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2015 Procurement Review--Statutes, Regulations, Executive Orders



Contents

                           

    Statutes   

National Defense Authorization Act, 2015

Consolidated and Further Continuing Appropriations Act, 2015

 

Executive Orders and Related Publications

 Executive Order 13706 requires the Government to promulgate regulations requiring federal contractors and subcontractors to provide paid sick leave to employees.

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-80

FAC 2005-80 included the following two items (plus technical amendments):

FAR Case 2013-001: A final rule amended the FAR to strengthen protections against trafficking in persons in federal contracts as required by Executive Order 13627  and title XVII of the National Defense Authorization Act for Fiscal Year 2013. 

FAR Case 2014-008: A final rule amended the FAR to strengthen guidance on service acquisitions involving uncompensated overtime. Specifically, the existing definitions of "uncompensated overtime" and "uncompensated overtime rate" at FAR 52.237–10(a) have been incorporated at FAR 37.101, with the defined term "uncompensated overtime rate" changing to "adjusted hourly rate (including uncompensated overtime)," whose definition, in turn, clarifies that the proposed hours per week include uncompensated overtime hours over and above the standard 40-hour work week. The clause at FAR 52.237–10 is further amended to clarify the application of the adjusted hourly rate, and categorization of proposed hours subject to the adjusted hourly rate.  

FAC 2005-81

FAC 2005-81 included the following item:

FAR Case 2015-013: An interim rule amended the FAR to implement both (i) Executive Order (E.O.) 13672, "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity," and (ii) a final rule previously issued by the DOL, which substituted the phrase "sex, sexual orientation, gender identity, or national origin" for "sex or national origin" in the applicable regulations requiring affirmative measures by federal contractors and subcontractors to prevent discrimination on any of the prohibited bases. 

FAC 2005-82

FAC  2005-82 included the following three items, plus technical amendments:

FAR Case 2014-013: A final rule adopted, without change, the prior interim rule amending the FAR to implement rules issued by the DOL's OFCCP relating to equal opportunity and affirmative action for veterans and individuals with disabilities.

FAR Case 2013-012: A final rule amended the FAR to implement section 802 of the National Defense Authorization Act (NDAA) for Fiscal Year 2013, which provides additional requirements relative to the review of, and justification for, pass-through contracts.

FAR Case 2014-010: A final rule amended the FAR to accommodate the recent merger of the Architect-Engineer Contract Administration Support System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) modules within the CPARS database.

FAC 2005-83

Federal Acquisition Circular (FAC) 2005-83  included the following six items, plus technical amendments:

FAR Case 2014-022: A final rule amended the FAR to implement the inflation adjustment of acquisition-related dollar thresholds using the Consumer Price Index for all urban consumers, except for the Construction Wage Rate Requirements statute (formerly the Davis-Bacon Act), Service Contract Labor Standards statute, and trade agreements thresholds. 

FAR Case 2015-006: A final rule amended 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 2014-017: A final rule adopted, without change, the prior interim rule amending 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.

FAR Case 2014-020: A final rule amended 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 1 year, either at time of award or due to post-award modifications. 

FAR Case 2015-010: A final rule amends the FAR to implement a section of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act (NDAA) for Fiscal Year 2015 that makes permanent the authority to issue solicitations using special simplified procedures for acquisition of certain commercial items.

FAR Case 2015-008: A final rule amended the FAR to correct the terminology relating to preparation and transmittal of synopses and update the descriptions of federal product and service codes related to exemptions from service contract labor standards, to conform to the current Federal Procurement Data System Product and Service Codes Manual.

FAC 2005-84

Federal Acquisition Circular (FAC) 2005-84 included just the following item (plus technical amendments):

FAR Case 2015-0051: A final rule adopted, with changes, the prior interim rule amending the FAR to implement revisions to the Electronic Product Environmental Assessment Tool (EPEAT®) registry.

FAC 2005-85

Federal Acquisition Circular (FAC) 2005-85 was published and included the following items:

FAR Case 2015-011: An interim rule will amend the FAR to implement sections of the Consolidated and Further Continuing Appropriations Act, 2015, to prohibit the Federal Government from entering into a contract with any corporation having a delinquent federal tax liability or a felony conviction under any federal law, unless the agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government.

FAR Case 2015-036: Another interim rule amended the FAR to implement a final rule issued by the DOL's Veterans’ Employment and Training Service (VETS), which replaced the VETS–100 and VETS–100A Federal Contractor Veterans’ Employment Report forms with the new VETS–4212, Federal Contractor Veterans’ Employment Report form.

FAR Case 2015-013: A final rule adopted, without change, the prior interim rule amending the FAR to implement Executive Order (E.O.) 13672, entitled, "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity," and a final rule issued by the DOL.

FAR Case 2015-015: A final rule adopted, with changes, the prior interim rule amending the FAR to implement a statutory pilot program enhancing whistleblower protections for contractor employees.

