14568 Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 

(c) The contracting officer shall 

review acquisitions to determine if they 

can be set aside for small business, 

giving consideration to the 

recommendations of agency personnel 

having cognizance of the agency’s small 

business programs. The contracting 

officer shall perform market research 

and document why a small business setaside is inappropriate when an 

acquisition is not set aside for small 

business, unless an award is anticipated 

to a small business under the 8(a), 

HUBZone, or service-disabled veteranowned programs. If the acquisition is set 

aside for small business based on this 

review, it is a unilateral set-aside by the 

contracting officer. Agencies may 

establish threshold levels for this review 

depending upon their needs. 

* * * * * 

■ 6. Amend section 19.502–2 by adding 

a new first sentence and revising the last 

sentence of paragraph (a); and by 

revising the first sentence in paragraph 

(b) to read as follows: 

19.502–2 Total small business set-asides. 

(a) Before setting aside an acquisition 

under this paragraph, refer to 19.203(b). 

* * * The small business reservation 

does not preclude the award of a 

contract as described in 19.203. 

(b) Before setting aside an acquisition 

under this paragraph, refer to 

19.203(c). * * * 

* * * * * 

■ 7. Amend section 19.800 by revising 

paragraph (e) to read as follows: 

19.800 General. 

* * * * * 

(e) Before deciding to set aside an 

acquisition in accordance with subpart 

19.5, the contracting officer may 

consider offering the acquisition to a 

small business under the 8(a) Program 

in accordance with 19.203. 

* * * * * 

19.804–2 [Amended] 

■ 8. Amend section 19.804–2 by 

removing paragraph (a)(12); and 

redesignating paragraphs (a)(13) through 

(a)(16) as paragraphs (a)(12) through 

(a)(15), respectively. 

■ 9. Amend section 19.1305 by— 

■ a. Revising paragraph (a); 

■ b. Removing paragraph (c); 

■ c. Redesignating paragraphs (d) and 

(e) as paragraphs (c) and (d), 

respectively; and 

■ d. Removing from the newly 

redesignated paragraph (c) ‘‘(see subpart 

19.5)’’ and adding ‘‘(see 19.203)’’ in its 

place. 

The revised text reads as follows: 

19.1305 HUBZone set-aside procedures. 

(a) The contracting officer— 

(1) May set aside acquisitions 

exceeding the micro-purchase threshold 

for competition restricted to HUBZone 

small business concerns when the 

requirements of paragraph (b) of this 

section can be satisfied (see 19.203); and 

(2) Shall consider HUBZone set-asides 

before considering HUBZone sole 

source awards (see 19.1306) or small 

business set-asides (see subpart 19.5). 

* * * * * 

■ 10. Amend section 19.1306 by 

revising the introductory text of 

paragraph (a) to read as follows: 

19.1306 HUBZone sole source awards. 

(a) A contracting officer may award 

contracts to HUBZone small business 

concerns on a sole source basis (see 

6.302–5(b)(5)) before considering small 

business set-asides (see 19.203 and 

subpart 19.5), provided none of the 

exclusions at 19.1304 apply; and— 

* * * * * 

■ 11. Amend section 19.1405 by 

revising paragraph (a); and removing 

from paragraph (c) ‘‘(see Subpart 19.5)’’ 

and adding ‘‘(see 19.203)’’ in its place. 

The revised text reads as follows: 

19.1405 Service-disabled veteran-owned 

small business set-aside procedures. 

(a) The contracting officer— 

(1) May set-aside acquisitions 

exceeding the micro-purchase threshold 

for competition restricted to servicedisabled veteran-owned small business 

concerns when the requirements of 

paragraph (b) of this section can be 

satisfied (see 19.203); and 

(2) Shall consider service-disabled 

veteran-owned small business set-asides 

before considering service-disabled 

veteran-owned small business sole 

source awards (see 19.1406) or small 

business set-asides (see subpart 19.5). 

* * * * * 

■ 12. Amend section 19.1406 by 

revising the introductory text of 

paragraph (a) to read as follows: 

19.1406 Sole source awards to servicedisabled veteran-owned small business 

concerns. 

(a) A contracting officer may award 

contracts to service-disabled veteranowned small business concerns on a 

sole source basis (see 6.302–5(b)(6)), 

before considering small business setasides (see 19.203 and subpart 19.5) 

provided none of the exclusions of 

19.1404 apply and— 

* * * * * 

[FR Doc. 2011–5556 Filed 3–15–11; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 15 

[FAC 2005–50; FAR Case 2008–034; Item 

VI; Docket 2009–0035, Sequence 1] 

RIN 9000–AL44 

Federal Acquisition Regulation; Use of 

Commercial Services Item Authority 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA have 

adopted as final, without change, an 

interim rule amending the Federal 

Acquisition Regulation (FAR) to 

implement section 868 of the Duncan 

Hunter National Defense Authorization 

Act for Fiscal Year 2009. Section 868 

provides that the FAR shall be amended 

with respect to the procurement of 

commercial services, specifically 

services that are not offered and sold 

competitively in substantial quantities 

in the commercial marketplace, but are 

of a type offered and sold competitively 

in substantial quantities in the 

commercial marketplace. These services 

may be considered commercial items 

only if the contracting officer has 

determined in writing that the offeror 

has submitted sufficient information to 

evaluate, through price analysis, the 

reasonableness of the price for such 

services. The rule details the 

information the contracting officer may 

consider in order to make this 

determination. 

