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DoD Finalizes Five Interim Rules

The Department of Defense has finalized, without change, five interim rules amending the Defense Federal Acquisition Regulation Supplement: Competition Requirements for Purchases from Federal Prison Industries (DFARS Case 2008-D015); Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority (DFARS Case 2008-D030); Senior DoD Officials Seeking Employment with Defense Contractors (DFARS Case 2008-D007); Steel for Military Construction Projects (DFARS Case 2008-D038); and Whistleblower Protections for Contractor Employees (DFARS Case 2008-D012). All of the final rules carry an effective date of November 19, 2009.

Federal Prison Industries

The interim rule in DFARS Case 2008-D015 (70,016.483) implemented Section 827 of the National Defense Authorization Act for Fiscal Year 2008 (PL 110-181), which requires the use of competitive procedures in the acquisition of items for which Federal Prison Industries has a significant market share. Section 827 provides that FPI shall be treated as having a significant share of the market for a product if DoD, in consultation with the Office of Federal Procurement Policy, determines the FPI share of the DoD market for the category of products including that product is greater than 5 percent. DoD has determined FPI presently has a significant market share of the items in the Federal Supply Classes for laundry and dry cleaning equipment (FSC 3510); miscellaneous hardware (FSC 5340;, connectors, electrical (FSC 5935); electrical hardware and supplies (FSC 5975); cable, cord, wire assemblies, communications equipment (FSC 5975); wire and cable, electrical (FSC 6145); office furniture (FSC 7110); and household furnishings (FSC 7210). DoD will update the list as necessary. The interim rule, which added a new provision at DFARS 208.602-70, deviated from the policy in Subpart 8.6 of the Federal Acquisition Regulation with regard to the acquisition of items from FPI. For the text of the final rule, see 70,016.541.

Follow-on Contracting

The DFARS Case 2008-D030 interim rule (70,016.509) amended the pilot program addressed in DFARS Subpart 212.70, Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority. The program implemented Section 845(e) of the NDAA for Fiscal Year 1994, which provides that certain items that do not otherwise meet the definition of "commercial item" may be treated as commercial items in the award of contracts and subcontracts that follow another transaction agreement. Section 824 of the NDAA for FY 2009 (PL 110-417) established a new program expiration date of September 30, 2010, and added items developed under research projects in accordance with 10 USC 2371 to the types of items to which the program applies. The rule amended DFARS 212.7002-1 and DFARS 212.7002-2. The text of the final rule appears at 70,016.542.

Revolving Door

In DFARS Case 2008-D007, DoD issued an interim rule (70,016.503) implementing Section 847 of the NDAA for Fiscal Year 2008 (PL 110-181), which requires DoD officials that have participated personally and substantially in a DoD acquisition exceeding $10 million or have held a key acquisition position, and who expect to receive compensation from a DoD contractor within two years after leaving DoD service, to obtain a written opinion from a DoD ethics counselor regarding the activities that may be undertaken on behalf of a DoD contractor. Section 847 also prohibits a DoD contractor from providing compensation to these former DoD officials without first determining whether a post-employment ethics opinion has been received or requested. The interim rule added new provisions at DFARS 203.104-4, and DFARS 203.171 through DFARS 203.171-4 and a new clause at DFARS 252.203-7000. The rule also amended DFARS 209.406-2 and DFARS 252.212-7001, and removed DFARS 203.104-5. For the text of the final rule, see 70,016.543.

Steel for Construction

The interim rule in DFARS Case 2008-D038 (70,016.511) implemented Section 108 of the Military Construction and Veterans Affairs Appropriations Act, 2009 (PL 110-329), which requires American steel producers, fabricators, and manufacturers to be given the opportunity to compete for contracts and subcontracts for the acquisition of steel for use in military construction projects or activities. To implement the statutory requirement, the interim rule added references to the Act at DFARS 225.7014 and newly added DFARS 236.274, a prescription at DFARS 236.570, and a new clause at DFARS 252.236-7013. The clause at DFARS 252.244-7000 was also revised. For the text of the final rule, see 70,016.544.

Whistleblower Protection

The DFARS Case 2008-D012 interim rule (70,016.504) added new DFARS Subpart 203.9, which addressed protections for contractor employees who disclose information to government officials with regard to waste or mismanagement, danger to public health or safety, or a violation of law related to a DoD contract. The rule implemented Section 846 of the NDAA for Fiscal Year 2008 (PL 110-181) and Section 842 of the NDAA for FY 2009 (PL 110-417), which added whistleblower protections different from those in FAR Subpart 3.9. The new provisions at DFARS 203.900 through DFARS 203.970 expanded the types of information to which whistleblower protections apply and the categories of government officials to whom information may be disclosed without reprisal, established time periods within which the Inspector General and the agency head must take action with regard to a complaint filed by a contractor employee, and established a de novo right of action in federal district court for contractor employees who have exhausted their administrative remedies under 10 USC 2409. A new contract clause requiring contractors to inform employees in writing of their whistleblower rights and protection was added at DFARS 252.203-7002. The text of the final rule may be viewed at 70,016.546.




(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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