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Final Far Rule Issued On Privacy Training Requirements And Payments To Government Subcontractors

December 21, 2016
Have a Joyful Holiday Season and a Happy New Year!
As the end of the year approaches, we'd like to thank all the readers of The GovCon Bulletin™ for following along and for all the thoughtful comments and feedback we received throughout the year.  We wish everyone a joyful holiday season, a happy and safe New Years Day, and a prosperous 2017!  
Mark Amadeo

 
FINAL FAR RULE ISSUED ON PRIVACY TRAINING REQUIREMENTS AND PAYMENTS TO GOVERNMENT SUBCONTRACTORS

Privacy Training Requirements

On December 20, 2016, Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA), collectively the "Federal Agencies," issued a final rule amending the Federal Acquisition Regulation (FAR) to require that contractors whose employees have access to a system of records or handle personally identifiable information complete privacy training. This final rule, which you can find here, becomes effective January 19, 2017.

The proposed rule that initially imposed the privacy training requirement, published on October 14, 2011, provides guidance to contractors on the kind of privacy training that addresses the protection of privacy in accordance with the Privacy Act of 1974 and the handling and safeguarding of personally identifiable information (PII).  The proposed rule requires contractors to identify employees who handle PII, have access to a system of records, or design, develop, maintain, or operate a system of records.  These employees are required to complete initial privacy training and annual privacy training thereafter.  Under the proposed rule, a contractor with employees involved in these activities is also required to maintain records indicating that its employees completed the requisite training and to provide these records to the contracting officer upon request.  A prime contractor is required to flow-down these requirements to all applicable subcontracts.

The final rule now makes several clarifications to the proposed rule.  Specifically, the final rule clarifies that contractors have flexibility to utilize privacy training from any source that meets the minimum content requirements, unless the agency specifies in the contract that only agency-provided training is acceptable.  The final rule also provides a number of clarifications addressing the substance of the minimal privacy training requirements.  The final rule revised the definition for PII and clarifies that the privacy training must be role-based, must provide foundational as well as more advanced levels of training, and must have measures in place to test the knowledge level of users. More specifically, at a minimum, privacy training must cover—

  • The provisions of the Privacy Act of 1974, including penalties for violations of the Act;
  • The appropriate handling and safeguarding of PII;
  • The authorized and official use of a system of records or any other PII;
  • Restrictions on the use of unauthorized equipment to create, collect, use, process, store, maintain, disseminate, disclose, dispose, or otherwise access, or store PII;
  • The prohibition against the unauthorized use of a system of records or unauthorized disclosure, access, handling, or use of PII or systems of records; and
  • Procedures to be followed in the event of a potential or confirmed breach of a system of records or unauthorized disclosure, access, handling, or use of PII.

In response to comments expressing concern over the applicability of the rule to commercial item contracts, the final rule also clarifies that the privacy training requirement applies to contracts and subcontracts for commercial items when they involve access to a system of records.

Lastly, the final rule makes clear that it is applicable to contracts and subcontracts at or below the simplified acquisition threshold (SAT) and to contracts and subcontracts for commercial-items, including contracts and subcontracts for commercially available off-the-shelf (COTS) items. 

Payments To Subcontractors

On December 20, 2016, the Federal Agencies also issued a final rule amending FAR to implement a requirement under the Small Business Jobs Act of 2010 that contractors notify the contracting officer, in writing, if the contractor pays a reduced price to a small business subcontractor or if the contractor's payment to a small business subcontractor is more than 90 days past due.  The final rule also requires contracting officers to record the identity of contractors with a history of late or reduced payments to small business subcontractors in the Federal Awardee Performance and Integrity System (FAPIIS).  This final rule, which you can find here, becomes effective January 19, 2017.

As we wrote about in our earlier bulletin (here), the Federal Agencies first proposed these requirements in a proposed rule issued January 20, 2016 under which contracting officers are required to report to FAPIIS a contractor that has a history of three or more unjustified payments under a single contract within a 12-month period.  Under the proposed rule, unjustified untimely or reduced payments to small business subcontractors are now included in ratings for small business subcontracting past performance evaluation factors.

The final rule now incorporates significant changes in response to comments received on the proposed rule. The final rule now provides a reporting window of 14 days from the date of any occurrence of untimely or reduced payment for prime contractors to report to the contracting officer. The final rule also includes examples of payment and nonpayment situations that are not considered unjustified, including if:

  • There is a contract dispute on performance;
  • Partial payment is made for amounts not in dispute;
  • A payment is reduced due to past overpayments;
  • There is an administrative mistake; and
  • Late performance by the subcontractor leads to later payment by the prime contractor.

The final rule preamble also makes clear that the rule applies to contracts for the acquisition of commercial items and commercially available off-the-shelf items.