FAR Case 2015-009: A final rule amended the FAR to update the government contract file retention periods to conform with the retention periods in the National Archives and Records Administration General Records Schedule.

FAR Case 2015-003: A final rule adopted, with changes, the prior interim rule amending the FAR to implement the Executive Order Establishing a Minimum Wage for Contractors, and a final rule issued by the DOL.

FAC 2005-86

Federal Acquisition Circular (FAC) 2005-86 was published and included the following items:

FAR Case 2015-019: A final rule amendedFAR 2.101 to define "multiple-award" contract.

FAR Case 2015-034: A final rule amended the FAR to add Montenegro and New Zealand as new designated countries under the World Trade Organization Government Procurement Agreement and update the list of parties to the Agreement on Trade in Civil Aircraft.

FAR Case 2016-001:  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.

FAR Case 2015-032: An interim rule amended the FAR to implement regulatory changes made by the SBA that provide for authority to award sole-source contracts to economically disadvantaged women-owned small business concerns and to women-owned small business concerns eligible under the Women-Owned Small Business Program.

Other Proposed FAR Revisions

FAR Case 2014-003: A proposed rule would amend the FAR to to implement regulatory changes made by the SBA, which provide for a governmentwide policy on small business subcontracting.

FAR Case 2014-015: A proposed rule would amend the FAR to implement sections of the Small Business Jobs Act of 2010 and regulatory changes made by the SBA, which provide for a governmentwide policy on the consolidation and bundling of contract requirements.

FAR Case 2014-018: A proposed rule would amend the FAR (i) to remove the distinction between DoD and nonDoD agency areas of operation applicable for the use of FAR clause "Contractors Performing Private Security Functions Outside the United States" and (ii) to provide a definition of "full cooperation" within the clause.

FAR Case 2015-019: A proposed rule would define a multiple-award contract as "a contract that is— (1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g., the VA) as described in FAR part 38; (2) A multiple-award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Governmentwide acquisition contracts; or (3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation."

FAR Case 2014-025: A proposed rule would amend the FAR to implement the Executive Order (E.O.) entitled "Fair Pay and Safe Workplaces," which is designed to improve contractor compliance with labor laws and increase efficiency and cost savings in federal contracting and which: (i) requires that prospective and existing contractors disclose certain labor violations and that contracting officers, in consultation with labor compliance advisors, consider the disclosures, including any mitigating circumstances, as part of their decision to award or extend a contract; (ii) directs agencies to include clauses in their contracts that require similar disclosures by certain subcontractors so their prime contractors can also consider labor violations when determining the responsibility of subcontractors; (iii) requires that processes be established to assist contractors and subcontractors to come into compliance with labor laws; (iv) requires contractors and subcontractors to provide individuals with information each pay period regarding how they are paid and to provide notice to those workers whom they treat as independent contractors; and (v) addresses arbitration of employee claims.

FAR Case 2014-020: A proposed rule would implement  41 U.S.C. § 153 by increasing the simplified acquisition threshold from $150,000 to $300,000 for overseas acquisitions in support of humanitarian or peacekeeping operations.

FAR Case 2015-018: A proposed rule would amend the FAR to implement section 814 of the Carl Levin and Howard P. 'Buck' McKeon National Defense Authorization Act for Fiscal Year 2015, which requires the head of the contracting activity to approve any determinations to select more than five offerors to submit phase-two proposals for a two-phase design-build construction acquisition that is valued at greater than $4 million.

FAR Case 2015-025: A proposed rule would amend the FAR to revise the Standard Forms used in contracts involving bonds and other financial protections in order to clarify liability limitations and expand the options for organization types.

FAR Case 2015-022: A proposed rule would amend the FAR to re-designate the terminology used for the unique identification of entities receiving federal awards by removing the proprietary DUNS® number and substituting appropriate references to the web site where information on the unique entity identifier will be located. In addition, the proposed rule would establish definitions of "unique entity identifier," and "electronic funds transfer (EFT) indicator."

Department of Defense FAR Supplement (DFARS)

Final Rules

DFARS Case 2015-D004: A final rule amended the DFARS to update the descriptions of Federal supply groups (now identified as product service groups) subject to trade agreements to conform to the current Federal Procurement Data System Product and Service Codes Manual. 

DFARS Case 2014-D001: A final rule amended the DFARS to require that scientific and technical reports be submitted in electronic format. 

DFARS Case 2014-D009: A final rule amended 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-D020: A final rule amended the DFARS to establish the level of approval required for a determination and findings for time-and-materials and labor-hour contracts, or portions of contracts, exceeding $1 million.

DFARS Case 2014-D024: A final rule amended the DFARS to identify the Wide Area WorkFlow Energy Receiving Report as the electronic equivalent of the DD Form 250, Material Inspection and Receiving Report, for overland shipments and the DD Form 250–1, Tanker/Barge Material Inspection And Receiving Report, for waterborne shipments.

