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Contents
Statutes
Executive Orders
and Related Publications
Executive Order 14042 requires the Government to take
expeditious steps to develop and include a clause in federal
contracts that specifies that the contractor and its subcontractors shall,
for the duration of the contract, comply with all COVID safety guidance
published by the Safer Federal Workforce Task Force for
all employees at contractor or subcontractor workplace
locations, provided that the OMB Director approves the
Task Force Guidance and determines that the Guidance, if adhered to by
contractors or subcontractors, will promote economy and efficiency in federal
contracting.
Executive Order
14055 includes requirements to ensure the
nondisplacement of qualified workers when a
service contract expires.
Regulations
Federal Acquisition
Regulation (FAR)
Federal
Acquisition Circulars (FAC)
FAC 2021-03
Federal Acquisition Circular (FAC)
2021-03 included the following
three items plus technical amendments:
FAR Case 2017-018: A final rule
adopted with changes the prior interim rule amending the FAR to implement a section of the National Defense Authorization Act
(NDAA) for FY 2017 that addresses measures against persons involved in activities that violate arms control treaties or agreements with the United States.
FAR Case
2018-016: A final rule amended the
FAR to implement a section of the John S. McCain NDAA for FY 2019 that applies criteria for, and limitations on, the use of the lowest-price, technically-acceptable source selection criteria in solicitations.
FAR Case
2017-003: A final rule amended the
FAR to implement a section of the NDAA for FY 2016 to change the kinds of assets that individual sureties must pledge as security for their bonds.
In addition, a final
rule made
miscellaneous editorial changes to the FAR to correct
errors, etc.
FAC 2021-04
FAC
2021-04 included the following item:
FAR Case 2019-016: A final rule amended the FAR to implement Executive Order 13991 addressing domestic preferences in
government procurement, specifically, inter alia:
(i) in order to meet the definition of "domestic construction material" or
"domestic end product," the cost of foreign iron and steel for iron and steel products must be less than 5 percent of the cost of all components in the product;
and (ii) for everything else, the domestic content requirement increases from 50 percent to more than 55 percent of the cost of all components.
FAC 2021-06
FAC
2021-06 included the following
two items (plus technical amendments):
FAR Case 2019-001: A final rule
amended the FAR to implement a section of the FAA Reauthorization Act of 2018, which requires, when acquiring equipment, a case-by-case analysis of cost and other factors associated with certain methods of acquisition, including purchase, short-term rental or lease, long-term rental or lease, interagency acquisition, and, if applicable, acquisition agreements with a State or local government.
FAR Case
2020-004: A final rule amended the FAR
to implement a section of the National Defense Authorization Act for FY 2020 that raises the threshold for fair opportunity on certain task and delivery orders to the micro-purchase threshold.
FAC 2021-07
FAC
2021-07 included
the following items plus technical amendments:
FAR
Case 2019-004: A final rule
amended the FAR to
implement a section of the National
Defense Authorization Act (NDAA) for FY 2017, which requires examples of
failure to make good faith efforts to
comply with a small business
subcontracting plan.
FAR Case
2016-011: A final rule amended
the FAR to
implement revised and standardized
limitations on subcontracting, including
the nonmanufacturer rule, that apply to
small business concerns.
FAR Case
2020-012: A final rule amended
the FAR to
implement section 1811 of the NDAA FY 2017 to provide
procurement center representatives with
the discretion to review any acquisition.
FAR Case
2017-011: A final rule amended
the FAR to
incorporate recent revisions and
updates to accessibility standards issued
by the U.S. Access Board.
FAC 2022-01
FAC
2022-01 included the following
three items--
FAR Case 2018-018: A final rule
amended the FAR to implement a section of the John S. McCain NDAA for FY 2019 to change the definition of "commercial item" by bifurcating the definition into
"commercial product" and "commercial service."
FAR Case 2019-003: A final rule
amended the FAR to implement section 863 of the NDAA for FY 2016,
which requires public notification of an agency’s determination to substantially bundle or consolidate contract requirements.
FAR Case 2021-007: A final rule amended the FAR to implement a section of the William M.
(Mac) Thornberry NDAA for FY 2021 that modified the Small Business Act's maximum award price for manufacturing contracts to $7 million.
FAC 2022-02
FAC
2022-02
included
the following item:
FAR Case 2021-003:
A final rule replaced FAR references to the Federal
Business Opportunities (FBO.gov) and
Wage Determinations Online
(WDOL.gov) websites with references to
the System for Award Management
(SAM.gov).
