FAC 2023-06 Amends FAR 8(a) Program Guidance, Whistleblower Protections, & Federal Supply Chain
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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DoD Reduction In Force (RIF) Guidance
Just when you thought it couldn't get any more confusing, some agencies also have their own RIF guidance separate from the OPM guidance that is what we've heard the most about. DoD is one of those agencies.
A copy of the current DoD RIF guidance, DoD Instruction 1400.25, Volume 351, is found at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_V351.PDF?ver=DgEFMmb9dLDV7OV-PLb7VQ%3D%3D
This guide establishes policy, assigns responsibilities, and prescribes procedures for reduction in force (RIF) actions taken under Part 351 of Title 5, Code of Federal Regulations (CFR), as modified by Section 1597(f) of Title 10, United States Code (U.S.C.).
This guidance does not, in full, apply to DoD employees covered by an alternative personnel system (e.g., the Acquisition Demonstration; Science and Technology Reinvention Laboratories; and the Defense Civilian Intelligence Personnel System). Those systems will develop their own policies and procedures for RIF that comply with the law, as approved by the Under Secretary of Defense for Personnel and Readiness (USD(P&R)). This guide also does not apply to Senior Executive Service (SES) positions.
The policy statement in 1.2 states that, "For any RIF of civilians in the competitive and excepted services in the DoD, the determination as to which employees will be separated from employment must be made primarily on the basis of performance."
In accordance with 10 U.S.C. 1597, DoD must report to Congress 45 days prior to implementing an approved RIF.
DoD will comply with 5 CFR 351.402 and 351.403 when establishing competitive areas and competitive levels, respectively. Competitive service employees and excepted service employees are placed on separate retention registers established in accordance with 5 CFR 351.404 and 351.405.
For purposes of DoD RIF, employees are placed in one of two categories:
- employees with a period of assessed performance of less than 12 months, and
- employees with a period of assessed performance of 12 months or more.
An employee’s period of assessed performance for purposes of RIF will be the sum of the months of assessed performance associated with the employee’s performance appraisals within the most recent 4-year period preceding the cutoff date established for the RIF. However, periods of time in a rating cycle for which an employee’s performance was not assessed are not included in the employee’s period of assessed performance.
For example, if an employee receives a rating after serving 10 months of the 12-month cycle, the employee’s period of assessed performance is 10 months for that rating cycle.
For employees absent for military service, periods of time during the rating period may be treated as periods of assessed performance if they meet the requirements of Paragraph 3.3.c.(1) under Paragraph 3.3.b.(2) of the DoD guide.
Retention Factors
Competing employees are listed on a retention register based on--
- Rating of Record. See Section 3.3.c. for rating of record examples based on cutoff dates, military service, time frames for ratings to be used, and ratings from a system other and the Defense Performance Management Program (DPMAP).
- Tenure Group. This follows the definitions found in 5 CFR 351.501(b) for competitive service and 5 CFR 351.502(b) for excepted service.
- Average Score. In general, an employee’s average score for one performance appraisal is derived by dividing the sum of the employee’s performance element ratings by the number of performance elements. The average of the average scores drawn from the two most recent performance appraisals received by the employee, except when the performance appraisal reflects an “unacceptable” rating of record will be reviewed. When the most recent performance appraisal reflects an “unacceptable” rating of record, only that performance appraisal will be considered for purposes of the employee’s average score.
- Veterans’ Preference. This follows the procedures in 5 CFR 351.501(c) with three veterans' preference subgroups:
- AD - 30% or more disabled veteran
- A - eligible for veterans' preference for the purpose of RIF but not for placement in the AD category (i.e., less than 30% disabled veteran determination)
- B - not eligible for veterans' preference for purpose of RIF
- DoD Service Computation Date-Reduction in Force (DoD SCD-RIF). Follows rules of credible service as found in 5 CFR 351.503(a) and (b). DoD does not follow 5 CFR 351.504, which grants additional retention service credit in RIF based on an employee's ratings of record.
Rounds in Reduction in Force (RIF)
Two rounds of RIF will be conducted. Round One, Release from Competitive Level, and Round Two, Assignment Rights, are explained in the document in detail related to types of appointments, order of release from the competitive level, and exceptions that may apply. They are found in sections 3.5 and 3.6, respectively.
