[Federal Register: September 2, 2004 (Volume 69, Number 170)]
[Proposed Rules]
[Page 53779-53781]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se04-28]
[[Page 53779]]
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Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 19 and 52
Federal Acquisition Regulation; Applicability of SDB and HUBZone Price
Evaluation Factor; Proposed Rule
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19 and 52
[FAR Case 2003-015]
RIN 9000-AK02
Federal Acquisition Regulation; Applicability of SDB and HUBZone
Price Evaluation Factor
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR), at the request of the Small
Business Administration, in order to remove some of the exceptions to
the applicability of the Small Disadvantaged Business (SDB) and HUBZone
price evaluation factor.
DATES: Interested parties should submit comments in writing on or
before November 1, 2004, to be considered in the formulation of a final
rule.
ADDRESSES: Submit comments identified by FAR case 2003-015 by any of
the following methods:
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web Site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov/far/ProposedRules/proposed.htm.
Click on the FAR case number to submit comments. E-mail: farcase.2003-015@gsa.gov. Include FAR case 2003-
015 in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (V), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2003-
015 in all correspondence related to this case. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov/far/ProposedRules/proposed.htm
, including any personal information
provided.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Cecelia Davis, Procurement
Analyst, at (202) 219-0202. Please cite FAR case 2003-015.
SUPPLEMENTARY INFORMATION:
A. Background
This rule proposes to amend FAR 19.1103(a) and FAR 19.1307(b) in
order to remove the exceptions to the Small Disadvantaged Business
(SDB) and HUBZone preference programs that direct the contracting
officer not to apply a price evaluation adjustment to offers of
eligible products in acquisitions subject to the Trade Agreements Act
(19 U.S.C. 2501, et seq.) or where application of the factor would be
inconsistent with a Memorandum of Understanding (MOU) or other
international agreement.
The Councils are proposing these changes for the following reasons:
These exceptions result in more favorable treatment for
offers of eligible products or qualifying country products than an
offer from a U.S. large business, or, in the case of the SDB
preference, even an offer from a U.S. small business. The basic goal of
the trade agreements and other international agreements is to provide
nondiscriminatory treatment for certain foreign products, not
preferential treatment.
The Trade Agreements Act (19 U.S.C. 2511(f)) specifically
restricts the authority of the President to authorize the waiver of any
small business or minority preferences.
With regard to the exception relating to MOUs or other
international agreements, DoD MOUs do not override small business
preferences. The Councils were unable to identify any other MOU or
international agreement that is inconsistent with the application of a
preference for small business. If any international agreement
supercedes a small business preference, it should be specifically
identified, either in the FAR if it is Governmentwide, or in an agency
supplement. The contracting officer is not in a position to know when
application of the factor would be inconsistent with an MOU or
international agreement.
Conforming amendments are required in the associated clauses at
52.219-4, Notice of Price Evaluation Preference for HUBZone Small
Business Concerns, and 52.219-23, Notice of Price Evaluation Adjustment
for Small Disadvantaged Business Concerns. Conforming date changes are
also required for the clause at 52.212-5, Contract Terms and Conditions
Required to Implement Statutes or Executive Orders--Commercial Items.
This is not a significant regulatory action and, therefore, was not
subject to 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 changes may 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 it would reduce the
exceptions to the preference for small disadvantaged businesses and
HUBZone small businesses. An Initial Regulatory Flexibility Analysis
(IRFA) has been prepared and will be provided to the Chief Counsel for
Advocacy for the Small Business Administration. The Analysis is
summarized as follows:
This proposed rule was initiated at the request of the Small
Business Administration in order to remove preferential treatment
for certain offers of foreign products in acquisitions intending to
provide a preference for small disadvantaged business concerns or
HUBZone small business concerns. The objective of this proposed rule
is to remove exceptions to the Small Disadvantaged Business (SDB)
and HUBZone preference programs that direct the contracting officer
not to apply a price evaluation adjustment to offers of eligible
products in acquisitions subject to the Trade Agreements Act or
where application of the factor would be inconsistent with a
Memorandum of Understanding (MOU) or other international agreement.
The legal basis for the proposed rule is 19 U.S.C. 2501, et seq. and
15 U.S.C. 631(note). The proposed rule applies to all offerors in
acquisitions that provide a preference for small disadvantaged
business concerns or HUBZone small business concerns. Because of the
reduced exceptions to the preferences, this rule will have a
beneficial impact all domestic concerns, especially small entities
that are small disadvantaged business concerns or HUBZone small
business concerns.
The FAR Secretariat has submitted a copy of the IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the IRFA may be obtained from the FAR Secretariat. The Councils will
consider comments from small entities concerning the affected FAR parts
in accordance with 5 U.S.C. 610. Comments must be submitted separately
and should cite 5 U.S.C 601, et seq. (FAR case 2003-015), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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.
[[Page 53781]]
List of Subjects in 48 CFR Parts 19 and 52
Government procurement.
Dated: August 26, 2004.
Laura Auletta,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 19 and
52 as set forth below:
1. The authority citation for 48 CFR parts 19 and 52 is revised to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS
19.1103 [Amended]
2. Amend section 19.1103 by--
a. Adding ``or'' to the end of paragraph (a)(1);
b. Removing paragraphs (a)(2), (a)(3), and (a)(5); and
redesignating paragraph (a)(4) as (a)(2); and
c. Removing ``; or'' from the end of newly redesignated paragraph
(a)(2) and adding a period in its place.
19.1307 [Amended]
3. Amend section 19.1307 by--
a. Adding ``or'' to the end of paragraph (b)(1);
b. Removing the semicolon from the end of paragraph (b)(2) and
adding a period in its place; and
c. Removing paragraphs (b)(3) and (b)(4).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.212-5 [Amended]
4. Amend section 52.212-5 by--
a. Revising the date of the clause to read ``(Date)'';
b. Removing ``(Jan 1999)'' from paragraph (b)(3) of the clause and
adding ``(Date)'' in its place; and
c. Removing ``(June 2003)'' from paragraph (b)(10)(i) of the clause
and adding ``(Date)'' in its place.
52.219-4 [Amended]
5. Amend section 52.219-4 by--
a. Revising the date of the clause to read ``(Date)''; and
b. Adding ``and'' to the end of paragraph (b)(1)(i) of the clause;
removing the semicolon from the end of paragraph (b)(1)(ii) and adding
a period in its place; and removing paragraphs (b)(1)(iii) and
(b)(1)(iv).
6. Amend section 52.219-23 by revising the date of the clause and
paragraph (b)(1) to read as follows:
52.219-23 Notice of Price Evaluation Adjustment for Small
Disadvantaged Business Concerns.
* * * * *
NOTICE OF PRICE EVALUATION ADJUSTMENT FOR SMALL DISADVANTAGED BUSINESS
CONCERNS (DATE)
* * * * *
(b) Evaluation adjustment. (1) The Contracting Officer will
evaluate offers by adding a factor of ------------------ [Contracting
Officer insert the percentage] percent to the price of all offers,
except--
(i) Offers from small disadvantaged business concerns that have not
waived the adjustment; and
(ii) For DoD, NASA, and Coast Guard acquisitions, an otherwise
successful offer from a historically black college or university or
minority institution.
* * * * *
[FR Doc. 04-20003 Filed 9-1-04; 8:45 am]