[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Proposed Rules]
[Pages 55849-55859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22944]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 12, 14, 15, 19, 22, 26, 52, and 53
[FAR Case 2009-016; Docket 2011-0090; Sequence 1]
RIN 9000-AM05
Federal Acquisition Regulation; Constitutionality of Federal
Contracting Programs for Minority-Owned and Other Small Businesses
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 address the impact of the decision in
Rothe Development Corporation vs. the DoD and the U.S. Department of
the Air Force (USAF) on small disadvantaged business concerns and
certain institutions of higher education.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addresses shown below on or before
November 8, 2011 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2009-016 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-016'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2009-016.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2009-016'' 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 2009-
016, 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 2009-
016.
SUPPLEMENTARY INFORMATION:
I. Background
In November 1998, Rothe Development Corporation (RDC) filed suit
against DoD and the USAF (Rothe), in the U.S. District Court for the
Western District of Texas. In its complaint, RDC challenged the
constitutionality of section 1207 of the National Defense Authorization
Act of 1987, Public Law 99-661 (10 U.S.C. 2323), alleging that it
violated the right to equal protection under the Due Process Clause of
the Fifth Amendment to the United States Constitution. RDC's initial
complaint against the DoD/USAF focused on the reauthorization of
section 1207 in 1992. On September 25, 2007, the U.S. District Court
for the Western District of Texas entered a judgment in favor of DoD.
However, RDC appealed the court's ruling and on November 4, 2008, the
U.S. Court of Appeals for the Federal Circuit decided in its favor
(Rothe Dev. Corp. v. DoD, 545 F.3d 1023 (Fed. Cir. November 4, 2008)).
The U.S. Court of Appeals for the Federal Circuit found 10 U.S.C. 2323
unconstitutional. A District court decision mandated by the U.S. Court
of Appeals was issued on February 27, 2009, enjoining all application
of 10 U.S.C. 2323 (Rothe Dev. Corp. v. DoD, 606 F. Supp. 2d 648 (W.D.
Tex. 2009)).
Section 1207 of the National Defense Authorization Act of 1987,
Public Law 99-661, codified at 10 U.S.C. 2323, established the DoD,
NASA, and the U.S. Coast Guard (USCG), Small Disadvantaged Business
(SDB) Participation Program. The purpose of the program was to ensure
that SDBs could fully participate in the Federal contracting process.
Section 1207 provided the authority for DoD, NASA, and USCG contracting
officers to apply a price adjustment of up to 10 percent to afford SDBs
a competitive price advantage when competing in a full and open
competition and assist in achieving a 5 percent SDB goal. Section 1207
serves as the statutory underpinning for FAR subpart 19.11, Price
Evaluation Adjustment for Small Disadvantaged Business Concerns, as
well as some of FAR subpart 19.12, Small Disadvantaged Business
Participation Program, and certain associated FAR clauses.
A. FAR Revisions
DOD, GSA, and NASA are proposing to amend the FAR to remove
coverage at FAR subpart 19.11, FAR subpart 19.12, corresponding clauses
at FAR 52.219-22, Small Disadvantaged Business Status, FAR 52.219-23,
Notice of Price Evaluation Adjustment for Small Disadvantaged Business
Concerns, FAR 52.219-24, Small Disadvantaged Business Participation
Program--Targets, FAR 52.219-25, Small Disadvantaged Business
Participation Program--Disadvantaged Status and Reporting, and FAR
52.219-26, Small Disadvantaged Business Participation Program--
Incentive Subcontracting, and to remove references to FAR subpart
19.11, 19.12, and corresponding clauses in FAR parts 1, 2, 4, 12, 14,
15, 19, 22, 26, 52, and 53.
