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Today, the Federal Acquisition Regulatory Council ("FAR Council") – Department of Defense, General Services Administration, and National Aeronautics and Space Administration – published its Semiannual Regulatory Agenda. As the document states, the agenda provides interested parties (e.g., government contractors, industry stakeholders, etc.) an opportunity to participate in the federal rulemaking process. Under the Administrative Procedure Act ("APA"), agencies must publish proposed rules in the Federal Register (notice) and allow interested parties to respond in the form of "written data, views, or arguments" (comment). See 5 U.S.C. § 553 ("notice-and-comment" rulemaking procedures).

Below is a small portion of the regulatory agenda (with the FAR Council's abstract), which covers CUI, size/status representations, past performance ratings for small business joint venture members, cybersecurity and incident reporting, and organizational conflicts of interest. Notably, the FAR Council separates its agenda into the following sections: pre-rule stage, proposed rule stage, final rule stage, long-term actions, and completed actions. 

Notable Items

Federal Acquisition Regulation (FAR); FAR Case 2017–016, Controlled Unclassified Information (CUI) [9000–AN56]

• Abstract: This rule will apply the controlled unclassified information (CUI) program requirements in Federal contracts in a uniform manner to protect CUI. This rule is one element of a larger strategy to improve the Government's efforts to identify, deter, protect against, detect, and respond to increasingly sophisticated threat actions targeting Federal contractors. This rule is being issued in accordance with the National Archives and Records Administration (NARA) regulations implementing the CUI program per Executive Order 13556 issued November 4, 2010, as implemented in NARA's implementing regulations.
• Stage – Proposed Rule Stage

Federal Acquisition Regulation (FAR); FAR Case 2020–016, Rerepresentation of Size and Socioeconomic Status [9000–AO18]

• Abstract: This rule will require contractors to rerepresent its size and economic status for all set-aside orders issued under full and open multiple-award contracts. Additionally, rerepresentation is required for orders issued under a small business set-aside multiple-award contract where the orders are further set aside exclusively for a particular socioeconomic category and the required socioeconomic status differs from the underlying multiple-award contract. Orders issued under any Federal Supply Schedule are exempt from the requirement to rerepresent size and socioeconomic status. This rule is being issued in accordance with the Small Business Administration final rule published on October 16, 2020, titled “Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.”
• Stage – Proposed Rule Stage

Federal Acquisition Regulation (FAR); FAR Case 2021–011, Past Performance Ratings for Small Business Joint Venture Members and Small Business First-Tier Subcontractors [9000–AO28]

• Abstract: This rule will permit small business offerors that served as first-tier subcontractors and joint venture members, in certain situations, to submit the past performance and experience gained under these arrangements with offers on Federal contracts. Contracting officers will be required to consider the capabilities and past performance provided by first-tier subcontractors and joint venture members in certain situations. This rule promotes equity in Federal procurement. This rule is being issued in accordance with section 868 of the National Defense Authorization Act for Fiscal Year 2021, as implemented in the Small Business Administration (SBA) final rule published on July 22, 2022, titled “Past Performance Ratings for Small Business Joint Venture Members and Small Business First-Tier Subcontractors;” and section 15 of the Small Business Act, as implemented in the SBA final rule on October 16, 2020, titled “Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.”
• Stage – Proposed Rule Stage

Federal Acquisition Regulation (FAR); FAR Case 2021–017, Cyber Threat and Incident Reporting and Information Sharing [9000–AO34]

• Abstract: This rule will authorize agencies to increase the sharing of information about cyber threats and incident information between the Government and certain providers. In addition, this rule will require certain contractors to report cyber incidents to the Federal Government to facilitate effective cyber incident response and remediation. This rule is being issued pursuant to recommendations from the Office of Management and Budget and the Department of Homeland Security in accordance with sections 2(b), 2(c), 2(g)(i), and 8(b), of the Executive Order 14028 titled “Improving the Nation's Cybersecurity.”
• Stage – Proposed Rule Stage

Federal Acquisition Regulation (FAR); FAR Case 2021–019, Standardizing Cybersecurity Requirements for Unclassified Information Systems [9000–AO35]

• Abstract: This rule will ensure Federal information systems are better positioned to protect from cybersecurity threats by standardizing common cybersecurity contractual requirements across agencies for unclassified Federal information systems. This rule is being issued to implement Department of Homeland Security recommendations in accordance with sections 2(i) and 8(b) of the Executive Order 14028 titled “Improving the Nation's Cybersecurity.”
• Stage – Proposed Rule Stage

Federal Acquisition Regulation (FAR); FAR Case 2023–006, Preventing Organizational Conflicts of Interest in Federal Acquisition [9000–AO54]

• Abstract: This rule will provide and update definitions, guidance, and examples related to organizational conflicts of interest (OCI), including the creation of solicitation provisions and contract clauses to avoid or mitigate OCI that require contractors to disclose information relevant to potential OCI and limit future contracting. The rule will also permit contracting officers to take into consideration professional standards and procedures to prevent OCI to which an offeror or contractor is subject. This rule is being issued in accordance with the Preventing Organizational Conflicts of Interest in Federal Acquisition Act.
• Stage – Proposed Rule Stage

Takeaway

The FAR Council's regulatory agenda is an important document for industry and government contractors (of all sizes) to absorb – it alerts such interested parties of upcoming rule changes so they have an opportunity to respond. The ability for contractors to provide comments as part of the APA's "notice-and-comment" rulemaking process is critical because an agency's final rule will ultimately impact how and in what manner contractors conduct business with the federal government. As the Supreme Court noted, when an agency issues a final rule through notice-and-comment rulemaking (legislative rules), those rules have “force and effect of law.” Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 96 (2015) (citation omitted).