Compliance with new federal laws

FAR 52.212-4(q) only requires compliance with the laws listed there.  There are individual clauses that implement those laws and are used in specified contracts for non-commercial item and services.

Just wondering about the specifics that cause you to ask the questions.

Generally does not a contractor have to perform a legal objective?

Specific to your questions there is a clause for construction - 52.236-7.

@C Culham Typically, one sees some language to the effect of "the contractor shall comply with all applicable Federal laws, including new Federal laws passed by Congress during the contract performance," written into the SOW.  What if the SOW is missing this language?  While there are court decisions that stand for the principle that the United States cannot be held liable for its Sovereign Acts (and Congress passing a new law counts as a sovereign act), it is always best to cite the contract itself.  I'm surprised to find that the FAR only has clauses for this for commercial products/services under FAR Part 12 and for construction under FAR Part 36.  What about when an agency buys other types of stuff or services?  Why is important enough to say this expressly for commercial products/services and for construction, but nothing else?  If the contractor has to do it anyways, no matter what, then why say this at all in any contract for any type of product/service?  I'm trying to understand why the FAR Council did what it did.

Often, legislation pertaining to government contracts will include language concerning applicability. The legislation will generally state an effective date for contracts awarded on or after a specific date and/or will direct the FAR Council to develop regulations and clauses to implement the new requirements.

If the new requirement WILL apply to all contracts or MAY also be applied existing contracts,  the legislation and implementing regulations will state that. The implementing guidance usually provides for adjustments or equitable adjustments for time and/or cost impacts on existing contracts.

This is a generalized statement but govt2310 also used the generalized statement (emphasis added):

govt2310 said:

Typically, one sees some language to the effect of "the contractor shall comply with all applicable Federal laws, including new Federal laws passed by Congress during the contract performance," written into the SOW.

For example, the Prompt Payment Act Amendments of 1989 were effective for all contracts awarded after March 31, 1990.

However, many Corps of Engineers (USACE) construction contracts were awarded after that date without the amended clauses because USACE issued the implementation directives later in April or May 1990. HQTRS USACE directed all Districts to administratively modify those contracts.

I had to prepare the admin mods and develop and issue standard operating procedures and standard forms to our field offices to explain and implement the new progress payment procedures. 

The changes significantly accelerated progress payments to primes and provided automatic interest penalties for late payments.

But the changes also accelerated prime progress payments to their subs and importantly, forbade the prime from physically holding any retainage or withholdings from subs earnings. Instead the government deducts and withholds such retainsge or withholdings from the primes’ progress payments.

This meant that primes were not allowed to finance their contract costs at the expense of their subs and suppliers. This was a significant and huge impact for primes and their subs and suppliers.

On 3/11/2023 at 8:37 PM, govt2310 said:

Is there an equivalent clause for non-commercial contracts, say in FAR 52.215 or elsewhere?

Equivalent? No.

But see FAR 52.225-19.

govt2310 said:

Why is important enough to say this expressly for commercial products/services and for construction, but nothing else?  If the contractor has to do it anyways, no matter what, then why say this at all in any contract for any type of product/service?

I don't know. Perhaps because there are state and Federal consumer protection and product safety laws and regulations that apply to commercial products and services but that would not apply to acquisitions of products and services by federal agencies, and the government wants those same laws and regulations to apply to its own purchases of commercial products and services.

Over simplistic view - Doctrine = Depends.  Or in other words the courts will decide.

Let me add another specific clause for consideration.  Note while a FAR part 36 clause it does have an alternative that applies to services as well - FAR 52.236-13

C Culham said:

Or in other words the courts will decide.

Decide what? I'm not sure what you are referring to.

Vern Edwards said:

Decide what?

Application of the Sovereign Immunity Doctrine.

C Culham said:

Application of the Sovereign Immunity Doctrine.

Carl, I think you meant sovereign act doctrine.

On 3/11/2023 at 11:37 PM, govt2310 said:

the contractor has to comply with all applicable Federal laws, even new ones that did not exist at the time of contract award, in accordance with FAR 52.212-4(q).

Why do you think this requires the contractor to comply with laws that are passed after contract award?  Has there been a court or board decision saying so?  Are you saying the contractor has to comply with laws requiring the FAR Council to do something before the Council acts?  See FAR 1.108(d).

