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Contents
Statutes
John S. McCain National Defense Authorization Act, 2019
Consolidated Appropriations Act, 2018
Executive Orders
and Related Publications
Regulations
Federal Acquisition
Regulation (FAR)
Federal
Acquisition Circulars (FAC)
FAC
2005-98
Federal Acquisition Circular (FAC)
2005-98 included the following four
items:
FAR Case 2017-007: A final rule amended the
FAR (i) to implement a section of the National Defense
Authorization Act for Fiscal Year 2017 to raise the threshold
for task and delivery-order protests from $10 million to $25
million (applicable to DoD, NASA, and the Coast Guard) and (ii)
to repeal the sunset date for the authority to protest the
placement of an order (for the other civilian agencies), which
was also previously repealed by the GAO Civilian Task and
Delivery Order Protest Authority Act of 2016. After the change
takes effect, FAR 16.505(a)(10) will read as follows:
No
protest under subpart 33.1 is authorized in connection with the
issuance or proposed issuance of an order under a task-order
contract or delivery-order contract, except— (A) A protest on
the grounds that the order increases the scope, period, or
maximum value of the contract; or (B)(1) For agencies other than
DoD, NASA, and the Coast Guard, a protest of an order valued in
excess of $10 million (41 U.S.C. 4106(f)); or (2) For DoD, NASA,
or the Coast Guard, a protest of an order valued in excess of
$25 million (10 U.S.C. 2304c(e)).
FAR Case
2017-008: A final rule amended the FAR to
reflect sections of the National Defense Authorization Act for
Fiscal Year 2017, which amend section 15(k) of the Small
Business Act to provide additional duties for agencies’
Office of Small and Disadvantaged Business Utilization (OSDBU),
and for DoD’s Office of Small Business Programs (OSBP).
FAR Case
2017-004: A final rule amended the FAR to
adjust for inflation the rate of liquidated damages assessed for
violations of the overtime provisions of the Contract Work Hours
and Safety Standards Act.
FAR
Case 2015-039: A final rule amended the FAR
to raise the dollar threshold requirement for the audit of prime
contract settlement proposals and subcontract settlements from
$100,000 to align with the threshold for obtaining certified
cost or pricing data.
FAC
2005-99
FAC
2005-99 included the following two items:
FAR Case 2018-010: An interim rule amended the FAR
to implement section 1634 of Division A of the
National Defense Authorization Act (NDAA) for FY
2018 (Pub. L. 115–91), which prohibits the use of
hardware, software, and services of Kaspersky Lab and
its related entities by the Federal Government on or
after October 1, 2018.
FAR Case 2017-018: An interim rule amended the FAR
to implement another section of the NDAA for Fiscal
Year 2017 that addresses measures against persons
involved in activities that violate arms control
treaties or agreements with the United States,
specifically by amending FAR part 9 ("Contractor
Qualifications") and adding a contract provision at
FAR 52.209–13.
FAC
2005-100
FAC
2005-100 included the following two
items plus technical amendments:
FAR Case 2017-001: A final rule adopted, without change, the
prior interim rule amending the FAR to implement (i) E.O. 13706 establishing paid sick leave for federal contractors and
(ii) a final rule issued by the DOL.
FAR Case 2016-007: A final rule adopted, without change, the
prior interim rule amending the FAR to implement (i) E.O. 13665
(Non-retaliation for Disclosure of Compensation
Information) and (ii) a final rule issued by the DOL.
The FAC also included
technical amendments that make quite a a few
editorial changes to the FAR, including updated web
links.
FAC
2005-101
FAC
2005-101 included the following two
items:
FAR Case 2015-005: A final rule amended the FAR to update the
instructions for, and clarify the timing of, registering in SAM.
FAR Case 2018-009: A final rule amended the FAR to implement
section 885 of the National Defense Authorization Act for Fiscal
Year 2018, which provides an exception for business operations
conducted by a contractor while performing under a government
contract from the requirement to accept and dispense $1 coins.
FAC
2019-01
FAR Case 2015-017: Effective January 22, 2019, a final rule
amends the FAR to add a definition of "recruitment fees"
in FAR 22.1702 in order to
further implement the FAR policy on combating trafficking in
persons.
Other Proposed FAR Revisions
FAR
Case 2017 -006: A proposed rule would amend FAR
15.403-1(c)(1) to provide guidance to the affected
agencies (DoD, NASA, and the Coast Guard) concerning a
separate standard for "adequate price competition" in
their competitions in order to be consistent with the
requirements of section 822 of the National Defense
Authorization Act for FY 2017, which limits the
exception for price based on adequate price
competition for those agencies to circumstances in
which there is adequate competition that results in at
least two or more responsive and viable competing
bids.
FAR Case 2017-009: A proposed rule would amend the
FAR to implement sections of the National
Defense Authorization Act for FY 2017, specifically:
(i) to expand special emergency procurement
authorities for acquisitions of supplies or services
that facilitate defense against or recovery from cyber
attack; (ii) to provide international disaster
assistance under the Foreign Assistance Act of 1961;
or (iii) to support the response to an emergency or
major disaster under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act.
