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Federal Market Intelligence for Small Business |
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Regulatory UpdateCertified cost/pricing & CAS thresholds rose on July 1Federal acquisition authorities have introduced several new proposed rules in recent weeks, and other rules have gone into effect. Get the full rundown here. Certified cost and pricing threshold and CAS threshold: On July 1, thresholds for Defense Dept. contracts requiring certified cost and pricing data, and for application of Cost Accounting Standards (CAS) for those contracts, rose to $2 million, from $750,000. The change was implemented under Section 811 of the National Defense Authorization Act (NDAA) for fiscal 2018. While the change has not been made in the Federal Acquisition Regulation yet, the Defense Dept. is implementing it through a memo, according to a recent blog entry by PilieroMazza PLLC. The raised threshold should provide “relief” to many offerers from having to provide such data, the law firm said (https://bit.ly/2upatLy). Certified cost/pricing data: The Federal Acquisition Councils for DOD, NASA and the Coast Guard have proposed narrowing the standard for adequate price competition. Currently, a contractor may be exempt from submitting certified cost or pricing data if a contracting officer finds prices to be fair and reasonable due to “adequate price competition.” That occurs “if two or more responsible offerors, competing independently, submit responsive and viable offers,” according to an analysis by Dentons law firm. The proposed rule would remove additional requirements to prove adequate price competition. Contracts under the simplified acquisition threshold are exempt. In a related rule, the DFARS would be revised in a similar fashion. Both proposed rules implement section 822 of the NDAA for Fiscal Year 2017. Comments for the FAR rule are due by Aug. 13, and DFARS, by Aug. 28 (https://bit.ly/2NTwryb and https://bit.ly/2NR8A2c). Less time to certify cost or pricing data: The Defense Procurement Acquisition Policy office recently issued guidance to contracting officers that reduces the timeframe for certifying cost or pricing data. This guidance may increase contractors’ risk of defective pricing claims (https://bit.ly/2lxuQkK). Foreign military sales: On June 29, the DOD issued a final rule stating that all indirect offset costs in foreign military sales transactions are deemed reasonable, provided that the US defense contractor submits a signed offset agreement. The indirect offsets are exempt from the requirement for certified cost or pricing data (https://bit.ly/2Ndj0YI). Arms control certifications: Effective June 15, the DoD, GSA and NASA issued an interim rule that would require a contractor to certify that it has not contributed to a country’s lack of compliance with arms control agreements with the U.S. The rule implements Section 1290 of the NDAA of fiscal 2017 (https://bit.ly/2KWvQOp). Kaspersky ban: Interim rule scheduled to go into effect July 16 prohibiting federal contractors from utilizing Russia-based Kaspersky Lab products or services. Contractors are required to report any Kaspersky products discovered during performance. Public comments may be submitted until Aug. 14 (https://bit.ly/2zH1Pgo). Undefinitized contract actions: DOD issued a final rule requiring contracting officers to document the risk to the contractor during the undefinitized period when performance has begun but terms have not been negotiated. In effect on June 29, it does not apply below the simplified acquisition threshold or to commercial items (https://bit.ly/2NRa3Wg). Cyber emergency authorities: DOD, NASA and GSA are proposing a rule to expand special emergency procurement authorities for supplies or services for cyber attack recovery or defense. It raises the micropurchase threshold to $20,000 for such purchases domestically and up to $30,000 for international purchases. Similarly, it would apply under simplified acquisition rules up to $750,000 domestically and $1.5 million internationally. Comments are due by Aug. 27 (https://bit.ly/2uljpBB). NIST rule on patent ownership: The National Institute of Standards and Technology (NIST) modified its regulations on the Bayh-Dole Act, to clarify reporting requirements and streamline license applications, among other goals. However, one of the changes may create uncertainty regarding contractor ownership of patents, according to the Dentons law firm. That change is the removal of a 60-day deadline for the government to claim ownership of a contractor’s patent, if the contractor failed to adequately disclose it. Now, the government may claim ownership at any time after that disclosure (https://bit.ly/2uyfMHR).
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