[Federal Register: May 10, 2010 (Volume 75, Number 89)]
[Notices]
[Page 25844-25845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10my10-38]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Class Deviation From FAR 52.219-7, Notice of Partial Small
Business Set-Aside
AGENCY: Defense Logistics Agency, DoD.
ACTION: Notice.
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SUMMARY: This is to notify interested parties of a proposed class
deviation to the Federal Acquisition Regulation (FAR) regarding partial
small business set-asides for Defense Logistics Agency (DLA), Defense
Energy Support Center (DESC) bulk fuels solicitations and resulting
contract awards. DLA is requesting Department of Defense approval of a
class deviation to FAR 52.219-7, to revise an existing class deviation
to that clause.
DATES: Comments must be received on or before July 9, 2010.
ADDRESSES: Submit your comments concerning this Deviation to DLA, Attn:
J-71 (Kerry Pilz), 8725 John J. Kingman Rd, Fort Belvoir, VA 22060-
6221. Telephone (703) 767-1461 or E-mail at kerry.pilz@dla.mil.
FOR FURTHER INFORMATION CONTACT: Kerry Pilz, (703) 767-1461 or e-mail
at kerry.pilz@dla.mil.
SUPPLEMENTARY INFORMATION: In accordance with Federal Acquisition
Regulation (FAR) 1.404 and Defense Federal Acquisition Regulation
Supplement 201.404, DESC is requesting a class deviation from FAR
Clause 52.219-7, Notice of Partial Small Business Set-Aside. DESC
intends to use the clause in domestic bulk fuel solicitations.
Under the bulk petroleum program, DESC purchases, distributes, and
manages millions of gallons of military specification fuel products for
the Military Services. Domestic bulk fuel solicitations generally
contain partial small business set-asides pursuant to FAR subpart 19.5.
These set-asides are solicited and awarded using the current deviation
clause, DESC Clause I237.06, Notice of Partial Small Business Set-Aside
(Deviation). The current deviation was approved on June 25, 1990,
pursuant to DAR Case 90-922. The current deviation established a
methodology for partial small business set-aside evaluation and awards.
DESC proposes revisions to the current deviation clause to clarify
language in various portions of the clause, and in particular to
clarify that a small business will not be awarded a set-aside portion
at a price higher than its offer price under the non-set-aside portion.
The proposed revisions are incorporated into the clause below:
Defense Logistics Agency Defense Logistics Acquisition Directive
provision and clause.
I237.06 NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE (DEVIATION)
Required in all domestic bulk solicitations/contracts when the
solicitation contains one or more partial set-aside items. Be sure
lead-in appears above the clause. This clause is a deviation from
FAR Clause I237.
THE FOLLOWING CLAUSE APPLIES ONLY TO PARTIAL SMALL BUSINESS SET-
ASIDE LINE ITEMS THAT MAY BE CONTAINED IN THIS DOCUMENT.
I237.06 NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE (DEVIATION) (DESC)
(a) DEFINITION. Small business concern, as used in this clause,
means a concern, including its affiliates that is independently
owned and operated, not dominant in the field of operation in which
it is bidding on Government contracts, and qualified as a small
business under the size standards in this solicitation.
(b) GENERAL.
(1) A portion of certain items of this procurement, as listed in
the Schedule, has been set aside for award to eligible small
businesses. The quantities indicated for such items in the Schedule
include the set-aside portion. All offerors are urged to offer the
maximum quantities they desire and are capable of delivering. Small
business concerns interested in receiving a set-aside contract
should submit an offer in the same manner as though there were no
set-aside. Volumes offered by qualified small business concerns will
be evaluated for the non-set-aside and set-aside portions of the
procurement. Separate offers should not be submitted on the non-set-
aside and set-aside portions.
(2) The partial small business set-aside of the procurement is
based on a determination by the Contracting Officer that it is in
the interest of maintaining or mobilizing the nation's full
production capacity or in the
[[Page 25845]]
interest of national defense programs, or in the interest of
assuring that a fair portion of Government procurement is placed
with small business concerns.
(3) All of the offers received under this solicitation will
first be negotiated as to price and an evaluation will be made as
though there were no set-aside.
(4) For the purposes of set-aside evaluation, when an offer
contains increments at different prices, each increment will be
considered a separate offer. Except as provided in (d) below,
negotiations will be limited to the offered quantities not awarded
under the provision of (c)(2) below.
(c) SET-ASIDE AWARD PROCEDURE.
(1) The price for the small business set-aside portion will be
negotiated by the Contracting Officer based upon prices the
Government would otherwise pay the successful offeror for the non-
set-aside portion of the location under this solicitation, adjusted
for transportation charges and other factors. In the case of a small
business concern whose offer is determined by the evaluation process
to be low on the non-set-aside portion, awards of the set-aside
portion will be made to that small business concern without further
negotiation. Contracts for any remaining set-aside portions will be
negotiated with those eligible small business concerns that have
submitted a responsive offer on the various items for which a set-
aside has been established. In no event will a small business
concern be awarded a set-aside portion at a price higher than its
offer price under the non-set-aside portion.
(2) Negotiations for small business set-aside awards will begin
with the small business concern with the lowest evaluated price and
a quantity of offered product remaining. If the low small business
concern on the item does not offer to supply product at the set-
aside price established in accordance with (1) above, the next low
small business concern on the item will be given the same
opportunity; this process will continue with the successive low
small business concerns until all small business concerns have been
contacted.
(3) The Government reserves the right to make awards to the
otherwise low offeror for all or any portion of the set-aside
quantities, without regard to the size of the offeror, if eligible
small business concerns do not offer a quantity of product
sufficient to meet a set-aside requirement or do not offer to supply
at the set-aside prices. The total quantity that will be awarded a
small business offeror on both the unreserved and reserved portions
will not exceed the total quantity offered under this solicitation
by such small business offerors. However, if insufficient product is
offered by small business concerns to meet the quantity set aside
for small business, small business concerns with which the
Government has already commenced negotiations may be given an
opportunity to offer additional product.
(4) Where the Trade Agreements Act applies to the non-set-aside
portion, offers of eligible products will be treated as if they were
qualifying country end products.
(d) AGREEMENT. For the set-aside portion of the acquisition, a
small business concern submitting an offer in its own name agrees to
furnish, in performing the contract, only end items manufactured or
produced by small business concerns inside the United States. The
term United States includes its territories and possessions, the
Commonwealth of Puerto Rico, the Trust Territory of the Pacific
Islands, and the District of Columbia. If this procurement is
processed under simplified acquisition procedures and the total
amount of this contract does not exceed $25,000, a small business
concern may furnish the product of any domestic firm. This paragraph
does not apply in connection with construction or service contracts.
Dated: May 5, 2010.
Mitchell S. Bryman,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-10969 Filed 5-7-10; 8:45 am]
BILLING CODE 5001-06-P