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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


June 2007
Vol. VIII, No. 6

CONTENTS


FAR Coverage on Government Property Simplified, Clarified, Trimmed
DOD Seeks, Responds to Public Comments
Performance-Based Goal Set at 45% by OFPP
DFARS Would Restrict Combat Vehicles Leasing
Meeting on Program/Project Management Certification
FAR to be Clarified on Products with Recovered Materials
DEAR Clauses Updated
NFS Stiffens Security Requirements for Unclassified IT



FAR Coverage on Government Property
Simplified, Clarified, Trimmed

On May 15, the long-awaited rewrite of FAR Part 45, Government Property, and associated FAR language and clauses was published as Federal Acquisition Circular (FAC) 2005-17. This final rule simplifies the government property procedures, clarifies language, and eliminates obsolete requirements related to the management and disposition of government property in the possession of contractors. "The new language reflects a life-cycle, performance-based approach to property management, and it permits the adoption of more typically commercial business practices. The rule requires contracting officers, property administrators, and other personnel involved in awarding or administering contracts with government property to be aware of industry-leading practices and standards for managing government property."

The most notable change is FAC 2005-17 is the reduction of nineteen FAR clauses to three:

In January 2000, a FAR Part 45 rewrite was proposed, but only FAR Subpart 45.6, Reporting, Reutilization, and Disposal, was eventually revised because "the comments concerning the other subparts of FAR Part 45 were conflicting and a satisfactory resolution of those comments was not attained" (see the February 2000 Federal Contracts Perspective article "FAR Changes Would Simplify Government Property, Liquidated Damages, Deferred R&D Costs Language," and the May 2004 Federal Contracts Perspective article "FAC 2001-22 Simplifies Property Disposal Procedures, Revises General Provisions of Cost Principles").

In September 2005, a second proposed rule was published, one that further simplified and clarified the rest of FAR Part 45 (see the October 2005 Federal Contracts Perspective article "Government Property Regs Proposed for Rewrite, Again"). Forty respondents submitted two-hundred-eighty-seven comments addressing thirty-two different issues and topics. Based on those comments, the proposed rule is adopted as final for the most part. There are some differences between the proposed and final versions of the rule:



DOD Seeks, Responds to Public Comments

The Department of Defense (DOD) is gearing up for another round of revisions to the Defense Federal Acquisition Regulation Supplement (DFARS) by asking the public to identify good and bad aspects of its contract profit and fee policies and contract financing policies. In addition, DOD has assessed the comments it received on its contract closeout policies, and has announced what it intends to do in response to those comments.



Performance-Based Goal Set at 45% by OFPP

Office of Federal Procurement Policy (OFPP) Administrator Paul Denett issued a memorandum to all chief acquisition officers and senior procurement executives that he is increasing the goal for applying performance-based acquisition methods from 40% of eligible service contracts over $25,000 to 45% of eligible service contracts over $25,000 for fiscal years 2007 through 2011. This goal applies to contracts, task orders, modifications, and options, as measured in dollars.

Mr. Denett noted that the Federal Procurement Data System (FPDS) indicates that most agencies met or exceeded the 40% goal in fiscal year 2006.



DFARS Would Restrict Combat Vehicles Leasing

DOD is proposing to amend DFARS 207.470, Statutory Requirements, to permit the award a contract for the lease of a combat vehicle only if the contract will be long-term or will provide for a substantial termination liability, and if the service secretary concerned fulfills certain other requirements. This restriction had previously applied to vessels and aircraft. Section 815 of Public Law 109-163, the National Defense Authorization Act for Fiscal Year 2006, added combat vehicles to the restricted items.

Comments on this proposed rule must be submitted by July 23, 2007, identified as "DFARS Case 2006-D013," by any of the following methods: (1) eRulemaking Portal: http://www.regulations.gov; (2) e-mail: dfars@osd.mil; (3) fax: 703-602-0350; (4) mail to: Defense Acquisition Regulations System, Attn: Gary Delaney, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; or (5) hand-delivery or courier to: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.



Meeting on Program/Project Management Certification

On June 13, the Federal Acquisition Institute (FAI) will hold a meeting to provide information to vendors on the recently announced Federal Acquisition Certification in Program/Project Management (FAC-P/PM). The information will include program details, target timeline, and opportunities for vendors to support the training of federal program and project managers. Also, FAI will present its approach for partnering with vendors on this initiative.

