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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


May 2006
Vol. VII, No. 5

CONTENTS


FAC 2005-09 Revises A-76 Rules, Provides FedTeDS Guidance, Addresses Trafficking in Persons
Coverage on Labor Laws Cleaned Up in DFARS
Eliminate DPAS Set-Aside For Metalworking Machines?
Make-or-Buy Plans for M&O Contractors Eliminated
Taking "Early Bird" Registration Discounts Clarified
Nonmanufacturer Rule Waived for Industrial Gases



FAC 2005-09 Revises A-76 Rules, Provides
FedTeDS Guidance, Addresses Trafficking in Persons

Federal Acquisition Circular (FAC) 2005-09 amends the Federal Acquisition Regulation (FAR) to remove the obsolete rules that pertained to the pre-2003 version of Office of Management and Budget (OMB) Circular A-76, Performance of Commercial Activities; require the use of the Federal Technical Data Solution (FedTeDS) for electronic posting of solicitation-related materials that require control over availability or distribution; to authorize contract termination if the contractor or any subcontractor engages in trafficking in persons; and make several other changes.



Coverage on Labor Laws Cleaned Up in DFARS

In a continuing effort to modify the Defense FAR Supplement (DFARS) so it only contains requirements of law, Department of Defense (DOD)-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that either have a significant effect beyond the internal operating procedures of DOD or a significant cost or administrative effect on contractors or offerors, most of the text in DFARS Part 222, Application of Labor Laws to Government Acquisitions, is removed and relocated to Procedures, Guidance, and Information (PGI), which is available at http://www.acq.osd.mil/dpap/dars/pgi. All that remains of DFARS Part 222 are cross-references to applicable sections of the PGI and miscellaneous directions, such as assessing the impact of labor disputes on programs and contractor compliance with Occupational Safety and Health Administration (OSHA) regulations.

No comments were submitted on the proposed rule, so this finalizes the proposed rule without changes except that the internal reporting requirements in DFARS 222.101-3, Reporting Labor Disputes, have been relocated to the PGI.

For more on the proposed rule, see the August 2005 Federal Contracts Perspective article "DFARS Addresses Berry Amendment, Hawaiian Organizations." For more on the PGI, see the December 2004 Federal Contracts Perspective article "DFARS Transformation in Full Gear, 'Procedures, Guidance, and Information' Added".

In addition to the clean-up of DFARS Part 222, the following final and proposed rules were published in April:



Eliminate DPAS Set-Aside For Metalworking Machines?

The Department of Commerce's Bureau of Industry and Security (BIS) is seeking comments on the effect the Defense Priorities and Allocations System (DPAS) set-aside for metalworking machines has on industry (15 CFR 700.31, Metalworking Machines).

Under DPAS regulations, the president is authorized to require preferential acceptance and performance of contracts or orders supporting certain approved national defense and energy programs, and to allocate materials, services, and facilities in such a manner as to promote these approved programs.

Currently, the DPAS regulations include a set-aside that applies to metalworking machines. DPAS 700.31 states:

"(c) A metalworking machine producer is not required to accept DO rated orders calling for delivery in any month of a total quantity of any size of machine in excess of 60 percent of scheduled production of that size of machine for that month, or any DO rated orders received less than three months prior to the beginning of the month for which delivery is requested. However, DX rated orders must be accepted without regard to a set-aside or the lead time, if delivery can be made by the required date."

In an effort to streamline the DPAS regulations, BIS is seeking comments on the effect of the DPAS's set-aside for metalworking machines on industry and the effect on industry of the possible elimination of this set-aside.

Comments must be submitted by May 17, 2006, by any of the following methods: e-mail: DPAS@bis.doc.gov (include "Metalworking Machines Notice of Inquiry" in the subject line); fax: 202 482-5650 (Attn: Michael Vaccaro); or by mail or hand delivery/courier to: Michael Vaccaro, U.S. Department of Commerce, Bureau of Industry and Security, Office of Strategic Industries and Economic Security, 1401 Constitution Avenue, NW, Room 3876, Washington, DC 20230.



Make-or-Buy Plans for M&O Contractors Eliminated

The Department of Energy Acquisition Regulation (DEAR) Part 970, DOE Management and Operating Contracts, is revised to eliminate the requirement that management and operating (M&O) contractors submit make-or-buy plans and analyses because "the make-or-buy program is not delivering value to the department commensurate with the costs of its implementation...there is little evidence that these plans are producing the efficiencies and cost savings anticipated by the department. The department has determined that the lack of measurable progress and costs of complying and monitoring compliance with the make-or-buy policy outweigh any potential benefits to the department." Therefore, the following are removed: DEAR 970.1504-4-1, Make-or-Buy Plans, DEAR 970.1504-4-2, Policy, DEAR 970.1504-4-3, Requirements, and DEAR 970.5215-2, Make-or-Buy Plan.



Taking "Early Bird" Registration Discounts Clarified

The Federal Travel Regulation (FTR) is amended to clarify that advance payment of discounted "early bird" conference fees may be treated as an allowable travel advance, and to address when the traveler fails to attend the conference.

Many travelers have expressed reluctance to take advantage of discounted fees for early registration because they believe they cannot be reimbursed until the conference is over and they file their travel claims. To take advantage of such these discounts, FTR 301-74.25, May we reimburse travelers for an advanced payment of a conference or training registration fee?, is added to clarify that "Yes, you [the agency] may reimburse travelers for an advanced discounted payment for a conference or training registration fee as soon as you have approved their travel to that event, and they submit a proper claim for the expenses incurred."

In addition, FTR 301-74.26, What is the traveler required to do if he/she is unable to attend an event for which they were reimbursed for an advanced discounted payment of a conference or training registration fee?, is added to state, "The traveler must seek a refund of the registration fee and repay the agency with any refund received. If no refund is made, the agency must absorb the advanced payment if the traveler's failure to attend the event was caused either by an agency decision or for reasons beyond the employee's control that are acceptable to the agency, e.g., unforeseen illness or emergency. If no refund is made, and the traveler's failure to attend the scheduled event is due to reasons deemed unexcusable by the agency, the traveler must repay the agency for the amount advanced."



Nonmanufacturer Rule Waived for Industrial Gases

The Small Business Administration is waiving the nonmanufacturer rule for industrial gases manufacturing; refinery gases made in petroleum refineries; cyrogenic tanks, heavy gauge metal manufacturing; liquid oxygen tanks manufacturing; liquefied petroleum gases (LPG) cylinders manufacturing; bulk storage tanks, heavy gauge metal, manufacturing; gas storage tanks, heavy gauge metal, manufacturing; and cylinders, pressure, heavy gauge metal, manufacturing under North American Industry Classification System (NAICS) codes 325120, 324110 and 332420.

The nonmanufacturer rule is being waived because SBA has determined there are no small business manufacturers of these classes of products.

For more on the proposal to waive the nonmanufacturer rule for these products, see the March 2006 Federal Contracts Perspective article "SBA to Waive Two Nonmanufacturer Rules, Denies Two."



Copyright 2006 by Panoptic Enterprises. All Rights Reserved.

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