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2013 Procurement Review--Statutes, Regulations, Executive Orders



Contents

                           

    Statutes       

Executive Orders and Related Publications

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-65

FAC 2005-65 included the following four items plus technical amendments.

FAR Case 2012-013 (Prohibition on Contracting with Inverted Domestic Corporations): A final rule adopted, without change, the prior interim rule amending the FAR to implement a section of the Consolidated Appropriations Act, 2012, that prohibits the award of contracts using appropriated funds to any foreign incorporated entity that is treated as an inverted domestic corporation or to any subsidiary of such entity. 

FAR Case 2012-007 (Extension of Sunset Dates for Protests of Task and Delivery Orders): A final rule adopted, without change, the prior interim rule amending the FAR to implement sections of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 and the National Defense Authorization Act for Fiscal Year 2012, which extend the sunset date for protests against the award of task or delivery orders from May 27, 2011 to September 30, 2016.

FAR Case 2012-012 (Free Trade Agreement--Columbia): A final rule adopted, with one minor change, the prior interim rule amending the FAR to implement the United States--Colombia Trade Promotion Agreement, which is a free trade agreement that provides for mutually non-discriminatory treatment of eligible products and services from Colombia.

FAR Case 2011-011 (Unallowability of Costs Associated with Foreign Contractor Excise Tax): A final rule amended the FAR to implement certain requirements of section 301 of the James Zadroga 9/11 Health and Compensation Act of 2010 (which imposes a 2 percent excise tax on certain federal procurement payments to foreign persons) by disallowing the costs associated with that excise tax. 

The technical amendments can be found here.

FAC 2005-66

FAC 2005-66 included the following three items, plus technical amendments:

FAR Case 2013-003 (Definition of Contingency Operation): An interim rule amended the definition of "contingency operation" at FAR 2.101 to reflect the statutory change to the definition made by the National Defense Authorization Act for Fiscal Year 2012. Comments are due by April 29.

FAR Case 2011-025 (Changes to Time-and-Materials and Labor-Hour Contracts and Orders): A final rule amended the FAR to provide additional guidance when raising the ceiling price or otherwise changing the scope of work for a time-and-materials or labor-hour contract or order.

FAR Case 2013-007 (Extension of Authority to Use Simplified Acquisition Procedures for Certain Commercial Items): A final rule amended the FAR to extend the authority of the Commercial Item Test Program at FAR subpart 13.5 to January 1, 2015.

FAC 2005-67

FAC 2005-67 included the following 10 items plus technical amendments:

FAR Case 2011-029 (Contractors Performing Private Security Functions Outside the United States): Effective July 22, a final rule amended the FAR to to implement governmentwide requirements in National Defense Authorization Acts that establish minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions outside the United States.

FAR Case 2013-004 (Contracting Officer's Representative): A final rule amended the FAR to improve contract surveillance by clarifying the contracting officer’s representative's responsibilities. 

FAR Case 2012-033 (System for Award Management Name Change, Phase l Implementation): A final rule amends the FAR to reflect the joining of the Central Contractor Registration (CCR), Online Representations and Certification Application (ORCA), and Excluded Parties List System (EPLS) databases into the System for Award Management (SAM) database.

FAR Case 2012-010 (Interagency Acquisitions: Compliance by Nondefense Agencies With Defense Procurement Requirements): A final rule adopted, with changes, the interim rule that amended the FAR to add new requirements specific to the acquisition of supplies and services by nondefense agencies on behalf of DoD. This rule implements a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008, with later amendments; and section 801 of the NDAA for FY 2013, Public Law 112–239.

FAR Case 2013-005 (Terms of Service and Open-Ended Indemnification and Unenforceability of Unauthorized Obligations): This interim rule amended the FAR to address concerns raised in an opinion from the DOJ's Office of Legal Counsel involving the use of unrestricted, open-ended indemnification clauses in acquisitions for social media applications. 

FAR Case 2012-018 (Price Analysis Techniques): A final rule amended the FAR to clarify and give a precise reference in the use of a price analysis technique in order to establish a fair and reasonable price. 

FAR Case 2013-010 (Contracting with Women-Owned Small Business Concerns): An interim rule amended the FAR to remove the dollar limitation for set-asides to economically disadvantaged women-owned small business concerns and to women-owned small business concerns eligible under the Women-Owned Small Business Program.

FAR Case 2013-008 (Deletion of Report to Congress on Foreign-Manufactured Products): A final rule amended the FAR to eliminate an obsolete Congressional reporting requirement on acquisitions of end products manufactured outside the United States.

FAR Case 2012-027 (Free Trade Agreement--Panama): A final rule adopted, without change, the prior interim rule amending the FAR to implement the United States-Panama Trade Promotion Agreement, which is a free trade agreement that provides for mutually non-discriminatory treatment of eligible products and services from Panama.   

