As discussed in our
previous update, the FAR Council has been periodically publishing revisions to the Federal Acquisition Regulation (FAR). These revisions come on the back of the Trump Administration’s executive order “Restoring Common Sense to Federal Procurement.” For more information on what the executive order’s purpose, policy, and goals are, see our earlier post “
Understanding the Overhaul of Federal Procurement Regulations.”
In our previous updates, we covered the FAR Council’s proposed provisions for the following FAR Parts: Parts 1, 10, 11, 18, 34, 39, 43, and 52. The FAR Council recently published proposed revisions for FAR Parts 35, 36, and 50, as well as a proposed final rule on a contractor’s requirements for SAM.gov registration. As mentioned in our last update, typically, changes to the FAR are subject to formal notice-and-comment procedures. However, federal agencies have been working to adopt the FAR Council’s changes as quickly as possible under the Trump administration’s policy objective of streamlining the federal procurement process. Below is a summary of the proposed revisions of which contractors should be aware.
Part 35: Research and Development Contracting
- Removes specific instructions for how contractors should structure and describe their statements of work (SOWs) in Research & Development procurements, creating greater flexibility for contractors to define their own work product.
- Removes the preference for Cost-Reimbursement contracts in Research and Development contracting.
- Provides agencies with greater flexibility in defining their Research and Development objectives.
- Emphasizes that agencies should award contracts to contractors who demonstrate “the best ideas or concepts” and “highest competence in the specific field of science or technology involved.”
Part 36: Construction and Architect-Engineer Contracts
- Removes the recommendation that the contracting officer should provide arrangements to contractors to allow the contractors to inspect project sites before award of a construction contract.
- Removes the specific selection criteria, such as professional qualifications, specific construction experience, ability to accomplish contract work, past performance, and location, for architect-engineer contracts.
- Removes the requirement that solicitations disclose the magnitude of construction projects in terms of “physical characteristics” and “estimated price range.”
- Removes the requirement that the work done on a construction project comes from at least twelve (12) percent of the contractor’s own workforce.
- Retains the requirement that federal agencies must require the use of Project Labor Agreements (PLAs) on construction projects that cost at least $35 million.
Part 50: Extraordinary Contractual Actions and the SAFETY Act
- Emphasizes that a contractor must seek relief under the Disputes clause and FAR Part 33 before seeking relief under this Part.
- Removes suggestions that agencies should communicate with one another to determine whether joint action should be taken when a contract or matter of interest involves multiple agencies.
Aside from these important changes to the aforementioned FAR parts, the FAR Council has also promulgated a rule meant to clarify pre-award registration requirements in SAM.gov. This new rule requires that offerors be registered in the SAM.gov database at the time of offer submission and at contract award, but not during the entirety of the pre-award phase. Contractors should ensure that their SAM.gov profiles are up-to-date and compliant with federal requirements both before submission of an offer and receipt of an award notification.
