Rule2024-26055
Defense Federal Acquisition Regulation: Past Performance of Affiliate Companies of Small Business Concerns (DFARS Case 2024-D016)
Primary source
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Published
November 15, 2024
Effective
November 15, 2024
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2024 that provides direction to contracting officers evaluating the past performance of small business concerns.
Full Text
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<title>Federal Register, Volume 89 Issue 221 (Friday, November 15, 2024)</title>
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[Federal Register Volume 89, Number 221 (Friday, November 15, 2024)]
[Rules and Regulations]
[Pages 90237-90238]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-26055]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 215
[Docket DARS-2024-0035]
RIN 0750-AM13
Defense Federal Acquisition Regulation: Past Performance of
Affiliate Companies of Small Business Concerns (DFARS Case 2024-D016)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2024 that provides
direction to contracting officers evaluating the past performance of
small business concerns.
DATES: Effective November 15, 2024.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly R. Ziegler, telephone
703-901-3176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is issuing a final rule amending the DFARS to implement section
865 of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2024 (Pub. L. 118-31). Section 865 requires DoD contracting
officers to consider relevant past performance of affiliate companies
of small business concerns during the evaluation of past performance in
response to a competitive solicitation.
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed
Regulations. Subsection (a)(1) of the statute requires that a
procurement policy, regulation, procedure, or form (including an
amendment or modification thereof) must be published for public comment
if it relates to the expenditure of appropriated funds and has either a
significant effect beyond the internal operating procedures of the
agency issuing the policy, regulation, procedure, or form, or has a
significant cost or administrative impact on contractors or offerors.
This final rule is not required to be published for public comment,
because there is no significant cost or administrative impact on
contractors or offerors. When past performance will be evaluated in a
source selection, contracting officers already request offerors to
submit past performance information. This rule will allow offerors to
provide past performance information for an affiliate company within
that submission, and the Government would consider those submissions
during the existing evaluation process.
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 final rule does not create any new solicitation provisions or
contract clauses. It does not impact any existing solicitation
provisions or contract clauses or their applicability to contracts
valued at or below the simplified acquisition threshold, for commercial
products including COTS items, or for commercial services.
IV. 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.
V. 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 will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
Under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
this final rule does not constitute a significant DFARS revision within
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require
publication for public comment.
VII. Paperwork Reduction Act
This final 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 215
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System amends 48 CFR
part 215 as follows:
[[Page 90238]]
PART 215--CONTRACTING BY NEGOTIATION
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1. The authority citation for 48 CFR part 215 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
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2. Revise and republish section 215.305 to read as follows:
215.305 Proposal evaluation.
(a)(2) Past performance evaluation. (A) When a past performance
evaluation is required by FAR 15.304, and the solicitation includes the
clause at FAR 52.219-8, Utilization of Small Business Concerns, the
evaluation factors shall include the past performance of offerors in
complying with requirements of that clause. When a past performance
evaluation is required by FAR 15.304, and the solicitation includes the
clause at FAR 52.219-9, Small Business Subcontracting Plan, the
evaluation factors shall include the past performance of offerors in
complying with requirements of that clause.
(B) Contracting officers shall consider an offeror's failure to
make a good faith effort to comply with its comprehensive
subcontracting plan under the Test Program described at 219.702-70 as
part of the evaluation of the past performance.
(C) When evaluating the past performance of an offeror that is a
small business concern in response to a competitive solicitation,
contracting officers shall consider relevant past performance
information provided for affiliates of the offeror.
[FR Doc. 2024-26055 Filed 11-14-24; 8:45 am]
BILLING CODE 6001-FR-P
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</html>Indexed from Federal Register on November 15, 2024.
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