FAR Case 2011-019 (Updated Postretirement Benefit References): A final rule amended the FAR (i) to remove references to specific paragraphs of an accounting standard that were deleted in the Financial Accounting Standards Board’s (FASB’s) Accounting Standards Codification (ASC) of Generally Accepted Accounting Principles (GAAP) because the references no longer exist in the authoritative GAAP (the ASC), and (ii) to replace the current GAAP references in the FAR with explicit criteria that generally replicate the substance of the formerly referenced GAAP methodology so that the substance of the FAR does not change as a result of this final rule.

FAC 2005-68

FAC 2005-68 included the following item (plus technical amendments):

FAR Case 2012-017: An interim rule amended the FAR to implement section 803 of the National Defense Authorization Act for Fiscal 2012 by expanding application of the senior executive compensation benchmark amount (which limits the reimbursement of compensation costs) to a broader group of contractor employees. This interim rule applies section 803 prospectively to contracts awarded on or after  December 31, 2011, to the contractor compensation costs incurred after January 1, 2012. In a related publication, FAR Case 2012-025 covered a proposed rule that would amend the FAR to apply the changes implemented by FAR Case 2012-017 above  retroactively to contracts awarded before December 31, 2011, although still only to compensation costs incurred on those contracts after January 1, 2012. 

FAC 2005-69

FAC 2005-69 included the following six items, plus technical amendments:

FAR Case 2013-003 (Definition of Contingency Operation): A final rule adopted, without change, the prior interim rule amending the FAR to revise the definition of "contingency operation" to address the statutory change to the definition made by the National Defense Authorization Act for Fiscal Year 2012. 

FAR Case 2012-030 (Iran Threat Reduction): A final rule adopted, with only minor changes, the prior interim rule amending the FAR to require certifications that implement the expansion of sanctions relating to the energy sector of Iran and sanctions with respect to Iran’s Revolutionary Guard Corps, as contained in titles II and III of the Iran Threat Reduction and Syria Human Rights Act of 2012. 

FAR Case 2012-009 (Documenting Contractor Performance); A final rule amended the FAR to provide governmentwide standardized past performance evaluation factors and performance rating categories and require that past performance information be entered into the CPARS. 

FAR Case 2013-011 (Repeal of Sunset for Certain Provision of Task- or Delivery-Order Contracts): A final rule amended the FAR to remove the sunset date for protests against certain orders under a task-order contract or delivery-order contract for Title 10 agencies only.

FAR Case 2013-009 (Least Developed Countries that are Designated Countries): A final rule amended the FAR to implement a revision by the United States Trade Representative to the list of least developed countries that are designated countries under the Trade Agreements Act of 1979. 

FAR Case 2013-006 (Update to Biobased Reporting Requirements): A final rule amended the FAR to revise the biobased reporting clause to require the contractor to submit the annual biobased report to a new governmentwide Web site instead of the agency environmental point of contact. 

FAC 2005-70

FAC 2005-70 included the following two items:

FAR Case 2013-015: An interim rule amended the FAR to implement a statutory pilot program enhancing whistleblower protections for contractor employees. DFARS Case 2013-D010 made similar amendments to the DFARS.

FAR Case 2013-017: A related interim rule amended the FAR to address the allowability of legal costs incurred by a contractor or subcontractor related to a whistleblower proceeding commenced by the submission of a complaint of reprisal by the contractor's or subcontractor's employee. DFARS Case 2013-D022 made similar changes to the DFARS. 

FAC 2005-71

FAC 2005-71 included the following two items (plus some editorial changes to the FAR):

FAR Case 2012-031: A final rule amended the FAR to implement the policy provided by OMB Memoranda M–12–16, dated July 11, 2012, and M–13–15, dated July 11, 2013, by incorporating a new clause to provide accelerated payments to small business subcontractors.

FAR Case 2013-019: A final rule amended the FAR to add Croatia as a new designated country under the World Trade Organization Government Procurement Agreement.

FAC 2005-72

FAC 2005-72 included the following four items.

FAR Case 2010-010: Effective January 30, 2014, a final rule amended the FAR to implement a section of the Consolidated Appropriations Act, 2010, specifically, to require service contractors for executive agencies, except where DoD has fully funded the contract or order, to submit information annually in support of agency-level inventories for service contracts. 

FAR Case 2009-024: Effective January 30, 2014, this final rule amended the FAR to update and clarify the priority of sources of supplies and services for use by the Government. 

FAR Case 2013-005: A final rule adopted, without change, the prior interim rule amending the FAR to address concerns raised in an opinion from the DOJ's Office of Legal Counsel involving the use of unrestricted, open-ended indemnification clauses in acquisitions for social media applications.   

FAR Case 2013-021: Effective January 1, 2014, a final rule amended the FAR to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. A parallel rule amended the DFARS to reflect these changes. See DFARS Case 2013-D032.

 

Other Proposed FAR Revisions

FAR Case 2012-014: A proposed rule would make extensive revisions to the FAR (i) to implement several recent SBA revisions of  the small business size and small business status protest and appeal procedures, and (ii) to restructure sections of the FAR that address small business status protest and appeal procedures in order to provide uniformity to the protest and appeals guidance provided at FAR 19.306 (protesting a firm’s status as a HUBZone small business concern), FAR 19.307 (protesting a firm’s status as an SDVOSB), and FAR 19.308 (protesting a firm’s status as an economically disadvantaged women-owned small business concern or women-owned small business concern). The proposed rule also updates the protest and appeals guidance found at FAR 19.302 (protesting a small business representation or rerepresentation).

FAR Case 2012-016: A proposed rule would amend the FAR to to clarify contractor and subcontractor responsibilities to obtain workers’ compensation insurance or to qualify as a self-insurer, and other requirements, under the terms of the Longshore and Harbor Workers’ Compensation Act as extended by the Defense Base Act. 

FAR Case 2012-024: A proposed rule would amend the FAR (i) to require the use of Commercial and Government Entity (CAGE) codes, including NATO CAGE (NCAGE) codes for foreign entities, for awards valued at greater than the micro-purchase threshold and (ii) to require offerors, if owned or controlled by another business entity, to identify that entity during System for Award Management (SAM) registration. 

FAR Case  2011-023: A proposed rule would amend the FAR to remove all references to OFPP Pamphlet No. 7 ("Use of Irrevocable Letters of Credit") and also to provide updated sources of data required to verify the credit worthiness of a financial entity issuing or confirming an irrevocable letter of credit.

FAR Case 2012-023: A proposed rule would amend the FAR to implement a uniform Procurement Instrument Identification (PIID) numbering system, which will require the use of Activity Address Codes (AACs) as the unique identifier for contracting offices and other offices, in order to standardize procurement transactions across the Federal Government. 

FAR Case 2012-028: A proposed rule would amend the FAR (i) to limit the time periods allowed for contractor comments on past performance evaluations and (ii) to make past performance evaluations available to source selection officials sooner.

FAR Case 2013-001: A proposed rule would amend the FAR to implement E.O. 13627 and Title XVII of the National Defense Authorization Act for Fiscal Year 2013 by strengthening protections against trafficking in persons in federal contracts. Another proposed rule would make conforming and clarifying changes to the DFARS.

FAR Case 2012-032: A proposed rule would amend the FAR to clarify when to use higher-level quality standards in solicitations and contracts, and to update the examples of higher-level quality standards by revising obsolete standards and adding two new industry standards that pertain to quality assurance for avoidance of counterfeit items.

Department of Defense FAR Supplement (DFARS)

Final Rules

DFARS Case 2012-D015: A final rule adopted, with changes, the interim rule amending the DFARS procedures for the acquisition of tents and other temporary structures.

DFARS Case 2012-D006: A final rule amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2009 and to expand coverage of contractor requirements and responsibilities relating to alleged crimes by or against contractor personnel.

DFARS Case 2009-D002: A final rule adopted, with changes, the prior interim rule amending the DFARS to conform to the FAR regarding policy and procedures related to the Electronic Subcontracting Reporting System.  

DFARS Case 2011-D042: A final rule amended 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-D032: A final rule adopted, without change, the prior interim rule amending the DFARS to implement the United States-Colombia Trade Promotion Agreement, a free trade agreement that provides for mutually non-discriminatory treatment of eligible products and services from Colombia.

DFARS Case 2012-D025: Another final rule adopted, without change, the prior interim rule amending the DFARS to implement the United States-Korea Free Trade Agreement

DFARS Case 2012-D041: A final rule amended the DFARS to to revise the definition of "produce" as it applies to specialty metals.

DFARS 2009-D031: This final rule adopted, with changes, a prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2010, which provides authority for 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 non-disclosure agreement having certain restrictions and remedies.

DFARS Case 2012-D053: A final rule amended the DFARS to reflect the joining of the CCR, ORCA, and EPLS databases into the SAM database.

DFARS Case 2009-D031: A final rule adopted, with changes, a prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2010, which provides authority for 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 non-disclosure agreement having certain restrictions and remedies.

DFARS Case 2012-D034: DoD adopted as final, with changes, the interim rule amending the DFARS to implement requirements of the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation and the Security Cooperation Act of 2010 regarding export control regulations between the United States and the United Kingdom. The final rule also implements the Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation.

DFARS Case 2012-D047: This final rule made various amendments to the DFARS to remove obsolete and redundant references and to harmonize the DFARS with the FAR in reflecting statutory changes related to competition requirements for the acquisition  of services using multiple award contracts. 

DFARS Case 2011-D056: A final rule revised the DFARS to simplify prescriptions for provisions and clauses that are applicable to the acquisition of commercial items and to specify the flowdown of clauses to commercial subcontracts.

DFARS Case 2013-D019: A final rule amended the DFARS to revise the list of least developed countries that are designated countries under the Trade Agreements Act of 1979 by (i) changing the name of East Timor to Timor-Leste; (ii) removing Maldives; and (iii) adding South Sudan (to be distinguished from Sudan, against which the United States continues to impose sanctions).

DFARS Case 2012-D054: A final rule amended the DFARS to provide guidance relating to the release of fundamental research information.

DFARS Case 2013-D006: A final rule amended the DFARS to remove the Director of Defense Security Cooperation Agency from the approval process for waiver or reduction of charges for the use of Government property on work for foreign governments or international organizations. 

DFARS Case 2013-D031: A final rule amended the DFARS to add Croatia as a new designated country under the World Trade Organization Government Procurement Agreement.  

DFARS Case 2012-D044: A final rule adopted, with changes, the interim rule amending the DFARS to implement the United States--Panama Trade Promotion Agreement, which provides for mutually non-discriminatory treatment of eligible products and services from Panama.  

DFARS Case 2013-D001: A final rule amended the DFARS to further implement DoD policy relating to competitive acquisitions in which only one offer is received, providing additional exceptions, and further addressing requests for data other than certified cost or pricing data from the Canadian Commercial Corporation. 

DFARS Case 2013-D037: A final rule amended the DFARS to remove coverage on contractors performing private security functions that is now covered in the FAR.

DFARS Case 2011-D039: A final rule amended the DFARS to add a new subpart 204.73 and associated contract clause to address the requirements for safeguarding unclassified controlled technical information. 

DFARS Case 2012-D048: A final rule amended the DFARS to address the Contracting Officer's role in assisting the DoD implementing agency in the preparation of the letter of offer and acceptance for a foreign military sales program that will require an acquisition.

DFARS Case 2012-D038: A final rule amended the DFARS to make it clear that fringe benefit costs are unallowable if they are contrary to (i) law, (ii) an employer-employee agreement, or (iii) an established policy of the contractor. 

DFARS Case 2011-D055: A final rule amended the DFARS to update and clarify requirements for unique identification and valuation of items delivered under DoD contracts.

Interim Rules

DFARS Case 2013-D009: An interim rule amended the DFARS to implement two sections of the National Defense Authorization Act for Fiscal Year 2013 that (i) require compliance with domestic source restrictions in the case of any textile components supplied by DoD to the Afghan National Army or the Afghan National Police for purposes of production of uniforms, and (ii) eliminate the application of the enhanced authority to acquire products and services from Iraq. 

DFARS Case 2012-D036: An interim rule amends the DFARS to implement a section of the National Defense Authorization Act regarding private sector notification of in-sourcing actions. 

DFARS Case 2012-D050: An interim rule amended the DFARS to implement a section of the National Defense Authorization Act (NDAA) for FY 2011, as amended by the NDAA for FY 2013, which allows DoD to consider the impact of supply chain risk in specified types of procurements related to national security systems.

DFARS Case 2014-D006: An interim rule amended the DFARS to clarify rules of origin under trade agreements for photovoltaic devices to be utilized under covered DoD contracts, as required by a section of the National Defense Authorization Act for Fiscal Year 2011. Comments are due by February 18, 2014.

Proposed Rules

DFARS Case 2012-D027: DoD initially proposed to amend the DFARS to implement a section of the National  Defense Authorization Act for Fiscal Year 2012, which requires DoD to take steps to encourage contractors to develop science, technology, engineering, and mathematics (STEM) programs, but later withdrew the proposal. 

DFARS Case 2012-D038: A proposed rule would amend the DFARS to explicitly state that fringe benefit costs incurred or estimated that are contrary to law, employer-employee agreements, or an established policy of the contractor are unallowable. 

DFARS Case 2012-D055: A proposed rule would amend the DFARS to partially implement a section of the National Defense Authorization Act for Fiscal Year 2012 and a section of the National Defense Authorization Act for Fiscal Year 2013 relating to the detection and avoidance of counterfeit electronic parts. 

DFARS Case 2012-D035: A proposed rule would amend the DFARS to provide guidance to contractors for the submittal of forward pricing rate proposals. 