DFARS Case 2014-D019: A final rule amended the DFARS to update the cancellation ceiling threshold for multiyear contracts.

DFARS Case 2014-D015: A final rule amended the DFARS to require contracting officers to consider information in the Statistical Reporting module of the Past Performance Information Retrieval System when evaluating past performance of offerors under competitive solicitations for supplies using simplified acquisition procedures.

DFARS Case 2013-D022: DoD adopted as final, without change, an interim rule that amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2013, which addresses the allowability of legal costs incurred by a contractor related to whistleblower proceedings.

DFARS Case 2014-D025: A final rule amended the DFARS to implement the inflation adjustment of acquisition-related dollar thresholds using the Consumer Price Index for all urban consumers, except for the Construction Wage Rate Requirements statute (formerly the Davis-Bacon Act), Service Contract Labor Standards statute, and trade agreements thresholds.

DFARS Case 2015-D015: In order to conform the DFARS with the FAR, a final rule (with minor editorial changes): (i) moved the text of DFARS subpart 225.74 (Defense Contractors Outside the United States) to DFARS subpart 225.3 (Contracts Performed Outside the United States); (ii) revised the introductory texts of the clauses at DFARS 252.225–7040 ( Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States) and 252.225–7043 ( Antiterrorism/Force Protection for Defense Contractors Outside the United States) to reflect the changed location of the prescriptions for use of those clauses; (iii) made a minor editorial change to the text of each of the clauses; and (iv)  revised DFARS subparts 204.8, 212.3, and 242.3 to revise references to the DFARS text that has been relocated from DFARS subpart 225.74 to DFARS subpart 225.3.

DFARS Case 2015-D016: A final rule amended the DFARS to clarify (for clauses with alternates) the appropriate use of the basic clauses and their alternates.

DFARS Case 2015-D005: A final rule amended the DFARS to implement sections of the Department of Defense Appropriations Acts for Fiscal Years 2014 and 2015 that prohibit use of funds made available under these acts for the purchase or manufacture of a flag of the United States, unless that flag is manufactured in the United States.

DFARS Case 2014-D023: A final rule amended the DFARS to provide updates and clarifications regarding requirements for contractor personnel supporting U.S. Armed Forces deployed outside the United States.

DFARS Case 2015-D014: A final rule amended the DFARS (i) to remove duplicative text relating to contracts or delivery orders issued by a non-DoD Agency and (ii) to relocate remaining text to conform to the FAR.

DFARS Case 2014-D021: A final rule amended the DFARS to correct the prescription at DFARS 211.274–6(a)(1) for the contract clause at DFARS 252.211–7003 ("Item Unique Identification and Valuation").

DFARS Case 2013-D018: An interim rule amended the DFARS to to implement a section of the National Defense Authorization Act for Fiscal Year 2013 and a section of the National Defense Authorization Act for Fiscal Year 2015, both of which require contractor reporting on network penetrations. Additionally, this rule implements DoD policy on the purchase of cloud computing services. Comments are due by October 26.

DFARS Case 2015-D006: A final rule adopted the prior interim rule, without change, which amended the DFARS to implement a section of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2015: (i) to require offerors bidding on DoD military construction contracts to provide opportunities for competition to American steel producers, fabricators, and manufacturers; and (ii) to restrict use of military construction funds in certain foreign countries, including countries that border the Arabian Gulf.

DFARS Case 2015-D029: A final rule amended DFARS subpart 232.6 on contract debts to conform with the comparable FAR subpart.

DFARS Case 2012-D056: A final rule amended the DFARS: (i) to establish that the Electronic Data Access system is the primary tool for distributing contracts and contract data; (ii) to provide internal control procedures for data verification to ensure contract documents in the Electronic Data Access system are accurate representations of original documents; and (iii) to remove outmoded language that is not consistent with electronic document processes.

DFARS Case 2012-D050: DoD adopted as final, with changes, the prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (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 2015-D032: A final rule amended the DFARS to to remove Cuba from the definition of "state sponsor of terrorism" in two DFARS clauses.

DFARS Case 2015-D033: A final rule amended the DFARS to add Montenegro and New Zealand as newly designated countries under the World Trade Organization Government Procurement Agreement.

DFARS Case 2015-D031: A final rule amended the DFARS to eliminate a requirement for military departments and defense agencies to collect and report relevant data on award and incentive fees paid to contractors.

DFARS Case 2015-D007: A final rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015 that revises the restrictions relating to utilization of domestic photovoltaic devices.

DFARS Case 2016-D003:  A final rule amended the DFARS to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

DFARS Case 2014-D003: A final rule amended the DFARS to notify contractors of requirements relating to Afghanistan taxes for contracts performed in Afghanistan.


