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Contents
Statutes
Consolidated Appropriations Act, 2019
Executive Orders
and Related Publications
Regulations
Federal Acquisition
Regulation (FAR)
Federal
Acquisition Circulars (FAC)
FAC 2019-02
FAC 2019-02 included the following two items
plus technical amendments:
FAR Case 2017-009: A final rule amended the FAR to
implement sections of the National Defense
Authorization Act (NDAA) for FY 2017 to expand special
emergency procurement authorities for acquisitions of
supplies or services that (i) facilitate defense
against or recovery from cyber attack, (ii) provide
international disaster assistance under the Foreign
Assistance Act of 1961, or (iii) support the response
to an emergency or major disaster under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
FAR Case 2018-015: A final rule amended the FAR to
implement a section of the John S. McCain NDAA for FY
2019 that removes the requirement to make a best
procurement approach determination to use an
interagency acquisition.
Numerous
technical and editorial changes to the FAR also
were published.
FAC 2019-03
FAC
2019-03 included the following item:
FAR Case 2017-006: A final
rule, inter alia, amended FAR 15.403-1 to
state that the current exception to the requirement to
submit certified cost or pricing data when there was
an expectation of competition but only one offer was
received will thenceforth apply only to agencies other
than DoD, NASA, and the Coast Guard.
FAC 2019-04
FAC 2019-04 included
the following item:
FAR Case 2017-020: A
final rule amended the FAR to implement a new clause
for use in multiple-award indefinite-delivery
indefinite-quantity contracts that provides
information on the task-order and delivery-order
ombudsman.
FAC 2019-05
FAC
2019-05 included the following item:
FAR Case
2018-017: An interim rule amended the FAR to implement section 889(a)(1)(A) of the the NDAA for FY 2019, which prohibits agencies from, inter alia, procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses telecommunications equipment or services produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) as a substantial or essential component of any system, or as a critical technology as part of any system.
FAC 2019-06
FAC
2019-06 included the following four
items:
FAR Case 2018-010: A final rule adopted, without change, the
prior interim rule implementing section 1634 of Division A of
the National Defense Authorization Act (NDAA) for FY 2018, which
prohibits the use of products or services of Kaspersky Lab and
its related entities.
FAR Case 2019-006: A final rule amended
the FAR to revise the definition of "affiliates" in FAR 19.101
and to remove an obsolete requirement that 8(a) contractors
obtain written approval from the SBA and the contracting officer
before subcontracting the performance of any contract
requirements.
FAR Case 2019-005: A final rule
amended the FAR to implement changes regarding the retirement of
the Past Performance Information Retrieval System and
establishment of the Contractor Performance Assessment Reporting
System as the official system for past performance information.
FAR Case 2019-011: A final rule amended
the FAR to add Australia as a World Trade Organization
Government Procurement Agreement (WTO GPA) country.
FAC 2020-01
FAC
2020-01 included the following item:
FAR Case
2018-008: Effective November 12, a
final rule amends FAR 2.101 to revise the definition of
"commercial item" by adding the phrase "or to multiple
foreign governments," i.e.: "(8) A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments."
FAC 2020-02
FAC
2020-02 included the following item:
FAR Case 2013-002:
A final
rule amended the FAR (in part by adding a new contract clause
entitled "Reporting Nonconforming Items" at FAR 52.246-26) to require contractors and subcontractors to report to the Government-Industry Data Exchange.
FAC 2020-03
FAC
2020-03 included the following item:
FAR Case 2018-017: An interim rule (the
second on this subject-) amended the FAR to
implement section 889(a)(1)(A) of the John S. McCain NDAA for FY
2019 by requiring offerors to represent annually whether they offer to the Government equipment, systems, or services that include
certain covered telecommunications equipment or services manufactured by certain companies,
e.g., Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities)
Other Proposed FAR Revisions
FAR Case 2018-008: In order to comply with section
847 of the NDAA for FY 2018, a proposed rule would
amend the definition of "commercial item" at FAR 2.101
to expand the universe of nondevelopmental items
(NDIs) that qualify as commercial items by including
items sold in substantial quantities on a competitive
basis to multiple foreign governments.
FAR Case
2018-007: A proposed rule would amend the FAR to
implement a section of the NDAA for FY 2018 to make inflation
adjustments of statutory acquisition-related thresholds applicable to existing
contracts and subcontracts in effect on
the date of the adjustment that contain
the revised clauses proposed in this
rule.
FAR Case 2018-003: A proposed rule would amend the FAR to
implement section 1614 of the National Defense Authorization Act
(NDAA) for FY 2014, as implemented by the SBA, inter alia,
to state that, where a prime contractor has an
individual subcontracting plan for a contract with a
single executive agency, the prime contractor shall
receive credit towards its subcontracting goals for
awards made to small business concerns at any tier by
subcontractors with individual subcontracting plans.
FAR Case 2016-002: A proposed rule would amend the FAR to be
consistent with SBA’s the regulatory changes, which clarify that
small business contracting provisions, e.g.,
set-asides, may apply to contracts performed overseas.
FAR Case 2018-022: A proposed rule would amend the FAR to
permit the issuance of task or delivery orders by fax or
electronic commerce and to clarify when an order is considered
to be issued if one of these methods is used.
FAR Case 2016-013: A proposed rule would amend the FAR to
withhold a 2 percent tax on contract payments made
by the Government to foreign persons pursuant to
certain federal government contracts for goods or
services that are awarded to foreign persons.
