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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


October 2006
Vol. VII, No. 10

CONTENTS


Micro-Purchase, Cost or Pricing Data, 8(a) Competition Thresholds Adjusted
More Changes to Lobbying Restrictions Proposed
DOD Restricts Use of "Tiered Evaluations"
Direct-Hire Authority for Acquisition Positions Approved
Equal Opportunity Survey Rescinded
Federal Awards Website Approved
Nonmanufacturer Rule for Plastic Pallets Waived



Micro-Purchase, Cost or Pricing Data,
8(a) Competition Thresholds Adjusted for Inflation

Federal Acquisition Circular (FAC) 2005-13 amends various acquisition-related thresholds for inflation as required by law every five years. In addition, FAC 2005-13 implements the Office of Management and Budget (OMB) policy on the use of brand name specifications; requires each agency to report to Congress on acquisitions of articles, materials, and supplies that are manufactured outside the United State; and finalizes several interim rules.



More Changes to Lobbying Restrictions Proposed

The FAR Council is proposing to amend FAR Subpart 3.8, Limitation on the Payment of Funds to Influence Federal Transactions, and FAR 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions, to implement statutory changes since the enactment of the Byrd Amendment and to increase the use of plain language.

The Byrd Amendment was enacted in 1989 as Section 319 of the Department of Interior and Related Agencies Appropriations Act (Public Law 101-121). It prohibits the recipients of federal contracts, grants, loans and cooperative agreements from using appropriated funds for lobbying the executive or legislative branches of the federal government in connection with a specific contract, grant, loan or cooperative agreement. Also, it requires those who receive a federal contract, grant, or cooperative agreement in excess of $100,000, or a loan or federal commitment to insure or guarantee a loan, in excess of $150,000, to disclose lobbying with other than appropriated funds. Approximately 300 disclosures are received annually from states, local governments, non-profit organizations, individuals, and businesses.

In 1990, an interim rule was published that implemented the Byrd Amendment by adding FAR Subpart 3.8 and FAR 52.203-11. This interim rule was not finalized until 2005 (see the November 2005 Federal Contracts Perspective article "FAC 2005-06 Addresses IT Security, Cancels SDB Price Evaluation Adjustment for Civilian Agencies"). The final rule made minor corrections to the interim rule, but it was recognized that additional analysis needed to be conducted to determine if further changes were required based on developments since 1990, particularly the enactment of the Lobbying Disclosure Act of 1995, which simplified the disclosure and reporting requirements of the Byrd Amendment.

The Lobbying Disclosure Act requires the recipient ("the contractor and all subcontractors") to identify the name of any lobbyist who has made lobbying contacts on behalf of the person, but the recipient is not required to provide information on amounts paid or descriptions of services performed, including identification of who was contacted.

This proposed rule would amend FAR Subpart 3.8 and FAR 52.203-11 to implement the Lobbying Disclosure Act and OMB guidance on compliance with the Byrd Amendment and the act, but the rule consists primarily of clarifications, plain language changes, FAR drafting conventions, and editorial corrections.

Comments on the proposed rule must be submitted by November 13, 2006, by any of the following methods: (1) eRulemaking Portal: http://www.regulations.gov/far; (2) fax: 202-501-4067; or (3) mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405. Identify such comments as "FAC 2005-13, FAR case 2005-035."



DOD Restricts Use of "Tiered Evaluations"

The Department of Defense (DOD) has amended the DOD FAR Supplement (DFARS) to limit the use of a procedure called "tiered evaluation of offers" for contracts and for task or delivery orders under contracts. In addition, the DFARS is amended to update the text on acquisition planning, to prohibit the acquisition of items on the United States Munitions List from Communist Chinese military companies, and to require that contractor personnel who interact with detainees receive training regarding the applicable international obligations and laws of the United States.



