Navigating the Revolutionary FAR Overhaul: Recent Updates for Federal Contractors

The RFO mandated by Executive Order 14275 Restoring Common Sense to Federal Procurement continues progress toward the 180-day deadline on October 12. Representing the first major revision in more than 40 years, the RFO consists of two phases:

• Phase I (initial implementation) uses class deviations that allow agencies to immediately implement the revised policies.
• Phase II (formal rulemaking) begins October 1. During this phase, the proposed revisions and class deviations from Phase I will be refined and incorporated into the FAR.

To date, the FAR Council, led by the Office of Federal Procurement Policy (OFPP), has completed rewrites of 36 Parts. Of these, 24 are scheduled to become effective on November 3. Revisions on the remaining 15 Parts are pending.

This article provides an overview of Parts 4, 8, 12, 13, 38 and 41 that were briefed during the latest GSA RFO Industry Webinar. (Parts 38 and 51 were deleted/reserved and consolidated into Part 8.) The changes below are not comprehensive. Vendors should refer to the RFO site for complete information.

FAR Part 4 - Administrative and Information Matters

• Adds definitions for Executive, First-tier subcontract, Total compensation and Generic entity from former Subparts 4.6, 4.14 and 4.17.
• Creates Subpart 4.3 Post Award to consolidate and streamline post-award reporting requirements to better align with the acquisition process. This includes Federal Procurement Data System (FPDS), Personal Identification Verification (PIV) Cards, Service Contract Inventory, Executive Compensation Payment Office, Contract Closeout and Storage Handling and Contract Files.
• Revises the System for Award Management (SAM.gov) registration requirements and reduces provisions and clauses from 13 to 7.
• Adds provision for government and contractors to digitally sign documents
• Relocates security-related Subparts, provisions and clauses to Part 40 – Information Security and Supply Chain Security.
• Removes Section 4.101 Contract Files and includes best practices in the FAR Companion Guide.
• Removed Subpart 4.2 procedures on paper copy distributions.
• Removes 52.204-1, Approval of Contract and 52.204-22, Alternative Line-Item Proposal.

Comments are due by October 5.

FAR Part 8 –Required Sources of Supplies and Services

• Replaces Section 8.104 Use of Existing Contracts with Sections 8.004 Use of Other Sources, establishing mandatory government-wide use of contracts or BPAs for commercial products or services.
• Consolidates definitions under Section 8.001, adding AbilityOne Commission, Procurement List and Related Supplies.
• Restructures the Required Sources of Supplies and Services framework to follow the natural acquisition lifecycle progression.
• Defines categories for products and services and supplies, and clarifies priority order for mandatory use of Ability One Products and Services.
• Moves and streamlined Federal Supply Schedule (FSS) Contracting guidance and procedures from Subpart 8.4, removing 33% of restrictions associated with FSS items:
  • Emphasizes innovation and “best value” without evaluation plans or scoring (Part 15 does not apply to the ordering process)
  • Retains the Statement of Work (SOW) concept, but vendors may see more Statements of Objectives and Performance Work Statements versus the standard SOW.
  • Clarifies Contractor Teaming Arrangements.
  • Organizes procedures by dollar thresholds and eliminates restrictions on single-award BPAs exceeding $100M.
  • Retains contracting office discretion for small business set-asides but requires a minimum of three quotes above the micro-purchase threshold and clarifies Sole Source requirements.
  • Standardizes the process for acquiring items not priced on the FSS contracts.
  • Allows contractors to use government sources for agency requirements for all contract types.
• Creates a new Tier 4 for mandatory use contracts, but none have been designated to date.
• Deletes and reserves Parts 38 and 51; moves Part 38 to the General Service Acquisition Regulation (GSAR) 538.71 and Part 51 – Use of Government Sources by Contractors to Part 8.

Comments are due by October 10.