FAR Case 2017-017: A proposed rule would amend FAR subpart
7.4 by: (i) adding language to the scope of the subpart to
clarify that the term ‘‘lease," as used in the subpart, applies
to both the lease and rental of equipment, and to identify some
general factors that may vary when leasing or renting equipment;
and (ii) adding a reference to a GSA website which provides
information that could assist the Contracting Officer in making
equipment lease or purchase decisions, and updating the name of
the GSA office to contact when an agency requests assistance
with the lease versus purchase analysis decision. In addition,
weblinks to OMB guidance for lease-purchase analysis are
included.
FAR Case 2017-020: A proposed rule would amend the FAR to
implement a new clause that provides the agency task- and
delivery-order ombudsman's responsibilities and contact
information for use in multiple-award IDIQ contracts. Comments
are due by December 31.
FAR Case 2016-011: A proposed rule would amend the
FAR to implement the final rule published by the SBA
implementing section 1651 of the National Defense
Authorization Act for FY 2013, which revised and
standardized the limitations on subcontracting,
including the nonmanufacturer rule, that apply to
small business concerns under FAR part 19
procurements. Comments are due by February 4, 2019.
Department of Defense FAR
Supplement (DFARS)
Final
Rules
DFARS Case 2016-D006: DoD published a final rule
to implement sections of the
National Defense Authorization Acts for
Fiscal Years 2013, 2016, and 2018
relating to acquisitions of commercial items, including
guidance on analyzing cost and price reasonableness
for such acquisitions.
DFARS Case 2018-D004: Another final rule designated
North Korea as a state sponsor of terrorism.
DFARS Case 2016-D011: DoD amended the DFARS to to
implement section 861 of the National Defense Authorization Act
(NDAA) for FY 2016, which provides amendments to the
DoD Pilot Mentor Protégé Program, inter alia: (i) to
establish new reporting requirements for mentor firms that will
provide information to DoD’s Office of Small Business Programs
to support decisions regarding continuation of particular mentor
protégé agreements; (ii) to add new (a) eligibility criteria;
(b) limitations on a protégé firm’s participation in the
Program; and (c) elements to mentor-protégé agreements; (iii) to
extend the Program for three additional years; and (iv) to amend
requirements for business development assistance provided by a
mentor firm and for reimbursement of fees assessed by the mentor
firm.
DFARS Case 2016-D015: A final rule amended the
DFARS to implement a section of the National Defense
Authorization Act for Fiscal Year 2016, clarifying the
competition requirements for the acquisition of
religious-related services contracts on a United
States military installation.
DFARS Case 2017-D004: A final rule amended the
DFARS to remove outdated coverage of consolidation of
contract requirements that implemented 10 U.S.C. 2382,
which was repealed by section 1671 of the National
Defense Authorization Act for Fiscal Year 2013 (Pub.
L. 112–239).
DFARS Case 2017-D033: A final rule amended the
DFARS to relocate the definition of information
technology within the DFARS from DFARS 202.101 to
DFARS 239.7301.
DFARS Case 2017-D039: A final rule amended the
DFARS to remove limiting language related to
educational service agreements in order to allow DoD
to make agreements that permit payment for Masters of
Laws degrees and other legal training programs, in
accordance with applicable law, regulation, and
policy.
DFARS Case 2017-D032: A final rule amended the
DFARS to implement a section of the National Defense
Authorization Act for Fiscal Year 2017 that prohibits
use of funds for certain programs and projects of the
Department of Defense in Afghanistan that cannot be
safely accessed by United States Government personnel.
DFARS Case 2015-D013: A final rule amended the
DFARS to implement sections of the National Defense
Authorization Acts for Fiscal Years 2015, 2016, and
2017 to provide revisions to the Test Program for
Negotiation of Comprehensive Small Business
Subcontracting Plans.
DFARS Case 2015-D030: A final rule amended the DFARS to state
that, in the interest of promoting voluntary contractor
disclosure of defective pricing identified by the contractor
after contract award, DoD contracting officers have discretion
to request a limited-scope or full-scope audit, as appropriate
for the circumstances.
DFARS Case 2018-D005: A final rule amended the DFARS to
provide a statement of purpose at section 201.101, as required
by the National Defense Authorization Act for Fiscal Year 2018.
DFARS Case
2016-D013: A final rule amended the DFARS to make contractor
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 2018-D024: A final rule amended the
DFARS: (i) to delegate to the head of the contracting
activity the decision authorities provided to the head
of the agency by sections of the National Defense
Authorization Act ("NDAA") for Fiscal Year 2018 that
provide new special emergency procurement authorities;
and (ii) to make conforming changes to nonstatutory
emergency acquisition flexibilities relating to
item-unique identification, receipt of only one offer,
and limitations on time-and-materials contracts.
DFARS Case 2017-D027: A final rule amended the
DFARS to implement sections of the NDAA for Fiscal
Year 2017 that increase the micro-purchase threshold
DoD procurements generally to $5,000 and to $10,000
for purposes of DoD basic research programs and for
the activities of the DoD science and technology
reinvention laboratories.
