The Civilian Agency
Acquisition and Defense Acquisition
Regulations Councils have issued Federal
Acquisition Circular 2005-60,
which contains an interim rule and
five final rules amending the
Federal Acquisition Regulation. In
order of appearance, the rules are:
Item I—Reporting Executive
Compensation and First-Tier
Subcontract Awards (FAR Case
2008-039); Item II—Payments Under
Time-and-Materials and Labor-Hour
Contracts (FAR Case 2011-003); Item
III—Extension of Sunset Dates for
Protests of Task and Delivery Orders
(FAR Case 2012-007, Interim); Item
IV—DARPA-New Mexico Tax Agreement
(FAR Case 2012-019); and Item
V—Clarification of Standards for
Computer Generation of Forms (FAR
Case 2011-022). Item VI makes
technical amendments. This FAC also
contains a Small Entity Compliance
Guide. A full listing of the
regulations impacted by the rules,
along with the effective date for
each rule, appears in the FAC
regulation table below. For the text
of FAC
2005-60, see ¶70,002.150.
Award
Website
In FAR Case 2008-039,
the interim rule issued in FAC
2005-44 has been finalized with
changes. The interim rule amended
the FAR by implementing Section 2 of
the Federal Funding Accountability
and Transparency Act of 2006 (PL
109-282, 31
USC 6101), as amended by Section
6202 of the Government Funding
Transparency Act of 2008 (PL
110-252), which requires the
Office of Management and Budget to
establish a free public website
containing full disclosure of all
federal contract award information.
The rule revised FAR
Subpart 4.14 and the contract
clause at FAR
52.204-10 to require contractors
to report executive compensation and
first-tier subcontractor awards on
contracts expected to be $25,000 or
more. The award data was made
available to the public at http://www.usaspending.gov.
The reporting requirements were
phased-in according to the schedule
in FAR
52.204-10 (e). The interim rule
made corresponding technical changes
to FAR
12.503, FAR
42.1501, FAR
52.212-5, and FAR
52.213-4. In response to
comments, the FAR Councils made a
number of changes to the final
version of rule:
-
FAR
2.101 —Clarifies that
prime contractors must enter
Transparency Act data when
registering in the Central
Contractor Registration
database.
-
FAR
4.1401 —Revises the rule
for consistency with the statute
that exempts "classified
information," not "classified
contracts." The rule
deletes the exception for "individuals,"
which is not used in the statute
for contracts. Also, the
paragraph regarding the phase-in
schedule was deleted since all
phase-in dates have passed, and
this final rule was issued after
that period.
-
FAR
4.1402 (b)—Clarifies the
responsibility for correcting
any pre-populated data in the
FSRS database at http://www.fsrs.gov.
-
FAR
4.1403 —Removes the
exception for inserting the
clause in classified
solicitations and contracts, or
solicitations or contracts with
individuals.
-
FAR
52.204-7 —Revises the CCR
clause to conform to the change
at FAR
2.101.
-
FAR
52.204-10 —Revises the
definition of "first-tier
subcontract" to
allow contractors greater
flexibility to determine their
first-tier subcontractors; adds
a definition of "month
of award"; adds a
paragraph to remind contractors
that nothing in this clause
requires the disclosure of
classified information; moves
text previously at FAR
52.204-10 (c)(2) to FAR
52.204-10 (d)(1) to ensure
the prime contractor's reporting
requirements of its executive
compensation are discussed in
the clause before the reporting
requirements for the first-tier
subcontract; FAR
52.204-10 (d)(1) includes a
change to conform to the change
made at FAR
52.204-7 ; clarifies the 80
percent and $25 million language
now at FAR
52.204-10 (d)(1)(i) and
(d)(3)(i) by adding wording
derived from the statute; adds FAR
52.204-10 (e) to state that
the contractor must not split or
break down first-tier
subcontract awards to a value
less than $25,000 to avoid the
first-tier subcontract reporting
requirements; adds FAR
52.204-10 (f) to state that
the contractor is required to
report information on a
first-tier subcontract when the
subcontract is awarded; deletes
reference to a phase-in schedule
previously at FAR
52.204-10 (e); and adds a
paragraph (h) to clarify
responsibility for correcting
incorrect data.
