FAR Amended: Entity Codes, Reporting Requirements, Compensation Benchmark and Workers' Compensation | Practical Law

FAR Amended: Entity Codes, Reporting Requirements, Compensation Benchmark and Workers' Compensation | Practical Law

The Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulation Council (DARC) have issued final revisions to five areas of the Federal Acquisition Regulation (FAR). These revisions address the use of Commercial and Government Entity (CAGE) codes, American Recovery and Reinvestment Act reporting requirements, the senior executive compensation benchmark, the contractor past performance evaluation comment period and the workers' compensation protection requirements under the Longshore and Harbor Workers' Compensation Act as extended by the Defense Base Act.

FAR Amended: Entity Codes, Reporting Requirements, Compensation Benchmark and Workers' Compensation

by Practical Law Commercial
Published on 02 Jun 2014 • USA (National/Federal)
The Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulation Council (DARC) have issued final revisions to five areas of the Federal Acquisition Regulation (FAR). These revisions address the use of Commercial and Government Entity (CAGE) codes, American Recovery and Reinvestment Act reporting requirements, the senior executive compensation benchmark, the contractor past performance evaluation comment period and the workers' compensation protection requirements under the Longshore and Harbor Workers' Compensation Act as extended by the Defense Base Act.
On May 30, 2014, the Civilian Agency Acquisition and the Defense Acquisition Regulation Councils issued final revisions to five areas of the Federal Acquisition Regulation (FAR) (79 Fed. Reg. 31186 (May 30, 2014)). These revisions to the FAR:

CAGE Codes Now Broadly Required

Effective November 1, 2014, offerors must provide contracting officers CAGE codes when submitting offers for awards valued at more than the micro-purchase threshold, which is $3,000 unless an exception applies (48 C.F.R. 2.101). Offerors that are subsidiaries of parent companies must provide the parent's CAGE code. Foreign entities must provide North Atlantic Treaty Organization CAGE codes to contracting officers. (79 Fed. Reg. 31187 (May 30, 2014).)
Unless the contract is funded by either the Department of Defense (DoD) or the National Aeronautic and Space Administration (NASA), offerors are not required to provide CAGE codes for awards if any of the following conditions apply:
  • For awards valued at $25,000 or less, the contractor is:
    • a student;
    • a dependent of either a veteran, foreign service officer or military member assigned outside the US; or
    • located outside the US for work to be performed outside the US and the contractor does not have a generic data universal numbering system (DUNS) number.
  • For awards valued at more than $25,000, the contractor is an individual outside of the US and the work is also outside of the US.
  • Identifying the contractor could endanger the mission, contractor or recipients of the acquired goods or services.
(48 C.F.R. 4.605(c)(2).)
For information on the DUNS for contracts valued less than $25,000, see Legal Update, FAR: Newly Issued Final Rule Restricts Use of Generic DUNS Numbers.

Repealed Reporting Requirements

Effective May 30, 2014, contractors no longer must comply with the reporting requirements mandated by the Recovery Act (Pub. L. 111-5; 48 C.F.R. 4.1500-4.1502; 48 C.F.R. 52.204-11) (79 Fed. Reg. 31193 (May 30, 2014)).
As a result of these revisions:
  • Contractors are not required to report past performance evaluations of contracts funded through the Recovery Act.
  • Federal agencies no longer publish the information previously reported by contractors relating to contracts funded through the Recovery Act.
However, the reporting required by the Federal Funding Accountability and Transparency Act of 2006 (FFAT) remains unaffected. The FFAT:
  • Covers all contracts valued at $25,000 or more.
  • Requires contractors to report:
    • first-tier subcontract award data; and
    • the total compensation of the five most highly compensated executives of the contractor and subcontractor.
(48 C.F.R. 4.1400- 4.1403; 48 C.F.R. 52.204-10.)
For information on required contractor reporting for service contracts, see Legal Update, New Rule Amends FAR Adding Reporting Requirements for Service Contractors.

Senior Executive Compensation Benchmark Expanded

Effective May 30, 2014, the senior executive compensation benchmark applies to all contractor employees on contracts awarded by the DoD, NASA or the Coast Guard (79 Fed. Reg. 31195 (May 30, 2014)). The benchmark limits the amount of money a contractor can be reimbursed for employee compensation and is determined by the Office of Federal Procurement Policy (48 C.F.R. 31.205-6(p)(1)(ii)). Until this revision, the benchmark only applied to the five most highly compensated employees in management positions:
  • At each home office.
  • In each segment of the contractor.
(48 C.F.R. 31.205-6;48 C.F.R. 52.216-7.)

Streamlined Process for Contractors Commenting on Past Performance Evaluations

Effective July 1, 2014, once notified that an evaluation is available in the Contractor Reporting Assessment System, contractors will have up to 14 calendar days to submit comments, rebuttal statements or additional information concerning past performance evaluations (79 Fed. Reg. 31197 (May 30, 2014)).
At the end of the 14 day period, past performance evaluations will be made available to future source selection officials, regardless of whether:
  • A contractor has submitted rebuttal information.
  • The reviewing agency has reconciled a contractor's rebuttal that was made within the 14 day period.
Also, an agency that has reviewed a contractor's past performance can now revise the evaluation after it is made available to future source selection officials. This change allows agencies to consider and incorporate a contractor's rebuttal into the evaluation that was either:
  • Made after the 14 day time period.
  • Not reconciled by the agency within the 14 day time period.
Prior to this revision:
  • Contractors only had a minimum of 30 days to respond to past performance evaluations.
  • Past performance evaluations were not made available to future source selection officials until reviewing agencies reconciled contractors' rebuttal.
(48 C.F.R. 42.1503.)
For more information on past performance evaluations, see Legal Update, New FAR Rule Standardizes Past Performance Evaluations.

Defense Base Act: Workers' Compensation Clause Refined

Effective July 1, 2014, certain government contracts and subcontracts are required to include the revised version of a contract clause that addresses workers' compensation obligations (48 C.F.R. 52.228-3). This revised clause only provides clarity for contractors' and subcontractors' current obligations under the LHWCA (33 U.S.C. 901, et seq.) as extended to workers outside the US by the Defense Base Act (42 U.S.C. 1651, et seq.). The clause does not establish any new obligations. (79 Fed. Reg. 31201 (May 30, 2014).)
The revised clause must be included in the following types of contracts and subcontracts that are covered by the Defense Base Act:
  • Contracts involving private employers on US military bases.
  • Public work contracts with a federal agency, including both construction and service contracts.
  • Contracts approved and funded by the US under the Foreign Assistance Act.
  • American employers providing welfare or similar services for the benefit of the armed services (for example, the USO).
(79 Fed. Reg. 31201 (May 30, 2014).)