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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


November 2021
Vol. XXII, No. 11
[pdf version]

CONTENTS


Agencies Expedite Actions to Protect Contractor Employees from COVID
DOD Proposes Rules on Prototypes, Firms Used in Audits
Changes to WOSB/EDWOSB Certifications Proposed
Comments Sought on Minimizing Climate Change
OMB Issues More Guidance on Made in America Waivers



Agencies Expedite Actions to Protect
Contractor Employees from COVID

With a speed previously unknown in the federal government when it comes to acquisition matters, in October federal departments and agencies rushed to implement Executive Order (EO) 14042 of September 9, 2021, Ensuring Adequate COVID Safety Protocols for Federal Contractors (see the October 2021 Federal Contracts Perspective article "Biden Orders Federal Contractors to Protect Employees from COVID"), which directs the government to "ensure that contracts and contract-like instruments...include a clause that the contractor and any subcontractors (at any tier) shall...comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force..." The EO went on to require that the Federal Acquisition Regulation (FAR) be amended "to provide for inclusion in federal procurement solicitations and contracts subject to this order the clause described in this order, and shall, by October 8, 2021, take initial steps to implement appropriate policy direction to acquisition offices for use of the clause..."

On September 24, two weeks after EO 14042 was issued, the Safer Federal Workforce Task Force published its guidance (https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf). It stated that "covered contractors shall adhere to the requirements of this guidance" and strongly encouraged agencies "to incorporate a clause requiring compliance with this guidance". The guidance identified three workplace safety protocols and explained them: (1) vaccination of covered contractor employees; (2) requirements related to masking and physical distancing while in covered contractor workplaces; and (3) designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Consequently, on September 30, the Civilian Agency Acquisition Council (CAAC) issued a letter "authorizing [civilian] agencies to issue a class deviation to implement Executive Order 14042..." The letter includes a clause, FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, that agencies are required to include in the following:

Then the October action began:



DOD Proposes Rules on Prototypes, Firms Used in Audits

Besides the actions taken by the Department of Defense (DOD) in response to the COVID pandemic (see preceding article), DOD approached Fiscal Year (FY) 2022 (which started on October 1, 2021) with caution, issuing only two proposed rules and two deviations.



Changes to WOSB/EDWOSB Certifications Proposed

The FAR Council is proposing to amend FAR subpart 19.15, Women-Owned Small Business Program, to implement the NDAA for FY 2015 (Public Law 113-291), Section 825, Sole Source Contracts for Small Business Concerns Owned and Controlled by Women, which requires that women-owned small businesses (WOSBs) and economically disadvantaged women-owned small businesses (EDWOSB) be certified by the Small Business Administration (SBA), a federal agency, a state government, or a national certifying entity approved by SBA in the WOSB Program to be eligible for set-aside or sole-source awards.

Prior to the enactment of Section 825, 15 USC 637, Additional Powers [of the SBA], paragraph (m), Procurement Program for Women-Owned Small Business Concerns, provided that WOSBs and EDWOSBs could participate in the WOSB program if "each of the concerns (i) is certified by a federal agency, a state government, or a national certifying entity approved by the administrator [of SBA], as a small business concern owned and controlled by women; or (ii) certifies to the contracting officer that it is a small business concern owned and controlled by women and provides adequate documentation, in accordance with standards established by the [SBA], to support such certification." This is reflected in paragraph (b) of FAR 19.1503, Status [as WOSB or EDWOSB]: "The contracting officer shall verify that the offeror: (1) is registered in the System for Award Management (SAM) [https://www.sam.gov]; (2) is self-certified as an EDWOSB or WOSB concern in SAM; and (3) has submitted documents verifying its eligibility at the time of initial offer to the WOSB Program Repository. The contract shall not be awarded until all required documents are received.

Section 825 deleted the "self-certification" authority in subparagraph (ii) of 15 USC 637, thus requiring that all participants in the WOSB program be certified. In response, SBA amended its regulations at paragraph (a) of Title 13 of the Code of Federal Regulations, Section 127.300 (13 CFR 127.300), How is a concern certified as an WOSB or EDWOSB?, which addresses WOSB certifications, to state, "A concern may apply to SBA for WOSB certification...A concern may submit evidence to SBA that it is a women-owned and controlled small business that is certified by the U.S. Department of Veterans Affairs Center for Verification and Evaluation as a service-disabled veteran-owned business or veteran-owned business...A concern may submit evidence that it has been certified as a WOSB by an approved third-party certifier..." Paragraph (b) of 13 CFR 127.300 addresses EDWOSB certification and is exactly the same as paragraph (a) except that it contains the following additional criterion: "A concern that is a certified participant in the 8(a) BD Program and owned and controlled by one or more women qualifies as an EDWOSB." (For more information on the SBA's rule implementing Section 825, see "Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business Certification" in the June 2020 Federal Contracts Perspectivearticle "Two Socio-Economic Programs' Regulations Amended.")

To bring FAR subpart 19.15 (and related sections) into conformity with the SBA rule and Section 825, the following are the significant amendments being proposed:



Comments Sought on Minimizing Climate Change

The FAR Council is seeking comments on a possible FAR amendment that would ensure major federal agency procurements minimize the risk of climate change.

EO 14030, Climate-Related Financial Risk, states that "the federal government should lead by example by appropriately prioritizing federal investments and conducting prudent fiscal management." Section 5(b)(ii) of the EO directs the FAR Council, in consultation with the Chair of the Council on Environmental Quality and the heads of other agencies as appropriate, to "consider amending the FAR to...ensure that major federal agency procurements minimize the risk of climate change, including requiring the social cost of greenhouse gas emissions to be considered in procurement decisions and, where appropriate and feasible, give preference to bids and proposals from suppliers with a lower social cost of greenhouse gas emissions."