Generally, when Congress enacts a law that specifically pertains to acquisition, it directs the FAR Council or other agency (e.g., the DOL or the SBA) to promulgate implementing regulations within some period of time following enactment. Until then, the law is on hold. As for applicability to existing and future contracts, see the law, the Federal Register, and FAR 1.108(d).

Other laws take effect as of the date set by Congress.

The Sovereign Acts doctrine will apply as appropriate.

Retreadfed said:

Carl, I think you meant sovereign act doctrine.

Yes I did sorry

Congress passed the No TikTok on Government Devices Act a few months ago, see https://www.congress.gov/bill/117th-congress/house-bill/2617/text.  It directed OMB to issue rules about this.  OMB issued such rules, see https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-13-No-TikTok-on-Government-Devices-Implementation-Guidance_final.pdf.  Well, it sounds like this "No TikTok" rule has to be put into existing contracts by a Contract Modification, per FAR 1.108(d).  Can this be done as a Unilateral Modification, or does it have to be Bilateral?  If the latter, doesn't that require legal "consideration," meaning the agency would have to pay the Contractor for this?  I'm inclined to think this is supposed to be done as a Unilateral Modification.  I don't think it changes the Scope of work.  I don't think it affects the contract price.  Thoughts?

joel hoffman said:

f the new requirement WILL apply to all contracts or MAY also be applied existing contracts,  the legislation and implementing regulations will state that. The implementing guidance usually provides for adjustments or equitable adjustments for time and/or cost impacts on existing contracts.

Since Congress and OMB both did not mention an equitable adjustment for time and/or cost impacts on existing contracts, this is evidence that the TikTok Ban is supposed to be done as a Unilateral Modification, right?  And what about contracts that contain FAR 52.212-4(q)?  Can the agency take the position that this clause already requires the contractor to comply with this new TikTok ban?  Or would such contracts still require a Unilateral Modification?

govt2310 said:

Well, it sounds like this "No TikTok" rule has to be put into existing contracts by a Contract Modification, per FAR 1.108(d).  Can this be done as a Unilateral Modification, or does it have to be Bilateral?

Both.  My read of the memo.   If a contract may require use of the application then the contract is to be ceased, so T4D.  Or, modified, so T4C (partial) that does away with the possible use of the application.  Maybe even a change order depending on the contract.  If commercial item contract if qa change the Changes paragraph would require the change be done by written agreement of both parties.   It just depends.

govt2310 said:

If the latter, doesn't that require legal "consideration," meaning the agency would have to pay the Contractor for this?

Consideration yes, pay maybe.  Generally a change requires consideration.  But,what if the contract required use of Tik Tok, no exception applied (like a social media contract), removing a specific requirement to use the application might result in "pay".  

govt2310 said:

Since Congress and OMB both did not mention an equitable adjustment for time and/or cost impacts on existing contracts, this is evidence that the TikTok Ban is supposed to be done as a Unilateral Modification, right?

Nope, left an open door for agencies to figure out the best avenue contract by contract.

govt2310 said:

And what about contracts that contain FAR 52.212-4(q)?  Can the agency take the position that this clause already requires the contractor to comply with this new TikTok ban?  Or would such contracts still require a Unilateral Modification?

I defer to my initial thought.   The plain read of "(q) does not cover applicable laws that are "new".  In some limited research it would be my guess that OMB memo has it right.   If it is not in the contract either cease the contract or modify it using the appropriate course to do so.  

Most likely a poor analogy but if Congress passed a law tomorrow that all freeway speeds were to be 45 miles an hour immediately would not the contractor doing Federal contracts think it would be in their best interest to comply?   Impacts to the contractor then becomes something that becomes a discussion and possibly a claim by the contractor and then leave it to the courts to decide.

govt2310 said:

Congress passed the No TikTok on Government Devices Act a few months ago, see https://www.congress.gov/bill/117th-congress/house-bill/2617/text.  It directed OMB to issue rules about this.  OMB issued such rules, see https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-13-No-TikTok-on-Government-Devices-Implementation-Guidance_final.pdf.  Well, it sounds like this "No TikTok" rule has to be put into existing contracts by a Contract Modification, per FAR 1.108(d).  Can this be done as a Unilateral Modification, or does it have to be Bilateral?  If the latter, doesn't that require legal "consideration," meaning the agency would have to pay the Contractor for this?  I'm inclined to think this is supposed to be done as a Unilateral Modification.  I don't think it changes the Scope of work.  I don't think it affects the contract price.  Thoughts?

