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Jonathan Aronie
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Ryan Roberts
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Townsend Bourne
Partner | Washington, D.C.
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tbourne@sheppardmullin.com
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Anne Perry
Partner | Washington, D.C.
+1.202.747.1913
aperry@sheppardmullin.com
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Keith Szeliga
Partner | Washington, D.C.
+1.202.747.1927
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FAR Overhaul Tracker
Analysis of Proposed Revisions
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Analysis of Proposed Revisions
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 1: Federal Acquisition Regulations System
Deletes Subparts 1.2 (“Administration”) and 1.5 (“Agency and Public Participation”), which require the FAR/DFAR Councils to engage in N&C rulemaking for new clauses.
Deletes 1.107 - Certifications (a) and (b), which allowed for certifications if required by statute or approved by the Administrator for Federal Procurement Policy. New 1.106 - Certifications provision states that the FAR MUST not require certifications unless allowed under 41 USC 1304.
Summary of Deletions
Retains Subpart 1.3 - Agency Acquisition Regulations (now Subpart 1.2), which allows agencies to issue regulations that are "necessary to implement the FAR, or to supplement the FAR to satisfy a specific agency need, according to 41 USC 1303(a)(2)."
Retains Subpart 1.4 - Deviations from the FAR (now Subpart 1.3), which allows for agnecies to authorize individual deviations and class deviations.
Summary of Retentions
The proposed revisions remove references to “best value” procurement. On it’s face, this appears to represent a strong preference for other types of competition (e.g., LPTA). We don’t view the proposed deletion as the death knell for best value procurements: the concept is deeply enmeshed throughout FAR Part 15, and is required in some cases by statute (both 10 U.S.C. 3303 and 41 U.S.C. 3703 call for agencies to award contracts “to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation.”).
On the whole, we don’t anticipate these revisions will result in major changes to the FAR clause promulgation process, but they’re interesting deletions nonetheless, and we certainly can envision a world in which the “urgent and compelling” exception to public comment is applied generously.
The revised Part 1 does not eliminate the authority of individual agencies to draft and implement agency supplements to the FAR (this language currently is located in FAR Subpart 1.3).
In a welcome development, the revised FAR 1.106 (“Certifications”), previously 1.107 (“Certifications”), explicitly prohibits the FAR Council from adding new certifications to the FAR unless specifically required by statute (revoking the prior authority given to the FAR Council to add certifications by a simple written determination).
Sheppard Mullin Comments / Observations
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Analysis of Proposed Revisions
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FAR Part 18: Emergency Acquisitions
Removes Subpart 18.1, Available Acquisition Flexibilities, which provides a list of generally available FAR flexibilities that contracting officers may use to support emergencies.
These flexibilities are available and can be used without a formal emergency declaration or contingency operation designation.
Removal from the FAR is based on the rationale that this list is available in non-regulatory sources, for example on Acquisition.gov (https://acquisition.gov/emergency-procurement) in Practitioner Albums, FAR Companion Guide and/or Category Buying Guide.
Summary of Deletions
Retains Subpart 18.2, Emergency Acquisition Flexibilities, (now Subpart 18.001), which provides a list of FAR flexibilities available only during certain emergencies: (1) contingency operations, (2) defending or recovering from national security events, (3) supporting State Department or USAID requests during international disasters, (4) supporting major disaster responses, or (5) humanitarian/ peacekeeping missions.
Summary of Retentions
The circumstances triggering the FAR's emergency acquisition provisions — as well as the increased thresholds, commercial procecures, and award preferences that those provisions provide — remain unchanged. This should come as no surprise as such procedures are almost entirely mandated by statute.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 11: Describing Agency Needs
Deletes twelve contract clauses and solicitation provisions that "should now be handled as part of the contractual requirement and/or delivery schedule":
Availability of Specifications Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29 (52.211-1);
Availability of Defense Specifications, Standards, and Data Item Descriptions in the Acquisition Streamlining; and Standardization Information System (ASSIST) Website (52.211-2)
Availability of Specifications Not Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions (52.211-3);
Availability for Examination of Specifications Not Listed in the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions (52.211-4);
Brand Name or Equal (52.211-6);
Alternatives to Government-Unique Standards (52.211-7);
Time of Delivery (52.211-8);
Desired and Required Time of Delivery (52.211-9);
Commencement, Prosecution, and Completion of Work (for construction contracts only) (52.211-10);
Variation in Quantity (52.211-16);
Delivery of Excess Quantities (52.211-17); and
Variation in Estimated Quantity (52.211-18). These were removed to reduce unnecessary burden and best practices will be added to the FAR Companion Guide.
Deletes non-statutory sustainability requirements. While statutory sustainability requirements remain, whether to include non-statutory sustainability standards is left to the discretion of the agency (based on agency requirements).
Removes requirements for establishing delivery or performance schedules to the FAR Companion Guide.
Deletes order of precedence for requirements documents.
Summary of Deletions
Planning and solicitation requirements (41 U.S.C. § 3306(a) and 10 U.S.C. § 3206(a))
Preference for commercial products and commercial services (41 U.S.C. § 3307 and 10 U.S.C. § 3453)
Additional Powers (15 U.S.C. § 637(d)(4)(f))
Procedures and corresponding provisions/clauses related to liquidated damages.
Defense Priorities and Allocations System (DPAS), a Department of Commerce regulation in support of approved national defense, emergency preparedness, and energy programs still apply.
Summary of Retentions
The revisions to Part 11 focus on communicating clear requirements and trying to ensure those requirements are aligned with commercial standards and practices. Additionally, the revisions are intended to avoid overly prespcriptive specifications that limit competition.
FAR Part 11 no longer stipulates an "order of precedence" for requirements documents (e.g., SOW, SOO, PWS). It is now up to each agency (as outlined in each solicitation) to make that determination. FAR Part 11 does not include any guidance applicable to situations where an agency fails to identify the applicable order of preference.
Interestingly, although the "use of brand name or equal purchase descriptions" (previously 11.104) has been removed (and will be added to the FAR Companion Guide), the Practitioner Album for Part 11 includes a "case study" (based on a previous GAO protest decision) that provides an example of where agencies can go wrong in brand name or equal acquisitons. It provides "best practices," including that the agency should (1) during market research, identify all salient characteristics upfront, (2) clearly document them in the solicitation, and (3) carefully exaluate proposed "equal" products during the evaluation phase. It will be interesting to see whether the Companion Guides have any binding authority, including whether protestors can successfully cite to the Practitioner Album in protests if contracting officers fail to follow a Companion Guide.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 6: Competition Requirements
The word “advance” was removed from the phrase, “A lack of advance planning by the requiring activity” in FAR subpart 6.301. The language now reads that “a lack of planning by the requiring activity” is not a justification for not providing full and open competition.
Removes language from FAR subpart 6.303-2 that provided illustrations of facts supporting sole source justifications. Per the Practitioner Album, this content is not required by statute and "may be moved to non-regulatory content."
Deletes specific references to small business socioeconomic categories: HUBzone Small Business Concerns, Service Disasbled Veteran Owned Small Business (SDVOSB) Concerns, Economically Disadvantaged Women-Owned Small Business (EDWOSB) conerns, and Women-Owned Small Business (WOSB) Concerns. In its place, the revision adds a general reference to FAR Part 19. In addition, CO discretion for set-asides is now expanded to include Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs.
Summary of Deletions
Retains statutory requirements, including - (1) Advocates for Competition (41 U.S.C. § 1705); (2) Full and Open Competition (41 U.S.C. § 3301 and 10 U.S.C. § 3201); (3) Exclusion of Particular Source or Restriction of Solicitation to Small Business Concerns (41 U.S.C. § 3303 and 10 U.S.C. § 32030); (4) Use of Noncompetitive Procedures (41 U.S.C. § 3304); (5) Use of Procedures Other than Competitive Procedures (10 U.S.C. § 3204); (6) Aid to Small Business (15 U.S.C. Chapter 14A); and (7) Major Disaster and Emergency Assistance, Use of Local Firms and Individuals (42 U.S.C. § 5150).
FAR Part 6 continues to apply to all acquisitions, with limited exceptions. The revision maintains the existing list of exclusions for specific contracts and orders: (1) Only one responsiple source (6.103-3); (2) Unusual and compelling urgency (6.103-2); (3) Industrial mobilization, engineering/developmental/research capability, or expert services (6.103-3); (4) International agreement (6.103-4); (5) Authorized by statute (6.103-5); (6) National security (6.103-6); and (7) Public interest (6.103-7).
Retains guidance for Sealed Bidding.
Approval of justification requirements now reflected in a plan language format.
Summary of Retentions
The FAR Part 6 revision clarifies the requirements and exceptions for full and open competition. The removal of the word "advance" (such that FAR 6.301 now reads "a lack of planning by the requireing activity" is not a justification for not providing full and open competition) was intended to remove the ambiguity of what was meant by “advance” planning, and to eliminate redundancy. FAR Part 6 continues to apply to almost all acquisitions with limited exceptions (FAR Subpart 6.103).
COs retain discretion to set aside solicitations for small business concerns. Notably, the revision adds a specific reference to set asides for contracts under the SBIR and STTR programs, while simultaneously removing specific references to HUBzone, SDVOSB, and WOSB concerns.
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 29: Taxes
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
Retains statutory requirements, including - (1) Imposition of Tax (26 U.S.C. § 4041) (2) Exemptions (26 U.S.C. § 4053) (3) Gas Guzzler Tax (26 U.S.C. § 4064) (4) Certain Tax Free Sales (26 U.S.C. § 4221) (5) Tax Exemptions (26 U.S.C. § 4293 and § 4483) (6) Imposition of Tax on Certain Foreign Procurement (26 U.S.C. § 5000C) (7) Transportation of Humanitarian Relief Supplies to Foreign Countries (10 U.S.C. § 402) (8) Foreign Disaster Assistance (10 U.S.C. § 404) (9) Domestic Emergency Assistance (10 U.S.C. § 2557) (10) Humanitarian Assistance (10 U.S.C. § 2561)
Retains Subpart 29.1 (Resolving Tax Problems) but now requires COs to consult legal counsel when tax issues arise
Retains Subpart 29.2 (Federal Excise Taxes) but now requires COs to request offers on a tax-exclusive basis when the law exempts the government from federal excise taxes
Retains all clauses prescribed under Part 29 (except 52.229-13 and 52.229-14) but revised with plain language
Summary of Retentions
Most of the provisions in Part 29, as well as the clauses they prescribe, are required by tax statutes. The revisions thus focus on readability. According to the Practicer Album, the revisions resulted In an approximately 20% reduction in word count.
Notably, the revisions tweak the language to place greater onus on COs to ultilize tax exemptions. For example, Part 29.2 - Federal Excise Taxes previously stated that COs "should solicit prices on a tax-exclusive basis." Now, Part 29.2 directs that "Executive agencies must take advantage of available Federal excise tax exemptions. When the law exempts the Federal Government from these taxes, the contracting officer must, unless inappropriate for the circumstances, request offers on a tax-exclusive basis."
Sheppard Mullin Comments / Observations
FAR Part 31: Contract Cost Principles and Procedures
Deletes certain definitions that are well-known business definitions or otherwise defined in the Cost Accounting Standards (e.g., "Actual Cash Value" and "Labor Market")
Summary of Deletions
Retains statutory requirements, including - (1) Armed Service Procurement Act of 1947 (Public Law 413) (2) Allowable Costs (41 U.S.C. Chapter 43 and 10 U.S.C. Chapter 273) (3) Claims Against the United States Government (31 U.S.C. Chapter 37, Subchapter III) (4) Major Fraud Against the United States (18 U.S.C. § 1031) (5) Uniform Administrative Requirements, Cost Principles, And Audit (6) Requirements for Federal Awards (2 C.F.R. Part 200) (7) The Cost Principles for Educational Institutions; State, Local, and Federally Recognized Indian Tribal Governments; and Nonprofit Organizations (31 U.S.C. Chapter 11, 31 U.S.C. §§ 503-504, 31 U.S.C. §6307, 31 U.S.C. §§7501-7507) (8) The Cost Principles for Commercial Organizations (10 U.S.C. and 41 U.S.C.)
Summary of Retentions
The FAR Part 31 revisions are largly stylistic, rather than substantive. Recognizing that Part 31 is deeply rooted in appropriations law, as well as the need for uniformity across Government, the revisions focus on plain language edits (the Practitioner Album boasts that these edits reduced the word count by more than 1,300, but even the revised Part 31 is just shy of 29,000 words).
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 29: Taxes
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
Retains statutory requirements, including - (1) Imposition of Tax (26 U.S.C. § 4041) (2) Exemptions (26 U.S.C. § 4053) (3) Gas Guzzler Tax (26 U.S.C. § 4064) (4) Certain Tax Free Sales (26 U.S.C. § 4221) (5) Tax Exemptions (26 U.S.C. § 4293 and § 4483) (6) Imposition of Tax on Certain Foreign Procurement (26 U.S.C. § 5000C) (7) Transportation of Humanitarian Relief Supplies to Foreign Countries (10 U.S.C. § 402) (8) Foreign Disaster Assistance (10 U.S.C. § 404) (9) Domestic Emergency Assistance (10 U.S.C. § 2557) (10) Humanitarian Assistance (10 U.S.C. § 2561)
Retains Subpart 29.1 (Resolving Tax Problems) but now requires COs to consult legal counsel when tax issues arise
Retains Subpart 29.2 (Federal Excise Taxes) but now requires COs to request offers on a tax-exclusive basis when the law exempts the government from federal excise taxes
Retains all clauses prescribed under Part 29 (except 52.229-13 and 52.229-14) but revised with plain language
Summary of Retentions
Most of the provisions in Part 29, as well as the clauses they prescribe, are required by tax statutes. The revisions thus focus on readability. According to the Practicer Album, the revisions resulted In an approximately 20% reduction in word count.
Notably, the revisions tweak the language to place greater onus on COs to ultilize tax exemptions. For example, Part 29.2 - Federal Excise Taxes previously stated that COs "should solicit prices on a tax-exclusive basis." Now, Part 29.2 directs that "Executive agencies must take advantage of available Federal excise tax exemptions. When the law exempts the Federal Government from these taxes, the contracting officer must, unless inappropriate for the circumstances, request offers on a tax-exclusive basis."
Sheppard Mullin Comments / Observations
FAR Part 35: Research and Development Contracting
Deletes several provisions: (1) 35.002 General (Streamlined) (2) 35.004 Publicizing Requirements (Duplicative of FAR part 5) (3) 35.006 Contracting Methods and Contract Type (Duplicative of FAR part 16) (4) 35.009 Subcontracting (Duplicative of FAR part 44) (5) 35.011 Data (Duplicative of FAR part 27) (6) 35.012 Patent Rights (Duplicative of FAR part 27) (7) 35.013 Insurance (Duplicative of FAR part 28) (8) 35.014 Government Property (Duplicative of FAR part 45)
Deletes 35.015 Educational Institutions, though the Practitioner Album states "educational institutions should be considered during evaluation for R&D opportunities as an organization-type (see model deviation 35.201)."
Deletes reference to Standard Form 298, Report Documentation Page to provide more flexibility in reporting
Removes Section 35.005 Work Statement and references to "Recoupment" to the FAR Companion Guide to allow acquisition teams greater flexibility and discretion
Summary of Deletions
Retains statutory requirements for Using Procurement Contracts (31 U.S.C. § 6303) and Use of Federally Funded Research and Development Centers (10 U.S.C. § 4126)
Retains definitions for "Applied research" and "Development"
Retains, moves, and makes plain language edits to: (1) Section 35.007 Solicitations (now 35.101) (2) Section 35.016 Broad Agency Announcement (now 35.102) (3) Section 34.008 Evaluation for Award (now 35.201) (4) Section 35.101 Scientific and Technical Reports (now 35.301) (5) Section 35.017 Federally Funded Research and Development Centers ("FFRDC") (now subpart 35.4)
Summary of Retentions
The FAR part 35 revisions include some of the most substantial organizational changes to date. In total, the revisions delete nine sections in their entirety and remove another to the FAR Companion Guide.
Part 35 is now organized in accordance with the acquisition lifecycle. The revised subparts are ordered as - Subpart 35.1 - Presolicitation Subpart 35.2 - Evaluation and Award Subpart 35.3 - Postaward Subpart 35.4 - Federally Funded Research and Development Centers
The edits to the retained sections primarily focus on plain language, though there is one notable change to the FFRDC process. The revised subpart 35.4 clarifies that, to establish an FFRDC, the government must publish at least one notice to the Government Point of Entry ("GPE") and allow for a 90 day comment period. The previous version required the government to publish at least three notices to the Federal Register and GPE over a 90 day period.
Sheppard Mullin Comments / Observations
FAR Part 36: Construction and Architect-Engineer Contracts
Deletes all Part 36 definitions (previously scattered across 36.001 and 36.102) except the definition for "firm."
Deletes the "Applicability" section (previously at 36.001).
Deletes specific evaluation criteria for architect-engineer contracts (previously at 36.602-1 and 36.603).
Deletes the requirement that the government disclose the magnitude of construction projects (previously at 36.204). This disclosure is now left to the acquisition team's discretion.
Deletes the section titled "Special procedures for sealed bidding in construction contracting" (previously at 36.213). COs are now directed to reference Part 14 for sealed bidding procedures.
Deletes the section titled, "Performance of Work by the Contractor" (previously at 36.501), and the implementing clause at 52.236-1. Also known as the "12 percent rule," this section previously required prime contractors perform a specified minimum percentage of the total contract work with their own forces. The Practitioner Album and GSA Deviation clarify that this deletion does not impact clause 52.219-14, Limitations of Subcontracting.
Deletes several clauses previously prescribed by Part 36: 52.236-4 Physical Data 52.236-19 Organization and Direction of the Work 52.236-26 Preconstruction Conference 52.236-27 Site Visit (Construction) 52.236-28 Preparation of Proposals-Construction
Removes the requirements for government to (1) provide for a site inspection during the solicitation phase (previously at 36.210 and 36.523), and (2) to conduct a preconstruction conference after award (previously at 36.212 at 36.522). These decisions are now left to the discretion of the acquisition team and will be addressed in the FAR Companion Guide.
Summary of Deletions
Retains statutory requirements, including - (1) Design-Build Selection Procedures (10 U.S.C. § 3241 and 41 U.S.C. § 3309) (2) Administration of Construction Change Orders (15 U.S.C. § 644(w)) (3) Brooks Act of 1972 (Pub. L. 92-582) (4) Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355) (5) Services Acquisition Reform Act of 2003 (Pub. L. 108-136)
Retains and revises the "Policy" section (previously at 36.104, now at 36.002) to "consolidate critical high-level requirements," including - (1) Agencies must require the use of Project Labor Agreements for Federal construction projects with a total estimated construction cost of $35 million or more, unless an exception applies (2) COs conducting market research for construction contracts valued at $35 million or must ensure that the market research procedures involve a current and proactive examination of the market conditions in the project area. (3) For design and construction selection, COs must use either design-bid-build procedures, two-phase design-build procedures, or another acquisition procedure authorized by law. (4) Agencies must implement high-performance sustainable building practices.
Retains and streamlines the “Procedures” for two-phased design-build selection (previously at 36.303, now at 36.101-2). The acquisition team retains discretion to issue one or two solicitation documents for the procurement phases.
Retains "Liquidated Damages" (previously at 36.206, now at 36.101-6) and clarifies that COs must consider liquidated damages during acquisition planning. The previous instruction was silent on when this evaluation must be made.
Retains "Government Estimate of Construction Costs (previously at 36.203, now at 36.101-6) and clarifies that the Independent Government Estimate ("IGE") must be given to the CO "before receipt of any proposals" (or, if two-step sealed bidding is used, "when the contract requirements are definitized.") Part 36 previously required that the CO receive the IGE "at the earliest possible time."
Makes plain language adjustments to 52.236-2, 52.236-3, 52.236-5 through 52.236-18, and 52.236-20 though 52.236-25
Summary of Retentions
The Part 36 revisions are significant in both structure and substance. As to structure, Part 36 is now organized in accordance with the acquisition lifecycle. The revised subparts are ordered as - Subpart 36.1 - Pre-solicitation Subpart 36.2 - Evaluation and Award Subpart 36.3 - Postaward
As to substance, the revised Part 36 allows for far greater agency and CO discretion in the acquisition process by removing several procedural requirements. The FAR no longer requires the government to - (1) conduct site inspections during the solicitation phase, (2) conduct a preconstruction conferences after awards, (3) follow specific evaluation criteria for architect-engineer contracts, or (4) disclose the magnitude of construction projects.
For contractors, perhaps the most impactful change is the deletion of the 12 Percent Rule, previously mandated by subpart 36.501 and the implementing clause 52.236-1. Prime contractors are now permitted -- at least under the FAR -- to subcontract any portion of work. But we note this separate from the Limitations on Subcontracting (FAR 52.219-14), which still exists and is applicable to set-aside contracts.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 5: Publicizing Contract Actions
Deletes the word "synopsis" throughout.
Deletes policy in 5.002 of publishing contract action to assist veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in obtaining contacts.
