The Trump Administration, through the Office of Federal Procurement Policy, has revealed the next set of revised Federal Acquisition Regulation (FAR) sections as part of the Revolutionary FAR Overhaul (RFO): FAR Parts 18, 39, and 43. All three revisions come with accompanying Practitioner’s Albums.[1]
FAR Part 18: Emergency Acquisitions
The FAR Part 18 Practitioner’s Album highlights the need to remain flexible when addressing emergencies that arise and notes, “[t]he ability to act quickly is especially important to meet urgent emergency needs.”
To that end, FAR Part 18 has undergone extensive revisions. These revisions largely eliminate the procedural guidelines for agencies to follow when making an emergency procurement.
RFO FAR Part 18 retains the preference at FAR 18.203 to award contracts to local organizations if the President has made a declaration of emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. However, the revisions eliminated a preference at FAR 18.202 encouraging contracting officers to procure sustainable products and services in response to emergencies.
The related Practitioner Album links to a cheat sheet of sorts titled “Emergency Procurement List,” which highlights flexibilities from across the FAR that contracting officers may utilize without a formal emergency declaration. The Emergency Procurement List cites the exception to full and open competition for unusual and compelling urgency in Part 6, letter contracts under Part 16, and extraordinary contractual actions available under Public Law 85-804, among others. The Album suggests that procurement officials use “smart accelerators” in making their award decisions, such as reducing the written record of their deliberations and considerations to cut down on decision-making time.
FAR Part 39: Acquisition of Information and Communication Technology
FAR Part 39 has a new name: Acquisition of Information and Communication Technology from its old title of Acquisition of Information Technology. The more inclusive “Information and Communication Technology” (ICT) reflects the scope, which includes information technology, Internet of Things Devices, Emerging Technology, and Operational Technology. OFPP also eliminated FAR 39.105 and FAR 52.239-1, Privacy or Security Safeguards, and advised using instead FAR subpart 4.19 and FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and CUI.
Another notable change is that minimum educational or experience requirements for proposed contractor personnel will now be permitted in ICT solicitations. FAR 39.104 used to prohibit such requirements absent a finding of agency need. In addition, despite the Administration’s focus on consolidating government-wide IT procurements at the General Services Administration, RFO FAR Part 39 maintains that agencies should use modular contracting, “i.e., use one or more contracts to acquire information technology systems in successive, interoperable increments” to acquire major IT systems.
The Practitoner’s Album addresses the changing approach to risk with these deviations – the new focus is on managing, not avoiding, risk.
FAR Part 43: Contract Modifications
FAR Part 43 underwent a reorganization as opposed to a rewrite and remains relatively unchanged. The Practitioner’s Album notes that this approach was taken to “support uniformity across Government” while clarifying “the process for documenting and definitizing change orders.”
Although the content will be recognizable to those familiar with this Part, information may not be where you last saw it, as the Part has a new numbering system. The key features that remain include:
- Requirements for valid obligations of appropriated funds (31 U.S.C. § 1501, Documentary Evidence Requirement for Government Obligations)
- Prohibition against obligations in excess of available funds (31 U.S.C. § 1341, Anti-Deficiency Act)
- Procedures for resolving contract disputes (41 U.S.C. §§ 7101–7109, Contract Disputes Act of 1978)
The Practitioner’s Album also includes a useful tool from the Defense Acquisition University, the Contract Modification Authority Decisions Help Guide, for Contracting Officers to rely upon when confronted with the need for a change or modification to the contract.
Class Deviations
So far, three agencies, the Department of Commerce, General Services Administration, and the Securities and Exchange Commission have adopted class deviations following the FAR Council’s model language for FAR Parts 18, 39, and 43.
Conclusion
With the core features of FAR Part 43 left in place, this tranche of revisions may not alter the everyday conditions for most contractors. However, those responding to emergencies or providing technological solutions to the Federal Government will want to pay close attention to make sure they stay up to date on the new rules and agency-specific class deviations that may be applicable to their contracts and grants.
[1] Part 18 Practitioner’s Album. Part 39 Practitioner’s Album. Part 43 Practitioner’s Album.
[View source.]