This policy will have to go through the rulemaking process before it takes effect (see 41 U.S.C. 1707). The OMB memo shouldn't be interpreted as a direction to contracting officers to start drafting and including implementing clauses in their contracts. Agencies may issue class deviations to implement the policy in the interim, or the FAR Councils could issue an interim rule.

@Don Mansfield The OMB Memo M-23-13 says "agencies shall . . . Cease use of contracts that contain requirements that may include use of a covered application [TikTok] in performance of the contract or modify those contracts to conform with the prohibition on covered applications, except in cases of approved exceptions."  Then at the end, it says "Agencies shall notify OMB that they have completed all actions delineated . . . no later than 90 days after the date of this memorandum."  Are you interpreting this language to mean that agencies only have to cease using or must modify "those contracts" where the SOW contains requirements that require the use of TikTok "in performance of the contract"?  If that is what OMB meant, then agencies don't have to modify contracts where the SOW doesn't involve TikTok at all, is that your take on this?  And so, for contracts that do involve using TikTok, are you saying the agencies don't have to modify them, even though OMB seems to be saying the opposite?  I do think this OMB phrasing is not as clear as it could have been.

Don Mansfield said:

This policy will have to go through the rulemaking process before it takes effect (see 41 U.S.C. 1707).

@Don MansfieldI disagree. Congress has enacted a law and the president has signed it. CONGRESS! THE PRESIDENT!

The law requires OMB to issue direction. It does not require the FAR councils to publish a regulation.

OMB has issued the direction:

Quote

No later than 90 days following the issuance of this memorandum, agencies shall... Cease use of contracts that contain requirements that may include use of a covered application in performance of the contract or modify those contracts to conform with the prohibition on covered applications, except in cases of approved exceptions.

There is no need whatsoever to wait for rulemaking. CONGRESS!!! has decided that this is a matter of national security, and the PRESIDENT!!! has signed the bill into law. LAW!!! And OMB has issued direction. That's the Executive Office of the President talking.

If I were a contracting officer I would be working this out RIGHT BLEEPING NOW! I would not be on Wifcon asking questions. I would not be in my boss's office asking questions. I would not be acting like an incompetent know-nothing. I would comply with FAR 1.602-1(b).

I would initiate contact with the requiring activities and the contractors and work out how we're going to get this done, how long it will take, and what, if anything, it will cost in terms of time and money. I would report my findings to the Chief of the Contracting Office and state my plan. If, upon approval of my plan, I would have to terminate (cease using) a contract, I would do so pursuant to the contract T for C clause. If I would have to modify the contract, I would do so pursuant to the Changes clause or negotiate a supplemental agreement. If there is a question about monetary compensation and the sovereign acts doctrine, I would request a legal opinion. 

In short, I would be working on getting TikTok out of our devices and our contracts within 90 days, as ordered.

And @govt2310, FAR 1.108(d) has nothing to do with this.

Vern Edwards said:

I disagree. Congress has enacted a law and the president has signed it. CONGRESS! THE PRESIDENT!

So what? The FAR Councils are working on dozens of cases that will implement laws enacted by Congress and signed by the President. 

Vern Edwards said:

The law requires OMB to issue direction. It does not require the FAR councils to publish a regulation.

So what? 41 U.S.C. 1707 requires the publication of regulations. Specific laws don't have to require the FAR Councils to publish a regulation.

govt2310 said:

@Don Mansfield The OMB Memo M-23-13 says "agencies shall . . . Cease use of contracts that contain requirements that may include use of a covered application [TikTok] in performance of the contract or modify those contracts to conform with the prohibition on covered applications, except in cases of approved exceptions."  Then at the end, it says "Agencies shall notify OMB that they have completed all actions delineated . . . no later than 90 days after the date of this memorandum."  Are you interpreting this language to mean that agencies only have to cease using or must modify "those contracts" where the SOW contains requirements that require the use of TikTok "in performance of the contract"?  If that is what OMB meant, then agencies don't have to modify contracts where the SOW doesn't involve TikTok at all, is that your take on this?  And so, for contracts that do involve using TikTok, are you saying the agencies don't have to modify them, even though OMB seems to be saying the opposite?  I do think this OMB phrasing is not as clear as it could have been.