DFARS Case 2018-D026: A final rule amended the
DFARS to clarify the agency that conducts the
background check procedures that are required for
contractors who perform work on U.S.- flag vessels
under DoD contracts for ocean transportation services.
DFARS Case 2018-D002: A final rule amended the
DFARS to remove DFARS 252.222-7001 because it is
duplicative of existing FAR 52.207-3, which requires a
contractor to give government personnel the right of
first refusal for employment openings in certain
situations.
DFARS Case 2017-D044: A final rule amended the
DFARS to remove DFARS 252.204-7004 because it is
duplicative of FAR 52.204-7, which requires a vendor
to enter CAGE code information into a governmentwide
database prior to award of any contract or agreement.
DFARS Case 2018-D006: A final
rule amended the DFARS to implement a section of the
NDAA for Fiscal Year 2018 that established October 1
as a sunset date for restrictions on acquisition
of chemical weapons antidote contained in automatic
injectors, or the components of such injectors.
DFARS Case 2017-D045: A final rule amended the
DFARS to remove DFARS 252.204-7011, which provided
guidelines to offerors when proposing an alternative
line item structure in response to a solicitation,
because it is duplicative of FAR 52.204-22.
DFARS Case 2018-D003: A final rule amended the
DFARS to remove DFARS 252.222-7007, Representations
Regarding Combating Trafficking in Persons, and
associated provisions because they are duplicative of
federal statutes and FAR 52.222-50.
DFARS Case 2015-D028: A final rule amended the
DFARS: (i) to implement section 812 of the National
Defense Authorization Act (NDAA) for FY 2016 related
to the costs associated with indirect offsets under
FMS agreements; and (ii) to expand on the prior
interim rule guidance related to FMS offset costs.
DFARS Case 2018-D032: A final rule amended the
DFARS to remove the DFARS clause 252.215–7000
("Pricing Adjustments") as unnecessarily duplicative
of language in various FAR "cost or pricing data"
clauses.
DFARS Case 2018-D030: A final rule amended the
DFARS to remove DFARS clause 252.216–7010
("Requirements"--Alternate) as unnecessarily
duplicative of FAR clause 52.216–21 ("Requirements").
DFARS Case 2015-D024: A final rule amended the
DFARS (including DFARS 215.404-71-2 and -3) 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 2018-D042: A final rule amended the
DFARS to remove the DFARS clause 252.247– 7006
("Removal of Contractor’s Employees") and the
associated clause prescription at DFARS 247.270–4
because the information in the clause is more
appropriate for a Statement of Work than for a
contract clause.
DFARS Case 2017-D041: A final rule amended the
DFARS to remove a requirement at DFARS
231.205–18(c)(iii)(C)(4) for major contractors to
engage in and document a technical interchange with
the Government prior to generating independent
research and development costs.
DoD
removed the following four contract clauses (and the
associated clause prescriptions) from the DFARS because they are
outdated or no longer necessary: (i)
DFARS 252.247-7020 ("Additional Services"); (ii)
DFARS 252.216-7005 ("Award Fee"); (iii)
DFARS 252.247-7004 ("Indefinite Quantities--Fixed Charges");
and (iv) DFARS 252.247-7005 ("Indefinite Quantities--No Fixed
Charges").
DFARS Case 2017-D016: A final rule amended
the DFARS to implement section 1823 and paragraph (b)
of section 1813 of the National Defense Authorization
Act for FY 2017, which revise the definition and
requirements associated with affiliation between
mentor firms and their protégé firms and add new types
of assistance for mentors to provide to their
protégés.
DFARS Case 2018-D033: A final rule amended
the DFARS to remove both DFARS 252.211–7000
("Acquisition Streamlining") and the associated clause
prescription at DFARS 211.002–70 as unnecessary.
DFARS Case 2018-D041: A final rule amended
the DFARS to remove DFARS 252.236–7009 ("Option for
Supervision and Inspection Services"), as well as the
associated clause prescription at DFARS
236.609–70(a)(1), and to revise a cross reference in
the introductory text to DFARS clause 252.236–7011,
all of which are no longer necessary.
DFARS Case 2018-D036: A final rule amended
the DFARS to remove DFARS 252.228–7004 ("Bonds or
Other Security") and the associated clause
prescription at DFARS 228.170 as unnecessary.
DFARS Case 2018-D052: A final rule amended
the DFARS to remove an obsolete requirement from the
clause at DFARS 252.219–7009 ("Section 8(a) Direct
Award"), specifically the requirements that 8(a)
contractors obtain written approval from the SBA and
the contracting officer prior to subcontracting the
performance of any contract requirements, because this
requirement no longer exists in SBA’s own 8(a)
Business Development Program regulations.
DFARS Case 2018-D073: A final rule amended the
DFARS to implement a section of the National Defense
Authorization Act for FY 2019 that removes the
requirement to make a best procurement approach
determination in order to use an interagency
acquisition.
