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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions

May 2008
Vol. IX, No. 5

CONTENTS

FAC 2005-25 Requires Tax Delinquency Reporting,
Mandates Use of Electronic Subcontract Reporting

Federal Acquisition Circular (FAC) 2005-25 has amended the Federal Acquisition Regulation to require that offerors disclose to contracting officers whether they have been notified of delinquent federal taxes exceeding $3,000 within the past three years. Other items addressed in FAC 2005-25 include the requirement to use the Electronic Subcontracting Reporting System (eSRS), rather than the Standard Form (SF) 294, Subcontract Report for Individual Contracts, and Standard Form 295, Summary Subcontract Report; Federal Procurement Data System (FPDS) reporting; revisions to the Defense Priorities and Allocations System (DPAS); use of products containing recovered materials in service and construction contracts; and an increase in the threshold for small businesses to use small claims procedures under the Contract Disputes Act.

• Certifications on Tax Delinquencies: This finalizes, with changes, the rule that proposed to require an offeror to certify whether it has or has not been notified of any delinquent taxes within the past three-years, and to make such delinquency a cause for debarment or suspension.
  
  The rule is in response to a request from the Senate Permanent Subcommittee on Investigations (PSI) to ask potential contractors “whether they have had any criminal tax law violation in the last three years, whether they have any outstanding tax indebtedness more than one year old, or whether they have any outstanding unresolved federal or state tax lien.”
  
  In response, the proposed rule would have amended Federal Acquisition Regulation (FAR) 52.209-5, Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters, to require an offeror on a solicitation expected to produce a contract exceeding the simplified acquisition threshold ($100,000) to certify whether or not it had, “within a three-year period preceding this offer, been notified of any delinquent taxes for which the liability remains unsatisfied” and “received notice of a tax lien filed against them for which the liability remains unsatisfied or the lien has not been released.”
  
  In response to several of the nine respondents who submitted comments on the proposed rule, the final rule revises FAR 52.209-5 to require the offeror to certify whether or not it had, “within a three-year period preceding this offer, been notified of any delinquent federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied.” In addition, the title of FAR 52.209-5 is changed to “Certification Regarding Responsibility Matters” to emphasize that an affirmative certification does not automatically debar or suspend a contractor, but that it is another factor to be considered by the contracting officer when making a responsibility determination (the contracting officer can forward the matter to the suspending and debarring official to investigate and evaluate further before deciding to initiate suspension or debarment proceedings).
  
  This change to FAR 52.209-5 adds a $3,000 threshold (micro-purchase threshold) for certification purposes, and narrows the coverage to federal tax delinquency (thus removing state, local, and foreign tax violations from coverage).
  
  For more on the proposed rule, see the April 2007 Federal Contracts Perspective article “Numbered Synopsis Notes Proposed for Deletion.”
  
  
• Electronic Subcontracting Reporting System (eSRS): This interim rule amends FAR Subpart 19.7, The Small Business Subcontracting Program, and the corresponding clause FAR 52.219-9, Small Business Subcontracting Plan, to require that small business subcontract reports be submitted using the Electronic Subcontracting Reporting System (eSRS) (http://www.esrs.gov), rather than SF 294, Subcontract Report for Individual Contracts, and SF 295, Summary Subcontract Report.
  
  The eSRS is a web-based system intended to streamline the small business subcontracting program reporting process and provide the data to agencies in a manner that will enable them to more effectively manage the program.
  
  This interim rule deletes all references to Standard Forms 294 and 295 from the FAR, and replaces them with references to eSRS.
  
  Comments are being sought specifically on what period the year-end Summary Subcontract Report should cover. The interim rule retains the current FAR requirement (reflected in the obsolete SF 295) that the report cover subcontracting done during the government’s fiscal year (October 1 -- September 30). However, the eSRS, which is currently being used by some agencies, indicates that the year-end Summary Subcontract Report for a commercial subcontracting plan should reflect subcontracting performed during the contractor’s fiscal year. Therefore, some contractors who are using eSRS and have commercial plans may be reporting subcontracts awarded during their own fiscal year, while other contractors are reporting subcontracts awarded during the government’s fiscal year. Therefore, comments are requested on what period the year-end Summary Subcontract Report should cover -- the government’s fiscal year or the contractor’s fiscal year -- with a rationale for the period recommended.
  
