[Federal Register: June 16, 2010 (Volume 75, Number 115)]
[Rules and Regulations]
[Page 34260-34271]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn10-18]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 4, 19, 52, and 53
[FAC 2005-42; FAR Case 2005-040; Item II; Docket 2008-0001, Sequence
26]
RIN 9000-AK95
Federal Acquisition Regulation; FAR Case 2005-040, Electronic
Subcontracting Reporting System (eSRS)
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) are issuing a final rule
amending the Federal Acquisition Regulation (FAR) to require that
contractors' small business subcontract reports be submitted using the
Electronic Subcontracting Reporting System (eSRS), rather than Standard
Form 294 - Subcontract Report for Individual Contracts and Standard
Form 295 - Summary Subcontract Report.
DATES: Effective Date: July 16, 2010.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-0044. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR
Case 2005-040.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils published an interim rule in the Federal Register at
73 FR 21779 on April 22, 2008, to implement in the FAR the use of the
Electronic Subcontracting Reporting System (eSRS) to fulfill small
business subcontracting reporting requirements. The eSRS is a web-based
system under the umbrella of the Integrated Acquisition Environment. It
replaces Standard Forms 294 and 295 as the mechanism for submitting
reports required by the small business subcontracting program. The eSRS
is intended to streamline the small business subcontracting program
reporting process and provide the data to agencies in a manner that
will enable them to more effectively manage the program.
The interim rule also amended FAR subpart 19.7 and related clauses
to clarify existing small business subcontracting program requirements.
The FAR interim rule was not intended to change any of the
requirements for the individual or summary subcontract reports. Its
purpose was only to require submission of subcontract reports
electronically, rather than in hardcopy.
Nineteen commenters submitted comments on the interim rule. A
discussion of those comments and the changes made to the rule as a
result of those comments is provided below.
The comments will be discussed in three overall categories. Those
that pertain to the FAR rule itself, those that do not pertain to the
FAR rule, and those that were submitted in response to the Councils'
question in the Federal Register notice for the interim rule concerning
whether the reporting period covered by a Summary Subcontract Report
for a commercial subcontracting plan should remain the Government's
fiscal year, or be the contractor's fiscal year.
The comments submitted that did not pertain to the FAR rule itself
covered such things as changes that need to be made to eSRS to ensure
that the instructions in that electronic system are consistent with
this FAR rule, changes that need to be made to electronic business
systems that interface with eSRS, and changes that need to be made to
regulations that supplement the FAR. These comments will be referred to
the appropriate Government officials for their consideration. These
comments will not be addressed individually in this
[[Page 34261]]
Federal Register notice, except when it is necessary to address them in
order to clarify existing policy.
Comments pertaining to the FAR rule.
Comment: One commenter recommended revising FAR 19.704(a)(10)(v)
and 19.704(a)(10)(vi) by replacing ``Government or Contractor
official'' with ``Government official (for SSRs) and the Prime's
Contracting official (for ISRs).'' The reason for the change is that
the Government reviews all Summary Subcontract Reports (SSRs) submitted
by prime contractors and subcontractors, and whoever awarded the
contract/subcontract is responsible for acknowledging receipt of, or
rejecting, the Individual Subcontract Report (ISR). The contractor,
therefore, must provide both the Government official's and the prime's
contracting official's e-mail address to be consistent with FAR 19.705-
6(h) and FAR 52.219-9(l)(1)(iii)(B) for ISRs, and (1)(2)(F) for SSRs.
Response: The Councils concur that both e-mail addresses need to be
provided to subcontractors with subcontracting plans since these
subcontractors will be required to submit both an ISR and an SSR. The
Councils further believe that the proposed revisions to FAR 19.704 will
make this aspect of the rule clearer and have revised the language in
the final rule accordingly. The contractor must provide the email
address of the official responsible for acknowledging receipt of or
rejecting the reports, to be consistent with FAR 19.705-6(h) and FAR
52.219-9(l)(1)(iii)(B) for ISRs, and 52.219-9(l)(2)(F) for SSRs.
Similar changes have been made to 52.219-9(d)(10)(v) and (vi).
Comment: Two commenters recommended revising the second sentence in
FAR 19.705-6(h) to provide examples of what constitutes a report not
being adequately completed (i.e., errors, omissions, and incomplete
data).
