[Federal Register Volume 74, Number 176 (Monday, September 14, 2009)]
[Rules and Regulations]
[Pages 46885-46887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21602]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 /
Rules and Regulations
[[Page 46885]]
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 124, 125, and 126
RIN 3245-AF74
Inflationary Adjustments to Acquisition-Related Dollar Thresholds
AGENCY: U.S. Small Business Administration.
ACTION: Interim final rule, with request for comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Small Business Administration (SBA) is amending its
regulations to implement the statutorily required inflationary
adjustment of the Agency's acquisition-related dollar thresholds and to
make SBA's regulations consistent with the inflationary adjustments
that are already codified in the Federal Acquisition Regulation (FAR).
DATES: Effective Date: This rule is effective on September 14, 2009.
Comment Date: Comments must be received on or before October 14,
2009.
ADDRESSES: You may submit comments, identified by RIN 3245-AF74 by any
of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov and
follow the instructions for submitting comments.
Mail, for paper, disk, or CD-ROM submissions: Dean Koppel,
Assistant Director for Policy and Research, 409 Third Street, SW.,
Washington, DC 20416.
Hand Delivery/Courier: Dean Koppel, Assistant Director for
Policy and Research, 409 Third Street, SW., Washington, DC 20416.
SBA will post all comments on http://www.Regulations.gov. If you
wish to submit confidential business information (CBI) as defined in
the User Notice at http://www.Regulations.gov, please submit the
information to Dean Koppel and highlight the information that you
consider to be CBI and explain why you believe this information should
be held confidential. SBA will review the information and make a final
determination of whether the information will be published or not.
FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Director for
Policy, and Research, at (202) 205-7322 or by e-mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Small Business Act provides thresholds with respect to 8(a)
Business Development (8(a)), Historically Underutilized Business Zone
(HUBZone), Service Disabled Veteran-Owned (SDVO), and other Government
Contracting Programs. For example, work offered into the 8(a) Program
shall be competed among eligible 8(a) participants if the value of the
procurement is greater than $5 million for procurements with
manufacturing North American Industry Classification System (NAICS)
codes and greater than $3 million for procurements with other than
manufacturing NAICS codes, commonly referred to as ``all other''
procurements. Section 431a of title 41 of the United States Code
authorizes the Office of Federal Procurement Policy's FAR Council to
review all statutes with dollar based acquisition-related thresholds
and adjust for inflation where appropriate. The FAR Council reviewed
all such thresholds and decided that thresholds contained within the
Small Business Act should be adjusted. The FAR final rule, published on
September 28, 2006, at 71 FR 57363, amended the following FAR
provisions and established the adjusted dollar based acquisition
thresholds for SBA's small business programs.
------------------------------------------------------------------------
Threshold
FAR Citation adjustment
------------------------------------------------------------------------
FAR 7.104(d)(2)(i)(A)................................... $7,500,000
FAR 7.104(d)(2)(i)(B)................................... 5,500,000
FAR 7.107(b)(1)......................................... 86,000,000
FAR 7.107(b)(2)......................................... 8,600,000
FAR 19.702(a)(1)........................................ 550,000
FAR 19.702(a)(2)........................................ 550,000
FAR 19.704(a)(9)........................................ 550,000
FAR 19.708(b)(1)........................................ 550,000
FAR 19.805-1(a)(2)...................................... 5,500,000
FAR 19.805-1(a)(2)...................................... 3,500,000
FAR 19.1306(a)(2)(i).................................... 5,500,000
FAR 19.1306(a)(2)(ii)................................... 3,500,000
FAR 19.1406(a)(2)(i).................................... 5,500,000
------------------------------------------------------------------------
Because these adjusted thresholds affect SBA's contracting
programs, this rule makes the necessary changes to the Agency's
regulations to ensure consistency with the FAR.
II. Section By Section Analysis
SBA is amending Sec. 124.506(a) to inform the users about the
inflationary adjustments for the 8(a) Program's competitive thresholds.
Thresholds within this section are stating the total dollar values for
determining if procurements shall be competed among 8(a) firms or
awarded as 8(a) sole-source contracts. These thresholds are
acquisition-related dollar thresholds as defined elsewhere in this
preamble and in part contribute to the acquisition community's
procurement planning for contracts awarded through the SBA's 8(a)
Program. Section 124.506(a) is further amended to correct the
identifier of a referenced example that was indirectly changed by the
re-designating of paragraphs within Sec. 124.506(a).
