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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


May 2011
Vol. XII, No. 5

CONTENTS


Women-Owned Small Business Program Instituted by FAC 2005-51
Organizational Conflicts of Interest Changes Proposed
Proposals on Service Contract, Property Reporting
The Avalanche of DFARS Changes Keeps Piling Up
Paper Versions of FMR and FTR Discontinued
Eyeglass Frames Nonmanufacturer Rule Waiver Proposed
State Adopts PIV Procedures
Agencies to Develop Telework Purchasing Procedures



Women-Owned Small Business Program
Instituted by FAC 2005-51

Federal Acquisition Circular (FAC) 2005-51 consists of two changes to the Federal Acquisition Regulation (FAR): the establishment of procedures for the Women-Owned Small Business (WOSB) program, and clarification of Standard Form 26, Award/Contract. FAC 2005-51 will be known primarily as the WOSB program FAC.



Organizational Conflicts of Interest Changes Proposed

A proposed rule would amend FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest, to provide revised regulatory coverage on organizational conflicts of interest (OCIs), provide additional coverage regarding contractor access to nonpublic information, and add related provisions and clauses.

FAR Subpart 9.5 is intended to help the government in identifying and addressing circumstances in which (1) a government contractor may be unable to render impartial assistance or advice to the government, or (2) might have an unfair competitive advantage based on unequal access to information or prior involvement in setting the ground rules for an acquisition. Paragraph (a) of FAR 9.504, Contracting Officer Responsibilities, directs contracting officers to “identify and evaluate potential OCIs as early in the acquisition process as possible” and “avoid, neutralize, or mitigate significant potential conflicts before contract award.” FAR Subpart 9.5 has remained largely unchanged since the initial publication of the FAR in 1984. The FAR coverage was adapted from an appendix to the Defense Acquisition Regulation, which dated back to the 1960s.

Recent trends in acquisition and industry have led to the increased potential for OCIs, including industry consolidation; agencies’ growing reliance on contractors for services, especially where the contractor is tasked with providing advice to the government; and the use of multiple-award task- and delivery-order contracts, which permit large amounts of work to be awarded among a limited pool of contractors.

In April 2010, the Department of Defense (DOD) published a proposed rule to amend the Defense FAR Supplement (DFARS) to address OCIs in major defense acquisition programs (see the May 2010 Federal Contracts Perspective article “DOD Rolls Out More Policies and Regulations”). The proposed rule implements Section 207 of the Weapons System Acquisition Reform Act of 2009 (Public Law 111-23), which sets out situations that must be addressed and allows DOD to establish such limited exceptions as are necessary to ensure that DOD has continued access to advice on systems architecture and systems engineering matters from highly qualified contractors, while ensuring that such advice comes from sources that are objective and unbiased.

The proposed FAR OCI rule is substantially the same as the DFARS proposed OCI rule in some respects, and substantially different in others.

Both this proposed FAR rule and the proposed DFARS rule:

However, this proposed FAR rule differs from the proposed DFARS rule by:

Respondents on the proposed rule are encouraged to provide their views on the following:

Comments on this proposed rule must be submitted no later than June 27, 2011, identified as “FAR Case 2011-001,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-501-4067; or (3) mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE, Washington, DC 20417.



Proposals on Service Contract, Property Reporting

Besides the proposed FAR rule on organizational conflicts of interest (see the preceding article), two other proposed FAR rules addressing service contract reporting and government property reporting, reutilization, and disposal were issued for comment.



The Avalanche of DFARS Changes Keeps Piling Up

On top of the 21 separate documents addressing Department of Defense (DOD) contracting issued in March, DOD piled up an additional three final rules, one interim rules, four proposed rules, two class deviations, and six policy memoranda!



Paper Versions of FMR and FTR Discontinued

The General Services Administration (GSA) has announced that it will no longer produce the looseleaf version of the Federal Management Regulation (FMR) and the Federal Travel Regulation (FTR) “as part of GSA’s effort to increase efficiency and reduce and attain the goal of zero environmental impact (ZEF).”

