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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


February 2008
Vol. IX, No. 2

CONTENTS


Defense Authorization Act Restricts A-76 Competitions, Extends FAR Subpart 13.5
Lots of DFARS Rules Saved for the New Year
Three Nonmanufacturer Rule Waivers Granted
EPAAR Amended to Address Award Term Policies
VAAR Rewritten to Conform to Plain English Principles



Defense Authorization Act Restricts A-76
Competitions, Extends FAR Subpart 13.5

On January 28, President Bush signed Public Law 110-181, the $692 billion National Defense Authorization Act for Fiscal Year 2008. Most of the acquisition-related provisions, both those that apply governmentwide and to only the Department of Defense (DOD), are in the Section 800 series. However, there are a few other important provisions scattered about the statute, such as those addressing restrictions applicable to DOD on competitions under Office of Management and Budget (OMB) Circular A-76, Performance of Commercial Activities.



Lots of DFARS Rules Saved for the New Year

For the past several months, DOD has essentially left the DFARS alone. That changed in January, when it roused itself from its Thanksgiving/Christmas/New Year respite and issued nine final rules, four interim rules, and one proposed rule.



Three Nonmanufacturer Rule Waivers Granted

The Small Business Administration (SBA) is waiving the nonmanufacturer rule for three product classes:

EDITOR'S NOTE: Public Law 100-656, enacted November 15, 1988, requires those with federal contracts that are set-aside for small businesses or awarded through the 8(a) program to provide the product of a small business manufacturer or processor if the recipient is not the actual manufacturer or processor (see paragraph (f) of FAR 19.102, Size Standards). This is called the "nonmanufacturer rule." However, SBA may waive this requirement if there are no small business manufacturers or processors.

The SBA regulation on the nonmanufacturer rule is in Title 13 of the CFR, Business and Credit Administration, Part 121, Small Business Size Standards, under paragraph (b) of 121.406, How Does a Small Business Concern Qualify to Provide Manufactured Products Under Small Business Set-Aside or MED [Minority Enterprise Development] Procurements? The SBA regulation on the waiver of the nonmanufacturer rule is 13 CFR 121.1202, When Will a Waiver of the Nonmanufacturer Rule Be Granted 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/idc/groups/public/documents/sba_program_office/gcbd_non_mfg_approved.pdf.



EPAAR Amended to Address Award Term Policies

The Environmental Protection Agency (EPA) has amended the EPA Acquisition Regulation (EPAAR) Subpart 1516.4, Incentive Contracts, to add policy, procedures, and contract clauses for the use of award term incentives. The following are the significant changes made by this final rule:

One comment was submitted on the proposed rule. The commentor pointed out that the proposed change to EPAAR 1533.203, Applicability, stated that EPA’s forum for contract appeals had been transferred from the Interior Board of Contract Appeals to the General Services Board of Contract Appeals (GSBCA), but that the GSBCA had been terminated in January 2007 and its cases transferred to the new Civilian Board of Contract Appeals (CBCA) (see the December 2006 Federal Contracts Perspective article “January Set for New Civilian Board of Contract Appeals”). Therefore, EPAAR 1533.203 is revised to reflect the CBCA as the new forum. For more on the proposed rule, see the November 2007 Federal Contracts Perspective article “EPA Proposes Award Term Policies and Procedures.”



VAAR Rewritten to Conform to Plain English Principles

The Department of Veterans Affairs (VA) has rewritten the VA Acquisition Regulation (VAAR) to conform to plain language principles, to update delegations of authority, and to remove non-regulatory material. Also, the rewritten VAAR has changes in format, arrangement, and numbering to make the VAAR parallel to the FAR, and provisions that simply restate FAR provisions have been removed.

The following are some of the more significant changes incorporated into the VAAR rewrite:

Eight respondents submitted comments on the proposed rule, and numerous changes were made to the final VAAR version as a result. For more on the proposed rule, see the February 2006 Federal Contracts Perspective article “Rewrite of the VAAR Proposed.”



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