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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


December 2013
Vol. XIV, No. 12
[pdf version]

CONTENTS


FAC 2005-71 Adds Clause Accelerating Payments to Small Business Subcontractors
DFARS Amended to Address Supply Chain Risk
Energy to Address Patents, Data, and Copyrights
EPA Seeks Comments on Environmental Guidelines



FAC 2005-71 Adds Clause Accelerating Payments
to Small Business Subcontractors

Federal Acquisition Circular (FAC) 2005-71 is a small one, consisting of only two rules revising the Federal Acquisition Regulation (FAR): one adding a new clause that requires contractors to provide accelerated payments to their subcontractors, and the other recognizing that Croatia is a new “designated country” whose goods and services are to be treated as if they are domestic goods or services.



DFARS Amended to Address Supply Chain Risk

The Department of Defense (DOD) took a break in November, issuing only three rules: one addresses supply chain risk related to national security systems; another addresses safeguarding unclassified controlled technical information; and the final rule deletes coverage in the DOD FAR Supplement (DFARS) addressing contractors performing private security functions because it duplicates coverage in the FAR.



Energy to Address Patents, Data, and Copyrights

The Department of Energy (DOE) is proposing to amend the DOE Acquisition Regulation (DEAR) part 927, Patents, Data, and Copyrights, and DEAR subpart 970.27, Patents, Data, and Copyrights [for DOE Management and Operations Contracts], to make changes so they conform to changes made to the FAR by FAC 2005-21 (see the December 2007 Federal Contracts Perspective article “FAC 2005-21 Rewrites FAR Part 27 in Plain English”); to make policy revisions for computer software developed under DOE contracts; and to amend guidance regarding technology transfers to foreign entities, trademarks associated with laboratory activities, and background technology rights under DOE contracts. In addition, this proposed rule would update, clarify, and streamline text in DOE intellectual property and technology transfer clauses in order to benefit from several years of experience under the existing clauses and, where necessary, make these DOE clauses consistent with changes made to the FAR by FAC 2005-21.

The following are the significant changes that are being proposed:

Comments on this proposed rule must be submitted no later than December 9, 2013, identified as “DEAR: Patents, Data, and Copyrights and RIN 1991-AB82,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) email: DEARrulemaking@hq.doe.gov; or (3) mail: U.S. Department of Energy, Office of Acquisition and Project Management, MA-611, 1000 Independence Avenue SW, Washington, DC 20585.



EPA Seeks Comments on Environmental Guidelines

The Environmental Protection Agency (EPA) is seeking comments on draft guidelines intended to provide a transparent, fair, and consistent approach to using nongovernmental product environmental performance standards and ecolabels in federal purchasing, consistent with federal standards policy and sustainable acquisition mandates.

Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance, and FAR 23.103, Sustainable Acquisitions, require 95% of the government’s applicable contract actions to be sustainable. While federal purchasing policy is clear for the several standards and ecolabels that are listed in statute, regulation, or executive order, the lack of guidance on using other product environmental performance standards and ecolabels often results in an inconsistent approach by federal purchasers and confusion and uncertainty for vendors and manufacturers. The draft guidelines have been developed in response to requests from suppliers, manufacturers, environmental organizations, federal purchasers, and others over the last several years, and are expected to be used by agencies to select nongovernmental product environmental performance standards and ecolabels for voluntary use in federal procurement, thus helping them achieve the 95% sustainable acquisition requirement.

The proposed draft guidelines and supplementary information can be found in at http://www.epa.gov/epp/draftGuidelines.

The draft guidelines are organized into the following four sections:

EPA anticipates that a number of organizations may be able to respond to the need for assessment of standards and ecolabels for conformity with the guidelines. Taking this into account, EPA is considering a limited pilot project, assuming sufficient appropriations are available, to test an assessment approach, especially with respect to guidelines addressing the “environmental effectiveness” of a standard or ecolabel's criteria. During this pilot, EPA expects that an external entity (or entities) would convene and work with a multi-stakeholder panel (or panels) to develop product category-specific programs to assess conformity of standards and ecolabels with the guidelines. The entity (or entities) would then conduct the assessments for selected product categories in a manner consistent with the International Organization for Standardization’s (ISO) guides on conformity assessment, and develop a list of standards and ecolabels that conform to the guidelines. The results from the pilot project would be made publicly available and EPA would evaluate the results to inform any future action such as making available a list of conforming standards and ecolabels for voluntary use by federal agencies in procurement activities.

EPA is requesting comments on the draft guidelines and the concept of assessing nongovernmental standards and ecolabels for voluntary use in federal procurement. Recognizing that implementation of these draft guidelines will call for additional stakeholder engagement and assessment processes, EPA also welcomes comments on the overall approach, including the potential pilot project. In particular:

  1. How might the guidelines benefit the broader marketplace?

  2. Are there any draft guidelines that should be removed or modified? Are there gaps in the draft guidelines that could be addressed by a new guideline(s)?

  3. Are the designations of “baseline” and “leadership” in the draft guidelines understandable? Can the designations be easily implemented? Do they appropriately reflect varying approaches in the marketplace today?

  4. How should the leadership guidelines be applied to standards and ecolabels in different product categories (for example, different weightings in an overall conformity assessment scheme)?

  5. What processes, approaches, measures, and mechanisms should be used to determine conformance with the guidelines, if they are finalized and implemented?

  6. Under what circumstances and under what authorities, if any, should the federal government require a particular type of conformity assessment to provide adequate confidence that the products have met a particular environmental performance standard or ecolabel?

  7. Are there alternatives to the pilot project that EPA should consider?

  8. If EPA were to move forward with the pilot project to test the proposed standards and ecolabels assessment approach, which product categories should be prioritized?

  9. What challenges need to be addressed/resolved in implementing the proposed guidelines in order to be a transparent, fair, and consistent process?

Comments on the draft guidelines must be submitted no later than February 25, 2014, identified as “EPA-HQ-OPPT-2013-0579,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; or (3) delivery: OPPT Document Control Office (DCO), William Jefferson Clinton (WJC) East Bldg., Room 6428, 1201 Constitution Ave. NW, Washington, DC. ATTN: Docket ID Number EPA-HQ-OPPT-2013-0579 (the DCO is open from 8:00 am to 4:00 pm, Monday through Friday, excluding legal holidays).

For more on Executive Order 13514, see the November 2009 Federal Contracts Perspective article “President Sets Sustainability Goals for Government.” For more on the FAR implementation of Executive Order 13514, see the June 2011 Federal Contracts Perspective article “FAC 2005-52 Requires Agencies to Leverage Acquisitions to Foster Sustainable Technologies.”



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