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Flurry of new procurement rules issued before end of federal fiscal year

On September 30, 2016, the Federal Acquisition Regulatory Council issued ten amendments to the Federal Acquisition Regulation (FAR). Nine were final rules, and one was an interim rule. Many of the final rules are the final version of interim rules.

Government contractors may want to review this summary of the rules to determine which of the rules affect their work with the federal government.

Prohibition on contracting with corporations with unpaid taxes or a felony conviction

The federal government can’t contract with any corporation that has not paid its taxes or with any corporation that has a felony conviction of a federal law. This final rule adopts the interim rule.

Updating contractor reporting of veteran employment

The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) requires government contractors to annually report the number of veterans they employed (if those veterans fall into the categories specified by VEVRAA). This final rule adopts the interim rule.

No retaliation for disclosure of compensation to others

Government contractors can’t prohibit discussions among their employees about how much they get paid. This final rule adopts the interim rule first published in the September 11, 2015, edition of the Federal Register (880 F.R. 54934).

Sole-source contracts for women-owned small businesses

Under the National Defense Authorization Act (NDAA) for 2015, contracting officers are authorized to award sole-source contracts to economically disadvantaged women-owned small businesses (WOSBs) eligible under the WOSB program. The final rule adopted the interim rule with only a small editorial change.

Identification numbers for government contractors

Formerly, the government used DUNS numbers for tracking government contractors. DUNS—which stands for Data Universal Numbering System—is a proprietary system that belongs to Dun and Bradstreet. The government will now start tracking government contractors according to its own unique entity identifier, which is defined by this final rule.

Consolidating and bundling procurements

Before consolidating several government procurements that exceed $2 million, senior chief procurement executives or chief acquisition officers for the government must determine and document that the consolidation is necessary and otherwise justified. This rule is likely to increase the opportunities of small businesses to receive government contracts. This implements regulatory changes of the Small Business Administration (SBA) required by the Small Business Jobs Act of 2010. The SBA announced its final rule on this subject on October 2, 2013 (78 F.R. 61113). The FAR Council rule reorganizes coverage of bundling at FAR § 7.107. The final rule contains a number of significant changes from the proposed rule.

Multi-year contract authority for the acquisition of property

The NDAA of 2016 changed the wording 10 U.S.C. § 2306b by striking “substantial” and substituting “significant.” This rule conforms FAR § 17.105-1(b)(1) to the new statutory language. This statute allows the head of certain agencies—namely, the Department of Defense, the National Aeronautics and Space Administration, and the Coast Guard—to enter into multi-year contracts for supplies if such contracts will result in significant savings. This final rule didn’t have to be published for public comments because it addressed an internal decision by a contracting officer to enter into a multi-year contract and therefore affects the internal operating procedures of the government.

Ukraine and Moldova added to international procurement agreement

This final rule adds Ukraine and Moldova to the list of designated countries under the World Trade Organization Government Procurement Agreement (WTO GPA). This rule exempts these two countries from the Buy American Act.

Contractors performing private security functions outside of the United States

This final rule implements § 862 of the National Defense Authorization Act (NDAA) for 2008 and amends FAR § 25.302 and FAR § 52.225-26 to remove provisions specific to the U.S. Department of Defense (DoD). These DoD-specific provisions were moved to the Defense Federal Acquisition Supplement (DFARS) on June 30, 2016 (81 F.R. 42559). The rule set forth in the DFARS—

  1. Provides DoD contracting officers and contractors a single clause covering all requirements about the performance of private security functions outside the United States.
  2. Identifies the international high-quality assurance standard “ISO 18788: Management System for Private Security Operations” as an approved alternative to the American standard “ANSI/ASIS PSC.1–2012" previously required by DFARS clause 252.225–7039.

Limitations on compensation costs for government contractor personnel

This rule implements § 702 of the Bipartisan Budget Act of 2013. For certain individual employees of a government contractor, this rule limits employment compensation to $478,000 a year, but compensation can be adjusted to reflect changes in the employment cost index for all workers (published by the U.S. Bureau of Labor Statistics). There are some narrow exceptions to this rule for scientists, engineers, and other specialists. This final rule adopted an interim rule with a few changes. The interim rule was first published on June 24, 2014 (79 F.R. 35865).

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2016


© 2016

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Monday, 19 November 2018

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