Panoptic Enterprises’


Federal Acquisition Developments, Guidance, and Opinions

April 2020
Vol. XXI, No. 4
[pdf version]


Coronavirus Overruns United States, Emergency Acquisition Authorities Invoked
DOD Issues Two Deviations, One Memo
Proposed FAR Amendment on Section 508 Revisions
Nonmanufacturing Rule for Laptop Computers Waived
EPAAR Award Term Incentives Policy Clarified
VA Continues Updating the VAAR

Coronavirus Overruns United States,
Emergency Acquisition Authorities Invoked

The Novel Coronavirus (or “COVID-19” – “coronavirus disease first identified on December 31, 2019”) swept through the United States in March, killing thousands and infecting hundreds of thousands more. On March 13, President Trump declared a national emergency, recognizing that COVID-19 poses a threat to national security. Hospitals are overrun with patients and are running out of supplies for the patients and the doctors and nurses. To address this “pandemic,” the president has invoked emergency powers and authorized federal agencies to exercise powers provided in a number of laws. This presidential declaration has activated Federal Acquisition Regulation (FAR) part 18, Emergency Acquisitions, which, for example, increases the micro-purchase threshold from $10,000 to $20,000 and the simplified acquisition threshold from $250,000 to $750,000 (see FAR 2.101, Definitions, and FAR part 13, Simplified Acquisition Procedures).

The following are some of the more significant actions taken by the president and federal agencies to combat the COVID-19:

Undoubtedly, much more direction and guidance on confronting the COVID-19 will be forthcoming in April.

DOD Issues Two Deviations, One Memo

The COVID-19 pandemic did not monopolize all of DOD’s attention during March – besides issuing the deviation changing the progress payment rates in response to the COVID-19 pandemic (see preceding article), it issued two more deviations and one acquisition-related memoranda.

Proposed FAR Amendment on Section 508 Revisions

Section 508 of the Rehabilitation Act of 1973 (Title 29 of the U.S. Code, Section 794d [29 USC 794d]), Electronic and Information Technology, requires federal agencies to make their electronic and information technology (now generally referred to as “information and communication technology” [ICT]) accessible to people with disabilities. To incorporate recent revisions and updates to accessibility standards issued by the U.S. Access Board (also known as the Architectural and Transportation Barriers Compliance Board) to “refresh” its existing set of accessibility standards under Section 508 to address advances in ICT and to harmonize with accessibility standards developed by standards organizations worldwide, a proposed rule has been published that would amend the FAR accordingly.

The proposed rule would make the following changes to the FAR:

Comments on this proposed rule must be submitted no later than June 1, 2020, identified as “FAR Case 2017-011,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail: General Services Administration, Regulatory-Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd floor, Washington, DC 20405.

Nonmanufacturing Rule for Laptop Computers Waived

The Small Business Administration (SBA) is waiving the nonmanufacturer rule for commercially available off-the-shelf laptop and tablet computers under Product Service Code (PSC) 7435, Office Information System Equipment, North American Industry Classification System (NAICS) code 334111, Electronic Computer Manufacturing. SBA limits this class waiver to laptops and tablet computers procured by the government that meet the definition of “commercially available off-the-shelf (COTS) items” in FAR 2.101, Definitions: “any item or supply…that is: (i) a commercial item...; (ii) sold in substantial quantities in the commercial marketplace; and (iii) offered to the government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace...”

SBA invited the public to comment on the proposed waiver or to provide information on potential small business sources for these products. Forty-one comments were received, and all supported the waiver. 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 January 2020 Federal Contracts Perspective article “SBA Proposes Nonmanufacturer Rule Waiver for Laptops and Tablets.”

EDITOR’S NOTE: 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?

More information on the nonmanufacturer rule and class waivers can be found at https://www.sba.gov/partners/contracting-officials/small-business-procurement/non-manufacturer-rule. A complete list of products for which the nonmanufacturer rule has been waived is available at https://www.sba.gov/document/support--non-manufacturer-rule-class-waiver-list.

EPAAR Award Term Incentives Policy Clarified

The Environmental Protection Agency (EPA) is amending EPA Acquisition Regulation (EPAAR) subpart 1516.4, Incentive Contracts, to remove ambiguity and provide clarity on what is required for a contractor to successfully earn award terms.

Award terms are a form of incentive contract that offers additional periods of performance without a new competition, rather than additional profit or fee as a reward for achieving prescribed performance measures. Award term incentives were developed in 1997 by the Department of the Air Force and are not described in the FAR. To assist EPA contracting officers seeking to use award term incentives, EPA believes it is necessary to amend the EPAAR to provide clear language of the requirements needed to successfully award and earn award terms.

EPA issued a proposed rule that would make the following changes to EPAAR subpart 1516.4:

One respondent commented on the proposed rule, but the comment was unrelated to the proposed rule, so the proposed rule is finalized without changes. For more on the proposed rule, see the April 2019 Federal Contracts Perspective article “EPA to Provide Award Term Incentive Policies.”

VA Continues Updating the VAAR

The Department of Veterans Affairs (VA) continues amending and updating its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the FAR, to remove redundant and duplicate material already covered by the FAR; to remove procedural guidance internal to VA and place it into the VA Acquisition Manual (VAAM), correct inconsistencies within the VAAR; to incorporate any new VA-specific regulations or policies; delete outdated material or information; and renumber VAAR text, clauses, and provisions to conform to the FAR format, numbering, and arrangement.

This rule/increment revises VAAR part 812, Acquisition of Commercial Items, and VAAR part 813, Simplified Acquisition Procedures, along with associated VAAR clauses. The following are the significant changes made to these VAAR parts:

Five respondents submitted comments on the proposed rule, and several changes were made to clarify and simplify the final rule. For more on the proposed rule, see the February 2018 Federal Contracts Perspective article “VAAR to be Revised to Align with the FAR.”

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