DFARS Case 2013-D001: A proposed rule would amend the DFARS (i) to further implement DoD policy relating to competitive acquisitions in which only one offer is received, providing additional exceptions, and (ii) to further address requests for data other than certified cost or pricing data from the Canadian Commercial Corporation. 

DFARS Case 2012-D048: A proposed rule would amend the DFARS to address the Contracting Officer's role in assisting the DoD implementing agency in the preparation of the letter of offer and acceptance for foreign military sales programs that will require an acquisition. 

DFARS Case 2013-D014: A proposed rule would amend the DFARS (i) to create an overarching prescription for the set of contract financing related clauses with one or more alternates; (ii) to add a separate prescription for the basic clause as well as the alternate; and (iii) to include the full text of the clause alternate. 

DFARS Case 2013-D004: A proposed  rule would amend the DFARS (i) to create an overarching prescription for each set of quality assurance-related provisions/clauses with one or more alternates; and (ii) to include the full text of each provision and/or clause alternate. 

DFARS Case 2012-D057: A proposed rule would amend the DFARS (i) to create an overarching prescription for each set of transportation-related provisions/clauses with one or more alternates, (ii) to add a separate prescription for the basic clause as well as each alternate, and (iii) to include the full text of each provision and/or clause alternate. 

DFARS Case 2013-D007: A proposed rule would make conforming and clarifying changes to the DFARS to implement E.O. 13627 and Title XVII of the National Defense Authorization Act for Fiscal Year 2013 by strengthening protections against trafficking in persons in federal contracts.

DFARS Case 2013-D015: A proposed rule would amend the DFARS to align it with revisions to the DoD Instruction on operational contract support.

DFARS Case 2013 D035: A proposed rule would amend DFARS Part 212 (Acquisition of Commercial Items) to clarify the applicability of DFARS 252.211–7008 ( Use of Government-Assigned Serial Numbers) and DFARS 252.232–7006 ( Wide Area WorkFlow Payment Instructions) to acquisitions of commercial items by adding them to the list at 212.301(f) and revising the clause prescriptions to require their inclusion in solicitations and contracts for acquisitions of commercial items using FAR Part 12 procedures. 

DFARS Case 2013-D026: A proposed rule would amend the DFARS (i) to create an overarching prescription for the research and development-related clause with an alternate, (ii) to add a separate prescription for the basic clause and for the alternate, and (iii) to include in the regulation the full text of the alternate clause. 

DFARS Case Case 2013-D020: A proposed rule would amend the DFARS to remove the DoD-unique list of nonavailable articles because these items have been found to be either available domestically or are not used by DoD. 

 

Other Agencies 

Department of Agriculture

The USDA (i) first withdrew the rule entitled "Designation of Product Categories for Federal Procurement," originally published April 1, 2013, at 78 FR 19393 (which amended the Guidelines for Designating Biobased Products for Federal Procurement to add eight sections to designate product categories within which biobased products will be afforded Federal procurement preference) because the original rule was published prematurely due to an oversight in the development process, then, later, (ii) amended the Guidelines again, to add the eight sections designating product categories within which biobased products will be afforded a federal procurement preference. 

Bureau of Industry and Security (Department of Commerce)

As part of the President's Export Control Reform initiative and in coordination with one another, the State Department and the Department of Commerce's Bureau of Industry and Security (BIS) published final rules making multiple revisions to delete from the ITAR those aircraft and gas turbine engines that the President has determined no longer require control under the USML and to add provisions for their control under the EAR. 

Similarly, the BIS proposed to amend the CCL to cover the items no longer covered under Category IV of the USML.  Concurrently, the State Department proposed to amend the ITAR by revising Category IV (launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines) of the USML to describe more precisely the articles warranting control under the USML. 

The BIS issued an interim final rule to make the following items subject to the EAR and to impose on those items a license requirement for export and reexport to all destinations, except Canada, because the items provide at least a significant military or intelligence advantage to the United States or foreign policy reasons justify control:  specified biosensor systems, "software," and "technology" under ECCNs 0A521, 0D521 and 0E521, respectively, on the CCL.

The State Department and the BIS issued proposed rules amending the ITAR and the EAR, respectively, to move certain spacecraft and related items from control under the USML to coverage under the CCL

The BIS issued a final rule revising the CCL in the EAR to implement changes made to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies (WA List)  at the December 2012 WA Plenary Meeting. The rule harmonizes the CCL with the changes made to the WA List at the Plenary Meeting by revising ECCNs controlled for national security reasons in each category of the CCL, except category 8, as well as amending the General Software  Note, WA reporting requirements, and definitions section in the EAR. BIS is adding unilateral controls to the CCL for specific software and technology for aviation control systems, which the WA agreements removed from the WA List, i.e., EAR national security controls.

