Panoptic Enterprises’


Federal Acquisition Developments, Guidance, and Opinions

February 2016
Vol. XVII, No. 2
[pdf version]


Small Business Size Standards Raised, Increasing Number of Eligible Businesses by Thousands
Two Changes Proposed to the FAR
GSA Removes Unnecessary Construction Clauses
DOD Instituting Enduring Contingency Clause Initiative

Small Business Size Standards Raised,
Increasing Number of Eligible Businesses by Thousands

The Small Business Administration (SBA) has issued three rules that revise small business size standards by either increasing the monetary-based small business size standards (that is, receipts, assets, net worth, and income) for inflation or increasing the employee-based size standards. These increases to the small business size standards are expected to enable nearly 6,000 more businesses in those industries to obtain or retain small business status, will give federal agencies a larger pool of small businesses from which to choose for their procurement programs; and will make more small businesses eligible for SBA’s loan programs. In addition, SBA finalized an interim rule that had increased most industry specific monetary-based size standards by 8.73% in 2014 to reflect the inflation that had occurred since the last adjustment for inflation in 2008. These changes are the result of SBA’s comprehensive size standards review that was mandated by Section 1344 of the Small Business Jobs Act of 2010 (Public Law 111-240 – for more on this law, see the October 2010 Federal Contracts Perspective article “Parity Among Small Business Programs Mandated by Statute”). All these changes are made to the SBA’s regulations in Title 13 of the Code of Federal Regulations, Section 121.201, What size standards has SBA identified by North American Industry Classification System codes? (13 CFR 121.201).

Two Changes Proposed to the FAR

January was a quiet month for the Federal Acquisition Regulation (FAR), with only two rules being proposed: one regarding the timely payment of small business subcontractors; the other regarding the prohibition of contractor employee confidentiality agreements.

GSA Removes Unnecessary Construction Clauses

The General Services Administration (GSA) is finalizing, without changes, the rule that proposed to remove unnecessary construction clauses from the GSA Acquisition Regulation (GSAR) part 552, Solicitation Provisions and Contract Clauses.

GSA is removing the following seven construction clauses and their corresponding prescriptions in GSAR subpart 536.5, Contract Clauses, which are now either covered in the FAR or are no longer necessary for the agency (their prescriptions, which are also being removed, are in parentheses following the clause):

The first six clauses are removed because they address technical details contained in a contract’s (or task order’s) scope of work or specifications, so a clause is unnecessary. GSAR 552.236-83 is removed because it conflicts with FAR subpart 22.5, Use of Project Labor Agreements for Federal Construction Projects, and FAR 52.222-33, Notice of Requirement for Project Labor Agreement.

In addition, GSAR 536.101, Applicability, which stated “if a requirement in this part is inconsistent with a requirement in another GSAR part, this part takes precedence”, is revised to read: “This part supplements FAR part 36 [Construction and Architect – Engineer Contracts] policies and procedures applicable to contracting for construction and architect-engineer services. Contracts for construction management services are covered by FAR part 37 [Service Contracting] and GSAM part 537. [GSAM] Part 536 shall take precedence when the acquisition involves construction or architect-engineer services, and when the requirement is inconsistent with another part of the GSAR.”

No comments were submitted in response to the proposed rule, so it is finalized without changes. For more on the proposed rule, see the August 2015 Federal Contracts Perspective article “GSA to Remove Unnecessary Construction Clauses.”

DOD Instituting Enduring Contingency Clause Initiative

To avoid the recurring need for ad-hoc contingency contracting policies, processes, and guidance, the director of Defense Procurement and Acquisition Policy (DPAP) has issued a memorandum to each of the services’ deputy assistant secretaries for procurement and directors of defense agencies and field activities requesting that they provide “current contingency contract related class deviations, local clauses, policies, processes, and/or guidance that may be deemed as enduring...” The DPAP director is requesting that these be submitted to the DPAP Contingency Contracting (CC) office by February 29, 2016.

“DPAP/CC’s approach is to determine contingency contracting commonalities amongst combatant commands (CCMDs) and to incorporate them into the DFARS [Defense FAR Supplement] and PGI [Procedures, Guidance and Information] accordingly. Additionally, DPAP/CC plans to collect and document theater-unique contingency contracting policies, processes, and guidance. This initiative will assist the CCMDs in ensuring such requirements are standardized, retainable, and understood by commanders, contingency contracting officers (CCOs), and other contracting support personnel...As this plan matures and strategic initiatives are worked, these details will be provided to the field.”

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