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2014 Procurement Review--Statutes, Regulations, Executive Orders



Contents

                           

    Statutes       

Executive Orders and Related Publications

By means of Executive Order 13658, the President has, inter alia, established a minimum wage of $10.10 per hour for federal contractors beginning in January 2015, with a provision for regular cost of living adjustments thereafter.

With Executive Order 13672, the President amended prior Executive Orders to make clear that discrimination  based on sexual orientation or gender identity is prohibited in federal procurement and by federal contractors. 

Executive Order 13673 requires, inter alia, the promulgation of regulations to ensure that, for procurements in excess of $500,000, offerors shall be required to disclose any administrative or judicial determinations of violations of labor laws within the past three years and any steps they have taken to correct such violations, which information shall be used as part of the agency's responsibility determination. 

Executive Order 13665 prohibits retaliation for the disclosure of compensation information.

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-73

Federal Acquisition Circular (FAC) 2005-73 included only the following item (plus technical amendments):

FAR Case 2011-018: This final rule amended the FAR to conform references throughout the FAR to the new Positive Law Codification of Title 41, United States Code, "Public Contracts" and to make other conforming changes. 

FAC 2005-74

FAC 2005-74 included the following five items:

FAR Case 2012-024: A final rule amended the FAR to require the use of CAGE codes, including NATO CAGE codes for foreign entities, for awards valued at greater than the micro-purchase threshold. 

FAR Case 2014-016: Two interim rules were adopted as final, with changes, which amend the FAR to revise the clause on Recovery Act reporting procedures in order to implement a section of the Consolidated Appropriations Act, 2014, by repealing the reporting requirements of the American Recovery and Reinvestment Act of 2009.

FAR Case 2012-017: A final rule adopted, without change, the prior interim rule that amended the FAR to implement a section of the National Defense Authorization Act of 2012, which expands the application of the senior executive compensation benchmark to a broader group of contractor employees on contracts awarded by DoD, NASA, and the Coast Guard. The senior executive compensation benchmark amount limits the reimbursement of contractor employee compensation costs.  

FAR Case 2012-028: A final rule amended the FAR to implement provisions of law that change the period allowed for contractor comments on past performance evaluations and require that past performance evaluations be made available to source selection officials sooner.

FAR Case 2012-018: A final rule amended the FAR to clarify contractors' and subcontractors' 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.

FAC 2005-75

FAC 2005-75 included the following three items:

FAR Case 2013-016: An interim rule amended the FAR to implement changes in the Electronic Product Environmental Assessment Tool (EPEAT®) registry. 

FAR Case 2013-010: A final rule adopted, without change, the prior interim rule amending 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 2014-012: An interim rule amended the FAR to implement section 702 of the Bipartisan Budget Act of 2013, specifically (i) to revise the allowable cost limit relative to the compensation of contractor and subcontractor employees; and (ii) to implement the possible exception to this allowable cost limit for scientists, engineers, or other specialists upon an agency determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities. 

FAC 2005-76

FAC 2005-76 included the following three items, plus technical amendments:

FAR Case 2014-013: An interim rule amended the FAR to implement final rules issued by the DOL's OFCCP relating to equal opportunity and affirmative action for veterans and individuals with disabilities. 

FAR Case 2012-014: A final rule amended the FAR to implement the SBA's revision of the small business size and status protest and appeal procedures. 

FAR Case 2013-017: A final rule adopted with changes, the prior interim rule amending the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2013 that addresses 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 or subcontractor employee. 

FAC 2005-77

FAC 2005-77 included the following three items:

FAR Case 2009-016: A final rule amended the FAR (i) to remove certain coverage involving procurements with small disadvantaged business (SDB) concerns and certain institutions of higher education that is based on expired statutory authority that has been found to be unconstitutional by the Court of Appeals for the Federal Circuit, and (ii) to harmonize the FAR with current statutory authorities. Similarly, with DFARS Case 2011-D038, DoD issued an interim rule amending the DFARS to implement changes resulting from the expiration of 10 U.S.C. 2323, which was the underlying statutory authority for DoD’s SDB program, including the establishment of a specific goal within the overall 5 percent SDB goal for the award of prime contracts and subcontracts to historically black colleges and universities (HBCUs) and minority institutions (MIs). DoD’s fundamental policy to provide the maximum practicable number of contracting opportunities for SDB concerns and, in defense-related research and development, the maximum number of opportunities for HBCUs and MIs, is unchanged by this rule.  

FAR Case 2011-023: A final rule amended the FAR (i) to remove all references to OFPP Pamphlet No. 7 (Use of Irrevocable Letters of Credit) and (ii) 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 final rule amended 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. 

FAC 2005-78

FAC 2005-78  included the following four items, all of which are effective December 26 (plus technical amendments):

FAR Case 2014-001: A final rule amended the FAR to standardize the incorporation by reference of representations and certifications. 

FAR Case 2014-011: A final rule amended the FAR to implement the Streamlining Claims Processing for Federal Contractor Employees Act which amends the United States Code (U.S.C.) to transfer certain functions from the GAO to the DOL relating to the processing of claims for the payment of workers who were not paid appropriate wages under certain provisions of the U.S.C. 

