FedGovContracts.com

Panoptic Enterprises’

FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


October 2014
Vol. XV, No. 10
[pdf version]

CONTENTS


OFCCP Proposes to Implement EO 13665 with Prohibitions Against Pay Secrecy
Defense Unleashes Torrent of Regulations
NASA Continues Updating NFS
FAR Rule Would Address Past Performance Evaluation
SBA Proposes Hundreds of Changes to Size Standards
GSA to Update GSAR FSS Provisions/Clauses
Labor Revises Veterans Reporting Regulations
Anne Rung Confirmed as OFPP Administrator



OFCCP Proposes to Implement EO 13665 with
Prohibitions Against Pay Secrecy

The Office of Federal Contract Compliance Programs (OFCCP), a part of the Department of Labor, is proposing to amend Title 41 of the Code of Federal Regulations (CFR), Part 60-1, Obligations of Contractors and Subcontractors (41 CFR part 60-1), to implement Executive Order (EO) 13665, Non-Retaliation for Disclosure of Compensation Information, which prohibits contractors from “discharg[ing] or in any other manner discriminat[ing] against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.”

The introduction to the proposed rule provides the following as the reason for EO 13665: “Pay secrecy policies interfere with the federal government’s interest in efficiency in procurement. Economy and efficiency in federal procurement require that contractors compensate employees under merit-based practices, without any barriers to success. This rule would eliminate the barrier of pay secrecy policies and ensure that federal contractor employees are compensated based on merit.

“Pay secrecy policies may decrease worker productivity. Workers, due to a lack of compensation information, may experience a reduction in performance motivation and are likely to perceive their employer as unfair or untrustworthy...Because of pay secrecy policies, some workers do not know whether their own wages are reflective of job performance. This information gap makes it more difficult for workers to make informed choices about their own compensation and creates unnecessary barriers to enforcing laws against compensation discrimination…When workers have access to more information about colleagues’ compensation, salaries may be likely to be more closely linked to productivity on the job and compensation may be much less likely to be influenced by factors unrelated to job performance such as sex and race. As a result, workers with the ability to inquire about, discuss, and disclose compensation information may make more informed decisions about their careers. These workers may become aware of their current value to the organization, but also of their potential value, based on information they receive about the salaries of longer tenured employees or employees in higher wage positions.”

To implement EO 13665, OFCCP would make the following changes to 41 CFR Part 60-1:

Comments on the proposed rule must be submitted no later than December 16, 2014, identified as “RIN number 1250-AA06,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-693–1304 (six pages or less); or (3) mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C–3325, 200 Constitution Avenue NW, Washington, DC 20210.

For more on EO 13665, see the May 2014 Federal Contracts Perspective article “President Requires Collection of Compensation Data from Contractors and Subcontractors.”



Defense Unleashes Torrent of Regulations

The Department of Defense (DOD) had a busy September, issuing five final rules, two proposed rules, one class deviation, and two policy memoranda. In addition, DOD, in conjunction with the Office of Management and Budget (OMB), is requesting comments on alternative measures of allowable reimbursement for the compensation of contractor employees.



NASA Continues Updating NFS

The National Aeronautics and Space Administration (NASA) has started the second phase of the NASA FAR Supplement (NFS) updating process with the goal of eliminating unnecessary regulation, streamlining overly-burdensome regulation, clarifying language, and simplifying processes wherever possible. The last NFS reissue was in 2004.

This proposed rule is the second of three and includes updates and revisions to the following 14 NFS parts:

In addition, this proposed rule states that no regulatory changes will be made to the following eight NFS parts:

Comments on the proposed rule must be submitted no later than November 24, 2014, identified as “RIN number 2700-AE09,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) email: leigh.pomponio@NASA.gov.

For more on the first phase of the NFS updating process, see the May 2013 Federal Contracts Perspective article “NASA Commences NFS Updating Process.”



FAR Rule Would Address Past Performance Evaluation

A proposed rule would amend FAR 42.1502, Policy [on contractor performance information], to reflect the merger of the Architect-Engineer Contract Administration Support System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) into the Contractor Performance Assessment Reporting System (CPARS) database (http://www.cpars.gov) on July 1, 2014.

Prior to July 1, 2014, all past performance evaluations were entered into CPARS, except that evaluations of architect-engineer contracts were entered into ACASS and evaluations of construction contracts were entered into CCASS. The ACASS and CCASS were merged into the CPARS to standardize the contractor performance evaluation process across the entire federal government. To reflect this merger, it is proposed that FAR 42.1502(a) be amended to remove references to the ACASS and CCASS.

The amended FAR 42.1502(a) would state: “Past performance evaluations shall be prepared at least annually and at the time the work under a contract or order is completed. Past performance evaluations are required for all contracts and orders that exceed the specified thresholds, including contracts and orders performed outside the United States. These evaluations are generally for the entity, division, or unit that performed the contract or order. Past performance information shall be entered into CPARS, the governmentwide evaluation reporting tool for all past performance reports on contracts and orders. Instructions for submitting evaluations into CPARS are available at http://www.cpars.gov/.”