I'm not sure what OMB meant. The memo was sent to heads of executive departments and agencies. It wasn't sent to contracting officers. Heads of executive departments and agencies are most likely working out how to implement the policy within their agency in a coordinated manner. I don't think they are expecting individual contracting officers to implement the OMB memo on their own with no further guidance.

Don Mansfield said:

I'm not sure what OMB meant. The memo was sent to heads of executive departments and agencies. It wasn't sent to contracting officers. Heads of executive departments and agencies are most likely working out how to implement the policy within their agency in a coordinated manner. I don't think they are expecting individual contracting officers to implement the OMB memo on their own with no further guidance.

@Don MansfieldWhat's not to be sure about? It's the plainest direction imaginable.

You are suffering from FAR paralysis. By your take, a CO cannot implement law and executive direction until the FAR addresses it. That is utter nonsense. It has no basis in statute or regulation. FAR 1.602 speaks plainly.

In my post I said I would develop a plan and then proceed when and if the plan is approved. Let me quote myself:

Vern Edwards said:

I would initiate contact with the requiring activities and the contractors and work out how we're going to get this done, how long it will take, and what, if anything, it will cost in terms of time and money. I would report my findings to the Chief of the Contracting Office and state my plan. If, upon approval of my plan, I would have to terminate (cease using) a contract, I would do so pursuant to the contract T for C clause. If I would have to modify the contract, I would do so pursuant to the Changes clause or negotiate a supplemental agreement. If there is a question about monetary compensation and the sovereign acts doctrine, I would request a legal opinion.

That, Don, is my idea of CO-manship.

Don Mansfield said:

Heads of executive departments and agencies are most likely working out how to implement the policy within their agency in a coordinated manner. I don't think they are expecting individual contracting officers to implement the OMB memo on their own with no further guidance.

I would adjust to "guidance" when and if it shows up within the 90-day deadline.

Don Mansfield said:

The FAR Councils are working on dozens of cases that will implement laws enacted by Congress and signed by the President.

@Don MansfieldYes. They have been working on some of them for five years or more.

The No TikTok law reflects the growing tension with China over Taiwan, the prospect of war, and concern for national security. Waiting for the FAR councils would be like postponing treatment for cancer.

Let's just agree to disagree.

Of course, Vern is correct.

And it should be clear that the directive applies to any contractor using TikTok in performance of a contract - regardless of whether or not the contract  specifically requires its use.

I just noticed something.  I went back and re-read the Public Law and the OMB Memo.  The Public Law directs OMB to issue "standards and guidelines . . . requiring the removal" of TikTok from "information technology."  The OMB Memo says that the OMB Memo applies to "information technology" as that term is defined in 40 USC 11101(6).  The OMB Memo further states that "That definition [of IT] reaches not only IT owned or operated by agencies," but it also reaches IT "'used by a contractor under a contract with the executive agency that requires the use' of that IT, whether expressly or 'to a significant extent in the performance of a service or the furnishing of a product.'"  Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.  I can't imagine any agency having a contract like that, except the military and intelligence agencies.  If an agency has no contracts with contractors that require the use of TikTok, then the 90 days to cease use of contracts "that contain requirements that may include use of TikTok in performance of the Contract" (or you can modify the contract) doesn't apply, right?  All the agency has to do is identify the use or presence of Tiktok on "information technology," and as far as contractors go, the agency just has to notify its contractors to confirm that they don't have TikTok on their "information technology" used in performance of the Contract, right?

govt2310 said:

The OMB Memo further states that "That definition [of IT] reaches not only IT owned or operated by agencies," but it also reaches IT "'used by a contractor under a contract with the executive agency that requires the use' of that IT, whether expressly or 'to a significant extent in the performance of a service or the furnishing of a product.'"  Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.  I can't imagine any agency having a contract like that, except the military and intelligence agencies.