During its consideration of a FAR amendment, the FAR Council is seeking comments on the following questions:

"(a) How can greenhouse gas emissions, including the social cost of greenhouse gases, best be qualitatively and quantitatively considered in federal procurement decisions, both domestic and overseas? How might this vary across different sectors?

"(b) What are usable and respected methodologies for measuring the greenhouse gases emissions over the lifecycle of the products procured or leased, or of the services performed?

"(c) How can procurement and program officials of major federal agency procurements better incorporate and mitigate climate-related financial risk? How else might the federal government consider and minimize climate-related financial risks through procurement decisions, both domestic and overseas?

"(d) How would (or how does) your organization provide greenhouse gas emission data for proposals and/or contract performance?

"(e) How might the federal government best standardize greenhouse gas emission reporting methods? How might the government verify greenhouse gas emissions reporting?

"(f) How might the federal government give preference to bids and proposals from suppliers, both domestic and overseas, to achieve reductions in greenhouse gas emissions or reduce the social cost of greenhouse gas emissions most effectively?

"(g) How might the government consider commitments by suppliers to reduce or mitigate greenhouse gas emissions?

"(h) What impact would consideration of the social cost of greenhouse gases in procurement decisions have on small businesses, including small disadvantaged businesses, women-owned small businesses, service-disabled veteran-owned small businesses, and Historically Underutilized Business Zone (HUBZone) small businesses? How should the FAR Council best align this objective with efforts to ensure opportunity for small businesses?"

Comments should be submitted no later than December 14, 2021, identified as "FAR Case 2021-015," through the Federal eRulemaking Portal at http://www.regulations.gov. If the comments cannot be submitted using https://www.regulations.gov, contact Jennifer Hawes at 202-969-7386 or by email at jennifer.hawes@gsa.gov.

OMB Issues More Guidance on Made in America Waivers

The Office of Management and Budget (OMB) has issued a memorandum that provides more specific guidance on complying with EO 14005, Ensuring the Future is Made in All of America by All of America's Workers. EO 14005 directs agencies to take "a series of actions to enable the United States government to maximize its use of goods, products, and materials produced in, and services offered in, the United States. These actions include, among other things, requiring the OMB to establish the Made in America Office (MIAO). The MIAO will provide greater oversight of waivers from Made in America laws, thus increasing consistency and public transparency of such waivers."

In response to EO 14005, OMB issued an initial memorandum titled "Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws." That memorandum identified information that agencies must report to establish nonavailability of domestically sourced products, including a description of the market research and the outreach conducted. (For more on EO 14005 and the initial OMB memorandum, see the July 2021 Federal Contracts Perspectivearticle "Guidance on Reducing Made in America Waivers Issued.")

This memorandum builds upon the earlier memorandum by providing specific guidance to federal departments and agencies on the use of a digital waiver portal to submit proposed Made in America waivers to the MIAO. Proposed waivers will be posted to a new dedicated site, https://www.MadeinAmerica.gov, prior to agencies making awards, beginning with waivers for product nonavailability. Agencies will be required to submit proposed waivers after approval by their agency officials, proposing the acquisition of a foreign-made product due to the nonavailability of domestically made products. Centralized posting of proposed waivers will provide sellers of U.S.-made products with greater insight of the needs of the federal marketplace and help MIAO and agencies close gaps in U.S. domestic supply chains.

Beginning November 16, 2021, for agencies subject to the Chief Financial Officers Act (31 USC 901, Establishment of Agency Chief Financial Officers, covers all cabinet departments and other large agencies such as the General Services Administration [GSA], the National Aeronautics and Space Administration [NASA], and the Small Business Administration [SBA]), and January 1, 2022, for all other agencies covered by EO 14005 (that is, all others except independent regulatory agencies), must submit the proposed waiver accessible on the System for Award Management (SAM - https://www.sam.gov) prior to issuing a waiver in accordance to paragraph (b) of FAR 25.103, Exceptions [to the Buy American statute], which covers nonavailability. Once submitted, certain information about the waiver will be available to the public on MadeinAmerica.gov. "The agency shall not make an award until it has received confirmation that MIAO has completed its review of the proposed waiver, MIAO has waived the requirement for a review, or an exception applies" (that is, urgency or other situations where the agency must act in an expedited manner, or nonavailability determinations based on class determinations).

"Agencies should carefully consider public input on proposed waivers that may help to reduce the need for future waivers and avoid unneeded technical specifications that may inadvertently disqualify domestic suppliers. SAOs [Senior Accountable Officials for Domestic Sourcing] are also encouraged to share helpful domestic sourcing information with MIAO and other agency SAOs that may have similar requirements."

"MIAO intends to work with the Office of Federal Procurement Policy (OFPP), the other member agencies of the Federal Acquisition Regulatory Council (FAR Council), and the Department of Commerce (DOC) to review the current list of nonavailable articles in FAR 25.104 [Nonavailable Articles] to determine if any items should be removed from the list...OFPP will review any future recommendations to add items to the list with MIAO and DOC, paying particular attention to economic analyses of relevant markets and available market research. This will be done to determine whether there is a reasonable basis to conclude that the article, material, and supply is not mined, produced, or manufactured in the U.S. in sufficient and reasonably available commercial quantities and of a satisfactory quality, and make the findings available to the other members of the FAR Council for consideration."

In addition, the memorandum says that OFPP will work with the FAR Council to consider appropriate FAR amendments; the MIAO is working with the Federal Acquisition Institute and the Defense Acquisition University on appropriate training; and the MIAO intends to phase in the use of MadeinAmerica.gov for other types of waivers to Made in America laws, including procurement, financial assistance, and maritime waivers.





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