FAR Case 2014-006: A final rule amended the FAR to delete obsolete provisions related to year 2000 compliance.

Far Case 2012-032: A final rule amended the FAR to clarify when to use higher-level quality standards in solicitations and contracts. 

FAC 2005-79

FAC 2005-79 included the following two items:

FAR Case 2015-003: An interim rule amended the FAR to implement the Executive Order Establishing a Minimum Wage for Contractors and a final rule on that subject issued by the Department of Labor. Comments are also due by February 13.

FAR Case 2014-017: Another interim rule amended the FAR to address the continuing governmentwide statutory prohibition on the use of appropriated (or otherwise made available) funds for contracts with any foreign incorporated entity that is an inverted domestic corporation or any subsidiary of such entity.

Other Proposed FAR Revisions

FAR Case 2012-022: A proposed rule would amend the FAR to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act, and to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant can exit the 8(a) Business Development program.

FAR Case 2014-006: A proposed rule would amend the FAR to delete obsolete regulations relating to the year 2000 compliance.

FAR Case 2013-022: A proposed rule would amend the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2013 to extend the limitations on contractor employee personal conflicts of interest to apply to the performance of all functions that are closely associated with inherently governmental functions and contracts for personal services.

FAR Case 2014-001: A proposed would would amend the FAR to standardize the incorporation by reference of representations and certifications in contracts.

FAR Case 2013-002: A proposed rule would amend the FAR to require expanded reporting of nonconforming items.

FAR Case 2013-012: A proposed rule would amend the FAR to implement section 802 of the National Defense Authorization Act of Fiscal Year 2013, which establishes additional requirements relative to the review of, and justifications for, pass-through contracts. 

FAR Case 2012-014: A proposed rule would amend the FAR to establish a uniform line item identification structure in federal procurement, in order to to improve the accuracy, traceability, and usability of procurement data.

FAR Case 2014-022: A proposed rule would amend the FAR to to further implement the inflation adjustment of acquisition-related dollar thresholds. 

FAR Case 2013-020: A proposed rule would amend the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2013 to include in the Federal Awardee Performance and Integrity Information System (FAPIIS), to the extent practicable, the identification of any immediate owner or subsidiary and all predecessors of an offeror that held a federal contract or grant within the last three years, the objective being to provide a more comprehensive understanding of the performance and integrity of a firm before awarding it a federal contract. 

FAR Case 2015-006: A proposed rule would amend the FAR to require additional actions by contractors to assist contracting officers in ensuring compliance with the governmentwide statutory prohibition on the use of appropriated (or otherwise made available) funds for contracts with any foreign incorporated entity that is an inverted domestic corporation or to any subsidiary of such entity.

FAR Case 2014-020: A proposed rule would revise the FAR to clarify that a determination of exceptional circumstances is needed when a noncompetitive contract awarded on the basis of unusual and compelling urgency exceeds one year, either at the time of award or due to post-award modifications.

Department of Defense FAR Supplement (DFARS)

Final Rules

DFARS Case 2013-D033: A final rule revised the DFARS to remove and reserve item 19 of the solicitation provision at DFARS 252.215–7009 (Proposal Adequacy Checklist), which required price analyses for all commercial items offered that are not available to the general public, because DOD has now determined this item is duplicative and is addressed by other requirements.

DFARS Case 2013-D009: DoD adopted as final, with changes, an interim rule amending the DFARS to implement two sections of the National Defense Authorization Act for Fiscal Year 2013 that (i) require compliance with domestic source restrictions for 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 2013-D010: DoD adopted as final, with changes, an interim rule amending the DFARS to implement statutory amendments to whistleblower protections for contractor and subcontractor employees.

DFARS Case 2011-D045: DoD issued a final rule amending Part 232 of the DFARS to provide detailed guidance and instructions on the use of the performance-based payments analysis tool, which is a cash-flow model for evaluating alternative financing arrangements, and is required to be used by all contracting officers contemplating the use of performance-based payments on fixed-price type contract awards. 

DFARS Case 2013-D004: This final rule amended the DFARS  to create an overarching prescription in Part 246 for a quality assurance-related clause with two alternates. The rule also included separate prescriptions for the basic and alternate clauses and includes the full text of each alternate.

DFARS Case 2013-D026: This final rule amended the DFARS to create an overarching prescription in Part 235 for a research and development-related clause with an alternate. The rule also included separate prescriptions for the basic and alternate clause and includes the full text of the alternate clause.

DFARS Case 2014-D007: This rule amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2014 by extending the expiration date of the pilot program for the acquisition of military-purpose nondevelopmental items to December 31, 2019. 

DFARS Case 2013-D014: A final rule revised DFARS 252.232-7007 (Limitation of Government's Obligation) as part of DoD's project to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems.

DFARS Case 2012-D057: Another final rule revised transportation-related clauses throughout the DFARS as part of the same project to facilitate use of automated contract writing systems.

DFARS Case 2013-D023: This final rule amended the DFARS to remove coverage concerning contracting officer’s representative responsibilities that is procedural in nature. 

DFARS Case 2014-D006: This final rule adopted, without change, the prior interim rule that amends 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. 