  Comments on the interim rule must be submitted no later than June 23, 2008, 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: Diedra Wingate, Washington, DC 20405. Identify comments as “FAR case 2005-040.”
  
  
• Federal Procurement Data System (FPDS) Reporting: This interim rule amends FAR Subpart 4.6, Contract Reporting, to update and clarify the process for reporting contract actions to the FPDS. The rule makes the following changes:
  
  
  • FAR 4.601, Definitions, includes definitions for “assisted acquisition,” “contract action,” “contract action report (CAR),” “definitive contract,” “direct acquisition,” “entitlement program,” “generic DUNS number,” “indefinite-delivery vehicle (IDV),” “requesting agency,” and “servicing agency” as they pertain to FPDS.
    
    
  • FAR 4.602, General, describes the general characteristics of FPDS and identifies data that will and will not be maintained in FPDS.
    
    
  • FAR 4.603, Policy, describes the use of FPDS to maintain publicly available information about contract actions; requires agencies to report actions subject to the FAR and using appropriated funds; requires agencies performing assisted or direct acquisitions to report such actions; encourages agencies exempt from the FAR or using non-appropriated funds to report such actions; and requires agencies awarding contracts using a mix of appropriated and non-appropriated funds to only report the full appropriated portion of the action.
    
    
  • FAR 4.604, Responsibilities, describes the responsibility of the Senior Procurement Executive (SPE) and head of the contracting activity (HCA) for developing and monitoring a process to ensure timely and accurate reporting of contractual actions to FPDS; describes the responsibility of the contracting officer for the submission and accuracy of the contract action report; describes how and when the contract action report is to be submitted to FPDS when a contract writing system is or is not integrated with FPDS, or when the contract action is awarded pursuant to FAR 6.302-2, Unusual and Compelling Urgency, or in accordance with the authorities listed at FAR Subpart 18.2, Emergency Acquisition Flexibilities; and indicates the date that the Chief Acquisition Officer of each agency reporting to FPDS must submit an annual certification of the agency's reported actions (January 5).
    
    
  • FAR 4.605, Procedures, describes the Procurement Instrument Identifier (PIID) and the Data Universal Numbering System (DUNS).
    
    
  • FAR 4.606, Reporting Data, describes the mandatory actions agencies must report to FPDS; the use of FPDS “Express Reporting;” the reporting requirements for agencies participating in the Small Business Competitiveness Demonstration Program; the responsibility of the GSA Purchase Card Management to provide purchase card data to FPDS; how agencies may report other actions not specified in the subpart; and actions not to be reported to FPDS, including imprest funds transactions below the micro-purchase threshold, orders from GSA Stock and Global Supply Programs, orders against certain indefinite-delivery vehicles, purchases made using Javits-Wagner-O’Day service stores, and purchases made using non-appropriated fund activity cards, chaplain cards, individual government personnel training orders, and Defense Printing.
  
  Comments on the interim rule must be submitted no later than June 23, 2008, by any of the means mentioned above. Identify comments as “FAR case 2004-038.”
  
  
• Defense Priorities and Allocations System (DPAS): This final rule revises FAR Subpart 11.6, Priorities and Allocations, and other related parts to reflect the current provisions of the Defense Priorities and Allocations System (DPAS) regulations of the Department of Commerce in 15 CFR Part 700.
  
  This final rule makes the following revisions:
  
  
  • To the definition of “national defense” in FAR 2.101, Definitions, is added a reference to the DPAS definition, which includes critical infrastructure protection and restoration.
    
    
  • FAR Subpart 11.6 is revised to reflect the President’s delegation of the Defense Production Act’s priorities and allocations authorities in Executive Order 12919, and the current provisions of the DPAS regulations.
    
