What’s New Out There? Highlights from the February 2014 Federal Register
1. Proposal to Amend FAR to Implement Revised SBA Regulations
On February 3, 2014, DoD, GSA, and NASA proposed to amend the FAR, via FAR Case 2012-022, to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act “to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant could exit the 8(a) Business Development program.” In addition to several editorial changes, the notice proposes the following substantive changes:
Adding new FAR section19.813, “Protesting an 8(a) Participant’s eligibility or size status,” to “clarify that the eligibility of an 8(a) participant for a sole source or competitive 8(a) requirement may not be challenged” but that a “successful offeror’s size status for a competitive 8(a) award may be protested by any offeror whom the contracting officer has not eliminated for reasons unrelated to size, the contracting officer or SBA.”
Adding new FAR section 19.814, “Requesting a formal size determination (8(a) sole source requirements),” to “clarify that if the size of an 8(a) participant nominated for award of an 8(a) sole source contract is called into question, a formal size determination may be requested.” Adding new FAR section 19.815, “Release for non-8(a) procurement,” to “provide the procedures for obtaining SBA’s consent to release an 8(a) requirement for non-8(a) procurement, and a brief discussion of the matters that will be taken into consideration in order to reach a decision as to whether or not releasing a requirement for non-8(a) procurement is in the best interest of the agency, and the business development program.”
Adding new FAR section 19.816, “Exiting the 8(a) Program,” to advise contracting officers that (1) when a contractor exits the 8(a) program, it remains under contractual obligation to complete its existing contracts, (2) suspended 8(a) contractors may not receive new awards, and (3) contractors who have exited the 8(a) program may still receive 8(a) awards if they were an 8(a) participant at the time of the initial date for receipt of offers.
Comments on the proposed changed must be submitted by April 4, 2014.
2. DoD Request for Comments on Contracting Statutes
On February 12, 2014, DoD issued a request for comments “to identify impacts experienced by industry resulting from contracting statutes.” Specifically, the Director of Defense Procurement and Acquisition Policy would like to identify and reduce compliance impats that do not achieve the benefits intended by contracting statutes. This notice provides a good opportunity for contractors to voice their concerns with statutes that resulted in unduly burdensome and unintended compliance requirements. Comments are due by March 14, 2014.
3. DoD Proposed Rule to Clean Up Alternate DFARS Clauses
On February 12, 2014, DoD issued a notice proposing to amend the DFARS to clean up the text of six DFARS clauses with alternate versions (all of which are either Buy American or Trade Agreements Act clauses). Specifically, the rule proposes to add a separate prescription for the basic clause as well as each alternate and to include the full text of each provision/clause alternate. Although its unlikely that there will be much industry interest here, comments are due by April 14, 2014.