DFARS Case 2012-D055: A final rule amended the DFARS in partial implementation of 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 2013 -D015: This final rule amended the DFARS (especially section 252.225) to harmonize it with DoD Instruction 3020.41, entitled "Operational Contract Support (OCS)."

DFARS Case 2013-D027: A final rule amended the DFARS to clarify the meaning of the phrase "congressional defense committees." 

DFARS Case 2012-D036: A final rule adopted, with changes, the prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 regarding private sector notification of in-sourcing actions. 

DFARS Case 2013-D035: A final rule amended the DFARS 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.  

DFARS Case 2013-D020: A final rule amended the DFARS to remove the DoD-unique list of domestically nonavailable articles because these items have been found to be either (i) available domestically or (ii) not used by DoD. 

DFARS Case 2013-D025: DoD issued a final rule amending the DFARS (i) to create an overarching prescription for a tax-related clause with an alternate and add a separate prescription for the basic clause; and (ii) to include  the full text of the alternate clause. 

DFARS Case 2014 D018: DoD issued a final rule amending the DFARS to delete an obsolete (expired) congressional reporting requirement concerning the ordering period for task and delivery order contracts.

DFARS Case 2013 D016: DoD adopted as final, with changes, the prior interim rule amending the DFARS (i) to implement section 811 of the National Defense Authorization Act for Fiscal Year 2013, which prohibits DoD from entering into cost-type contracts for production of major defense acquisition programs (MDAPs); and (ii) to make clear that the prohibition also applies to entering into cost reimbursement line items for the production of MDAPs.

DFARS Case 2013 D029: DoD issued a final rule amending the DFARS to incorporate policies and procedures concerning payment for contracts to be performed in Afghanistan. 

DFARS Case 2013-D013: DoD issued a final rule amending the DFARS sections concerning the prohibition on storage, treatment, and disposal of toxic or hazardous materials in order to (i) conform with them with the governing statute, (ii) amend the clause prescriptions, and (iii) update the basic and alternate contract clauses. 

DFARS Case 2013-D025: DoD issued a final rule amending the DFARS (i) to create an overarching prescription for a tax-related clause with an alternate and add a separate prescription for the basic clause; and (ii) to include  the full text of the alternate clause. 

DFARS Case 2014 D018: DoD issued a final rule amending the DFARS to delete an obsolete (expired) congressional reporting requirement concerning the ordering period for task and delivery order contracts.

DFARS Case 2013 D016: DoD adopted as final, with changes, the prior interim rule amending the DFARS (i) to implement section 811 of the National Defense Authorization Act for Fiscal Year 2013, which prohibits DoD from entering into cost-type contracts for production of major defense acquisition programs (MDAPs); and (ii) to make clear that the prohibition also applies to entering into cost reimbursement line items for the production of MDAPs.

DFARS Case 2013 D029: DoD issued a final rule amending the DFARS to incorporate policies and procedures concerning payment for contracts to be performed in Afghanistan. 

DFARS Case 2013-D013: DoD issued a final rule amending the DFARS sections concerning the prohibition on storage, treatment, and disposal of toxic or hazardous materials in order to (i) conform with them with the governing statute, (ii) amend the clause prescriptions, and (iii) update the basic and alternate contract clauses. 

DFARS Case 2014-D011: A final rule amended the DFARS to clarify the flowdown requirements for the DFARS clause entitled "Restriction on Acquisition of Certain Articles Containing Specialty Metals." 

DFARS Case 2014-D012: A final rule amended the DFARS to remove text regarding contracting officer responsibilities that are procedural in nature when purchasing ocean transportation services. 

DFARS Case 2014-D004: DoD issued a final rule amending the DFARS to revise and update clauses and their prescriptions for special contracting methods, major system acquisition, and service contracting to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems, including publication of the full text of each alternate, rather than only showing the paragraphs that differ from the basic clause. 

DFARS Case 2013-D005: DoD also issued a final rule amending the DFARS to create separate prescriptions for the basic clause as well as each alternate in each set of foreign acquisition-related provisions/clauses with one or more alternates and to include the full text of the alternate clauses.

DFARS Case 2013-D038: A final rule amended the DFARS to comply with the DoD Instruction that addresses the use of animals in DoD programs. 

DFARS Case 2015-D003: A final rule amended the DFARS to delete the requirement for DoD departments and agencies to certify every two years that no senior leader has performed multiple roles in the acquisition of a major weapon system or major service. 

DFARS Case 2015-D001: A final rule amended the DFARS to eliminate the requirement for quarterly reporting of actual contract performance outside the United States. 

DFARS Case 2014-D010: A final rule adopted, with minor changes, the prior interim rule that amended the DFARS to implement a section of the National Defense Authorization Act for FY 2014 that prohibits acquisition of commercial satellite services from certain foreign entities. 

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

DFARS Case 2014-D014: A final rule amended the DFARS to clarify and relocate text relating to state sponsors of terrorism (as identified by the Department of State), add an explicit representation, and conform the terminology. 

DFARS Case 2014-D013: A final rule amended the DFARS to remove duplicative CAGE code instructions and an associated clause. 