    
  • FAR 18.109, Priorities and Allocations, and FAR 52.211-14, Notice of Priority Rating for National Defense, Emergency Preparedness, and Energy Program Use, are revised to state that DPAS may be used for emergency preparedness and energy programs.
    
    
  • Standard Form (SF) 26, Award/Contract, and SF 1447, Solicitation/Contract, are revised to reflect that the DPAS regulations are at 15 CFR Part 700.
  
  For more information on DPAS, go to the DPAS website at http://www.bis.doc.gov/dpas.
  
  
• Use of Products Containing Recovered Materials in Service and Construction Contracts: FAR Subpart 23.4, Use of Products Containing Recovered Materials, and associated provisions and clauses are 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.
  
  This rule revises FAR Subpart 23.4 and associated provisions and clauses to:
  
  
  • Provide for consistency when referring to products containing recovered materials;
    
    
  • Clarify that the requirement for products containing recovered materials applies when agencies require the delivery or specify the use of EPA-designated items, and when agencies award contracts for services or construction unless the service or construction contract will not involve the use of such items (FAR 23.406, Solicitation Provision and Contract Clauses);
    
    
  • Prescribe new FAR 52.223-17, Affirmative Procurement of EPA-designated Items In Service and Construction Contracts, for use in service and construction contracts when appropriate; and
    
    
  • Revise FAR 52.223-4, Recovered Material Certification, to reflect other changes made by the rule.
  
  No comments were submitted on the proposed rule, so it is adopted as final without changes. For more on the proposed rule, see the June 2007 Federal Contracts Perspective article “FAR to be Clarified on Products with Recovered Materials.”
  
  
• Enhanced Access for Small Business: This final rule amends FAR 33.211, Contracting Office’s Decision, to implement Section 857 of the John Warner National Defense Authorization Act Fiscal Year 2007 (Public Law 109-364) which increased the threshold for small businesses to use small claims procedures under the Contract Disputes Act from $50,000 to $150,000. The change is in FAR 33.211(a)(4)(v).

Doan Resigns as GSA Administrator

On April 29, Lurita Doan was asked to resign as the administrator of the General Services Administration (GSA), and she did so, ending her 23 month tenure.

Doan’s administration was marked by investigations by the House Committee on Oversight and Government Reform, the GSA Inspector General (IG), and the U.S. Office of Special Counsel. Most of her troubles involved her relations with the GSA IG, starting with her attempt to trim the IG’s budget, then followed by IG investigations into allegations that she attempted to steer a $20,000 contract to a friend, that she violated the Hatch Act by asking political appointees to think of ways to “help our candidates,” and improperly intervened in debarment procedures.

For more on the Doan term, see the February 2007 Federal Contracts Perspective article “House Government Reform Committee to Investigate GSA Administrator’s Alleged Contract-Steering,” and the April 2007 Federal Contracts Perspective article “GSA Administrator Points Finger at IG as Primary Source of Controversy and Woes.”

DOD Seeks More “Nontraditional Contractors”

The Department of Defense (DOD) is seeking public input on expanding pathways for “nontraditional contractor” participation in defense procurements. Currently, the definition in Defense FAR Supplement (DFARS) 212.70, Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority, is: “A business unit that: (1) has entered into an other transaction agreement with DOD; and (2) has not, for a period of at least 1 year prior to the date of the other transaction agreement, entered into or performed on (i) any contract that is subject to full coverage under the cost accounting standards described in FAR Part 30; or (ii) any other contract exceeding $500,000 to carry out prototype projects or to perform basic, applied, or advanced research projects for a federal agency that is subject to the FAR.” However, the application of this definition is limited to follow-on efforts to Other Transactions (OT) for prototype awards. As such, this definition tends to narrow the scope to research and development (R&D) projects that involve experimentation, test, demonstration, and developments related to weapons systems. This definition may not be entirely appropriate with respect to the various types of defense procurements that are possible under existing regulations. Therefore, DOD is seeking industry input with regard to the standards that should be utilized in defining a nontraditional defense contractor and in developing an appropriate definition, particularly the following:

• Should consideration be given to the percentage of a company’s business that is devoted to defense specific award actions versus non-defense specific award actions in determining its status as a traditional vs. nontraditional defense contractor? For example, if a company’s sales revenue is based on 90% commercial sector versus 10% defense sector, should that be taken into consideration? Are there other benchmarks that should be used in classifying a contractor as a nontraditional defense contractor and, if so, what are they and why are they appropriate?
  