Comments on the proposed rule must be submitted no later than November 14, 2014, identified as “FAR Case 2014-010,” 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, 1800 F Street NW, 2nd Floor, Washington, DC 20405.



SBA Proposes Hundreds of Changes to Size Standards

As part of its ongoing comprehensive small business size standards review, the Small Business Administration (SBA) is proposing two rules that would amend 13 CFR 121.201, What Size Standards has SBA Identified by North American Industry Classification System Codes?, to change (mostly increase) the small business size standards for approximately 250 industries.



GSA to Update GSAR FSS Provisions/Clauses

The General Services Administration (GSA) is proposing to amend the GSA Acquisition Regulation (GSAR) to incorporate 35 Federal Supply Schedule (FSS) provisions and clauses that are contained in Federal Acquisition Service (FAS) Acquisition Letters and Instructional Letters (ILs). Not only would this proposed rule bring all these provisions and clauses together in one place (the GSAR) but it will permit the public to comment on them (by being implemented outside the regulatory process, the public has not had an opportunity to comment on them or make suggestions for improvement). In addition, GSA is proposing to revise the prescriptions for seven existing clauses to reflect current practices.

The 35 new provisions and clauses proposed for incorporation into the GSAR are:

The prescriptions for the following seven existing clauses would be updated to reflect current practices:

Comments on the proposed rule must be submitted no later than November 10, 2014, identified as “GSAR Case 2013-G502,” 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, 1800 F Street NW, 2nd Floor, Washington, DC 20405.



Labor Revises Veterans Reporting Regulations

The Department of Labor (DOL) is revising its regulations implementing the reporting requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). VEVRAA requires federal contractors and subcontractors to report annually on the total number of their employees who belong to the categories of veterans protected under VEVRAA (that is, “disabled veterans,” “recently separated veterans,” “active duty wartime or campaign badge veterans,” and “Armed Forces service medal veterans”), and the total number of those protected veterans who were hired during the period covered by the report.

First of all, DOL is rescinding 41 CFR part 61-250, Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled Veterans, Veterans of the Vietnam Era, Recently Separated Veterans, and Other Protected Veterans, because the regulations apply to federal contracts and subcontracts exceeding $25,000 entered into before December 1, 2003, so they are obsolete. The rescission of 41 CFR part 61-250 rescinds the Federal Contractor Veterans’ Employment Report VETS-100 (“VETS-100 Report”), which was required to be submitted by covered contractors and subcontractors annually.

Second, DOL is amending 41 CFR part 61-300, Annual Report from Federal Contractors, which applies to federal contracts and subcontracts exceeding $100,000 entered into after December 1, 2003, to simplify the reporting requirements. This is being accomplished by replacing the VETS-100A Report, which required reporting in ten occupational categories (executive/senior level officials and managers, first/mid level officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers/helpers, and service workers), with the Federal Contractor Veterans’ Employment Report VETS-4212 (“VETS-4212 Report”), which will require reporting on the total number of protected veterans employed and newly hired during the reporting period in the annual reports required under VEVRAA, rather than the total number of veterans protected under each category of protected veterans.

DOL decided to implement the VETS-4212 Report because 38 USC 4212 requires that the information reported in the VETS-100 and VETS-100A Reports be publically disclosed. As the introduction to the rule states, “The existing VETS-100 and VETS-100A Reports ask contractors to provide, by job category and hiring location, the number of employees in each of the specified categories of veterans. In many instances, the category might include only one employee, and currently it might be possible to discern the identities of disabled veteran employees because the reports disclose the number of employees who are disabled veterans. For example, if a contractor’s VETS-100A Report lists two employees in the Executive/Senior Level Officials and Managers category, one of whom is a disabled veteran, the identity of the disabled veteran could be easily discovered...In addition, [DOL] believes its annual report to Congress on reports filed by contractors under VEVRAA will be more meaningful by providing aggregate data on the total number of protected veterans employed and newly hired by federal contractors, the total number of employees in the workforce, and the total number of new hires.” (EDITOR’S NOTE: The VETS-4212 Report form is not included in the rule or 41 CFR part 61-300 because it will be easier to make changes to the annual report outside of the Code of Federal Regulations. If the VETS-4212 Report form had be included as part of 41 CFR part 61-300, changes to it would be subject to required notice and comment rulemaking, thus delaying those changes. The VETS-4212 Report and filing instructions will be posted at http://www.dol.gov/vets/.)



Anne Rung Confirmed as OFPP Administrator

The Senate has confirmed Anne Rung as the next administrator of the Office of Federal Procurement Policy (OFPP). She replaces Joseph Jordan, who resigned as OFPP administrator in January 2014.

Ms. Rung has been an advisor to OMB since May 2014. Prior to that, she was Associate Administrator of Governmentwide Policy and Chief Acquisition Officer for the General Services Administration (GSA), and senior director of administration for the Department of Commerce.



Copyright 2014 by Panoptic Enterprises. All Rights Reserved.

Return to the Newsletters Library.

Return to the Main Page.