DFARS Case 2018-D025: A final rule amended the
DFARS to modify DFARS clause 252.217–7001 ("Surge
Option") by replacing the term "Production Surge Plan
(DI– MGMT–80969)" with "Capabilities Analysis Plan
(CAP)" and by adding text to permit the option
increase of supplies or services called for under the
clause to be expressed as a specific number. The
associated clause prescription at DFARS 217.208–70(b)
is amended to reflect that the option increase of
supplies or services may also be expressed as a
specific number.
DFARS Case 2018-D007: A final
rule amended the DFARS to implement a section of the
National Defense Authorization Act for FY 2018 that
repeals the Fiscal Year 2015 restrictions on the
source of photovoltaic devices in contracts awarded by
DoD that result in DoD ownership of photovoltaic
devices by means other than DoD purchase of the
photovoltaic devices as end products.
DFARS Case 2018-D060: A final rule amended the
DFARS to implement a section of the National Defense
Authorization Act for Fiscal Year 2019 that modifies
the limitations on awarding single-source task or
delivery order contracts exceeding $112 million.
DFARS Case 2017-D011: A final rule amended the
DFARS to implement sections of the National Defense
Authorization Act for Fiscal Year 2017 to apply
domestic source requirements to acquisitions at or
below the simplified acquisition threshold when
acquiring athletic footwear to be furnished to
enlisted members of the Armed Forces upon their
initial entry into the Armed Forces and to add
Australia and the United Kingdom to the definition of
the "National Technology and Industrial Base."
DFARS Case 2017-D005: A final rule amended the
DFARS to change the entity to which contractors submit
Summary Subcontract Reports in the Electronic
Subcontracting Reporting System (eSRS) and to change
the entity that acknowledges receipt of, or rejects,
the reports in eSRS.
DFARS Case 2016-D032: A final rule amended the
DFARS to clarify policies and procedures for
submission of payment requests and receiving reports
in electronic form.
DFARS Case 2018-D020: An interim rule amended the
DFARS to implement sections of the National Defense
Authorization Acts for Fiscal Years 2017 and 2018,
which: (i) impose additional prohibitions with regard
to the acquisition of certain foreign commercial
satellite services, such as cybersecurity risk and
source of satellites and launch vehicles used to
provide the foreign commercial satellite services and
expand the definition of "covered foreign country" to
include Russia; and (ii) prohibit the purchase of
items from a Communist Chinese military company if
those items meet the definition of goods and services
controlled as munitions items when moved to the CCL
List of the Department of Commerce's EAR. Comments are
due by February 19, 2019.
Proposed
Rules
DFARS Case 2018-D012: A proposed rule would amend
the DFARS to implement sections of the NDAA for Fiscal
Years 2017 and 2018 that permit expedited closeout of
certain contracts entered into on a date that is at
least 17 fiscal years before the current fiscal year.
DFARS Case 2016-D032: A proposed rule would amend
the DFARS (including language in various provisions in
DFARS parts 232, 246, 252, and Appendix F) to clarify
the policies and procedures for the submission of
payment requests and receiving reports in electronic
form.
DFARS Case 2017-D010: A proposed rule would
amend the DFARS to implement section 874 of the NDAA
for FY 2017 that addresses the inapplicability of
certain laws and regulations to the acquisition of
commercial items, including commercially available
off-the-shelf items.
DFARS Case 2018-D025: A proposed rule would
amend the DFARS to revise DFARS clause 252.217-7001
("Surge Option") to reflect current terminology and
industry practices, pursuant to action taken by the
Regulatory Reform Task Force.
DFARS Case 2017-D009: A proposed rule would amend
the DFARS, principally DFARS 215.271-3 and related
solicitation and contract clauses, to partially
implement a section of the NDAA for FY 2017 to address
the requirement for certification of cost or pricing
data and potential submission of additional certified
cost or pricing data when only one offer is received
in response to a competitive solicitation.
DFARS Case 2017-D005: A proposed rule would amend
the DFARS to clarify the entity to which contractors
submit Summary Subcontract Reports in the Electronic
Subcontracting Reporting System (eSRS) and to clarify
the entity that acknowledges receipt of, or rejects,
the reports in eSRS.
DFARS Case 2017-D014: A proposed rule would revise
DFARS 211.107(b) to require the use of FAR provision
52.211–7 ("Alternatives to Government Unique
Standards"), in DoD solicitations and contracts that
include military or government-unique specifications
and standards. The proposed change is designed to
implement section 875(c) of the NDAA for FY 2017,
which requires DoD to revise the DFARS to encourage
contractors to propose commercial or non-Government
standards and industry-wide practices that meet the
intent of military specifications and standards.
DFARS Case 2017-D034: A proposed rule would amend
the DFARS to implement the requirement for contractors
to complete Level I antiterrorism awareness training.
DFARS Case 2018-D011: A proposed rule would amend
the DFARS to implement a section of the National
Defense Authorization Act for Fiscal Year 2018 that
allows for more than five offerors on solicitations
issued using two-phase design-build selection
procedures for indefinite-delivery,
indefinite-quantity contracts that exceed $4 million.
