Seven FAC 2005-69 Final Rules Amend the FAR

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have issued Federal Acquisition Circular 2005-69, which contains seven final rules amending the Federal Acquisition Regulation. The rules are: Item I—Definition of Contingency Operation (FAR Case 2013-003); Item II—Iran Threat Reduction (FAR Case 2012-030); Item III—Documenting Contractor Performance (FAR Case 2012-009); Item IV—Repeal of Sunset for Certain Protests of Task or Delivery Order Contracts (FAR Case 2013-011); Item V—Least Developed Countries That Are Designated Countries (FAR Case 2013-009); and Item VI—Update to Biobased Reporting Requirements (FAR Case 2013-006). Item VII makes editorial changes at FAR 2.101, FAR 22.1801, FAR 52.209-6, FAR 52.212-5, and FAR 52.222-54. 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, along with the effective date for each rule, appears in the FAC regulation table below. For the text of FAC 2005-69, see ¶70,002.161.

Contingency Operation Definition

The FAR Case 2013-003 final rule adopts the interim rule issued with FAC 2005-66 without change. The interim rule amended the FAR to revise the definition of “contingency operation” in accordance with the statutory change to the definition made by Section 515(d) of the National Defense Authorization Act for Fiscal Year 2012 (PL 112-81). The rule added a reference to 10 USC 12304a (from Section 515 of the FY 2012 NDAA) to the list of references in Section (b)(2) of the definition of “contingency operation” in FAR 2.101.

Iran Threat

The interim rule associated with FAR Case 2012-030, Iran Threat Reduction, has been finalized with minor changes. The rule (see FAC 2005-63) implemented the expansion of sanctions relating to Iran’s energy sector and Revolutionary Guard Corps, as contained in Titles II and III of the Iran Threat Reduction and Syria Human Rights Act of 2012 (PL 112-158). The rule amended FAR 25.703-2 to replace the list summarizing the activities subject to sanctions with a more top-level description of the types of activities subject to sanctions, because Sections 201 through 203 of the Act added numerous activities that may be subject to sanctions to Section 5 of the Iran Sanctions Act of 1996 (PL 104-72). FAR 25.703-2 was further amended to add a new certification requirement to implement Section 311(a) of the 2012 Act, which specifies that a significant transaction, for purposes of this rule, is any transaction that exceeds $3,000. FAR 25.703-3 was revised to prohibit the head of an executive agency from entering into or extending a contract for the procurement of goods or services with a person that exports certain sensitive technology to Iran, although the representation requirement applicable to offerors does not apply if the acquisition is subject to trade agreements and the offeror certifies that all the offered products are designated country end products or designated country construction material. The rule also amended the waiver requirement at FAR 25.703-4 to implement changes required by Section 311(b)(1)(C) of the 2012 Act, so that waivers of the FAR 25.703-2 certification requirements must be “essential to the national security interest of the United States.” In addition, the rule amended the solicitation provisions at FAR 52.212-3 and FAR 52.225-25 to add the condition that, by submitting its offer, the offeror certifies that it, and any person owned or controlled by it, does not knowingly engage in any transaction that exceeds $3,000 with Iran’s Revolutionary Guard Corps or any of its officials, agents, or affiliates. Conforming changes were made to the prescription language for FAR 52.225-25 at FAR 25.1103, and to FAR 4.1202 and FAR 52.204-8 to revise references to FAR 52.225-25. The rule also amended the scope section at FAR 25.700 and the section heading of FAR 25.703. The final rule corrects the title of the 2012 Act at FAR 25.700 (c) to read “Iran Threat Reduction and Syria Human Rights Act of 2012,” and the website address at FAR 25.703-3 and FAR 52.213-3 to read http://www.acquisition.gov .

Documenting Contractor Performance

A final rule, FAR Case 2012-009, amends the FAR to provide governmentwide standardized past performance evaluation factors and performance rating categories and to require that past performance information be entered into the Contractor Performance Assessment Reporting System at http://www.cpars.gov/ , which is the government’s sole past performance reporting system. The final rule is a culmination of a process that included two proposed rules ( ¶70,006.253 and ¶70,006.271), both of which generated a significant number of public comments that the FAR Councils considered in formulating the final rule. Generally, agencies must now prepare evaluations of contractor performance for each contract, order, or modification that exceeds the simplified acquisition threshold. The evaluations must be prepared at least annually and at the time contract performance ends ( FAR 8.406-7). Two tables in revised FAR 42.1503 provide evaluation rating definitions and descriptions. The final rule also reorganized FAR Subpart 42.15 for clarity and consistency of subject matter. FAR 42.1502, Policy, was revised to clarify when past performance evaluations are required for contracts and orders. In addition, the procedures and responsibilities for contributing to and conducting past performance evaluations were addressed and clarified at FAR 42.1503, Procedures, which includes a new requirement for past performance reports to include a clear, non-technical description of the principal purpose of the contract or order. The rule also impacts FAR 8.406-4, FAR 12.403, FAR 15.407-1, FAR 17.207, FAR 42.1500, FAR 42.1501, and FAR 49.402-8.

Sunset Repeal

The FAR Case 2013-011 final rule implements Section 830 of the National Defense Authorization Act for Fiscal Year 2013 (PL 112-239), which removed the sunset date for protests against certain orders under a task-order or delivery-order contract for Title 10 agencies only. The Department of Defense, the National Aeronautics and Space Administration, and the Coast Guard are the Title 10 agencies. Specifically, the final rule amends FAR 16.505 (a)(10)(ii) to state the authority to protest the placement of an order under a task-order or delivery-order contract expires on September 30, 2016, for agencies other than DoD, NASA, and the Coast Guard (41 USC 4103(d) and 41 USC 4106(f)). The authority to protest an order does not expire for DoD, NASA, and the Coast Guard.

Least Developed Countries

The FAR Case 2013-009 final rule implements a revision by the United States Trade Representative to the list of least developed countries that are designated countries under the Trade Agreements Act of 1979. The revision changed the name of East Timor to Timor-Leste, removed the Maldives, which is no longer a least developed country, and added South Sudan, which seceded from Sudan to form an independent state. Accordingly, this final rule revises the definitions of “designated country” and “least developed country” at FAR 25.003, FAR 52.225-5, FAR 52.225-11, and FAR 52.225-23, and makes a conforming change to FAR 52.212-5.

Biobased Reporting

A final rule, FAR Case 2013-006, amends the FAR to revise the biobased reporting clause at FAR 52.223-2 to require contractors to submit the annual biobased report to a new governmentwide website instead of the agency environmental point of contact. Specifically, the rule requires contractors to report to http://www.sam.gov , with a copy to the contracting officer, on the product types and dollar value of any Department of Agriculture-designated biobased products purchased by the contractor during the previous government fiscal year, between October 1 and September 30. The new website allows contractors to submit a report on a contract-by-contract basis at any time throughout the year, improving consistency in reporting across agencies with the goal of increasing government procurement of biobased products. The new website also generates a report for agency use and includes instructions on how to complete the report and frequently asked questions.