FAR

A proposed amendment to the Federal Acquisition Regulations (“FAR”) published on July 30, 2021 will “strengthen the impact of the Buy American Act” (“BAA”) over the next eight years, according to the Federal Register notice. Federal contractors and subcontractors were put on notice of coming proposed changes in January when President Biden issued Executive Order (“EO”) 14005 revoking or superseding multiple EOs issued by the Trump Administration. The Proposed Rule arising from Section 8 of EO 14005 would alter and build upon existing requirements of the BAA. The Proposed Rule includes immediately higher domestic content thresholds that will increase over time, price preference enhancements for “critical” items, and contractor reporting of domestic content within 15 days of an award to the newly created Made in America Office of the Office of Management and Budget (“OMB”). The new proposed Buy American restrictions will not apply to acquisitions subject to various trade agreements under the Trade Agreements Act.

Alert Data Center Ransomware

President Biden’s newly released Executive Order on Improving the Nation’s Cybersecurity represents a comprehensive approach to tackling cybersecurity threats in the U.S. and will likely result in new FAR and DFARS contract requirements. It represents the next step towards the inclusion of mandatory breach notifications in government contracts following widespread speculation that breach notification requirements were on the horizon.

The FAR Councils have issued a final rule addressing the prevention of personal conflicts of interest (PCOIs) for contractor employees performing acquisition functions closely associated with inherently governmental functions. 76 Fed. Reg. 68,017 (Nov. 2, 2011). The final rule amends the FAR to add Subpart 3.11 and a corresponding contract clause (FAR 52.203-16) requiring contractors to identify and prevent PCOIs of their covered employees and prohibiting covered employees who have access to non-public information gained by performance of a government contract from using it for personal gain. This Subpart implements the requirement set out in section 841(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009.

Organizational Conflicts of Interest arise when a contractor’s work on one government contract gives it an unfair advantage in competing for a second contract or when it impairs the contractor’s ability to give impartial advice to the government.  Although FAR 9.5 offers general guidance on OCIs, GAO guidance on the issue is not currently reflected there.  In April 2010, the Defense Department proposed sweeping revisions to the DOD FAR Supplement to incorporate GAO caselaw addressing OCIs and to make it clear that the new OCI rules would apply to all DOD procurements. 75 Fed. Reg. 20954 (Apr. 22, 2010).  Final regulations were published December 29.  75 Fed. Reg. 81908 (Dec. 29, 2010).