The BIS and the Department of State issued parallel rules amending the coverage of the EAR and the ITAR's USML, respectively, concerning, inter alia, certain military vehicles and related items; vessels of war and related items; submersible vessels, oceanographic equipment and related items; and auxiliary and miscellaneous items.  

The BIS revised (i) six Export Control Classification Numbers (ECCNs) (1C011, 1C111, 1C116, 9A101, 9B105 and 9E101) and one defined term (the definition of "payload") in the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the October 2012 Plenary in Berlin, Germany, and at the MTCR Reinforced Point of Contact (RPOC) meeting in Paris, France, in December 2011; and (ii) ECCNs 7E004 and 9D004 to better align the Commerce Control List (CCL) with the MTCR Annex and past MTCR agreements.

The BIS published a final rule, which made extensive changes to the EAR in order to clarify many sections of the CCL. 

The BIS and the State Department made multiple corrections to recently-published changes to the EAR and the ITAR, respectively.

In order to permit time for additional comments, the BIS and the State Department published revisions to previously proposed rules amending the CCL and the USML, respectively, with respect to military electronics and certain superconducting and cryogenic equipment and related items the President has determined no longer warrant control under the USML.

The BIS proposed to amend the EAR by: (i) requiring exporters to file an Automated Export System (AES) record for all exports subject to the EAR involving a party or parties to the transaction who are listed on the Unverified List (the UVL); (ii) suspending the availability of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL; (iii) requiring exporters, reexporters, and transferors to obtain a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) involving items subject to the EAR, but where the item does not require a license; (iv) publishing the UVL in the EAR; and (v) adding to the EAR the procedures to request removal or modification of a UVL entry. 

Defense Department

A final rule revised 32 C.F.R. Part 165 to update policy, responsibilities, and procedures for calculating and recouping nonrecurring costs on sales of items developed for or by the Department of Defense to non-U.S. Government customers so that all such costs related to the sale of the items are fully reimbursable by the non-U.S. Government. 

A final rule established the Defense Industrial Base ("DIB") Voluntary Cyber Security and Information Assurance Program, which enhances and supplements DIB participants’ capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems.

A final rule, effective January 2, 2014, superseded the prior interim rule and revised 32 C.F.R. Part 158 to establish policy, assign responsibilities, and provide procedures for operational contract support (OCS), including OCS program management, contract support integration, and integration of defense contractor personnel into contingency operations outside the United States.  

Department of Energy

The DOE revised its regulations concerning contractor legal management requirements at 10 C.F.R. Part 719 and associated parts of its acquisition regulation, the DEAR, to better monitor and control legal costs and to provide guidance to aid contractors and the Department in making determinations regarding the reasonableness of outside counsel costs, including the costs associated with litigation, for 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 its acquisition regulation (the DEAR) to add new subparts 925.71 and 970.2571 to set forth requirements concerning compliance with export control laws, regulations and directives applicable to the performance of DOE contracts.

The DOE proposed to amend the DEAR to make changes to conform to the FAR and to update, clarify and streamline text in certain DOE intellectual property and technology transfer clauses to make these DOE clauses consistent with recent changes to the FAR.

Department of the Interior

The Department of the Interior issued a final rule that supplements the FAR and the Department of the Interior Acquisition Regulation (DIAR) and implements procedures under the Buy Indian Act, which provides Indian Affairs with authority to set aside procurement contracts for Indian-owned and controlled businesses. 

Department of Justice

The DoJ amended its ATF regulations to remove the cross reference to the ITAR's USML; to clarify that the AG exercises delegated authority pursuant to the Arms Export Control Act (AECA) and Executive Order 13637 to designate defense articles and defense services as part of the statutory USML for purposes of permanent import controls, regardless of whether the Secretary of State controls such defense articles or defense services for purposes of export and temporary import; and to clarify that defense articles and defense services controlled pursuant to the Attorney General’s delegated AECA authority are part of the USML (along with those that are controlled for export and temporary import by the Secretary of State), but that the list of defense articles and defense services controlled by the AG is labeled the USMIL to distinguish it from the list of defense articles and defense services in the ITAR that are controlled by the Secretary of State. 

EPA

The EPA made several revisions to the "Printing" clause in its acquisition regulation (the EPAAR).

Federal Accounting Standards Advisory Board (FASAB) 

The Federal Accounting Standards Advisory Board (FASAB) issued Statement of Federal Financial Accounting Standard 44, Accounting for Impairment of General Property, Plant, and Equipment Remaining in Use, the full text of which is available here

General Services Administration (GSA)

The GSA proposed to amend its acquisition regulation (the GSAR) to add a "Modifications (Federal Supply Schedule)" clause, and an Alternate I version of the clause that will require electronic submission of modifications under FSS contracts managed by GSA.

