Mary Reynolds

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Regulatory/ Legislative Update

• Mary Reynolds
• SAF/SB

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Introduction

• FAR/DAR Procedures
• FAR Cases/Rules
• DFARS Cases/Rules
• SBA Rules
• New Legislation in Congress

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Federal Acquisition Regulation (FAR)

• Regulations required by law and policy
• Rules apply to Federal government agencies
• Content determined by FAR Council
• Office of Federal Procurement Policy (OFPP)
• Department of Defense (DoD)
• General Services Administration (GSA)
• National Aeronautics and Space Administration
  (NASA)
• DPAP represents DoD on FAR Council

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Defense Federal Acquisition Regulation Supplement
(DFARS)

• Regulations required by law or policy
• Rules apply to DoD
• Content determined by DAR Council
• Military Departments
• Defense Agencies
• DAR Council Chair
• DARS leads and guides the DAR Council

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Procedures, Guidance and Information (PGI)

• Internal DoD procedures (mandatory and
  discretionary)
• Provides a central point for locating
• Agency guidance
• Training
• Guides
• Outside resources
• OSD policy letters
• Other pertinent information
• Companion resource to the DFARS
• Single access-point to internal DoD acquisition
  procedures, policy and training

www.acq.osd.mil/dpap/dars/pgi/current/pgi_html.ht
m
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The Rulemaking Process
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FAR Council Structure
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Sources of FAR/DFARS Changes
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FAR Change Process
FAR Council

• Director, DAR Council
• NASA, DAR Council Rep.
• Chairman, CAA Council

FAR Team
DAR Council/CAAC
OFPP/OIRA
Federal Register
Proposed Rule
Interim Rule (FAC)
Final Rule (FAC)
Public Comments
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DFARS Change Process
Director, DAR Council
DFARS Committee
DAR Council
OFPP/OIRA
Federal Register
Proposed Rule
Interim Rule
Final Rule
Public Comments
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Defense Procurement and Acquisition policy
http//www.acq.osd.mil/dpap/dars/index.htm
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Regulatory Changes - FAR

• Additional Requirements for Market Research
  (2008-007)
• Sec 826 of the FY2008 NDAA established
  additional requirements
• Requires market research b/4 awarding task order
  or delivery order gt SAT
• Prime contractors, for subcontracts including
  task orders or delivery orders gt 5M, other than
  commercial items must also conduct market
  research before issuing subcontracts
• STATUS Will be issued as Interim Rule - Report
  due 07/09/2008

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Regulatory Changes - FAR

• Enhanced Competition Requirements for Task and
  Delivery Order contracts (2008-006)
• Section 843 of the FY08 National Defense
  Authorization Act
• Cant award task or delivery order gt100M to
  single contractor without justification and
  notification to Congress
• Exceptions only 1 contractor can perform work
• Not practicable to make award to more than 1
  contractor
• Contract is only for firm fixed price work
• Only one contractors price is reasonable
• Orders gt5M - all contractors must be given fair
  opportunity to be considered
• Status- Sent to FAR SEC for Preparation of FAC -
  interim Rule - 06/06/2008

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Regulatory Changes - FAR

• Procurement Goal for Native Hawaiian Serving
  Institutions and Alaska Native Serving
  Institutions (2008-005)
• Adds Native Hawaiian-Serving Institutions and
  Alaska Native Serving Institutions to 10 U.S.C.
  2323
• Status DARC agreed with Interim Rule -
  04/24/2008
• Public Disclosure of JAs for Non-competitive
  contracts (2008-003)
• Head of Agency must publicize JAs on agency
  website and a government wide website selected
  by OFPP
• Status DARC received CAAC revisions to Interim
  Rule 06/09/2008

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Regulatory Changes FAR

• Correcting Statutory References Related to Higher
  Education Act of 1965 (2007-020)
• Amend FAR to correct statutory references to HEA
  that relate to minority institutions and Hispanic
  serving institutions, Alaska Native Serving
  Institutions and Hawaiian Native Serving
  Institutions that were never updated in FAR
• STATUS Final Rule to FAR SEC for preparation
  of FAC - 05/19/2008

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Regulatory Changes FAR

• Employment Eligibility Verification (2007-013)
• Requires certain primes/subcontractors to verify
  contract employees are eligible to work in US
  through US Citizenship Immigrations services
• STATUS Published Proposed Rule (73 FR 33374)
  06/12/2008 - Comment Period ends 08/11/2008

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Regulatory Changes FAR

• Socioeconomic Program Parity (2006-034)
• Addresses relationship among the small business
  programs (HUBZone, SDVOSB, 8(a))
• Acquisitions gt 100K MUST consider small
  business programs before small business set aside
• All programs equal, except HUBZone set-aside MUST
  be considered before a small business set-aside
  (Statutory requirement)
• Once in the 8(a) program, must remain in the 8(a)
  program unless exempted by SBA

