FAR Council Previews Upcoming Rules

The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have issued a semiannual regulatory agenda for the Federal Acquisition Regulation. The agenda provides summary descriptions of regulations being developed by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council. The agenda shows 33 rules in the proposed stage, 9 rules in the final stage, and 7 completed actions. The rules in the proposed stage include:

  • FAR Case 2015-021, which would direct ordering activity contracting officers to make a determination of fair and reasonable pricing when placing an order against GSA’s Federal Supply Schedules;
  • FAR Case 2017-005, which would implement 41 USC 4712, Enhancement of contractor protection from reprisal for disclosure of certain information, and make a 2013 whistleblower protection pilot program permanent;
  • FAR Case 2016-002, which would implement SBA 125.2 and a 2013 Small Business Administration final rule to clarify that overseas contracting is not excluded from agency responsibilities to foster small business participation;
  • FAR Case 2016-011, which would revise and standardize the limitations on subcontracting, including the nonmanufacturer rule, that apply to small business concerns under FAR 19.000 FAR Part 19 procurements;
  • FAR Case 2016-013, which would implement a final rule issued by the Department of the Treasury (81 FR 55133) imposing on any foreign person that receives a specified federal procurement payment a tax equal to two percent of the payment;
  • FAR Case 2017-003, which would change the kinds of assets that individual sureties must use as security for their individual surety bonds;
  • FAR Case 2015-002, which would require the use of DoD Wide Area Workflow for the electronic submission of DD Form 254, Contract Security Classification Specification;
  • FAR Case 2017-013, which would create and implement appropriate contract clauses and regulatory coverage to address contractor requirements in connection with breaches of personally identifiable information;
  • FAR Case 2016-012, which would allow for incremental funding of certain fixed-price contracting actions;
  • FAR Case 2017-010, which would change the requirement regarding the consideration of cost or price to the government as a factor in the evaluation of proposals for certain multiple-award task order contracts;
  • FAR Case 2017-016, which would implement the National Archives and Records Administration regulations governing agency policies for designating, safeguarding, disseminating, marking, decontrolling and disposing of controlled unclassified information;
  • FAR Case 2018-003, which would allow other than small prime contractors to receive small business subcontracting credit for subcontracts their subcontractors award to small businesses;
  • FAR Case 2018-006, which would implement a new approach to the prescription and flowdown for provisions and clauses applicable to acquisitions of commercial items or acquisitions that do not exceed the simplified acquisition threshold;
  • FAR Case 2018-004, which would increase the micro-purchase threshold to $10,000 and the simplified acquisition threshold to $250,000;
  • FAR Case 2018-005, which would increase the threshold for requiring certified cost or pricing data to $2 million;
  • FAR Case 2018-013, which would require the FAR Council to review each past determination made not to exempt contacts and subcontracts for commercial products, commercial services, and commercially available off-the-shelf items from certain laws when these contracts would otherwise have been exempt under 41 USC 1906(d) or 41 USC 1907(b);
  • FAR Case 2018-014, which would provide, for indefinite-delivery/indefinite-quantity and Federal Supply Schedule contracts for services that are priced at an hourly rate, an exception to the requirement to include price to the government as an evaluation factor.
  • FAR Case 2018-016, which would discourage the use of lowest price technically acceptable source selection criteria in circumstances that would deny the government the benefits of cost and technical tradeoffs;
  • FAR Case 2018-018, which would separate the commercial item definition into definitions of commercial product and commercial service;
  • FAR Case 2018-019, which would require the FAR Council to assess every FAR regulation that requires a specific clause in contracts for commercial products or commercial services, or requires a prime contractor to include a specific clause in subcontracts for commercially available off-the-shelf items, and to consider the elimination of these regulations; and
  • FAR Case 2018-022, which would amend the clause at FAR 52.216-18, Ordering, to authorize the issuance of orders via fax or email and clarify when an order is considered to be issued when utilizing these methods.

The agenda states the proposed rules will be issued in 2018 or 2019. DoD, GSA, and NASA published the agenda to allow interested persons an opportunity to participate in the rulemaking process. For full text of the agenda, issued November 16, 2018, see 83 FR 58099.

About William Van Huis

Bill Van Huis is a Senior Writer/Analyst for Wolters Kluwer Law & Business who tracks and analyzes new regulations impacting federal government contracting. He also follows court decisions involving bid protests and contract disputes. You can find his work in WK publications like Government Contract Reports and the FAR and DFARS Matrix Tools. Bill is a Certified Professional Contracts Manager, and he has a law degree from Southern Illinois University, where he graduated summa cum laude. Prior to joining WK, Bill worked both inside and outside state and local government in the areas of procurement and municipal finance. Bill also worked as a staff attorney for the Illinois Supreme Court.
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