Senate Approves NDAA 2017 Extending SBIR Program, Podcast on SBIR Rights In Technical Data & Software, And Other SBIR Information

December 12, 2016
Join Us at The Kennedy Center On December 20 For The Federal Government Contractors Holiday Soiree!
The Amadeo Law Firm is please to be a sponsor of the Federal Government Contractors Holiday Soiree, hosted by our good friends at Jennifer Schaus & Associates.  The networking event will be on December 20, 2016, beginning at 5:30 pm and will take place on the Terrace Level of The Kennedy Center.  For more information about the GovCon event, go here.
Mark Amadeo

 
SENATE APPROVES NDAA 2017 EXTENDING SBIR PROGRAM, PODCAST ON SBIR RIGHTS IN TECHNICAL DATA & SOFTWARE, AND OTHER SBIR INFORMATION

Senate Approves NDAA 2017 Extending SBIR Program

On December 8, 2016, the U.S. Senate passed the National Defense Authorization Act for Fiscal Year 2017 (“NDAA 2017”), which had passed the House earlier on December 2.  NDAA 2017 is packed with important changes affecting federal government contracting and we will be examining several of those changes in the coming weeks.  With respect to the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs, which were set to expire on September 20, 2017, NDAA 2017 extended authorization of the programs until September 30, 2022.

Listen To Mark Amadeo’s Podcast Discussing SBIR Rights in Technical Data & Software

In this free podcast, hosted by our good friend Mike Pansky at InterKn, which offers an online platform that provides comprehensive information on SBIR and STTR projects, awards and investors, Mark Amadeo talks with Mike about the SBIR and STTR programs and how small businesses can leverage SBIR and STTR data rights to protect their valuable technologies.  To listen to the podcast without charge, go here or play it from InterKn's web page here.

Agencies Issue SBIR & STTR BAA's

As we reported here in our previous edition of The GovCon Bulletin,™ the U.S. Department of Defense (DoD) issued on a pre-release bases its BAA seeking proposals responding to it’s SBIR and STTR topics.  After the pre-release period, topic proposals can be submitted through February 8, 2017.  Several of the eleven (11) other agencies participating in the SBIR and STTR programs issued their BAA’s throughout the Fall as well, and a few of the agencies besides DoD, such as NASA (go here), NIH (go here) and HHS (go here), also are still accepting SBIR and STTR proposals.

More Resources On The SBIR & STTR Programs

Earlier this year, in October, we posted a video on The GovCon Video Blog™ discussing three things government contractors should know about SBIR Rights, and in June, Mark Amadeo conducted a webinar presentation providing a brief overview of the SBIR & STTR programs with Jennifer Schaus, Founder & Principle of Jennifer Schaus & Associates.  Click on the links below to view the vlog and webinar without charge.

Listen To Free Podcast of Discussion on SBIR Software & Data Rights!

December 9, 2016
LISTEN TO FREE PODCAST OF DISCUSSION ON SBIR SOFTWARE & DATA RIGHTS!

In this podcast, hosted by our good friend Mike Pansky at InterKn, which offers an online platform that provides comprehensive information on Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) projects, awards and investors, Mark Amadeo talks with Mike about the SBIR and STTR programs and how small businesses can leverage SBIR and STTR data rights to protect their valuable technologies.  To listen to the podcast, go here.

To read other articles from The GovCon Bulletin™ go here.

DoD Issues SBIR & STTR Topics In Pre-Release

November 30, 2016
DOD ISSUES SBIR & STTR TOPICS IN PRE-RELEASE

Today, the U.S. Department of Defense (DoD) issued the pre-release of it’s 2017 SBIR and STTR Topic Broad Agency Announcements (BAA), which used to be called “Solicitations.”  You can find DoD’s SBIR 17.1 and STTR 17.A BAA topics at DoD’s SBIR website here

DoD’s pre-release period, which runs until January 10, 2017, is the time that small businesses can contact topic authors and direct technical questions about the topics. On January 10, 2017, when the pre-release period is over, direct questions with topic authors are not permitted, although technical questions can be submitted anonymously through the SBIR Interactive Topic Information System (SITIS).  Consequently, small businesses that intend to submit an SBIR or STTR proposal should review BAA topics as soon as they can in order to take advantage of the unique opportunity to get clarifications and questions answered directly from the topic authors.  The Announcement period, during which proposals can be submitted, runs from January 10, 2017, through February 8, 2017.

Earlier this year, we gave a brief overview of the very unique contracting opportunities available to small business technology companies under the SBIR and STTR programs in a free webinar that you can find here.  More recently, we addressed the government's limited rights in SBIR data in a video blog that you can see here.  Feel free to contact the Firm if you have any questions about the webinar, video blog or DoD's SBIR & STTR BAA topic pre-release.