Moves definition of Govermentwide point of entry from 5.003 to Part 2 because the definition applies to multiple FAR parts.
Deletes methods of dissemination such as "periodic handouts," "assisting local trade associations," and "brief announcements" in papers and trade publications to make the governmentwide point of entry (GPE) (as well as paid advertisement) the primary method of dissemination.
Deletes most "special sitiations" and moves them to 5.103 Special Notices, retaining notices for Federal Funded Research and Development Centers (FFRDC), and consolidation, bundling, and substantial bundling.
Deletes (and consolidates) content requirements for each notice (e.g., proposed solicitation number, place of contract performance, destination information, delivery schedule, duration of contract period, etc.).
Deletes local announcement option for agencies.
Deletes Subpart 5.4 (Release of Information), which was largely duplicative of the general posting guidance throughout the part.
Deletes Subpart 5.6 (Publicizing Multi-Agency Use Contracts), which required agencies to enter information into a specific governmentwide database of contracts was deleted.
Deletes Subpart 5.7 (Publicizing Requirements Under the American Recovery and Reinvestment Act of 2009 (ARRA)) because ARRA is no longer in effect.
Summary of Deletions
Retains Statutory Requirements including: (1) Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings (5 U.S.C. § 552) (2) Procurement Notice (15 U.S.C. § 637(e) and 41 U.S.C. § 1708) (3) Notices of Subcontracting Opportunities (15 U.S.C. § 637(k)) (4) Availability of Information (15 U.S.C. § 637b) (5) Awards or contracts (15 U.S.C. § 644) (6) Advertisements for Contracts (44 U.S.C. § 3701-3703) (7) Small Business Innovation Development Act of 1982 (Pub. L, 97-219)
Retains all exceptions to publicizing contract actions.
Summary of Retentions
The FAR Part 5 revisions will simplify and how contract opportunities are publicized by consolidating their publication to the Governmentwide Point of Entry (GPE) (which currently is designated as SAM.gov). The description of contract opportunities may also appear simpler and more straightforward.
The FAR Part 5 revisions also change the policy reasons for contract publication by removing the focus on veteran-owned, service-disabled veteran-owned, HUBZone, women-owned, and small disadvanged business concerns. Instead the policy focus is simply on small business. This is somewhat surprising given this Administration's earlier communications (for example, by Executive Order) that preferences for veterans would remain.
The FAR Part 5 revisions use newly titled and organized subparts that align with the acquisition lifecycle (5.1 Presolicitation, 5.2 Solicitation, and 5.3 Award).
The FAR Part 5 revisions also use tables rather than dense paragraphs to present complex information. Those tables include: * Table 5-1, which identifies solicitation language required for trade agreements. * Table 5-2 which clarifies posting timeframes for presolicitation notice. * Table 5-3 which identifies timeframes for receipt of quotations or offers. * Table 5-4 which clarifies posting timeframes for award notices.
Sheppard Mullin Comments / Observations
FAR Part 26: Other Socioeconomic Programs
Removes the procedures for challenging representations under the Indian Incentive Program with the intent to incorporate them into the FAR Companion Guide
Removes information pertaining to the Disaster Response Registry with the intent to incorporate the information into the FAR Companion Guide
Removes procedures related to the Food Donation Program with the intent to information them into the FAR Companion Guide
Removes Subpart 26.3 Historically Black Colleges and Universities and Minority Institutions, Section 26.303, Data collection and reporting requirements, because such information is already captured through the Federal Procurement Data System
Removes Subpart 26.6, Encouraging Contractor Policies to Ban Text Messaging While Driving Section 26.601, Purpose, Section 26.602, Applicability, and Section 26.603 Definitions. Clause 52.226-8 retains the definitions.
Summary of Deletions
Retains the following statutory requirements: * Registry of Disaster Response Contractors (6 U.S.C. § 796) * Additional Compensation to Contractors of Federal Agency (25 U.S.C. § 1544) * Drug Free Workplace (41 U.S.C. §§ 8101 et seq) * Promoting Federal Food Donation (42 U.S.C. § 1792) * Use of Local Firms and Individuals (42 U.S.C. § 5150) * Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 100-707 (42 U.S.C. §§ 5121 et seq)) * Amendments to Special Emergency Procurement Authority (Pub. L. 114-328 Section 816) * Special Emergency Procurement Authority to Facilitate the Defense Against or Recovery from a Cyber Attack (Pub. L. 114-328 Section 1641) * Promoting Procurement with Historically Black Colleges and Universities, and Minority Institutions (EO 12928)
Also retains: * The 5% incentive payment for utilizing Indian organizations and Indian-owned economic enterprises as subcontractors remains allowable at 26.102-1. * The statutory preference for awarding contracts to local firms in the aftermath of a major disaster or emergency remains at 26.202-1. * The policy to encourage the participation of Historically Black Colleges and Universities and Minority Institutions in federal procurement continues at 26.301-1. * The policy encouraging contractors to donate excess wholesome food remains the same at 26.404-1.
Summary of Retentions
All of the original subparts remain in this Part, but they have been reorganized follow the acquisition process (i.e., steps to take before solicitation vs. after award). As such, the changes to this Part largely include removal of redunant sections and/or information that can be found in the related contract clauses. As we've seen in other Parts, the changes retain the substantive statutory requirements of this Part, and signal a plan to include in the forthcoming FAR Companion Guide some of the procedures previously found in this Part.
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 5: Publicizing Contract Actions
Deletes the word "synopsis" throughout.
Deletes policy in 5.002 of publishing contract action to assist veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in obtaining contacts.
Moves definition of Govermentwide point of entry from 5.003 to Part 2 because the definition applies to multiple FAR parts.
Deletes methods of dissemination such as "periodic handouts," "assisting local trade associations," and "brief announcements" in papers and trade publications to make the governmentwide point of entry (GPE) (as well as paid advertisement) the primary method of dissemination.
Deletes most "special sitiations" and moves them to 5.103 Special Notices, retaining notices for Federal Funded Research and Development Centers (FFRDC), and consolidation, bundling, and substantial bundling.
Deletes (and consolidates) content requirements for each notice (e.g., proposed solicitation number, place of contract performance, destination information, delivery schedule, duration of contract period, etc.).
Deletes local announcement option for agencies.
Deletes Subpart 5.4 (Release of Information), which was largely duplicative of the general posting guidance throughout the part.
Deletes Subpart 5.6 (Publicizing Multi-Agency Use Contracts), which required agencies to enter information into a specific governmentwide database of contracts was deleted.
Deletes Subpart 5.7 (Publicizing Requirements Under the American Recovery and Reinvestment Act of 2009 (ARRA)) because ARRA is no longer in effect.
Summary of Deletions
Retains Statutory Requirements including: (1) Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings (5 U.S.C. § 552) (2) Procurement Notice (15 U.S.C. § 637(e) and 41 U.S.C. § 1708) (3) Notices of Subcontracting Opportunities (15 U.S.C. § 637(k)) (4) Availability of Information (15 U.S.C. § 637b) (5) Awards or contracts (15 U.S.C. § 644) (6) Advertisements for Contracts (44 U.S.C. § 3701-3703) (7) Small Business Innovation Development Act of 1982 (Pub. L, 97-219)
Retains all exceptions to publicizing contract actions.
Summary of Retentions
The FAR Part 5 revisions will simplify and how contract opportunities are publicized by consolidating their publication to the Governmentwide Point of Entry (GPE) (which currently is designated as SAM.gov). The description of contract opportunities may also appear simpler and more straightforward.
The FAR Part 5 revisions also change the policy reasons for contract publication by removing the focus on veteran-owned, service-disabled veteran-owned, HUBZone, women-owned, and small disadvanged business concerns. Instead the policy focus is simply on small business. This is somewhat surprising given this Administration's earlier communications (for example, by Executive Order) that preferences for veterans would remain.
The FAR Part 5 revisions use newly titled and organized subparts that align with the acquisition lifecycle (5.1 Presolicitation, 5.2 Solicitation, and 5.3 Award).
The FAR Part 5 revisions also use tables rather than dense paragraphs to present complex information. Those tables include: * Table 5-1, which identifies solicitation language required for trade agreements. * Table 5-2 which clarifies posting timeframes for presolicitation notice. * Table 5-3 which identifies timeframes for receipt of quotations or offers. * Table 5-4 which clarifies posting timeframes for award notices.
Sheppard Mullin Comments / Observations
FAR Part 4: Administrative and Information Matters
Deletes recommended content and best practices for contract files (Subpart 4.1) and moves them to the forthcoming FAR Companion Guide.
Moves Subparts 4.4, 4.19, 4.20, 4.21, and 4.23 to RFO FAR Part 40 because they are all security-related.
Deletes Subpart 4.2, Contract Distribution, because it prescribed procedures for distributing paper copies of contracts, which is now obsolete due to electronic systems.
Summary of Deletions
Retains Statutory Requirements including: (1) Information Concerning Transactions With Other Persons (26 U.S.C. §§ 6041 et seq) (2) Identifying Numbers (26 U.S.C. § 6109) (3) Using Procurement Contracts (31 U.S.C. § 6303) (4) Taxpayer Identifying Number (31 U.S.C. § 7701) (5) Functions, Federal Procurement Data System (41 U.S.C. § 1122) (6) Record Requirements (41 U.S.C. § 1712) (7) Use of Electronic Commerce in Federal Procurement (41 U.S.C. § 2301) (8) Examination of Facilities and Records of Contractor (41 U.S.C. § 4706) (9) Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282) (10) Digital Accountability and Transparency Act of 2014 (Pub. L. 113-101)
Retains Subpart 4.0, Scope, but revises it to remove reference to security-related provisions.
Retains Subpart 4.7 on Contact Records Retention.
Subparts 4.4-4.23 are retained, streamlined, and/or moved throughout the new subpart structure.
Summary of Retentions
4.202, retaining the policy to promote consistent line item structure across awards. (3) Subpart 4.1, Contracting Officer’s and Contractor’s Signature is moved to 4.206 & 4.207. A key modernization is explicitly allowing digital signatures for both Government and contractor personnel using a PIV or CAC certificate. (4) Subparts 4.11 and 4.12, System for Award Mangement, are consolidated and moved to 4.203, which streamlines exceptions to SAM registration and clarifies procedures for verifying active registration. Moves the list of 33 representations and certifications from 4.1202 into 52.204-7 as the authoritative source, with procedural details now in the provision. (5) Subpart 4.9 is consolidated and simplifed to 4.204, Taxpayer Identification Information (TIN) by directly linking collection of the contractor’s TIN to either SAM registration via 52.204-7 or, if not required to register, to 52.204-90 (Offeror Identification). (6) Supart 4.13 moves and condenses pre-award PIV policies to 4.205, Personal Identity Verification (PIV). Post-award PIV card return requirement relocated to the new post-award subpart at 4.302. (7) Multiple subparts regarding prescription hub for all solicitation- and award-phase provisions and clauses (e.g., 4.1105, 4.1303, 4.1403) are consolidated to subpart 4.208, Solicitation Provisions and Contract Clauses.
The FAR Part 4 revision updates Subpart 4.3 to cover "Post-award," which combines section into a more coherent process-oriented grouping of provisions. (1) Subpart 4.6 is consolidated to Subpart 4.301, Contract Reporting, which governs reporting in the Federal Procurement Data System (FPDS). (2) Subpart 4.13 is moved to Subpart 4.302, Return of PIV Cards. (3) Subpart 4.17 is updated and moved to Subpart 4.303, Service Contracts Inventory, updating reporting requirements to maintain transparency of service contract usage. However, reporting is no longer required for commercial services contracts. (4) Subpart 4.18 and content from 4.1102(d) are moved to 4.304, System for Award Management & 4.305, Contractor Identification, to cover separate post-award SAM and identification requirements from pre-award. (5) Subpart 4.14 is moved to Subpart 4.306, Executive Compensation, to cover post-award reporting requirement for executive compensation and first-tier subcontract awards. However, reporting is no longer required for commercial services contracts. (6) Sections 4.203 and 4.902 are consolidated into 4.307, Payment Office to cover requirements for providing payment-related information (TIN, UEI, EFT). (7) Sections 4.804 and 4.805 are reorganized and moved to 4.308, Contract Closeout & 4.309, Storage, Handling, and Contract Files, to cover closeout and file-handling requirements to align with the post-award phase.
Sheppard Mullin Comments / Observations
FAR Part 8: Requied Sources of Supplies and Services
Subpart 8.4 (ordering procedures under the Federal Supply Schedule) have been moved into the General Services Acquisition Manual (GSAM/R).
Removes subpart 8.1 (Excess Personal Property) to the Federal Management Regulation (41 CFR 102-36), to avoid outdated information.
Deletes section 8.001 (General), which contained a general requirement for IT acquisitions to comply with captial planning rules.
Deletes the following clauses associated with Leasing of Motor Vehicles: 52.208-4, Vehicle Lease Payments 52.208-5, Condition of Leased Vehicles 52.208-6, Marking of Leased Vehicles 52.208-7, Tagging of Leased Vehicles
Summary of Deletions
Retains statutory requirements including: (1) Use of Procedures Other than Competitive Procedures (10 U.S.C. § 3204) (2) Products of Federal Prison Industries (10 U.S.C. § 3905) (3) Purchase of Prison-Made Products by Federal Departments (18 U.S.C. § 4124) (4) Services for Executive Agencies (40 U.S.C. § 501) (5)Architectural and Engineering Services (40 U.S.C. § 1103 Note) (6) Competitive Procedures (41 U.S.C. § 152(3)) (7) Requirements for Purchase of Property and Services Pursuant to Multiple Award Contracts (41 U.S.C. § 3302) (8) Use of Noncompetitive Procedures, (41 U.S.C. § 3304) (9) Committee for Purchase from People Who are Blind or Severely Disabled (41 U.S.C. §§ 8501 et seq) (10) Production and Procurement of Printing and Binding (44 U.S.C. §§ 501 et seq) (11) Services Acquisition Reform Act of 2003 (Pub. L. 108-136)
The substance of the Scope in 8.000 has been retained.
Definitions are consolidated in section 8.001.
The priorities and requirements for use of mandatory sources are moved from 8.002 to new sections 8.102 and 8.103.
Section 8.104 Use of Existing Contracts replaces section 8.004 Use of Other Sources.
Summary of Retentions
FAR Part 8 has been updated significantly. At a high level, it has been reorganized and restructured to follow the logical flow of the acquisition lifecycle (as other Parts have). It has also been revised to attempt to simplify the mandatory source guidance and to make clear that Governmentwide Best-In-Class (BIC) contracts are mandatory. Specifically, BIC contracts or BPAs are now required to be used when a commercial product or commercial service meets an agency’s need, unless approved by the Head of the Contracting Activity (HCA). If a BIC is not suitable, agencies should consider use of an existing governmentwide contract, BPA, or shared service. The revisions also retain focus on the importance of the AbilityOne Program.
The ordering procedures have been moved to the GSAM/R (part 538) in an attempt to enhance the speed of acquistion. A few key highlights of the updated ordering procedures for FSS include: (1) Quotations are not offers (RFQ procedures are not considered "source selection" and as such, there is no requirement for evaluation plans, quotation scoring, or establishing a competitive range before communicating with quoters or soliciting revised quotes) (2) Flexibilities with FSS BPAs (single-award BPA restrictions have been lifed and ordering procedures for multiple-award BPAs offer greater discretion) (3) No additional contractor responsibility determination (Agencies can rely on the contractor responsibility determined by GSA at the FSS contract level) (4) Brief explanation, not debriefing (The timeline for requesting a brief explanation has been clarified to three (3) days, aligning with general debriefing timelines) (5) Increased contractor access to Government supply sources (whereas contractor use of Government supply sources - previously under FAR Part 38) was largely restrcted to cost-reimbursement type contracts, agencies may now authorize contractors to use Government supply sources (including non-mandatory sources like FSS) to obtain necessary supplies/services when it is determined in the Government's interest.
Finally, the revisions consolidate certain FAR Parts - FAR Part 38 (Federal Supply Schedule Contracting) moved to GSAM/R 538 in its entirety, and FAR Part 51 (Use of Government Sources by Contractors) is now integrated in its entirety to FAR Part 8.
Sheppard Mullin Comments / Observations
FAR Part 12: Acquisition of Commercial Products and Commercial Services
Removes content that is outdated, redundant, or otherwise unnecessary.
Notably, removes two foundational "master" clauses: * 52.212-3, Offeror Representations and Certifications - Commercial Products and Commercial Services * 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders - Commercial Products and Commercial Services
46 clauses and provisions from other FAR parts are removed as they are no longer required for commercial contracts. This reflects an approximate 30% reduction in the number of clauses and provisions that are applicable to commercial contracts.
Summary of Deletions
Retains the following: * Procurement of Commercial Products and Commercial Services (10 U.S.C. §§ 3451 et seq) * Preference for Commercial Products and Commercial Services (10 U.S.C. § 3453 and 41 U.S.C. § 3307) * Rights in Technical Data (10 U.S.C. § 3771 and 41 U.S.C. § 2302) * Payments for Commercial Products and Commercial Services (10 U.S.C. § 3805 and 41 U.S.C. § 4505) * Commercial Product (41 U.S.C. § 103) * Commercial Service (41 U.S.C. § 103a) * Commercially Available Off-the-Shelf Item (41 U.S.C. § 104) * Procurement Notice (41 U.S.C. § 1708) * Federal Acquisition Streamlining Act of 1994 (FASA) (Pub. L. 103-355) * Defense Commercial Pricing Management Improvement (Pub. L. 105-261 Sec 803)
Retains the following clauses: * 52.212-1, Instructions to Offerors - Commercial Products and Commercial Services * 52.212-2, Evaluation - Commercial Products and Commercial Services * 52.212-4, Terms and Conditions - Commercial Products and Commercial Services
Summary of Retentions
There are no major substantive changes to Part 12. Most of the changes are made to streamline the requirements, but the statutory requirements for procurements of commercial products and commercial services remain. Simplified procedures for commercial acquisitions have been moved from Part 13 to Part 12, which includes simplified procedures for acquisitions up to $7.5 million (or $15 million to support responses to emergencies or major disasters).
Part 12 retains the preference to use commercial products or commercial services when the agency determines they are available to meet the agency's needs. Part 12 is also revised to clarify if commercial products or commercial services are available from any priority source identified in Part 8, including existing contracts awarded for Governmentwide use (e.g., Federal Suppy Schedules and Governmentwide acquisition contracts) agencies should procure the commercial prodcuts and commercial services from that source.
Part 12 also retains the preference to utilize fixed-prive contracts to the maximum extent practicable.
At first glance, the removal of 52.212-3 and 52.212-5 appear to be substantive, but Part 12 now includes clause matrices and instructions contracting officers to select the applicable clauses and include them in the solicitations and contracts, which is functionally equivalent to the non-removed clauses.
Sheppard Mullin Comments / Observations
FAR Part 38: Federal Supply Schedule Contracting
This Part has been deleted in its entirety, with statutory and essential text moved to FAR Part 8 (which then directs the reader to GSAM/R 538).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
FAR Part 38 (Federal Supply Schedule Contracting) has been moved to GSAM/R 538 in its entirety.
Sheppard Mullin Comments / Observations
FAR Part 40: Information Security and Supply Chain Security
Deletes prohibition on procurement and operation of UAV manufactured by American Security Drone Act covered foreign entities.
Deletes exemptions for DHS, DoD, DoS, DOJ, DOT, NTSB, and NOAA.
Deletes exceptions for wildlife management operations, search and rescue operations, intelligence activities, tribal law enforcement, and emergency service agencies.
Deletes security requirements for classified information.
Summary of Deletions
Retains statutory requirements: (1) Federal Acquisition Supply Chain Security Act (FASCA) (41 U.S.C. §§ 1321 et seq) (2) Authorities Related to Mitigating Supply Chain Risks in the Procurement of Covered Articles (41 U.S.C. § 4713) (3) Federal Information Policy (44 U.S.C. §§ 3501 et seq) (4) Prohibition on Use of Products and Services Developed or Provided by Kaspersky Lab (Pub. L. 115-91 Section 1634) (5) Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment (Pub. L. 115-232 Section 889) (6) Requirements to Identify and Control the Export of Emerging and Foundational Technologies (Pub. L. 115-232 Section 1758) (7) Strengthening and Enhancing Cyber-capabilities by Utilizing Risk Exposure Technology Act (SECURE Technology Act) (Pub. L. 115-390) (8) Prohibition on the Use of TikTok (Pub. L. 117-328 Div R Section 102) (9) Prohibition on Procurement of Covered Unmanned Aircraft Systems from Covered Foreign Entities (Pub. L. 118-31 Section 1823)
Summary of Retentions
FAR Part 40 consolidates are security requirements into one part of the FAR. FAR Part 40 is organized into three key subparts: (1) Subpart 40.1 - Processing Supply Chain Risk Information (2) Subpart 40.2 - Security Prohibitions and Exclusions (3) Subpart 40.3 - Safeguarding Information
Sheppard Mullin Comments / Observations
FAR Part 51: Use of Government Sources by Contractors
This Part has been deleted in its entirety, with statutory and essential text moved to FAR Part 8.
