Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Rules and Regulations 69523 

■ b. Removing from paragraph (a)(2)(vii) 

‘‘(SEP 2023)’’ and adding ‘‘ (NOV 2023)’’ 

in its place; 

■ c. Redesignating paragraphs (b)(1)(i) 

through (xxi) as paragraphs (b)(1)(ii) 

through (xxii); and 

■ d. Adding a new paragraph (b)(1)(i). 

The revision and addition read as 

follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Products and Commercial 

Services). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other than Commercial 

Products and Commercial Services) (NOV 

2023) 

* * * * * 

(b) * * * 

(1) * * * 

(i) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712); this clause does not apply to contracts 

of DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community—see FAR 3.900(a). 

* * * * * 

■ 22. Amend section 52.244–6 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (c)(1)(iii) 

through (xxi) as paragraphs (c)(1)(iv) 

through (xxii); and 

■ c. Adding a new paragraph (c)(1)(iii). 

The revision and addition read as 

follows: 

52.244–6 Subcontracts for Commercial 

Products and Commercial Services. 

* * * * * 

Subcontracts for Commercial Products and 

Commercial Services (NOV 2023) 

* * * * * 

(c)(1) * * * 

(iii) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712); this clause does not apply to contracts 

of DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community—see FAR 3.900(a). 

* * * * * 

[FR Doc. 2023–21321 Filed 10–4–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 19 

[FAC 2023–06, FAR Case 2021–012, Item 

III; Docket No. FAR–2021–0012; Sequence 

No. 1] 

RIN 9000–AO29 

Federal Acquisition Regulation: 8(a) 

Program 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement regulatory changes made by 

the Small Business Administration to 

update and clarify requirements 

associated with the 8(a) program. 

DATES: Effective November 6, 2023. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Dana Bowman, Procurement Analyst, at 

202–803–3188 or by email at 

dana.bowman@gsa.gov, for clarification 

of content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat Division at 

202–501–4755 or GSARegSec@gsa.gov. 

Please cite FAC 2023–06, FAR Case 

2021–012. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 87 FR 76598 on 

December 15, 2022, to implement 

regulatory changes made by the Small 

Business Administration (SBA), in its 

final rule published in the Federal 

Register at 85 FR 66146 on October 16, 

2020. SBA initiated a review of its 

regulations in response to the prior 

administration’s Governmentwide 

regulatory reform initiative. As a result, 

SBA revised the 8(a) program 

regulations to more clearly articulate 

SBA’s intent with regard to certain 

aspects of the 8(a) program to eliminate 

confusion and decrease burdens on 

procuring activities and 8(a) 

participants. 

One respondent submitted comments 

in response to the proposed rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule; however, 

no changes were made as a result of the 

public comments received. A discussion 

of the comments received is provided as 

follows: 

A. Summary of Significant Changes 

There are no significant changes from 

the proposed rule. 

B. Analysis of Public Comments 

1. Support for the Rule 

Comment: The respondent expressed 

support for the rule. 

Response: The Councils acknowledge 

the respondent’s support for the rule. 

2. Negative Impacts of the Rule 

Comment: The respondent indicated 

that moving contracts from the 8(a) 

Program inflicts harm on small 

businesses that are dependent upon 

those contracts for their growth and 

viability. The respondent indicated that 

it has had its contracts moved out of the 

8(a) program into ‘‘new’’ contracts or 

limited competition contract vehicles, 

not available to all 8(a) program 

participants. The respondent indicated 

further that it is not always aware that 

a contract was to be moved to a limited 

competition contract, and if it was not 

a contract holder on that contract, then 

it could not pursue the opportunity. The 

respondent indicated that this can cause 

serious harm to small businesses that 

are counting on that revenue. The 

respondent stated that requiring 

notification to the SBA that a contract 

is being removed from the 8(a) Program 

is a positive step, but that it does not 

decrease the harm being done to a small 

business that is losing the contract. The 

respondent concluded that, overall, the 

proposed revisions are positive, but 

removing contracts from the 8(a) 

Program is detrimental to small 

businesses that are the backbone of the 

defense industrial base. 

