Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations 35719

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 1, 12, 14, 15, 19, 33, and

52

[FAC 97–06; FAR Case 97–004A]

RIN 9000–AH59

Federal Acquisition Regulation;

Reform of Affirmative Action in Federal

Procurement

AGENCY: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comment.

SUMMARY: The Department of Defense,

the General Services Administration,

and the National Aeronautics and Space

Administration have agreed to issue

Federal Acquisition Circular 97–06, as

an interim rule to make amendments to

the Federal Acquisition Regulation

(FAR) concerning programs for small

disadvantaged business (SDB) concerns.

These amendments conform to a

Department of Justice (DoJ) proposal to

reform affirmative action in Federal

procurement. DoJ’s proposal is designed

to ensure compliance with the

constitutional standards established by

the Supreme Court in Adarand

Constructors, Inc. v. Pena, 115 S. Ct.

2097 (1995). This regulatory action was

subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993. This

is a major rule under 5 U.S.C. 804.

DATES: Effective Date: October 1, 1998.

Applicability Date: The policies,

provisions, and clauses of this interim

rule are effective for all solicitations

issued on or after October 1, 1998.

Comment Date: Comments should be

submitted to the FAR Secretariat at the

address shown below on or before

August 31, 1998 to be considered in the

formulation of a final rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (MVR), 1800 F Street, NW,

Room 4035, Attn: Ms. Laurie Duarte,

Washington, DC 20405.

E-Mail comments submitted over the

Internet should be addressed to:

farcase.97–004A@gsa.gov

Please cite FAC 97–06, FAR case 97–

004A in all correspondence related to

this case.

FOR FURTHER INFORMATION CONTACT:

Ms. Victoria Moss, Procurement

Analyst, Federal Acquisition Policy

Division, General Services

Administration, 1800 F Street NW,

Washington DC 20405, Telephone:

(202) 501–4764

or

Mr. Mike Sipple, Procurement Analyst,

Contract Policy and Administration,

Director, Defense Procurement,

Department of Defense, 3060 Defense

Pentagon, Washington DC 20301–

3060, Telephone: (703) 695–8567.

For general information call the FAR

Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

In Adarand, the Supreme Court

extended strict judicial scrutiny to

Federal affirmative action programs that

use racial or ethnic criteria as a basis for

decisionmaking. In procurement, this

means that any use of race in the

decision to award a contract is subject

to strict scrutiny. Under strict scrutiny,

any Federal programs that make race a

basis for contract decisionmaking must

be narrowly tailored to serve a

compelling Government interest.

DoJ developed a proposed structure to

reform affirmative action in Federal

procurement designed to ensure

compliance with the constitutional

standards established by the Supreme

Court in Adarand. The DoJ proposal

was published in the Federal Register

for public notice and invitation for

comments at 61 FR 26042, May 23,

1996. The DoJ model is expected to be

implemented in several parts: revisions

to the FAR and the FAR supplements;

Small Business Administration (SBA)

regulations; and procurement

mechanisms and applicable factors

(percentages) determined by the

Department of Commerce (DoC). The

SBA regulations were published for

public comment on August 14, 1997 (62

FR 23584). This interim rule contains

certain FAR revisions. On May 9, 1997,

proposed amendments to the FAR,

based on the DoJ Model, were published

as a proposed rule in the Federal

Register (62 FR 25786). All public

comments received in response to the

proposed rule were considered in the

formulation of this interim rule. 143

letters containing approximately 222

comments were received in response to

the proposed rule. The following

significant changes were made to the

rule based on the comments received:

1. Changes were made to conform it

to the regulations issued by the Small

Business Administration. These changes

include conforming protest and appeal

and certification procedures in the FAR

to those prescribed by SBA.

2. Clarifying that the annual DoC

determination of procurement

mechanisms shall only affect

solicitations that are issued on or after

the effective date of the DoC

determination.

3. Clarifying that any decisions to

limit use of the mechanisms because of

a finding of undue burden will not

affect on-going acquisitions.

4. Clarifying that an individual or

business concern need only provide

supporting rationale in a request for an

undue burden determination.

5. Clarifying that fair market price

under the price evaluation adjustment

shall be determined in accordance with

the procedures in 15.404–1(b)

(referenced in 19.202–6).

