Panoptic Enterprises’


Federal Acquisition Developments, Guidance, and Opinions

May 2020
Vol. XXI, No. 5
[pdf version]


Acquisition Community Fighting COVID-19 on a Multitude of Fronts
DOD Cranks Up the Non-COVID-19 Rules, Too!
Two Proposed FAR Rules and a Deviation Issued
Nonmanufacturer Rule Waiver for Diabetic Test Strips

Acquisition Community Fighting COVID-19
On a Multitude of Fronts

Just about every department and agency of the federal government has taken action to help the acquisition community issue contracts and orders to assist in the fight against the Novel Coronavirus (or “COVID-19” – “coronavirus disease first identified on December 31, 2019”). Guidance on utilizing and complying with the Coronavirus Aid, Relief, and Economic Security (CARES) Act, deviations to acquisition regulations, reminders, and much, much more filled the in-boxes of the nation’s contracting officers and acquisition workforce.

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

Watch for more COVID-19-relate guidance and direction in May.

DOD Cranks Up the Non-COVID-19 Rules, Too!

As was the case in March, DOD didn’t allow the COVID-19 pandemic to faze it. Despite all the effort it put into COVID-19 acquisition-related memoranda and deviations during April (see previous article), it issued five other final rules on acquisition topics, four proposed rules, and a deviation!

Two Proposed FAR Rules and a Deviation Issued

Just because the COVID-19 is monopolizing everyone’s attention doesn’t mean that the FAR can be ignored. There are provisions of National Defense Acquisition Acts that need to be incorporated into the FAR, and provisions that need to be incorporated while the FAR Council finalizes changes to the FAR. During April, the FAR Council issued two proposed rules and a FAR deviation (applicable only to civilian agencies) to implement provisions of three different NDAAs.

Nonmanufacturer Rule Waiver for Diabetic Test Strips

The Small Business Administration (SBA) is proposing to issue a nonmanufacturer rule waiver for diabetic test stripes under Product Service Code (PSC) 6515, Medical and Surgical Instruments, Equipment, and Supplies, North American Industry Classification System (NAICS) code 325413, In-Vitro Diagnostic Substance Manufacturing.

SBA is inviting the public to comment on this proposed waiver or to provide information on potential small business sources on any small business manufacturers of this class of products that are available to participate in the federal market by May 20, 2020, to the Federal Rulemaking Portal at https://www.regulations.gov.

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 if the recipient is not the actual manufacturer (see paragraph (c) of FAR 19.505, Limitations on Subcontracting and Nonmanufacturer Rule). This is called the “nonmanufacturer rule.” However, SBA may waive this requirement if there are no small business manufacturers of the product.

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 Section 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/contracting/contracting-officials/non-manufacturer-rule/non-manufacturer-waivers. 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.

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