Response: The Councils acknowledge 

the respondent’s concerns regarding the 

impact of moving contracts out of the 

8(a) Program. This rule implements 

SBA’s regulatory changes made in its 

final rule published at 85 FR 66146 on 

October 16, 2020, that clarified certain 

aspects of the 8(a) Program. To ensure 

procurements are not removed from the 

8(a) Program without SBA consent, this 

rule adds a requirement for contracting 

officers to notify SBA of follow-on, non8(a) procurements, and specifies that 

contracting officers should notify SBA 

when a mandatory source will be 

utilized for a follow-on to an 8(a) 

contract. This rule also clarifies that 


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69524 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Rules and Regulations 

SBA may appeal a contracting officer’s 

decision that an acquisition previously 

procured under the 8(a) Program is a 

new requirement not subject to the 

release requirements. However, and as 

stated in SBA’s preamble, these changes 

do not modify existing 8(a) Program 

requirements; instead, they emphasize 

the requirement for SBA to agree to 

release a requirement from the 8(a) 

Program. 

C. Other Changes 

Minor editorial changes to the 

proposed rule were made at FAR 

19.815(d), (e), and (f). 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and 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 rule updates and clarifies 

requirements associated with the 8(a) 

program to eliminate confusion among 

8(a) concerns and procuring activities. 

Contracting officers are required to 

submit blanket purchase agreements 

(BPAs) issued under FAR part 13 and 

FAR part 13 BPA orders in the 8(a) 

Program to SBA for acceptance. 

Contracting officers are also required to 

notify SBA of follow-on, non-8(a) 

procurements, and should notify SBA 

when a mandatory source will be 

utilized for a follow-on to an 8(a) 

contract. Additionally, the SBA 

certificate of competency program does 

not apply to 8(a) sole-source awards; 

therefore, contracting officers will no 

longer be required to submit these 

actions to SBA. The impact of these 

changes is expected to be beneficial to 

the Government, contractors, and 

offerors as 8(a) program requirements 

are clarified, and ambiguities are 

reduced for small business entities and 

procuring activities. 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. Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801–808) requires interim and 

final rules to be submitted to Congress 

before the rule takes effect. DoD, GSA, 

and NASA will send this rule to each 

House of the Congress and to the 

Comptroller General of the United 

States. The Office of Information and 

Regulatory Affairs (OIRA) in the Office 

of Management and Budget has 

determined that this is not a major rule 

under 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. The 

FRFA is summarized as follows: 

DoD, GSA, and NASA are issuing a final 

rule to amend the Federal Acquisition 

Regulation (FAR) to implement regulatory 

changes made by the Small Business 

Administration (SBA) to the 8(a) Program in 

its final rule dated October 16, 2020 (85 FR 

66146). SBA revised its 8(a) program 

regulations to eliminate confusion among 

small businesses and procuring activities. 

The final rule clarifies that the certificate of 

competency program is not applicable to 8(a) 

sole-source awards. Additionally, the final 

rule adds a requirement for the contracting 

officer to submit an offering letter for blanket 

purchase agreements (BPAs) and orders 

placed under BPAs under the 8(a) Program to 

SBA, and for SBA to accept such offers. The 

rule also clarifies an 8(a) concern’s eligibility 

for two-step design build acquisitions and 

sole-source awards made under the 8(a) 

program. The rule also requires the procuring 

activity to submit a notification to SBA when 

a contracting officer determines that a 

procurement, previously procured under the 

8(a) program, is a new requirement that is not 

subject to SBA release requirements. The rule 

also requires a notification when the 

procuring activity intends to procure a 

follow-on to an 8(a) procurement using an 

existing limited competition contract vehicle, 

not available to all 8(a) program participants, 

when the current or previous 8(a) contract 

was available to all 8(a) participants. This 

rule also specifies that SBA reserves the right 

to appeal these decisions. 

There were no significant issues raised by 

the public comments in response to the 

initial regulatory flexibility analysis. 

