2017 Procurement Review: Statutes, Regulations, Executive Orders

Statutes

National Defense Authorization Act, 2017

National Defense Authorization Act, 2018

Executive Orders

Executive Order 13782 revokes Executive Orders and 13673 and 13738.

Regulations

Federal Acquisition Regulation (FAR)

Federal Acquisition Circulars (FAC)

FAC 2005-95

Federal Acquisition Circular (FAC) 2005-95 included the following five rules:

FAR Case 2013-014: A final rule amended the FAR to establish the uniform use of line items in federal procurements.: A final rule amended the FAR to implement a section of the NDAA for FY to raise the simplified acquisition thresholds for special emergency procurement authority from $300,000 to $750,000 within the United States and from $1 million to $1.5 million outside the United States. FAR Case 2015-012: A final rule amended the FAR to implement a section of the Consolidated and Further Continuing Appropriations Act, 2015, that prohibits the use of funds, appropriated or otherwise made available, for a contract with an entity that requires employees or subcontractors to sign an internal confidentiality agreement that restricts such employees or subcontractors from lawfully reporting waste, fraud, or abuse to a designated government representative authorized to receive such information. 

FAR Case 2016-004: A final rule amends the FAR to implement a section of the NDAA for FY 2016 to raise the simplified acquisition thresholds for special emergency procurement authority from $300,000 to $750,000 within the United States and from $1 million to $1.5 million outside the United States.

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

FAR Case 2012-022: A final rule amended the FAR to implement regulatory clarifications made by the Small Business Administration regarding the 8(a) program, including, inter alia: (i) revisions to the language at FAR 19.804�6(a) to clarify that offers and acceptances are required for individual orders under multiple-award contracts that were not set aside for competition among 8(a) contractors; (ii) revisions to the language at FAR 19.814(a) to indicate that the SBA Inspector General can request a formal size determination; and (iii) revisions to the language at FAR 19.815 regarding the release of requirements from the 8(a) program, in order to clarify that any follow-on 8(a) requirement shall remain in the 8(a) program unless there is a mandatory source for the requirement pursuant to FAR 8.002 or 8.003 or the SBA agrees to release the requirement for procurement outside the 8(a) program.

FAR Case 2015-016: A final rule amended the FAR to implement section 857 of the Carl Levin and Howard P. �Buck� McKeon NDAA for FY 2015, which includes additional requirements relative to the allowability of costs incurred by a contractor in connection with a Congressional investigation or inquiry.

FAC 2005-96

FAC 2005-96 included the following item:

FAR Case 2017-015: A final rule amended the FAR to remove the clauses associated with the prior Fair Pay and Safe Workplaces regulations (FAR Case 2014-025).

Other Proposed FAR Revisions

FAR Case 2015-033: A proposed rule would amend the FAR to implement Executive Order 13693 (Planning for Federal Sustainability in the Next Decade) and the biobased product acquisition provisions of the Agricultural Act of 2014 (also known as the 2014 Farm Bill).

Department of Defense FAR Supplement (DFARS)

In accordance with Executive Order 13777, DoD requested comments on DFARS solicitation provisions and contract clauses that may be appropriate for repeal, replacement, or modification.

DFARS Case 2017-D037: A final rule amended the DFARS to add Latvia as a qualifying country.

DFARS Case 2018-D001: Effective January 1, 2018, 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.

Other Agencies

Agriculture

The Department of Agriculture proposed to amend the Guidelines for Designating Biobased Products for Federal Procurement (Guidelines) to add 12 sections that will designate 12 product categories composed of intermediate ingredient and feedstock materials within which biobased products would be afforded procurement preference by Federal agencies and their contractors. USDA is also proposing minimum biobased contents for each of these product categories.

Bureau of Industry and Security (Department of Commerce)

The Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to implement the India-U.S. Joint Statement of June 7, 2016 (which recognized the United States and India as Major Defense Partners) and, specifically: (i) to establish a licensing policy of general approval for exports or reexports to, or transfers within, India of items subject to the EAR and controlled only for National Security or Regional Stability reasons; and (ii) to amend the end use and end user provisions of the Validated End User (VEU) authorization to state that items obtained under authorization VEU in India may be used for either civil or military end uses other than those that are for use in nuclear, "missile," or chemical or biological weapons activities.

The BIS issued a final rule that: (i) requires persons intending to export or reexport to Hong Kong any item subject to the EAR and controlled on the Commerce Control List (CCL) for national security (NS), missile technology (MT), nuclear nonproliferation (NP column 1), or chemical and biological weapons (CB) reasons to obtain, prior to such export or reexport, a copy of a Hong Kong import license or a written statement from the Hong Kong government that such a license is not required; and (ii) requires persons intending to reexport from Hong Kong any item subject to the EAR and controlled for NS, MT, NP column 1, or CB reasons to obtain a Hong Kong export license or a statement from the Hong Kong government that such a license is not required.

The BIS amended the EAR to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the October 2016 Plenary in Busan, South Korea, and the March 2016 Technical Experts Meeting (TEM) in Luxembourg City, Luxembourg. This final rule revises thirteen ECCNs, adds one ECCN, revises two EAR defined terms (including making other EAR conforming changes for the use of these two terms) and makes conforming EAR changes where needed to implement the changes that were agreed to at the meetings and to better align the missile technology (MT) controls on the Commerce Control List (CCL) with the MTCR Annex.