6. Removing the prohibition against

use of the price evaluation adjustment

for acquisitions under the

Competitiveness Demonstration

Program.

7. Revising the provisions at 52.212–

3 and 52.219–1, and the clause at

52.219–23 to facilitate their use by all

agencies.

Other changes have been made to

make the rule effective at the earliest

practicable date, taking account of the

time required for SBA to determine

eligibility of SDB firms. This rule

implements the price evaluation

adjustment for SDB concerns. It is

anticipated that coverage pertaining to

the SDB participation program will be

issued 1 day following publication of

this rule under FAR Case 97–004B.

B. Regulatory Flexibility Act

These changes may 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

through the rule small business

concerns may be provided benefits in

Federal contracting. An Initial

Regulatory Flexibility Analysis (IRFA)

was prepared and submitted to the Chief

Counsel for Advocacy of the Small

Business Administration (SBA). A

summary of the IRFA was published

along with the FAR proposed rule in the

Federal Register at 62 FR 25786, May 9,

997. The economic impact associated

with certification and associated costs,

as well as other program requirements

addressed in the SBA’s changes to 13

CFR Parts 121, 124, and 134 have been

addressed in analyses prepared by the

SBA. The following information is

provided to update the IRFA related to

this FAR interim rule:

This interim rule would establish in the

FAR a procurement mechanism benefiting
35720 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations

small disadvantaged businesses (SDBs). The

mechanism is a price evaluation adjustment

of up to ten percent in certain Standard

Industrial Classification (SIC) Major Groups

as determined by the Department of

Commerce. This price evaluation adjustment

would be mandatory for those competitive

procurements to which it applied. It would

not, however, apply to several major

categories of acquisition, including, for

example, acquisitions within the simplified

acquisition threshold, acquisitions set aside

for small business, and acquisitions

conducted pursuant to the 8(a) program.

The main impact of the rule is expected to

be on SDBs seeking to obtain contracts from

Federal government agencies. The best

available estimate of the number of such

firms is 30,000. The basis for this estimate is

the IRFA prepared by SBA addressing the

changes to 13 CFR Parts 121, 124, and 134.

The anticipated costs for certification and

protest and appeal procedures are addressed

in SBA’s IRFA. The primary impact of this

interim rule is expected to be the increase in

contract awards to qualified firms and a

corresponding decrease in contract awards to

firms that are not qualified as SDBs.

Within the constraints imposed by the

need to implement the DoJ-proposed reforms,

the rule was crafted throughout to select

alternatives that would minimize any adverse

economic impact on small business.

A copy of the IRFA may be obtained

from the FAR Secretariat.

C. Paperwork Reduction Act

The Paperwork Reduction Act of 1995

(Pub. L. 104–13) applies because the

interim rule contains reporting and

recordkeeping requirements. Requests

for approval of new information

collection requirements were submitted

to the Office of Management and Budget

under 44 U.S.C. 3501, et seq. The

information collections required by this

rule were approved under clearance

9000–0150 through June 30, 2000.

Public comments concerning this

request were invited through a Federal

Register notice published on May 9,

1997. No comments were received.

D. Determination To Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

(DOD), the Administrator of General

Services (GSA), and the Administrator

of the National Aeronautics and Space

Administration (NASA) that urgent and

compelling reasons exist to promulgate

this interim rule without prior

opportunity for public comment. This

action is necessary to conform the FAR

to the model program designed by the

Department of Justice to ensure

compliance with Constitutional

standards established by the Supreme

Court and, thereby, avoid unnecessary

litigation. A proposed FAR rule on this

subject was published for public

comment at 62 FR 25786 on May 9,

1997. As a result of public comments

received in response to the proposed

rule, changes have been made to the

rule. This interim rule would qualify for

publication as a final rule; however,

further public comments are requested.

Pursuant to Public Law 98–577 and FAR

1.501, public comments received in

response to this interim rule will be

considered in the formation of the final

rule.

List of Subjects in 48 CFR Parts 1, 12,

14, 15, 19, 33, and 52

Government procurement.