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
FAR Part 51 (Use of Government Sources by Contractors) is now integrated in its entirety to FAR Part 8.
Sheppard Mullin Comments / Observations
FAR Part 5: Publicizing Contract Actions
Deletes the word "synopsis" throughout.
Deletes policy in 5.002 of publishing contract action to assist veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns in obtaining contacts.
Moves definition of Govermentwide point of entry from 5.003 to Part 2 because the definition applies to multiple FAR parts.
Deletes methods of dissemination such as "periodic handouts," "assisting local trade associations," and "brief announcements" in papers and trade publications to make the governmentwide point of entry (GPE) (as well as paid advertisement) the primary method of dissemination.
Deletes most "special sitiations" and moves them to 5.103 Special Notices, retaining notices for Federal Funded Research and Development Centers (FFRDC), and consolidation, bundling, and substantial bundling.
Deletes (and consolidates) content requirements for each notice (e.g., proposed solicitation number, place of contract performance, destination information, delivery schedule, duration of contract period, etc.).
Deletes local announcement option for agencies.
Deletes Subpart 5.4 (Release of Information), which was largely duplicative of the general posting guidance throughout the part.
Deletes Subpart 5.6 (Publicizing Multi-Agency Use Contracts), which required agencies to enter information into a specific governmentwide database of contracts was deleted.
Deletes Subpart 5.7 (Publicizing Requirements Under the American Recovery and Reinvestment Act of 2009 (ARRA)) because ARRA is no longer in effect.
Summary of Deletions
Retains Statutory Requirements including: (1) Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings (5 U.S.C. § 552) (2) Procurement Notice (15 U.S.C. § 637(e) and 41 U.S.C. § 1708) (3) Notices of Subcontracting Opportunities (15 U.S.C. § 637(k)) (4) Availability of Information (15 U.S.C. § 637b) (5) Awards or contracts (15 U.S.C. § 644) (6) Advertisements for Contracts (44 U.S.C. § 3701-3703) (7) Small Business Innovation Development Act of 1982 (Pub. L, 97-219)
Retains all exceptions to publicizing contract actions.
Summary of Retentions
The FAR Part 5 revisions will simplify and how contract opportunities are publicized by consolidating their publication to the Governmentwide Point of Entry (GPE) (which currently is designated as SAM.gov). The description of contract opportunities may also appear simpler and more straightforward.
The FAR Part 5 revisions also change the policy reasons for contract publication by removing the focus on veteran-owned, service-disabled veteran-owned, HUBZone, women-owned, and small disadvanged business concerns. Instead the policy focus is simply on small business. This is somewhat surprising given this Administration's earlier communications (for example, by Executive Order) that preferences for veterans would remain.
The FAR Part 5 revisions use newly titled and organized subparts that align with the acquisition lifecycle (5.1 Presolicitation, 5.2 Solicitation, and 5.3 Award).
The FAR Part 5 revisions also use tables rather than dense paragraphs to present complex information. Those tables include: * Table 5-1, which identifies solicitation language required for trade agreements. * Table 5-2 which clarifies posting timeframes for presolicitation notice. * Table 5-3 which identifies timeframes for receipt of quotations or offers. * Table 5-4 which clarifies posting timeframes for award notices.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 18: Emergency Acquisitions
Removes Subpart 18.1, Available Acquisition Flexibilities, which provides a list of generally available FAR flexibilities that contracting officers may use to support emergencies.
These flexibilities are available and can be used without a formal emergency declaration or contingency operation designation.
Removal from the FAR is based on the rationale that this list is available in non-regulatory sources, for example on Acquisition.gov (https://acquisition.gov/emergency-procurement) in Practitioner Albums, FAR Companion Guide and/or Category Buying Guide.
Summary of Deletions
Retains Subpart 18.2, Emergency Acquisition Flexibilities, (now Subpart 18.001), which provides a list of FAR flexibilities available only during certain emergencies: (1) contingency operations, (2) defending or recovering from national security events, (3) supporting State Department or USAID requests during international disasters, (4) supporting major disaster responses, or (5) humanitarian/ peacekeeping missions.
Summary of Retentions
The circumstances triggering the FAR's emergency acquisition provisions — as well as the increased thresholds, commercial procecures, and award preferences that those provisions provide — remain unchanged. This should come as no surprise as such procedures are almost entirely mandated by statute.
Sheppard Mullin Comments / Observations
FAR Part 39: Acquisition of Information and Communication Technology
Deletes FAR 39.105 - Privacy, which related to safeguarding requirements for IT contractors (better addressed by FAR subpart 4.19, Basic Safeguarding of Covered Contractor Information Systems).
Deletes FAR 52.239-1 - Privacy or Security Safeguards (better addressed through FAR 52.204-21, Basic Safeguarding of Covered Contractor Information Systems and the CUI rule).
Deletes prohibitions already covered by FAR subparts 4.20 (Kapersky prohibition), 4.21 (Section 889 prohibition), 4.22 (prohibition on ByteDance), 4.23 (FASCA orders), and Far Part 40 (Information Security and Supply Chain Security).
Removes reference to OMB Circular A-127, which was rescinded in September 2013 via OMB Memo M-13-23.
Removes reference to OMB Circular A-130, Managing Information as a Strategic Resource.
Removes prescriptive instructions for establishing modular contracts to the FAR Companion Guide.
Removes prohibition on describing minimum experience or educational requirements in solicitations (now discretionary).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
The revisions clarify that the scope of Part 39 applies to Information Technology, Internet of Things (IoT) Devices, Emerging Technology, and Operational Technology.
The revisions significantly streamline IT acquisitions by deleting requirements that are outdated, are redundant/overlap with other FAR parts (i.e., that are not unique to IT procurements), and are unnecessary (e.g., references to internal OMB guidance documents that have been rescinded).
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 33: Protests, Disputes, and Appeals
Deletes the definition of "Protest Venue" because the term no longer appears in Part 33.
Certain descriptions of processes were removed and cross-references to other sections were added instead. For example, Part 33 no longer describes the GAO protest procedures and instead references 4 CFR Part 21, “Bid Protest Regulations."
Numerous procedural sections have been consolidated into a single, overarching section titled "Postaward" at 33.205
Summary of Deletions
Part 33 retains nearly all substantive requirements because they are based in the following statutes: * Administrative Dispute Resolution Act (ADRA) (5 U.S.C. §§ 571 et seq.) * Availability of Funds Following Resolution (31 U.S.C. § 1558) * Procurement Protest System (31 U.S.C. §§ 3551 et seq.) * Contract Disputes (41 U.S.C. §§ chapter 7101 et seq.) And the requirements in E.O. 12979, Agency Procurement Protests
The following clauses are retained: * 52.233-1 Disputes, revised to now describe what a defective certification means. * 52.233-2 Service of Protest, revised to require protests to be shared with the contracting office within one day of filing with the GAO. * 52.233-3 Protest After Award, revised to describe steps for protests post award, such as stop work orders. *52.233-4 Applicable Law for Breach of Contract Claim, remains the same that U.S. law will be applied to address breach.
Summary of Retentions
The substance of Part 33 remains in tact, which is not surprising. Most changes are made to streamline and shorten Part 33 where applicable, such as referencing the GAO Bid Protest Regulations rather than repeating them.
Part 33 does have a new Purpose statement which sets forth the objectives of the bid protest process (e.g., promote integrity in the process, deter abuse of the bid protest process), and emphasizes that it is not intended to serve as a way for offerors to get additional insight or be used by incumbents to delay contract transition.
There are also some new requirements for agency-level protests primarily to aid in collecting data on such protests.
Sheppard Mullin Comments / Observations
FAR Part 49: Termination of Contracts
Removes certain non-regulatory sections and subsection to the FAR Companion Guide (coming soon): - 49.108-7 Government assistance in settling subcontracts (which allows the Government to provide assistance to a prime contractor for settling a subcontract), - 49.113 Cost principles, and - 49.405 Completion by another contractor (which allows the government to arrange for completion of the work by making an award to another contractor).
Summary of Deletions
Retains statutory requirements including: - False Claims (31 U.S.C. § 3729) - Contract Disputes Act (41 U.S.C. §§ 7101 et seq (Pub L 95-563))
Section 49.000 (Scope of Part) has been simplified but retains the core scope of establishing policies and procedures for early termination of contracts.
Section 49.001 (Definitions) have retained but simplified/updated for plain language.
Section 49.002 (Applicability) is retained and updated for plain language with a simpler structure.
Subparts 49.1 (General Principles), 49.2 (Additional Principles for Fixed-Price Contracts Terminated for Convenience), 49.3 (Additional Principles for Cost-Reimbursement Contracts Terminated for Convenience), 49.4 (Termination for Default), 49.5 (Contract Termination Clauses), 49.6 (Contract Termination Forms and Formats) and the sections therein, remain mostly intact but have been streamlined a bit, including some shifting and reorganizing of sections and subsections throughout.
All existing clauses are retained with no changes to the text.
Summary of Retentions
There have been no major substantive edits/changes to this section. Most of the substance has been retained (with a few small sections removed to the forthcoming FAR Compainion Guide), and deletions primarily focused on plain language edits that increase readability by decreasing the word count by over 2,500 words.
Sheppard Mullin Comments / Observations
FAR Part 9: Contractor Qualifications
Subsection 9.104-2 (Special Standards), Section 9.106 (Preaward surveys), Subpart 9.6 (Contractor Team Arrangements), and Subpart 9.7 (Defense Production Pools and Research and Development Pools) have been moved to the FAR Companion Guide.
The AbilityOne Program (Section 9.107) is covered in part 8 and nuances of pre-award surveys relevant to the AbilityOne Program has been moved to the FAR Companion Guide.
Outdated and redundant content has been removed. For instance, Section 9.000 (Scope of Part) has been removed for duplicative language, and the term “Surveying activity” has been removed.
Summary of Deletions
Retains statutory requirements including: (1) Prohibition on Contracts with Corporate Expatriates (6 U.S.C. § 395) (2) Planning and Solicitation Requirements (10 U.S.C. § 3206 and 41 U.S.C § 3306) (3) Qualification requirements (10 U.S.C. § 3243 and 41 U.S.C.§ 3311) (4) Measures Against Activities that Violate Arms Control Treaties (22 U.S.C. § 2593e) (5) Responsible Source (41 U.S.C. § 113) (6) Ethics Safeguards Related to Contractor Conflicts of Interest (41 U.S.C. § 2303) (7) Conflict of Interest Standards for Consultants (41 U.S.C. § 2304) (8) Database for Suspension and Debarment Officials (41 U.S.C.§ 2313) (9) Uniform Suspension and Debarment (Pub. L. 103-355 Sec 2455) (10) Clarification of Uniform Suspension and Debarment Requirement (Pub. L. 111-84 Sec 815) (11) Preventing Organization Conflicts of Interest in Federal Acquisition (Pub. L. 117-324) (12) Debarment and Suspension (E.O. 12549 and E.O. 12689)
Retains Subparts 9.1 - 9.3, which are streamlined and reorganized.
Retains Subparts 9.4 and 9.5, while updating them with plain language.
Retains all existing provisions and clauses with no change to the text.
Summary of Retentions
Generally, the revisions here do not substantively change requirements for contractors. All exisiting provisions and clauses have been retained with no change. However, Part 9 has been streamlined and updated with plain language.
Sheppard Mullin Comments / Observations
FAR Part 46: Quality Assurance
Deletes Section 46.105 (Contractor Responsibilities) because it is redundant.
Deletes Section 46.704 (Authority for use of warranties) because language that warranty use requiring approval from agency procedures does not need to be in the FAR.
Summary of Deletions
Retains statutory requirements: (1) Value Engineering (41 U.S.C. § 1711) (2) Preference for Commercial Products and Commercial Services (41 U.S.C.§ 3307) (3) Federal Acquisition Streamlining Act of 1994 (FASA) (P.L. 103-355) (4) Detection and Avoidance of Counterfeit Electronic Parts (Pub. L. 112-81 Sec 818)
Retains Subparts 46.1, 46.2, 46.3, 46.4, 46.5, 46.6, 46.7, 46.8 and the sections therein, which are streamlined and reorganized.
Retains all Definitions at 46.101.
All existing clauses are retained with no changes to the text.
Summary of Retentions
The revisions to Part 46 do not substantively change requirements for contractors. All exisiting clauses have been retained with no change.
Sheppard Mullin Comments / Observations
FAR Part 10: Market Research
Deletes market research requirements for consolidation and bundling procurements (already addressed in FAR Part 7).
Deletes market research requirements for disaster relief procurements (already addressed in FAR Part 26).
Removes Subpart 10.002 ("Procedures"), which provides specific market research considerations and techniques, to the FAR Companion Guide.
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
The only true deletions from FAR Part 10 were requirements that already exist elsewhere: consolidation and bundling procurement requirements (FAR Part 7) and disaster relief purchasing requirements (FAR Part 26).
The revisions streamline the mandatory market research requirements to ensure: (1) the agency is identifying legitimate needs, and (2) any market research is appropriate to the circumstances.
The other procedures previously included in FAR Part 10 that are not required by law are being moved to “Practitioner Albums, FAR companion guide[s] (coming soon) and/or category Buying Guide[s] (coming soon).”
By removing these procedures from the FAR, in theory, Contracting Officers will have more flexibility in determining the right approach to market research for each individual procurement.
The proposed revisions once again emphasize the longstanding preference for commercial products and services.
Sheppard Mullin Comments / Observations
FAR Part 34: Major System Acquisition
Deletes sections 34.001-34.005, which provided non-statutory guidance for the acquisition of major systems.
Deletes FAR 52.234-2 (Notice of EVMS Preaward Integrated Baseline Review) and FAR 52.234-3 (Notice of EVMS Postaward Integrated Baseline Review).
Summary of Deletions
Retains FAR Subpart 34.1 - Testing, Qualification and Use of Industrial Resources Developed under Title III, Defense Production Act, which provides testing/qualification requirements for Industrial Resources as required by statute.
Retains Subpoart 34.2 - Earned Value Management System, which requires EVMS in major acquisitions for development as required by OMB Circular A-11.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 50: Extraordinary Contractual Actions and the Safety Act
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
There are no substantive changes to FAR Part 50. The revisions focus on plain language edits, which reduce Part 50's word count by just over 500 words.
Sheppard Mullin Comments / Observations
FAR Part 28: Bonds and Insurance
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
The statutorily required content remains, inclduing -
Surety Bond Guarantees (15 U.S.C. §§ 694a et seq) Prompt Payment (31 U.S.C. §§ 3901 et seq) Sureties and Surety Bonds (31 U.S.C. §§ 9301 et seq) Bonds (40 U.S.C.§§ 3131 et seq) Defense Base Act (42 U.S.C. § 1651 et seq) Government-wide Application of Payment Protections for Subcontractors and Suppliers (Pub. L. 103-355 Sec 2091) Surety Bond Requirements and Amount of Guarantee (Pub. L. 114-92 Sec 874)
“Definitions” at 28.001 are retained, streamlined, and updated for clarity.
All existing subparts are retained and updated with plain language: 28.1 - Bonds and Other Financial Protections 28.2 - Sureties and Other Security for Bonds 28.3 - Insurance
All clauses and provisions 52.228-1 through 52.228-17 are retained (or remain reserved if previously reserved), with no changes to the text.
Summary of Retentions
This one is easy: All content in this PArt has been retained with minimal deletions and minor updates made for plain language. No changes were made to provisions or clauses.
Sheppard Mullin Comments / Observations
FAR Part 30: Cost Accounting Standards Administration
Removes instructions for contracting officers to support the determination of a contract's exemption from cost accounting standards from 30.202-7 (adequacy determinations) to the FAR Companion Guide.
There are no longer six subparts. Content from subparts 30.5 and 30.6 has been moved and reorganized within the new part structure.
The contact information for "Cost Accounting Standards Board Publication," (at former section 30.102) is removed and the part now includes a direct hyperlink to the electronic Code of Federal Regulations, providing immediate access to the source regulations.
The prescription at 30.201-3(b), which applied to awards contemplated to an educational institution prior to 1997 is obsolete and removed.
Summary of Deletions
Much of the content in this Part is statutory and has been retained, including: -Required Cost or Pricing Data and Certification (10 U.S.C. § 3702) -Restructuring Costs (10 U.S.C. § 3761) -Determination of Rate of Interest (26 U.S.C. § 6621) -Cost Accounting Standards (41 U.S.C. §§ 1501 et seq) -Cost Accounting Standards Board (Pub. L. 100-679 Sec 5) -Streamlined Applicability of Cost Accounting Standards (Pub. L. 106-65 Sec 802)
Although the substance has been retained, the content from subparts 30.5 (Cost Accounting Standards for Educational Institutions) and 30.6 (CAS Administration) have been moved and reorganized within the new four-part structure.
The following provisions and clauses have been retained (with plain language edits and cross-references within the part): -52.230-1 Cost Accounting Standards Notices and Certifications -52.230-2 Cost Accounting Standards -52.230-3 Disclosure and Consistency of Cost Accounting Practices -52.230-4 Disclosure and Consistency of Cost Accounting Practices-Foreign Concerns -52.230-5 Cost Accounting Standards-Educational Institution -52.230-6 Administration of Cost Accounting Standards
52.230-7 (Proposal Disclosure-Cost Accounting Practice Changes) has been retained with no changes.
Summary of Retentions
Sheppard Mullin Comments / Observations
Sorry eveyone, the Cost Accounting Standards are statutory and haven't gone away. The revisions to this Part are significant, though focus primarily on format over substance. The entire Part has been completely reorganized to align with the acquisition lifecycle (as we've seen, this is a theme throughout the FAR rewrite). To be fair, this format does make a lot more sense - it is now organized into four (instead of six) process-oriented subparts: (1) General (2) Presolicitation (3) Evaluation and Award (4) Postaward
FAR Part 48: Value Engineering
Removes to the FAR Companion Guide (coming soon):
- 48.101(b), which provides details of the two value engineering approaches and 48.103 (Procedding value engineering change proposals).
- 48.102(e) (information on calculating profit or fees for value engineering change proposal savings).
- Information on establishing sharing periods and rates (previously in 48.104 Sharing Arrangements).
Deletes 48.000 (Scope of Part)
Summary of Deletions
Retains statutory requirements, including:
Value Engineering (41 U.S.C. § 1711)
Value Engineering (OMB Circular A-130)
All clauses are retained (with no changes to the text).
The following prescriptive information (previously covered in 48.104, Sharing Agreements) is retained as reflected in the following clauses:
- 52.248-1(f) covers information previously in 48.104-2 Sharing acquisition savings
- 52.248-3(j) covers information previously in 48.104-3 Sharing collateral savings
- 52.248-1(i)(5) covers information previously in 48.104-4 Sharing alternative-no-cost settlement method
Prescriptive information previously covered in 48.105 Relationship to Other Incentives is retained as reflected in clause 52.248-1(k).
Summary of Retentions
The revisions to this section focus on readability rather than substance, with the plain language edits reducing this part by nearly 3,000 words (70%).
Sheppard Mullin Comments / Observations
FAR Part 29: Taxes
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
Retains statutory requirements, including - (1) Imposition of Tax (26 U.S.C. § 4041) (2) Exemptions (26 U.S.C. § 4053) (3) Gas Guzzler Tax (26 U.S.C. § 4064) (4) Certain Tax Free Sales (26 U.S.C. § 4221) (5) Tax Exemptions (26 U.S.C. § 4293 and § 4483) (6) Imposition of Tax on Certain Foreign Procurement (26 U.S.C. § 5000C) (7) Transportation of Humanitarian Relief Supplies to Foreign Countries (10 U.S.C. § 402) (8) Foreign Disaster Assistance (10 U.S.C. § 404) (9) Domestic Emergency Assistance (10 U.S.C. § 2557) (10) Humanitarian Assistance (10 U.S.C. § 2561)
Retains Subpart 29.1 (Resolving Tax Problems) but now requires COs to consult legal counsel when tax issues arise
Retains Subpart 29.2 (Federal Excise Taxes) but now requires COs to request offers on a tax-exclusive basis when the law exempts the government from federal excise taxes
Retains all clauses prescribed under Part 29 (except 52.229-13 and 52.229-14) but revised with plain language
Summary of Retentions
Most of the provisions in Part 29, as well as the clauses they prescribe, are required by tax statutes. The revisions thus focus on readability. According to the Practicer Album, the revisions resulted In an approximately 20% reduction in word count.
Notably, the revisions tweak the language to place greater onus on COs to ultilize tax exemptions. For example, Part 29.2 - Federal Excise Taxes previously stated that COs "should solicit prices on a tax-exclusive basis." Now, Part 29.2 directs that "Executive agencies must take advantage of available Federal excise tax exemptions. When the law exempts the Federal Government from these taxes, the contracting officer must, unless inappropriate for the circumstances, request offers on a tax-exclusive basis."
