FEDERAL

ACQUISITION REGULATION (FAR) - Regulatory Plan - October 2013

I. Mission and Overview

The Federal Acquisition Regulation (FAR) was established to codify uniform policies for acquisition of supplies and services by executive agencies. It is issued and maintained jointly, pursuant to the Office of Federal Procurement Policy (OFPP) Reauthorization Act, under the statutory authorities granted to the Secretary of Defense, Administrator of General Services, and the Administrator, National Aeronautics and Space Administration. Statutory authorities to issue and revise the FAR have been delegated to the procurement executives in DoD, GSA, and NASA.

This plan pertains to regulatory changes that will be included in the FAR. The FAR serves as the authoritative source for Federal agency procurements, directly affecting the purchase and sale of over $500 billion worth of supplies and services each year. The updating and maintaining of the FAR is achieved through extensive involvement with the Federal Acquisition Regulatory Council (FAR Council). The FAR Council, chaired by the OFPP, is comprised of senior representation from DoD, GSA and NASA. The FAR Council assists in the direction, development, and coordination of Government-wide procurement regulations , which is accomplished, in part, by interagency FAR teams and agency analysts. FAR changes are accompanied by an established process for review and analysis of public comment. Members of the public may submit comments on individual proposed and interim final rulemakings at www.regulations.gov during the comment period that follows publication in the Federal Register.

II. Statement of Regulatory and Deregulatory Priorities

Federal Acquisition Regulation Priorities:

Specific FAR cases that the FAR Council established and plans to address in Fiscal Year 2013 and 2014 include:

Regulations of Concern to Small Businesses

Set-Asides for Small Business-Provide authority to set-aside part or parts of multiple-award contracts, and task and delivery orders under multiple-award contracts. (FAR Case 2011-024)

Accelerated Payment to Small Business Subcontractors- Implement the temporary policy provided by Office of Management and Budget (OMB) Policy Memorandum M-12-16, dated July 11, 2012, to provide for the accelerated payments to small business subcontractors. (FAR Case 2012-031)

Contracting with Women-owned Small Business Concerns-Implements section 1697 of the NDAA for FY 2013 to remove the statutory limitation on the dollar amount of a contract for which women-owned small businesses can compete. (FAR Case 2013-010)

Regulations Which Promote Fiscal Responsibility

Notification of Pass-Through Contracts-Implements section 802 of the NDAA for FY 2013. Section 802 requires review and justification by the contracting officer in any case in which an offeror for a contract or a task or delivery order informs the agency pursuant to that the offeror intends to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract, task order, or delivery order. (FAR Case 2013-012)

Applicability of the Senior Executive Compensation Benchmark-Implements of section 803 of the National Defense Authorization Act for Fiscal Year 2012 (Pub L 112-81), which extends the limitation on allowability of compensation for certain contractor personnel from senior executives to all DoD, NASA and Coast Guard contractor employees. (FAR Case 2012-025)

Expansion of Applicability of the Senior Executive Benchmark - Implements Section 803 of the National Defense Authorization Act for Fiscal Year 2012 (Pub L 112-81), which extends the limitation on allowability of compensation for certain contractor personnel from senior executives to all DoD, NASA and Coast Guard contractor employees. (FAR Case 2012-017)

Terms of Service-Responds to recent DOJ Office of Legal Counsel (OLC) opinion regarding open-ended indemnification Terms of Service (TOS) Agreements and the Anti-Deficiency Act. Clarifies the unenforceability against the Government of such open-ended indemnification TOS agreements. (FAR Case 2013-005)

Regulations Which Promote Ethics and Integrity

Allowability of legal cost of Whistleblower-Implements sections 827(g) and 828(d) of the NDAA for FY 2013 (Pub. L. 112-239). The rule amends the FAR to address legal costs incurred by a contractor in connection with a proceeding commenced by a contractor employee submitting a complaint under the applicable whistleblower statute. (FAR Case 2013-017)

Pilot program for Enhancement of Contractor Whistleblower Protections-Implements section 828 of the NDAA for FY 2013. Section 828 enhances the whistleblower protections of contractor and subcontractor employees by establishing a 4-year "pilot program" to strengthen whistleblower protections for civilian agencies' (i.e., title 41 agencies) contractors and subcontractors. The whistleblower provisions exempt employees in the intelligence community and do not cover the disclosure of classified information. (FAR Case 2013-015)

Trafficking in Persons-Implements Executive Order 13627, and title XVII of the NDAA for FY 2013, to strengthen protections against trafficking in persons in Federal contracts. (FAR Case 2013-001)

Organizational Conflicts of Interests-Implements section 841 of the NDAA for FY 2009 (Pub. L. 110-147). Section 841 requires consideration of how to address the current needs of the acquisition community with regard to Organizational Conflicts of Interest. Separately addresses the issues regarding unequal access to information. (FAR Case 2011-011)

Personal Conflicts of Interest-Implements section 829 of the NDAA for FY 2013 (Pub. L. 112-239). The rule extends the guidance on personal conflicts of interest for contractor employees performing acquisitions functions closely associated with inherently governmental functions guidance to contractor personnel performing certain other functions or contract types. (FAR Case 2013-022)