Certain authorities in FAR subpart 19.12 and supporting clauses
addressing the award of subcontracts to SDBs that are rooted in the
Small Business Act, rather than in section 1207, were not at issue in
the Rothe decision, and therefore retain their legal status. These
include the authority to (1) provide monetary incentives to prime
contractors to encourage subcontracting opportunities to SDBs and (2)
use an evaluation factor or subfactor to evaluate the participation of
small businesses as subcontractors. Because these authorities are not
affected by the Rothe decision, the coverage in FAR subpart 19.12
addressing subcontracting (with the exception of the coverage at FAR
19.1202 on the use of factors or subfactors to evaluate SDB subcontract
participation) has been retained but moved to FAR subpart 19.7, which
already addresses subcontracting issues generally, including the use of
monetary incentives to encourage subcontracting opportunities. As a
result, this realignment consolidates coverage on subcontracting with
small business programs in one place.
With respect to FAR 19.1202, Evaluation factor or subfactor, FAR
subpart 19.7 is currently silent on its use. Nothing in this rulemaking
precludes an agency from using evaluation factors and subfactors for
subcontracting during source selections. The Small Business
Administration's
[[Page 55850]]
(SBA) regulations (13 CFR 125.3(g)) allow the application of evaluation
factors and subfactors to subcontracting with any of the small business
programs, including, but not limited to, SDBs. The Federal Acquisition
Regulatory Council will confer with SBA to evaluate the need for
guidance in the FAR on the use of evaluation factors and subfactors for
subcontracting.
B. Standard Form (SF) 294, Subcontracting Report for Individual
Contracts
DOD, GSA, and NASA are proposing to revise the SF 294,
Subcontracting Report for Individual Contracts to remove references to
DOD and the USCG collecting subcontract award data for Historically
Black Colleges and Universities (HBCUs) and Minority Instructions
(MIs). In addition, conforming changes are made to reflect that the
threshold for contractors to submit small business subcontracting plans
was increased from $550,000 to $650,000 (from $1.0 million to $1.5
million for construction).
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 13563 and 12866 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 a significant regulatory action and, therefore, was 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.
III. Regulatory Flexibility Act
This 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., because DOD, GSA, and NASA are
proposing to implement changes in the FAR necessitated by the impact of
the decision in Rothe. The court in Rothe found 10 U.S.C. 2323
unconstitutional, thus impacting some SDBs. This rule proposes to
delete FAR subpart 19.11, Price Evaluation Adjustment for Small
Disadvantaged Business Concerns, FAR subpart 19.12, Small Disadvantaged
Business Participation Program, and associated clauses and references,
and reincorporate certain provisions of FAR subpart 19.12 addressing
SDB subcontracting in FAR subpart 19.7. This proposed rule may impact
small entities because the removal of FAR subpart 19.11, Price
Evaluation Adjustment for Small Disadvantaged Business Concerns and FAR
subpart 19.12, Small Disadvantaged Business Participation Program may
have an effect on SDBs seeking awards as prime contractors.
Under this proposed revision to the FAR, Federal agencies will no
longer be authorized to apply certain procurement mechanisms (FAR
subparts 19.11 and 19.12) that had offered a benefit for SDB prime
awards. As a practical matter, however, because the price evaluation
adjustment at issue in Rothe had not been used for approximately a
decade before that decision, this change will not alter the status quo
for SDBs. In addition, the Small Business Act (15 U.S.C. 644(g)(1))
establishes a 5 percent SDB governmentwide contracting goal at the
prime and subcontract levels. Further, prime contractors may continue
to receive a benefit in solicitations that utilize factors or
subfactors during source selection for small businesses and small
disadvantaged businesses, as well as monetary incentives as part of the
incentive subcontracting program (FAR 52.219-10).
An Initial Regulatory Flexibility Analysis (IRFA) has been
prepared. The analysis is summarized as follows:
1. Description of the reasons why action by the agency is being
considered.
This proposed rule implements changes in the FAR necessitated by
the impact of the decision in Rothe Development Corporation vs. the
U.S. Department of Defense and the U.S. Department of the Air Force
(545 F. 3rd 1023 (Fed. Cir. November 4, 2008)).