Interim Rules

DFARS Case 2015-D028: An interim rule amended the DFARS to clarify requirements related to costs associated with indirect offsets under FMS agreements.

DFARS Case 2013-D018: An interim rule amended the DFARS to provide contractors with additional time to implement security requirements specified by a National Institute of Standards and Technology Special Publication.  

Proposed Rules

DFARS Case 2012-D056: DoD proposed to amend the DFARS to state the policy that the Electronic Document Access (EDA) system is DoD’s online repository and distribution tool for contract documents and contract data, to require internal control procedures for contract document and data verification in EDA, and to remove outmoded language that is not consistent with electronic document processes. 

DFARS Case 2014-D015: DoD proposed to amend the DFARS to require contracting officers to consider information in the Statistical Reporting module of the Past Performance Information Retrieval System when evaluating past performance of offerors under competitive solicitations for supplies using simplified acquisition procedures. 

DFARS Case 2014-D023: DoD proposed to amend the DFARS to update the clause entitled "Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States." 

DFARS Case 2015-D007: DoD proposed to amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015 that revises the restrictions relating to utilization of domestic photovoltaic devices. 

DFARS Case 2015-D011: DoD proposed to amend the DFARS to comply with the uniform procurement identification procedures implemented in the FAR. 

DFARS Case 2014-D005: DoD proposed to amend the DFARS to further implement a requirement of the National Defense Authorization Act for Fiscal Year 2012, as modified by a section of the National Defense Authorization Act for Fiscal Year 2015, that addresses required sources of electronic parts for defense contractors and subcontractors.

DFARS Case 2015-D017: DoD proposed to amend the DFARS: (i) to clarify clauses and their prescriptions for small business programs and to create a basic and alternate clause structured in a manner to facilitate use of automated contract writing systems, specifically with regard to DFARS 252.219–7003 (Small Business Subcontracting Plan (DoD Contracts)); and (ii) to clarify DFARS 252.219–7010, Alternate A (now titled "Notification of Competition Limited to Eligible 8(a) Concerns—Partnership Agreement").

DFARS Case 2014-D026: DoD proposed to amend the DFARS to require the use of the electronic contract attachments accessible via the Product Deficiency Reporting and Evaluation Program to record and track warranty data and source of repair information for serialized items.

DFARS Case 2015-D037: DoD proposed to amend the DFARS to clarify when it is appropriate to omit DFARS clause 252.225–7001, Buy American and Balance of Payments Program, with regard to exceptions to the Buy American statute and Balance of Payment Program. Comments are due by January 19, 2016.

DFARS Case 2015-D018: DoD proposed to amend the DFARS to clarify the contract term for contracts awarded under the statutory authority of 10 U.S.C. 2913, which requires DoD to develop a simplified method of contracting for shared energy savings contract services that will accelerate the use of such contracts.

DFARS Case 2015-D036: DoD proposed to amend the DFARS to update the threshold for duty-free entry on foreign supplies that are not qualifying country supplies or eligible foreign supplies.

DFARS Case 2015-D008: DoD proposed to amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015, which amended a section of the National Defense Authorization Act for Fiscal Year 2010, in order to extend and modify the contract authority for advanced component development and prototype units. 

DFARS Case 2015-D023: DoD proposed to amend the DFARS to add a definition of "long-haul telecommunications." 

DFARS Case 2015-D030: DoD proposed to amend the DFARS to stipulate that DoD contracting officers shall request a limited-scope audit, unless a full-scope audit is appropriate for the circumstances, in the interest of promoting voluntary contractor disclosure of defective pricing identified by the contractor after contract award.

DFARS Case 2015-D021: DoD proposed to amend the DFARS to  consolidate requirements that are applicable to DoD contracts for private security functions performed in designated areas outside the United States, make changes regarding applicability, and revise applicable quality assurance standards.

DFARS Case 2015-D009: DoD proposed to amend the DFARS to to implement a section of the National Defense Authorization Act for FY 2015 and a section of the Department of Defense Appropriations Act for FY 2015, which address various requirements for multiyear contracts.

DoD promulgated regulations to establish ratemaking procedures for civil reserve air fleet contracts.

Other Agencies 

Agriculture

Tthe 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 went into effect when the Agricultural Act of 2014 (the 2014 Farm Bill) was signed into law on February 7, 2014.

Bureau of Industry and Security (Department of Commerce)

 The Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to impose additional sanctions that implement U.S. policy toward Russia, by: (i) imposing a license requirement for the export and reexport to the Crimea region of Ukraine (and the transfer within that region) of all items subject to the EAR, other than food and medicine designated as EAR99; and (ii) establishing a presumption of denial for all such exports or reexports, except with respect to items authorized under the Department of the Treasury’s Office of Foreign Assets Control General License No. 4, which BIS will review on a case-by-case basis.