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Regulatory Changes FAR

• Socioeconomic Program Parity (2006-034) (Contd)
• Acquisitions gt3K lt 100K Must be small
  business set asides However, does not preclude
  award under one of the small business programs
  (Statutory HUBZone requirement does not apply in
  this case)
• COS should consider progress in fulfilling
  various small business goals, market research and
  acquisition history in making the decision as to
  which program to use
• STATUS DARC will discuss draft Final Rule
  07/23/2008

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Regulatory Changes FAR

• Small Business Re-representation (2006-032)
• Requires any contractor to re-represent size
  status
• within 30 days when there is a name change, is
  acquired by or merges with another concern
  regardless of whether there is a novation
  agreement
• Long term contracts (prior to 6th year
  subsequent option exercise)
• Long term contract any contract more than 5 yrs
  duration
• Required to recertify regardless of whether or
  not there is a change in size status
• If small recertifies that it is now other than
  small, from that point forward, dollars awarded
  cannot be counted towards small business goals

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Regulatory Changes FAR

• Does not change TCs of the contract
• Does not preclude exercising options or issuing
  orders if concern is found to be other than small
  pursuant to a size protest
• Interim rule published 7/5/2007, effective
  6/30/2007
• Applies retroactively will require modification
  of existing contracts
• STATUS GSA legal/DAR and FAR staff reviewing
  Final Rule 4/28/2008
• DPAP memo allows for input into FPDS-NG of
  contracts affected.

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Regulatory Changes FAR

• Enhanced Access for Small Business (2006-31)
• Provides 150,000 claim threshold (instead of
  50,000) for small businesses to appeal
  contracting officers decision under the small
  claim procedures of the agency board of contract
  appeals
• STATUS Published as Final Rule 04/22/08 (73 FR
  21799)

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Regulatory Changes FAR

• Local Community Recovery Act of 2006 (2006-14)
• Authorizes Set-asides to allow only offerors
  residing/doing business primarily in geographic
  areas affected by major disaster or emergency
• May be used with small business set-asides
• Limitation of subcontracting
• Supplies/services gt 50
• Construction gt 15 not including materials
• STATUS OIRA cleared sent to FAR SEC for
  Publication as Final Rule - 05/21/2008

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Regulatory Changes FAR

• Numbered Notes for Synopses (2006-016)
• Considers whether or not to include prescriptive
  language for numbered notes used in synopses
• STATUS Published as Final Rule 02/28/2008 (73
  FR 10960)

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Regulatory Changes FAR

• Representations and Certifications -- Tax
  Delinquency (2006-011)
• Adds delinquent taxes, unresolved tax liens to
  cause for debarment, certify if delinquent tax
  notice/outstanding liability with 3 years
  preceding offer or if tax lien notice
  received/outstanding liability/lien not released
• STATUS Published as Final Rule 04/22/2008 (73
  FR 21791)

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Regulatory Changes FAR

• Electronic Subcontracting Reporting System (eSRS)
  (2005-040)
• Implements eSRS replaces SF 294/295
• Flows down report requirements to subcontractors
• STATUS Interim Rule Published. Acquisition SB
  Team reviewing public comments - 07/02/2008

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Regulatory Changes FAR

• Implementation of the Federal Procurement Data
  System (2004-038)
• Standardize rules for procurement reporting to
  facilitate implementation of FPDS-NG across the
  Federal Government
• STATUS Interim FAR rule published 04/22/2008
  Public comment period ended.

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Regulatory Changes FAR

• SB Credit for Alaskan Native Corporations
  Indian Tribes (2004-017)
• Awards to ANCs and Indian tribe count towards
  goals for subcontracting with small and small
  disadvantaged business
• Regardless of size
• Status challenges determined by Dept of Interior
• Separate block on SF 294s SF 295s for ANC and
  Indian tribes that are not SB or SDBs
• ANC or Indian tribe designates contractor
  toreceive subcontracting credit when more than
  one contractor
• Status Published as final rule 8/17/2007

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Regulatory Changes DFARS

• Change name of Office of Small And Disadvantaged
  Small Business Utilization to Office of Small
  Business Programs (2008-D001)
• STATUS DAR Staff processing as final rule
  01/23/2008

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Regulatory Change DFARS

• Mandatory Use of WAWF (2006-D049)
• Requires use of WAWF for all invoices, acceptance
  report and other support documents
• STATUS Published Final Rule 3/3/2008 (73 FR
  11356)
• Interim Rule Report and Regulations on
  Excessive Pass-through Charges (2006-D057)
• Imposes restrictions to ensure pass through
  charges under DoD contract not excessive
• STATUS Interim Rule Published 5/13/2008 (73 FR
  27464. Public comment period ends 7/14/2008

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SBA Rule

• Proposed SBA Rule Small Business Size
  Standards, Calculation and of Employees.
• Change from rolling average over preceding 12
  mos to average over last 3 completed cal years
• STATUS Comments closed 9/25/2007 No decision
  has been made yet by SBA on this rule
• SBA is proposing to revising all the size
  standards in the next two years for more than 20
  industries. 44 size levels will be redone.
  First set to be issued this year.

