[Federal Register: April 25, 2000 (Volume 65, Number 80)]
[Rules and Regulations]
[Page 24322-24323]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap00-14]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 26 and 52
[FAC 97-17; FAR Case 1999-301 (99-301); Item IV]
RIN 9000-AI52
Federal Acquisition Regulation; Utilization of Indian
Organizations and Indian-Owned Economic Enterprises
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to delete DoD-unique
language pertaining to incentive payments made to prime contractors for
the utilization of Indian organizations and Indian-owned economic
enterprises.
DATES: Effective Date: June 26, 2000. Applicability Date: The FAR, as
amended by this rule, is applicable to solicitations issued on or after
June 26, 2000.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 97-17, FAR case 1999-301.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register on October 27, 1999 (64 FR 57964). Six sources submitted
comments in response to the proposed rule. The Councils considered all
comments in the development of the final rule.
Section 504 of the Indian Financing Act of 1974 (25 U.S.C. 1544)
established the Indian Incentive Program. Annual DoD appropriations
acts have restricted DoD payments under the Program to those
contractors that submitted subcontracting plans pursuant to 15 U.S.C.
637(d) and those contractors participating in the test program for
comprehensive small business
[[Page 24323]]
subcontracting plans established by Section 854 of Public Law 101-189.
Section 8024 of the DoD Appropriations Act for Fiscal Year 1999 (Public
Law 105-262) eliminated the link between a DoD contractor's
subcontracting plan requirement and the contractor's eligibility for
participation in the Indian Incentive Program. This change now allows
DoD to make incentive payments to small businesses that subcontract to
Indian organizations or Indian-owned economic enterprises when the
contract includes the clause at FAR 52.226-1, Utilization of Indian
Organizations and Indian-Owned Economic Enterprises. This rule removes
obsolete DoD-unique implementing guidance from the FAR. The Defense
Acquisition Regulations Council is adding guidance to the Defense
Federal Acquisition Regulation Supplement under a separate case to
implement the change made in Section 8024 of Public Law 105-262.
This rule was not subject to Office of Management and Budget review
under Section 6(b) of Executive Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely deletes
obsolete DoD-unique implementing guidance from the FAR. The rule will
have no effect on small entities doing business with civilian agencies.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) does not apply because
the changes to the FAR do not impose information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 26 and 52
Government procurement.
Dated: April 13, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 26 and 52 as set
forth below:
1. The authority citation for 48 CFR parts 26 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 26--OTHER SOCIOECONOMIC PROGRAMS
26.101 [Amended]
2. Amend section 26.101 as follows:
a. In the definition ``Indian'', remove ``which'' and insert
``that'' in its place;
b. In the definition ``Indian-owned economic enterprise'', remove
``shall constitute'' and insert ``constitutes'' in its place; and
c. In the definition ``Indian tribe'', remove ``which'' and insert
``that'' in its place.
3. Revise section 26.104 to read as follows:
26.104 Contract clause.
Contracting officers in civilian agencies may insert the clause at
52.226-1, Utilization of Indian Organizations and Indian-Owned Economic
Enterprises, in solicitations and contracts if--
(a) In the opinion of the contracting officer, subcontracting
possibilities exist for Indian organizations or Indian-owned economic
enterprises; and
(b) Funds are available for any increased costs as described in
paragraph (b)(2) of the clause at 52.226-1.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Amend section 52.226-1 as follows:
a. Revise the date of the clause;
b. Remove paragraph (a);
c. Redesignate paragraphs (b) through (d) as (a) through (c),
respectively;
d. In the newly designated paragraph (a):
(1) Remove ``which'' from the definition ``Indian'' and insert
``that'' in its place;
(2) Remove ``shall constitute'' from the definition ``Indian-owned
economic enterprise'' and insert ``constitutes'' in its place; and
(3) Remove ``which'' from the definition ``Indian tribe'' and
insert ``that'' in its place.
e. Revise newly designated paragraphs (b) and (c).
The revised text reads as follows:
52.226-1 Utilization of Indian Organizations and Indian-Owned Economic
Enterprises.
* * * * *
Utilization of Indian Organizations and Indian-Owned Economic
Enterprises (June 2000)
* * * * *
(b) The Contractor shall use its best efforts to give Indian
organizations and Indian-owned economic enterprises (25 U.S.C. 1544)
the maximum practicable opportunity to participate in the
subcontracts it awards to the fullest extent consistent with
efficient performance of its contract.
(1) The Contracting Officer and the Contractor, acting in good
faith, may rely on the representation of an Indian organization or
Indian-owned economic enterprise as to its eligibility, unless an
interested party challenges its status or the Contracting Officer
has independent reason to question that status. In the event of a
challenge to the representation of a subcontractor, the Contracting
Officer will refer the matter to the U.S. Department of the
Interior, Bureau of Indian Affairs (BIA), Attn: Chief, Division of
Contracting and Grants Administration, 1849 C Street, NW., MS 2626-
MIB, Washington, DC 20240-4000.
The BIA will determine the eligibility and notify the
Contracting Officer. No incentive payment will be made within 50
working days of subcontract award or while a challenge is pending.
If a subcontractor is determined to be an ineligible participant, no
incentive payment will be made under the Indian Incentive Program.
(2) The Contractor may request an adjustment under the Indian
Incentive Program to the following:
(i) The estimated cost of a cost-type contract.
(ii) The target cost of a cost-plus-incentive-fee prime
contract.
(iii) The target cost and ceiling price of a fixed-price
incentive prime contract.
(iv) The price of a firm-fixed-price prime contract.
(3) The amount of the adjustment to the prime contract is 5
percent of the estimated cost, target cost, or firm-fixed-price
included in the subcontract initially awarded to the Indian
organization or Indian-owned economic enterprise.
(4) The Contractor has the burden of proving the amount claimed
and must assert its request for an adjustment prior to completion of
contract performance.
(c) The Contracting Officer, subject to the terms and conditions
of the contract and the availability of funds, will authorize an
incentive payment of 5 percent of the amount paid to the
subcontractor. The Contracting Officer will seek funding in
accordance with agency procedures.
(End of clause)
[FR Doc. 00-10134 Filed 4-24-00; 8:45 am]
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