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 NAICS code appeals (from the current 10 days after the solicitation is issued to anytime before offers are due); (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 goaling statistics; and (vii) make other changes to size status protest and appeal rules.

The SBA extensively revised its regulations concerning (i) the 8(a) business development program (the first revisions in this area in 10 years), (ii) the SBA's size regulations, and (iii) its regulations covering small disadvantaged businesses. Although the changes are too numerous to detail here, I will quote one that especially interests me, i.e., the new language at 13 C.F.R. at 121.103(h) detailing the number of contracts that joint ventures may engage in without a finding of general affiliation between the partners to the joint venture: "[A] specific joint venture entity generally may not be awarded more than three contracts over a two year period, starting from the date of the award of the first contract, without the partners to the joint venture being deemed affiliated for all purposes. Once a joint venture receives one contract, SBA will determine compliance with the three awards in two years rule for future awards as of the date of initial offer including price. As such, an individual joint venture may be awarded more than three contracts without SBA finding general affiliation between the joint venture partners where the joint venture had received two or fewer contracts as of the date it submitted one or more additional offers which thereafter result in one or more additional contract awards. The same two (or more) entities may create additional joint ventures, and each new joint venture entity may be awarded up to three contracts in accordance with this section. At some point, however, such a longstanding inter-relationship or contractual dependence between the same joint venture partners will lead to a finding of general affiliation between and among them."

As part of its ongoing comprehensive review of all of its size standards, the SBA evaluated 45 industries and three sub-industries in NAICS Sector 54 and one industry in NAICS Sector 81 and proposed to increase small business size standards for 35 industries and one sub-industry in NAICS Sector 54 (Professional, Scientific and Technical Services) and one industry in NAICS Sector 81 (Other Services). The SBA also proposed to increase its size standards for 37 industries in NAICS sector 56 (Administrative and Support, Waste Management and Remediation Services)  and to retain the current size standards for seven industries in that sector. In addition, the SBA proposed to increase its size standards for 15 industries in NAICS sector 51 (Information).

The SBA issued an interim rule which allows a declined or decertified HUBZone small business to reapply 90 calendar days after the decline or decertification decision is rendered, rather than wait one year to reapply, provided that it meets the eligibility requirements at that time of application.

The SBA granted a waiver of the nonmanufacturer rule for GEN II and GEN III Image Intensifier Tubes, PSC 5855 (Night Vision Equipment), under NAICS code 333314 (Optical Instrument and Lens Manufacturing).

The SBA (i) denied a request for a class waiver of the Nonmanufacturer Rule for Optical Eyeglass Frames, PSC 6540 (Ophthalmic Instruments, Equipment, and Supplies), under NAICS code 339115 (Ophthalmic Goods Manufacturing) based on SBA’s discovery of one small business manufacturer and (ii) retracted its waiver of the Rule for PSC 9130 (Liquid Propellants—Petroleum Base) under NAICS code 324110 (Petroleum Refineries), based on SBA’s discovery of small business manufacturers.

The SBA proposed granting a class waiver of the nonmanufacturer rule for Optical Eyeglass Frames, Product Service Code (PSC) 6540 (Ophthalmic Instruments, Equipment, and Supplies), under NAICS code 339115 (Ophthalmic Goods Manufacturing).

To implement provisions of the Small Business Jobs Act of 2010, the SBA proposed to amend its regulations (i) to provide that, for a "covered contract" (a contract for which a small business subcontracting plan is required, currently valued above $1.5 million for construction and $650,000 for all other contracts), a prime contractor must notify the Contracting Officer in writing whenever the prime contractor does not utilize a subcontractor used in preparing its bid or proposal during contract performance; (ii) to require a prime contractor to notify the Contracting Officer in writing whenever the prime contractor reduces payments to a subcontractor or when payments to a subcontractor are 90 days or more past due; (iii) to establish that the Contracting Officer is responsible for monitoring and evaluating small business subcontracting plan performance; (iv) to clarify which subcontracts must be included in subcontracting data reporting, which subcontracts should be excluded, and the way subcontracting data is reported; (iv) to make other changes to update its subcontracting regulations, including changing subcontracting plan thresholds and referencing the electronic subcontracting reporting system (eSRS), some of which changes would require the Contracting Officer to review subcontracting plan reports within 60 days of the report ending date; and (v) to address how subcontracting plan requirements and credit towards subcontracting goals can be implemented in connection with Multiagency, Federal Supply Schedule, Multiple Award Schedule and Government-wide Acquisition ID/IQ contracts.

The SBA also proposed to amend its regulations to implement other provisions of the Small Business Jobs Act of 2010 pertaining to small business size and status integrity, specifically (i) to establish that there is a presumption of loss equal to the value of the contract or other instrument when a concern willfully seeks and receives an award by misrepresentation; (ii) to provide that the submission of an offer or application for an award intended for small business concerns will be deemed a size or status certification or representation in certain circumstances; (iii) to provide that an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument; (iv) to provide that concerns that fail to update their size or status in the ORCA database at least annually shall no longer be identified in the database as small or some other socioeconomic status, until the representation is updated; and (v) to clarify when size is determined for purposes of entry into the 8(a) Business Development and HUBZone programs.

In addition, the SBA issued a direct final rule that will be effective November 28 (unless significant adverse comments are received by November 14) making various amendments conforming SBA's regulations to changes made by the Small Business Jobs Act of 2010 to several SBA programs, including business lending, disaster lending, and contract bundling

State Department

The State Department revised the ITAR's policy concerning Libya to reflect the United Nations Security Council arms embargoes adopted in February and March. The agency also amended the ITAR to update country policies regarding Afghanistan, Côte d’Ivoire, Cyprus, the Democratic Republic of the Congo, Eritrea, Fiji, Iraq, Lebanon, Liberia, North Korea, Sierra Leone, Somalia, Sri Lanka, Yemen, and Zimbabwe, and to correct administrative and typographical errors.

