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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: November 13, 2003

SUBJECT: Department of State Acquisition Regulation (DOSAR) Rewrite

SOURCE: Federal Register, November 13, 2003, Vol. 68, No. 219, page 64297

AGENCIES: Department of State (DOS)

ACTION: Proposed Rule

SYNOPSIS: The DOS is proposing to revise the DOSAR extensively to bring it up to date and into conformance with the Federal Acquisition Regulation (FAR).

EDITOR'S NOTE: The DOSAR is Chapter 6 of Title 48 of the Code of Federal Regulations (CFR). It is available on the Internet at http://www.statebuy.gov/dosar/dosartoc.htm.

DATES: Comments on the proposed rule must be received no later than January 12, 2004.

ADDRESSES: Submit comments to Gladys Gines, Procurement Analyst, Department of State, Office of the Procurement Executive, 2201 C Street, NW, Suite 603, State Annex Number 6, Washington, DC 20522-0602; or by e-mail to: ginesgg@state.gov.

FOR FURTHER INFORMATION CONTACT: Gladys Gines, 703-516-1691, or e-mail: ginesgg@state.gov.

SUPPLEMENTAL INFORMATION: The following are the significant proposed changes that would be made to the DOSAR by this proposed rule (in addition to these changes, many editorial and organizational changes are being proposed):

• To DOSAR 604.502, Policy, would be added a requirement that contracting officers at domestic contracting activities "post all open market competitive, unclassified Requests for Proposals and Invitations for Bids exceeding the simplified acquisition threshold on the Internet, unless an exception has been approved by the head of the contracting activity. Contracting officers may post Requests for Quotations and noncompetitive acquisitions if desired. Solicitations shall be posted through the Statebuy Interactive Platform at https://state.monmouth.army.mil/.
  
  
• DOSAR 605.202-70, Foreign Acquisitions, would be revised to extend, from May 19, 2001, to March 12, 2004, the waiver approved by the agency head exempting overseas contracting activities from publishing advance notices of foreign acquisitions. (EDITOR’S NOTE: Numerous administrative changes are made throughout DOSAR Part 605, Publicizing Contract Actions, and other parts of the DOSAR to change all references to the “Commerce Business Daily (CBD)” to the “Governmentwide Point of Entry (GPE),” in accordance with Federal Acquisition Circular (FAC) 2001-16 (see the October 1, 2003, FEDERAL CONTRACTS DISPATCH “Federal Acquisition Circular (FAC) 2001-16, Miscellaneous Amendments”).
  
  
• DOSAR 609.404-70, Specially Designated Nationals List, would be added to require that contracting officers, in addition to checking the Excluded Parties Listing System (EPLS) (http://epls.arnet.gov), also check the list of entities on the Department of Treasury's Office of Foreign Asset Control List at http://www.treas.gov/ofac/ before awarding a contract.
  
  
• The class deviation waiving the requirements for overseas contracting activities to check the EPLS, and for domestic contracting activities to check the EPLS for actions under the simplified acquisition threshold, would be removed from DOSAR 609.405, Effect of Listing. The deviation was authorized when the EPLS was available only in hard copy, and receipt by both domestic and overseas contracting activities was inconsistent. Now that the EPLS is available on the Internet, the class deviation is no longer required.
  
  
• New DOSAR Subpart 611.6, Priorities and Allocations, would be added to reflect DOS' authority to use the Defense Priorities Allocation System (DPAS) for acquisitions related to the Department's Embassy Security Protection Program, as authorized by the Department of Commerce. (EDITOR'S NOTE: For more on DPAS, go to http://www.bxa.doc.gov/DefenseIndustrialBasePrograms/OSIES/DPAS.)
  
  
• New DOSAR Part 612, Acquisition of Commercial Items, consisting of DOSAR 612.302, Tailoring of Provisions and Clauses for the Acquisition of Commercial Items, would be added to delegate to the head of the contracting activity the authority to approve requests for waiver to tailor a commercial item clause or provision that is inconsistent with customary commercial practices.
  
  
• DOSAR 613.303-5, Purchases Under BPAs [Blanket Purchase Agreements], would be amended to allow the placement of individual orders against BPAs for commercial items that exceed the simplified acquisition threshold.
  
  
• DOSAR 619.201, General Policy, would be amended to add HUBZone small, veteran-owned small, and service-disabled veteran-owned small businesses to the list of small business concerns covered in DOSAR Part 619, Small Business Programs.
  
  
• New DOSAR 619.202-70, The Department of State Mentor-Protege Program, would be added to explain the operation and requirements of the program. This program is similar to those established by other civilian agencies, such as the Department of the Treasury and the National Aeronautics and Space Administration. Also, associated solicitation provision DOSAR 652.219-72, Department of State Mentor-Protege Program, and contract clause DOSAR 652.219-73, Mentor Requirements and Evaluation, would be added.
  
