Rule2022-20340
Federal Acquisition Regulation: Policy on Joint Ventures
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 23, 2022
Effective
October 28, 2022
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 (FAR) to implement statutory and regulatory changes regarding joint ventures made by the Small Business Administration (SBA) in its final rule published in the Federal Register on July 25, 2016, and to clarify that 8(a) joint ventures are not certified into the 8(a) program. Additionally, the rule implements SBA's statutory and regulatory changes that eliminated SBA approval of joint venture agreements for competitive 8(a) awards.
Full Text
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[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Rules and Regulations]
[Pages 58219-58227]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20340]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 9, 15, 19, and 52
[FAC 2022-08; FAR Case 2017-019; Item I; Docket No. FAR-2017-019,
Sequence No. 1]
RIN 9000-AN59
Federal Acquisition Regulation: Policy on Joint Ventures
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 (FAR) to implement statutory and
regulatory changes regarding joint ventures made by the Small Business
Administration (SBA) in its final rule published in the Federal
Register on July 25, 2016, and to clarify that 8(a) joint ventures are
not certified into the 8(a) program. Additionally, the rule implements
SBA's statutory and regulatory changes that eliminated SBA approval of
joint venture agreements for competitive 8(a) awards.
DATES: Effective October 28, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement
Analyst, at 571-882-4687 or by email at <a href="/cdn-cgi/l/email-protection#541935383d2727357a1e3b3a3127143327357a333b22"><span class="__cf_email__" data-cfemail="6a270b060319190b442005040f192a0d190b440d051c">[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#c582968497a0a296a0a685a2b6a4eba2aab3"><span class="__cf_email__" data-cfemail="a8effbe9facdcffbcdcbe8cfdbc986cfc7de">[email protected]</span></a>. Please cite FAC 2022-08, FAR Case
2017-019.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 85 FR 34561 on June 5, 2020, to revise the FAR to implement
statutory and regulatory changes made by the SBA regarding joint
ventures. These changes allow a joint venture comprised of a
prot[eacute]g[eacute] and its mentor to qualify as a small business or
under a socioeconomic program (e.g., 8(a)) for which the
prot[eacute]g[eacute] qualifies. These changes also provide updated
requirements for other joint ventures to qualify as small businesses or
to qualify under a socioeconomic program.
Section 1347 of the Small Business Jobs Act of 2010 (Pub. L. 111-
240) and section 1641 of the National Defense Authorization Act (NDAA)
for Fiscal Year (FY) 2013 (Pub. L. 112-239; 15 U.S.C. 657r) authorized
the SBA Administrator to establish mentor-prot[eacute]g[eacute]
programs for small business concerns, service-disabled veteran owned
small business (SDVOSB) concerns, women-owned small business concerns
in the Women-Owned Small Business (WOSB) Program, and HUBZone small
business concerns modeled after the mentor-prot[eacute]g[eacute]
program under section 8(a) of the Small Business Act (15 U.S.C.
637(a)). On July 25, 2016, SBA issued a final rule (81 FR 48558) that
implemented the mentor-prot[eacute]g[eacute] programs at 13 CFR 125.9.
SBA's final rule allows a joint venture comprised of a
prot[eacute]g[eacute] and its mentor to seek any type of small business
contract, including a contract under a socioeconomic program, for which
the prot[eacute]g[eacute] qualifies.
Additionally, this rule implements SBA's final rule published on
October 16, 2020, at 85 FR 66146, which implemented statutory and
regulatory changes that eliminated SBA approval of joint venture
agreements for competitive 8(a) awards.
For further details see Section IV of this preamble, and see
Section II of the proposed rule.
Seven respondents submitted public comments in response to the
proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule; however, no changes were made as a
result of the public comments received. A discussion of the comments
received, and the changes made to the rule as a result of SBA's final
rule (85 FR 66146) published October 16, 2020, are provided as follows:
A. Summary of Significant Changes From the Proposed Rule
This final rule makes changes to paragraph (a) at FAR 19.703,
Eligibility requirements for participating in the program, to add
HUBZone small business to paragraphs (2)(i) and (ii). The proposed
language at FAR 19.805-2(d)(2) is revised to clarify that SBA does not
approve joint ventures for competitive awards, and the proposed
language regarding SBA approval of joint ventures at 19.805-2(d)(2) and
(e) is removed. Conforming changes are made to 52.219-18. These changes
are required to resolve conflicts between the changes in the proposed
rule and SBA's
[[Page 58220]]
final rule at 85 FR 66146, published October 16, 2020. In SBA's final
rule, SBA specified that it no longer approves joint venture agreements
for competitive 8(a) awards. As a result, changes are made to the text
in this final rule.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Three respondents expressed support for the rule.
Response: The Councils acknowledge the respondents' support for the
rule.
2. Outside the Scope of This Rule
Comment: One respondent recommended adding the verbiage ``need only
be approved by the SBA prior to the contract award'' to the pre-award
timeline.
Response: This final rule amends the FAR to implement statutory and
regulatory changes regarding joint ventures made by the SBA. Editing or
revising the pre-award timeline is outside the scope of this rule.
Comment: One respondent stated that there is no cost effective
mechanism under the General Services Administration Federal Supply
Schedule (FSS) program (referenced by the respondent as the Multiple
Award Schedule) to track ``the requirement that certain small business
or socioeconomic parties to a joint venture perform 40 percent of the
work performed by the joint venture and that the work performed must be
more than administrative functions.''
Response: The purpose of this rule is to implement SBA's final rule
issued on July 25, 2016, at 81 FR 48558, which established the
requirement that certain small business parties to a joint venture
perform 40 percent of all work done by the joint venture and that work
performed is more than merely performing administrative functions. GSA
uses Industrial Operations Analysts to ensure contractors are complying
with terms and conditions of Multiple Award Schedule contracts.
3. Negative Impacts of the Rule
Comment: Two respondents expressed concern regarding the potential
negative impacts of the rule. One respondent believes that the new rule
will undermine small businesses. Under the proposed rule, a large
business affiliated under a joint venture with a small business can
collectively utilize a combined past performance, making the small
business a ``front'' for the large business. The respondent believes
this rule should be retired and not entered into the FAR. Another
respondent stated that the rule places the joint venture in an unfair
advantage over other small businesses when considering past performance
as an evaluation factor for source selection. The respondent further
stated that the joint venture should receive a neutral rating if it has
no past performance.