FAC 2022-03
FAC 2022-03 included the
following item:
FAR Case 2022-01: Effective January 1, 2022, a final
rule amends the FAR to
incorporate revised thresholds for
application of the World Trade
Organization Government Procurement
Agreement and the Free Trade
Agreements, as determined by the
United States Trade Representative. Moreover,
DFARS Case 2022-D003 made the same
change to the DFARS.
Other
Proposed FAR Revisions
FAR Case 2018-002:
The proposed rule to amend the FAR entitled "Protecting Life in Global Health Assistance"
was withdrawn because the Presidential Memorandum
regarding "The Mexico City Policy," dated January
23, 2017, has been revoked by the Memorandum on
Protecting Women’s Health at Home and Abroad issued
by President Biden on January 28, 2021.
FAR Case
2013-022:
The proposed rule to amend the FAR entitled "Extension of Limitations on Contractor Employee Personal Conflicts of Interest"
was withdrawn because the requirements of the underlying statute that directed consideration of a FAR change have been met.
FAR Case
2011-001 :
The proposed rule to amend the FAR entitled
"Organizational Conflicts of Interest" was withdrawn
because of the amount of time that had elapsed since the
proposed rule was published in 2011.
FAR Case
2012-015:
The proposed rule to amend the FAR entitled "Small Business Set Asides for Research and Development Contracts"
was withdrawn both because of the amount of time that
has elapsed since the proposed rule was first published in
2012 and because the proposed changes were unnecessary or
unhelpful.
FAR Case 2019-007:
A proposed rule would amend
the FAR to implement changes to the SBA's regulations for the HUBZone Program.
FAR Case 2021-008:
A
proposed rule would amend the FAR Part 25 Buy America requirements
to comply with E.O. 14005 by
providing for: (i) an increase to the domestic content
threshold, a schedule for future
increases, and a fallback threshold that
would allow for products meeting a
specific lower domestic content
threshold to qualify as domestic
products under certain circumstances;
(ii) a framework for application of an
enhanced price preference for a
domestic product that is considered a
critical product or is made up of critical
components; and (iii) a post-award domestic content
reporting requirement for contractors.
FAR Case 2020-007:
A proposed rule would amend the FAR
to to implement section 873 of the NDAA for FY 2020, which provides for accelerated payments
to contractors that are small businesses
and to small business subcontractors by
accelerating payments to their prime
contractors.
FAR Case 2020-013:
A proposed rule would amend the FAR
to implement the final rule published by the SBA to implement section
825(a)(1) of the Carl Levin and Howard
P. "Buck" McKeon National Defense
Authorization Act (NDAA) for FY 2015, which
requires women-owned small business
(WOSB) concerns and economically
disadvantaged women-owned small
business (EDWOSB) concerns to be
certified by the SBA, a Federal agency,
a State government, or a national
certifying entity approved by the SBA in the
WOSB Program to be eligible for set-aside or sole-source awards.
FAR Case 2021-016:
In an advance notice of proposed
rulemaking, the FAR Council announced it was considering
amending the FAR to ensure that major
federal agency procurements minimize
the risk of climate change.
Department of Defense FAR
Supplement (DFARS)
DFARS Case
2018-D022:
DoD adopted as final, with changes, the prior
interim rule amending the DFARS to implement sections of the NDAAs for FY 2018 and 2019 prohibiting the use of
covered telecommunications equipment or services from certain Chinese entities 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, as a substantial or essential component of any system, or as a critical technology as a part of any system.
DFARS Case
2020-D005:
A final rule amended the DFARS to replace a legacy software application used for reporting
the loss of Government property with new capabilities developed within the DoD enterprise-wide, eBusiness platform.
DFARS Case
2018-D044:
A final rule amended the DFARS to remove the DFARS clause 252.239–7006
("Tariff Information") from the DFARS because the clause is no longer necessary.
DFARS Case
2020-D031:
A final rule amended the DFARS to remove references to revoked Executive
Orders related to minimizing the use of materials containing hexavalent chromium.
DFARS Case
2017-D042:
A final rule amended the DFARS to permit expedited contract closeout through a waiver by the contractor and the Government of entitlement to any residual dollar amounts that are due to either party at the time of contract closeout.
DFARS Case 2018-D063:
A final rule amended the DFARS to implement 10 U.S.C. 2330a, as amended by section 812 of the NDAA for FY 2017, which requires DoD to establish a data collection system to provide certain management information with regard to an awarded contract or task order that is valued in excess of $3 million and is for the following service acquisition portfolio groups: Logistics management services, equipment-related services, knowledge- based services, or electronics and communications services.
