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Jonathan Aronie
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Ryan Roberts
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Townsend Bourne
Partner | Washington, D.C.
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tbourne@sheppardmullin.com
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Anne Perry
Partner | Washington, D.C.
+1.202.747.1913
aperry@sheppardmullin.com
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Keith Szeliga
Partner | Washington, D.C.
+1.202.747.1927
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FAR Overhaul Tracker
Analysis of Proposed Revisions
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Analysis of Proposed Revisions
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 1: Federal Acquisition Regulations System
Deletes Subparts 1.2 (“Administration”) and 1.5 (“Agency and Public Participation”), which require the FAR/DFAR Councils to engage in N&C rulemaking for new clauses.
Deletes 1.107 - Certifications (a) and (b), which allowed for certifications if required by statute or approved by the Administrator for Federal Procurement Policy. New 1.106 - Certifications provision states that the FAR MUST not require certifications unless allowed under 41 USC 1304.
Summary of Deletions
Retains Subpart 1.3 - Agency Acquisition Regulations (now Subpart 1.2), which allows agencies to issue regulations that are "necessary to implement the FAR, or to supplement the FAR to satisfy a specific agency need, according to 41 USC 1303(a)(2)."
Retains Subpart 1.4 - Deviations from the FAR (now Subpart 1.3), which allows for agnecies to authorize individual deviations and class deviations.
Summary of Retentions
The proposed revisions remove references to “best value” procurement. On it’s face, this appears to represent a strong preference for other types of competition (e.g., LPTA). We don’t view the proposed deletion as the death knell for best value procurements: the concept is deeply enmeshed throughout FAR Part 15, and is required in some cases by statute (both 10 U.S.C. 3303 and 41 U.S.C. 3703 call for agencies to award contracts “to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation.”).
On the whole, we don’t anticipate these revisions will result in major changes to the FAR clause promulgation process, but they’re interesting deletions nonetheless, and we certainly can envision a world in which the “urgent and compelling” exception to public comment is applied generously.
The revised Part 1 does not eliminate the authority of individual agencies to draft and implement agency supplements to the FAR (this language currently is located in FAR Subpart 1.3).
In a welcome development, the revised FAR 1.106 (“Certifications”), previously 1.107 (“Certifications”), explicitly prohibits the FAR Council from adding new certifications to the FAR unless specifically required by statute (revoking the prior authority given to the FAR Council to add certifications by a simple written determination).
Sheppard Mullin Comments / Observations
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Analysis of Proposed Revisions
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FAR Part 18: Emergency Acquisitions
Removes Subpart 18.1, Available Acquisition Flexibilities, which provides a list of generally available FAR flexibilities that contracting officers may use to support emergencies.
These flexibilities are available and can be used without a formal emergency declaration or contingency operation designation.
Removal from the FAR is based on the rationale that this list is available in non-regulatory sources, for example on Acquisition.gov (https://acquisition.gov/emergency-procurement) in Practitioner Albums, FAR Companion Guide and/or Category Buying Guide.
Summary of Deletions
Retains Subpart 18.2, Emergency Acquisition Flexibilities, (now Subpart 18.001), which provides a list of FAR flexibilities available only during certain emergencies: (1) contingency operations, (2) defending or recovering from national security events, (3) supporting State Department or USAID requests during international disasters, (4) supporting major disaster responses, or (5) humanitarian/ peacekeeping missions.
Summary of Retentions
The circumstances triggering the FAR's emergency acquisition provisions — as well as the increased thresholds, commercial procecures, and award preferences that those provisions provide — remain unchanged. This should come as no surprise as such procedures are almost entirely mandated by statute.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 11: Describing Agency Needs
Deletes twelve contract clauses and solicitation provisions that "should now be handled as part of the contractual requirement and/or delivery schedule":
Availability of Specifications Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29 (52.211-1);
Availability of Defense Specifications, Standards, and Data Item Descriptions in the Acquisition Streamlining; and Standardization Information System (ASSIST) Website (52.211-2)
Availability of Specifications Not Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions (52.211-3);
Availability for Examination of Specifications Not Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions (52.211-4);
Brand Name or Equal (52.211-6);
Alternatives to Government-Unique Standards (52.211-7);
Time of Delivery (52.211-8);
Desired and Required Time of Delivery (52.211-9);
Commencement, Prosecution, and Completion of Work (for construction contracts only) (52.211-10);
Variation in Quantity (52.211-16);
Delivery of Excess Quantities (52.211-17); and
Variation in Estimated Quantity (52.211-18). These were removed to reduce unnecessary burden and best practices will be added to the FAR Companion Guide.
Deletes non-statutory sustainability requirements. While statutory sustainability requirements remain, whether to include non-statutory sustainability standards is left to the discretion of the agency (based on agency requirements).
Removes requirements for establishing delivery or performance schedules to the FAR Companion Guide.
Deletes order of precedence for requirements documents.
Summary of Deletions
Planning and solicitation requirements (41 U.S.C. § 3306(a) and 10 U.S.C. § 3206(a))
Preference for commercial products and commercial services (41 U.S.C. § 3307 and 10 U.S.C. § 3453)
Additional Powers (15 U.S.C. § 637(d)(4)(f))
Procedures and corresponding provisions/clauses related to liquidated damages.
Defense Priorities and Allocations System (DPAS), a Department of Commerce regulation in support of approved national defense, emergency preparedness, and energy programs still apply.
Summary of Retentions
The revisions to Part 11 focus on communicating clear requirements and trying to ensure those requirements are aligned with commercial standards and practices. Additionally, the revisions are intended to avoid overly prespcriptive specifications that limit competition.
FAR Part 11 no longer stipulates an "order of precedence" for requirements documents (e.g., SOW, SOO, PWS). It is now up to each agency (as outlined in each solicitation) to make that determination. FAR Part 11 does not include any guidance applicable to situations where an agency fails to identify the applicable order of preference.