DFARS Case 2018-D028: A proposed rule would modify
DFARS DFARS clause 252.247–7023 ("Transportation of
Supplies By Sea") to include the instructions
currently specified in DFARS clause 252.247–7024
("Notification of Supplies By Sea"), which will result
in the latter clause being removed as unnecessary.
DFARS Case 2017-D011: A proposed rule would amend
the DFARS (i) to implement sections of the National
Defense Authorization Act for Fiscal Year 2017 to
apply domestic source requirements to acquisitions at
or below the simplified acquisition threshold when
acquiring athletic footwear to be furnished to
enlisted members of the Armed Forces upon their
initial entry into the Armed Forces and (ii) to add
Australia and the United Kingdom to the definition of
the "National Technology and Industrial Base."
DFARS Case 2018-D007: A proposed rule would amend
the DFARS to implement a section of the National
Defense Authorization Act for Fiscal Year 2018 that
repeals the Fiscal Year 2015 restrictions on the
source of photovoltaic devices in contracts awarded by
DoD that result in DoD ownership of photovoltaic
devices by means other than DoD purchase of the
photovoltaic devices as end products.
DFARS Case 2017-D019: DoD initially proposed to (i)
implement a section of the National Defense
Authorization Act for Fiscal Year 2017, which
addresses the preference for performance-based
payments and (ii) streamline the performance-based
payment process. The proposed rule would also amend
the DFARS to revise progress payments and
performance-based payments policies for DoD contracts
in order to increase its business effectiveness and
efficiency as well as to provide an opportunity for
both small and other than small entities to qualify
for increased customary progress payment rates and
maximum performance-based payment rates based on
whether the offeror/contractor has met certain
performance criteria. More specifically, the proposed
rule would, inter alia, (i) delete the current
regulations relating to performance-based payments at
DFARS subpart 232.10 and the associated clauses at
DFARS 252.232– 7012 ("Performance-Based Payments—
Whole Contract Basis") and 252.232– 701
("Performance-Based Payments— Deliverable Item Basis")
and (ii) remove the requirement to negotiate
consideration due the Government for providing the
contractor with the improved cash flow when utilizing
performance-based payments. Subsequently, DoD
withdrew the proposed rule.
DFARS Case 2018-D021: A proposed rule would
amend the DFARS to implement sections of the
National Defense Authorization Act for Fiscal Year
2018 by expanding the definition of other competitive
procedures and extending the term and increasing the
dollar value under the contract authority for advanced
development of initial or additional prototype units.
DFARS Case 2017-D040: A proposed rule would amend
the DFARS to implement a section of the National
Defense Authorization Act for Fiscal Year 2017 that
requires the use of brand name or equivalent
descriptions or proprietary specifications or
standards in solicitations to be justified and
approved.
DFARS Case 2017-D016: A proposed rule would amend the DFARS
rules regarding the DoD's Pilot Mentor-Protégé Program: (i) to
revise the definition and requirements associated with
affiliation between mentor firms and their protege ́
firms; and (ii) to add new types of assistance for
mentor firms to provide to their protege ́ firms.
DFARS Case 2018-D010: A proposed rule would amend
the DFARS to implement sections of the National
Defense Authorization Acts for FY 2017 and 2018 that
establish limitations and prohibitions on the use of
the lowest-price technically-acceptable source
selection process. Comments are due by February
4, 2019.
DFARS Case 2018-D057: A proposed rule would amend
the DFARS to implement a section of the National
Defense Authorization Act for FY 2019 regarding
set-asides for architect-engineer and construction
design contracts, specifically by: (i) deleting
paragraph (2) at DFARS 219.502–1, which prohibits
small business set-asides of acquisitions for
architect-engineer services for military construction
or family housing projects valued at $400,000 or more;
(ii) combining the remaining paragraphs into a single
unnumbered paragraph; and (iii) revising the dollar
value at DFARS 219.502–2, paragraph (a)(iii) (which
requires acquisitions for architect-engineer services
for military construction or family housing projects
to be set aside for small business below a certain
dollar value) from $400,000 to $1,000,000.
Comments
are due by February 4, 2019.
Other Agencies
Bureau of
Industry and Security (Department of Commerce)
The Bureau of Industry and Security
(BIS) issued
a final rule revising the Commerce Control List (CCL), as
well as corresponding parts of the Export Administration
Regulations (EAR), to implement changes made to the Wassenaar
Arrangement (WA) List of Dual-Use Goods and Technologies
maintained and agreed to by the governments participating in the
Wassenaar Arrangement on Export Controls for Conventional Arms
and Dual-Use Goods and Technologies at the December 2017 WA
Plenary meeting, in order to harmonize the CCL with the
agreements reached at that meeting by revising Export Control
Classification Numbers (ECCNs) controlled for national security
reasons in each category of the CCL.
DHS
The Department of Homeland Security proposed
to remove HSAR clause 3052.219–70 as
duplicative of FAR 52.219–9 (Small Business
Subcontracting Plan).
Subsequently, a
final rule to this effect was published, effective
January 29, 2019.
DOL
The DOL
issued a final rule implementing E.O. 13838, which exempts
federal contracts related to
seasonal recreational services or seasonal recreational
equipment rental from the minimum wage requirements of E.O.
