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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


May 2013
Vol. XIV, No. 5

CONTENTS


DOD Implements Contract Clause Logic Service, Contract Business Analysis Repository
Proposed Rule Would Mandate CAGE Code Use
NASA Commences NFS Updating Process
DOE Seeks Comments on Improving ESPCs
EPA Revises Printing Clause
SBA Proposes Rescinding Nonmanufacturer Rule Waiver



DOD Implements Contract Clause Logic Service,
Contract Business Analysis Repository

The Department of Defense (DOD) was busy taking care of odds and ends in April by unveiling a program to make sure the correct provisions and clauses are included in solicitations and contracts, requiring additional information be added to a business analysis program, cancelling a proposed rule, and issuing three class deviations.



Proposed Rule Would Mandate CAGE Code Use

Commercial and Government Entity (CAGE) codes, including North Atlantic Treaty Organization (NATO) CAGE (NCAGE) codes for foreign entities, would be required to be provided by offerors to contracting officers for awards valued at greater than the micro-purchase threshold ($3,000) if a proposed FAR rule is adopted. In addition, the proposed rule would require offerors, if owned or controlled by another business entity, to identify that entity during System for Award Management (SAM) registration (https://www.sam.gov). (NOTE: The proposed rule refers to “SAM” rather than “CCR” [Central Contractor Registry] and “ORCA” [Online Representations and Certifications Application] because both CCR and ORCA have been transitioned to SAM [see the August 2012 Federal Contracts Perspective article “Phase I of SAM Implemented” for more information on this transition]. There is a pending rule that will make a global update throughout the FAR to change all “CCR” and “ORCA” references to “SAM.”)

The proposed rule would add FAR subpart 4.17, Commercial and Government Entity Code, two provisions, and a clause:

In addition, conforming changes would be made to FAR 52.204-8, Annual Representations and Certifications, and FAR 52.212-3, Offeror Representations and Certifications – Commercial Items.

Comments on this proposed rule must be submitted no later than June 17, 2013, identified as “FAR Case 2012-024,” 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.



NASA Commences NFS Updating Process

NASA is proposing to update the NASA FAR Supplement (NFS) to eliminate unnecessary regulations, streamline overly burdensome regulations, clarify language, and simplify processes where possible. This proposed rule is the first in a series of three. This proposed rule would revise NFS parts 1834, Major System Acquisition; 1841, Acquisition of Utility Services; 1846, Quality Assurance; 1851, Use of Government Sources by Contractors; and 1852, Solicitation Provisions and Contract Clauses. In addition, this proposed rule provides notice that no regulatory changes will be made to NFS parts 1814, Sealed Bidding; 1815, Contracting by Negotiation (except for NFS subpart 1815.4, Contract Pricing); 1822, Application of Labor Laws to Government Acquisitions; 1824, Protection of Privacy and Freedom of Information; and 1843, Contract Modifications.

The following is a summary of the proposed changes (changes to clauses are described in the corresponding NFS part):

Comments on this proposed rule must be submitted no later than June 17, 2013, identified as “RIN number 2700-AE01,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) email: leigh.pomponio@NASA.gov.



DOE Seeks Comments on Improving ESPCs

The Department of Energy (DOE) is seeking comments and information regarding improvements to Energy Savings Performance Contracts (ESPCs). ESPCs allow federal agencies to implement energy savings projects where the up-front capital cost is financed by an Energy Services Company (ESCO), which is then repaid from the agency’s energy savings over a period of up to 25 years. The DOE Federal Energy Management Program (FEMP) is the lead agency program for providing implementing rules and policies regarding ESPCs. FEMP strives to continuously improve the ESPC processes it has implemented since 1996. DOE is publishing this request for information (RFI) to obtain ideas and input from ESPC stakeholders and other interested persons to facilitate further improvements to ESPCs.

