Year-end rush of regulations

Several new or final fed’l procurement rules released

      Federal agencies released a number of proposed or final rules related to federal acquisitions in recent weeks, including long-awaited proposed rules putting into effect changes in the limitations on subcontracting ordered by Congress six years ago.

Limitations on subcontracting

      Congress made changes to limitations on subcontracting in the National Defense Authorization Act of fiscal 2013. The law set new formulas for calculating the limitations, based on the award amounts. It also allowed small prime contractors to claim performance credit for “similarly situated entities.”

      In 2016, the Small Business Administration issued a final rule implementing the law’s changes. However, the change did not go into the Federal Acquisition Regulation, which caused some confusion.

      The contracting community has been waiting for the FAR to be amended to apply the changes, and that is finally happening.

• The FAR councils published a proposed rule to align the FAR with the SBA’s final rule of 2016 on limitations on subcontracting. Comments due Feb. 4. Read more at https://bit.ly/2El1PnO.
• The Defense Dept. on Dec. 3 issued a class deviation, effective immediately, implementing the revisions made by the SBA to limitations on subcontracting. See https://bit.ly/2BVrcKG.
• The SBA published a proposed rule related to limitations on subcontracting. Comments are due Feb. 4.

      The proposed rule would: (1) clarify that contracting officers have the authority to request information on contractor compliance with limitations on subcontracting;
(2) allow exclusions from limitations on subcontracting for contracts performed outside the U.S., for environmental remediation contracts and for IT services contracts requiring substantial cloud computing;
(3) require that prime contractors with a commercial subcontracting plan must include indirect costs in its subcontracting goals;
(4) clarify that failure to provide timely subcontracting reports may be a breach of the contract;
(5) clarify the requirements for size and status recertification;
and (6) limit the scope of Procurement Center Representative reviews of DoD acquisitions performed outside the U.S.

      The proposed rule would also authorize agencies to receive double credit for small business “goaling” achievements and remove the kit assembler exception to the non-manufacturer rule. Read more at https://bit.ly/2UneL1c.

Lowest Price, Technically Acceptable

      The DOD proposed a rule to implement the NDAA’s of fiscal years 2017 and 2018 to limit use of LPTA source selection processes. Read the proposal at https://bit.ly/2Ei7VVW.

A-E and construction set-asides

      The DoD published a proposed rule to carry out a section of the NDAA for fiscal year 2019 regarding set-asides for architect and engineering services and construction design contracts. See https://bit.ly/2G7MGYM for more details.

Production surge

      DOD issued a final rule amending the Defense Federal Acquisitions Regulation Supplement to revise a clause relating to “production surge” terminology. It took effect Dec. 4. Read the final rule at https://bit.ly/2G5Q727.

Interagency acquisitions

      The DoD released a final rule removing the requirement to make a best procurement approach determination in order to use an interagency acquisition vehicle. Read the final rule at https://bit.ly/2B2mUiJ.

Ombudsman clause

      The FAR councils proposed to add a new clause to multiple-award IDIQ contracts that provides contact information for the agency’s task-and-delivery-order ombudsman, and a description of the ombudsman’s responsibilities. The ombudsman is responsible for reviewing complaints from contractors and ensuring fair opportunity. Comments are due Dec. 31. Read more at https://bit.ly/2P4PiKQ.

Construction manager/constructor

      The GSA issued a proposed rule to adopt a project delivery method known as construction manager as constructor (CMc). This delivery method currently is used in the private sector. Comments are due by Jan. 7. Read more at https://bit.ly/2F9JcEH.

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