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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


April 2015
Vol. XVI, No. 5
[pdf version]

CONTENTS


Dialogue Initiated to Reduce Reporting Compliance Costs for Contractors
OMB Seeks Comments on FITARA Implementation
Sexual Orientation, Gender Identity Protected in FAR
EPA Removes Source Selection Regulations
DOD Issues Better Buying Power 3.0
NASA Proposes Third, and Final, Set of NFS Revisions



Dialogue Initiated to Reduce Reporting
Compliance Costs for Contractors

The Chief Acquisition Officers Council, the Department of Health and Human Services (HHS), and the General Services Administration (GSA) will be conducting a national dialogue between May 30, 2015, and May 30, 2017, to discuss ideas on how to reduce the costs associated with reporting compliance under federal awards – contracts, subcontracts, grants, subgrants, and cooperative agreements. This dialogue is part of an effort to improve the economy and efficiency of the federal award system by identifying steps that can be taken to streamline reporting, reduce burden, and reduce costs.

This dialogue is expected to further the goals of the President’s Management Agenda, which lays the foundation for creating a 21st century government that delivers better results, and addresses requirements in the Digital Accountability and Transparency Act of 2014 (Public Law 113-101) to gain a better understanding of the costs of compliance with federal contracting and grants awards as well as recommendations to standardize data, eliminate unnecessary duplication, and reduce compliance costs.

During last year’s Open Dialogue on Federal Procurement (see the May 2014 Federal Contracts Perspective article “Dialogue Sought on Improving Federal Procurement”), many commenters pointed to the potential reduction of redundant reporting and related processes as one way to improve the efficiency and effectiveness of the government’s acquisition practices. These comments are helping to support ongoing efforts to modernize the information technology (IT) infrastructure supporting federal procurement data collection and display, which will include development of a single website for federal contractors to use for federal contract reporting requirements.

Management of federal contract and grant business arrangements requires multiple layers of reporting across multiple agencies. In some cases, lack of standardization results in slight (or significant) variations in reports that create additional administrative and burdensome requirements for awardees that could be readily rectified. This dialogue is intended to continue the conversation begun last year in the context of federal procurement and expand it to cover federal grants by identifying opportunities for reducing burden, discussing ideas for standardizing processes and forms, and identifying recommended actions to reduce costs and eliminate duplication for awardees. The open dialogue focuses on three “campaigns,” and each focuses on a unique aspect of the federal contracting and grants process:

To facilitate a national dialogue, an online platform will be launched in May 2015 so interested parties may submit ideas, comment on others, respond to questions posed by moderators, and vote to indicate which ideas they think are most promising. Information on the platform, and the dates for participating in the dialogue, will be posted at http://www.cao.gov. A separate notice will be posted to address additional dialogue topics on federal procurement for conversation later in the spring and summer.

“We are looking for ideas to reduce your burden through data standards and changes to reporting procedures. We are interested in hearing about proposed changes that can be accomplished through executive (regulatory, administrative, or management) action, as well as potential legislative proposals where requirements are based in statute.”

OMB Seeks Comments on FITARA Implementation

The Office of Management and Budget’s (OMB’s) Office of E-Government & Information Technology (E-Gov) is seeking public comments on draft guidance to implement the Federal Information Technology Acquisition Reform Act (FITARA) (Public Law 113-291, National Defense Authorization Act for Fiscal Year 2015; Title VIII, Acquisition Policy, Acquisition Management, And Related Matters; Subtitle D, Federal Information Technology Acquisition Reform; Sections 831 though 837). The draft guidance is at https://whitehouse.github.io/fitara/.

FITARA outlines specific requirements related to:

  1. Chief Information Officer (CIO) Authority Enhancements

  2. Enhanced Transparency and Improved Risk Management in Information Technology (IT) Investments

  3. Portfolio Review

  4. Expansion of Training and Use of Information Technology Cadres

  5. Federal Data Center Consolidation Initiative

  6. Maximizing the Benefit of the Federal Strategic Sourcing Initiative

  7. Governmentwide Software Purchasing Program

The objectives of the requirements outlined in this proposed guidance are to:

  1. Assist agencies in establishing management practices which align IT resources with agency missions, goals, programmatic priorities, and statutory requirements;

