FR Doc 05-4087

[Federal Register: March 9, 2005 (Volume 70, Number 45)]
[Rules and Regulations]
[Page 11740-11742]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr05-20]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 19 and 52

[FAC 2005-01; FAR Case 2004-036; Item IV]
RIN 9000-AK14

Federal Acquisition Regulation; Addition of Landscaping and Pest
Control Services to the Small Business Competitiveness Demonstration
Program

AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) regarding the
addition of landscaping and pest control services to the Small Business
Competitiveness Demonstration Program. This FAR revision implements
Section 821 of the Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005, Public Law 108-375, which amends Section 717 of
the Small Business Competitiveness Demonstration Program Act of 1988
(15 U.S.C. 644 note) to include landscaping and pest control services.

DATES: Effective Date: March 9, 2005.
Comment Date: Interested parties should submit comments to the FAR
Secretariat at the address shown below on or before May 9, 2005 to be
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-01, FAR case 2004-
036 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.2004-036@gsa.gov. Include FAC 2005-01, FAR

case 2004-036 in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat

[[Page 11741]]

(VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-01, FAR
case 2004-036, 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. Kimberly Marshall,
Procurement Analyst, at (202) 219-0986. Please cite FAC 2005-01, FAR
case 2004-036.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule amends the FAR to implement Section 821 of the
Ronald W. Reagan National Defense Authorization Act for Fiscal Year
2005, Public Law 108-375, which amends Section 717 of the Small
Business Competitiveness Demonstration Program Act of 1988 (15 U.S.C.
644 note). The law amends the Small Business Competitiveness
Demonstration Program to include landscaping and pest control services.
The emerging small business reserve amount for these new services is
set at $25,000.
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 under5 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 there will be additional
categories added to the designated industry groups listed in FAR
19.1005. This rule adds landscaping (561730) and pest control (561710)
services to the list of National American Industry Classification
System (NAICS) codes included as designated industry groups of the
Small Business Competitiveness Demonstration Program. The Initial
Regulatory Flexibility Act is summarized as follows:
The objective of the interim rule is to further assess the
ability of small business concerns to compete successfully in
certain industry categories without competition being restricted by
the use of small business set-asides. The implementation of Section
821 of the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005, Public Law 108-375 will change the FAR as follows:
(1) revises the designated industry groups to include Exterminating
and Pest Control Services and Landscaping Services in the definition
of ``Emerging small business reserve amount'' at FAR 19.1002(1) and
in 19.1005(a); (2) deletes the word ``four'' before designated
industry groups in the FAR.
The interim rule will apply to all small business concerns that
compete on Federal acquisitions falling under NAICS codes 561730 and
561710. Based on Governmentwide data retrieved from the Federal
Procurement Data System (FPDS) for the specified NAICS codes,
approximately 141 small business concerns were awarded contracts of
$25,000 or more on an unrestricted basis in Fiscal Year 2002 for
NAICS code 561730. This represents about 88 percent of all contracts
awarded with unrestricted competition for that NAICS code. In Fiscal
Year 2003, there were 116 contracts awarded to small business
concerns on an unrestricted basis, which represents approximately 81
percent of all contracts awarded with unrestricted competition for
that NAICS codes. FPDS data also show that 25 small business
concerns were awarded contracts of $25,000 or more on an
unrestricted basis in Fiscal Year 2002 for NAICS code 561710. This
represents about 56 percent of all contracts awarded with
unrestricted competition for that NAICS code. In Fiscal Year 2003,
there were 17 contracts awarded to small business concerns on an
unrestricted basis, which represents approximately 77 percent of all
contracts awarded with unrestricted competition for that NAICS
codes. It is estimated that small business concerns will continue to
be successful in winning at least one-half to three-fourths of
awards on an unrestricted basis when these designated industry
groups are added to the Small Business Competitiveness Demonstration
Programs given the history of their success in recent unrestricted
competitive government acquisitions falling under NAICS codes 561730
and 561710. Additional data retrieved from FPDS show that the number
of small business set-asides for NAICS code 561730 in Fiscal Years
2002 and 2003 combined was approximately 952 and the number of small
business set-asides for NAICS code 561710 in Fiscal Years 2002 and
2003 combined was approximately 96.
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
previously set-aside acquisitions for services falling within NAICS
codes 561730 and 561710 will now be included in the designated
industry groups of the Small Business Competitiveness Demonstration
Program. FAR 19.1007(b) states that--
``Solicitations for acquisitions in any of the designated
industry groups that have an anticipated dollar value greater than
the emerging small business reserve amount must not be considered
for small business set-asides under Subpart 19.5. However, agencies
may reinstate the use of small business set-asides as necessary to
meet their assigned goals, but only within organizational units that
failed to meet the small business participation goal. Acquisitions
in the designated industry groups must continue to be considered for
placement under the 8(a) Program (see Subpart 19.8), the HUBZone
Program (see Subpart 19.13), and the Service-Disabled Veteran-Owned
Small Business Procurement Program (see Subpart 19.14).''
Given the large number of awards made under these NAICS codes,
it is anticipated that the addition of the 2 NAICS codes to the
Small Business Competitiveness Demonstration Program will promote an
increased number of opportunities for small business concerns to
develop teaming arrangements and joint ventures.
The purpose of the Competitiveness Demonstration Program is to
assess the ability of small businesses to compete successfully in
certain industry categories without competition being restricted by
the use of small business set-asides. This portion of the program is
limited to the four designated industry groups listed in FAR
19.1005(a) and will include the addition of landscaping and pest
control services to the designated industry groups. The interim rule
imposes no reporting, recordkeeping, or other compliance
requirements. The interim rule does not duplicate, overlap, or
conflict with any other Federal rules. There are no practical
alternatives that will accomplish the objectives of this interim
rule.
The FAR Secretariat has submitted a copy of the IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. Interested
parties may obtain a copy from the FAR Secretariat. The Councils will
consider comments from small entities concerning the affected FAR Parts
19 and 52 in accordance with 5 U.S.C. 610. Interested parties must
submit such comments separately and should cite 5 U.S.C 601, et seq.
(FAC 2005-01, FAR case 2004-036), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act 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.