Section 125.2 is revising acquisition-related dollar thresholds the
Federal agencies use for determining when the procuring activities must
coordinate review of its agencies' acquisition strategies with the
agencies' respective small business specialists (SBSs), Offices of
Small Disadvantaged Business Utilization (OSDBUs), and the SBA's
procurement center representatives (PCRs).
Section 125.3 provides the statutory thresholds for the submission
of subcontracting plans by other than small business concerns awarded
contracts offering subcontracting possibilities. Only one threshold for
contracts and modifications in excess of $500,000 for procurements that
are for other than construction of public facilities, received an
inflationary adjustment under the FAR; section 125.3 reflects that
change.
SBA is adding a paragraph at Sec. 125.7 that provides an
explanation of the inflationary adjustments as applied to regulations
governing SBA's Government Contracting Assistance Programs.
The SDVO SBC Program regulations at Sec. 125.20 contain statutory
acquisition-related dollar thresholds for competing manufacturing and
``all other'' requirements, as explained elsewhere in the preamble.
Only the threshold of $5,000,000, for competing manufacturing
procurements is being revised to reflect the inflationary adjustment
made in the FAR.
[[Page 46886]]
The SBA is amending Sec. 126.601 by adding a new paragraph to
advise the users about the inflationary adjustments for the HUBZone
Program's competitive thresholds that are used to determine if
procurements are to be competed among qualified HUBZone firms or
awarded as HUBZone sole-source contracts. The amendments to Sec.
126.612 reflect the actual revised thresholds, each of which
establishes a dollar value that is utilized by the Federal procuring
agencies for determining competitive decisions for procurements that
are limited to participation by qualified HUBZone firms.
III. Justification for Publication as an Interim Final Status Rule
In general, SBA publishes a rule for public comment before issuing
a final rule in accordance with the Administrative Procedure Act (APA)
and SBA regulations. 5 U.S.C. 553 and 13 CFR 101.108. The APA provides
an exception to this standard rulemaking process where an agency finds
good cause to adopt a rule without prior public participation. 5 U.S.C.
553(b)(3)(B). The good cause requirement is satisfied when prior public
participation is impracticable, unnecessary, or contrary to the public
interest. Under such circumstances, an agency may publish an interim
final rule without soliciting public comment.
In the present case, the SBA notes that Public Law 108-375, 41
U.S.C. 431a. requires the FAR Council to take responsibility for
adjusting each acquisition-related dollar threshold provided by law and
publish a notice of the adjusted dollar thresholds in the Federal
Register. These actions have been completed and a final rule with an
immediate effective date was published in the Federal Register on
September 28, 2006, 71 FR 57363. Small business programs within the
SBA's 8(a) Business Development, Government Contracting, and HUBZone
Programs codified within Title 13, Parts 124, 125, and 126 contain
acquisition-related dollar thresholds subject to inflationary
adjustments that are currently codified in the FAR. This interim final
rule is amending SBA's regulations to acknowledge and implement the
adjustments that are codified within the FAR. The SBA is not
establishing new or differing acquisition-related dollar thresholds
with this interim final rule. Rather, SBA is merely amending its
regulations to advise the users of SBA's regulations of the
inflationary adjustments to SBA's small business programs every five
years. Immediate implementation of the interim final rule is needed to
ensure a consistency between the SBA's regulations and the FAR for the
acquisition-related dollar thresholds governing small business
contracting opportunities. Consequently, SBA believes it is unnecessary
to publish this rule as a proposed rule because it is beneficial to the
public and acquisition communities that the regulations governing the
SBA's small business programs are made consistent through implementing
this rule promptly. Comments may be offered by the public and will be
reviewed by the SBA. Accordingly, SBA finds that good cause exists to
publish this rule as an interim final rule as quickly as possible.
IV. Justification for Immediate Effective Date of Interim Final Rule
The APA requires that ``publication or service of a substantive
rule shall be made not less than 30 days before its effective date,
except * * * as otherwise provided by the agency for good cause found
and published with the rule.'' 5 U.S.C. 553(d)(3) SBA finds that good
cause exists to make this final rule effective the same day it is
published in the Federal Register.
