Vol. IV, No. 2
FAC 2001-11 Extends FAR Subpart 13.5 to 2004, FAC 2001-12 Simplifies Buys Against Terrorism
Automobile Reimbursement Reduced to 36 Cents/Mile
GAO Revises Protest Regulations
GSA Proposes Charging for FedBizOpps E-Mail Notification
State, Local Governments Use of IT Schedules Proposed
DOD Extends Suspension of SDB Evaluation Adjustments
VA Adopts Simplified Procedures for Health-Care
EPA Proposes Background Checks for On-Site Employees
Two little Federal Acquisition Circulars (FACs) were issued on December 31, 2002, and January 27, 2003: FAC 2001-11, which extends Federal Acquisition Regulation (FAR) Subpart 13.5, Test Program for Certain Commercial Items, and the Section 508 micro-purchase exception sunset provision in paragraph (a) of FAR 39.204, Exceptions; and FAC 2001-12, which amends the FAR to implement the provisions of the Homeland Security Act (Public Law 107-296) that provide streamlined procedures for procurements of supplies or services "to be used to facilitate defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack."
The General Services Administration (GSA) is amending Federal Travel Regulation (FTR) 301-10.303, What am I reimbursed when use of a POV is determined by my agency to be advantageous to the Government?, to reduce the mileage reimbursement rate for use of a privately owned automobile on official travel from 36.5 cents per mile to 36.0 cents per mile; for use of a privately owned airplane from 97.5 cents per mile to 95.5 cents per mile; and for use of a privately owned motorcycle from 28.0 cents per mile to 27.5 cents per mile. This reduction reflects the current costs of operation as determined in GSA's cost studies.
The same statute that directs the Administrator of General Services to establish the POV mileage reimbursement rates also provides that the automobile reimbursement rate cannot exceed the single standard mileage rate established by the Internal Revenue Service (IRS). The IRS announced a new single standard mileage rate for automobiles of 36.0 cents per mile effective January 1, 2003, so the new FTR rate of 36.0 cents per mile conforms with the IRS rate.
On December 31, 2002, the General Accounting Office (GAO) finalized, with changes, the revisions it proposed on October 1, 2002, to its bid protest regulations to conform to current practice and to improve their overall efficiency and effectiveness (for more on the proposed revisions, see the November 2002 Federal Contracts Perspective article "GAO Proposes Revisions to Bid Protest Regulations").
GAO's protest regulations, are in Title 4 of the Code of Federal Regulations (CFR), Part 21, and they govern offeror protests filed with the GAO against alleged improprieties in the government's conduct of acquisitions (GAO's protest regulations are available at http://www.gao.gov/special.pubs/og96024.htm). FAR 33.104, Protests to the GAO, provides an overview of the protest process and procedures. However, if there is a conflict between GAO's regulations and the FAR, GAO's regulations govern.
The most significant changes in the October 1, 2002, proposed rule were:
GAO received comments from three federal agencies, two law firms, andd one bar association. In response to several of the comments, GAO will include clarification or elaboration in "Bid Protests at GAO: A Descriptive Guide." Other comments convinced GAO to make two changes to the final version of the regulations:
The General Services Administration (GSA) is proposing to charge subscribers a $30 annual fee beginning October 1, 2003, for the value-added e-mail notification service of Federal Business Opportunities (http://www.FedBizOpps.gov).
FedBizOpps is the governmentwide point of entry where government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public (FedBizOpps is discussed in Federal Acquisition Regulation (FAR) Part 5, Publicizing Contract Actions).
GSA manages FedBizOpps, and it currently provides, at no charge, an added-value e-mail notification service to the public (listed on the site as "Vendor Notification Service"). There are three options from which to choose:
To help GSA recover some of the costs associated with providing these value-added services, GSA is planning to charge subscribers choosing options 2 and 3 a $30 annual fee beginning October 1, 2003. The public will continue to be able to register to receive all notices related to a specific solicitation at no charge. Also, the public will still be able to access, free of charge, all postings on FedBizOpps and download all synopses daily. In other words, those who do not want to visit FedBizOpps on a daily basis will have to pay GSA $30 to send notices of solicitations and contract awards.
