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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


October 2012
Vol. XIII, No. 10

CONTENTS


FAC 2005-61 Cleans House, Updating Authorities and Deleting Obsolete References
More Small Business Size Standards Changes
Standardized Performance Evaluation Factors Proposed
DOD Issues Two Past Performance Evaluation Deviations
Order Strengthens Trafficking Protections



FAC 2005-61 Cleans House, Updating Authorities
and Deleting Obsolete References

Federal Acquisition Circular (FAC) 2005-61 amends the Federal Acquisition Regulation (FAR) to clean house by adopting as final the interim rule that implemented the United States-Korean Free Trade Agreement; to delete an outdated reference to the Defense Industrial Preparedness Program; to clarify that new North American Industry Classification System (NAICS) codes are not available for use in federal contracting until the Small Business Administration (SBA) publishes corresponding industry size standards; and to note that there are other Federal-court related protest authorities and dispute-appeal authorities that are not covered by FAR Part 33, Protests, Disputes, and Appeals.



More Small Business Size Standards Changes

As part of its ongoing comprehensive small business size standards review, the Small Business Administration (SBA) has decided to increase the small business size standards for 55 industries and one sub-industry in North American Industry Classification System (NAICS) Sector 53, Real Estate and Rental and Leasing; Sector 61, Educational Services; and Sector 62, Health Care and Social Assistance.

In addition, SBA is proposing to increase the small business size standards for 52 industries in NAICS Sector 11, Agriculture, Forestry, Fishing and Hunting; Sector 52, Finance and Insurance; and Sector 55, Management of Companies and Enterprises.

The following are the industries in Sectors 53, 61, and 62 with finalized small business size standards and their previous small business size standards:

NAICS Code Industry Title Previous Size Standard
($ million)
Revised Size Standard
($ million)
Sector 53
531110 Lessors of Residential Buildings and Dwellings $7.0 $25.5
531120 Lessors of Nonresidential Buildings (except Miniwarehouses) $7.0 $25.5
531190 Lessors of Other Real Estate Property $7.0 $25.5
      except Leasing of Building Space to Federal Government by Owners $20.5 $35.5
531210 Offices of Real Estate Agents and Brokers $2.0 $7.0
531311 Residential Property Managers $2.0 $7.0
531312 Nonresidential Property Managers $2.0 $7.0
531320 Offices of Real Estate Appraisers $2.0 $7.0
531390 Other Activities Related to Real Estate $2.0 $7.0
532111 Passenger Car Rental $25.5 $35.5
532112 Passenger Car Leasing $25.5 $35.5
532120 Truck, Utility Trailer, and Recreational Vehicle) Rental and Leasing $25.5 $35.5
532210 Consumer Electronics and Appliances Rental $7.0 $35.5
532220 Formal Wear and Costume Rental $7.0 $19.0
532230 Video Tape and Disc Rental $7.0 $25.5
532291 Home Health Equipment and Rental $7.0 $30.0
532411 Commercial, Air, Rail, and Water Transportation Equipment and Rental $7.0 $30.0
532412 Construction, Mining and Forestry Machinery and Equipment Rental and Leasing $12.5 $30.0
532420 Office Machinery and Equipment Rental and Leasing $25.5 $30.0
532490 Other Commercial, and Industrial Machinery and Equipment Rental and Leasing $7.0 $30.0
533110 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) $7.0 $35.5
                    
Sector 61
611110 Elementary and Secondary Schools $7.0 $10.0
611210 Junior Colleges $7.0 $19.0
611310 Colleges, Universities and Professional Schools $7.0 $25.5
611420 Computer Training $7.0 $10.0
611430 Professional and Management Development Training $7.0 $10.0
611519 Other Technical and Trade Schools $7.0 $14.0
611630 Language Schools $7.0 $10.0
611699 All Other Miscellaneous Schools and Instruction $7.0 $10.0
611710 Educational Support Services $7.0 $14.0
                    
Sector 62
621420 Outpatient Mental Health and Substance Abuse Centers $10.0 $14.0
621491 HMO Medical Centers $10.0 $30.0
621492 Kidney Dialysis Centers $34.5 $35.5
621493 Freestanding Ambulatory Surgical and Emergency Centers $10.0 $14.0
621498 All Other Outpatient Care Centers $10.0 $19.0
621511 Medical Laboratories $13.5 $30.0
621512 Diagnostic Imaging Centers $13.5 $14.0
621610 Home Health Care Services $13.5 $14.0
621910 Ambulance Services $7.0 $14.0
621991 Blood and Organ Banks $10.0 $30.0
621999 All Other Miscellaneous Ambulatory Health Care Services $10.0 $14.0
622110 General Medical and Surgical Hospitals $34.5 $35.5
622210 Psychiatric and Substance Abuse Hospitals $34.5 $35.5
622310 Specialty (except Psychiatric and Substance Abuse) Hospitals $34.5 $35.5
623110 Nursing Care Facilities (Skilled Nursing Facilities) $13.5 $25.5
623210 Residential Intellectual and Developmental Disability Facilities $10.0 $14.0
623220 Residential Mental Health and Substance Abuse Facilities $7.0 $14.0
623311 Continuing Care Retirement Communities $13.5 $25.5
623312 Assisted Living Facilities for the Elderly $7.0 $10.0
624110 Child and Youth Services $7.0 $10.0
624120 Services for the Elderly and Persons with Disabilities $7.0 $10.0
624190 Other Individual and Family Services $7.0 $10.0
624221 Temporary Shelters $7.0 $10.0
624229 Other Community Housing Services $7.0 $10.0
624230 Emergency and Other Relief Services $7.0 $10.0
624310 Vocational Rehabilitation Services $7.0 $35.5

For more on the changes that were proposed to Sectors 53 and 61, see the December 2011 Federal Contracts Perspective article “SBA Proposes Increasing Small Business Size Standards.”

For more on the changes that were proposed to Sector 62, see the March 2012 Federal Contracts Perspective article “Size Standards Finalized for Professional, Technical Services and Transportation.”

The following are the industries in Sectors 11, 52, and 55 with proposed revised small business size standards and their current small business size standards:

NAICS Code Industry Title Current Size Standard
($ million except where otherwise noted)
Proposed Size Standard
($ million except where otherwise noted)
Sector 11
112112 Cattle Feedlots $2.0 $7.0
112310 Chicken Egg Production $12.5 $14.0
113110 Timber Tract Operations $7.0 $10.0
113210 Forest Nurseries and Gathering of Forest Products $7.0 $10.0
114111 Finfish Fishing $4.0 $19.0
114112 Shellfish Fishing $4.0 $5.0
114119 Other Marine Fishing $4.0 $7.0
114210 Hunting and Trapping $4.0 $5.0
115111 Cotton Ginning $7.0 $10.0
115114 Postharvest Crop Activities (except Cotton Ginning) $7.0 $25.5
115115 Farm Labor Contractors and Crew Leaders $7.0 $14.0
                    
Sector 52
522110 Commercial Banking $175 million in assets $500 million in assets
522120 Savings Institutions $175 million in assets $500 million in assets
522130 Credit Unions $175 million in assets $500 million in assets
522190 Other Depository Credit Intermediation $175 million in assets $500 million in assets
522210 Credit Card Issuing $175 million in assets $500 million in assets
522220 Sales Financing $7.0 $35.5
522291 Consumer Lending $7.0 $35.5
522292 Real Estate Credit $7.0 $35.5
522293 International Trade Financing $175 million in assets $35.5
522294 Secondary Market Financing $7.0 $35.5
522298 All Other Nondepository Credit Intermediation $7.0 $35.5
522320 Financial Transactions, Reserve, and Clearinghouse Activities $7.0 $35.5
522390 Other Activities Related to Credit Intermediation $7.0 $19.0
523110 Investment Banking and Securities Dealing $7.0 $35.5
523120 Securities Brokerage $7.0 $35.5
523130 Commodity Contracts Dealing $7.0 $35.5
523140 Commodity Contracts Brokerage $7.0 $35.5
523210 Securities and Commodity Exchanges $7.0 $35.5
523910 Miscellaneous Intermediation $7.0 $35.5
523920 Portfolio Management $7.0 $35.5
523930 Investment Advice $7.0 $35.5
523991 Trust, Fiduciary, and Custody Activities $7.0 $35.5
523999 Miscellaneous Financial Investment Activities $7.0 $35.5
524113 Direct Life Insurance Carriers $7.0 $35.5
524114 Direct Health and Medical Insurance Carriers $7.0 $35.5
524127 Direct Title Insurance Carriers $7.0 $35.5
524128 Other Direct Insurance (except Life, Health, and Medical) Carriers $7.0 $35.5
524130 Reinsurance Carriers $7.0 $35.5
524291 Claims Adjusting $7.0 $19.0
524292 Third Party Administration of Insurance and Pension Funds $7.0 $30.0
524298 All Other Insurance Related Activities $7.0 $14.0
525110 Pension Funds $7.0 $30.0
525120 Health and Welfare Funds $7.0 $30.0
525190 Other Insurance Funds $7.0 $30.0
525910 Open-End Investment Funds $7.0 $30.0
525920 Trusts, Estates, and Agency Funds $7.0 $30.0
525930 Real Estate Investment Funds $7.0 $30.0
525990 Other Financial Vehicles $7.0 $30.0
                    
