FEDERAL CONTRACTS PERSPECTIVE

OFCCP Proposes Updates to
Sex Discrimination Rules

The Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise its equal employment opportunity regulations at Title 41 of the Code of Federal Regulations (CFR), part 60-20, Sex Discrimination Guidelines (41 CFR part 60-20), “which have not been substantively updated since 1970, and replace them with regulations that align with current law and legal principles and address their application to current workplace practices and issues.”

41 CFR part 60-20 implements Executive Order 11246, Equal Employment Opportunity, September 24, 1965, which prohibits federal contractors and subcontractors that receive contracts of more than $10,000 during any 12-month period from discriminating “against any employee or applicant for employment because of race, creed, color, or national origin.” Executive Order 11246 was amended by Executive Order 11478, Equal Employment Opportunity in the Federal Government, August 8, 1969, to bar discrimination against federal employees on the basis of race, color, religion, sex, national origin, handicap, and age. Executive Order 13087, Further Amendment to Executive Order 11478, May 28, 1998, added “sexual orientation” to the list of protected categories. (EDITOR’S NOTE: Executive Order 11246, as amended, is implemented in Federal Acquisition Regulation (FAR) subpart 22.8, Equal Employment Opportunity, and the corresponding clause FAR 52.222-26, Equal Opportunity.)

On July 21, 2014, President Obama issued Executive Order 13672, Equal Employment Opportunity Amendments Regarding Sexual Orientation and Gender Identity, which further amended Executive Order 11246 to prohibit federal contractors from discriminating against lesbian, gay, bisexual, and transgender (LGBT) employees, and amended Executive Order 11378 to prohibit discrimination based on gender identity in federal employment. Implementing this executive order is the main thrust of the OFCCP proposed rule.

The proposed rule takes 32 pages to explain and justify the three-page rule. “By clarifying that discrimination against an individual because of her or his gender identity is unlawful sex discrimination, the [notice of proposed rulemaking] would ensure that contractors are aware of their nondiscrimination obligations with respect to transgender employees and would assure equality of opportunity for transgender employees, the vast majority of whom report that they have experienced discrimination in the workplace.”

New 41 CFR 60-20.2, General Prohibition, would summarize the proscribed activities: “It is unlawful for a contractor to discriminate against any employee or applicant for employment because of sex. The term ‘sex’ includes, but is not limited to pregnancy, childbirth, or related medical conditions; gender identity; and transgender status.” It goes on to provide 11 examples of unlawful sex-based discriminatory practices, and four examples of employment policies or practices that have an adverse impact on the basis of sex and are not job-related and consistent with business necessity. Probably the most controversial is the “discriminatory practice” described in paragraph (b)(10): “Denying transgender employees access to the bathrooms used by the gender with which they identify...”

Comments on this proposed rule must be submitted no later than March 31, 2015, identified as “RIN number 1250-AA05,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-693-1304 (for comments of six pages or fewer); 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 Executive Order 13672, see the August 2014 Federal Contracts Perspective article “Sexual Orientation and Gender Identity Order Issued.” Also see the January 2015 Federal Contracts Perspective article “No Sexual Orientation or Gender Identity Discrimination.”

DOD Issues Multitude of Guidance (and Some Regulations)

The Department of Defense (DOD) took it easy on the regulatory front, only issuing three final rules revising the Defense FAR Supplement (DFARS) and one proposed rule to revise the DFARS. However, DOD issued a multitude of guidance and information documents, including six memoranda to the acquisition workforce and three class deviations!

• Deletion of Obsolete Text Relating to Acquisition of Commercial Items: This final rule removes Defense FAR Supplement (DFARS) subpart 212.70, Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority, and language in DFARS 212.102, Applicability, because the text is obsolete.
  
  
  • DFARS subpart 212.70 was added to implement Section 847 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136), which authorized the Department of Defense (DOD) to carry out a pilot program that permitted the use of streamlined contracting procedures for the production of items or processes begun as prototype projects under "other transaction" agreements. Since the authority for the program expired on September 30, 2010, DFARS subpart 212.70 is being removed. (For more on the addition of DFARS subpart 212.70, see the December 2004 Federal Contracts Perspective article “DFARS Transformation in Full Gear, ‘Procedures, Guidance, and Information’ Added.”)
    