Response: Concur. The Councils believe that adding a list of
examples such as, ``errors, omissions, and incomplete data'', should
help clarify what is meant by not adequately completed. FAR 19.705-6(h)
has been revised accordingly in the final rule.
Additionally, it should be noted that acknowledging receipt does
not mean acceptance or approval of the report.
Comment: One commenter questioned the need to clarify in FAR clause
52.219-9 that ``subcontracting plans are not required from
subcontractors when the prime contract contains the FAR clause at
52.212-5, Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items''. The commenter believes that
FAR clause 52.219-9 should be included in contracts for commercial
items.
Response: The clarification is consistent with FAR 52.212-5(e)(1)
``Notwithstanding the requirements of the clauses in paragraphs (a),
(b), (c), and (d) of this clause, the Contractor is not required to
flow down any FAR clause, other than those in this paragraph (e)(1) in
a subcontract for commercial items.'' The current FAR clause 52.212-
5(e)(1) includes FAR clause 52.219-8 but does not include clause
52.219-9.
Comment: One commenter proposes changing FAR 52.219-9(l)(1) in
order to make it consistent with FAR 19.705-6, Postaward
Responsibilities of the Contracting Officer, and to enforce the cut-off
date for report submission. The commenter recommends changing FAR
52.219-9(l)(1) from: ``(1) ISR. This report is not required for
commercial plans. The report is required for each contract containing
an individual subcontract plan and shall be submitted to the
Administrative Contracting Officer (ACO) or Contracting Officer, if no
ACO is assigned,'' to: ``(1) ISR. The report is required for each
contract containing an individual subcontract plan and shall be
submitted to the contracting officer who approved the subcontracting
plan. Failure to submit or late submission of reports shall be a breach
of contract and will be documented as past performance for future
acquisitions.''
Response: Partially concur. The Councils do not agree with adding
the sentence concerning failure to submit or late submission of
reports. Paragraph (k)(2) of FAR clause 52.219-9 already addresses the
breach of contract issue when the contractor or subcontractor fails to
comply in good faith with the approved subcontracting plan. Reporting
is an element of the plan.
Although the Councils have not adopted the changes that the
commenter has recommended to the first two sentences in this paragraph
of the interim rule, the Councils have revised the language in the
final rule so that this paragraph does not address to whom the ISR is
submitted. That issue is already adequately addressed in paragraph
(l)(1)(iii) of FAR clause 52.219-9 and does not need to be addressed in
paragraph (l)(1). Paragraph (l)(1)(iii) of FAR clause 52.219-9 is
completely consistent with FAR 19.705-6(h).
Comment: One commenter recommended revising the second sentence of
FAR clause 52.219-9(l)(l) to read, ``The report is required for each
contract containing an individual subcontracting plan and shall be
submitted to the Contracting Officer from the Government agency who
awarded the prime contract or as prescribed by agency regulations.''
The commenter stated that the rationale for this revision is to make
this paragraph of the clause consistent with paragraphs (l)(1)(iii)(A)
and (l)(2)(i)(F) of the clause. These paragraphs state that the
authority to acknowledge receipt or reject ISRs resides with the
Contracting Officer, and for SSRs resides with the Government agency
awarding the prime contracts.
Response: Nonconcur. The Councils believe it is not necessary for
this sentence to address to whom the report is submitted. That issue is
already adequately addressed in paragraph (l)(1)(iii) of FAR clause
52.219-9 and does not need to be addressed in paragraph (l)(1) of the
clause. Accordingly, this sentence has been revised in the final rule
and now reads, ``The report is required for each contract containing an
individual subcontract plan.''
Comment: One commenter recommended revising FAR 52.219-
9(l)(2)(i)(F) to read, ``The authority to acknowledge or reject SSRs in
eSRS including SSRs submitted by subcontractors with subcontracting
plans, resides with the Government agency awarding prime contracts or
as prescribed in agency regulations.'' The rationale the commenter
provided for adding the words, ``or as prescribed in agency
regulations,'' is that the DoD Comprehensive Subcontracting Plan (Test
Program) covers all Military Service and Defense Agency contracts. The
Defense Contract Management Agency has the responsibility to perform
management and oversight of plans included in this program, as
delegated by the Military Services and Defense Agencies. Therefore, the
Government agency awarding the prime contract would not be the entity
acknowledging or rejecting SSRs under the DoD Comprehensive
Subcontracting (Test Program).