This final rule will impact 8(a) Program 

participants and the Government by 

clarifying the 8(a) Program regulations and 

ensuring follow-on requirements to 8(a) 

procurements remain in the 8(a) Program 

when appropriate. Based on data in the 

System for Award Management, the 

estimated number of 8(a) small businesses is 

5,217, and the estimated number of 8(a) joint 

ventures is 384. Therefore, the estimated 

number of total small entities to which the 

rule applies is 5,601. According to the 

Federal Procurement Data System, 7,473 8(a) 

sole-source awards and 1,088 competitive 

8(a) awards were made in FY 2020, and 6,369 

8(a) sole-source awards and 1,251 

competitive 8(a) awards were made in FY 

2021, and 5,752 8(a) sole-source awards and 

1,056 competitive 8(a) awards were made in 

FY 2022. This averages out to 6,531 8(a) solesource awards and 1,132 competitive 8(a) 

awards made in the last three fiscal years. 

This rule does not include any new 

reporting, recordkeeping, or other 

compliance requirements for small entities. 

There are no known significant alternative 

approaches that would accomplish the stated 

objectives. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat Division. The Regulatory 

Secretariat Division has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

VIII. 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 

amend 48 CFR part 19 as set forth 

below: 

PART 19—SMALL BUSINESS 

PROGRAMS 

■ 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. 

19.601 [Amended] 

■ 2. Amend section 19.601 by— 

■ a. Removing from paragraph (b) the 

phrase ‘‘Small Business Administration 

(SBA)’’ and adding ‘‘SBA’’ in its place; 

and 

■ b. Removing from the first sentence of 

paragraph (c) the phrase ‘‘Government 

acquisitions’’ and adding ‘‘Government 

acquisitions except for 8(a) sole-source 

awards’’ in its place and removing from 

the second sentence of paragraph (c) the 

word ‘‘also’’. 


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Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Rules and Regulations 69525 

■ 3. Revise section 19.804–5 to read as 

follows: 

19.804–5 Basic ordering agreements and 

blanket purchase agreements. 

(a) The contracting office shall submit 

an offering letter for, and SBA must 

accept, each order under a basic 

ordering agreement (BOA) or a blanket 

purchase agreement (BPA) issued under 

part 13 (see 13.303), in addition to the 

agency offering and SBA accepting the 

BOA or BPA itself. 

(b) SBA will not accept for award on 

a sole-source basis any order that would 

cause the total dollar amount of orders 

issued under a specific BOA or BPA to 

exceed the competitive threshold 

amount in 19.805–1. 

(c) Once an 8(a) participant’s program 

term expires, the participant otherwise 

exits the 8(a) program, or becomes other 

than small for the NAICS code assigned 

under the BOA or the BPA, SBA will 

not accept new orders under the BOA or 

BPA for the participant. 

■ 4. Amend section 19.805–2 by— 

■ a. Revising the second sentence in 

paragraph (b) introductory text; 

■ b. Redesignating paragraph (b)(2) as 

paragraph (b)(3); and 

■ c. Adding a new paragraph (b)(2). 

The revision and addition read as 

follows: 

19.805–2 Procedures. 

* * * * * 

(b) * * * Eligibility is based on 

section 8(a) program criteria (see 13 CFR 

124.501(g) and 19.816(c)). * * * 

(2) For a two-step design-build 

procurement, an 8(a) participant must 

be eligible for award under the 8(a) 

program on the initial date for receipt of 

phase one offers specified in the 

solicitation (see 13 CFR 124.507(d)(3)). 

* * * * * 

■ 5. Amend section 19.808–1 by— 

■ a. Redesignating paragraph (e) as 

paragraph (f); 

■ b. Adding a new paragraph (e); and 

■ c. Removing from the newly 

redesignated paragraph (f) the phrase 

‘‘sole source award’’ and adding ‘‘solesource award’’ in its place. 

The addition reads as follows: 

19.808–1 Sole source. 

* * * * * 

(e) A concern must be a current 

participant in the 8(a) program at the 

time of an 8(a) sole-source award. 

* * * * * 

■ 6. Revise section 19.808–2 to read as 

follows: 

19.808–2 Competitive. 

In competitive 8(a) acquisitions, 

including follow-on 8(a) acquisitions, 

subject to part 15, the contracting officer 

conducts negotiations directly with the 

competing 8(a) participants. Conducting 

competitive negotiations among eligible 

8(a) participants prior to SBA’s formal 

acceptance of the acquisition for the 8(a) 

program may be grounds for the SBA’s 

not accepting the acquisition for the 8(a) 

program. 

■ 7. Amend section 19.810 by adding 

paragraph (a)(4) to read as follows: 

19.810 SBA appeals. 

(a) * * * 

(4) A contracting officer’s decision 

that an acquisition previously procured 

under the 8(a) program is a new 

requirement not subject to the release 

requirements at 13 CFR 124.504(d)(1) 

(see 19.815(a) and (d)(1)). 

* * * * * 

■ 8. Amend section 19.815 by— 

■ a. Revising the section heading and 

paragraph (a); 

■ b. Removing from paragraph (b) the 

phrase ‘‘a non-8(a) procurement’’ and 

adding ‘‘a follow-on, non-8(a) 

procurement,’’ in its place; and 

■ c. Adding paragraphs (d) through (f). 

The revisions and additions read as 

follows: 

19.815 Release and notification 

requirements for non-8(a) procurement. 

(a) Once a requirement has been 

accepted by SBA into the 8(a) program, 

any follow-on requirements (see 

definition at 13 CFR 124.3) shall remain 

in the 8(a) program unless— 

(1) SBA agrees to release the 

requirement from the 8(a) program for a 

follow-on, non-8(a) procurement in 

accordance with 13 CFR 124.504(d) (see 

paragraph (b) of this section); or 

(2) There is a mandatory source (see 

8.002 or 8.003; also see paragraph (f) of 

this section). 

* * * * * 

(d)(1) When a contracting officer 

decides that a requirement previously 

procured under the 8(a) program is a 

new requirement and not a follow-on 

requirement to an 8(a) contract(s), the 

contracting officer shall coordinate with 

and submit a written notice to the SBA 

District Office servicing the 8(a) 

incumbent firm and to the SBA 

procurement center representative (or, if 

a procurement center representative is 

not assigned, see 19.402(a)) indicating 

that the agency intends to procure the 

requirement outside the 8(a) program 

(see 19.810(a)(4)). 

(2) The written notice shall include a 

copy of the acquisition plan, if 

available; the performance work 

statement (PWS), statement of work 

(SOW), or statement of objectives (SOO) 

for the new contract requirement; and 

the values of the existing 8(a) contract(s) 

and the new contract requirement. 

(e)(1) When a contracting officer 

decides to procure a follow-on 

requirement to an 8(a) contract using an 

existing, limited competition 

contracting vehicle that is not available 

to all 8(a) participants, and the current 

or previous 8(a) contract was available 

to all 8(a) participants, the contracting 

officer shall coordinate with and submit 

a written notice to the SBA District 

Office servicing the 8(a) incumbent firm 

and to the SBA procurement center 

representative (or, if a procurement 

center representative is not assigned, see 

19.402(a)) indicating the intent to do so. 

(2) The written notice shall include a 

copy of the acquisition plan, if 

available; the PWS, SOW, or SOO for 

the new contract requirement; and the 

values of both contracts. 

(f)(1) When a mandatory source will 

be used for a follow-on requirement to 

an 8(a) contract, the contracting officer 

should submit a written notice to the 

SBA Associate Administrator for 

Business Development of the intent to 

do so at least 30 days prior to the end 

of the contract or order in accordance 

with 13 CFR 124.504(d)(4)(ii). 

(2) The written notice should include 

a written determination that a 

mandatory source will be used to fulfill 

the requirement. 

19.816 [Amended] 

■ 9. Amend section 19.816 by removing 

from paragraph (c) the word ‘‘criteria’’ 

and adding ‘‘criteria (see 13 CFR 

124.507(d))’’ in its place. 

[FR Doc. 2023–21322 Filed 10–4–23; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 52 

[FAC 2023–06; Item IV; Docket No. FAR– 

2023–0052; Sequence No. 4] 

Federal Acquisition Regulation; 

Technical Amendments 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: This document makes an 

amendment to the Federal Acquisition 


ddrumheller on DSK120RN23PROD with RULES3