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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


October 2009
Vol. X, No. 10

CONTENTS


Federal Awardee Performance and Integrity Information System Proposed
Proposal for Entering More Information Into PPIRS
Series of DOD Acquisition Memos Issued
Recovery Act Reporting Website Available
Radio Telephones Nonmanufacturer Rule Waiver Terminated
EPA Revises Government Property Rules
GSA Revises Sealed Bidding Rules
GSA Releases FY 2008 Federal Real Property Report
Safavian Sentenced to Prison for One Year



Federal Awardee Performance and Integrity
Information System Proposed

A proposed change to the Federal Acquisition Regulation (FAR) would require contracting officers to use a data system to be developed by the General Services Administration (GSA) that is to contain specific information on the integrity and performance of federal contractors and grantees. The FAR change would require awarding officials to review the “Federal Awardee Performance and Integrity Information System” (FAPIIS) and consider other past performance information when making any past performance evaluation or responsibility determination.

This FAR change would implement Section 872 of the National Defense Authorization Act of 2009 (Public Law 110-417), which requires that the data system include information on contractors for the most recent five-year period regarding the following:

FAPIIS will draw on several sources of information:

Proposed FAR 9.104-6, Federal Awardee Performance and Integrity Information System, will require contracting officers to review the FAPIIS “and other past performance information” before awarding any contract or order in excess of $100,000. However, paragraph (b) warns “since the FAPIIS may contain information covering a five year period, some of that information may no longer be relevant to a determination of present responsibility, e.g., a prior administrative action such as debarment or suspension that has expired or otherwise been resolved.”

Comments on this proposed rule must be submitted no later than October 5, 2009, by any of the following means: (1) http://www.regulations.gov (input “FAR Case 2008-027” under the heading “Comment or Submission”; select the link “Send a Comment or Submission” that corresponds with FAR Case 2008-027; follow the instructions provided to complete the “Public Comment and Submission Form”); (2) fax: 202-501-4067; or (3) mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Hada Flowers, Washington, DC 20405. Cite “FAR Case 2008-027” in all correspondence.



Proposal for Entering More Information Into PPIRS

A proposed FAR rule, requested by the Office of Federal Procurement Policy (OFPP), would establish procedures for contracting officers to provide contractor information into the Past Performance Information System (PPIRS) (https://www.ppirs.gov), specifically to report defective cost or pricing data and terminations for cause or default.

This proposed rule would supplement the final rule in Federal Acquisition Circular (FAC) 2005-34, Contractor Performance Information, which emphasized the use of PPIRS (see the August 2009 Federal Contracts Perspective article “FAC 2005-34 Addresses Past Performance Information”).

This proposed FAR rule would make the following changes:

Comments on this proposed rule must be submitted no later than November 2, 2009, by any of the following means: (1) http://www.regulations.gov (input “FAR Case 2008-016” under the heading “Comment or Submission”; select the link “Send a Comment or Submission” that corresponds with FAR Case 2008-027; follow the instructions provided to complete the “Public Comment and Submission Form”); (2) fax: 202-501-4067; or (3) mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Hada Flowers, Washington, DC 20405. Cite “FAR Case 2008-016” in all correspondence.



Series of DOD Acquisition Memos Issued

The Department of Defense (DOD) (specifically, the Under Secretary of Defense for Acquisition, Technology and Logistics (USD AT&L)) issued three memoranda concerning various aspects of DOD acquisition, and the Navy issued one memorandum.



Recovery Act Reporting Website Available

Section 1512 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) (“Recovery Act”) requires contractors that receive awards (or modifications to existing awards) funded, in whole or in part, by the Recovery Act to report quarterly on the use of the funds at FederalReporting.gov (https://www.federalreporting.gov). Section 1512 is implemented by FAR 52.204-11, American Recovery and Reinvestment Act – Reporting Requirements, which was added by FAC 2005-32 (see the April 2009 Federal Contracts Perspective article “FAC 2005-32 Implements Recovery Act”). While the clause requires the first quarterly report by July 10, 2009, the Office of Management and Budget (OMB) posted an announcement on FederalReporting.gov in July notifying contractors that the reporting tool would not be available until October 1, 2009, and that contractors that submit an invoice prior to June 30, 2009, for Recovery Act funded contracts should maintain the data until October 10, 2009, the revised deadline for the first reporting of Recovery Act data.

