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FAC 2005-53 Issued with Six Rules

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have issued Federal Acquisition Circular 2005-53, which contains one interim and five final rules amending the Federal Acquisition Regulation. In order of appearance, the rules address: Item I, Equal Opportunity for Veterans (FAR Case 2009-007); Item II, Unique Procurement Instrument Identifier (FAR Case 2009-023); Item III, Uniform Suspension and Debarment Requirement (FAR Case 2009-036); Item IV, Extension of Sunset Date for Protests of Task and Delivery Orders (FAR Case 2011-015, Interim); Item V, Encouraging Contractor Policies To Ban Text Messaging While Driving (FAR Case 2009-028); and Item VI, TINA Interest Calculations (FAR Case 2009-034). The FAC also contains a Small Entity Compliance Guide. The effective date of the interim rule is July 5, 2011, and the final rules go into effect August 4, 2011. For the text of FAC 2005-53, see 70,002.134.

Equal Opportunity for Veterans

The rule in FAR Case 2009-007 finalizes, with minor changes, an interim rule from FAC 2005-46 that implemented Department of Labor regulations on equal opportunity provisions for various categories of military veterans. A final DoL rule (72 FR 44393) amending Title 41 of the Code of Federal Regulations implemented amendments to the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1972, as amended by the Jobs for Veterans Act (PL 107-288). The DoL rule changed the categories of veterans protected by these laws for covered government contracts entered into or modified on or after December 1, 2003. These changes specifically modified the government contracts equal opportunity clause and revised the categories of veterans to include Disabled Veterans, Recently Separated Veterans, Other Protected Veterans, and Armed Forces Service Medal Veterans. The JVA eliminated the separate coverage category of Vietnam-era veterans. However, DoL in its rule explained that many people in this category may be covered under the other categories. The JVA expanded the coverage of veterans with disabilities to all veterans who were discharged or released from active duty because of a service-connected disability. The interim rule changed the name of the clause at FAR 52.222-35 to "Equal Opportunity for Veterans," and it incorporated the new categories and definitions of protected veterans. Similarly, the clause at FAR 52.222-37 was renamed "Employment Reports on Veterans," and it was amended to incorporate the new DoL requirements for using the VETS-100A report. The FAR 52.222-38 clause was revised to incorporate new title references for FAR 52.222-37 and the new report form VETS-100A. Finally, the interim rule made conforming changes to the lists of FAR clauses in FAR 52.212-5, FAR 52.213-4, and FAR 52.244-6. In the change to the interim rule, the final rule adds the FAR 52.222-35 definition of "executive and senior management" to FAR 22.1301.


The FAR Case 2009-023 final rule amends the FAR to define the requirement for agency unique procurement instrument identifiers and to extend the requirement for using PIIDs to solicitations, contracts, and related procurement instruments. This final rule adds two new definitions at FAR 4.001, revises FAR 4.605(a), and adds new FAR Subpart 4.16 --Unique Procurement Instrument Identifiers, to prescribe policies and procedures for assigning PIIDs. The government expects these changes will reduce data errors and interoperability problems across the government's business processes which were created by inconsistent and non-unique PIID assignment and use. The changes only address internal government policy and procedures. In response to public comments on the proposed rule (70,006.242), the final rule removes the word "amendments" from the list of documents in FAR 4.605 and adds language to FAR 4.1601(f) to require linking any new PIID assigned to an award to the old originating PIID.

Suspension and Debarment

Another rule, FAR Case 2009-036, adopts as final, with minor changes, an interim rule from FAC 2005-47 that implemented Section 815 of the National Defense Authorization Act for Fiscal Year 2010 (PL 111-84), which required suspension and debarment requirements to flow down to all subcontracts, except for contracts for commercially available off-the-shelf items, and in the case of commercial items, first-tier subcontracts only. The interim rule amended FAR 9.405-2 to exclude COTS items from the restrictions on subcontracting with contractors that have been debarred, suspended, or proposed for debarment. The rule also amended the clause at FAR 52.209-6, Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment, by flowing down the requirement to check whether a subcontractor is suspended or debarred beyond the first tier, with the stated exceptions for COTS items. Corresponding technical changes were made to FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders, and FAR 52.213-4, Terms and Conditions Simplified Acquisitions (Other Than Commercial Items). In response to comments, the final version of the rule revises FAR 9.405-2 to clarify that a contracting officer notification requirement does not apply to subcontracts under $30,000.

Extension of Sunset Date

The interim rule, FAR Case 2011-015, amends the FAR to implement Section 825 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (PL 111-383), which extended the sunset date for protests against awards of task or delivery orders by DoD, NASA, and the Coast Guard from May 27, 2011 to September 30, 2016. The sunset date for protests against the award of task or delivery orders by other agencies remains May 27, 2011. As a result of the change, contractors will no longer be able to protest task or delivery orders awarded by agencies other than DoD, NASA, and the Coast Guard. The new sunset provision is added at amended FAR 16.505. Comments are due September 6, 2011.

Text Messaging

The FAR Case 2009-028 final rule adopts, with changes, an interim rule from FAC 2005-46 implementing Executive Order 13513, Federal Leadership on Reducing Text Messaging while Driving. This executive order was issued to demonstrate federal leadership in improving safety on the nation's roads and highways, and to enhance the efficiency of federal contracting. The interim rule implemented the order by creating new FAR Subpart 23.11 and an associated clause at FAR 52.223-18, Contractor Policy to Ban Text Messaging While Driving. The clause encourages the adoption and enforcement of policies that ban text messaging while driving company-owned or -rented vehicles or government-owned vehicles; or privately-owned vehicles when on official government business or when performing any work for or on behalf of the government. The clause also encourages contractors to conduct initiatives such as: establishing new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving; and education, awareness, and other outreach programs to inform employees about the safety risks associated with texting while driving. This requirement applies to all solicitations and contracts. The interim rule also made a conforming change to the scope provision at FAR 23.000, to include safe operation of vehicles, and added the clause to the list of terms and conditions at FAR 52.212-5. In response to public comments, the final rule changes language in the clause from "should" to "encouraged to," to better align with the intent of the executive order. A corresponding change in the final rule re-titles the clause "Encouraging Contractor Policies To Ban Text Messaging While Driving."

TINA Interest Calculations

The FAR Case 2009-034 final rule amends the clauses at FAR 52.214-27, FAR 52.215-10, and FAR 52.215-11 to require compound interest calculations be applied to government overpayments resulting from defective cost or pricing data. The rule is issued in response to the decision of the Court of Appeals for the Federal Circuit in Gates v. Raytheon Co. (53 CCF 79,168), which addressed the method of interest calculation on Cost Accounting Standards cost impacts. The interest on CAS cost impacts is set by reference in the enabling statute to 26 USC 6621. Gates ruled the citation led to calculation of the interest using daily compounding. The Truth in Negotiation Act also references 26 USC 6621 for interest calculation (see 41 USC 3507 and 10 USC. 2306a). The rule replaces the term "simple interest" as the requirement for calculating interest for TINA cost impacts with the phrase "Interest compounded daily as required by 26 U.S.C. 6622." No comments were received on the proposed version of the rule (70,006.244).




(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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