Looseleaf pages of the FMR and the FTR were originally made available at a time when it was the only means to view a change to either regulation in context with the existing text until the publication of the next volume of Title 41 of the Code of Federal Regulations (CFR) each July 1 (41 CFR is where GSA promulgates the FMR and FTR). Patrons who maintained the regulations in looseleaf could purchase subscriptions from the Government Printing Office (GPO) and when any change to the FMR or FTR occurred, they would be sent the new pages.

With today’s technologies, those who follow the FMR and FTR can view and print the latest changes on the day the changes are published in the Federal Register. GSA has come to the conclusion that the time that it takes to produce the pages for information already available is not an efficient use of government resources and has decided to discontinue the production of the looseleaf versions of the FMR and FTR immediately. In addition, printing updated pages for those maintaining looseleaf binders of the regulations will no longer be necessary and this supports GSA’s goal of a zero environmental footprint.

The FMR and related documents can be found at http://www.gsa.gov/fmr. The FTR and related documents can be found at http://www.gsa.gov/ftr.



Eyeglass Frames Nonmanufacturer Rule Waiver Proposed

The Small Business Administration (SBA) is proposing to waive the nonmanufacturer rule for Optical Eyeglass Frames, Product Service Code (PSC) 6540 (Ophthalmic Instruments, Equipment, and Supplies), under the North American Industry Classification System (NAICS) code 339115 (Ophthalmic Goods Manufacturing). SBA is inviting the public to comment on this proposed waiver or to provide information on potential small business sources for these products by May 12, 2011, to Amy Garcia, Procurement Analyst, Small Business Administration, Office of Government Contracting, 409 3rd Street, SW, Suite 8800, Washington, DC 20416.

The SBA regulation on the nonmanufacturer rule is in Title 13 of the Code of Federal Regulations (CFR), Business and Credit Administration; Part 121, Small Business Size Standards; under paragraph (b) of Section 121.406, How Does a Small Business Concern Qualify to Provide Manufactured Products Under Small Business Set-Aside or MED [Minority Enterprise Development] Procurements? The SBA regulation on the waiver of the nonmanufacturer rule is 13 CFR 121.1202, When Will a Waiver of the Nonmanufacturer Rule Be Granted for a Class of Products? A complete list of products for which the nonmanufacturer rule has been waived is available at http://www.sba.gov/sites/default/files/05262011_class_waivers.pdf.



State Adopts PIV Procedures

The Department of State (DOS) is adding a contract clause to the DOS Acquisition Regulation (DOSAR) to implement its procedures regarding personal identity verification (PIV) of contractor personnel, as required by Homeland Security Presidential Directive 12 (HSPD-12), Policies for a Common Identification Standard for Federal Employees and Contractors, and Federal Information Processing Standards Publication (FIPS PUB) Number 201, Personal Identity Verification (PIV) of Federal Employees and Contractors. This clause, DOSAR 652.204-70, Department of State Personal Identification Card Issuance Procedures, will apply to contracts that require contractor employees to perform on-site at a DOS location and/or that require contractor employees to have access to DOS information systems.

DOSAR 652.204-70 directs contractors to an Internet Web site document at http://www.state.gov/m/ds/rls/rpt/c21664.htm that outlines the personal identity verification procedures for various types of contractors (cleared and uncleared), location of performance (domestic and overseas facilities), and the access requirements (physical and/or logical). The document itself, Department of State Personal Identification Card Policy and Procedures, is at http://www.state.gov/documents/organization/121534.pdf. In addition, DOSAR 652.237-71, Identification/Building Pass, is removed.

No comments were submitted in response to the proposed rule, so it is finalized without changes. For more on the proposed rule, see the December 2007 Federal Contracts Perspective article “Clause Addressing HSPD-12 Proposed for DOSAR.”



Agencies to Develop Telework Purchasing Procedures

The Office of Management and Budget (OMB) director Jacob Lew has issued a memorandum to the heads of departments and agencies directing them to develop procedures on “purchasing computing technologies and services to enable and promote continued adoption of telework.”

Lew gives agency chief information officers (CIOs), in conjunction with agency chief acquisition officers (CAOs), 90 days to develop or update policies that address the information security threats raised by use of technologies associated with telework. Agency policies must address the following:

OMB plans to issue a memorandum by June 7, 2011, that provides guidelines to ensure the adequacy of information and security protections for information and information systems used while teleworking.



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