GSA anticipates adjusting the subscription cost annually based on subscriptions from the prior year so that the charges to the public represent a fair share of the costs of the FedBizOpps operations. To compare this charge, GSA points out that the predecessor to FedBizOpps, the Commerce Business Daily (CBD), charged $316 a year for its paper publication and $11,500 for its daily electronic file (CBDNet), and that CBDNet did not provide value-added email notification services.
To implement this charge, GSA would amend the GSA Acquisition Regulation (GSAR) by adding the following as GSAR 505.102, Availability of Solicitations:
|The General Services Administration (GSA), as the manager of the Federal Business Opportunities (FedbizOpps.gov) site, will charge a nominal fee to recover costs of operations for value-added services, specifically for an e-mail notification service to the public for FedBizOpps activities, to --|
| (a) Receive all notices from selected organizations and product service classifications; or|
(b) Register to receive all procurement notices.
(EDITOR'S NOTE: The GSAR is the shaded part of the GSA Acquisition Manual, which is available on the Internet at http://www.acqnet.gov/GSAM/gsam.html.)
Comments on this proposed rule must be submitted by February 10, 2003, to General Services Administration, Office of Acquisition Policy, Division (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405; or by e-mail to: email@example.com. Cite "GSAR Case 2002-G501" in all correspondence related to proposed rule.
GSA is proposing to amend the GSAR to implement Section 211 of the E-Government Act of 2002 (Public Law 107-347), which authorizes GSA to permit state and local governments to use its federal supply schedule for "automated data processing equipment (including firmware), software, supplies, support equipment, and services (as contained in Federal Supply Classification Code Group 70)."
Section 211 of the E-Government Act of 2002 amends the Federal Property and Administrative Services Act to allow the GSA Administrator to authorize "cooperative purchasing" to permit state, local, regional, or tribal governments to acquire automated data processing equipment (including firmware), software, supplies, support equipment, and services from Federal Supply Schedule Group 70.
The proposed rule would establish a new GSAR Subpart 538.70, Cooperative Purchasing, and associated clauses to address cooperative purchasing from supply schedules by eligible non-federal organizations. New GSAR Subpart 538.70 would define the scope of cooperative purchasing, its usage, and applicable terms and conditions, including payment and the handling of disputes. However, the most important portion of the proposed rule is new contract clause GSAR 552.238-79, Use of Federal Supply Schedule Contracts by Certain Entities -- Cooperative Purchasing, which would provide the following:
Comments on the proposed rule must be submitted by March 23, 2003, to General Services Administration, Regulatory Secretariat (MVA), 1800 F Street, NW, Room 4035, Attn: Laurie Duarte, Washington, DC 20405, or by e-mail to: GSARcase.2002-G505@gsa.gov. Cite "2002-G505" in all correspondence related to proposed rule.
On January 24, 2003, Director of Defense Procurement and Acquisition Policy Deidre Lee issued a memorandum suspending until February 24, 2004, the use of the 10% price evaluation adjustment for small disadvantaged businesses (SDBs) prescribed in FAR Subpart 19.11, Price Evaluation Adjustment for Small Disadvantaged Business Concerns.
This action was taken to comply with Section 801 of the National Defense Authorization Act for Fiscal Year 1999 (Public Law 105-261), which prohibits the Department of Defense (DOD) from paying a price that exceeds the fair market cost if the secretary of defense determines that DOD achieved its 5% goal for contract awards to SDBs in the most recent fiscal year.
Title 10 of the U.S. Code, Section 2323, Contract Goal for Small Disadvantaged Businesses and Certain Institutions of Higher Education, sets for the DOD, the National Aeronautics and Space Administration (NASA), and the Coast Guard a 5% goal of contract awards to SDBs, historically Black colleges and universities (HBCUs), and minority institutions (MIs). Subsection 2323(e) authorizes DOD, NASA, and the Coast Guard to take actions to achieve this 5% goal, including the payment of a price that exceeds the fair market cost by no more than 10%.
