Earlier this month, we wrote about a new proposed rule from the Department of Energy imposing new and onerous requirements relating to compliance with the U.S. export control laws. DOE claimed that this proposed rule was modeled on a prior rule included in the Department of Defense Federal Acquisition Regulation Supplement (DFARS) at DFARS Subpart 204.73 and DFARS 252.204-7008, promulgated originally in 2008 (and discussed here). But be aware that those DFARS rules were recently removed. Kind of. In case you were not paying attention, the DFARS export restrictions were recently moved to DFARS Subpart 225.79 and DFARS 252.225-7048. See 78 Fed. Reg. 36108. So, even though the citations may have changed, the song remains the same.
By Mark Jensen
Each month, we try to review the Federal Register and post an update summarizing some of the more interesting developments. This month, two of the topics – a proposed rule from the Department of Energy relating to onerous export requirements, and a final rule from the Small Business Administration relating to increased risks for contractors – are reported separately. But beyond these updates, there were several other interesting developments published in the Federal Register this month, showing hopeful signs of simplified and improved governance. And we all like improvements.
Two months ago, we published a brief list of compliance tips to keep in mind when dealing with Buy American requirements. We got an awful lot of
Proposed DoD Rule: Detection and Avoidance of Counterfeit Electronic Parts (DFARS Case 2012-D-005)
On May 16, 2013, the Department of Defense (“DoD”) issued a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) relating to the detection and avoidance of counterfeit parts, in partial implementation of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2012 (Pub. L. 112-81) and the NDAA for FY 2013 (Pub. L. 112-239). 78 Fed. Reg. 28780 (May 16, 2013). The proposed rule would impose new obligations for detecting and protecting against the inclusion of counterfeit parts in their products. Public comments in response to the proposed amendment are due by July 15, 2013.
1. There is no single “Buy American” requirement – there are numerous statutes with differing requirements. Make sure you know which one applies.
2. Whether you are a prime or a subcontractor, certify only to the specific “Buy American” requirements in the RFP; do not make a broader certification than is required.
2012 saw several updates with regard to free trade agreements (“FTAs”) between the U.S. and its international trading allies. The most notable of these was the U.S.-Korea FTA (“KORUS”), but several other changes were made to the U.S. procurement regulations implementing other free trade agreements. Regrettably, negotiations with China remain stalled with no firm promises on the horizon. Following is a summary of some of the key changes over the last year.
Under our system of laws, legal liability has customarily been based on certain showings, e.g., that an act or omission actually
On January 15, 2010, the Department of Defense announced plans to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to allow contracting officers to withhold payments from companies with “deficient” business systems in an effort to prevent “unallowable and unreasonable costs on government contracts.” 75 Fed. Reg. 2457. Contracting officers would have the authority to withhold payments on cost reimbursement, incentive, time-and-materials, and labor-hour contracts.