The BIS issued a final rule revising the CCL, as well as corresponding parts of the EAR, to implement changes made to the Wassenaar Arrangement List of Dual-Use Goods and Technologies (WA List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement, or WA) at the December 2016 WA Plenary meeting. This rule harmonizes the CCL with the agreements reached at the 2016 Plenary meeting by revising Export Control Classification Numbers (ECCNs) controlled for national security reasons in each category of the CCL, as well as making other associated changes to the EAR.

EPA

A final rule made administrative changes (involving updates, corrections and minor edits) to the EPA's acquisition regulations (EPAAR).

General Services Administration (GSA)

GSAR Case 2016-G508: The GSA amended its Acquisition Regulation (GSAR) (i) to remove the section regarding internal procedures used by GSA personnel to monitor contractual actions entered into the Federal Procurement Data System and (ii) to add a nonregulatory section in the General Services Acquisition Manual (GSAM) covering this subject.

In accordance with Executive Order 13777, "Enforcing the Regulatory Reform Agenda," the GSA sought input on acquisition regulations, policies, standards, business practices and guidance issued by GSA across all of its acquisition, disposal, and sales programs, that may be appropriate for repeal, replacement, or modification.

NASA

A final rule amended the NASA FAR Supplement (NFS) to add policy on the use of additional contract periods of performance or "award terms" as a contract incentive.

A direct final rule amend the NFS: (i) to remove an outdated reference to the NASA Acquisition Information System (NAIS) electronic posting system; and (ii) to revise titles to agency directives.

Small Business Administration (SBA)

The SBA proposed to amend its small business size regulations by incorporating the OMB's NAICS revision for 2017 ("NAICS 2017") into its table of small business size standards, effective October 1. NAICS 2017 created 21 new industries by reclassifying, combining, or splitting 29 existing industries under changes made to NAICS in 2012 ("NAICS 2012"). SBA's proposed size standards for these 21 new industries will result in an increase to size standards for six NAICS 2012 industries and part of one industry, a decrease to size standards for two, a change in the size standards measure from average annual receipts to number of employees for one, and no change in size standards for twenty industries and part of one industry.

The SBA issued a final rule amending the rules of practice of  the OHA to implement section 869 of the NDAA for FY 2016 and section 1833 of the NDAA for FY 2017, which authorize the OHA to decide Petitions for Reconsideration of Size Standards after the SBA publishes a final rule in the Federal Register to revise, modify, or establish a size standard.

The SBA adopted, without change, its proposed revisions to small business size standards by incorporating the OMB's NAICS revision for 2017 into the SBA's table of small business size standards and, thereby, identifying 21 new industries (by reclassifying, combining, or splitting 29 existing industries under changes made to NAICS in 2012). SBA's size standards for these 21 new industries have resulted in an increase to size standards for six NAICS 2012 industries and part of one industry, a decrease to size standards for two, a change in the size standards measure from average annual receipts to number of employees for one industry, and no change in size standards for twenty industries and part of one industry.

The SBA updated the NAICS codes authorized for use in the Women-Owned Small Business Federal Contract Program (WOSB Program) in order to reflect the OMB's NAICS revision for 2017, identified as NAICS 2017, which  created 21 new industries by reclassifying, combining, or splitting 29 NAICS 2012 industry codes. These changes would impact eight of the 2012 NAICS codes designated for use under the WOSB Program.

In compliance with Sections 1832 and 1833 of the NDAA for FY 2017, the SBA proposed to amend the OHA's rules of practice to implement procedures for protests of eligibility for inclusion in the VA Center for Verification and Evaluation (CVE) database, and procedures for appeals of denials and cancellations of inclusion in the CVE database.

State Department

The State Department issued a final rule revising Category XV (Spacecraft and Related Articles) of the U.S. Munitions List to describe more precisely the articles warranting control in that category. The Commerce Department's Bureau of Industry and Security made corresponding changes to the Commodity Control List.

The Department amended the ITAR to enable U.S. Customs and Border Protection (CBP) to implement the International Trade Data System (ITDS), which will allow businesses to electronically submit the data required to import or export cargo, as provided by Executive Order 13659 and the Security and Accountability for Every Port Act of 2006 (SAFE Port Act).

The State Department requested comments from the public regarding recent revisions to Category XII of the United States Munitions List (USML). In light of the ongoing transition of the USML to a more "positive list" pursuant to the President�s Export Control Reform initiative, the Department requests that the public comment on (1) alternatives to controls on certain items when "specially designed for a military end user," (2) the scope of the control in paragraph (b)(1), and (3) certain technical parameters that the Department is evaluating to replace "specially designed" controls.

Treasury

The Treasury Department amended its acquisition regulation to permit agency officials to obtain taxpayer return information as part of responsibility determinations to check whether prospective awardees are in compliance with tax laws or have unpaid tax liabilities.

VA

The VA proposed to amend and update its acquisition regulation (the "VAAR") to revise or remove any policy that has been superseded by changes in the FAR, to remove any procedural guidance that is internal to the VA, and to incorporate any new regulations or policies. These proposals are being made in increments, and one of which covers the sections of the VAAR concerning "Types of Contracts"  and "Bonds and Insurance." The VA proposed additional revisions to Parts 801-803, 812, 814, 822, and 852 of the VAAR to update it and harmonize it with the FAR.

The VA issued an interim final rule requiring reverification of SDVOSB/VOSB status only every three years rather than biennially. Subsequently, the VA converted this to a final rule.

The VA withdrew a proposed rule amending the regulations governing the VA's VOSB Verification Program.