FAR Part 12 –Acquisition of Commercial Products & Commercial Services

• Removes 40 clauses and provisions (30% reduction), contains stand-alone procedures, reducing the number of clauses that flow down to subcontractors.
• Moves Simplified Acquisition Procedures (SAP) for commercial acquisitions authorized by statute from Part 13 to Part 12.
• Revises Clause 52.212-1 Timely Quote / Offer Submission: Submissions must be received PRIOR to the Award and no longer based on the solicitation deadline. Contracting Officers (COs) have discretion regarding the acceptance of late submissions, provided that the decisions do not delay the acquisition process.
• Allows simplified procedures for commercial items up to $7.5M with expected increases in the number of Requests for Quotes (RFQs).
• Includes acquisition of commercial procedures for construction requirements and emergency and contingency operations.
• Clarifies priority use for Ability One and government-required contracts under Part 8 before employing SAP.
• Consolidates guidance for Pre-solicitation, Solicitation, Evaluation and Award, Post-award and Micro-purchases (Subparts 12.1 - 12.4).
• Merges BPA and unpriced purchase order procedures into the simplified acquisition section, expanding use of Blanket Purchase Agreements (BPAs) and fixed price quotations; maintains the preference for fixed-price commercial contracts.
• Adds new Subpart 12.4 for micro-purchase guidance.
• Adds tables for restricting competition, solicitation provisions and contract clauses.
• Moves Contract Financing guidance to Part 32.
• Transfers Subparts 12.106-12.107 regarding technical data and software licensing from Part 27.
• Consolidates evaluation factors under Subpart 12.203 and solicitation and award procedures under 12.201-12.204.
• Provides an RFO Part 12 clause matrix describing changes to provisions and clauses.
• Moves definitions and requirements for Subcontracts for Commercial Products and Commercial Services from Part 44 to Subpart 44.4; Clause 52.244-6 moves to Part 44.
• Grants CO discretion on evaluating quotations.
• Deletes Clauses 52.212-3 Offeror Representations and Certifications—Commercial Products and Commercial Services and 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services.

Comments are due by October 20.

FAR PART 13 – Simplified Procedures for Non-Commercial Items

• Renames Part 13 to distinguish between Clauses 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services.
• Retains statutory requirements for:
  • Simplified Acquisition Procedures (41 U.S.C. §§ 1901-1905)
  • Simplified Procedures for Small Purchases (41 U.S.C. § 3305 and 10 U.S.C. § 3205)
  • Planning and Solicitation Requirements (41 U.S.C. § 3306 and 10 U.S.C. § 3206).
• Streamlines procedures according to the acquisition lifecycle, including Pre-solicitation, Solicitation, Evaluation and Award, Post-award and Micro-purchases.
• Retains the prohibition on splitting requirements to stay below the Simplified Acquisition Threshold (SAT) and includes an evolving list of laws inapplicable to acquisitions valued at or below the SAT (41 U.S.C. 1905).
• Retains sections on competition, small businesses set-asides, procedures and evaluations, contract clauses, notifications, cancellations and terminations and contractor financing and payments; references applicable Parts 5, 12, 32, 49,
• Moves Clauses 52.213-1, Fast Payment Procedure and 52.213-2, Invoices to FAR part 32 and deletes Clause 52.213-3 Notice to Supplier.

Comments are due by October 18.

Contractor Resources

To help contractors navigate the RFO, GSA provides the following resources:

• Parts and Deviation – a list of overhauled parts and agency deviations
• FAR Companion and Companion Feedback - “living” guides containing best practices and practical advice
• Practitioner’s Albums – non-regulatory training materials for the overhauled Parts, including deviation summaries and line-out documents delineating removed items
• RFO Reference Documents – links to policy memos and Executive Orders
• Frequently Asked Questions.

Contractors should continue providing feedback and suggestions through comments on the open revisions and remain up to date on changes. Stay tuned to future GovWin's Federal Market Analysis articles on revised FAR Parts.