Hot Topics
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Executive Compensation Caps
Department of Labor Initiatives
Safeguarding Information
Supply Chain Risk
Counterfeit Electronic Items
Fair and Reasonable Pricing for Schedule
Purchases
• Accelerated Payment for Small Business
Subcontractors
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Senior Executive Benchmark Extension
2012 NDAA
• Authority: Section 803, NDAA for FY 2012
– Expands application of compensation cap from the five most
highly compensated employees in management positions to all
contractor employees
– Applies to compensation costs incurred after 1/1/2012, under
DoD, NASA, and Coast Guard contracts entered into before, on,
or after the date of the enactment of this law
• FAR Case 2012-017 - Prospective implementation for
contracts awarded on or after 12/31/2011
– Interim rule published 6/26/2013
– Final rule published 5/30//2014
• FAR Case 2012-025 - Retroactive implementation for
contracts awarded prior to 12/31/2011
– Proposed rule published 6/26/2013
– Issues relating to retroactivity
– Final rule is in development
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Limitation on Allowable Government
Contractor Compensation Costs
(2014-012)
• Authority: Section 702, Bipartisan Budget Act (BBA) of
2013 (Pub. L. 113-67)
– BBA establishes a compensation cap for contractors
• Outcome:
– Interim rule sets the initial limitation on allowable
contractor and subcontractor employee compensation
costs at $487K/year
– Applies to contracts awarded on or after 6/24/2014
• Stage of Rulemaking:
– Interim rule published 6/24/2014
– Next step: analysis of public comments and
development of a final rule
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Department of Labor Initiatives
• Executive Order 13658, Establishing a
Minimum Wage for Contractors, dated
2/12/2014
– Minimum wage of $10.10 effective as of 1/1/2015
for certain Federal Contractor Employees
• DoD Sponsor: DPAP/CPIC
• Implementation:
– OMB: Memo of 6/12/14 requires agencies to take
all reasonable and legally permissible steps for
immediate implementation
– DOL: Proposed rule published 6/17/2014
– FAR Council: FAR rule to follow DOL’s final rule
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Department of Labor Initiatives
Cont’d
• Executive Order 13665, Non-Retaliation for Disclosure of
Compensation Information, dated 4/8/2014
– Amends EO 11246, Equal Employment Opportunity, dated
1/24/1965
– Provides employees protection from discharge or other
discrimination
– Next step: DOL rule due 160 days from EO issue date
• Draft Executive Order - improving compliance with Federal
contract labor laws
– “Levels the playing field” regarding adherence to labor laws
– Offerors to report violations within the past three years
– Information may be used:
• To negotiate agreements as a condition of award to address
remedial measures and steps to avoid future violations –
flowdown to lower-tier subcontracts
• In making responsibility determinations
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Safeguarding Unclassified Controlled
Technical Information (2011-D039)
• Objective: Provide standards and structures for
safeguarding unclassified controlled technical
information and reporting the compromise of
unclassified controlled technical information
• DoD Sponsors: CIO; OUSD(SE); DPAP/PDI
• Outcome: Implement security measures to safeguard
unclassified DoD information within contractor
information systems from unauthorized access and
disclosure
• Stage of Rulemaking
– Final rule published 11/18/2013
– Next step: Implement section 941 of the FY13 NDAA
& NARA CUI rule in development
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Basic Safeguarding of Contractor
Information Systems (2011-020)
• Authorities:
– Federal Information Security Management Act
(FISMA) of 2002
– 44 USC 3544, Federal Agency Responsibilities
(paragraph (a)(1) (ii) - information systems used by an
agency or contractor)
• DoD Sponsor: DPAP/PDI
• Outcome: FAR subpart and clause to address basic
safeguarding of information systems that contain or
process information provided by or generated for the
Government (other than public information)
• Status of Rulemaking:
– Next step: Ad Hoc Team adjudicating proposed rule
comments and developing a final FAR rule
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Requirements Relating to
Supply Chain Risk (2012-D050)
• Authority: Section 806, NDAA of FY 2011
• DoD Sponsor: CIO
• Objective: Enable agencies to exclude sources that
are identified as having a supply chain risk on
information technology purchases relating to national
security systems
• Stage of Rulemaking
– Interim rule published 11/18/2013
– Next step: analyze public comments and draft a
final rule
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Detection and Avoidance of Counterfeit
Electronic Parts (2012-D055)
• Authorities:
– Section 818, NDAA for FY 2012
– Section 833, NDAA for FY 2013
• DoD Sponsors: DPAP/PDI, L&MR
• Objective: Reduce the incidence of counterfeit
electronic parts in DoD systems
• Stage of Rulemaking
– Final rule published 5/6/2014
– Follow-on DFARS Case 2014-D005 opened to consider
further implementation
• Public Meeting: 6/28/2013
– Further Implementation public meetings:
3/27/2014, and 6/16/2014
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Recent Publications
• Executive Compensation Caps
• Safeguarding Unclassified Controlled Technical
Information
• Detection and Avoidance of Counterfeit Electronic Parts
• Expanded Reporting of Nonconforming Items (GIDEP)
(proposed)
• Contractor Comment Period Past Performance
Evaluations
• Commercial and Government Entity Code
• Contracting with Women-Owned Small Businesses
• Contractor Personnel Supporting U.S. Armed Forces
• EPEAT Items
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Expanded Reporting of Nonconforming
Items (2013-002)
• Authorities:
– Section 818, NDAA for FY 2012
– OFPP Letter 91-3, “Reporting Nonconforming Products”
• DoD Sponsor: DPAP/PDI
• Outcome: FAR clause to require contractors to
use GIDEP to screen for and report items that are
counterfeit, suspect counterfeit, or contain a
major or critical nonconformance
• Status of Rulemaking:
– Proposed rule: published 6/10/2014
– Public meeting: 6/16/2014
– Next step: analysis of public comments and
development of a final rule
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Contractor Comment Period
Past Performance Evaluations (2012-028)
• Authorities:
– Section 853, NDAA for FY 2013
– Section 806, NDAA for FY 2012
• DoD Sponsor: DPAP/CPIC; DPAP/PDI
• Outcome: Revised past performance evaluation language
– Contractor comment period is 14 calendar days from date of
notification of past performance evaluation in CPARS
– Evaluations and contractor comments are automatically
transmitted to PPIRS no later than 14 days after contractor
notification
– Government must update PPIRS with comments provided after
14 days and any subsequent agency review of comments
• Stage of Rulemaking:
– Final rule - published 5/30/2014
Commercial and Government Entity Code
(2012-024)
• Objective: Require the use of Commercial and
Government Entity (CAGE) codes, including North
Atlantic Treaty Organization CAGE codes for foreign
entities, for awards valued at greater than the micropurchase threshold
• DoD Sponsors: D, DPAP; DPAP/PDI
• Outcome:
– Require offerors, if owned by another entity, to
identify that entity
– Increase transparency and accuracy of Federal
procurement data
• Stage of Rulemaking
– Final rule published 5/30/2014; effective 11/1/2014
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Contracting with Women-Owned Small
Businesses (2013-010)
• Authority: Section 1697, NDAA for FY 2013
• DoD Sponsor: SBP; DPAP/CPIC
• Purpose: Leveled playing field among the small business socioeconomic programs - eliminated mandatory dollar limit caps for
set-asides under the Women-Owned Small Business Program:
‒ $6.5 million for manufacturing requirements
‒ $4 million for all other requirements
• Outcome: Contracting officers may set-aside requirements
under the Women-Owned Small Business program at any dollar
threshold above the micro-purchase threshold, provided all
other eligibility criteria are met
• Implements: SBA final rule published 5/7/2013
• Stage of Rulemaking:
‒ Final rule published and effective 06/24/2014
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Contractor Personnel Supporting U.S.