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SBA Rule

• Proposed SBA Rule HUBZone Program.
• Revises the definition of employee to include
  full-time, part time or others (e.g. temps)
  working minimum of 40 hrs/mo
• STATUS published 1/26/2007 comments closed
  2/26/2007
• Direct Final Rule Adoption of 2007 NAICS for
  Size Standards, published 8/28/2007 and effective
  10/01/2007

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SBA Rule

• Proposed Rule WOSB Federal Contract Assistance
  Program
• SBA issued another Proposed Rule on 27 Dec 2007
• Economically disadvantaged WOSB and WOSB
  set-asides (no sole source contacts)
• Only permitted in 4 NAICS as a result of Rand
  Study
• 9281 - National Security and International
  Affairs
• 3328 Coating, Engraving, Heat Treating
• 3371 - Household and Institutional Furniture and
  Cabinet Making
• 442 Other Motor Vehicle Dealers

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SBA Rule

• Agency must make determination that past
  discriminatory action has taken placed
• New Terms
• Economically Disadvantaged Women Owned Small
  Business Contract Assistance Program Concern
• 51 unconditionally and directly owned by one or
  more economically disadvantaged women who are US
  citizens
• Management and daily operations controlled by one
  or more economically disadvantaged women
• Meets requirements of 13 CFR 127.203 to be
  economically disadvantaged

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SBA Rule

• Women Owed Small Business Contract Assistance
  Program Concern
• Meets requirement of small business in FAR
  19.001
• Note less than 51 unconditionally owned by one
  or more women who are U.S. citizens
• Management and daily business operations are
  controlled by one or more women
• Under-represented Disparity ratio representing
  WOSB share of Federal prime contract dollars
  divided by the WOSB share of total business
  receipts.
• If disparity falls between .5 and .8 under
  representation
• If disparity falls between .0 and .5
  substantial under representation

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SBA Rule

• Set-aside allowed for Economically Disadvantaged
  WOSB in under-represented categories
• Set-aside allowed for WOSB in substantially
  underrepresented categories
• Self-certification allowed SBA will verify the
  status if CO questions it or there is a protest
• In addition, Agency must meet equal protection
  requirements of the Due Process Clause of the
  Fifth Amendment by conducting an analysis and
  making finding of discrimination

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Legislation

• H.R. 1873 Reauthorization of the programs and
  activities of the SBA relating to Procurement
• Increases Small Business Goals to 30
• SB can only be counted toward one other category
  in goal achievement
• Subcontracting database
• Requires review of subcontracting plans
• Limits on value of sole source contracts
• Financial incentives study for contractors that
  meet minority and disadvantaged business
  enterprise goals.

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Legislation

• H.R 4253, The Military Reservist and Veteran
  Small Business Reauthorization and Opportunity
  Act of 2007.  The legislation, expands small
  business opportunities for veterans and helps
  military reservists keep their businesses afloat
  during and after deployment.
• Became Public Law 110-186 14 Feb 2008

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Legislation

• H.R. 3867 The Small Business Contracting Program
  Improvements Act addresses women, minority, HUB
  ZONE and service disabled veteran contracting
  programs.
• Implements Womens Procurement Program
• Updates economic criteria for the 8(a) program,
  reflecting current fiscal realities
• Changes may to shall for SDVOSBs sole source
  awards
• Fights fraud in the federal marketplace -
  increases penalties for misrepresentation

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Legislation

• S-2300 - Small Business Contracting
  Revitalization Act
• Addresses contract bundling requires SBA to
  review
• Requires contractors to certify subcontracting
  data accurate and complete -- Govt could
  withhold payment until information is received
• Would require public announcement of all bundled
  or consolidated contracts
• Would require review of size standards and
  government wide policies for prosecution of SB
  size and status fraud.
• Revises SDVOSB wording from may to shall for
  sole source awards

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Legislation

• Federal Funding Accountability and Transparency
  Act of 2006 (FFATA)
• Requires public access to website containing
  information about federal expenditures
• Applies to contracts gt500M performed w/in U.S.
• First tier contracts gt 41M must be reported
• Does not apply to Part 12 contracts or classified
  contract

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Legislation

• S-2608 - Small Business Women's Procurement
  Program Improvement Act
• Introduced by Senators Snow and Dole to Committee
  on Small Business and Entrepreneurship
• Amends Section 8(m) of the Small Business Act (15
  U.S.C. 637(m))
• NAICS 11-81 would be presumed under represented
  by WOSB
• Eliminates need for agency to admit gender
  discrimination

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Questions????