FAR Subpart 19.11 provides for the application of a price evaluation adjustment to competitive offers of SDBs that exceed the $100,000 simplified acquisition threshold and are not set aside for small businesses in industries determined by the Department of Commerce to have "persistent and significant underutilization of minority firms." The Department of Commerce has determined that a 10% price evaluation adjustment is appropriate for 56 industries (the list of industries is on the Internet at http://www.arnet.gov/References/sdbadjustments.htm).
Since the secretary of defense determined that DOD exceeded the 5% goal during fiscal year 2001, the use of the 10% price evaluation adjustment had to be suspended, as it has been since February 24, 2000.
The Department of Veterans Affairs (VA) is adding VA Acquisition Regulation (VAAR) Part 873, Simplified Acquisition Procedures for Health-Care Resources, to implement the Veterans' Health Care Eligibility Reform Act of 1996 (Public Law 104-262), which authorizes VA to adopt simplified acquisition procedures for health-care resources consisting of commercial services or the use of medical equipment or space.
On June 7, 2001, VA published a proposed rule to add VAAR Part 873, which would permit VA contracting officers to limit competition to the extent determined reasonable for the circumstances of each covered acquisition (see the July 2001 Federal Contracts Perspective article "Simplified Procedures Proposed for VA Health-Care"). Among the more significant provisions of the proposed rule were:
No comments on the proposed rule were received, so VA is finalizing the proposed rule without change. Since VAAR Part 873 applies only to acquisitions for health-care resources, it applies only to the Veterans Health Administration (VHA), one of the three VA administrations.
EDITOR'S NOTE: The VAAR is available on the Internet at http://www.va.gov/oa&mm/vaar/.
Because the events of September 11, 2001, have heightened both government and private industry awareness about protecting facilities and the personnel who work in them, the Environmental Protection Agency (EPA) is proposing to require contractors and subcontractors to perform background checks and make suitability determinations for their employees who are performing services on or within federally-owned or leased space and facilities, commercial space primarily occupied by federal employees, and Superfund sites.
To the EPA Acquisition Regulation (EPAAR) would be added EPAAR 1552.211-81, Background Checks for EPA Contractors Performing Services On-Site, which would require the contractor or subcontractor to complete background checks and make suitability determination ("a determination that there are reasonable grounds to believe that an individual will likely be able to perform the contract requirements on-site without undue risk to the interests of the government and the national security") on each of its employees prior to the employee beginning on-site work, and notify the contracting officer that the background checks and suitability determinations have been completed for affected individuals.
"At a minimum, the background check and suitability determination must include an evaluation of: (i) law enforcement checks (federal, state, and local for the past 5 years); (ii) credit report; (iii) Social Security Number trace; (iv) verification of U.S. citizenship or legal resident status; (v) employment history (past 5 years); (vi) education history (highest degree verified); (vii) references (3 individuals); (viii) residence (past 3 years); (ix) military service discharge notice; and (x) professional license and certification...In making a suitability determination, the contractor shall consider the following factors and evaluate them against the work to be performed, the performance location, and the degree of risk to the government: (i) any loyalty or terrorism issue; (ii) patterns of conduct (e.g., alcohol ism/drug addiction, financial irresponsibility/major liabilities, dishonesty, unemployability for negligence or misconduct, criminal conduct); (iii) dishonorable military discharge; (iv) felony and misdemeanor offenses; (v) drug manufacturing/trafficking/ sale; (vi) major honesty issue (e.g., extortion, armed robbery, embezzlement, perjury); (vii) criminal sexual misconduct; (viii) serious violent behavior (e.g., rape, aggravated assault, arson, child abuse, manslaughter); (ix) illegal use of firearms/explosives; and (x) employment related misconduct involving dishonesty, criminal or violent behavior..."
Comments on the proposed rule must be submitted no later than March 24, 2003, to EPA Dockets at http://www.epa.gov/edocket; e-mail to firstname.lastname@example.org; or mail to by mail (three copies) to OEI Docket, EPA Docket Center (28221T), 1200 Pennsylvania Ave., NW, Washington, DC, 20460, Attention Docket ID No. OARM-2002-0001.
EDITOR'S NOTE: The EPA Acquisition Regulation (EPAAR) is available on the Internet at http://www.epa.gov/oamrfp12/ptod/epaar.pdf.
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