FAR Case 2018-023: A proposed rule would amend the FAR to add two new clauses that notify contractors of requirements relating to Afghanistan taxes or similar charges when contracts are being performed in Afghanistan.
FAR
Case 2015-002: A proposed rule would amend the FAR to
require electronic submission of DD Form 254,
Contract Security Classification Specification.
FAR Case 2018-021: A proposed rule would amend the FAR to
implement the United States Code section that prohibits
the award of certain federal contracts to institutions of higher
education that prohibit ROTC units or
military recruiting on campus.
FAR Case 2018-005: A proposed rule would amend the FAR to to
implement section 811 of the National Defense
Authorization Act ("NDAA") for FY 2018 to increase
the threshold for requesting certified cost or
pricing data from $750,000 to $2 million for
contracts entered into after June 30, 2018. In the
case of a change or modification made to a prime
contract that was entered into before July 1, 2018,
the threshold for obtaining certified cost or
pricing data would remain $750,000, with the
following exception. Upon the request of a
contractor that was required to submit certified
cost or pricing data in connection with a prime
contract entered into before July 1, 2018, the
Contracting Officer shall modify the contract
without requiring consideration to reflect a $2
million threshold for obtaining certified cost or
pricing data from subcontractors. Similarly for
sealed bidding, upon request by a contractor, the
Contracting Officer shall modify the contract
without requiring consideration to replace the
relevant clause.
FAR Case
2018-004: A proposed rule would amend the FAR to to
implement a section of the NDAA for FY 2017 and
several sections of the NDAA for FY 2018 that
increase the micro-purchase threshold (MPT),
increase the simplified acquisition threshold (SAT),
and clarify certain procurement terms, as well as
align some non-statutory thresholds with the MPT and
SAT.
FAR
Case 2018-016: A proposed rule would amend the FAR to
implement a section of the John S. McCain National
Defense Authorization Act for FY 2019, which (i)
specifies the criteria that must be met in order to
include lowest price technically acceptable (LPTA)
source selection criteria in a solicitation, and
(ii) requires procurements predominantly for the
acquisition of certain services and supplies to
avoid the use of LPTA source selection criteria, to
the maximum extent practicable.
FAR Case 2019-002: A proposed rule would amend the FAR to
implement a DOL rule that exempts certain contracts for seasonal recreational services or seasonal recreational equipment rental for the general public on
federal lands from an Executive Order minimum wage.
Department of Defense FAR
Supplement (DFARS)
DoD issued an updated
Charter of the ASBCA, which implemented changes to the ASBCA's
internal administration to better support the Board’s mission.
Final
Rules
DFARS Case 2018-D021: A final rule amended the DFARS to
implement sections of the National Defense Authorization Act
(NDAA) for FY 2018, which expand the definition of "competitive
procedures" in 10 U.S.C. 2302 and extend the term (and increase
the dollar value) under the contract authority for advanced
development of initial or additional prototype units.
DFARS Case 2017-D034: A final rule amended the DFARS to
implement the requirement for contractors to complete Level I
antiterrorism awareness training.
DFARS Case 2018-D011: A final rule amended the DFARS to
implement a section of the NDAA for FY 2018 that provides an
exemption from design-build selection procedures for contracts
that exceed $4 million.
DFARS Case 2018-D072: A final rule amended the DFARS to
implement section 881 of the NDAA for FY 2019 (Pub. L. 115–232),
which codifies the authority for information relating to supply
chain risk at 10 U.S.C. 2339a and repeals the sunset date at
sections 806(g) of the NDAA for FY 2011 (Pub. L. 111–383), as
modified by section 806(a) of the NDAA for FY 2013 (Pub. L.
112–239), making the authority permanent.
DFARS Case 2018-D028: A final rule amended the DFARS to
modify 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") and then
remove the latter clause from the DFARS
DFARS Case 2017-D014: A final rule amended the DFARS to
implement a section of the NDAA for FY 2017 by encouraging
offerors to propose commercial or non-government standards and
industry-wide practices that meet the intent of military or
government-unique specifications and standards.
DFARS Case 2018-D065: A final rule amended the DFARS to
implement a section of the National Defense Authorization Act
(NDAA) FY 2019 to require, for DoD contracts with contractors
that have approved purchasing systems, that a contracting
officer have written approval from the program manager prior to
withholding a consent to subcontract.
DFARS Case 2018-D051: A final rule amended the DFARS to add
department phone numbers and websites to the DFARS clause,
252.226– 7001, Utilization of Indian Organizations, Indian-Owned
Economic Enterprises, and Native Hawaiian Small Business
Concerns.
DFARS Case 2018-D059: A final rule amended the DFARS to
implement section 812 of the NDAA for FY 2019 by removing the
clarification of the terms "general public" and "nongovernmental
entities" at DFARS 202.101 as obsolete.
DFARS Case 2018-D076: A final rule amended the DFARS to make
clarifications and updates associated with determinations to
award task- or delivery-order contracts estimated to exceed $112
million to a single source, e.g., to clarify that the
Congressional notification required at FAR
16.504(c)(1)(ii)(D)(2) does not apply to DoD acquisitions.
DFARS Case 2019-D006: A final rule amended the DFARS to
remove DFARS 252.204–7005 ("Oral Attestation of Security
Responsibilities") and the associated clause prescription at
DFARS 204.404– 70 because they are no longer necessary.