    
  • On March 12, 2012, DFARS 212.102(a)(i) was amended to implement a recommendation made by the Panel on Contracting Integrity. After reviewing a sampling of commercial contract awards, the Panel concluded that contracting officer determinations were not always sufficiently documented as required by DFARS 212.102. Therefore, DFARS 212.102(a)(i) was revised to require the contracting officer to determine that an acquisition exceeding $1,000,000 and using the procedures of FAR part 12, Acquisition of Commercial, either meets the commercial item definition at FAR 2.101, Definitions, or the criteria in paragraph (g)(1) of FAR 12.102, Applicability, which addresses the acquisition of services under FAR part 12 procedures. However, FAR 12.102(g)(1) only applied to contracts or task orders entered into before November 24, 2013, so the reference to FAR 12.102(g)(1) in DFARS 212.102(a)(i)(A) is removed.
  
  
• Domestic Source Restrictions on Certain Naval Vessel Components: This finalizes, without changes, the proposed rule that would add DFARS 225.7010, Restriction on Certain Naval Vessel Components, to implement the domestic source restrictions in 10 USC 2534, Miscellaneous Limitations on the Procurement of Goods Other than United States Goods, on gyrocompasses, electronic navigation chart systems, steering controls, pumps, propulsion and machinery control systems, and totally enclosed lifeboats, to the extent they are unique to marine applications. 10 USC 2534 prohibits acquisition of these naval vessel components unless they are manufactured in the United States or Canada, except for acquisitions that do not exceed the simplified acquisition threshold ($150,000), or acquisitions of spare or repair parts needed to support components for naval vessels manufactured outside the United States.
  
  One respondent submitted a comment on the proposed rule, but the comment was not adopted, so the proposed rule is finalized without changes. For more on the proposed rule, see the October 2014 Federal Contracts Perspective article “Defense Unleashes Torrent of Regulations.”
  
  NOTE: One interesting provision of 10 USC 2534 is paragraph (h), which prohibits the use of contract clauses or certifications to implement this restriction. Therefore, paragraph (b) of DFARS 225.7010-4, Implementation, states, “Agencies shall accomplish implementation of this restriction through use of management and oversight techniques that achieve the objectives of this section without imposing a significant management burden on the government or the contractor involved.”
  
  
• Technical Amendments: This final rule directs contracting officers to the Procedures, Guidance, and Information (PGI) for additional procedures and guidance as follows:
  
  
  • A reference to PGI 218.272 is added to DFARS 218.272, Use of Electronic Business Tools, and DFARS 225.7405, Use of Electronic Business Tools, concerning the use of electronic business tools in support of a contingency operation or humanitarian or peacekeeping operation.
    
    
  • A reference to PGI 242.7502, is added to DFARS 242.7502, Policy [for contract administration and audit services], concerning negotiation of a proposal generated by an accounting system with an identified deficiency.
  
  
• Acquisition of the American Flag: This proposed rule would amend DFARS 225.7002, Restrictions on Food, Clothing, Fabrics, Hand or Measuring Tools, and Flags, and add DFARS 252.225-70XX, Acquisition of the American Flag, to implement Section 8123 of the Department of Defense Appropriations Act, Fiscal Year 2014 (Public Law 113-76) and Section 8119 of the Department of Defense Appropriations Act, Fiscal Year 2015 (Public Law 113-235), which require that United States flags (including its materials and components) be manufactured in the United States.
  
  This proposed rule would amend DFARS 225.7002-1, Restrictions, to implement this requirement, and would amend DFARS 225.7002-3, Contract Clauses, to require the use of DFARS 252.225-70XX “in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the acquisition of the American flag, with an estimated value that exceeds the simplified acquisition threshold.”
  
  Comments on this proposed rule must be submitted no later than April 17, 2015, identified as “DFARS Case 2015-D005,” by any of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; (2) email: osd.dfars@mail.mil; (3) fax: 571-372-6094; or (4) mail: Defense Acquisition Regulations System, Attn: Amy Williams, OUSD(AT&L)DPAP/ DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.
  
  
• Class Deviation Prohibiting Contracts with Entities that Require Certain Internal Confidentiality Agreements: This class deviation implements Section 743 of the Department of Defense Appropriations Act, Fiscal Year 2015 (Public Law 113-235), which prohibits the use of funds appropriated by Public Law 113-235 “for a contract with an entity that requires employees or contractors of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contractors from lawfully reporting such fraud, waste, or abuse to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information.”
  
