FAR Councils Issue FAC 2005-25

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have published Federal Acquisition Circular 2005-25. The Circular contains two interim and four final rules amending the Federal Acquisition Regulation. In order of appearance, the rules address: Item I, Federal Procurement Data System Reporting (FAR Case 2004-038, Interim); Item II, Electronic Subcontracting Reporting System (FAR Case 2005-040, Interim); Item III, Revisions to the Defense Priorities and Allocations System (FAR Case 2006-033); Item IV, Use of Products Containing Recovered Materials in Service and Construction Contracts (FAR Case 2005-039); Item V, Representations and Certifications-Tax Delinquencies (FAR Case 2006-011); Item VI, Enhanced Access for Small Business (FAR Case 2006-031); and Item VII, Technical Amendments. A complete list of all FAR sections impacted by this FAC appears in the table below. For the text of FAC 2005-25, see ¶70,002.99.

An interim rule (FAR Case 2004-038) amending the FAR revises the process for reporting contract actions to the Federal Procurement Data System. This rule establishes the government's commitment for the FPDS to serve as the single authoritative source of all procurement data for a host 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 amends 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 a host of requirements. The rule provides questions and answers to facilitate the public's understanding of the changes proposed in the interim for reporting contract actions under FAR Subpart 4.6. In addition to revising FAR Subpart 4.6 (FAR 4.600 through FAR 4.607), the rule amends 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. Comments on the interim rule, which carries an April 22, 2008, effective date, are due by June 23, 2008.

A second interim rule (FAR Case 2005-040) amends the FAR to require that small business subcontract reports be submitted using the Electronic Subcontracting Reporting System, rather than Standard Form 294-Subcontract Report for Individual Contracts and Standard Form 295-Summary Subcontract Report. The eSRS is a web-based system managed by the Integrated Acquisition Environment. The eSRS is intended to streamline the small business subcontracting program reporting process and provide the data to agencies in a manner that will enable them to manage the program more effectively. This rule amends FAR Subpart 19.7 and related clauses to clarify existing small business subcontracting program requirements. Specifically, this rule amends FAR 1.106, FAR 4.402, FAR 4.403, FAR 19.701, FAR 19.704, FAR 19.705-2, FAR 19.705-6, FAR 19.705-7, and the contract clauses at FAR 52.212-5, FAR 52.219-9, and FAR 52.219-25. The rule also revises FAR 53.219 and removes the forms at FAR 53.301-294 and FAR 53.301-295. This interim rule is effective April 22, 2008, and comments are due by June 23, 2008.

A FAC 2005-25 final rule (FAR Case 2006-033) amends the FAR to reflect the President's delegation of the Defense Production Act's priorities and allocations authorities in Executive Order 12919, and the current provisions of the Defense Priorities and Allocations System regulations of the Department of Commerce in 15 CFR Part 700. FAR changes incorporated in parts 2, 11, 18, 52, and 53 benefit both the government and industry in the receiving of timely and proper delivery of industrial resources. Contracting officers should take note of the changes in the FAR, especially the changes to the Standard Form 26, Award/Contract and SF 1447, Solicitation/Contract, and use the revised SF 26 and SF 1447 that reflects the 15 CFR 700 citation and 2008 edition date change. The rule revises FAR 11.600 through FAR 11.603, and FAR 18.109, as well as the forms at FAR 53.301-26 and FAR 53.301-1447. Corresponding amendments are made at FAR 2.101, FAR 11.604, FAR 52.211-14, FAR 52.211-15, FAR 53.214, and FAR 53.215-1. This rule has an April 22, 2008, effective date.

A final rule (FAR Case 2005-039) amends the FAR to clarify language within the FAR regarding the use of products containing recovered materials, pursuant to the Resource Conservation and Recovery Act of 1976, and Executive Order 13101, "Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition." The rule (see ¶70,006.212 for proposal) prescribes a new clause at FAR 52.223-17 for use in service or construction contracts, to ensure that contractors deliver and make maximum use of products containing recovered material. The rule also provides for consistency when referring to products containing recovered materials, and clarifies that the requirement for products containing recovered materials applies when agencies require the delivery or specify the use of Environmental Protection Agency-designated items and when agencies award contracts for services or construction unless the service or construction contract will not involve the use of such items. To implement these changes, the rule also amends FAR 4.1202, FAR 12.301, FAR 13.006, FAR 23.000, FAR 23.401, FAR 23.405, FAR 23.406, and the contract clauses at FAR 52.212-5, FAR 52.223-4 and FAR 52.223-9. This rule goes into effect May 22, 2008.

The final rule associated with FAR Case 2006-011 (see ¶70,006.209 for proposed rule) amends the FAR to add new certification requirements regarding refusal to pay delinquent federal taxes to standards of contractor responsibility, causes for suspension and debarment, and the certifications regarding debarment, suspension, and proposed debarment. The changes are intended to clarify the specific circumstances under which tax delinquencies are so serious that suspension or debarment should be considered. The changes originated in response to a request from the Senate Permanent Subcommittee on Investigations, which stated that: "To identify noncompliance with tax law ... the Government should be asking potential contractors, not whether they have been indicted or convicted of tax evasion, but whether they have had any criminal tax law violation in the last three years, whether they have any outstanding tax indebtedness more than one year old, or whether they have any outstanding unresolved federal or state tax lien." The rule adds new regulations at FAR 9.104-5 and FAR 9.104-6, amends FAR 4.1202, FAR 9.105-1, FAR 9.406-2, FAR 9.407-2, FAR 9.409, FAR 52.209-5 and FAR 52.212-3, and removes and reserves FAR 9.408. This final rule carries a May 22, 2008, effective date.

A final rule (FAR Case 2006-031; see ¶70,006.213 for proposed rule) amends the FAR to create a higher dollar ceiling enabling small businesses to use the small claims procedure for appealing a contracting officer's final decision. Section 857 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (PL 109-364) changed the ceiling under the Contract Disputes Act from $50,000 or less to $150,000 or less for small businesses. The ceiling remains at $50,000 or less for other types of businesses. The change to 41 USC 608 is a ceiling change only. The rule makes this amendment by revising FAR 33.211. This rule is effective May 22, 2008.

Item VII of FAC 2005-25 implements technical amendments. The final rule makes an editorial change at FAR 1.603-1. This rule has an immediate effective date of April 22, 2008. Also, a Small Entity Compliance Guide, which gives notice that a Regulatory Flexibility Analysis has been prepared for Item IV, accompanies FAC 2005-25.

(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. )