Proposed Rule2023-21317
Federal Acquisition Regulation: Protests of Orders Set Aside for Small Business
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Published
October 3, 2023
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 to update and clarify requirements associated with size and/or socioeconomic status protests in connection with multiple-award contract set-asides and reserves and orders placed under multiple-award contracts.
Full Text
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<title>Federal Register, Volume 88 Issue 190 (Tuesday, October 3, 2023)</title>
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[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Proposed Rules]
[Pages 68067-68070]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21317]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAR Case 2021-009; Docket No. FAR-2021-0010; Sequence No. 1]
RIN 9000-AO26
Federal Acquisition Regulation: Protests of Orders Set Aside for
Small Business
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
[[Page 68068]]
Acquisition Regulation (FAR) to implement regulatory changes made by
the Small Business Administration to update and clarify requirements
associated with size and/or socioeconomic status protests in connection
with multiple-award contract set-asides and reserves and orders placed
under multiple-award contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
December 4, 2023 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2021-009 to the
Federal eRulemaking portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by searching
for ``FAR Case 2021-009''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2021-009''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2021-009'' 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-
009'' 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: Ms. Dana Bowman, Procurement Analyst,
at 202-803-3188 or by email at <a href="/cdn-cgi/l/email-protection#6e0a0f000f400c0119030f002e091d0f40090118"><span class="__cf_email__" data-cfemail="1773767976397578607a76795770647639707861">[email protected]</span></a>, for clarification
of content. 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#31766270635456625452715642501f565e47"><span class="__cf_email__" data-cfemail="edaabeacbf888abe888ead8a9e8cc38a829b">[email protected]</span></a>. Please cite FAR Case
2021-009.
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 rules published in the Federal Register on October 2, 2013
(78 FR 61113), October 16, 2020 (85 FR 66146), and on November 29, 2022
(87 FR 73400). SBA added clarifying language at 13 CFR 121.1004 to
specify when size protests must be submitted for the set aside or
reserve of a multiple-award indefinite-delivery indefinite-quantity
(IDIQ) contract and for orders that are set-aside for small business
under an unrestricted multiple-award IDIQ contract, except for orders
and blanket purchase agreements placed under a Federal Supply Schedule
contract in accordance with FAR 8.405. In addition, in its final rule
published on October 16, 2020, SBA amended 13 CFR 126.801, 13 CFR
125.28 (now at 13 CFR 134.1004), and 13 CFR 127.603 to authorize
socioeconomic protests for set-aside orders for HUBZone, SDVOSB, or
EDWOSB/WOSB concerns placed under a multiple-award IDIQ contract this
is not partially or totally set aside or reserved for that particular
socioeconomic category. SBA's rule also clarified the SBA entities that
may file a size protest in connection with a particular procurement. In
addition, SBA's final rule published on November 29, 2022 (87 FR 73400)
amended its regulations to remove references to the SDVOSB program at
13 CFR part 125 and relocate them to 13 CFR part 128 and 13 CFR part
134.
II. Discussion and Analysis
This rule proposes to modify FAR subpart 19.3 to implement SBA's
final rule as follows:
--Modify FAR 19.302(a)(2) to add a reference to SBA's regulations at 13
CFR 121.1001(a)(1) to clarify the entities that may file a protest in
connection with a particular procurement;
--Modify FAR 19.302(d)(1) to implement SBA's regulations at 13 CFR
121.1004(a)(2) to specify when size protests are due for partial set
asides and reserves of multiple-award contracts and orders that are set
aside under an unrestricted multiple-award contract, with the exception
of orders and blanket purchase agreements placed under Federal Supply
Schedule contracts;
--Modify FAR 19.306, 19.307, and 19.308 to implement SBA's regulations
at 13 CFR 126.801(d), 13 CFR 134.1004(a), and 127.603(c), respectively,
to specify when protests are due for orders placed under multiple-award
contracts where the contracting officer requested rerepresentation;
--Modify FAR 19.306, 19.307, and 19.308 to implement SBA's regulations
at 13 CFR 126.801(d), 13 CFR 134.1004(a), and 13 CFR 127.603(c),
respectively, to specify when protests are due for orders that are set
aside for HUBZone small business concerns, service-disabled veteran-
owned small business concern (SDVOSB), and economically disadvantaged
women-owned small business concerns and women-owned small business
concerns under a multiple-award contract that is not itself partially
or totally set-aside or reserved for the particular concern. This does
not apply to orders and blanket purchase agreements placed under
Federal Supply Schedule contracts.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), 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 rules issued on October
2, 2013, (78 FR 61113), October 16, 2020, (85 FR 66146) and November
29, 2022 (87 FR 73400) to update and clarify regulations regarding size
and socioeconomic status protests associated with orders placed under
multiple-award contracts, with the exception of orders and blanket
purchase agreements placed under Federal Supply Schedule contracts in
accordance with FAR 8.405. This proposed rule will allow contracting
officers, SBA, and interested parties to protest the size of a concern
