Federal Register Update

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1. Proposal to Amend FAR to Implement Revised SBA Regulations

On February 3, 2014, DoD, GSA, and NASA proposed to amend the FAR, via FAR Case 2012-022, to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act “to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant could exit the 8(a) Business Development program.”  In addition to several editorial changes, the notice proposes the following substantive changes:Continue Reading What’s New Out There? Highlights from the February 2014 Federal Register

1. Final Rule Requiring Accelerated Payments to Small Business Subcontractors.

On November 25, 2013, the FAR Councils published a final rule that, inter alia, amended the FAR to require accelerated payments to small business subcontractors in certain circumstances.  The final rule adds a new FAR clause, 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, which must be included in all subcontracts with small business concerns.  The new clause requires prime contractors to make accelerated payments to small business subcontractors “to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract” once the Government has issued an accelerated payment to the prime contractor and once the small business subcontractor has submitted “a proper invoice and all other required documentation” for receipt of payment.  The final rule, which became effective on December 26, 2013, does not provide any new rights under the Prompt Payment Act.Continue Reading Government Procurement: November and December 2013 and January 2014 Federal Register Update

1. Proposed Rule to Amend DFARS Coverage of Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States. 

On October 31, 2013, the Department of Defense (“DoD”) proposed to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to amend and clarify certain provisions regarding contractor personnel supporting U.S. Armed Forces deployed outside the United States.  As an initial matter, DFARS § 252.225-7040(a) would be amended to clarify which contractors are authorized to accompany the force (“CAAF”).  Further, DoD proposed to add language to section (b)(3) to emphasize that, when CAAF are authorized to carry arms for personal protection, they are only authorized to use force for individual defense.  Finally, the proposed rule would clarify the broad discretionary power of the Contracting Officer overseeing CAAF; specifically, the rule would provide that the Contracting Officer “may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements” of the Contract.Continue Reading Government Procurement: October and November 2013 Federal Register Update

1. Final Rules Regarding the Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors

On September 24, 2013, the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published a final rule revising the implementing regulations of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, (VEVRAA). OFCCP is responsible for enforcement of VEVRAA, which prohibits employment discrimination against protected veterans by covered Federal contractors and subcontractors. VEVRAA also requires each covered federal contractor and subcontractor to take affirmative action to employ and advance the employment of these veterans. The final rule strengthens several provisions that are intended to aid in recruitment and hiring efforts, such as clarifying the mandatory job listing requirements, requiring data collection pertaining to protected veteran applicants and hires, and establishing hiring benchmarks to assist in measuring the effectiveness of the affirmative action efforts. 78 Fed. Reg. 58614 (Sept. 23, 2013).Continue Reading Government Procurement: September and October 2013 Federal Register Update

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).Continue Reading Details: Highlights from the August & September 2013 Federal Register

Every now and then, the FAR Councils issue a Federal Acquisition Circular (FAC) – an update to the Federal Acquisition Regulation implementing a number of changes. Often these changes are rather pro forma. But occasionally, you get a Circular with many different (and interesting) issues. FAC 2005-67, issued in late-June 2013, with rules becoming effective in June and July 2013, is one such circular. We thought it would be helpful to highlight five of these rules that raise interesting and timely issues, especially where they may signal additional changes yet to come.
Continue Reading Lots of Little Things – FAR Updates from the Federal Acquisition Circular

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.Continue Reading What’s New Out There? A Regulatory Update (“Promising Improvements” Edition)

By Shauna E. Bailey

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.Continue Reading What’s New Out There? A Regulatory Update