Interestingly, although the "use of brand name or equal purchase descriptions" (previously 11.104) has been removed (and will be added to the FAR Companion Guide), the Practitioner Album for Part 11 includes a "case study" (based on a previous GAO protest decision) that provides an example of where agencies can go wrong in brand name or equal acquisitons. It provides "best practices," including that the agency should (1) during market research, identify all salient characteristics upfront, (2) clearly document them in the solicitation, and (3) carefully exaluate proposed "equal" products during the evaluation phase. It will be interesting to see whether the Companion Guides have any binding authority, including whether protestors can successfully cite to the Practitioner Album in protests if contracting officers fail to follow a Companion Guide.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 6: Competition Requirements
The word “advance” was removed from the phrase, “A lack of advance planning by the requiring activity” in FAR subpart 6.301. The language now reads that “a lack of planning by the requiring activity” is not a justification for not providing full and open competition.
Removes language from FAR subpart 6.303-2 that provided illustrations of facts supporting sole source justifications. Per the Practitioner Album, this content is not required by statute and "may be moved to non-regulatory content."
Deletes specific references to small business socioeconomic categories: HUBzone Small Business Concerns, Service Disasbled Veteran Owned Small Business (SDVOSB) Concerns, Economically Disadvantaged Women-Owned Small Business (EDWOSB) conerns, and Women-Owned Small Business (WOSB) Concerns. In its place, the revision adds a general reference to FAR Part 19. In addition, CO discretion for set-asides is now expanded to include Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs.
Summary of Deletions
Retains statutory requirements, including - (1) Advocates for Competition (41 U.S.C. § 1705); (2) Full and Open Competition (41 U.S.C. § 3301 and 10 U.S.C. § 3201); (3) Exclusion of Particular Source or Restriction of Solicitation to Small Business Concerns (41 U.S.C. § 3303 and 10 U.S.C. § 32030); (4) Use of Noncompetitive Procedures (41 U.S.C. § 3304); (5) Use of Procedures Other than Competitive Procedures (10 U.S.C. § 3204); (6) Aid to Small Business (15 U.S.C. Chapter 14A); and (7) Major Disaster and Emergency Assistance, Use of Local Firms and Individuals (42 U.S.C. § 5150).
FAR Part 6 continues to apply to all acquisitions, with limited exceptions. The revision maintains the existing list of exclusions for specific contracts and orders: (1) Only one responsiple source (6.103-3); (2) Unusual and compelling urgency (6.103-2); (3) Industrial mobilization, engineering/developmental/research capability, or expert services (6.103-3); (4) International agreement (6.103-4); (5) Authorized by statute (6.103-5); (6) National security (6.103-6); and (7) Public interest (6.103-7).
Retains guidance for Sealed Bidding.
Approval of justification requirements now reflected in a plan language format.
Summary of Retentions
The FAR Part 6 revision clarifies the requirements and exceptions for full and open competition. The removal of the word "advance" (such that FAR 6.301 now reads "a lack of planning by the requireing activity" is not a justification for not providing full and open competition) was intended to remove the ambiguity of what was meant by “advance” planning, and to eliminate redundancy. FAR Part 6 continues to apply to almost all acquisitions with limited exceptions (FAR Subpart 6.103).
COs retain discretion to set aside solicitations for small business concerns. Notably, the revision adds a specific reference to set asides for contracts under the SBIR and STTR programs, while simultaneously removing specific references to HUBzone, SDVOSB, and WOSB concerns.
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 29: Taxes
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
Retains statutory requirements, including - (1) Imposition of Tax (26 U.S.C. § 4041) (2) Exemptions (26 U.S.C. § 4053) (3) Gas Guzzler Tax (26 U.S.C. § 4064) (4) Certain Tax Free Sales (26 U.S.C. § 4221) (5) Tax Exemptions (26 U.S.C. § 4293 and § 4483) (6) Imposition of Tax on Certain Foreign Procurement (26 U.S.C. § 5000C) (7) Transportation of Humanitarian Relief Supplies to Foreign Countries (10 U.S.C. § 402) (8) Foreign Disaster Assistance (10 U.S.C. § 404) (9) Domestic Emergency Assistance (10 U.S.C. § 2557) (10) Humanitarian Assistance (10 U.S.C. § 2561)
Retains Subpart 29.1 (Resolving Tax Problems) but now requires COs to consult legal counsel when tax issues arise
Retains Subpart 29.2 (Federal Excise Taxes) but now requires COs to request offers on a tax-exclusive basis when the law exempts the government from federal excise taxes
Retains all clauses prescribed under Part 29 (except 52.229-13 and 52.229-14) but revised with plain language
Summary of Retentions
Most of the provisions in Part 29, as well as the clauses they prescribe, are required by tax statutes. The revisions thus focus on readability. According to the Practicer Album, the revisions resulted In an approximately 20% reduction in word count.
Notably, the revisions tweak the language to place greater onus on COs to ultilize tax exemptions. For example, Part 29.2 - Federal Excise Taxes previously stated that COs "should solicit prices on a tax-exclusive basis." Now, Part 29.2 directs that "Executive agencies must take advantage of available Federal excise tax exemptions. When the law exempts the Federal Government from these taxes, the contracting officer must, unless inappropriate for the circumstances, request offers on a tax-exclusive basis."
Sheppard Mullin Comments / Observations
FAR Part 31: Contract Cost Principles and Procedures
Deletes certain definitions that are well-known business definitions or otherwise defined in the Cost Accounting Standards (e.g., "Actual Cash Value" and "Labor Market")
Summary of Deletions
Retains statutory requirements, including - (1) Armed Service Procurement Act of 1947 (Public Law 413) (2) Allowable Costs (41 U.S.C. Chapter 43 and 10 U.S.C. Chapter 273) (3) Claims Against the United States Government (31 U.S.C. Chapter 37, Subchapter III) (4) Major Fraud Against the United States (18 U.S.C. § 1031) (5) Uniform Administrative Requirements, Cost Principles, And Audit (6) Requirements for Federal Awards (2 C.F.R. Part 200) (7) The Cost Principles for Educational Institutions; State, Local, and Federally Recognized Indian Tribal Governments; and Nonprofit Organizations (31 U.S.C. Chapter 11, 31 U.S.C. §§ 503-504, 31 U.S.C. §6307, 31 U.S.C. §§7501-7507) (8) The Cost Principles for Commercial Organizations (10 U.S.C. and 41 U.S.C.)
