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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


December 2004
Vol. V, No. 12

CONTENTS


DFARS Transformation in Full Gear
Safavian Confirmed to Head OFPP
Proposed FAR Rule Addresses "FedTeDS"
OMB Releases First Set of FY 2004 FAIR Act Inventories
Two Nonmanufacturer Rules Waived, One Terminated
Rejected DPAS Orders Could Be Transmitted Electronically



DFARS Transformation in Full Gear,
"Procedures, Guidance, and Information" Added

The Department of Defense (DOD) got its "Defense Federal Acquisition Regulation Supplement (DFARS) Transformation" off to a fast start in November with the publication of 16 final rules, most of which are the product of proposed rules published February 23, 2004 (see the March 2004 Federal Contracts Perspective article "DFARS Transformation Gets Underway, Public Requested to Comment on 14 Proposed Rules"), one interim rule, and four proposed rules.

The DFARS Transformation is intended to improve the efficiency and effectiveness of the acquisition process while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will include only requirements of law, DOD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies and procedures that have a significant effect beyond the internal operating procedures of DOD or a significant cost or administrative impact on contractors or offerors. In addition, a DFARS companion called the "Procedures, Guidance, and Information" (PGI), is established. The PGI contains mandatory and non-mandatory internal DOD procedures, non-mandatory guidance, and supplemental information.



Safavian Confirmed to Head OFPP

On November 20, the Senate confirmed David Safavian as the new administrator for the Office of Federal Procurement Policy (OFPP). He replaces Angela Styles, who resigned as OFPP administrator September 15, 2003, after leading the major revision of the Office of Management and Budget (OMB) Circular A-76, Performance of Commercial Activities (see the October 2003 Federal Contracts Perspective article "Angela Styles Resigns as OFPP Administrator").

Safavian was the chief of staff for the General Services Administration (GSA) for about a year prior to his nomination. However, following Safavian's confirmation hearing in April 2004 and the Senate Government Affairs committee approval of the nomination in June, Senator Robert Byrd (D-WV) put a hold on the nomination, preventing the full Senate from voting on the nomination. Byrd did this because of his concerns about how Safavian would carry out the Bush administration's A-76 agenda, an agenda the senator opposed. After Safavian and Byrd met privately in the summer, Byrd lifted the hold, but by then the Senate would not take up any of President Bush's nominations until after the election results.

While Safavian was awaiting confirmation, he was a special assistant to OMB Deputy Director for Management Clay Johnson. Before coming to GSA, Safavian worked for Representative Chris Cannon (R-UT) and former Representatives William Schuette (R-MI) and Robert Davis (R-MI). He has a master's degree in tax law from Georgetown University, and a law degree from Michigan State University.



Proposed FAR Rule Addresses "FedTeDS"

On November 1, a proposed rule was published that would amend the FAR to provide for access and distribution of solicitation requirements or other documents (such as technical specifications, maps, building designs, and schedules) through the Federal Technical Data Solution (FedTeDS) website (https://www.fedteds.gov) instead of through FedBizOpps (http://www.fedbizopps.gov) when controls on the release and distribution of such information are necessary. (EDITOR'S NOTE: For more on FedTeDS, see the April 2003 Federal Contracts Perspective article "OMB Unveils Website to Safeguard Sensitive Information.")

Under FAR 5.101, Methods of Disseminating Information, contracting officers are required to use FedBizOpps, the "governmentwide point of entry" (GPE), to publish information about proposed contract actions estimated to be $25,000 or more. FAR 5.102, Availability of Solicitations, encourages contracting officers to "make accessible through the GPE additional information related to a solicitation" when practicable and cost-effective. However, because FedBizOpps is freely accessible, it is not appropriate for disseminating "sensitive but unclassified" (SBU) information related to operations, systems, structures, individuals, and services essential to the security and management of a facility, including telecommunications, electrical power, building facility structural layout, gas and oil storage and transportation, water supply, schedules, and security clearance requirements. Much of this information could pose a threat to national security if made public. A secure solution, FedTeDS, has been developed for this purpose.