Dated: June 23, 1998.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Federal Acquisition Circular—FAC 97–06

Federal Acquisition Circular (FAC) 97–06

is issued under the authority of the Secretary

of Defense, the Administrator of General

Services, and the Administrator for the

National Aeronautics and Space

Administration.

The policies, provisions, and clauses of

this interim rule are effective for all

solicitations issued on or after October 1,

1998.

Dated: June 17, 1998.

R.D. Kerrins,

Col., USA, Dep Director, Defense

Procurement.

Dated: June 16, 1998.

Ida M. Ustad,

Deputy Associate Administrator, Office of

Acquisition Policy, General Services

Administrator, Office of Acquisition Policy,

General Services Administration.

Dated: June 17, 1998.

Deidre A. Lee,

Associate Administrator for Procurement,

NASA.

Therefore, 48 CFR Parts 1, 12, 14, 15,

19, 33, and 52 are amended as set forth

below:

1. The authority citation for 48 CFR

Parts 1, 12, 14, 15, 19, 33, and 52

continues to read as follows:

Authority: 41 U.S.C. 486(c); 10 U.S.C.

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

PART 1—FEDERAL ACQUISITION

REGULATIONS SYSTEM

2. Section 1.106 is amended in the

table following the introductory

paragraph by adding, in numerical

order, the following entries:

1.106 OMB approval under the Paperwork

Reduction Act.

* * * * *

FAR segment OMB

control No.

* * * * *

52.219–22 ............................. 9000–0150

52.219–23 ............................. 9000–0150

* * * * *

PART 12—ACQUISITION OF

COMMERCIAL ITEMS

3. Section 12.301 is amended by

revising paragraph (b)(2) to read as

follows:

12.301 Solicitation provisions and

contract clauses for the acquisition of

commercial items.

* * * * *

(b) * * *

(2) The provision at 52.212–3, Offeror

Representations and CertificationsCommercial Items. This provision

provides a single, consolidated list of

certifications and representations for the

acquisition of commercial items and is

attached to the solicitation for offerors

to complete and return with their offer.

This provision may not be tailored

except in accordance with Subpart 1.4.

Use the provision with its Alternate I in

solicitations issued by DoD, NASA, or

the Coast Guard that are expected to

exceed the threshold at 4.601(a);

* * * * *

4. Section 12.303(b)(1) is revised to

read as follows:

12.303 Contract format.

* * * * *

(b) * * *

(1) Block 10 if a price evaluation

adjustment for small disadvantaged

business concerns is applicable (the

contracting officer shall indicate the

percentage(s) and applicable line

item(s)), or if set aside for emerging

small businesses;

* * * * *

PART 14—SEALED BIDDING

5. The section heading for 14.206 is

revised to read as set forth below.

14.206 Small business set-asides and

price evaluation adjustments for small

disadvantaged business concerns.

6. Section 14.502 is amended by

redesignating paragraph (b)(4) as (b)(5)

and adding a new (b)(4) to read as

follows:

14.502 Conditions for use.

* * * * *

(b) * * *
Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations 35721

(4) The use of the price evaluation

adjustment for small disadvantaged

business concerns (see Subpart 19.11).

* * * * *

PART 15—CONTRACTING BY

NEGOTIATION

7. Section 15.503 is amended by

revising paragraph (a)(2) to read as

follows:

15.503 Notifications to unsuccessful

offerors.

(a) * * *

(2) Preaward notices for small

business programs. In addition to the

notice in paragraph (a)(1) of this section,

when using a small business set-aside

(see Subpart 19.5), or when a small

disadvantaged business concern

receives a benefit based on its

disadvantaged status (see Subpart 19.11)

and is the apparently successful offeror,

upon completion of negotiations and

determinations of responsibility, and

completion of the process in 19.304(d),

if necessary, but prior to award, the

contracting officer shall notify each

offeror in writing of the name and

address of the apparently successful

offeror. The notice shall also state that

the Government will not consider

subsequent revisions of the offeror’s

proposal; and no response is required

unless a basis exists to challenge the

disadvantaged status and/or small

business size status of the apparently

successful offeror. The notice is not

required when the contracting officer

determines in writing that the urgency

of the requirement necessitates award

without delay or when the contract is

entered into under the 8(a) program (see

19.805–2).