DFARS Case 2020-D030:
A final rule amended the DFARS to
implement section 2821 of the NDAA for FY 2020, which prohibits
contracts for the acquisition of
furnished energy for a covered military
installation in Europe that is sourced
from inside the Russian Federation.
DFARS Case
2021-D019:
A final rule amended the DFARS to implement
section 888 of the NDAA
for FY 2021 that rescinds the
requirement for the use of firm-fixed-price contract types for foreign military
sales unless an exception or waiver
applies.
DFARS Case 2019-D037:
A final rule updated the DFARS to to modify internal processes
for the conduct of peer reviews.
Proposed Rules
DFARS Case
2020-D030:
A proposed rule would amend the DFARS
to implement a section of the NDAA for FY 2020 that prohibits contracts for the acquisition of energy for a covered military installation in Europe that is sourced from inside the Russian Federation.
DFARS Case
2018-D055 : A proposed rule would amend the DFARS to
implement section 823 of the National Defense
Authorization Act (NDAA) for FY 2019, which
establishes a requirement for use of the best
available information regarding past performance of
subcontractors and joint venture partners when
awarding DoD contracts for construction and
architect-engineer services.
DFARS
Case 2018-D009: A proposed rule would amend the DFARS to
implement section 818 of the NDAA for FY 2018, which
amends 10 U.S.C. 2305 (i) to enhance post-award
debriefing rights for competitive negotiated
contracts, task orders, and delivery orders that
exceed $10 million and (ii) to provide offerors the
opportunity, upon receiving a post-award debriefing,
to submit follow-up questions related to the
debriefing and to receive agency responses. Section
818 also amends 31 U.S.C. 3553(d) to extend the
timeframe during which the contracting officer shall
immediately suspend contract performance or
terminate the awarded contract if a protest is
filed.
DFARS Case
2021-D012:
A proposed rule would amend the DFARS to
implement section 820 of the NDAA for FY 2021, which
expands the application of the expedited contract
closeout authority of section 836 of the NDAA for FY
2017, implemented at DFARS 204.804(3)(i)(A), to
certain contracts or groups of contracts that were
awarded at least 7 or 10 fiscal years before the
current fiscal year and have completed performance
or delivery at least four years prior to the current
fiscal year.
DFARS Case 2019-D045:
A proposed rule would amend the
DFARS to implement section 2(a)(i) of Executive
Order 13881 "Maximizing Use of American-Made Goods,
Products, and Materials"), which changes the
percentages used to determine whether a product is
domestic or foreign under the Buy American statute .
DFARS Case
2020-D008:
A
proposed rule would amend the DFARS to implement section 803
of the NDAA for FY 2020, which: (i) prohibits
contracting officers from determining
that the price of a contract or
subcontract is fair and reasonable based
solely on historical prices paid by the
Government; and (ii) when an offeror fails
to make a good faith effort to comply
with a reasonable request to submit
data; and (ii) states that an offeror is ineligible
for award if the contracting officer is
unable to determine, by any other
means, that the proposed prices are fair
and reasonable, unless the head of the
contracting activity (HCA) determines
that it is in the best interest of the
Government to make the award to that
offeror. The DoD proposed
updates
to 32 C.F.R. Part 159 to incorporate changes including administrative updates and clarifications regarding private security contractors performing duties while under contract to DoD in support of a contingency operations, humanitarian or peace operations, or other military operations or exercises.
DFARS Case 2021-D010:
A proposed rule would amend the
DFARS subpart 225.70 to implement section
817 of the NDAA for FY 2021, which amends 10 U.S.C. 2533a
(the Berry
Amendment), by reducing the dollar
threshold at which an acquisition is
excepted from the source restrictions of
the Berry Amendment
to an amount not to exceed $150,000.
DFARS Case 2017-D018:
A proposed rule would revise the
DFARS to implement section 824 of the NDAA for FY 2017,
which makes amendments
regarding the treatment of IR&D expenditures
and requires the DCAA to provide an annual report to
Congress on IR&D and bid and proposal
expenditures.
DFARS Case 2019-D010:
A proposed rule would amend the
DFARS to implement a section of the National Defense Authorization Act
(NDAA) for FY 2019, as amended by a section of the NDAA for FY 2020, that requires
accounting firms that provide financial statement auditing or audit remediation services in support of the Financial
Improvement and Audit Remediation Plan to provide to DoD a statement setting forth the details of any
disciplinary proceedings with respect to the accounting firm or its associated persons before any entity with the
authority to enforce compliance with rules or laws applying to audit services offered by the accounting firm. DoD
policy extends this requirement to firms other than accounting firms.
