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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


June 2016
Vol. XVII, No. 6
[pdf version]

CONTENTS


FAC 2005-88 Requires Safeguards of Contractor Information Systems
Four More FAR Rules Proposed
Defense Rouses Itself
GSA Addresses Unenforceable Supplier Terms



FAC 2005-88 Requires Safeguards of
Contractor Information Systems

Federal Acquisition Circular (FAC) 2005-88 revises the Federal Acquisition Regulation (FAR) to impose standard safeguards protecting federal information residing or passing through contractors’ information systems. In addition, FAC 2005-88 amends the FAR to require the procurement of alternatives to high global warming potential hydrofluorocarbons whenever feasible, addresses phase-two proposals for a two-phase design-build construction acquisition, and amends the definition of “simplified acquisition threshold” (SAT) to correct the omission of the higher SAT for overseas acquisitions in support of humanitarian or peacekeeping operations.



Four More FAR Rules Proposed

The FAR Council has been resting during the first third of the year, only issuing three proposed rules. Now it appears to be rousing itself, proposing four FAR rule changes during May.



Defense Rouses Itself

After a sleepy April, the Department of Defense (DOD) decided that May was the time to resume revising the Defense FAR Supplement (DFARS), issuing five final rules, two proposed rules, and one class deviation.



GSA Addresses Unenforceable Supplier Terms

The General Services Administration (GSA) is proposing to amend the GSA Acquisition Regulation (GSAR) to address common commercial supplier agreement terms that are inconsistent with or create ambiguity with federal Law.

Customarily, commercial supplies and services are offered to the public under standard agreements, such as license agreements, terms of service (TOS), End User License Agreements (EULA), and terms of sale or purchase. These standard commercial supplier agreements typically contain terms and conditions that make sense when the purchaser is a private party but are inappropriate when the purchaser is the federal government. Discrepancies between commercial supplier agreements and federal law or the government’s needs create recurrent points of inconsistency, and GSA and its contractors must spend significant time and resources to negotiate out these terms. Therefore, GSA is proposing to amend GSAR 552.212-4, Contract Terms and Conditions – Commercial Items (FAR DEVIATION), to add paragraph (w) to FAR 52.212-4 to address the following:

Furthermore, the following additional changes would be made to the GSAR:

Comments on this proposed rule must be submitted no later than August 1, 2016, identified as “GSAR Case 2015-G512,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, ATTN: Ms. Flowers, Washington, DC 20405.





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