Georgia Tech Procurement Assistance Center

New FAR rule encourages ‘constructive exchanges’ between federal agencies and contractors

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The November 29, 2016 edition of the Federal Register contains a proposed amendment to the Federal Acquisition Regulation (FAR) aimed at encouraging pre-acquisition communications between industry professionals and federal agencies.  This amendment is part of a five-year long effort by the Obama Administration to clarify that communications between potential government contractors and federal agencies are not only allowed, but encouraged.

The proposed rule would amend FAR 1.102-2(a)(4), which currently states that “[t]he Government must not hesitate to communicate with the commercial sector as early as possible in the acquisition cycle to help the Government determine the capabilities available in the commercial marketplace. The Government will maximize its use of commercial products and services in meeting Government requirements.”  In the revised version, the following language would be added:

“Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry as part of market research … so long as those exchanges are consistent with existing laws, regulations, and promote a fair competitive environment.” 

There are a number of laws and regulations that may be come into play during pre-acquisition exchanges with government officials, including the Procurement Integrity Act, 41 U.S.C. § 423, Anti-Kickback Act, 41 U.S.C. § 51 et seq., restrictions on lobbying activity, regulations on collusive bidding, prohibition on contingent fee arrangements, and various laws prohibiting gifts and gratuities to and bribery of federal officials.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/12/new-far-rule-encourages-constructive-exchanges-between-federal-agencies-and-contractors/

DoD’s proposed rule would create additional risk and burdens for contractors handling export-controlled information

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A newly-released Proposed Rule would create a procedure for the Dept. of Defense (DoD) to release unclassified technical data subject to Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) to “qualified contractors,” which are defined to mean qualified U.S. and Canadian contractors.

The public-comment period ends on December 30, 2016.

The Proposed Rule raises the following critical operational and legal issues for U.S. and Canadian defense contractors seeking to obtain ITAR and EAR technical data from DoD:

  1. the certification requirements related to qualification,
  2. the use of overlapping and confusing terminology throughout the rule regarding the type of information subject to the rule,
  3. the limitations on further dissemination, and
  4. the possibility of disqualification for export violations.

For a brief summary of the process, the contractor certification requirement, the type of information subject to the rule, the disclosure limitations, and the issue of disqualification, click on this link: http://www.mondaq.com/article.asp?articleid=541556

FAR Council adds new layer to small business subcontracting rules

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On January 20, 2016, the FAR Council published a proposed rule calling for changes to the Federal Acquisition Regulation (FAR) Parts 19 and 52 that address payments to small business subcontractors.

The FARThe proposed changes, which are intended to implement regulations adopted by the Small Business Administration (SBA) in 2013, will expand the range of small business-related obligations imposed on prime contractors.

The proposed rule stems from the Small Business Jobs Act of 2010, which, as noted in a previous post, called for regulations governing prime contractors’ compliance with their small business subcontracting plans. Among the Act’s requirements was that prime contractors notify their contracting officer if they pay a “reduced price” or make an “untimely payment” to a small business subcontractor.  Although the SBA adopted regulations implementing this statutory directive in July 2013, the Far Council is taking on the task for the first time.

Keep reading this article at: http://www.natlawreview.com/article/far-council-adds-new-layer-to-small-business-subcontracting-rules

Comments on the proposed rule must be submitted by March 21, 2016.  Comments should reference “FAR Case 2014-004” and may be submitted by mail, email, or online. 

SBA seeks comments on WOSB certification process until Feb. 16, 2016

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SBA sealThe Small Business Administration (SBA) released an advance notice of proposed rulemaking (ANPR) on Friday, December 18, 2015, which would change the certification process for the Women Owned Small Business (WOSB) Program.  Public comments on SBA’s new rules are due not later than February 16, 2016.

Background

In the 2015 version of the National Defense Authorization Act (NDAA), Congress directed the SBA to end self-certification for WOSBs and EDWOSBs and take on a formal certification process.  Section 825 of the 2015 NDAA specifically authorizes certification by a federal agency, a State government, SBA, or a national certifying entity approved by SBA.  In the ANPR, the SBA is seeking comments on how to best implement this Congressional directive.  In essence, the SBA is requesting the public to suggest the most appropriate way to structure the WOSB/EDWOSB certification process before SBA engages in a formal rulemaking process.