DFARS Case 2014-D016: A final rule adopted, without change, the prior interim rule amending the DFARS to implement sections of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014, which restricts use of military construction funds in various countries, including countries bordering the Arabian Sea.

Interim Rules

DFARS Case 2013-D016: An interim rule amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2013, which prohibits DoD from entering into cost-type contracts for production of major defense acquisition programs. 

DFARS Case 2012-D029: DoD issued an interim rule amending the DFARS to implement authority for DoD to allow its litigation support contractors to have access to "sensitive information," provided that those contractors are subject to certain restrictions on using and disclosing such information. 

DFARS Case 2014-D016: An interim rule amended the DFARS to implement those sections of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014, that restrict use of military construction funds in various countries, including countries bordering the Arabian Sea. 

DFARS Case 2014-D010: An interim rule amended the DFARS to implement a section of the National Defense Authorization Act for FY 2014 that prohibits the acquisition of commercial satellite services from certain foreign entities.

Proposed Rules

DFARS Case 2013-D029: DoD proposed to amend the DFARS to incorporate policies and procedures concerning payment for contracts for performance in Afghanistan. 

DFARS Case 2013-D013: DoD proposed to amend the DFARS to conform with statute, amend the clause prescriptions, and update the basic and alternate clause for the prohibition on storage, treatment, and disposal of toxic or hazardous materials. 

DFARS Case 2013-D005: DoD proposed to amend the DFARS (i) to create separate prescriptions for the basic clause (as well as each alternate) in each set of foreign acquisition-related provisions/clauses with one or more alternates, and (ii) to include the full text of each provision or clause alternate.

DFARS Case 2012:D051: DoD proposed to amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2008, specifically to require contractors to annually report service contract direct labor and corresponding dollar value data for prime contractors and subcontractors, using the Enterprise-wide Contractor Manpower Reporting Application (ECMRA) online database, at the end of the Government's fiscal year or at the end of contract performance, whichever comes first.

DFARS Case 2014-D004: A proposed rule would amend the DFARS to revise and update clauses and their prescriptions for special contracting methods, major system acquisition, and service contracting to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems.

DFARS Case 2013-D038: A proposed rule would amend the DFARS to comply with the DoD Instruction that addresses the use of animals in DoD programs. 

DFARS Case 2014-D008: A proposed rule would amend the DFARS to address DoD-unique requirements for defense contractors performing private security functions outside the United States. 

DFARS Case 2014-D003: A proposed rule would amend the DFARS to notify contractors of requirements relating to Afghan taxes.

DFARS Case 2014-D011: DoD proposed to amend the DFARS to clarify the flowdown requirements for DFARS clause 252.225–7009 ("Restriction on Acquisition of Certain Articles Containing Specialty Metals").

DFARS Case 2013-D025: DoD proposed to amend the DFARS (i) to create an overarching prescription for the "Tax Relief" clause with an alternate, (ii) to add a separate prescription for the basic clause, and (iii) to include in the regulation the full text of the alternate clause. 

DFARS Case 2012-D042: DoD proposed to amend the DFARS to ensure appropriate contractor accountability for adequate contractor business systems.

DFARS Case 2014-D014: A proposed rule would amend the DFARS to clarify and relocate coverage relating to state sponsors of terrorism (as identified by the Department of State), add an explicit representation, and conform the terminology.

DFARS Case 2014-D001: DoD proposed to amend the DFARS to require that scientific and technical reports be submitted in electronic format.

DFARS Case 2014-D019: DoD proposed to amend the DFARS to update the cancellation ceiling threshold for multiyear contracts and to correct statutory references. 

DFARS Case 2014-D022: DoD proposed to amend the DFARS to implement the statutory domestic source restrictions on acquisition of certain naval vessel components.

DFARS Case 2014-D009: DoD proposed to amend the DFARS to clarify that entering into a contract award may cause a small business to eventually exceed the applicable small business size standard.

DFARS Case 2014-D025: DoD proposed to amend the DFARS to implement certain statutory requirements for inflation adjustments of acquisition-related dollar thresholds.

DFARS Case 2014-D024: DoD proposed to amend the DFARS to identify the electronic Wide Area WorkFlow Energy Receiving Report as the equivalent of the paper forms for the Material Inspection and Receiving Report, for overland shipments, and the Material Inspection And Receiving Report, Tanker/Barge, for waterborne shipments.

 

DoD proposed  to amend the DFARS at Appendix A Part 2 to update the Rules of the Armed Services Board of Contract Appeals (ASBCA) by (i) revising and reordering the Rules for clarity and consistency, (ii) accounting for changes in technology, (iii) providing updated contact information, and (iv) adding two addendums.

Other Agencies 

Agriculture

The USDA  amended its regulations concerning Guidelines for Designating Biobased Products for Federal Procurement to incorporate statutory changes to section 9002 of the Farm Security and Rural Investment Act (FSRIA) that were effected when the Food, Conservation, and Energy Act of 2008 (FCEA) was signed into law on June 18, 2008. The USDA is also announcing that an additional rulemaking activity will be initiated to further amend the Guidelines to address the provisions of the recently signed Agricultural Act of 2014.

