Georgia Tech Procurement Assistance Center

FAR definition of “recruitment fees”: No means no

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On December 20, 2018, the Federal Acquisition Regulation (FAR) was amended to clarify the FAR’s prohibition on assessing employees with recruitment fees in connection with federal contracts.  The rule provides a final definition of “recruitment fees” and clarifies the FAR’s broad prohibition on federal contractors or subcontractors assessing employees or potential employees with any such fees.

The final rule brings long-awaited clarity to the scope of the prohibition on recruitment fees, as the term has not previously been defined in anti-trafficking regulations.  Upon publication of a proposed rule change in January 2015, the FAR Council invited the public to comment on a draft definition of the term “recruitment fees” in a notice-and-comment process.  The final rule, which took effect on January 22, 2019, incorporates a definition that has been revised pursuant to comments received during that rulemaking process. Government contractors will need to take these new rules into account in their compliance efforts in connection with their supply chains.

Background

On January 29, 2015, DoD, GSA, and NASA issued a final rule amending the FAR to strengthen and enhance the human trafficking-related prohibitions applicable to all federal contracts. The final rule implemented Executive Order (E.O.) 13627, “Strengthening Protections Against Trafficking in Persons in Federal Contracts,” and Title XVII of the National Defense Authorization Act for Fiscal Year 2013, entitled “Ending Trafficking in Government Contracting.”  The amended FAR, which applied to all future contracts and orders under existing indefinite-delivery/indefinite quantity contracts, imposed significant responsibilities on federal contractors and subcontractors to prevent human trafficking and forced labor.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=768098

Congress aims to redefine ‘subcontract’

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If an agreement qualifies as a “subcontract” under a government contract, then it may be subject to certain flow-down, compliance, and reporting requirements.  These requirements are intended to protect the government’s interests, and have significant ramifications for contractors, e.g., increasing transaction costs, expanding potential areas of exposure.

These compliance obligations and risks can even deter some companies from performing under government contracts, especially those companies offering commercial items.

Currently, there is no uniform definition of “subcontract” in the applicable procurement regulations or in the procurement chapters under Titles 10 and 41 of the U.S. Code.  Indeed, there are more than twenty varying definitions of “subcontract” in the FAR and DFARS, with many clauses failing to specify which definition applies.  Now Congress is looking to address this lack of uniformity through the FY 2019 National Defense Authorization Act (NDAA).

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/06/congress-aims-to-redefine-the-subcontract/

SBA sneaks in rule on small business recertification

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The Small Business Administration (SBA) issued a Direct Final Rule on March 26, 2018 that appears to address a specific holding of SBA’s Office of Hearings and Appeals (OHA) related to small business recertification rules.

This rule went into effect on May 25, 2018.

In the recently issued Analytic Strategies, Inc., SBA No. VET-268, decision, OHA held that a service-disabled veteran-owned small business concern (SDVO SBC) that recertifies its status pursuant to an acquisition or merger remains eligible for set-aside task orders under an indefinite delivery, indefinite quantity contract (IDIQ), unless the contracting officer specifically requires recertification in connection with a specific task order. This holding affirmed the widely understood interpretation of the regulations. SBA opposed this interpretation of the rule in Analytic Strategies. For more information on this case, see an earlier blog post on Analytic Strategies.

What Is the Change?

In March 2018, SBA announced what it terms as a “technical correction” under a Direct Final Rule that may be an attempt to cast doubt on the Analytic Strategies decision. This new rule, however, may prove too much as it would apply to many of the small business programs administered by SBA and not just SDVO SBCs. On the other hand, if SBA’s goal was to make contractors that have recertified their status ineligible for future set aside task orders, it is not clear this rule does it.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=701646

Here’s a summary of the changes in government contracting provisions of the NDAA

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Steve Koprince is the author of the book entitled "The Small-Business Guide to Government Contracts."
Steve Koprince is the author of the book entitled “The Small-Business Guide to Government Contracts.”

The 2017 National Defense Authorization Act (NDAA), signed into law on Dec. 23, 2016, contains at least 16 changes to federal procurement policy, many directly affecting the interests of small businesses.

Ever since the NDAA was finalized, attorney Steve Koprince and his team at Koprince Law LLC have been analyzing and summarizing each of the changes.  Here’s s list of their blog posts, each one hyperlinked to the article:

 

For more information, visit: http://smallgovcon.com 

 

GSA wants transaction-level purchasing data from contractors

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The General Services Administration (GSA) is changing the reporting requirements for federal contractors.

GSA Schedule ContractThe agency has formalized a new rule that requires vendors to report transaction-level data from orders on Federal Supply Schedule and governmentwide acquisition contracts, as well as indefinite delivery, indefinite quantity agreements.

Information gathered under the Transactional Data Reporting rule might include detailed descriptions, quantities and prices for items bought, according to a Federal Register notice.

The rule, which began with a pilot for FSS contracts over the summer, aims to help GSA analyze government spending patterns more broadly, according to the agency.

Keep reading this article at: http://www.nextgov.com/cio-briefing/2016/11/gsa-wants-transaction-level-purchasing-data/133235

SBA revises 8(a) joint venture regulation – but confusion remains

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Stating that populated joint ventures have now been eliminated, the SBA has revised its 8(a) joint venture regulations to reflect that change.

koprince-book
The author of this article, Steven J. Koprince, is also the author of the book entitled “The Small-Business Guide to Government Contracts.”

In a technical correction published Oct. 19th in the Federal Register, the SBA flatly states that an earlier major rulemaking eliminated populated joint venture, and tweaks the profit-sharing piece of its 8(a) joint venture regulation to remove an outdated reference to populated joint ventures.  But even following this technical correction, there are three important points of potential confusion that remain (at least in my mind) regarding the SBA’s new joint venture regulations.

If you’re a SmallGovCon reader, you know that the Small Business Administration (SBA) made some major adjustments to its rules regarding joint ventures earlier this year.  Among those changes, the SBA amended the definition of a joint venture to state that, among other things, a joint venture “may be in the form of a formal or informal partnership or exist as a separate legal entity.”  If the joint venture is a separate legal entity, it “may not be populated with individuals intended to perform contracts,” although the joint venture may still be populated with one or more administrative personnel.

Keep reading this article at: http://smallgovcon.com/8a-program/sba-revises-8a-jv-regulation-but-confusion-remains/

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