D. Determination to Issue an Interim Rule

A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the interim rule includes FAR text revisions

[[Page 11742]]

required to implement the recently enacted Public Law 108-375, Ronald
W. Reagan National Defense Authorization Act for Fiscal Year 2005
(October 28, 2004), Section 821, which amends Section 717 of the Small
Business Competitiveness Demonstration Program Act of 1988 (15 U.S.C.
644 note). However, pursuant to Public Law 98-577 and FAR 1.501, the
Councils will consider public comments received in response to this
interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 19 and 52

Government procurement.

Dated: February 24, 2005
Rodney P. Lantier,
Director,Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 19 and 52 as set forth
below:
0
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

19.502-2 [Amended]

0
2. Amend section 19.502-2 in paragraph (d) by removing the word
``four''.
0
3. In section 19.1002 revise paragraph (1) of the definition ``Emerging
small business reserve amount'' to read as follows:

19.1002 Definitions.

* * * * *
Emerging small business reserve amount * * *
(1) $25,000 for construction, refuse systems and related services,
non-nuclear ship repair, landscaping and pest control services; and
* * * * *
0
4. Amend section 19.1005 in paragraph (a) by adding an Item 5 to the
``NAICS Description'' to read as follows:

19.1005 Applicability.

(a) * * *
NAICS CODE NAICS DESCRIPTION
* * * * *
5. Landscaping and Pest Control
Services
561710 Exterminating and Pest
Control Services
561730 Landscaping Services
* * * * *

19.1001, 19.1003, 19.1007, and19.1008 [Amended]

0
5. In addition to the amendments set forth above, remove the word
``four'' in the following places:(a) Section 19.1001(a);(b) Section
19.1003(a) and (c);(c) Section 19.1007(b) and (c); and(d) Section
19.1008(a).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Amend section 52.212-3 by revising the date of the clause to read
``(MAR 2005)'' and by removing from paragraphs (c)(8)(i) and (c)(8)(ii)
the word ``four'' wherever it appears.
[FR Doc. 05-4087 Filed 3-8-05; 8:45 am]