The State Department amended the ITAR to establish a policy covering those who are unable to implement the exemption for intracompany, intra-organization, and intragovernment transfers of defense articles and defense services by approved end-users to dual national and third-country nationals who are employees of such approved end-users. Prior to making transfers to certain dual national and third-country national employees under this new policy, approved end-users must screen employees, make an affirmative decision to allow access, and maintain records of screening procedures to prevent diversion of ITAR-controlled technology for unauthorized purposes.

The State Department revised the ITAR to change the method of payment to electronic submission of registration fees. 

The State Department amended the ITAR to update the policy regarding Libya to reflect the additional modifications to the United Nations Security Council arms embargo of Libya adopted in September 2011. The Department also amended the ITAR to include the Republic of the Sudan as a proscribed destination, pursuant to a United Nations Security Council arms embargo, and to clarify that this policy does not apply to the Republic of South Sudan. 

The State Department also amended the ITAR to reduce the administrative burden on applicants by eliminating the requirement to return certain expired DSP-5 licenses.

The Department amended the ITAR to identify the Federal Reserve Wire Network (FedWire) as another method of electronic payment of registration fees, so as to provide a choice in and facilitate the submission of fees by registrants.

The State Department revised its acquisition regulation (the "DOSAR") to allow the appointment of selected non-U.S.-citizen, locally employed staff (Foreign Nationals and Third Country Nationals) as contracting officers for acquisitions with a value of $25,000 or below.

The Department amended the DOSAR by adding a clause (which will apply to contracts that require contractor employees (i) to perform on-site at a Department of State location and/or (ii) to have access to Department  information systems) that implements procedures regarding personal identity verification of contractor personnel, as required by Homeland Security Presidential Directive 12 ("Policy for a Common Identification Standard for Federal Employees and Contractors") and Federal Information Processing Standards Publication Number 201 ("Personal Identity Verification (PIV) of Federal Employees and Contractors"). 

The  State Department proposed to amend the ITAR (i)  to add an exemption for the temporary export of chemical agent protective gear for exclusive personal use to destinations not subject to restrictions and to Afghanistan and Iraq under specified conditions and (ii) to clarify an exemption for firearms and ammunition by removing extraneous language that does not change the meaning of the exemption. 

The Department proposed to amend the ITAR (i) to remove reference to the International Import Certificate, which action will effectively end the current practice of accepting DSP–53 submissions and (ii) to eliminate the requirement for applicants to return certain expired or exhausted DSP-5 documents.

The  Department proposed (i) to amend the ITAR to implement the Defense Trade Cooperation Treaty between the United States and Australia and the Defense Trade Cooperation Treaty between the United States and the United Kingdom, and identify via a supplement the defense articles and defense services that may not be exported pursuant to the Treaties; (ii) to amend the section pertaining to the Canadian exemption to reference the new supplement; and (iii) with regard to Congressional certification, to add Israel to the list of countries and entities that have a shorter certification time period and a higher dollar value reporting threshold. 

The  Department proposed to amend Part 129 of the ITAR relating to brokers and brokering activities in order to clarify registration requirements, the scope of brokering activities, prior approval requirements and exemptions,  procedures for obtaining prior approval and guidance, and reporting and recordkeeping of such activities. 

Specifically, the State Department published a proposed rule that revises USML Category VI, covering surface vessels of war and special naval equipment, to establish a clear distinction between the USML and the CCL for the control of these articles by narrowing the types of surface vessels of war and special naval equipment controlled on the USML to only those that warrant control under the stringent requirements of the Arms Export Control Act and removing from control of the USML harbor entrance detection devices formerly controlled under Category VI(d) and transferring control of submarines to USML Category XX. 

A companion State Department proposed rule would revise USML Category XX, covering these submersible vessels and related articles, to consolidate the USML controls that will apply to all submersible vessels, as well as naval nuclear propulsion plants for such vessels (which will be covered in Category XX(b)). leaving all other parts, components, accessories, and attachments to be covered by the new 600 series controls in Category 8 of the CCL.  

Treasury Department

The Fiscal Service announced that for the period beginning July 1, 2011, and ending on December 31, 2011, the prompt payment interest rate was 2.5 % per annum.

The Treasury Department amended its acquisition regulation (DTAR) to: update, revise, or remove, as applicable, outdated text and references; add new text to maintain consistency with the FAR; incorporate Treasury-specific policy associated with current FAR requirements; reflect the Treasury’s organization and delegation of authorities; and make minor editorial changes.

United States Department of Agriculture (USDA)

The USDA amended its Guidelines for Designating Biobased Products for Federal Procurement, to be consistent with certain statutory changes to section 9002 of the Farm Security and Rural Investment Act that were effected when the Food, Conservation, and Energy Act  of 2008 was signed into law on June 18, 2008. Simultaneously, the USDA published proposed regulations to provide a procedural framework to finalize the above rule in the event the agency received significant adverse comment and withdrew the direct final rule. 

Veterans Affairs

The VA revised its regulations at 38 C.F.R. Part 74 concerning verification of ownership and control of veteran-owned small businesses, including SDVOSBs, (i) to rescind the requirements (a) that eligible owners work full-time in the business for which they have applied for acceptance in the Verification Program and (b) that eligible participants are limited to a single business; (ii) to change the time period for issuance of reconsideration decisions from 30 to 60 days; and (iii) to change the distribution of profits for limited liability companies and employee stock ownership plans.

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.