Armed Forces Deployed Outside the U.S.
(2013-D015)
• Authorities:
– DoDI 3020.41, Operational Contract Support
• DoD Sponsors: DPAP/CC, PS
• Objective: Implement DoDI 3020.41. Apply clause to
non-CAAF as well as CAAF (Contractors Authorized to
Accompany the Force)
• Stage of Rulemaking
– Final rule published 5/28/2014
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EPEAT Items (2013-016)
• Authorities: Executive Orders 13423 and 13514
• Sponsors: DPAP/CPIC and GSA; Proponent: EPA
• Objectives:
– Revise the EPEAT® standard for personal computer products
– Add new EPEAT® standards for imaging equipment and
televisions
• Outcome: Expand the use of EPEAT® Standards to fully
implement EOs
• Initial Implementation:
– Final rule 2006-030, effective 2/17/2009, initially implemented
E.O. 13423 and established EPEAT® requirements for personal
computer products
• Stage of Rulemaking:
– Interim FAR rule published and effective 6/24/2014
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Other Rules of Interest
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Ending Trafficking in Persons
OCI/Unequal Access to Information
Service Contract Reporting (eCMRA)
Uniform Use of Line Items
Uniform Procurement Identification
Enhancements to Past Performance Evaluation
Systems
Business Systems Compliance
Contracts Under the SBA 8(a) Program
Small Business Subcontracting Improvements
Set-asides Under Multiple Award IDIQ Contracts
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Ending Trafficking in Persons
(2013-001)
• Authorities:
– Executive Order 13627
– Title XVII of the NDAA for FY 2013
• DoD Sponsors: DPAP/CPIC; USD(P&R) CTIP
Program Manager
• Objective: Strengthen protections against
trafficking in persons
• Stage of Rulemaking
– Proposed rule - published 9/26/2013
– Associated DFARS Final Rule: 2013-D007, Further
Implementation of Trafficking in Persons Policy
– Next steps - publish final FAR rule and DFARS rule
• Public Meeting - 3/2/2013
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Organizational Conflicts of Interest and
Unequal Access to Information (2011-001)
• Authority: Section 841, NDAA for FY 2009
• DoD Sponsor: DPAP/CPIC
• Objectives:
– Provide an approach that focuses on risk of harm to the
business interests of the Government or to the integrity
of the competitive process
– Differentiate unequal access to information from
organizational conflicts of interest
• Stage of Rulemaking
– Proposed rule published 4/26/2011
– Also considered public comments of DFARS 2009-D015
proposed rule (based on incorporation of GAO case
law), published 4/22/2010
– Next steps: publish final FAR rule
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Service Contract Reporting
(2012-D051)
• Authority: Section 807, NDAA for FY 2008, which
amended 10 USC 2330a
• DoD Sponsor: DPAP/CPIC
• Outcome: Require contractors to annually report
service contract data, to include direct labor hours and
cost data, into an online DoD database
• Purpose: Enable SECDEF to report to Congress an
annual inventory of service contracts above the SAT
– The data also supports DoD’s total force management and
strategic workforce planning decisions (10 USC 129a)
• Stage of Rulemaking
– Proposed rule published 6/5/2014
– Next steps: analyze comments; draft final rule
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Uniform Use of Line Items
(2013-014)
• Authority: Federal Funding Accountability and
Transparency Act of 2006
• DoD Sponsors: D, DPAP; DPAP/PDI
• Objective: Establish a uniform contract line item
numbering structure in Federal procurement
– Current funding traceablity is limited to contract-level
• Outcome:
Improve the accuracy, traceability and usability
of procurement data
– Will support tracing of funding from obligation through
expenditure on a Federal-wide basis
• Stage of Rulemaking
– Proposed rule is in development
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Uniform Procurement Identification
(2012-023)
• Objective: Implement a uniform Procurement