  The class deviation requires that provision DFARS 252.203-7998, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements (DEVIATION 2015-O0010), be included in all solicitations that use funds made available by Public Law 113-235. It would include the following representation: “By submission of its offer, the offeror represents that it does not require employees or subcontractors of such entity seeking to report fraud, waste, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contactors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information.”
  
  In addition, the class deviation requires that clause DFARS 252.203-7999, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements (DEVIATION 2015-O0010), be included in all solicitations and contracts that use funds made available by Public Law 113-235. It includes the prohibition; states that “the contractor shall notify employees that the prohibitions and restrictions of any internal confidentiality agreements covered by this clause are no longer in effect”; and states that “the government may seek any available remedies in the event the contractor fails to perform in accordance with the terms and conditions of the contract as a result of government action under this clause.”
  
  
• Class Deviation on Contracting for Cloud Services: This class deviation adds DFARS subpart 239.99, Cloud Computing (DEVIATION 2015-O0011), and corresponding clause DFARS 252.239-7999, Cloud Computing Services (DEVIATION 2015-O0011), to require contracting officers, in conjunction with the requiring activity, to “ensure that any selected cloud computing solution is configured, deployed, and managed to meet the security, privacy, and other requirements of the organization, including applicable elements of the Federal Information Security Management Act of 2002 (FISMA) [Public Law 107-347] and the associated NIST [National Institute of Standards and Technology] standards and special publications (e.g., FIPS [Federal Information Processing Standard] 199 [Standards for Security Categorization of Federal Information and Information Systems], FIPS 200 [Minimum Security Requirements for Federal Information and Information Systems], SP [Special Publication] 800-53 [Security and Privacy Controls for Federal Information Systems and Organizations]).”
  
  The class deviation applies to all contracts, task orders, and delivery orders for, or that may involve, cloud computing services.
  This class deviation will remain in effect until a proposed rule that is currently in preparation, Network Penetration Reporting and Contracting for Cloud Services, revises the DFARS. The proposed rule will address the substance of the class deviation.
  
  
• Class Deviation on Enhanced Authority to Acquire Products and Services of Djibouti: This class deviation requires contracting officers to limit competition to, or provide a preference for, products or services of Djibouti before considering other sourcing options for procurements in support of DOD operations in the Republic of Djibouti. This class deviation implements Section 1263 of the National Defense Authorization Act for Fiscal Year 2015 (Public Law 113-291).
  
  This class deviation adds DFARS 225.7798, Enhanced Authority to Acquire Products or Services of Djibouti in Support of DOD Operations in Djibouti (DEVIATION 2015-O0012), which requires the following:
  
  
  • A properly executed written determination that uses a format substantially the same as those provided in Attachments 2 and 3 to the class deviation (DFARS 225.7798-4, Determination Requirements).
    
    
  • Evaluation of offers in accordance with DFARS 225.7798-5, Evaluating Offers.
    
    
  • The appropriate provisions and/or clause in the solicitation and contract in accordance with DFARS 225.7798-6, Solicitation Provisions and Contract Clauses (DFARS 252.225-7982, Preference for Products or Services of Djibouti [DEVIATION 2015-O0012], in solicitations that include DFARS 252.225-7983; DFARS 252.225-7983, Requirement for Products or Services of Djibouti [DEVIATION 2015-O0012], in solicitations and contracts that provide a preference for products or services of Djibouti; DFARS 252.225-7984, Acquisition Restricted to Products or Services of Djibouti [DEVIATION 2015-O0012], in solicitations and contracts that limit competition to products or services of Djibouti).
  
  
• Compliance with DFARS 252.211-7003, Item Identification and Valuation: This memorandum from Richard Ginman, Defense Procurement and Acquisition Policy (DPAP) director, states that the compliance rate with DFARS 252.211-7003 between August 1, 2011, and August 31, 2013, was less than 50%. “Accountability and auditability cannot be achieved if contracts do not contain the required contract clauses,” wrote Mr. Ginman. Therefore, he is directing that compliance reports that reflect the rate of DFARS 252.211-7003 inclusion in contracts procuring item unique identification (IUID) relevant items be submitted quarterly. In addition, the DPAP will independently perform verification and validation of DFARS 252.211-7003 compliance rates in accordance with the method described at http://www.dodprocurementtoolbox.com/page/overview/implementation. “If significant discrepancies are identified between DPAP-calculated compliance rates and component reported metrics, additional investigation into root cause will be performed in collaboration with the component contracting offices.”
  