Basic Safeguarding of Contractor Information Systems - Addresses safeguarding of unclassified information that does not meet the standard for National Security classification under Executive Order 12958, as amended. It addresses unclassified information that is pertinent to the national interests of the United States or originated by entities outside the U.S. Federal Government, and under law or policy requires protection from disclosure, special handling safeguards, and prescribed limits on exchange or dissemination. (FAR Case 2011-020)

Information on Corporate Contractor Performance and Integrity Implements section 852 of the NDAA for FY 2013 (Pub. L. 112-239) - Section 852 requires that FAPIIS include, to the extent practicable, information on any parent, subsidiary, or successor entities to the corporation. (FAR Case 2013-020)

Expanded Reporting of Nonconforming Supplies - Expands Government and contractor requirements for reporting of nonconforming supplies. Partial implementation of section 818 of the NDAA for FY 2012. (FAR Case 2013-002)

Contractor Access to Protected Information - Addresses contractor access to protected information, i.e., information provided by the Government (other than public information), generated for the Government, or provided by a third party and marked by the provider to indicate that protection is required. (FAR 2012-029)

Regulations Which Promote Accountability and Transparency-

Service Contracts Reporting Requirements - Implements section 743 of Division C of FY 2010 Consolidated Appropriations Act (P.L. 111-117), which requires agencies to develop inventories of their service contracts, including number and work location of contractor employees. (FAR Case 2010-010)

Commercial and Government Entity (CAGE) Code- The rule requires the use of CAGE codes for awards valued greater than the micro-purchase threshold, and identification of the immediate corporate/organization parent and highest level corporate/organization parent during contractor registration for Federal contracts. The goal is to provide for standardization across the Federal government, and to facilitate data collection. (FAR Case 2012-014)

Uniform Procurement Identification-The rule proposes the use of a unique identifier for contracting offices and a standard unique Procurement Instrument Identification Number for transactions. The goal is to provide for standardization across the Federal government and to facilitate data tracking and collection. (FAR Case 2012-023)

Line Item Numbering - Considers the use of a standardized uniform line item numbering structure in Federal procurement (FAR Case 2013-014)

Higher-Level Contract Quality Requirements - Revises acquisition planning and quality assurance requirements to ensure the performance of higher level quality assurance for critical items. (FAR 2012-032)

Regulations Which Promote Environmental and Sustainable Acquisition

(FAR Case 2013-006) This final rule published in the Federal Register on August 1, 2013 78 FR 46794 but reporting for FY 13 and onward will be in the governmentwide biobased reporting tool at www.sam.gov.

EPEAT Items - Identifies imaging equipment and televisions as new items to be included under the EPEAT standard in FAR part 23 (FAR Case 2013-016).

Sustainable Acquisition - Implements Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance (10/5/2009), and Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management (1/24/2007), requiring agencies to leverage acquisitions to foster markers for sustainable technologies, products, and services. (FAR Case 2010-001)

III. Retrospective Review of Existing Regulations

Pursuant to section 6 of Executive Order 13563 "Improving Regulation and Regulatory Review" (January 18, 2011), the following Regulatory Identifier Numbers (RINs) have been identified as associated with retrospective review and analysis in the Agencies final retrospective review of regulations plan. Some of these entries on this list may be completed actions, which do not appear in The Regulatory Plan. However, more information can be found about these completed rulemakings in past publications of the Unified Agenda on Reginfo.gov in the Completed Actions section for that agency. These rulemakings can also be found on Regulations.gov. The final agency plans can be found at: www.gsa.gov/improvingregulations.

FAR Rules:

  • 9000-AM37, FAR Case 2012-031, Accelerated Payment to Small Business Subcontractors- Implement the temporary policy provided by Office of Management and Budget (OMB) Policy Memorandum M-12-16, dated July 11, 2012, to provide for the accelerated payments to small business subcontractors.

  • 9000-AM09, FAR Case 2012-009, Documenting Contractor Performance-Provides government-wide standardized past performance evaluation factors and performance rating categories and require that past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS).

  • 9000-AM40, FAR Case 2012-028, Contractor Comment Period--Past Performance Evaluations-Reduce the time a contractor has to rebut a performance assessment before the assessment is made available to other agencies in the Past Performance Information Retrieval System.

  • 9000-AM12, FAR Case 2011-024, Set-Asides for Small Business-Provides authority to set-aside part or parts of multiple-award contracts, and task and delivery orders under multiple-award contracts.

  • 9000-AM59, FAR Case 2013-010, Contracting with Women-owned Small Business Concerns-Implements section 1697 of the NDAA for FY 2013 to remove the statutory limitation on the dollar amount of a contract for which women-owned small businesses can compete.

  • 9000-AL82, FAR Case 2011-001, Organizational Conflicts of Interest and Unequal Access to Information-Provides revised regulatory coverage on organizational conflicts of interest (OCI) and additional coverage regarding unequal access to information to help the Government in identifying and addressing circumstances in which a Government contractor may be unable to render impartial assistance or advice to the Government.

  • 9000-AM42, FAR Case 2012-029, Contractor Access to Protected Information-Establishes the minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions outside the United States.

  • 9000-AM55, FAR Case 2013-001; Ending Trafficking in Persons-Strengthen protections against human trafficking in persons in federal contracting.