for partial set asides and reserves of multiple-award contracts and
orders that are set aside under multiple-award contracts. The proposed
rule will allow contracting officers, SBA, and interested parties to
protest the socioeconomic status of a HUBZone small business concern,
an economically disadvantaged women-owned small businesses and women-
owned small businesses, or a service-disabled veteran-owned small
business concern for orders set aside for one of these socioeconomic
categories when placed against a multiple-award contract that is not
partially or totally set aside or reserved for that socioeconomic
category. This proposed rule will also allow contracting officers, SBA,
and interested parties to protest an order placed against a multiple-
award contract where the contracting officer requested rerepresentation
for the order. This proposed rule is expected to help
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contracting officers and interested parties to understand the
requirements for filing size and socioeconomic status protests for
orders placed under multiple-award contracts. Given that this proposed
rule clarifies protest requirements and reduces ambiguities for small
business entities and procuring activities, any impact is expected to
be beneficial to both Government, 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. 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 size and socioeconomic protest
requirements associated with multiple-award contracts and is expected
to assist both small entities and the Government in submitting a timely
protest. 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 implement regulatory changes made by
the Small Business Administration (SBA) in its final rules dated
October 2, 2013 (78 FR 61113), October 16, 2020(85 FR 66146), and
November 29, 2022(87 FR 73400). This rule proposes to update and
clarify requirements associated with size and socioeconomic status
protests related to partial set asides and reserves of multiple-
award indefinite-delivery indefinite-quantity (IDIQ) contracts, and
protests related to orders placed against multiple-award IDIQ
contracts with the exception of blanket purchase agreements and
orders placed under Federal Supply Schedule contracts.
The objective of this proposed rule is to implement SBA's final
rules published on October 2, 2013 (78 FR 61113), October 16, 2020
(85 FR 66146), and November 29, 2022 (87 FR 73400) to clarify the
requirements for size and/or socioeconomic status protests for
orders placed against multiple-award IDIQ contracts. This proposed
rule clarifies the timelines for an interested party to submit a
size protest for a partial set aside or reserve of a multiple-award
IDIQ contract and for an order placed under a multiple-award IDIQ
contract. In addition, this rule clarifies when a socioeconomic
status protest of a set-aside order placed under a multiple-award
IDIQ contract where the socioeconomic status of the set-aside
differs from that of the underlying contract, or the reserve or set
aside portion of the underlying contract (e.g., small business set
aside multiple-award IDIQ contract where an order is further set
aside for SDVOSB concerns). This proposed rule does not apply to
orders and blanket purchase agreements placed under Federal Supply
Schedule contracts. Promulgation of FAR regulations is authorized by
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137
legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113. The
legal basis for this rule is SBA's regulations at 13 CFR 126.801, 13
CFR 127.603, 13 CFR 121.1001, and 13 CFR 134.1004 as amended by the
three SBA final rules.
This proposed rule will impact small businesses that are or may
become multiple-award IDIQ contract holders and that may be awarded
orders under multiple-award IDIQ contracts. According to the Federal
Procurement Data System (FPDS), in the last three fiscal years
(FYs), agencies set aside orders under unrestricted multiple-award
IDIQ contracts as follows: 6,509 in FY 2019; 7,392 in FY 2020; and
7,251 in FY 2021; for an average of 7051 per fiscal year. According
to FPDS, in the last three fiscal years, agencies further set aside
orders under set aside multiple-award IDIQ contracts as follows:
8,403 in FY 2019; 9,470 in FY 2020; and 10,034 in FY 2021; for an
average of 9,302 per fiscal year. According to FPDS, in the last
three fiscal years contracting officers required rerepresentation
for orders as follows: 363 in FY 2019; 470 in FY 2020; and 530 in FY
2021; which averages out to 454 per fiscal year. According to FPDS,
in the last three fiscal years, agencies further set aside orders
for a socioeconomic category under the set aside portion of a
multiple-award IDIQ contract, where the socioeconomic category
differs from the underlying multiple-award IDIQ contract, as
follows: 43 in FY 2019; 41 in FY 2020; and 37 in FY 2021; for an
average of 40 per fiscal year. This averages out to approximately
4,212 total orders to which this rule may apply per fiscal year.
Although we can estimate the number of set aside orders that may be
affected by this rule, it is not possible to estimate the number of
small entities that may be affected by potential protests as a
result of this rule.
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 2021-009) in
correspondence.
VII. 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 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
0
2. Amend section 19.302 by--
0
a. Removing from the end of the second sentence of paragraph (a)(2)
``or the SBA.'' and adding ``or SBA. (See 13 CFR 121.1001(a).'' in its
place; and
0
b. Revising paragraph (d).
The revision reads as follows:
19.302 Protesting a small business representation or rerepresentation.
* * * * *
(d) In order to affect a specific solicitation, a protest must be
timely. SBA's regulations on timeliness are contained in 13 CFR
121.1004. SBA's regulations on timeliness related to protests of
disadvantaged status are contained in 13 CFR 124, Subpart B.