* * * * *

PART 19—SMALL BUSINESS

PROGRAMS

8. Section 19.000 is amended by

revising the introductory text of

paragraph (a); at the end of (a)(6) by

removing ‘‘and’’; at the end of (a)(7) by

removing the period and inserting’’;

and’’; and by adding paragraph (a)(8) to

read as follows:

19.000 Scope of part.

(a) This part implements the

acquisition-related sections of the Small

Business Act (15 U.S.C. 631, et seq.),

applicable sections of the Armed

Services Procurement Act (10 U.S.C.

2302, et seq.), the Federal Property and

Administrative Services Act (41 U.S.C.

252), section 7102 of the Federal

Acquisition Streamlining Act of 1994

(Public Law 103–355), 10 U.S.C. 2323,

and Executive Order 12138, May 18,

1979. It covers—

* * * * *

(8) The use of a price evaluation

adjustment for small disadvantaged

business concerns.

* * * * *

9. Section 19.001 is amended in the

definition of ‘‘Small disadvantaged

business concern’’ by revising its

introductory paragraph; by

redesignating paragraphs (a) and (b)

introductory text as (a)(1) and (a)(2)

introductory text; (b)(1), (b)(2), and

(b)(3) as (a)(2)(i), (a)(2)(ii), and (a)(2)(iii);

and (c) and (d) as (a)(3) and (a)(4); and

by adding paragraphs (a) introductory

text and (b) to read as follows:

19.001 Definitions.

* * * * *

Small disadvantaged business

concern, as used in this part, means—

(a) For subcontractors, a small

business concern that is at least 51

percent unconditionally owned by one

or more individuals who are both

socially and economically

disadvantaged, or a publicly owned

business that has at least 51 percent of

its stock unconditionally owned by one

or more socially and economically

disadvantaged individuals and that has

its management and daily business

controlled by one or more such

individuals. This term also means a

small business concern that is at least 51

percent unconditionally owned by an

economically disadvantaged Indian

tribe or Native Hawaiian Organization,

or a publicly owned business that has at

least 51 percent of its stock

unconditionally owned by one of these

entities, that has its management and

daily business controlled by members of

an economically disadvantaged Indian

tribe or Native Hawaiian Organization,

and that meets the requirements of 13

CFR 124.

* * * * *

(b) For prime contractors, (except for

52.212–3(c)(2) and 52.219–1(b)(2) for

general statistical purposes and 52.212–

3(c)(7)(ii), 52.219–22(b)(2), and 52.219–

23(a) for joint ventures under the price

evaluation adjustment for small

disadvantaged business concerns) an

offeror that represents, as part of its

offer, that it is a small business under

the size standard applicable to the

acquisition; and either—

(1) It has received certification from

the Small Business Administration as a

small disadvantaged business concern

consistent with 13 CFR 124, Subpart B,

and

(i) No material change in

disadvantaged ownership and control

has occurred since its certification;

(ii) Where the concern is owned by

one or more disadvantaged individuals,

the net worth of each individual upon

whom the certification is based does not

exceed $750,000 after taking into

account the applicable exclusions set

forth at 13 CFR 124.104(c)(2); and

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

representation, on the register of small

disadvantaged business concerns

maintained by the Small Business

Administration; or

(2) It has submitted a completed

application to the Small Business

Administration or a Private Certifier to

be certified as a small disadvantaged

business concern in accordance with 13

CFR 124, Subpart B, and a decision on

that application is pending, and that no

material change in disadvantaged

ownership and control has occurred

since its application was submitted. In

this case, a contractor must receive

certification as an SDB by the SBA prior

to contract award.

10. Section 19.201 is amended by

redesignating paragraphs (b), (c), and (d)

as (c), (d), and (e), respectively; and by

adding new paragraphs (b) and (f) to

read as follows:

19.201 General policy.

* * * * *

(b) The Department of Commerce will

determine on an annual basis, by Major

Groups as contained in the Standard

Industrial Classification (SIC) manual,

and region, if any, the authorized small

disadvantaged business (SDB)

procurement mechanisms and

applicable factors (percentages). The

Department of Commerce determination

shall only affect solicitations that are

issued on or after the effective date of

the determination. The effective date of

the Department of Commerce

determination shall be no less than 60

days after its publication date. The

Department of Commerce determination

shall not affect ongoing acquisitions.

