FEDERAL CONTRACTS PERSPECTIVE Panoptic Enterprises’ OFCCP PROPOSES TO IMPLEMENT EO 13665 WITH

Panoptic Enterprises’
FEDERAL CONTRACTS PERSPECTIVE
Federal Acquisition Developments, Guidance, and Opinions
Vol. XV, No. 10
October 2014
OFCCP PROPOSES TO IMPLEMENT EO 13665 WITH
PROHIBITIONS AGAINST PAY SECRECY
The Office of Federal Contract Compliance Programs (OFCCP), a part of the
Department of Labor, is proposing to amend Title 41 of the Code of Federal Regulations
(CFR), Part 60-1, Obligations of Contractors and Subcontractors (41 CFR part 60-1), to
implement Executive Order (EO) 13665, Non-Retaliation for Disclosure of Compensation
Information, which prohibits contractors
from “discharg[ing] or in any other
CONTENTS
manner discriminat[ing] against any
employee or applicant for employment
OFCCP Proposes Prohibitions Against Pay Secrecy ......... 1
because such employee or applicant has
Defense Unleashes a Torrent of Regulations ..................... 3
inquired about, discussed, or disclosed the NASA Continues Updating NFS........................................ 8
FAR Rule Would Address Past Performance Evaluation .. 9
compensation of the employee or
SBA Proposes Hundreds of Changes to Size Standards ..... 9
applicant or another employee or
GSA to Update GSAR FSS Provisions/Clauses ............... 10
applicant.”
Labor Revises Veterans Reporting Regulations ............... 12
Anne Rung Confirmed as OFPP Administrator ............... 13
The introduction to the proposed rule
provides the following as the reason for EO
13665: “Pay secrecy policies interfere with the federal government’s interest in efficiency in
procurement. Economy and efficiency in federal procurement require that contractors
compensate employees under merit-based practices, without any barriers to success. This rule
would eliminate the barrier of pay secrecy policies and ensure that federal contractor employees
are compensated based on merit.
“Pay secrecy policies may decrease worker productivity. Workers, due to a lack of
compensation information, may experience a reduction in performance motivation and are likely
to perceive their employer as unfair or untrustworthy…Because of pay secrecy policies, some
workers do not know whether their own wages are reflective of job performance. This
information gap makes it more difficult for workers to make informed choices about their own
compensation and creates unnecessary barriers to enforcing laws against compensation
discrimination…When workers have access to more information about colleagues’
compensation, salaries may be likely to be more closely linked to productivity on the job and
compensation may be much less likely to be influenced by factors unrelated to job performance
such as sex and race. As a result, workers with the ability to inquire about, discuss, and disclose
compensation information may make more informed decisions about their careers. These
workers may become aware of their current value to the organization, but also of their potential
value, based on information they receive about the salaries of longer tenured employees or
employees in higher wage positions.”
To implement EO 13665, OFCCP would make the following changes to 41 CFR Part 60-1:
■ To 41 CFR 60–1.3, Definitions, would be added the definitions for the following:
–
Compensation – “Any payments made to, or on behalf of, an employee or offered to an
applicant as remuneration for employment, including but not limited to salary, wages,
overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay,
allowances, insurance and other benefits, stock options and awards, profit sharing, and
contributions to retirement.
–
Compensation Information – “Information pertaining to any aspect of compensation,
including but not limited to information about the amount and type of compensation as
well as decisions, statements, or actions related to setting or altering employees’
compensation.”
–
Essential Job Functions – “Fundamental job duties of the employment position an
individual holds. The term essential job functions does not include the marginal functions
of the position.”
■ Paragraphs (a) and (b) of 41 CFR 60–1.4, Equal Opportunity Clause, would be amended to
add the requirement that contractors not discharge or otherwise discriminate against employees
or applicants who inquire about, discuss, or disclose their compensation or the compensation of
other employees or applicants, except where the disclosure was carried out by an employee who
obtained the information in the course of performing his or her essential job functions. The
requirement would be added as subparagraph (a)(3) for government contracts, and as
subparagraph (b)(3) for federally assisted construction contracts.
■ 41 CFR 60–1.35, Contractor Obligations and Defenses to Violation of the Nondiscrimination
Requirement for Compensation Disclosures, would be added. It would establish a general
defenses provision (paragraph (a)) and an essential job functions defense provision (paragraph
(b)). Both provide contractor defenses to alleged violations of the nondiscrimination obligation
for employees who inquired about, disclosed or discussed compensation. In addition, paragraph
(c) would require federal contractors to incorporate the nondiscrimination provision, as
prescribed by OFCCP and made available on its website, into their existing employee manuals or
handbooks, and disseminate the nondiscrimination provision to employees and to job applicants.
This dissemination can be executed electronically or by posting the prescribed provision in
conspicuous places available to employees and job applicants. The prescribed nondiscrimination
provision is based on the language in Section 2(b) of EO 13665.
Comments on the proposed rule must be submitted no later than December 16, 2014,
identified as “RIN number 1250-AA06,” by any of the following methods: (1) the Federal
eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-693–1304 (six pages or less); or
Vivina McVay, Editor-in Chief
©2014 by Panoptic Enterprises. All rights reserved. Reproduction, photocopying, storage, or transmission by any means is
prohibited by law without the express written permission of Panoptic Enterprises. Under no circumstances should the
information contained in Federal Contracts Perspective be construed as legal or accounting advice. If a reader feels expert
assistance is required, the services of a professional counselor should be retained.
The Federal Contracts Perspective is published monthly by Panoptic Enterprises, P.O. Box 11220, Burke, VA 220091220.
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(3) mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development,
Office of Federal Contract Compliance Programs, Room C–3325, 200 Constitution Avenue NW,
Washington, DC 20210.
For more on EO 13665, see the May 2014 Federal Contracts Perspective article “President
Requires Collection of Compensation Data from Contractors and Subcontractors.”
DEFENSE UNLEASHES TORRENT OF REGULATIONS
The Department of Defense (DOD) had a busy September, issuing five final rules, two
proposed rules, one class deviation, and two policy memoranda. In addition, DOD, in
conjunction with the Office of Management and Budget (OMB), is requesting comments on
alternative measures of allowable reimbursement for the compensation of contractor employees.
■ Limitation on Use of Cost-Reimbursement Contracts and Line Items for Major Defense
Acquisition Programs: This finalizes, with an editorial change, the interim rule that
implemented Section 811 of the National Defense Authorization Act (NDAA) for FY 2013
(Public Law 112-239), which requires DOD to prohibit entering into cost-type contracts for the
production of major defense acquisition programs (MDAPs) for contracts entered into on or after
October 1, 2014, unless the Under Secretary of Defense for Acquisition, Technology, and
Logistics certifies to the congressional defense committees (that is, the House of Representatives
and Senate committees on armed services and appropriations) that the particular cost-type
contract is needed to provide a required capability in a timely, cost-effective manner. In the
interim rule, DOD extended this prohibition to cost-reimbursement line items for the production
of MDAPs (see DFARS 216.102, Policies [for selecting contract type]). (EDITOR’S NOTE:
Title 10 of the U.S. Code, Section 2304, paragraph (a) (10 USC 2304(a)) defines a MDAP as a
“DOD acquisition program that is not a highly sensitive classified program…and that is
estimated by the Secretary of Defense to require an eventual total expenditure for research,
development, test, and evaluation of more than $300,000,000 [based on fiscal year 1990 constant
dollars] or an eventual total expenditure for procurement, including all planned increments or
spirals, of more than $1,800,000,000 [based on fiscal year 1990 constant dollars].”)
Two comments were received on the interim rule, and the term “cost-type reimbursement
contract” in paragraph (2)(i)(C) of DFARS 234.004, Acquisition Strategy [for major system
acquisitions], is revised to “cost-reimbursement type contract.”
For more on the interim rule, see the February 2014 Federal Contracts Perspective article
“DOD Limits Use of Cost-Type Contracts for Major Defense Acquisition Programs.”
■ Payment in Local Afghan Currency: This finalizes, with an editorial change, the proposed
rule that would add DFARS subpart 232.72, Payment in Local Currency (Afghanistan), and
solicitation provision DFARS 252.232-7014, Notification of Payment in Local Currency
(Afghanistan), to provide notification that the payment currency to be used for contracts for
performance in Afghanistan is dependent on the nationality of the vendor.
Two respondents submitted comments on the proposed rule, and proposed paragraph (f)(lviii)
of DFARS 212.301, Solicitation Provisions and Contract Clauses for the Acquisition of
Commercial Items, had referred to DFARS 252.232-7014 as a clause. The final rule has
corrected DFARS 212.301(f)(lviii) so that it refers to DFARS 252.232-7014 as a provision.
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For more on the proposed rule, see the February 2014 Federal Contracts Perspective article
“DOD Limits Use of Cost-Type Contracts for Major Defense Acquisition Programs.”