DFARS Case 2018-D012: A final rule amended the DFARS to
implement sections of the National Defense Authorization Act
(NDAA) for FY 2017 and 2018 to 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
2018-D057: A final rule amended the DFARS to implement
section 2804 of the NDAA for FY 2019, which (i) increases to $1
million the threshold for small business set-asides of
acquisitions for architect-engineer services, including
construction design, in connection with military construction
projects or military family housing projects; and (ii) removes
the prohibition on setting aside these acquisitions valued above
the threshold.
DFARS Case
2015-D035: A final rule amended the DFARS to expand the
prescription for using the FAR "Government Property"
clause (52.245-1).
DFARS Case 2018-D023: A final rule amended the DFARS to
implement a section of the National Defense Authorization Act
(NDAA) for FY 2018 to require that inflation adjustments
of statutory acquisition-related thresholds under 41 U.S.C. 1908
apply to existing contracts and subcontracts that are in effect
on the date of the adjustment and that contain the adjusted
clauses.
DFARS Case 2017-D040: A final rule amended the DFARS to
implement a section of the NDAA for FY 2017, which requires a
justification and approval for the use of brand name or equal
descriptions, or proprietary specifications or standards, in
solicitations.
DFARS Case 2018-D020: A final rule adopted, without change,
an interim rule amending the DFARS to implement sections
of the NDAAs for FY 2017 and 2018: (i) to impose additional
prohibitions with regard to 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 to expand the
definition of "covered foreign country" to include Russia; and
(ii) to prohibit the purchase of items originating in China that
meet the definition of goods and services controlled as
munitions items when moved to the Commerce Control List of the
Export Administration Regulations of the Department of Commerce.
DFARS Case 2019-D026: A final rule amended the DFARS to
remove DFARS clause 252.247–7012 ("Ordering Limitation") and the
associated prescription at DFARS 247.271–3(g) because the clause
is no longer needed in light of FAR coverage.
DFARS Case 2019-D007: A final rule amended the DFARS to
remove DFARS clause 252.211–7001 ("Availability of
Specifications, Standards, and Data Item Descriptions Not Listed
in the Acquisition Streamlining and Standardization Information
System (ASSIST), and Plans, Drawings, and Other Pertinent
Documents") because the clause is no longer needed.
DFARS Case 2019-D030: A final rule amended the
DFARS to make various corrections, specifically to
amend DFARS 252.204–7007 ("Annual Representations and
Certifications--Alternate A") and the prescription for
this provision at DFARS 204.1202.
DFARS Case 2017-D009: A final
rule amended the DFARS to partially implement a section
of the National Defense Authorization Act (NDAA) for
FY 2017 that addresses the requirement for additional
cost or pricing data when only one offer is received
in response to a competitive solicitation.
DFARS Case 2018-D048: A final rule amended the
DFARS to remove DFARS clause 252.247–7001 ("Price
Adjustment") and the associated clause prescription at
DFARS 247.270–4, as they are no longer necessary in
light of other available clauses.
DFARS Case 2019-D020: A final rule amended the
DFARS to remove quite a few transportation-related
clauses, the requirements of which, if appropriate for
specific procurements, more properly belong in
solicitation instructions or performance work
statements.
DFARS Case 2019-D011: A final rule amended the DoD hotline
poster online address included in DFARS 252.203–7004 ("Display
of Hotline Posters") and updated the DoD Office of the Inspector
General contact information in DFARS 252.203– 7003 ("Agency
Office of the Inspector General").
DFARS Case 2019-D032: A finale rule amended the DFARS to add
Australia as a new World Trade Organization Government
Procurement Agreement country.
DFARS Case 2018-D016: A final rule amended the DFARS to
partially implement section 876 of the National Defense
Authorization Act ("NDAA") for FY 2017, which provides a
preference for the acquisition of certain commercial services in
contracts that exceed the simplified acquisition threshold and
contemplates a two-tier approval process, depending on value of
the acquisition, if no commercial items are suitable.
DFARS Case 2018-D008: A final rule amended the DFARS to
implement section 815 of the NDAA Act for FY 2017 and section
811 of the NDAA for FY 2018 by revising requirements for
definitizing undefinitized contract actions.
The DoD issued an updated version of the
Charter of the ASBCA, mainly to reflect that board members
will, from now on, be appointed by the Secretary of Defense.
DFARS
Case 2018-D035: A final rule modified DFARS clause
252.239–7007 ("Cancellation or Termination of Orders") in order
to (i) clarify the limitations of the Government’s obligation to
reimburse a contractor for nonrecoverable costs when the
Government cancels an order for telecommunications services and
(ii) incorporate the information included in DFARS 252.239–7008
("Reuse Arrangements"). Combining these clauses results in
252.239–7008 being removed from the DFARS.
DFARS
Case 2018-D045: A final rule modified DFARS clause
252.239–7004 ("Orders for Facilities and Services") to
incorporate the information in DFARS clause 252.239–7005
("Rates, Charges, and Services"), which is, therefore, removed
from the DFARS.
DFARS
Case 2019-D017: A final rule amended the DFARS to
identify the government point of contact in DFARS clause
252.227–7002 (" Readjustment of Payments") as the Contracting
Officer.
DFARS
Case 2019-D012: A final rule amended the DFARS to
replace the pronouns "he" and "him" in DFARS
252.227-7001 with "the contractor."
