[Federal Register: May 19, 2009 (Volume 74, Number 95)]
[Proposed Rules]
[Page 23373-23374]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my09-20]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAR Case 2008-023; Docket 2009-0017; Sequence 1]
RIN 9000-AL29
Federal Acquisition Regulation; FAR Case 2008-023, Clarification
of Criteria for Sole Source Awards to Service-disabled Veteran-owned
Small Business Concerns
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and SpaceAdministration (NASA).
ACTION: Proposed rule with request for comments.
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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) to clarify the criteria that need
to be met in order to conduct a sole source Service-disabled Veteran-
owned Small Business (SDVOSB) concern acquisition.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before July 20, 2009 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2008-023 by any of
the following methods:
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-023'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-023. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-023'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street NW, Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2008-23
in all correspondence related to this case. All comments received will
be posted
[[Page 23374]]
without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including any personal
and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Rhonda Cundiff, Procurement
Analyst, at (202) 501-0044 for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2008-023
in all correspondence.
SUPPLEMENTARY INFORMATION:
A. Background
The United States Government Accountability Office's (GAO) decision
in the matter of MCS Portable Restroom Service, B-299291, March 28,
2007, deals in part with the issue of when a sole source SDVOSB
acquisition may be conducted. In this decision, GAO notes that the
plain wording of FAR 19.1406 may be unintentionally inconsistent with
the Veterans Benefit Act of 2003 and the Small Business Administration
regulations that implement that Act. GAO concludes the intent of the
FAR language is that one criterion for a sole source award is that the
contracting officer does not have a reasonable expectation that two or
more SDVOSBs will submit offers. The intent of the FAR language is not
that a sole source acquisition is prohibited if more than one SDVOSB
that could conceivably perform the work exists.
The Councils have reviewed the language in question, FAR
19.1406(a)(1). The Councils have determined that in order to lessen the
possibility of misinterpretation, the language should be revised to
more closely mirror the Veterans Benefit Act of 2003 (15 U.S.C. 657f).
The proposed rule contains language that was revised accordingly.
The language in FAR 19.1306(a)(1), which deals with sole source
awards to HUBZone small business concerns based on 15 U.S.C. 657a(b),
is currently the same as the language in FAR 19.1406(a)(1). The
Councils have determined that the language in 19.1306(a)(1) should be
revised in the same manner as the language in 19.1406(a)(1). The intent
in both cases is that one of the criterion for making a sole source
award is that the contracting officer does not reasonably expect to
receive offers from two or more concerns. Not revising the language in
FAR 19.1306(a)(1) to match FAR 19.1406(a)(1) will lead to confusion.
There could be a presumption that the intent is to convey different
meanings, when that is not the intent. Therefore, the proposed rule
contains language that has been revised accordingly.
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 Councils do not expect this proposed rule to 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 this revision is being done to clarify the intent of the
existing language and is not a change in policy. An Initial Regulatory
Flexibility Analysis has, therefore, not been performed. We invite
comments from small businesses and other interested parties. The
Councils will consider comments from small entities concerning the
affected FAR Part 19 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. (FAR case 2008-023), 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. Chapter 35, et seq.
List of Subjects in 48 CFR Part 19.
Government procurement.
Dated: May 12, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 19 as
set forth below:
PART 19--SMALL BUSINESS PROGRAMS
1. The authority citation for 48 CFR part 19 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Amend section 19.1306 by revising paragraphs (a) and (a)(1) to
read as follows:
19.1306 HUBZone sole source awards.
(a) A contracting officer may award contracts to HUBZone small
business concerns on a sole source basis (see 19.501(c) and 6.302-5)
without considering small business set-asides (see Subpart 19.5),
provided--
(1) The contracting officer does not have a reasonable expectation
that offers would be received from two or more HUBZone small business
concerns;
* * * * *
3. Amend section 19.1406 by revising paragraphs (a)(1) and (a)(2)
to read as follows:
19.1406 Sole source awards to service-disabled veteran owned small
business concerns.
(a) * * *
(1) The contracting officer does not have a reasonable expectation
that offers would be received from two or more service-disabled
veteran-owned small business concerns;
(2) The anticipated award price of the contract, including options,
will not exceed--
* * * * *
[FR Doc. E9-11648 Filed 5-18-09; 8:45 am]
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