(1) To be timely, a protest by any concern or other interested
party must be received by the contracting officer by the close of
business of the fifth business day after-
[[Page 68070]]
(i) Bid opening for sealed bid acquisitions; or
(ii) Receipt of the special notification from the contracting
officer (see 15.503(a)(2)) that identifies the apparently successful
offeror for negotiated acquisitions, including-
(A) Partial set-asides and reserves of multiple-award IDIQ
contracts; and
(B) Orders that are set-aside under an unrestricted multiple-award
IDIQ contract (except for orders and blanket purchase agreements placed
under a Federal Supply Schedule contract (see 8.405 and paragraph
(d)(5) of this section)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
(2) A protest may be made orally if it is confirmed in writing and
received by the contracting officer within the 5-day period or by
letter postmarked no later than 1 business day after the oral protest.
(3) A protest may be made in writing if it is delivered to the
contracting officer by hand, mail, facsimile, email, express or
overnight delivery service.
(4) Except as provided in paragraph (d)(6) of this section, a
protest filed by the contracting officer or SBA is always considered
timely whether filed before or after award.
(5) A protest under a Multiple Award Schedule will be timely if
received by SBA at any time prior to the expiration of the contract
period, including renewals.
(6) A protest filed before bid opening, or notification to offerors
of the selection of the apparent successful offeror, will be dismissed
as premature by SBA.
* * * * *
0
3. Amend section 19.306 by revising paragraph (e)(1)(ii) and adding
paragraph (e)(1)(iii) to read as follows:
19.306 Protesting a firm's status as a HUBZone small business concern.
* * * * *
(e) * * *
(1) * * *
(ii) For negotiated acquisitions, by the close of business on the
fifth business day after notification by the contracting officer of the
apparently successful offeror, including--
(A) Orders placed under multiple-award indefinite-delivery
indefinite-quantity (IDIQ) contracts where the contracting officer
requested rerepresentation for the order (see 13 CFR 126.801(d)(1));
and
(B) Orders set aside for HUBZone small businesses under multiple-
award IDIQ contracts that are not partially or totally set aside or
reserved for HUBZone small business concerns (see 13 CFR
126.801(d)(1)), except for orders and blanket purchase agreements
placed under a Federal Supply Schedule contract (see 8.405 and
19.302(d)(5)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
* * * * *
0
4. Amend section 19.307 by--
0
a. Removing from paragraph (e)(1)(i) ``(in sealed bid acquisitions);
or'' and adding ``for sealed bid acquisitions; or'' in its place;
0
b. Revising paragraph (e)(1)(ii); and
0
c. Adding paragraph (e)(1)(iii).
The revision reads as follows:
19.307 Protesting a firm's status as a service-disabled veteran-owned
small business concern.
* * * * *
(e) * * *
(1) * * *
(ii) To be received by close of business on the fifth business day
after notification by the contracting officer of the apparently
successful offeror for negotiated acquisitions, including--
(A) Orders placed under multiple-award IDIQ contracts where the
contracting officer requested rerepresentation for the order (see 13
CFR 134.1004(a)(3)(ii)); and
(B) Orders set aside for service-disabled veteran-owned small
businesses under multiple-award IDIQ contracts that are not partially
or totally set aside or reserved for service-disabled veteran-owned
small business concerns (see 13 CFR 134.1004(a)(3)(i)), except for
orders and blanket purchase agreements placed under a Federal Supply
Schedule contract (see 8.405 and 19.302(d)(5)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
* * * * *
0
5. Amend section 19.308 by--
0
a. Removing from paragraph (e)(1)(i) ``(in sealed bid acquisitions);
or'' and adding ``for sealed bid acquisitions; or'' in its place;
0
b. Revising paragraph (e)(1)(ii); and
0
c. Adding paragraph (e)(1)(iii).
The revision reads as follows:
19.308 Protesting a firm's status as an economically disadvantaged
women-owned small business concern or women-owned small business
concern eligible under the Women-Owned Small Business Program.
* * * * *
(e) * * *
(1) * * *
(ii) To be received by the close of business by the fifth business
day after notification by the contracting officer of the apparent
successful offeror for negotiated acquisitions including--
(A) Orders placed under multiple-award IDIQ contracts where the
contracting officer requested rerepresentation for the order (see 13
CFR 127.603(c)(1)); and
(B) Orders set aside for EDWOSB or WOSB concerns under multiple-
award IDIQ contracts that are not partially or totally set aside or
reserved for EDWOSB or WOSB concerns (see 13 CFR 127.603(c)(1)), except
for orders and blanket purchase agreements placed under a Federal
Supply Schedule contract (see 8.405 and 19.302(d)(5)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
* * * * *
[FR Doc. 2023-21317 Filed 10-2-23; 8:45 am]
BILLING CODE 6820-EP-P
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