DFARS
Case 2019-D018: A final rule amended the DFARS to update the
fill-in instructions for contracting officers contained in the
clause at DFARS 252.227–7009 ("Reporting and Payment of
Royalties").
DFARS
Case 2019-D016: A final rule amended the DFARS to
update a paragraph citation in DFARS 252.225-7021 ("Trade
Agreements").
DFARS
Case 2019-D025: A final rule amended the DFARS to remove
clause clause 252.249–7021 ("Returnable Containers Other Than
Cylinders") as unnecessary.
DFARS
Case 2019-D024: A final rule amended the DFARS to remove
DFARS provision 252.237–7002 ("Award to Single Offeror") as
unnecessary.
DFARS
Case 2019-D033: A final rule amended the DFARS to implement
changes regarding the discontinued use of the Past Performance
Information Retrieval System and to update all associated
references.
DFARS Case 2018-D010:
A final rule
amended the DFARS to implement sections of the NDAAs for FY 2017 and 2018 that establish limitations and prohibitions on the use of the lowest price technically acceptable source selection process.
DFARS Case 2018-D046: A final rule amended the DFARS to rename and modify DFARS clause 252.239–7013
("Obligation of the Government") by: (i) incorporating the information included in DFARS clause 252.239–7014
("Term of Agreement"); (ii) creating an alternate for DFARS clause 252.239–7013 that is used in certain circumstances, in lieu of the basic clause, and including the information in DFARS clauses 252.239–7013, –7014, and –7015; and (iii) amending the clause text to align with the termination notification requirement in the FAR. As a result, DFARS clauses 252.239–7014 and 252.239–7015 are removed from the DFARS.
DFARS Case
2019-D015: A final rule amended the clause at DFARS 252.239–7000
("Protection Against Compromising Emanations") to update a reference within the clause to the current TEMPEST standard.
DFARS Case
2019-D004: A
final rule amended the DFARS to implement regulatory changes made by the SBA in its final rule
which implemented section 1651 of the National Defense Authorization Act (NDAA) for FY 2013. Section 1651
of that statute revised and standardized the limitations on subcontracting and the nonmanufacturer rule that apply to small business concerns, including 8(a) Program participants, under procurements conducted pursuant to FAR part 19
("Small Business Programs").
DFARS Case
2019-D003: A final rule
amended the DFARS to implement section 834 of the NDAA for FY 2018,
which requires the use of reliability and maintainability sustainment factors in weapon system design.
DFARS Case
2019-D021: A final rule amended the
DFARS to remove DFARS provision 252.204–7013 ("Limitations on the Use or Disclosure of Information by Litigation Support Contractors")
as redundant because the information in that provision is
included in DFARS clause 252.204–7014.
DFARS Case
2018-D015: A final rule implemented section 837 of
the NDAA for FY 2018 by amending the DFARS to include six elements, at a minimum, regarding the appropriate use of the should-cost review of a major weapon system: (i)
a description of the features of the should-cost review process, (ii) establishment of a process for communicating with the prime contractor on the program the elements of a proposed should-cost review, (iii) a method for ensuring that identified should-cost savings opportunities are based on accurate, complete, and current information and can be quantified and tracked, (iv) a description of the training, skills, and experience that DoD and contractor officials carrying out a should-cost review should possess, (v) a method for ensuring appropriate collaboration with the contractor throughout the review process, and (vi) establishment of review process requirements that provide for sufficient analysis and minimize any impact on program schedule.
DFARS
Case 2018-D047: A final rule amended the DFARS to modify the clause prescription at DFARS 228.370 to require that DFARS clause 252.228–7005
("Accident Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles") be included in all solicitations and contracts, when applicable.
DFARS Case
2019-D040: A final rule amended the DFARS to partially
implement section 812 of the NDAA for FY 2019 by repealing two,
temporary statutory authorities: section 842(b) of the NDAA for FY 2007 (Pub. L. 109–364) and section 1010 of the USA Patriot Act of 2001 (Pub. L. 107–56).
DFARS Case 2017-D024:
A final rule amended the DFARS to implement section 829 of the NDAA
for FY 2017, which requires (i) a preference for fixed-price contracts,
(ii) review and approval for certain cost-reimbursement contract types, and
(iii) the use of firm-fixed-price contract types for foreign military sales unless an exception or waiver applies.
DFARS Case
2017-D038: A final rule amended DFARS 244.302(a) to establish a DoD contractor purchasing system review dollar threshold
of $50 million, as opposed to the $25 million dollar threshold
at FAR 44.302(a).
DFARS Case
2018-D058: A final rule amended the DFARS to implement a section of the NDAA
for FY 2019 that requires the DFARS to be updated to include an instruction on the Demonstration Project for Contractors.
DFARS Case
2018-D054: A final rule adopted, with changes, the prior
interim rule amending the DFARS to implement a section of the NDAA
for FY 2019 that prohibits acquisition of certain magnets and tungsten from North Korea, China, Russia, and Iran.
DFARS
Case 2019-D008: A final rule amended the DFARS (in part by
adding a new section 219-402) to implement a section of the NDAA
for FY 2017 that provides limits on the scope of review by the SBA’s procurement center representatives for certain solicitations awarded by or for DoD.
DFARS Case
2019-D035: Effective January 1, 2020, a final rule amended
the DFARS to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.
Interim
Rules
DFARS Case 2018-D054: An interim rule amended the DFARS to
implement a section of the NDAA FY 2019 that prohibits
acquisition of certain magnets and tungsten from North
Korea, China, Russia, and Iran.