Agencies will still be required to synopsize and post their solicitations on FedBizOpps. However, agencies will be able to monitor access and distribution of its SBU information by providing a link from FedBizOpps to FedTeDS. Once in FedTeDS, the vendor will be able to download a copy of the information or request it on a compact disc. However, to download the information or request a disc, the vendor must be registered in both the Central Contractor Registration (CCR) (http://www.ccr.gov) and FedTeDS. To register in FedTeDS, the vendor must have the Marketing Partner Identification Number (MPIN) it created when registering in CCR. The MPIN, together with the vendor's Commercial and Government Entity (CAGE) number or DUNS number, is used to register and obtain a password in FedTeDS. Because the vendor defines it, the MPIN with the CAGE or DUNS number provides a unique identifier for the individual obtaining the information.

Comments on the proposed rule must be submitted by January 3, 2005, to (1) http://www.regulations.gov; (2) http://www.acqnet.gov/far/ProposedRules/proposed.htm; (3) e-mail: farcase.2004-007@gsa.gov; (4) fax: 202-501-4067; or (5) mail: General Services Administration, Regulatory Secretariat (MVA), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405. Cite "FAR Case 2004-007" when commenting on this proposed rule.



OMB Releases First Set of FY 2004 FAIR Act Inventories

On November 17, the Office of Management and Budget (OMB) released the first set of Fiscal Year 2004 Commercial Activities Inventories of non-governmental functions being performed by government agencies. These inventories are required to be compiled and made available to the public by the Federal Activities Inventory Reform (FAIR) Act of 1998. Inventories in this first set are from the Departments of Energy, Health and Human Services, and Transportation; the National Aeronautics and Space Administration; the Social Security Administration; and several small agencies and commissions. Interested parties have until January 5, 2005, to challenge the omission or inclusion of an activity on an agency's Commercial Activities Inventories list.



Two Nonmanufacturer Rules Waived, One Terminated

The SBA has decided to waive the nonmanufacturer rule for sporting and athletic goods manufacturing under North American Industry Classification System (NAICS) code 339920, and other communications equipment manufacturing under NAICS code 334290, because no small business manufacturers are currently supplying these classes of products to the federal government. These waivers allow otherwise qualified nonmanufacturers to supply the products of any domestic manufacturer on a federal contract set aside for small businesses, set aside for service-disabled veteran-owned small businesses, or awarded through the SBA's 8(a) program. (EDITOR'S NOTE: For more on the proposed waivers, see the September 2004 Federal Contracts Perspective article "SBA Proposes Six Nonmanufacturer Rule Waivers.")

In addition, SBA is terminating consideration of a proposed waiver of the nonmanufacturer rule for power-driven handtools manufacturing under NAICS code 333991 because of its recent discovery of a small business manufacturer for this class of products. (EDITOR'S NOTE: For more on the proposed waiver, see the September 2004 Federal Contracts Perspective article mentioned above.)



Rejected DPAS Orders Could Be Transmitted Electronically

A proposed rule would amend the Defense Priorities and Allocations System (DPAS) regulations to allow a person who has rejected a rated order to give his or her reasons for the rejection through electronic means rather than requiring the person to submit the rationale in writing.

Paragraph (d)(1) of 15 CFR 700.13, Acceptance and Rejection of Rated Orders, requires persons to transmit rejections of DPAS rated orders in writing. Industry has asserted that the current procedure hampers efficiency. This proposed rule would amend paragraph (d)(1) to give a person the option of transmitting his rationale for rejecting a rated order to the appropriate contracting officer or agency in writing or electronically. This change would allow the information to be transmitted more quickly.

Comments on the proposed rule must be submitted by December 22, 2004, to http://www.regulations.gov; to William J. Denk, Director of the Defense Programs Division, Office of Strategic Industries and Economic Security, Room 3876, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; fax: 202-482-5650; or by e-mail to wdenk@bis.doc.gov.

EDITOR'S NOTE: The DPAS regulations are in Title 15 of the Code of Federal Regulations (CFR), Part 700 (15 CFR Part 700).



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