13658.
The DOL issued a direct final rule rescinding
the
outdated regulations implementing the nondiscrimination and
equal opportunity provisions of the Job Training Partnership Act
of 1982 because that statute was subsequently repealed and
replaced with the Workforce Investment Act. The rule will become
effective November 26 unless the Department receives significant
adverse comments by October 26.
EPA
Effective December 12, unless the agency
receives adverse comments by October 15, the EPA
is revising its
acquisition regulation (the EPAAR): (i) to add
language to
EPAAR § 1506.302–5(b)(1)
clarifying that the Contracting
Officer need not provide any written
justification under FAR § 8.405–6 or
13.501 for use of other than full and
open competition when acquiring
expert services under the authority of
section 109(e) of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA); (2) to revise EPAAR
§ 1552.232–70 to add information on
circumstances that may require
obtaining subcontractor costs, to make
minor administrative changes, and
to incorporate invoice preparation
instructions; and (3) to revise EPAAR
§ 1552.235–79 to expand circumstances in which the Contractor’s
confidential business information may be released.
The EPA proposed to amend the
EPAAR to add a contract clause with requirements for
scientific integrity for inclusion in solicitations and
contracts when the contractor may be required to
perform, communicate, or supervise scientific
activities or use scientific information to perform
advisory and assistance services.
The EPA proposed to amend
its acquisition regulations (the EPAAR) by revising
its "Submission of Invoices" clause to add electronic
invoicing requirements in recognition of the fact that
in 2019 the EPA will begin using the Invoice
Processing Platform (IPP), which is a secure web-based
service provided by the U.S. Treasury that efficiently
manages government invoicing. Comments are due by
February 19, 2019. General
Services Administration (GSA)
GSAR Case 2015-G512:
GSA is amending the General Services Administration Acquisition Regulation (GSAR) to
address common
commercial supplier agreement terms that are inconsistent with or create
ambiguity with federal Law, e.g., terms that would call for
dispute resolution inconsistent with the CDA and terms that
would violate the Anti-Deficiency Act.
GSAR Case 2017-G503: Effective January 14, 2019 (unless the
GSA receives significant adverse comments by December 14), the
GSA is amending its aquisition regulation (GSAR) to remove text
in GSAR 509.105-1(b) that duplicates language already in
FAR 9.105(b) providing guidance for obtaining information from
government sources to make responsibility determinations for
potential government contractors.
GSAR Case 2015-G506: A proposed rule would amend the
General Services Administration Acquisition Regulation (GSAR) to
adopt an additional project delivery method for construction
projects: construction manager as constructor ("CMc"). Comments
are due by January 7, 2019.
The GSA
proposed quite a few revisions to the
rules of procedure for handling CDA cases at the CBCA. Effective September 17, the CBCA is revising its
rules of
procedure: (i) to establish a preference for
electronic filing, (ii) to increase conformity
between the Board’s rules and the
Federal Rules of Civil Procedure,
(iii) to streamline the wording of the Board’s
rules, and (iv) to clarify current rules and
practices. In addition, the time for filing is amended from 4:30 p.m. to midnight
Eastern Time, and the stated monetary
limitations for electing the accelerated
and small claims procedures are deleted
and replaced with references to the
requirements stated in the Contract
Disputes Act.
Government
Accountability Office (GAO)
The GAO published
a final rule establishing its new mandatory
electronic filing and document dissemination system
for GAO bid protests, including a new, required $350
filing fee. The rule also incorporates other
significant revisions to the GAO's bid protest
regulations, including, among many others,
clarifications of: (i) the time for filing protests if
the basis for a protest of a solicitation impropriety
becomes known when no closing time has been
established or when no further solicitation
submissions are anticipated; (ii) when the agency is
required to respond to a protester's request for
documents; (iii) the ability of a party to request
relevant documents not in the agency's possession;
and (iv) the generation and handling of protected and
redacted documents. You can
find GAO tutorials for how to use the new system
here.
NASA
NASA amended its FAR Supplement
(NFS) to implement revisions to the
voucher and invoice submittal and
payment process in order to transition to an
electronic
invoicing system
OFPP
The OFPP's CAS
Board issued a final rule
revising the language of the exemption from CAS
requirements for
contracts or subcontracts for the acquisition of
commercial items, which is located at 48 C.F.R.
9903-201.1(b)(6) (the "b(6) exemption") in order to
harmonize the description of contracts in that
regulation with the list of the types of contracts in
FAR 12.207 that are authorized for use in the
acquisition of commercial items and, thus, to
eliminate inconsistencies between the two regulations.Small
Business Administration (SBA)
The SBA granted a
class waiver of the Nonmanufacturer Rule for
Positive Airway Pressure Devices and Supplies
Manufacturing, an industry made up of establishments
primarily engaged in manufacturing CPAP devices
and other products intended to treat sleep apnea.
In accordance with sections
1832 and 1833 of the National Defense Authorization
Act for Fiscal Year 2017, the SBA amended
the rules of practice of its OHA to implement (i)
procedures for protests of eligibility for inclusion
in the VA's Center for Verification and Evaluation (CVE)
database and (ii) procedures for appeals of denials
and cancellations of inclusion in the CVE database.
