Rule2021-16365
Federal Acquisition Regulation: Scope of Review by Procurement Center Representatives
Primary source
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Published
August 11, 2021
Effective
September 10, 2021
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation to implement section 1811 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 to provide procurement center representatives with the discretion to review any acquisition.
Full Text
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<title>Federal Register, Volume 86 Issue 152 (Wednesday, August 11, 2021)</title>
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[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Rules and Regulations]
[Pages 44247-44248]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16365]
[[Page 44247]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAC 2021-07; FAR Case 2020-012; Item III; Docket No. FAR-2020-0012;
Sequence No. 1]
RIN 9000-AO16
Federal Acquisition Regulation: Scope of Review by Procurement
Center Representatives
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation to implement section 1811 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 to
provide procurement center representatives with the discretion to
review any acquisition.
DATES: Effective September 10, 2021.
FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement
Analyst, at 703-605-2815, or by email at <a href="/cdn-cgi/l/email-protection#abe6cac7c2d8d8ca85c1c4c5ced8ebccd8ca85ccc4dd"><span class="__cf_email__" data-cfemail="276a464b4e545446094d484942546740544609404851">[email protected]</span></a>, for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#f3b4a0b2a19694a09690b3948092dd949c85"><span class="__cf_email__" data-cfemail="296e7a687b4c4e7a4c4a694e5a48074e465f">[email protected]</span></a>. Please cite FAC 2021-07, FAR Case
2020-012.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are amending the Federal Acquisition Regulation
(FAR) to implement section 1811 of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328, 15 U.S.C.
644(l)(9)(A)). Section 1811 allows procurement center representatives
to review any solicitation for a contract or task order without regard
as to whether the contract or order is set aside for small business
concerns, or reserved in the case of a multiple-award contract, or
whether or not the solicitation would result in a bundled or
consolidated contract or order. The Small Business Administration (SBA)
issued a final rule at 84 FR 65647, dated November 29, 2019, to
implement section 1811 of the NDAA for FY 2017. In their final rule,
SBA amended 13 CFR 125.2(b)(1)(i)(A) to allow procurement center
representatives to review any acquisition, regardless of whether it is
set aside, partially set aside, or reserved for small business or other
socioeconomic categories.
II. Discussion and Analysis
The changes to the FAR and the rationale for the changes are
summarized in the following paragraphs.
A. Contracting Officer Requirements for Review of Acquisitions
Section 19.202-1, Encouraging small business participation in
acquisitions, is amended to require that contracting officers provide
the procurement center representative a copy of any proposed
acquisition package and other reasonably obtainable information related
to the acquisition, if the procurement center representative exercises
their discretion to review any proposed acquisition. The specific
procedures are typically articulated in agreements between procuring
activities and procurement center representatives. Section 19.202-1 is
also amended to clarify the acquisitions for which the contracting
officer must provide the statement described in paragraph (e)(2). In
addition, changes are made to paragraph (d) of section 19.501, General,
to provide that SBA procurement center representatives may review any
proposed acquisition in excess of the micro-purchase threshold.
B. Duties of Procurement Center Representatives
Section 19.402, Small Business Administration procurement center
representatives, is amended to update the description of a procurement
center representative's duties to better reflect SBA's regulation at 13
CFR 125.2(b). Specifically, changes to FAR 19.402(c) are made to
provide that procurement center representatives may recommend the set-
aside or sole-source award to a small business; the breakout of
discrete components, items, and requirements for competition; and ways
to improve competition. Paragraph (c)(7) in section 19.402 is relocated
from section 19.403, Small Business Administration breakout procurement
center representatives. This paragraph describes the appeal a
procurement center representative may file if a contracting activity
does not adopt the procurement center representative's recommendation.
C. Duties of Breakout Procurement Center Representative
The text of section 19.403, Small Business Administration breakout
procurement center representatives, is removed and marked ``Reserved.''
Paragraph (c)(8) in this section is relocated to section 19.402 (see
section II.B. of this preamble). Breakout procurement center
representatives were removed from the Small Business Act (15 U.S.C.
644) by section 1621 of the NDAA for FY 2013 (Pub. L. 112-239).
Therefore, section 19.403 is no longer needed.
D. Technical Amendments
Section 19.502-8, Rejecting Small Business Administration
recommendations, has a two working-day appeals period. There is a
different appeals period for the HUBZone, Service-Disabled Veteran-
Owned Small Business, and Women-Owned Small Business Programs, of five
working days; therefore, a reference is added to FAR 19.502-8(b) for
those sections.
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is 41 U.S.C.
