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Important Final Recovery Act Amendments to the FAR

6.18.2010 – Posted in E&B Alerts – Government Contracts

Today, the FAR Councils published several final rules in Federal Acquisition Circular (FAC) 2005-42 (75 Federal Register 115, Jun. 16, 2010), including several important final rules dealing with transparency and accountability in the use of Recovery Act funds. The most significant new rules are summarized below.

1. American Recovery and Reinvestment Act of 2009 – Publicizing Contract Actions (FAR Case 2009-010). Implements earlier OMB guidance for increased accountability and transparency by publicizing certain contracting actions in connection with contracts funded by the Recovery Act.

2. American Recovery and Reinvestment Act of 2009 – GAO/IG Access (FAR Case 2009-011). Gives the Comptroller General authority to audit contracts, subcontracts, supplemental agreements, and task or delivery-order contracts and to interview contractor and subcontractor employees under contracts using Recovery Act funds. Agency Inspectors General receive the same authorities, except the authority to interview subcontractor employees.

3. American Recovery and Reinvestment Act of 2009 – Whistleblower Protections (FAR Case 2009-012). Prohibits non-Federal employers from discharging, demoting, or discriminating against an employee for disclosing information concerning wrongdoing in connection with contracts funded under the Recovery Act.

4. New Designated Country – Taiwan (FAR Case 2009-014). Allows contracting officers to purchase goods made in Taiwan, if the acquisition is covered by the World Trade Organization Agreement on Government Procurement.

5. Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts – Section 844 of the National Defense Authorization Act for Fiscal Year 2008 (FAR Case 2008-003). Requires that a justification for using noncompetitive “brand name” specifications must be posted with the solicitation for at least 30 days.

6. Electronic Subcontracting Reporting System (eSRS) (FAR Case 2005-040). Implements the Electronic Subcontracting Reporting System (eSRS); replacing the Standard Forms (SF) 294 and 295 as the mechanism for submitting reports required by the small business subcontracting program.

FAC 2005-42 is available at
For more information, please contact Tim Coinnelly at [email protected] , or by phone at 612-236-0160.