FedGovContracts.com

Barry McVay's

FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


OCTOBER 2000
Vol. I, No. 10

CONTENTS

FirstGov.Gov Launched September 22
FAR Changes on Child Labor, Financing
Set Aside IDIQ Orders for Small Businesses
DFARS Changes on Pollution Control
Labor Proposes Davis-Bacon Changes
GSA to Discontinue Paper FAR
SBA Unveils WomenBiz.Gov



FirstGov.gov Launched September 22,
Federal Portal to Information and Services

During an Internet address to the nation, President Clinton announced the inauguration of FirstGov.gov, "the first-ever government website to provide the public with easy, one-stop access to all online U.S. federal government resources." FirstGov can conduct searches of all 27 million federal web pages on 20,000 federal web sites in a fraction of a second and display the results, and it provides hyperlinks to a variety of topics, from agriculture to state and local governments.

The development of FirstGov was first announced by President Clinton on June 24, who said it would be up and running in 90 days. FirstGov beat the schedule by one day.

FirstGov is replacing the General Services Administration's (GSA) WebGov project, which had been under development for several years but had not made substantial progress.

FirstGov is a "gift" to the U.S. people by Dr. Eric Brewer, a co-founder of Inktomi Corporation, which operates the powerful search engine that conducts about half of all search queries. Dr. Brewer developed the Inktomi search engine with funding provided by the Defense Advanced Research Projects Agency (DARPA), and he has become an Internet billionaire. FirstGov is his way of expressing gratitude to the American people.

FedSearch, the name given to the search engine, will be maintained by the Federal Search Foundation, which Brewer set up to develop FedSearch and to operate it for the first two years. GSA will operate the FirstGov portal. After two years, GSA will be permitted to take over the operation of FedSearch or contract-out its management.

FirstGov is not a completed product, but rather a "work-in-progress." FirstGov will be revised and refined based on feedback submitted by users.

One problem with Internet search engines like Yahoo! is that they catalog no more than 20% of federal web pages, so a query may not identify a substantial amount of worthwhile federal information, and the query may identify a substantial amount of non-federal information that is irrelevant. FirstGov searches all federal pages and only federal web pages, so the query results include all federal information that is on the Internet. However, this can be overwhelming. A FirstGov search of the term "single process initiative" (a somewhat esoteric Department of Defense (DOD) program for replacing military and federal specifications and standards with commercial processes), produced 41,817 documents. The first document was the 1997 memorandum instituting the initiative, the second document was a follow-up memorandum, and the next several were memoranda transmitting the original memorandum to various offices. The official DOD single process initiative web site was eighth on the FirstGov list (http://www.acq.osd.mil/ar/spi.htm). The search engine will probably be most helpful to those who know what they are looking for. Those who are not sure what they are looking for, or want to know the kinds of information available, will probably want to use the hyperlinks on FirstGov. The FirstGov hyperlinks include the following:

In addition, there are links to the executive, legislative, and judicial branches of the federal government, state and local governments, severe weather watches, "school stuff," transacting online (pay taxes, buy stamps), and the new sites Workers.gov (jobs, rights and protections, continuing education) and Mapstats.gov (facts and statistics compiled from 70 agencies).

Of particular note to the contracting community is the hyperlink to "government contracts." However, it merely links to FedBizOpps.gov, which has been proposed as the government's "single face to industry" but has a long way to go (see the September 2000 Federal Contracts Perspective article "FedBizOpps.gov Proposed as 'Single Face to Industry' For Procurement Opportunities"). FedBizOpps.gov posts the solicitations and announcements for only 20 agencies, and even this is misleading -- DOD is listed as one of the participating agencies but only the Defense Information Systems Agency (DISA) is actually taking part. In addition, FedBizOpps.gov does not have links to DOD's Central Contracting Registration (CCR) system (http://www.ccr2000.com), which contractors must be registered in to receive contracts from DOD, the National Aeronautics and Space Administration (NASA), and the Departments of Commerce, Energy, Interior, Transportation, and Treasury. Nor does it include links to the Commerce Business Daily (CBD) (http://cbdnet.access.gpo.gov/) or to the Federal Acquisition Regulation (FAR) (http://www.arnet.gov/far/). Nevertheless, FirstGov is a good start, and it has great potential.