Lots of agencies use TikTok and I assume their operational support contractors do as well.  It’s a highly popular form of social media to reach out to a wide spectrum of our population, especially younger people.  Just guessing but probably the military services use it for recruiting, HHS for informing about health issues, VA to communicate to Veterans, Education about the availability of financial assistance, Agriculture to provide safety information on fruits and vegetables, CPSC on dangerous products, and on and on.  Much of the public communication activities of the government are contracted out.

@govt2310"Require" does not necessarily mean that the contract expressly requires use of TikTok. It can mean that the contractor needs certain information in order to perform and has found that TikTok is the best or only source of the information.

formerfed said:

Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.

I don’t read it that way. Are you saying that, if the Agency doesn’t specifically require the use of TikTok but the contractor uses it expressly or “to a significant extent in the performance of a service or the furnishing of a product", then it’s ok to continue using it?

That doesn’t make any sense to me.

Edit: Vern posted above while I was posting:

“@govt2310"Require" does not necessarily mean that the contract expressly requires use of TikTok. It can mean that the contractor needs certain information in order to perform and has found that TikTok is the best or only source of the information.”

i agree with Vern.

Ok, thanks everyone!

Vern Edwards said:

You are suffering from FAR paralysis. By your take, a CO cannot implement law and executive direction until the FAR addresses it. That is utter nonsense. It has no basis in statute or regulation. FAR 1.602 speaks plainly.

I'll address this and then we can agree to disagree. 

That's not my "take"--that is you resorting to a straw man argument.

The relevant parts of 41 U.S.C. 1707 are as follows:

Quote

§1707. Publication of proposed regulations

(a) Covered Policies, Regulations, Procedures, and Forms.-

(1) Required comment period.-Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it-

(A) relates to the expenditure of appropriated funds; and

(B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.

(2) Exception.-A policy, regulation, procedure, or form may take effect earlier than 60 days after the publication date when there are compelling circumstances for the earlier effective date, but the effective date may not be less than 30 days after the publication date.

(b) Publication in Federal Register and Comment Period.-Subject to subsection (c), the head of the agency shall have published in the Federal Register a notice of the proposed procurement policy, regulation, procedure, or form and provide for a public comment period for receiving and considering the views of all interested parties on the proposal. The length of the comment period may not be less than 30 days.

[...]

(d) Waiver.-The requirements of subsections (a) and (b) may be waived by the officer authorized to issue a procurement policy, regulation, procedure, or form if urgent and compelling circumstances make compliance with the requirements impracticable.

(e) Effectiveness of Policy, Regulation, Procedure, or Form.-

(1) Temporary basis.-A procurement policy, regulation, procedure, or form for which the requirements of subsections (a) and (b) are waived under subsection (d) is effective on a temporary basis if-

(A) a notice of the policy, regulation, procedure, or form is published in the Federal Register and includes a statement that the policy, regulation, procedure, or form is temporary; and

(B) provision is made for a public comment period of 30 days beginning on the date on which the notice is published.

(2) Final policy, regulation, procedure, or form.-After considering the comments received, the head of the agency waiving the requirements of subsections (a) and (b) under subsection (d) may issue the final procurement policy, regulation, procedure, or form.

Note that the statute contains a provision to account for exigent circumstances.

However, in practice, most agencies will instead issue a class deviation in the form of an internal memorandum authorizing or requiring contracting officers to comply with the new policy. The Director of Defense Pricing and Contracting website currently lists over 40 such class deviations. Similarly, the Civilian Agency Acquisition Council website contains a long list of CAAC Letters advising civilian agencies to issue class deviations as temporary measures to implement new policies. We should expect to see something soon for No TikTok on Government Devices.

If you think COs should publicize the new policy within their agencies and hold planning meetings, you'll get no argument from me. If you think COs should start developing and incorporating their own provisions and clauses in solicitations and contracts to implement the new policy based on just the OMB memo, then I disagree.

@joel hoffman Question: when you prepared the contract modifications for USACE for the Prompt Payment Act of 1989, were those unilateral modifications or bilateral modifications?  From what you posted, it sounds like they were bilateral, but I just want to be sure.

govt2310 said:

@joel hoffman Question: when you prepared the contract modifications for USACE for the Prompt Payment Act of 1989, were those unilateral modifications or bilateral modifications?  From what you posted, it sounds like they were bilateral, but I just want to be sure.