Direct-Hire Authority for Acquisition Positions Approved

The Office of Personnel Management (OPM) has finalized regulations authorizing non-DOD agencies to recruit and appoint highly qualified individuals for certain federal acquisition positions deemed a shortage category under Section 1413 of the Services Acquisition Reform Act (Public Law 108-136). This "direct-hire" authority expires September 30, 2007. It is addressed in Title 5 of the Code of Federal Regulations (CFR); Part 337, Examining System; Sections 337.204, Severe Shortage of Candidates (5 CFR 337.204), and 337.206, Terminations, Modifications, Extensions, and Reporting (5 CFR 337.206).

To use this authority, the head of the agency must determine that a shortage of highly qualified acquisition candidates exists. In doing so, the head of the agency must use the following supporting evidence and maintain a file of that supporting evidence:

Also, agencies must comply with public notice requirements by posting job announcements on OPM's USAJOBS website (http://www.usajobs.gov).



Equal Opportunity Survey Rescinded

The Office of Federal Contract Compliance Programs (OFCCP) has concluded that the Equal Opportunity (EO) Survey, which was originally promulgated in 2000, does not provide value to either OFCCP enforcement or contractor compliance, so it is discontinuing the EO Survey and removing 41 CFR 60-2.18, Equal Opportunity Survey, which required "a substantial portion of all nonconstruction contractor establishments" to submit a new survey each year (OFCCP interpreted "a substantial portion" to mean "half"). The EO Survey contained information about personnel activities, compensation and tenure data, and certain information about the contractor's affirmative action program.

OFCCP had two studies conducted, and they concluded the EO Survey was not a good predictor of noncompliance that would assist OFCCP in targeting those contractors engaging in systemic discrimination -- they found its predictive power to be only slightly better than chance.

OFCCP published a notice of proposed rulemaking on January 20, 2006, and 2,736 comments were submitted in response: 1,707 comments (62%) supported the proposal to discontinue the EO Survey, and 1,029 comments (38%) opposed the proposal. OFCCP concluded that the rescission of the EO Survey would allow it to "better direct its resources for the benefit of victims of discrimination, the government, contractors, and taxpayers."



Federal Awards Website Approved

On September 26, President Bush signed Public Law 109-282, the Federal Funding Accountability and Transparency Act of 2006, which requires, by January 1, 2008, the establishment of a single searchable website, accessible by the public at no cost, that includes information on all contracts, subcontracts, purchase orders, task orders, delivery orders, grants, subgrants, loans, cooperative agreements, and other forms of financial assistance that exceed $25,000. The website is to contain data for fiscal year 2007 and all awards in subsequent years. Individual recipients of federal assistance and federal employees are exempt from inclusion.

Data on contracts will be obtained from the Federal Procurement Data System -- Next Generation (FPDS-NG) (https://www.fpds.gov/). However, data on grants will be more problematic because there is no standard reporting system currently in existence. The legislation says that the new website may use the data in Grants.gov (http://www.Grants.gov) and the Federal Assistance Award Data System (FAADS) (http://www.census.gov/govs/www/faads.html), but the data in those databases is considered incomplete, and the data is not in a standardized format, making it difficult to use.

The website is to provide the following information on each "federal award":



Nonmanufacturer Rule for Plastic Pallets Waived

The Small Business Administration (SBA) is waiving the nonmanufacturer rule for plastics pallets (twin sheet thermoformed) under North American Industry Classification System (NAICS) code 326199, product number 4141.

In August 2006, SBA published a notice of intent to waive the nonmanufacturer rule because SBA was unaware of any small businesses supplying that class of products. No comments were received in response to the notice, so SBA is waiving the nonmanufacturer rule for plastics pallets.

See 13 CFR 121.1202, When Will a Waiver of the Nonmanufacturer Rule for a Class of Products? A complete list of products for which the nonmanufacturer rule has been waived is available at http://www.sba.gov/GC/approved.html.



Copyright 2006 by Panoptic Enterprises. All Rights Reserved.

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