Overview of New Rules

Keith WayeGovernment Contracting

Small Business Administration

Self Representation for SDB’s

• Effective Dec 13 2010• Amends FAR To be consistent with SBA

regulations• Allows subcontractors to provide written

statements to prime contractors representing in good faith their status as an SDB

Text Messaging While Driving

• Effective Aug 4 2011• New clauses added to contracts to encourage

contractors policies to ban texting while driving

Pass-Through Charges

• Effective Jan 12, 2011• Minimizes excessive pass-through charges by

contractors from subcontractors or from tiers of subcontractors

Report Biobased Products

• Proposed Rule• Requires contractors to report the biobased

products purchased under service and construction contracts

Sole source 8(a) Contracts

• Interim Rule – Effective March 2011• J&A is obtained and approved prior to award

of 8(a) Sole Source contract over $20M

Repeal of SB Comp Dem Program

• Final Rule effective Jan 31, 2011• Repeals the Small Business Competitiveness

Demonstration Program

FSS & Multiple award contracts

• Effective May 2011• Orders under FSS and other multiple award

contracts need fair opportunity• Provide notice in FBO of certain orders placed

under multiple award contracts

Protests against task orders

• Effective Date July 2011• Extends the sunset date for protests against

the award of task and delivery orders from May 2011 to Sep 30 2016

• Only effects DOD, NASA and the Coast Guard• Contractors can no longer protest task orders

issued by other agencies

Aldevra decision

• GAO Decision – Oct 11, 2011• Protest on whether VA is required to conduct

market research to determine if the procurements should be set-aside for SDVOSB concerns before using FSS.

Size Standards

• Comment period open until Dec 12, 2011• Proposed size standard in 15 industries in

Sector 51 “Information”• Publishing Industries• Motion Picture and Sound Recording Industries• Broadcasting (Except Internet)• Telecommunications• Data Processing, Hosting and Related Services• Other Information Services

Size Standards

• Comment period open until Dec 12, 2011• Proposed size standard in 37 industries in

Sector 56 “Administrative and Support, Waste Management and Remediation Services”

• Can view proposed rule on Federal Register

Presumption of Loss

• Comment period ends Nov 7 2011• SBA is proposing to amend its program

regulations to implement statutory provisions establishing that there is a presumption of loss equal to the value of the contract or other instrument when a concern willfully seeks and receives an award by misrepresentation.

Presumption of Loss (Cont)

• SBA is proposing to amend its regulations to implement statutory provisions that provide that concerns that fail to update their size or status in the Online Representations and Certifications Application (ORCA) database (or any successor thereto) at least annually shall no longer be identified in the database as small or some other socioeconomic status, until the representation is updated.

Presumption of Loss (cont)

• an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument.

• clarify when size is determined for purposes of entry into the 8(a) Business Development and HUBZone programs.

Nondisplacement of Qualified Workers Under Service Contracts.

• Final Rule – Implementation date pending• when a service contract expires and a follow-

on contract is awarded for the same or similar services at the same location, a successor needs to give the predecessor's service employees preference in hiring.

Subcontracting• Proposed Rule – Comments until Dec 5, 2011• A prime contractor must notify the contracting officer in writing whenever the prime

contractor does not utilize a subcontractor used in preparing its bid or proposal during contract performance.

• Requires a prime contractor to notify a contracting officer in writing whenever the prime contractor reduces payments to a subcontractor or when payments to a subcontractor are 90 days or more past due.

• Clarifies that the contracting officer is responsible for monitoring and evaluating small business subcontracting plan performance