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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


May 2007
Vol. VIII, No. 5

CONTENTS


Certification Required for Program Managers of Major Acquisitions
Size Standards for Airport Concessions Adjusted
DOD Restricts Excessive "Pass-Through" Charges
Administrative Changes Slated for AIDAR
Proposed Change to "Cost or Pricing Data" Definition
Nonmanufacturer Rule Waiver Denied for Used Oil



Certification Required for Program Managers of
Major Acquisitions

Office of Federal Procurement Policy Administrator Paul Denett has directed that civilian agencies' program and project managers of major acquisitions be certified as having achieved general training and experience requirements. The Federal Acquisition Certification for Program and Project Managers (FAC-P/PM) is very similar to the Federal Acquisition Certification in Contracting (FAC-C) program, which standardized the education, training, and experience requirements for contracting professionals (see the February 2006 Federal Contracts Perspective article "OMB Establishes Civilian Contracting Certification").

The reason for the similarity between the two programs is that "a strong partnership between program and project managers and contracting professionals requires a common understanding of how to meet the government's needs through acquisitions that deliver quality goods and services in an effective and efficient manner," said Denett in his memorandum to chief acquisition officers.

The program will apply to all agencies that are not covered by the Defense Acquisition Workforce Improvement Act (DAWIA).

Unlike the FAC-C, which prescribes a specific curriculum, the FAC-P/PM describes core, minimum competencies that are considered essential for successful program and project management. For example, a entry-level program or project manager would be competent in oral communications, problem solving, and interpersonal skills; a mid-level manager would be competent in team building, political savvy, and conflict management; and a senior manager would be competent in strategic thinking, vision, and entrepreneurship.

Entry-level managers must have at least one year of project management experience within the last five years; mid-level managers must have at least two years of project management experience within the last five years that includes experience at the entry level; and senior managers must have at least four years of program and project management experience on federal projects and/or programs.

The agency's Chief Acquisition Officer (CAO) is responsible for developing policies that apply the FAC-P/PM requirements to ensure the program and project managers have essential competencies.

Managers have one year from the date of assignment to the program or project to attain the certification. A waiver must be executed by the CAO for additional time beyond the first year, and it cannot exceed one additional year. If time is needed beyond that, the CAO must concur with any extensions.

To maintain a FAC-P/PM certification, managers are required to earn 80 continual learning points (CLPs) of skills currency training every two years.



Size Standards for Airport Concessions Adjusted

The Department of Transportation (DOT) is adjusting the small business size standards used in its Airport Concessions Disadvantaged Business Enterprise (ACDBE) program to compensate for inflation. Also, DOT is adjusting the dollar limits used to define small businesses for DOT's Disadvantaged Business Enterprise (DBE) program, which applies to state and local highway, transit, and airport recipients of DOT financial assistance.

The two programs are based on different statutes. The ACDBE program is designed to give business opportunities to small business concerns that operate at airports and are owned and controlled by socially and economically disadvantaged individuals. The DBE program is intended to ensure nondiscriminatory contracting opportunities for small business concerns owned and controlled by socially and economically disadvantaged individuals in DOT's highway, mass transit and airport financial assistance programs. The ACDBE is covered in Title 49 of the Code of Federal Regulations (49 CFR) Part 23, Participation of Disadvantaged Business Enterprise in Airport Concessions. The DBE program is covered in 49 CFR Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.



DOD Restricts Excessive "Pass-Through" Charges

Through with performing spring cleaning, the Department of Defense (DOD) is gearing up to start making more changes to the Defense Federal Acquisition Regulation Supplement (DFARS). Among those changes recently implemented are prohibitions against the payment of "excessive pass-through charges," the separation of various acquisition functions, and several miscellaneous revisions.



Administrative Changes Slated for AIDAR

The U.S. Agency for International Development (USAID) is amending its Agency for International Development Acquisition Regulation (AIDAR) to make the following changes:

The rule will go into effect July 17, 2007, without further action unless adverse comments are received by May 21, 2007. If adverse comment is received, USAID will publish a timely withdrawal of the rule.

Comments on the rule must be submitted by any of the following means: (1) eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-216-3395; or (3) mail: U.S. Agency for International Development, Office of Acquisition & Assistance, Policy Division, 1300 Pennsylvania Avenue, NW, Room 7.9-18, Washington, DC 20523-0001.



Proposed Change to "Cost or Pricing Data" Definition

The terms "cost or pricing data" and "information other than cost or pricing data" are confusing to contracting officers and the general public, so it is proposed that the terms be clarified so they are more understandable, and to clarify the need to obtain data other then certified cost or pricing data when there is no other means to determine fair and reasonable pricing during price analysis.

This proposed rule is the product of a number of troubling reports during the past several years, including a DOD Inspector General report citing confusion among contracting officers; a Defense Acquisition University study that questioned the consistency of the definition and usage of the term "cost or pricing data" in the FAR, the DFARS, and the Truth in Negotiations Act (TINA, the statute that requires cost or pricing data -- 10 U.S.C. 2306a and 41 U.S.C. 254b); Congressional expressions of concern that the FAR definition is ambiguous; and the DFARS Pricing Committee conclusion that there is a misunderstanding over the kinds of information that can be obtained under "information other than cost or pricing data," and the difference between "cost or pricing data" and "certified cost or pricing data."

To try to clarify the issue, the proposed rule would revise FAR 2.101, Definitions, as follows:

In addition, FAR Subpart 15.4, Contract Pricing, would be revised to clarify the need and authority to obtain a detailed cost estimate, including cost or pricing data, when there is no other means to determine fair and reasonable pricing during price analysis even though the cost or pricing data will not be certified.

Comments on the proposed rule must be submitted no later than June 22, 2007, by any of the following means: (1) eRulemaking Portal: http://www.regulations.gov; (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 "FAR case 2006-007."



Nonmanufacturer Rule Waiver Denied for Used Oil

The Small Business Administration (SBA) is denying the request to waive the nonmanufacturer rule for re-refining used petroleum lubricating oils (MIL-PRF-2104, Type 10W; Type 15W40; Type 30W; and Type 40W) under North American Industry Classification System (NAICS) code 324191 because SBA has determined that this request is for a product in a specific solicitation, rather than for a class of products within a subdivision within a NAICS Industry Number, as is required for class waivers under paragraph (d) of 13 CFR 121.1202, When Will a Waiver of the Nonmanufacturer Rule Be Granted for a Class of Products? This request was prompted by a Defense Supply Center Richmond (DSCR) solicitation. While the SBA may examine a waiver request for a "class of products," an individual waiver request for a "product in a specific solicitation" must be initiated by the contracting officer. Since this waiver request is for a "product in a specific solicitation" but was not initiated by the contracting officer, it must be denied.

For more on the request for waiver, see the February 2007 Federal Contracts Perspective article "Nonmanufacturer Rule Waiver Proposed for Used Oil."



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