CHARLES E. RUMBAUGH
Arbitrator/Mediator
(310) 373-1981 / FAX (310) 373-4182
(888) ADROffice (toll free)
e-mail: ADROffice@Rumbaugh.net
P.O. Box 2636
Rolling Hills, California 90274
P.O. Box 2095
Burlingame, California 94011
April
17, 2003 Regulatory
Update
Recent Regulatory matters that may be of interest
since the last Update include---
·
On
April 4, 2003, Director of Defense Procurement and Acquisition
Policy, Deidre Lee, issued a memorandum on “Acquisition
Flexibility for Urgent Needs.”
This memorandum emphasizes the flexibility inherent in the
FAR/DFARS “to support urgent situations and national security
requirements.” And,
when one is “specifically precluded from taking actions …deemed
necessary,” she expects contracting officers to consider the use
of appropriate deviations.
A two-page document, “Summary Matrix for Temporary
Emergency Procurements and the Homeland Security Authorities,” is
attached thereto.
·
The
April 3, 2003, Federal Register noticed a proposed amendment
to the FAR that would “require contractor registration in a
Central Contractor Registration (CCR) database prior to the award of
a contract, basic agreement, basic ordering agreement, blanket
purchase agreement, and the modification of all existing contracts,
basic agreements, basic ordering agreements, blanket purchase
agreements, or orders by September 30, 2003.”
While DoD and some other agencies currently have contractors
register in the CCR database, this change will provide an uniform
government-wide registration requirement. Comments
are due on/before June 2nd.
·
On
March 31, 2003, Under Secretary of Defense E.C. Aldridge, Jr. issued
a memorandum on “Priority Conflicts for Industrial Resources”
wherein he noted the recent unauthorized use in the DX rating was
“creating unnecessary confusion among DoD Component and contractor
personnel, and has the potential to cause delays in delivering
critical defense products to our warfighters.”
The memorandum noted that the Secretary of Defense must
approve any such rating and the last “new” program which
received a DX rating was in 1995.
Attached to the memorandum was a listing of those programs
currently having an “authorized” DX rating.
COMMENT: The
Under Secretary of Defense will retire on May 23, 2003.
·
On
March 25, 2003, the Air Force Office of The Assistant Secretary
(Acquisition) issued a memorandum on “Domestic Source Restrictions
Compliance” calling to the attention of the reader the “distinct
requirements of the Berry Amendment and the Buy American Act.”
Included in that memorandum are “Suggested Actions to
Minimize Berry Amendment Violations” and included guidance in the
areas of contract
clauses, pre-proposal conference, preaward surveys, negotiation
“discussions,” and Federal Supply Schedules.
And, the Air
Force has posted some excellent powerpoint/briefing charts, entitled
“Berry Amendment Tutorial,” (March 26, 2003) by Major Frank Pane
at <http://www.safaq.hq.af.mil/contracting/toolkit/part25/powerpoint/berry-amendment-tutorial.ppt>.
(Review the note pages).
The Berry Amendment is part of US Code §2333a
and addresses the domestic source requirements for specified
items and that legislation is tied to appropriations and,
thus, the Anti-Deficiency Act prohibitions.
Similarly, a “tutorial” (March 30, 2003) on the Buy
American Act is noted at <http://www.safaq.hq.af.mil/contracting/toolkit/part25/powerpoint/baa-
training.ppt>.
COMMENT: A must review! There
are some “covered items” requiring 100 percent domestic content!
·
The
March 31,2003, Federal Register noticed a final rule amending
the DFARS in order to “simplify and clarify policy pertaining to
the acquisition of supplies and services from foreign sources.”
The rule revises DFARS Part 225, Foreign Acquisition, and…
Ø
“Provides
streamlined procedures for evaluating foreign offers when acquiring
supplies, and adds procedures for evaluating foreign offers in
acquisitions in which price is not the determining factor.
Ø
Changes
the definition of ‘qualifying country end product’ to permit the
qualifying country manufacturing the product to use components from
any other qualifying country.
Ø
Lowers
the required approval levels for determinations of nonavailability
under the Buy American Act.
Ø
Lowers
the required approval levels for individual public interest
determinations for acquisition of end products from qualifying
countries.
Ø
Provides
that the Government will evaluate duty only if it is to be paid.
Except for qualifying country supplies or eligible end products, the
contractor will request duty-free entry only on foreign supplies for
which the contractor estimates that duty will exceed $200 per
shipment into the customs territory of the United States. One duty-
free entry clause replaces five existing clauses.
Ø
Eliminates
the requirement for a contractor to represent that it will comply
with all laws, decrees, labor standards, and regulations of the
foreign country in which the contract will be performed.
Ø
Deletes
obsolete text and clauses relating to outdated appropriations act
restrictions, resulting in the elimination of four clauses.”
An
overview of the public responses to the prior proposed rule is also
published. The rule is
effective April 30, 2003.
·
Air
Force Acquisition Circular (AFAC), 2003-0402, was issued 2 April
2003, with 19 changes ranging from clerical revisions to
revised/deleted clauses.
·
On
March 25, 2003, the President issued Executive Order 13292,
“Further Amendment to Executive Order 12958, as Amended,
Classified National Security Information” covering the “uniform
system for classifying, safeguarding, and declassifying national
security information, including information relating to defense
against transnational terrorism….”
·
On
April 10, 2003, Under Secretary of Defense E.C. Aldridge, Jr. issued
a memorandum on “Military Contingency Contracting Force (CCF)
Qualifications” wherein he enumerates the minimum educational
qualifications for those entering the CCF after September 30, 2000.
·
DoD
transformation legislative package, (“The Defense Transformation
for the 21st Century”) is available at <http://www.defenselink.mil/dodgc/lrs/docs/
Transformation.pdf>. See
prior Regulatory Updates on various aspects of this DoD
Transformation initiative.
·
And,
the recent ASBCA decision in Campbell Plastics Engineering &
Mfg., Inc, No. 53319, March 18, 2003, reminds everyone that
those patent clauses “mean what they say.”
The contractor forfeited title to a patent “for failure to
disclose the invention as required by the contract.”
COMMENT: Harsh result but “when in doubt, read/administer/manage the
contract” and—use the correct forms for any reporting
requirements. Talk to
counsel.
Future Speaking Topics
Include—
·
May
2, 2003, “Advanced Negotiation Workshop,” California State
University. Information
can be obtained for this May 2003 “Negotiation Workshop” by
visiting: <http://www.csun.edu/exl/schedule/spring/springdept.htm>
·
May
19, 2003, “DoD Regulatory/Contractual Developments Impacting
Subcontracting”—ISM International Conference, Nashville.
·
May
22, 2003, “How to Negotiate With Sole Source Suppliers,” NCMA
Buffalo Chapter.
·
May
28, 2003, “Tools to Use In Negotiating Sole Source
Procurements,” NCMA Finger Lakes Chapter, Rochester, New York.
·
May
29, 2003, “Industry Perspective of Government ADR Programs,”
NCMA Leatherstocking Chapter, Rome, New York.
Charles E. Rumbaugh
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