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FAR Councils Issue Nine Rules in FAC 2005-30

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have published Federal Acquisition Circular 2005-30. The Circular contains one interim and eight final rules amending the Federal Acquisition Regulation. In order of appearance, the rules address: Item I --Federal Procurement Data System (FAR Case 2004-038); Item II --Commercially Available Off-the-Shelf Items (FAR Case 2000-305); Item III --Exemption of Certain Service Contracts from the Service Contract Act (FAR Case 2001-004); Item IV --Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts (FAR Case 2008-003, Interim); Item V --SAFETY Act: Implementation of DHS Regulations (FAR Case 2006-023); Item VI --Electronic Products Environmental Assessment Tool (FAR Case 2006-030); Item VII --Combating Trafficking in Persons (FAR Case 2005-012); Item VIII --Trade Agreements-New Thresholds (FAR Case 2007-016); and Item IX, Technical Amendments. All rules carry a February 17, 2009, effective date, unless otherwise noted. For a complete listing of all FAR sections impacted by this FAC, see the table below in this report. The full text of FAC 2005-30 appears at 70,002.105.
 
Procurement Data

FAR Case 2004-038, finalizes, with a minor change, an interim rule issued with FAC 2005-25, which amended the FAR to revise the process for reporting contract actions to the Federal Procurement Data System. The interim rule established the FPDS as the single authoritative source of all procurement data for a number of applications and reports, such as the Central Contractor Registration, the Electronic Subcontracting Reporting System, the Small Business Goaling Report, and Resource Conservation and Recovery Act data. The rule amended FAR Subpart 4.6 to revise the process for reporting contract actions to the FPDS, which will allow agencies to obtain federal procurement reports as well as several workload reports designed specifically for first-line supervisors. The use of the federal reports will alleviate the need for individual agencies to collect, verify, and distribute statistics for many requirements. In addition to revising FAR Subpart 4.6 (FAR 4.600 through FAR 4.607), the rule amended FAR 1.106, FAR 2.101, FAR 4.805, FAR 12.301, and the contract clauses at FAR 52.204-5 through FAR 52.204-7, and FAR 52.212-1. The final rule clarifies the definition of "indefinite delivery vehicle" at FAR 4.601 to include other types of agreements beyond indefinite delivery contracts.
 
COTS

The final rule associated with FAR Case 2000-305 amends the FAR to implement Section 4203 of the Clinger-Cohen Act of 1996 (41 USC 431) with respect to the inapplicability of certain laws to contracts and subcontracts for the acquisition of commercially available off-the-shelf items (see 70,006.159 for the proposed rule). FAR 2.101 is amended to define COTS as any item of supply (including construction material) that is a commercial item (as defined in paragraph (1) of FAR 2.101) sold in substantial quantities in the commercial marketplace, and is offered to the government under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace. The rule adds a new section at FAR 12.103, which outlines the treatment of COTS items, as well as a new provision at FAR 12.505, which lists the laws that do not apply to contracts for the acquisition of COTS items. The rule also amends FAR 25.003 to revise the definitions of "domestic construction material" and "domestic end product" to include COTS items. Corresponding changes are also made at FAR 3.503-2, FAR 12.301, FAR 12.500, FAR 12.502, FAR 23.406, FAR 25.100, FAR 25.101, FAR 25.200, and the contract clauses at FAR 52.212-3, FAR 52.212-5, FAR 52.213-4, FAR 52.225-1 through FAR 52.225-4, and FAR 52.225-9 through FAR 52.225-12.
 
