Comply with Final Rule not yet in FAR?

[Scorpimouse]

How do COs comply with a final rule published in the Federal Register that has not yet been incorporated into the FAR? Do we wait to comply with the final rule until the FAR provides implementation guidance? Or do we "figure out" how to implement in the interim?

BACKGROUND: SBA currently has a proposed rule in the Federal Register that revises 13 CFR 125.6, "Limitations on Subcontracting." If this becomes a final rule, what is codified in FAR 52.219-14 will be out of date until the FAR is updated. So in that interim period (if I'm thinking about this right), technically, a small business could propose in a way that is in compliance with the new final rule, but not in compliance with the FAR clause. What is a CO to do in such cases?

I have found several areas of discussion that *almost* answer the question. For example, on an FAQ page for a final rule for the DOL it says, "The Final Rule becomes effective 120 days after its publication in the Federal Register... and it applies to covered contracts entered into or modified on or after that date. Updating the FAR is a separate process... Regardless of that separate FAR process, this Final Rule applies to all contracts entered into or modified on or after the effective date of the Final Rule."

I have also found this discussion here on Wifcon: http://www.wifcon.com/discussion/index.php?/topic/175-far-trumps-sba-regs/

These discussions are helpful, but they don't quite answer the exact question I have. How, if at all, are COs supposed to treat a final rule that is not yet incorporated into the FAR? If, as the DOL page suggests, that regardless of the FAR process, COs are to comply 120 days after the effective date of the rule, how do we do that if there is a clause involved? Do we get with legal and draft an interim clause to be included in Section H or something?

Maybe I'm just thinking about this all wrong. Any help anyone could provide will be very much appreciated. Thanks.

[Guest Vern Edwards]

How, if at all, are COs supposed to treat a final rule that is not yet incorporated into the FAR?

That question was asked and answered in the thread to which you provided a link. Read FAR 1.602-1. Read it again. Read it yet again. Do you understand?

Statutory enactments and regulatory issuances and changes should be applied to accquisitions based on (1) the effective date of the statute or regulation and (2) the date that the solicitation is issued, unless the statute or regulation provides otherwise. If a solicitation is issued on or after the date on which a statute or rule has taken effect, then it should reflect the statute or rule.

If, as the DOL page suggests, that regardless of the FAR process, COs are to comply 120 days after the effective date of the rule, how do we do that if there is a clause involved? Do we get with legal and draft an interim clause to be included in Section H or something?

That's a more complicated matter. You need approval to deviate from a FAR rule, provision, or clause. If a new statute or regulation is in effect, but the FAR has not yet been updated, and the statute or regulation conflicts with an existing FAR provision or clause or will require a new provision or clause, then I would put a clause in the solicitation and resulting contract providing that while the old provision or clause has been included, and proposals should be based on it, a new one will be added when made available, by solicitation amendment or by unilateral contract modification.

If added to the solicitation by amendment, offerors will be given the opportunity to modify their proposals (see the definition of proposal modification at FAR 15.001), and such amendment and modification will not constitute discussions.

If unilaterally added to the contract after award, the parties must agree to make an equitable adjustment in price or estimated cost, schedule, and other terms, as appropriate. I would ask the contractor to confirm that it has included no contingency in its proposal for the prospective change.

That's what I would do.