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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


April 2021
Vol. XXII, No. 4
[pdf version]

CONTENTS


Biden Administration Withdraws Four Proposed FAR Rules
COVID Requires Extensions to Acquisition-Related Rules
DOD Tides Up a Bit



Biden Administration Withdraws
Four Proposed FAR Rules

In its first foray into federal acquisition policy, the Biden administration has withdrawn four rules that proposed to amend the Federal Acquisition Regulation (FAR). In addition, the Biden Administration issued its first Federal Acquisition Circular (FAC) – FAC 2021-05 – consisting of a technical amendment to the FAR.



In addition to these four rule withdrawals, the Biden administration issued FAC 2021-05, which amends FAR 4.402, General [for safeguarding classified information within industry], and FAR 52.204-2, Security Requirements, to reflect the codification of the National Industrial Security Program Operating Manual (NISPOM – DOD 5220.22-M) as Title 32 of the Code of Federal Regulations (CFR), part 117 (32 CFR part 117), National Industrial Security Program Operating Manual. DOD will no longer publish the DOD 5220.22-M as a DOD policy issuance.

The NISPOM establishes requirements for the protection of classified information disclosed to or developed by contractors, licensees, grantees, or certificate holders to prevent unauthorized disclosure.

FAC 2021-05 amends FAR 4.402 to replace “DOD 5220-22.M” with “32 CFR part 117,” and “Chapter 10 of the NISPOM” [International Security Requirements] with “32 CFR 117.19” [International Security Requirements”; and amends FAR 52.204-2 to replace “DOD 5220-22.M” with “32 CFR part 117.”



COVID Requires Extensions to Acquisition-Related Rules

On March 13, 2020, President Trump declared the COVID pandemic a “national emergency” and invoked emergency powers and authorized federal agencies to exercise powers provided in a number of laws (see the April 2020 Federal Contracts Perspective article “Coronavirus Overruns United States, Emergency Acquisition Authorities Invoked”). Since the COVID pandemic has lasted for an entire year, many of these emergency powers are expiring and are being extended. Among the acquisition-related rules that were invoked and are now being extended are the following:

General Services Administration (GSA)

Small Business Administration (SBA)

Public Law 117-2, American Rescue Plan Act of 2021

The $2.2 trillion American Rescue Plan Act (Public Law 117-2) was signed by President Biden on March 11, 2021. It contains Section 4015, Extension of Reimbursement Authority for Federal Contractors, which extends the expiration date of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Public Law 116-136), Section 3610, Federal Contractor Authority, from September 30, 2020, to September 30, 2021. Section 3610 gives agencies the discretion to modify the terms and conditions of the contract to reimburse paid leave where contractor employees could not access work sites or telework but actions were needed to keep such employees in a ready state.

Department of Energy (DOE)



DOD Tides Up a Bit

The Department of Defense (DOD) took it easy in March, not issuing any proposed rules or final rules! Instead, DOD conducted some housekeeping chores, such as providing instructions and directions to contracting officers, revising email addresses, updating lists of items, and seeking industry comments on proposed renewal of an international agreement.





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