The purpose of the APA provision is to provide interested and
affected members of the public sufficient time to adjust their behavior
before the rule takes effect. For the reasons set forth above in
Section III, ``Justification for Publication as Interim Final Status
Rule'', SBA finds that good cause exists for making this interim final
rule effective immediately, instead of observing the 30-day period
between publication and effective date. Nonetheless, the public may
provide comments to SBA by the deadline for comments. SBA will review
any comments received.
V. Compliance With Executive Orders 12866, 12988, and 13132, and the
Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory
Flexibility Act (5 U.S.C. 601-612)
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule does not constitute a significant regulatory action under E.O.
12866.
Executive Order 12988
This action meets applicable standards set forth in Sections 3(a)
and 3(b)(2) E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden. The action does not have
retroactive or preemptive effect.
Executive Order 13132
For the purpose of E.O. 13132, SBA has determined that the rule
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, this final rule has no federalism implications
warranting preparation of a federalism assessment.
Paperwork Reduction Act
SBA has determined that this rule does not impose additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act, 44 U.S.C., Chapter 35.
Regulatory Flexibility Act
Because this rule is an interim final rule, there is no requirement
for SBA to prepare an Initial Regulatory Flexibility Act analysis. The
RFA requires administrative agencies to consider the effect of their
actions on small entities, small non-profit businesses, and small local
governments. Pursuant to the RFA, when an agency issues a rule the
agency must prepare analysis that describes whether the impact of the
rule will have a significant economic impact on a substantial number of
small entities. However, the RFA requires such analysis only where
notice and comment rulemaking is required.
List of Subjects
13 CFR Part 124
Administrative practice and procedure, Government procurement,
Hawaiian Natives, Indians--business and finance, Minority business,
Reporting and recordkeeping requirements, Small businesses, Technical
assistance.
13 CFR Part 125
Government contracts, Government procurement, Reporting and
recordkeeping requirements, Small businesses, Technical assistance.
13 CFR Part 126
Administrative practice and procedure, Government procurement,
Penalties, Reporting and recordkeeping requirements Small businesses.
0
For the reasons stated in the preamble, the Small Business
Administration amends 13 CFR Parts 124, 125 and 126 as follows:
[[Page 46887]]
PART 124--8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS
STATUS DETERMINATION
0
1. The authority citation for 13 CFR Part 124 continues to read as
follows:
Authority: 15 U.S.C. 634(b)(6), 636(j) 637(a), 637(d) and Public
Law 99-661, Public Law 100-656, sec. 1207, Public Law 100-656,
Public Law 101-37, Public Law 101-574, and 42 U.S.C. 9815.
Subpart A--8(a) Business Development
Sec. 124.506 [Amended]
0
2. Amend Sec. 124.506 as follows:
0
a. In Sec. 124.506 redesignate paragraphs (a)(1) through (4) as
paragraphs (a)(2) through (5) and add new paragraph (a)(1) to read as
set forth below.
0
b. Amend newly designated paragraph (a)(2)(ii) by removing
``$5,000,000'' and adding in its place ``$5,500,000''.
0
c. Amend newly designated paragraph (a)(2)(ii) by removing
``$3,000,000'' and adding in its place ``$3,500,000''.
0
d. Amend newly designated paragraph (a)(4) by removing ``$2.7 million''
and adding in its place ``$3.4 million''.
0
e. Amend newly designated paragraph (a)(4) by removing ``$3.1 million''
and adding in its place ``$3.7 million''.
Sec. 124.506 At what dollar threshold must an 8(a) procurement be
competed among eligible Participants?
(a) * * *
(1) The Federal Acquisition Regulatory Council (FAR Council) has
the responsibility of adjusting each acquisition-related dollar
threshold on October 1, of each year that is evenly divisible by five.
Acquisition-related dollar thresholds are defined as dollar thresholds
that are specified in law as a factor in defining the scope of the
applicability of a policy, procedure, requirement, or restriction
provided in that law to the procurement of property or services by an
executive agency as determined by the FAR Council. 41 U.S.C. 431a(c).
Part 124, Subpart A, 8(a) Business Development, contains acquisition-
related dollar thresholds subject to inflationary adjustments. The FAR
Council shall publish a notice of the adjusted dollar thresholds in the
Federal Register. The adjusted dollar thresholds shall take effect on
the date of publication.
