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FAR Cases in Federal Acquisition Circular 2005-55 that Impact GSA Schedules

Public Access to the Federal Awardee Performance and Integrity Information System (FAPIIS)
Effective January 3, 2012, Department of Defense, GSA, and NASA adopted an interim rule amending the Federal Acquisition Regulation (FAR) to implement a section of the Supplemental Appropriations Act, 2010. This section requires that the information in the Federal Awardee Performance and Integrity Information System (FAPIIS), excluding past performance reviews, shall be made publicly available. The interim rule notified contractors of this new statutory requirement for public access to FAPIIS.

With regard to possible litigation under the False Claims Act, as with any FAR contract provision or clause, it is the responsibility of the contractor to ensure that the information being certified is current, accurate, and complete. The Councils recognized the risk to contractors if the data is made public prior to offering the contractor a chance to review. The rule has been revised to provide contractors a 7-calendar-day review period.

Preventing Abuse on Interagency Contracts
Effective February 2, 2012, this rule was designed to ensure that the benefits of interagency acquisitions are consistently achieved. The FAR changes are applicable to all interagency acquisitions issued under the Economy Act (31 U.S.C. 1535) as well as other authorities, in recognition that an increasing number of interagency acquisitions are conducted using authorities other than the Economy Act. This rule strengthens FAR subpart 17.5, Interagency Acquisitions by:
•  Broadening the scope of coverage to address all interagency acquisitions that result in a contract action, but does not apply to Federal Supply Schedule (FSS) orders under $500,000;
•  Requiring agencies to support the decision to use an interagency acquisition with a determination that such action is the “best procurement approach.”
•  Directing that assisted acquisitions be accompanied by written agreements between the requesting agency and the servicing agency documenting the roles and responsibilities of the respective parties.

Time and Materials for Commercial Items 
Effective February 2, 2012, DoD, GSA, and NASA issued a final rule amending the Federal Acquisition Regulation (FAR) to implement Government Accountability Office (GAO) recommendations in an effort to ensure that time-and-materials and labor-hour contracts are used to acquire commercial services only when no other contract type is suitable; and instill discipline in the determination of contract type with a view toward managing the risk to the Government. These same safeguards are also required on the use of time-and-materials (T&M) and labor- hour (LH) orders for Blanket Purchase Agreements awarded under the Federal Supply Schedule Program.

The Federal Acquisition Streamlining Act does require the issuance of a determination and findings at the contract level, but note that a requirement for a determination and findings at the order level is not precluded by that statute. In situations where the basic contract allows for the issuance of individual orders using more than one contract type, the over- reliance on T&M and LH pricing has resulted in increased risk to the Government (see GAO Report 09–579, June 2009). The GAO has recommended this change to FAR subpart 8.4 explicitly to require the same safeguards for the acquisition of commercial services acquired on a T&M or LH basis as required by FAR 12.207 and FAR 16.601(d) (i.e., require a detailed determination and findings stating that no other contract type is suitable).

Further, Federal Supply Schedules generally are long-term contracts, and a determination and findings generated at the initiation of a schedule contract may no longer reflect current market conditions. The intent is to ensure that this contract type is used only when no other contract type is suitable and to instill discipline in the determination of contract type with a view toward managing the risk to the Government.

Brand Name Specifications
Effective February 2, 2012, DoD, GSA, and NASA adopted the interim rule amending the Federal Acquisition Regulation (FAR) to implement the Office of Management and Budget memoranda on brand-name specifications.

Prior to the interim rule, on April 11, 2005, OMB issued a memorandum on the use of brand-name specifications that was designed to reinforce the need to maintain vendor- and technology- neutral contract specifications and provide for maximum competition by limiting the use of brand-name specifications.

This final rule amends FAR subparts 6.3, 8.4, 13.1, 13.5, and 16.5 to clarify that when applicable, the documentation for brand-name items only apply to the portion of the acquisition that requires the brand-name item. FAR subparts 8.4 and 16.5 are amended to require screening of the brand-name justifications for contractor proprietary data, and FAR subpart 16.5 is amended to require contracting officers to post the justification for an order peculiar to one manufacturer under indefinite-delivery contracts. If an acquisition specifies a brand- name item, the justification or documentation shall be posted, as required, with the solicitation or request for quotation (RFQ).

 

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kevinanchi
<p>Prior to 2008, dating back to 1994, it was not permissible to protest a task order. The 1994 enactment of the Federal Acquisition Streamlining Act (&quot;FASA&quot;) provided that protests over task or delivery orders were barred unless the protest alleged that the order increased the scope, period, or maximum value of the underlying contract through which the order was issued. That changed with the passage of the Defense Authorization Act of 2008 (&quot;NDAA&quot;), which contained an amendment that expanded the jurisdiction of the GAO to include protests of task or delivery orders valued in excess of $10 million. 41 U.S.C., Section 253j(e)(2). The NDAA also contained a sunset provision, which stated that the &quot;subsection shall be in effect for three years.&quot; Section 253j(e)(3). The three year period expired on May 27, 2011. The question then arose as to whether the GAO could lawfully consider task and delivery order protests after May 27, 2011. That question was recently answered in the affirmative by the GAO.</p>
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