Response: The Councils do not agree with adding the words, ``or as
prescribed in agency regulations'' to this paragraph in the FAR clause.
The Councils have, however, revised the language in the final rule to
add the words, ``unless stated otherwise in this contract.'' This
language will alert the contractor to the fact that although authority
to acknowledge or reject SSRs resides with the Government agency
awarding the contracts, that agency may delegate the authority to
another agency, but if this occurs, the information on what
[[Page 34262]]
Government entity has the authority will be contained in the contract
itself.
Comment: One commenter stated that paragraph (d)(10)(iii) of FAR
clause 52.219-9, Small Business Subcontracting Plan, adds the
requirement to report information for Historically Black Colleges and
Universities and Minority Institutions (HBCU/MI); however, HBCU/MIs are
not included elsewhere in the clause when the clause references the
various programs (i.e., small business, HUBZones, etc.) and what should
be contained in a subcontracting plan.
Paragraphs (c), (d)(1) to (9), (d)(11), (e), and Alternates I and
II, refer to the requirements of a subcontracting plan. Defense Federal
Acquisition Regulation Supplement (DFARS) 226.370-8, Goals and
incentives for subcontracting with HBCU/MIs, states that when reviewing
subcontracting plans submitted under FAR clause 52.219-9, Small
Business Subcontracting Plan, the contracting officer shall ensure the
contractor included awards to HBCU/MIs in the Small Disadvantaged
Business (SDB) goal. In addition, DFARS 219.704, Subcontracting plan
requirements, states the SDB goal shall include subcontracts with HBCU/
MI, in addition to subcontracts with SDB concerns.
There is a disconnect between what is required on the report for
the Department of Defense, Coast Guard, and National Aeronautics and
Space Administration and what is required in the subcontracting plan.
Recommend either including or deleting HBCU/MI throughout the clause
for consistency. If deleting from the FAR clause, consider including
coverage in the DFARS.
Response: The commenter states that the rule added the requirement
to report information for HBCUs/MIs and suggests revising FAR clause
52.219-9 to add HBCUs/MIs to the entities listed in the requirements
for subcontracting plans, or remove the reference to HBCUs/MIs in the
reporting requirements. The commenter states that either proposed
change would make the language consistent with the other parts of the
clause.
The Councils do not concur. This rule did not add the requirement
to report information for HBCUs/MIs. The language in FAR clause 52.219-
9(d)(10)(iii) concerning reporting subcontract awards to HBCUs/MIs was
already in the FAR. The requirement was already in place for the
Department of Defense, the Coast Guard, and the National Aeronautics
and Space Administration. Standard Forms 294 and 295 both required
these departments to report on awards to HBCUs/MIs.
The purpose of this rule is only to require the use of eSRS rather
than Standard Forms 294 and 295, it is not to change any of the
requirements for subcontracting plans or subcontract reports.
Comment: One commenter recommended modifying the second sentence in
paragraph (l)(2)(iii) of FAR clause 52.219-9, Small Business
Subcontracting Plan, to read, ``The report, which can be submitted into
eSRS, shall include[hellip]''
Response: Nonconcur. The Councils believe that the addition of this
language is unnecessary and would lead to confusion. The Year-End
Supplementary Report for Small Disadvantaged Businesses is a part of
the SSR that is submitted at the close of each fiscal year. The SSR is
submitted using eSRS. There is nothing in the FAR that provides for the
Year-End Supplementary Report for Small Disadvantaged Businesses to be
submitted in any way other than by using eSRS. If the words, ``which
can be submitted into eSRS,'' were added to the second sentence in FAR
clause 52.219-9(l)(2)(iii), it would suggest that there is some other
means for submitting this information and there is not.
Comment: One commenter recommended removing the last sentence of
paragraph (b) of FAR clause 52.219-25, Small Disadvantaged Business
Participation Program--Disadvantaged Status and Reporting, and
replacing it with the following: ``If this contract contains an
Individual Small Business Subcontracting Plan, reports shall be
submitted with the final Individual Subcontract Report into eSRS at the
completion of the contract.'' The commenter indicated that in this
instance where the contractors will be using eSRS to submit the
Individual Subcontract Report (ISR) it would be consistent to require
the contractors to use eSRS to submit the Small Disadvantaged Business
Participation Report. The commenter indicated that having the
information submitted electronically would facilitate access to the
information by multiple Government organizations.