DFARS Case 2021-D025:
A proposed rule would amend the
DFARS to implement a section of the NDAA for FY 2021 that amends the types of line
items and contract options that may be included, subject to limitations, in certain contracts initially awarded
pursuant to competitive solicitations. DFARS Case 2020-D027:
A proposed rule would amend the
DFARS to
revise the requirements related to the
assumption of risk associated with DFARS 252.228–7001 (the "Ground and Flight Risk"
clause ).
Other
Agencies
DOJ
The DOJ
proposed to revise the
Justice
Acquisition Regulations (JAR) in their entirety in order to update and
streamline agency procurement actions consistent with the
Federal Acquisition Reform Act, and the Federal Acquisition
Streamlining Act.
DOL
The DOL's Office of Federal Contract Compliance Programs has
issued a proposed rule
to rescind the regulations
established in the final rule titled "Implementing Legal Requirements
Regarding the Equal Opportunity
Clause’s Religious Exemption," which
took effect on January 8, 2021.
Effective January 30, 2022, a final rule by the DOL implements Executive Order 14026 regarding raising
the
minimum wage requirement for federal contractors. EPA
The EPA proposed to amend its
EPAAR provisions concerning
electronic submission of invoices
via the Invoice Processing Platform to account for differences in contract types.
A
final rule amended the EPAAR to
address common Commercial Supplier
Agreement terms that are inconsistent
with or create ambiguity with Federal
Law, to create a new subpart for class
deviations, and to update its "Fixed
Rates for Services—Indefinite Delivery/
Indefinite Quantity Contract" clause.
General Services Administration (GSA)
GSAR Case
2021-G509:
A direct final rule amended the
GSAR to remove the guidance in Part 553 because it is
outdated and does not coincide with the language at
acquisition.gov.
GSAR Case 2015-G505:
Effective January 20, 2022, a final
rule amends the GSAR to remove text
regarding internal architect-engineer
selection procedures and move it into
the GSA's
Acquisition Manual (GSAM).
GSAR Case 2020-G521:
The GSA proposed to amend GSAR 532.905–70 so it no longer requires contracting officers to obtain approval of legal counsel before processing final payments for construction and building service contracts where, after 60 days, the contracting officer is unable to
obtain a release of claims from the contractors
because legal review is not a statutory requirement.
GSAR Case 2020-G525:
The GSA: (i) amended
the GSAR to clarify the requirements for Personal Identity Verification (PIV)
and is revising a GSAR clause to provide a more specific reference to the location of the GSA credentialing handbook:
and (ii) moved language addressing internal operating procedures
concerning option exercise from the GSAR to the non-regulatory General Services Administration Acquisition Manual (GSAM).
GSAR Case 2021-G527 :
The GSA issued an interim rule amending the the GSAR
to implement Section 3 and Section 5 requirements of
the Secure Federal Leases from Espionage and
Suspicious Entanglement Act (the Act or Secure
Federal LEASEs Act), which address the risks of
foreign ownership of government-leased real estate
and require the disclosure of ownership information
for high-security space leased to accommodate a
Federal agency.
GSAR
Case 2020-G509:
The GSA, inter alia, proposed to
amend subpart 552.2 of its acquisition regulation (the
"GSAR") by adding the new GSAR
clause 552.238–116 ("Option to Extend
the Term of the FSS Contract"), which incorporates FSS clause I–FSS–163 ("Option to Extend the Term of
the Contract (Evergreen)."
GSAR Case
2016-G511:
The GSA proposed to amend the GSAR to
streamline and update requirements for
contracts that involve GSA information
systems by, inter alia,
eliminating a duplicative and
outdated provision and clause from the
GSAR and replacing
the outdated text with existing policies
of the GSA Office of the Chief
Information Officer that provide
centralized guidance to ensure
consistent application across the
organization.
GSAR Case 2020-G521:
A final rule
amended the GSAR to revise internal agency
approval procedures for processing a
final payment for construction and
building service contracts when, after
60 days, a contracting officer is unable
to obtain a release of claims from a
contractor.
GSAR Case
2021-G522:
A proposed rule would amend the GSAR to implement
Section 4 requirements of the Secure Federal Leases
from Espionage and Suspicious Entanglements Act,
which addresses the risks of foreign ownership of
government-leased real estate and requires the
disclosure of ownership information for
high-security space leased to accommodate a federal
agency.
HHS
HHS proposed to amend its acquisition regulation (HHSAR)
in order to support the
Electronic Invoicing
Implementation Project
and HHS’s transition to
the Department of the Treasury’s Invoice Processing
Platform.