The Advance Notice of Proposed Rulemaking (ANPR)

Four significant areas of change to the WOSB certification process are under consideration:

  • The SBA wants comments on the four certification approaches specified in the 2015 NDAA.  Specifically, SBA requests comments on whether each of the four types should be pursued.
  • SBA also requests comments on whether there should be a grace period after implementation of a formal certification process to give self-certified WOSBs and EDWOSBs firms enough time to complete the new certification process.
  • SBA also wants public comment on what should become of the current WOSB repository and whether or not it should be maintained.
  • Lastly, the SBA is asking for comments on the existing SBA-approved third-party national certifying entities as well as on the WOSB certification programs available through the SBA’s 8(a) Program and by state governments that certify women to be DBEs for the U.S. Department of Transportation’s Disadvantaged Business Enterprise (DBE) Program.
Who Should Comment

SBA’s ANPR is extremely relevant to all businesses currently self-certified as a WOSB or EDWOSB, as well as those who intend to pursue WOSB/EDWOSB certification in the future.  The ANPR, including instructions for commenting can be found at: https://www.gpo.gov/fdsys/pkg/FR-2015-12-18/pdf/2015-31806.pdf

FAR change proposed that would eliminate DUNS® requirement

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Federal RegisterIn the Nov. 18, 2015 edition of the Federal Register, there’s a proposal to amend the Federal Acquisition Regulation (FAR) to re-designate the terminology for unique identification of entities receiving Federal awards. The change to the FAR would remove the proprietary standard or number; in this case, the the proprietary Data Universal Numbering System (DUNS®) number from Dun and Bradstreet.

The rule proposes to provide references to a web site where information on the unique entity identifier used for Federal contractors will be located.  The process for exploring non-proprietary alternatives to DUNS® will be led by the Office of Management and Budget and the Treasury Department, assisted by GSA and the Award Committee for E-Government.

“Although the government is not currently in a position to move away from use of the DUNS® number in the short term,” the notice states, “elimination of regulatory references to a proprietary entity identifier will provide opportunities for future competition that can reduce costs to taxpayers. The current requirement limits competition by using a proprietary number and organization to meet the identification need as well as the need for other business information associated with that number.”

Comments on the proposal are due January 19, 2016.  The proposed rule can be found at: http://www.gpo.gov/fdsys/pkg/FR-2015-11-18/pdf/2015-29414.pdf

DoD reopens comment period on pricing data rule

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The public comment period on a contract pricing rule which would amend the Defense Federal Acquisition Regulation Supplement (DFARS) has been extended to November 13, 2015.

DFARSThe proposed DFARS change is necessary in order to implement Section 831 of the 2013 National Defense Authorization Act (NDAA), which requires the issuance of guidance on the use of the authority to require the submission of other than cost or pricing data, 80 Fed. Reg. 61333.

The 2013 NDAA mandates that offerors submitting proposals for negotiated procurements provide certified cost or pricing data under certain circumstances if the estimated value of the procurement is above a certain dollar threshold. For other types of procurements (e.g., commercial-item acquisitions) the law requires only that an offeror provide “data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price” (10 U.S.C. 2306a(d)(1)).   Section 831 of the NDAA requires the issuance of guidance on the use of the authority to require the submission of other than cost or pricing data.

The new rule proposes to amend the DFARS as follows:

  • Add new definitions at 202.101 for “market-based pricing” and “uncertified cost data” and at 215.401 for “nongovernment sales,” “relevant sales data,” and “sufficient nongovernment sales to establish reasonableness of price”;
  • Add section 212.209 entitled “Determination of price reasonableness”;
  • Add guidelines at 215.402(a)(3), for obtaining data other than certified cost or pricing data;
  • Add instructions at 215.403-5 for the submission of certified cost or pricing data and data other than certified cost or pricing data;
  • Add guidelines at 215.404-1 concerning proposal analysis techniques;
  • Renumber the paragraph structure at 215.404-1-70;
  • Revise the clause prescription at 215.408, paragraph(3)(i), and add three new provision prescriptions at paragraph (6); and
  • Add three new provisions in part 252.

Interested parties may submit comments via the Federal eRulemaking portal by entering ‘‘DFARS Case 2013–D034’’ under the heading ‘‘Enter keyword or ID’’ and selecting ‘‘Search.’’ Select the link ‘‘Submit a Comment’’ that corresponds with ‘‘DFARS Case 2013– D034.’’ Follow the instructions provided at the ‘‘Submit a Comment’’ screen. Please include your name, company name (if any), and ‘‘DFARS Case 2013– D034’’ on your attached document.

  • Email: osd.dfars@mail.mil. Include DFARS Case 2013–D034 in the subject line of the message.
  • Fax: 571–372–6094.
  • Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301–3060.

More detail at: https://www.federalregister.gov/articles/2015/08/03/2015-18938/defense-federal-acquisition-regulation-supplement-evaluating-price-reasonableness-for-commercial 

SBA proposes to give credit for small business subcontracting at any tier

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The U.S. Small Business Administration (SBA) is proposing to amend its regulations to  allow an “other than small prime contractor” to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier.