Response: Nonconcur. The Councils do not believe it is necessary to
require that the Small Disadvantaged Business Participation Report be
submitted using eSRS when it is submitted with the final ISR. It is
already likely that in this instance contractors will use eSRS to
submit the Small Disadvantaged Business Participation Report, since it
is expected to be a less burdensome means of submitting that report for
contractors who are also submitting an ISR. Further, not all
contractors required to submit Small Disadvantaged Business
Participation Reports will also be required to submit ISRs, so this
revision would not result in uniform electronic submission of the Small
Disadvantaged Business Participation Report. The benefits to the
Government of having the reports submitted electronically are not as
great if not all of the reports are required to be submitted in that
manner. Therefore, the Councils do not believe that revising the
language in the interim rule to require some contractors to submit the
Small Disadvantaged Business Participation Report in a particular
manner is warranted.
Comment: One commenter has suggested revising paragraph
(d)(10)(iii) of FAR clause 52.219-9 to include ``Alaska Native
Corporations and Indian Tribes that are not Small Businesses'' and
``Alaska Native Corporations and Indian Tribes that have not been
certified by the Small Business Administration as Small Disadvantaged
Businesses'' to be consistent with (d)(1)(i) of the clause.
Response: The Councils acknowledge the commenter's concern that
paragraph (d)(1)(i) of FAR clause 52.219-9 is inconsistent with
paragraph (d)(10)(iii). The Councils have revised paragraph
(d)(10)(iii) in the final rule to clarify that awards to Alaska Native
Corporations and Indian Tribes shall be reported as awards to small
business and small disadvantaged business concerns.
Comment: One commenter stated that the first sentence in FAR
19.704(a)(2) should be revised to read ``Submit a new commercial plan,
30 working days before the end of the contractor's fiscal year, or 30
days prior to the expiration of the current subcontracting plan to the
contracting officer.''
Response: The Councils do not concur. The commenter did not provide
any rationale for making this change. FAR 19.704(a)(2) does not have to
do with submitting commercial plans. The Councils believe the commenter
means FAR 19.704(d)(2). The commercial subcontracting plan covers the
contractor's fiscal year. Commercial plans, therefore, expire at the
end of the contractor's fiscal year. Adding, ``or 30 days prior to the
expiration of the current subcontracting plan'' would, therefore, be
redundant.
Comment: One commenter stated that FAR 19.705-2(e) states that a
contract may have no more than one plan. This will not work for 20 year
multiple award contracts. The commenter recommended having a new
individual plan prior to each 5 year option to allow for other changes
in addition to goals (including a change in the point of contact, or
the items that are being
[[Page 34263]]
subcontracted and the concerns that will receive the subcontracts,
etc.)
Response: The Councils do not concur. The FAR language means that a
contract may have no more than one plan at any given time. There should
not be one plan that covers the contract at time of award and then
additional plans covering work that is added to the contract after
award.
A contracting officer may negotiate changes to the subcontracting
plan whenever they are necessary. The FAR does not prohibit having the
plan change during the course of the contract, it merely prohibits
having more than one plan apply to the contract at a time.
Comment: One commenter indicated that the contracting officer is
responsible for action on Individual Subcontract Reports and Summary
Subcontract Reports (SSRs) in eSRS. The current General Services
Administration, Office of Small Business Utilization, Agency
Coordinator, has been delegated this function for SSRs in lieu of the
contracting officer. The commenter wants the contracting officer that
awards a commercial subcontracting plan to review SSRs for compliance.
However, the commenter believes it is better to have a central point
rather than each regional office responsible for accepting/rejecting
the data which is sent to Congress.
Response: The Councils note the comment. The commenter did not
provide any particular recommendations. It is necessary to have the
contracting officer that approved the commercial subcontracting plan
acknowledge receipt of, or reject, the SSR because that individual is
responsible for the contractor complying with that subcontracting plan,
and submitting the SSR is a requirement under the plan. Contracting
officers, however, may delegate duties, as provided in agency
procedures. Further, eSRS is the central point for collecting the data
which is provided to Congress. Government personnel other than the
individual that acknowledged receipt of the SSR can review the data in
eSRS.
Comment that does not pertain to the FAR rule but which is being
addressed in order to clarify existing policy.