2. Succinct statement of the objectives of, and legal basis for,
the proposed rule.
The Court found 10 U.S.C. 2323 unconstitutional, thus impacting
SDBs and certain institutions of higher education (i.e., HBCUs/MIs).
As a result of the Rothe decision, DOD, GSA, and NASA propose to
revise the FAR to delete FAR subpart 19.11, Price Evaluation
Adjustment for Small Disadvantaged Business Concerns, for DoD, NASA,
and USCG. FAR subpart 19.12, Small Disadvantaged Business
Participation Program, is revised to remove considerations
associated with the evaluation factors and subfactors of SDB
concerns with the expiration of section 7102 of the Federal
Acquisition Streamlining Act (FASA) and the Rothe decision. Clauses
associated with FAR subparts 19.11 and 19.12 are either deleted or
revised.
3. Description of, and where feasible, estimated of the number
of small entities to which the rule will apply.
There are approximately 24,702 SDBs currently listed in the
Central Contractor Registration.
4. Description of projected reporting, recordkeeping, and other
compliance requirements of the proposed rule, including an estimate
of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
The rule will impose no new reporting or record keeping
requirements on small entities. This proposed rule may impact small
entities because the removal of FAR subpart 19.11, Price Evaluation
Adjustment for Small Disadvantaged Business Concerns and FAR subpart
19.12, Small Disadvantaged Business Participation Program may have
an effect on SDBs seeking awards as prime contractors.
Under this proposed revision to the FAR, Federal agencies will
no longer be authorized to apply certain procurement mechanisms (FAR
subparts 19.11 and 19.12) that had offered a benefit for SDB prime
awards. As a practical matter, however, because the price evaluation
adjustment at issue in Rothe had not been used for approximately a
decade before that decision, this change will not alter the status
quo for SDBs. In addition, the Small Business Act (15 U.S.C.
644(g)(1)) establishes a 5 percent SDB government-wide contracting
goal at the prime and subcontract levels. Further, prime contractors
may continue to receive a benefit in solicitations that utilize
factors or subfactors during source selection for small businesses
and small disadvantaged businesses, as well as monetary incentives
as part of the incentive subcontracting program (FAR 52.219-10).
5. Identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap, or conflict with the
proposed rule.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
6. Description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes
and which minimize any significant economic impact of the proposed
rule on small entities.
DOD, GSA, and NASA did not identify any significant alternatives
that would accomplish the objectives of the statute of publishing
this proposed rule.
The Regulatory Secretariat will be submitting 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
[[Page 55851]]
(FAR Case 2009-016) in correspondence.
IV. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. chapter 35).
DOD, GSA, and NASA are proposing to remove FAR coverage at FAR
subpart 19.11, FAR subpart 19.12, and corresponding clauses at FAR
52.219-22, Small Disadvantaged Business Status, FAR 52.219-23, Notice
of Price Evaluation Adjustment for Small Disadvantaged Business
Concerns, FAR 52.219-24, Small Disadvantaged Business Participation
Program--Targets, FAR 52.219-25, Small Disadvantaged Business
Participation Program--Disadvantaged Status and Reporting, and FAR
52.219-26, Small Disadvantaged Business Participation Program--
Incentive Subcontracting. With these changes, the information
collection associated with FAR subpart 19.12, FAR 52.219-22, FAR
52.219-23, and FAR 52.219-25 for OMB Control number 9000-0150 will be
removed, reducing the information collection burden imposed by the
Federal Government on the public by 15,000 burden hours.
List of Subjects in 48 CFR Parts 1, 2, 4, 12, 14, 15, 19, 22, 26,
52, and 53
Government procurement.
Dated: September 1, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2,
4, 12, 14, 15, 19, 22, 26, 52, and 53 as set forth below:
1. The authority citation for 48 CFR parts 1, 2, 4, 12, 14, 15, 19,
22, 26, 52, and 53 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
2. Amend section 1.106, in the table following the introductory
text, by removing FAR segments ``19.12,'' ``52.219-22,'' ``52.219-23,''
and ``52.219-25,'' and their corresponding OMB Control Numbers ``9000-
0150.''