Summary of Retentions
The FAR Part 31 revisions are largly stylistic, rather than substantive. Recognizing that Part 31 is deeply rooted in appropriations law, as well as the need for uniformity across Government, the revisions focus on plain language edits (the Practitioner Album boasts that these edits reduced the word count by more than 1,300, but even the revised Part 31 is just shy of 29,000 words).
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 29: Taxes
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
Retains statutory requirements, including - (1) Imposition of Tax (26 U.S.C. § 4041) (2) Exemptions (26 U.S.C. § 4053) (3) Gas Guzzler Tax (26 U.S.C. § 4064) (4) Certain Tax Free Sales (26 U.S.C. § 4221) (5) Tax Exemptions (26 U.S.C. § 4293 and § 4483) (6) Imposition of Tax on Certain Foreign Procurement (26 U.S.C. § 5000C) (7) Transportation of Humanitarian Relief Supplies to Foreign Countries (10 U.S.C. § 402) (8) Foreign Disaster Assistance (10 U.S.C. § 404) (9) Domestic Emergency Assistance (10 U.S.C. § 2557) (10) Humanitarian Assistance (10 U.S.C. § 2561)
Retains Subpart 29.1 (Resolving Tax Problems) but now requires COs to consult legal counsel when tax issues arise
Retains Subpart 29.2 (Federal Excise Taxes) but now requires COs to request offers on a tax-exclusive basis when the law exempts the government from federal excise taxes
Retains all clauses prescribed under Part 29 (except 52.229-13 and 52.229-14) but revised with plain language
Summary of Retentions
Most of the provisions in Part 29, as well as the clauses they prescribe, are required by tax statutes. The revisions thus focus on readability. According to the Practicer Album, the revisions resulted In an approximately 20% reduction in word count.
Notably, the revisions tweak the language to place greater onus on COs to ultilize tax exemptions. For example, Part 29.2 - Federal Excise Taxes previously stated that COs "should solicit prices on a tax-exclusive basis." Now, Part 29.2 directs that "Executive agencies must take advantage of available Federal excise tax exemptions. When the law exempts the Federal Government from these taxes, the contracting officer must, unless inappropriate for the circumstances, request offers on a tax-exclusive basis."
Sheppard Mullin Comments / Observations
FAR Part 35: Research and Development Contracting
Deletes several provisions: (1) 35.002 General (Streamlined) (2) 35.004 Publicizing Requirements (Duplicative of FAR part 5) (3) 35.006 Contracting Methods and Contract Type (Duplicative of FAR part 16) (4) 35.009 Subcontracting (Duplicative of FAR part 44) (5) 35.011 Data (Duplicative of FAR part 27) (6) 35.012 Patent Rights (Duplicative of FAR part 27) (7) 35.013 Insurance (Duplicative of FAR part 28) (8) 35.014 Government Property (Duplicative of FAR part 45)
Deletes 35.015 Educational Institutions, though the Practitioner Album states "educational institutions should be considered during evaluation for R&D opportunities as an organization-type (see model deviation 35.201)."
Deletes reference to Standard Form 298, Report Documentation Page to provide more flexibility in reporting
Removes Section 35.005 Work Statement and references to "Recoupment" to the FAR Companion Guide to allow acquisition teams greater flexibility and discretion
Summary of Deletions
Retains statutory requirements for Using Procurement Contracts (31 U.S.C. § 6303) and Use of Federally Funded Research and Development Centers (10 U.S.C. § 4126)
Retains definitions for "Applied research" and "Development"
Retains, moves, and makes plain language edits to: (1) Section 35.007 Solicitations (now 35.101) (2) Section 35.016 Broad Agency Announcement (now 35.102) (3) Section 34.008 Evaluation for Award (now 35.201) (4) Section 35.101 Scientific and Technical Reports (now 35.301) (5) Section 35.017 Federally Funded Research and Development Centers ("FFRDC") (now subpart 35.4)
Summary of Retentions
The FAR part 35 revisions include some of the most substantial organizational changes to date. In total, the revisions delete nine sections in their entirety and remove another to the FAR Companion Guide.
Part 35 is now organized in accordance with the acquisition lifecycle. The revised subparts are ordered as - Subpart 35.1 - Presolicitation Subpart 35.2 - Evaluation and Award Subpart 35.3 - Postaward Subpart 35.4 - Federally Funded Research and Development Centers
The edits to the retained sections primarily focus on plain language, though there is one notable change to the FFRDC process. The revised subpart 35.4 clarifies that, to establish an FFRDC, the government must publish at least one notice to the Government Point of Entry ("GPE") and allow for a 90 day comment period. The previous version required the government to publish at least three notices to the Federal Register and GPE over a 90 day period.
Sheppard Mullin Comments / Observations
FAR Part 36: Construction and Architect-Engineer Contracts
Deletes all Part 36 definitions (previously scattered across 36.001 and 36.102) except the definition for "firm."
Deletes the "Applicability" section (previously at 36.001).
Deletes specific evaluation criteria for architect-engineer contracts (previously at 36.602-1 and 36.603).
Deletes the requirement that the government disclose the magnitude of construction projects (previously at 36.204). This disclosure is now left to the acquisition team's discretion.
Deletes the section titled "Special procedures for sealed bidding in construction contracting" (previously at 36.213). COs are now directed to reference Part 14 for sealed bidding procedures.