■ Deletion of Congressional Reporting Requirement for Task and Delivery Order
Contract Periods: This final rule deletes an obsolete congressional reporting requirement in
paragraph (e)(ii) of DFARS 217.204, Contracts [with options]: “DOD must submit a report to
Congress, annually through fiscal year 2009, when an ordering period is extended beyond 10
years…” This reporting requirement was never extended, so it is deleted.
■ Statutory Update on Storage, Treatment, and Disposal of Toxic or Hazardous
Materials: This finalizes, without changes, the proposed rule that would revise DFARS subpart
223.71, Storage, Treatment, and Disposal of Toxic or Hazardous Materials, and the
corresponding clause DFARS 252.223-7006, Prohibition on Storage, Treatment, and Disposal of
Toxic or Hazardous Materials, to reflect current language and restrictions contained in 10 USC
2692, Storage, Treatment, and Disposal of Nondefense Toxic and Hazardous Materials; to
provide greater clarity to contracting officers; and to revise DFARS 252.223-7006 and its
alternate to require flowdown of the clause to subcontractors.
No comments were submitted in response to the proposed rule, so it is finalized without
changes. For more on the proposed rule, see the February 2014 Federal Contracts Perspective
article “DOD Limits Use of Cost-Type Contracts for Major Defense Acquisition Programs.”
■ Tax-Related Clause with Alternate: This finalizes, without changes, the proposed rule that
would provide an overarching prescription for DFARS 252.229-7001, Tax Relief – Basic, and
Tax Relief – Alternate I, and would provide the full texts of both the Basic and Alternate I
versions in DFARS 252.229-7001.
No comments were submitted in response to the proposed rule, so it is finalized without
comments. For more on the proposed rule, see the March 2014 Federal Contracts Perspective
article “DOD Cranks Up DFARS Changes.”
■ Statutory References and Cancellation Ceiling Threshold for Multiyear Contracts: This
proposed rule would amend DFARS subpart 217.1, Multiyear Contracts, to update the
cancellation ceiling for consistency with the FAR, and to correct statutory references.
Paragraphs (e)(1)(iv) and (e)(5) of DFARS 217.170, General [regarding multiyear
contracting], require DOD to provide notification to the congressional defense committees [the
House of Representatives and Senate committees on armed services and appropriations] at least
30 days before entering into a multiyear contract that includes a cancellation ceiling in excess of
$100 million. However, this conflicts with the requirement expressed in paragraph (b) of FAR
17.108, Congressional Notification, that the congressional defense committees be notified before
entering into a multiyear contract that includes a cancellation ceiling in excess of $125 million.
This proposed rule would revise the $100 million threshold to conform to the $125 million in the
FAR.
In addition, this proposed rule would make the following corrections regarding multiyear
contracts for supplies:
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–
The language in DFARS 217.170(b) applies only to the acquisition of property, so it
would be moved to DFARS 217.172, Multiyear Contracts for Supplies, and become
paragraph (j).
–
DFARS 217.172(c) states, “Multiyear contracts in amounts exceeding $500 million must
be specifically authorized by law…A multiyear supply contract may be authorized by an
appropriations act or a law other than an appropriations act…” However, 10 USC
2306b(i)(3) states that a multiyear contract in excess of $500 million must be specifically
authorized by law in an act other than an appropriations act. Therefore, DFARS
217.172(c) would be corrected to read: “Multiyear contracts in amounts exceeding $500
million must be specifically authorized by law in an act other than an appropriations
act…”
Finally, this proposed rule would correct references throughout DFARS subpart 217.1 to 10
USC 2306b, 10 USC 2306c, and Section 8008a of Public Law 105-56, Department of Defense
Appropriations Act for Fiscal Year 1998.
Comments on the proposed rule must be submitted no later than November 18, 2014,
identified as “DFARS 2014-D019,” by any of the following methods: (1) the Federal
eRulemaking Portal: http://www.regulations.gov; (2) email: osd.dfars@mail.mil; (3) fax: 571372-6094; or (4) mail: Defense Acquisition Regulations System, Attn: Jennifer Hawes,
OUSD(AT&L)DPAP/ DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 203013060.
■ Domestic Source Restrictions on Certain Naval Vessel Components: This proposed rule
would add DFARS 225.7010, Restriction on Certain Naval Vessel Components, to implement
the domestic source restrictions in 10 USC 2534, Miscellaneous Limitations on the Procurement
of Goods Other than United States Goods, on gyrocompasses, electronic navigation chart
systems, steering controls, pumps, propulsion and machinery control systems, and totally
enclosed lifeboats, to the extent they are unique to marine applications.