Sheppard Mullin Comments / Observations
FAR Part 31: Contract Cost Principles and Procedures
Deletes certain definitions that are well-known business definitions or otherwise defined in the Cost Accounting Standards (e.g., "Actual Cash Value" and "Labor Market")
Summary of Deletions
Retains statutory requirements, including - (1) Armed Service Procurement Act of 1947 (Public Law 413) (2) Allowable Costs (41 U.S.C. Chapter 43 and 10 U.S.C. Chapter 273) (3) Claims Against the United States Government (31 U.S.C. Chapter 37, Subchapter III) (4) Major Fraud Against the United States (18 U.S.C. § 1031) (5) Uniform Administrative Requirements, Cost Principles, And Audit (6) Requirements for Federal Awards (2 C.F.R. Part 200) (7) The Cost Principles for Educational Institutions; State, Local, and Federally Recognized Indian Tribal Governments; and Nonprofit Organizations (31 U.S.C. Chapter 11, 31 U.S.C. §§ 503-504, 31 U.S.C. §6307, 31 U.S.C. §§7501-7507) (8) The Cost Principles for Commercial Organizations (10 U.S.C. and 41 U.S.C.)
Summary of Retentions
The FAR Part 31 revisions are largly stylistic, rather than substantive. Recognizing that Part 31 is deeply rooted in appropriations law, as well as the need for uniformity across Government, the revisions focus on plain language edits (the Practitioner Album boasts that these edits reduced the word count by more than 1,300, but even the revised Part 31 is just shy of 29,000 words).
Sheppard Mullin Comments / Observations
FAR Part 49: Termination of Contracts
Removes certain non-regulatory sections and subsection to the FAR Companion Guide (coming soon): - 49.108-7 Government assistance in settling subcontracts (which allows the Government to provide assistance to a prime contractor for settling a subcontract), - 49.113 Cost principles, and - 49.405 Completion by another contractor (which allows the government to arrange for completion of the work by making an award to another contractor).
Summary of Deletions
Retains statutory requirements including: - False Claims (31 U.S.C. § 3729) - Contract Disputes Act (41 U.S.C. §§ 7101 et seq (Pub L 95-563))
Section 49.000 (Scope of Part) has been simplified but retains the core scope of establishing policies and procedures for early termination of contracts.
Section 49.001 (Definitions) have retained but simplified/updated for plain language.
Section 49.002 (Applicability) is retained and updated for plain language with a simpler structure.
Subparts 49.1 (General Principles), 49.2 (Additional Principles for Fixed-Price Contracts Terminated for Convenience), 49.3 (Additional Principles for Cost-Reimbursement Contracts Terminated for Convenience), 49.4 (Termination for Default), 49.5 (Contract Termination Clauses), 49.6 (Contract Termination Forms and Formats) and the sections therein, remain mostly intact but have been streamlined a bit, including some shifting and reorganizing of sections and subsections throughout.
All existing clauses are retained with no changes to the text.
Summary of Retentions
There have been no major substantive edits/changes to this section. Most of the substance has been retained (with a few small sections removed to the forthcoming FAR Compainion Guide), and deletions primarily focused on plain language edits that increase readability by decreasing the word count by over 2,500 words.
Sheppard Mullin Comments / Observations
FAR Part 7: Acquisition Planning
Removes Section 7.105 (Contents of Written Acquisition Plans) and moves it to the FAR Companion Guide.
Deletes Section 7.200 (Scope of Subpart ) regarding economic quantities of purchases, as it is unnecessary.
Deletes Section 7.204 (Responsibilities of Contracting Officers) as the content is covered by FAR 52.207-4.
Deletes Subpart 7.3 (Contractor Versus Government Performance and its underlying sections) as Congress has consistently placed a statutory hold on A-76 competitions since 2008.
Deletes Section 7.403, paragraphs (a) and (b), which described the types of assistance available from the General Services Administration (GSA).
Summary of Deletions
Retains Statutory Requirements including: (1) Planning and Solicitation (41 U.S.C. §§ 3301 et seq) (2) Preference for Commercial Products and Commercial Services (10 U.S.C. § 3453) (3) Consolidation of Contract Requirements (15 U.S.C. § 657q) (4) Awards or Contracts (15 U.S.C. § 644) (5) Cost-Effectiveness Analysis of Equipment Rental (Pub. L. 115-254, Sec 555) (6) Performance of Inherently Governmental and Critical Functions (OFPP Policy Letter 11-01)
Subpart 7.000(a) is revised from "Developing acquisition plans" to "Acquisition planning and developing acquisition plans" to cover the entire planning process, not just the act of creating a document.
The definitions in section 7.101 have been retained but most simplified to improve clarity.
Retains Section 7.104 (General Procedures), which highlights that early planning can create opportunities to structure the procurement approach in a way that promotes competition and innovation.
Retains Section 7.107 (Additional Requirements for Acquisitions Involving Consolidation, Bundling, or Substantial Bundling) and updates it to streamline and standardize the analysis, determination, and notification requirements so that there are no longer separate requirements for each with the goal of ensuring this important step in the acquisition process is understood by the workforce. Specifically, 7.107-1(a) retains the requirement for market research before conducting an acquisition that consolidates or bundles requirements.
Retains Section 7.108 (Additional Requirements for Teleworking) and update it to reflect modern terminology and simplified language. For example, “telecommuting” has been updated to “teleworking”.
Retain the prescriptive information covered in section 7.204 (Responsibilities of Contracting Officers) in provision 52.207-4.
Retains section 7.403, retitling from "General Services Administration Assistance and OMB Guidance," to "OMB Guidance." The content of the former paragraph (c), which provides references to relevant OMB circulars, has been retained and updated with new hyperlinks. Additionally, the process agencies use to perform a lease-versus-purchase analysis remains intact in clause 52.207-5.
Retains subpart 7.5 (Inherently Governmental Functions) and revises it for clarity and readability, primarily through plain-language edits, and structural reorganization.
Summary of Retentions
Part 7 is streamlined and now focused on flexibility. That is, rather than a prescriptive checklist, the revisions favor a dynamic planning process. For example, there is no longer a requirement for acquisition plans with specific elements. Nonetheless, planning is still a requirement, and the acquisition plans should be scaled along with the scope of the solution.
A new section 7.102 establishes fundamental requirements for all acquisition planning. It mandates that agencies establish procedures for determining when a written or oral plan is needed and lists high-level outcomes that planning must promote acquisition of commercial products or services, full and open competition, selection of appropriate contract type, use of existing contracts.
As another example, section 7.103 has been updated from a list of specific tasks to a list of high-level responsibilities for agency heads.
Sheppard Mullin Comments / Observations
FAR Part 24: Protection of Privacy and Freedom of Information
Deleted section 24.301 Privacy Training because it is duplicative and already covered in clause 52.224-3
Summary of Deletions
Retained all substantive content in this part, which is based in the following statutes: * Freedom of Information Act (5 U.S.C.§ 552 ) * Privacy Act of 1974 (5 U.S.C. § 552a (Pub. L. 93-579)) * Confidentiality (5 U.S.C. § 574) * Prohibition on Release of Contractor Proposals (10 U.S.C. § 3309 and 41 U.S.C. § 4702) * Submission of Other Information (10 U.S.C. § 3705 and 41 U.S.C. § 3505) * Managing Information as a Strategic Source (OMB Circular No. A-130)
Summary of Retentions
The changes to this Part are very minimal and not substantive.
Sheppard Mullin Comments / Observations
FAR Part 8: Requied Sources of Supplies and Services
Subpart 8.4 (ordering procedures under the Federal Supply Schedule) have been moved into the General Services Acquisition Manual (GSAM/R).
Removes subpart 8.1 (Excess Personal Property) to the Federal Management Regulation (41 CFR 102-36), to avoid outdated information.
Deletes section 8.001 (General), which contained a general requirement for IT acquisitions to comply with captial planning rules.
Deletes the following clauses associated with Leasing of Motor Vehicles: 52.208-4, Vehicle Lease Payments 52.208-5, Condition of Leased Vehicles 52.208-6, Marking of Leased Vehicles 52.208-7, Tagging of Leased Vehicles
Summary of Deletions
Retains requirement that agencies conduct market research before (1) developing new requirements documents, (2) soliciting offers for acquisitions over the Simplified Acquisition Threshold, or (3) awarding a task or delivery order over the Simplified Acquisition Threshold.
Retains preference for commercial products and services (10 U.S.C. 3453), planning and solicitation requirements (41 U.S.C. 3306), and effective communication between government and industry (41 U.S.C. 1703 note, inclusive of 41 U.S.C. 3301 et seq and 41 U.S.C. 2101 et seq.).
Retains Competition in Contracting Act requirements (CICA) (41 U.S.C. 3301 et seq)
Summary of Retentions
FAR Part 8 has been updated significantly. At a high level, it has been reorganized and restructured to follow the logical flow of the acquisition lifecycle (as other Parts have). It has also been revised to attempt to simplify the mandatory source guidance and to make clear that Governmentwide Best-In-Class (BIC) contracts are mandatory. Specifically, BIC contracts or BPAs are now required to be used when a commercial product or commercial service meets an agency’s need, unless approved by the Head of the Contracting Activity (HCA). If a BIC is not suitable, agencies should consider use of an existing governmentwide contract, BPA, or shared service. The revisions also retain focus on the importance of the AbilityOne Program.
The ordering procedures have been moved to the GSAM/R (part 538) in an attempt to enhance the speed of acquistion. A few key highlights of the updated ordering procedures for FSS include: (1) Quotations are not offers (RFQ procedures are not considered "source selection" and as such, there is no requirement for evaluation plans, quotation scoring, or establishing a competitive range before communicating with quoters or soliciting revised quotes) (2) Flexibilities with FSS BPAs (single-award BPA restrictions have been lifed and ordering procedures for multiple-award BPAs offer greater discretion) (3) No additional contractor responsibility determination (Agencies can rely on the contractor responsibility determined by GSA at the FSS contract level) (4) Brief explanation, not debriefing (The timeline for requesting a brief explanation has been clarified to three (3) days, aligning with general debriefing timelines) (5) Increased contractor access to Government supply sources (whereas contractor use of Government supply sources - previously under FAR Part 38) was largely restrcted to cost-reimbursement type contracts, agencies may now authorize contractors to use Government supply sources (including non-mandatory sources like FSS) to obtain necessary supplies/services when it is determined in the Government's interest.
Finally, the revisions consolidate certain FAR Parts - FAR Part 38 (Federal Supply Schedule Contracting) moved to GSAM/R 538 in its entirety, and FAR Part 51 (Use of Government Sources by Contractors) is now integrated in its entirety to FAR Part 8.
Sheppard Mullin Comments / Observations
FAR Part 26: Other Socioeconomic Programs
Removes the procedures for challenging representations under the Indian Incentive Program with the intent to incorporate them into the FAR Companion Guide
Removes information pertaining to the Disaster Response Registry with the intent to incorporate the information into the FAR Companion Guide
Removes procedures related to the Food Donation Program with the intent to information them into the FAR Companion Guide
Removes Subpart 26.3 Historically Black Colleges and Universities and Minority Institutions, Section 26.303, Data collection and reporting requirements, because such information is already captured through the Federal Procurement Data System
Removes Subpart 26.6, Encouraging Contractor Policies to Ban Text Messaging While Driving Section 26.601, Purpose, Section 26.602, Applicability, and Section 26.603 Definitions. Clause 52.226-8 retains the definitions.
Summary of Deletions
Retains the following statutory requirements: * Registry of Disaster Response Contractors (6 U.S.C. § 796) * Additional Compensation to Contractors of Federal Agency (25 U.S.C. § 1544) * Drug Free Workplace (41 U.S.C. §§ 8101 et seq) * Promoting Federal Food Donation (42 U.S.C. § 1792) * Use of Local Firms and Individuals (42 U.S.C. § 5150) * Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 100-707 (42 U.S.C. §§ 5121 et seq)) * Amendments to Special Emergency Procurement Authority (Pub. L. 114-328 Section 816) * Special Emergency Procurement Authority to Facilitate the Defense Against or Recovery from a Cyber Attack (Pub. L. 114-328 Section 1641) * Promoting Procurement with Historically Black Colleges and Universities, and Minority Institutions (EO 12928)
Also retains: * The 5% incentive payment for utilizing Indian organizations and Indian-owned economic enterprises as subcontractors remains allowable at 26.102-1. * The statutory preference for awarding contracts to local firms in the aftermath of a major disaster or emergency remains at 26.202-1. * The policy to encourage the participation of Historically Black Colleges and Universities and Minority Institutions in federal procurement continues at 26.301-1. * The policy encouraging contractors to donate excess wholesome food remains the same at 26.404-1.
Summary of Retentions
All of the original subparts remain in this Part, but they have been reorganized follow the acquisition process (i.e., steps to take before solicitation vs. after award). As such, the changes to this Part largely include removal of redunant sections and/or information that can be found in the related contract clauses. As we've seen in other Parts, the changes retain the substantive statutory requirements of this Part, and signal a plan to include in the forthcoming FAR Companion Guide some of the procedures previously found in this Part.
Sheppard Mullin Comments / Observations
FAR Part 3: Improper Business Practices and Personal Conflicts of Interest
Deletes Subsection 3.103-3, The need for further certifications, because it is discretionary instruction.
Deletes Section 3.301,General, because it provided general background on anticompetitive practices but contained no enforceable rule or procedures.
Deletes Section 3.406, Records, because it is redundant of existing record retention requirements.
Deletes Section 3.907, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (the Recovery Act), including all subsections, as obsolete because it was specific to contracts funded by the ARRA Recovery Act, a 2009 economic stimulus package. Removing this section includes deleting clause 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009.
Summary of Deletions
Retains the fundamental ethical rules.
All subparts remain and keep the same structure. All existing provisions and clauses are retained with no changes to the text.
Retains Statutory Requirements including: (1) Expenditure of Appropriations: Limitation (10 U.S.C. § 4651) (2) Prohibition of Contractors Limiting Subcontractor Sales Directly to Federal Government (10 U.S.C. § 4655 and 41 U.S.C. § 4704) (3) Acts Affecting a Personal Financial Interest (18 U.S.C. § 208) (4) Voiding Transactions in Violation of Chapter (18 U.S.C. § 218) (5) Procurement Integrity Act (41 U.S.C. § 2101 et seq) (6) Notification of Violations of Federal Criminal Law or Overpayments (41 U.S.C. § 3509) (7) Enhancement of Contractor Protection from Reprisal for Disclosure of Certain Information (41 U.S.C. § 4712) (8) Anti-Kickback Act of 1986 (41 U.S.C. § 8701 et seq) (9)Principles of Ethical Conduct for Government Officers and Employees (E.O. 12731)
Summary of Retentions
FAR Part 3 has been retained with minimal deletions and minor updates made for plain language and streamlining. The fundamental rules of ethical conduct remain exactly the same.
Sheppard Mullin Comments / Observations
FAR Part 17: Special Contracting Methods
Deletes content from previous section 17.105-2 about the objectives and benefits of multiyear contracting; content from previous section 17.203 and 17.204 reflecting best practices for options in solicitations and contract; content from previous section 17.4, reflecting procedures and best practices on Leader Company contracting; and content from previous section 17.802(c) reflecting best practices for reverse auctions, and moves it to the FAR Companion.
Deletes section 17.107, Options, and section 17.205, Documentation, as they were outdated, redundant, or otherwise unnecessary.
Deletes section 17.604, Identifying management and operating contracts, which is criteria for identifying management and operating contracts.
Summary of Deletions
Retains Statutory Requirements (1) Multiyear Contracts (10 U.S.C. § 3501 and 41 U.S.C. § 3903) (2) Limitations on Expending and Obligating Amounts (31 U.S.C. § 1341) (3) The Economy Act (31 U.S.C. § 1535) (4) Preventing Abuse of Interagency Contracts (Pub. L. 110-417 Sec. 865) (5) Internal Controls for Procurements on Behalf of the Department of Defense by Certain Non-defense Agencies (Pub. L. 110-181 Sec. 801)
The “Policy” for multiyear contracting is moved to subsection 17.103-1. It was revised to include two statutory requirements for DoD when considering a multiyear contract for supplies: (b)(6): The contract must promote national security of the United States; (b)(7): For contracts valued at $500,000,000 or more, the Secretary must certify that specific conditions outlined in 10 U.S.C. 3501 will be met.
Retains and restructures Subpart 17.1, Multiyear Contracting, deleting and consolidating some sections, and creating new sections for relocated and revised content.
Retains and restructures Subpart 17.2, Options, consolidating some sections, and creating new sections for relocated and revised content.
Content from section 17.207, Exercise of Options, is streamlined and moved to section 17.204-1.
Reorders and moves subparts 17.6 and 17.7 creating a logical flow by placing interagency acquisitions content in sequential order.
Moves Supart 17.7 to Subpart 17.6 and changes it to Interagency Acquisitions: Acquisitions by Non-defense Agencies on Behalf of the Department of Defense.
Moves Subpart 17.6 to Subpart 17.7 and changes it to Management and Operating Contracts.
Retains and expands Section 17.000, Scope of Part, to provide a more complete list of the special contracting methods covered within the part.
Retains Subpart 17.3 and it remains Reserved.
Retains and streamlines Subpart 17.4, Leader Company Contracting.
Retains and updates Subpart 17.5, Interagency Acquisitions, with plain-language revisions and formatted to improve clarity.
Retains and reorganizes the following subparts to align with the acquisition lifecycle stages (Presolicitation, Evaluation, and Award, and Postaward): 17.1, Multiyear Contracting; 17.2, Options; 17.7, Management and Operating Contracts; and 17.8, Reverse Auctions.
Retains all clauses and provisions prescribed in this part, and the following provisions have been updated to reflect current cross-references: 52.217-4 , Evaluation of Options Exercised at Time of Contract Award; and 52.217-5 , Evaluation of Options.
Retains clauses 52.217-8, Option to Extend Services, and 52.217-9, Option to Extend Term of Contract, and it remains the same and must still be completed by the acquisition team.
Summary of Retentions
Part 17 is streamlined by organizing information in a way that's easier to understand and use; combining related topics and removing repeated information; and making the language clearer through simpler sentences and formatting.
Sheppard Mullin Comments / Observations
FAR Part 27: Patents, Data, and Copyrights
The best practices and procedures guidance was moved to the FAR Companion from the following sections: Section 27.102, General Guidance; Subsection 27.202-1, Reporting of Royalties; Section 27.204, Patented Technology Under Trade Agreements; Subpart 27.3 Policy on patent rights under government contracts; Section 27.305, Administration of Patent Rights Clauses (i.e., Securing invention rights acquired by the Government, Protection of invention disclosures); Subpart 27.4, treatment of Rights in Data and Copyrights; Section 27.406, Acquisition of Data; Section 27.408, Cosponsored Research and Development Activities; and Subpart 27.5, Foreign License and Technical Assistance Agreements
Deletes Section 27.302, Policy, detailing the Government's comprehensive policy and objectives for patent rights under contracts becuase it is outdated, redundant, or otherwise unnecessary.
Deletes Subsection 27.304-1(a), Status as small business concern or nonprofit organization, has because the content is duplicative of FAR part 19.
Deletes and marks "Reserved" Section 27.402, Policy, which explained the government's need for data and the importance of balancing its needs with contractors' proprietary interests, becuase it is outdated, redundant, or otherwise unnecessary.
Deletes and marks "Reserved" Section 27.406-1 (a) and (c), General.
Summary of Deletions
Retains statutory requirements: (1) Copyrights, Patents, Designs (10 U.S.C. § 3793) (2) Research and Development (15 U.S.C. § 638) (3) Copyrights (17 U.S.C. §§ 101 et. seq) (4) Disclosure of Classified Information (18 U.S.C. § 798) (5) Patent and Copyright Cases (28 U.S.C. § 1498) (6) Patent Rights in Inventions Made with Federal Assistance (35 U.S.C. §§ 200 et. seq.) (7) Rights in Technical Data (41 U.S.C. § 2302)
Retains Section 27.000, Scope of Part, with a minor plain language update.
Retains and streamlines Subpart 27.1, General.
Retains and streamlines Subpart 27.2, Patents and Copyrights, and continues to provide guidance regarding patent and copyright infringement liability; royalties; and security requirements for patent applications containing classified subject matter.
Retains and streamlines Section 27.202, Royalties, by reserving all procedural subsections (27.202- 1 thru 27.202-4) and retaining only subsection 27.202-5, Solicitation provisions and contract clause.
Retains and streamlines Subpart 27.3, Patent Rights under Government Contracts.
Retains 27.304, Procedures, because it provides critical guidance on the legal application of the patent clauses.
Summary of Retentions
FAR Part 27 has been updated with important plain language updates, enhanced clarity, and improved readability.
The approach for special works (27.405-1) and existing works (27.405-2) has changed. The previous version prescribed the use of specific contract clauses (52.227-17 and 52.227-18). The section now provides descriptive guidance, instructing that contracts "must specifically address the Government's rights" and that agencies are "authorized to specially negotiate" terms.
The Rights in Technical Data in Successful Proposals, has been updated. The update removes the clause at 52.227-23, Rights to Proposal Data (Technical). The new section 27.407 consists of a single, broader sentence that highlights the Government’s discretion.
Sheppard Mullin Comments / Observations
FAR Part 45: Government Property
Content from subsections 45.104 (b) and (d), Responsibility and liability for Government property was moved to the FAR Companion.
