Barry McVay's


Federal Acquisition Developments, Guidance, and Opinions

Vol. I, No. 9


FedBizOpps Proposed as "Single Face"
DOD Adds 3 Data Elements to CCR
DOD Requires Purchase Card Up to $2,500
ADR Guides Available
Freight and Cargo Size Standards Revised
DOT DBE Size Standard Increased
FAR Prompt Payment Coverage Simplified
NFS Changes on BAA, Bundling, CAS, CCR

FedBizOpps.gov Proposed as "Single Face to Industry"
For Procurement Opportunities

If the Federal Acquisition Regulation (FAR) Council has its way, federal contractors will be able to see all solicitations over $25,000 and related information by going to FedBizOpps.gov (http://www.fedbizopps.gov). FedBizOpps.gov would be the government's long sought "single face to industry" (or "governmentwide point of electronic entry" (GPE)), and would not require significant investments by prospective contractors, as was the case with the Federal Acquisition Computer Network (FACNET), which FedBizOpps.gov would supersede (though FACNET would remain in existence).

FedBizOpps.gov is the new name for the General Services Administration's (Electronic Posting System (EPS)), which is used by 20 agencies to post electronically their solicitations. The Office of Federal Procurement Policy (OFPP) studied the advantages and disadvantages of EPS, FACNET, and the Commerce Business Daily Network (CBDNet), and settled on EPS/FedBizOpps as the best vehicle for providing sellers with a central point for electronic access to business opportunities and providing government buyers a streamlined method of preparing and issuing solicitation information without undue disruption. Agencies would have until October 1, 2001, to complete their transitions to FedBizOpps.gov.

To implement OFPP's decision to designate FedBizOpps.gov as the single GPE, the following are the significant changes that would be made to FAR Part 5, Publicizing Contract Actions:

Comments must be submitted on or before October 20, 2000, to General Services Administration, FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405; e-mail: farcase.1997-304@gsa.gov. Cite FAR Case 1997-304 in all correspondence related to this proposed rule.

DOD Adds 3 Data Elements to CCR

On Aug. 21, 2000, the Department of Defense (DOD) announced that it is adding three data elements to its Central Contractor Registration (CCR) system to aid its migration to e-commerce and help CCR users get accurate information more quickly. (EDITOR'S NOTE: All DOD contractors must be registered in the CCR before receiving a contract award, and some of the information provided by the contractors is used by DOD to make electronic payments. Other federal agencies using the CCR are National Aeronautics and Space Administration (NASA) and the Departments of Interior, Treasury, Transportation, Commerce, and Energy. The CCR is on the Internet at http://www.ccr2000.com.)

The three new data elements are: (1) company points of contact (POC) for electronic business, contracting and marketing, and past performance; (2) whether the contractor is a small business; and (3) whether the company accepts credit cards. In addition, the database of CCR companies is capable of searching by geographic location, industry, and socio-economic factors. And the CCR now includes a data field, the Marketing Partner Identification Number, where vendors can set their own password for other partner applications -- current partner applications are the on-line bidding systems associated with DODBusOpps (http://dodbusopps.com) and the Past Performance Automated Information System.

The electronic business POC is the company's employee who will administer the approval process for vendor employees accessing DOD's e-business systems; the government business POC is the company's contracting and/or marketing representative who will need access to on-line bidding systems that are part of the DOD business operations application; and the past performance POC is the company's designated person with approval to access and interact with the DOD past performance system.

DOD Requires Purchase Card For Buys Up To $2,500

To prepare for the glut of rules that will be required to comply with provisions of the fiscal year 2001 defense authorization and appropriations acts, the Department of Defense issued several rules that finalized outstanding proposals and "tied up" loose ends.

ADR Guides Available

On August 16, 2000, the Federal Alternative Dispute Resolution (ADR) Council, a group of high level government agency officials chaired by Attorney General Janet Reno, published in the Federal Register (at page 50005) two documents to assist federal agencies in developing ADR programs: "Core Principles for Non-Binding Workplace ADR Programs" (which describes 10 key elements that are essential in any fair and effective ADR program), and "Developing Guidance for Binding Arbitration -- A Handbook for Federal Agencies" (which provides information and assistance for agencies on the use of binding arbitration).

Freight and Cargo Transportation Size Standards Revised

Effective September 8, the Small Business Administration (SBA) is changing the way average annual receipts are calculated for brokers and agents in the Arrangement of Transportation of Freight and Cargo industry (Standard Industrial Classification (SIC) code 4731) to allow pass-through of funds held in trust for unaffiliated third parties. As a result of the change in calculation method, the small business size standard for SIC 4731 is reduced from $18.5 million to $5 million, with two significant exceptions: the size standard will remain $18.5 million for non-vessel owning common carriers and for household goods forwarders.