  
• Commercial Items and the Determination of Reasonableness of Price for Commercial Items: This memorandum from Shay Assad, Defense Pricing director, complies with Section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239), which “requires the department to issue guidance on the use of authorities provided by 10 USC 2306a [Cost or Pricing Data: Truth in Negotiations] and 2379 [Requirement for Determination by Secretary of Defense and Notification to Congress Before Procurement of Major Weapon Systems as Commercial Items], and to include in that guidance standards for determining when additional cost information is required in determining reasonableness of price for commercial items...We are currently processing a proposed rule for the DFARS that will address the standards required by Section 831…In the meantime, this memorandum is intended to provide guidance for contracting officers as to how they should approach the pricing of items purported to be commercial.”
  
  
• Guidance on the Export and Import of Government-Issued Personal Protective Equipment (PPE): This memorandum from Richard Ginman, DPAP director, clarifies and provides additional guidance regarding the temporary import and export of government-issued PPE (body armor, helmet, protective mask, and canister). “The Department of State, Office of Defense Trade Controls Policy (DDTC), has worked out an interim agreement with the U.S. Customs and Border Patrol (C&BP) to reduce/eliminate delays arising from contractors not filing the correct export/import documentation associated with PPE. This interim agreement allows hand-carried PPE that was exported improperly since August 1, 2012, to be re-imported when such articles are included under a Form DSP-73 (Application/License to Temporary Export of Unclassified Defense Articles) applied for under this policy.”
  
  
• Update to Synchronized Pre-Deployment and Operational Tracker Business Rules: This memorandum from Rear Admiral Allie Coetzee, DPAP principal deputy, forwards the updated Synchronized Pre-Deployment and Operational Tracker (SPOT) business rules (available at http://www.acq.osd.mil/log/PS/spot.html). The following is the primary change in the SPOT business rules: “When a work visa is required for a contractor employee to perform in a particular country, the company administrator must enter the visa details in SPOT. This information is necessary to provide visibility of visa status for contractors supporting ongoing military operations, particularly in countries where transitions are taking place that affect their visa processes.” This change is on page 15 of the attachment to the memorandum (in yellow text).
  
  
• Product Service Code Selection Tool: In this memorandum, Richard Ginman, DPAP director, announces that the Product Service Code (PSC) Selection Tool has completed beta testing and is in production. “This tool is designed to be a resource to the procurement community and other government stakeholders, and is available at https://www.psctool.us.”
  
  “Selecting the most appropriate PSCs applicable to contract line items is challenging, in part because there are over 3,000 PSCs from which to choose,” continues Mr. Ginman. “The tool groups PSCs by DOD’s taxonomy for the acquisition of services and supplies to speed the process of selection, and includes a key word search capability as an alternate or complementary selection method…An additional feature to the tool is it provides recommended North American Industrial Classification System (NAICS) codes for many PSCs. NAICS codes are used in government procurement to identify types of industries in order to determine small business size and other socio-economic statuses. Although there is no formal linkage between the list of NAICS codes and list of PSCs, the tool suggests the NAICS codes that best align with a given PSC where possible. This assists users in determining the appropriate NAICS code by connecting the code to what is actually being procured.”
  
  
• Call and Response Procurement Data Service: In this memorandum, Richard Ginman, DPAP director, announces he is “making available the Call & Response procurement data system at http://www.acq.osd.mil/dpap/cpic/cp/call_and_response.html. This tool allows users to quickly obtain publically-available data from the Federal Procurement Data System and visualize basic trends by simply initiating a ‘call’ using email and Microsoft Excel 2010 (or later). ‘Responses’ are automatically returned to the user via email within approximately five minutes. Although returned analyses are not intended to precisely replicate officially published data and scorecards (e.g., small business utilization, competition), Call & Response provides an efficient, cost-effective means to understand data and guide decisions by accessing the past four fiscal years of organizational outcomes.”