Health and Human Services (HHS)

HHS proposed to amend its FAR Supplement--the HHS Acquisition Regulation (HHSAR)--by adding two contract clauses: "Patent Rights--Exceptional Circumstances" and "Rights in Data--Exceptional Circumstances."

Labor

The OFCCP rescinded the following two guidance documents in order to improve OFCCP’s ability to enforce the Executive Order 11246's ban on pay discrimination and to eliminate a rarely used, ineffective program: (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.

The OFCCP published extensive revisions to its regulations prohibiting discrimination against (and requiring covered contractors and subcontractors to take affirmative actions regarding) Disabled Veterans, Veterans of the Vietnam Era, Disabled Veterans, Recently Separated Veterans, Active Duty Wartime or Campaign Badge Veterans, and Armed Forces Service Medal Veterans. Te OFCCP also revised its regulations concerning nondiscrimination and affirmative action obligations concerning individuals with disabilities.  

NASA

NASA proposed to amend the NASA FAR Supplement to incorporate a proposal adequacy checklist for proposals in response to solicitations that require the submission of certified cost or pricing data.

NASA published a direct final rule, to be effective February 21, 2014, unless adverse comments are received by January 22, which amends 14 C.F.R. Part 1204 (i) to make administrative changes to correct organizational information and citations that have changed in a regulation that establishes NASA’s small business policy, (ii) to outline the delegation of authority to implement this policy, and (iii) to include a reference to NASA’s general policy for small business programs and NASA small business subcontracting plan and reporting information.

Office of Personnel Management

The OPM issued a proposed rule that would update the 2007 NAICS codes currently used in Federal Wage System wage survey industry regulations with the 2012 NAICS revisions published by the Office of Management and Budget.

Small Business Administration (SBA)

The SBA amended its regulations to implement Section 1697 of the National Defense Authorization Act for Fiscal Year 2013, which removed the statutory limitation on the dollar amount of a contract that women-owned small businesses can compete for under the Women-Owned Small Business (WOSB) Program, so that contracting officers may now set-aside contracts under the WOSB Program at any dollar level, as long as the other requirements for a set-aside under the program are met.

The SBA increased the small business size standards for (i) 11 industries in NAICS Sector 11 (Agriculture, Forestry, Fishing and Hunting) (while retaining the current standards for five industries and two exceptions to NAICS 115310); (ii) 17 industries in NAICS Sector 71 (Arts, Entertainment, and Recreation) (while retaining the current size standards for the remaining eight industries in that Sector); (iii) 36 industries in NAICS Sector 52 (Finance and Insurance) and for two industries in NAICS Sector 55 (Management of Companies and Enterprises); and (iv) three of the four industries in NAICS Subsector 213 (Support Activities for Mining). In addition, the SBA is changing the basis for measuring size from assets to annual receipts for one industry in NAICS Sector 52, namely, NAICS 522293 (International Trade Financing). Moreover, the SBA is deleting NAICS 525930 (Real Estate Investment Trusts) from its table of size standards because the OMB added the financial activities formerly included in NAICS 525930 to NAICS 531110, NAICS 531120, NAICS 531130, NAICS 531190, and NAICS 525990.

The SBA amended its regulations governing small business subcontracting to implement portions of the Small Business Jobs Act of 2010 by: (i) adding a section providing that, for a ‘‘covered contract’’ (a contract for which a small business subcontracting plan is required), a prime contractor must notify the Contracting Officer in writing whenever, during contract performance, the contractor does not employ a small business subcontractor that was used in preparing its bid or proposal; (ii) adding a provision requiring a prime contractor to notify a Contracting Officer in writing whenever the prime contractor reduces payments to a small business subcontractor or when payments to a small business subcontractor are 90 days or more past due; (iii) making it clear that the Contracting Officer is responsible for monitoring and evaluating small business subcontracting plan performance; (iv) delineating which subcontracts must be included in subcontracting data reporting, which subcontracts should be excluded, and the way subcontracting data is reported; (v) updating various subcontracting regulations, including changing subcontracting plan thresholds and referencing the electronic subcontracting reporting system (eSRS); and, finally, (vi) adding a provision to the regulations which addresses subcontracting plan requirements and credit towards subcontracting goals in connection with multiple award multi-agency, FSS, MAS and government-wide acquisition ID/IQ contracts. 

The SBA amended its size regulations to implement statutory provisions establishing that (i) 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) 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) an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument; and (iv) concerns that fail to update their size or status in the ORCA database or a successor thereto (such as the SAM database) at least annually shall no longer be identified in the database as small or some other socioeconomic status, until the representation is updated. The rule also amends SBA’s regulations to clarify when size is determined for purposes of entry into the 8(a) Business Development, HUBZone and Small Disadvantaged Business (SDB) programs.