The BIS amended the EAR to further implement the bilateral understanding between the United States and India announced by President Obama and India’s Prime Minister Singh on November 8, 2010, by removing license requirements for certain items controlled for crime control and regional stability reasons.  

The BIS amended the EAR: (i)  to revise the general licensing policy from one of denial to one of case-by-case licensing for exports and reexports to Sudan of telecommunications equipment and associated computers, software, and technology for civil end use, including items useful for the development of civil telecommunications network infrastructure; (ii) to revise License Exception Consumer Communications Devices (CCD) (which previously applied only to consumer communications devices to Cuba) to authorize exports and reexports of such devices to Sudan; (iii) to make minor technical changes to the list of items that are eligible for both Sudan and Cuba under the license exception; (iv) to make changes to License Exception Temporary Imports, Exports, Reexports and Transfers (in-country) in light of the changes to License Exception CCD; and (v) to remove a license requirement for reexports to Sudan of certain telecommunications software. 

The BIS amended the EAR, inter alia,  to revise six Export Control Classification Numbers (ECCNs) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the September and October 2014 Plenary in Oslo, Norway.

The BIS made extensive revisions to the CCL to implement changes made to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies at the December 2014 WA Plenary Meeting.

The BIS issued a final rule amending the EAR to facilitate internet-based communications with persons in the Crimea region of the Ukraine by allowing exports or reexports without a license to that region of software that is necessary to enable the exchange of personal communications over the Internet, provided that such software is designated EAR99, or is classified as mass market software under Export Control Classification Number (ECCN) 5D992.c of the EAR, and provided further that such software is widely available to the public at no cost to the user. This final rule is being published simultaneously with the Department of the Treasury’s Office of Foreign Assets Control (OFAC) issuance of General License No. 9, which authorizes the export or reexport from the United States or by U.S. persons to the Crimea region of the Ukraine of certain services and software incident to the exchange of personal communications over the Internet.

The BIS published a final rule making a second set of corrections and clarifications to an earlier interim final rule, which added controls to the EAR for spacecraft and related items that the President has determined no longer warrant control under United States Munitions List (USML) Category XV— spacecraft and related items.

The BIS amended the EAR by removing the Special Comprehensive License (SCL) authorization because the BIS has determined that the SCL has outlived its usefulness to the exporting public since recent changes to the EAR permit exporters to accomplish similar results using individual licenses and without undertaking the more onerous SCL application.

The BIS modified the DPAS regulations by adding Spain to the list of countries with which the DOD has entered into security of supply arrangements.

The BIS published a rule to correct an error in License Exception Temporary imports, exports, reexports, and transfers (in-country) (TMP) to make consumer communications devices and related software eligible for temporary export and reexport to Sudan as "tools of trade."

The BIS published corrections to typographical errors in a Note to ECCN 1C351.a (which includes viruses identified on the AG "List of Human and Animal Pathogens and Toxins for Export Control") in the final rule first published on June 16, 2015 (80 FR 34266), which amended the Export Administration Regulations (EAR) to implement the recommendations presented at the November 2013 Australia Group (AG) intersessional implementation meeting and later adopted pursuant to the AG silent approval procedure.

The BIS amended the EAR to revise the existing authorizations for Validated End Users Advanced Micro-Fabrication Equipment, Inc., China (AMEC) and Applied Materials (China), Inc. (AMC) in the People’s Republic of China (PRC), specifically by amending Supplement No. 7 to Part 748 of the EAR to add one item to AMEC’s list of eligible items that may be exported, reexported or transferred (in country) to the company’s eligible facility in the PRC, and to add a facility and an item to Validated End User AMC’s list of eligible destinations and eligible items.

The BIS published an interim final rule amending the Export Administration Regulations (EAR) to classify XBS Epoxy Systems under Export Control Classification Number (ECCN) 0C521 on the Commerce Control List (CCL)  and to impose on such items a license requirement for export and reexport to all destinations, except Canada.

The BIS proposed to amend the EAR's Commodity Control List (CCL) by creating new "600 series" ECCNs 6A615, 6B615 and 6D615 for military fire control, range finder, and optical items, by revising ECCN 7A611, and by creating new ECCNs 7B611, 7C611 and 7E611 for military optical and guidance items. In addition, the proposed rule would: (i) expand the scope of control for certain night vision items currently subject to the EAR; (ii) eliminate the use of some license exceptions; (iii) create new ECCNs for certain software and technology related to night vision items; (iv) expand the scope of end-use restrictions on certain exports and reexports of certain cameras, systems, or equipment; and (v) expand the scope of military commodities described in ECCN 0A919. 