DFARS Case
2018-D022: An interim rule amended the DFARS to implement sections of the NDAA for FY 2018 and 2019 by prohibiting the procurement of any equipment, system, or service to carry out the DoD nuclear deterrence or homeland defense missions that uses
"covered telecommunications equipment or services" as a substantial or essential component of any system, or as a critical technology as a part of any system,
i.e., telecommunications equipment or services from
certain Chinese entities, including their
subsidiaries and affiliates, and from any other
entities that the Secretary of Defense reasonably
believes to be owned or controlled by or otherwise
connected to, the Government of the People’s
Republic of China or the Russian Federation.
Proposed
Rules
DFARS Case 2018-D008: A proposed rule would amend the DFARS
to implement a section of the NDAA for FY 2017 and a
section of the NDAA for FY 2018 to revise requirements
for definitizing undefinitized contract actions.
DFARS Case 2018-D058: A proposed rule would amend the DFARS
to implement a section of the NDAA for FY 2019 that
requires the DFARS to be updated to include an
instruction on a demonstration project for contractors
employing persons with disabilities.
DFARS Case 2019-D004: A proposed rule would amend the DFARS
to implement the final rule published by the SBA
implementing a section of the NDAA FY 2013, which
provided revised and standardized limitations on
subcontracting (including the nonmanufacturer rule)
that apply to small business concerns, including
participants in the 8(a) Program.
DFARS Case 2017-D024: A proposed rule would amend the DFARS
to implement a section of the NDAA for FY 2017 that
requires: (a) the preference for the use of
fixed-price contracts in the determination of contract
type, (b) review and approval for certain cost
reimbursement contract types at specified thresholds
and established time periods, and (c) the use of firm
fixed-price contract types for foreign military sales
unless an exception or waiver applies.
DFARS Case
2018-D035: A proposed rule would amend the DFARS to modify
DFARS clause 252.239–7007 ("Cancellation or
Termination of Orders"): (i) to clarify limitations on
the Government’s obligation to reimburse a contractor
for nonrecoverable costs when the Government cancels
an order for telecommunications services; and (ii) to
incorporate the information currently included in
DFARS clause 252.239– 7008 ("Reuse Arrangements"),
which will allow the latter clause to be removed from
the DFARS.<
DFARS Case
2018-D045: A proposed rule would amend the DFARS to modify
the DFARS clause 252.239–7004 ("Orders for Facilities
and Services") in order to incorporate the information
currently included in DFARS clause 252.239–7005
("Rates, Charges, and Services"), which will result in
252.239–7005 being removed from the DFARS.
DFARS Case
2019-D002: A proposed rule would: (i) amend DFARS subpart
232.10 ("Performance-Based Payments") and the clauses
at DFARS 252.232–7012 ("Performance-Based
Payments—Whole Contract Basis") and DFARS 252.232–7013
"Performance-Based Payments—Deliverable Item Basis");
and (ii) add a new provision at 252.232–70XX
("Performance-Based Payments—Representation"), all to
implement section 831 the NDAA for FY 2017, which
amends 10 U.S.C. 2307 to address the use of
performance-based payments.
DFARS Case 2017-D038: A proposed rule would amend the DFARS
to to establish a DoD contractor purchasing system
review dollar threshold that provides a regulatory
basis for allowing DoD personnel to support other
essential priorities and missions of greater
contractual risk, while reducing regulatory impact on
contractors.
DFARS Case 2018-D068: A proposed rule would amend the DFARS
to implement a provision of the NDAA for FY 2019 that
provides for accelerated payments to small business
contractors and subcontractors.
DFARS Case 2018-D047: A proposed rule would amend
DFARS to modify the text of the existing clause
prescription at DFARS 228.370 to require, instead of
permit, that DFARS clause 252.228–7005 ("Accident
Reporting and Investigation Involving Aircraft,
Missiles, and Space Launch Vehicles") be included in
all solicitations and contracts, when applicable.
DFARS Case 2018-D046: A proposed rule would
streamline the DFARS by modifying and renaming DFARS
clause 252.239–7013 ("Obligation of the Government")
in order (i) to incorporate the information
included in DFARS clause 252.239–7014 ("Term of
Agreement"), (ii) to create an alternate for DFARS
clause 252.239–7013 that is used in certain
circumstances, in lieu of the basic clause, (iii) to
include the information in DFARS clauses 252.239–7013,
-7014, and -7015; and (iv) to amend the clause text to
align with the termination notification requirement in
the FAR, all of which changes will result in DFARS
clauses 252.239–7014 and 252.239–7015 being removed
from the DFARS.
DFARS Case 2019-D003: A proposed rule would amend
the DFARS to implement section 834 of the NDAA for FY
2018, which requires the use of reliability and
maintainability sustainment factors in weapon system
design.
DFARS Case 2018-D015: A proposed rule would amend the DFARS
to implement a section of the NDAA for FY 2018,
which requires an amendment to the DFARS to
provide for the appropriate use of the
should-cost review process of a major weapon
system.
DFARS Case 2019-D008: A proposed rule would amend the DFARS
to implement a section of the NDAA for FY 2017 that provides
limits on the scope of review by the SBA's procurement center
representatives for certain solicitations awarded by or for DoD.
