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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


June 2015
Vol. XVI, No. 6
[pdf version]

CONTENTS


FAR Council, Labor Issue Proposed Regulations, Guidance on “Fair Pay and Safe Workplaces” Executive Order
FAC 2005-82 Finalizes Three Rules
DOD Finalizes, and Proposes, More DFARS Changes
Sole Source WOSB/EDWOSB Contracts Proposed
GSA Addresses Acquisition Process
Four Agencies Address Their Acquisition Supplements



FAR Council, Labor Issue Proposed Regulations, Guidance on
“Fair Pay and Safe Workplaces” Executive Order

The Federal Acquisition Regulatory Council and the Department of Labor (DOL) have responded to Executive Order 13673, Fair Pay and Safe Workplaces, by issuing proposed changes to the Federal Acquisition Regulation (FAR) and proposed guidance to assist contractors with complying with the executive order, which is intended to improve contractor compliance with labor laws and increase efficiency and cost savings in contracting (for more on Executive Order 13673, see the September 2014 Federal Contracts Perspective article “Obama Issues Order Requiring That Contractors Provide ‘Fair Pay and Safe Workplaces’”). The FAR Council and DOL collaborated on both documents to ensure they are compatible with each other and accurately portray the executive order’s requirements.

The provisions of the executive order apply to contracts and subcontracts that exceed $500,000. The executive order requires that each offeror represent, prior to contract award, “whether there has been any administrative merits determination, arbitral award or decision, or civil judgment...rendered against the offeror within the preceding three-year period for violations” of any of 14 labor laws and executive orders.

If an offeror discloses a violation within the previous three years, the contracting officer (prior to making an award and as part of the responsibility determination conducted in accordance with FAR subpart 9.1, Responsible Prospective Contractors) must give the offeror an opportunity to disclose any steps taken to correct the violations of or improve compliance with the labor law(s).

Furthermore, the executive order requires every covered contractor to update its information every six months and update the information provided by covered subcontractors.

The following are the changes proposed to be included in new FAR subpart 22.20, Fair Pay and Safe Workplaces:

In addition, various FAR sections would be revised to conform to this rule, such as FAR 52.212-3, Offeror Representations and Certifications – Commercial Items, and FAR 52.204-8, Annual Representations and Certifications.

Comments on this proposed rule must be submitted no later than July 27, 2015, identified as “FAR Case 2014-025,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW, 2nd Floor, Washington, DC 20405.

The following is what would be included in DOL’s guidance (the introduction to the proposed guidance states that it “satisfies most of the department’s [DOL’s] responsibilities for issuing guidance, and the department will publish at a later date a second guidance that satisfies its remaining responsibilities”):



FAC 2005-82 Finalizes Three Rules

Federal Acquisition Circular (FAC) 2005-82 has finalized two interim rules that amended the Federal Acquisition Regulation (FAR) and one rule that proposed to amend the FAR. In addition, two additional rules have been proposed that would amend the FAR, and comments on those two rules are being solicited.



DOD Finalizes, and Proposes, More DFARS Changes

After a two month hiatus, the Department of Defense (DOD) resumed its relentless revision of the Defense FAR Supplement (DFARS), finalizing five rules and proposing two new ones. In addition, the Defense Logistics Agency (DLA) is proposing to add a clause to its regulations.



Sole Source WOSB/EDWOSB Contracts Proposed

The Small Business Administration (SBA) is proposing to amend its regulations in Title 13 of the Code of Federal Regulations (CFR), Part 127, Women-Owned Small Business Federal Contract Program (13 CFR part 127), to implement Section 825 of the National Defense Authorization Act for Fiscal Year 2015 (NDAA) (Public Law 113-291), which gives contracting officers the authority to award sole source contracts to Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) (see the January 2015 Federal Contracts Perspective article “Authority to Use Simplified Procedures for Commercial Items Up to $6,500,000 Made Permanent”).

To implement Section 825, SBA is proposing to make the following changes to 13 CFR part 127:

Comments on this proposed rule must be submitted no later than July 30, 2015, identified as “RIN: 3245-AG72,” 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 Policy, Planning & Liaison, 409 Third Street SW, 8th Floor, Washington, DC 20416. SBA will not accept comments on this proposed rule submitted by email.



GSA Addresses Acquisition Process

The General Services Administration (GSA) addressed various aspects of its acquisition process during May: a notice clarifying data elements under the Federal Supply Schedule; a final rule removing GSA Acquisition Regulation (GSAR) 552.211-93, Unique Item Identification; and a request for comments and a proposed update to the Federal Procurement Data System Product Service Code Manual.



Four Agencies Address Their Acquisition Supplements

Besides DOD, GSA, and SBA (and the FAR), four other agencies made changes, or proposed changes, to their agency acquisition supplements: the Departments of Commerce and Housing and Urban Development, the National Aeronautics and Space Administration, and the Environmental Protection Agency.





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