The BIS proposed to implement the agreements by the Wassenaar Arrangement (WA) at the Plenary meeting in December 2013 by imposing a license requirement for the export, reexport, or transfer (in-country) of certain cybersecurity items to all destinations (except Canada). Although these cybersecurity capabilities were not previously designated for export control, many of these items have been controlled for their "information security" functionality, including encryption and cryptanalysis. This rule thus continues applicable Encryption Items (EI) registration and review requirements, while setting forth proposed license review policies and special submission requirements to address the new cybersecurity controls, including submission of a letter of explanation with regard to the technical capabilities of the cybersecurity items.

The BIS proposed amendments to the EAR: (i) to revise the definitions of "technology," "required," "peculiarly responsible," "proscribed person," "published," results of "fundamental research," "export," "reexport," "release," "transfer," and "transfer (incountry)"; and (ii) to amend the Scope part of the EAR to update and clarify the application of controls to electronically transmitted and stored technology and software. Concurrently, the State Department proposed conforming amendments to the ITAR.

The BIS proposed to require reporting of offsets agreements in connection with sales of items controlled in "600 series" ECCNs on the CCL except for certain submersible and semisubmersible cargo transport vessels and related items that are not on control lists of any of the multilateral export control regimes of which the United States is a member.

The BIS and the Department of State each published notices of their respective plans to review the CCL and the Munitions List in light of recent changes to the control of certain military vehicles, vessels of war, submersible vessels, oceanographic equipment, auxiliary and miscellaneous military equipment, and related items therefor.

Department of Commerce

As authorized by Section 111 of the "Department of Commerce Appropriations Act, 2015," the Commerce Department issued an interim final rule amending its acquisition regulation (the "CAR") by inserting a section and amending a part to  provide procedures for waiving performance and payment bonds associated with contracts for the repair, alteration and construction of the NOAA fleet of research and survey vessels operated by the Office of Marine and Aviation Operations.

The Commerce Department's National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) proposed to establish a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411), for Regulatory Flexibility Act (RFA) compliance purposes only. The proposed $11 million standard would be used in RFA analyses in place of the SBA's current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry, respectively. Subsequently, NFMS announced the rule would become final effective July 1, 2016.

Department of Energy

The DOE adopted as final, with changes, a rule amending its  Acquisition Regulation (DEAR) to add clauses regarding applicable export control requirements for DOE contracts.

Department of Justice

The Justice Department finalized without change an amendment to the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations to remove those defense articles currently on the United States Munitions Import List that ATF by delegation has determined no longer warrant import control under the Arms Export Control Act. 

Department of the Treasury

The Department of the Treasury amended its acquisition regulation (the "DTAR") to make editorial changes in response to updates made to the FAR, Treasury bureau organizational restructuring, and other internal updates that have occurred since the 2013 edition.

EPA

The EPA amended its acquisition regulation (the EPAAR) to address minor non-substantive changes in three clauses and two related prescriptions in the following areas: "‘Protection of Human Subjects," "Care of Laboratory Animals,"  and "EPA Green Meetings and Conferences."

The EPA amended the EPAAR (i) to remove source selection guidance and clauses that were not consistent with current EPA internal operating procedures for source selections and (ii) to delete the "Payments—Fixed Rate Services Contracts" clause because it was inconsistent with  the FAR.

The EPA proposed to amend the EPAAR to  update the "Level of Effort—Cost Reimbursement Term Contract" clause by modifying the clause title and updating the corresponding clause prescription. 

The EPA issued a direct final rule to address administrative and minor non-substantive changes in four clauses of its acquisition regulation (the "EPAAR"): "Monthly Progress Reports," "Working Files," "Final Reports," and "Management Consulting Services."

General Services Administration (GSA)

GSAR Case 2013-G503: A final rule amended the GSA's acquisition regulation (GSAR) to move the definitions of words and terms from the regulatory text to the non-regulatory General Services Acquisition Manual (GSAM).

GSA issued a final rule amending its Acquisition Regulation (GSAR) to remove  clause 552.211–93 ("Unique Item Identification").

GSAR Case 2014-G504: GSA proposed to amend the GSAR to remove clause 552.211–93 (Unique Item Identification) because it: (i) is no longer needed with respect to serially managed supply items and supply items of $5,000 or more; (ii) is unnecessarily duplicative of provisions in the DFARS, which can be used directly; and (iii) only pertains to deliveries to military activities. 

GSAR Case 2006-G506: GSA proposed to amend the GSAR to update the text and clauses regarding Hazardous Materials Identification and Material Safety Data. Subsequently, GSA issued a final rule accomplishing the revision.

GSA withdrew GSAR Case 2008–G509 (Rewrite of GSAR Part 536, Construction and Architect-Engineer Contracts), originally published on December 2, 2008, because an agency review of the current implementation plan for this GSAR case was sufficient to address the variety of issues included in the GSAR Part 536 rewrite.

GSA proposed to amend the Federal Property Management Regulations (FPMR) and the Federal Management Regulation (FMR) by: (i) migrating regulations regarding the supply and procurement of government personal property management from the FPMR to the FMR; and (ii) eliminating material that is not regulatory in nature, overly prescriptive, addressed in other policy, or outdated.