DFARS
Case 2018-D049: A proposed rule would amend the DFARS
to modify DFARS clause 252.229–7001 ("Tax
Relief") to incorporate the information
currently included in DFARS clause 252.229–7000
("Invoices Exclusive of Taxes or Duties"),
resulting in the removal of the latter clause.
DFARS Case 2018-D069: DoD solicited information that will
assist in the development of a revision to the DFARS to
implement a section of the National Defense Authorization Act
for FY 2019, which amended the statutory presumption of
development exclusively at private expense for commercial items
in the procedures governing the validation of asserted
restrictions on technical data.
DFARS Case 2019-D031: A proposed rule would amend the DFARS
to implement a section of the NDAA for 2016 that
modifies the criteria required to exempt from
competition certain follow-on productions
contracts. DFARS Case
2019-D019: A proposed rule would amend the DFARS to
implement a drafting convention by: (i) updating
legal and DFARS citations in DFARS 252.249–7002
("Notification of Anticipated Contract
Termination or Reduction"); (ii) conforming the
clause text to the current DFARS convention
regarding the use of dollar thresholds in
contract clauses; and (iii) removing clause text
that is no longer needed to implement the
underlying statutory language.
DFARS Case
2019-D013: A proposed rule would amend the DFARS to modify
the clause at DFARS 252.232–7000 ("Advance
Payment Pool") to incorporate the information
currently included in DFARS clause 252.232–7001
("Disposition of Payments") so that the latter
clause can be removed from the DFARS.
DFARS Case
2018-D050: A
proposed rule would amend the DFARS to modify the clause at DFARS 252.204–7002
("Payment for Subline Items Not Separately Priced") in order (i) to simplify the clause text and conform terminology used in the text to current
government contract line item structure terminology and (ii) to clarify the intent of the clause, as it pertains to payment on contracts that contain not separately priced
(NSP) items, when applicable.
DFARS Case
2019-D027: A proposed rule would amend the DFARS to implement several sections of the NDAA for FY 2017 to address how contracting officers may require the offeror to submit relevant information to support market research for price analysis and allow an offeror to submit information relating to the value of a commercial item to aid in the determination of the reasonableness of the price of
that item.
DFARS Case
2019-D029: A proposed rule would amend the DFARS to implement several sections of the NDAA for FY 2017 that address treatment of commingled items purchased by contractors and services provided by nontraditional defense contractors as commercial items. DoD is also proposing to further implement a section of the NDAA for FY 2018 that provides that a contract for an item using FAR part 12 procedures shall serve as a prior commercial item determination.
Comments are due by January 27, 2020.
Other Agencies
Agriculture
The USDA amended the Guidelines for
Designating Biobased Products for Federal Procurement to
add 30 sections that will designate the
product categories within which biobased products would be
afforded procurement preference by federal agencies and their
contractors.
Army
The Army
removed three obsolete parts from its acquisition
regulations in 48 C.F.R.: (i)
Part 5145 ("Government Property"); (ii)
Part 5108 ("Required Sources of Supplies and
Services"); and
Part 5119 ("Small Business and Small Disadvantaged
Business Concerns").
DOLEffective December 26, the DOL
is making two procedural changes to its Workforce Innovation and Opportunity Act (WIOA) Job Corps
regulations to enable the Secretary to delegate procurement authority as it relates to the development and issuance of requests for proposals for the operation of Job Corps centers, outreach and admissions, career transitional services, and other operational support services.
The DOL's OFCCP proposed to codify procedures that the agency currently uses
(i) to resolve potential
discrimination and other material violations
by federal contractors and subcontractors of laws, regulations,
and requirements found under Executive Order 11246, as amended, section 503 of the Rehabilitation Act, as amended,
and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended,
and (ii) to add clarifying definitions to specify the types of
evidence OFCCP will use to support its discrimination findings.
Comments are due by January 29.
EPA
A final rule revised the "Submission of Invoices" clause in the EPA's acquisition regulation (EPAAR) to add
electronic invoicing requirements.
The EPA proposed to amend its acquisition regulation (the EPAAR), inter alia, (i) to address situations in the acquisition of commercial items and services where a vendor's
standard commercial terms and conditions conflict, or create ambiguity, with federal law or regulations, e.g., by requiring arbitration in a particular state or by mandating other other dispute resolution procedures that are inconsistent with the CDA and (ii) to issue EPA class deviations to FAR clauses to address the order of precedence in situations involving these incompatible standard commercial terms.
The EPA proposed to amend the EPAAR to add a new contract clause to address open source software requirements so that EPA can share open
source software developed under its procurements.
General
Services Administration (GSA)
GSAR Case 2017-G502: The GSA issued a
direct final rule amending its acquisition regulation (the GSAR) to remove GSAR subpart 519-70 ("GSA
Mentor-Protégé Program") and associated clauses that are
duplicative of the SBA's governmentwide Mentor-Protégé program
and to remove several subcontracting provisions that are
duplicative of the requirements in FAR 52.219-9 ("Small Business
Subcontracting Plan").
GSAR Case 2008-G517: GSA adopted as final, without
change, an interim rule amending the GSAR to implement The Local
Preparedness Acquisition Act of 2008, which authorizes
the use by state or local governments of FSS 84
for purchases of GSA safety equipment and services.
GSAR Case 2015-G503: A final rule amended
the coverage in the GSAR
concerning construction contracts, including provisions and
clauses for solicitations and resultant contracts, to clarify,
update, and incorporate existing construction contract
administration procedures.