The Department of Commerce

determination shall include the

applicable factors, by SIC Major Group,

to be used in the price evaluation

adjustment for SDB concerns (see

19.1104). The authorized procurement

mechanisms shall be applied

consistently with the policies and

procedures in this subpart. The agencies

shall apply the SDB procurement

mechanisms determined by the

Department of Commerce. The

Department of Commerce, in making its

determination, is not limited to the

price evaluation adjustment for SDB

concerns where the Department of

Commerce has found substantial and

persuasive evidence of—
35722 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations

(1) A persistent and significant

underutilization of minority firms in a

particular industry, attributable to past

or present discrimination; and

(2) A demonstrated incapacity to

alleviate the problem by using those

mechanisms.

* * * * *

(f)(1) Each agency shall designate, at

levels it determines appropriate,

personnel responsible for determining

whether, in order to achieve the

contracting agency’s goal for SDB

concerns, the use of the SDB mechanism

in Subpart 19.11 has resulted in an

undue burden on non-SDB firms in one

of the major industry groups and regions

identified by Department of Commerce

following paragraph (b) of this section,

or is otherwise inappropriate.

Determinations under this subpart are

for the purpose of determining future

acquisitions and shall not affect ongoing

acquisitions. Requests for a

determination, including supporting

rationale, may be submitted to the

agency designee. If the agency designee

makes an affirmative determination that

the SDB mechanism has an undue

burden or is otherwise inappropriate,

the determination shall be forwarded

through agency channels to the OFPP,

which shall review the determination in

consultation with the Department of

Commerce and the Small Business

Administration. At a minimum, the

following information should be

included in any submittal:

(i) A determination of undue burden

or other inappropriate effect, including

proposed corrective action.

(ii) The SIC Major Group affected.

(iii) Supporting information to justify

the determination, including, but not

limited to, dollars and percentages of

contracts awarded by the contracting

activity under the affected SIC Major

Group for the previous two fiscal years

and current fiscal year to date for—

(A) Total awards;

(B) Total awards to SDB concerns;

(C) Awards to SDB concerns awarded

contracts under the SDB price

evaluation adjustment where the SDB

concerns would not otherwise have

been the successful offeror;

(D) Number of successful and

unsuccessful SDB offerors; and

(E) Number of successful and

unsuccessful non-SDB offerors.

(iv) A discussion of the pertinent

findings, including any peculiarities

related to the industry, regions or

demographics.

(v) A discussion of other efforts the

agency has undertaken to ensure equal

opportunity for SDBs in contracting

with the agency.

(2) After consultation with OFPP, or

if the agency does not receive a response

from OFPP within 90 days after notice

is provided to OFPP, the contracting

agency may limit the use of the SDB

mechanism in Subpart 19.11 until the

Department of Commerce determines

the updated price evaluation

adjustment, as required by this section.

This limitation shall not apply to

solicitations that already have been

synopsized.

11. Section 19.202–6 is amended by

revising the introductory paragraph and

paragraph (a) to read as follows:

19.202–6 Determination of fair market

price.

Agencies shall determine the fair

market price as follows:

(a) For total and partial small business

set-aside contracts and contracts

utilizing the price evaluation

adjustment for small disadvantaged

business concerns, the fair market price

shall be the price achieved in

accordance with the reasonable price

guidelines in 15.404–1(b).

* * * * *

Subpart 19.3—Determination of Status

as a Small Disadvantaged Business

Concern or a Small Business Concern

12. The heading for Subpart 19.3 is

revised to read as set forth above.

13. Section 19.302 is amended at the

end of the introductory text of

paragraph (d) by adding the following

sentence:

19.302 Protesting a small business

representation.

* * * * *

(d) * * * SBA’s regulations on

timeliness related to protests of

disadvantaged status are contained in 13

CFR 124, Subpart B.

19.304 [Redesignated as 19.306]

14a. Section 19.304 is redesignated as

19.306.