Tthe SBA
amended its regulations,
inter alia: (i)
to comply with a provision of the National Defense Authorization
Act of 2018 that amended the Small Business Act by replacing
fixed dollar amount thresholds with references to the micro-purchase and simplified acquisition thresholds; (ii)
to update
the sole-source dollar amounts for the SDVO and HUBZone small business
regulations; and (iii) to allow indirect ownership by
United States citizens in the HUBZone
program in order to more accurately align the regulations with
the underlying statutory authority.
Tthe SBA amended its
regulations to implement provisions of the National
Defense Authorization Act for Fiscal Year 2017 (NDAA 2017),
which placed the responsibility on the SBA to
define
ownership and control for purposes of the VA's determination
of a firm's status as a Veteran-Owned (VO) or
Service-Disabled Veteran-Owned (SDVO) Small Business Concern in
its verification and Vets First Contracting Program
procurements, and all other government acquisitions which
require self-certification. The new rules also implement
the parts of the legislative which provide that in certain
circumstances a firm can qualify as VO or SDVO small business when there is a
surviving spouse or an employee stock ownership plan (ESOP).
The SBA proposed a comprehensive set of changes to its
regulations governing the
HUBZone Program to make it easier for small
business concerns to understand and comply with the
program’s requirements and to make the HUBZone program
a more attractive avenue for procuring agencies.
The SBA proposed
to amend its regulations to implement several
provisions of the National Defense Authorization Acts
of 2016 and 2017 and the Recovery Improvements for
Small Entities After Disaster Act of 2015 (RISE Act).
The proposed rule would: (i) clarify that contracting
officers have the authority to request information in
connection with a contractor’s compliance with
applicable limitations on subcontracting clauses; (ii)
provide exclusions for purposes of compliance with the
limitations on subcontracting for certain contracts
performed outside of the United States, environmental
remediation contracts, and information technology
service acquisitions that require substantial cloud
computing; (iii) require a prime contractor with a
commercial subcontracting plan to include indirect
costs in its subcontracting goals; (iv) establish that
failure to provide timely subcontracting reports may
constitute a material breach of the contract; (v)
clarify the requirements for size and status
recertification; and (vi) limit the scope of
Procurement Center Representative reviews of
Department of Defense acquisitions performed outside
of the United States and its territories. The proposed
rule would also authorize agencies to receive double
credit for achieving small business goals as announced
in SBA’s scorecard for local area small business set
asides in connection with a disaster. Finally, SBA is
proposing to remove the kit assembler exception to the
non-manufacturer rule. Comments are due by February 4,
2019.
The SBA revised its
white paper explaining how it determines small business size
standards.
Transportation
In an advance notice of proposed rulemaking, the DOT's
Federal Highway Administration (FHWA) announced that
the
ID/IQ method of contracting, including job order
contracts, for low-cost construction contracts will be
allowed, without FHWA approval, under certain
circumstances.
USAID
USAID issued a final rule to amend the USAID Acquisition Regulation (AIDAR) in order to clarify the
requirements for accountability for all
mobile information technology equipment.
VA
The VA
adopted as final acquisition regulations: (i) to prescribe five new Economic Price Adjustment clauses for firm, fixed-price contracts; (ii)
to identify the VA's task-order and delivery-order ombudsman; (iii)
to clarify the nature and use of consignment agreements; (iv) to add policy coverage on bond premium adjustments and insurance on fixed-price contracts; and (v)
to provide for indemnification of contractors for medical research and development contracts.
A final rule
amended the VAAR by: (i)
revising VAAR part 831 to clarify the cost principles under
chapter 31 and to apply those principles to both fixed-price and
cost reimbursement contracts with educational institutions, as
well as those with commercial and non-profit organizations; (ii)
revising VAAR part 833 to update information concerning where an
interested party may protest to the Contracting Officer, to
provide for independent review a level above the contracting
officer, and to clarify how interested parties may appeal a
Contracting Officer’s decision on a protest; (iii) clarifying
the types of protests that may be dismissed by the VA without
consideration of the merits or may be forwarded to another
agency for appropriate action; (iv) stating that certain
challenges of the legal status of a firm as a regular dealer or
manufacturer is determined solely by the procuring agency, the
SBA if a small business is involved, or the Secretary of Labor;
(v) updating two clauses in part 852 related to protests; (vi)
clarifying a contractor’s obligation to continue performance
pending resolution of a dispute; and (vii) revising a definition
of a term in VAAR part 871 to comport with the same term used in
VAAR part 831.
The VA
revised the VAAR:
(i) to implement FAR part 44 by making public VA’s
additional requirements for providing its consent to
subcontract; (ii) to describe items that should be
evaluated as a part of a contractor’s purchasing
system review and to establish that contractors should
determine whether subcontract items meet the FAR
definition of a commercial item; (iii) to implement
and supplement FAR part 45 by addressing procedures
for contractors to document their acquisition of
property for use in the service of VA contracts; (iv)
to address the transfer of title to the Government of
contractor-acquired property; and (v) to outline the
procedures for the use of such property on a successor
contract.