  
• Should the definition stay the same for all of the various types of acquisitions, or should the definition change depending upon products or services acquired (for example, service, supply, construction, R&D)?
  
  
• Should contractors be required to self-certify their status as a nontraditional defense contractor via registration in the Central Contractor Registration (CCR) database, Online Representations and Certifications Application (ORCA), or some other self-certification mechanism, based on an established definition for nontraditional defense contractor, so that individual contracting officers are not required to make these independent judgment calls for every single contract action contemplated? If not, how should DOD capture nontraditional defense contractor status?

Comments should be submitted on or before June 20, 2008, to Office of the Director, Defense Procurement and Acquisition Policy, ATTN: OUSD (AT&L) DPAP (CPIC), 3060 Defense Pentagon, Washington, DC 20301-3060; or by e-mail to Anthony.Cicala@osd.mil.

In a related note, the expiration date for authority to conduct the pilot program in DFARS Subpart 212.70 has been extended from September 30, 2008, to September 30, 2013. This final rule implements Section 823 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181).

EVMS Policy Added to DFARS

DOD has added DFARS Subpart 234.2, Earned Value Management System [EVMS], and a related provision and clause, to update requirements for defense contractors to establish and maintain EVMS, and eliminate requirements for defense contractors to submit cost/schedule status reports. The rule supplements the final FAR rule published in FAC 2005-11 (see the August 2006 Federal Contracts Perspective article “New FAR Part Consolidates Emergency Authorities; Earned Value Management Coverage Added”).

This final rule makes the following changes to the DFARS:

• For cost or incentive contracts and subcontracts valued at $20,000,000 or more, an EVMS that complies with the guidelines in the American National Standards Institute/Electronic Industries Alliance Standard 748, Earned Value Management Systems (ANSI/EIA-748), is required (paragraph (1)(i) of DFARS 234.201, Policy).
  
  
• For cost or incentive contracts and subcontracts valued at $50,000,000 or more, an EVMS that has been determined by the cognizant federal agency (as defined in FAR 2.101) to be in compliance with the guidelines in ANSI/EIA-748 is required (DFARS 234.201(1)(ii)).
  
  
• For cost or incentive contracts and subcontracts valued at less than $20,000,000, application of earned value management (EVM) is optional and is a risk-based decision (DFARS 234.201(1)(iii)(A)).
  
  
• The application of EVM to firm-fixed-price contracts and subcontracts of any dollar value is discouraged (DFARS 234.201(1)(iv)(A)).
  
  
• The Defense Contract Management Agency (DCMA) is assigned responsibility for determining EVM compliance when DOD is the cognizant federal agency (DFARS 234.201(3)).
  
  
• DFARS 252.234-7001, Notice of Earned Value Management System, is to be used instead of FAR 52.234-2, Notice of Earned Value Management System -- Pre-Award IBR, and FAR 52.234-3, Notice of Earned Value Management System -- Post-Award IBR, in the solicitation (paragraph (1) of DFARS 234.203, Solicitation Provision and Contract Clause).
  
  
• DFARS 252.234-7002, Earned Value Management System, is to be used instead of FAR 52.234-4, Earned Value Management System, in the solicitation and contract.
  
  
• The following provisions and clauses are removed: DFARS 252.242-7001, Notice of Earned Value Management System; DFARS 252.242-7002, Earned Value Management System; DFARS 252.242-7005, Cost/Schedule Status Report; and DFARS 252.242-7006, Cost/Schedule Status Report Plans.