Service Contracts

FAR Case 2001-004, finalizes, with changes, an interim rule issued with FAC 2005-21, which amended the FAR to implement the Department of Labor's final rule issued January 18, 2001 (66 FR 5327), amending the regulations at 29 CFR Part 4 to exempt certain contracts for services meeting specific criteria from coverage under the Service Contract Act. The interim rule imposed the DoL criteria, but did not utilize the term "commercial services," because the specified criteria are not exactly the same as the FAR definition of "commercial item." The rule incorporated slight revisions to the exemption for consistency with the current DoL regulations and clarified appropriate courses of action for the contracting officer. To implement the DoL regulations, the interim rule established a new category of exemptions for certain service contracts, including contracts for the following: automobile and vehicle maintenance services; financial services; hotel/motel services; equipment maintenance, calibration, repair, and installation services; common carrier transportation services; real estate services; and relocation services. To implement these new requirements, the interim rule added three contract clauses at FAR 52.222-51 through FAR 52.222-53 to address the SCA exemption for specified services, and contracts for the maintenance, calibration, or repair of certain equipment. The final rule adds to the Annual Representations and Certifications clause at FAR 52.204-8, the conditions under which each listed provision applies, or for the more complex cases, a check-off for the contracting officer to indicate whether the provision is applicable to the solicitation. The other changes in the final rule clarify and make technical corrections at FAR 4.1201, FAR 4.1202, FAR 15.102, FAR 22.1003-4 through FAR 22.1003-6, FAR 22.1006, FAR 52.212-3, FAR 52.212-5, FAR 52.222-48, and FAR 52.222-53. In addition, the interim rule amended the following provisions: FAR 17.109, FAR 22.1004, FAR 22.1008-2, FAR 22.1018 through FAR 22.1020, FAR 22.1022, FAR 22.1023, FAR 22.1026, FAR 52.212-1, FAR 52.213-4, and FAR 52.222-41.
 
Justifications and Approvals

An interim rule, FAR Case 2008-003, amends the FAR to implement Section 844 of the National Defense Authorization Act for Fiscal Year 2008, "Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts," which stipulates the requirements regarding the public availability of justification and approval documents after the award of federal contracts, except for information exempt from public disclosure. This rule revises FAR 6.305 to require agencies to make available for public inspection within 14 days after contract award the justification required by FAR 6.303-1 on the agency's website and at the Governmentwide Point of Entry (www.fedbizopps.gov ). In the case of a contract award permitted under FAR 6.302-2, the rule requires that the justification be posted within 30 days after contract award. The rule also requires contracting officers to screen carefully all justifications for contractor proprietary data and remove all such data, and any references and citations as are necessary to protect the proprietary data, before making the justifications available for public inspection. This interim rule also adds a new section at FAR 5.406 that cross-references the requirements at FAR 6.305. The rule also amends FAR 5.301 and FAR 24.203. Comments on this interim rule are due March 16, 2009.
 
SAFETY Act

A rule, FAR Case 2006-023, finalizes, with changes, an interim rule issued with FAC 2005-21, which amended the FAR to implement the Department of Homeland Security regulations on the SAFETY Act. The SAFETY Act (6 USC 441 and following) provides incentives for the development and deployment of anti-terrorism technologies by creating a system for "risk management" and "litigation management." The purpose of the Act is to ensure the threat of liability does not deter potential manufacturers or sellers of antiterrorism technologies from developing, deploying, and commercializing technologies that could save lives. DHS published a final rule (71 FR 33147) at 6 CFR Part 25 that limited the liability of sellers who maintain a "SAFETY Act designation" or "SAFETY Act certification." The DHS SAFETY Act certification of a technology as an "approved product" confers a rebuttable presumption that sellers are entitled to the "government contractor defense" (6 USC 442(d)), which means that any seller of an "approved product" cannot be held liable for design defects. The interim rule renumbered existing FAR Part 50, Extraordinary Contractual Actions, as FAR Subpart 50.1, and added a new FAR Subpart 50.2, Support Anti-terrorism by Fostering Effective Technologies Act of 2002, to address the SAFETY Act. The rule also added associated contract clauses at FAR 52.250-2 through FAR 52.250-5. The final rule makes changes to FAR Subpart 50.2 and associated contract clauses to improve clarity and implementation of the Safety Act. For example, the final rule modifies the definitions of "pre-qualification notice," "block designation," "SAFETY Act designation," and "SAFETY Act certification" at FAR 50.201 and in the associated contract clauses. Corresponding technical changes made by the interim rule at FAR 1.602-3, FAR 7.105, FAR 18.121, FAR 18.126, FAR 28.308, FAR 32.401, FAR 32.402, FAR 32.405, FAR 33.205, FAR 43.000, and FAR 52.250-1 were finalized without change.
 
Environmental Assessment

The rule associated with FAR Case 2006-030 finalizes, without change, an interim rule issued with FAC 2005-23, which amended the FAR to require use of the Electronic Products Environmental Assessment Tool when acquiring personal computer products such as desktops, notebooks or laptops, and monitors pursuant to the Energy Policy Act of 2005 and Executive Order 13423, "Strengthening Federal Environmental, Energy, and Transportation Management." EPEAT is a system that helps purchasers in the public and private sectors evaluate, compare, and select computers and computer components based on the environmental attributes of the equipment. EPEAT also provides a clear and consistent set of performance criteria for the design of products, and an opportunity for manufacturers to secure market recognition for efforts to reduce the environmental impact of their products. The interim rule revised FAR Subpart 23.7, which implements the requirements for acquiring environmentally preferable products and services, and prescribed a new clause, FAR 52.223-16 (also included in FAR 52.212-5 for acquisition of commercial items), for all solicitations and contracts for the acquisition of personal computer products, services that require furnishing of personal computer products for use by the government, and services for contractor operation of government-owned facilities. The rule also added a new provision at FAR 23.701 that defines a "personal computer product" to include notebook computers, desktop computers, or computer monitors, and all peripherals that are integral to the operation of these items, consistent with the IEEE 1680 standard. In accordance with Section 7 of E.O. 13423 , the EPEAT requirement applies only to contracts performed in the United States, unless otherwise authorized in agency procedures. This rule also impacts FAR 11.101, FAR 23.702, FAR 23.705, FAR 23.706, FAR 39.101, and FAR 52.223-10.
 

Trafficking in Persons

A rule, FAR Case 2005-012, finalizes, with changes, an interim rule issued with FAC 2005-19, which amended the FAR to implement 22 USC 7104(g). The statute mandates that contracts include a provision authorizing the government to terminate the contract if the contractor or any subcontractor engages in trafficking in persons. That interim rule had adopted, with changes, a prior interim rule, published with FAC 2005-09, that implemented this statute by adding FAR Subpart 22.17 with an associated clause at FAR 52.222-50 to address combating trafficking in persons. In revising the first interim rule, the FAR Councils noted the statutory language at 22 USC 7104(g) contained no exceptions or limitations with regard to its application to federal contracts. Therefore, while the first rule applied only to contracts for services (other than commercial), the second interim rule applied to all contracts, including contracts for supplies, and all contracts for commercial items as defined at FAR 2.101. To reflect the statutory language accurately, the second interim rule provided for contract termination for engaging in severe forms of trafficking in persons or procurement of a commercial sex act during the period of performance of the contract, or for use of forced labor in the performance of the contract. The requirements for the contractor to establish policies and procedures and develop an awareness program were replaced with the requirement to notify employees of the government policy and actions that will be taken against them for violations. Additionally, the second interim rule deleted the requirement to obtain written agreement from employees. Accordingly, the second interim rule revised FAR 12.503, FAR 22.1700- FAR 22.1705, FAR 52.212-5, FAR 52.213-4, and FAR 52.222-50. The final rule amends FAR 22.1702 to add the definition of "forced labor." The term is also added to the contract clause at FAR 52.222-50 as a method of coercion prohibited by the clause. In addition, the final rule amends the policy provision at FAR 22.1703 to specify that additional information about trafficking in persons can be found at the website for the Department of State's Office to Monitor and Combat Trafficking in Persons' at http://www.state.gov/g/tip . The amendment to FAR 22.1704 specifies that contracting officers may take into consideration whether the contractor had a Trafficking in Persons awareness program at the time of the violation as a mitigating factor when determining the appropriate remedies. Corresponding technical changes are made to FAR 52.212-5, FAR 52.213-4, and FAR 52.244-6.
 
Trade Thresholds

The FAR Case 2007-016 rule finalizes, without change, an interim rule issued with FAC 2005-24 (and a subsequent correction, see 70,002.98). The interim rule implemented the increased thresholds for the World Trade Organization Government Procurement Agreement and Free Trade Agreements. Trade agreement thresholds are increased every two years according to a predetermined formula set forth in the agreements. The changes made to the FAR resulted from new thresholds published by the United States Trade Representative in the Federal Register (72 FR 71166 and 72 FR 73904). A table showing the new dollar thresholds appears at revised FAR 25.402. The other provisions affected by the rule are: FAR 22.1503, FAR 25.202, FAR 25.1101, and FAR 25.1102, and the contract clauses at FAR 52.212-5, FAR 52.213-4, and FAR 52.222-19. This rule has a January 15, 2009, effective date.
 

Etc.

Item IX of FAC 2005-30 implements a technical amendments final rule to the FAR. The rule makes an editorial change at FAR 15.101-2. This technical change has a January 15, 2009, effective date. Also, FAC 2005-30 includes a Small Entity Compliance Guide, which was prepared in accordance with Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. The Guide identifies two rules --FAR Case 2001-004 and FAR Case 2006-030 --as having a corresponding regulatory flexibility analysis.
 

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

     
  
 

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