Response: This rule is expected to have an overall positive impact
on small businesses by creating new opportunities under the mentor-
prot[eacute]g[eacute] program. All mentors and prot[eacute]g[eacute]s
are subject to the requirements and limitations of the mentor-
prot[eacute]g[eacute] program and, in accordance with 13 CFR
121.103(h)(1)(ii), only mentor-prot[eacute]g[eacute] joint ventures are
eligible for set-aside opportunities, including those where a large
business is a mentor. This final rule requires the small business
prot[eacute]g[eacute] or 8(a) participant to perform at least 40
percent of the work done by the joint venture in accordance with 13 CFR
125.8. This rule recognizes that joint ventures perform work through
their members, not as independent entities. Furthermore, this rule
requires contracting officers to consider the past performance of each
party to the joint venture if the joint venture does not demonstrate
past performance.
4. Clarification Needed
a. Clarify SBA Requirements for Evaluating a Mentor-
Prot[eacute]g[eacute] Joint Venture's Past Performance
Comment: One respondent requested that this case address
solicitation language indicating that the managing member must provide
relevant past performance information. The respondent believes
requesting past performance from a joint venture managing partner does
not allow prot[eacute]g[eacute]s to gain experience using their
mentor's past performance.
Response: This rule implements SBA's final rule, 81 FR 48558, which
requires the contracting officer to consider the past performance of
the prot[eacute]g[eacute] when a joint venture under the mentor-
prot[eacute]g[eacute] program does not have past performance. This
change is made in subpart 9.1, Responsible Prospective Contractors, and
in subpart 15.3, Source Selection.
b. Clarify Definition of Small Business Concern/Size Status
Determination
Comment: One respondent stated that the amended definition of small
business concern does not directly specify whether the contracting
officer or SBA is authorized to make the size status determination of a
concern. The respondent provided the following suggested language to
provide clarity, ``Contractors shall self-certify size status.
Questions of a contractor's size status shall be determined by the
Small Business Administration.''
Response: FAR subpart 19.3, Determination of Small Business Size
and Status for Small Business Programs, specifies that SBA makes a size
status determination. Therefore, it is not necessary to modify the
definition of small business concern.
c. Clarify Joint Venture Applicability Under the GSA Federal Supply
Schedules
Comment: One respondent requested clarification of the
applicability of joint ventures to the GSA FSS Program. The respondent
believes that the limited duration of a joint venture creates a
conflict for its use in the FSS program. According to the respondent,
under the FSS program contracts may be awarded for up to 20 years, in
5-year increments, and joint ventures are set up to bid on a specific
job and may last up to six years, including one extension.
Response: This rule implements SBA's final rule at 85 FR 66146,
published on October 16, 2020, which provides further clarification
regarding the requirements for joint venture formation and duration.
SBA's regulations do not prohibit a small business joint venture from
performing the full length of their FSS contract and do not include a
maximum time limitation on a joint venture.
d. Clarify Supplementary Information in Background Section
Comment: One respondent suggested that the adjective ``improper''
be replaced with ``unintended'' in the sentence that appeared in the
last paragraph of the Background section under the Supplementary
Information in the Federal Register Notice for the proposed rule:
``This rule proposes clarifications to prevent the improper elimination
of 8(a) joint venture proposals in the future.''
Response: As noted in the Federal Register notice for the proposed
rule, the clarification that 8(a) joint venture agreements need only be
approved by the SBA prior to contract award is necessary because the
Government Accountability Office (GAO) sustained a protest (BGI-Fiore
JV, LLC, B-409520, May 29, 2014) in which an agency rejected an 8(a)
joint venture's proposal on the basis that the 8(a) joint venture had
not been certified by the SBA prior to submission of proposals. As
stated in GAO's decision, GAO affirmed the protestor's argument that
the agency improperly rejected its proposal. The use of the adjective
``improper'' in the Federal Register notice for the proposed
[[Page 58221]]
rule is derived directly from the text of the GAO decision. Further,
the adjective suggested by the respondent, ``unintended'', does not
have the same meaning as ``improper'' and is not an appropriate
substitution in this context. Finally, the suggested revision has no
effect on the text of the rule; therefore, the final rule is unchanged.
e. Clarify SBA Joint Venture Review Timeline
Comment: One respondent asked to clarify the amount of time the SBA
Associate Administrator for Business Development has to review the
joint venture agreement.
Response: The final rule makes changes to the proposed rule FAR
text at 19.805-2 to remove the proposed paragraph (e), which referred
to the SBA Associate Administrator for Business Development review of
the joint venture agreement. SBA's final rule at 85 FR 66146 published
on October 16, 2020, specified that SBA no longer approves joint
venture agreements for competitive 8(a) awards. As a result, changes
are made to the text in this final rule.
Comment: One respondent was concerned about ``certification of the
joint venture as an 8(a)'' participant and how to properly address this
situation given the workload of the SBA Business Opportunity
Specialist. The respondent stated that the two proposals his joint
venture proposed required a certification letter, which they did not
have due to the joint venture not being approved. The respondent
provided that his SBA office and Business Opportunity Specialist will
not review any joint ventures unless a contracting officer or agency is
willing to make an award, which is well after the proposal process is
completed. To address this situation, the respondent recommended that
the SBA conduct preliminary reviews prior to the submission of a
contract effort and possibly when the joint venture is formed (approve
the joint venture agreement and/or certify the joint venture is small)
then conduct a full review at contract award. The respondent believes
this approach will reduce the risk to the members of the joint venture
of having to go through the proposal process only to be disqualified by
the SBA.
Response: The Councils acknowledge the respondents concern with
certification of the joint venture as an 8(a) participant and the
differing interpretations of FAR clause 52.219-18, Notification of
Competition Limited to Eligible 8(a) Concerns. Some have interpreted
this clause to mean that 8(a) joint ventures that submitted an offer
for an 8(a) contract needed to be ``certified'' by the SBA and the
joint venture agreement needed to be approved by the SBA by ``the time
of submission of offer.'' This interpretation of the FAR clause is
incorrect. This final rule amends the FAR to clarify that 8(a) joint
ventures are not certified into the 8(a) program, and that 8(a) joint
venture agreements need only be approved by the SBA prior to the award
of an 8(a) sole source contract to prevent the improper elimination of
8(a) joint venture proposals in the future.
f. Clarify Size Status for Mentor-Prot[eacute]g[eacute] Joint Ventures
Comment: One respondent asked to clarify if a joint venture between
a prime contractor and prot[eacute]g[eacute] in a socioeconomic program
is considered a small business concern within that socioeconomic
program. The respondent also asked to clarify if a joint venture
between a mentor and a prot[eacute]g[eacute] (other than small business
mentor and small business prot[eacute]g[eacute]) is a ``small business
joint venture.''
Response: The SBA regulations at 13 CFR 121.103(h) and 125.8(a) and
(b) specify the requirements for joint ventures to qualify as a small
business concern. The final rule amends FAR 19.3, Determination of
Small Business Status for Small Business Programs, to address how a
joint venture may qualify for an award as a small business concern
under the socioeconomic programs. A joint venture may qualify as a
small business concern if each participant in the joint venture
qualifies as small under the size standard for the solicitation, or the
prot[eacute]g[eacute] is small under the size standard for the
solicitation in a joint venture comprised of a mentor and
prot[eacute]g[eacute] with an approved agreement under a SBA mentor
prot[eacute]g[eacute] program. A joint venture may qualify under
socioeconomic programs when the joint venture qualifies as a small
business joint venture and one of the parties to the joint venture
qualifies under one or more of the socioeconomic programs. Therefore,
an offer submitted by the joint venture made up of a mentor and
prot[eacute]g[eacute] will be considered small. The language in the
final rule is consistent with SBA's regulations.
g. Clarify 8(a) Certification Requirements for a Small Business Joint
Venture Party
Comment: Two respondents requested clarification regarding section
8(a) certification requirements for small business joint ventures prior
to proposal submission. Additionally, one respondent requested that the
specific requirements be provided. The respondent also stated that
since SBA does not certify joint ventures into the 8(a) program, once a
firm outgrows its small business status for the size standard for its
primary NAICS code, it should no longer be eligible for contracting
benefits from its mentor-prot[eacute]g[eacute] relationship.
Response: In accordance with 13 CFR 124.513(e)(1), for 8(a) sole-
source awards, SBA approves the joint venture agreement prior to award.
SBA's final rule at 85 FR 66146 published on October 16, 2020, amended
13 CFR 124.513(e)(1) to specify that SBA will not approve joint
ventures in connection with competitive 8(a) awards (but see 13 CFR
124.501(g) for SBA's determination of participant eligibility). As a
result, changes are made to the text in this final rule at FAR 19.805-
2(d).
h. Clarify the Method Used To Determine the Percentage of Work
Performed in the Rule
Comment: One respondent asked to clarify how the Councils
determined the requirement that certain small business parties to the
joint venture must perform 40% of non-administrative work performed by
the joint venture.
Response: This case implements SBA's final rule published on July
25, 2016 at 81 FR 48558. SBA's final rule established the requirement
that certain small business parties to the joint venture perform 40% of
all work done by the joint venture, and that work performed is more
than merely administrative work.
C. Other Changes
Changes have been made to FAR 19.1503(f)(2) to clarify at least one
party to the joint venture is an EDWOSB for an EDWOSB joint venture, or
at least one party to the joint venture is a WOSB for a WOSB joint
venture. Additionally, conforming changes have been made to FAR clauses
52.219-3, Notice of HUBZone Set-aside or Sole-Source Award and 52.219-
4, Notice of Price Evaluation Preference for HUBZone Small Business
Concerns, and paragraph numbers for FAR clauses 52.219-27, Notice of
Service-Disabled Veteran-Owned Small Business Set-Aside, 52.219-29,
Notice of Set-Aside for, or Sole-Source Award to, Economically
Disadvantaged Women-Owned Small Business Concerns, and 52.219-30,
Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small
Business Concerns Eligible Under the Women-Owned Small Business
Program, were revised due to baseline changes.
[[Page 58222]]
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items) or for Commercial Services
This rule amends the provisions and clauses at FAR 52.212-3,
52.212-5, 52.213-4, 52.219-1, 52.219-3, 52.219-4, 52.219-8, 52.219-9,
52.219-14, 52.219-18, 52.219-27, 52.219-28, 52.219-29, 52.219-30, and
52.244-6. However, this rule does not change the application to
solicitations and contracts at or below the SAT or for commercial
products (including COTS items) or for commercial services. The
provisions and clauses continue to apply to acquisitions for commercial
products (including COTS items), to acquisitions for commercial
services, and acquisitions at or below the SAT.
A. Applicability to Contracts at or Below the SAT
41 U.S.C. 1905 governs the applicability of laws to acquisitions at
or below the SAT. Section 1905 generally limits the applicability of
new laws when agencies are making acquisitions at or below the SAT, but
provides that such acquisitions will not be exempt from a provision of
law under certain circumstances, including when the Federal Acquisition
Regulatory Council (FAR Council) makes a written determination and
finding that it would not be in the best interest of the Federal
Government to exempt contracts and subcontracts in amounts not greater
than the SAT from the provision of law.
The FAR Council has made a determination to apply this statute to
acquisitions at or below the SAT. Application of section 1641 to SAT
procurements will further the Administration's efforts to advance
equity in procurement, consistent with Executive Order 13985, Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government, and promote ``maximum practicable opportunities''
for small businesses, consistent with the longstanding policy expressed
in FAR 19.201. Although acquisitions under the SAT are set aside for
small businesses by law, some awards are made to other than small
businesses because small businesses are not able to meet the
performance requirements. Section 1641 advances the interests of small
business concerns by allowing for more joint ventures that include a
small business to qualify as a small business or under a socioeconomic
program. This access allows such small businesses to perform work under
SAT set-asides as part of a joint venture that they cannot perform as
stand-alone entities. Exclusion of a large segment of Federal
contracting, such as acquisitions under the SAT, will limit the full
implementation of these objectives.
B. Applicability to Contracts for the Acquisition of Commercial
Products (Including Commercially Available Off-the-Shelf Items) and for
Commercial Services
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial products or commercial services, and is
intended to limit the applicability of laws to those contracts. Section
1906 provides that if the FAR Council makes a written determination
that it is not in the best interest of the Federal Government to exempt
contracts and subcontracts for commercial products or commercial
services, the provision of law will apply to them.
41 U.S.C. 1907 states that acquisitions of COTS items will be
exempt from a provision of law unless certain circumstances apply,
including if the Administrator for Federal Procurement Policy makes a
written determination and finding that it would not be in the best
interest of the Federal Government to exempt contracts for the
procurement of COTS items from the provision of law.
The FAR Council has made a determination to apply this statute to
acquisitions for commercial products or commercial services. The
Administrator for Federal Procurement Policy has made a determination
to apply this statute to acquisitions for COTS items. Application of
section 1641 to acquisitions of commercial products and commercial
services, including COTS items, would further the Administration's
efforts to advance equity in procurement, consistent with Executive
Order 13985, Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government, and promote ``maximum
practicable opportunities'' for small businesses, consistent with the
longstanding policy expressed in FAR 19.201. Section 1641 advances the
interests of small business concerns by allowing for more joint
ventures that include a small business to qualify as a small business
or under a socioeconomic program. This access allows such small
businesses to perform work under set-aside procurements of commercial
products and services, including COTS items, as part of a joint venture
that they cannot perform as stand-alone entities. Exclusion of a large
segment of Federal contracting, such as acquisitions of commercial
products and commercial services, including COTS items, will limit the
full implementation of these objectives.
IV. Expected Impact of the Rule
This final rule will allow joint ventures to qualify as small if
all parties to the joint venture qualify as small under the size
standard associated with the NAICS code for the solicitation, or if the
joint venture is comprised of a mentor and prot[eacute]g[eacute] in the
SBA Mentor-Prot[eacute]g[eacute] Program. Additionally, this rule
allows a joint venture to qualify for one of the socioeconomic programs
if the joint venture qualifies as a small business joint venture and
one of the parties to the joint venture meets the associated
requirements of the socioeconomic program. The joint venture will
identify its size and socioeconomic status in accordance with FAR
52.212-3, Offeror Representations and Certifications--Commercial
Products and Commercial Services, and 52.219-1, Small Business Program
Representations.
This rule requires agencies to consider the past performance of
each party to a joint venture if the joint venture is not able to
demonstrate past performance for an offer for award. Currently,
agencies are not required to review the past performance of each party
to a joint venture; therefore, this rule is expected to help joint
ventures to have qualifying past performance for award when a joint
venture does not have qualifying past performance. This additional
requirement is beneficial to joint ventures that are in the initial
stages of their agreement and do not have past performance experience.
This rule revises the FAR to align 8(a) joint venture requirements
with SBA's regulations, which is expected to decrease the number of
protests. This rule clarifies that SBA does not approve joint ventures
for competitive 8(a) awards. In addition, this rule revises the FAR to
include SBA's requirement that small business parties to a joint
venture must perform 40% of the work done by the joint venture and that
the work performed must be more than merely administrative.
V. 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
[[Page 58223]]
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.
VI. 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. 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.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
DoD, GSA, and NASA are issuing a final rule amending the Federal
Acquisition Regulation (FAR) to implement section 1347 of the Small
Business Jobs Act of 2010 (Pub. L. 111-240) and section 1641 of the
National Defense Authorization Act for Fiscal Year 2013 (Pub. L.
112-239; 15 U.S.C. 657r) regarding joint ventures as implemented by
the Small Business Administration (SBA) in its final rule at 81 FR
48558, published on July 25, 2016. The rule also implements SBA's
final rule published on October 16, 2020, at 85 FR 66146. The
statutory and regulatory changes establish the mentor-
prot[eacute]g[eacute] program, clarify that 8(a) joint ventures are
not certified into the 8(a) program, and specify that SBA no longer
approves joint venture agreements for competitive 8(a) awards.
There were no significant issues raised by the public comments
in response to the initial regulatory flexibility analysis.
The final rule 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. 601-612. This rule will impact
small business joint ventures and small business entities in a SBA
mentor-prot[eacute]g[eacute] program. Based on joint venture data in
the System for Award Management, the estimated number of small
business joint ventures is 3,347. Assuming that each joint venture
includes 2 small businesses, the number of small entities impacted
is 6,694. According to SBA's final rule, there are an estimated
2,000 pairs of mentors and prot[eacute]g[eacute]s that may be
impacted. Therefore, the estimated number of total small entities to
which the rule applies is 8,694.
This final rule does not include any recordkeeping or other
compliance requirements for small businesses.
Joint ventures will be required to represent themselves as small
businesses in accordance with the updated representation provisions
at FAR 52.212-3 or 52.219-1. Representation is currently required
for all small entities doing business with the Government; however,
representation is not a new requirement. The number of options for
the entities to select from has merely increased to include joint
venture options. Therefore, the potential impact is de minimis.
The final rule may have a positive economic impact on small
entities. The updated SBA regulations allow for more joint ventures
that include a small business to qualify as a small business or
under a socioeconomic program; and therefore, more small businesses
can qualify for set-aside procurements.
There are no known significant alternative approaches to the
final rule.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
SBA.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies to the
information collection requirements in the provision at FAR 52.212-3,
Offeror Representations and Certifications--Commercial Products and
Commercial Services; however, these changes to the FAR do not impose
additional information collection requirements to the paperwork burden
previously approved under OMB Control Numbers 9000-0136 and 9000-0007.
List of Subjects in 48 CFR Parts 2, 9, 15, 19, and 52
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 parts 2, 9, 15, 19, and
52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 9, 15, 19, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101, in paragraph (b)(2), by revising paragraph (1)
of the definition of ``Small business concern'' to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Small business concern--
(1) Means a concern, including its affiliates, that is
independently owned and operated, not dominant in its field of
operation, and qualified as a small business under the criteria and
size standards in 13 CFR part 121 (see 19.102).
* * * * *
PART 9--CONTRACTOR QUALIFICATIONS
0
3. Amend section 9.104-3 by redesignating paragraph (c) as paragraph
(c)(1) and adding paragraph (c)(2) to read as follows:
9.104-3 Application of standards.
* * * * *
(c)(1) * * *
(2) Joint ventures. For a prospective contractor that is a joint
venture, the contracting officer shall consider the past performance of
the joint venture. If the joint venture does not demonstrate past
performance for award, the contracting officer shall consider the past
performance of each party to the joint venture.
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
0
4. Amend section 15.305 by adding paragraph (a)(2)(vi) to read as
follows:
15.305 Proposal evaluation.
(a) * * *
(2) * * *
(vi) For offerors that are joint ventures, the evaluation shall
take into account past performance of the joint venture. If the joint
venture does not demonstrate past performance for award, the
contracting officer shall consider the past performance of each party
to the joint venture.
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
0
5. Amend section 19.301-1 by revising paragraph (a) to read as follows:
19.301-1 Representation by the offeror.
(a)(1) To be eligible for award as a small business concern
identified in 19.000(a)(3), an offeror is required to represent in good
faith--
(i)(A) That it meets the small business size standard corresponding
to the North American Industry Classification System (NAICS) code
identified in the solicitation; or
(B) For a multiple-award contract where there is more than one
NAICS
[[Page 58224]]
code assigned, that it meets the small business size standard for each
distinct portion or category (e.g., line item numbers, Special Item
Numbers (SINs), sectors, functional areas, or the equivalent) for which
it submits an offer. If the small business concern submits an offer for
the entire multiple-award contract, it must meet the size standard for
each distinct portion or category (e.g., line item number, SIN, sector,
functional area, or equivalent); and
(ii) The Small Business Administration (SBA) has not issued a
written determination stating otherwise pursuant to 13 CFR 121.1009.
(2)(i) A joint venture may qualify as a small business concern if
the joint venture complies with the requirements of 13 CFR 121.103(h)
and 13 CFR 125.8(a) and (b) and if--
(A) Each party to the joint venture qualifies as small under the
size standard for the solicitation; or
(B) The prot[eacute]g[eacute] is small under the size standard for
the solicitation in a joint venture comprised of a mentor and
prot[eacute]g[eacute] with an approved mentor-prot[eacute]g[eacute]
agreement under an SBA mentor-prot[eacute]g[eacute] program.
(ii) A joint venture may qualify for an award under the
socioeconomic programs as described in subparts 19.8, 19.13, 19.14, and
19.15.
* * * * *
0
6. Amend section 19.703 by--
0
a. Removing from paragraph (a)(2)(i) and paragraph (a)(2)(ii)
introductory text, the phrase ``small business, or'' and adding the
phrase ``small business, HUBZone small business, or'' in its place,
respectively; and
0
b. Revising paragraph (d).
The revision reads as follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(d) Protests challenging the socioeconomic status of a HUBZone
small business concern must be filed in accordance with 13 CFR 126.801.
* * * * *
0
7. Amend section 19.804-3 in paragraph (c) introductory text by adding
a sentence to the end of the paragraph to read as follows:
19.804-3 SBA acceptance.
* * * * *
(c) * * * For a joint venture, SBA will determine eligibility as
part of its acceptance of a sole-source requirement and will approve
the joint venture agreement prior to award in accordance with 13 CFR
124.513(e).
* * * * *
0
8. Amend section 19.805-2 by revising paragraph (b) introductory text
and adding paragraph (d) to read as follows:
19.805-2 Procedures.
* * * * *
(b) The SBA will determine the eligibility of the apparent
successful offeror. Eligibility is based on section 8(a) program
criteria. See paragraph (d) of this section regarding eligibility of
joint ventures.
* * * * *
(d)(1) SBA does not certify joint ventures, as entities, into the
8(a) program.
(2) A contracting officer may consider a joint venture for contract
award. SBA does not approve joint ventures for competitive awards (but
see 13 CFR 124.501(g) for SBA's determination of participant
eligibility).
0
9. Amend section 19.1303 by revising paragraph (c) to read as follows:
19.1303 Status as a HUBZone small business concern.
* * * * *
(c) A joint venture may be considered a HUBZone small business
concern if--
(1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
(2) At least one party to the joint venture is a HUBZone small
business concern; and
(3) The joint venture complies with 13 CFR 126.616(a) through (c).
* * * * *
0
10. Amend section 19.1403 by revising paragraph (c) to read as follows:
19.1403 Status as a service-disabled veteran-owned small business
concern.
* * * * *
(c) A joint venture may be considered a service-disabled veteran
owned small business concern if--
(1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
(2) At least one party to the joint venture is a service-disabled
veteran-owned small business concern, and makes the representations in
paragraph (b) of this section; and
(3) The joint venture complies with the requirements of 13 CFR
125.18(b).
* * * * *
0
11. Amend section 19.1503 by revising paragraph (f) to read as follows:
19.1503 Status.
* * * * *
(f) A joint venture may be considered an EDWOSB concern or WOSB
concern eligible under the WOSB Program if--
(1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
(2)(i) At least one party to the joint venture is an EDWOSB for an
EDWOSB joint venture, or at least one party to the joint venture is a
WOSB for a WOSB joint venture; and
(ii) That party complies with the criteria in paragraph (b) of this
section; and
(3) The joint venture complies with the requirements of 13 CFR
127.506(a) through (c).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Amend section 52.212-3 by--
0
a. Revising the date of the provision;
0
b. Removing from the introductory text of the provision the phrase
``(c) through (v))'' and adding the phrase ``(c) through (v)'' in its
place;
0
c. In paragraph (a), revising paragraph (1) of the definition ``Small
business concern'';
0
d. Revising paragraphs (c)(1) and (3);
0
e. Removing from the end of paragraph (c)(6)(i) the word ``and'' and
adding the word ``or'' in its place;
0
f. Revising paragraph (c)(6)(ii);
0
g. Removing from the end of paragraph (c)(7)(i) the word ``and'' and
adding the word ``or'' in its place;
0
h. Revising paragraph (c)(7)(ii);
0
i. Revising the bracketed sentence in paragraph (c)(10);
0
j. Removing from the end of paragraph (c)(10)(i) the phrase ``13 CFR
Part 126; and'' and adding the phrase ``13 CFR 126.200; or'' in its
place; and
0
k. Revising paragraph (c)(10)(ii).
The revisions read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Products and Commercial Services.
* * * * *
Offeror Representations and Certifications--Commercial Products and
Commercial Services (OCT 2022)
* * * * *
(a) * * *
Small business concern--(1) Means a concern, including its
affiliates, that is independently owned and operated, not dominant
in its field of operation, and qualified as a small business under
the criteria in 13 CFR part 121 and size standards in this
solicitation.
* * * * *
(c) * * *
(1) Small business concern. The offeror represents as part of
its offer that--
(i) It [square] is, [square] is not a small business concern; or
(ii) It [square] is, [square] is not a small business joint
venture that complies with the requirements of 13 CFR 121.103(h) and
13 CFR 125.8(a) and (b). [The offeror shall enter the name and
unique entity identifier of each party to the joint venture: __.]
* * * * *
[[Page 58225]]
(3) Service-disabled veteran-owned small business concern.
[Complete only if the offeror represented itself as a veteran-owned
small business concern in paragraph (c)(2) of this provision.] The
offeror represents as part of its offer that--
(i) It [square] is, [square] is not a service-disabled veteran-
owned small business concern; or
(ii) It [square] is, [square] is not a joint venture that
complies with the requirements of 13 CFR 125.18(b)(1) and (2). [The
offeror shall enter the name and unique entity identifier of each
party to the joint venture: __.] Each service-disabled veteran-owned
small business concern participating in the joint venture shall
provide representation of its service-disabled veteran-owned small
business concern status.
* * * * *
(6) * * *
(ii) It [square] is, [square] is not a joint venture that
complies with the requirements of 13 CFR 127.506(a) through (c).
[The offeror shall enter the name and unique entity identifier of
each party to the joint venture: __.] Each WOSB concern eligible
under the WOSB Program participating in the joint venture shall
provide representation of its WOSB status.
(7) * * *
(ii) It [square] is, [square] is not a joint venture that
complies with the requirements of 13 CFR 127.506(a) through (c).
[The offeror shall enter the name and unique entity identifier of
each party to the joint venture:__.] Each EDWOSB concern
participating in the joint venture shall provide representation of
its EDWOSB status.
Note to Paragraphs (c)(8) and (9): Complete paragraphs (c)(8)
and (9) only if this solicitation is expected to exceed the
simplified acquisition threshold.
* * * * *
(10) * * * [Complete only if the offeror represented itself as a
small business concern in paragraph (c)(1) of this provision.] * * *
* * * * *
(ii) It [square] is, [square] is not a HUBZone joint venture
that complies with the requirements of 13 CFR 126.616(a) through
(c). [The offeror shall enter the name and unique entity identifier
of each party to the joint venture:__.] Each HUBZone small business
concern participating in the HUBZone joint venture shall provide
representation of its HUBZone status.
* * * * *
0
13. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(11) the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place;
0
c. Removing from paragraph (b)(12) the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place;
0
d. Removing from paragraph (b)(16) the date ``(OCT 2018)'' and adding
the date ``(OCT 2022)'' in its place;
0
e. Removing from paragraph (b)(17)(i) the date ``(NOV 2021)'' and
adding the date ``(OCT 2022)'' in its place;
0
f. Removing from paragraph (b)(19) the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place;
0
g. Removing from paragraph (b)(21) the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place;
0
h. Removing from paragraph (b)(22)(i) the date ``(SEP 2021)'' and
adding the date ``(OCT 2022)'' in its place;
0
i. Removing from paragraph (b)(23) the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place;
0
j. Removing from paragraph (b)(24) the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place;
0
k. Removing from paragraph (e)(1)(v) the date ``(OCT 2018)'' and adding
the date ``(OCT 2022)'' in its place;
0
l. Revising the date of Alternate II; and
0
m. Removing from paragraph (e)(1)((ii)(E) of Alternate II the date
``(OCT 2018)'' and adding the date ``(OCT 2022)'' in its place.
The revisions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (OCT
2022)
* * * * *
Alternate II (OCT 2022). * * *
* * * * *
0
14. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(2)(viii) the date ``(JAN 2022)'' and
adding the date ``(OCT 2022)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Products and Commercial Services) (OCT 2022)
* * * * *
0
15. Amend section 52.219-1 by--
0
a. Revising the date of the provision;
0
b. In paragraph (a), revising paragraph (1) in the definition of
``Small business concern'';
0
c. Revising paragraph (c)(1);
0
d. Removing from the end of paragraph (c)(4)(i) the word ``and'' and
adding the word ``or'' in its place;
0
e. Revising paragraph (c)(4)(ii);
0
f. Removing from the end of paragraph (c)(5)(i) the word ``and'' and
adding the word ``or'' in its place;
0
g. Revising paragraphs (c)(5)(ii) and (c)(7);
0
h. Removing from the end of paragraph (c)(8)(i) the phrase ``13 CFR
Part 126; and'' and adding the phrase ``13 CFR 126.200; or'' in its
place; and
0
i. Revising paragraph (c)(8)(ii).
The revisions read as follows:
52.219-1 Small Business Program Representations.
* * * * *
Small Business Program Representations (OCT 2022)
* * * * *
Small business concern-- (1) Means a concern, including its
affiliates, that is independently owned and operated, not dominant
in its field of operation, and qualified as a small business under
the criteria in 13 CFR part 121 and the size standard in paragraph
(b) of this provision.
* * * * *
(c) * * *
(1) The offeror represents as part of its offer that--
(i) It [square] is, [square] is not a small business concern; or
(ii) It [square] is, [square] is not a small business joint
venture that complies with the requirements of 13 CFR 121.103(h) and
13 CFR 125.8(a) and (b). [The offeror shall enter the name and
unique entity identifier of each party to the joint venture:__.]
* * * * *
(4) * * *
(ii) It [square]; is, [square] is not a joint venture that
complies with the requirements of 13 CFR 127.506(a) through (c).
[The offeror shall enter the name and unique entity identifier of
each party to the joint venture: __.] Each WOSB concern eligible
under the WOSB Program participating in the joint venture shall
provide representation of its WOSB status.
* * * * *
(5) * * *
(ii) It [square] is, [square] is not a joint venture that
complies with the requirements of 13 CFR 127.506(a) through (c).
[The offeror shall enter the name and unique entity identifier of
each party to the joint venture: __.] Each EDWOSB concern
participating in the joint venture shall provide representation of
its EDWOSB status.
* * * * *
(7) [Complete only if the offeror represented itself as a
veteran-owned small business concern in paragraph (c)(6) of this
provision.] The offeror represents as part of its offer that--
(i) It [square] is, [square] is not a service-disabled veteran-
owned small business concern; or
(ii) It [square] is, [square] is not a service-disabled veteran-
owned joint venture that complies with the requirements of 13 CFR
125.18(b)(1) and (2). [The offeror shall enter the name and unique
entity identifier of each party to the joint venture:__.] Each
service-disabled veteran-owned small business concern participating
in the joint venture shall provide representation of its service-
disabled veteran-owned small business concern status.
(8) * * *
(ii) It [square] is, [square] is not a HUBZone joint venture
that complies with the requirements
[[Page 58226]]
of 13 CFR 126.616(a) through (c). [The offeror shall enter the name
and unique entity identifier of each party to the joint venture:
__.] Each HUBZone small business concern participating in the
HUBZone joint venture shall provide representation of its HUBZone
status.
* * * * *
0
16. Amend section 52.219-3 by revising the date of the clause and
adding paragraphs (e) and (f) to read as follows:
52.219-3 Notice of HUBZone Set-Aside or Sole-Source Award.
* * * * *
Notice of HUBZone Set-Aside or Sole-Source Award (OCT 2022)
* * * * *
(e) Joint venture. A joint venture may be considered a HUBZone
concern if--
(1) At least one party to the joint venture is a HUBZone small
business concern and complies with 13 CFR 126.616(c); and
(2) Each party to the joint venture qualifies as small under the
size standard for the solicitation, or the prot[eacute]g[eacute] is
small under the size standard for the solicitation in a joint
venture comprised of a mentor and prot[eacute]g[eacute] with an
approved mentor-prot[eacute]g[eacute] agreement under the SBA
mentor-prot[eacute]g[eacute] program.
(f) A HUBZone joint venture agrees that, in the performance of
the contract, at least 40 percent of the aggregate work performed by
the joint venture shall be completed by the HUBZone small business
parties to the joint venture. Work performed by the HUBZone small
business party or parties to the joint venture must be more than
administrative functions.
* * * * *
0
17. Amend section 52.219-4 by revising the clause title and date and
adding paragraph (d) 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 (OCT 2022)
* * * * *
(d) A HUBZone joint venture agrees that, in the performance of
the contract, at least 40 percent of the aggregate work performed by
the joint venture shall be completed by the HUBZone small business
parties to the joint venture. Work performed by the HUBZone small
business parties to the joint venture must be more than
administrative functions.
* * * * *
0
18. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), revising the definition of ``Small business
concern'';
0
c. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e) and
adding a new paragraph (c); and
0
d. Revising newly redesignated paragraph (e)(5) introductory text.
The revisions read as follows:
52.219-8 Utilization of Small Business Concerns.
* * * * *
Utilization of Small Business Concerns (OCT 2022)
* * * * *
(a) * * *
Small business concern means a concern, including its
affiliates, that is independently owned and operated, not dominant
in its field of operation and qualified as a small business under
the criteria and size standards in 13 CFR part 121, including the
size standard that corresponds to the NAICS code assigned to the
contrac t or subcontract.
* * * * *
(c)(1) A joint venture qualifies as a small business concern
if--
(i) Each party to the joint venture qualifies as small under the
size standard for the solicitation; or
(ii) The prot[eacute]g[eacute] is small under the size standard
for the solicitation in a joint venture comprised of a mentor and
prot[eacute]g[eacute] with an approved mentor-prot[eacute]g[eacute]
agreement under a SBA mentor-prot[eacute]g[eacute] program.
(2) A joint venture qualifies as--
(i) A service-disabled veteran-owned small business concern if
it complies with the requirements in 13 CFR part 125; or
(ii) A HUBZone small business concern if it complies with the
requirements in 13 CFR 126.616(a) through (c).
* * * * *
(e) * * *
(5) The Contractor shall confirm that a subcontractor
representing itself as a HUBZone small business concern is certified
by SBA as a HUBZone small business concern. If the subcontractor is
a joint venture, the Contractor shall confirm that at least one
party to the joint venture is certified by SBA as a HUBZone small
business concern. The Contractor may confirm the representation by
accessing the System for Award Management or contacting SBA. Options
for contacting the SBA include--
* * * * *
0
19. Amend section 52.219-9 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (e)(4) the phrase ``52.219-8(d)(2)'' and
adding the phrase ``52.219-8(e)(2)'' in its place.
The revision reads as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
Small Business Subcontracting Plan (OCT 2022)
* * * * *
0
20. Amend section 52.219-14 by revising the date of the clause and
paragraph (g) to read as follows:
52.219-14 Limitations on Subcontracting.
* * * * *
Limitations on Subcontracting (OCT 2022)
* * * * *
(g) A joint venture agrees that, in the performance of the
contract, the applicable percentage specified in paragraph (e) of
this clause will be performed by the aggregate of the joint venture
participants.
(1) In a joint venture comprised of a small business
prot[eacute]g[eacute] and its mentor approved by the Small Business
Administration, the small business prot[eacute]g[eacute] shall
perform at least 40 percent of the work performed by the joint
venture. Work performed by the small business prot[eacute]g[eacute]
in the joint venture must be more than administrative functions.
(2) In an 8(a) joint venture, the 8(a) participant(s) shall
perform at least 40 percent of the work performed by the joint
venture. Work performed by the 8(a) participants in the joint
venture must be more than administrative functions.
* * * * *
0
21. Amend section 52.219-18 by--
0
a. Revising the date of the clause and paragraph (a);
0
b. Removing from paragraph (b) the phrase ``all of the'' and adding the
phrase ``the applicable'' in its place;
0
c. Adding a sentence to the end of paragraph (c); and
0
d. Revising Alternate I.
The revisions and addition read as follows:
52.219-18 Notification of Competition Limited to Eligible 8(a)
Participants.
* * * * *
Notification of Competition Limited to Eligible 8(a) Participants (OCT
2022)
(a) Offers are solicited only from--
(1) Small business concerns expressly certified by the Small
Business Administration (SBA) for participation in SBA's 8(a)
program and which meet the following criteria at the time of
submission of offer--
(i) The Offeror is in conformance with the 8(a) support
limitation set forth in its approved business plan; and
(ii) The Offeror is in conformance with the Business Activity
Targets set forth in its approved business plan or any remedial
action directed by SBA;
(2) A joint venture, in which at least one of the 8(a) program
participants that is a party to the joint venture complies with the
criteria set forth in paragraph (a)(1) of this clause, that complies
with 13 CFR 124.513(c); or
(3) A joint venture--
(i) That is comprised of a mentor and an 8(a)
prot[eacute]g[eacute] with an approved mentor-prot[eacute]g[eacute]
agreement under the 8(a) program;
(ii) In which at least one of the 8(a) program participants that
is a party to the joint venture complies with the criteria set forth
in paragraph (a)(1) of this clause; and
(iii) That complies with 13 CFR 124.513(c).
* * * * *
(c) * * * A contracting officer may consider a joint venture for
contract award. SBA does not approve joint ventures for competitive
awards, but see 13 CFR 124.501(g) for SBA's determination of
participant eligibility.
* * * * *
[[Page 58227]]
Alternate I (OCT 2022). If the competition is to be limited to
8(a) participants within one or more specific SBA regions or
districts, add the following paragraph (a)(1)(iii) to paragraph (a)
of the clause:
(iii) The offeror's approved business plan is on the file and
serviced by __[Contracting Officer completes by inserting the
appropriate SBA District and/or Regional Office(s) as identified by
the SBA].
0
22. Amend section 52.219-27 by revising the date of the clause and
paragraph (d) and adding paragraph (e) to read as follows:
52.219-27 Notice of Service-Disabled Veteran-Owned Small Business
Set-Aside.
* * * * *
Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (OCT
2022)
* * * * *
(d) A joint venture may be considered a service-disabled veteran
owned small business concern if--
(1) At least one party to the joint venture complies with the
criteria defined in paragraph (a) of this clause and 13 CFR
125.18(b)(2); and
(2) Each party to the joint venture is small under the size
standard corresponding to the NAICS code assigned to the
procurement, or the prot[eacute]g[eacute] is small under the size
standard corresponding to the NAICS code assigned to the procurement
in a joint venture comprised of a mentor and prot[eacute]g[eacute]
with an approved mentor-prot[eacute]g[eacute] agreement under an SBA
mentor-prot[eacute]g[eacute] program.
(e) In a joint venture that complies with paragraph (f) of this
clause, the service-disabled veteran-owned small business party or
parties to the joint venture shall perform at least 40 percent of
the work performed by the joint venture. Work performed by the
service-disabled veteran-owned small business party or parties to
the joint venture must be more than administrative functions.
* * * * *
0
23. Amend section 52.219-28 by revising the date of the clause, and in
paragraph (a) revising paragraph (1) of the definition of ``Small
business concern'' to read as follows:
52.219-28 Post-Award Small Business Program Rerepresentation.
* * * * *
Post-Award Small Business Program Rerepresentation (OCT 2022)
(a) * * *
Small business concern--
(1) Means a concern, including its affiliates, that is
independently owned and operated, not dominant in its field of
operation, and qualified as a small business under the criteria in
13 CFR part 121 and the size standard in paragraph (d) of this
clause.
* * * * *
0
24. Amend section 52.219-29 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), in the definition ``Economically disadvantaged
women-owned small business (EDWOSB)'' removing the phrase ``It
automatically'' and adding the phrase ``An EDWOSB concern
automatically'' in its place;
0
c. Revising paragraph (d); and
0
d. Adding paragraph (e).
The revisions and addition read as follows:
52.219-29 Notice of Set-Aside for, or Sole-Source Award to,
Economically Disadvantaged Women-Owned Small Business Concerns.
* * * * *
Notice of Set-Aside for, or Sole-Source Award to, Economically
Disadvantaged Women-Owned Small Business Concerns (OCT 2022)
* * * * *
(d) Joint Venture. A joint venture may be considered an EDWOSB
concern if--
(1) At least one party to the joint venture complies with the
criteria defined in paragraph (a) and paragraph (c)(3) of this
clause, and 13 CFR 127.506(c); and
(2) Each party to the joint venture qualifies as small under the
size standard for the solicitation, or the prot[eacute]g[eacute] is
small under the size standard for the solicitation in a joint
venture comprised of a mentor and prot[eacute]g[eacute] with an
approved mentor-prot[eacute]g[eacute] agreement under the SBA
mentor-prot[eacute]g[eacute] program.
(e) In a joint venture that complies with paragraph (d) of this
clause, the EDWOSB party or parties to the joint venture shall
perform at least 40 percent of the work performed by the joint
venture. Work performed by the EDWOSB party or parties to the joint
venture must be more than administrative functions.
* * * * *
0
25. Amend section 52.219-30 by revising the date of the clause and
paragraph (d) and adding paragraph (e) to read as follows:
52.219-30 Notice of Set-Aside for, or Sole-Source Award to, Women-
Owned Small Business Concerns Eligible Under the Women-Owned Small
Business Program.
* * * * *
Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small
Business Concerns Eligible Under the Women-Owned Small Business Program
(OCT 2022)
* * * * *
(d) Joint Venture. A joint venture may be considered a WOSB
concern eligible under the WOSB Program if--
(1) At least one party to the joint venture complies with the
criteria defined in paragraph (a) and (c)(3) of this clause, and 13
CFR 127.506(c); and
(2) Each party to the joint venture qualifies as small under the
size standard for the solicitation, or the prot[eacute]g[eacute] is
small under the size standard for the solicitation in a joint
venture comprised of a mentor and prot[eacute]g[eacute] with an
approved mentor-prot[eacute]g[eacute] agreement under the SBA
mentor-prot[eacute]g[eacute] program.
(e) In a joint venture that complies with paragraph (d) of this
clause, the WOSB party or parties to the joint venture shall perform
at least 40 percent of the work performed by the joint venture. Work
performed by the WOSB party or parties to the joint venture must be
more than administrative functions.
* * * * *
0
26. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(vii) the date ``(OCT 2018)'' and
adding the date ``(OCT 2022)'' in its place.
The revision reads as follows:
52.244-6 Subcontracts for Commercial Products and Commercial
Services.
* * * * *
Subcontracts for Commercial Products and Commercial Services (OCT 2022)
* * * * *
[FR Doc. 2022-20340 Filed 9-22-22; 8:45 am]
BILLING CODE 6820-EP-P
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</html>Indexed from Federal Register on September 23, 2022.
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