Bureau of Industry and Security (Department of Commerce)

The Commerce Department's Bureau of Industry and Security (BIS) (i) implemented four previously proposed rules and adding Export Administration Regulations (EAR) controls on energetic materials, personal protective equipment, shelters, military training equipment, articles related to launch vehicles, missiles, rockets, military explosives, and related items that the President has determined no longer warrant control on the United States Munitions List (USML); (ii) added EAR controls on items within the scope of the Munitions List (WAML) of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies that are not specifically identified on the USML or the Commerce Control List (CCL), but that were subject to USML jurisdiction; and (iii) moved certain items that were already subject to the EAR to the new Export Control Classification Numbers (ECCNs) created by this rule. This rule is being published in conjunction with the publication of a State Department's Directorate of Defense Trade Controls rule revising USML Categories IV, V, IX, X, and XVI to control those articles the President has determined warrant control in those categories of the USML. 

As part of the President's Export Reform Control effort, the State Department published an interim final rule amending the ITAR to revise Category XV (Spacecraft and Related Articles) of the USML to describe more precisely items warranting control under this category. Subsequently, the State Department published the rule as final, with some corrections. In tandem, the BIS first published its own interim final rule adding controls to the EAR for spacecraft and related items that no longer warrant control under the Munitions List. Subsequently, the BIS published a final rule that made several clarifications and corrections to the prior  interim final rule. 

The BIS issued a proposed rule to implement provisions in the Defense Production Act Reauthorization of 2009, specifically (i) to clarify existing standards and procedures by which the BIS may require that certain contracts or orders that promote the national defense be given priority over other contracts or orders; (ii) to incorporate new standards and procedures for such prioritization with respect to contracts or orders for emergency preparedness activities; and (iii) to incorporate new standards and procedures by which the BIS may allocate materials, services and facilities to promote the national defense. 

The BIS  corrected a final rule concerning changes to the EAR that appeared in the July 8, 2013, issue of the Federal Register (78 FR 40892). The State Department issued a parallel set of corrections to its rule related to the USML. 

The BIS amended the EAR to harmonize it with revisions made to the Census Bureau’s Foreign Trade Regulations (FTR) by correcting citations, nomenclature, and procedures set forth in the EAR. 

The BIS amended the microprocessor military end-use and end-user control in the EAR by: (i) expanding the scope of microprocessors subject to the restriction and including  related software and technology for the development and production of these chips, (ii) adding a prohibition on the use of license exceptions (including License Exception ENC) and otherwise expanding license requirements for exports, reexports, or transfers (in-country) of microprocessors subject to the military end-use and end-user restriction, and (iii) expanding the scope of controls to cover in-country transfers, in order to control in-country transfers to prohibited military end users or end uses. 

The BIS revised the the CCL (i) to add certain military electronics, technology and software for certain wing folding systems, certain superconducting and cryogenic equipment, and related items that no longer warrant control under the USML; and (ii) to amend ECCNs 7A006 and 7A106 to apply the "missile technology" reason for control only to items in those ECCNs on the Missile Technology Control Regime (MTCR) Annex. This rule is effective December 30, 2014, except for the addition  of software and technology for certain wing folding systems to ECCNs 0D521 and 0E521 via Supplement No. 5 to part 774 of the EAR (amendatory instruction number 24), which became effective July 1.

A final rule:  (i) clarified existing  standards and procedures by which the BIS may require that certain contracts or orders that promote the national defense  be given priority over other contracts or orders; (ii) set new standards and procedures for such prioritization with respect to contracts or orders for emergency preparedness activities; and (iii) set new standards and procedures by which BIS may allocate materials, services and facilities to promote the national defense. 

The BIS amended the EAR: (i) to expand national security controls on certain electronic commodities controlled on the CCL; (ii)  to limit license exceptions for these items; and (iii) to expand license requirements for exports and reexports to Hong Kong of items controlled for national security reasons.

The BIS amended its regulations: (i) to revise six ECCNs to clarify that they do not control certain basic parts, components, accessories and attachments because those items are controlled in a new ECCN created by a rule previously published on July 1, 2014; (ii) to remove controls on certain monolithic microwave integrated circuit (MMIC) power amplifiers and discrete microwave transistors and related technology (because these controls are no longer necessary given two other rules published after July 1, 2014, which provide appropriate controls on those items); (iii) to clarify the application of "specially designed" to controls published on July 1, 2014, that would apply to printed circuit boards, populated circuit card assemblies and multichip modules to reduce the possibility of confusion; and (iv) to revise three of the amendatory instructions in the final rule published on July 1, to avoid negating changes to the EAR  that became effective after that date.

The BIS issued an interim final rule amending the EAR to impose foreign policy controls on read-out integrated circuits and related software and technology,  radar for helicopter autonomous landing systems, seismic intrusion detection systems and related software and technology, and technology required for the development or production of specified infrared upconversion devices. The read-out integrated circuits and related technology are controlled under new ECCNs on the CCL. An existing ECCN has been amended to control the related software for those items. New paragraphs have been added to certain existing ECCNs to control radar for helicopter autonomous landing systems, seismic intrusion detection systems, and the technology, as mentioned, for specified infrared upconversion devices. Specified existing software and technology ECCNs have been amended to apply to helicopter autonomous landing systems and seismic intrusion detection systems. 