Content from subsection 45.201 (d), solicitation instructions or property management was moved to the FAR Companion.
Content from subsection 45.606 (b), Contractor scrap procedures was moved to the FAR Companion.
Summary of Deletions
Retains statutory requirements: * Exchange or sale of similar items (40 U.S.C. § 503) * Duties of Executive Agencies (40 U.S.C. § 524) * Contractor Inventories (40 U.S.C. § 546)
Summary of Retentions
The changes to this Part are very minimal. The only deletions are to provisions related to the CO's discretionary considerations and will be moved to the FAR companion.
Sheppard Mullin Comments / Observations
FAR Part 4: Administrative and Information Matters
Deletes recommended content and best practices for contract files (Subpart 4.1) and moves them to the forthcoming FAR Companion Guide.
Moves Subparts 4.4, 4.19, 4.20, 4.21, and 4.23 to RFO FAR Part 40 because they are all security-related.
Deletes Subpart 4.2, Contract Distribution, because it prescribed procedures for distributing paper copies of contracts, which is now obsolete due to electronic systems.
Summary of Deletions
Retains Statutory Requirements including: (1) Information Concerning Transactions With Other Persons (26 U.S.C. §§ 6041 et seq) (2) Identifying Numbers (26 U.S.C. § 6109) (3) Using Procurement Contracts (31 U.S.C. § 6303) (4) Taxpayer Identifying Number (31 U.S.C. § 7701) (5) Functions, Federal Procurement Data System (41 U.S.C. § 1122) (6) Record Requirements (41 U.S.C. § 1712) (7) Use of Electronic Commerce in Federal Procurement (41 U.S.C. § 2301) (8) Examination of Facilities and Records of Contractor (41 U.S.C. § 4706) (9) Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282) (10) Digital Accountability and Transparency Act of 2014 (Pub. L. 113-101)
Retains Subpart 4.0, Scope, but revises it to remove reference to security-related provisions.
Retains Subpart 4.7 on Contact Records Retention.
Subparts 4.4-4.23 are retained, streamlined, and/or moved throughout the new subpart structure.
Summary of Retentions
The FAR Part 4 revisions primarily focus on streamlining and consolidating relevant guidance into process-oriented subparts. The revisions also move the security-related subparts, provisions, and clauses to FAR Part 40.
The FAR Part 4 revisions update Subpart 4.2 to cover "Solicitation, Evaluation, and Award," which combines section into a more coherent process-oriented grouping of provisions. (1) Subpart 4.16, Unique Procurement Instrument Identifiers, is moved to Subpart 4.201, and streamline the procurement instrument identifier (PIID) information into a clearer table. (2) Subpart 4.10, Uniform Use of Line Items, is moved to Subpart 4.202, retaining the policy to promote consistent line item structure across awards. (3) Subpart 4.1, Contracting Officer’s and Contractor’s Signature is moved to 4.206 & 4.207. A key modernization is explicitly allowing digital signatures for both Government and contractor personnel using a PIV or CAC certificate. (4) Subparts 4.11 and 4.12, System for Award Mangement, are consolidated and moved to 4.203, which streamlines exceptions to SAM registration and clarifies procedures for verifying active registration. Moves the list of 33 representations and certifications from 4.1202 into 52.204-7 as the authoritative source, with procedural details now in the provision. (5) Subpart 4.9 is consolidated and simplifed to 4.204, Taxpayer Identification Information (TIN) by directly linking collection of the contractor’s TIN to either SAM registration via 52.204-7 or, if not required to register, to 52.204-90 (Offeror Identification). (6) Supart 4.13 moves and condenses pre-award PIV policies to 4.205, Personal Identity Verification (PIV). Post-award PIV card return requirement relocated to the new post-award subpart at 4.302. (7) Multiple subparts regarding prescription hub for all solicitation- and award-phase provisions and clauses (e.g., 4.1105, 4.1303, 4.1403) are consolidated to subpart 4.208, Solicitation Provisions and Contract Clauses.
The FAR Part 4 revision updates Subpart 4.3 to cover "Post-award," which combines section into a more coherent process-oriented grouping of provisions. (1) Subpart 4.6 is consolidated to Subpart 4.301, Contract Reporting, which governs reporting in the Federal Procurement Data System (FPDS). (2) Subpart 4.13 is moved to Subpart 4.302, Return of PIV Cards. (3) Subpart 4.17 is updated and moved to Subpart 4.303, Service Contracts Inventory, updating reporting requirements to maintain transparency of service contract usage. However, reporting is no longer required for commercial services contracts. (4) Subpart 4.18 and content from 4.1102(d) are moved to 4.304, System for Award Management & 4.305, Contractor Identification, to cover separate post-award SAM and identification requirements from pre-award. (5) Subpart 4.14 is moved to Subpart 4.306, Executive Compensation, to cover post-award reporting requirement for executive compensation and first-tier subcontract awards. However, reporting is no longer required for commercial services contracts. (6) Sections 4.203 and 4.902 are consolidated into 4.307, Payment Office to cover requirements for providing payment-related information (TIN, UEI, EFT). (7) Sections 4.804 and 4.805 are reorganized and moved to 4.308, Contract Closeout & 4.309, Storage, Handling, and Contract Files, to cover closeout and file-handling requirements to align with the post-award phase.
Sheppard Mullin Comments / Observations
FAR Part 18: Emergency Acquisitions
Removes Subpart 18.1, Available Acquisition Flexibilities, which provides a list of generally available FAR flexibilities that contracting officers may use to support emergencies.
These flexibilities are available and can be used without a formal emergency declaration or contingency operation designation.
Removal from the FAR is based on the rationale that this list is available in non-regulatory sources, for example on Acquisition.gov (https://acquisition.gov/emergency-procurement) in Practitioner Albums, FAR Companion Guide and/or Category Buying Guide.
Summary of Deletions
Retains Subpart 18.2, Emergency Acquisition Flexibilities, (now Subpart 18.001), which provides a list of FAR flexibilities available only during certain emergencies: (1) contingency operations, (2) defending or recovering from national security events, (3) supporting State Department or USAID requests during international disasters, (4) supporting major disaster responses, or (5) humanitarian/ peacekeeping missions.
Summary of Retentions
The circumstances triggering the FAR's emergency acquisition provisions — as well as the increased thresholds, commercial procecures, and award preferences that those provisions provide — remain unchanged. This should come as no surprise as such procedures are almost entirely mandated by statute.
Sheppard Mullin Comments / Observations
FAR Part 28: Bonds and Insurance
Deletes FAR 29.403-4 (Taxes for foreign contracts in Afghanistan), which prescribed tax requirements for foreign contracts in Afghanistan, because the Status of Forces Agreement expired in 2021. The revision also deletes the clauses previously prescribed by that section: 52.229-13: Taxes—Foreign Contracts in Afghanistan and 52.229-14: Taxes—Foreign Contracts in Afghanistan (NATO Status of Forces Agreement)
The definitions of NATO Forces and U.S. Forces in Afghanistan have been removed for the same reasons noted above.
Removes information in FAR 29.304 (Matters requiring special consideration), with content regarding North Carolina taxes now reflected in Section 29.303.
Summary of Deletions
The statutorily required content remains, inclduing -
Surety Bond Guarantees (15 U.S.C. §§ 694a et seq) Prompt Payment (31 U.S.C. §§ 3901 et seq) Sureties and Surety Bonds (31 U.S.C. §§ 9301 et seq) Bonds (40 U.S.C.§§ 3131 et seq) Defense Base Act (42 U.S.C. § 1651 et seq) Government-wide Application of Payment Protections for Subcontractors and Suppliers (Pub. L. 103-355 Sec 2091) Surety Bond Requirements and Amount of Guarantee (Pub. L. 114-92 Sec 874)
“Definitions” at 28.001 are retained, streamlined, and updated for clarity.
All existing subparts are retained and updated with plain language: 28.1 - Bonds and Other Financial Protections 28.2 - Sureties and Other Security for Bonds 28.3 - Insurance
All clauses and provisions 52.228-1 through 52.228-17 are retained (or remain reserved if previously reserved), with no changes to the text.
Summary of Retentions
This one is easy: All content in this PArt has been retained with minimal deletions and minor updates made for plain language. No changes were made to provisions or clauses.
Sheppard Mullin Comments / Observations
FAR Part 46: Quality Assurance
Deletes Section 46.105 (Contractor Responsibilities) because it is redundant.
Deletes Section 46.704 (Authority for use of warranties) because language that warranty use requiring approval from agency procedures does not need to be in the FAR.
Summary of Deletions
Retains statutory requirements: (1) Value Engineering (41 U.S.C. § 1711) (2) Preference for Commercial Products and Commercial Services (41 U.S.C.§ 3307) (3) Federal Acquisition Streamlining Act of 1994 (FASA) (P.L. 103-355) (4) Detection and Avoidance of Counterfeit Electronic Parts (Pub. L. 112-81 Sec 818)
Retains Subparts 46.1, 46.2, 46.3, 46.4, 46.5, 46.6, 46.7, 46.8 and the sections therein, which are streamlined and reorganized.
Retains all Definitions at 46.101.
All existing clauses are retained with no changes to the text.
Summary of Retentions
The revisions to Part 46 do not substantively change requirements for contractors. All exisiting clauses have been retained with no change.
Sheppard Mullin Comments / Observations
FAR Part 44: Subcontracting Policies and Procedures
Restructures Part 44 to consolidate guidance into subparts by the acquisition lifecycle: * Subpart 44.1 - Reserved * Subpart 44.2 - Evaluation and Award * Subpart 44.3 - Postaward * Subpart 44.4 - Subcontracts for Commercial Products and Commercial Services
Deletes the definition of "Approved Purchasing System" because it exists in clause 52.244-2. Deletes the use of Administrative Contracting Officer and uses Contracting Officer instead.
Consolidates policies in subpart 44.2 related to subcontract consent, advance notification, and the contracting officer's evaluation process. Specifically, the new 44.201-3(b) provides a shorter, higher-level list of four situations that necessitate "careful and thorough review and consideration" of the request to subcontract, rather than the detailed 13-point checklist that the contracting officer was required to consider in the previous section 44.202-2(a). 44.201-1 Consent Requirements and 44.202-2 Considerations, which provide additional guidance on notice and consent best practices for commercial time and materials contracts, has been moved to the FAR Companion.
Subpart 44.3 is reorganized and streamlined into five subsections (from seven subsections). 44.303 Extent of review, 44.306 Disclosure of approval status, and 44.307 Reports, which provide procedures for Contractor Purchasing System Reviews (CPSRs) are significantly streamlined and best practices moved to the FAR Companion.
Section 44.402 now breaks down “Requirements” into three distinct categories that improve readability: * Preference (for commercial products and services) * Flowdown (rules for flowing down clauses) * Inapplicable laws (laws that do not apply to commercial products and services)
52.244-6, Subcontracts for Commercial Products and Commercial Services, is retained with streamlining updates to reflect other RFO changes and references.
Summary of Deletions
Retains statutory requirements: * Advance Notice of Certain Subcontracts (10 U.S.C. § 3322(c) and 41 U.S.C. § 3905(c)) * Preference for Commercial Products and Commercial Services (41 U.S.C. § 3307)
The following clauses are retained (or remain reserved if previously reserved) with no changes to the text. * 52.244-1, Reserved * 52.244-2, Subcontracts * 52.244-3, Reserved * 52.244-4, Subcontractors and Outside Associates and Consultants (Architect-Engineer Services) * 52.244-5, Competition in Subcontracting
Summary of Retentions
Part 44 describes the policies and procedures for Contracting Officer consent to subcontracts or advance notice of subcontracts for review and approval of a contractor's purchasing system. Most of the substantive requirements are found in statute and retained in the revised part. Most of the changes and deletions are made to consolidate the information but the substance remains.
Sheppard Mullin Comments / Observations
FAR Part 45: Government Property
Deletes Section 46.105 (Contractor Responsibilities) because it is redundant.
Deletes Section 46.704 (Authority for use of warranties) because language that warranty use requiring approval from agency procedures does not need to be in the FAR.
Summary of Deletions
Retains statutory requirements: (1) Value Engineering (41 U.S.C. § 1711) (2) Preference for Commercial Products and Commercial Services (41 U.S.C.§ 3307) (3) Federal Acquisition Streamlining Act of 1994 (FASA) (P.L. 103-355) (4) Detection and Avoidance of Counterfeit Electronic Parts (Pub. L. 112-81 Sec 818)
Retains Subparts 46.1, 46.2, 46.3, 46.4, 46.5, 46.6, 46.7, 46.8 and the sections therein, which are streamlined and reorganized.
Retains all Definitions at 46.101.
All existing clauses are retained with no changes to the text.
Summary of Retentions
The revisions to Part 46 do not substantively change requirements for contractors. All exisiting clauses have been retained with no change.
Sheppard Mullin Comments / Observations
FAR Part 13: Simplified Acquisition Procedures for Noncommercial Acquisitions
A significant amount of content has been streamlined (i.e., line edits to promote readability), deleted from Part 13, or removed/shifted to other parts of the FAR.
The following clauses were moved/deleted: - 52.213-1, Fast Payment Procedure. Fast payments procedures will be moved to FAR part 32. - 52.213-2, Invoices. General payment procedures will be covered in FAR part 32. - 52.213-3, Notice to Supplier. The streamlined procedures and the general principles of offer and acceptance are deemed adequate without this specific clause.
Additionally, the following sections have been moved/shifted to other Parts: - Section 13.001, Definitions, of “governmentwide commercial purchase card” is moved to section 2.101. - Section 13.106-1(a), Soliciting Competition, content regarding price or cost evaluation factors for multiple-award contracts will move to FAR part 16. - Section 13.401, General, for micro-purchases, now points to FAR part 12 when making purchases below the MPT ensuring that the simplest and most common type of acquisition is governed by a single, consistent set of rules, regardless of whether the item is commercial or noncommercial. - Subpart 13.5, Simplified Procedures for Certain Commercial Products and Commercial Services has been revised and moved to FAR part 12.
Summary of Deletions
Despite the significant changes, much of Part 13 has been retailed, including:
Statutory Requirements: - 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)
The Sections that have been retained include: - Section 13.001, Applicability, retains the prohibition on splitting requirements to stay below the SAT and now includes a dynamic list of laws that do not apply to acquisitions below the SAT. - Section 13.101, Competition, retains that agencies must promote competition to the "maximum extent practicable." - Section 13.102, Small Business, retains that acquisitions of supplies or services that have an anticipated dollar value above the micro-purchase threshold (MPT), but at or below the SAT, must be set aside for small business concerns. - Sections 13.201, Procedures, and 13.202,Evaluation, contain cross references to FAR part 12. - Section 13.204, Contract Clauses, authorizes the use of the revised clause for a streamlined set of terms and conditions for inspection/acceptance, excusable delays, terminations, and warranties. - Section 13.301, Notifications, consolidates instructions for notifying unsuccessful quoters. It retains posting requirements of FAR subpart 5.3. and brief explanations. - Section 13.302, Cancellations and Terminations, now provides a clearer distinction between canceling an unaccepted purchase order and terminating an accepted purchase order and directs the contracting officer to FAR part 49 or clause 52.213-4 for terminations. - Section 13.303, Contractor Financing and Payments, now instructs readers to see FAR part 32 for payment procedures, including fast payment procedures which was previously covered in 13.4
Summary of Retentions
Part 13 has been modified significantly. At a high-level, it now has a clear focus on simplified procedures for noncommercial acquisitions valued at or below the simplified acquisition threshold (whereas Part 12 deals exclusively with commercial acquisitions). The procedures in this Part may only be used if: (1) There are no commercial products or services that can satisfy the agency's needs (outlined in FAR Part 12), and (2) The supplies or services are not available from a required source (outlined in FAR Part 8). As we've seen in other parts, Part 13 has also been streamlined and has a new structure that mirrors the acquisition lifecycle (presolicitation; solicitation, evaluation and award; postaward). Finally, several sections (requred by statute) have been moved to other parts of the FAR.
Sheppard Mullin Comments / Observations
FAR Part 17: Special Contracting Methods
Deletes content from previous section 17.105-2 about the objectives and benefits of multiyear contracting; content from previous section 17.203 and 17.204 reflecting best practices for options in solicitations and contract; content from previous section 17.4, reflecting procedures and best practices on Leader Company contracting; and content from previous section 17.802(c) reflecting best practices for reverse auctions, and moves it to the FAR Companion.
Deletes section 17.107, Options, and section 17.205, Documentation, as they were outdated, redundant, or otherwise unnecessary.
Deletes section 17.604, Identifying management and operating contracts, which is criteria for identifying management and operating contracts.
Summary of Deletions
Retains Statutory Requirements (1) Multiyear Contracts (10 U.S.C. § 3501 and 41 U.S.C. § 3903) (2) Limitations on Expending and Obligating Amounts (31 U.S.C. § 1341) (3) The Economy Act (31 U.S.C. § 1535) (4) Preventing Abuse of Interagency Contracts (Pub. L. 110-417 Sec. 865) (5) Internal Controls for Procurements on Behalf of the Department of Defense by Certain Non-defense Agencies (Pub. L. 110-181 Sec. 801)
The “Policy” for multiyear contracting is moved to subsection 17.103-1. It was revised to include two statutory requirements for DoD when considering a multiyear contract for supplies: (b)(6): The contract must promote national security of the United States; (b)(7): For contracts valued at $500,000,000 or more, the Secretary must certify that specific conditions outlined in 10 U.S.C. 3501 will be met.
Retains and restructures Subpart 17.1, Multiyear Contracting, deleting and consolidating some sections, and creating new sections for relocated and revised content.
Retains and restructures Subpart 17.2, Options, consolidating some sections, and creating new sections for relocated and revised content.
Content from section 17.207, Exercise of Options, is streamlined and moved to section 17.204-1.
Reorders and moves subparts 17.6 and 17.7 creating a logical flow by placing interagency acquisitions content in sequential order.
Moves Supart 17.7 to Subpart 17.6 and changes it to Interagency Acquisitions: Acquisitions by Non-defense Agencies on Behalf of the Department of Defense.
Moves Subpart 17.6 to Subpart 17.7 and changes it to Management and Operating Contracts.
Retains and expands Section 17.000, Scope of Part, to provide a more complete list of the special contracting methods covered within the part.
Retains Subpart 17.3 and it remains Reserved.
Retains and streamlines Subpart 17.4, Leader Company Contracting.
Retains and updates Subpart 17.5, Interagency Acquisitions, with plain-language revisions and formatted to improve clarity.
Retains and reorganizes the following subparts to align with the acquisition lifecycle stages (Presolicitation, Evaluation, and Award, and Postaward): 17.1, Multiyear Contracting; 17.2, Options; 17.7, Management and Operating Contracts; and 17.8, Reverse Auctions.
Retains all clauses and provisions prescribed in this part, and the following provisions have been updated to reflect current cross-references: 52.217-4 , Evaluation of Options Exercised at Time of Contract Award; and 52.217-5 , Evaluation of Options.
Retains clauses 52.217-8, Option to Extend Services, and 52.217-9, Option to Extend Term of Contract, and it remains the same and must still be completed by the acquisition team.
Summary of Retentions
Part 17 is streamlined by organizing information in a way that's easier to understand and use; combining related topics and removing repeated information; and making the language clearer through simpler sentences and formatting.
Sheppard Mullin Comments / Observations
FAR Part 14: Sealed Bidding
The following non-regulatory sections were moved to the FAR Companion to support best practices and sound procurement applications: -Subsection 14.201-8, Price-related factors -Section 14.208, Amendment of invitation for bids -Section 14.202-1, Bidding time -Section 14.207, Pre-bid conference -Section 14.209, Cancellation of invitations before opening -Subsection 14.407-2(b) and (c), Apparent clerical mistakes, regarding corrections -Subsection 14.404-1(d), Cancellation of invitations after opening, regarding extensions -Subsection 14.408-1(b), General, regarding a limited number of bids.
Additionally, the following sections were deleted to modernize/streamline the language or because the provisions were redundant: - Section 14.105, Solicitations for informational or planning purposes. - Subsection 14.202-3, Bid envelopes. - Subsection 14.202-7, Facsimile Bids. - Provision 52.214-31, Facsimile Bids. - Section 14.211, Release of Acquisition Information ( adequately covered in other parts of the FAR 3, 5, 36). - Subsection 14.408-8, Protests against Award (adequately covered elsewhere in the FAR 33).
