Panoptic Enterprises'


Federal Acquisition Developments, Guidance, and Opinions

October 2007
Vol. VIII, No. 10


OFPP Recommends That Agencies Hire Annuitants to Fill Acquisition-Related Positions
Pilot Program Requires Subcontract Reporting
Tidying Up the DFARS
GSA Simplifies Local Set-Asides for Recovery Contracts
SBA Extends "GO Loan" Pilot Program
OMB Releases Final Set of FY 2006 FAIR Act Inventories
DOSAR Implements IT Security Requirements

OFPP Recommends That Agencies Hire Annuitants
To Fill Acquisition-Related Positions

Office of Federal Procurement Policy (OFPP) Administrator Paul Denett reminded agencies that a law passed last year permits them to hire retired annuitants to fill critical vacancies in the acquisition field, and suggested this may be a way to address the increasing acquisition workload coinciding with the retirement of the baby boomer acquisition professionals.

"The beginning of the twenty-first century has presented our acquisition workforce with unprecedented challenges," wrote Mr. Denett in a memorandum to chief acquisition officers and senior procurement executives. "We are more reliant on contracting to support agency missions, and federal acquisition spending has nearly doubled in the last five years. We are increasing the size of the overall acquisition workforce and expanding our intern programs. However, a significant loss of experience and corporate knowledge is expected as the baby boomer generation retires over the next few years."

The law, the General Services Administration Modernization Act (Public Law 109-313), was signed into law by President Bush in October 2006. It allows agencies to hire an individual receiving an federal annuity to fill an acquisition-related position under certain circumstances. The authority to use this provision expires December 31, 2011.

The memorandum identified the following functions as among those reemployed annuitants could provide:

To use this authority, agencies must provide a plan that includes the process for reemploying annuitants to acquisition-related positions. The plan must be coordinated with the agency's Chief Human Capital Officer, the Chief Acquisition Officer, and the Acquisition Career Manager, then the agency head must consult with the Office of Personnel Management (OPM) and OFPP before implementing the plan.

Further information on the use of this legislative authority may be obtained from Lesley Field, OFPP, 202-395-4761.

Pilot Program Requires Subcontract Reporting

Federal Acquisition Circular (FAC) 2005-20 consists of a single final rule, one that requires contractors with contracts awarded and performed in the United States that exceed $500,000,000 to report all first-tier subcontract awards greater than $1,000,000 into the publically-accessible, searchable database mandated by the Federal Funding Accountability and Transparency Act of 2006 (FFATA) (Public Law 109-282). However, because this reporting requirement is a pilot program intended to test the collection and accession of subcontract data, information reported under the pilot program will not be disclosed to the public.

The FFATA requires the establishment of a searchable website that provides public access, at no charge, to information about federal expenditures -- contracts, subcontracts, purchase orders, task orders, delivery orders, grants, subgrants, loans, cooperative agreements, and other forms of financial assistance that exceed $25,000. Section 2(d) of the FFATA requires that a pilot program be established to test the collection and accession of subcontract award data. The pilot program will terminate no later than January 1, 2009. (EDITOR'S NOTE: For more on Public Law 109-282, see the October 2006 Federal Contracts Perspective article "Federal Awards Website Approved").

The rule adds Federal Acquisition Regulation (FAR) Subpart 4.14, Reporting Subcontract Awards, and the corresponding clause at FAR 52.204-10. The clause requires that contractors with contracts over $500,000,000 report the following on each subcontract greater than $1,000,000 to http://www.esrs.gov:

This information must be reported within 30 days after the end of March, June, September, and December of each year through 2008.

Solicitations and contracts for commercial items issued under FAR Part 12, Acquisition of Commercial Items, and classified soliciations and contracts are exempt from this requirement.

Seventeen respondents submitted comments on the proposed rule, addressing security issues and competitive issues regarding the public accessibility of this information, and the burdens placed on contractors to capture the required data. However, the proposed rule is finalized without changes, primarily because Congress, with the enactment of FFATA, has mandated the collection and availability of such information. For more on the proposed rule, see the April 2007 Federal Contracts Perspective article "Numbered Synopsis Notes Proposed for Deletion."

Tidying Up the DFARS

The Department of Defense (DOD) decided to tidy up the Defense Federal Acquisition Regulation Supplement (DFARS) to finalize several interim rules and to issue three new interim rules. Also, DOD proposes another DFARS change.

GSA Simplifies Local Set-Asides for Recovery Contracts

Lurita Doan, administrator of the General Services Administration (GSA), signed GSA Order ADM 2851.5, making it simpler and faster for GSA to award million of dollars in recovery contracts to local small businesses in the Gulf Region supporting Hurricane Katrina recovery efforts.