Advisory Small Business Size Opinions Available

The Small Business Administration (SBA) has issued a final rule that implements Section 1681 of the National Defense Authorization Act of 2013 (Public Law 112-239), which requires that SBA create an exemption to the penalties imposed under Title 15 of the U.S. Code, Section 645 (15 USC 645), for misrepresentation of small business status where the person or concern making the misrepresentation acted in good faith reliance on a written advisory opinion from a Small Business Development Center (SBDC) or Procurement Technical Assistance Center (PTAC). In addition, the rule establishes the criteria that small business status advisory opinions must meet to be considered adequate and specifies the review process for such opinions. Finally, the rule updates the circumstances under which SBA may initiate a formal size determination.

This rule goes into effect August 10, 2015.

The rule amends Title 13 of the Code of Federal Regulations, Part 121, Small Business Size Regulations (13 CFR part 121), as follows:

• Paragraph (e)(4) of Section 121.108, What are the penalties for misrepresentation of size status?, is added. It states, “An individual or business concern will not be subject to the penalties imposed under 15 USC 645(a) where it acted in good faith reliance on a small business status advisory opinion accepted by SBA under Sec. 121.109.”
  
  
• Section 121.109, What is a small business status advisory opinion?, is added (previous Section 121.109, What must a concern do in order to be identified as a small business concern in any federal procurement databases?, is redesignated as Section 121.110). It requires the SBDC or PTAC to include the following in each advisory opinion: a written analysis explaining the reasoning underlying the SBDC’s or PTAC’s determination that the concern and its affiliates either does or does not exceed the size standard(s); a completed copy of an SBA Form 355, Application for Small Business Size Determination, for the concern and its affiliates; and copies of the evidence provided by the concern to the SBDC or PTAC documenting its annual receipts and/or number of employees (such as payroll records, time sheets, federal income tax returns, etc.). The SBDC or PTAC must submit its small business status advisory opinion to the SBA’s associate general counsel for review. SBA’s associate general counsel will decide within 10 business days whether to accept or reject the advisory opinion, and will notify the SBDC or PTAC of that decision. A concern that receives a small business status advisory opinion that it does not exceed the applicable size standard(s) may rely upon that determination for purposes of responding to federal procurement opportunities unless the concern undergoes a significant change in its ownership, management, or other factors bearing on its status as a small business concern. However, the concern’s size may be protested by interested parties in connection with a specific procurement.
  
  
• Paragraph (b)(9) of Section 121.1001, Who may initiate a size protest or request a formal size determination?, is revised to state, “For other purposes related to protecting the integrity of the federal procurement process, including validating that firms listed in the System for Award Management database [https://www.sam.gov/] are small and firms can rely upon advisory size status opinions, the Government Contracting Area Director or the Director, Office of Government Contracting may initiate a formal size determination when sufficient information exists that calls into question a firm’s small business status.” New paragraph (b)(10) states that the associate general counsel may request a formal size determination, and a concern that has received an SBDC or PTAC opinion that it is not small may request a formal size determination.

• Specific examples of the type of evidence a concern could provide to an SBDC or PTAC to document its compliance with the size standards is added to paragraph (b) of Section 121.109, “Submission” (“such as payroll records, time sheets, federal income tax returns, etc.”). In addition, Section 121.109 is revised to specify that the size standard advisory opinion applies to the concern “along with its affiliates.”
  
  
• Paragraph (d) of Section 121.109, “Reliance,” is revised to make clear that a firm can no longer rely on a positive advisory opinion when “the concern undergoes a significant change in its ownership, management, or other factors bearing on its status as a small business concern.”
  
  
• Paragraph (b)(10) is added to Section 121.1001 to permit a concern that receives a negative advisory opinion from an SBDC or PTAC (that is, an opinion concluding that it is other than small) to request that SBA conduct a formal size determination of it.

Governmentwide Mentor-Protégé Program Proposed

The SBA is proposing to establish a governmentwide mentor-protégé program for all small business concerns that would be consistent with the mentor-protégé program for participants in its 8(a) Business Development program.

This governmentwide mentor-protégé program would implement Section 1347 of the Small Business Jobs Act of 2010 (Public Law 111-240) and Section 1641 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239).

Section 1347 authorizes the SBA administrator to “establish mentor-protege programs for small business concerns owned and controlled by service-disabled veterans, small business concerns owned and controlled by women, and HUBZone small business concerns modeled on the mentor-protégé program of the [SBA] for small business concerns participating in programs under section 8(a) of the Small Business Act (15 USC 637(a)).”