The SBA is amending its regulations governing small business contracting procedures (i) to establish policies and procedures for setting aside, partially setting aside and reserving Multiple Award Contracts for small business concerns and for setting aside task and delivery orders for small business concerns under Multiple Award Contracts, (ii) to address how it will determine size under certain agreements and when recertification of status will be required, and (iii) to establish a new definition of consolidation and reorganize its prime contracting assistance regulations. 

Effective January 22, 2014, SBA increased two small business size standards in NAICS Sector 23 (Construction) and retaining the current standards for the 30 remaining industries in that Sector. Specifically, SBA increased the size standards for NAICS 237210 (Land Subdivision) from $7 million in average annual receipts to $25.5 million, and for Dredging and Surface Cleanup Activities, a sub-industry category (or an "exception") under NAICS 237990 (Other Heavy and Civil Engineering Construction) from $20 million to $25.5 million.

The SBA partially rescinded the general class waiver for aerospace ball and roller bearings and replacing it with a class waiver for 305 aerospace ball and roller bearings.

The SBA proposed to rescind the class waiver from the Nonmanufacturer Rule for NAICS code 332991 (Aerospace Ball and Roller Bearings) PSC 3110. The SBA also announced its intention to rescind a class waiver of the Nonmanufacturer Rule for "All Other Miscellaneous Electrical Equipment and Component Manufacturing" under NAICS code 335999 because (i)  there is at least one small business manufacturer of the various supplies listed under this category that has conducted business with the Federal Government within the previous 24 months, and (ii) there are other small business manufacturers for the various items listed under this category. 

State Department

The State Department amended the ITAR (i) to implement the treaty between the United States and Australia concerning Defense trade cooperation, (ii) to identify via a supplement to the ITAR the defense articles and defense services that cannot be exported pursuant to the licensing exemption created by the treaty, and (iii) to make other corrections to the supplement.

The State Department proposed to amend Category XVI of the ITAR (nuclear weapons related articles) by removing most items currently covered by that category, retaining only tools that model or simulate the environments generated by nuclear detonations or the effects of these environments on systems, subsystems, components, structures, or humans, and technical  data and defense services directly related to those defense articles. Nuclear radiation detection and measurement devices currently controlled in paragraph (c) would become subject to the jurisdiction of the Department of Commerce under existing Export Control Classification Number (ECCN) 1A004.c.2 or 2A291.e.

The Department also proposed to amend the ITAR by revising Category IV (launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines) of the USML to describe more precisely the articles warranting control on the USML. Concurrently, the BIS proposed to amend the CCL to cover the items no longer covered under Category IV of the USML. 

The State Department and the BIS, in tandem, issued proposed rules amending the ITAR and the EAR, respectively, to move certain spacecraft and related items from control under the USML to coverage under the CCL

The State Department and the BIS also issued parallel rules, effective January 6, 2014, amending the coverage of the EAR and the ITAR's USML, respectively, concerning, inter alia, certain military vehicles and related items; vessels of war and related items; submersible vessels, oceanographic equipment and related items; and auxiliary and miscellaneous items.  

The State Department amended the ITAR to implement a statutory provision regarding the exemption from licensing for export to Canada of firearms components not exceeding $500 in value.

The State Department published an interim final rule, effective October 25, relating to brokers, brokering activities, and related provisions of the ITAR in order to clarify (i) registration requirements, (ii) the scope of brokering activities, (iii) prior approval requirements and exemptions, (iv) procedures for obtaining prior approval and guidance, and (v) reporting and recordkeeping of such activities.

In order to permit time for additional comments, the BIS and the State Department published revisions to previously proposed rules amending the CCL and the USML, respectively, with respect to military electronics and certain superconducting and cryogenic equipment and related items the President has determined no longer warrant control under the USML.

A proposed rule would update the Department of State Acquisition Regulation (DOSAR) to conform to recent FAR changes and add a new DOSAR clause and provision regarding reporting certain categories of government-furnished and contractor-acquired property.

Veterans Affairs

The VA's OSDBU published an advance notice of proposed rulemaking in which it solicited suggestions as to how the VA's VOSB verification regulations could be improved to  provide greater clarity, to streamline the program, and to encourage more VOSBs to apply for verification.

The VA adopted as final, without change, the prior interim rule requiring re-verification of VOSB or SDVOSB status only once every two years.

The VA published an interim final rule amending its adjudication procedures for SDVOSB and VOSB status protests in order to provide that VA’s Director, Center for Veterans Enterprise (CVE), shall initially adjudicate SDVOSB and VOSB status protests, and to provide that protested businesses, if they are denied status, may appeal to VA’s Executive Director, OSDBU.

 

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