PART 2--DEFINITIONS OF WORDS AND TERMS
3. Amend section 2.101 in paragraph (b)(2) in the definition
``Small disadvantaged business concern'' to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Small disadvantaged business concern consistent with 13 CFR
124.1002, means an offeror, that is a small business under the size
standard applicable to the acquisition; and--
(1) Not less than 51 percent of which is unconditionally and
directly owned by one or more socially and economically disadvantaged
individuals who are citizens of the United States, the management and
daily business operations of which are controlled by one or more
socially and economically disadvantaged individuals;
(2) Where the concern is owned by one or more disadvantaged
individuals, each individual represents that their net worth does not
exceed $750,000 after taking into account the applicable exclusions set
forth at 13 CFR 124.104(c)(2); and
(3) If it represents in writing that it qualifies as a small
disadvantaged business (SDB) for any Federal subcontracting program, it
believes in good faith that it is owned and controlled by one or more
socially and economically disadvantaged individuals and meets the SDB
eligibility criteria of 13 CFR 124.1002.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
4.1202 [Amended]
4. Amend section 4.1202 by removing paragraph (k); and
redesignating paragraphs (l) through (bb) as paragraphs (k) through
(aa), respectively.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
5. Amend section 12.301 by revising paragraph (b)(2) to read as
follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(b) * * *
(2) The provision at 52.212-3, Offeror Representations and
Certifications--Commercial Items. This provision provides a single,
consolidated list of representations and certifications for the
acquisition of commercial items and is attached to the solicitation for
offerors to complete. This provision may not be tailored except in
accordance with subpart 1.4. Use the provision with its Alternate I in
solicitations issued by DoD, NASA, or the Coast Guard.
* * * * *
6. Amend section 12.303 by revising paragraph (b)(1) to read as
follows:
12.303 Contract format.
* * * * *
(b) * * *
(1) Block 10 if an incentive subcontracting clause is used (the
contracting officer shall indicate the applicable percentage);
* * * * *
PART 14--SEALED BIDDING
14.502 [Amended]
7. Amend section 14.502 by removing paragraph (b)(4); and
redesignating paragraphs (b)(5) through (b)(8) as paragraphs (b)(4)
through (b)(7), respectively.
PART 15--CONTRACTING BY NEGOTIATION
15.304 [Amended]
8. Amend section 15.304 by removing paragraph (c)(4); and
redesignating paragraphs (c)(5) and (c)(6) as paragraphs (c)(4) and
(c)(5), respectively.
9. Amend section 15.305 by revising paragraph (a)(2)(v); and
removing from paragraph (a)(5) ``15.304(c)(3)(ii) and (c)(5)'' and
adding ``15.304(c)(3)(ii) and (c)(4)'' in its place.
The revision reads as follows:
15.305 Proposal evaluation.
(a) * * *
(2) * * *
(v) The evaluation should include the past performance of offerors
in complying with subcontracting plan goals for small disadvantaged
business (SDB) concerns (see subpart 19.7).
* * * * *
10. Amend section 15.503 by--
a. Revising the introductory text of paragraph (a)(2)(i);
b. Removing paragraph (a)(2)(i)(B); and
c. Redesignating paragraphs (a)(2)(i)(C) through (a)(2)(i)(E) as
paragraphs (a)(2)(i)(B) through (a)(2)(i)(D).
The revision reads as follows:
15.503 Notifications to unsuccessful offerors.
(a) * * *
(2) * * *
(i) In addition to the notice in paragraph (a)(1) of this section,
the contracting officer shall notify each offeror in writing prior to
award and
[[Page 55852]]
upon completion of negotiations and determinations of responsibility--
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
11. Amend section 19.000 by--
a. Revising the introductory text of paragraph (a);
b. Removing paragraphs (a)(8) through (a)(10); and
c. Redesignating paragraphs (a)(11) and (a)(12) as paragraphs
(a)(9) and (a)(10), respectively.