Section 1641 authorizes the SBA to “establish a mentor-protégé program for all small business concerns…The mentor-protégé program…shall be identical to the mentor-protégé program of the [SBA] for small business concerns that participate in the program under section 8(a)…except that [SBA] may modify the program to the extent necessary given the types of small business concerns included as protégés.” Section 1641 goes on to prohibit agencies from conducting their own mentor-protégé programs unless the head of the agency submits a plan to SBA for approval (this does not apply to DOD because it already has the necessary statutory and regulatory framework for its mentor-protégé program).

While the SBA considered adding four mentor-protégé programs to SBA’s current 8(a) mentor-protégé program (one each for service-disabled veteran-owned small businesses, HUBZone small businesses, women-owned small businesses, and all other small businesses), SBA has decided to propose adding only one mentor-protégé program for all small businesses (in addition to the 8(a) mentor-protégé program) since the other three types of small businesses would necessarily be included within any mentor-protégé program targeting all small businesses. “SBA believes that having five separate small business mentor-protégé programs could become confusing to the public and procuring agencies and hard to implement by SBA.”

The 8(a) mentor-protégé program is used as a business development tool in which mentors provide diverse types of business assistance to their 8(a) protégés to enhance their capabilities and improve their ability to compete for government and commercial contracts. This assistance may include technical and/or management assistance, financial assistance in the form of equity investments and/or loans, subcontracts, and/or assistance in performing federal prime contracts through joint venture arrangements. Similarly, the proposed mentor-protégé program for all small businesses would require approved mentors to provide assistance to their protégés to enhance their capabilities and improve their ability to compete for contracts.

In addition, this proposed rule would amend the current joint venture provisions to clarify the conditions for creating and operating joint venture partnerships, including the effect of such partnerships on any mentor-protégé relationships.

Finally, the proposed rule would make several additional changes regarding the applicability of the “rule of two” to reverse auctions, processing applications for HUBZone certification, reconsideration of SBA’s Office of Hearings and Appeals decisions, and the review of the administrative record in 8(a) appeals.

Comments on this proposed rule must be submitted no later than April 6, 2015, identified as “RIN 3245–AG24,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail/hand delivery/courier: Brenda Fernandez, U.S. Small Business Administration, Office of Government Contracting, 409 3rd Street SW, 8th Floor, Washington, DC 20416.

For more on Public Law 111-240, see the October 2010 Federal Contracts Perspective article “Parity Among Small Business Programs Mandated by Statute.” For more on Public Law 112-239, see the February 2013 Federal Contracts Perspective article “FY 2013 National Defense Authorization Act Extends FAR Subpart 13.5 Procedures Through 2014.”

GSA Revises Its Regulations

The General Services Administration (GSA) is revising (or proposing to revise) several of its regulations: the GSA Acquisition Regulation (GSAR), the Federal Property Management Regulations (FPMR), and the Federal Management Regulation (FMR).

• Withdrawal of GSAR Part 536 Rewrite: GSA has decided to withdraw its proposed rule that would have rewritten GSAR part 536, Construction and Architect-Engineer Contracts, because GSA believes that further review of this rule is appropriate to address the variety of issues that were raised in comments on the proposed rule and “to address strong stakeholder interest.”
  
  This rule proposed to amend the GSAR to update text in GSAR 536.101, Applicability; GSAR 536.201, Evaluation of Contractor Performance; GSAR 536.202, Specifications; GSAR 536.270, Exercise of Options; GSAR 536.271, Project Labor Agreements; GSAR subpart 536.5, Contract Clauses; and GSAR 536.602, Selection of Firms for Architect-Engineer Contracts. GSA will be publishing new proposed rules to address these separately. The new proposed rules will focus on the areas that require immediate modernization to meet current and future needs of contracting activities.
  
  For more on the proposed rule, see the January 2009 Federal Contracts Perspective article “GSAR Protests, Disputes, and Appeals Regulations Rewritten.”
  
  
• Hazardous Materials Identification and Material Safety Data: This proposed rule would add GSAR 552.223-73, Preservation, Packaging, Packing, Marking and Labeling of Hazardous Materials (HAZMAT) for Shipments, to require compliance by contractors regarding preservation, packaging, packing, marking and labeling of hazardous materials.
  