Summary of Deletions
Retains Statutory Requirements: -Full and Open Competition (10 U.S.C. § 3201 and 41 U.S.C. § 3301) -Planning and Solicitation Requirements (10 U.S.C. § 3206 and 41 U.S.C. § 3306) -Basis of Award and Rejection (10 U.S.C. § 3301 and 41 U.S.C. § 3701) -Sealed Bids (10 U.S.C. § 3302 and 41 U.S.C. § 3702) -Required Cost or Pricing Data and Certification (10 U.S.C. § 3702 and 41 U.S.C. § 3502) -Procurement Notice (41 U.S.C. § 1708) -Use of Electronic Commerce in Federal Procurement (41 U.S.C. § 2301)
A number of other provisions and clauses were retained with no changes: -52.214-4 (Provision), False Statements in Bids -52.214-6 (Provision), Explanation to Prospective Bidders -52.214-10 (Provision), Contract Award—Sealed Bidding -52.214-12 (Provision), Preparation of Bids -52.214-14 (Provision), Place of Performance—Sealed Bidding -52.214-15 (Provision), Period for Acceptance of Bids -52.214-16 (Provision), Minimum Bid Acceptance Period -52.214-18 (Provision), Preparation of Bids—Construction -52.214-19 (Provision), Contract Award—Sealed Bidding—Construction -52.214-20 (Provision), Bid Samples -52.214-21 (Provision), Descriptive Literature -52.214-22 (Provision), Evaluation of Bids for Multiple Awards -52.214-24 (Provision), Multiple Technical Proposals -52.214-27 (Clause), Price Reduction for Defective Certified Cost or Pricing Data—Modifications—Sealed Bidding -52.214-29 (Clause), Order of Precedence—Sealed Bidding -52.214-34 (Provision), Submission of Offers in the English Language -52.214-35 (Provision), Submission of Offers in U.S. Currency
Other clauses and provisions were upated (for clarity and to correct cross-referneces): -52.214-3 (Provision), Amendments to Invitations for Bids -52.214-5 (Provision), Submission of Bids -52.214-7 (Provision), Late submissions, modifications, and withdrawals of bids -52.214-23 (Provision), Late submissions, modifications, revisions, and withdrawals of technical proposals under two-step sealed bidding -52.214-25 (Provision), Step Two of Two-Step Sealed Bidding -52.214-26 (Clause), Audit and Records—Sealed Bidding -52.214-28 (Clause), Subcontractor Certified Cost or Pricing Data—Modifications—Sealed Bidding
Summary of Retentions
As with other updated parts, Part 14 has been updated primarily with simplified language (e.g., consolidation, plain language revisions) and has been reorganized to mirror the acquisition lifecycle (Subpart 14.1 - General, Subpart 14.2 - Presolicitation, Subpart 14.3 - Evaluation and Award, and Subpart 14.4 - Postaward). To provide guidance for a common post-award activity, there is a new section (in the Postaward subpart) 14.402 Pricing Modifications that provides a direct cross-reference to FAR Part 15 for policies and procedures relating to cost and price. negotiation for modifications
Sheppard Mullin Comments / Observations
FAR Part 19: Small Business
The following non-regulatory content was moved to the FAR Companion: -Set-asides for orders under multiple-award contracts (former 19.504) -Determining the appropriate NAICS code for the solicitation (former 19.102) -Office of Small Business Disadvantaged Business (OSDBU) (former 19.201) -Encouraging small business participation in acquisitions (former 19.201-1) -Identification of manufacturers (former 19.505) -Price evaluation preference for HUBZone small business concerns (former 19.1307)
Deletes content that is outdated, redundant, or otherwise unnecessary: -Section 19.203, Relationship among small business programs, is removed -Section 19.502-5, Insufficient reasons for not setting aside an acquisition, has been deleted. -Section 19.602-3, Resolving differences between the agency and the SBA, -Section 19.706, Responsibilities of the cognizant administrative contracting officer, is removed -Section 19.707, The Small Business Administration's role in carrying out the program, is removed -Section 19.707, The Small Business Administration's role in carrying out the program, is removed -52.219-32 (Clause), Orders Issued Directly Under Small Business Reserves, is removed
Summary of Deletions
Statutory Requirements are retained: -Exclusion of Particular Source or Restriction of Solicitation to Small Business Concerns (10 U.S.C. § 3203 and 41 U.S.C. § 3303) -Small Business Act (15 U.S.C. §§ 631 et seq) -Small Business Concerns (41 U.S.C. § 3104)
The following provision and clauses are retained (or remain reserved) with no changes: -52.219-5, Reserved -52.219-7 (Clause), Notice of Partial Small Business Set-Aside -52.219-11 (Clause), Special 8(a) Contract Conditions -52.219-12 (Clause), Special 8(a) Subcontract Conditions -52.219-13 (Clause), Notice of Set-Aside of Orders -52.219-15, Reserved -52.219-17 (Clause), Section 8(a) Award -52.219-18 (Clause), Notification of Competition Limited to Eligible 8(a) Participants -52.219-19 thru 52.219-26, Reserved -52.219-31 (Provision) Notice of Small Business Reserve
Throughout the part, references to the Dynamic Small Business Search (DSBS) site was updated to the Small Business Search (SBS) site.
Summary of Retentions
At a high-level this part reinforced that the Government's policy is to provide opportunities (to the maximum extent practicable) to small businesses, 8(a) participants, and other small business socio-economic categories. Although some were unsure about the viability of these programs under the Trump Administration, there has been no removal of benefits for HUBZone small business, small disadvantaged business, and women-owned small business concerns (though many of these are statutory requirements).
Indeed, most of the substantive requirements in this section have been retained, although they have been reorganized to align with the "workflow of a contracting professional," and again, to reflect the acquisition lifecycle (presolicitation, evaluation and award, postaward). Notably, it keeps the "rule of two" for contracts, but eliminates it for orders (though contracting officers may - at their discretion - set asside orders placed under multiple-award contracts). Additionally, it removes the representation requirements when ordering off an existing contract and agency small business credit is driven by the size determination made by the contracting officer at the contract-level and now only needs to be updated when certain contract-level events take place, e.g., option exercise, novation, etc.
Sheppard Mullin Comments / Observations
FAR Part 37: Service Contracting
Removes the following non-statutory best practices to the FAR Companion: -Examples of various types of service contracts (former section 37.101) -Factors that aid in determining whether a contract is for personal services (former section 37.104) -Strategic inclusion of “continuity of services” and “option to extend services” clauses (former section 37.111) -Management Oversight of Service Contracts, relevant information pertaining to best practices (former subpart 37.5)
Deletes content that is outdated, redundant, or otherwise unnecessary: -The definition of Nonpersonal services contract, previously at former section 37.101, is deleted as unnecessary. -Former 37.102 (paragraphs b, e, f, g, h, i, j), which included general policy statements on relying on the private sector, cost-effectiveness, fraud prevention, workforce training, and lowest price technically acceptable (LPTA) limitations, has been removed because these policies are already covered in FAR parts 1, 7, and 15. - Former sections 37.105, 37.107, 37.108, 37.111, and 37.604 covering competition, service contract labor standards, small business certificates of competency, service extensions, and Quality Assurance Surveillance Plans have been deleted because the content is already addressed in FAR parts 6, 17, 19, 22, and 46 respectively. -Former subpart 37.5, Management Oversight of Service Contracts has been deleted because management oversight is considered a fundamental agency responsibility governed by broader, government-wide policy, making a specific subpart in the FAR unnecessary.
Summary of Deletions
Retains the following statutory requirements: -Employment Authorities (5 U.S.C. §§ 3101 et seq) -Severable Services Contracts for Periods Crossing Fiscal Years (10 U.S.C. § 3133 and 41 U.S.C. § 3902) -Specific Costs not Allowable (10 U.S.C. § 3744 and 41 U.S.C. § 4304) -Contracts for Professional and Technical Services (10 U.S.C. § 4507) -Requirement for Background Checks (34 U.S.C. § 20351) -Wage Rate Requirements (40 U.S.C. §§ 3141 et seq) -Contracting Functions Performed by Federal Personnel (41 U.S.C. § 1709) -Advisory and Assistance Services (41 U.S.C. § 4105) -Service Contract Labor Standards (41 U.S.C. §§ 6701 et seq) -Improvements in Procurements of Services (Pub. L. 106-398, Sec 821)
The following provisions and clauses are retained with no changes to text: -52.237-1 (Provision), Site Visit -52.237-2 (Clause), Protection of Government Buildings, Equipment, and Vegetation -52.237-3 (Clause), Continuity of Services -52.237-4 (Clause), Payment by Government to Contractor -52.237-5 (Clause), Payment by Contractor to Government -52.237-6 (Clause), Incremental Payment by Contractor to Government -52.237-10 (Provision), Identification of Uncompensated Overtime
The following provision and clauses are updated to correct cross-references: -52.237-7 (Clause), Indemnification and Medical Liability Insurance -52.237-8 (Provision), Restriction on Severance Payments to Foreign Nationals -52.237-9 (Clause), Waiver of Limitation on Severance Payments to Foreign Nationals
Summary of Retentions
The revisions to this part are focused on clarity. For example, it clarifies the relationship between the Performenace Wrok Statement and the Statement of Objectices, consolidates and re-writes the subpart on Personal Services (including providing the characteristics of personal services contracts and retention of the requirement that agencies must not contract for personal services absent a specific statutory authorization, and it provides more complete, unified guidance on "Inherently Governmental Functions." Additionally, it adds a new subpart (37.1 Performance-based Acquisition) that consolidates and elevates the PBA policy - i.e., that PBAs must be used to the maximum extent practicable. Finally, as we're seeing consistently throughout this re-write, the section has been reorganized and retitled to follow the acquisition lifecycle (Presolicitation, evaluation and award, and postaward).
Sheppard Mullin Comments / Observations
FAR Part 41: Acquisition of Utility Services
Very minor content that was outdated, redundant, or otherwise unnecessary was removed.
Summary of Deletions
Statutory Requirements are retained: -Services for Executive Agencies (40 U.S.C. § 501) -Electric Utility Contracts (42 U.S.C. § 2204) -Department of Energy Organization Act (42 U.S.C. § 7251 et. seq.) -Authority to Enter into Contracts (42 U.S.C. § 8287)
Summary of Retentions
This part has been retained with minor changes to improve clarity. The most notable updates here are to the definitions - services such as broadband internet and information technology services, which were nascent or nonexistent when the original regulation was drafted, are now explicitly carved out. The definition of “utility service” includes continuous service such as furnishing electricity, natural or manufactured gas, water, sewerage, thermal energy, chilled water, steam, hot water, or high temperature hot water for use in the United States. Utility services does not include: broadband internet, non-broadcast television, telecommunications services, information technology services, acquisitions of natural or manufactured gas when not purchased as utility services (i.e., when purchased as commodities). The purpose of this carve-out is to prevent agencies from incorrectly applying utility acquisition procedures for these services and to reduce the risk of improper sole-source justifications.
Sheppard Mullin Comments / Observations
FAR Part 17: Special Contracting Methods
Deletes content from previous section 17.105-2 about the objectives and benefits of multiyear contracting; content from previous section 17.203 and 17.204 reflecting best practices for options in solicitations and contract; content from previous section 17.4, reflecting procedures and best practices on Leader Company contracting; and content from previous section 17.802(c) reflecting best practices for reverse auctions, and moves it to the FAR Companion.
Deletes section 17.107, Options, and section 17.205, Documentation, as they were outdated, redundant, or otherwise unnecessary.
Deletes section 17.604, Identifying management and operating contracts, which is criteria for identifying management and operating contracts.
Summary of Deletions
Retains Statutory Requirements (1) Multiyear Contracts (10 U.S.C. § 3501 and 41 U.S.C. § 3903) (2) Limitations on Expending and Obligating Amounts (31 U.S.C. § 1341) (3) The Economy Act (31 U.S.C. § 1535) (4) Preventing Abuse of Interagency Contracts (Pub. L. 110-417 Sec. 865) (5) Internal Controls for Procurements on Behalf of the Department of Defense by Certain Non-defense Agencies (Pub. L. 110-181 Sec. 801)
The “Policy” for multiyear contracting is moved to subsection 17.103-1. It was revised to include two statutory requirements for DoD when considering a multiyear contract for supplies: (b)(6): The contract must promote national security of the United States; (b)(7): For contracts valued at $500,000,000 or more, the Secretary must certify that specific conditions outlined in 10 U.S.C. 3501 will be met.
Retains and restructures Subpart 17.1, Multiyear Contracting, deleting and consolidating some sections, and creating new sections for relocated and revised content.
Retains and restructures Subpart 17.2, Options, consolidating some sections, and creating new sections for relocated and revised content.
Content from section 17.207, Exercise of Options, is streamlined and moved to section 17.204-1.
Reorders and moves subparts 17.6 and 17.7 creating a logical flow by placing interagency acquisitions content in sequential order.
Moves Supart 17.7 to Subpart 17.6 and changes it to Interagency Acquisitions: Acquisitions by Non-defense Agencies on Behalf of the Department of Defense.
Moves Subpart 17.6 to Subpart 17.7 and changes it to Management and Operating Contracts.
Retains and expands Section 17.000, Scope of Part, to provide a more complete list of the special contracting methods covered within the part.
Retains Subpart 17.3 and it remains Reserved.
Retains and streamlines Subpart 17.4, Leader Company Contracting.
Retains and updates Subpart 17.5, Interagency Acquisitions, with plain-language revisions and formatted to improve clarity.
Retains and reorganizes the following subparts to align with the acquisition lifecycle stages (Presolicitation, Evaluation, and Award, and Postaward): 17.1, Multiyear Contracting; 17.2, Options; 17.7, Management and Operating Contracts; and 17.8, Reverse Auctions.
Retains all clauses and provisions prescribed in this part, and the following provisions have been updated to reflect current cross-references: 52.217-4 , Evaluation of Options Exercised at Time of Contract Award; and 52.217-5 , Evaluation of Options.
Retains clauses 52.217-8, Option to Extend Services, and 52.217-9, Option to Extend Term of Contract, and it remains the same and must still be completed by the acquisition team.
Summary of Retentions
Part 17 is streamlined by organizing information in a way that's easier to understand and use; combining related topics and removing repeated information; and making the language clearer through simpler sentences and formatting.
Sheppard Mullin Comments / Observations
FAR Part 24: Protection of Privacy and Freedom of Information
Deleted section 24.301 Privacy Training because it is duplicative and already covered in clause 52.224-3
Summary of Deletions
Retained all substantive content in this part, which is based in the following statutes: * Freedom of Information Act (5 U.S.C.§ 552 ) * Privacy Act of 1974 (5 U.S.C. § 552a (Pub. L. 93-579)) * Confidentiality (5 U.S.C. § 574) * Prohibition on Release of Contractor Proposals (10 U.S.C. § 3309 and 41 U.S.C. § 4702) * Submission of Other Information (10 U.S.C. § 3705 and 41 U.S.C. § 3505) * Managing Information as a Strategic Source (OMB Circular No. A-130)
Summary of Retentions
The changes to this Part are very minimal and not substantive.
Sheppard Mullin Comments / Observations
FAR Part 38: Federal Supply Schedule Contracting
This Part has been deleted in its entirety, with statutory and essential text moved to FAR Part 8 (which then directs the reader to GSAM/R 538).
Summary of Deletions
Retains Subpart 39.2 - Information and Communication Technology (now Subpart 39.104), which implements ICT accessibility standards, including Section 508 compliance.
Retains preference for modular contracts when acquiring IT, especially for major systems.
Summary of Retentions
FAR Part 38 (Federal Supply Schedule Contracting) has been moved to GSAM/R 538 in its entirety.
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 15: Contracting by Negotiation
Vocabulary Changes: * The term "discussions" is replaced with "negotiations" * The term "deficiency" is redefined to remove reference to "a combination of significant weaknesses" and clearly define "material requirement" of an RFP * The use of "clarifications" now has robust guidelines for its application. It states that clarifications can be used to “enhance the Government’s understanding of a proposal”, “allow reasonable interpretation”, and address “ambiguities” as well as “perceived deficiencies, weaknesses, errors, omissions, or mistakes.” * The competitive range is now clearly defines as "the group of evaluated proposals that the contracting officer determines are best suited for further negotiation” instead of “all of the most highly rated proposals." * "Proposal revision" is updated to include the phrase "material elements of a proposal" to clarify that not every change made during negotiations constitutes a proposal revision.
New framework replaces topic-based structure with a more intuitive acquisition flow * Revised from 6 subparts to 5 subparts
Removed the clause 52.215-5, Facsimile Proposals to take a more technology-neutral approach.
Moved the following to the FAR Companion: * Guidance on the best value continuum and using various source selection approaches (former 15.101) * Procedures pertaining to oral presentations (former 15.102) * Amendments based on alternate solutions (former 15.203)
Summary of Deletions
Retains statutory requirements found in: * Unsolicited Proposals (6 U.S.C. § 394) * Evaluation Factors (10 U.S.C. § 3206(c) and 41 U.S.C. § 3306(c)) * Awarding of Contracts (10 U.S.C. §§ 3301 et seq and 41 U.S.C. §§ 3701 et seq) * Truth in Negotiations Act (10 U.S.C. §§ 3701 et seq and 41 U.S.C. §§ 3501 et seq) * Prohibitions on Disclosing and Obtaining Procurement Information (41 U.S.C. § 2102)
Most clauses are retained with minor changes for clarity and to mirror updates in the part.
Summary of Retentions
Changes of Note: * Adds a new requirement that contracting officers must negotiate with each responsible offeror within the competitive range and may further negotiate with the offerors as needed. Having further negotiations with one offeror does not require the Contracting Officer to have further negotiations with other offerors. * Addes two new source selection approaches: "Highest Technically Rated at a Fair and Reasonable Price" and "Phased Acquisitions." Under HTR-FRP, award is made to the offeror with the highest technical rating provided their price is determined to be fair and reasonable.
Most of the other changes to this part are made to streamline and clarify the different subparts. Most of the substantive requirements remain, with a few key changes noted herein.
Sheppard Mullin Comments / Observations
FAR Part 16: Types of Contracts
Moved the following to the FAR Companion: * Selecting contract types (former 16.101) * Factors in selecting contract type (former 16.104) * Guidance when ceiling prices are established for fixed-price contracts with prospective price redetermination (former part 16.205-2(b)) * Guidance on cost controls of fixed-ceiling-price contracts with retroactive price redetermination (former 16.206-2(c)) * Guidance on when to consider use of a completion or term form of a cost-plus-fixed-fee contact (former 16.306(d)(3) and 16.306(d)(4)) * Guidance on application of technical performance incentives (former 16.402-2 (c) through 16.402-2(h)) * Guidance on structuring and applying firm and successive target fixed-price incentive contracts (former 16.403-1 and 16.403-2) * Guidance on application of cost-plus-incentive-fee contracts (former 16.405-1)
Summary of Deletions
Retains statutory requirements found in: * Specific Types of Contracts (10 U.S.C. §§ 3321 et seq and 41 U.S.C. §§ 3901 et seq) * Undefinitized Contractual Actions (10 U.S.C. §§ 3371 et seq) * Task and Delivery Order Contracts (10 U.S.C. §§ 3401 et seq and 41 U.S.C. 4101 §§ et seq) * Requirements for Purchase of Property and Services Pursuant to Multiple Award Contracts (41 U.S.C. § 3302) * Linking of Award and Incentive Fees to Acquisition Outcomes (Pub. L. 109-364 Section 814 and 41 U.S.C. § 4711)
All clauses have been retained without changes except for a few clauses that were moved around.
Summary of Retentions
The update to this Part represents a deliberative shift from a restrictive to a permissive framework, empowering contracting officers to use novel and innovative contract structures consistent with the “Guiding Principles for the System” in RFO FAR 1.102 and in accordance with agency procedures.
Adds a new subsection called "On-and-off Ramps" with authorizes “on-ramping” (adding new contractors) and “off-ramping” (removing contractors) from a multiple-award contract during its ordering period to maintain current, competitive, and innovative pools of vendors on multiple-award contracts.
Blanket purchase agreements are now permitted under multiple award contracts, just like they are permitted under the Federal Supply Schedules.
Sheppard Mullin Comments / Observations
FAR Part 25: Foreign Acquisition
Removes non-regulatory content, and moves it to the FAR Companion: - Section 25.002, Applicability of Subparts, has been updated to align with the revised part 25 organizational structure to support practitioner understanding of each subpart to different acquisition types (e.g., supplies for use inside/outside the U.S., construction, services). - Best practice information regarding tax on foreign procurements (former section 25.1003, Tax on Certain Foreign Procurements). - Guidance on Evaluation Examples from the former section 25.504 (examples and tables).
Deletes Subpart 25.6, American Recovery and Reinvestment Act-Buy American statute-Construction Materials, as obsolete because the content was specific to construction projects funded by the ARRA of 2009 which is no longer active.
Deletes Subpart 25.7, Prohibited Sources, because that information was moved to Part 40.
