[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Proposed Rules]
[Pages 47797-47799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19628]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19 and 35
[FAR Case 2012-015; Docket 2012-0015; Sequence 1]
RIN 9000-AM33
Federal Acquisition Regulation; Small Business Set Asides for
Research and Development Contracts
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to clarify that contracting officers shall
set aside acquisitions for research and development, when there is also
a reasonable expectation, as a result of market research, that there
are small businesses capable of providing the best scientific and
technological approaches.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before October 9, 2012 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2012-015 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-015.'' Select the link ``Submit a Comment''
[[Page 47798]]
that corresponds with ``FAR Case 2012-015.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``FAR Case 2012-015'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAR Case 2012-
015, in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Mr. Karlos Morgan, Procurement
Analyst, at 202-501-2364, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2012-015.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the Federal Acquisition
Regulation (FAR) to revise paragraph (b)(2) of FAR 19.502-2, ``Total
small business set-asides,'' to clarify that contracting officers shall
set aside acquisitions for research and development (R&D) in excess of
the simplified acquisition threshold when the market research conducted
in accordance with FAR part 10 indicates there are small businesses
capable of providing the best scientific and technological approaches.
It is also proposed that FAR 35.004 be amended to include a reference
to this FAR cite, because this area of the FAR addresses the steps
Federal agencies may use to expand sources for R&D support.
This proposed rule responds to a request from the Small Business
Administration (SBA) to review the last sentence in FAR 19.502(b)(2)
which reads: ``In making R&D small business set-asides, there must also
be a reasonable expectation of obtaining from small businesses the best
scientific and technological sources consistent with the demands of the
proposed acquisition for the best mix of cost, performances, and
schedules.'' The SBA advises that this language has been interpreted as
an additional and unique condition that must be met before a
contracting officer can proceed with a small business set-aside for
research and development.
FAR 19.502-2(b) establishes the general requirements for a total
small business set-asides above the simplified acquisition threshold:
(1) That offers will be obtained from at least two responsible small
business concerns offering the products of different small business
concerns; and (2) That the award from the set-aside will be made at
fair market prices.
This rule proposes to further clarify that the basis for the
contracting officer's decision to set-aside or not to set-aside an
acquisition for R&D support above the simplified acquisition threshold
lies in the objective evidence obtained from the market research
conducted. This clarification is intended to remove the potential
barrier for small business previously noted by the SBA, as the
requirement to conduct market research in advance of a small business
set-aside is not a new or additional requirement, and applies to all
small business set-asides.
II. Discussion and Analysis
DoD, GSA, and NASA are proposing to amend FAR 19.502-2, ``Setting
aside acquisitions'' by redesignating the last sentence in paragraph
(b)(2) as a new paragraph (b)(3), to clarify that for R&D small
business set-asides, there must be a reasonable expectation that, as a
result of the market research performed, small businesses are capable
of providing the best scientific and technological approaches. The
additional statement ``consistent with the demands of the proposed
acquisition for the best mix of cost, performance, and schedules'' has
been removed.
FAR 35.004 is also amended to add a new reference at the end of
paragraph (b) to 19.502(b)(3), for guidance on R&D set-asides.
III. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
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.
IV. Regulatory Flexibility Act
The Department of Defense (DoD), the General Services
Administration (GSA), and the National Aeronautics and Space
Administration (NASA) 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 change will not have a significant effect beyond the
internal operating procedures of the Federal Government nor will it
have a significant cost or administrative impact on contractors or
offerors. Therefore, an Initial Regulatory Flexibility Analysis has not
been performed. DoD, GSA, and NASA invite comments from small business
concerns and other interested parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C 610 (FAR Case 2015-015), in
correspondence.
V. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 19 and 35
Government procurement.
Dated: August 7, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 19 and
35 as set forth below:
PART 19--SMALL BUSINESS PROGRAMS
1. The authority citation for 48 CFR parts 19 and 35 is revised to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
2. Amend section 19.502-2 by revising paragraph (b) to read as
follows:
19.502-2 Total small business set-asides.
* * * * *
(b) Before setting aside an acquisition under this paragraph, refer
to 19.203(c). The contracting officer shall set aside
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any acquisition over the simplified acquisition threshold for small
business participation when there is a reasonable expectation--
(1) That offers will be obtained from at least two responsible
small business concerns offering the products of different small
business concerns (see paragraph (c) of this section);
(2) That award will be made at fair market prices. Total small
business set-asides shall not be made unless such a reasonable
expectation exists (see 19.502-3 as to partial set-asides). Although
past acquisition history of an item or similar items is always
important, it is not the only factor to be considered in determining
whether a reasonable expectation exists; and
(3) When considering research and development small business set-
asides, as a result of the market research performed in accordance with
part 10, that there are small businesses capable of providing the best
scientific and technological approaches.
* * * * *
3. Amend section 35.004 by adding paragraph (c) to read as follows:
35.004 Publicizing requirements and expanding research and development
sources.
* * * * *
(c) See 19.502(b)(3) for information regarding set-asides of R&D
requirements.
[FR Doc. 2012-19628 Filed 8-9-12; 8:45 am]
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