Deletes the section titled, "Performance of Work by the Contractor" (previously at 36.501), and the implementing clause at 52.236-1. Also known as the "12 percent rule," this section previously required prime contractors perform a specified minimum percentage of the total contract work with their own forces. The Practitioner Album and GSA Deviation clarify that this deletion does not impact clause 52.219-14, Limitations of Subcontracting.
Deletes several clauses previously prescribed by Part 36: 52.236-4 Physical Data 52.236-19 Organization and Direction of the Work 52.236-26 Preconstruction Conference 52.236-27 Site Visit (Construction) 52.236-28 Preparation of Proposals-Construction
Removes the requirements for government to (1) provide for a site inspection during the solicitation phase (previously at 36.210 and 36.523), and (2) to conduct a preconstruction conference after award (previously at 36.212 at 36.522). These decisions are now left to the discretion of the acquisition team and will be addressed in the FAR Companion Guide.
Summary of Deletions
Retains statutory requirements, including - (1) Design-Build Selection Procedures (10 U.S.C. § 3241 and 41 U.S.C. § 3309) (2) Administration of Construction Change Orders (15 U.S.C. § 644(w)) (3) Brooks Act of 1972 (Pub. L. 92-582) (4) Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355) (5) Services Acquisition Reform Act of 2003 (Pub. L. 108-136)
Retains and revises the "Policy" section (previously at 36.104, now at 36.002) to "consolidate critical high-level requirements," including - (1) Agencies must require the use of Project Labor Agreements for Federal construction projects with a total estimated construction cost of $35 million or more, unless an exception applies (2) COs conducting market research for construction contracts valued at $35 million or must ensure that the market research procedures involve a current and proactive examination of the market conditions in the project area. (3) For design and construction selection, COs must use either design-bid-build procedures, two-phase design-build procedures, or another acquisition procedure authorized by law. (4) Agencies must implement high-performance sustainable building practices.
Retains and streamlines the “Procedures” for two-phased design-build selection (previously at 36.303, now at 36.101-2). The acquisition team retains discretion to issue one or two solicitation documents for the procurement phases.
Retains "Liquidated Damages" (previously at 36.206, now at 36.101-6) and clarifies that COs must consider liquidated damages during acquisition planning. The previous instruction was silent on when this evaluation must be made.
Retains "Government Estimate of Construction Costs (previously at 36.203, now at 36.101-6) and clarifies that the Independent Government Estimate ("IGE") must be given to the CO "before receipt of any proposals" (or, if two-step sealed bidding is used, "when the contract requirements are definitized.") Part 36 previously required that the CO receive the IGE "at the earliest possible time."
Makes plain language adjustments to 52.236-2, 52.236-3, 52.236-5 through 52.236-18, and 52.236-20 though 52.236-25
Summary of Retentions
The Part 36 revisions are significant in both structure and substance. As to structure, Part 36 is now organized in accordance with the acquisition lifecycle. The revised subparts are ordered as - Subpart 36.1 - Pre-solicitation Subpart 36.2 - Evaluation and Award Subpart 36.3 - Postaward
As to substance, the revised Part 36 allows for far greater agency and CO discretion in the acquisition process by removing several procedural requirements. The FAR no longer requires the government to - (1) conduct site inspections during the solicitation phase, (2) conduct a preconstruction conferences after awards, (3) follow specific evaluation criteria for architect-engineer contracts, or (4) disclose the magnitude of construction projects.
For contractors, perhaps the most impactful change is the deletion of the 12 Percent Rule, previously mandated by subpart 36.501 and the implementing clause 52.236-1. Prime contractors are now permitted -- at least under the FAR -- to subcontract any portion of work. But we note this separate from the Limitations on Subcontracting (FAR 52.219-14), which still exists and is applicable to set-aside contracts.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 5: Publicizing Contract Actions
Deletes the word "synopsis" throughout.
Deletes policy in 5.002 of publishing contract action to assist veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in obtaining contacts.
Moves definition of Govermentwide point of entry from 5.003 to Part 2 because the definition applies to multiple FAR parts.
Deletes methods of dissemination such as "periodic handouts," "assisting local trade associations," and "brief announcements" in papers and trade publications to make the governmentwide point of entry (GPE) (as well as paid advertisement) the primary method of dissemination.
Deletes most "special sitiations" and moves them to 5.103 Special Notices, retaining notices for Federal Funded Research and Development Centers (FFRDC), and consolidation, bundling, and substantial bundling.
Deletes (and consolidates) content requirements for each notice (e.g., proposed solicitation number, place of contract performance, destination information, delivery schedule, duration of contract period, etc.).
Deletes local announcement option for agencies.
Deletes Subpart 5.4 (Release of Information), which was largely duplicative of the general posting guidance throughout the part.
Deletes Subpart 5.6 (Publicizing Multi-Agency Use Contracts), which required agencies to enter information into a specific governmentwide database of contracts was deleted.
Deletes Subpart 5.7 (Publicizing Requirements Under the American Recovery and Reinvestment Act of 2009 (ARRA)) because ARRA is no longer in effect.
Summary of Deletions
Retains Statutory Requirements including: (1) Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings (5 U.S.C. § 552) (2) Procurement Notice (15 U.S.C. § 637(e) and 41 U.S.C. § 1708) (3) Notices of Subcontracting Opportunities (15 U.S.C. § 637(k)) (4) Availability of Information (15 U.S.C. § 637b) (5) Awards or contracts (15 U.S.C. § 644) (6) Advertisements for Contracts (44 U.S.C. § 3701-3703) (7) Small Business Innovation Development Act of 1982 (Pub. L, 97-219)
Retains all exceptions to publicizing contract actions.
Summary of Retentions
The FAR Part 5 revisions will simplify and how contract opportunities are publicized by consolidating their publication to the Governmentwide Point of Entry (GPE) (which currently is designated as SAM.gov). The description of contract opportunities may also appear simpler and more straightforward.
The FAR Part 5 revisions also change the policy reasons for contract publication by removing the focus on veteran-owned, service-disabled veteran-owned, HUBZone, women-owned, and small disadvanged business concerns. Instead the policy focus is simply on small business. This is somewhat surprising given this Administration's earlier communications (for example, by Executive Order) that preferences for veterans would remain.