Under the ESPC statutes, DOE is required to develop methods and procedures for federal agencies to implement the use of ESPCs. DOE’s implementing procedures and regulations for ESPCs are in Title 10 of the Code of Federal Regulations (CFR) part 436, subpart B.

To facilitate and accelerate the use of ESPCs, DOE has issued indefinite-delivery, indefinite-quantity (IDIQ) contracts designed to make ESPCs as practical and cost-effective as possible for use by federal agencies. DOE awarded these “umbrella” contracts to ESCOs based on their ability to meet the terms and conditions established in the IDIQ contracts, and consistent with the ESPC regulations. DOE IDIQ contracts can be used by federal agencies to achieve energy savings for any federally-owned facility worldwide, by awarding task orders for ESPC projects at their facilities. These IDIQ contracts have been used to award more than 280 ESPC projects throughout the federal government. More than $2.71 billion has been invested in federal energy efficiency and renewable energy improvements, and these improvements have resulted in more than 347.5 trillion Btu life-cycle energy savings and more than $7.18 billion of cumulative energy cost savings for the federal government.

More detailed background and specifics of the FEMP ESPC program can be found at http://www1.eere.energy.gov/femp/financing/espcs.html. More detailed information about the IDIQ contracts, FEMP’s primary vehicle for implementation of ESPCs, including a generic version of the current contract, can be found at http://www1.eere.energy.gov/femp/financing/espcs_resources.html. More detailed information about the new FEMP streamlined ESPC ENABLE program for smaller facilities can be found at http://www1.eere.energy.gov/femp/financing/espc_enable.html.

FEMP is soliciting comments and information on further potential improvements to ESPCs, with emphasis on improvements to the IDIQ contracts. Specifically, FEMP is interested in obtaining ideas and information in the following areas:

Comments must be submitted by May 3, 2013, identified as “ESPC Comments,” by either of the following methods: (1) email: femp@go.doe.gov; or (2) mail: Randy Jones, U.S. Department of Energy, 1617 Cole Blvd., Golden, CO 80401.



EPA Revises Printing Clause

The Environmental Protection Agency (EPA) is amending EPA Acquisition Regulation (EPAAR) 1552.208-70, Printing, to update outdated information in the clause.

The following are the changes made to EPAAR 1552.208-70 by this final rule:



SBA Proposes Rescinding Nonmanufacturer Rule Waiver

The Small Business Administration (SBA) is proposing to rescind the class waiver of the nonmanufacturer rule for aerospace ball and roller bearings, North American Industry Classification System (NAICS) code 332991, Product Service Code (PSC) 3110, which consists of annular ball bearings, cylindrical ball bearings, linear ball bearings, linear roller bearings, needle roller bearings, ball or roller bearing races, roller bearings, tapered roller bearings, and thrust roller bearings. This proposed rescission is the product of information submitted by several small business manufacturers of aerospace ball and roller bearings that have done business with the federal government within the previous two years.

Comments must be submitted no later than May 3, 2013, identified as “SBA-2013-XXXX,” by the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail/hand delivery/courier: Dean Koppel, Associate Director for Government Contracting, U.S. Small Business Administration, 409 3rd Street SW, 8th floor, Washington, DC 20416.

EDITOR’S NOTE: Public Law 100-656, enacted November 15, 1988, requires those with federal contracts that are set-aside for small businesses or awarded through the 8(a) program to provide the product of a small business manufacturer or processor if the recipient is not the actual manufacturer or processor (see paragraph (f) of FAR 19.102, Size Standards). This is called the “nonmanufacturer rule.” However, SBA may waive this requirement if there are no small business manufacturers or processors.

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 121.406, How does a small business concern qualify to provide manufactured products or other supply items under a small business set-aside, service-disabled veteran-owned small business set-aside, WOSB [women-owned small business] or EDWOSB [economically disadvantaged women-owned small business] set-aside, or 8(a) contract? 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/class_waiver.pdf.





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