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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


February 2015
Vol. XVI, No. 2
[pdf version]

CONTENTS


Trafficking in Persons, Uncompensated Overtime Subjects of FAC 2005-80
Defense FAR Supplement Changes Abound
SBA Proposes Two Nonmanufacturer Rule Waivers
Whistleblower Protections Proposed for Contractors
Three Final Rules Revise the EPAAR



Trafficking in Persons, Uncompensated
Overtime Subjects of FAC 2005-80

Federal Acquisition Circular (FAC) 2005-80 concentrates on amending the Federal Acquisition Regulation (FAR) to strengthen the prohibition against government employees and contractor personnel from engaging in trafficking in persons activities, including “severe forms of trafficking in persons,” which is defined as including “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery, and sex trafficking.” In addition, FAC 2005-80 creates a definition of “uncompensated overtime.”


Defense FAR Supplement Changes Abound

The Department of Defense (DOD) started 2015 where it left off in 2014 – issuing lots of changes and proposed changes to the Defense FAR Supplement (DFARS). DOD issued four final rules, three proposed rules, one class deviation, reissued the operator’s manual for the defense acquisition system, and issued a memorandum.


SBA Proposes Two Nonmanufacturer Rule Waivers

The Small Business Administration (SBA) is proposing to issue two nonmanufacturer rule waivers: (1) for Scientific Vacuum Pumps, under Product Service Code (PSC) 4310, Compressors and Vacuum Pumps, and the North American Industry Classification System (NAICS) code 333911, Pump and Pumping Equipment Manufacturing; and (2) Warehouse Instantly Adjustable Racking Systems, under PSC 5450, Miscellaneous Prefabricated Structures, and NAICS code 332999, Miscellaneous Fabricated Metal Product Manufacturing.

SBA is inviting the public to comment on these proposed waivers or to provide information on potential small business sources for: (1) scientific vacuum pumps by February 12, 2015, identified as “Class Waiver – Scientific Vacuum Pumps”; and (2) adjustable racking systems by February 17, 2015, identified as “Class Waiver – IAR Systems.” Comments and source information may be sent by either of the following methods: (1) mail to: Amy Garcia, Procurement Analyst, U.S. Small Business Administration, Office of Government Contracting, 409 3rd Street SW, Suite 8800, Washington, DC 20416; or (2) email to: NonMfgRuleWaiverReqsts@sba.gov.

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.

Whistleblower Protections Proposed for Contractors

The Office of Special Counsel (OSC) is proposing to revise its regulations to accept disclosures of wrongdoing from employees working under a contract, subcontract, or grant with the federal government.

The Civil Service Reform Act of 1978 (CSRA) (Public Law 95-454) authorized federal employees, former employees, or applicants for federal employment to disclose to the OSC information that they reasonably believe shows a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

Since the passage of the CSRA, the government has increased its reliance on contractors. Today, employees of contractors, subcontractors, and grantees often work alongside federal employees, and commonly have similar or identical duties. Therefore, they are able to observe or experience the same type of wrongdoing as federal employees. Congress recently extended protections against retaliation to government contractors who make whistleblower disclosures with enactment of the National Defense Authorization Act of 2013 (Public Law 112-239), and those protections have been incorporated into the FAR (see the October 2013 Federal Contracts Perspective article “FAC 2005-70 Addresses Contractor Whistleblower Issues”). Therefore, the OSC is proposing to revise its regulations to provide similar protections from reprisal to current and former contractor, subcontractor, and grantee employees as are provided federal employees.

The proposed changes would be to Title 5 of the Code of Federal Regulations (CFR), Section 1800.2, Filing Disclosures of Information. Currently, 5 CFR 1800.2 states, “OSC is authorized by law (at 5 USC 1213) to provide an independent and secure channel for use by current or former federal employees and applicants for federal employment in disclosing information that they reasonably believe shows wrongdoing by a federal agency.” OSC would add the following sentence immediately following: “Additionally, OSC may receive disclosures of wrongdoing from current and former federal contractors, subcontractors, and grantees (collectively, ‘contractors’) that are cognizable under 41 USC 4712.” Furthermore, anywhere else in 5 CFR 1800.2 that refers to “current or former federal employees or applicants” would be revised to “current or former federal employees or applicants, or current or former contractors, subcontractors, and grantees”.

Comments on the proposed rule must be submitted no later than March 23, 2015, by any of the following methods: (1) through the Federal eRulemaking Portal: http://www.regulations.gov; (2) by email: lterry@osc.gov (include “NPRM” in the subject line of the message); (3) fax: 202-254-3711; or mail/hand delivery/courier: Office of General Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036.


Three Final Rules Revise the EPAAR

The Environmental Protection Agency (EPA) has recently published three final rules to update policy and procedures and to conduct a general clean-up.



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