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2016 Procurement Review--Statutes, Regulations, Executive Orders



Contents

                           

    Statutes   

National Defense Authorization Act, 2016

Executive Orders and Related Publications

 

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)  

FAC 2005-87

FAC 2005-87 included the following item (plus  a technical amendment):

FAR Case 2013-020: A final rule amended the FAR to implement section 852 of the National Defense Authorization Act for FY 2013 to include in the Federal Awardee Performance and Integrity Information System (to the extent practicable) 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, with the objective of providing a more comprehensive understanding of the performance and integrity of the corporation before awarding a federal contract.

FAC 2005-88

FAC 2005-88 included the following four items, plus technical amendments:

FAR Case 2014-026: A final rule amended the FAR to implement Executive branch policy in the President’s Climate Action Plan to procure, when feasible, alternatives to high global warming potential  hydrofluorocarbons in order to allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order on Planning for Sustainability in the Next Decade.

FAR Case 2015-020: A final rule amended the FAR to establish a higher simplified acquisition threshold ($300,000) for overseas acquisitions in support of humanitarian or peacekeeping operations.

FAR Case 2011-020: A final rule amended the FAR to add a new subpart and contract clause for the basic safeguarding of contractor information systems that process, store or transmit federal contract information, without relieving the contractor of any other specific safeguarding requirements that may be imposed by federal agencies or that may require more than the basic level of protection.

FAR Case 2015-018: A final rule amended the FAR to to implement section 814 of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for FY 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.

FAC 2005-89

FAC 2005-89 included the following four items, plus technical amendments:

FAR Case 2014-003: A final rule amended the FAR to implement regulatory changes made by the SBA in the regulations it originally published on July 16, 2013, which provide for a governmentwide policy on small business subcontracting.

FAR Case 2014-023: A final rule amended the FAR to update outdated OMB Circular citation references.

FAR Case 2016-008: A final rule amended the FAR to increase the blanket waiver threshold for small dollar-value purchases from Federal Prison Industries by federal agencies from $3,000 to $3,500.

FAR Case 2015-025: A final rule amended five Standard Forms prescribed by the FAR for contracts involving bonds and other financial protections in order to clarify liability limitations and expand the options for organization types.

FAC 2005-90

FAC 2005-90 included the following item:

FAR Case 2014-025: A final rule was to have amended the FAR to to implement Executive Order 13673 (Fair Pay and Safe Workplaces), which is designed to increase efficiency and cost savings in federal contracting by improving contractor compliance with labor laws. Simultaneously with this publication, the Department of Labor published final guidance (the Guidance) to assist the the FAR Council and federal contracting agencies in the implementation of the Executive Order, which, inter alia, (i) includes new instructions for federal contracting officers to consider a contractor’s compliance with certain federal and state labor laws as a part of the determination of contractor "responsibility," and (ii) directs the FAR Council to propose the rules and regulations necessary to carry out the Order and the Labor Department to develop guidance to help implement the new requirements. In this final Guidance, the Labor Department provides (i) detailed definitions for various terms used in the Order and the FAR rule to categorize and classify labor law violations, and (ii) a summary of the processes through which contracting agencies will assess a contractor’s overall record of labor law compliance and carry out their other duties under the Order. Subsequently, however, pending the resolution of a suit challenging their validity, the Federal District Court for the Eastern District of Texas temporarily stayed the implementation of the regulations.

FAC 2005-91

FAC 2005-91 included the following 10 items, plus technical amendments:

FAR Case 2015-011: A final rule adopted, without changes, the prior interim rule amending 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: A final rule adopted, without change, the prior interim rule amending the FAR to implement a rule issued by the DOL's Veterans’ Employment and Training Service (VETS) that replaced the VETS–100 and VETS–100A Federal Contractor Veterans’ Employment Report forms with the VETS–4212 (Federal Contractor Veterans’ Employment Report) form. 

FAR Case 2015-032: A final rule adopted, with a minor edit, the prior interim rule amending 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 (WOSB) Program.

FAR Case 2015-022: A final rule amended the FAR to redesignate the terminology for unique identification of entities receiving federal awards. The change to the FAR removes the proprietary standard or number.

FAR Case 2014-015: A final rule amended 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 consolidation and bundling.

FAR Case 2016-006:  A final rule amended the FAR to implement a section of the National Defense Authorization Act for FY 2016, to require a finding that "significant" savings would be achieved as a condition for entering into a multi-year contract.

FAR Case 2016-009:  A final rule amended the FAR to add Ukraine and Moldova as new designated countries under the World Trade Organization Government Procurement Agreement

FAR Case 2014-018: A final rule amended the FAR to remove the DoD-unique requirements for contractors performing private security functions outside the United States and to provide a definition of "full cooperation" within the associated clause.

FAR Case 2016-007: An interim rule amended the FAR to implement  (i) the E.O. entitled "Non-Retaliation for Disclosure of Compensation Information" and (ii) a final rule issued by the DOL that revises the equal opportunity clause to prohibit contractors from discharging, or in any manner discriminating against, any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.  

FAC 2005-92

FAC 2005-92 included the following two items plus technical amendments:

FAR Case 2015-024: A final rule amended the FAR to establish a representation for offerors to indicate if and where they publicly disclose greenhouse gas emissions and greenhouse gas reduction goals or targets.

FAR Case 2015-035: A final rule amended the FAR (i) to delete the use of "telegram," "telegraph," and related terms and to replace them with references to electronic communications and (ii) to make conforming changes regarding the means of expedited notices of termination and change orders.

FAC 2005-93

FAC 2005-93 included the following two items:

FAR Case 2017-001: Effective January 1, 2017, an interim rule amends the FAR to implement (i) the Executive Order (E.O.) entitled "Establishing Paid Sick Leave for Federal Contractors," and (ii) a final rule issued by the Department of Labor, which applies to FAR acquisitions (as described in FAR 1.104) that are covered by, inter alia, the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute.

FAR Case 2014-025: A final rule was published in the Federal Register on August 25, 2016, amending the FAR to implement the E.O. on Fair Pay and Safe Workplaces, which was designed to promote contracting efficiency by improving compliance with basic labor standards during the performance of federal contracts, but implementation of portions of the E.O. was subsequently preliminarily enjoined by a federal district court on October 24, 2016, so that sections of the FAR that are affected by the court’s preliminary injunction order were amended.

FAC 2005-94

FAC 2005-94 included the following two items:

FAR Case 2010-013: Effective January 19, 2017, a final rule amends the FAR to require that contractors, whose employees have access to a system of records or handle personally identifiable information, complete privacy training.