GSAR Case 2013-G504: GSA proposed to amend the GSAR to include clauses that would require vendors to report transactional data from orders and prices paid by ordering activities for orders placed against both FSS contract vehicles and GSA’s non-FSS contract vehicles: Governmentwide Acquisition Contracts (GWACs) and Governmentwide IDIQ contracts.

GSAR Case 2007-G500: GSA proposed to amend the GSAR: (i) to revise requirements for special contracting methods, (ii) to incorporate various updates eliminating out of date references, and (iii) to reorganize the text to align with the FAR.

GSAR Case 2015-G508: GSA proposed to amend the GSAR's  coverage on Construction and Architect-Engineer Contracts, including provisions and clauses for solicitations and resultant contracts, to remove unnecessary regulations.

HHS

HHS proposed a lengthy set of revisions to its FAR Supplement (the HHSAR):  to update its provisions to current FAR requirements; to remove information from the HHSAR that consists of material that is internal administrative and procedural in nature; to add or revise definitions; to correct certain terminology; and to delete outdated material and material duplicative of the FAR.

HUD

HUD proposed to amend its acquisition regulation (the HUDAR) to implement miscellaneous changes necessary to update the HUDAR. These changes include a correction to the designation of Source Selection Authorities, limited delegation of Head of Contracting Activity authorities, incorporation of the HUDAR Matrix, addition of new clauses, certain administrative corrections, and incorporation of alternates to various clauses to allow for electronic invoicing.

Labor

OFCCP issued regulations to be effective January 11, 2016, implementing E.O. 13665, which prohibits retaliation for the disclosure of compensation information.

OFCCP proposed regulations that would set forth requirements that covered federal government contractors and subcontractors and federally assisted construction contractors and subcontractors must meet in fulfilling their obligations under Executive Order 11246, as amended, to ensure nondiscrimination in employment on the basis of sex and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their sex. This proposal would substantially revise the existing Sex Discrimination Guidelines, which have not been substantively updated since 1970, and replace them with regulations that align with current law and legal principles and address their application to current workplace practices and issues.

NASA

A final rule amended the NASA Federal Acquisition Regulation Supplement (NFS) with numerous revisions designed to eliminate unnecessary regulation, clarify language, and simplify processes.

NASA amended the NFS to remove requirements related to the discontinued Space Flight Mission Critical Systems Personnel Reliability Program and to revise requirements related to contractor drug and alcohol testing.

A final rule revised the NFS to delete clause 1852.242–72 ("Observance of Legal Holidays") and its alternates and replaced them with a new clause that prescribes conditions and procedures pertaining to the closure of NASA facilities.

NASA issued an interim rule revising the capitalization threshold in the NFS'  "Use of Government Property for Commercial Work" clause (section 1845.301–71) from $100,000 to $500,000. Subsequently, NASA made the interim rule final. Also, effective December 28, a final rule amended the NFS to revise a clause related to safety and health measures and mishaps reporting in order to reduce the burden on contractors and to provide guidance on (i) specific safety and health measures that the contractor must take when working on a federal facility and (ii) the remedies available to the Government for the contractor's failure to maintain an effective safety and health program.

NASA proposed to amend the NFS to revise the current clause at 1852.223–70 ("Safety and Health Measures and Mishaps Reporting") by narrowing its application, in order to decrease the reporting burden on contractors while reinforcing the measures contractors at NASA facilities must take to protect the safety of their workers, NASA employees, the public, and high value assets.

 

Office of Special Counsel

The U.S. Office of Special Counsel (OSC) proposed to revise its regulations to expand who may file a whistleblower disclosure with OSC concerning wrongdoing within the federal government to include employees of federal contractors, subcontractors, and grantees  if they work at or on behalf of a U.S. government component for which OSC has jurisdiction to accept disclosures.

Postal Service

The PSBCA revised its rules of practice to implement an electronic filing system.

Small Business Administration (SBA)

The SBA amended its small business size regulations: (i) to implement statutory provisions establishing limitations of liability 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 or Procurement Technical Assistance Centers; (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 the SBA may initiate a formal size determination.

SBA proposed to amend its regulations: (i) to establish a government-wide mentor-protégé program for all small business concerns, consistent with SBA’s mentor-protégé program for Participants in SBA’s 8(a) Business Development (BD) program; (ii) to adopt minor changes to the mentor-protégé provisions for the 8(a) Business Development program in order to make the mentor-protégé rules for each of the programs as consistent as possible; (iii) to amend the current joint venture provisions to clarify the conditions for creating and operating joint venture partnerships, including the effect of such partnerships on any mentor-protégé relationships; and (iv) to make several additional changes to current size, 8(a) Office of Hearings and Appeals and HUBZone regulations, concerning among other things, ownership and control, changes in primary industry, standards of review and interested party status for some appeals.