10 USC 2534 prohibits acquisition of these naval vessel components unless they are
manufactured in the United States or Canada, except for acquisitions that do not exceed the
simplified acquisition threshold or acquisitions of spare or repair parts needed to support
components for naval vessels manufactured outside the United States.
These restrictions are currently implemented in the acquisition regulations of two DOD
components that acquire such naval vessel components: the Defense Logistics Agency (Defense
Logistics Agency Directive [DLAD] 25.70(90), Restriction on Certain Components for Naval
Vessels); and the Department of the Navy (Navy Marine Corps Acquisition Regulation
Supplement [NMCARS] 5225.9000, Restriction on Certain Components for Naval Vessels).
Because the restrictions affect more than one DOD component, this proposed rule would add
DFARS 225.7010, Restriction on Certain Naval Vessel Components, to the DFARS.
One interesting provision of 10 USC 2534 is paragraph (h), which prohibits the use of
contract clauses or certifications to implement this restriction. Therefore, paragraph (b) of
DFARS 225.7010-4, Implementation, would state, “Agencies shall accomplish implementation
of this restriction through use of management and oversight techniques that achieve the
objectives of this section without imposing a significant management burden on the government
or the contractor involved.”
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Comments on the proposed rule must be submitted no later than November 18, 2014,
identified as “DFARS 2014-D022,” by any of the following methods: (1) the Federal
eRulemaking Portal: http://www.regulations.gov; (2) email: osd.dfars@mail.mil; (3) fax: 571372-6094; or (4) mail: Defense Acquisition Regulations System, Attn: Amy Williams,
OUSD(AT&L)DPAP/ DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 203013060.
■ Class Deviation on Prohibition on Contracting with the Enemy: This class deviation
supersedes the February 12, 2014, class deviation on the same subject (Class Deviation 2014O0008). This and Class Deviation 2014-O0008 implement Section 831 of the National Defense
Authorization Act for Fiscal Year 2014 (Public Law 113-66), which requires the U.S. Central
Command (USCENTCOM), U.S. European Command (USEUCOM), the U.S. African
Command (USAFRICOM), U.S. Southern Command (USSOUTHCOM), and the U.S. Pacific
Command (USPACOM) to identify persons or entities who are actively opposing U.S. or
Coalition forces involved in a contingency operation in which members of the armed forces are
actively engaged in hostilities.
Class Deviation 2014-O0008 included DFARS 252.225-7993, Prohibition on Contracting
with the Enemy (DEVIATION 2014-O0008), which required contractors to “exercise due
diligence to ensure that none of their subcontractors are associated with a person or entities listed
in ‘NDAA FY2012 Section 841/NDAA FY2014 Section 831 Identified Entities’ list posted at
http://www.acq.osd.mil/dpap/pacc/cc/policy.html” (paragraph (b)).
This class deviation issues a superseding DFARS 252.225-7993 (DEVIATION 2014O0020), which includes a revised paragraph (b) that requires contractors to “exercise due
diligence to ensure that none of their subcontractors are associated with a person or entities listed
as a prohibited/restricted source in the System for Award Management at www.sam.gov.” The
rest of the clause is unchanged. There is no difference between the other clause in the two
deviations, DFARS 252.225-7994, Additional Access to Contractor and Subcontractor Records
in the United States Central Command Theater of Operations, other that the clause is now
identified as “(DEVIATION 2014-O0020).”
For more on Class Deviation 2014-O0008, see the March 2014 Federal Contracts
Perspective article “DOD Cranks Up DFARS Changes.”
■ Government Furnished Property Clause Compliance: This memorandum from Defense
Procurement and Acquisition Policy (DPAP) director Richard Ginman chides the DOD
acquisition community for failing to include required government furnished property (GFP)
clauses in contracts.
“Evaluation of new contract awards indicates that the required Federal Acquisition
Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) provisions
are not included when required,” Mr. Ginman writes. “The FAR clause 52.245-1 [Government
Property] is required in all cost reimbursement and time-and-material contracts but is included
less than 79% of the time. Similarly, the five (sic) DFARS clauses required in all contracts
containing [FAR] 52.245-1 were included in less than 39% of new awards in FY14Q3 [3rd
quarter of fiscal year 2014]…DPAP will publish quarterly scorecards on the inclusion of FAR
and DFARS property clauses in new awards. The Director, Defense Contract Management
Agency (DCMA) will include checks for the required FAR and DFARS property clauses in the
agency’s contract receipt and review process (to the extent those contracts are administered by
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DCMA), and DCMA will issue Contract Deficiency Reports when the clauses are not included.”
