1. Repeal of Sunset Dates for Protest Authority Over Certain Task Orders
Effective September 3, 2013, FAR 16.505 was amended to eliminate the sunset dates for protests against the issuance of an order under a task-order or delivery-order contract in excess of $10 million by the DoD, NASA and the Coast Guard. Previously, the FAR stated that the authority to bring such a protest would expire on September 30, 2016 and made no distinctions as to which agency the rule applied. The new rule now expressly states that there is no such expiration date for protests against the placement of an order by or on behalf of the DoD, NASA and Coast Guard. However, for the time being, the September 2016 sunset date remains for other agencies. (FAR Case 2013-11).
2. “Contingency Operation” Redefined
In line with the definitional changes announced in the National Defense Authorization Act of 2012, FAR 2.101 has been amended to include a revised definition of “Contingency Operations.” The new definition includes the activation of reservists in response to a Governor’s request for Federal assistance to address a major disaster or emergency declared by the President. This change directly affects agencies by providing them with expanded authority to adjust the micropurchase and simplified acquisition thresholds for contracts under FAR 18.2, Emergency Acquisition Flexibilities, and may facilitate contract awards to small businesses in and around affected areas. (FAR Case 2013-003).
3. The FAR’s List of “least developed countries” welcomes South Sudan and graduates the Maldives
Following the lead of the U.S. Trade Representative, effective September 3, 2013, the country of South Sudan will be added to the FAR’s listings of least developed countries (see e.g., FAR 25.003, Definitions; FAR 52.225–5, Trade Agreements; FAR 52.225–11, Buy American Act—Construction Materials under Trade Agreements; and FAR 52.225–23, Required Use of American Iron, Steel, and Manufactured Goods—Buy American Act—Construction Materials Under Trade Agreements). Formally recognized as an independent nation following its secession from Sudan in July 2011, the Republic of South Sudan is now considered a FAR “designated country” and is not subject to the Sudanese Sanctions Regulations (“SSR”) administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). However, care should be taken when engaging in business with South Sudan as certain activities with or involving the newly recognized country continue to be prohibited by the SSR given the interdependence between certain sectors of the South Sudanese and Sudanese economies.
The amendment also confirms the Maldives’ graduation from the UN’s list – and therefore the USTR’s list – of undeveloped countries. Originally planned to graduate in December 2004, the Maldives was granted an exceptional three‐year moratorium by the United Nations General Assembly in 2005 to assist with post‐disaster recovery and reconstruction caused by the December 2004 tsunami. That moratorium ended in 2007, allowing the Maldives to enter its transition period before formally graduating in December 2011. The FAR corroborates that graduation and removes the Maldives as a designated country thus removing it – and its goods – from the preferences previously available under the Trade Agreements Act. (FAR Case 2013-009).