Summary of Deletions
Retains the following statutory requirements: - Trade Agreements Act (19 U.S.C. §§ 2501 et seq) - The American Institute in Taiwan (22 U.S.C. § 3305) - Buy American (41 U.S.C. §§ 8301 et seq) - Prescribing Uniform Procedures for Certain Determinations Under the Buy-American Act (E.O. 10582) - Maximizing Use of American-Made Goods, Products, and Materials (E.O. 13881) - Ensuring the Future Is Made in All of America by All of America's Workers (E.O. 14005) - World Trade Organization Government Procurement Agreement (WTO GPA), as approved in the Uruguay Round Agreements Act (Pub. L. 103-465)
Retains the following Free Trade Agreements (FTA) and Other International Agreements: - Caribbean Basin Economic Recovery Act (Pub. L. 98-67) - United States-Israel Free Trade Area Implementation Act (Pub. L. 99-47) - United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) - United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78) - United States-Australia Free Trade Agreement Implementation Act (Pub. L. 108-286) - Morocco Free Trade Agreement Implementation Act (Pub. L. 108-302) - Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (Pub. L. 109-53) - United States-Bahrain Free Trade Agreement Implementation Act (Pub. L. 109-169) - United States-Oman Free Trade Agreement Implementation Act (Pub. L. 109-283) - United States-Peru Trade Promotion Agreement Implementation Act (Pub. L. 110-138) - United States-Korea Free Trade Agreement Implementation Act (Pub. L. 112-41) - United States-Columbia Trade Promotion Agreement Implementation Act (Pub. L. 112-42) - Panama Trade Promotion Agreement Implementation Act (Pub. L. 112-43, United States) - United States-Mexico-Canada Agreement (USMCA) Implementation Act (Pub. L. 116-113)
Retains and updates Subsection 25.001, General, to remove reference to the American Recovery and Reinvestment Act (ARRA) of 2009 (Pub. L. 111-5), which is no longer active.
Retains Section 25.003, Definitions, with minor edits.
Retains Subpart 25.8, Other International Agreements and Coordination, because it is anchored in international treaties and agreements that are part of international law.
Retains Subpart 25.9, Customs and Duties, in full because it implements statutory customs requirements and duty requirements.
Mostly retains, as statutorily required, Subpart 25.10, Additional Foreign Acquisition Regulations.
The following provisions and clauses are retained (or remain reserved) with no changes: - 52.225-2 (Provision), Buy American Certificate - 52.225-5 (Clause), Trade Agreements - 52.225-6 (Provision), Trade Agreements Certificate - 52.225-7 (Provision), Waiver of Buy American Statute for Civil Aircraft and Related Articles - 52.225-8 (Clause), Duty-Free Entry - 52.225-10 (Provision), Notice of Buy American Requirement—Construction Materials - 52.225-12 (Provision), Notice of Buy American Requirement—Construction Materials Under Trade Agreements - 52.225-14 (Clause), Inconsistency between English Version and Translation of Contract - 52.225-15 & 52.225-16 remain reserved - 52.225-17 (Provision), Evaluation of Foreign Currency Offers - 52.225-18 (Provision), Place of Manufacture - 52.225-19 (Clause), Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States - 52.225-26 (Clause), Contractors Performing Private Security Functions Outside the United States.
Retains and updates Subpart 25.1, Buy American— Supplies. Section 25.103 adopts the centralized waiver process for individual nonavailability determinations. The new 25.103(b)(2)(iii) requires contracting officers to submit a proposed individual nonavailability waiver for review and posting to the public-facing website, MadeinAmerica.gov, using a digital waiver portal managed by the MIAO. The contracting officer may not make an award until: (1) the MIAO has completed its review of the proposed waiver; (2) the MIAO has waived the review requirement; or (3) a specific exception to the posting requirement applies. Subparagraphs (b)(2)(iii)(A) through (D) require the use of a standardized digital form, specify that certain information will be made public, establish MIAO review times, and outline exceptions for urgent requirements. In cases of urgency, a report must be filed within 30 days of award.
Retains and revises Subpart 25.2, Buy American—Construction Materials, to align with the policy changes in subpart 25.1 and to streamline its content. Section 25.203(a) has been streamlined. The instructions for offerors are more appropriately located within the solicitation provisions (e.g., 52.225-10 and 52.225-12). Section 25.204, Evaluating Offers of Foreign Construction Material, has been revised for clarity and restructured.
Updates Subpart 25.4, Trade Agreements, to remove the specific requirement for post-award notices previously at 25.408(a)(5), as this is redundant to content in other FAR parts.
Relocates Subpart 25.11 to the new Subpart 25.6, Solicitation Provisions and Contract Clauses. The content and structure are largely identical. Subpart 25.11 is now reserved.
Relocates Subpart 25.3 to the new Subpart 25.7, Contracts Performed Outside the United States. The content and structure are largely identical. Subpart 25.3 is now reserved.
The following provision and clauses have been updated to reflect plain language, update cross-references, or make corresponding updates within the part: - 52.225-1 (Clause), Buy American—Supplies - 52.225-3 (Clause), Buy American—Free Trade Agreements—Israeli Trade Act - 52.225-4 (Provision), Buy American—Free Trade Agreements—Israeli Trade Act Certificate - 52.225-9 (Clause), Buy American—Construction Materials - 52.225-11 (Clause), Buy American—Construction Materials Under Trade Agreement
Summary of Retentions
FAR Part 25 has been updated and reorganized to improve clarity, remove obsolete material, and logically group related content for enhanced usability. Revisions add a centralized waiver process for nonavailability determinations, through the Submission to the Made In America Office.
Sheppard Mullin Comments / Observations
FAR Part 42: Contract Administration and Audit Services
Remove non-regulatory best practices information and moves it to the FAR Companion, including the following: - Interagency agreements (former 42.002(c)) - Cognizant federal agency (former 42.003(b)) - Contract administration functions (former 42.302) - Contract correspondence (from 42.401) - Visits to contractors’ facilities (from 42.402) - Evaluation of contract administration functions (from 42.403) - Postaward orientation (from 42.501) - Selecting contracts for postaward orientation (from 52.502) - Postward subcontractor conferences (from 42.505) - Procedures, related to distribution of documentation of indirect contract rates (from 42.705-2(b)) - Production surveillance and reporting requirements (from 42.1106) - Evaluation of Federal Prison Industries (FPI) performance (from 42.1503(d))
Removes language that previously limited the ability to provide past performance information for AbilityOne, specifically paragraph (h) of former FAR 42.1502. Now contracting activities can document performance evaluations for AbilityOne contractors, providing a useful tool to motivate good contract performance by AbilityOne contractors, and high-performing AbilityOne contractors can use positive performance evaluations to compete for new opportunities.
Summary of Deletions
Retains statutory requirements including: - Allowable Costs (10 U.S.C. §§ 3741 et seq and 41 U.S.C. §§ 4301 et seq) - Contractor Audits and Accounting (10 U.S.C. §§ 3841 et seq) - Creditors and Claims (11 U.S.C. §§ 501 et seq) - The Economy Act (31 U.S.C. § 1535) - Policy Regarding Consideration of Contractor Past Performance (41 U.S.C. § 1126) - Requirements for Executive Agencies (41 U.S.C. § 1326) - Database for Federal Agency Contract and Grant Officers and Suspension and Debarment Officials (41 U.S.C. § 2313) - Delegation and Assignment of Powers, Functions, and Responsibilities (41 U.S.C. § 3102) - Conditions for Progress Payments (41 U.S.C. § 4504) - Assignment of Contracts Act (41 U.S.C. § 6305)
Streamlines Subpart 42.1, Contract Audit Services, with plain language.
Streamlines Subpart 42.2, Contract Administration Services, with plain language.
Retains Subpart 42.3, Contract Administration Office Functions, and updates the list of 71 functions with plain language and revised cross-references to align with the new part structure.
Streamlines and renumbers Subpart 42.6, to Subpart 42.4, Corporate Administrative Contracting Officer.
Streamlines and renumbers Subpart 42.7 to Subpart 42.5, Indirect Cost Rates.
Streamlines and renumbers Subpart 42.8 to Subpart 42.6, Disallowance of Costs.
Streamlines and renumbers Subpart 42.9 to Subpart 42.7, Bankruptcy.
Streamlines and renumbers Subpart 42.11 to Subpart 42.8, Production Surveillance and Reporting.
Streamlines and renumber Subpart 42.12 to Subpart 42.9, Novation and Change-of-Name Agreements.
Streamlines and renumbers Subpart 42.13 to Subpart 42.10, Suspension of Work, Stop-Work Orders, and Government Delay of Work.
Renumbers Subpart 42.15 to Subpart 42.11, Contractor Performance Information. The structure of the policy and procedures sections (formerly 42.1502 and 42.1503, now 42.1102 and 42.1103) has been substantially improved. The subpart uses more headings, numbered lists, and subparagraphs to break down complex requirements into more digestible components.
Revises language of Subsection 42.1101. limiting past performance information to future “source selection” purposes. Removing the phase "source selection" from between "future" and "purposes," it now states “Past performance information (including the ratings and supporting narratives) is relevant information, for future purposes, regarding a contractor’s actions under previously awarded contracts or orders."
Revises Subsection 42.1103(d)(4) regarding the marking of performance evaluations. It now states “Evaluations of contractor performance developed on contracts awarded prior to April 1, 2026 should be marked 'Source Selection Information’”. This update allows for the use of performance evaluation information, starting April 1, 2026 and after, during any part of the acquisition lifecycle.
Replaces cross-reference to FAPIIS (formally at 42.1503(g)) from Subsection 42.1103(f) with reflerence to the "responsibility/qualification reports in the System for Award Management (SAM), at SAM.gov".
Streamlines and renumbers Subpart 42.16 to Subpart 42.12, Small Business Contract Administration.
Streamlines and renumbers Subpart 42.17 to Subpart 42.13, Forward Pricing Rate Agreements.
Summary of Retentions
FAR Part 42 was reduced from 17 subparts to 13 subparts, consolidating and streamlining language throughout for clarity and efficiency.
For evaluations of contractor performance after April 1, 2026, those evaluations will no longer be marked "Source Selection Information" and can be applied throughout the acquisition management lifecycle.
Sheppard Mullin Comments / Observations
FAR Part 17: Special Contracting Methods
Deletes content from previous section 17.105-2 about the objectives and benefits of multiyear contracting; content from previous section 17.203 and 17.204 reflecting best practices for options in solicitations and contract; content from previous section 17.4, reflecting procedures and best practices on Leader Company contracting; and content from previous section 17.802(c) reflecting best practices for reverse auctions, and moves it to the FAR Companion.
Deletes section 17.107, Options, and section 17.205, Documentation, as they were outdated, redundant, or otherwise unnecessary.
Deletes section 17.604, Identifying management and operating contracts, which is criteria for identifying management and operating contracts.
Summary of Deletions
Retains Statutory Requirements (1) Multiyear Contracts (10 U.S.C. § 3501 and 41 U.S.C. § 3903) (2) Limitations on Expending and Obligating Amounts (31 U.S.C. § 1341) (3) The Economy Act (31 U.S.C. § 1535) (4) Preventing Abuse of Interagency Contracts (Pub. L. 110-417 Sec. 865) (5) Internal Controls for Procurements on Behalf of the Department of Defense by Certain Non-defense Agencies (Pub. L. 110-181 Sec. 801)
The “Policy” for multiyear contracting is moved to subsection 17.103-1. It was revised to include two statutory requirements for DoD when considering a multiyear contract for supplies: (b)(6): The contract must promote national security of the United States; (b)(7): For contracts valued at $500,000,000 or more, the Secretary must certify that specific conditions outlined in 10 U.S.C. 3501 will be met.
Retains and restructures Subpart 17.1, Multiyear Contracting, deleting and consolidating some sections, and creating new sections for relocated and revised content.
Retains and restructures Subpart 17.2, Options, consolidating some sections, and creating new sections for relocated and revised content.
Content from section 17.207, Exercise of Options, is streamlined and moved to section 17.204-1.
Reorders and moves subparts 17.6 and 17.7 creating a logical flow by placing interagency acquisitions content in sequential order.
Moves Supart 17.7 to Subpart 17.6 and changes it to Interagency Acquisitions: Acquisitions by Non-defense Agencies on Behalf of the Department of Defense.
Moves Subpart 17.6 to Subpart 17.7 and changes it to Management and Operating Contracts.
Retains and expands Section 17.000, Scope of Part, to provide a more complete list of the special contracting methods covered within the part.
Retains Subpart 17.3 and it remains Reserved.
Retains and streamlines Subpart 17.4, Leader Company Contracting.
Retains and updates Subpart 17.5, Interagency Acquisitions, with plain-language revisions and formatted to improve clarity.
Retains and reorganizes the following subparts to align with the acquisition lifecycle stages (Presolicitation, Evaluation, and Award, and Postaward): 17.1, Multiyear Contracting; 17.2, Options; 17.7, Management and Operating Contracts; and 17.8, Reverse Auctions.
Retains all clauses and provisions prescribed in this part, and the following provisions have been updated to reflect current cross-references: 52.217-4 , Evaluation of Options Exercised at Time of Contract Award; and 52.217-5 , Evaluation of Options.
Retains clauses 52.217-8, Option to Extend Services, and 52.217-9, Option to Extend Term of Contract, and it remains the same and must still be completed by the acquisition team.
Summary of Retentions
Part 17 is streamlined by organizing information in a way that's easier to understand and use; combining related topics and removing repeated information; and making the language clearer through simpler sentences and formatting.
Sheppard Mullin Comments / Observations
FAR Part 17: Special Contracting Methods
Deletes content from previous section 17.105-2 about the objectives and benefits of multiyear contracting; content from previous section 17.203 and 17.204 reflecting best practices for options in solicitations and contract; content from previous section 17.4, reflecting procedures and best practices on Leader Company contracting; and content from previous section 17.802(c) reflecting best practices for reverse auctions, and moves it to the FAR Companion.
Deletes section 17.107, Options, and section 17.205, Documentation, as they were outdated, redundant, or otherwise unnecessary.
Deletes section 17.604, Identifying management and operating contracts, which is criteria for identifying management and operating contracts.
Summary of Deletions
Retains Statutory Requirements (1) Multiyear Contracts (10 U.S.C. § 3501 and 41 U.S.C. § 3903) (2) Limitations on Expending and Obligating Amounts (31 U.S.C. § 1341) (3) The Economy Act (31 U.S.C. § 1535) (4) Preventing Abuse of Interagency Contracts (Pub. L. 110-417 Sec. 865) (5) Internal Controls for Procurements on Behalf of the Department of Defense by Certain Non-defense Agencies (Pub. L. 110-181 Sec. 801)
The “Policy” for multiyear contracting is moved to subsection 17.103-1. It was revised to include two statutory requirements for DoD when considering a multiyear contract for supplies: (b)(6): The contract must promote national security of the United States; (b)(7): For contracts valued at $500,000,000 or more, the Secretary must certify that specific conditions outlined in 10 U.S.C. 3501 will be met.
Retains and restructures Subpart 17.1, Multiyear Contracting, deleting and consolidating some sections, and creating new sections for relocated and revised content.
Retains and restructures Subpart 17.2, Options, consolidating some sections, and creating new sections for relocated and revised content.
Content from section 17.207, Exercise of Options, is streamlined and moved to section 17.204-1.
Reorders and moves subparts 17.6 and 17.7 creating a logical flow by placing interagency acquisitions content in sequential order.
Moves Supart 17.7 to Subpart 17.6 and changes it to Interagency Acquisitions: Acquisitions by Non-defense Agencies on Behalf of the Department of Defense.
Moves Subpart 17.6 to Subpart 17.7 and changes it to Management and Operating Contracts.
Retains and expands Section 17.000, Scope of Part, to provide a more complete list of the special contracting methods covered within the part.
Retains Subpart 17.3 and it remains Reserved.
Retains and streamlines Subpart 17.4, Leader Company Contracting.
Retains and updates Subpart 17.5, Interagency Acquisitions, with plain-language revisions and formatted to improve clarity.
Retains and reorganizes the following subparts to align with the acquisition lifecycle stages (Presolicitation, Evaluation, and Award, and Postaward): 17.1, Multiyear Contracting; 17.2, Options; 17.7, Management and Operating Contracts; and 17.8, Reverse Auctions.
Retains all clauses and provisions prescribed in this part, and the following provisions have been updated to reflect current cross-references: 52.217-4 , Evaluation of Options Exercised at Time of Contract Award; and 52.217-5 , Evaluation of Options.
Retains clauses 52.217-8, Option to Extend Services, and 52.217-9, Option to Extend Term of Contract, and it remains the same and must still be completed by the acquisition team.
Summary of Retentions
Part 17 is streamlined by organizing information in a way that's easier to understand and use; combining related topics and removing repeated information; and making the language clearer through simpler sentences and formatting.
Sheppard Mullin Comments / Observations
FAR Part 26: Other Socioeconomic Programs
Removes the procedures for challenging representations under the Indian Incentive Program with the intent to incorporate them into the FAR Companion Guide
Removes information pertaining to the Disaster Response Registry with the intent to incorporate the information into the FAR Companion Guide
Removes procedures related to the Food Donation Program with the intent to information them into the FAR Companion Guide
Removes Subpart 26.3 Historically Black Colleges and Universities and Minority Institutions, Section 26.303, Data collection and reporting requirements, because such information is already captured through the Federal Procurement Data System
Removes Subpart 26.6, Encouraging Contractor Policies to Ban Text Messaging While Driving Section 26.601, Purpose, Section 26.602, Applicability, and Section 26.603 Definitions. Clause 52.226-8 retains the definitions.
Summary of Deletions
Retains the following statutory requirements: * Registry of Disaster Response Contractors (6 U.S.C. § 796) * Additional Compensation to Contractors of Federal Agency (25 U.S.C. § 1544) * Drug Free Workplace (41 U.S.C. §§ 8101 et seq) * Promoting Federal Food Donation (42 U.S.C. § 1792) * Use of Local Firms and Individuals (42 U.S.C. § 5150) * Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 100-707 (42 U.S.C. §§ 5121 et seq)) * Amendments to Special Emergency Procurement Authority (Pub. L. 114-328 Section 816) * Special Emergency Procurement Authority to Facilitate the Defense Against or Recovery from a Cyber Attack (Pub. L. 114-328 Section 1641) * Promoting Procurement with Historically Black Colleges and Universities, and Minority Institutions (EO 12928)
Also retains: * The 5% incentive payment for utilizing Indian organizations and Indian-owned economic enterprises as subcontractors remains allowable at 26.102-1. * The statutory preference for awarding contracts to local firms in the aftermath of a major disaster or emergency remains at 26.202-1. * The policy to encourage the participation of Historically Black Colleges and Universities and Minority Institutions in federal procurement continues at 26.301-1. * The policy encouraging contractors to donate excess wholesome food remains the same at 26.404-1.
Summary of Retentions
All of the original subparts remain in this Part, but they have been reorganized follow the acquisition process (i.e., steps to take before solicitation vs. after award). As such, the changes to this Part largely include removal of redunant sections and/or information that can be found in the related contract clauses. As we've seen in other Parts, the changes retain the substantive statutory requirements of this Part, and signal a plan to include in the forthcoming FAR Companion Guide some of the procedures previously found in this Part.
Sheppard Mullin Comments / Observations
FAR Part 43: Contract Modifications
Deletes the previous Part 43 exclusion such that FAR Part 43 now applies to contract modifications for orders that do not otherwise change the terms of a contract or agreement to align with common practice (e.g., delivery orders under IDIQ contracts).
Deletes the 43.203(a) requirement for contracting officers to advise contractors of the possible need to change their accounting procedures to comply with the cost segregation requirements of the Change Order Accounting clause.
Deletes some of the administrative requirements for contracting officers relating to change orders and equitable adjustments. For example, if additional funds are required as a result of the change, the contracting officer is no longer required to secure funds before making the adjustment to the contract.
Summary of Deletions
Retains all definitions and procedures (including those not required by statute) for contract modifications to support uniformity across Government.
Retains and clarifies instructions for documenting and definitizing change orders.
Retains requirements for valid obligations of appropriated funds.
Retains the prohibition against obligations in excess of appropriated funds.
Retains procedures for resolving contract disputes under the Contract Disputes Act.
Summary of Retentions
The FAR Part 43 revision is seemingly the first instance of the FAR Council retaining non-statutory provisions (here, procedures for contract modifications) for the sake of uniformity across Government.
Some of the changes are intended to clarify the process for documenting and defining change orders.
Sheppard Mullin Comments / Observations
FAR Part 2: Definitions of Words and Terms
Ongoing revisions to this part are made as individual parts are revised.
Summary of Deletions
Ongoing revisions to this part are made as individual parts are revised.
Summary of Retentions
This Part has been revised constantly throughout the FAR overhaul process. Currently, it has only 9 definitions, including those for Commercial product, Commercial service, Commercially available off-the-shelf item or COTS item, Governmentwide point of entry (GPE), Micro-purchase, Nondevelopmental item, Offer, Offeror, and Purchse order. Other definitions are included throughout the updated FAR Parts and in the FAR Compainion Guides.