14b. New sections 19.304 and 19.305

are added to read as follows:

19.304 Disadvantaged business status.

(a) To be eligible to receive a benefit

as a prime contractor based on its

disadvantaged status, a concern, at the

time of its offer, must either be certified

as a small disadvantaged business (SDB)

concern or have a completed SDB

application pending at the SBA or a

Private Certifier (see 19.001).

(b) The contracting officer may accept

an offeror’s representation that it is an

SDB concern for general statistical

purposes. The provision at 52.219–1,

Small Business Program

Representations, or 52.212–3(c)(2),

Offeror Representations and

Certifications-Commercial Items, is used

to collect SDB data for general statistical

purposes.

(c) The provision at 52.219–22, Small

Disadvantaged Business Status, or

52.212–3(c)(7), Offeror Representations

and Certifications—Commercial Items,

is used to obtain SDB status when the

prime contractor may receive a benefit

based on its disadvantaged status. The

mechanism that may provide benefits

on the basis of disadvantaged status as

a prime contractor is a price evaluation

adjustment for SDB concerns (see

Subpart 19.11).

(1) If the apparently successful offeror

has represented that it is currently

certified as an SDB, the contracting

officer may confirm that the concern is

listed on the SBA’s register by accessing

the list at http://www.sba.gov or by

contacting the SBA’s Office of Small

Disadvantaged Business Certification

and Eligibility.

(2) If the apparently successful offeror

has represented that its SDB application

is pending at the SBA or a Private

Certifier, and its position as the

apparently successful offeror is due to

the application of the price evaluation

adjustment, the contracting officer shall

follow the procedure in paragraph (d) of

this section.

(d) Notifications to SBA of potential

awards to offerors with pending SDB

applications. (1) The contracting officer

shall notify the Small Business

Administration Assistant Administrator

for SDBCE 409 Third Street, SW

Washington, DC 20416. The notification

shall contain the name of the apparently

successful offeror, and the names of any

other offerors that have represented that

their applications for SDB status are

pending at the SBA or a Private Certifier

and that could receive the award due to

the application of a price evaluation

adjustment if the apparently successful

offeror is determined not to be an SDB

by the SBA.

(2) The SBA will, within 15 calendar

days after receipt of the notification,

determine the disadvantaged status of

the apparently successful offeror and, as

appropriate, any other offerors referred

by the contracting officer and will notify

the contracting officer.

(3) If the contracting officer does not

receive an SBA determination within 15

calendar days after the SBA’s receipt of

the notification, the contracting officer

shall presume that the apparently

successful offeror, and any other

offerors referred by the contracting

officer, are not disadvantaged, and shall

make award accordingly, unless the

contracting officer grants an extension

to the 15-day response period. No
Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations 35723

written determination is required for the

contracting officer to make award at any

point following the expiration of the 15-

day response period.

(4) When the contracting officer

makes a written determination that

award must be made to protect the

public interest, the contracting officer

may proceed to contract award without

notifying SBA or before receiving a

determination of SDB status from SBA

during the 15-day response period. In

both cases, the contracting officer shall

presume that the apparently successful

offeror, or any other offeror referred to

the SBA whose SDB application is

pending, is not an SDB and shall make

award accordingly.

19.305 Protesting a representation of

disadvantaged business status.

(a) This section applies to protests of

a small business concern’s

disadvantaged status as a prime

contractor. Protests of a small business

concern’s disadvantaged status as a

subcontractor are processed under

19.703(a)(2). Protests of a concern’s size

as a prime contractor are processed

under 19.302. Protests of a concern’s

size as a subcontractor are processed

under 19.703(b). An offeror, the

contracting officer, or the SBA may

protest the apparently successful

offeror’s representation of

disadvantaged status if the concern is

eligible to receive a benefit based on its

disadvantaged status (see Subpart

19.11).

(b) An offeror, excluding an offeror

determined by the contracting officer to

be non-responsive or outside the

competitive range, or an offeror that

SBA has previously found to be

ineligible for the requirement at issue,

may protest the apparently successful

offeror’s representation of

disadvantaged status by filing a protest

in writing with the contracting officer.

SBA regulations concerning protests are

contained in 13 CFR 124, Subpart B.

The protest—

(1) Must be filed within the times

specified in 19.302(d)(1); and

(2) Must contain specific facts or

allegations supporting the basis of

protest.