The FAR Part 5 revisions use newly titled and organized subparts that align with the acquisition lifecycle (5.1 Presolicitation, 5.2 Solicitation, and 5.3 Award).
The FAR Part 5 revisions also use tables rather than dense paragraphs to present complex information. Those tables include: * Table 5-1, which identifies solicitation language required for trade agreements. * Table 5-2 which clarifies posting timeframes for presolicitation notice. * Table 5-3 which identifies timeframes for receipt of quotations or offers. * Table 5-4 which clarifies posting timeframes for award notices.
Sheppard Mullin Comments / Observations
FAR Part 26: Other Socioeconomic Programs
Removes the procedures for challenging representations under the Indian Incentive Program with the intent to incorporate them into the FAR Companion Guide
Removes information pertaining to the Disaster Response Registry with the intent to incorporate the information into the FAR Companion Guide
Removes procedures related to the Food Donation Program with the intent to information them into the FAR Companion Guide
Removes Subpart 26.3 Historically Black Colleges and Universities and Minority Institutions, Section 26.303, Data collection and reporting requirements, because such information is already captured through the Federal Procurement Data System
Removes Subpart 26.6, Encouraging Contractor Policies to Ban Text Messaging While Driving Section 26.601, Purpose, Section 26.602, Applicability, and Section 26.603 Definitions. Clause 52.226-8 retains the definitions.
Summary of Deletions
Retains the following statutory requirements: * Registry of Disaster Response Contractors (6 U.S.C. § 796) * Additional Compensation to Contractors of Federal Agency (25 U.S.C. § 1544) * Drug Free Workplace (41 U.S.C. §§ 8101 et seq) * Promoting Federal Food Donation (42 U.S.C. § 1792) * Use of Local Firms and Individuals (42 U.S.C. § 5150) * Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 100-707 (42 U.S.C. §§ 5121 et seq)) * Amendments to Special Emergency Procurement Authority (Pub. L. 114-328 Section 816) * Special Emergency Procurement Authority to Facilitate the Defense Against or Recovery from a Cyber Attack (Pub. L. 114-328 Section 1641) * Promoting Procurement with Historically Black Colleges and Universities, and Minority Institutions (EO 12928)
Also retains: * The 5% incentive payment for utilizing Indian organizations and Indian-owned economic enterprises as subcontractors remains allowable at 26.102-1. * The statutory preference for awarding contracts to local firms in the aftermath of a major disaster or emergency remains at 26.202-1. * The policy to encourage the participation of Historically Black Colleges and Universities and Minority Institutions in federal procurement continues at 26.301-1. * The policy encouraging contractors to donate excess wholesome food remains the same at 26.404-1.
Summary of Retentions
All of the original subparts remain in this Part, but they have been reorganized follow the acquisition process (i.e., steps to take before solicitation vs. after award). As such, the changes to this Part largely include removal of redunant sections and/or information that can be found in the related contract clauses. As we've seen in other Parts, the changes retain the substantive statutory requirements of this Part, and signal a plan to include in the forthcoming FAR Companion Guide some of the procedures previously found in this Part.
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 5: Publicizing Contract Actions
Deletes the word "synopsis" throughout.
Deletes policy in 5.002 of publishing contract action to assist veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in obtaining contacts.
Moves definition of Govermentwide point of entry from 5.003 to Part 2 because the definition applies to multiple FAR parts.
Deletes methods of dissemination such as "periodic handouts," "assisting local trade associations," and "brief announcements" in papers and trade publications to make the governmentwide point of entry (GPE) (as well as paid advertisement) the primary method of dissemination.
Deletes most "special sitiations" and moves them to 5.103 Special Notices, retaining notices for Federal Funded Research and Development Centers (FFRDC), and consolidation, bundling, and substantial bundling.
Deletes (and consolidates) content requirements for each notice (e.g., proposed solicitation number, place of contract performance, destination information, delivery schedule, duration of contract period, etc.).
Deletes local announcement option for agencies.
Deletes Subpart 5.4 (Release of Information), which was largely duplicative of the general posting guidance throughout the part.
Deletes Subpart 5.6 (Publicizing Multi-Agency Use Contracts), which required agencies to enter information into a specific governmentwide database of contracts was deleted.
Deletes Subpart 5.7 (Publicizing Requirements Under the American Recovery and Reinvestment Act of 2009 (ARRA)) because ARRA is no longer in effect.
Summary of Deletions
Retains Statutory Requirements including: (1) Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings (5 U.S.C. § 552) (2) Procurement Notice (15 U.S.C. § 637(e) and 41 U.S.C. § 1708) (3) Notices of Subcontracting Opportunities (15 U.S.C. § 637(k)) (4) Availability of Information (15 U.S.C. § 637b) (5) Awards or contracts (15 U.S.C. § 644) (6) Advertisements for Contracts (44 U.S.C. § 3701-3703) (7) Small Business Innovation Development Act of 1982 (Pub. L, 97-219)
Retains all exceptions to publicizing contract actions.
Summary of Retentions
The FAR Part 5 revisions will simplify and how contract opportunities are publicized by consolidating their publication to the Governmentwide Point of Entry (GPE) (which currently is designated as SAM.gov). The description of contract opportunities may also appear simpler and more straightforward.
The FAR Part 5 revisions also change the policy reasons for contract publication by removing the focus on veteran-owned, service-disabled veteran-owned, HUBZone, women-owned, and small disadvanged business concerns. Instead the policy focus is simply on small business. This is somewhat surprising given this Administration's earlier communications (for example, by Executive Order) that preferences for veterans would remain.
The FAR Part 5 revisions use newly titled and organized subparts that align with the acquisition lifecycle (5.1 Presolicitation, 5.2 Solicitation, and 5.3 Award).