Comment: One commenter believes there is a need to accommodate
changing small business size status in eSRS. The commenter stresses the
need to ensure that the Federal Procurement Data System-Next Generation
(FPDS-NG), eSRS, and agency contract systems are properly updated in
order to ascertain whether a subcontracting plan is required, in the
event that a company's size changes from large to small or vice versa,
during contract performance.
Response: Non-concur. Although it is essential that the Central
Contractor Registration, the Online Representations and Certifications
Application and FPDS-NG reflect the current size status of the prime
contractor, size status is no longer a consideration, in determining
the need for a subcontracting plan, after contract award. The
requirement for a subcontracting plan resides in the prime contract,
and is contingent, among other things, on the size status of the prime
contractor at the time of award. If the prime contractor was small at
the time of award, there would have been no contractual requirement for
a subcontracting plan. Even if the size status of the prime contractor
were to change during contract performance, e.g., as a result of
growth, a novation agreement, or a non-novated merger acquisition, the
terms and conditions of the prime contract regarding the subcontracting
plan will not change.
Likewise, if the prime contract was awarded to a business that was
other than small and the terms and conditions of the prime contract
included a requirement for a subcontracting plan, then this requirement
for a subcontracting plan will remain unchanged for the life of the
contract, regardless of whether the size status of the prime contractor
changes.
Comments on whether the reporting period covered by a SSR for a
Commercial Subcontracting Plan should remain the Government's fiscal
year or be the contractor's fiscal year.
The purpose of the interim rule was to require that small business
subcontract reports be submitted using the eSRS, rather than Standard
Form 294 and Standard Form (SF) 295. The FAR interim rule was not
intended to change any of the requirements for the individual or
summary subcontract reports.
The interim rule retained the requirement that a commercial
subcontracting plan cover the contractor's fiscal year but the time
period covered by the year-end SSR submitted for that subcontracting
plan covers the Government's fiscal year. It also retained the
requirement that the year-end SSR for a commercial subcontracting plan
be submitted 30 days after the end of the Government's fiscal year.
As stated above, the interim rule retained the FAR requirement
(reflected in the SF 295) that the SSR must cover subcontracting done
during the Government's fiscal year.
However, the eSRS, which many agencies and contractors were already
using, was deployed with instructions that informed the contractor that
the year-end SSR for a commercial subcontracting plan should reflect
subcontracting performed during the contractor's fiscal year. The eSRS
instructions indicated that all other SSRs, those not tied to a
commercial subcontracting plan, should cover the Government's fiscal
year.
Since there was a discrepancy between the FAR and the instructions
in eSRS itself, the Federal Register notice for the interim rule
specifically solicited public comment on this issue.
The comments received in response to the question on what period
the year-end SSR for a commercial plan should cover, the Government's
fiscal year or the contractor's fiscal year, requires a review of the
policy on commercial subcontracting plans and the year-end SSRs that
are submitted for these plans.
The Federal Register notice for the interim rule stated that, ``the
Councils may consider adding further coverage in the FAR to mirror the
instructions that are currently in SFs 294 and 295''. The following
sentence had been in SFs 294 and 295: ``Only subcontracts involving
performance in the U.S. or its outlying areas should be included in
these reports''. This sentence has been revised and added to FAR clause
52.219-9 to state ``Only subcontracts involving performance in the
United States or its outlying areas should be included in these reports
with the exception of subcontracts under a contract awarded by the
State Department or any other agency that has statutory or regulatory
authority to require subcontracting plans for subcontracts performed
outside the United States and its outlying areas.''
Additionally, changes have been made to FAR parts 4, 19, and 53,
and a new Alternate III added to FAR clause 52.219-9 to recognize that
there is a circumstance under which contractors will need to use SF
294, rather than eSRS, to submit an ISR. If a contract is not reported
in the FPDS because reporting it in that system may disclose
information that would compromise national security, the contractor
will use SF 294 to submit an ISR on that contract rather than
submitting an ISR in eSRS.
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.
