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Townsend Bourne
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Anne Perry
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Keith Szeliga
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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