In addition to prohibiting the flow-down of non-mandatory FAR/DFARS clauses (which we talk about here), the Department of Defense (“DOD”) Final Rule in connection with the Defense Federal Acquisition Regulation Supplement (“DFARS”) Case 2017-D010 also touched on the decades-long debate as to which entities actually are subcontractors performing under a Federal prime contract. Yes, you read that correctly – there is no single definition for the terms “subcontract” or “subcontractor.” After almost 40 years of confusion, it appears the DFARS and Federal Acquisition Regulation (“FAR”) Councils are trying to end the debate once and for all.Continue Reading New Year, (Potentially) New Definition for “Subcontract”
It’s the Most Wonderful Time for New DOD Flow Down Policies: Flowing Down Too Many Clauses Will Get Prime Contractors More Than a Lump of Coal
On November 17, 2023, the Department of Defense (“DOD”) published a Final Rule – over five years in the making – addressing DOD policies regarding the applicability of laws to commercial products, commercial services, and commercially available off-the-shelf (“COTS”) products (DFARS Case 2017-D010). Partially implementing Section 874 of the Fiscal Year 2017 National Defense Authorization Act, DOD has imposed new regulations that expressly prohibit Contracting Officers (“CO”) and prime contractors alike from incorporating regulatory requirements of the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”) in prime contracts and subcontracts unless mandated by regulatory text.Continue Reading It’s the Most Wonderful Time for New DOD Flow Down Policies: Flowing Down Too Many Clauses Will Get Prime Contractors More Than a Lump of Coal
Interim Rule Confirms Section 889 Part B Restriction on Contractor Use of Chinese Telecom Will Go Into Effect August 2020
On July 14, 2020 the Department of Defense (“DoD”), General Services Administration (“GSA”), and the National Aeronautics and Space Administration (“NASA”) published an Interim Rule amending the Federal Acquisition Regulation (“FAR”) in order to implement Section 889(a)(1)(B) of the FY 2019 National Defense Authorization Act (“NDAA”).[1] The Interim Rule is effective August 13, 2020, and applies to all solicitations issued after (or resulting in contracts that will be awarded after) the effective date. Interested parties have until September 14, 2020 to submit written comments for consideration in the formation of the Final Rule.
Continue Reading Interim Rule Confirms Section 889 Part B Restriction on Contractor Use of Chinese Telecom Will Go Into Effect August 2020
While You Were Social Distancing: GSA’s Progress On Section 846, Schedules Consolidation, And Other Major Initiatives
Just as you’re probably tired of reading COVID-19 articles, we’ve grown tired of writing them. So, in an effort to party like it’s 2019, we’ve decided to survey the non-COVID-19 initiatives underway at the General Services Administration (“GSA”) while everyone is working from home. Our survey shows progress continues on Multiple Award Schedule (“MAS”) modifications, a new Verified Product Portal (“VPP”) is on the horizon, and work related to Sections 846 and 889 conSetinues to progress. Obviously, none of these has anything to do with COVID-19, but they will have an impact on your Federal business, whether you’re working from home or (eventually, and soon we hope) back in the office. Here’s a look of major projects GSA has been working on while you’ve been social distancing.