DATES: Effective Date: March 16, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward N. Chambers, Procurement 

Analyst, at (202) 501–3221 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–50, FAR Case 2008–034. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

74 FR 52852 on October 14, 2009, to 

implement section 868 of the Duncan 

Hunter National Defense Authorization 

Act for Fiscal Year 2009. The comment 

period closed on December 14, 2009. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 14569 

Four respondents submitted comments 

on the interim rule. 

II. Discussion/Analysis 

The analysis of public comments by 

the Defense Acquisition Regulations 

Council and the Civilian Agency 

Acquisition Council (the Councils) 

follows: 

A. Agree With the Rule 

Comment: One respondent agreed 

with the interim rule. The respondent 

believes including ‘‘services of a type’’ 

provides the Government with 

flexibility to access a wide variety of 

services with beneficial contracting 

methods. 

Response: The Councils acknowledge 

the respondent’s agreement with the 

interim rule. 

B. ‘‘Services of a Type’’ 

Comment: One respondent suggests 

adding a definition for ‘‘services of a 

type’’ and/or providing examples of 

‘‘services of a type.’’ 

Response: The Councils do not agree 

that definitions or examples are 

necessary to implement this case. The 

FAR definition of a ‘‘commercial item’’ 

adequately addresses what is and is not 

a commercial item. The contracting 

officer’s determination that a service is 

considered a ‘‘service of a type’’ is a 

determination made based on the 

circumstances surrounding a particular 

acquisition and is made on a case-bycase basis. 

C. Sold in the Commercial Marketplace 

Comment: One respondent also 

suggests qualifying the two references to 

the ‘‘commercial marketplace’’ in FAR 

15.403–1(c)(3)(ii)(A) as follows. The first 

reference would be followed by ‘‘by the 

offeror,’’ while the second reference 

would be followed by ‘‘by others than 

the offeror.’’ 

Response: The respondent’s suggested 

language changes go beyond the statute. 

D. Establishing Price Reasonableness 

1. Determination that the offeror has 

submitted sufficient information 

(15.403–1(c)(3)(ii)(A)). 

Comment: One respondent suggests 

that requiring a contracting officer 

determination that the offeror has 

submitted sufficient information to 

evaluate the reasonableness of the 

offered price will increase the 

contracting officer’s workload, may 

result in lengthy and unnecessary 

delays, and could reduce competition. 

Response: The determination is 

required by statute. 

2. Other relevant information (15.403– 

1(c)(3)(ii)(C)). 

Comment: One respondent believes 

that if a service is ‘‘of a type’’ sold in the 

commercial market place, but price 

reasonableness cannot be established, 

then that service would not benefit from 

the Truth in Negotiations Act exception 

for commercial items, and that such an 

outcome would cause tremendous 

confusion among contracting officers 

and potential offerors of commercial 

items. 

Response: If price reasonableness 

cannot be determined based on prices 

for similar commercial services, the 

services ‘‘of a type’’ cannot be 

determined to be commercial items 

(see 15.403–1(c)(3)(ii)(A)). In that case, 

the contracting officer would need to 

determine price reasonableness by 

requesting relevant cost or pricing data 

from the contractor. 

Comment: One respondent suggests 

that the requirement to provide cost 

information other than cost or pricing 

data could prove difficult for industry 

vendors, which may diminish the field 

of vendors. 

Response: Current FAR 15.402 policy 

requires that the contracting officer 

determine price reasonableness. This 

cost information can come in many 

forms (sales data, vendor quotations, 

historical data, etc.) and is usually on 

hand for a contractor. Consequently, 

providing this cost information will not 

present a burden sufficient to 

discourage industry vendors from 

seeking Government contracts. 

Comment: One respondent believes 

that if the contracting officer can request 

cost data, this additional work could 

result in significant delays in contract 

award, contract delivery schedule 

problems and higher prices. 

Response: The Councils acknowledge 

the respondent’s concern; however, the 

contracting officer is required to request 

appropriate cost or pricing data 

sufficient to determine price 

reasonableness. 

E. Location of Coverage 

Comment: One respondent suggested 

that this FAR change should be in FAR 

15.403–3 in lieu of 15.403–1. 

Response: The Councils believe the 

language belongs in FAR 15.403–1, 

since it is more closely aligned with the 

prohibition on obtaining cost or pricing 

data than the FAR section requiring 

information other than cost or pricing 

data. It is noted that these two sections 

complement each other and are often 

used congruently. 

III. Executive Order 12866 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify that this final 

rule will not 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 the 

rule does not impose any additional 

requirements on small businesses. This 

rule impacts the Government by 

requiring a new written determination 

by the contracting officer. The rule 

details the information the contracting 

officer may consider in order to make 

this determination. In addition, since 

the current FAR 15.403–3(a)(1) provides 

for contracting officers to obtain the 

relevant information necessary to 

determine price reasonableness, this 

final rule places no additional 

requirements on contractors. 

V. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) does apply; however 

these changes to the FAR do not impose 

additional information collection 

requirements to the paperwork burden 

previously approved under OMB 

Control Number 9000–0013, titled: Cost 

or Pricing Data Exemption. 

List of Subjects in 48 CFR Part 15 

Government procurement. 

Dated: March 4, 2011. 

Millisa Gary, 

Acting Director, Office of Governmentwide 

Acquisition Policy. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

amending 48 CFR part 15, which was 

published in the Federal Register at 74 

FR 52852 on October 14, 2009, is 

adopted as a final rule without change. 

[FR Doc. 2011–5557 Filed 3–15–11; 8:45 am] 

BILLING CODE P 


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