  2. Establish government-wide IT management controls that will meet FITARA requirements while providing agencies with the flexibility to adapt to agency processes and unique mission requirements;

  3. Establish the “Common Baseline” for roles, responsibilities, and authorities of the agency CIO and the roles and responsibilities of other applicable Senior Agency Officials2 in managing IT as a strategic resource;

  4. Clarify the agency CIO’s role with respect to program IT, mission IT, and other cases of IT resources included in organizations that are not primarily IT-oriented;

  5. Strengthen the agency CIO’s accountability for the agency’s IT cost, schedule, and performance;

  6. Strengthen the relationship between agency CIOs and bureau CIOs;

  7. Establish consistent government-wide interpretation of FITARA terms and requirements;

  8. Assist agencies in establishing an inclusive governance process that will enable effective planning, programming, budgeting, and execution for IT resources;

  9. Provide transparency on IT resources across entire agencies and programs; and

  10. Provide appropriate visibility and involvement of the agency CIO in the management and oversight of IT resources across the agency to support the successful implementation of cybersecurity policies to prevent interruption or exploitation of program services.

OMB is seeking feedback and suggestions on this proposed guidance by May 30, 2015, but “we strongly encourage you to submit any substantive comments you may have by May 15, 2015.” Comments may be submitted in three ways:

  1. Email at fitara@cio.gov.

  2. Content suggestions and discussions are welcome through GitHub “issues.” “Each issue is a conversation initiated by a member of the public. We encourage you to browse and join in on discussions in existing issues, or start a new conversation by opening a new issue.”

  3. Direct changes and line edits to the content may be submitted through a “pull request” by clicking “Edit This Page.” “You don’t need to install any software to suggest a change. You can use GitHub’s in-browser editor to edit files and submit a pull request for your changes to be merged into the document.” Directions on how to submit a pull request are at https://help.github.com/articles/creating-a-pull-request/. Open pull requests for the draft guidance are at https://github.com/whitehouse/fitara/pulls.


Sexual Orientation, Gender Identity Protected in FAR

Federal Acquisition Circular (FAC) 2005-81 consists of one interim rule that amends the Federal Acquisition Regulation (FAR) to add “gender identity” or “sexual orientation” as personal characteristics that are protected under the equal employment opportunity regulations (see FAR subpart 22.8, Equal Employment Opportunity)

Executive Order 11246, Equal Employment Opportunity, was issued on September 24, 1965, and it prohibited federal contractors from discriminating “against any employee or applicant for employment because of race, creed, color, or national origin.” Executive Order 11375, Amending Executive Order No. 11246, Relating to Equal Employment Opportunity, was issued October 13, 1967, and it added “sex” as a covered category. Executive Order 13672, Equal Employment Opportunity Amendments Regarding Sexual Orientation and Gender Identity, which was issued on July 21, 2014, further amended Executive Order 11246 to add “sexual orientation, gender identity” to the covered categories, so it now reads “race, creed, color, sex, sexual orientation, gender identity, or national origin”. This interim rule implements Executive Order 13672 and the Office of Federal Contract Compliance (OFCCP) implementing regulations. (For more on Executive Order 13672, see the August 2014 Federal Contracts Perspective article “Sexual Orientation and Gender Identity Order Issued.” For more on the OFCCP implementing regulations, see the January 2015 Federal Contracts Perspective article “No Sexual Orientation or Gender Identity Discrimination.”).

This interim rule inserts “sexual orientation, gender identity” between “sex” and “or national origin” wherever they appear in FAR subpart 22.8 and the following clauses that are prescribed in FAR subpart 22.8: FAR 52.222-21, Prohibition of Segregated Facilities; FAR 52.222-26, Equal Opportunity; FAR 52.222-27, Affirmative Action Compliance Requirements for Construction; and FAR 52.222-29, Notification of Visa Denial. In addition, the clause dates for these modified clauses are updated in FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Items, and FAR 52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items). Finally, the following definitions are added to FAR 22.801, Definitions:

Comments on this interim rule must be submitted no later than June 9, 2015, identified as “FAC 2005-81, FAR case 2015-013,” 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.