The SBA proposed to amend its regulations: (i) to implement section 825 of the National Defense Authorization Act for Fiscal Year 2015, which grants contracting officers the authority to award sole source contracts to Women Owned Small Businesses (WOSBs) and Economically Disadvantaged Women Owned Small Businesses (EDWOSBs); and (ii) to amend its definitions of underrepresentation and substantial underrepresentation.

The SBA proposed to amend its regulations to implement Section 1614 of the National Defense Authorization Act for Fiscal Year 2014 in order to permit an other than small prime contractor that has an individual subcontracting plan for a contract to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier.

SBA intends to draft regulations to implement the statutory changes in section 825 of the National Defense Authorization Act for Fiscal Year 2015, which removes the statutory authority allowing Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) to self-certify.

State Department

The State Department made a host of technical amendments to its acquisition regulation (DOSAR) to  update procedures and terminology and align the DOSAR with changes to the FAR.

The State Department revised the ITAR to rescind the previous policy of denying the export of defense articles and defense services to Fiji.

The State Department temporarily revised Category XI of the Munitions List to clarify that the scope of control in existence prior to December 30, 2014 for paragraph (b) and directly related software in paragraph (d) remains the same. This clarification is achieved by reinserting the words "analyze and produce information from" and by adding software to the description of items controlled. A permanent fix for the issue is being developed.

The State Department proposed to amend the ITAR to revise Category XII (fire control, range finder, optical and guidance and control equipment) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control there. In tandem with these changes, the Commerce Department's Bureau of Industry and Security (BIS)  proposed to amend the EAR's Commodity Control List (CCL) by creating new "600 series" ECCNs 6A615, 6B615 and 6D615 for military fire control, range finder, and optical items, by revising ECCN 7A611, and by creating new ECCNs 7B611, 7C611 and 7E611 for military optical and guidance items. In addition, the proposed rule would: (i) expand the scope of control for certain night vision items currently subject to the EAR; (ii) eliminate the use of some license exceptions; (iii) create new ECCNs for certain software and technology related to night vision items; (iv) expand the scope of end-use restrictions on certain exports and reexports of certain cameras, systems, or equipment; and (v) expand the scope of military commodities described in ECCN 0A919. 

The State Department proposed to amend the ITAR to clarify the requirements for the licensing and registration of U.S. persons providing defense services while in the employ of foreign persons.

The State Department proposed to amend the ITAR: (i) to clarify regulations pertaining to the export of items subject to the EAR; (ii) to revise the licensing exemption for exports made to or on behalf of an agency of the U.S. Government; and (iii) to revise the destination control statement in ITAR § 123.9 to harmonize the language with the EAR. In tandem with this proposed rule, the BIS proposed to revise the destination control statement in the EAR to harmonize the statement required for the export of items subject to the EAR with the destination control statement in the ITAR. 

The State Department proposed to amend the ITAR to revise Categories XIV (toxicological agents, including chemical agents, biological agents, and associated equipment) and XVIII (directed energy weapons) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control there. Concurrently, the BIS proposed that the items that no longer warrant control under these categories of the USML would be controlled under the CCL. The affected Category XIV articles consist primarily of dissemination, detection and protection equipment and related articles and would be controlled under new ECCNs 1A607, 1B607, 1C607, 1D607, and 1E607. The affected Category XVIII articles consist primarily of tooling, production equipment, test and evaluation equipment, test models and related articles and would be controlled under new ECCNs 6B619, 6D619 and 6E619. 

The BIS and the State Department each published notices of their respective plans to review the CCL and the Munitions List in light of recent changes to the control of certain military vehicles, vessels of war, submersible vessels, oceanographic equipment, auxiliary and miscellaneous military equipment, and related items therefor.

Veterans Affairs

The VA adopted as final, and without changes, the prior interim rule: (i) amending its adjudication procedures for SDVOSB and VOSB status protests to provide that (a) VA’s Director, Center for Verification and Evaluation (CVE), shall initially decide SDVOSB and VOSB status protests, and (b) protested businesses, if they are denied status, may appeal to VA’s Executive Director, Office of Small and Disadvantaged Business Utilization (OSDBU); and (ii) revising the meaning of the title "CVE" from the "Center for Veterans Enterprise" to the "Center for Verification and Evaluation," in order to more appropriately describe the function of this office.

The VA proposed extensive revisions to  its regulations governing the VOSB Verification Program in order to: (i) clarify the eligibility requirements for businesses to obtain "verified" status; (ii) add and revise definitions, including the definition of "control"; (iii) better explain the examination procedure and review processes; (iv) remove or revise references to community property restrictions, "unconditional" ownership, day-to-day requirements, and full-time requirements; and (v) add an exception for majority, supermajority, unanimous, or other voting provisions for extraordinary business decisions.

 

 

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