[[Page 34264]]
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 does not
impose any new reporting, recordkeeping or other compliance
requirements and the existing requirements pertain only to other than
small businesses. The rule only requires that reports that were
previously submitted in hardcopy now be submitted electronically.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies because this
final rule contains information collection requirements. Accordingly,
the FAR Secretariat has forwarded a request for approval of a revision
to the information collection requirements concerning OMB Control
Number 9000-0006, Subcontracting Plans/Subcontracting Reporting for
Individual Contracts, and OMB Control Number 9000-0007, Summary
Subcontract Report, to the Office of Management and Budget under 44
U.S.C. chapter 35, et seq. Public comments concerning this request will
be invited through a subsequent Federal Register notice.
List of Subjects in 48 CFR Parts 4, 19, 52, and 53
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
0
Accordingly, the interim rule published in the Federal Register at 73
FR 21779 on April 22, 2008, is adopted as a final rule with the
following changes:
0
1. The authority citation for 48 CFR parts 1, 4, 19, 52, and 53
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).
PART 4--ADMINSTRATIVE MATTERS
0
2. Amend section 4.606 by adding paragraph (c)(5) to read as follows:
4.606 Reporting Data.
* * * * *
(c) * * *
(5) Actions that, pursuant to other authority, will not be entered
in FPDS (e.g., reporting of the information would compromise national
security).
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
0
3. Amend section 19.704 by adding paragraphs (a)(10)(iii)(A) and
(a)(10)(iii)(B), and revising paragraphs (a)(10)(v) and (a)(10)(vi) to
read as follows:
19.704 Subcontracting plan requirements.
(a) * * *
(10) * * *
(iii) * * *
(A) The ISR shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A report
is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each reporting
period, unless otherwise directed by the contracting officer. Reports
are required when due, regardless of whether there has been any
subcontracting activity since the inception of the contract or the
previous reporting period.
(B) The SSR shall be submitted as follows: For DoD and NASA, the
report shall be submitted semi-annually for the six months ending March
31 and the twelve months ending September 30. For civilian agencies,
except NASA, it shall be submitted annually for the twelve-month period
ending September 30. Reports are due 30 days after the close of each
reporting period.
* * * * *
(v) Provide its prime contract number, its DUNS number, and the e-
mail address of the offeror's official responsible for acknowledging
receipt of or rejecting the ISRs to all first-tier subcontractors with
subcontracting plans so they can enter this information into the eSRS
when submitting their ISRs; and
(vi) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the e-mail
address of the subcontractor's official responsible for acknowledging
receipt of or rejecting the ISRs, to its subcontractors with
subcontracting plans.
* * * * *
19.705-6 [Amended]
0
4. Amend section 19.705-6 by removing from the third sentence in
paragraph (h) ``completed'' and adding ``completed, for instance, if
there are errors, omissions, or incomplete data'' in its place.
0
5. Amend section 19.708 by revising paragraph (b)(1), and removing from
paragraph (b)(2) ``Alternate I or II.'' and adding ``Alternate I, II,
or III.'' in its place.
The revised text reads as follows:
19.708 Contract clauses.
* * * * *
(b)(1) Insert the clause at 52.219-9, Small Business Subcontracting
Plan, in solicitations and contracts that offer subcontracting
possibilities, are expected to exceed $550,000 ($1,000,000 for
construction of any public facility), and are required to include the
clause at 52.219-8, Utilization of Small Business Concerns, unless the
acquisition is set aside or is to be accomplished under the 8(a)
program. When--
(i) Contracting by sealed bidding rather than by negotiation, the
contracting officer shall use the clause with its Alternate I.
(ii) Contracting by negotiation, and subcontracting plans are
required with initial proposals as provided for in 19.705-2(d), the
contracting officer shall use the clause with its Alternate II.
(iii) The contract action will not be reported in the Federal
Procurement Data System pursuant to 4.606(c)(5), the contracting
officer shall use the clause with its Alternate III.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Amend section 52.212-5 by revising the date of the clause; removing
from paragraph (b)(11)(i) ``(Apr 2008)'' and adding ``(JUL 2010)'' in
its place; and adding paragraph (b)(11)(iv) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (JUL 2010)
* * * * *
(b) * * *
(11) * * *
----(iv) Alternate III ([JUL 2010) of 52.219-9.
* * * * *
0
7. Amend section 52.219-9 by--
0
a. Revising the date of the clause, and paragraphs (d)(10)(iii),
(d)(10)(v), and (d)(10)(vi);
0
b. Adding a sentence to the end of paragraph (l) introductory text.