The revision reads as follows:
19.000 Scope of part.
(a) This part implements the acquisition-related sections of the
Small Business Act (15 U.S.C. 631, et seq.), applicable sections of the
Armed Services Procurement Act (10 U.S.C. 2302, et seq.), the Federal
Property and Administrative Services Act (41 U.S.C. 252), and Executive
Order 12138, May 18, 1979. It covers--
* * * * *
19.201 [Amended]
12. Amend section 19.201 by--
a. Removing paragraph (b);
b. Redesignating paragraphs (c) through (e) as paragraphs (b)
through (d), respectively; and
c. Removing paragraph (f).
19.202-6 [Amended]
13. Amend section 19.202-6 by removing paragraph (a)(3); and
redesignating paragraphs (a)(4) through (a)(6) as paragraphs (a)(3)
through (a)(5), respectively.
14. Revise section 19.304 to read as follows:
19.304 Disadvantaged business status.
The contracting officer may accept an offeror's representation that
it is an SDB concern. The provision at 52.219-1, Small Business Program
Representations, or 52.212-3(c)(4), Offeror Representations and
Certifications--Commercial Items, is used to collect SDB data.
15. Revise section 19.305 to read as follows:
19.305 Protests and reviews of disadvantaged business status.
(a) This section applies to protests and reviews of a small
business concern's disadvantaged status as a prime contractor or
subcontractor. An SBA review of a firm's small disadvantaged business
(SDB) status differs from a formal protest at 19.703.
(1) A representation of SDB status on a Federal prime contract will
be deemed a misrepresentation of SDB status if the firm does not meet
the requirements of 13 CFR 124.1001(b).
(2) Any person or entity that misrepresents a firm's status as a
``small business concern owned and controlled by socially and
economically disadvantaged individuals'' (``SDB status'') in order to
obtain an 8(d) (15 U.S.C. 637(d)) contracting opportunity will be
subject to the penalties imposed by section 16(d) of the Small Business
Act, 15 U.S.C. 645(d), as well as any other penalty authorized by law.
(3) SBA may initiate the review of SDB status on any firm that has
represented itself to be an SDB on a subcontract to a Federal prime
contract whenever it receives credible information calling into
question the SDB status of the firm.
(b) Requests for an SBA review of SDB status may be forwarded to
the Small Business Administration, Assistant Administrator for SDBCE,
409 Third Street, SW, Washington, DC 20416.
(c) Protests of a small business concern's disadvantaged status as
a subcontractor are processed under 19.703(a)(2). Protests of a
concern's size as a prime contractor are processed under 19.302.
Protests of a concern's size as a subcontractor are processed under
19.703(b).
19.309 [Amended]
16. Amend section 19.309 by removing paragraph (b); and
redesignating paragraphs (c) and (d) as paragraphs (b) and (c),
respectively.
17. Amend section 19.703 by revising paragraph (a)(2) to read as
follows:
19.703 Eligibility requirements for participating in the program.
(a) * * *
(2) In connection with a subcontract, the contracting officer or
the SBA may protest the disadvantaged status of a proposed
subcontractor. Such protests will be processed in accordance with 13
CFR 124.1007 through 124.1014. Other interested parties may submit
information to the contracting officer or the SBA in an effort to
persuade the contracting officer or the SBA to initiate a protest. Such
protests, in order to be considered timely, must be submitted to the
SBA prior to completion of performance by the intended subcontractor.
* * * * *
19.705-1 [Amended]
18. Amend section 19.705-1 by removing the second sentence.
19.708 [Amended]
19. Amend section 19.708 in paragraphs (c)(1), (c)(2), and (c)(3)
by removing ``business, HUBZone small business, and'' and adding
``business, HUBZone small business, small disadvantaged business, and''
in its place.