* * * * *
PART 125--GOVERNMENT CONTRACTING PROGRAMS
0
3. The authority citation for 13 CFR Part 125 continues to read as
follows:
Authority: 15 U.S.C. 632(p), (q); 634(b)(6); 637; 644 and
657(f).
0
4. Amend Sec. 125.2 as follows:
0
a. Amend paragraph (b)(2)(i)(A) by removing ``$7'' and adding in its
place ``$7.5'';
0
b. Amend paragraph (b)(2)(i)(B) by removing ``$5'' and adding in its
place ``$5.5'';
0
c. Amend paragraph (d)(5)(i)(A) by removing ``$75'' and adding in its
place ``$86'';
0
d. Revise paragraph (d)(5)(i)(B) to read as follows:
Sec. 125.2 Prime contracting assistance.
* * * * *
(d) * * *
(5) * * *
(i) * * *
(B) Benefits equivalent to 5 percent of the contract or order value
(including options) or $8.6 million, whichever is greater, where the
contract or order value exceeds $86 million.
* * * * *
Sec. 125.3 [Amended]
0
5. Amend Sec. 125.3(a) as follows:
0
a. Amend paragraph (a) by removing ``$500,000'' and adding in its place
``$550,000'';
0
b. Amend paragraph (c)(1) by removing ``$500,000'' and adding in its
place ``$550,000''.
0
6. Add Sec. 125.7 to read as follows:
Sec. 125.7 Acquisition-related dollar thresholds.
The Federal Acquisition Regulatory Council (FAR Council) has the
responsibility of adjusting each acquisition-related dollar threshold
on October 1, of each year that is evenly divisible by five.
Acquisition-related dollar thresholds are defined as dollar thresholds
that are specified in law as a factor in defining the scope of the
applicability of a policy, procedure, requirement, or restriction
provided in that law to the procurement of property or services by an
executive agency as determined by the FAR Council. 41 U.S.C. 431a(c).
Part 125, Government Contracting Programs, contains acquisition-related
dollar thresholds subject to inflationary adjustments. The FAR Council
shall publish a notice of the adjusted dollar thresholds in the Federal
Register. The adjusted dollar thresholds shall take effect on the date
of publication.
Subpart C--Contracting With SDVO SBCs
Sec. 125.20 [Amended]
0
7. Amend paragraph (b)(1) of Sec. 125.20 by removing ``$5,000,000''
and adding in its place ``$5,500,000''.
PART 126--HUBZONE PROGRAM
0
8. The authority citation for 13 CFR Part 126 continues to read as
follows:
Authority: 15 U.S.C. 632(a), 632(j), 632(p) and 657a.
Subpart F--Contractual Assistance
0
9. Amend Sec. 126.601 to redesignate paragraphs (a) through (e) as
paragraphs (b) through (f) and add new paragraph (a) to read as
follows:
Sec. 126.601 What additional requirements must a qualified HUBZone
SBC meet to bid on a contract?
(a) The Federal Acquisition Regulatory Council (FAR Council) has
the responsibility of adjusting each acquisition-related dollar
threshold on October 1 of each year that is evenly divisible by five.
Acquisition-related dollar thresholds are defined as dollar thresholds
that are specified in law as a factor in defining the scope of the
applicability of a policy, procedure, requirement, or restriction
provided in that law to the procurement of property or services by an
executive agency as determined by the FAR Council. 41 U.S.C. 431a(c).
Part 126, Subpart F, Contract Assistance, contains acquisition-related
dollar thresholds subject to inflationary adjustments. The FAR Council
shall publish a notice of the adjusted dollar thresholds in the Federal
Register. The adjusted dollar thresholds shall take effect on the date
of publication.
* * * * *
Sec. 126.612 [Amended]
0
10. Amend Sec. 126.612 as follows:
0
A. Amend paragraph (b)(1) by removing ``$5,000,000'' and adding in its
place ``$5,500,000''.
0
B. Amend paragraph (b)(2) by removing ``$3,000,000'' and adding in its
place ``$3,500,000''.
Dated: August 25, 2009.
Karen G. Mills,
Administrator.
[FR Doc. E9-21602 Filed 9-11-09; 8:45 am]
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