Proposed FAR Changes on Child Labor, Financing

During September, four proposed changes to the Federal Acquisition Regulation (FAR) were published for public comment:



Set Aside IDIQ Orders If Small Businesses Are Available

In an important protest decision, the General Accounting Office (GAO) has ruled that agencies must comply with FAR 19.502-2, Total Small Business Set-Asides, and set aside orders placed against indefinite-delivery/indefinite-quantity (IDIQ) contracts for small businesses if there is a reasonable expectation that two or more responsible small businesses will submit offers (N&N Travel & Tours, Inc., et al., B-285164.2, August 31, 2000).

The protest involved a task order issued against a governmentwide GSA master contract for travel management services for Travis Air Force Base, CA. The task order was issued when the current travel management services contract being performed by N&N Travel (a small business) expired. The N&N Travel contract was not extended because DOD was expecting to enter into a "Defense Travel System" contract. When the award of the Defense Travel System contract was delayed, Travis AFB issued a small business set-aside solicitation and received nine offers from small businesses. However, that solicitation was protested, so Travis AFB cancelled the solicitation and awarded a task order against the GSA contract to a large business. Six protests from small businesses were filed against the task order.

Even though paragraph (a)(7) of FAR 16.505, Ordering, states that no protests may be filed in connection with the issuance of a task order, GAO ruled that the protests challenged the terms of the underlying solicitation, and that this limitation does not apply. "Since we are charged by statute with reviewing protests alleging that a solicitation does not comply with applicable procurement statutes and regulations...we conclude that this portion of the protest is properly within our bid protest jurisdiction."

Noting that nine small businesses made offers on the cancelled solicitation, and the draft Defense Travel System contract posted on the Internet reserves travel services at Travis AFB for small businesses, "we conclude that FAR 19.502-2 required that the purchase of these services for Travis AFB be conducted as a small business set-aside."



DFARS Changes on Pollution Control, Purchase Cards

This has been a rather slow month for DOD: only two final rules, one proposed rule, and one withdrawn proposed rule.



Labor Proposes Revision to Davis-Bacon Definitions

The Department of Labor (DOL) is proposing to amend two related definitions pertaining to the Davis-Bacon Act: "site of the work" and "construction, prosecution, completion, or repair." DOL believes these definitions must be amended to conform to three appellate court decisions that concluded the definitions are contrary to language in the Davis-Bacon Act, and to address situations that were not contemplated when the current DOL regulations were first published in 1983. (EDITOR'S NOTE: The affected DOL regulations are in Title 29 of the Code of Federal Regulations (CFR), Labor; Part 5, Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction; Section 5.2, Definitions.)

The Davis-Bacon Act requires that federally-funded construction contracts require the payment of minimum wages to "all mechanics and laborers employed directly upon the site of the work..." The 1983 DOL regulations define "site of the work" as "the physical place or places where the construction...will remain when work on it has been completed and...other adjacent or nearby property used by the contractor or subcontractor in such construction which can reasonably be said to be included in the site" (29 CFR 5.2(l)(1)). The definition goes on to include job headquarters, tool yards, and similar facilities "so located in proximity to the actual construction location that it would be reasonable to include them."

In addition, the 1983 DOL regulations' definition of "construction, prosecution, completion, or repair" covers "all types of work done on a particular building or work at the site thereof, including work at a facility which is dedicated to and deemed a part of the site of the work...including without limitation (i) alteration, remodeling, installation (where appropriate) on the site of the work of items fabricated off-site; (ii) painting and decorating; (iii) manufacturing or furnishing of materials, articles, supplies or equipment on the site of the building or work...; and (iv) transportation between the actual construction location and a facility which is dedicated to such construction and deemed a part of the site of the work..." (29 CFR 5.2(j)(1)).