GSAR Case 2013-G502: GSA amended GSAR Parts
515 (Contracting by Negotiation), 538 (Federal Supply
Schedule Contracting), and 552 (Solicitation
Provisions and Contract Clauses) to clarify, update,
and incorporate existing FSS contract administration
policies and procedures. Subsequently, the GSA issued
several
corrections to the FSS provisions.
GSAR Case
2015-G506: Effective January 21, 2020,
the GSA is amending the GSAR to adopt an additional project delivery method for construction, known as
"construction manager as constructor" or "CMc."
HUD
A
final rule amended HUD's
acquisition
regulation (the HUDAR): (i) to incorporate several clauses
and associated additions to the HUDAR matrix; (ii) to replace
references to Government Technical Representatives (GTRs) with
references to Contracting Officer’s Representatives (CORs);
(iii) to codify deviations approved by HUD’s Chief Procurement
Officer; and (iv) to make other minor corrections to
clauses, provisions, and the HUDAR matrix.
A
final rule rule amended various provisions of the HUDAR: (i) to incorporate several
clauses and associated additions to the HUDAR matrix, (ii) to
replace references to Government Technical Representatives
(GTRs) with references to Contracting Officer’s Representatives
(CORs), (iii) to codify deviations approved by HUD’s Chief
Procurement Officer (CPO), and (iv) to make minor corrections to
clauses, provisions, and the HUDAR matrix.
Interior
The
Department of the Interior proposed
to amend its acquisition regulation (DIAR) to implement
Section 15(k) of the Small Business Act and to remove
outdated references and/or obsolete information
concerning small business issues.
Navy
The Department of the Navy removed its procurement
regulations in the following three areas because they were
superseded by, or duplicative of, coverage in the FAR and DFARS:
contract administration,
contracting by negotiation, and
solicitation provisions and contract clauses.
Small
Business Administration (SBA)
The SBA revised its
size standards methodology white paper explaining
how it establishes, reviews, or revises small business
size standards.
Effective January 24, 2020, the SBA codified
(i) regulations for the
Women’s Business Center (WBC)
program, and (ii) policy and procedural changes included in the WBC Program Announcement and Notice of Award (NOA). These changes include, but are not limited to:
(i) language on risk assessment, as required by the Uniform Grant Guidance;
(ii) limitations on carryovers; (iii) a reduction in reporting requirements; and
(iv) eligibility criteria for selection as a WBC.
Effective January 6, 2020, the SBA is modified its method for calculating
average annual receipts used to prescribe size standards for small businesses from a 3-year averaging period to a 5-year period. During a transitional period through January 6, 2022, firms may choose between using a 3-year period and a 5-year period.
Effective December 26,
SBA
madce an extensive set of revisions to its
HUBZone regulations, including,
among many other revisions, requiring only an annual
recertification of HUBZone eligibility rather than a
certification with every offer for a HUBZone contract award.
SBA issued a direct final rule (to be effective January
1, 2020, unless SBA receives significant adverse comments by
December 16) in order to implement provisions of the National Defense Authorization Act for FY 2018, which authorized the inclusion of
"Governor-designated covered areas" under the
HUBZone program.
Effective December 30, the SBA issued
a
final rule which implemented
several provisions of the NDAAs for FY
2016 and 2017 and the Recovery
Improvements for Small Entities After
Disaster Act of 2015 (RISE Act) and also clarified existing regulations.
Specifically, the
rule clarified that contracting officers
have the authority to request
information in connection with a
contractor’s compliance with applicable
limitations on subcontracting clauses;
provided exclusions for purposes of
compliance with the limitations on
subcontracting for certain contracts
performed outside of the United States,
for environmental remediation
contracts, and for information
technology service acquisitions that
require substantial cloud computing;
required a prime contractor with a
commercial subcontracting plan to
include indirect costs in its
subcontracting goals; established that
failure to provide timely subcontracting
reports may constitute a material breach
of the contract; clarified the
requirements for size and status
recertification; and limited the scope of
Procurement Center Representative
(PCR) reviews of Department of Defense
acquisitions performed outside of the
United States and its territories. The
rule also authorized agencies to receive
double credit for small business goaling
achievements as announced in SBA’s
scorecard for local area small business
set-asides in connection with a disaster.
Finally, SBA removed the kit
assembler exception to the non-
manufacturer rule.
The SBA proposed to amend its regulations concerning the
requirements for
certifications of women-owned small business (WOSB) status
and economically disadvantaged women-owned small
business (EDWOSB) status for firms wishing to compete
for WOSB and EDWOSB set-asides or sole source
contracts.
The
SBA proposed
several significant changes to its regulations,
including, inter alia: (i) eliminating the requirement that 8(a) Participants seeking to be awarded an 8(a) contract as a joint venture submit the joint venture to
the SBA for review and approval prior to contract award; (ii) revising several 8(a)
Business Development ("BD") program regulations to reduce unnecessary or excessive burdens on 8(a) Participants;
(iii) clarifying other related regulatory provisions to eliminate confusion among small businesses and procuring activities;
(iv) except for orders and Blanket Purchase Agreements ("BPAs") issued under the GSA’s FSS Program, requiring a business concern to recertify its size and/or socioeconomic status for all set-aside orders under unrestricted multiple award contracts ("MACs");
(iv) requiring a business concern to recertify its socioeconomic status for all set-aside orders where the required socioeconomic status for the order differs from that of the underlying set-aside MAC contract (e.g.,
a HUBZone set-aside order against a small business
set-aside MAC); and (v) except for orders or BPAs
issued under any FSS contract, allowing for size
and/or socioeconomic protests at the order-level for
set-aside orders issued against unrestricted MACs or
for set-aside orders based on a different
socioeconomic status from the underlying set-aside
MAC.
