Federal Acquisition Circular (FAC) 2023-06 was published 10/5/2023. In it are two final rules and one interim rule. They are: (links to the Federal Register in each title)
Whistleblower Protection for Contractor Employees (effective 11/6/2023 – FAR Case 2017-005)
8(a) Program (effective 11/6/2023 – FAR Case 2021-012)
Implementation of Federal Acquisition Supply Chain Security Act (FASCSA) Orders (effective 12/4/2023 – FAR Case 2020-011)
Let’s break it all down…
Final Rule: Whistleblower Protection for Contractor Employees (effective 11/6/2023 – FAR Case 2017-005). This final FAR rule implements an act to enhance whistleblower protection for contractor employees, including employees of subcontractors (Pub. L. 114–261), enacted December 14, 2016. The rule makes permanent the protection for disclosure of certain information, and by applying the requirement for contractors and subcontractors to inform their employees of the whistleblower protections through the inclusion of FAR clause 52.203–17 in acquisitions at or below the Simplified Acquisition Threshold (SAT). FAR is updated to:
Amend FAR 3.901 to add a definition for “Abuse of authority”, remove the definition of “Authorized official of an agency”, and revise the definition of “Inspector General”.
Add a new FAR Subpart 3.902 Classified Information which states, “41 U.S.C. 4712 does not provide any right to disclose classified information not otherwise provided by law.”
Revises FAR Subpart 3.904 to add procedures for filing and investigating complaints.
Revises FAR Subpart 3.905 to add remedies and enforcement of orders.
Clarifies that the prohibition on reimbursement for legal fees accrued in defense against reprisal claims in FAR Subpart 31.205–47 (Costs related to legal and other proceedings) applies to subcontractors, as well as contractors.
NOTE: DoD, NASA, and the Coast Guard have a different whistleblower program for contractor employees, as do elements of the intelligence community.
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Final Rule: 8(a) Program (effective 11/6/2023 – FAR Case 2021-012). This final rule amends FAR to implement regulatory changes made by SBA in a final rule published on 10/16/2020 (85 FR 66146) with only minor changes from the proposed rule. It amends FAR Subparts 19.6 and 19.8 to:
clarify that the certificate of competency program is not applicable to 8(a) sole-source awards.
require that Blanket Purchase Agreements issued under FAR Part 13 (Simplified Acquisition Procedures), including orders, must be offered to and accepted by SBA.
clarify of 8(a) eligibility criteria for two-step design-build competitive procurements and 8(a) sole-source awards.
add SBA's ability to appeal a CO’s/KO’s decisions that an acquisition previously procured under the 8(a) program is a new requirement not subject to the release requirements at 13 CFR 124.504(d).
add notification requirements when the CO/KO decides a requirement previously procured under the 8(a) program is not a follow-on and intends to procure using another contracting vehicle that is not available to 8(a) participants.
add notification requirements when a mandatory source will be used for a follow-on requirement to an 8(a) contract.
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Interim Rule: Implementation of Federal Acquisition Supply Chain Security Act (FASCSA) Orders (effective 12/4/2023 – FAR Case 2020-011). This interim rule implements Section 202 of Title II of the SECURE Technology Act (aka the FASCSA of 2018) and a Federal Acquisition Security Council (FASC) final rule (effective 9/27/2021). The interim rule is applicable to Indefinite Delivery Contracts only and is applicable to acquisitions valued at or below the Simplified Acquisition Threshold (SAT) including micro-purchases, acquisitions of commercial products (including Commercial Off-The-Shelf (COTS)), and commercial services.
The interim rule adds a new FAR Subpart 4.23 Federal Acquisition Security Council –
Provides the FASC rule definitions.
Requires the Contracting Officer (CO/KO) to determine if there is a reasonable basis of substantial supply chain risk for a source or covered article.
Provides implementation guidance for FASCA orders when they are issued by Secretary of Homeland Security (DHS), Secretary of Defense (DoD), or the Director of National Intelligence (DNI).
When a covered article or source is subject to a Governmentwide FASCA order, directs agencies responsible for Federal Supply Schedules (FSS, also known as GSA Schedules), Governmentwide Acquisition Contracts (GWACs), and Multiple-Award Contracts (MACs) to remove the covered articles or sources from such contracts.
Identifies procedures for an agency to submit a waiver request.
The interim rule prescribes a new provision FAR 52.204-29 Federal Acquisition Supply Chain Security Act Orders-Representation and Disclosures that will be added to solicitations issued after the effective date. The provision prohibits contractors from providing any covered article, or any products or services produced or provided by a source, AND includes contractor use of covered articles or sources, if the covered article or the source is subject to an applicable FASCSA order identified in clause FAR 52.204–30 (see below).
By submitting an offer, an offeror is representing that it has conducted an inquiry and is not providing any covered article, or any products or services subject to an applicable FASCSA order identified in the solicitation at FAR 52.204–30(b)(1).
If an offeror cannot represent compliance with the prohibition, then the offeror must so disclose and provide the info required in the provision. This disclosure will be used by the CO/KO to determine whether to seek a waiver or make an award to an offeror that does not require a waiver.
Contractors must search for FASCSA orders in SAM.gov.
To locate the FASCSA orders in SAM, contractors can search by entity information using the search term “FASCSA order” to locate all FASCSA orders or only those that apply to the solicitation.
Details about the FASCSA orders will be in the additional comments field.
FASCSA orders issued after the date of solicitation are not effective unless the solicitation is amended.
In rare cases, a FASCSA order may be identified in the solicitation, and not in SAM.
The interim rule also prescribes two new FAR clauses. Existing Indefinite Delivery Contracts will be modified to include these clauses.
FAR clause 52.204–28 Federal Acquisition Supply Chain Security Act Orders-Federal Supply Schedules, Governmentwide Acquisition Contracts, and Multi-Agency Contracts.
Notifies Contractors that FASCSA orders will be identified in the request for quote or in the notice of intent to place an order in FAR clause 52.204–30 (see below).
Contractors will be required to remove from the basic contract any covered article or any product or service produced or provided by a source subject to a FASCSA order issued collectively by DHS, DoD, and DNI.
FAR clause 52.204–30 Federal Acquisition Supply Chain Security Act Orders-Prohibition.
Prohibits contractors from providing any covered article, or any products or services produced or provided by a source, if the covered article or the source is subject to an applicable FASCSA order identified in paragraph (b) of the clause.
NOTE: In most cases, for solicitations and contracts awarded by DoD, DoD FASCSA orders will apply; and for all other solicitations and contracts, DHS FASCSA orders will apply.
Requires Contractors to:
Review SAM at least once every three months or as advised by the CO/KO,
Provide a report in the event the contractor identifies that a covered article, or product or service produced or provided by a source, that is subject to a FASCSA order, was provided to the Government or used during contract performance, and
Provide a report in the event the contractor is notified of such by a subcontractor at any tier or by any other means.
Requires flow down to subcontractors.
The prohibition also applies to covered articles and sources subject to a FASCA order for micro-purchases. A cross-reference to FAR Subpart 4.23 has been added to FAR Subpart 39.101 to make COs/KOs aware when working on IT procurements.
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