The BIS proposed  to amend the EAR by removing the Special Comprehensive License Authorization.

The BIS sought public comments on ways to improve the recordkeeping requirements of the EAR to reduce unnecessary burden, increase clarity, address changes in technology and data management, and maintain the tools necessary for compliance with and enforcement of the EAR.

Department of Education

The Department of Education proposed extensive revisions to its acquisition regulation to update it to accurately implement FAR and Department policies.

Department of Energy

The DOE amended its acquisition regulation (the DEAR) to ensure the access to and ownership of records generated during contract performance for its contractors and subcontractors performing potentially hazardous work and to clarify the requirements for management, retention and disposal of records after contract termination, with particular attention to Privacy Act requirements. 

The DOE proposed to amend the DEAR (i) to define "contractor business system" to include the contractor's accounting system, estimating system, purchasing system, earned value management system , and property management system; and (ii) to implement compliance enforcement mechanisms in the form of a contractor business system clause and related clauses that includes a provision that would allow contracting officers to withhold a percentage of payments, under certain conditions, when a contractor’s business system contains significant deficiencies.

Department of Homeland Security (DHS)

The Department of Homeland Security amended its acquisition regulation (HSAR) to implement statutory restrictions on contractors acting as lead system integrators in the acquisition of DHS major systems, if they have direct financial interests in  the development or construction of the system.

Department of Transportation

The Federal Highway Administration revised its regulations at 22 C.F.R. Part 636 related to the use of alternative technical concepts (ATC) in design-build project delivery of highway construction in order to eliminate the requirement to submit a base proposal when a contracting agency allows design-build proposers to submit ATCs in their technical and price proposals. 

The Department of Transportation amended its disadvantaged business enterprise (DBE) program regulations to improve program implementation in three areas. First, the rule revises the uniform certification application and reporting forms, creates a uniform personal net worth form, and collects data required by the Moving Ahead for Progress in the 21st Century Act, on the percentage of DBEs in each State. Second, the rule strengthens the certification-related program provisions, which includes adding a new provision authorizing summary suspensions under specified circumstances. Third, the rule modifies several other program provisions concerning such subjects as: overall goal setting, good faith efforts, transit vehicle manufacturers, and counting for trucking companies.

Department of the Treasury

The Department of the Treasury amended its acquisition regulation (DTAR) to comply with the requirements of the Dodd-Frank Act by promulgating a clause for use in service contracts above the simplified acquisition threshold that commits the contractor to the "fair inclusion of women and minorities in its workforce."

EPA

The EPA amended its acquisition regulations (EPAAR) to rescind sections relating to EPA’s policies for collecting and maintaining contractor past performance information because those sections are redundant in light of rules now included in the FAR. 

The EPA amended the EPAAR, to update policy, procedures, and contract clauses, including the " Work Assignments" clause.

Effective January 15, 2015, the EPA amended its acquisition regulation (the EPAAR) to incorporate a class deviation to clauses 1552.209–73 (Notification of Conflicts of Interest Regarding Personnel) and 1552.227-26 (Project Employee Confidentiality Agreement), and their respective prescriptions, to include Alternate 1 for the subcontract flow-down requirements for other than Superfund work. 

The EPA proposed to amend the EPAAR to update policy, procedures, and contract clauses, including the "Ordering—By Designated Ordering Officers" clause and corresponding prescription. Subsequently, the agency issued a final rule amending the EPAAR.  

The EPA proposed to amend the EPAAR to update EPAAR clause 1552.211–74 ("Work Assignments").

The EPA proposed to amend the EPAAR to remove the evaluation of contracting performance and incorporate flexibility to identify the required number of days of key personnel commitment during the early stages of contractor performance under the "Key Personnel" clause.

The EPA proposed to amend the EPAAR to incorporate a class deviation to clauses 1552.209–73 ("Notification of Conflicts of Interest Regarding Personnel") and 1552.227–76 ("Project Employee Confidentiality Agreement") and their respective prescriptions, to include Alternate 1 for the subcontract flowdown requirements for other than Superfund work, in order to address the increased use of these conflict of interest (COI) clauses in non-Superfund contracts to better protect the agency from COI.

General Services Administration (GSA)

GSAR Case 2012-G501: The GSA  issued a final rule to amend its acquisition regulation (the GSAR) by adding 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.

GSAR Case 2012-G503: A final rule amended the GSAR to reflect the GSA's use of the Industrial Funding Fee (IFF) collected under the MAS Program, which (i) includes uses specified in the Acquisition Services Fund and (ii) extends beyond the purposes currently stated in the GSAR.

GSAR Case 2014-G501: GSA amended the GSAR to remove clause 552.214–71 ("Progressive Awards and Monthly Quantity Allocations").

GSAR Case 2013-G501: GSA amended the GSAR to remove clause 552.237–70 ("Qualifications of Offerors").

GSAR Case 2010-G511: GSA proposed to amend GSAR Part 511 (Describing Agency Needs)  to implement the Federal Supply Schedules Usage Act of 2010, the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008, the John Warner National Defense Authorization Act for Fiscal Year 2007, and the Local Preparedness Acquisition Act for Fiscal Year 2008, in order to provide increased access to GSA’s Federal Supply Schedules. GSA is also amending GSAR Part 538 ( Federal Supply Schedule Contracting) and Part 552 (Solicitation Provisions and Contract Clauses) to reflect these statutory initiatives.

GSAR Case 2014-G501: The GSA proposed to amend its acquisition regulation (the GSAR) by removing the "Progressive Awards and Monthly Quantity Allocations" clause. 

GSAR Case 2013-G501: The GSA also proposed to remove the "Qualifications of Offerors" clause.

GSAR Case 2013-G502: The GSA proposed to amend the GSAR to clarify and update the contracting by negotiation GSAR section and incorporate existing FSS contracting policies and procedures, and corresponding provisions and clauses. 

HHS

A final rule amended HHS' FAR Supplement (the HHSAR) to add two clauses: " Patent Rights--Exceptional Circumstances," and "Rights in Data--Exceptional Circumstances," and their prescriptions. 

Interior

The Department of the Interior amended its regulations governing concessions contracts: (i) to clarify that the Director may amend or extend a prospectus soliciting proposals for a concession contract prior to and including the proposal due date and may award a temporary concession contract; and (ii) to update consolidated information collection requirements. 

The Department's Bureau of Land Management proposed to amend its regulations concerning competitive processes, terms, and conditions for lasing public lands for solar and wind energy development in order to facilitate responsible development and to receive fair market value for such development, specifically by (i) promoting the use of preferred areas for solar and wind energy development and (ii) establishing competitive processes, terms, and conditions (including rental and bonding requirements) for solar and wind energy development rights-of-way both inside and outside these preferred areas.

Labor

The DOL proposed to amend its regulations to implement Executive Order 13658 ("Establishing a Minimum Wage for Contractors") which directs that the hourly minimum wage paid by federal government contractors to workers performing on covered federal contracts be raised to $10.10 per hour, beginning January 1, 2015; and beginning January 1, 2016, and annually thereafter, to an amount determined by the Secretary of Labor. Subsequently, effective December 8, the DOL issued a final rule implementing the $10.10 minimum wage for workers on covered federal contracts. 

In an effort to "eradicate" compensation discrimination, the OFCCP proposed to amend one of its implementing regulations for Executive Order 11246 (Equal Employment Opportunity) by adding a requirement that certain federal contractors and subcontractors supplement their Employer Information Report (EEO–1 Report) with summary information on compensation paid to employees, as contained in the Form W–2 Wage and Tax Statement forms, by sex, race, ethnicity, and specified job categories, as well as other relevant data points such as hours worked, and the number of employees.

The OFCCP proposed, inter alia, the following amendments to the regulations implementing Executive Order 11246 (which set forth the basic equal employment opportunity requirements that apply to federal contractors and subcontractors): (i) adding definitions for key terms used in the Executive Order; (ii) amending the mandatory equal opportunity clauses included in federal contracts and subcontracts and federally assisted construction contracts; (iii) establishing contractor defenses to allegations of violations of the nondiscrimination provision; and (iv) requiring federal contractors to notify employees and job applicants of the nondiscrimination protection created by the Executive Order using existing methods of communicating to applicants and employees. Subsequently, in compliance with Executive Order 13672, the OFCCP revised the regulations prohibiting discrimination by federal contractors and subcontractors to add sexual orientation and gender identity to the list of covered categories, effective April 8, 2015.

The Veterans’ Employment and Training Service (VETS) issued a final rule to revise the regulations implementing the reporting requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA), which requires federal contractors and subcontractors to report annually on the total number of their employees who belong to the categories of veterans protected under the statute and the total number of those protected veterans who were hired during the period covered by the report. 

NASA

NASA issued an interim rule amending the NASA FAR Supplement to implement statutory requirements providing whistleblower protections for contractor and subcontractor employees and to address the allowability of legal costs incurred by a contractor related to whistleblower proceedings. 

The agency proposed to update 14 parts of the NASA FAR Supplement to eliminate unnecessary provisions, lessen overly-burdensome regulation, clarify language, and simplify processes where possible. 

Office of Government Ethics

The Office of Government Ethics revised various departmental component designations for purposes of applying post-employment conflicts of interest restrictions.

Postal Service

The Postal Service revised its regulations governing supplier debarment, suspension, and ineligibility to reflect that the Postal Service has eliminated its separate list of debarred, suspended, or ineligible suppliers, and now uses the list maintained by the GSA under its SAM.

Small Business Administration (SBA)

The SBA corrected the prior interim final rule by revising the previously published small business size standard for NAICS code 334419 (Other Electronic Component Manufacturing) from 500 employees to 750 employees, effective immediately.

The agency proposed to increase employee based size standards for 46 industries in NAICS Sector 42 (Wholesale Trade) and one industry in NAICS Sector 44–45 (Retail Trade) and retain the current size standards in the remaining industries in those sectors. SBA also proposes to retain the current 500-employee size standard for the procurement of supplies under the nonmanufacturer rule.

The SBA revised its monetary based industry size standards (i.e., receipts, assets, net worth, and net income) in order to account for the inflation that has occurred since the last adjustment in 2008. 