I will have to check my PPA folder at home. Yes they were unilateral mods. The clauses were mandatory  by statute and regulation and were necessary to implement a significant public policy, etc. They were effective for new contracts issued on or after 1April 1990. HQUSACE issued a directive to issue them via Admin Mods as effective in those contracts by operation of law.

That’s my recollection but I will check my folder when I can to verify.

@Don MansfieldI won't quote your comment because it's too long. I'll rest on this:

Congress enacted a statute requiring that agencies take a certain course of action and directing OMB to issue direction and guidance. It did not direct the FAR Council to promulgate a regulation.

OMB did not think it necessary to publish its direction and guidance in the Federal Register for public comment.

Public comment is irrelevant, because it cannot effect a change in the statute or in the statutorily-mandated guidance published by OMB.

I see nothing in 41 USC § 1707 saying that the FAR must be changed before a statute and statutorily-mandated guidance can be put into effect. I see nothing in the FAR saying that contracting officers cannot obey a statute until the FAR tells them how. Obeying a statute does not seem to be a FAR deviation as defined in 1.401.

As for a strawman argument, I am not above using one when it suits me, but my previous argument was not a strawman. I said, "By your take, a CO cannot implement law and executive direction until the FAR addresses it," and it seems to me that that's exactly what you are saying.

So we can disagree on two things.

Now, if the FAR Council intends to impose requirements that go beyond the statute and statutorily-mandated guidance, then it should publish a rule. But those people are unlikely to do anything more than turgidly restate what has already been stated.

If Congress enacts a statute requiring agencies to take a certain course of action and directs OMB to issue direction/guidance, and this affects existing contracts, do the contractors whose contracts have to be unilaterally modified have a FAR changes clause argument?  For example, if removing Tik Tok from devices costs the contractor money, can the contractor file a REA or claim (citing the FAR changes clause)?  I get it that the contractor has to comply, but does it have to do so at no extra cost to the government?  In other words, is the new statute a Sovereign Act, so the contractor has to comply anyways, so it is not a "change" that gives the contractor a right to seek extra compensation for the cost of complying?

@Vern EdwardsI thought we agreed to disagree. Remember I had FAR paralysis and was a moron for not understanding the crystal clear OMB memo? 

Vern Edwards said:

Congress enacted a statute requiring that agencies take a certain course of action and directing OMB to issue direction and guidance. It did not direct the FAR Council to promulgate a regulation.

Again, so what?

Vern Edwards said:

OMB did not think it necessary to publish its direction and guidance in the Federal Register for public comment.

So what?

Vern Edwards said:

I see nothing in 41 USC § 1707 saying that the FAR must be changed before a statute and statutorily-mandated guidance can be put into effect. I see nothing in the FAR saying that contracting officers cannot obey a statute until the FAR tells them how.

So what?

Vern Edwards said:

Obeying a statute does not seem to be a FAR deviation as defined in 1.401.

Maybe, maybe not. Depends on what the statute says.

Vern Edwards said:

I said, "By your take, a CO cannot implement law and executive direction until the FAR addresses it," and it seems to me that that's exactly what you are saying.

Then you've misunderstood. Complying with law and executive direction may or may not require a deviation from the FAR. Depends what the law or executive direction says.

Vern Edwards said:

Public comment is irrelevant, because it cannot effect a change in the statute or in the statutorily-mandated guidance published by OMB.

On March 15, the FAR Councils opened FAR case 2023-010, "Use of Covered Application Services". According to the Open FAR Cases Report of March 17:

Quote

This rule implements OMB Memo M-23-13, “No TikTok on Government Devices” Implementation Guidance, and the No TikTok on Government Devices Act which prohibits software applications owned and operated by ByteDance Limited (covered applications) on Government Devices.

Under "Status" the report states:

Quote

03/15/2023 DARC Director tasked Acquisition Technology & Information (FAR) Team to draft interim FAR rule.  Report due 05/03/2023.

My "take" is the FAR Councils think that public comment is not only relevant but required.

Don Mansfield said:

My "take" is the FAR Councils think that public comment is not only relevant but required.

