Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77737 

(i) Having adequate statutory 

authority for the contractual action; and 

(ii) Complying fully with the 

competition requirements of part 6 (see 

6.002). However, if the servicing agency 

is not subject to the Federal Acquisition 

Regulation, the requesting agency shall 

verify that contracts utilized to meet its 

requirements contain provisions 

protecting the Government from 

inappropriate charges (for example, 

provisions mandated for FAR agencies 

by part 31), and that adequate contract 

administration will be provided. 

(e) Nonsponsoring Federal agencies 

may use a Federally Funded Research 

and Development Center (FFRDC) only 

if the terms of the FFRDC’s sponsoring 

agreement permit work from other than 

a sponsoring agency. Work placed with 

the FFRDC is subject to the acceptance 

by the sponsor and must fall within the 

purpose, mission, general scope of 

effort, or special competency of the 

FFRDC. (See 35.017; see also 6.302 for 

procedures to follow where using other 

than full and open competition.) The 

nonsponsoring agency shall provide to 

the sponsoring agency necessary 

documentation that the requested work 

would not place the FFRDC in direct 

competition with domestic private 

industry. 

17.504 Reporting requirements. 

The senior procurement executive for 

each executive agency shall submit to 

the Director of OMB an annual report on 

interagency acquisitions, as directed by 

OMB. 

PART 18—EMERGENCY 

ACQUISITIONS 

■ 7. Amend section 18.113 by revising 

the section heading to read as follows: 

18.113 Interagency acquisitions. 

* * * * * 

PART 35—RESEARCH AND 

DEVELOPMENT CONTRACTING 

■ 8. Amend section 35.017–3 by 

revising the second sentence of 

paragraph (b) to read as follows: 

35.017–3 Using an FFRDC. 

* * * * * 

(b) * * * The nonsponsoring agency 

is responsible for making the 

determination required by 17.502–2(c) 

and providing the documentation 

required by 17.503(e). * * * 

PART 41—ACQUISITION OF UTILITY 

SERVICES 

■ 9. Revise section 41.206 to read as 

follows: 

41.206 Interagency agreements. 

Agencies shall use interagency 

agreements (e.g., consolidated purchase, 

joint use, or cross-service agreements) 

when acquiring utility service or 

facilities from other Government 

agencies and shall comply with the 

policies and procedures at 17.502–2, 

The Economy Act. 

[FR Doc. 2010–30561 Filed 12–10–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 19, and 52 

[FAC 2005–47; FAR Case 2009–019; Item 

IV; Docket 2010–0108, Sequence 1] 

RIN 9000–AL77 

Federal Acquisition Regulation; Small 

Disadvantaged Business SelfCertification 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to incorporate changes 

made by the Small Business 

Administration (SBA) to its Small 

Disadvantaged Business (SDB) Program. 

DATES: Effective Date: December 13, 

2010. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

February 11, 2011 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–47, FAR Case 

2009–019, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–019’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–019.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–019’’ on your attached 

document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Hada Flowers, 1275 

First Street, NE., Washington, DC 20417. 

Instructions: Please submit comments 

only and cite FAC 2005–47, FAR Case 

2009–019, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Karlos Morgan, Procurement Analyst, at 

(202) 501–2364. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–47, FAR Case 2009–019. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule amends the FAR to 

allow subcontractors on Federal 

contracts to self-represent their status as 

SDBs to prime contractors. SBA 

published an interim final rule in the 

Federal Register at 73 FR 57490, 

October 3, 2008, to allow SDB 

subcontractors to provide written 

statements to prime contractors 

representing in good faith their status as 

an SDB concern for the purposes of 

subcontract awards under Federal prime 

contracts. Under SBA’s previous 

regulation, only those firms that were 

certified by SBA as SDBs could 

participate as SDBs for Federal prime 

contract and subcontract opportunities. 

SBA stated that, effective October 3, 

2008, it would no longer serve as a 

source for SDB certification for firms 

seeking to establish themselves as SDBs. 

The revision to SBA’s regulation 

removed any uncertainty regarding SDB 

subcontractors’ ability to self-represent 

themselves in good faith to prime 

contractors. 

In order to maintain consistency 

between the SBA regulations and the 

FAR, the Councils are amending the 

FAR as outlined below: 

• FAR 2.101, Definitions: The term 

‘‘small disadvantaged business concern’’ 

is revised to be consistent with 13 CFR 

part 124, which continues to recognize 

small business concerns that have been 

certified by SBA, and to add language 

that allows small business concerns to 

self-represent their status as SDBs for 

subcontracts. 

• FAR 19.301–1, Representations by 

the offeror: Amended to update 

citations. 

• FAR 19.703, Eligibility 

requirements for participating in the 

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77738 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

program: Amended to add language that 

allows the contractor to rely on small 

business concerns to self-represent their 

status as SDBs for subcontracts. 