Subpart 19.11--[Removed and Reserved]
20a. Remove and reserve subpart 19.11, consisting of sections
19.1101 through 19.1104.
Subpart 19.12--[Removed and Reserved]
20b. Remove and reserve subpart 19.12, consisting of sections
19.1201 through 19.1204.
21. Amend section 19.1307 by revising paragraph (d) to read as
follows:
19.1307 Price evaluation preference for HUBZone small business
concerns.
* * * * *
(d) A concern that is a HUBZone small business concern shall
receive the benefit of the HUBZone small business price evaluation
preference. The applicable price evaluation preference shall be
calculated independently against an offeror's base offer. The
individual preference shall be added to the base offer to arrive at the
total evaluated price for that offer.
* * * * *
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1006 [Amended]
22. Amend section 22.1006 by--
a. Removing from paragraph (a)(2)(i)(C) ``52.204-8(c)(2)(iii) or
(iv)'' and adding ``52.204-8(c)(2)(ii) or (iii)'' in its place;
b. Removing from paragraph (e)(2)(i) ``52.204-8(c)(2)(iii)'' and
adding ``52.204-8(c)(2)(ii)'' in its place; and
c. Removing from paragraph (e)(4)(i) ``52.204-8(c)(2)(iv)'' and
adding ``52.204-8(c)(2)(iii)'' in its place.
PART 26--OTHER SOCIOECONOMIC PROGRAMS
26.304 [Amended]
23. Amend section 26.304 by removing the last sentence.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
24. Amend section 52.204-8 by--
a. Revising the date of the provision;
b. Revising paragraph (c)(1)(xxi);
c. Removing paragraph (c)(2)(i); and
d. Redesignating paragraphs (c)(2)(ii) through (c)(2)(vii) as
(c)(2)(i) through (c)(2)(vi), respectively.
[[Page 55853]]
The revised text reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (Date)
* * * * *
(c) * * *
(1) * * *
(xxi) 52.226-2, Historically Black College or University and
Minority Institution Representation. This provision applies to
solicitations for research, studies, supplies, or services of the
type normally acquired from higher educational institutions.
* * * * *
25. Amend section 52.212-3 by--
a. Revising the date of the provision;
b. Removing paragraph (c)(10);
c. Redesignating paragraph (c)(11) as paragraph (c)(10);
d. Removing from the newly redesignated paragraph (c)(10)(ii)
``representation in paragraph (c)(11)(i)'' and adding ``representation
in paragraph (c)(10)(i)'' in its place;
e. Revising Alternate I; and
f. Removing Alternate II.
The revised text reads as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Date)
* * * * *
Alternate I (Date). As prescribed in 12.301(b)(2), add the
following paragraph (c)(11) to the basic provision:
(11) (Complete if the offeror has represented itself as
disadvantaged in paragraph (c)(4) of this provision.)
* * * * *
26. Amend section 52.212-5 by--
a. Revising the date of the clause;
b. Removing paragraphs (b)(17), (b)(18), and (b)(19); and
c. Redesignating paragraphs (b)(20) through (b)(49) as paragraphs
(b)(17) through (b)(46), respectively.
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Date)
* * * * *
27. Amend section 52.219-1 by revising the date of the provision;
and adding in paragraph (c), in alphabetical order, the definition
``Small disadvantaged business concern.''
52.219-1 Small Business Program Representations.
* * * * *
Small Business Program Representations (Date)
* * * * *
Small disadvantaged business concern means a small business
concern--
Not less than 51 percent of which is unconditionally and
directly owned by one or more socially and economically
disadvantaged individuals who are citizens of the United States, the
management and daily business operations of which are controlled by
one or more socially and economically disadvantaged individuals (as
defined at 13 CFR subpart B, 124.1002).
* * * * *
28. Amend section 52.219-2 by revising the introductory paragraph
to read as follows:
52.219-2 Equal Low Bids.