The FAC-P/PM is a new program announced by the Office of Federal Procurement Policy (OFPP) on April 25, 2007 (see the May 2007 Federal Contracts Perspective article "Certification Required for Program Managers of Major Acquisitions").

The purpose of the FAC-P/PM program is to establish the competencies, training, and experience requirements for program and project managers in civilian agencies. The FAC-P/PM focuses on essential competencies needed for program and project managers; the program does not include functional or technical competencies, such as those for information technology, or agency-specific competencies. The certification requirements will be accepted by all civilian agencies as evidence that an employee meets the core competencies, training and experience requirements.

According to the notice, the following should attend the meeting: "training developers, vendors with commercial-off-the-shelf (COTS) training products, vendors with capabilities related to the full Instructional System Design (ISD) methodologies, professional associations, educational institutions and acquisition training experts."

The meeting will be held June 13, 2007, from 2:30 pm to 4:00 pm at the Office of Personnel Management's Auditorium located at 1900 E Street, NW, Washington, DC 20415. Register or obtain additional information by contacting Maria Hernandez at 703-284-6988 or by e-mail at maria_hernandez@sra.com.



FAR to be Clarified on Products with Recovered Materials

FAR Subpart 23.4, Use of Products Containing Recovered Materials, and associated provisions and clauses are proposed to be revised to clarify the requirements of the Resource Conservation and Recovery Act of 1976 (RCRA) and Executive Order 13101 of September 14, 1998, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition. (NOTE: Though Executive Order 13101 was revoked by Executive Order 13423 of January 24, 2007, Strengthening Federal Environmental, Energy, and Transportation Management, this rule does not remove Executive Order 13101 from FAR Subpart 23.4 because other conforming changes will be required. A future FAR case will make the conforming changes required by Executive Order 13423. For more on Executive Order 13423, see the February 2007 Federal Contracts Perspective article "President Orders Federal Energy Conservation.")

The RCRA was enacted by Congress to establish a system for managing non-hazardous and hazardous solid wastes in an environmentally sound manner -- from the point of origin to the point of final disposal. RCRA also promotes resource recovery and waste minimization. Section 6002 of the RCRA acknowledges the importance of recycling by mandating that government agencies increase their purchases of products containing recovered materials. RCRA specifies that the Environmental Protection Agency (EPA) develop and issue procurement guidelines that designate specific items made with recovered materials. EPA-designated items containing recovered materials are items listed by EPA in the Comprehensive Procurement Guideline (CPG) (http://www.epa.gov/cpg), and for which EPA has provided purchasing recommendations in a related Recovered Materials Advisory Notice (RMAN) (http://www.epa.gov/epaoswer/non-hw/procure/pdf/consolrman.pdf). Any federal agency, any state or local agency that uses appropriated federal funds, or any contractor that procures these items for work under covered contracts, that procures more than $10,000 worth of an item in the CPG in a given year must purchase the item made of the highest percentage of recovered materials practicable, taking into consideration competition, price, availability, and performance.

This proposed rule would revise FAR Subpart 23.4 and associated provisions and clauses to:

Comments on the proposed rule must be submitted no later than July 2, 2007, by any of the following means: (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 "FAR case 2005-039."



DEAR Clauses Updated

The Department of Energy (DOE) is amending the DOE Acquisition Regulation (DEAR) to remove clauses concerning simplified acquisition procedures and facilities management contracting, and to add a clause addressing work authorization. Also, DOE is amending DEAR Part 970, DOE Management and Operating Contracts, to implement its Cooperative Audit Strategy for its management and operating (M&O) contracts.



NFS Stiffens Security Requirements for Unclassified IT

The National Aeronautics and Space Administration (NASA) is amending NASA FAR Supplement (NFS) 1852.204-76, Security Requirements for Unclassified Information Technology Resources, to reflect the updated requirements of NASA Procedural Requirements (NPR) 2810, Security of Information Technology. The NPR was recently revised to address increasing cyber threats and to ensure consistency with the Federal Information Security Management Act (FISMA), which requires agencies to protect information and information systems in a manner that is commensurate with the sensitivity of the information processed, transmitted, or stored.

In August 2006, NASA proposed to amend NFS 1852.204-76 to:

Two respondents submitted comments on the proposed rule. Though NASA decided not to adopt any of the suggested changes, it decided to adopt the proposed rule as final with the following changes:

For more on the proposed rule, see the September 2006 Federal Contracts Perspective article "NASA Proposes Information Technology Security Changes."



Copyright 2007 by Panoptic Enterprises. All Rights Reserved.

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