FAC 2005-82 Issued with Four Final Rules

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have issued Federal Acquisition Circular 2005-82, which contains four final rules amending the Federal Acquisition Regulation. The rules are: Item I—Equal Employment and Affirmative Action for Veterans and Individuals with Disabilities (FAR Case 2014-013); Item II—Review and Justification of Pass-Through Contracts (FAR Case 2013-012); Item III—Enhancements to Past Performance Evaluation Systems (FAR Case 2014-010); and Item IV, which makes various editorial changes to FAR 4.905, FAR 22.102-2, and FAR 39.101, as well as the clauses at FAR 52.212-4, FAR 52.212-5, FAR 52.213-4, and FAR 52.223-16. This FAC also contains a Small Entity Compliance Guide, which indicates a regulatory flexibility analysis was prepared for Item I. A full listing of the regulations impacted by the rules, as well as the effective dates, appears in the FAC regulation table below. For the text of FAC 2005-82, see ¶70,002.182.

Equal Employment and Affirmative Action

The FAR Case 2014-013 interim rule has been finalized without change. The rule implemented final rules issued by the Office of Federal Contract Compliance Programs at the Department of Labor relating to equal opportunity and affirmative action for veterans and individuals with disabilities. The interim rule amended the definitions in FAR Subpart 22.13, Equal Opportunity for Veterans, to conform to the definitions in 41 CFR 60–300.2, and added at FAR 22.1301 the definitions of “active duty wartime or campaign badge veteran” and “protected veteran.” The rule also expanded policy at FAR 22.1302 to address appropriate outreach and recruitment, and hiring benchmarks; amended FAR Subpart 22.14, Employment of Workers with Disabilities, to conform to DOL regulations at 41 CFR Part 60–741; expanded policy at FAR 22.1401 to address appropriate outreach and recruitment, and utilization goals, as prescribed in the DOL regulations; amended the waiver authority at FAR 22.1403 to be the Director of the OFCCP; and revised the policy at FAR 22.1403 (b) concerning national security waivers.

Revised DOL Clauses

The DOL regulations contain two revised equal opportunity clauses at 41 CFR 60–300.5, relating to veterans, and 41 CFR 60–741.5, relating to individuals with disabilities. Both clauses add requirements with regard to contractor solicitations or advertisements for employees, requiring inclusion of statements that all qualified applicants will receive consideration for employment, without regard to their protected veteran status, and that qualified applicants will not be discriminated against on the basis of disability. Accordingly, the interim rule revised FAR 52.222-35, Equal Opportunity for Veterans, and FAR 52.222-36, Equal Opportunity for Workers with Disabilities, to provide a citation to the applicable clause in the DOL regulations. Each FAR clause also includes a statement that summarizes contractors’ top level obligations under the DOL clause. A conforming change to FAR 52.222-37, Employment Reports on Veterans, added a definition of “active duty wartime or campaign badge veterans.” Also, the rule amended FAR 52.212-5 (e) and FAR 52.244-6 to require flowdown of FAR 52.222-37 to commercial subcontracts.

Pass-Through Contracts

The final rule associated with FAR Case 2013-012 amends the FAR to implement section 802 of the National Defense Authorization Act for Fiscal Year 2013 (PL 112-239). That section provides additional requirements regarding the review and justification of pass-through contracts. In instances where an offeror for a contract, task order, or delivery order informs the agency pursuant to FAR 52.215-22, Limitations on Pass-Through Charges—Identification of Subcontract Effort, of its intention to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract or order, section 802 requires the contracting officer to: consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor that will perform the bulk of the work, make a written determination that the contracting approach selected is in the best interest of the government, and document the basis for the determination. These statutory requirements are being implemented in revised FAR 15.404-1 (h). The final rule makes two changes to the proposed rule ( ¶70,006.291). The first change revises FAR 15.404-1 (h)(2) to make clear that competition requirements still apply if the CO selects alternative approaches. The second change revises FAR 15.404-1 (h)(3) to clarify that the requirements of this rule do not apply to small business set-aside contracts.

Past Performance Systems

The FAR Case 2014-010 final rule amends the FAR to standardize the past performance reporting requirements under the Contractor Performance Assessment Reporting System database in FAR Subpart 42.15. The amendment to FAR 42.1502 (a) is intended to accommodate the recent merger of the Architect-Engineer Contract Administration Support System and the Construction Contractor Appraisal Support System modules within the CPARS database. Instructions for submitting evaluations to CPARS are available at http://www.cpars.gov/ . The final rule did not make any changes to the proposed rule ( ¶70,006.294).