Five respondents submitted comments on the proposed rule. In response to the comments, EVM policy is moved from DFARS Part 242, Contract Administration and Audit Services, to DFARS Part 234, Major System Acquisition, to conform to the FAR, and several other editorial changes were made. For more on the proposed rule, see the February 2006 Federal Contracts Perspective article "DOD Finalizes Many Proposed, Interim DFARS Rules."

Besides adding EVMS policy, the following additional changes were made to the DFARS this past month, as well as the following proposed DFARS changes:

• Deletion of Obsolete Restriction on Acquisition of Vessel Propellers: This final rule removes DFARS 225.7010, Restriction on Vessel Propellers (and its subsections 225.7010-1 through 225.7010-4), and the implementing clause DFARS 252.225-7023, Restriction on Acquisition of Vessel Propellers, because the statute upon which the restriction was based applied only to acquisitions using fiscal year 2000 or 2001 funds.
  
  
• Limitations on DOD Non-Commercial Time-and-Materials Contracts: This proposed rule would amend DFARS 216.601, Time-and-Material Contracts, to provide for the same level of review for both commercial and non-commercial defense time-and-materials contracts.
  
  Paragraph (d) of FAR 16.601 requires that, before using a time-and-materials contract, the contracting officer must prepare a determination and findings that no other contract type is suitable. For time-and-materials contracts for commercial services, paragraph (b)(2) of FAR 12.207, Contract Type, specifies the minimum content for the determination and findings, and FAR 12.207(c) contains additional requirements with regard to the use of indefinite-delivery contracts priced on a time-and-materials basis.
  
  To provide for the same level of oversight in the award of all defense time-and-materials contracts, this proposed rule would amend DFARS 216.601 to establish determination and findings requirements for defense non-commercial time-and-materials contracts, similar to those presently required by FAR 12.207 for commercial services contracts.
  
  Comments on the proposed rule must be submitted no later than June 23, 2008, by any of the following means: (1) eRulemaking Portal: http://www.regulations.gov; (2) e-mail: dfars@osd.mil; (3) fax: 703-602-4067; (4) mail: Defense Acquisition Regulations System, ATTN: Sandra Morris, OUSD(AT&L)DPAP(DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062; or (5) hand delivery/courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Identify such comments as “DFARS Case 2007-D021.”
  
  
• Quality Assurance Authorization of Shipment of Supplies: This proposed rule would amend DFARS 246.471, Authorizing Shipment of Supplies, to provide for contractor release of supplies for shipment, without government authorization of the shipping documents, based on criteria that consider product complexity and criticality and the contractor's record of quality control. The proposed changes will enable the government to provide for the appropriate level of contract quality assurance at source, based on product complexity and criticality and the contractor’s record of quality control.
  
  In addition, changes are proposed to DD Form 250, Material Inspection and Receiving Report. DOD forms are not published in the Federal Register or the Code of Federal Regulations, so the proposed changes are not in the proposed rule. However, DOD provides the following description: “The statements in Blocks 21a and 21b (Contract Quality Assurance) of DD Form 250 are proposed to be changed, from ‘CQA/ACCEPTANCE of listed items has been made by me or under my supervision and they conform to contract, except as noted herein or on supporting documents’, to ‘CQA/ACCEPTANCE has been subject to Government contract quality assurance surveillance’. The proposed changes provide for the representative signing the DD Form 250 at source to affirm that the appropriate quality assurance activities have been accomplished. The clause at DFARS 252.246-7000, Material Inspection and Receiving Report, is amended to specify that a contractor's submission of a receiving report constitutes the contractor's affirmation that the items listed on the report conform to contract requirements.” (NOTE: The existing DD Form 250 is available at http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.)
  
  Comments on the proposed rule must be submitted no later than June 23, 2008, by any of the means mentioned above, except mailed comments should be sent to the attention of Mark Gomersall, and comments should be identified as “DFARS Case 2005-D024.”

FAR Proposals For Progress Payments, Performance

Two proposed FAR rules have been published to address issues during contract performance.