0
c. Removing from paragraph (l)(1) introductory text ``and shall be
submitted to the Administrative Contracting Officer (ACO) or
Contracting Officer, if no ACO is assigned'';
0
d. Removing from paragraph (l)(2)(i)(F) ``prime contracts.'' and adding
``prime contracts unless stated otherwise in the contract.'' in its
place;
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0
e. Revising the introductory text of Alternate I and II, respectively;
and
0
f. Adding Alternate III.
The revised and added text reads as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
SMALL BUSINESS SUBCONTRACTING PLAN (JUL 2010)
* * * * *
(d) * * *
(10) * * *
(iii) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l) of
this clause using the Electronic Subcontracting Reporting System (eSRS)
at http://www.esrs.gov. The reports shall provide information on
subcontract awards to small business concerns (including ANCs and
Indian tribes that are not small businesses), veteran-owned small
business concerns, service-disabled veteran-owned small business
concerns, HUBZone small business concerns, small disadvantaged business
concerns (including ANCs and Indian tribes that have not been certified
by the Small Business Administration as small disadvantaged
businesses), women-owned small business concerns, and Historically
Black Colleges and Universities and Minority Institutions. Reporting
shall be in accordance with this clause, or as provided in agency
regulations;
* * * * *
(v) Provide its prime contract number, its DUNS number, and the e-
mail address of the offeror's official responsible for acknowledging
receipt of or rejecting the ISRs, to all first-tier subcontractors with
subcontracting plans so they can enter this information into the eSRS
when submitting their ISRs; and
(vi) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the e-mail
address of the subcontractor's official responsible for acknowledging
receipt of or rejecting the ISRs, to its subcontractors with
subcontracting plans.
* * * * *
(l) * * * Only subcontracts involving performance in the United
States or its outlying areas should be included in these reports with
the exception of subcontracts under a contract awarded by the State
Department or any other agency that has statutory or regulatory
authority to require subcontracting plans for subcontracts performed
outside the United States and its outlying areas.
* * * * *
Alternate I (Oct 2001). As prescribed in 19.708(b)(1)(i),
substitute the following paragraph (c) for paragraph (c) of the basic
clause:
* * * * *
Alternate II (Oct 2001). As prescribed in 19.708(b)(1)(ii),
substitute the following paragraph (c) for paragraph (c) of the basic
clause:
* * * * *
Alternate III (JUL 2010). As prescribed in 19.708(b)(1)(iii),
substitute the following paragraphs (d)(10) and (l) for paragraphs
(d)(10) and (l) in the basic clause;
(d)(10) Assurances that the offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can determine
the extent of compliance by the offeror with the subcontracting plan;
(iii) Submit Standard Form (SF) 294 Subcontracting Report for
Individual Contract in accordance with paragraph (l) of this clause.
Submit the Summary Subcontract Report (SSR), in accordance with
paragraph (l) of this clause using the Electronic Subcontracting
Reporting System (eSRS) at http://www.esrs.gov. The reports shall
provide information on subcontract awards to small business concerns
(including ANCs and Indian tribes that are not small businesses),
veteran-owned small business concerns, service-disabled veteran-owned
small business concerns, HUBZone small business concerns, small
disadvantaged business concerns (including ANCs and Indian tribes that
have not been certified by the Small Business Administration as small
disadvantaged businesses), women-owned small business concerns, and
Historically Black Colleges and Universities and Minority Institutions.
Reporting shall be in accordance with this clause, or as provided in
agency regulations; and
(iv) Ensure that its subcontractors with subcontracting plans agree
to submit the SF 294 in accordance with paragraph (l) of this clause.
Ensure that its subcontractors with subcontracting plans agree to
submit the SSR in accordance with paragraph (l) of this clause using
the eSRS.
(l) The Contractor shall submit a SF 294. The Contractor shall
submit SSRs using the web-based eSRS at http://www.esrs.gov. Purchases
from a corporation, company, or subdivision that is an affiliate of the
prime Contractor or subcontractor are not included in these reports.
Subcontract award data reported by prime Contractors and subcontractors
shall be limited to awards made to their immediate next-tier
subcontractors. Credit cannot be taken for awards made to lower tier
subcontractors, unless the Contractor or subcontractor has been
designated to receive a small business or small disadvantaged business
credit from an ANC or Indian tribe. Only subcontracts involving
performance in the U.S. or its outlying areas should be included in
these reports with the exception of subcontracts under a contract
awarded by the State Department or any other agency that has statutory
or regulatory authority to require subcontracting plans for
subcontracts performed outside the United States and its outlying
areas.