(EDITOR’S NOTE: The editor is aware of only four DFARS property clauses that are required
to be included in all contracts containing FAR 52.245-1, not five. Those clauses are: DFARS
252.245–7001, Tagging, Labeling, and Marking of Government-Furnished Property; DFARS
252.245–7002, Reporting Loss of Government Property; DFARS 252.245-7003, Contractor
Property Management System Administration; and DFARS 252.245–7004, Reporting,
Reutilization, and Disposal.)
■ Defense Contingency Business Environment Handbook: This memorandum from DPAP
Contingency Contracting Deputy Director RDML Althea H. Coetzee, SC, USN, alerts the DOD
acquisition community of the issuance of the Contingency Business Environment Handbook.
“The attached Contingency Business Environment Handbook codifies enduring e-business
tools with an array of capabilities that can be used to support future contingency and
humanitarian or peacekeeping operations, and ultimately improve the delivery of goods and
services to the warfighter,” writes RDML Coetzee. “This guidebook applies to all Department of
Defense organizations, field activities, and acquisition personnel involved in planning, acquiring,
managing, and overseeing the delivery of goods and services supporting contingency operations
as well as humanitarian or peacekeeping operations. It also applies to pre-contingency planning,
integrating, and operationalizing communities.”
■ Report on Alternative Measures of Allowable Reimbursement for Compensation of
Contractor Employees: DOD, in conjunction with the Office of Federal Procurement Policy
(OFPP), is soliciting comments on alternative measures of allowable reimbursement for the
compensation of contractor employees. These comments will be considered during the
development of a report to Congress. The report is required by Section 702 of the Bipartisan
Budget Act of 2013 (Public Law 113-67), Limitation on Allowable Government Contractor
Compensation Costs, which established $487,000 as the limit on the amount the government will
reimburse defense and civilian contractors for employee compensation (see the end of the
January 2014 Federal Contracts Perspective article “FY 2014 National Defense Authorization
Act Establishes $625,000 as Compensation Amount [Maybe]”). This amount must be adjusted
annually to reflect the change in the Employment Cost Index for all workers, as calculated by the
Bureau of Labor Statistics.
Paragraph (d) of Section 702 directs DOD and OMB (of which OFPP is part) to report to
Congress on alternative benchmarks and industry standards for compensation, including whether
any such benchmarks or standards would provide a more appropriate measure of contractor
employee compensation that may be reimbursed by the government.
Therefore, DOD and OFPP are seeking comments on alternative benchmarks that would
provide a more appropriate measure of allowable compensation, including alternatives to the
Employment Cost Index for all workers. These comments will be considered during the
preparation of the report to Congress and should both describe the alternative(s) and explain why
such might be more suitable than the Employment Cost Index for all workers.
Comments must be submitted no later than October 16, 2014, identified as “Report on
Benchmark Alternatives,” by any of the following methods: (1) email: compcap@omb.eop.gov;
(2) fax: 202-395-5105; or (3) mail: Office of Federal Procurement Policy, ATTN: Raymond
Wong, New Executive Office Building, Room 9013, 725 17th St. NW, Washington, DC 20503.
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NASA CONTINUES UPDATING NFS
The National Aeronautics and Space Administration (NASA) has started the second phase of
the NASA FAR Supplement (NFS) updating process with the goal of eliminating unnecessary
regulation, streamlining overly-burdensome regulation, clarifying language, and simplifying
processes wherever possible. The last NFS reissue was in 2004.
This proposed rule is the second of three and includes updates and revisions to the following
14 NFS parts:
Part 1809, Contractor Qualifications
Part 1815, Contracting by Negotiation (only subpart 1815.4, Contract Pricing; changes to the
other subparts were proposed in the first proposed rule)
Part 1816, Types of Contracts
Part 1817, Special Contracting Methods
Part 1819, Small Business Programs
Part 1823, Environment, Energy and Water Efficiency, Renewable Energy Technologies,
Occupational Safety, and Drug-Free Workplace
Part 1827, Patents, Data, and Copyrights
Part 1828, Bonds and Insurance
Part 1831, Contract Cost Principles and Procedures
Part 1832, Contract Financing
Part 1837, Service Contracting
Part 1842, Contract Administration and Audit Services
Part 1849, Terminations
Part 1852, Solicitation Provisions and Contract Clauses
In addition, this proposed rule states that no regulatory changes will be made to the following
eight NFS parts:
Part 1806, Competition
Part 1810, Market Research
Part 1826, Socio-Economic Programs
Part 1829, Taxes
Part 1830, Cost Accounting Standards Administration
Part 1836, Construction and Architect-Engineer Contracts
Part 1838, Federal Supply Schedule
Part 1844, Subcontracting
Comments on the proposed rule must be submitted no later than November 24, 2014,
identified as “RIN number 2700-AE09,” by either of the following methods: (1) the Federal
eRulemaking Portal: http://www.regulations.gov; or (2) email: leigh.pomponio@NASA.gov.