The SBA proposed to amend its program regulations (i) to implement statutory provisions establishing a safe harbor from fraud penalties for individuals or firms that misrepresent business concerns as being small for purposes of federal procurement opportunities if they acted in good faith reliance upon small business status advisory opinions received from Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs); (ii) to establish the criteria small business status advisory opinions must meet in order to be deemed adequate and specify the review process for such opinions; and (iii) to update the circumstances under which SBA may initiate a formal size determination. 

The agency proposed (i) to increase small business size standards for 209 industries in NAICS Sector 31–33, Manufacturing; (ii) to increase the refining capacity component of the Petroleum Refiners (NAICS 324110) size standard to 200,000 barrels per calendar day total capacity for businesses that are primarily engaged in petroleum refining; and (iii) to eliminate the requirement that 90 percent of the output being delivered be refined by the bidder. 

The SBA proposed (i) to increase employee-based small business size standards for 30 industries and three sub-industries (i.e., exceptions in SBA’s table of size standards) and decrease them for three industries that are not part of NAICS Sector 31–33 (Manufacturing), Sector 42 (Wholesale Trade), or Sector 44–45 (Retail Trade); (ii) to eliminate the Information Technology Value Added Resellers sub-industry or "exception" under NAICS 541519 (Other Computer Related Services) and its 150-employee size standard; (iii) to eliminate the Offshore Marine Air Transportation Services sub-industry or "exception" under NAICS 481211 and 481212 and Offshore Marine Services sub-industry or "exception" under NAICS Subsector 483 and their $28 million receipts based size standard; and (iv) to remove footnotes 15 and 18 from the table of size standards. 

In another document, the agency proposed a slew of changes to its regulations, including, among many others: (i) allowing a joint venture to qualify as small for any government procurement as long as each partner to the joint venture qualifies individually as small under the size standard covering that solicitation; (ii) utilizing a new method for making calculations under 'limitations on subcontracting' requirements, as well as revising procedures related to 'performance of work' requirements; (iii) providing additional guidance on analyzing 'identity of interest' affiliation issues; (iv) clarifying that 'receipts' includes all income, including passive income; (v) requiring a firm to recertify its size status if it is involved in a merger or acquisition that occurs between the submission of its offer and the contract award; (vi) at long last, eliminating that horribly confusing double negative (any offeror that has " not been eliminated for reasons un related to size") in the current rule concerning standing to file a size protest; and (vii) making various changes and clarifications to the nonmanufacturer rule. Comments are due by February 27, 2015.

State Department

The State Department amended the ITAR to provide the defense trade policy regarding the Central African Republic to reflect certain resolutions adopted by the United Nations Security Council.

As part of the President's Export Reform Control effort, the State Department published an interim final rule amending the ITAR to revise Category XV (Spacecraft and Related Articles) of the USML to describe more precisely items warranting control under this category. In conjunction with the prior rule, the BIS published its own interim final rule adding controls to the EAR for spacecraft and related items that no longer warrant control under the Munitions List. 

Also as part of the President’s Export Control Reform effort, the State Department amended the ITAR to revise USML: (i) Category XI (Military Electronics); (ii) Category VIII (Aircraft and Related Articles) with respect to wing folding systems and (iii) both Categories VIII and XIX, to remove three paragraphs superseded by the revision of Category XI. In concert with these revisions, the Commerce Department's Bureau of Industry and Security  (BIS) revised the the CCL (i) to add certain military electronics, technology and software for certain wing folding systems, certain superconducting and cryogenic equipment, and related items that no longer warrant control under the USML; and (ii) to amend ECCNs 7A006 and 7A106 to apply the "missile technology" reason for control only to items in those ECCNs on the Missile Technology Control Regime (MTCR) Annex. This rule is effective December 30, 2014, except for the addition  of software and technology for certain wing folding systems to ECCNs 0D521 and 0E521 via Supplement No. 5 to part 774 of the EAR (amendatory instruction number 24), which became effective July 1. Subsequently, the BIS amended its regulations: (i) to revise six ECCNs to clarify that they do not control certain basic parts, components, accessories and attachments because those items are controlled in a new ECCN created by a rule previously published on July 1, 2014; (ii) to remove controls on certain monolithic microwave integrated circuit (MMIC) power amplifiers and discrete microwave transistors and related technology (because these controls are no longer necessary given two other rules published after July 1, 2014, which provide appropriate controls on those items); (iii) to clarify the application of "specially designed" to controls published on July 1, 2014, that would apply to printed circuit boards, populated circuit card assemblies and multichip modules to reduce the possibility of confusion; and (iv) to revise three of the amendatory instructions in the final rule published on July 1, to avoid negating changes to the EAR that became effective after that date.

The Department made various other revisions, corrections, and clarifications to the ITAR.

U.S. Agency for International Development (USAID)

The U.S. Agency for International Development (USAID) amended its acquisition regulation (AIDAR) in order (i) to maintain consistency with the FAR, (ii) to incorporate long-standing USAID internal policies into the regulation, (iii) to remove obsolete material, and (iv) to make clarifying editorial amendments.

 

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