(c) The contracting officer or the SBA

may protest in writing a concern’s

representation of disadvantaged status

at any time following bid opening or

notification of intended award.

(1) If a contracting officer’s protest is

based on information provided by a

party ineligible to protest directly or

ineligible to protest under the timeliness

standard, the contracting officer must be

persuaded by the evidence presented

before adopting the grounds for protest

as his or her own.

(2) The SBA may protest a concern’s

representation of disadvantaged status

by filing directly with its Assistant

Administrator for Small Disadvantaged

Business Certification and Eligibility

and notifying the contracting officer.

(d) The contracting officer shall return

premature protests to the protestor. A

protest is considered to be premature if

it is submitted before bid opening or

notification of intended award. SBA

normally will not consider a postaward

protest. SBA may consider a postaward

protest in its discretion where it

determines that an SDB determination

after award is meaningful (e.g., where

the contracting officer agrees to

terminate the contract if the protest is

sustained).

(e) Upon receipt of a protest that is

not premature, the contracting officer

shall withhold award and forward the

protest to Small Business

Administration, Assistant Administrator

for SDBCE, 409 Third Street, SW,

Washington, DC 20416. The contracting

officer shall send to SBA—

(1) The written protest and any

accompanying materials;

(2) The date the protest was received;

(3) A copy of the protested concern’s

representation as a small disadvantaged

business, and the date of such

representation; and

(4) The date of bid opening or date on

which notification of the apparently

successful offeror was sent to

unsuccessful offerors.

(f) When the contracting officer makes

a written determination that award must

be made to protect the public interest,

award may be made notwithstanding

the protest.

(g) The SBA Assistant Administrator

for Small Disadvantaged Business

Certification and Eligibility will notify

the protestor and the contracting officer

of the date the protest was received and

whether it will be processed or

dismissed for lack of timeliness or

specificity. For protests that are not

dismissed, the SBA will, within 15

working days after receipt of the protest,

determine the disadvantaged status of

the challenged offeror and will notify

the contracting officer, the challenged

offeror, and the protestor. Award may be

made on the basis of that determination.

The determination is final for purposes

of the instant acquisition, unless it is

appealed and—

(1) The contracting officer receives the

SBA’s decision on the appeal before

award; or

(2) The contracting officer has agreed

to terminate the contract, as appropriate,

based on the outcome of the appeal (see

13 CFR 124, Subpart B).

(h) If the contracting officer does not

receive an SBA determination within 15

working days after the SBA’s receipt of

the protest, the contracting officer shall

presume that the challenged offeror is

disadvantaged and may award the

contract, unless the SBA requests and

the contracting officer grants an

extension to the 15-day response period.

(i) An SBA determination may be

appealed by—

(1) The party whose protest has been

denied;

(2) The concern whose status was

protested; or

(3) The contracting officer.

(j) The appeal must be filed with the

SBA’s Administrator or designee within

five working days after receipt of the

determination. If the contracting officer

receives the SBA’s decision on the

appeal before award, the decision shall

apply to the instant acquisition. If the

decision is received after award, it will

not apply to the instant acquisition (but

see paragraph (g)(2) of this section).

15. Newly redesignated 19.306 is

amended in paragraph (a) by adding a

sentence at the end of the paragraph;

and by redesignating paragraph (b) as (c)

and adding a new paragraph (b) to read

as follows:

19.306 Solicitation provision and contract

clause.

(a) * * * The provision shall be used

with its Alternate I in solicitations

issued by DoD, NASA, or the Coast

Guard that are expected to exceed the

threshold at 4.601(a).

(b) The contracting officer shall insert

the provision at 52.219–22, Small

Disadvantaged Business Status, in

solicitations that include the clause at

52.219–23, Notice of Price Evaluation

Adjustment for Small Disadvantaged

Business Concerns.

* * * * *

16. Subpart 19.11, consisting of

sections 19.1101 through 19.1104, is

added to read as follows:

Subpart 19.11—Price Evaluation

Adjustment for Small Disadvantaged

Business Concerns

Sec.

19.1101 General.

19.1102 Applicability.

19.1103 Procedures.

19.1104 Solicitation provisions and

contract clauses.

