FAC 2005-04 Issued

FAC 2005-04 issued

06-08-05: FAC 2005-04 issued with one interim and seven final rules. The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have published a summary of the Federal Acquisition Regulation (FAR) rules pertaining to Federal Acquisition Circular (FAC) 2005-04. Seven final rules and one interim rule revise the FAR as follows:

Effective today, an interim rule converts to a final rule without change, implementing section 1428 of the Services Acquisition Reform Act of 2003, which disallows language in a solicitation that would prevent an offeror from allowing its employees to telecommute. When telecommuting is allowed, a proposal that includes it cannot be evaluated unfavorably except when it would adversely affect agency requirements.
Effective today, an interim rule converts to a final rule without change, implementing Executive Order 13201, which requires government contractors and subcontractors to notify their employees that under federal law they cannot be required to join a union or maintain membership in a union to retain their jobs.
Effective today, an interim rule converts to a final rule without change, providing government-wide authority to treat performance-based contracts or task orders for services as commercial items, if certain conditions are met. Agencies are required to report on the use of this authority.
Effective July 8, 2005, some of the exceptions to the small disadvantaged business and Historically Underutilized Business Zone (HUBZone) preference programs are deleted. Instead, a price evaluation adjustment will be applied to offers of eligible products in acquisitions subject to the Trade Agreements Act.
Effective July 8, 2005, definitions pertaining to labor standards for construction contracts are revised and clarified. The definitions of "construction" and "site of the work" in the Department of Labor (DoL) regulations are changed.
Effective July 8, 2005, language is added to part 31 of the FAR to define a disposition date of the gain or loss recognized by the sale/leaseback arrangements of a contractor's depreciable property or other capital assets as the date the contractor begins to incur an obligation for lease or rental costs. Also language is changed to identify that an adjustment to the lease/rental cost limitations is necessary.
Effective July 8, 2005, the cost principles for deferred compensation other than pensions and postretirement benefits other than pensions are revised to improve clarity and structure and to eliminate unnecessary and duplicative language.
One interim rule is proposed that would exclude noncommercial modifications of a commercial item that are expected to cost more than $500,000 or 5 percent of the total price of the contract, whichever is greater, from the exception to the requirement to submit cost or pricing data. The new language applies to acquisitions funded by or awarded on behalf of DoD, NASA, or the Coast Guard only. Comments are due by August 8, 2005.

April Happenings

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You are really not suppose to do this [from Department Of Justice Press Release]

Wilhelm DerMinassian, the former Associate Director in charge of the DC DOT’s Traffic Services Administration, and Dunn Engineering Associates P.C. were charged separately in U.S. District Court in Washington, D.C., in connection with the seeking, paying, and receiving of a gratuity in exchange for future favorable treatment of the company by DerMinassian in his administration and oversight of the five-year $17.5 million federally-funded Integrated Traffic Management System (ITMS) contract.

Additionally, DerMinassian was charged with one count of wire fraud in connection with a scheme to defraud the DC DOT and the District of Columbia and its citizens of their right to DerMinassian’s honest services as a public official. During the conspiracy, which took place from October 2001 through October 2002, DerMinassian solicited and received approximately $20,000 in cash and other items of value from an employee and an officer of another company in connection with his administration and oversight of the $12.9 million federally-funded Operational Support contract. Influenced by the receipt of cash and other items of value, DerMinassian recommended and approved three change orders, worth over $5.5 million, to the contract.

GAO revises its bid protest rules:

This document amends Government Accountability Office (GAO)
Bid Protest Regulations by revising the definition of an interested
party to permit a protest to be filed by an agency tender official ATO) in certain public-private competitions under Office of Management and Budget (OMB) Circular A-76. This document also revises the definition of an intervenor to permit an ATO and an employee representative to intervene in certain protests involving public-private competitions under OMB Circular A-76.

An opinion from GAO that just because you used OPA money to buy the equipment doesn't mean you can use OPA money for the logistical support.

DECISION

The U.S. Medical Research and Materiel Command (Command) has requested our decision concerning the availability of the Other Procurement, Army (Procurement) appropriation to hire contractors to provide logistical support for medical equipment items acquired using the Procurement appropriation. Memorandum from Colonel Denise M. McCollum, Deputy, Resource Management, U. S. Army Medical Research and Materiel Command, to Anthony H. Gamboa, General Counsel, GAO, May 14, 2004. (McCollum Memorandum). As explained below, the Command should use the Army Operation and Maintenance (O&M) appropriation, and not the procurement appropriation, to fund the logistical support of the acquisitions at issue here.