EPA Removes Source Selection Regulations

The Environmental Protection Agency (EPA) has issued a direct final rule that amends the EPA Acquisition Regulation (EPAAR) by removing Subpart 1515.3, Source Selections, which is inconsistent with new EPA internal guidance for conducting source selections in accordance with FAR part 15, Contracting by Negotiation. In addition, EPA is proposing to revise EPAAR 1552.211-73, Level of Effort – Cost-Reimbursement Term Contract, to update procedures.



DOD Issues Better Buying Power 3.0

Department of Defense (DOD) Under Secretary of Defense for Acquisition, Technology, and Logistics Frank Kendall has issued the third iteration of “Better Buying Power,” which was launched almost five years ago to “deliver better value to the taxpayer and warfighter by improving the way the Department does business.”

The original Better Buying Power (BBP) was issued September 14, 2010, and instituted the following five initiatives, each with principal actions:

BBP 2.0 was issued November 13, 2012, and expanded the number of initiatives to seven (each with actions):

Now, BBP 3.0, Achieving Dominant Capabilities through Technical Excellence and Innovation, builds on many of the BBP 1.0 and 2.0 initiatives. “Some earlier initiatives that may not be included here are still in the process of being implemented, while others are either complete or well underway and not specifically emphasized in BBP 3.0,” writes Mr. Kendall.

The following are the eight initiatives and their 34 principal actions being promulgated in BBP 3.0:

Each of the principal actions contains “general guidance” and assign “specific actions” to various officials to implement that general guidance.

“The theme that ties the content of BBP 3.0 together is an overriding concern that our technological superiority is at risk. Potential adversaries are challenging the U.S lead in conventional military capability in ways not seen since the Cold War. Our technological superiority is based on the effectiveness of our research and development efforts. These efforts span science and technology, component development, early prototyping, full-scale development, and technology insertion into fielded products. The Department’s research and development efforts are conducted by government laboratories, non-profit research institutions, and defense companies both large and small. Innovation comes from all of these sources, but increasingly, it also comes from the commercial sector and from overseas. Our ability to utilize all of these sources of innovation and technology effectively rests on the professionalism of our work force. The BBP 3.0 initiatives are designed to improve the Department’s performance in all of these dimensions.”



NASA Proposes Third, and Final, Set of NFS Revisions

The National Aeronautics and Space Administration (NASA) is issuing the third, and final, in a series of proposed rules that would revise the entire NASA FAR Supplement (NFS) for the first time since 2004 to eliminate unnecessary regulation, streamline overly-burdensome regulation, clarify language, and simplify processes where possible. Two previous sets of proposed revisions to the NFS were finalized in March 2015 (see the April 2015 Federal Contracts Perspective article “Acquisition Regulations Subjected to Spring Cleaning”).

This third proposed rule includes revisions to the following twelve parts of the NFS:

   1801,Federal Acquisition Regulations Systems
   1802,Definitions
   1805,Publicizing Contract Actions
   1807,Acquisition Planning
   1812,Acquisition of Commercial Items
   1813,Simplified Acquisition Procedures
   1823,Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace
   1833,Protests, Disputes and Appeals
   1836,Construction and Architect-Engineer Contracts
   1847,Transportation
   1850,Extraordinary Contractual Actions and the Safety Act
   1852,Solicitation Provisions and Contract Clauses

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

   1803,Improper Business Practices and Personal Conflicts of Interest
   1804,Administrative Matters
   1808,Required Sources of Supplies and Services
   1811,Describing Agency Needs
   1825,Foreign Acquisition
   1839,Acquisition of Information Technology
   1835,Research and Development Contracting
   1845,Government Property
   1848,Value Engineering
   1872,Acquisition of Investigations

NASA analyzed the NFS to determine whether any portions should be modified, streamlined, expanded, or repealed to make it more efficient and effective. Special emphasis was placed on identifying and eliminating or simplifying overly burdensome processes that could be streamlined without jeopardizing mission effectiveness. In addition, NASA identified current regulatory coverage that is not regulatory in nature, and to remove or relocate such coverage to internal guidance. Also, this proposed rule includes administrative changes necessary to make minor corrections and updates, such as deleting dollar figures but retaining references to the thresholds in the FAR – if a threshold is changed in the FAR, the NFS will continue to be correct and will not require to be amended through the rulemaking process to reflect the FAR change.

Comments on this proposed rule must be submitted no later than June 8, 2015, identified as “RIN number 2700-AE19,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) email: cynthia.d.boots@nasa.gov.



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