Displacement may occur during Round Two. Displacement is the assignment of an employee to a continuing position in a different competitive level that is held by another employee with a lower retention standing (i.e., “bumping” another employee). Displacement may be at the same grade or at a grade up to three grades or grade intervals (or equivalent) below the position of the released employee.
Right of Only One Offer
Employees released from a retention register are only eligible for one offer of assignment (similar to OPM rules), with some exceptions. If the employee accepts and offer, rejects an offer, or fails to reply to an offer in a timely manner, they are not entitled to further offers. However, the DoD Component must make a better offer of assignment to a released employee (i.e., to a position with a higher representative rate) if a position becomes available before, or on, the RIF effective date.
Sample retention registers and scenarios are found in the guide in Appendix 3A. Employees have the right to request a review of retention registers and have representation also be allowed to review the registers, as requested by the employee.
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DISCLAIMER: Info is provided for awareness. I am NOT an HR professional but an HR enthusiast having started in HR and being a Federal supervisor and hiring manager. Before taking any action that changes your status, please seek the advice of an attorney knowledgeable in Federal employment law.
Voluntary Separation Incentive Payment (VSIP)
Voluntary Separation Incentive Payment (VSIP) allows agencies that are downsizing or restructuring to offer employees lump-sum payments up to $25,000 as an incentive to voluntarily separate. The amount received is reduced by Fed and state taxes, social security, and Medicare, as applicable.
The full guide on the program is found at the OPM website https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-separation-incentive-payments/guide.pdf
Eligibility for VSIP requires an employee be employed by an Executive Branch agency for at least three (3) continous years without a time limit and not be--
▶️ a reemployed annuitant;
▶️ otherwise be eligible for disability retirement;
▶️ recipient of a notice of involuntary separation for misconduct or poor performance;
▶️ recipient of any previous VSIP from the Federal Government;
▶️ on a service agreement for which--
➡️ a student loan repayment benefit was paid, or is to be paid, during the 36-months preceding the date of separation;
➡️ a recruitment or relocation incentive was paid, or is to be paid, during the 24-months preceding the date of separation; and
➡️ a retention incentive was paid, or is to be paid, during the 12-months preceding the date of separation.
If you receive a VSIP and later come back to Federal Service within 5 years of the date of the separation on which the VSIP is based, you must repay the entire amount before your first day of reemployment. This includes working under a personal services contract or other direct contract with the Government.
The top 10 questions related to VSIP can be found at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-early-retirement-authority/top-10-frequently-asked-questions-about-vera-and-vsip.pdf
OPM's page on VSIP is at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-separation-incentive-payments/
DISCLAIMER: Information is provided for situational awareness. I am not an HR professional but an HR enthusiast having been a Chief of Contracting and Federal supervisor. Please consult with an attorney knowledgeable in Federal employment law before making any decisions that impact your Federal employment status.
Separate Your Government and Personal Communications
Feds...if you haven't separated your Government communications from your personal communications yet, now is the time to do it.
There has never been an expectation of privacy while using Government Furnished Equipment (GFE). But GFE has been allowed to be used for quick personal calls or emails to check in with children or with family members during the work day. And over time, you may have blended your Government and personal communications more than you realize.
Now, however, it appears your every digital and possibly physical move may be tracked, recorded, and stored. Software and hardware that tracks employee activity, digital behavior, and even movements within Government office space should be expected. Tracking software has (allegedly) already been pushed at some agencies or is (allegedly) expected to be pushed soon.
Computer monitoring programs are expected to track:
🔸️Key stroke loggers to record what is typed or edited
🔸️Analyze chats for flagged words
🔸️Network activity, file access, login, and online behaviors
🔸️Application usage and websites visited and what was searched
Expect software applications to be employed that will analyze this information and generate behavior risk scores by employee. Also expect that all online meetings and chats will be recorded, transcribed, and stored / archived for review without the choice to turn those features off.
Several employees at one prominent agency are reporting their GFE laptop cameras and possibly mics are being turned on during their work day without their consent and outside of active video meetings.
Highly suggest --
▶️ using a privacy cover for your webcam.
▶️ monitoring the activation light.
▶️ taking all personal calls away from your work space on a personal device.
▶️ taking other precautions to protect sensitive conversations, business and personal such as only using a personal device.
