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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
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 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.
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.
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).
The 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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