In 1991, the District of Columbia Circuit Court of Appeals ruled that delivery truck drivers who spent 90% of their workday on the highway were not "mechanics and laborers employed directly upon the site of the work," so the DOL definition that included truck drivers was invalid. In 1994, the D.C. Circuit Court of Appeals ruled that workers at a subcontractor's borrow pit and patch plant which was two miles away from a 13 mile long aqueduct was not proximate. And in 1996, a 6th Circuit Court of Appeals decision involved truck drivers hauling asphalt from a temporary batch plant to an Indiana highway under construction three miles away. The court ruled that the facility was not proximate.

In addition to these three court cases, the current definitions do not adequately address new construction technologies that make it practical and economically advantageous to build major segments of complex works, such as dams and bridges, some distance up-river and float them down-river, so that the "site of the work" is in two or more locations, and the site of the work actually moves from one site to the other.

Therefore, DOL is requesting comments on whether the term "adjacent or virtually adjacent," as used in the "site of the work" definition, needs to be defined and, if so, how. It also proposes to add a paragraph to the "site of the work" definition to include "any other site where a significant portion of the building or work is constructed, provided that such site is established specifically for the performance of the contract or project." In addition, DOL proposes to revise the "transportation" portion of the "construction, prosecution, completion, or repair" definition to cover the movement of major segments from the fabrication site to the place where the building or work will remain.

Send comments by October 23, 2000, to T. Michael Kerr, Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3018, 200 Constitution Avenue, NW, Washington, DC 20210; fax: 202-693-1432.



GSA to Discontinue Paper Copy of FAR

Effective January 1, 2001, the General Services Administration (GSA) will no longer seek publication of a paper copy of the Federal Acquisition Regulation (FAR). Instead, GSA will actively publish the FAR only on the Internet at http://www.arnet.gov/far/. Any current or renewed subscriptions will continue until that date.

The GSA FAR website contains the FAR in HTML and PDF formats, and contains copies of Federal Acquisition Circulars (FACs). The FACs on the website are identical to the contents of looseleaf materials that the Government Printing Office has provided by subscription.

The notice states, "You have choices. You can reference the FAR only on the Internet, or you can produce your own looseleaf FAR on paper by downloading and printing electronics FACs as GSA posts them to the FAR website. Otherwise, after January 1, 2001, you must seek some other source of the printed looseleaf."

However, GSA's notice goes on to state that "the Superintendent of Documents at the Government Printing Office has indicated that it will continue publication of the FAR in looseleaf format. Current subscribers will be provided with more specific information by the Superintendent of Documents as soon as it is available."



SBA Unveils WomenBiz.gov for Women-Owned Businesses

On September 11, 2000, SBA announced a new website for women small business owners -- WomenBiz.gov (http://www.womenbiz.gov). WomenBiz.gov provides women-owned businesses (and all other non-women-owned small businesses) with contracting assistance information at a single on-line site. This website is in response to Executive Order 13157, Increasing Opportunities for Women-Owned Small Businesses, which was issued May 23, 2000 (see the June 2000 Federal Contracts Perspective article "Agencies Ordered to Meet 5% Women-Owned Business Goal"). Besides directing agencies to meet or exceed the 5% goal for awards to women-owned businesses, the order directed SBA to develop "a single uniform federal government-wide website, which provides links to other websites within the federal system concerning acquisition, small businesses, and women-owned businesses, and which provides current procurement information for WOSBs [women-owned small businesses] and other small businesses."

WomenBiz.gov is a gateway to more than 100 procurement and acquisition sites hosted by various federal agencies, and includes links to PRO-Net, FedBizOpps.gov (formerly the Electronic Posting System (EPS)), CBDNet (Commence Business Daily Network), DOD's Central Contractor Registration, and General Services Administration's (GSA) Federal Supply Schedule program.



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