  
• DOSAR 619.805-2, Procedures, would be amended to address the waiver approved by the Small Business Administration allowing DOS to acquire services exceeding $3 million and supplies exceeding $5 million on a non-competitive basis from 8(a) concerns for acquisitions that supplement the security of U.S. diplomatic posts and protect the lives of DOS personnel.
  
  
• New DOSAR Subpart 622.15, Prohibition Of Acquisition Of Products Produced By Forced Or Indentured Child Labor, consisting of DOSAR 622.1503, Procedures for Acquiring End Products on the List of Products Requiring Contractor Certification as to Forced or Indentured Child Labor, would be added. It would require contracting officers to refer suspected violations to DOS' Inspector General.
  
  
• DOSAR Subpart 623.1, Pollution Control and Clear Air and Water, would be removed because FAR Subpart 23.1 was eliminated in 1999.
  
  
• DOSAR Subpart 623.4, Use of Recovered Materials, would be revised to align it with FAR Subpart 23.4.
  
  
• DOSAR Subpart 625.3, The Balance of Payments Program, would be removed because FAR 25.3 was eliminated by FAC 2001-07 (see the April 30, 2002, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 2001-07, Miscellaneous Amendments").
  
  
• DOSAR Subpart 625.7, Prohibited Sources, would be removed because the FAR coverage is sufficient, and no further implementation is necessary.
  
  
• DOSAR Part 626, Other Socioeconomic Programs, consisting of DOSAR Subpart 626.2, would be removed. DOSAR Subpart 626.2 requires the inclusion of DOSAR 652.226-70, Certification of Status as a Minority Business Enterprise, in all solicitation issued by domestic contracting activities, and it requires the collection of minority business status information, but since there is no longer a need to collect this information, this part is unnecessary. DOSAR 652.226-70 would be removed as well.
  
  
• DOSAR Subpart 628.70, Indemnification, would be removed. The subpart addresses indemnification, and the FAR coverage is sufficient. Also, DOSAR 652.228-70, Indemnification, would be removed.
  
  
• DOSAR Part 630, Cost Accounting Standards Administration, consisting of DOSAR 630.201-5, Waiver, would be added to indicate that the Procurement Executive is the agency head's designee for the purposes of waiving cost accounting standards requirements for specific acquisitions.
  
  
• DOSAR 636.104-70, Foreign Service Buildings Act of 1926, as Amended, would be added. The statute limits competition for the construction, alteration, or repair of buildings or grounds abroad exceeding $5 million to American-owned firms or firms of countries which permit or agree to permit substantially equal access to American firms for comparable diplomatic and consular building projects. This statute also provides a 10% evaluation preference for American-owned firms. Also, DOSAR 652.236-71, Foreign Service Buildings Act, As Amended, would be added to require the bidder/offeror to complete a certification regarding its status as an American-owned firm in accordance with the requirements of the statute.
  
  
• DOSAR 636.104-71, Omnibus Diplomatic Security and Antiterrorism Act, would be added. The statute limits construction or design projects abroad exceeding $10 million, or diplomatic construction projects that involve technical security, to United States persons or qualified United States joint venture persons, and excludes organizations that have business arrangements with the Government of Libya. Also, DOSAR 652.236-72, Statement of Qualifications for the Omnibus Diplomatic Security and Antiterrorism Act, would be added to require the bidder/offeror to complete a certification regarding his status as a United States person or qualified United States joint venture person, and his business relations with Libya, in accordance with the requirements of the statute.
  
  
• DOSAR 637.102-70, Special Requirements for the Acquisition of Local Guard Services Overseas, would be added to provide guidance regarding the acquisition of local guard services overseas in accordance with Section 136 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, which are still in effect. Section 136 encourages the participation of United States persons and qualified United States joint venture persons in local guard contracts overseas under diplomatic security programs, and provides a 10% evaluation preference for such firms. Also, DOSAR 652.237-73, Statement of Qualifications for Preference as a U.S. Person, would be added to require the bidder/offeror to complete a certification regarding his status as a United States person or qualified United States joint venture person in accordance with the requirements of the statute.
  
  
• New DOSAR Subpart 637.6, Performance-Based Contracting, consisting of DOSAR 637.601, General, would be added to state that it is DOS' policy that performance-based service contracts be used for all new service contracts. Contracting activities must prepare a written justification that must be approved by the DOS Competition Advocate when deviating from this policy.
  
  
• DOSAR Subpart 642.15, Contractor Performance Information, consisting of DOSAR 642.1503-70, Contractor Performance System (CPS), would be added to require contracting officers to use the National Institutes of Health's Contractor Performance System (CPS) to record their evaluations of a contractor's past performance for all contracts exceeding $100,000.
  
  
• DOSAR 652.219-70, Department of State Subcontracting Goals, would be amended to add HUBZone small and service-disabled veteran-owned small businesses to the list of organizations that have established subcontracting goals.
  
  
• DOSAR 652.237-71, Identification/Building Pass, would be revised to provide more detailed information on what contractors must submit to receive a building pass to work on DOS facilities.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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