State
Department
The Department of State amended the ITAR
to revise the licensing exemption for
transfers made by or for an agency of the U.S. Government.
The State Department solicited comments concerning the following question: which
exemptions to the ITAR, if any, are redundant or could be
consolidated, and which, if any, contain language that
introduces significant ambiguity or hinders the exemption's
intended use?
USAID
USAID proposed
revisions to its Acquisition Regulation (AIDAR) to
incorporate a revised definition of information
technology (IT) and other requirements relating to
information security and IT approvals in order to
comply with the Federal Information Technology
Acquisition Reform Act (which requires improved
management of the acquisition of IT resources),
specifically to provide increased oversight of
contractor acquisition and use of IT resources.
USAID proposed to amend its regulation regarding
incentive awards for personal services contracts with
individuals to recognize the work of individuals for
extraordinary performance of services under their
contract by providing them with monetary or
non-monetary incentive awards. Subsequently, the
agency announced that. effective December 16, it is amending the AIDAR to establish a monetary and non-monetary incentive-awards program to recognize and reward individual
personal services contractors for their contributions to the accomplishment of
the agency's mission.
VA
The VA amended sections of the VAAR concerning
construction and architect-engineer contracts, inter
alia: (i) to remove subparts/sections 825.2 ("Buy American
Act— Construction Materials"), 836.206 ("Liquidated Damages"),
and 836.513 ("Accident Prevention") as duplicative of the FAR;
(ii) to remove 846.312 ("Construction Contracts"), and the
associated contract clause 852.236–74 ("Inspection of
Construction"), 852.236–74 ("Inspection of Construction"), and
852.236–77 ("Reference to 'Standards'’’) because VA Master
Specifications are used in VA contracts, and 852.236–78
("Government Supervision"), while adding a revised version of
this last clause at 852.242–70 ("Government Construction
Contract Administration"); (iii) to add 836.580 ("Notice to
Bidders—Additive or Deductive Bid Line Items") and a
prescription requiring the Contracting Officer to insert the
provision 852.236–92 ("Notice to Bidders—Additive or Deductive
Bid Line Items") in invitations for bids when the Contracting
Officer determines that funds may not be available for all the
desired construction features at contract award, and to add
coverage under subpart 842.2 ("Contract Administration
Services") and 842.271 ("Contract Clause for Government
Construction Contract Administration") to prescribe clause
852.242–70 ("Government Construction Contract Administration"),
which describes contract administration functions to be
delegated under construction contracts that exceed the
micro-purchase threshold for construction.
The VA published two more sets of final rules amending
the VAAR. The
first (effective September 30) involves the following VAAR sections: Environment, Energy and Water Efficiency, Renewable
Energy Technologies, Occupational Safety, and Drug-Free
Workplace; Protection of Privacy and Freedom of Information;
Other Socioeconomic Programs; and Contract Modifications. The
second (effective October 4) revises the following sections: Contracting by Negotiation and Service
Contracting.
As part of its phased revisions (the VAAR, the VA proposed numerous changes to
VAAR Part 806 (Competition Requirements), including,
inter alia: (i) adding subpart 806.1 (Full and Open
Competition) and section 806.102 (Use of Competitive Procedures)
to address the application of 38 U.S.C. 8127 to competitive GSA
and VA Federal Supply Schedules; (ii) adding subpart 806.2 (Full
and Open Competition After Exclusion of Sources), which would
contain two sections--806.203 (Set-asides for Small Business
Concerns) and 806.270, (Set-asides for Verified Veteran-owned
Small Businesses); (iii) revising section 806.270 (a) to
set-forth the VA’s authority to conduct set-asides for
VOSBs whenever market research provides the contracting officer
with a reasonable expectation of receiving two or more
offers/quotes from eligible and verified service-disabled
veteran-owned small businesses (SDVOSBs) or VOSBs, and award can
be made at a fair and reasonable price that offers best value to
the Government (the "VA Rule of Two"), (b) to state that the
requirement to set aside procurements for VOSBs applies to all
contracts under this regulation, including orders under
interagency acquisition vehicles such as the FSS, governmentwide
acquisition contracts (GWACs), and multi-agency contracts, and
(c) to state that contracting officers shall utilize this
authority in the VAAR for set-asides to verified SDVOSBs and
VOSBs, over other set-asides authorized in FAR subpart
6.2; (iv) revising subpart 806.3 (Other Than Full and
Open Competition) to add specific reference to the
VA’s authority for noncompetitive procedures for
verified VOSBs, to clarify existing authorities
regarding such noncompetitive procedures, and to also
clarify existing statutory authority for other
VA-unique authorities; (iv) amending section 806.302
(Circumstances Permitting Other Than Full and Open
Competition) to add several sections; and (v) adding
two sections under 806.302–5, including 806.302–570
(Noncompetitive Procedures for Verified Veteran-owned
Small Businesses) to provide coverage of the authority
to enter into contracts non-competitively, when
specifically authorized under the VA Veterans First
Contracting Program in accordance with VAAR 819.7007
or 819.7008. These are only some of the proposed
changes.
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