So what?

govt2310 said:

is the new statute a Sovereign Act,

Not necessarily.  You have to read the statute and determine what the intent of congress was when it wrote the statute.  If the statute is one of general application, such as a tax law, the enactment of the law would probably be a Sovereign Act.  On the other hand, if the statute was primarily directed at government contractors, it might not be a Sovereign Act.  It all depends.

Vern Edwards said:

Congress enacted a statute requiring that agencies take a certain course of action and directing OMB to issue direction and guidance. It did not direct the FAR Council to promulgate a regulation.

Vern, I am curious as to how this statement applies to the situation where congress passes a law directing one agency to issue regulations but does not direct the FAR Council to do anything.  For example, congress passes a law directing the SBA to issue certain regulations, which SBA does.  The law is fully implemented when the SBA regulations take effect.  The law requires no action by the FAR Council.  Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?  Don't take this as an attempt to pose a gotcha question.  This is something that contracting officers and contractors face from time to time and there does not seem to be a settled answer to it.

@Retreadfed

Retreadfed said:

Vern, I am curious as to how this statement applies to the situation where congress passes a law directing one agency to issue regulations but does not direct the FAR Council to do anything.  For example, congress passes a law directing the SBA to issue certain regulations, which SBA does.  The law is fully implemented when the SBA regulations take effect.  The law requires no action by the FAR Council.  Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?  Don't take this as an attempt to pose a gotcha question.  This is something that contracting officers and contractors face from time to time and there does not seem to be a settled answer to it.

I have long argued that the FAR councils publish rules unnecessarily. 41 USC 1707 does not say when the FAR councils (small "c", plural) must write a rule. It says only that when they do they must publish it for public comment. If SBA or DOL, for example, is responsible for implementation of a statute and publishes a rule for public comment, why should the FAR councils then publish a version of their own?

If Congress enacts a law, and the responsible agency issues a proposed rule for public comment and then a final rule, why should the FAR councils do anything other than refer COs to that rule? Why not work with the agency as it develops its rule to make it as complete as possible? Why write a rule of their own, and then tussle with each other when there is a conflict? What a waste of time.

It's all because the FAR Council (big "C", singular) thinks they have a single, comprehensive acquisition regulation, which is something they don't have and haven't had since about 12 months after the FAR took effect on April Fool's Day in 1984. That's a truth they know, but will not face. In the age of electronic regulations and hyperlinks, and in the dawn age of AI, what's being done in terms of Federal procurement regulation is way beyond stupid and an indication of the quality of some of the thinking of some of the senior executives in some places in Federal service.

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Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?

I think they should. I think that as soon as SBA publishes a final rule the FAR councils should add a hyperlink to that rule to the FAR. I think that should be done as a technical amendment to the FAR, not a new rule. The FAR councils would not be making new policy. They would only be notifying COs of new policy issued by another agency pursuant to Congressional legislation. I see nothing in the law which prohibits that approach. But that is not current practice. Current practice is along the lines of what Don has argued. Of course that only thwarts the will of Congress, delays implementation by the Executive Branch, and stresses the FAR council brain trust, which can't even fix the problem with the late bid rule, much less implement small business policy.

The anti TikTok law is important. It reflects Congressional concern about national security and the security of personal information about American citizens. It is outrageous that its implementation might be delayed by a turgid and unnecessary paperwork process developed by unimaginative scribes. And they have the nerve to call for "innovation." The sad thing is that the turgidity and lack of imagination that infects senior executives has spread to the working level.

Retreadfed said:

Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?

A different example discussed in the Forum.  Replace SBA with DOL.   

Specific to SBA consider their regulations of fair market price and 8(a) delegation of authority to agencies via partnership agreements.  Are these vocered the same in the FAR?

No doubt there are other examples.

Vern Edwards said:

I think they should.

I agree as by example it is already done.

C Culham said:

A different example discussed in the Forum.  Replace SBA with DOL.

I might add that I generally find both the SBA regs and the DOL regs to be better-written than the FAR, which is notoriously bad. I especially like the SBA's Q&A format.

Vern Edwards said:

I might add that I generally find both the SBA regs and the DOL regs to be better-written than the FAR, which is notoriously bad. I especially like the SBA's Q&A format.

Thank you Vern