About half of the establishments in SIC 4731 are freight forwarders and customs brokers that act as agents, and they collect money from their clients to make sure customs, shippers, and other expenses are paid. Because most firms in the industry do not consider these "pass-through" funds as receipts (and do not report them as such for tax purposes), many have complained that establishing the small business size standard based, in large part, on the presence of these pass-through funds means that some firms receive SBA assistance that should not be receiving it. SBA agreed, and it proposed on July 26, 1999, that pass-through funds not be counted in the average annual receipts, and that the small business size standard be adjusted to $5 million.

Twelve comments were submitted in response to the proposed change. Nine of the comments came from household goods forwarders and non-vessel owning common carriers, and all opposed the change because they do not receive pass-through funds; three of the comments came from freight forwarders and customs brokers, and all favored the change. SBA recognized that there are two major types of firms in the industry, so it decided to split the size standard: $5 million for SIC 4731 except $18.5 million for household goods forwarders and non-vessel owning common carriers.

This split will be clarified on October 1, 2000, when SBA switches from the SIC-based small business size standards to the North American Industry Classification System (NAICS)-based small business size standards (see the June 2000 Federal Contracts Perspective article "SBA Publishes NAICS-Based Size Standards, to Replace SIC-Based Standards on October 1, 2000"). Household movers will be classified in NAICS 484210, Used Household and Office Goods Moving, and will have an $18.5 million size standard. Freight rate auditors, tariff consultants, freight consolidators, and shipping documents preparers will be classified as NAICS 541614, Process, Physical Distribution, and Logistics Consulting, and will have a $5.0 million size standards. All other activities in SIC 4731 will be classified in NAICS 488510, Freight Transportation Arrangement, and have a $5.0 million size standard.

DOT DBE Size Standard Increased to $17,420,000

The Department of Transportation has decided to adjust the size standard for participants in its Disadvantaged Business Enterprise (DBE) program from $16,600,000 to $17,420,000 to compensate for inflation since enactment of the Transportation Equity Act for the 21st Century (Public Law 105-178) (TEA-21) on July 22, 1998, which set $16,600,000 as the statutory limit on participation in the DBE program.

The DBE program requires that concerns be certified as eligible and qualified for contracting opportunities in projects by state and local highway, transit, airport, and port authorities. To be eligible for participation in the DBE program, a firm's average annual receipts for the previous three years must be no more than $17,420,000.

Guidance on the DBE program (including application procedures) is on the Internet at http://osdbuweb.dot.gov/business/dbe/index.html.

FAR Prompt Payment Coverage to be Simplified

On August 28, 2000, a proposal was published to simplify and clarify the FAR's prompt payment coverage (particularly FAR Subpart 32.9, Prompt Payment), and to conform the FAR to reflect the 1999 rescission of Office of Management and Budget (OMB) Circular A-125, Prompt Payment, and the codification of the A-125 rules and guidance in Title 5 of the Code of Federal Regulations (CFR), Part 1315, Prompt Payment. In addition, the proposal would require contractors to notify the contracting officer of any overpayments it receives and request disposition instructions. (EDITOR'S NOTE: The regulations in 5 CFR Part 1315 are available at http://www.fms.treas.gov/prompt/.)

The Debt Collection Improvement Act of 1996, which requires that all federal payments to vendors be made electronically, along with the increased use of electronic commerce in the federal government and the private sector, necessitated the update of OMB Circular A-125. In 1999, OMB made the necessary revisions, codified the revised text as 5 CFR Part 1315, and rescinded OMB Circular A-125. Since all the references to OMB Circular A-125 needed to be replaced with references to 5 CFR Part 1315, and portions of the FAR needed to be revised to conform to 5 CFR Part 1315, the FAR Council took the opportunity to rewrite all the affected portions in "plain language". Besides the reference replacements and the rewrite, the following are the major changes that would be made by this proposed rule:

Also, in 1999 the General Accounting Office (GAO) published "Greater Attention Needed to Identify and Recover Overpayments" (GAO/NSIAD-99-131), which pointed out that "under current law, there is no requirement for contractors who have been overpaid to notify the government of overpayments or to return overpayments prior to the government issuing a demand letter." To rectify this situation, the following proposed paragraph would be added to FAR 52.232-25, FAR 52.232-26, and FAR 52.232-27:

"Overpayments. If the Contractor becomes aware of a duplicate payment or that the Government has otherwise overpaid on an invoice payment, the Contractor shall immediately notify the Contracting Officer and request instructions for disposition of the overpayment."

Comments on the proposed rule should be submitted no later than October 27, 2000, to General Services Administration, FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405, or by e-mail to farcase.1999-023@gsa.gov. Cite FAR case 1999-023 in all correspondence related to this proposed rule.

NFS Changes on BAAs, Bundling, CAS Waivers, CCR

The National Aeronautics and Space Administration (NASA) has been busy revising the NASA FAR Supplement (NFS) on a number of topics:

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