• Contractor’s Request for Progress Payments: This proposed rule would revise FAR Part 32, Contract Financing, and Standard Form (SF) 1443, Contractor’s Request for Progress Payments, to address revisions to the paid cost rule, and simplify the form and related regulations and instructions to improve clarity. These proposed changes originated as a part of a review of the SF 1443 and related regulations by DOD (see the November 22, 2004, Federal Contracts Dispatch “Defense Federal Acquisition Regulation Supplement (DFARS); Contractor’s Request for Progress Payments”).
  
  The following changes would be made by this proposed rule:
  
  
  • To FAR 32.001, Definitions, would be added a definition for “Liquidate” -- “to decrease a payment for an accepted supply item or service under a contract for the purpose of recouping financing payments previously paid to the contractor.” This would ensure that all parties understand what is meant by this term, which is used throughout FAR Part 32.
    
    
  • Paragraph (a)(1) of FAR 32.501-3, Contract Price, would be revised to ensure that the term “contract price” is used consistently in FAR 32.501-3 and the SF 1443 -- “the contract price is the current amount fixed by the contract plus the not-to-exceed amount for any unpriced modifications.” Related changes are proposed to the instructions for Item 5 of the SF 1443, Contract Price.
    
    
  • FAR 32.503-1, Contractor Requests, would be deleted. The language requiring the contractor to use the SF 1443 to request progress payments would be moved to the contract clause FAR 52.232-16, Progress Payments, as paragraph (g)(3). In addition, paragraph (g)(3) would include language allowing electronic submission of the SF 1443.
    
    
  • Paragraphs (f) and (g) of FAR 32.503-6, Suspension or Reduction of Payments, and FAR 52.232-16(a)(9) and (c)(5) would be revised to clarify the computation of the loss ratio (“...to include the not-to-exceed amount for any pending change orders and unpriced orders”).
    
    
  • FAR 52.232-16(g)(2) would be added to require that contractors use current estimates to complete when preparing the SF 1443. Related changes are proposed for the SF 1443 Line 12b, Estimated Cost to Complete.
    
    
  • Various other changes to the SF 1443 and related instructions are also proposed:
    
    
    • Line 4, Contract Number, would be changed to require that the contractor include the Delivery or Task Order number, if applicable, so that the paying office can associate the SF 1443 with the correct order.
      
      
    • Line 14, Progress Payments Paid to Subcontractors, would be revised to make the language on the form consist with that of FAR 52.232-16. A related change would also be made to Line 20, Computation of Progress Payment Limitation.
      
      
    • Line 23, Total Amount Applied To and To Be Applied To Reduce Progress Payment, would be revised to clarify that the amount on this line is the dollars that have been liquidated as well as the dollars to be liquidated.
      
      
    • Minor editorial changes are proposed for various portions of the SF 1443 and related instructions.
  
  Comments on the proposed rule must be submitted no later than June 9, 2008, 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: Diedra Wingate, Washington, DC 20405. Identify comments as “FAR Case 2005-032.”
  
  
• Contractor Performance Information: This proposed rule would amend various portions of the FAR to revise the contractor performance information process.
  
  The Office of Federal Procurement Policy (OFPP) and the Chief Acquisition Officer's Acquisition Committee for E-GOV (ACE) established a working group to review regulations, policies, and guidance associated with contractor performance information. This working group proposed changes to a number of FAR parts. The Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulations Council (DARC) have agreed to some, but not all, of these changes. This proposed rule reflects those changes agreed to by the Councils.
  
  The changes to the FAR would include the following:
  
  
  • To FAR 2.101, Definitions, would be added a definition for “past performance” -- “an offeror’s or contractor’s performance on active and completed contracts.”
    
    
  • Paragraph (c) of FAR 9.105-1, Obtaining Information; paragraph (b)(3)(ii)(C) of FAR 13.106-2, Evaluation of Quotations or Offers; and paragraph (c) of FAR 42.1503, Procedures, would be amended to clarify the use of the governmentwide performance information repository, Past Performance Information Retrieval System (PPIRS) (http://www.ppirs.gov).
    