An announcement was published in the Federal Register that FederalReporting.gov will be available for reporting on October 1. However, contractors must first register, so contractors are being encouraged to register early to avoid possible delays.



In a related action, OMB issued a memorandum directing agencies to assist contractors in meeting the Section 1512 reporting requirements, specifically to conduct outreach and provide assistance to recipients of Recovery Act funds. Examples of these efforts include telephone contacts, webinars, listserves, email alerts, or other actions to reach and involve recipients.



Radio Telephones Nonmanufacturer Rule Waiver Terminated

The Small Business Administration (SBA) is terminating a waiver of the nonmanufacturer rule for radio telephones (radio and television broadcasting and wireless communications equipment manufacturing, Product Service Code (PSC) 5805, under North American Industry Classification System (NAICS) code 334220) because SBA has discovered a small business manufacturer of such items. This nonmanufacturer rule waiver had been in effect since 1998.

Last month, SBA published in the Federal Register a notice of intent to terminate the waiver. SBA did not receive any responses to the notice, nor did it discover any additional small business manufacturers of radio telephones. Therefore, it is terminating the nonmanufacturer rule waiver for radio telephones.

For more on the notice of intent to terminate the waiver, see the September 2009 Federal Contracts Perspective article “Retraction of Two Nonmanufacturer Waivers Proposed.”



EPA Revises Government Property Rules

The Environmental Protection Agency (EPA) has amended the EPA Acquisition Regulation (EPAAR) Part 1545, Government Property, and the corresponding clauses in EPAAR Part 1552, Solicitation Provisions and Contract Clauses, to update policy and procedures, and to bring it into conformance with the rewritten FAR Part 45, which removed the restriction on providing government property for contract performance, and gave contracting officers more flexibility in their determination to provide property (for more on the FAR Part 45 rewrite, see the June 2007 Federal Contracts Perspective article “FAR Coverage on Government Property Simplified, Clarified, Trimmed”).

The most significant change made by this rule is the consolidation of EPAAR 1552.245-70 Decontamination of Government Property, EPAAR 1552.245-72, Fabrication or Acquisition of Nonexpendable Property, and EPAAR 1552.245-73, Government Property, into a single clause – new EPAAR 1552.245-70, Decontamination.

The following are the changes made by the final rule:



GSA Revises Sealed Bidding Rules

The General Services Administration (GSA) has rewritten GSA Acquisition Regulation (GSAR) Part 514, Sealed Bidding, as part of its GSAR rewrite initiative to maintain consistency with the FAR and to implement streamlined and innovative acquisition procedures that contractors, bidders, and GSA contracting personnel can utilize when entering into and administering contractual relationships.

The following are the most significant changes made to GSAR Part 514:



GSA Releases FY 2008 Federal Real Property Report

GSA is announcing the release of the Fiscal Year (FY) 2008 edition of the Federal Real Property Report, which provides an overview of the U.S. government’s owned and leased real property as of September 30, 2008. The FY 2008 Federal Real Property Report is now available at http://www.gsa.gov/graphics/ogp/FY_2008_Real_Property_Report.pdf. A limited number of hard copies of the report can be obtained by contacting the Asset Management Division (MPA), Office of Governmentwide Policy, General Services Administration, 1800 F Street, NW, Washington, DC 20405.

All executive agencies are required to submit constructed asset-level data to the Federal Real Property Report on an annual basis. It is a secure, password-protected web-based database that allows federal real property managers to update real property data online and in real time, perform historical benchmarking, produce ad hoc reports, measure performance of real property assets, and identify unneeded and underutilized assets for disposal. The Federal Real Property Report provides information regarding federal real property holdings.



Safavian Sentenced to Prison for One Year

David Safavian, former Office of Federal Procurement Policy (OFPP) administrator and former General Services Administration (GSA) chief of staff, was sentenced to one year and one day in prison for obstructing an investigation into a 2002 golf trip to Scotland he took that was paid for by Washington lobbyist Jack Abramoff. Safavian will not have to report to prison until after his second child is born.

For more on Savafian and his case, see the August 2009 Federal Contracts Perspective article “Safavian Conviction Upheld.”

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