(1) SF 294. This report is not required for commercial plans. The
report is required for each contract containing an individual
subcontract plan. For prime contractors the report shall be submitted
to the contracting officer, or as specified elsewhere in this contract.
In the case of a subcontract with a subcontracting plan, the report
shall be submitted to the entity that awarded the subcontract.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A report
is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each reporting
period, unless otherwise directed by the Contracting Officer. Reports
are required when due, regardless of whether there has been any
subcontracting activity since the inception of the contract or the
previous reporting period.
(ii) When a subcontracting plan contains separate goals for the
basic contract and each option, as prescribed by FAR 19.704(c), the
dollar goal inserted on this report shall be the sum of the base period
through the current option; for example, for a report submitted after
the second option is exercised, the dollar goal would be the sum of the
goals for the basic contract, the first option, and the second option.
(2) SSR. (i) Reports submitted under individual contract plans--
(A) This report encompasses all subcontracting under prime
contracts and subcontracts with the awarding agency, regardless of the
dollar value of the subcontracts.
(B) The report may be submitted on a corporate, company or
subdivision (e.g. plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If a prime Contractor and/or subcontractor is performing work
for more than one executive agency, a
[[Page 34266]]
separate report shall be submitted to each executive agency covering
only that agency's contracts, provided at least one of that agency's
contracts is over $550,000 (over $1,000,000 for construction of a
public facility) and contains a subcontracting plan. For DoD, a
consolidated report shall be submitted for all contracts awarded by
military departments/agencies and/or subcontracts awarded by DoD prime
Contractors. However, for construction and related maintenance and
repair, a separate report shall be submitted for each DoD component.
(D) For DoD and NASA, the report shall be submitted semi-annually
for the six months ending March 31 and the twelve months ending
September 30. For civilian agencies, except NASA, it shall be submitted
annually for the twelve-month period ending September 30. Reports are
due 30 days after the close of each reporting period.
(E) Subcontract awards that are related to work for more than one
executive agency shall be appropriately allocated.
(F) The authority to acknowledge or reject SSRs in the eSRS,
including SSRs submitted by subcontractors with subcontracting plans,
resides with the Government agency awarding the prime contracts unless
stated otherwise in the contract.
(ii) Reports submitted under a commercial plan--
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year.
(B) The report shall be submitted annually, within thirty days
after the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work
for more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency from which contracts
for commercial items were received.
(D) The authority to acknowledge or reject SSRs for commercial
plans resides with the Contracting Officer who approved the commercial
plan.
(iii) All reports submitted at the close of each fiscal year (both
individual and commercial plans) shall include a Year-End Supplementary
Report for Small Disadvantaged Businesses. The report shall include
subcontract awards, in whole dollars, to small disadvantaged business
concerns by North American Industry Classification System (NAICS)
Industry Subsector. If the data are not available when the year-end SSR
is submitted, the prime Contractor and/or subcontractor shall submit
the Year-End Supplementary Report for Small Disadvantaged Businesses
within 90 days of submitting the year-end SSR. For a commercial plan,
the Contractor may obtain from each of its subcontractors a predominant
NAICS Industry Subsector and report all awards to that subcontractor
under its predominant NAICS Industry Subsector.
PART 53--FORMS
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8. Revise section 53.219 to read as follows:
53.219 Small Business Programs.
(a) The following form may be used in reporting small disadvantaged
business contracting data: OF 312 (10/00), Small Disadvantaged Business
Participation Report. (See subpart 19.12.)
(b) The following standard form is prescribed for use in reporting
small business (including Alaska Native Corporations and Indian
tribes), veteran-owned small business, service-disabled veteran-owned
small business, HUBZone small business, small disadvantaged business
(including Alaska Native Corporations and Indian tribes) and women-
owned small business subcontracting data, as specified in part 19: SF
294, (Rev. 1/2010) Subcontracting Report for Individual Contracts. SF
294 is authorized for local reproduction.
0
9. Add section 53.301-294 to read as follows:
53.301-294 Subcontracting Report for Individual Contracts.
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[FR Doc. 2010-14180 Filed 6-15-10; 8:45 am]
BILLING CODE 6820-EP-C