FAR Case 2014-004: Also effective January 19, 2017,  a final rule amends the FAR to implement a section of the Small Business Jobs Act of 2010, which requires contractors to notify the contracting officer, in writing, if the contractor pays a reduced price to a small business subcontractor or if the contractor’s payment to a small business subcontractor is more than 90 days past due.

 

Other Proposed FAR Revisions

FAR Case 2015-012: A proposed rule would amend the FAR to implement a section of the Consolidated and Further Continuing Appropriations Act, 2015, that prohibits the use of funds, appropriated or otherwise made available, for a contract with an entity that requires employees or subcontractors to sign an internal confidentiality agreement that restricts such employees or subcontractors from lawfully reporting waste, fraud, or abuse to a designated Government representative authorized to receive such information.

FAR Case 2014-004: A proposed rule would amend the FAR to implement a section of the Small Business Jobs Act of 2010 that requires contractors to notify the Contracting Officer in writing if the contractor pays a reduced price to a small business subcontractor, or if the contractor’s payment to a small business contractor is more than 90 days past due.

FAR Case 2015-016: A proposed rule would amend FAR Part 31 to reflect the requirements of Section 857 of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113–291), which amended 10 U.S.C. 2324(e)(1) to disallow costs incurred by a contractor in connection with a Congressional investigation or inquiry into an issue that is the subject matter of a proceeding resulting in a disposition as described in 10 U.S.C. 2324(k)(2).  

FAR Case 2016-003: A proposed rule would amend the FAR to revise the estimated administrative cost to award and administer a contract, for the purpose of evaluating bids for multiple awards, from the current $500 to $1000.

FAR Case 2015-017: A proposed rule would amend the FAR to provide a definition of "recruitment fees" in furtherance of the FAR policy on combating trafficking in persons, which prohibits contractors from charging employees recruitment fees, in accordance with the Executive Order entitled "Strengthening Protections Against Trafficking in Persons in Federal Contracts."

FAR Case 2015-005: A proposed rule would amend the FAR to update the instructions for System for Award Management (SAM) registration requirements and to correct an inconsistency with offeror representation and certification requirements.

FAR Case 2015-024: A proposed rule would amend the FAR to create an annual representation within the System for Award Management for vendors to indicate if and where they publicly disclose greenhouse gas emissions and greenhouse gas reduction goals or targets.

FAR Case 2015-035: A proposal would amend the FAR: (i) to delete the use of "telegram," "telegraph," and related terms in recognition that they are obsolete technologies; and (ii) to make clear that termination notices and change orders may be sent by electronic means.

FAR Case 2016-004: A proposed rule would amend the FAR to implement the National Defense Authorization Act for Fiscal Year 2016 by raising the simplified acquisition threshold for special emergency procurement authority from $300,000 to $750,000 (within the United States) and from $1 million to $1.5 million (outside the United States).

FAR Case 2015-015: A proposed rule would amend the FAR to implement a section of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015. which provides that the contract file shall contain certain documentation if the Government makes a purchase of supplies and services offered under the Federal Strategic Sourcing Initiative (FSSI), but the FSSI is not used.

FAR CASE 2015-039: A proposed rule would revise the FAR to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to $750,000.

FAR Case 2013-018: In response to recommendations in GAO report GAO-13-118 concerning FAR guidance for sole-source 8(a) contract awards exceeding $22 million, a proposed rule would amend the FAR: (i) to clarify whether an 8(a) justification is required for 8(a) contracts that are subject to a pre-existing CICA class justification; (ii) to provide additional information on actions contracting officers should take to comply with the justification requirement when the contract value rises above or falls below $22 million between the SBA’s acceptance of the contract for negotiation under the 8(a) program and the contract award; and (iii) to clarify whether and under what circumstances a separate sole-source justification is necessary for out-of-scope modifications to 8(a) sole-source contracts.

FAR Case 2016-005: A proposed rule would amend the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2016, specifically to clarify that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms.

FAR Case 2014-002: A proposed rule would amend the FAR to implement regulatory changes previously made by the SBA (see the October 2 entry in the 2013 Blog), which provide government-wide policy for (i) partial set-asides and reserves and (ii) setting aside orders for small business concerns under multiple-award contracts.

Department of Defense FAR Supplement (DFARS)

Final Rules

DFARS Case 2015-D011: A final rule amended the DFARS to conform with the uniform procurement identification procedures implemented in the FAR.

DFARS Case 2015-D037: A final rule amended the DFARS to clarify when, in accordance with existing exceptions, it is appropriate to omit DFARS clause 252.225–7001  ("Buy American Act and Balance of Payments Program"), which applies to acquisitions at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items.

DFARS Case 2015-D017: A final rule amended the DFARS to clarify clauses and their prescriptions for small business programs and to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems.

DFARS Case 2015-D008: A final rule amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015 that amended a section of the National Defense Authorization Act for Fiscal Year 2010, to extend and modify contract authority for advanced component development and prototype units.

DFARS Case 2016-D012: A final rule amended the DFARS to delete obsolete text requiring the use of fire-resistant rayon fiber.

DFARS Case 2014-D026: A final rule amended the DFARS to require use of the electronic contract attachments accessible via the Product Data Reporting and Evaluation Program to record and track warranty data and source of repair information for serialized items.

DFARS Case 2015-D018: A final rule amended the DFARS to clarify that the permissible contract term for energy savings contracts awarded under 10 U.S.C. § 2913 is "a period not to exceed 25 years."

DFARS Case 2012-D029: This rule adopted as final, with changes, the prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that provides DoD the authority to allow its litigation support contractors access to "sensitive information" subject to certain restrictions.

DFARS Case 2015-D036: A final rule amended the DFARS to increase the threshold for duty-free entry on foreign supplies that are not from qualifying countries from $200 to $300.

DFARS Case 2015-D009: A final rule amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015 and a section of the Department of Defense Appropriations Act, 2015, which address various requirements for multiyear contracts.

DFARS Case 2015-D023: A final rule amended DFARS section 239.7401 to define "long-haul telecommunications" as "all general and special purpose long-distance telecommunications facilities and services (including commercial satellite services, terminal equipment and local circuitry supporting the long-haul service) to or from the post, camp, base, or station switch and/or main distribution frame (except for trunk lines to the first-serving commercial central office for local communications services)."

DFARS Case 2015-D021: A final rule amended the DFARS  to consolidate all requirements for DoD contractors performing private security functions outside the United States and make changes regarding applicability and high-level quality assurance standards.

DFARS Case 2016-D007: A final rule amended the DFARS to delete the supplemental coverage for the definition "simplified acquisition threshold" because FAR Case 2015–020 added to the FAR the simplified acquisition threshold for contracts to be awarded and performed, or purchases to be made, outside the United States in support of a humanitarian or peacekeeping operation.

DFARS Case 2015-D026: A final rule amended the DFARS to add Ukraine as a new designated country under the World Trade Organization Government Procurement Agreement.

DFARS Case 2016-D009: A final rule amended the DFARS to a section of the 2016 National Defense Authorization Act entitled "Treatment of Interagency and State and Local Purchases," which provides that contracts executed by DoD as a result of the transfer of contracts from the GSA (or for which DoD serves as an item manager for products on behalf of the GSA) shall not be subject to certain domestic source restrictions, to the extent that such contracts are for the purchase of products by other federal agencies or state or local governments.

DFARS Case 2014-D005: A final rule amended the DFARS to 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 2016-D023: A final rule amended the DFARS to add Japan and Slovenia as qualifying countries.

DFARS Case 2016-D027: A final rule amended the DFARS to specify the countries with which DoD has audit agreements, i.e., France, Germany, the Netherlands, and the United Kingdom.

DFARS Case 2016-D004: A final rule amended the DFARS to add instructions for utilizing the Wide Area WorkFlow Reparable Receiving Report.

DFARS Case 2016-D010: A final rule amended the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that amends the allowability of costs of counterfeit electronic parts or suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts.

DFARS Case 2016-D028: A final rule amended the DFARS to add Moldova as a new designated country under the World Trade Organization Government Procurement Agreement.

DFARS Case 2015-D040: A final rule amended the DFARS to prohibit any form of cost-plus contracting for military construction projects or military family housing projects.

DFARS Case 2016-D008: A final rule amended DFARS provisions that address rights in technical data relating to major weapon systems by expanding the application of the presumption that a commercial item has been developed entirely at private expense.

DFARS Case 2016-D018: A final rule amended the DFARS to consolidate the multiple hotline posters into one poster that delineates multiple reportable offenses.

DFARS Case 2013-D018: A final rule adopted, with changes, the prior rule amending the DFARS 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, as well as providing DoD policy on the purchase of cloud computing services.

DoD made technical amendments to the DFARS to make needed editorial corrections. Also, by means of an update to  FAR Case 2014-018, corrections were issued to the paragraph designations in the section of FAC 2005-91 concerning contractors performing private security functions.

DFARS Case 2016-D002: A final rule amended the DFARS to improve the effectiveness of independent research and development (IR&D) investments by the defense industrial base, by requiring contractors to engage in technical interchanges with DoD before costs are generated.

DFARS Case 2016-D005: A final rule amended the DFARS to remove the acronym for contiguous United States.

DFARS Case 2016-D014: A final rule amended the DFARS by adopting, with changes, the prior rule implementing a section of the National Defense Authorization Act for Fiscal Year 2016 that changes the criteria for the pilot program for acquisition of military purpose nondevelopmental items.

DFARS Case 2015-D026: A final rule amended the DFARS to provide that contracting officers are not required to further justify a decision to provide customary contract financing, other than loan guarantees and advance payments identified in FAR Part 32, for certain fixed-price contracts.

DFARS Case 2017-D001: A final rule amended the DFARS to add Estonia as a qualifying country.

Interim Rules

DFARS Case 2016-D014: An interim rule amended the DFARS to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year 2016 that changes the criteria for the pilot program on acquisition of military purpose nondevelopmental items.

 

Proposed Rules

DFARS Case 2016-D017: DoD solicited information to assist in the development of a revision to the DFARS to ensure that substantial future IR&D expenses are evaluated in a uniform way during competitive source selections.

DFARS Case 2016-D002: A proposed rule would revise DFARS 231.205–18 ("Independent Research and Development and Bid and Proposal Costs") to require that proposed new IR&D efforts be communicated to appropriate DoD personnel prior to the initiation of these investments and that results from these investments be shared with appropriate DoD personnel.

DFARS Case 2016-D010: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that amends the allowability of costs of counterfeit electronic parts or suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts.

DFARS Case 2016-D004: A proposed rule would amend the DFARS to add instructions for utilizing the Wide Area WorkFlow Reparable Receiving Report. 

DFARS Case 2015-D040: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that amended title 10 of the United States Code by prohibiting any form of cost-plus contracting for military construction projects or military family housing projects.  

DFARS Case 2016-D009: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 to provide that contracts executed by DoD as a result of the transfer of contracts from the GSA, or for which DoD serves as an item manager for products on behalf of the GSA, shall not be subject to certain domestic source restrictions, to the extent that such contracts are for the purchase of products by other federal agencies or state or local governments.

DFARS Case 2016-D018: A proposed rule would amend the DFARS to consolidate the multiple hotline posters into one poster that delineates multiple reportable offenses.

DFARS Case 2016-D008: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that addresses rights in technical data relating to major weapon systems by expanding the application of the presumption that a commercial item has been developed entirely at private expense.

DFARS Case 2015-D012: A proposed rule would amend the DFARS to provide policy and procedures for soliciting offers, evaluating proposals, and awarding contracts for the operation of a military dining facility pursuant to the Randolph-Sheppard Act; the National Defense Authorization Act (NDAA) for FY 2007; the Joint Report and Policy Statement issued pursuant to the NDAA for FY 2006; and the Committee for Purchase from People Who Are Blind or Severely Disabled statute.

DFARS Case 2012-D022: DoD proposed to revise the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that revises the sections of title 10 of the United States Code that address technical data rights and validation of proprietary data restrictions, specifically: (i) to add special provisions for handling technical data that are necessary for segregation and reintegration activities; (ii) to codify and revise the policies and procedures regarding deferred ordering of technical data necessary to support DoD major systems or subsystems, weapon systems, or noncommercial items or processes; (iii) to expand the period in which DoD can challenge an asserted restriction on technical data from 3 years to 6 years; (iv) to rescind changes to 10 U.S.C. 2320 from the NDAA for FY 2011; and (v) to  codify government-purpose rights as the default rights for technical data related to technology developed with mixed funding.

Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, DoD issued an interim final rule that, inter alia, adjusts the maximum civil monetary penalty for a false claim under 31 U.S.C. 3802(a)(1) or a false statement under 31 U.S.C. 3802(a)(2) upward to $10,781, to account for inflation.

DFARS Case 2016-D020: A proposed rule would amend the DFARS to revise the estimated administrative cost (from $500 to $1000) to award and administer a contract, for the purpose of evaluating bids for multiple awards.

DFARS Case 2015-D026: A proposed rule would amend DFARS provisions regarding the use of customary contact financing (other than loan guarantees and advance payments) on certain fixed-price contracts.

DFARS Case 2016-D013: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that makes contractors and subcontractors subject to approval (as well as review and audit) by appropriate DoD officials when identifying a contractor-approved supplier of electronic parts.

DFARS Case 2016-D016: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that provides exceptions from the certified cost and pricing data requirements and from the records examination requirement for certain awards to small businesses or nontraditional defense contractors.

DFARS Case 2016-D011: A proposed rule would amend the DFARS to implement section 861 of the National Defense Authorization Act for FY 2016, which concerns the DoD Pilot Mentor Protégé Program ("the Program") and: (i) imposes new reporting requirements on contractors who participate in the Program as mentors; (ii) adds new eligibility criteria; (iii) limits the number of mentor-protégé agreements to which a protégé firm may be a party; (iv) limits the period of time during which a protégé firm may participate in mentor-protégé agreements under the Program; (v) adds new elements to mentor-protégé agreements addressing the benefits of the agreement to DoD and goals for additional awards for which the protégé firm can compete outside the Program; (vi) removes business development assistance using mentor firm personnel and cash in exchange for an ownership interest in the protégé firm from the types of assistance that a mentor firm may provide to a protégé firm; (vii) prohibits reimbursement of any fee assessed by the mentor firm for certain services provided to the protégé firm while participating in a joint venture with the protégé firm; (viii) revises the definitions of the terms "small business concern" and "disadvantaged small business concern"; (ix) adds definitions for "severely disabled individual" and "affiliated"; and (x) extends the Program for three years.

DFARS Case 2015-D013: A proposed rule would amend the DFARS to make extensive revisions to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans.

DFARS Case 2015-D024: A proposed rule would amend the DFARS to provide a more transparent means of documenting the impact of costs incurred during the undefinitized period of an undefinitized contract action on allowable profit.  

DFARS Case 2015-D035: A proposed rule would amend the DFARS to expand the prescription for use of the FAR "Government Property" clause.

DFARS Case 2016-D017: A proposed rule would amend the DFARS to ensure that substantial future independent research and development expenses (as a means to reduce evaluated bid prices in competitive source selections) are evaluated in a uniform way during competitive source selections. 

DFARS Case 2015-D028: A proposed rule would revise the prior interim rule on the basis of comments received and amend the DFARS to to implement a section of the National Defense Authorization Act for Fiscal Year 2016 related to costs associated with indirect offsets under FMS agreements.

DFARS Case 2016-D015: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act that provides the competition requirements for religious-related services contracts on a U.S. military installation.

Other Agencies 

Agriculture

Bureau of Industry and Security (Department of Commerce)

 The State Department proposed to amend the ITAR by: (i) revising Category XII (fire control, laser, imaging, and guidance and control equipment) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control on the USML; and (ii) amending USML Categories VIII, XIII, and XV to reflect that items now described in those categories will be in the revised Category XII. Concurrently, the Bureau of Industry and Security (BIS) proposed to revise the CCL to reflect how items no longer warranting control under USML Category XII will be controlled under the EAR. 

The BIS adopted a final rule that:  (i) allows vessels departing the United States on temporary sojourn to Cuba with cargo for other destinations to travel to Cuba under a license exception rather than having to obtain a license for the cargo bound for those other destinations to transit Cuba; (ii) authorizes exports of certain items to persons authorized by the Department of the Treasury to establish and maintain a physical or business presence in Cuba; and (iii) contemplates a case-by-case review for exports and reexports of items that would enable or facilitate export of items produced by the private sector in Cuba, subject to certain limitations.

The BIS amended the Export Administration Regulations (EAR): (i) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the October 2015 Plenary in Rotterdam, Netherlands, and the April 2015 Technical Experts Meeting (TEM) in Bern, Switzerland; (ii) to make conforming changes to correlate the CCL (Supplement No. 1 to Part 774 of the EAR) and other EAR provisions with the current MTCR Annex; (iii) to revise six Export Control Classification Numbers (ECCNs) to implement the changes that were agreed to at the meetings and to better align the MT controls on the CCL with the MTCR Annex; (iv) to make a change to MT licensing policy to be consistent with the MTCR Annex General Minimum Software Note and the MTCR Annex General Technology Note that specify that a license for MT controlled items should also authorize certain minimum ‘‘software’’ and "technology"; and (v) to add a new paragraph to the section of the EAR that specifies which changes to a license are considered ‘‘non-material.’’ This amendment will facilitate this rule’s revised MT licensing policy, which will apply to all licenses for MT controlled items, except when excluded by a license condition.

The BIS and the State Department published parallel revisions to their export regulations (the EAR and the ITAR, respectively) to conform several definitions with one another. In addition,  and the BIS revisions clarify the application of controls to electronically transmitted and stored technology and software, including by way of cloud computing.

The BIS published a final rule amending the EAR  to implement the recommendations presented at the February 2015 Australia Group (AG) intersessional implementation meeting, and later adopted pursuant to the AG silent approval procedure, and the understandings reached at the June 2015 AG Plenary meeting. Specifically, this rule:  (i) amended the CCL entry that controls chemical precursors by adding the chemical diethylamine (C.A.S. 109– 89–7), which was not previously identified on the AG’s "Chemical Weapons Precursors" common control list; (ii) amended the CCL entry that controls certain human and zoonotic pathogens and toxins by adding two viruses that were not previously identified on the AG "List of Human and Animal Pathogens and Toxins for Export Control" and by updating the nomenclature of certain viruses that were already identified on this AG common control list; (iii) amended the CCL entry that controls equipment capable of handling biological materials to reflect the AG intersessional updates to the controls on biocontainment chambers, isolators, and biological safety cabinets and the controls on aerosol inhalation equipment described on the AG "Control List of Dual-Use Biological Equipment and Related Technology and Software": (iv) amended the CCL entry that controls equipment capable of handling biological materials by updating the controls on freeze-drying (lyophilization) equipment; (v) amended the EAR to reflect the addition of Angola and Burma as States Parties to the Chemical Weapons Convention (CWC);  and also (vi) amended the Chemical Weapons Convention Regulations (CWCR) to reflect the addition of these two countries as States Parties.

The BIS revised its regulations: (i) to amend a license exception to allow cargo aboard aircraft to transit Cuba when that cargo is bound for destinations other than Cuba; (ii) to authorize export and reexport of certain items sold directly to individuals in Cuba under a license exception; and (iii) to revise the lists of ineligible Cuban officials for purposes of certain license exceptions.

The the BIS amended the EAR to permit electronic submission as an additional method available to United States persons for reporting requests they have received to take certain actions in furtherance of an unsanctioned foreign boycott.

Tthe BIS revised the destination control statement in section 758.6 of the EAR to harmonize the statement required for the export of items subject to the EAR with the destination control statement in section 123.9(b)(1) of the ITAR. Also effective November 15, the Department of State is amending the ITAR to clarify rules pertaining to the export of items subject to the EAR, revise the destination control statement in ITAR § 123.9 to harmonize the language with the EAR, make conforming changes to ITAR §§ 124.9 and 124.14, and make several minor edits for clarity.

The BIS amended the EAR: (i) to implement United Nations Security Council Resolutions adopted in 2016 that terminated arms embargoes against Cote d’Ivoire and Liberia; and (ii) to remove U.S. arms embargo-related controls on both (a) Sri Lanka (to reflect the Consolidated Appropriations Act, 2016) and (b) Vietnam (pursuant to a determination made by the Secretary of State and announced by the President).

The BIS published a final rule amending the EAR to reflect the understandings reached at the June 2015 Nuclear Suppliers Group (NSG) Plenary meeting held in Bariloche, Argentina (which address the nuclear nonproliferation (NP) controls that apply to certain centrifugal multiplane balancing machines) and certain understandings reached at the 2016 NSG Plenary meeting held in Seoul, Republic of Korea (which address the NP controls that apply to certain linear displacement measuring systems).

The BIS amended the EAR consistent with Executive Order 13742 of October 7, 2016, which terminated the national emergency with respect to the actions and policies of the Government of Burma and revoked several Burma-related Executive Orders in recognition of Burma’s substantial advances to promote democracy, including historic elections held in November 2015 that resulted in the formation of a democratically elected, civilian-led government.

The Department of State amended 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. In conjunction with these changes, the BIS amended the CCL to add items deleted from the ITAR by the State Department's action. 

The BIS is revised the CCL: (i) to describe how items that no longer warrant control under Category XII of the ITAR will be controlled under the CCL by amending Export Control Classification Number (ECCN) 7A611 and creating new "600 series" ECCNs 7B611, 7D611, and 7E611;  (ii) to expand controls for certain software and technology relating to certain dual-use infrared detection items; (iii) to eliminate the use of some license exceptions, revise licensing policy, and expand license requirements for certain transactions involving military end users or foreign military commodities; and (iv) to harmonize provisions within the EAR by revising controls related to certain quartz rate sensors.

Effective January 4, 2017, the BIS is amending the EAR by removing the Special Iraq Reconstruction License.

With an interim final rule, the BIS amended the EAR to make certain items subject to that regulation and to impose on those items a license requirement for export and reexport to all destinations, except Canada. Specifically, this rule classifies certain specified targets "specially designed" for the production of tritium and related "development" and "production" technology under ECCNs 0A521 and 0E521, respectively, on the CCL.

The BIS revised the CCL as well as corresponding parts of the EAR in order to implement changes made to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies (WA List) agreed to at the December 2015 WA Plenary Meeting (the Plenary) by revising ECCNs controlled for national security reasons in each category of the CCL, including raising the Adjusted Peak Performance (APP) for high performance computers.  This rule also makes changes to the EAR that were not agreed to at the WA Plenary. APP parameters are amended in several places in the EAR by this rule, such as APP parameters in the de minimis rules, License Exception APP, and related reporting requirements. BIS is also updating license requirements and policies associated with Category 5—Part 2, including revising ECCNs 5A992, 5D992 and 5E992. In addition, this rule removes the Foreign National Review requirement associated with deemed exports under License Exceptions APP and CIV.

The BIS amended the EAR to remove nuclear nonproliferation Column 2 license requirements from certain pressure tubes, pipes, fittings, pipe valves, pumps, numerically controlled machine tools, oscilloscopes, and transient recorders on the CCL.

The BIS has amended the EAR to implement the recommendations presented at the February 2016 Australia Group (AG) Intersessional Implementation Meeting concerning certain toxins and antigens.

The BIS proposed to amend the EAR to remove the Special Iraq Reconstruction License (SIRL).

Department of Commerce

Department of Energy

The DOE proposed to amend its Acquisition Regulation (the "DEAR"), inter alia, to clarify that FAR 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated DOL regulations apply to subcontracts under DOE’s management and operating contracts.

Tthe DOE adopted a final rule amending the DEAR to make technical and administrative changes, including changes: (i) to conform to the FAR, (ii) to remove out-of-date coverage, (iii) to update references, and (iv) to correct minor errors and omissions.

Department of Transportation

The Department of Transportation finally revised its regulations to recognize (belatedly, by almost 10 years) that the DOT's board of contract appeals was absorbed by the CBCA in 2007.

EPA

The EPA issued a direct final rule to amend its Acquisition Regulation (the "EPAAR") to include a new solicitation provision and contract clause to implement the United States Government Policy for Institutional Oversight of Life Sciences Dual Use Research of Concern (iDURC Policy) by requiring both (i) domestic institutions that receive contract funding from EPA in order to conduct or sponsor life sciences research and (ii) institutions outside of the United States that receive contract funding from EPA to conduct or sponsor research with the agents or toxins listed in the iDURC Policy, to review and communicate their research responsibly in accordance with the iDURC Policy.

A final rule amended the EPAAR to update the "Level of Effort—Cost Reimbursement Contract" clause.

Tthe EPA revised the EPAAR provisions regarding construction, architect-engineer, and key personnel requirements to remove the evaluation of contracting performance and to 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 initially issued a rule revising its Disadvantaged Business Enterprise program at 40 C.F.R. Part 33 to improve the practical utility of the program, minimize burden, and clarify requirements that have been the subject of questions from recipients of EPA financial assistance and from disadvantaged business enterprises. Because, however, the EPA subsequently received adverse comments on the rule, the EPA withdrew it.

GAO

The GAO proposed fairly numerous and significant revisions to its bid protest regulations, including, among several other changes: (i) requiring all protests (except those containing classified material) to be filed by means of a soon-to-be-created Electronic Protest Docketing System (EPDS); (ii) requiring each protester to pay a filing fee (the amount of which is currently estimated to be $350); (iii) clarifying under 4 C.F.R. 21.2(a)(1) that challenges to a solicitation where the basis for a protest becomes known when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated must be filed within 10 days of when the alleged impropriety was known or should have been known; and (iv) revising 4 C.F.R. 21.2(a)(2) to clarify that the 10-day "safe-harbor" provision in this paragraph (i.e., the provision establishing that protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required shall be filed not later than 10 days after the date on which the debriefing is held) does not apply to protests challenging alleged solicitation improprieties covered by 4 C.F.R. 21.2(a)(1). Although the GAO has not yet announced the firm date when its new electronic filing system will take effect, it has  published the set of instructions that will govern such e-filings. Stay tuned for the effective date, which probably will appear first on the GAO's website.

General Services Administration (GSA)

GSAR Case 2015-G508: The GSA issued a final rule amending its acquisition regulation's coverage on Construction and Architect-Engineer Contracts, including provisions and clauses for solicitations and resultant contracts, to remove unnecessary regulations.

GSAR Case 2008-G506: A final rule amended GSAR Part 515 (Contracting by Negotiation) by eliminating out of date references and reorganizing the text to align with the FAR.

GSAR Case 2010-G511: A final rule amended GSAR Parts 511 (Describing Agency Needs), 538 (Federal Supply Schedule Contracting), and 552 (Solicitation Provisions and Contract Provisions): (i) 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; and (ii) to clarify the application of these laws and the access privileges of certain Non-Federal Entities purchasing off of Federal Supply Schedules.

GSAR 2007-G500: A final rule rewrote GSAR Part 517 (Special Contracting Methods) to update requirements for special contracting methods by eliminating out of date references and reorganizing the text to align with the FAR.

GSAR Case 2013-G504: A final rule amended the GSAR to include clauses that require vendors to report transactional data from orders placed against certain FSS contracts, Governmentwide Acquisition Contracts (GWACs), and Governmentwide IDIQ contracts.

GSAR Case 2016-G501: A final rule updated language regarding acquisition-related thresholds in various sections of the GSAR to align with the FAR.

GSAR Case 2015-G503: The GSA proposed to amend the GSAR's coverage on construction contracts, including provisions and clauses for solicitations and resultant contracts, to clarify, update, and incorporate existing construction contract administration procedures.

GSAR Case 2015-G506: The GSA also proposed to amend the GSAR to clarify the authority to acquire order-level materials when placing a task order or establishing a BPA against an FSS contract.

HHS

HUD

 HUD amended its acquisition regulation (HUDAR): (i) to correct the designation of Source Selection Authorities, (ii) to make a limited delegation of Head of Contracting Activity authorities; (iii) to incorporate the HUDAR Matrix; (iv) to addition new clauses relating to labor categories, prices per hour, and post-award conferences; (v) to revised clauses related to payments and invoicing as part of transitioning to the Department of Treasury’s Bureau of Fiscal Services’ Invoice Platform Processing System (IPP) in order to take into account both the situations where invoicing and payment will not be made through the IPP and where invoices are required to be submitted electronically through the IPP; (vi) to clarify that, where funding has been made available for a contract and the limit of the funding has been reached or the necessary funding modification is not in place, the contractor must stop performing work and may not start again until notified through a contract funding modification that funds are available to continue work; and (vii) to modify the proposed provision on post-award conferences to limit the clause to cases where a conference is required and provides an alternate clause for attendance at such conferences via telephone or video conference.

Labor

The DOL's OFCCP issued a final rule to detail obligations that covered Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors must meet 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 and employees are treated without regard to their sex.

The DOL issued final guidance (the Guidance) to assist the the FAR Council and federal contracting agencies in the implementation of Executive Order 13673, which, inter alia, (i) includes new instructions for federal contracting officers to consider a contractor’s compliance with certain federal and state labor laws as a part of the determination of contractor "responsibility," and (ii) directs the FAR Council to propose the rules and regulations necessary to carry out the Order and the Labor Department to develop guidance to help implement the new requirements. In this final Guidance, the Labor Department provides (i) detailed definitions for various terms used in the Order and the FAR rule to categorize and classify labor law violations, and (ii) a summary of the processes through which contracting agencies will assess a contractor’s overall record of labor law compliance and carry out their other duties under the Order. Subsequently, however, pending the resolution of a suit challenging their validity, the Federal District Court for the Eastern District of Texas temporarily stayed the implementation of the regulations that were intended to implement the Executive Order.

The DOL's Wage and Hour Division proposed regulations to implement Executive Order 13706 (Establishing Paid Sick Leave for Federal Contractors), which requires certain parties that contract with the Federal Government to provide their employees with up to 7 days of paid sick leave annually, including paid leave allowing for family care.

NASA

A  final rule amended the NASA Far Supplement (NFS) to remove references to NASA’s Grant and Cooperative Agreement Handbook, NASA Procedural Requirements (NPR) 5800.1, NASA Grant and Cooperative Agreement Handbook, and Office of Management and Budget (OMB) Circulars A–21 for educational institutions and A–122 for nonprofit organizations.  

NASA made various editorial changes to the NFS.

Effective January 17, 2017, NASA is amending its NFS to add a monthly reporting requirement for contractors having custody of $10 million or more in NASA-owned Property, Plant and Equipment.

NASA adopted as final, without change, an interim rule amending the NFS to implement revisions to the voucher submittal and payment process.

NASA issued an interim rule amending the NFS to implement revisions to the voucher submittal and payment process required by section 893 of the National Defense Authorization Act for Fiscal Year 2016, which prohibits the DCAA from performing audit work for non-Defense agencies.

NASA proposed to amend the NFS to clarify NASA’s award fee process by: (i) incorporating terms used in award fee contracting; (ii) revising guidance relative to final award fee evaluations; (iii) providing clarification concerning the release of source selection information included in the CPARS; and (iv) explaining the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts. Subsequently, effective August 31, a final rule implemented these provisions.

NASA proposed to amend the NFS to add a monthly reporting requirement for contractors having custody of $10 million or more in NASA-owned Property, Plant and Equipment (PP&E).

NASA proposed to amend the NFS to remove both basic NFS clause 1852.243–70 (Engineering Change Proposals (ECPs)) and its Alternate I & II, as well as associated information collection requirements.

NASA is proposing to amend the NFS to implement policy providing for additional contract periods of performance which a contractor may earn if the contractor’s sustained performance is superior, the Government has an on-going need for the requirement, and funds are available.

Office of Special Counsel

Small Business Administration (SBA)

The SBA issued an extensive set of revisions to its regulations, including, but not limited to, the following areas. Under 13 C.F.R. Part 121 (the SBA's size regulations), the SBA:  (i) notes that, in a solicitation for a bundled contract, a small business contractor may enter into a Small Business Teaming Arrangement with one or more small business subcontractors and submit an offer as a small business without regard to affiliation, so long as each team member is small for the size standard assigned to the contract or subcontract; (ii) makes it clear that a joint venture of two or more business concerns may submit an offer as a small business for a federal procurement, subcontract or sale so long as each concern is small under the size standard corresponding to the NAICS code assigned to the contract. The revisions also clarify: (i) the tests for a finding of affiliation by identity of interest and for the clear fracture required to avoid such a finding; (ii) the ostensible subcontractor rule; (iii) the methods SBA uses to calculate annual receipts for purposes of revenue-based size standards, (iv) the date when SBA determines a firm's size for architect-engineering contracts and in situations involving a merger, sale, or acquisition; (v) the requirements under 13 C.F.R. § 121.406 (entitled "How does a small business concern qualify to provide manufactured products or other supply items under a small business set-aside, service-disabled veteran-owned small business, HUBZone, WOSB or EDWOSB, or 8(a) contract?"); (vi) the procedures under 13 C.F.R § 121.408 for obtaining a Certificate of Competency; and (vii) the procedures for waiver of the nonmanufacturer rule. The revisions also attempt (not wholly successfully, imho) to eliminate the infamously confusing double negative in 13 C.F.R. 121.1001 concerning which offerors are eligible to file size protests. The new regulations also include revisions to 13 C.F.R. Parts 124 (the 8(a) program requirements), 125 (Government Contacting Programs), 126 (HUBZone requirements) and 127 (Women-Owned Small Business requirements).

Tthe SBA amended its regulations: (i) to establish a government-wide mentor-protégé program for all small business concerns, consistent with the SBA’s mentor-protégé program for participants in the SBA’s 8(a) Business Development (BD) program; (ii) to make minor changes to the mentor-protégé provisions for the 8(a) BD 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. Subsequently, The SBA corrected various errors in the recently published rules concerning the mentor-protégé program. The SBA subsequently issued a notice making another correction. Still later, the SBA published additional corrections.  

The SBA issued the following statement of policy to clarify how it analyses interaffiliate transfers in determining a firm's size under revenue-based size standards: "SBA will not restrict the exclusion for interaffiliate transactions to transactions between a concern and a firm with which it could file a consolidated tax return. The exclusion for interaffiliate transactions may be applied to interaffiliate transactions between a concern and a firm with which it is affiliated under the principles in 13 C.F.R 121.103. Where SBA is conducting a size determination, SBA requires that exclusions claimed under section 121.104(a) be specifically identified by the concern whose size is at issue and be properly documented. This policy is effective immediately."

The SBA modified 36 employee-based small business size standards for industries and subindustries (i.e., "exceptions" in SBA’s table of size standards) that are not part of NAICS Sector 31–33 (Manufacturing), Sector 42 (Wholesale Trade), or Sector 44–45 (Retail Trade).

The SBA (i) increased small business size standards for 209 industries in NAICS Sector 31–33 (Manufacturing); (ii) modified the size standard for NAICS 324110 (Petroleum Refiners) by increasing the refining capacity component of the size standard to 200,000 barrels per calendar day for businesses that are primarily engaged in petroleum refining and by eliminating the requirement that 90 percent of the output to be delivered be refined by the successful bidder from either crude oil or bona fide feedstocks; and (iii) updated Footnote 5 to NAICS 326211 to reflect the current Census Product Classification Codes 3262111 and 3262113.

While noting that the following revisions "primarily affect eligibility for SBA’s financial assistance programs, and have no impact on Federal procurement programs," the SBA:  (i) increased small business size standards based on a concern’s number of employees for 46 industries in NAICS Sector 42 (Wholesale Trade) and one industry in NAICS Sector 44–45 (Retail Trade), effective February 26;   and (ii) retained the size standards for the remaining industries in those sectors and the 500-employee size standard for the procurement of supplies under the nonmanufacturer rule.

The SBA adopted as final (and without changes) the prior interim final rule that adjusted monetary small business size standards (i.e., receipts, assets, net worth, and net income) for inflation that has occurred since the last inflation adjustment in 2008.

The SBA adopted several amendments to the regulations governing the HUBZone Program to implement section 866 of the National Defense Authorization Act for Fiscal Year 2016, specifically: (i) to authorize Native Hawaiian Organizations to own HUBZone small business concerns; (ii) to expand the definition of "base closure area" under the HUBZone program; and (iii) to authorize the inclusion of "qualified disaster areas" under the HUBZone program.  

Effective January 23, 2017, the SBA is revising its regulations to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014, which amended the Small Business Act to provide that where a prime contractor has an individual subcontracting plan for a specific prime contract with an executive agency, the prime contractor shall receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract.

The SBA sought comments on a proposed amendment to its regulations governing the small business timber set-aside program which will require that appraisals be based on the nearest small business mill.

The SBA proposed to amend the rules of practice of its Office of Hearings and Appeals (OHA), inter alia, to implement Section 869 of the National Defense Authorization Act for Fiscal Year 2016, which authorizes OHA to decide petitions for reconsideration of new, revised, or modified size standards.

The SBA seeks comments by January 23, 2017, on a notice of proposed rulemaking regarding the Women's Business Center (WBC) Program that would incorporate the SBA’s oversight of the WBC Program into regulations in a new Part 131 of the SBA’s regulations by: (i) creating standard definitions for the program; (ii) incorporating program-participation requirements and application procedures; (iii) incorporating financial-management and grant-administration requirements; (iv) detailing reporting requirements including oversight and programmatic and financial examination provisions; (v) incorporating procedures for dispute resolution, suspension, termination and non-renewal of a grant; and (vi) setting forth privacy requirements.

State Department

The BIS and the State Department published parallel revisions to their export regulations (the EAR and the ITAR, respectively) to conform several definitions with one another. In addition,  the ITAR revisions: (i) create definitions of "release" and "retransfer" in order to clarify and support the interpretation of the revised definitions; (ii) publish new sections detailing the scope of licenses and the unauthorized releases of controlled information; (iii) update the section on "exports" of technical data to U.S. persons abroad; and (iii) consolidate regulatory provisions concerning the treatment of foreign dual and third country national employees within one exemption.

The State Department amended the ITAR (22 C.F.R. Parts 120, 125, 126, 130): (i) to revise the definition of "retransfer" in § 120.51 to clarify that temporary transfers to third parties and releases to same-country foreign persons are within the scope of the definitions; (ii) to add a new paragraph (f) in § 125.1 to mirror the new sections of the ITAR in §§ 123.28 and 124.1(e) detailing the scope of licenses; (iii) to revise § 126.16(a)(1)(iii) and § 126.17(a)(1)(iii) to reflect the definitions of reexport and retransfer in the Defense Trade Cooperation Treaties with Australia and the United Kingdom, respectively, and to make appropriate revisions to the definitions of reexport in § 120.19 and retransfer in § 120.51 to reflect that these definitions do not apply in the treaty context; (iv) to revise § 126.18(d)(1) to clarify that the provisions include all foreign persons who meet the definition of regular employee in § 120.39; and (v) to revise § 130.2 to ensure that the scope of the Part 130 requirements does not change due to the revised and new definitions. 

A final rule adopted the prior proposed rule without change and revised 15 C.F.R. Part 701 to require reporting of offsets agreements in connection with sales of items controlled on the United States Munitions List (USML) and items controlled in "600 series" Export Control Classification Numbers (ECCNs) on the CCL except for certain submersible and semisubmersible cargo transport vessels and related items that are not on the control lists of any of the multilateral export control regimes of which the United States is a member.

The State Department amended the ITAR to clarify (i) the scope of disclosure of information submitted to the Directorate of Defense Trade Controls (DDTC) and (ii) the policies and procedures regarding statutory debarments.

The State Department issued an interim final rule amending the ITAR: (i)  to designate Tunisia as a major non-NATO ally; (ii) to reorganize the content in several paragraphs to clarify the intent of the ITAR; (iii) to update defense trade policy regarding Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, and Cote d’Ivoire to reflect resolutions adopted by the United Nations Security Council; (iv) to update defense trade policy regarding Sri Lanka to reflect the Consolidated Appropriations Act, 2016; and (v) to update defense trade policy regarding Vietnam to reflect a determination made by the Secretary of State.

The  State Department amended the ITAR by: (i) revising Category XII (fire control, laser, imaging, and guidance equipment) of the USML to remove certain items and to describe more precisely the articles continuing to warrant control; (ii) revising Categories VIII, XIII, and XV to reflect that the items previously described in those Categories are now controlled under the revised Category XII or CCL; and (iii) amending Category XI to move items to the CCL as a result of changes to related control in Category XII. Simultaneously, the BIS revised the CCL: (i) to describe how items that no longer warrant control under Category XII of the ITAR will be controlled under the CCL by amending ECCN 7A611 and creating new "600 series" ECCNs 7B611, 7D611, and 7E611;  (ii) to expand controls for certain software and technology relating to certain dual-use infrared detection items; (iii) to eliminate the use of some license exceptions, revise licensing policy, and expand license requirements for certain transactions involving military end users or foreign military commodities; and (iv) to harmonize provisions within the EAR by revising controls related to certain quartz rate sensors.

The State Department amended the ITAR to revise Categories XIV (toxicological agents, including chemical agents, biological agents, and associated equipment) and XVIII (directed energy weapons) of the USML to describe more precisely the articles warranting control there. In conjunction with these changes, the Commerce Department's Bureau of Industry and Security amended the CCL to add items deleted from the ITAR by the State Department's action. 

The BIS revised the destination control statement in section 758.6 of the EAR to harmonize the statement required for the export of items subject to the EAR with the destination control statement in section 123.9(b)(1) of the ITAR. In parallel, the Department of State amended the ITAR to clarify rules pertaining to the export of items subject to the EAR, revise the destination control statement in ITAR § 123.9 to harmonize the language with the EAR, make conforming changes to ITAR §§ 124.9 and 124.14, and make several minor edits for clarity.

The State Department proposed to amend the ITAR by: (i) revising Category XII (fire control, laser, imaging, and guidance and control equipment) of the USML to describe more precisely the articles warranting control on the USML; and (ii) amending USML Categories VIII, XIII, and XV to reflect that items now described in those categories will be in the revised Category XII. Concurrently, the BIS proposed to revise the CCL to reflect how items no longer warranting control under USML Category XII will be controlled under the EAR. 

The State Department proposed to amend its acquisition regulation (the DOSAR) to provide procedural changes relating to the suspension and debarment process. Subsequently, the State Department adopting the proposed revisions as final.

U.S. Agency for International Development

The U. S. Agency for International Development (USAID) revised its acquisition regulation (AIDAR) section 752.247–70 (Preference for Privately Owned U.S.-Flag Commercial Vessels) to conform to the current requirements of the Cargo Preference Act of 1954, which mandates that at least 50 percent of the gross tonnage of all government-generated cargo be transported on privately owned, U.S.-Flag commercial vessels, to the extent such vessels are available at fair and reasonable rates. The USAID also revised  clause 752.247–70 to conform to the current requirements of the Cargo Preference Act of 1954 and provide up-to-date submission instructions to the Maritime Administration.

 USAID amended the AIDAR to maintain consistency with federal and other agency regulations and incorporate current and new USAID clauses.

The agency proposed to amend the AIDAR: (i) to incorporate a warrant program for cooperating country national personal service contractors into the regulation in order to address a shortage of U.S. direct-hire contracting officers by delegating limited contracting officer authority to a select number of Cooperating Country National personal services contractors and to build long-term, host country technical capacity to assist the agency's missions with procurement responsibility; and (ii) to clarify that third-country-national  and cooperating-country-national employment requirements do not apply to consultants.

USAID sought comments on a proposed rule that would amend its Acquisition Regulation (AIDAR) to clarify the accountability for all mobile Information Technology equipment provided as government-furnished property by government officials.

U.S. Office of Government Ethics

For purposes of the one-year postemployment conflict of interest restriction for senior employees, the U.S. Office of Government Ethics issued a proposed rule to revoke two existing component designations/a> and add five new component designations, based on the recommendations of the agencies concerned.

Treasury

The Treasury Department proposed to amend its acquisition regulation (DTAR) to provide for the incremental funding of Fixed-Price, Time-and-Material or Labor-Hour contracts during a continuing resolution. Effective December 16, a final rule will accomplish this result.

 

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