The FAR Part 5 revisions also use tables rather than dense paragraphs to present complex information. Those tables include: * Table 5-1, which identifies solicitation language required for trade agreements. * Table 5-2 which clarifies posting timeframes for presolicitation notice. * Table 5-3 which identifies timeframes for receipt of quotations or offers. * Table 5-4 which clarifies posting timeframes for award notices.
Sheppard Mullin Comments / Observations
FAR Part 4: Administrative and Information Matters
Deletes recommended content and best practices for contract files (Subpart 4.1) and moves them to the forthcoming FAR Companion Guide.
Moves Subparts 4.4, 4.19, 4.20, 4.21, and 4.23 to RFO FAR Part 40 because they are all security-related.
Deletes Subpart 4.2, Contract Distribution, because it prescribed procedures for distributing paper copies of contracts, which is now obsolete due to electronic systems.
Summary of Deletions
Retains Statutory Requirements including: (1) Information Concerning Transactions With Other Persons (26 U.S.C. §§ 6041 et seq) (2) Identifying Numbers (26 U.S.C. § 6109) (3) Using Procurement Contracts (31 U.S.C. § 6303) (4) Taxpayer Identifying Number (31 U.S.C. § 7701) (5) Functions, Federal Procurement Data System (41 U.S.C. § 1122) (6) Record Requirements (41 U.S.C. § 1712) (7) Use of Electronic Commerce in Federal Procurement (41 U.S.C. § 2301) (8) Examination of Facilities and Records of Contractor (41 U.S.C. § 4706) (9) Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282) (10) Digital Accountability and Transparency Act of 2014 (Pub. L. 113-101)
Retains Subpart 4.0, Scope, but revises it to remove reference to security-related provisions.
Retains Subpart 4.7 on Contact Records Retention.
Subparts 4.4-4.23 are retained, streamlined, and/or moved throughout the new subpart structure.
Summary of Retentions
4.202, retaining the policy to promote consistent line item structure across awards. (3) Subpart 4.1, Contracting Officer’s and Contractor’s Signature is moved to 4.206 & 4.207. A key modernization is explicitly allowing digital signatures for both Government and contractor personnel using a PIV or CAC certificate. (4) Subparts 4.11 and 4.12, System for Award Mangement, are consolidated and moved to 4.203, which streamlines exceptions to SAM registration and clarifies procedures for verifying active registration. Moves the list of 33 representations and certifications from 4.1202 into 52.204-7 as the authoritative source, with procedural details now in the provision. (5) Subpart 4.9 is consolidated and simplifed to 4.204, Taxpayer Identification Information (TIN) by directly linking collection of the contractor’s TIN to either SAM registration via 52.204-7 or, if not required to register, to 52.204-90 (Offeror Identification). (6) Supart 4.13 moves and condenses pre-award PIV policies to 4.205, Personal Identity Verification (PIV). Post-award PIV card return requirement relocated to the new post-award subpart at 4.302. (7) Multiple subparts regarding prescription hub for all solicitation- and award-phase provisions and clauses (e.g., 4.1105, 4.1303, 4.1403) are consolidated to subpart 4.208, Solicitation Provisions and Contract Clauses.
The FAR Part 4 revision updates Subpart 4.3 to cover "Post-award," which combines section into a more coherent process-oriented grouping of provisions. (1) Subpart 4.6 is consolidated to Subpart 4.301, Contract Reporting, which governs reporting in the Federal Procurement Data System (FPDS). (2) Subpart 4.13 is moved to Subpart 4.302, Return of PIV Cards. (3) Subpart 4.17 is updated and moved to Subpart 4.303, Service Contracts Inventory, updating reporting requirements to maintain transparency of service contract usage. However, reporting is no longer required for commercial services contracts. (4) Subpart 4.18 and content from 4.1102(d) are moved to 4.304, System for Award Management & 4.305, Contractor Identification, to cover separate post-award SAM and identification requirements from pre-award. (5) Subpart 4.14 is moved to Subpart 4.306, Executive Compensation, to cover post-award reporting requirement for executive compensation and first-tier subcontract awards. However, reporting is no longer required for commercial services contracts. (6) Sections 4.203 and 4.902 are consolidated into 4.307, Payment Office to cover requirements for providing payment-related information (TIN, UEI, EFT). (7) Sections 4.804 and 4.805 are reorganized and moved to 4.308, Contract Closeout & 4.309, Storage, Handling, and Contract Files, to cover closeout and file-handling requirements to align with the post-award phase.
Sheppard Mullin Comments / Observations
FAR Part 8: Requied Sources of Supplies and Services
Subpart 8.4 (ordering procedures under the Federal Supply Schedule) have been moved into the General Services Acquisition Manual (GSAM/R).
Removes subpart 8.1 (Excess Personal Property) to the Federal Management Regulation (41 CFR 102-36), to avoid outdated information.
Deletes section 8.001 (General), which contained a general requirement for IT acquisitions to comply with captial planning rules.
Deletes the following clauses associated with Leasing of Motor Vehicles: 52.208-4, Vehicle Lease Payments 52.208-5, Condition of Leased Vehicles 52.208-6, Marking of Leased Vehicles 52.208-7, Tagging of Leased Vehicles
Summary of Deletions
Retains statutory requirements including: (1) Use of Procedures Other than Competitive Procedures (10 U.S.C. § 3204) (2) Products of Federal Prison Industries (10 U.S.C. § 3905) (3) Purchase of Prison-Made Products by Federal Departments (18 U.S.C. § 4124) (4) Services for Executive Agencies (40 U.S.C. § 501) (5)Architectural and Engineering Services (40 U.S.C. § 1103 Note) (6) Competitive Procedures (41 U.S.C. § 152(3)) (7) Requirements for Purchase of Property and Services Pursuant to Multiple Award Contracts (41 U.S.C. § 3302) (8) Use of Noncompetitive Procedures, (41 U.S.C. § 3304) (9) Committee for Purchase from People Who are Blind or Severely Disabled (41 U.S.C. §§ 8501 et seq) (10) Production and Procurement of Printing and Binding (44 U.S.C. §§ 501 et seq) (11) Services Acquisition Reform Act of 2003 (Pub. L. 108-136)
The substance of the Scope in 8.000 has been retained.