• FAR 52.219–8, Utilization of Small 

Business Concerns: Amended to include 

language that the small business 

concern can self-represent its SDB status 

in writing. 

• FAR 52.219–25, Small 

Disadvantaged Business Participation 

Program—Disadvantaged Status and 

Reporting: Amended to allow the 

contractor to accept written selfrepresentations of small disadvantaged 

status from subcontractors. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of the 

Executive Order 12866, Regulatory 

Planning and Review, dated September 

30, 1993. This rule is not a major rule 

under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

The Councils do not expect this 

interim 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, et seq., because this 

revision removes a requirement for 

SDBs to obtain SBA SDB certification 

prior to award of a subcontract. This 

change will be beneficial to SDBs 

because they will no longer have to 

incur the cost associated with a formal 

certification process. Therefore, an 

Initial Regulatory Flexibility Analysis 

has not been performed. The Councils 

invite comments from small business 

concerns and other interested parties on 

the expected impact of this rule on 

small entities. 

The Councils will also consider 

comments from small entities 

concerning the existing regulations in 

parts affected by this rule in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (FAC 

2005–47, FAR Case 2009–019) in all 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. chapter 35, 

et seq. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of 

Defense, the Administrator of General 

Services, and the Administrator of the 

National Aeronautics and Space 

Administration that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because the FAR 

currently prohibits small business 

concerns that are not certified by the 

SBA from participating as SDB concerns 

for subcontracting. This interim rule 

implements changes promulgated by the 

SBA and is necessary for the FAR to be 

consistent with SBA’s regulations 

pertaining to SDB certifications. 

However, pursuant to 41 U.S.C. 418b 

and FAR 1.501–3(b), the Councils will 

consider public comments received in 

response to this interim rule in the 

formation of the final rule. 

List of Subjects in 48 CFR Parts 2, 19, 

and 52 

Government procurement. 

Dated: November 24, 2010. 

Millisa Gary, 

Acting Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 19, and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 19, and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 2.101 in paragraph 

(b)(2), in the definition ‘‘Small 

disadvantaged business concern’’, by— 

■ a. Revising the introductory text and 

paragraph (1)(iii); 

■ b. Amending paragraph (2) by 

removing the period at the end of the 

paragraph and adding a semicolon in its 

place; and 

■ c. Adding paragraph (3). 

The revised and added text reads as 

follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Small disadvantaged business 

concern (except for 52.212–3(c)(4) and 

52.219–1(b)(2) for general statistical 

purposes and 52.212–3(c)(9)(ii), 52.219– 

22(b)(2), 52.219–22(b)(1)(C), and 

52.219–23(a)(3) for joint ventures under 

the price evaluation adjustment for 

small disadvantaged business concerns), 

consistent with 13 CFR 124.1002, means 

an offeror, that is a small business under 

the size standard applicable to the 

acquisition; and either— 

(1) * * * 

(iii) It is identified, on the date of its 

representation, as a certified small 

disadvantaged business concern in the 

CCR Dynamic Small Business Search 

data base maintained by the Small 

Business Administration; 

* * * * * 

(3) It represents in writing that it 

qualifies as a small disadvantaged 

business (SDB) for any Federal 

subcontracting program if it believes in 

good faith that it is owned and 

controlled by one or more socially and 

economically disadvantaged individuals 

and meets the SDB eligibility criteria of 

13 CFR 124.1002. 

* * * * * 

PART 19—SMALL BUSINESS 

PROGRAMS 

19.301–1 [Amended] 

■ 3. Amend section 19.301–1 in 

paragraph (d), in the last sentence, by 

removing ‘‘13 CFR 124.1011’’ and adding 

‘‘13 CFR 124.1004’’ in its place. 

■ 4. Amend section 19.703 by removing 

from paragraph (a)(1) ‘‘HUBZone small 

business,’’ and adding ‘‘HUBZone small 

business, small disadvantaged 

business,’’ in its place; removing from 

paragraph (a)(2), in the second sentence, 

‘‘13 CFR 124.1015 through 124.1022’’ 

and adding ‘‘13 CFR 124.1007 through 

124.1014’’ in its place; and revising 

paragraph (b) to read as follows: 

19.703 Eligibility requirements for 

participating in the program. 