Sheppard Mullin Comments / Observations
FAR Part 22: Application of Labor Laws to Government Acquisitions
Removed guidance and best practice procedures to the FAR Companion: -Definitions (former FAR 22.1001) -Department of Labor regulations involving construction (former FAR 22.403-6) -Construction Wage Rate Requirements statute wage determinations (former FAR 22.404) -Types of wage determinations (former FAR 22.404-1) -Wage determinations, general requirements (former FAR 22.404-2) -Notification of improper wage determination before award (former FAR 22.1002-3) -Examinations of the payrolls and payroll statements (former FAR 22.404-6(c)) -Disposition of disputes concerning construction contract labor standards enforcement (former FAR 22.22.406-10(a)(c)(d)(f)) -Requirement to obtain wage determinations, (former 22.1007(b) & (c)) -Wage determinations based on collective bargaining agreements (former FAR 22.1002-3(b)) -Service Contract Labor Standards, Applicability, General (former 22.1003-1) -Administrative limitations, variations, tolerances, and exemptions (former 22.1003-4(a)) -Examples of contracts covered by the Service Contract Labor Standards statute (former 22.1003-5) -Repair distinguished from remanufacturing of equipment (former FAR 22.1003-6) -Department of Labor responsibilities and regulations (former FAR 22.1004) -Obtaining wage determinations (former FAR 22-1008-1) -Successorship with incumbent contractor collective bargaining agreement (former FAR 22.1008-2(d)(2)) -All possible places of performance not identified (former FAR 22.1009-4(a)(b)) -Statement of equivalent rates for Federal hires (former FAR 22.1016(b))
Deletes content that is outdated, redundant, or otherwise unnecessary: -Subpart 22.8, Equal Employment Opportunity, is removed and marked reserve to implement E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity. -Subpart 22.11, Professional Employee Compensation, is removed and marked reserved. This subpart was not based on statute.
Removes and marks reserved content to implement E.O. 14173, or because it is not required by statute: -52.222-21 (Clause), Prohibition of segregated facilities -52.222-22 (Provision), Previous Contracts and Compliance Reports -52.222-23 (Provision), Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction -52.222-24 (Provision), Preaward On-Site Equal Opportunity Compliance Evaluation -52.222-25 (Provision), Affirmative Action Compliance. -52.222-26 (Clause), Equal Opportunity -52.222-27 (Clause), Affirmative Action Compliance Requirements for Construction -52.222-29 (Clause), Notification of visa denial -52.222-38 (Provision), Compliance with Veterans’ Employment Reporting Requirements -52.222-46 (Provision), Evaluation of Compensation for Professional Employees
Summary of Deletions
Statutory Requirements retained include, but are not limited to, the following: -Unlawful Employment of Aliens (8 U.S.C. § 1324a) -Kickbacks from Public Works Employees (18 U.S.C. § 874) -Trafficking Victims Protection (22 U.S.C. §§ 7101 et seq) -Fair Labor Standards (29 U.S.C. §§ 201 et seq) -Employment Under Federal Contracts (29 U.S.C. § 793) -Veterans’ Employment Emphasis Under Federal Contracts (38 U.S.C. § 4212) -Wage Rate Requirements (40 U.S.C. §§ 3141 et seq), -Contract Work Hours and Safety Standards (40 U.S.C. §§ 3701 et seq) -Required Contract Terms (41 U.S.C. § 6502) -Service Contract Labor Standards (41 U.S.C. §§ 6701 et seq) -Relating to Prison Labor, as amended by E.O.s 12608 and 12943 (E.O. 11755) -Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor (E.O. 13126) -Notification of Employee Rights Under Federal Labor Laws (E.O. 13496) -Establishing Paid Sick Leave for Federal Contractors (E.O. 13706) -Use of Project Labor Agreements for Federal Construction Projects (E.O. 14063)
Definitions throughout are updated: -Section 22.001, Definitions, is updated to standardize the definitions of "Administrator," "Normal workweek," "Secretary," and "Service Contract." -Section 22.401, Definitions, standardizes the definition of "Laborers or mechanics" with the definition used in subpart 22.3, which explicitly includes "firefighters, fireguards, and workmen who perform services in connection with dredging or rock excavation in rivers or harbors" and excludes "any employee employed as a seaman."
Language formerly included in 22.404-2 is added to Subparagraph 22.402-3(d), directing contracting officers to seek assistance from the Administrator of the Wage and Hour Division in cases of doubt.
Section 22.1303, Evaluation and Award, under subpart 22.13, Equal Opportunity for Veterans, removes the option to contact VETS-4212 customer support.
Summary of Retentions
The substantive updates to Part 22 are minimal. Most of the substance has been retained, and the revisions primarily are focused on reorganizing the information to follow the contracting process from solicitation through award (which is a theme we've seen throughout the overhaul). Overall, all subparts except Subparts 22.8 and 22.11 have retained their current subpart number and title.
Sheppard Mullin Comments / Observations
FAR Part 23: Sustainable Acquisition, Material Safety, and Pollution Prevention
Deletes content that is outdated, redundant, or otherwise unnecessary due to the revocation of E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability: -Section 23.404, Environmental management systems -Section 23.405, Waste reduction program -Subpart 23.5, Greenhouse Gas Emissions -Definitions for "Environmental" and "Greenhouse gas."
Removes and marks reserved content based on the revocation of E.O. 14057 or because it is not required by statute: -52.223-10, Waste Reduction Program -52.223-19, Compliance with Environmental Management Systems -52.223-20, Aerosols -52.223-21, Foams -52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representation.
Moved guidance and resources to the FAR Companion: -Energy Savings Performance Contracts, Policy (former FAR 23.202(b)(c)(d)) -Sustainable Products and Services, General procedures (former 23.104(d))
Summary of Deletions
Statutory Requirements retained include, but are not limited to, the following: -Biobased Markets Program (7 U.S.C. § 8102) -Federal Energy Conservation Programs (42 U.S.C. § 6361) -Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6962) -Federal Procurement of Energy Efficient Products (42 U.S.C. § 8259b) -Stratospheric Ozone Protection (42 U.S.C. §§ 7671 et seq) -Pollution Prevention Act of 1990 (42 U.S.C. §§ 13101 et seq)
Section 23.1, Sustainable Products, was updated to remove "and Services" from the subpart title.
Section 23.100, Scope of Part, has been abbreviated and removes content covered in FAR part 12.
Section 23.101, Definitions, has been updated to define: -"Energy-efficient product" as one that meets the Department of Energy’s criteria for use of the ENERGY STAR® trademark label or “is in the upper 25 percent of efficiency for all similar products as designated by the DOE Federal Energy Management Program (FEMP).” -"Low standby power device" as a product that “uses an external standby power device or contains an internal standby power function” and uses one watt or less of electricity in standby mode or meets the DOE’s low standby levels. -"Sustainable product" as any product that: (1) contains recovered material designated by the EPA under the Comprehensive Procurement Guidelines; (2) qualifies as an energy-efficient product or low standby power device; (3) meets USDA BioPreferred program requirements for biobased products; or (4) is identified in the EPA’s Significant New Alternatives Policy Program as a safe alternative to an ozone-depleting substance.
Sections 23.102-23.104 consolidate former sections, but remain substantively consistent with the previous FAR: -23.102, Policy, presents a clear mandate that agencies must procure sustainable products to the maximum extent practicable. -23.103, Procedures, outlines three direct steps for the contracting officer when procuring sustainable products. -23.104, Priorities, provides clear priorities for acquisition teams when procuring sustainable products.
Section 23.4 has been retitled as "Pollution Prevention" and defines "Pollution Prevention" as any practice that (1) reduces the amount of any pollutant released into the environment prior to recycling, treatment, or disposal and (2) reduces the hazards to public health and the environment associated with the release of such pollutants.
The following provision and clauses are retained (or remain reserved) with no changes: -52.223-4 (Provision), Recovered Material Certification -52.223-5 (Clause), Pollution Prevention and Right-to-Know Information -52.223-6 remains reserved -52.223-8 remains reserved -52.223-9 (Clause), Estimate of Percentage of Recovered Material Content for EPA-Designated Items -52.223-13 thru 52.223-18 remain reserved
Summary of Retentions
Part 23 has three primary changes. First, the requirements for each of the 23.107 statutory purchasing programs have been consolidated into a single set of procedures for “sustainable products.” Second, programs such as the Environmental Management System and Waste Reduction Program have been removed. Third, references to phrases like “Global Warming” and “Greenhouse Gas" have been removed.
Sheppard Mullin Comments / Observations
FAR Part 32: Contract Financing
Removed content that is outdated, redundant, or otherwise unnecessary: -Section 32.102 (d), Description of contract financing methods, is deleted and marked reserved because the content was largely explanatory, not a form of contract financing. -Sections 32.304 through 32.306 are deleted and marked reserved. These sections provided procedural details for the loan guarantee program. While the program's authority remains in sections 32.302 and 32.303, the individual guaranteeing agencies are responsible for implementation procedures
Moved guidance, procedures, and best practice procedures to the FAR Companion: -Contract financing payments (former FAR 32.007(a)(b)(d)) -Advance Payments for Other Than Commercial Acquisitions, Applicability (former FAR 32.403) -Deferment of collection (former FAR 32.607-2, (a)(b)(c)(d)) -Limitation of Cost, Instructions (former FAR 52.232-20)
Summary of Deletions
Statutory Requirements retained include, but are not limited to, the following: -Contract Financing (10 U.S.C. §§ 3801 et seq and 41 U.S.C. §§ 4501 et seq) -Anti-Deficiency Act (31 U.S.C. § 1341) -Advances (31 U.S.C. § 3324) -Debt Collection Improvement Act of 1996 (31 U.S.C. § 3711) -Assignment of Claims Act of 1940 (31 U.S.C. § 3727 and 41 U.S.C. § 6305) -Prompt Payment Act (31 U.S.C. §§ 3901 et seq) -Defense Production Act of 1950 (50 U.S.C. §§ 4501 et seq) -Government-wide Application of Payment Protections for Subcontractors and Suppliers (Pub. L. 102-190 Sec 806 as amended (10 U.S.C. § 4601 note prec.)
New Subpart 32.12 provides Fast Payment Procedures (previously at subpart 13.4), a method for expediting payments on certain small-dollar supply contracts where traditional receiving and acceptance processes are impractical.
Summary of Retentions
Not many substantive changes here. The updates to Part 32 are in large part minor, plain-language changes.
Sheppard Mullin Comments / Observations
FAR Part 47: Transportation
Removed content that is not required by statute or essential to sound procurement: -52.247-42, C.i.f. Destination -52.247-43, F.o.b. Designated Air Carrier's Terminal, Point of Exportation -52.247-44, F.o.b. Designated Air Carrier's Terminal, Point of Importation -52.247-45, F.o.b. Origin and/or F.o.b. Destination Evaluation -52.247-46, Shipping Point(s) Used in Evaluation of F.o.b. Origin Offers -52.247-47, Evaluation—F.o.b. Origin -52.247-49, Destination Unknown -52.247-50, No Evaluation of Transportation Costs -52.247-51, Evaluation of Export Offers -52.247-55, F.o.b. Point for Delivery of Government-Furnished Property -52.247-57, Transportation Transit Privilege Credits -52.247-59, F.o.b. Origin—Carload and Truckload Shipments -52.247-60, Guaranteed Shipping Characteristics -52.247-61, F.o.b. Origin—Minimum Size of Shipments -52.247-62, Specific Quantities Unknown -52.247-65, F.o.b. Origin, Prepaid Freight—Small Package Shipments -52.247-66, Returnable Cylinders
Removed subsections 47.303-12 through 47.303-17 because they were deemed unnecessary.
Moved non-regulatory sections to the FAR Companion: -47.102, Transportation insurance -47.103, Transportation Payment and audit regulation -47.104-1 (b)(1)-(3),Government rate tender procedures -47.105, Transportation Assistance -47.200(e), Scope of subpart -47.202, Presolicitation Planning -47.205, Availability of term contracts and basic ordering agreement for transportation or for transportation related services -47.206, Preparation of solicitations and contracts -47.207-2, Duration of contract and time of performance -47.207-3 (a)(b) and (e), Description of shipment, origin, and destination -47.207-10, Discrepancies indecent to shipments -47.301 General -47.301-2 Participation of transportation officers -47.305 Solicitation provisions, contract clauses, and transportation factors -47.305-2 Solicitations f.o.b. origin and f.o.b. destination-lowest overall cost -47.306 Transportation factors in the evaluation of offers -47.306-1 Transportation cost determinations -47.306-2 Lowest overall transportation costs -47-306-3 Adequacy of loading and unloading facilities
Summary of Deletions
Statutory Requirements retained include, but are not limited to, the following: -Preference for United States Vessels in Transporting Supplies by Sea (10 U.S.C. § 2631) -Shipping on United States Vessels (22 U.S.C. § 2353) -Cargoes Procured, Furnished, or Financed by the United States Government (46 U.S.C. § 55305) -Interstate Commerce Act (49 U.S.C. § 10721 and § 13712) -Government-Financed Air Transportation (49 U.S.C. § 40118)
All five subparts have been retained and reorganized to improve flow and remove procedural guidance.
Section 47.103-1, Transportation Payment and Audit Regulation, was reduced from five paragraphs to one sentence, directing users to 41 CFR part 102-118 for details on where and how to send paid freight bills to the GSA for audit.
Summary of Retentions
While a moderate amount of plain-language and streamlining changes were made, all five subparts remain intact and the core statutory requirements for contractors remain in place. Overall, 33 clauses (mostly relating to shipping terms, from what we can tell) were removed to streamline the procurement process.
Sheppard Mullin Comments / Observations
FAR Part 53: Forms
Seven sections, containing primarily administrative and printing-related instructions, were deleted and marked as reserved: -53.102, Current Editions -53.103, Exceptions -53.104, Overprinting -53.106, Special Construction and Printing -53.107, Obtaining Forms -53.109, Forms Prescribed by Other Regulations -53.110, Continuation Sheets
Subpart 52.3, Prescription of Forms, and 53.3, Forms Used in Acquisitions, were deleted. Together, the subparts served as a directory of forms, which is now unnecessary with the creation of https://acquisition.gov/FARforms.
Summary of Deletions
Subpart 53.1 contains a short set of general policies and directs readers to https://acquisition.gov/FARforms for a list of the standard forms (SF), optional forms (OF), and agency forms specified by the FAR for use in acquisitions.
Summary of Retentions
FAR Part 53 has been almost entirely deleted. Instead of listing forms in the FAR, there is a new "FAR Forms" website (https://www.acquisition.gov/FARforms?_gl=1*1o7gfok*_ga*MTUzMjg3NTA0My4xNzA5NzU5ODkx*_ga_9BZ5JW3EMN*czE3NjA0NDMzMjAkbzE5OSRnMSR0MTc2MDQ0Mzk2MSRqNjAkbDAkaDA) that will be the primary resource for forms and instructions. The remaining content in Part 53 outlines general rules and directions for form usage, but the entire part is now only 4 paragraphs.
Sheppard Mullin Comments / Observations
FAR Part 3: Improper Business Practices and Personal Conflicts of Interest
Deletes Subsection 3.103-3, The need for further certifications, because it is discretionary instruction.
Deletes Section 3.301,General, because it provided general background on anticompetitive practices but contained no enforceable rule or procedures.
Deletes Section 3.406, Records, because it is redundant of existing record retention requirements.
Deletes Section 3.907, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (the Recovery Act), including all subsections, as obsolete because it was specific to contracts funded by the ARRA Recovery Act, a 2009 economic stimulus package. Removing this section includes deleting clause 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009.
Summary of Deletions
Retains the fundamental ethical rules.
All subparts remain and keep the same structure. All existing provisions and clauses are retained with no changes to the text.
Retains Statutory Requirements including: (1) Expenditure of Appropriations: Limitation (10 U.S.C. § 4651) (2) Prohibition of Contractors Limiting Subcontractor Sales Directly to Federal Government (10 U.S.C. § 4655 and 41 U.S.C. § 4704) (3) Acts Affecting a Personal Financial Interest (18 U.S.C. § 208) (4) Voiding Transactions in Violation of Chapter (18 U.S.C. § 218) (5) Procurement Integrity Act (41 U.S.C. § 2101 et seq) (6) Notification of Violations of Federal Criminal Law or Overpayments (41 U.S.C. § 3509) (7) Enhancement of Contractor Protection from Reprisal for Disclosure of Certain Information (41 U.S.C. § 4712) (8) Anti-Kickback Act of 1986 (41 U.S.C. § 8701 et seq) (9)Principles of Ethical Conduct for Government Officers and Employees (E.O. 12731)
Summary of Retentions
FAR Part 3 has been retained with minimal deletions and minor updates made for plain language and streamlining. The fundamental rules of ethical conduct remain exactly the same.
Sheppard Mullin Comments / Observations
FAR Part 24: Protection of Privacy and Freedom of Information
Deleted section 24.301 Privacy Training because it is duplicative and already covered in clause 52.224-3
Summary of Deletions
Retained all substantive content in this part, which is based in the following statutes: * Freedom of Information Act (5 U.S.C.§ 552 ) * Privacy Act of 1974 (5 U.S.C. § 552a (Pub. L. 93-579)) * Confidentiality (5 U.S.C. § 574) * Prohibition on Release of Contractor Proposals (10 U.S.C. § 3309 and 41 U.S.C. § 4702) * Submission of Other Information (10 U.S.C. § 3705 and 41 U.S.C. § 3505) * Managing Information as a Strategic Source (OMB Circular No. A-130)
Summary of Retentions
The changes to this Part are very minimal and not substantive.
Sheppard Mullin Comments / Observations
FAR Part 24: Protection of Privacy and Freedom of Information
Deleted section 24.301 Privacy Training because it is duplicative and already covered in clause 52.224-3
Summary of Deletions
Retained all substantive content in this part, which is based in the following statutes: * Freedom of Information Act (5 U.S.C.§ 552 ) * Privacy Act of 1974 (5 U.S.C. § 552a (Pub. L. 93-579)) * Confidentiality (5 U.S.C. § 574) * Prohibition on Release of Contractor Proposals (10 U.S.C. § 3309 and 41 U.S.C. § 4702) * Submission of Other Information (10 U.S.C. § 3705 and 41 U.S.C. § 3505) * Managing Information as a Strategic Source (OMB Circular No. A-130)
Summary of Retentions
The changes to this Part are very minimal and not substantive.
Sheppard Mullin Comments / Observations
FAR Part 33: Protests, Disputes, and Appeals
Deletes the definition of "Protest Venue" because the term no longer appears in Part 33.
Certain descriptions of processes were removed and cross-references to other sections were added instead. For example, Part 33 no longer describes the GAO protest procedures and instead references 4 CFR Part 21, “Bid Protest Regulations."
Numerous procedural sections have been consolidated into a single, overarching section titled "Postaward" at 33.205
Summary of Deletions
Part 33 retains nearly all substantive requirements because they are based in the following statutes: * Administrative Dispute Resolution Act (ADRA) (5 U.S.C. §§ 571 et seq.) * Availability of Funds Following Resolution (31 U.S.C. § 1558) * Procurement Protest System (31 U.S.C. §§ 3551 et seq.) * Contract Disputes (41 U.S.C. §§ chapter 7101 et seq.) And the requirements in E.O. 12979, Agency Procurement Protests
The following clauses are retained: * 52.233-1 Disputes, revised to now describe what a defective certification means. * 52.233-2 Service of Protest, revised to require protests to be shared with the contracting office within one day of filing with the GAO. * 52.233-3 Protest After Award, revised to describe steps for protests post award, such as stop work orders. *52.233-4 Applicable Law for Breach of Contract Claim, remains the same that U.S. law will be applied to address breach.
Summary of Retentions
Generally, the revisions streamline the required written documentation, processes, and procedures for Major Systems Acquisitions.
Though not required by any statute, Subpart 34.2 appears to have been retained because it is required by OMB Circular A-11.
Sheppard Mullin Comments / Observations
FAR Part 48: Value Engineering
Removes to the FAR Companion Guide (coming soon):
48.101(b), which provides details of the two value engineering approaches and 48.103 (Procedding value engineering change proposals).
48.102(e) (information on calculating profit or fees for value engineering change proposal savings).
Information on establishing sharing periods and rates (previously in 48.104 Sharing Arrangements).
Deletes 48.000 (Scope of Part)
Summary of Deletions
Retains statutory requirements, including: -Value Engineering (41 U.S.C. § 1711) -Value Engineering (OMB Circular A-130)
All clauses are retained (with no changes to the text).
The following prescriptive information (previously covered in 48.104, Sharing Agreements) is retained as reflected in the following clauses: - 52.248-1 covers information previously in 48.104-1 Determining sharing period
- 52.248-1(f) covers information previously in 48.104-2 Sharing acquisition savings
- 52.248-3(j) covers information previously in 48.104-3 Sharing collateral savings
- 52.248-1(i)(5) covers information previously in 48.104-4 Sharing alternative-no-cost settlement method
Prescriptive information previously covered in 48.105 Relationship to Other Incentives is retained as reflected in clause 52.248-1(k).
Summary of Retentions
The revisions to this section focus on readability rather than substance, with the plain language edits reducing this part by nearly 3,000 words (70%).
Sheppard Mullin Comments / Observations
FAR Part 51: Use of Government Sources by Contractors
No substantive deletions or removals
Summary of Deletions
Retains all statutory requirements, including - (1) 50 U.S.C. § 1431 et seq, National Defense Contracts (2) 6 U.S.C. § 441 eq seq, Support Anti-Terrorism by Fostering Effective Technologies (3) E.O. 10789, Contracting Authority in Connection With National-Defense Functions
Summary of Retentions
FAR Part 51 (Use of Government Sources by Contractors) is now integrated in its entirety to FAR Part 8.
Sheppard Mullin Comments / Observations