Proposed Rule2024-23230
Defense Federal Acquisition Regulation Supplement: 8(a) Program (DFARS Case 2024-D025)
Primary source
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Published
October 10, 2024
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to revise joint venture eligibility requirements and nonmanufacturer rule applicability to 8(a) contracts awarded pursuant to the 8(a) Partnership Agreement between DoD and the Small Business Administration. These changes are necessary to align the DFARS with the Federal Acquisition Regulation (FAR).
Full Text
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<title>Federal Register, Volume 89 Issue 197 (Thursday, October 10, 2024)</title>
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[Federal Register Volume 89, Number 197 (Thursday, October 10, 2024)]
[Proposed Rules]
[Pages 82196-82198]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23230]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
[Docket DARS-2024-0032]
RIN 0750-AM22
Defense Federal Acquisition Regulation Supplement: 8(a) Program
(DFARS Case 2024-D025)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to revise joint venture eligibility
requirements and nonmanufacturer rule applicability to 8(a) contracts
awarded pursuant to the 8(a) Partnership Agreement between DoD and the
Small Business Administration. These changes are necessary to align the
DFARS with the Federal Acquisition Regulation (FAR).
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before December 9, 2024, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2024-D025, using
either of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for DFARS Case 2024-D025. Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2024-
D025'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#8ee1fdeaa0eae8effcfdcee3efe7e2a0e3e7e2"><span class="__cf_email__" data-cfemail="a3ccd0c78dc7c5c2d1d0e3cec2cacf8dcecacf">[email protected]</span></a>. Include DFARS Case 2024-D025 in
the subject line of the message.
Comments received generally will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. 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.
[[Page 82197]]
FOR FURTHER INFORMATION CONTACT: Jeanette Snyder, telephone 703-508-
7524.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to align with changes made to
the FAR via the final rules published in the Federal Register on August
11, 2021 (86 FR 44233) and on September 23, 2022 (87 FR 58219). The
final rule for FAR Case 2016-011, Revision of Limitations on
Subcontracting, published on August 11, 2021, standardized the
application of the nonmanufacturer rule requirements for the
socioeconomic programs identified at FAR 19.000(a)(3). The final rule
for FAR Case 2017-019, Policy on Joint Ventures, published on September
23, 2022, clarified the eligibility of joint ventures under the 8(a)
Program.
This rule is also proposing to revise the DFARS to align with the
proposed rule for FAR Case 2021-020, Limitations on Subcontracting
Revisions, published on January 17, 2024 (89 FR 2910). This FAR rule
proposed to remove the nonmanufacturer rule requirements for 8(a)
participants from FAR 19.809-2 as was intended to be accomplished via
the final rule published on August 11, 2021, and to remove the kit
assembler rule set from the nonmanufacturer rule. This DFARS rule
proposes to make similar changes.
II. Discussion and Analysis
This rule proposes to modify the contract clause at DFARS 225.219-
7010, Notification of Competition Limited to Eligible 8(a)
Participants--Partnership Agreement, to add joint ventures to the list
of concerns from whom offers are solicited for 8(a) Program
acquisitions that are processed in accordance with the 8(a) Partnership
Agreement between DoD and the Small Business Administration (SBA) (the
Agreement). This proposed rule also includes the removal of the kit
assembler rule set and the nonmanufacturer rule requirements addressed
in paragraphs (d)(1), (d)(2), and (d)(3) of the clause at DFARS
252.219-7010 to align with the clause at FAR 52.219-33, Nonmanufacturer
Rule, which specifies the nonmanufacturer rule requirements for all
socioeconomic categories.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
This proposed rule amends the clause at DFARS 225.219-7010,
Notification of Competition Limited to Eligible 8(a) Participants--
Partnership Agreement; however, this proposed rule does not impose any
new requirements on contracts at or below the SAT, for commercial
products including COTS items, or for commercial services. The clause
will continue to not apply to acquisitions at or below the SAT and will
continue to apply to acquisitions of commercial products including COTS
items, and to acquisitions of commercial services.
IV. Expected Impact of the Rule
This proposed rule, when finalized, is expected to impact 8(a)
participants, including 8(a) joint ventures, who enter into contracts
with DoD that are processed in accordance with the Agreement. These
participants will be required to comply with the nonmanufacturer rule
requirements in the clause at FAR 52.219-33. As a result, DoD may see
an increase in the number of 8(a) participants that submit proposals
for contracts processed in accordance with the Agreement, which may
expand the defense industrial base.
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, as amended.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule, when finalized, 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, et
seq., because this rule merely updates the DFARS to align with the FAR.
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
This proposed rule is necessary to revise the contract clause at
DFARS 252.219-7010, Notification of Competition Limited to Eligible
8(a) Participants--Partnership Agreement, to align with changes made to
the FAR regarding joint venture eligibility for 8(a) Program
acquisitions processed in accordance with the 8(a) Partnership
Agreement between DoD and the Small Business Administration (SBA). This
proposed rule also removes the nonmanufacturer rule requirements from
the clause to align with changes made to the FAR.
The objective of the rule is to revise the DFARS to align with
amendments made to the FAR. The legal basis for the rule is 41 U.S.C.
1303.
According to data from the Procurement Business Intelligence
Service, in the last three fiscal years DoD awarded contracts that
included the clause at DFARS 252.219-7010 to unique small entities as
follows: 848 in fiscal year 2021; 553 in fiscal year 2022; 600 in
fiscal year 2023. This averages out to 667 per fiscal year. Therefore,
DoD estimates that the number of small entities to which this rule will
apply is approximately 667.
This proposed rule does not impose any new reporting,
recordkeeping, or other compliance requirements for small entities.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
DoD did not identify any significant alternatives to the proposed
rule. Any impact is expected to be beneficial.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this proposed rule on
small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this proposed rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2024-
D025), in correspondence.
VII. Paperwork Reduction Act
This proposed 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. chapter 35).
List of Subjects in 48 CFR Part 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System proposes to
amend 48 CFR part 252 as follows:
[[Page 82198]]
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Revise and republish section 252.219-7010 to read as follows:
252.219-7010 Notification of Competition Limited to Eligible 8(a)
Participants--Partnership Agreement.
As prescribed in 219.811-3(2), use the following clause:
Notification of Competition Limited to Eligible 8(a) Participants--
Partnership Agreement (DATE)
(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.
(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.
(iii) If the competition is to be limited to 8(a) concerns
within one or more specific SBA regions or districts, then the
Offeror's approved business plan is on file and serviced by ___.
[Contracting Officer completes by inserting the appropriate SBA
District and/or Regional Office(s) as identified 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, and that has
a joint venture agreement 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 an SBA mentor-prot[eacute]g[eacute] 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) With a joint venture agreement that complies with 13 CFR
124.513(c).
(b) By submission of its offer, the Offeror represents that it
meets the applicable criteria set forth in paragraph (a) of this
clause.
(c) Any award resulting from this solicitation will be made
directly by the Contracting Officer to the successful 8(a) offeror
selected through the evaluation criteria set forth in this
solicitation.
(d) The ___ [insert name of SBA's contractor] will notify the
___ [insert name of contracting agency] Contracting Officer in
writing immediately upon entering an agreement (either oral or
written) to transfer all or part of its stock or other ownership
interest to any other party.
(End of clause)
[FR Doc. 2024-23230 Filed 10-9-24; 8:45 am]
BILLING CODE 6001-FR-P
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