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
June
30, 2004 Regulatory Update
Recent
Regulatory matters that may be of interest since the last Update
include---
· On June 18, 2004, the Federal Register noticed an interim FAR rule “to implement sections 1431 and 1433
of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1431 enacts
Governmentwide authority to treat performance-based contracts or task orders for services as commercial
items if certain conditions are met, and requires agencies to report on performance-based contracts or task
orders awarded using this authority. Section 1433 amends the definition of commercial item to add specific
performance-based terminology and to conform to the language added by section 1431.” Specifically, this
interim rule (at FAR 12.102(g)(1)) provides that “the contracting officer also may use Part 12 for any acquisition
performance-based contracting for services that does not meet the definition of commercial item in FAR 2.101,
if the contract or task order--
(i) Is entered into on or before November 24, 2013;
(ii)
Has a value of $25 million or less;
(iii) Meets the definition of
performance-based contracting at FAR 2.101;
(iv) Includes a quality
assurance surveillance plan;
(v) Includes performance incentives where appropriate;
(vi) Specifies a firm-fixed
price for specific tasks to be performed or outcomes to
be achieved; and
(vii) Is awarded to an entity
that provides similar services to the general public
under terms and conditions similar to those in the
contract or task order.”
Comments are due on/before August 17, 2004.
· On June 8, 2004, the Federal Register noticed an interim DFARS rule “amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement Section 844 of the National Defense
Authorization Act for Fiscal Year 2004. Section 844 eliminates the requirement for a contractor to
furnish written assurance that technical data delivered to the Government is complete and accurate and
satisfies the requirements of the contract.” Comments are due on/before August 9, 2004.
·
On June 28, 2004, the Federal Register noticed
it semi-annual Regulatory Agenda which includes several “regulations-in-process” that are in the pipeline.
·
DoD has published the following DFARS changes under
the auspices of its “DFARS
Transformation initiative” with
comments due on/before 60 days from the date of notice of same:
ØDoD
proposed on June 25, 2004, “to revise text regarding
identification of contract awards under the Small Business
Competitiveness Demonstration Program.”
ØDoD proposed on June 25, 2004, "to update text pertaining to selection of firms for
architect-engineer contracts.”
ØDoD proposed on June 24, 2004, “to improve payment and billing instructions in DoD contracts… (by)
(i) Deletion of text at DFARS 204.201, 204.202, 204.7103-2, 204.7104-2, 204.7107, and 204.7108
addressing distribution of contracts and modifications; numbering of contract line items, subline
items, and accounting classification references; and inclusion of payment instructions in contracts.
Text on these subjects will be relocated to the new DFARS companion resource, Procedures,
Guidance, and Information (PGI)….
(ii) Clarification of the definition of ‘accounting classification reference number’ at DFARS 204.7101.
(iii) Amendment of DFARS 204.7103-1 to add text addressing contract type in the establishment
of contract line items.
(iv) Amendment of DFARS 204.7106 to clarify that contract modifications decreasing the amount
obligated shall not be issued unless sufficient unliquidated obligation exists or the purpose is to
recover monies owed to the government.
(v) Addition of a clause addressing contract line item information needed in contract financing and
interim payment requests.
(vi) Amendment of Material Inspection and Receiving Report instructions to address electronic
submissions.”
ØDoD
proposed on June 8, 2004, “to clarify requirements for reporting
of contract
performance outside the United States.”
ØDoD
proposed on June 8, 2004, “to update text pertaining to the
acquisition of commercial items.”
·
On June 28, 2004, the Postal Service noticed it has
issued “completely revised purchasing regulations, replacing the
former U.S. Postal Service Procurement Manual with a new Postal
Service Purchasing Manual. The Purchasing Manual focuses on using
the purchasing process to further the business and competitive
interests of the Postal Service.
·
On July 1, 2004, SBA is expected to withdraw its
proposed restructuring of its size standards—see April 2004
Regulatory Update on proposed rule being withdrawn.
·
DoD has posted slides (“Proceedings”) from its May
26-28 Procurement Conference, “Transformation of Defense
Procurement—People, Policy, Processes,” at http://www.dod-procurement.com/
Excellent presentations/slides (industry and
government) include the following
topics:
Ø
Acquisition Domain Strategic Vision
Ø
Transformation at Work (DoD), at industry (commercial
sector), and within DoD workforce
Ø
Unique Identifiers (UID)
Ø
DFARS PG&I System Demo & AF Knowledge
Management
Ø
Contracting in Iraq and Contractors in the Battlefield
Ø
Breakout Sessions on Strategic Sourcing for
Acquisition of Services, Contingency
Contracting - Boots on Ground Transformation, Small Business
Initiatives/Preferred Sources, Purchase Card, Contractual
Incentives, and Implementing Performance Based Logistics, etc.
·
The AFFARS has posted its “Mandatory Procedures (MP)
and Informational Guidance (IG) documents” on line at http://farsite.hill.af.mil/VFAFFARA.HTM.
Recent “mandatory” items include… Other Than Full and
Open Competition, Contract Audit Follow-up (CAFU), Formula Pricing
Agreements, Small Business Program, Foreign Acquisitions, Protests
to the GAO, and Bankruptcy.
· The Director of Defense Procurement and Acquisition Policy announced “her career-broadening
Acquisition Exchange Program for government employees. The opening date for this round of current
opportunities is June 23, 2004 with a closing date of July 23, 2004.”
Information is available at: http://www.acq.osd.mil/dpap/workforce/exchangeprogram.htm
· Other items of note:
Ø “A Federal Supply Schedule contractor submitting a quote in response to a request for quotations
that is limited to small business vendors must meet the applicable size standard when it submits the
quote, the Small Business Administration Office of Hearings and Appeals decided June 1
(Advanced Management Technology Inc., SBA, No. SIZ-2003-11-25-71, 6/1/04).”
Ø
NAVAIR has out for internal comment a draft
instruction on “Policy for Implementation of Unique Identification
(UID) of Tangible Items” including suggested draft SOW language,
etc.
Ø
On June 1, 2004, the Air Force issued Contracting
Policy Memo 04-C-06 on “Contingency Contracting Community of
Practice” and attachment, “Rules of Engagement.” Covered
topics in this unclassified Practice (available through DAU) include
improving various aspects of contingency planning, etc. associated
with the global war on terrorism.
Ø
A 2004 Rand publication, “Defining Needs and
Managing Performance of Installation Support Contracts: Perspectives
from the Commercial Sector,” has chapters on Recent Policy
Emphasis on Performance-Based Acquisition (PBSA);
Gathering Information from Leading Commercial Buyers and Providers
of Facilities and Food Services; Research
Findings on Services, Contract Types and the Use of
Performance–Based Practices; and Implications for the Air Force.
See http://www.rand.org/publications/MR/MR1812/
Future
Speaking Topics Include—
·
ISM Phoenix Affiliate, "How 'Baseball
Arbitration' will help in Negotiating Sole Source Procurements--or
how to get through Impasse."
·
National Purchasing Institute, “"How to get
through Impasse—Can Baseball Arbitration be the Answer?"
·
NCMA Puget Sound Chapter, “Baseball and Negotiations
are Always In Season!”
·
NCMA Los Angeles Gateway Chapter,
“Negotiations…Baseball Style!”
California State Bar Annual Conference, Monterey,
California, “What Attorneys (and their Clients) Really Need
to Know About Complex Business Arbitrations!”
Charles E. Rumbaugh
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