    
  • Contracting officers would be required to evaluate past performance for orders that exceed the simplified acquisition threshold placed against Federal Supply Schedule contract, or under a task order contract or a delivery order contract awarded by another agency (that is, governmentwide acquisition contract or multi-agency contract) (paragraph (c) of FAR 42.1502, Policy), and past performance evaluations for orders under single agency contracts would be recommended (FAR 42.1502(d)).
    
    
  • Guidance on the collection of past performance information would be consolidated in FAR 42.1502 and FAR 42.1503, Procedures (and past performance guidance for construction contracts would be removed from FAR 36.201, Evaluation of Contractor Performance, and past performance guidance for architect-engineer contracts would be removed from FAR 36.604, Performance Evaluation). Also, references to SF 1420, Performance Evaluation (Construction Contracts), and SF 1421, Performance Evaluation (Architect-Engineer) would be removed from FAR 36.201 and FAR 36.604, and the forms would be removed from FAR Part 53, Forms.
    
    
  • FAR 42.1503(a) would be revised to clarify that the agency shall identify the individual responsible for preparing the evaluation of contractor past performance.
  
  Comments on the proposed rule must be submitted no later than June 2, 2008, by any of the means mentioned above, except that comments should be identified as “FAR Case 2006-022.”

Three Nonmanufacturer Rule Waivers Proposed

The Small Business Administration (SBA) is proposing to waive the nonmanufacturer rule for the following industries: (1) safety zone rubber gloves manufacturing under North American Industry Classification System (NAICS) code 339113, product number 9999; (2) trash bags manufacturing under NAICS code 326111, product number 8105; and (3) paper products manufacturing under NAICS code 322121, product number 8540. SBA is inviting the public to comment on these proposed waivers, or to provide information on potential small business sources for these products by April 23, 2008, to Pamela M. McClam, Program Analyst, Small Business Administration, Office of Government Contracting, 409 3rd Street, SW, Suite 8800, Washington, DC 20416.

Federal Acquisition System Requirements Proposed

The Office of Governmentwide Policy has prepared, and is inviting comments on, a proposed “Federal Acquisition System Requirements,” which gives functional, process, technical, and data standards requirements for software developers of government acquisition and contract writing systems. The document is located at http://www.acquisition.gov.

The document specifies the functional and technical requirements that acquisition systems must satisfy for federal agency use. The document was developed at the request of the Chief Acquisition Officers Council (CAOC) and Chief Financial Officers Council (CFOC), demonstrating a commitment to starting the process of integrating the acquisition and finance functions more effectively. These requirements were drafted by the Acquisition Requirements Team (ART), consisting of representatives from both communities. The ART members recognize that agencies face major challenges in streamlining and automating procurement processes. Having access to better acquisition software is a first step toward this end. A key prerequisite to developing better software is to clearly define the requirements that the software product must meet.

Office of Management and Budget (OMB) Circular A-130, Management of Federal Information Resources, requires agencies to use commercially available off-the-shelf (COTS) software to reduce costs, improve the efficiency and effectiveness of system improvement projects, and reduce the risks inherent in developing and implementing a new system. To support this OMB mandate, vendors will be required to offer acquisition system products utilizing COTS software to the greatest extent practicable.

The document provides a framework for connecting program planning, financial, and asset management processes with agencies’ acquisition systems to deliver fully integrated acquisition support. Detailed acquisition system requirements are presented within the functional and technical requirements sections. They incorporate the latest changes in laws and regulations governing acquisition systems as well as required system interfaces such as the Federal Procurement Data System (FPDS) and Central Contractor Registration (CCR). When finalized, these requirements are expected to become the standard for qualifying COTS acquisition systems for federal agency acquisition.

The requirements in the document do not constitute a complete system specification. Requirements are deliberately stated in functional terms to give software developers maximum flexibility in engineering technical solutions. Individual agencies will also have, in many cases, additional mandatory requirements necessary to support their specific business processes.

Comments on the proposed document must be submitted no later than June 27, 2008, 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: Diedra Wingate, Washington, DC 20405. Identify comments as “ME-2008-N01.”

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