Interior
The Department of the
Interior proposed to revise regulations
implementing the
Buy Indian Act
in order to, inter alia: (i) eliminate barriers to Indian Economic Enterprises from competing
on certain construction contracts; (ii) expand Indian Economic Enterprises’ ability to subcontract construction work
consistent with other socio-economic set-aside programs; and (iii) give greater preference to Indian Economic
Enterprises when a deviation from the Buy Indian Act is necessary.
Small Business Administration (SBA)
Relying on its
recently revised "Size Standards Methodology," the SBA proposed
to increase its receipts-based and employee-based small business size
standards for 49 industries in NAICS sectors related to Wholesale Trade and Retail Trade, including 14 industries in NAICS Sector 42 (Wholesale Trade) and 35 industries in NAICS Sector 44–45 (Retail Trade).
The SBA proposed (i) to use a
24-month average
to
calculate a business concern’s number of employees for eligibility purposes in all of SBA’s programs and (ii) to permit business concerns in
its Business Loan, Disaster Loan, and Small Business Investment Company (SBIC) Programs to use a 5-year averaging period, in addition to the
existing 3-year averaging period, for the purposes of calculating annual average receipts. These proposed changes will allow larger small
businesses to retain their small business size status for longer, and some mid-sized businesses to regain small business status.
The SBA proposed to amend its regulations to implement new provisions of the NDAA for FY 2021, specifically to provide new methods for small business government contractors to obtain past performance ratings to be used with offers on prime contracts. A small business contractor may use a past performance rating for work performed as a member of a joint venture or for work performed as a first-tier subcontractor. The proposed rule
would update the requirements for small business subcontracting plans to add a requirement for prime contractors to report past performance to a first-tier, small business subcontractor when requested by that small business.
State Department
The Department of State
adopted as
final
an interim rule amending the
its Acquisition Regulation (the DOSAR) to provide new guidance prescribing more stringent safety requirements for certain overseas construction and services projects.
The Department proposed
to add
section 615.209–70 to
the DOSAR, requiring the Contracting
Officer to insert a new clause, "Examination of Records" (proposed section 652.215–70), in all solicitations and contracts
other than negotiated contracts.
Transportation
The
Department of Transportation
proposed
to extensively
revise and update its entire acquisition regulation (the
"TAR") to streamline the
regulation, to revise or remove policy
that has been superseded by changes in
the FAR, to remove procedural guidance
that is internal to DOT and move it to
the Transportation Acquisition Manual
("TAM") as appropriate, and to
incorporate new regulations or policies
required to implement or supplement
the FAR to execute DOT’s unique
mission and responsibilities.
USAID
The United States Agency for
International Development (USAID)
seeks
public comments
by February 14, 2022, concerning a proposed
rule that implements USAID
requirements for managing digital
information data as a strategic asset to
inform the planning, design,
implementation, monitoring, and
evaluation of USAID's foreign
assistance programs. This proposed rule
incorporates a new policy on Digital
Information Planning, Collection, and
Submission Requirements and the
corresponding clause, as well as a new
clause entitled "Activity Monitoring,
Evaluation, and Learning Plan
Requirements" into USAID's acquisition regulation (the "AIDAR").
VA
As part of its ongoing project to revise its acquisition regulation
(VAAR), the VA issued a
final rule, effective November 1, which
substantially revises multiple sections concerning
competition requirements, and, inter alia, adds subpart
806.1 ("Full and Open Competition"),
section 806.102 ("Use of competitive
procedures"), and subpart
806.2 ("Full and Open Competition
After Exclusion of Sources"), which
contains two sections: 806.203 ("Set-
asides for small business concerns") and,
and 806.270 ("Set-asides for verified
Veteran-owned small businesses").
In another part of its ongoing efforts
to update the VAAR, the VA proposed
to add a part covering the "Acquisition of Information Technology" and
to revise coverage concerning "Other Contracts for Goods and Services" involving mandatory
information, privacy, and security requirements to include policy concerning VA Sensitive Personal Information, information security, and
liquidated damages requirements for data breach in the following parts: "Administrative and Information Matters," "Describing Agency Needs,"
"Protection of Privacy and Freedom of Information," as well as "Acquisition of Commercial
Items.
Also effective November
1, the VA
adopted a final rule amending its acquisition regulation
concerning procedures for obtaining
health care resources
The VA proposed to amend its acquisition regulation (the VAAR) to revise VAAR coverage concerning
Simplified Procedures for Health-Care Resources
as well as an affected solicitation provisions and contract
clauses.
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