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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


September 2021
Vol. XXII, No. 9
[pdf version]

CONTENTS


FAC 2021-07 Addresses Small Business Subcontracting, Accessibility Standards
FY 2022 Per Diem Rates Released
DOD Eases the DFARS Out of Summer
SBA Suspends 8(a) Place of Business Requirement
GSA Proposes Clause Extending FSS Orders



FAC 2021-07 Addresses Small Business
Subcontracting, Accessibility Standards

Federal Acquisition Circular (FAC) 2021-07 amends the Federal Acquisition Regulation (FAR) to adopt four final rules. Two of the final rules address small business issues, one addresses the authority of procurement center representatives (PCRs), and one to harmonize the FAR with information and communications technology (ICT) accessibility standards for those with disabilities that have been developed by standards organizations worldwide.



FY 2022 Per Diem Rates Released

The General Services Administration (GSA) has established the Fiscal Year (FY) 2022 per diem rates for the lower 48 Continental United States (CONUS), which are the maximum allowances that federal employees of civilian agencies are reimbursed for expenses incurred while on official travel (the Department of Defense employees are subject to per diem rates established under the Joint Travel Regulations). The rates are available at https://www.gsa.gov/perdiem. (Note that the FY 2022 rates are not the default rates until October 1, 2021. One must select “FY 2022” from the drop-down box above the "Search By City, State, or ZIP Code” or “Search by State" map. Otherwise, the search box will return FY 2021 rates.)

Federal per diem reimbursement rates consist of a maximum lodging allowance component and a meals and incidental expenses (M&IE) component. Most of CONUS (approximately 2600 counties) is covered by the standard per diem rate of $155 ($96 lodging, $59 M&IE). In FY 2022 there are 319 non-standard areas (NSAs) that have per diem rates higher than the standard rate. (EDITOR’S NOTE: NSAs are the most frequently visited areas by the federal community and are reviewed on an annual basis. Standard CONUS locations are less frequently visited by the federal community.)

GSA bases the maximum lodging allowances on historical average daily rate (ADR) data. However, because of the unprecedented declines in ADR due to the COVID pandemic, GSA decided to freeze CONUS lodging rates at FY 2021 levels to ensure the maximum lodging allowances for federal travelers are sufficient in FY 2022 as the lodging industry recovers. However, the M&IE reimbursement rates have been revised – the M&IE NSA tiers range is increased from $56-$76 to $59-$79, and the standard M&IE rate is increased from $56 to $59.

As a reminder, Federal Travel Regulation (FTR) Part 301-11, Per Diem Expenses, Subpart D, Actual Expense, allows for actual expense reimbursement when per diem rates are insufficient to meet necessary expenses.



DOD Eases the DFARS Out of Summer

After a relatively quiet summer, the Department of Defense (DOD) wrapped it up with two final rules and three proposed rules.



SBA Suspends 8(a) Place of Business Requirement

The Small Business Administration (SBA) has suspended the requirement that participants in its 8(a) Business Development (BD) Program must establish a bona fide place of business in a specific geographic area to be eligible for an award of any construction contract through the 8(a) Program due to the ongoing challenges of COVID-19. The suspension will remain in effect through September 30, 2022.

The SBA’s regulations governing the 8(a) program are in 13 CFR Chapter 124, 8(a) Business Development/Small Disadvantaged Business Status Determination. 13 CFR 124.3, What definitions are important in the 8(a) BD program?, states that “bona fide place of business, for purposes of 8(a) construction procurements, means a location where a participant regularly maintains an office which employs at least one full-time individual within the appropriate geographical boundary. The term does not include construction trailers or other temporary construction sites.”

Paragraph (d)(1) of 13 CFR 124.503, How does SBA accept a procurement for award through the 8(a) BD program?, provides that “if the procurement is a construction requirement, SBA will examine the portfolio of participants that have a bona fide place of business within the geographical boundaries served by the SBA district office where the work is to be performed to select a qualified participant.” This is the requirement being suspended.

During the suspension, any 8(a) program participant seeking an 8(a) construction contract, either on a sole source or competitive basis, will not be required to have or establish a bona fide place of business in any specific geographic location. SBA believes this will make it easier for small disadvantaged businesses to be eligible to be awarded 8(a) construction contracts.>/P?

GSA Proposes Clause Extending FSS Orders

The General Services Administration (GSA) proposes to amend the General Services Administration Acquisition Regulation (GSAR) to incorporate existing internal Federal Supply Schedule (FSS) policy concerning the option to extend the term of the contract and performance of orders beyond the term of the base FSS contract.

FSS clause I-FSS-163, Option to Extend the Term of the Contract (Evergreen), has been in use by the FSS program since 2000. This clause is currently implemented through internal GSA policy and incorporated into FSS solicitations and contracts. Incorporating this clause into the GSAR as GSAR 552.238-116, Option to Extend the Term of the FSS Contract, would allow greater transparency. The clause would be as follows:

“(a) The government may require continued performance of this contract for an additional 5 year period. This option may be exercised up to three times.

“(b) The contracting officer may exercise the option by providing written notice to the contractor 30 days before the contract expires.”

In addition, GSAR 538.273, FSS Solicitation Provisions and Contract Clauses, would be amended by adding the following as paragraph (d)(36): “[insert as an addendum to FAR 52.212-4, Contract Terms and Conditions – Commercial Items] [GSAR] 552.238-116, Option to Extend the Term of the FSS Contract. Use in all FSS solicitations and contracts.”

Finally, the internal policy concerning standard fill-in information for paragraph (d) of FAR 52.216-22, Indefinite Quantity (“the contractor shall not be required to make any deliveries under this contract after _______________”), has been in use by the FSS program since 2016. The use of standard fill-in information supports the administration of orders issued during the FSS contract ordering period that remain active beyond expiration of the FSS contract ordering period. This requirement is currently implemented through internal GSA policy and incorporated into FSS solicitations and contracts. GSAR 538.273 would incorporate this standard fill-in language with the addition of the following as paragraph (e): “Insert the following fill-in information within the blank of paragraph (d) of FAR clause 52.216-22, Indefinite Quantity: ‘the completion of customer order, including options, 60 months following the expiration of the FSS contract ordering period’.”

Comments on this proposed rule must be submitted no later than November 1, 2021, identified as “GSAR Case 2020-G509,” through the Federal eRulemaking Portal at http://www.regulations.gov.





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