2011-33405. Federal Acquisition Regulation; Federal Acquisition Circular 2005-55; Introduction

AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Summary presentation of final and interim rules.

SUMMARY:

This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by DoD, GSA, and NASA in this Federal Acquisition Circular (FAC) 2005-55. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at http://www.regulations.gov.

DATES:

For effective dates and comment dates, see separate documents, which follow.

FOR FURTHER INFORMATION CONTACT:

The analyst whose name appears in the table below in relation to each FAR case. Please cite FAC 2005-55 and the specific FAR case numbers. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone].

List of Rules in FAC 2005-55

Item	Subject	FAR case	Analyst
I	Preventing Abuse of Interagency Contracts	2008-032	Sakalos.
II	Transition to the System for Award Management (SAM)	2011-021	Loeb.
III	Brand-Name Specifications	2005-037	Clark.
IV	Time-and-Materials and Labor-Hour Contracts for Commercial Items	2009-043	Sakalos.
V	Public Access to the Federal Awardee Performance and Integrity Information System	2010-016	Loeb.
VI	Updated Financial Accounting Standards Board Accounting References	2010-005	Chambers.
VII	Technical Amendments

SUPPLEMENTARY INFORMATION:

Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subject set forth in the documents following these item summaries. FAC 2005-55 amends the FAR as specified below:

Item I—Preventing Abuse of Interagency Contracts (FAR Case 2008-032)

This rule adopts as final, with changes, an interim rule that implemented section 865, Preventing Abuse of Interagency Contracts, of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417). This final rule further amends FAR subpart 17.5 to make it clear that this rule only applies to interagency acquisitions when an agency needing supplies or services obtains them using another agency's contract; or when an agency uses another agency to provide acquisition assistance, such as awarding and administering a contract, a task order, or delivery order. A business case analysis must be developed for the establishment and renewal of governmentwide acquisition contracts as well as for multi-agency contracts. Additionally, FAR 35.017 clarifies determination requirements when using a Federally Funded Research and Development Center. This rule does not impose any information collection requirements on small business. There is no significant impact on small businesses because this rule is only applicable to internal operating procedures of the Government.

Item II—Transition to the System for Award Management (SAM) (FAR Case 2011-021)

The Integrated Acquisition Environment (IAE) systems are being transitioned to a new System for Award Management (SAM) architecture. This effort will transition the Central Contractor Registration (CCR) database, the Excluded Parties Listing System (EPLS), and the Online Representations and Certifications Application (ORCA) to SAM. The FAR change will indicate that these IAE systems and the Disaster Response Registry will now be accessed through http://www.acquisition.gov. This rule will not significantly affect small business, as the only impact on the public will be the Web site address that offerors/contractors will need to use.

Item III—Brand-Name Specifications (FAR Case 2005-037)

This final rule adopts, with changes, the interim rule that amended the FAR to fully implement Office of Management and Budget memoranda and policies on the use of brand-name specifications. The final rule clarifies that when applicable, the documentation or justification and posting requirements for brand name items only apply to the portion of the acquisition that requires the brand name item. The final rule also adds a requirement to screen the brand name documentation or justification for contractor proprietary data. Further, the final rule requires the contracting officer to post the justifications for an order peculiar to one manufacturer under indefinite-delivery contracts. The rule will benefit small business entities by providing the opportunity for review of brand-name justification and approval documents for contracts and orders awarded noncompetitively, thereby increasing the opportunity for competition for future awards.

Item IV—Time-and-Materials and Labor-Hour Contracts for Commercial Items (FAR Case 2009-043)

This final rule amends the FAR to implement recommendations from the Government Accountability Office to: (1) Ensure that time-and-materials (T&M) and labor-hour (LH) contracts are used to acquire commercial services only when no other contract type is suitable, and (2) instill discipline in the determination of contract type with a view toward managing the risk to the Government. The requirement for a determination and findings when no other contract type is suitable is added to FAR 8.404, Use of Federal Supply Schedules. FAR 8.404 has also been amended to address increases in the order ceiling price of T&M and LH contracts, to more closely conform to the language at FAR 12.207. In addition, FAR 16.201 is modified and FAR 16.600 is added to clarify that T&M and LH contracts are not types of fixed-price contracts. This rule will not have a significant economic impact on a substantial number of small entities.

Item V—Public Access to the Federal Awardee Performance and Integrity Information System (FAR Case 2010-016)

This rule adopts as final, with changes, an interim rule. The interim rule implemented section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212), enacted July 29, 2010. Section 3010 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.

In response to public comments, the final rule allows a 14-calendar-day delay before making the data available to the public. Contractors have 7 calendar days within those 14 calendar days to assert a disclosure exemption under the Freedom of Information Act. In addition, the FAPIIS system has been modified to allow more space for contractor comments. The rule does not impose any new requirements on small businesses.

Item VI—Updated Financial Accounting Standards Board Accounting References (FAR Case 2010-005)

This final rule amends the FAR sections 31.205-11, 31.205-36, 52.204-10, 52.212-5, and 52.213-4 to update references to authoritative accounting standards owing to the Financial Accounting Standards Board's Accounting Standards Codification of Generally Accepted Accounting Principles (“Codification of GAAP”). These revisions have no effect other than to simply replace the superseded references with updated references.

Item VII—Technical Amendments

Editorial changes are made at FAR 4.603, 8.402, 8.405-5, 8.703, 15.402, 15.403-1, 19.102, 19.402, 22.404-1, 22.1304, 22.1306, 23.205, 23.401, 28.203-3, 42.203, 52.202-1, 52.212-3, 52.219-22, and 52.228-11.

Dated: December 21, 2011.

Laura Auletta,

Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy.

Federal Acquisition Circular (FAC) 2005-55 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.

Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-55 is effective January 3, 2012, except for Items I, II, III, IV, and VI which are effective February 2, 2012.

Dated: December 21, 2011.

Richard Ginman,

Director, Defense Procurement and Acquisition Policy.

Dated: December 22, 2011.

Mindy S. Connolly,

Chief Acquisition Officer, U.S. General Services Administration.

Dated: December 20, 2011.

William P. McNally,

Assistant Administrator for Procurement, National Aeronautics and Space Administration.