Panoptic Enterprises’


Federal Acquisition Developments, Guidance, and Opinions

June 2018
Vol. XIX, No. 6
[pdf version]


DOD Unleashes a Torrent of Rules, Removes Unnecessary DFARS Clauses and Provisions
FAC 2005-98 Conducts Spring Housekeeping
CAAC Issues Deviation Raising Cost of Pricing Threshold
SBA Waives Nonmanufacturing Rule for Airway Devices
GAO Issues New Bid Protest Guide

DOD Unleashes a Torrent of Rules,
Removes Unnecessary DFARS Clauses and Provisions

The Department of Defense (DOD) continues issuing rules that amend or revise the Defense Federal Acquisition Regulation Supplement (DFARS) at a frantic pace, issuing six final rules to implement various provisions of National Defense Authorization Acts. In addition, DOD issued five rules removing clauses and provisions that are no longer necessary or are redundant to similar ones in the Federal Acquisition Regulation (FAR). Finally, DOD published two proposed rules and is requesting comments on them. One of the proposed rules consists of the text of a class deviation that was issued three weeks before.

FAC 2005-98 Conducts Spring Housekeeping

Federal Acquisition Circular (FAC) 2005-98 conducts spring cleaning on the Federal Acquisition Regulation (FAR), primarily adjusting various thresholds and implementing mandated additions to the acquisition-related duties of the Office of Small and Disadvantaged Business Utilization.

CAAC Issues Deviation Raising Cost of Pricing Threshold

The Civilian Agency Acquisition Council (CAAC) has issued a letter to all civilian agencies (except the National Aeronautics and Space Administration [NASA] and the Coast Guard, which belong to the Defense Acquisition Regulations Council [DARC]) authorizing them to issue a class deviation to increase the threshold for requiring certified cost or pricing data. This implements the NDAA for FY 2018 (Public Law 115-91), Section 811, Modifications to Cost or Reporting Data and Reporting Requirements, which raises the threshold from $750,000 to $2,000,000.

Because of this CAAC letter, civilian agencies (except NASA and the Coast Guard) are authorized to substitute “$2,000,000” for “$750,000” in the following portions of the FAR:

SBA Waives Nonmanufacturing Rule for Airway Devices

The Small Business Administration (SBA) is waiving the nonmanufacturer rule for Positive Airway Pressure Devices and Supplies Manufacturing, Product Service Code (PSC) 6515, Medical and Surgical Instruments, Equipment, and Supplies, under the North American Industry Classification System (NAICS) codes 333912, Surgical and Medical Instrument Manufacturing, and NAICS code 339113, Surgical Appliance and Supplies Manufacturing. SBA invited the public to comment on the proposed waiver or to provide information on potential small business sources for these products. Two comments were received supporting the waiver, and the SBA conducted research that did not reveal any small business manufacturers that participated in the federal market during the previous 24 months. Therefore, SBA has determined that there are no small business manufacturers of this class of products, and it is granting the nonmanufacturing rule waiver. This waiver will allow qualified regular dealers to supply the product of any manufacturer on a federal contract set aside for small businesses, service-disabled veteran-owned small businesses (SDVOSB), women-owned small businesses (WOSB), economically disadvantaged women-owned small businesses (EDWOSB), businesses in historically underutilized business zones (HUBZones), or participants in the SBA’s 8(a) Business Development program.

For more on the proposed nonmanufacturing rule waiver, see the October 2017 Federal Contracts Perspective article “SBA Proposes Nonmanufacturer Rule Waiver.”

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 Code of Federal Regulations (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 or Other Supply Items Under a Small Business Set-Aside, Service-Disabled Veteran-Owned Small Business Set-Aside, WOSB [women-owned small business] or EDWOSB [economically disadvantaged women-owned small business] Set-Aside, or 8(a) Contract? (13 CFR 121.406(b). 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 https://www.sba.gov/contracting/contracting-officials/non-manufacturer-rule/class-waivers.

GAO Issues New Bid Protest Guide

To assist those confronting the Government Accountability Office’s (GAO) new regulations that were issued in conjunction with the establishment of the mandatory electronic bid protest docketing system (EPDS) (https://epds.gao.gov/login), the GAO has issued the tenth edition of “Bid Protests at GAO: A Descriptive Guide.” It is available online at https://www.gao.gov/assets/700/691596.pdf.

The introduction states: “Over the years, GAO has developed a substantial body of law and standard procedures for considering bid protests. This is the tenth edition of Bid Protests at GAO: A Descriptive Guide, prepared by the Office of the General Counsel, to aid those interested in GAO’s bid protest process. We issued the first edition of this booklet in 1975 to facilitate greater public familiarity with the bid protest process at GAO and we have revised it over the years to reflect changes in our bid protest procedures. This edition incorporates changes made to our Bid Protest Regulations, effective May 1, 2018, to conform the regulations to reflect administrative changes in our procedures enacted by Section 1501 of the Consolidated Appropriations Act, 2014, Pub. L. No. 113-76...Section 1501 required GAO to establish an electronic filing and document dissemination system for the filing of bid protests at GAO. The statute also provided for GAO to receive a fee from filers to support the establishment and operation of the electronic system. This edition also incorporates changes to our protective order process.”

GAO has established $350 as the filing fee for all new protests of government contract awards. For more on the GAO’s new protest regulations and filing fee, see the May 2018 Federal Contracts Perspective article “GAO Introduces Electronic Protest System, Assesses $350 Filing Fee.”

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