Federal RegisterCurrently, other than small business prime contractors establish small business subcontracting goals at the first tier level, and receive credit toward their subcontracting plan goal performance at the first tier level.

The rule also proposes to implement the statutory requirements related to the subcontracting plans of all subcontractors that are required to maintain such plans, including the requirement to monitor subcontractors’ performance and compliance towards reaching the goals set out in those plans as well as their compliance with subcontracting reporting requirements. SBA is also proposing to clarify that the size standard for a particular subcontract must appear in the solicitation for the subcontract.

The proposed rule implements Section 1614 of the National Defense Authorization Act for Fiscal Year 2014, Public Law 113-66.

In order to be considered, public comments on this proposed rule must be received on or before December 7, 2015.  The proposed rule and instructions for submitting comments may be found at: https://www.federalregister.gov/articles/2015/10/06/2015-25234/credit-for-lower-tier-small-business-subcontracting

New regulations will change business for Government contractors

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The Administration has been active in promulgating Executive Orders (E.O.) that affect the stakeholders in the Government contracting process.  On July 31, 2014, the President signed Executive Order 13673, “Fair Pay and Safe Workplaces.”  The E.O.states that it “improve[s] the federal contracting process.” But it will create a burden for prime contractors, subcontractors, and their agency customers. It will place increased importance on avoiding any type of adverse ruling involving an employment-related or safety-related claim.

Dept. of LaborAs all Government contractors are aware, a contract may be awarded only after a federal agency determines that the prospective contractor is “responsible” in accordance with Part 9 of the Federal Acquisition Regulation (FAR). Under this E.O., a company’s compliance with 14 federal labor statutes, as well as unnamed state labor statutes, will now be a factor that agencies and prime contractors must consider prior to awarding a contract or subcontract over $500,000.

The FAR Council issued a proposed rule (FAR Case 2014-025) on May 28, 2015, amending the FAR to implement E.O. 13673.  80 Fed. Reg. 30548. On that same day, the Department of Labor (DOL) issued extensive “guidance” on the E.O.  80 Fed. Reg. 30573.  Comments on the proposed regulations were originally requested by July 27, 2015, but that deadline has been extended twice and is now August 26, 2015. Your company, or an association representing your industry, may have already filed comments on the proposed regulation; regardless, it is very important that your company focus on the requirement and take immediate steps to prepare for its implementation.

Keep reading this article at: http://www.lexology.com/library/detail.aspx?g=e1853900-11d2-43a0-a8db-2418a038249c

Federal contractors ask White House to slow stream of executive orders

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The federal contracting community wants the Obama administration to halt the flow of executive orders focused on reforming the industry.

White HouseThe move comes almost a week after The New York Times leaked a draft executive order that the president reportedly plans to issue, mandating that companies contracting with the federal government give employees paid sick leave.

Four contracting groups, in a letter sent last week to Chief of Staff Denis McDonough and Assistant to the President for Intergovernmental Affairs and Public Engagement Valarie Jarrett, noted that the White House has issued 12 contractor-focused executive orders since 2009.

Keep reading this article at: http://www.fiercegovernment.com/story/federal-contractors-ask-white-house-slow-stream-executive-orders/2015-08-12

Read the letter from contractors at: Multi-Association Letter on Government Contracting Executive Orders

Proposed contract bundling changes aim to increase small business contracting

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As required by the Small Business Jobs Act of 2010, on June 3, 2015, the FAR Council introduced a proposed change to the FAR contract bundling requirements. 80 Fed. Reg. 31,561-01. The proposed rule aims to improve small business participation in federal contracting by clarifying existing FAR regulations that discourage agency utilization of contracting bundling. The proposed rule would require increased reporting, parses the definitions of “bundling” and “consolidating” of contracts, and requires agencies to publicly justify their decisions to bundle requirements or consolidate contract vehicles. This definitional distinction between bundling of requirements and consolidation of contracts is intended to discourage agencies from combining unrelated requirements or contracts into a single award.

Under the proposed rule, agencies that bundle contracts or requirements in excess of $2 million will face greater notification and reporting requirements. If an agency wants to bundle two existing contracts, it must first notify small businesses at least 30 days beforehand of its intent to bundle its contracts. Agencies will also be required to provide public notice of the agency’s bundling policy and a list of and rationale for any bundled requirements for which the agency solicited offers or issued an award. If adopted, the proposal’s enhanced notification requirements may afford small business contractors an opportunity to protest an agency’s improperly bundled contracts.

Keep reading this article at: http://www.mondaq.com/unitedstates/x/415754/Government+Contracts+Procurement+PPP/Proposed+Contract+Bundling+Changes+Aim+To+Increase+Small+Business+Contracting

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