[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37692-37694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14616]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAC 2005-67; FAR Case 2013-010; Item VII; Docket 2013-0010, Sequence
1]
RIN 9000-AM59
Federal Acquisition Regulation; Contracting With Women-Owned
Small Business Concerns
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to remove the dollar limitation
for set-asides to economically disadvantaged women-owned small business
concerns and to women-owned small business concerns eligible under the
Women-owned Small Business Program.
DATES: Effective Date: June 21, 2013.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before August 20, 2013 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-67, FAR Case 2013-
010, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2013-010''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2013-010.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2013-010'' on your attached document.
Fax: 202-501-4067.
Mail: U.S. General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd
Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-67, FAR
Case 2013-010, 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 FAC 2005-67, FAR Case 2013-
010.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are issuing an interim rule amending the FAR, to
implement section 1697 of the National Defense Authorization Act (NDAA)
for Fiscal Year (FY) 2013, Public Law 112-239, which amended section
8(m) of the Small Business Act, (15 U.S.C. 637(m)). Section 8(m) of the
Small Business Act sets forth the Procurement Program for
[[Page 37693]]
Women-owned Small Business Concerns, which is the statutory authority
for SBA's Women-owned Small Business Federal Contract Program. Section
1697 of the NDAA for FY 2013 amended section 8(m) by removing the
dollar limitation for set-asides. The dollar limit (as increased for
inflation--see FAR 1.109) for acquisitions in the manufacturing
industries, was $6.5 million or less (including options), and in the
case of all other acquisitions, $4 million or less (including options).
Pursuant to this statutory change and in conformance with the Small
Business Administration's (SBA's) revised regulations at 13 CFR
127.503(a)(2) and 127.503(b)(2), (see SBA's interim final rule
published in the Federal Register at 78 FR 26504, on May 7, 2013), this
rule amends FAR 19.1505(b) and (c) by removing the dollar limitations
on the anticipated award price of contracts to economically
disadvantaged women-owned small business (EDWOSB) concerns or women-
owned small business (WOSB) concerns eligible under the WOSB Program.
As a result, contracting officers may set aside acquisitions for
competition restricted to EDWOSB concerns or WOSB concerns eligible
under the WOSB Program at any dollar level above the micro-purchase
threshold, provided the other requirements for a set-aside under the
WOSB Program are met.
II. Executive Orders 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 E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
III. Regulatory Flexibility Act
The change 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. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
The objective of this interim rule is to remove language in the
FAR that restricts set-asides to economically disadvantaged women-
owned small business (EDWOSB) concerns and to women-owned small
business concerns eligible under the women-owned small business
(WOSB) Program, in industries that are underrepresented or
substantially underrepresented by women-owned small business
concerns. The dollar limits (as increased for inflation--see FAR
1.109) are currently $6.5 million (including options) for
acquisitions in manufacturing industries and $4 million (including
options) for all other acquisitions. The legal basis for this
interim rule is section 1697 of the National Defense Authorization
Act for Fiscal Year 2013, Public Law 112-239, which amended the
statutory limitations at section 8(m) of the Small Business Act, (15
U.S.C. 637(m)), by permanently removing these limitations.
Analysis of the Federal Procurement Data System from April 1,
2011 (the implementation date of the WOSB Program) through January
1, 2013, reveals there are approximately 26,712 WOSB concerns,
including 131 EDWOSB concerns and 388 women-owned small business
concerns eligible under the WOSB Program, that received obligated
funds from Federal contract awards, task or delivery orders, and
modifications to existing contracts. This interim rule may have a
significant positive economic impact on EDWOSB concerns competing
for contracting opportunities in industries determined by SBA to be
underrepresented by women-owned small business concerns and may
positively affect WOSB concerns eligible under the WOSB Program
competing in industries determined by SBA to be substantially
underrepresented by women-owned small business concerns, since
removing the dollar threshold for set-asides under the WOSB Program
will provide greater access to Federal contracting opportunities.
However, this rule may have a negative effect on firms that are
women-owned but are not WOSB Program participants and small
businesses that are not owned by women (i.e., small business
concerns that are not 51 percent owned and controlled by women),
because those firms may now be excluded from competition on some
acquisitions that could not be set aside for EDWOSB concerns or WOSB
concerns eligible under the WOSB Program due to the dollar
thresholds and now will be set aside.
This interim rule does not impose new recordkeeping or reporting
requirements. The rule does not duplicate, overlap, or conflict with
any other Federal rules. There are no alternatives to the rule which
would accomplish the stated objectives of the statute.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. 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 this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-67, FAR Case
2013-010), in correspondence.
IV. Paperwork Reduction Act
The interim 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).
V. 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 in order to avoid conflicting guidance between the two
primary regulations used by the Federal acquisition community to
implement the WOSB Program, the Small Business Regulations and the FAR.
Section 1697 of the NDAA for Fiscal Year 2013 (Publ. Law 112-239)
was enacted by Congress and became effective on January 2, 2013. In
response to this statutory change, the Small Business Administration
issued an interim final rule published in the Federal Register at 78 FR
26504, on May 7, 2013, amending 13 CFR 127.503(a)(2) and 127.503(b)(2)
to remove the anticipated contract dollar thresholds for determining
when the contracting officer may set aside a requirement for
economically disadvantaged women-owned small business (EDWOSB) concerns
and/or WOSB concerns eligible under the WOSB Program. As a result, the
FAR must also be amended at 19.1505(b)(2) and 19.1505(c)(2) to remove
the anticipated award thresholds for EDWOSB concerns and WOSB concerns
eligible under the WOSB Program, in order to minimize the risk of
disseminating conflicting guidance to the Federal acquisition
community.
In addition, by issuing an interim rule that is effective upon
publication, prior to the receipt of public comment, agencies can
immediately begin taking advantage of having no dollar limitations for
set-asides to EDWOSB or WOSB concerns eligible under the
[[Page 37694]]
WOSB Program, as envisioned by section 1697.
However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA,
and NASA will consider public comments received in response to this
interim rule in the formation of the final rule.
List of Subject in 48 CFR Part 19
Government procurement.
Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 19 as set forth
below:
PART 19--SMALL BUSINESS PROGRAMS
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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 51
U.S.C. 20113.
19.1505 [Amended]
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2. Amend section 19.1505 by--
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a. Adding to the end of paragraph (b)(1) ``and'';
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b. Removing paragraph (b)(2);
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c. Redesignating paragraph (b)(3) as (b)(2);
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d. Adding to the end of paragraph (c)(1) ``and'';
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e. Removing paragraph (c)(2);
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f. Redesignating paragraph (c)(3) as (c)(2); and
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g. Removing from paragraph (g)(3) ``appeal, that there are urgent'' and
adding ``appeal, unless the head of the agency makes a written
determination that urgent'' in its place.
[FR Doc. 2013-14616 Filed 6-20-13; 8:45 am]
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