Definitions are consolidated in section 8.001.
The priorities and requirements for use of mandatory sources are moved from 8.002 to new sections 8.102 and 8.103.
Section 8.104 Use of Existing Contracts replaces section 8.004 Use of Other Sources.
Summary of Retentions
FAR Part 8 has been updated significantly. At a high level, it has been reorganized and restructured to follow the logical flow of the acquisition lifecycle (as other Parts have). It has also been revised to attempt to simplify the mandatory source guidance and to make clear that Governmentwide Best-In-Class (BIC) contracts are mandatory. Specifically, BIC contracts or BPAs are now required to be used when a commercial product or commercial service meets an agency’s need, unless approved by the Head of the Contracting Activity (HCA). If a BIC is not suitable, agencies should consider use of an existing governmentwide contract, BPA, or shared service. The revisions also retain focus on the importance of the AbilityOne Program.
The ordering procedures have been moved to the GSAM/R (part 538) in an attempt to enhance the speed of acquistion. A few key highlights of the updated ordering procedures for FSS include: (1) Quotations are not offers (RFQ procedures are not considered "source selection" and as such, there is no requirement for evaluation plans, quotation scoring, or establishing a competitive range before communicating with quoters or soliciting revised quotes) (2) Flexibilities with FSS BPAs (single-award BPA restrictions have been lifed and ordering procedures for multiple-award BPAs offer greater discretion) (3) No additional contractor responsibility determination (Agencies can rely on the contractor responsibility determined by GSA at the FSS contract level) (4) Brief explanation, not debriefing (The timeline for requesting a brief explanation has been clarified to three (3) days, aligning with general debriefing timelines) (5) Increased contractor access to Government supply sources (whereas contractor use of Government supply sources - previously under FAR Part 38) was largely restrcted to cost-reimbursement type contracts, agencies may now authorize contractors to use Government supply sources (including non-mandatory sources like FSS) to obtain necessary supplies/services when it is determined in the Government's interest.
Finally, the revisions consolidate certain FAR Parts - FAR Part 38 (Federal Supply Schedule Contracting) moved to GSAM/R 538 in its entirety, and FAR Part 51 (Use of Government Sources by Contractors) is now integrated in its entirety to FAR Part 8.
Sheppard Mullin Comments / Observations
FAR Part 12: Acquisition of Commercial Products and Commercial Services
Removes content that is outdated, redundant, or otherwise unnecessary.
Notably, removes two foundational "master" clauses: * 52.212-3, Offeror Representations and Certifications - Commercial Products and Commercial Services * 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders - Commercial Products and Commercial Services
46 clauses and provisions from other FAR parts are removed as they are no longer required for commercial contracts. This reflects an approximate 30% reduction in the number of clauses and provisions that are applicable to commercial contracts.
Summary of Deletions
Retains the following: * Procurement of Commercial Products and Commercial Services (10 U.S.C. §§ 3451 et seq) * Preference for Commercial Products and Commercial Services (10 U.S.C. § 3453 and 41 U.S.C. § 3307) * Rights in Technical Data (10 U.S.C. § 3771 and 41 U.S.C. § 2302) * Payments for Commercial Products and Commercial Services (10 U.S.C. § 3805 and 41 U.S.C. § 4505) * Commercial Product (41 U.S.C. § 103) * Commercial Service (41 U.S.C. § 103a) * Commercially Available Off-the-Shelf Item (41 U.S.C. § 104) * Procurement Notice (41 U.S.C. § 1708) * Federal Acquisition Streamlining Act of 1994 (FASA) (Pub. L. 103-355) * Defense Commercial Pricing Management Improvement (Pub. L. 105-261 Sec 803)
Retains the following clauses: * 52.212-1, Instructions to Offerors - Commercial Products and Commercial Services * 52.212-2, Evaluation - Commercial Products and Commercial Services * 52.212-4, Terms and Conditions - Commercial Products and Commercial Services
Summary of Retentions
There are no major substantive changes to Part 12. Most of the changes are made to streamline the requirements, but the statutory requirements for procurements of commercial products and commercial services remain. Simplified procedures for commercial acquisitions have been moved from Part 13 to Part 12, which includes simplified procedures for acquisitions up to $7.5 million (or $15 million to support responses to emergencies or major disasters).
Part 12 retains the preference to use commercial products or commercial services when the agency determines they are available to meet the agency's needs. Part 12 is also revised to clarify if commercial products or commercial services are available from any priority source identified in Part 8, including existing contracts awarded for Governmentwide use (e.g., Federal Suppy Schedules and Governmentwide acquisition contracts) agencies should procure the commercial prodcuts and commercial services from that source.
Part 12 also retains the preference to utilize fixed-prive contracts to the maximum extent practicable.
At first glance, the removal of 52.212-3 and 52.212-5 appear to be substantive, but Part 12 now includes clause matrices and instructions contracting officers to select the applicable clauses and include them in the solicitations and contracts, which is functionally equivalent to the non-removed clauses.
Sheppard Mullin Comments / Observations
FAR Part 38: Federal Supply Schedule Contracting
This Part has been deleted in its entirety, with statutory and essential text moved to FAR Part 8 (which then directs the reader to GSAM/R 538).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
FAR Part 38 (Federal Supply Schedule Contracting) has been moved to GSAM/R 538 in its entirety.
Sheppard Mullin Comments / Observations
FAR Part 40: Information Security and Supply Chain Security
Deletes prohibition on procurement and operation of UAV manufactured by American Security Drone Act covered foreign entities.
Deletes exemptions for DHS, DoD, DoS, DOJ, DOT, NTSB, and NOAA.
Deletes exceptions for wildlife management operations, search and rescue operations, intelligence activities, tribal law enforcement, and emergency service agencies.