For more on the first phase of the NFS updating process, see the May 2013 Federal
Contracts Perspective article “NASA Commences NFS Updating Process.”
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FAR RULE WOULD ADDRESS PAST PERFORMANCE EVALUATION
A proposed rule would amend FAR 42.1502, Policy [on contractor performance
information], to reflect the merger of the Architect-Engineer Contract Administration Support
System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) into the
Contractor Performance Assessment Reporting System (CPARS) database (http://www.cpars.
gov) on July 1, 2014.
Prior to July 1, 2014, all past performance evaluations were entered into CPARS except that
evaluations of architect-engineer contracts were entered into ACASS and evaluations of
construction contracts were entered into CCASS. The ACASS and CCASS were merged into the
CPARS to standardize the contractor performance evaluation process across the entire federal
government. To reflect this merger, it is proposed that FAR 42.1502(a) be amended to remove
references to the ACASS and CCASS.
The amended FAR 42.1502(a) would state: “Past performance evaluations shall be prepared
at least annually and at the time the work under a contract or order is completed. Past
performance evaluations are required for all contracts and orders that exceed the specified
thresholds, including contracts and orders performed outside the United States. These
evaluations are generally for the entity, division, or unit that performed the contract or order. Past
performance information shall be entered into CPARS, the governmentwide evaluation reporting
tool for all past performance reports on contracts and orders. Instructions for submitting
evaluations into CPARS are available at http://www.cpars.gov/.”
Comments on the proposed rule must be submitted no later than November 14, 2014,
identified as “FAR Case 2014-010,” by any of the following methods: (1) the Federal
eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-501-4067; or (3) mail: General
Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street
NW, 2nd Floor, Washington, DC 20405.
SBA PROPOSES HUNDREDS OF CHANGES TO SIZE STANDARDS
As part of its ongoing comprehensive small business size standards review, the Small
Business Administration (SBA) is proposing two rules that would amend 13 CFR 121.201, What
Size Standards has SBA Identified by North American Industry Classification System Codes?, to
change (mostly increase) the small business size standards for approximately 250 industries.
■ Manufacturing: SBA proposes to increase small business size standards for 209 industries
in North American Industry Classification System (NAICS) Sector 31-33, Manufacturing. In
addition, SBA proposes to amend NAICS 324110, Petroleum Refineries, size standard to: (1)
increase the refining capacity component of to 200,000 barrels per calendar day total capacity;
and (2) eliminate the requirement that 90% of output being delivered is refined by the successful
bidder.
Comments on the proposed changes to Sector 31-33 size standards are to be submitted no
later than November 10, 2014, identified as “RIN 3245-AG50,” by either of the following
methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail/handdelivery/courier to: Khem R. Sharma, PhD, Chief, Size Standards Division, 409 Third Street,
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SW, Mail Code 6530, Washington, DC 20416. SBA will not accept comments on this proposed
rule that are submitted by email.
■ Employee-Based Size Standards for Industries Not Part of Manufacturing, or
Wholesale or Retail Trade: This proposed rule would increase employee-based small business
size standards for 30 industries and three sub-industries and decrease them for three industries
that are not part of NAICS Sector 31-33, Manufacturing; Sector 42, Wholesale Trade; or Sector
44-45, Retail Trade (that is, NAICS 212113, Anthracite Mining; NAICS 212222, Silver Ore
Mining; and NAICS 212291, Uranium-Radium-Vanadium Ore Mining). In addition, SBA
proposes to eliminate the Information Technology Value Added Resellers sub-industry
“exception” under NAICS 541519, Other Computer Related Services, and its 150-employee size
standard. Also, SBA proposes to eliminate the Offshore Marine Air Transportation Services subindustry “exception” under NAICS 481211, Nonscheduled Chartered Passenger Air
Transportation, and NAICS 481212, Nonscheduled Chartered Freight Air Transportation.