In part to comply with the provisions of the National
Defense Authorization Act of 2017 (NDAA) that place
responsibility in the SBA to issue regulations
regarding
ownership and control of VOSBs and SBVOSBs, the VA
proposed to amend its regulations governing such
firms: (i) to remove all references to ownership and
control for purposes of determining VOSB and SDVOSB
status; and (ii) to recognize (again in compliance
with the NDAA) that, in certain circumstances, a firm
can qualify as VO or SDVO when there is a
surviving spouse or an ESOP.
The VA proposed to amend and update the VAAR in
phased increments to revise or remove any policy
superseded by changes in the FAR, to remove procedural
guidance internal to VA into the VAAM, and to
incorporate any new agency specific regulations or
policies, all in order to streamline and align the
VAAR with the FAR and remove outdated and duplicative
requirements and reduce burdens on contractors. As part of
this
phased effort
to revise the VAAR, the
VA proposed revisions to Parts 831 (Contract Cost
Principles and Procedures) and 833 (Protests,
Disputes, and Appeals) as well as to affected sections
of Parts 852 (Solicitation Provisions and Contract
Clauses) and 871 (Loan Guaranty and Vocational
Rehabilitation and Employment Programs). Subsequently,
the VA published a
final rule that, inter alia, (i) amended
six clauses or provisions and removed one clause which
duplicated FAR coverage and was not needed, (ii)
provided updated policy on variations, tolerances and
exemptions regarding overtime in contracts providing
nursing home care for veterans, (iii) removed an
information collection burden associated with an
outdated practice of using bid envelopes; (iv)
clarified language regarding the prohibition of
contractors from making reference in their commercial
advertising to anything that would suggest the VA
endorses their products services or considers them
superior to other products and services, and (v)
revised definitions relating to the D&S Committee,
Debarring Official, and Suspending Official currently
contained in the VAAR. The affected parts of the VAAR
included Part 802 (Definitions), 803 (Improper
Business Practices and Personal Conflicts of
Interest), 812 (Acquisition of Commercial Items), 814
(Sealed Bidding), and 822 (Application of Labor Laws
to Government Acquisitions), as well as resulting
changes to 852 (Solicitations Provisions and Contract
Clauses).
As part of its continuing,
phased efforts, the VA also proposed revisions to VAAR Parts
829 (Taxes), 846 (Quality Assurance), and 847
(Transportation), as well as affected Parts 852
(Solicitation Provisions and Contract Clauses) and 870
(Special Procurement Controls). In September, the VA issued two
more sets (set
1 and
set 2) of proposed revisions to its acquisition regulation
(the VAAR), each set containing numerous proposed changes
designed to revise or remove any policy superseded by changes in
the FAR, to move internal VA procedural guidance to the VA
Acquisition Manual (VAAM), and to incorporate new
agency-specific regulations and policies. The VA
revised VAAR Parts 811 and 832: (i) to
remove coverage of what brand name or equal purchase
descriptions must include (as the FAR provides
sufficient coverage); (ii) to remove coverage
pertaining to brand names based on current FAR
coverage; (iii) to remove purchase description
clauses; (iv) to remove VAAR coverage of bid samples;
(v) to remove the section providing coverage on
procedures for negotiated procurements; (vi) to remove
VAAR coverage on "items peculiar to one manufacturer";
(vii) to revise part 832 to add policy to implement an
OMB memorandum entitled "Accelerating Payments to
Small Businesses for Goods and Services"; (viii) to
encourage making payments to small business
contractors within 15 days of receipt of an invoice;
(ix) to delegate authority within the VA to approve
contract terms concerning advance payments; and (x) to
remove subparts 832.5 (Progress Payments Based on
Costs) and 832.8 (Assignment of Claims), as both
contain internal procedural guidance not having a
significant effect beyond the internal operating
procedures of the VA.
The VA also proposed revisions to
VAAR Part 817 (Special Contracting Methods),
including, inter alia: (i) adding references
to 41 U.S.C. 1702, 38 U.S.C. 8127– 8128, 41
U.S.C. 1303, and 48 CFR 1.301–1.304 as authorities for
this Part; (ii) removing, among others, subparts
817.1 (Multi-year Contracting), 817.202
(Use of Options), 817.204 (Contracts), 817.4 (Leader
Company Contracting), and 817.402 (Limitations), and
(iii) adding several sections, as well. Comments are
due by February 25, 2019. In addition, the VA
proposed to revise the VAAR: (i) to add coverage concerning (a)
the Environment, Energy and Water Efficiency,
Renewable Energy Technologies, Occupational Safety,
and Drug-Free Workplace, (b) Other Socioeconomic
Programs, and (c) Contract Modifications; and (ii) to
revise VAAR sections concerning Protection of Privacy
and Freedom of Information, the VA's Acquisition
Regulation System, Construction and Architect-Engineer
Contracts, and related solicitation provisions and
contract clauses. Comments are due by
January 28, 2019.
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