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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


April 2013
Vol. XIV, No. 4

CONTENTS


DOD Implements Proposal Adequacy Checklist, Two Trade Agreements
Small Business Protest Procedures Proposed
Proposed FAR Change Addresses Defense Base Act
DOD Lists FPI’s Items To Be Competed



DOD Implements Proposal Adequacy Checklist,
Two Trade Agreements

The Department of Defense (DOD) took a much needed break in its amending of the Defense Federal Acquisition Regulation Supplement (DFARS) during March – all it did was issue four final rules that: (1) add a proposal adequacy checklist for solicitations that require the submission of cost or pricing data; (2) implement the Korea Free Trade Agreement; (3) implement the Colombia Free Trade Agreement; and (4) revise the definition of “produce” as it applies to specialty metals.



Small Business Protest Procedures Proposed

An amendment to the Federal Acquisition Regulation (FAR) is proposed that would update the small business size and small business status protest and appeal procedures to be consistent with the Small Business Administration’s (SBA's) recent revisions to its regulations (see the March 2011 Federal Contracts Perspective articles “SBA Revises Small Business Status Protest Regulations” and “SBA Revises 8(a) Program, Small Business Size Regulations”).

The following are the significant changes being proposed:

Comments on this proposed rule must be submitted no later than May 6, 2013, identified as “FAR Case 2012-014,” 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.



 

Proposed FAR Change Addresses Defense Base Act

A proposed rule change would amend FAR 52.228-3, Workers Compensation Insurance (Defense Base Act), to clarify the responsibilities of contractors under the Defense Base Act, including the requirement to include flow down of the clause to all subcontractors subject to the Defense Base Act.

The Defense Base Act of 1941 (42 U.S.C. 1651, et seq.) extended the federal workers’ compensation protections provided by the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 U.S.C. 901, et seq.) to the following employment outside of the United States:

The Defense Base Act is intended to provide disability compensation and medical benefits to covered employees for work-related injuries, and death benefits to eligible survivors of employees whose deaths are work-related. Recent experience and anticipated contingency contracting efforts require the clarification of the responsibilities of contractors and subcontractors under the LHWCA to purchase workers’ compensation insurance or to qualify as a self-insurer; to submit a timely, written report to the Department of Labor (DOL) in the event of an employee’s injury or death; to make timely payment of all compensation due for disability or death, and to submit a timely, written report of such payment to the DOL; and to adhere to all other provisions of the LHWCA, as extended by the Defense Base Act.

Comments on this proposed rule must be submitted no later than May 20, 2013, identified as “FAR Case 2012-016,” 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 Lists FPI’s Items To Be Competed

The Department of Defense (DOD) has published a list of product categories (by Federal Supply Classification codes [FSCs]) for which the Federal Prison Industries’ (FPI’s) share of the DOD market is greater than 5%. This list is required by Section 827 of the National Defense Authorization Act for FY 2008 (Public Law 110-181), and products on the list must be procured using competitive (or fair opportunity) procedures (see DFARS 208.602-70, Acquisition of Items for Which FPI Has a Significant Market Share). In conducting such a competition, contracting officers must consider a timely offer from FPI for any of the products on the list. In addition, FPI must be included in the process even if the procurement otherwise would have been set aside in accordance with FAR part 19, Small Business Programs. When the FPI item is determined to provide the best value as a result of FPI's response to a competitive solicitation, contracting officers are to follow the ordering procedures at http://www.unicor.gov/contact/howtoorder.cfm.

The following is the list of products:

FSCDescription
           
5220      Inspection Gages and Precision Layout Tools
5335      Metal Screening
7210      Household Furnishings
7230      Draperies, Awnings, and Shades
8405      Outerwear, Men’s
8415      Clothing, Special Purpose
9905      Individual Equipment
7230      Signs, Advertising Displays and Identification Plates


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