Finally, SBA proposes to eliminate the Offshore Marine Services sub-industry “exception” under
NAICS Subsector 483, Water Transportation, and its $28 million receipts based size standard.
Comments on the proposed changes to these size standards are to be submitted no later than
November 10, 2014, identified as “RIN 3245-AG51,” by either of the following methods: (1) the
Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail/hand-delivery/courier to:
Khem R. Sharma, PhD, Chief, Size Standards Division, 409 Third Street, SW, Mail Code 6530,
Washington, DC 20416. SBA will not accept comments on this proposed rule that are submitted
by email.
GSA TO UPDATE GSAR FSS PROVISIONS/CLAUSES
The General Services Administration (GSA) is proposing to amend the GSA Acquisition
Regulation (GSAR) to incorporate 35 Federal Supply Schedule (FSS) provisions and clauses that
are contained in Federal Acquisition Service (FAS) Acquisition Letters and Instructional Letters
(ILs). Not only would this proposed rule bring all these provisions and clauses together in one
place (the GSAR) but it will permit the public to comment on them (by being implemented
outside the regulatory process, the public has not had an opportunity to comment on them or
make suggestions for improvement). In addition, GSA is proposing to revise the prescriptions for
seven existing clauses to reflect current practices.
The 35 new provisions and clauses proposed for incorporation into the GSAR are:
552.232-82, Delivery Schedule
552.238-83, GSA Advantage!
552.238-84, Cover Page for Worldwide Federal Supply Schedules
552.238-85, Significant Changes
552.238-86, Notice of Total Small Business Set-Aside
552.238-87, Information Collection Requirements
552.238-90, Introduction of New Supplies/Services (INSS)
552.238-91, Authorized Negotiators
552.238-93, Use of Non-Government Employees to Review Offers
552.238-94, Examination of Records by GSA (Federal Supply Schedule)
552.238-99, Deliveries to the U.S. Postal Service
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552.238-100, Characteristics of Electric Current
552.238-101, Marking and Documentation Requirements for Shipping
552.238-102, Inspection
552.238-103, Vendor Managed Inventory (VMI) Program (MAS)
552.238-104, Order Acknowledgement
552.238-105, Urgent Requirements
552.238-106, Post-Award Samples
552.238-107, Restriction on the Acceptance of Orders
552.238-108, Separate Charge for Performance Oriented Packaging (POP)
552.238-109, Additional Service Charge for Delivery Within Consignee’s Premises
552.238-110, Shipping Points
552.238-111, Contact for Contract Administration
552.238-112, Clauses for Overseas Coverage
552.238-113, Parts and Service
552.238-114, Delivery Prices Overseas
552.238-115, Transshipments
552.238-116, Foreign Taxes and Duties
552.238-117, English Language and U.S. Dollar Requirements
552.238-118, Delivery Prices
552.238-119, Federal Excise Taxes
552.238-120, Guarantee
552.238-121, Electronic Commerce
552.238-122, Imprest Funds (Petty Cash)
552.238-123, Dissemination of Information by Contractor
552.238-124, Deliveries Beyond the Contractual Period – Placing of Orders
552.238-125, Interpretation of Contract Requirements
552.238-126, Export Traffic Release (Supplies)
552.238-127, Export Traffic Release (Vehicles)
552.238-128, Carload Shipments
552.238-129, Spare Parts Kit
552.238-130, Authentication Supplies and Services
552.238-131, Commercial Satellite Communication (COMSATCOM) Services
552.238-132, Environmental Protection Agency Registration Requirement
The prescriptions for the following seven existing clauses would be updated to reflect current
practices:
552.238-70, Identification of Electronic Office Equipment Providing Accessibility for the
Handicapped
552.238-71, Submission and Distribution of Authorized Federal Supply Schedule (FSS) Price
Lists
552.238-72, Identification of Products That Have Environmental Attributes
552.238-73, Cancellation
552.238-74, Industrial Funding Fee and Sales Reporting
552.238-75, Price Reductions
552.238-81, Modifications (Federal Supply Schedules)
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Comments on the proposed rule must be submitted no later than November 10, 2014,
identified as “GSAR Case 2013-G502,” by any of the following methods: (1) the Federal
eRulemaking Portal: http://www.regulations.gov; (2) fax: 202-501-4067; or (3) mail: General
Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street
NW, 2nd Floor, Washington, DC 20405.
