News, Awards & Updates

Interim Rules Issued Regarding Contracting Requirements under the Stimulus; Comments Requested

On March 31, the Department of Defense, the General Services Administration and the National Aeronautics and Space Administration published in the Federal Register five interim rules that amend the Federal Acquisition Regulations and implement new requirements of the American Recovery and Reinvestment Act related to federal contracting. These interim rules were agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council. These interim rules relate to the following stimulus requirements:

Buy American requirements for construction material

Section 1605 of the stimulus prohibits the use of funds appropriated for the Recovery Act for any project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.

Whistleblower protections

The Recovery Act provides procedures for whistleblower protection, when using funds appropriated or otherwise provided by the Act, and provides that non-federal employers are prohibited from discharging, demoting, or discriminating against employees as a reprisal for disclosing certain covered information to certain federal government officials.

Publicizing contract actions

This interim rule implements the Office of Management and Budget’s February 18, 2009, guidance concerning the part of the Federal Acquisition Regulation that requires the contracting officer to enter data in the Federal Procurement Data System on any action funded in whole or in part by the Recovery Act. Pre-award notices for all orders exceeding $25,000 must be posted which describe the supplies and services requested “in a narrative that is clear and unambiguous to the general public.” Particularly, this rule directs the contracting officer to provide a rationale for awarding any action, including modifications and orders, that is not both fixed-price and competitive, and include the rationale for using other than a fixed-price and/or competitive approach.

Reporting requirements

The Recovery Act requires contractors to report on their use of funds. This interim rule contains specific dates and requirements for contract modifications to reflect this reporting.

GAO/IG access

FAR provides for the audit and review of both contracts and subcontracts, and the ability to interview such contractor and subcontractor personnel under contracts containing Recovery Act funds. The Comptroller General of the Government Accountability Office (GAO) is given specific authority to audit contracts and subcontracts and to interview contractor and subcontractor employees under contracts using Recovery Act funds. Agency inspectors general receive the same authorities, with the exception of interviewing subcontractor employees.

All interim rules became effective on March 31, 2009.There is also a request for comment on these interim rules, which should be submitted before June 1, 2009.