Sector 55
551111 Offices of Bank Holding Companies $7.0 $19.0
551112 Offices of Other Holding Companies $7.0 $19.0

Note that SBA is proposing to change the measure of size from average assets to average receipts for NAICS 522293, International Trade Financing.

Comments on the proposed changes to Sector 11 are to be submitted no later than November 13, 2012, identified as “RIN 3245-AG43,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail/hand-delivery/courier to: Khem R. Sharma, PhD, Chief, Size Standards Division, 409 Third Street, SW, Mail Code 6530, Washington, DC 20416. SBA will not accept comments by e-mail.

Comments on the proposed changes to Sectors 52 and 55 are to be submitted no later than November 13, 2012, identified as “RIN 3245-AG45,” by either of the methods for submitting comments on the proposed changes to Sector 11. SBA will not accept comments by e-mail.



Standardized Performance Evaluation Factors Proposed

The FAR Council is proposing to amend the FAR to provide governmentwide standardized past performance evaluation factors and performance rating categories, and require that past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS), the governmentwide past performance feeder system (http://www.cpars.gov/).

The FAR Council had published a proposed rule that would have amended FAR Subpart 42.15, Contractor Performance Information, to provide governmentwide standardized past performance evaluation factors and performance ratings, and to require all past performance information be entered into the CPARS (see the July 2011 Federal Contracts Perspective article “FAR Rules on Prioritizing Supply Sources, Performance”). However, subsequent to the publication of the proposed rule, Congress passed the Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81), and Section 806 of the act, “Inclusion of Data on Contractor Performance in Past Performance Databases for Source Selection Decisions,” requires:

  1. Establishment of standards for the timeliness and completeness of past performance submissions for purposes of databases;

  2. Assignment of responsibility and management accountability for the completeness of past performance submissions for such purposes; and

  3. Assurance that past performance submissions are consistent with award fee evaluations in cases where such evaluations have been conducted.

Since Section 806 addresses the same subject as the original proposed rule, the FAR Council has decided to publish a new proposed rule that addresses the provisions in Section 806 and the comments on the original proposed rule that were adopted. (For more on the acquisition-related provisions of Public Law 112-81, see the February 2012 Federal Contracts Perspective article “Defense Authorization Act Extends Task Order Protests, Mentor-Protégé Program.”)

The following are the significant changes in this new proposed rule:

Comments on this proposed rule must be submitted no later than November 5, 2012, identified as “FAR Case 2012-009,” 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, 7th Floor, Washington, DC 20417.



DOD Issues Two Past Performance Evaluation Deviations

The Department of Defense (DOD) has issued two FAR class deviations that address past performance evaluations – one adjusts the reporting thresholds, the other requires past performance reporting for contracts awarded under FAR Subpart 8.7, Acquisition from Nonprofit Agencies Employing People Who Are Blind or Severely Disabled.



Order Strengthens Trafficking Protections

On September 25, President Obama issued Executive Order 13627, Strengthening Protections Against Trafficking In Persons In Federal Contracts, which directs the FAR Council to amend FAR Subpart 22.17, Combating Trafficking in Persons, within 180 days to:



Copyright 2012 by Panoptic Enterprises. All Rights Reserved.

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