LABOR REVISES VETERANS REPORTING REGULATIONS
The Department of Labor (DOL) is revising its regulations implementing the reporting
requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974
(VEVRAA). VEVRAA requires federal contractors and subcontractors to report annually on the
total number of their employees who belong to the categories of veterans protected under
VEVRAA (that is, “disabled veterans,” “recently separated veterans,” “active duty wartime or
campaign badge veterans,” and “Armed Forces service medal veterans”), and the total number of
those protected veterans who were hired during the period covered by the report.
First of all, DOL is rescinding 41 CFR part 61-250, Affirmative Action and
Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled
Veterans, Veterans of the Vietnam Era, Recently Separated Veterans, and Other Protected
Veterans, because the regulations apply to federal contracts and subcontracts exceeding $25,000
entered into before December 1, 2003, so they are obsolete. The rescission of 41 CFR part 61250 rescinds the Federal Contractor Veterans’ Employment Report VETS-100 (“VETS-100
Report”), which was required to be submitted by covered contractors and subcontractors
annually.
Second, DOL is amending 41 CFR part 61-300, Annual Report from Federal Contractors,
which applies to federal contracts and subcontracts exceeding $100,000 entered into after
December 1, 2003, to simplify the reporting requirements. This is being accomplished by
replacing the VETS-100A Report, which required reporting in ten occupational categories
(executive/senior level officials and managers, first/mid level officials and managers,
professionals, technicians, sales workers, administrative support workers, craft workers,
operatives, laborers/helpers, and service workers), with the Federal Contractor Veterans’
Employment Report VETS-4212 (“VETS-4212 Report”), which will require reporting on the
total number of protected veterans employed and newly hired during the reporting period in the
annual reports required under VEVRAA, rather than the total number of veterans protected under
each category of protected veterans.
DOL decided to implement the VETS-4212 Report because 38 USC 4212 requires that the
information reported in the VETS-100 and VETS-100A Reports be publically disclosed. As the
introduction to the rule states, “The existing VETS-100 and VETS-100A Reports ask contractors
to provide, by job category and hiring location, the number of employees in each of the specified
categories of veterans. In many instances, the category might include only one employee, and
currently it might be possible to discern the identities of disabled veteran employees because the
reports disclose the number of employees who are disabled veterans. For example, if a
contractor’s VETS-100A Report lists two employees in the Executive/Senior Level Officials and
Managers category, one of whom is a disabled veteran, the identity of the disabled veteran could
be easily discovered…In addition, [DOL] believes its annual report to Congress on reports filed
by contractors under VEVRAA will be more meaningful by providing aggregate data on the total
October 2014
Panoptic Enterprises’ FEDERAL CONTRACTS PERSPECTIVE
12
number of protected veterans employed and newly hired by federal contractors, the total number
of employees in the workforce, and the total number of new hires.” (EDITOR’S NOTE: The
VETS-4212 Report form is not included in the rule or 41 CFR part 61-300 because it will be
easier to make changes to the annual report outside of the Code of Federal Regulations. If the
VETS-4212 Report form had be included as part of 41 CFR part 61-300, changes to it would be
subject to required notice and comment rulemaking, thus delaying those changes.)
ANNE RUNG CONFIRMED AS OFPP ADMINISTRATOR
The Senate has confirmed Anne Rung as the next administrator of the Office of Federal
Procurement Policy (OFPP). She replaces Joseph Jordan, who resigned as OFPP administrator in
January 2014.
Ms. Rung has been an advisor to OMB since May 2014. Prior to that, she was Associate
Administrator of Governmentwide Policy and Chief Acquisition Officer for the General Services
Administration (GSA), and senior director of administration for the Department of Commerce.
Visit http://www.FedGovContracts.com
for more information on the rapidly-changing world
of federal contracting!
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Panoptic Enterprises’ FEDERAL CONTRACTS PERSPECTIVE
October 2014
426 pages, 2009, ISBN: 978-1-912481-26-5, $49.95
from Panoptic Enterprises (http://www.FedGovContracts.com) and
from Amazon.com
To see: Table of Contents, go to http://www.FedGovContracts.com/contents.pdf
Index, go to http://www.FedGovContracts.com/index.pdf
Sample Chapters: Chapter 11, Set-Asides and Preference Programs, go to
http://www.FedGovContracts.com/chap11.pdf
Chapter 13, Federal Supply Schedules, go to
http://www.FedGovContracts.com/chap13.pdf
October 2014
Panoptic Enterprises’ FEDERAL CONTRACTS PERSPECTIVE
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