1707 entitled ``Publication of Proposed Regulations.'' Paragraph (a)(1)
of the statute requires that a procurement policy, regulation,
procedure or form (including an amendment or modification thereof) must
be published for public comment if it relates to the expenditure of
appropriated funds, and has either a significant effect beyond the
internal operating procedures of the agency issuing the policy,
regulation, procedure or form, or has a significant cost or
administrative impact on contractors or offerors. This final rule is
not required to be published for public comment, because it amends
requirements related to the review of proposed acquisitions by SBA's
procurement center representatives. These requirements affect only the
internal operating procedures of the Government.
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This rule amends FAR part 19, Small Business Programs. The
objective of this rule is to update requirements for contracting
officers with regard to reviews of proposed acquisitions by SBA's
procurement center representatives, to align with section 1811 of the
NDAA for FY 2017 (Pub. L. 114-328, 15 U.S.C. 644(l)(9)(A)). This rule
does not change the applicability or text of any FAR solicitation
provisions or contract clauses.
[[Page 44248]]
V. Expected Impact of the Rule
The changes in this rule will affect Government operations, but not
contractor operations.
As a result of this rule, contracting officers may have to provide
additional acquisition packages to procurement center representatives
for review prior to issuance of the solicitation. The number of
additional acquisitions to be reviewed by PCRs is unknown, as the
reviews will be conducted at the discretion of the procurement center
representatives.
The cost impact for the Government will depend on how many
additional acquisition packages contracting officers provide to
procurement center representatives for review. This rule will have no
cost impact for contractors.
VI. 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.
VII. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD, GSA, and NASA will
send the rule and the ``Submission of Federal Rules Under the
Congressional Review Act'' form to each House of the Congress and to
the Comptroller General of the United States. A major rule cannot take
effect until 60 days after it is published in the Federal Register. The
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget has determined that this is not a major rule
under 5 U.S.C. 804.
VIII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are
not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
IX. Paperwork Reduction Act
This 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. 3501-3521).
List of Subjects in 48 CFR Part 19
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 19 as set forth
below:
PART 19--SMALL BUSINESS PROGRAMS
0
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.
0
2. Amend section 19.202-1 by--
0
a. In paragraph (e)(1)(ii) removing ``; or'' and adding ``;'' in its
place;
0
b. In paragraph (e)(1)(iii) removing ``Utilization.'' and adding
``Utilization; or'' in its place;
0
c. Adding paragraph (e)(1)(iv); and
0
d. Revising paragraph (e)(2) introductory text.
The addition and revision read as follows:
19.202-1 Encouraging small business participation in acquisitions.
* * * * *
(e)(1) * * *
(iv) The acquisition will be reviewed at the PCR's discretion.
(2) For acquisitions described in paragraph (e)(1)(i) through (iii)
of this section, provide a statement explaining why the--
* * * * *
0
3. Amend section 19.402 by--
0
a. Revising paragraph (c)(1)(i);
0
b. Removing from the end of paragraph (c)(1)(ii) ``and'';
0
c. Revising paragraph (c)(1)(iii); and
0
d. Adding paragraphs (c)(1)(iv) and (c)(7).
The revisions and additions read as follows:
19.402 Small Business Administration procurement center
representatives.
* * * * *
(c) * * *
(1) * * *
(i) The set-aside or sole-source award to a small business of
selected acquisitions;
* * * * *
(iii) Breakout of discrete components, items, and requirements for
competitive acquisitions; and
(iv) Ways to improve competition.
* * * * *
(7) Appealing a contracting officer's rejection of PCR's
recommendation. Such appeal must be in writing and shall be filed and
processed in accordance with the appeal procedures set out in 19.502-8.
19.403 [Removed and Reserved]
0
4. Remove and reserve section 19.403.
0
5. Amend section 19.501 by revising paragraph (d) to read as follows:
19.501 General.
* * * * *
(d) At the request of an SBA PCR (or, if a PCR is not assigned, see
19.402(a)), the contracting officer shall make available for review at
the contracting office (to the extent of the SBA representative's
security clearance) any proposed acquisition in excess of the micro-
purchase threshold.
* * * * *
0
6. In section 19.502-8 amend paragraph (b) by revising the first
sentence to read as follows:
19.502-8 Rejecting Small Business Administration recommendations.
* * * * *
(b) The SBA PCR (or, if a PCR is not assigned, see 19.402(a)) may
appeal the contracting officer's rejection to the head of the
contracting activity within 2 working days after receiving the notice
(except see 19.1305(d), 19.1405(d), and 19.1505(g)). * * *
* * * * *
[FR Doc. 2021-16365 Filed 8-10-21; 8:45 am]
BILLING CODE 6820-EP-P
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