United States: October 2018 Legislative And Regulatory Update

Our October edition of "Government Contracts Legislative and Regulatory Update" offers a summary of the relevant changes that took place during the month of September.

Highlights this month include:

  • FAR Council Issues Final Rule Regarding System for Award Management Registration
  • FAR Council Issues Proposed Rule Regarding Rental Cost Analysis in Equipment Acquisitions
  • FAR Council Issues Proposed Rule Regarding Evaluation Factors for Multiple-Award Contracts 
  • DoD Issues Proposed Rule Regarding Inapplicability of Certain Laws and Regulations to Commercial Items

This update will also be available in Contract Management Magazine, which is published monthly by the National Contract Management Association (NCMA).

Regulations

FAR Council Issues Final Rule Regarding System for Award Management Registration (FAR Case 2015-005)

On September 26, 2018, DoD, GSA, and NASA issued a final rule, without change, updating instructions for registration in the System for Award Management (SAM) and clarifying the timing of registration in the SAM. The proposed rule, issued on May 20, 2016, proposed changes to FAR subpart 4.11, System for Award Management, (specifically, FAR 4.1102, 4.1103), FAR 52.204-7, SAM, and FAR 52.212-1(k), Instructions to Offerors--Commercial Items. In an effort to correct inconsistencies in current FAR language about when registration in SAM is required, the proposed rule made clear that all offerors are required to register in SAM prior to submission of an offer and required contracting officers to use the name and physical address from the contractor's SAM registration for the provided Data Universal Numbering System. The final rule adopts these changes and is made effective on October 26, 2018. (83 Fed. Reg. 48691, Sept. 26, 2018.)

FAR Council Issues Proposed Rule Regarding Rental Cost Analysis in Equipment Acquisitions (FAR Case 2017-017)

On September 5, 2018, DoD, GSA, and NASA issued a proposed rule to clarify the term "lease" in the Federal Acquisition Regulations. The proposed rule would amend the term "lease" as used in FAR subpart 7.4, Equipment Lease or Purchase, to include the "rental" of equipment and to identify some general factors that may vary when leasing or renting equipment. The proposed change clarifies that agencies are required to evaluate comparative costs and other factors when considering whether to lease or rent equipment versus purchase equipment. The proposed rule clarifies that although the term "lease" applies to both the lease and rental of equipment, there are some differences between renting and leasing in many industries, and there is no standard distinction between both renting and leasing that spans across all industries. Thus, agencies should take this into account when evaluating comparative costs. (83 Fed. Reg. 45072, Sept. 5, 2018.)

FAR Council Issues Proposed Rule Regarding Evaluation Factors for Multiple-Award Contracts

On September 24, 2018, DoD, GSA, and NASA issued a proposed rule to implement Section 825 of the National Defense Authorization Act (NDAA) of Fiscal Year (FY) 2017, which amends 10 U.S.C. § 2305(a)(3) to modify the requirement to consider cost or price as an evaluation factor for the award for certain multiple-award task order contracts. The proposed rule would amend FAR Part 13, Simplified Acquisition Procedures, and FAR Part 15, Contracting by Negotiation, to add the exception to requiring price or cost as an evaluation factor in solicitations valued above the simplified acquisition threshold for multiple-award contracts for the same or similar services when the Government intends to award a contract to each and all qualifying offerors. The proposed rule also explains what a qualifying offeror is in terms of the rule and clarifies that the exception shall not apply to solicitations for multiple-award contracts that provide for sole source orders pursuant to section 8(a) of the Small Business Act (15 U.S.C. § 637(a)). FAR Part 16 would be revised to add the exceptions for use of other than full and open competition, listed in FAR 6.302, to the list of exceptions to fair opportunity at FAR 16.505(b)(2). (83 Fed. Reg. 48271, Sept. 24, 2018.)

DoD Issues Proposed Rule Regarding Inapplicability of Certain Laws and Regulations to Commercial Items (DFARS Case 2014-D010)

On August 29, 2018, DoD reopened the public comment period for a proposed rule, issued June 29, 2018, to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 874 of the NDAA FY 2017 which addresses the inapplicability of certain laws and regulations to the acquisition of commercial items, including commercially available off-the-shelf items (COTS). Under the proposed rule, DoD limits the review of the applicability of provisions of law and contract clauses to subcontract for commercial items to those provisions of law and contract clauses enacted after January 1, 2015. Based on this limitation, DoD has identified DFARS and FAR provisions and clauses published as final rules after January 1, 2015, determined whether these provisions and clauses were based on statute or executive order, and reviewed their applicability to commercial item procurements. Additionally, the proposed rule provides that any discretion to flow down clauses that are not based on statute or executive order rests with the Government, not with contractors. Contractors will be prohibited from flowing down FAR or DFARS clauses in commercial items procurements or to commercial item subcontractors, unless flow down is specifically required in the FAR or DFARS. The public comment period on the proposed rule has been extended until October 28, 2018. (83 Fed. Reg. 440104, Aug. 29, 2018.)

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions