By David S. Gallacher

While Vice President Biden was busy touting Summer 2010 as the “Summer of Recovery” and the economic effects of the February 2009 Stimulus Act (a.k.a. the American Recovery and Reinvestment Act, the Recovery Act, ARRA, the Stimulus Act, etc.), the gears of the regulatory process ground steadily onward. Throughout the summer, the White House Office of Management and Budget (“OMB”) issued updated policy guidance implementing the ARRA requirements, and the rule-makers in the FAR Councils remained hard at work updating and (hopefully) finalizing the regulations implementing the finer details of the Recovery Act. Despite the fact that the ARRA funding officially expired on September 30, 2010 (meaning that any unobligated ARRA funds will now revert to the federal treasury to be saved or spent another day), the Government spent its summer fine-tuning the regulations. As the sun begins to set on the Recovery Act, and as the Summer of Recovery fades into the past, we summarize here some of the key features of the final Recovery Act rules promulgated over the last few months. 
 

Continue Reading Bidding Adieu To The “Summer of Recovery”: Changes To ARRA Buy American And Reporting Requirements

By Townsend L. Bourne

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued a final rule on August 30, 2010 adjusting acquisition-related thresholds for inflation as set forth in section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. 75 Fed. Reg. 53129. Section 807 dictates that acquisition-related thresholds must be adjusted for inflation every five years using the Consumer Price Index for all-urban consumers. Pub. L. No. 108-375, 118 Stat. 1811 (2004). This section does not allow for adjustments to thresholds contained in the Davis-Bacon Act, the Service Contract Act of 1965, or Title III of the Trade Agreements Act of 1979.
 

Continue Reading Inflation Adjustment Of Acquisition-Related Thresholds In The FAR

By Jessica M. Madon

Effective September 29, 2010, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (“FAR Councils”) issued an interim rule amending the FAR to implement sections of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”), signed into law on July 1, 2010. 75 Fed. Reg. 60254 (Sept. 29, 2010).
 

Continue Reading Implementation Of CISADA: New FAR Requirements

By Sheldon M. Kline, Karin Hunter Johnson, and Ashley T. Hirano

Executive Order 13496 requires federal contractors and subcontractors to inform employees of their rights under federal labor laws. The Executive Order was signed at the end of 2009 and the Department of Labor (“DOL”) issued a final regulation implementing the Executive Order on May 20, 2010. The DOL regulation went into effect on June 21, 2010.  
 

Continue Reading New Employee Notification Requirements For Federal Contractors And Subcontractors

By John W. Chierichella

Effective April 22, 2010, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (“FAR Councils”) amended the Federal Acquisition Regulation (“FAR”) to implement the Federal Awardee Performance and Integrity Information System (“FAPIIS”).  75 Fed. Reg. 14059 (March 23, 2010). 
 

Continue Reading FAPIIS: The New Integrity Database For Government Contractors

Under the terms of a proposed FAR rule issued November 13, contractors that perform systems engineering and technical assistance ("SETA") type work for Government agencies soon will face enhanced obligations to prevent personal conflicts of interest on the part of their employees. The proposed rule applies to all contractors with covered employees who perform acquisition functions "closely associated with inherently Government functions" such as planning acquisitions, evaluating contract proposals, and awarding Government contracts.
 

Continue Reading Proposed FAR Rule Places Greater Responsibility on Contractors to Eliminate Personal Conflicts of Interest

The Competition in Contracting Act (CICA) requires that agencies maximize the competition for goods and services and thus requires the use of full and open competition when soliciting offers and awarding government contracts. 10 U.S.C. § 2304; FAR 6.101. An agency satisfies this requirement through the use of "competitive procedures," which include procedures such as sealed bids, competitive proposals, and multiple award schedules. An agency may employ a competitive procedure (or combination thereof) that is best suited for the procurement and allows the agency to fulfill efficiently its requirements.   
 

Continue Reading New FAR Rule Seeks to Curtail Reach of “Unusual and Compelling Urgency” Justification

Based on their view that contractors who subcontract the majority of the work to subcontractors add little or no value, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (FAR Councils) issued an interim rule on October 14, 2009 that limits excessive pass-through charges by contractors and subcontractors.  See 74 Fed. Reg. 52,853 (October 14, 2009). The rule not only makes excessive pass-through costs unallowable, but also provides for recoupment of pass-through charges later determined to be excessive. 
 

Continue Reading FAR Councils Issue Interim Rule Limiting Excessive Pass-Through Charges

On October 14, 2009, the Civilian Acquisition Council and the Defense Acquisition Regulation Council issued an interim rule that limits the use of award-fee contracts, modifies how a contractor earns an award fee, and prohibits the rollover of unearned award fees. The interim rule implements § 814 of the John Warner National Defense Authorization Act (NDAA) for Fiscal Year 2007, § 867 of the Duncan Hunter NDAA for Fiscal Year 2009, and the Office of Federal Procurement Policy Guidance Memorandum dated December 4, 2007 entitled "Appropriate Use of Incentive Contracts." The interim rule significantly revises Federal Acquisition Regulation (FAR) Part 16, adds FAR Part 16.401(e), and makes other general housekeeping changes.  
 

Continue Reading FAR Councils Issue Interim Rule Taking Aim at the Use of Award-Fee Contracts

Recently, contractors have begun receiving formal requests for information from the Defense Contract Audit Agency (“DCAA”). The purported purpose of these requests is to “[o]btain an understanding of the management control environment” of major government contractors. In pursuit of this goal, DCAA has crafted a letter that demands, among other things, the following:

  • A list of all ethics training, copies of agendas, and attendee lists
     
  • Copies of the company’s written Codes of Conduct, copies of the policies dealing with communications of the Code, and a list of employees who have acknowledged receiving the Code over the past 12 months
     
  • A list of all violations of the Code over the past 12 months
     
  • All “noncompliances” reported through the contractor’s internal control system (such as a hotline) within the past 12 months
     
  • A “company-wide list of any current open investigations”


Continue Reading What Exactly Is DCAA Thinking?