Continue Reading While You Were Social Distancing: GSA’s Progress On Section 846, Schedules Consolidation, And Other Major Initiatives
Let the Seller Beware – NASA’s Proposed Rule Seeks to Limit the Presence of Counterfeit Electronic Parts
On January 7, 2020, the National Aeronautics and Space Administration (“NASA”) published a proposed rule seeking to amend the NASA Federal Regulation Supplement regarding counterfeit electronic parts. The proposed rule…
Continue Reading Let the Seller Beware – NASA’s Proposed Rule Seeks to Limit the Presence of Counterfeit Electronic Parts
DoD’s Squeeze of Chinese Telecom Equipment Continues
At the end of 2019, the Department of Defense (“DoD”) took another step to limit the potential cyber risks posed by telecommunications equipment manufactured by Chinese companies (and potentially Russian…
Continue Reading DoD’s Squeeze of Chinese Telecom Equipment Continues
The True Impact of the Chinese Telecom Ban on Government Contractors
As you probably know, we have been following very closely developments relating to Section 889 of the 2019 National Defense Authorization Act (NDAA), which prohibits executive agencies from purchasing restricted…
Continue Reading The True Impact of the Chinese Telecom Ban on Government Contractors
GSA Implements Restrictions on Certain Chinese-Made Telecommunications Services and Equipment
On September 9, 2019, the U.S. General Services Administration (“GSA”) announced it would be issuing a mass modification (expected sometime this month)[1] requiring all new and existing GSA Multiple Award Schedule (“MAS”) contracts include two new clauses. The new clauses come in response to Section 889 of the FY2019 National Defense Authorization Act (“NDAA”), and recently implemented FAR provisions, which impose prohibitions relating to the procurement of certain Chinese telecommunications equipment and services (which we have previously discussed here and here). The two clauses to be added to all MAS contracts are:
- FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019)
- GSAR 552.204-70, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019)
Effective Last Month! – DoD’s Implementation of New FAR Prohibitions on Chinese Telecommunications Equipment and Services in Government Contracts
We recently wrote about the FAR Council’s release of an interim rule implementing restrictions on procurements involving certain Chinese telecommunications hardware manufacturers and service providers, such as Huawei and ZTE. The interim rule creates a new FAR Subpart 4.21, as well as two new contract clauses, FAR 52.204-24 and 52.204-25, which were effective August 13, 2019. These restrictions apply not only to prime contractors, but also to all subcontractors and throughout the supply chain. Concurrent with the release of the FAR interim rule, the Department of Defense (“DoD”) issued a memorandum, laying out DoD procedures to implement the prohibitions contained therein. These procedures apply to contracts, task orders, and delivery orders, including basic ordering agreements (BOAs), orders against BOAs, blanket purchase agreements (BPAs), and calls against BPAs.
Continue Reading Effective Last Month! – DoD’s Implementation of New FAR Prohibitions on Chinese Telecommunications Equipment and Services in Government Contracts
Effective Immediately! – FAR Amended to Include Prohibition on Chinese Telecommunications Equipment and Services in Government Contracts
In accordance with Section 889(a)(1)(A) of the 2019 National Defense Authorization Act (Pub. L. No. 115-232) (the “2019 NDAA”), which required imposition of broad restrictions on procurements involving certain Chinese telecommunications hardware manufacturers such as Huawei Technologies Co. and ZTE Corp within one year, the FAR Council has released an interim rule implementing these restrictions. On August 13, the FAR Council released Federal Acquisition Circular 2019-05 (84 Fed. Reg. 40,216), creating a new FAR Subpart 4.21, as well as two new contract clauses, FAR 52.204-24 and 52.204-25, all of which are effective August 13, 2019. These restrictions apply not only to prime contractors, but also to all subcontractors and throughout the supply chain. Government contractors need to know that these new requirements are effective immediately and that opportunities for waivers are very limited.
Continue Reading Effective Immediately! – FAR Amended to Include Prohibition on Chinese Telecommunications Equipment and Services in Government Contracts
The Future of COTS Procurement: Top 10 Questions from GSA’s Section 846 Phase 2 Report
On May 2, 2019, the General Services Administration (“GSA”) and the Office of Management and Budget (“OMB”) finally released their Phase 2 Implementation Report (the “Phase 2 Report”) for “Procurement Through E-Commerce Portals,” as directed by Section 846 of the National Defense Authorization Act for Fiscal Year 2018 (“FY 2018 NDAA”).[1]
GSA/OMB offered a sneak preview of the Phase 2 Report at an Industry Day held on December 12, 2018, during which GSA/OMB revealed their intent to proceed with a proof of concept contract utilizing only the E-Marketplace model. Industry pushback against a single model proof of concept was both quick and severe and, coupled with the lengthy delay issuing the Phase 2 Report, many wondered whether GSA/OMB were reevaluating their proposed approach.
Continue Reading The Future of COTS Procurement: Top 10 Questions from GSA’s Section 846 Phase 2 Report