Instrument Identification (PIID) number system, which
will require the use of Activity Address Codes (AACs)
as the unique identifier for contracting offices and
other offices
• DoD Sponsors: D, DPAP; DPAP/PDI
• Outcome: Provide for standardization across the
Federal Government
– Will facilitate tracking of Federal spending data
• Stage of Rulemaking
– Proposed rule published 6/6/2013
– Next step: publish final FAR rule
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Enhancements to Past Performance
Evaluation Systems (2014-010)
• Objective: Update FAR subpart 42.15, Contractor
Performance Information
• Sponsors: OFPP; DPAP/CPIC
• Outcome:
– Incorporate two stand-alone past-performance reporting
modules into the CPARS database
• Architect-Engineer Contract Administration Support System (ACASS)
• Construction Contractor Appraisal Support System (CCASS)
– Provide reference to the CPARS Guide at www.CPARS.gov
– Update the list of evaluation factors to consider when assessing
performance to better align with CPARS
• Stage of Rulemaking:
– Proposed rule is in development
Business Systems Compliance
(2012-D042)
• Objective: Contractor accountability for adequate
contractor business systems
• DoD Sponsor: DCAA
• Outcome:
– Entrust contractors with the capability to demonstrate
compliance with DFARS system criteria for the following
contractors’ business systems, based on self-evaluations
and triennial audits by independent CPAs:
• Accounting systems
• Estimating systems, and
• Material management and accounting systems
• Stage of Rulemaking
– Proposed rule in development
– Public meeting to follow publication of the proposed rule
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Contracts Under the Small Business
Administration 8(a) Program (2012-022)
• Authority: SBA’s final rule amending the 8(a) program
• DoD Sponsors: SBP; DPAP/CPIC
• Purpose: Clarifies 8(a) procurement processes as follows:
– Separate offering and acceptance not required for orders under
Multiple Award IDIQ contracts that were set-aside for 8(a)
– Agencies may take SB/SDB credit for awards to “postgraduate” 8(a) concerns, as long as firm does not represent
itself as other than small
– Obtain release of a requirement currently under the 8(a)
program
– A firm recently graduated from the 8(a) program may still be
awarded a competitive 8(a) contract as long as it was eligible
for the award on the initial date specified for receipt of offers
• Stage of Rulemaking
‒ Final rule is in development
‒ Proposed rule - published 2/3/2014
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Small Business Subcontracting
Improvements (2014-003)
• Authority: Sections 1321 & 1322, Small Business Jobs Act
of 2010
• DoD Sponsors: SBP; DPAP/CPIC
• Objective: Provide additional safeguards for small business
subcontractors:
‒ Prime contractor must notify the contracting officer in writing if
it does not use the SB subcontractors set forth in its offer
‒ Contracting officer is responsible to monitor and evaluate the
prime’s adherence to its subcontracting plan
‒ Clarifies which subcontracts must be included in the prime’s
subcontracting data reporting
‒ Funding agencies will be allowed to receive subcontracting credit
for FSS and GWAC orders
• Implements: SBA final rule
• Stage of Rulemaking
– Proposed rule is in development
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Set-asides Under Multiple Award IDIQ
Contracts (2014-002)
• Authority: Section 1331, Small Business Jobs Act of 2010
DoD Sponsor: SBP; DPAP/CPIC
• Objective: Provide uniform policy for conducting SB setasides under multiple award (MA), IDIQ solicitations/
contracts - provides 3 new MA/IDIQ authorities to:
‒ Set-aside part or parts
‒ Set-aside orders for SB awardees
‒ Reserve one or more contract awards under full and open
solicitations
• Implements: SBA final rule published 10/02/2013
• Stage of Rulemaking:
‒ Proposed rule is in development
‒ Prior partial implementation: interim rule 2011-024 published
11/02/2011
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