[Federal Register: August 31, 2010 (Volume 75, Number 168)]
[Proposed Rules]
[Page 53269-53270]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au10-23]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 6 and 19
[FAR Case 2009-038, Docket 2010-0095; Sequence 1]
Federal Acquisition Regulation; Tribal Consultation;
Justification and Approval of Sole-Source 8(a) Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Notice of tribal consultation and outreach meetings and request
for comments.
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SUMMARY: The Federal Acquisition Regulatory Council (FAR Council) will
hold tribal consultation and outreach meetings to discuss rulemaking
associated with section 811 of the National Defense Authorization Act
(NDAA) for FY 2010, Public Law 111-84. Section 811 addresses
requirements for the justification and approval of sole-source
contracts over $20 million under the 8(a) small business development
program. Presentations made during the meetings will be taken into
consideration by the FAR Council as it develops changes to the Federal
Acquisition Regulation (FAR) to implement section 811.
DATES: The meetings will be held during the month of October in
Washington, DC, Albuquerque, NM, and Fairbanks, AK. For more detailed
information about the consultation registration procedures, dates,
location, times, and agendas, please see http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/section811.html.
FOR FURTHER INFORMATION CONTACT: For questions about registration, the
submission of comments, or for clarification of the subject matter of
the consultation and outreach, submit them to the e-mail address
identified at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/section811.html. Please
put ``Consultation Questions'' in the subject line of the e-mail.
SUPPLEMENTARY INFORMATION:
A. Additional Information
Procedures for the consultation and outreach: The FAR Council
respectfully requests that any elected or appointed representatives of
the tribal communities that are interested in attending the
consultation and outreach meeting preregister and indicate whether they
would like to make a presentation during the meeting. Registration is
on a first-come first-served basis. To pre-register, please go to
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/section811.html and send an e-mail to
the address identified on the site with your name, organization
affiliation, address, telephone number, e-mail address, and fax number,
and indicate which consultation and outreach session you are interested
in attending. Please put ``Consultation Registration'' in the subject
line of the e-mail.
Formal oral presentations: The purpose of these consultations and
outreach is to encourage meaningful dialogue with tribal officials
regarding the development of federal acquisition policy when
implementing section 811 of the NDAA 2010. In addition, participants
interested in making formal oral presentations during the meeting
should provide the following information by the preregistration
deadline stated on http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/section811.html:
Name, organization affiliation, address, telephone number, e-mail
address, and fax number. Based on the number of registrants requesting
time for presentations, the FAR Council may ask participants to limit
the length of their formal presentations so that all attendees wishing
to speak have the opportunity to be heard and there is adequate time
for discussion.
Written comments: The FAR Council welcomes written statements from
attendees making formal oral presentations, other attendees, and
members of the tribal communities who
[[Page 53270]]
are unable to attend the meeting but wish to share their views on the
development of regulations to implement section 811. Written comments
may be submitted to the e-mail address identified at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/section811.html. Please provide your name,
organization affiliation, address, telephone number, e-mail address,
and fax number. Please put ``Consultation Comments'' in the subject
line of the e-mail. Parties wishing to have their written comments
shared at the meeting should ensure comments are received by the
deadlines stated on Web site.
Meeting accommodations: The meeting is physically accessible to
persons with disabilities. For information on facilities or services
for individuals with disabilities or to request special assistance at
the meeting, contact the Special Assistance Contact via the telephone
number or e-mail address listed on http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/section811.html.
B. Background
Section 811 of the FY 2010 NDAA establishes a new requirement for
Federal agencies to justify a sole-source contract award to a business
under the Small Business Administration's 8(a) business development
program, including businesses owned by Indian Tribes and Alaska Native
Corporations, if the sole-source award is to exceed $20 million. The
8(a) program enables contract awards to be made to socially and
economically disadvantaged small business concerns using the Small
Business Administration (SBA) as the prime contractor to the requiring
agency.
Section 811 states that a sole-source justification must include
the following information: (1) A description of the needs of the agency
concerned for the matters covered by the contract, (2) a specification
of the statutory provision providing the exception from the requirement
to use competitive procedures in entering into the contract, (3) a
determination that the use of a sole-source contract is in the best
interest of the agency concerned, (4) a determination that the
anticipated cost of the contract will be fair and reasonable, and (5)
such other matters as the head of the agency concerned shall specify.
Before an award can be made, the justification must be approved by an
appropriate official, as specified in statute. Section 811 does not
require a justification and approval (J&A) if the contract award is
equal to or less than $20 million. Similar to the handling of J&As for
other sole-source awards, J&As prepared pursuant to section 811 must be
made public within 14 days after contract award is made. Finally,
section 811 requires that the FAR--the government-wide regulation
governing the Federal acquisition process--be revised to reflect its
revisions.
The FAR Council is responsible for overseeing the development and
maintenance of the FAR, including changes to implement section 811. Its
members include the Administrator for Federal Procurement Policy, who
serves as the chair of the Council and is a senior official in the
Office of Management and Budget, and senior acquisition officials from
the Department of Defense, the General Services Administration, and the
National Aeronautics and Space Administration.
The FAR Council believes the conduct of tribal consultation and
outreach in connection with section 811 will be a valuable component of
its deliberations in preparing to implement this law, which includes
contracting with Indian Tribes and Alaska Native Corporations. As
explained in E.O. 13175, Tribal consultation is a critical component of
a sound and productive Federal-Tribal relationship. The President's
Memorandum of November 5, 2009 underscores this Administration's
commitment to regular and meaningful consultation with tribal officials
in policy decisions that have tribal implications. The FAR Council
seeks tribal consultation and outreach in connection with section 811
to allow for constructive dialogue and an opportunity for the FAR
Council to hear the views of the tribal community, Tribal Leaders,
Elders and elected members of Alaska Native Villages or their appointed
representatives on how this law may affect the ability of Indian Tribes
and Alaska Native Corporations to receive Federal contracts under the
8(a) Program. Officials from the Small Business Administration will
also participate in the consultation and outreach.
Attendees who plan to make oral presentations during the meeting
are also encouraged to provide a written copy of their statements and
any supplementary material they believe is relevant and will assist the
FAR Council in its deliberations. Electronic or digitized copies are
especially welcomed. FAR Council members or other officials
representing the FAR Council may ask questions of individuals making
formal oral presentations during the meeting to clarify or further
explain their statements. The FAR Council will analyze the
presentations, both oral and written, along with any written comments
received. Following consultation and outreach and analysis of comments
from the tribal community, the FAR Council will prepare a rule for
review by the Office of Management and Budget pursuant to Executive
Order 12866, Regulatory Planning and Review. Members of the public at
large, as well as tribal officials, will have the opportunity to
provide written comments on FAR changes to implement section 811, which
will be considered by the FAR Council, before a final rule is
promulgated.
Dated: August 26, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
[FR Doc. 2010-21743 Filed 8-30-10; 8:45 am]
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