* * * * * 

(b) A contractor acting in good faith 

may rely on the written representation 

of its subcontractor regarding the 

subcontractor’s status as a small 

business, small disadvantaged business, 

veteran-owned small business, servicedisabled veteran-owned small business, 

or a woman-owned small business 

concern. The contractor, the contracting 

officer, or any other interested party can 

challenge a subcontractor’s size status 

representation by filing a protest, in 

accordance with 13 CFR 121.1001 

through 121.1008. Protests challenging a 

subcontractor’s small disadvantaged 

business representation must be filed in 

accordance with 13 CFR 124.1007 

through 124.1014. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 5. Amend section 52.212–5 by 

revising the date of the clause; removing 

from paragraph (b)(11) ‘‘(MAY 2004)’’, 

and adding ‘‘(DEC 2010)’’ in its place; 

removing from paragraph (e)(1)(ii) 

‘‘(October 2000)’’, and adding ‘‘(DEC 

mstockstill on DSKH9S0YB1PROD with RULES3

Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77739 

2010)’’ in its place; revising the date of 

Alternate II; and removing from 

Alternate II, paragraph (e)(1)(ii)(C) 

‘‘(MAY 2004)’’ and adding ‘‘(DEC 2010)’’ 

in its place. 

The revised text reads as follows: 

52.212–5 Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial Items 

(DEC 2010) 

* * * * * 

Alternate II (DEC 2010). * * * 

* * * * * 

■ 6. Amend section 52.213–4 by 

revising the date of the clause, and 

paragraph (a)(2)(vii) to read as follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other Than Commercial 

Items) (DEC 2010) 

(a) * * * 

(2) * * * 

(vii) 52.244–6, Subcontracts for 

Commercial Items (DEC 2010). 

* * * * * 

■ 7. Amend section 52.219–8 by— 

■ a. Revising the date of the clause; and 

■ b. In paragraph (c), in the definition 

‘‘Small disadvantaged business 

concern’’, by redesignating paragraphs 

(1) through (4) as paragraphs (1)(i) 

through (iv), respectively, and revising 

the newly redesignated paragraph 

(1)(iv); and adding paragraph (2). 

The revised and added text reads as 

follows: 

52.219–8 Utilization of Small Business 

Concerns. 

* * * * * 

Utilization of Small Business Concerns 

(DEC 2010) 

* * * * * 

(c) * * * 

* * * * * 

Small disadvantaged business concern 

* * * 

(1)(i) * * * 

(iv) It is identified, on the date of its 

representation, as a certified small 

disadvantaged business in the CCR Dynamic 

Small Business Search database maintained 

by the Small Business Administration, or 

(2) It represents in writing that it qualifies 

as a small disadvantaged business (SDB) for 

any Federal subcontracting program, and 

believes in good faith that it is owned and 

controlled by one or more socially and 

economically disadvantaged individuals and 

meets the SDB eligibility criteria of 13 CFR 

124.1002. 

* * * * * 

■ 8. Amend section 52.219–25 by 

revising the date of the clause; revising 

the second sentence of paragraph (a); 

redesignating paragraph (b) as paragraph 

(c); and adding a new paragraph (b) to 

read as follows: 

52.219–25 Small Disadvantaged Business 

Participation Program—Disadvantaged 

Status and Reporting. 

* * * * * 

Small Disadvantaged Business 

Participation Program—Disadvantaged 

Status and Reporting (DEC 2010) 

(a) * * * The Contractor shall obtain 

representations of small disadvantaged status 

from joint venture partners, teaming 

arrangement members, and subcontractors 

(see exception in paragraph (b) of this 

section) through use of a provision 

substantially the same as paragraph (b)(1)(i) 

of the provision at FAR 52.219–22, Small 

Disadvantaged Business Status. * * * 

(b) For subcontractors that are not certified 

as a small disadvantaged business by the 

Small Business Administration, the 

Contractor shall accept the subcontractor’s 

written self-representation as a small 

disadvantaged business, unless the 

Contractor has reason to question the selfrepresentation. 

* * * * * 

■ 9. Amend section 52.244–6 by 

revising the date of the clause; and 

removing from paragraph (c)(1)(iii) 

‘‘(MAY 2004)’’ and adding ‘‘(DEC 2010)’’ 

in its place. 

The revised text reads as follows: 

52.244–6 Subcontracts for Commercial 

Items. 

* * * * * 

Subcontracts for Commercial Items 

(DEC 2010) 

* * * * * 

[FR Doc. 2010–30563 Filed 12–10–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 9 and 52 

[FAC 2005–47; FAR Case 2009–036; Item 

V; Docket 2010–0109, Sequence 1] 

RIN 9000–AL75 

Federal Acquisition Regulation; 

Uniform Suspension and Debarment 

Requirement 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council (the 

Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

815 of the National Defense 

Authorization Act for Fiscal Year 2010. 

Section 815 extends the flowdown of 

the restriction on subcontracting to 

lower tier subcontractors that have been 

suspended or debarred, with some 

exceptions for contracts for the 

acquisition of commercial items and 

commercially available off-the-shelf 

items. 

DATES: Effective Date: December 13, 

2010. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

February 11, 2011 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–47, FAR Case 

2009–036, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–036’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search’’. Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–036’’. Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–036’’ on your attached 

document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Hada Flowers, 1275 

First Street, NE., Washington, DC 20417. 

mstockstill on DSKH9S0YB1PROD with RULES3