As prescribed in 19.309(b), insert the following provision:
* * * * *
29. Amend section 52.219-4 by revising the date of the clause, and
paragraph (b)(3) to read as follows:
52.219-4 Notice of Price Evaluation Preference for HUBZone Small
Business Concerns.
* * * * *
Notice of Price Evaluation Preference for HUBZone Small Business
Concerns (Date)
* * * * *
(b) * * *
(3) A concern that is a HUBZone small business concern will
receive the benefit of the HUBZone small business price evaluation
preference. The applicable price evaluation preference shall be
calculated independently against an offeror's base offer. The
individual preference amounts shall be added together to arrive at
the total evaluated price for that offer.
* * * * *
30. Amend section 52.219-8 by revising the date of the clause, and
in paragraph (c), revising the definition ``Small disadvantaged
business concern'' to read as follows:
52.219-8 Utilization of Small Business Concerns.
* * * * *
Utilization of Small Business Concerns (Date)
* * * * *
(c) * * *
Small disadvantaged business concern means a small business
concern that represents, as part of its offer that it meets the
criteria--
(1) Consistent with 13 CFR subpart B, 124.1002, and means a
small business concern--
(i) Not less than 51 percent of which is unconditionally and
directly owned by one or more socially and economically
disadvantaged individuals who are citizens of the United States, the
management and daily business operations of which are controlled by
one or more socially and economically disadvantaged individuals; and
(ii) Where the concern is owned by one or more disadvantaged
individuals, each individual represents that their net worth does
not exceed $750,000 after taking into account the applicable
exclusions set forth at 13 CFR 124.104(c)(2); or
(2) It represents in writing that it qualifies as a small
disadvantaged business (SDB) for any Federal subcontracting program,
and believes in good faith that it is owned and controlled by one or
more socially and economically disadvantaged individuals and meets
the SDB eligibility criteria of 13 CFR 124.1002.
* * * * *
31. Amend section 52.219-10 by revising the date of the clause;
and removing from paragraph (b) ``business, HUBZone small business,
and'' and adding ``business, HUBZone small business, small
disadvantaged business, and'' in its place. The revised text reads
as follows:
52.219-10 Incentive Subcontracting Program.
* * * * *
Incentive Subcontracting Program (Date)
* * * * *
52.219-22, 52.219-23, 52.219-24, 52.219-25, and 52.219-26 [Removed and
Reserved]
32. Remove and reserve sections 52.219-22, 52.219-23, 52.219-24,
52.219-25, and 52.219-26.
33. Amend section 52.219-28 by revising the introductory paragraph
to read as follows:
52.219-28 Post-Award Small Business Program Rerepresentation.
As prescribed in 19.309(c), insert the following clause:
* * * * *
34. Amend section 52.226-2 by revising the date of the provision,
and in paragraph (a) by revising the definition ``Historically black
college or university'' to read as follows:
52.226-2 Historically Black College or University and Minority
Institution Representation.
* * * * *
Historically Black College or University and Minority Institution
Representation (Date)
(a) * * *
Historically black college or university means an institution
determined by the Secretary of Education to meet the requirements of
34 CFR 608.2 and includes any nonprofit research institution that
was an
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integral part of such a college or university before November 14,
1986.
* * * * *
PART 53--FORMS
35. Revise section 53.219 to read as follows:
53.219 Small business programs.
The following standard form is prescribed for use in reporting
small business (including Alaska Native Corporations and Indian
tribes), veteran-owned small business, service-disabled veteran-owned
small business, HUBZone small business, small disadvantaged business
(including Alaska Native Corporations and Indian tribes), and women-
owned small business subcontracting data, as specified in part 19: SF
294, (Rev. (Date)) Subcontracting Report for Individual Contracts. SF
294 is authorized for local reproduction.
36. Amend section 53.301-294 by revising the form to read as
follows:
53.301-294 Subcontracting Report for Individual Contracts.
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[FR Doc. 2011-22944 Filed 9-8-11; 8:45 am]
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