T&M/L-H
Payments
The FAR Case 2011-003
final rule amends the FAR to make
necessary revisions to accommodate
the authorization to use
time-and-materials and labor-hour
contract payment requirements. The
proposed rule ( ¶70,006.256)
sought to harmonize the provisions
for invoicing and submission of the
final invoice between clauses FAR
52.216-7, Allowable Cost and
Payment, and FAR
52.232-7, Payments under
Time-and Materials and Labor-Hour
Contracts, when a time-and-materials
contract is being used.
Consequently, the final rule amends
the basic clause at FAR
52.232-7 to reflect the
provisions for invoicing and
submission of the completion voucher
at FAR
52.216-7. This final rule
deletes Alternate I along with its
prescription at FAR
32.111 (a)(7)(i). Alternate I of
FAR
52.232-7 provided for the
addition of paragraph (j) in
labor-hour contracts which deleted
the terms of the basic clause
governing the reimbursement of
furnished materials. The rule
deletes Alternate I, paragraph (j),
as superfluous because the terms of
the basic clause governing the
reimbursement of furnished materials
are in effect self-deleting. The
rule makes corresponding changes to
the prescription provision at FAR
16.307 and the clause at FAR
52.212-4.
Task/Delivery
Order Protests
The interim rule
associated with FAR Case 2012-007
amends FAR
16.505 to implement sections of
the Ike Skelton National Defense
Authorization Act for Fiscal Year
2011 (PL
111-383), and the National
Defense Authorization Act for Fiscal
Year 2012 (PL
112-81). These acts extended the
sunset date for protests against the
award of task or delivery orders
from May 27, 2011, to September 30,
2016. The FAR Councils issued an
interim rule with FAC
2005-53 (FAR Case 2011-015)
extending the sunset date for
protests of task and delivery orders
valued in excess of $10 million for
Title 10 agencies; namely DoD, NASA,
and the Coast Guard. The rule did
not extend the sunset date for Title
41 agencies. After the FAC
2005-53 interim rule was
published, Section 813 of the NDAA
for FY 2012 made comparable changes
to Title 41 to extend the sunset
date for protests against the award
of task and delivery orders to
September 30, 2016. To accomplish
the statutory changes for both Title
10 and Title 41, FAR Case 2011-015
is not being issued as a final rule
and is instead being renumbered and
incorporated into this new interim
rule. Comments on this interim rule
are due by September 24, 2012.
New
Mexico Tax Agreement
The final rule in FAR
Case 2012-019 adds the United States
Defense Advanced Research Projects
Agency to the list of agencies at FAR
29.401-4 that have entered into
separate tax agreements with the
State of New Mexico. The DARPA-NM
tax agreement eliminates the double
taxation of government
cost-reimbursement contracts when
DARPA contractors and their
subcontractors purchase tangible
personal property to be used in
performing services in whole or in
part in New Mexico, and for which
title to such property will pass to
the U.S. following delivery of the
property to the contractor and its
subcontractors by the vendor.
Computer
Generated Forms
The FAR Case 2011-022
final rule amends the FAR to remove
references to Federal Information
Processing Standard 161 and codify
requirements for standards already
in use. The Secretary of Commerce
withdrew the FIPS requirement
because it was obsolete and had not
been updated to adopt current
voluntary industry standards,
federal specifications, federal data
standards, or current good practices
for information security. The
withdrawal of this standard created
a gap in the FAR. This final rule
closes that gap by clarifying the
use of American National Standards
Institute X12 at FAR
53.105, Computer generation, as
the valid standard to use for
computer-generated forms. FAR
53.105 as amended, will continue
allowing agencies and the public to
generate standard and optional forms
on their computers. The proposed
rule appears at ¶70,006.262.
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