United States: What’s New Out There? Highlights From The March 2014 Federal Register

A.  EPA Adopts Final Rule: EPA-Specific Past Performance Regulations (79 Fed. Reg. 15921-24) (3/21/2014)

The EPA is deleting EPA-specific past performance regulations in the EPA Acquisition Regulation (EPAAR) because they are no longer necessary to meet the agency's needs in light of recent updates to the FAR.  See 79 Fed. Reg. 46783 (Aug. 1, 2013).  The new FAR requirements mirror current EPA policies for collecting and maintaining contractor past performance, so there is no longer a need for an EPA-specific supplement.  FAR subpart 42.15, combined with the CPARS guidance and reference material included at the CPARS web site (www.cpars.gov) provides sufficient policy, procedures, and guidance to satisfy the EPA's needs.  Thus, the EPA deleted EPAAR sections 1542.15, 1552.242-71, and 1553.209.

B.  GSA Proposes an Environmentally Sensitive Policy for the Disposal of Certain Electronic Assets (FMR Case 2012-102-4; Docket No. 2012-0014) (79 Fed. Reg. 12681-85) (3/6/2014)

On October 5, 2009, President Obama signed Executive Order (E.O.) 13514, which was intended to promote energy security and protection of the environment.  To address the President's goals, an Interagency Task Force on Electronic Stewardship was formed.  The Task Force released a report in 2011 that recommended executive agencies, among other things, adopt policies and procedures for the reusing, disposal, and handling of Federal Electronic Assets (FEA).  In particular, the Task Force recommended amending certain sections of the Federal Management Regulation (FMR) to change the Regulation's personal property policy regarding the disposal and reporting of FEA.

GSA requests comments regarding (1) the suitability and feasibility of bulk sale of functional FEA to certified recyclers only through public auction programs; (2) restricting disposal of FEA in landfills or through incineration; (3) what electronics recycling standards are in use or being developed; and (4) criteria regarding the technical content and other aspects of the electronics recycling standards that recyclers conform to in order to be considered "certified recyclers" under the proposed rule.  Comments are due on May 5, 2014.

C.  DoD Waives Sourcing Restrictions of 10 U.S.C. § 2534 for Certain Defense Items Produced in the United Kingdom (DARS-2014-0015) (79 Fed. Reg. 11770-71) (3/3/2014)

10 U.S.C. § 2534 requires DoD to source the purchase of certain defense items from contractors in the United States.  The statute also permits DoD to waive the statute's preference for U.S. sources under certain conditions.  DoD is waiving the statute for certain defense items produced in the United Kingdom.  The defense items affected by this waiver include air circuit breakers, gyrocompasses, electronic navigation chart systems, steering controls, pumps, propulsion and machinery control systems, and totally enclosed lifeboats.  The waiver is consistent with previous waivers and will last until March 17, 2015.

D.  DoD Amends the Rules of the Armed Services Board of Contract Appeals (No DFARS Case) (79 Fed. Reg. 11374-81) (2/28/2014)

On February 28, 2014, DoD proposed amending the rules of the Armed Services Board of Contract Appeals (ASBCA).  The amendments revise and reorder the rules for clarity and consistency, remove contradictions, resolve ambiguities, and provide updated contact information to allow some electronic communication by litigants appearing before the ASBCA.

A frequent criticism of the ASBCA rules is that they have failed to permit the broader use of e-mail and electronic filing.  The amended rules, although still leaving further room for improvement, allow increased use of e-mail and electronic services for transmitting documents and other filings.  For example, amended Rule 2 now permits the filing of any document via e-mail, except the Rule 4 file, files subject to a protective order or classified designation, or documents expected to be received in camera or used as exhibits in a hearing.  Similarly, amended Rule 3 now permits service upon other parties using any means agreed to by the parties.  These changes will enable litigants to agree to electronic service early in a contract dispute, obviating the need for physical productions of large caches of documents.  Comments on the proposed changes are due on April 29, 2014.

E.  DoD Adopts Final Rule Eliminating Enhanced Authority to Acquire Products and Services from Iraq (DFARS Case 2013-D009) (79 Fed. Reg. 11342-43) (2/28/2014)

DoD has adopted a final rule requiring DoD to acquire from sources within the United States when purchasing uniforms and other textiles for the Afghan National Army.  The Final Rule does permit DoD to purchase other goods from sources within Afghanistan, so long as the purchase is made pursuant to the "enhanced authority" provided for originally in section 886 of the 2008 NDAA.  The Final Rule eliminates the use of such authority for purchases from Iraqi sources, since such authority has been removed by section 842 of the 2013 NDAA.

F.  DoD Adopts Interim Rule Expressly Permitting Disclosure of Non-Public Information to Litigation Support Contractors (DFARS Case 2012-D029) (79 Fed. Reg. 11337-41) (2/28/2014)

DoD adopted an interim rule expressly authorizing DoD to provide its litigation support contractors with access to certain types of non-public information, provided that the litigation support contractors are required to protect that information from any unauthorized disclosure, and are prohibited from using that information for any purpose other than providing litigation support services to DoD.  Although not required by statute, the rule requires DoD to ensure, to the maximum extent practicable, that offerors and contractors submitting information to DoD be notified when such information might be disclosed to DoD's litigation support contractors under certain conditions.  Comments on the interim rule are due on April 29, 2014.

G.  DoD Adopts Final Rule Providing Enhanced Contractor Employee Whistleblower Protection (DFARS Case 2013-D010) (79 Fed. Reg. 11336-37) (2/28/2014)

DoD has adopted as final, subject to minor changes, an interim rule providing enhanced protection to employees of contractors who report gross mismanagement or waste of federal funds, abuse of authority relating to a federal contract or grant, or a violation of law, rule, or regulation related to a federal contract or grant.  Such employees are protected so long as they disclose the covered conduct to any management official or other employee of the contractor who can investigate or address the misconduct.  If the company retaliates against the employee, then the employee may report the retaliation to the appropriate Inspector General, who will then have 180 days to investigate and prepare a report of its findings, which will be furnished to the contractor, the agency head, and the employee-complainant.

The contractor may be required to compensate the complainant for compensatory damages, attorney fees, and other reasonable costs and expenses incurred in pursuing the complaint.  Under the rule, the legal fees and costs associated with a whistleblower's successful prosecution of a misconduct complaint are unallowable.  However, if the whistleblower's complaint is resolved by agreement with the agency, contractor and subcontractor legal fees and costs that might otherwise be unallowable may be allowed to the extent provided for in the agreement.

H.  NASA Final Rule Incorporates a Proposal Adequacy Checklist for Solicitations Requiring Certified Cost or Pricing Data (79 Fed. Reg. 10687-91) (2/26/2014)

NASA has adopted as final, without change, a proposed rule amending the NASA FAR Supplement to incorporate a proposal adequacy checklist as part of all proposal submissions whenever certified cost or pricing data is required.  The purpose of the rule is to create a single uniform tool that is applicable across NASA to promote consistency with FAR Table 15-2.  The rule will ensure that offerors submit thorough, accurate, and complete proposals, but may, as a consequence, further increase the costs associated with providing proposals with certified cost or pricing data.

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