  GSA had published a proposed rule in 2009 to update the text and clauses regarding Hazardous Materials Identification and Material Safety Data (see the April 2009 Federal Contracts Perspective article “One Rewritten GSAR Part Finalized, Another Proposed”). It would have replaced GSAR 552.223-70, Hazardous Substances, with two hazardous materials clauses: GSAR 552.223-70, Preservation, Packaging, Packing, Marking and Labeling of Hazardous Materials (HAZMAT) for Export Shipment, and GSAR 552.223-73, Preservation, Packaging, Packing, Marking and Labeling of Hazardous Materials (HAZMAT) for Domestic Shipment. No comments were received in response to the proposed rule. However, due to the length of time since the original proposed rule was published, this second proposed rule is issued for comments.
  
  This proposed rule would retain GSAR 552.223-70 but add GSAR 552.223-73 for solicitations and contracts for packaged items, both for export and domestic shipments, subject to the Occupational Safety and Health Act and the Hazardous Materials Transportation Act.
  
  In addition, the title of GSAR part 523 would be changed from “Environment, Conservation, Occupational Safety and Drug-Free Workplace” to “Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace” to correspond to the title of FAR Part 23; and the title of GSAR subpart 523.3 would be changed from “Hazardous Materials Identification and Material Safety Data” to “Hazardous Material Identification and Material Safety Data” to correspond to the title of FAR Subpart 23.3.
  
  Comments on this proposed rule must be submitted no later than April 20, 2015, identified as “GSAR Case 2006-G506,” 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: Ms. Flowers, 1800 F Street NW, 2nd Floor, Washington, DC 20405.
  
  
• Utilization and Disposition of Personal Property With Special Handling Requirements: This rule updates, streamlines, and clarifies content in FPMR part 101-42, Disposition of Personal Property with Special Handling Requirements, then moves it to the FMR as part 102-40, Utilization and Disposition of Personal Property with Special Handling Requirements. A cross-reference to FMR part 102-40 is added as FPMR 101-42.000, Cross-Reference to the Federal Management Regulation (FMR) (41 CFR chapter 102, parts 102-1 through 102-220).
  
  In addition, this rule removes FPMR 101-45.001, Demilitarization and Decontamination, FPMR 101-45.002, Gold, and FPMR 101-45.004, All-Terrain Vehicles. The subject matter of these sections is addressed in new FMR 102-40.195, How do we handle Munitions List Items (MLIs)? (disposal of items requiring demilitarization); FMR 102-40.50 What must we do when we no longer need personal property with special handling requirements? (handling of property reported to GSA so as to preserve civilian utility as far as possible); FMR 102-40.225, How do we handle precious metals?; and FMR 102-40.140, How do we handle all-terrain vehicles (ATVs)?
  
  Finally, this rule removes FPMR 101-45.003, Vehicle Reconditioning. This section contains provisions that the federal fleet community considers standard business practices, and is more prescriptive of specific tasks than is intended by this governmentwide regulation.
  
  With the issuance of this rule, the FMR addresses all types of personal property requiring special handling.
  
  
• Supply and Procurement: This proposed rule would revise FPMR part 101-25, General, which addresses government personal property management policies, and move it to the FMR as part 102-32, Supply and Procurement. This rule is intended to remove regulations that are not regulatory in nature (such as internal GSA operating procedures), is overly prescriptive, outdated, addressed in other policy, or no longer appropriate for today’s government business environment, and to rewrite the remaining regulations in plain language.
  
  GSA anticipates migrating the remainder of FPMR, Subchapter E, Supply and Procurement, to FMR part 102-32.
  
  Comments on this proposed rule must be submitted no later than April 27, 2015, identified as “FPMR Case 2014-101-1/FMR Case 2014-102-2,” 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: Ms. Flowers, 1800 F Street NW, 2nd Floor, Washington, DC 20405.

DOSAR Brought Up-to-Date

The Department of State (DOS) is making technical amendments to the DOS Acquisition Regulation (DOSAR) to provide needed editorial changes, update procedures and terminology, and align it with changes to the FAR.

All the amendments are either corrections of typographical errors, alignments of wording/titling/numbering with the FAR, renumbering/relocating without substantive change, changes in delegated authority, incorporation of agency procedural guidance into the Code of Federal Regulations (CFR), or other minor editorial adjustments without substantive change.

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