FEDERAL ACQUISITION REGULATION (FAR)

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 Department of Defense (DoD), GSA, and National Aeronautics and Space Administration (NASA).

II. Statement of Regulatory and Deregulatory Priorities

Federal Acquisition Regulation Priorities:

Specific FAR cases that the FAR Council plans to address in fiscal year 2017 include:

SB - Regulations to Improve Small Businesses Opportunities in Government Contracting

Implementation of the Small Business Administration's final rule for section 1651 of the National Defense Authorization Act for Fiscal Year 2013. SBA's rule revised the limitations on subcontracting and the nonmanufacturer rule. Also implements SBA's regulatory clarifications concerning application of the limitations on subcontracting, nonmanufacturer rule, and size determination of joint ventures. (FAR Case 2016-011, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments)

Clarification on the participation of Federal Prison Industries in small business set-asides. Provides clarity under FAR subparts 19.8, 19.13, 19.14, and 19.15. (FAR Case 2016-010, FPI Participation in Small Business Set-Asides)

Clarification on 8(a) joint ventures. Clarifies that 8(a) joint ventures are not "certified" into the 8(a) program and that 8(a) joint venture agreements need not be "approved" by the SBA until contract award rather than at the time of proposal submission. (FAR Case 2015-031, Policy on 8(a) Joint Ventures)

Considers applicability of small business regulations to contracts performed outside the United States. FAR Case 2016-002, Applicability of Small Business Regulations Outside the United States)

Contracts under the Small Business Administration 8(a) Program-This case clarifies FAR subpart 19.8, "Contracting with the Small Business Administration (The 8(a) Program)." (FAR Case 2012-022)

Clarification of Requirement for Justifications for 8(a) Sole-Source Contracts-This case clarifies the requirement for a justification for 8(a) sole-source contracts, in response to GAO Report to the Chairman, Subcommittee on Contracting Oversight, Committee on Homeland Security and Governmental Affairs, U.S. Senate, entitled Federal Contracting: Slow Start to Implementation of Justifications for 8(a) Sole-Source Contracts (GAO-13-118 dated December 2012). (FAR Case 2013-018)

Set-Asides under Multiple Award Contracts-This case implements statutory requirements from the Small Business Jobs Act of 2010 and is aimed at providing agencies with clarifying guidance on how to use multiple-award contracts as a tool to increase Federal contracting opportunities for small businesses. (FAR Case 2014-002)

Payment of Subcontractors-This case implements section 1334 of the Small Business Jobs Act of 2010 and the Small Business Administration's (SBA) Final Rule 78 FR 42391, Small Business Subcontracting. The rule requires prime contractors of contracts requiring a subcontracting plan to notify the contracting officer in writing if the prime contractor pays a reduced price to a subcontractor or if payment is more than 90 days past due. A contracting officer will then use his or her best judgment in determining whether the late or reduced payment was justified and if not the contracting officer will record the identity of a prime contractor with a history of unjustified untimely payments to subcontractors in the Federal Awardee Performance and Integrity Information System (FAPIIS) or any successor system. (FAR Case 2014-004)

Labor - Regulations Which Promote the Welfare of Wage Earners

Equal Pay for Equal Work Among Employees Working for Covered Federal Contractors. The rule implements E.O. 13665, Non-Retaliation for Disclosure of Compensation Information. FAR Case 2016-007, Non-Retaliation for Disclosure of Compensation Information.

Combating Trafficking in Persons-Definition of "Recruitment Fees"-This case considers a new definition for the term "recruitment fees" at the request of the Senior Policy Operating Group (SPOG) for Combating Trafficking in Persons. (FAR Case 2015-017)

Environmental Rules - Regulations That Promote Environmental Goals

Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representation-This case creates an annual representation within the System for Award Management (SAM) for contractors to indicate if and where they publicly disclose GHG emissions and GHG reduction goals or targets. This information will help the Government assess supplier GHG management practices and assist agencies in developing strategies to engage with contractors to reduce supply chain emissions as directed in section 15 of Executive Order 13693, Planning for Federal Sustainability in the Next Decade, dated March 19, 2015. (FAR Case 2015-024)

Sustainable Acquisition- This case implements Executive Order 13693, Planning for Federal Sustainability in the Next Decade, which supersedes Executive orders 13423 and 13514. (FAR Case 2015-033)

Regulations That Promote Protection of Government Information and Systems

Privacy Training-This case creates a FAR clause to require contractors that (1) need access to a system of records, (2) handle personally identifiable information, or (3) design, develop, maintain, or operate a system of records on behalf of the Government, have their personnel complete privacy training. This addition complies with subsections (e) (agency requirements) and (m) (Government contractors) of the Privacy Act (5 U.S.C. 552a) (FAR Case 2010-013)

Organizational Conflicts of Interest and Unequal Access to Information-This case 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 issues regarding unequal access to information. (FAR Case 2011-001)

Contractor Use of Information-This case addresses contractor access to controlled unclassified information. (FAR Case 2014-021)

Regulations Which Promote Ethics and Integrity in Contractor Performance

Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction.-This case implements multiple sections of the Consolidated and Further Continuing Appropriations Act, 2015. (Pub. L. 113-235) to prohibit using any of the funds appropriated by the Act to enter into a contract with any corporation with a delinquent Federal tax liability or a felony conviction. (FAR Case 2015-011)

Prohibition on Providing Funds to the Enemy-This case implements sections 841-843, subtitle E (Never Contract with the Enemy), title VIII, of the National Defense Authorization Act for FY 2015 (Pub. L. 113-291), enacted 12/19/2014. Section 841 prohibits providing funds to the enemy. Section 842 provides additional access to records. Section 843 provides definitions. (FAR Case 2015-014)

Regulations That Streamline and Reduce Unjustified Burdens

Effective Communication. Implements section 887 of the NDAA for FY 2016, which provides that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry. (FAR Case 2016-005, Effective Communication between Government and Industry)

Provide clarification within service contracts that contractors are required to purchase the mandatory source products from approved sources. (FAR Case 2015-026, Contractor Use of Mandatory Sources of Supply in Service Contracts)

Incremental Funding of Fixed-Price Contracting Actions. While the FAR provides for incremental funding of cost-reimbursement contracts, it is silent on incremental funding of fixed-price contracts. Given the federal government's implicit preference for fixed-price contracting, as well as the quagmire posed by Continuing Resolutions and other budgeting problems, acquisition professionals need additional tools to overcome less-than- full-funding challenges while abiding by the preference for fixed-price contracting. The proposed rule aims to amend the FAR to cover fixed-price contracting actions under circumstances in which full funding is not available at the outset of the contracting endeavor.

Provisions and Clauses for Acquisitions of Commercial Items and Acquisitions That Do Not Exceed the Simplified Acquisition Threshold-This case implements a new approach to the prescription and flow down for provisions and clauses applicable to the acquisition of commercial items or acquisitions that do not exceed the simplified acquisition threshold. Each clause prescription and each clause flow down for commercial items is specified within the prescription/clause itself, without having to cross-check another clause or list. The rule supports the use of automated contract writing systems and reduced necessary FAR maintenance when clauses are updated. (FAR Case 2015-004)

Reverse Auction Guidance-This case Implements OFPP memorandum, "Effective Use of Reverse Auctions." The memorandum provides guidance on the usage of reverse auctions, and was issued in response to recommendations within GAO report (Reverse Auctions: Guidance is Needed to Maximize Competition and Achieve Cost Savings, GAO-14-108). (FAR Case 2015-038)

Regulations Which Promote Fiscal Responsibility (Accountability and Transparency)

Revise the definition of "information technology" in the FAR. This conforms to the Office of Management and Budget Memo, M-15-14 titled Management Oversight of Federal Information Technology. (FAR Case 2015-037, Definition of "Information Technology")

Strategic Sourcing Documentation-This case implements section 836 of the FY15 NDAA. Section 836 requires that when purchasing services and supplies that are offered under the Federal Strategic Sourcing Initiative but the Initiative in not used, the contract file shall include an analysis of comparative value, including price and nonprice factors, between the services and supplies offered under such Initiative and services and supplies offered under the source or sources used for the purchase. (FAR Case 2015-015)

Prohibition on Reimbursement for Congressional Investigations and Inquiries-This case implements section 857 of the NDAA for FY15, which amends 10 U.S.C.2324(e)(1). Section 857 disallows costs incurred by a contractor in connection with a congressional investigation or inquiry into an issue that is the subject 10 U.S.C. 2324(k)(2). (FAR Case 2015-016)

Determination of Fair and Reasonable Prices on Orders under Multiple-Award Contracts-This case clarifies the responsibilities for ordering activity contracting officers to determine fair and reasonable prices when using Federal Supply Schedules. (FAR Case 2015-021)

Regulations Which Promote Accountability and Transparency

Uniform Use of Line Items-This case establishes a requirement for use of a standardized uniform line item numbering structure in Federal procurement. (FAR Case 2013-014)

Past Performance Evaluation Requirements-This case updates FAR subpart 42.15 to identify "regulatory compliance" as a separate evaluation factor in the Contractor Past Performance Assessment System (CPARS) and require agencies use past performance information in the Past Performance Information three years for construction and architect-engineer contracts. (FAR Case 2015-027)

DATED: August 29, 2016.

NAME: William Clark,

Director,

Office of Government-wide

Acquisition Policy,

Office of Acquisition Policy,

Office of Government-wide Policy.