After Hurricane Katrina in 2005, President Bush declared the Gulf Coast a major disaster area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. This declaration allows contracting officers to give a preference to local firms in the affected area. Instead of writing separate justifications, ADM 2851.5 provides a blanket justification for all local preference awards under the authority of the Stafford Act (see FAR Subpart 6.6, Stafford Act Preference for Local Area Contractor, and FAR Subpart 26.2, Disaster or Emergency Assistance Activities).

ADM 2851.5 requires that "contracts for debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities, undertaken pusuant to the Stafford Act for disaster assistance and recovery shall, to the maximum extent feasible and practicable, be set-aside for award to local business concerns. This Stafford Act local area set-aside may be used in conjunction with other authorized set-asides, for example, those in FAR Part 19 [Small Business Programs] for small businesses. In particular, the HUBZone program in FAR Subpart 19.13 [Historically Underutilized Business Zone (HUBZone) Program] is an appropriate contract vehicle to use with the local area set-aside since the HUBZone program is designed to increase economic development and there are numerous HUBZone qualified areas within the Gulf Coast region.

"With respect to contracts for goods and services below the simplified acquisition threshold, contracting officers are to consider for award local small business concerns in the areas covered by the above-referenced Disaster Declarations...When contracting for these procurements, preference is to be given to businesses that are both small business concerns and are local. Contracts for goods and services in the areas covered by the above-referenced Disaster Declarations that are not set-aside for award to local small business concerns or local concerns shall include a statement of the reasons why set-aside was not feasible or practicable."

SBA Extends "GO Loan" Pilot Program

Because the Small Business Administration (SBA) believes there continues to be a substantial need for SBA assistance in the presidentially-declared disaster areas resulting from Hurricanes Katrina and Rita, SBA is extending the Gulf Opportunity Pilot Loan Program (GO Loan Pilot) for one year, until September 30, 2008.

The GO Loan Pilot was initiated on an emergency basis in November 20005 to provide expedited small business financial assistance to businesses located in those communities severely affected by Hurricanes Katrina and Rita. Under this unique initiative, SBA provides its full (85%) guaranty and streamlined and centralized loan processing to all eligible lenders that agree to make expedited SBA 7(a) loans available to small businesses located in, locating to or relocating in the parishes/counties that have been presidentially-declared as disaster areas resulting from Hurricanes Katrina and Rita, plus any contiguous parishes/counties (a list of all eligible parishes/counties is located at http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_goloan_3.pdf).

For more on the GO Loan Program, see the December 2005 Federal Contracts Perspective article "Size Standards Amended for Hurricane-Relief Programs."

OMB Releases Final Set of FY 2006 FAIR Act Inventories

The Office of Management and Budget (OMB) has released the third and final set of Fiscal Year 2006 Commercial Activities Inventories of non-governmental functions being performed by government agencies. These inventories are required to be compiled and made available to the public by the Federal Activities Inventory Reform (FAIR) Act of 1998.

Inventories are from the Department of Housing and Urban Development Inspector General (IG), Federal Communications Commission, Office of Management and Budget, the Small Business Administration (IG), and several small agencies and commissions.

Interested parties who disagree with an agency's initial judgment have 30 working days from September (that is, until October 26) to challenge the omission or inclusion of an activity on an agency's Commercial Activities Inventories list.

The Office of Federal Procurement Policy has made available a FAIR Act User's Guide at http://www.whitehouse.gov/OMB/procurement/fair-index.html to help interested parties review FY 2006 FAIR Act inventories.

DOSAR Implements IT Security Requirements

The Department of State (DOS) is amending the DOS Acquisition Regulation (DOSAR) to add a new solicitation provision, DOSAR 652.239-70, Information Technology Security Plan and Accreditation, and a new contract clause, DOSAR 652.239-71, Security Requirements for Unclassified Information Technology Resources, for inclusion in solicitations and contracts "that include information technology resources or services in which the contractor will have physical or electronic access to Department information that directly supports the mission of the Department." The clause and provision implement information technology (IT) systems security as required by the Federal Information Security Management Act of 2002 (FISMA) (Title III of the E-Government Act of 2002).

DOSAR 652.239-70 notifies offerors that all responses to the solicitation must address the approach for completing the security plan and certification requirements required by DOSAR 652.239-71. DOSAR 652.239-71 requires that the contractor be responsible for IT security, based on agency risk assessments, for all systems connected to a DOS network or operated by a contractor for DOS.

No comments were submitted in response to the proposed rule, so it is being finalized without changes.

For more on the proposed rule, see the July 2007 Federal Contracts Perspective article "DOSAR to Implement IT Security Requirements."

Copyright 2007 by Panoptic Enterprises. All Rights Reserved.

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