FAR Council | The Contracting Education Academy

September 23, 2019 By cs

First wave of acquisition prohibitions take effect

The FAR Council released an Interim Rule in August implementing part of Section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019.

In this briefing, we highlight points where the Interim Rule provides clarity; definitional issues that remain unresolved; and new procedural requirements that government contractors should track.

The Interim Rule covers the portion of Section 889, subsection (a)(1)(A), that prohibits the federal government from acquiring certain telecommunications equipment/services from Huawei, ZTE, and other Chinese companies. Specifically: “The head of an executive agency may not … procure or obtain or extend or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.”

Section (a)(1)(A) took effect on August 13, 2019, although a 60-day window remains open for stakeholders to submit comments to be considered in the development of a final rule. Comments on the (a)(1)(A) Interim Rule are due by October 15, 2019.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/09/section-889-update-first-wave-of-acquisition-prohibitions-take-effect/

August 14, 2019 By AMK

New rule bans government purchase of Chinese telecom gear

Three departments in charge of federal purchasing policy have unveiled an interim rule amending Federal Acquisition Regulation (FAR) to ban agencies from purchasing telecommunications and video surveillance equipment from five Chinese firms, including Huawei.

The interim rule from the General Services Administration, the Department of Defense and NASA took effect Aug. 13 and stems from a provision in the 2019 National Defense Authorization Act (NDAA) prohibiting federal agencies from purchasing telecommunications and video surveillance equipment, along with any “substantial or essential component of any system, or as critical technology as part of any system” from the Chinese tech firms or their affiliates. The regulation language will apply to all new contracts and procurements as well as existing indefinite delivery contracts, as well as options picked up for existing contracts.

While the NDAA does allow for the issuance of individual, one-time waivers to agencies, the rule requires contractors to identify as part of their offer any telecommunications equipment or services that will be provided to the government, including those provided by subcontractors. Acknowledging that such a rule could result in a heavy “information collection burden” on federal agencies, the three departments are updating the System for Award Management to allow contractors to disclose these parts and components on an annual basis.

Keep reading this article at: https://fcw.com/articles/2019/08/07/china-telecom-regulation-johnson.aspx?m=1

June 27, 2019 By AMK

Proposed FAR rule would broaden ‘commercial item’ status to products developed exclusively for and sold to friendly foreign governments

A little-heralded change to the statutory definition of “commercial item” has now made its way to a proposed FAR rule, which will open up regulatory relief to a whole new class of government contractors – companies, both domestic and foreign, that regularly sell products developed at private expense to friendly foreign governments.

With the December 12, 2017, passage of Section 847 of the National Defense Authorization Act of 2018, Pub. L. 115-91 (“2018 NDAA”), the statutory set of definitions for the term “commercial items” was amended. See 41 U.S.C. § 103. More specifically, Section 103(8), addressing “nondevelopmental items,” was broadened as follows:

(8) a nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that the item was developed exclusively at private expense and has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.

(Emphasis reflects new language). On May 10, 2019, the FAR Council promulgated a Proposed Rule amending and broadening the definition of “commercial item” in FAR 2.101 to include the statutory language.

A “nondevelopmental item” (“NDI”) is separately defined by FAR 2.101 as, in pertinent part:

(1) an already developed product “used exclusively for governmental purposes by a Federal agency, a State or local government, or a foreign government with which the United States has a mutual defense agreement”; (2) a product which meets the definition in (1) that requires minor modifications or modifications “of a type customarily available in the commercial marketplace;” or (3) a product which does not meet the definition in either (1) or (2) “solely because the item is not yet in use.”

Keep reading article at: https://www.jdsupra.com/legalnews/new-proposed-far-rule-makes-way-for-88083

July 25, 2018 By AMK

Congress can simplify commercial buying and increase government innovation

For decades Congress has demonstrated its deep interest in simplifying the federal government’s ability to buy commercial products and services. It recognized that to solve government’s most difficult problems, the government must have ready access to the innovative and rapidly evolving commercial marketplace.

But the government’s transactions in the commercial marketplace, which should be quick and easy, have gotten more complicated over the years, not less so. This is due in large part to the volume and complexity of government-unique contract terms and conditions.

Volume 1 of the Section 809 Panel report includes several recommendations for Congress’ consideration that will truly simplify contracts for commercial products and services. Among other strategies, Recommendation 2 makes the case for Congress retaining the authority to determine the applicability of new government-unique requirements that are well-intended but burdensome, rather than delegating that authority to the Federal Acquisition Regulatory Council or the Department of Defense.

In 1994, the Federal Acquisition Streamlining Act took important steps to make the government more commercial-like in its dealings in the commercial marketplace. FASA limited the applicability of many, but not all, procurement-related statutes in two ways. First, many statutes in effect at the time FASA was enacted were made inapplicable to commercial buying, significantly simplifying federal contract compliance and administrative burdens.

Keep reading this article at: https://www.defensenews.com/opinion/commentary/2018/07/17/congress-can-simplify-commercial-buying-and-increase-government-innovation/

May 11, 2018 By AMK

FAR rule implements higher dollar threshold for GAO’s protest jurisdiction over DoD, NASA, Coast Guard task orders

In a new rule announced May 1, the FAR Council implemented prior statutory changes to GAO’s bid protest jurisdiction.

For task orders issued by the Department of Defense, NASA, or the Coast Guard, the rule provides that GAO will have jurisdiction only over task orders “valued in excess of $25 million.”

For civilian agencies, GAO continues to have jurisdiction over protests of task orders “valued in excess of $10 million.” The rule also permanently repeals a pre-existing FAR clause that had set a September 30, 2016 expiration date on the ability to protest civilian agency task orders.

The new rule — codified as FAR 16.505(a)(10) — implements Section 835 of the National Defense Authorization Act for Fiscal Year 2017, which directed the FAR Council to establish the new DoD, NASA, and Coast Guard threshold. (The sunset date for protests of civilian agency task orders had previously been repealed by the GAO Civilian Task and Delivery Order Protest Authority Act of 2016.) According to the FAR Council, its new rule is designed to “follow[] the statute exactly.”

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/05/new-far-rule-implements-increased-minimum-dollar-threshold-for-gaos-protest-jurisdiction-over-dod-nasa-and-coast-guard-task-orders/

The FAR Council released an Interim Rule in August implementing part of Section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019.

Three departments in charge of federal purchasing policy have unveiled an interim rule amending Federal Acquisition Regulation (FAR) to ban agencies from purchasing telecommunications and video surveillance equipment from five Chinese firms, including Huawei.

In a new rule announced May 1, the FAR Council implemented prior statutory changes to GAO’s bid protest jurisdiction.

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