Deletes security requirements for classified information.
Summary of Deletions
Retains statutory requirements: (1) Federal Acquisition Supply Chain Security Act (FASCA) (41 U.S.C. §§ 1321 et seq) (2) Authorities Related to Mitigating Supply Chain Risks in the Procurement of Covered Articles (41 U.S.C. § 4713) (3) Federal Information Policy (44 U.S.C. §§ 3501 et seq) (4) Prohibition on Use of Products and Services Developed or Provided by Kaspersky Lab (Pub. L. 115-91 Section 1634) (5) Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment (Pub. L. 115-232 Section 889) (6) Requirements to Identify and Control the Export of Emerging and Foundational Technologies (Pub. L. 115-232 Section 1758) (7) Strengthening and Enhancing Cyber-capabilities by Utilizing Risk Exposure Technology Act (SECURE Technology Act) (Pub. L. 115-390) (8) Prohibition on the Use of TikTok (Pub. L. 117-328 Div R Section 102) (9) Prohibition on Procurement of Covered Unmanned Aircraft Systems from Covered Foreign Entities (Pub. L. 118-31 Section 1823)
Summary of Retentions
FAR Part 40 consolidates are security requirements into one part of the FAR. FAR Part 40 is organized into three key subparts: (1) Subpart 40.1 - Processing Supply Chain Risk Information (2) Subpart 40.2 - Security Prohibitions and Exclusions (3) Subpart 40.3 - Safeguarding Information
Sheppard Mullin Comments / Observations
FAR Part 51: Use of Government Sources by Contractors
This Part has been deleted in its entirety, with statutory and essential text moved to FAR Part 8.
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
FAR Part 51 (Use of Government Sources by Contractors) is now integrated in its entirety to FAR Part 8.
Sheppard Mullin Comments / Observations
FAR Part 5: Publicizing Contract Actions
Deletes the word "synopsis" throughout.
Deletes policy in 5.002 of publishing contract action to assist veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in obtaining contacts.
Moves definition of Govermentwide point of entry from 5.003 to Part 2 because the definition applies to multiple FAR parts.
Deletes methods of dissemination such as "periodic handouts," "assisting local trade associations," and "brief announcements" in papers and trade publications to make the governmentwide point of entry (GPE) (as well as paid advertisement) the primary method of dissemination.
Deletes most "special sitiations" and moves them to 5.103 Special Notices, retaining notices for Federal Funded Research and Development Centers (FFRDC), and consolidation, bundling, and substantial bundling.
Deletes (and consolidates) content requirements for each notice (e.g., proposed solicitation number, place of contract performance, destination information, delivery schedule, duration of contract period, etc.).
Deletes local announcement option for agencies.
Deletes Subpart 5.4 (Release of Information), which was largely duplicative of the general posting guidance throughout the part.
Deletes Subpart 5.6 (Publicizing Multi-Agency Use Contracts), which required agencies to enter information into a specific governmentwide database of contracts was deleted.
Deletes Subpart 5.7 (Publicizing Requirements Under the American Recovery and Reinvestment Act of 2009 (ARRA)) because ARRA is no longer in effect.
Summary of Deletions
Retains Statutory Requirements including: (1) Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings (5 U.S.C. § 552) (2) Procurement Notice (15 U.S.C. § 637(e) and 41 U.S.C. § 1708) (3) Notices of Subcontracting Opportunities (15 U.S.C. § 637(k)) (4) Availability of Information (15 U.S.C. § 637b) (5) Awards or contracts (15 U.S.C. § 644) (6) Advertisements for Contracts (44 U.S.C. § 3701-3703) (7) Small Business Innovation Development Act of 1982 (Pub. L, 97-219)
Retains all exceptions to publicizing contract actions.
Summary of Retentions
The FAR Part 5 revisions will simplify and how contract opportunities are publicized by consolidating their publication to the Governmentwide Point of Entry (GPE) (which currently is designated as SAM.gov). The description of contract opportunities may also appear simpler and more straightforward.
The FAR Part 5 revisions also change the policy reasons for contract publication by removing the focus on veteran-owned, service-disabled veteran-owned, HUBZone, women-owned, and small disadvanged business concerns. Instead the policy focus is simply on small business. This is somewhat surprising given this Administration's earlier communications (for example, by Executive Order) that preferences for veterans would remain.
The FAR Part 5 revisions use newly titled and organized subparts that align with the acquisition lifecycle (5.1 Presolicitation, 5.2 Solicitation, and 5.3 Award).
The FAR Part 5 revisions also use tables rather than dense paragraphs to present complex information. Those tables include: * Table 5-1, which identifies solicitation language required for trade agreements. * Table 5-2 which clarifies posting timeframes for presolicitation notice. * Table 5-3 which identifies timeframes for receipt of quotations or offers. * Table 5-4 which clarifies posting timeframes for award notices.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 18: Emergency Acquisitions
Removes Subpart 18.1, Available Acquisition Flexibilities, which provides a list of generally available FAR flexibilities that contracting officers may use to support emergencies.
These flexibilities are available and can be used without a formal emergency declaration or contingency operation designation.
Removal from the FAR is based on the rationale that this list is available in non-regulatory sources, for example on Acquisition.gov (https://acquisition.gov/emergency-procurement) in Practitioner Albums, FAR Companion Guide and/or Category Buying Guide.
Summary of Deletions
Retains Subpart 18.2, Emergency Acquisition Flexibilities, (now Subpart 18.001), which provides a list of FAR flexibilities available only during certain emergencies: (1) contingency operations, (2) defending or recovering from national security events, (3) supporting State Department or USAID requests during international disasters, (4) supporting major disaster responses, or (5) humanitarian/ peacekeeping missions.
Summary of Retentions
The circumstances triggering the FAR's emergency acquisition provisions — as well as the increased thresholds, commercial procecures, and award preferences that those provisions provide — remain unchanged. This should come as no surprise as such procedures are almost entirely mandated by statute.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations