Proposed Rule2022-26978
Federal Acquisition Regulation: 8(a) Program
Primary source
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Published
December 15, 2022
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration (SBA) to update and clarify requirements associated with the 8(a) program.
Full Text
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<title>Federal Register, Volume 87 Issue 240 (Thursday, December 15, 2022)</title>
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[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Proposed Rules]
[Pages 76598-76600]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26978]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAR Case 2021-012; Docket No. FAR-2021-0012; Sequence No. 1]
RIN 9000-AO29
Federal Acquisition Regulation: 8(a) Program
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 implement regulatory changes made by
the Small Business Administration (SBA) to update and clarify
requirements associated with the 8(a) program.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the addresses shown below on or
before February 13, 2023 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2021-012 to the
Federal eRulemaking portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by searching
for ``FAR Case 2021-012''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2021-012''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2021-012'' on your attached
document. If your comment cannot be submitted using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite ``FAR Case 2021-
012'' in all correspondence related to this case. Comments received
generally will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal and/or business confidential information
provided. Public comments may be submitted as an individual, as an
organization, or anonymously (see frequently asked questions at <a href="https://www.regulations.gov/faq">https://www.regulations.gov/faq</a>). To confirm receipt of your comment(s),
please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, approximately two to three
days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Dana Bowman, Procurement Analyst, at 202-803-3188 or by email at
<a href="/cdn-cgi/l/email-protection#1377727d723d717c647e727d537460723d747c65"><span class="__cf_email__" data-cfemail="b1d5d0dfd09fd3dec6dcd0dff1d6c2d09fd6dec7">[email protected]</span></a>. For information pertaining to status, publication
schedules, or alternate instructions for submitting comments if <a href="https://www.regulations.gov">https://www.regulations.gov</a> cannot be used, contact the Regulatory Secretariat
Division at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#c681958794a3a195a3a586a1b5a7e8a1a9b0"><span class="__cf_email__" data-cfemail="05425644576062566066456276642b626a73">[email protected]</span></a>. Please cite FAR Case
2021-012.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement
regulatory changes made by the Small Business Administration (SBA), in
its final rule published in the Federal Register at 85 FR 66146 on
October 16, 2020. SBA initiated a review of its regulations in response
to the prior administration's government-wide regulatory reform
initiative. As a result, SBA revised the 8(a) program regulations to
more clearly articulate SBA's intent with regard to certain aspects of
the 8(a) program to eliminate confusion and decrease burdens on
procuring activities and 8(a) participants.
II. Discussion and Analysis
This rule proposes to modify subparts 19.6 and 19.8 as follows:
--Modify FAR 19.601(c) to clarify that the certificate of competency
program is not applicable to 8(a) sole-source awards (see 13 CFR
125.5(a)(1)).
--Modify the heading at 19.804-5 to add blanket purchase agreements
(BPAs) and add text to require that BPAs issued under part 13,
including orders placed under part 13 BPAs, must be offered to, and
accepted by SBA (see 13 CFR 124.503(h)).
--Modify FAR 19.805-2 to clarify 8(a) participants' eligibility
criteria for two-step design-build competitive procurements (see 13 CFR
124.507(d)(3)); and FAR 19.808-1 to clarify eligibility criteria for
8(a) sole-source awards (see 13 CFR 124.501(g)).
--Revise 19.808-2 to add ``follow-on 8(a) acquisitions''.
--New text is proposed at section 19.810(a) to specify that SBA may
appeal a contracting officer's decision that an acquisition previously
procured under the 8(a) program is a new requirement not subject to the
release requirements set forth in 13 CFR 124.504(d) (see 13 CFR
124.505(a)).
--Modify the heading at 19.815 to add notification requirements.
--Add new text at 19.815(d) and 19.815(e) to address notification
requirements when a contracting officer decides that a requirement,
previously procured under the 8(a) program, is a new requirement and
not a follow-on requirement to an 8(a) contract; and when the procuring
activity intends to procure a follow-on requirement using an existing
limited competition contracting vehicle that is not available to all
8(a) participants and the current or previous 8(a) contract was
available to all 8(a) participants.
--Add new text at 19.815(f) to address notification requirements when a
mandatory source will be used for a follow-on requirement to an 8(a)
contract (see 13 CFR 124.504(d)(4)(ii)).
--Modify 19.816(c) to add a reference to SBA's eligibility criteria.
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 does not create new solicitation provisions or contract
clauses or impact any existing provisions or clauses.
IV. Expected Impact of the Rule
This proposed rule implements SBA's final rule issued on October
16, 2020 (85 FR 66146) to update and clarify requirements associated
with the 8(a) program. The changes are intended to clarify 8(a) program
requirements and eliminate confusion among 8(a) concerns and procuring
activities. The proposed rule will require contracting officers to
submit BPAs issued under FAR part 13 and FAR part 13 BPA orders in the
8(a) Program to SBA for acceptance. Contracting officers will also be
required to notify SBA of follow-on, non-8(a) procurements, and should
notify SBA when a mandatory source
[[Page 76599]]
will be utilized for a follow-on to an 8(a) contract. This proposed
rule also clarifies eligibility requirements under the 8(a) program,
which will assist both the Government and 8(a) concerns. The proposed
rule also clarifies that the SBA certificate of competency program does
not apply to 8(a) sole-source awards; therefore, contracting officers
will no longer be required to submit these actions to SBA. Given that
this proposed rule clarifies 8(a) program requirements and reduces
ambiguities for small business entities and procuring activities, any
impact is expected to be beneficial to both Government and contractors
and offerors. Any cost to the Government is not expected to be
significant.
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 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. A major rule cannot take
effect until 60 days after it is published in the Federal Register.
This rule is not anticipated to be a major rule under 5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this rule to 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, because
this proposed rule clarifies 8(a) program requirements and is expected
to assist both small entities and the Government in implementing the
8(a) program. However, an Initial Regulatory Flexibility Analysis
(IRFA) has been performed and is summarized as follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to update and clarify requirements
associated with the 8(a) program to align it with the regulatory
changes made by the Small Business Administration (SBA) in its final
rule dated October 16, 2020 (85 FR 66146).
The objective of this rule is to implement SBA regulatory
changes made to the 8(a) program. SBA initiated a review of its
regulations in response to the prior administration's government-
wide regulatory reform initiative. As a result, SBA revised its 8(a)
program regulations to eliminate confusion among small businesses
and procuring activities. The proposed rule clarifies that the
certificate of competency program is not applicable to 8(a) sole-
source awards. Additionally, the proposed rule adds a requirement
for the contracting officer to submit an offering letter to SBA for,
and for SBA to accept, blanket purchase agreements (BPAs) under FAR
part 13 and orders placed under part 13 BPAs. The rule also
clarifies an 8(a) concern's eligibility for two-step design-build
acquisitions and sole-source awards made under the 8(a) program. The
rule also requires the procuring activity to submit a notification
to SBA when a contracting officer determines that a procurement,
previously procured under the 8(a) program, is a new requirement
that is not subject to SBA release requirements. A notification is
also required when the procuring activity intends to procure a
follow-on to an 8(a) procurement using an existing limited
competition contract vehicle, not available to all 8(a) program
participants, when the current or previous 8(a) contract was not a
limited competition contracting vehicle. The legal basis for this
rule is 40 U.S.C. 121(c), 10 U.S.C. chapter 137, and 51 U.S.C.
20113.
This proposed rule will impact small businesses who are 8(a)
program participants and the Government by clarifying the 8(a)
program regulations and ensuring follow-on requirements to 8(a)
procurements remain in the 8(a) program when appropriate. Based on
data in the System for Award Management, the estimated number of
8(a) small businesses is 5,659 and the estimated number of 8(a)
joint ventures is 521. Therefore, the estimated number of total
small entities to which the rule applies is 6,180. According to the
Federal Procurement Data System, 8,037 8(a) sole-source awards and
1,224 8(a) set-aside awards were made in fiscal year (FY) 2019;
7,473 8(a) sole-source awards and 1,088 8(a) set-aside awards were
made in FY 2020; and 6,369 8(a) sole-source awards and 1,251 8(a)
set-aside awards were made in FY 2021. This averages out to 7,293
8(a) sole-source awards and 1,187 set-aside awards made in the last
three fiscal years.
The proposed rule does not impose any new reporting,
recordkeeping, or other compliance requirements for small entities.
The proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known significant alternative approaches to the
proposed rule.
The Regulatory Secretariat Division has submitted 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 Division. 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 the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2021-012),
in correspondence.
VIII. 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 propose amending 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.
19.601 [Amended]
0
2. Amend section 19.601 by--
0
a. Removing from paragraph (b) the phrase ``Small Business
Administration (SBA)'' and adding in its place ``SBA''; and
0
b. Removing from the first sentence of paragraph (c) the phrase
``Government acquisitions.'' and adding in its place ``Government
acquisitions except for 8(a) sole-source awards.'' and removing from
the second sentence of paragraph (c) the word ``also''.
0
3. Revise section 19.804-5 to read as follows:
19.804-5 Basic ordering agreements and blanket purchase agreements.
(a) The contracting office shall submit an offering letter for, and
SBA must accept, each order under a basic ordering agreement (BOA) or a
blanket purchase agreement (BPA) issued under part 13 (see 13.303), in
addition to the
[[Page 76600]]
agency offering and SBA accepting the BOA or BPA itself.
(b) SBA will not accept for award on a sole-source basis any order
that would cause the total dollar amount of orders issued under a
specific BOA or BPA to exceed the competitive threshold amount in
19.805-1.
(c) Once an 8(a) participant's program term expires, the
participant otherwise exits the 8(a) program, or becomes other than
small for the NAICS code assigned under the BOA or the BPA, SBA will
not accept new orders under the BOA or BPA for the participant.
0
4. Amend section 19.805-2 by--
0
a. Revising the second sentence in paragraph (b) introductory text;
0
b. Redesignating paragraph (b)(2) as paragraph (b)(3); and
0
c. Adding a new paragraph (b)(2).
The revision and addition reads as follows:
19.805-2 Procedures.
* * * * *
(b) * * * Eligibility is based on section 8(a) program criteria
(see 13 CFR 124.501(g) and 19.816(c)).
* * * * *
(2) For a two-step design-build procurement, an 8(a) participant
must be eligible for award under the 8(a) program on the initial date
for receipt of phase one offers specified in the solicitation (see 13
CFR 124.507(d)(3)).
* * * * *
0
5. Amend section 19.808-1 by--
0
a. Redesignating paragraph (e) as paragraph (f);
0
b. Adding a new paragraph (e);
0
c. Removing from the newly redesignated paragraph (f) the phrase ``sole
source award'' and adding in its place ``sole-source award''.
The addition reads as follows:
19.808-1 Sole source.
* * * * *
(e) A concern must be a current participant in the 8(a) program at
the time of an 8(a) sole-source award.
* * * * *
19.808-2 [Amended]
0
6. Amend section 19.808-2 by--
0
a. Removing from the first sentence the phrase ``8(a) acquisitions''
and adding in its place ``8(a) acquisitions, including follow-on 8(a)
acquisitions,''; and
0
b. Removing from the second sentence the phrase ``negotiations among''
and adding in its place ``negotiations among eligible''.
0
7. Amend section 19.810 by adding paragraph (a)(4) to read as follows:
19.810 SBA appeals.
(a) * * *
(4) A contracting officer's decision that an acquisition previously
procured under the 8(a) program is a new requirement not subject to the
release requirements at 13 CFR 124.504(d)(1) (see 19.815(a) and
(d)(1)).
* * * * *
0
8. Revise section 19.815 to read as follows:
19.815 Release and notification requirements for non-8(a) procurement.
(a) Once a requirement has been accepted by SBA into the 8(a)
program, any follow-on requirements (see definition at 13 CFR 124.3)
shall remain in the 8(a) program unless--
(1) SBA agrees to release the requirement from the 8(a) program for
a follow-on, non-8(a) procurement in accordance with 13 CFR 124.504(d)
(see paragraph (b) of this section); or
(2) There is a mandatory source (see 8.002 or 8.003; also see
paragraph (f) of this section).
(b) To obtain release of a follow-on, non-8(a) procurement, (other
than a mandatory source listed at 8.002 or 8.003), the contracting
officer shall make a written request to, and receive concurrence from,
the SBA Associate Administrator for Business Development.
(c)(1) The written request to the SBA Associate Administrator for
Business Development shall indicate--
(i) Whether the agency has achieved its small disadvantaged
business goal;
(ii) Whether the agency has achieved its HUBZone, SDVOSB, WOSB, or
small business goal(s); and
(iii) Whether the requirement is critical to the business
development of the 8(a) contractor that is currently performing the
requirement.
(2) Generally, a requirement that was previously accepted into the
8(a) program will only be released for procurements outside the 8(a)
program when the contracting activity agency agrees to set aside the
requirement under the small business, HUBZone, SDVOSB, or WOSB
programs.
(3) The requirement that a follow-on procurement must be released
from the 8(a) program in order for it to be fulfilled outside the 8(a)
program does not apply to task or delivery orders offered to and
accepted into the 8(a) program, where the basic contract was not
accepted into the 8(a) program.
(d)(1) When a contracting officer decides that a requirement
previously procured under the 8(a) program is a new requirement and not
a follow-on requirement to an 8(a) contract(s), the contracting officer
shall submit a written notice to the SBA Associate Administrator for
Business Development that the agency intends to procure the requirement
outside the 8(a) program (see 19.810(a)(4)).
(2) The written notice shall include a copy of the acquisition
plan, if available; performance work statement (PWS); statement of work
(SOW) or statement of objectives (SOO); and the values of the existing
8(a) contract(s) and the new contract requirement.
(e)(1) When a contracting officer decides to procure a follow-on
requirement to an 8(a) contract using an existing, limited competition
contracting vehicle that is not available to all 8(a) participants and
the current or previous 8(a) contract was available to all 8(a)
participants, the contracting officer must submit a written notice to
the SBA Associate Administrator for Business Development.
(2) The written notice shall include a copy of the acquisition
plan, if available; PWS; SOW or SOO; and the values of both contracts.
(f)(1) When a mandatory source will be used for a follow-on
requirement to an 8(a) contract, the contracting officer should notify
the SBA Associate Administrator for Business Development at least 30
days prior to the end of the contract or order in accordance with 13
CFR 124.504(d)(4)(ii).
(2) The written notice should include a copy of the acquisition
plan, if available; PWS; SOW or SOO; and the values of both contracts.
19.816 [Amended]
0
9. Amend section 19.816 by removing from paragraph (c) the word
``criteria'' and adding in its place ``criteria (see 13 CFR
124.507(d))''.
[FR Doc. 2022-26978 Filed 12-14-22; 8:45 am]
BILLING CODE 6820-EP-P
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