Authority: 41 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).
35724 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations

Subpart 19.11—Price Evaluation

Adjustment for Small Disadvantaged

Business Concerns

19.1101 General.

A price evaluation adjustment for

small disadvantaged business concerns

shall be applied as determined by the

Department of Commerce (see

19.201(b)). Joint ventures may qualify

provided the requirements set forth in

13 CFR 124.1002(f) are met.

19.1102 Applicability.

(a) The price evaluation adjustment

shall be used in competitive

acquisitions.

(b) The price evaluation adjustment

shall not be used in acquisitions that—

(1) Are not greater than the simplified

acquisition threshold;

(2) Are awarded pursuant to the 8(a)

program; or

(3) Are set aside for small business

concerns.

19.1103 Procedures.

(a) Give offers from small

disadvantaged business concerns a price

evaluation adjustment by adding the

factor determined by the Department of

Commerce to all offers, except—

(1) Offers from small disadvantaged

business concerns that have not waived

the evaluation adjustment;

(2) Otherwise successful offers of

eligible products under the Trade

Agreements Act when the acquisition

equals or exceeds the dollar threshold in

25.402;

(3) Otherwise successful offers where

application of the factor would be

inconsistent with a Memorandum of

Understanding or other international

agreement with a foreign government;

(4) For DOD, NASA, and Coast Guard

acquisitions, otherwise successful offers

from historically black colleges and

universities or minority institutions; or

(5) For DOD acquisitions, otherwise

successful offers of qualifying country

end products (see DFARS 225.000–70

and 252.225–7001).

(b) Apply the factor on a line item

basis or apply it to any group of items

on which award may be made. Add

other evaluation factors such as

transportation costs or rent-free use of

Government facilities to the offers

before applying the price evaluation

adjustment.

(c) Do not evaluate offers using the

price evaluation adjustment when it

would cause award, as a result of this

adjustment, to be made at a price that

exceeds fair market price by more than

the factor as determined by the

Department of Commerce (see 19.202–

6(a)).

19.1104 Solicitation provisions and

contract clauses.

The contracting officer shall insert the

clause at 52.219–23, Notice of Price

Evaluation Adjustment for Small

Disadvantaged Business Concerns, in

solicitations and contracts when the

circumstances in 19.1102 apply. The

contracting officer shall insert the

authorized price evaluation adjustment

factor. The clause shall be used with its

Alternate I when the contracting officer

determines that there are no small

disadvantaged business manufacturers

that can meet the requirements of the

solicitation.

PART 33—PROTESTS, DISPUTES,

AND APPEALS

17. Section 33.102 is amended in

paragraph (a) by revising the last

sentence to read as follows:

33.102 General.

(a) * * * (See 19.302 for protests of

small business status, and 19.305 for

protests of disadvantaged business

status.)

* * * * *

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

18. Section 52.212–3 is amended by

revising the date of the provision;

removing the definition of ‘‘Small

disadvantaged business concern’’;

revising paragraph (c)(2); adding (c)(7);

and adding Alternate I following ‘‘(End

of provision)’’ to read as follows:

52.212–3 Offeror Representations and

Certifications—Commercial Items.

* * * * *

Offeror Representations and Certifications—

Commercial Items (Oct 1998)

* * * * *

(c) * * *

(2) Small disadvantaged business concern.

The offeror represents, for general statistical

purposes, that it b is, b is not, a small

disadvantaged business concern as defined in

13 CFR 124.1002.

* * * * *

(7) (Complete only if the solicitation

contains the clause at FAR 52.219–23, Notice

of Price Evaluation Adjustment for Small

Disadvantaged Business Concerns, and the

offeror desires a benefit based on its

disadvantaged status.)

(i) General. The offeror represents that

either—

(A) It b is, b is not certified by the Small

Business Administration as a small

disadvantaged business concern and is listed,

on the date of this representation, on the

register of small disadvantaged business

concerns maintained by the Small Business

Administration, and that no material change

in disadvantaged ownership and control has

occurred since its certification, and, where

the concern is owned by one or more

individuals claiming disadvantaged status,

the net worth of each individual upon whom

the certification is based does not exceed

$750,000 after taking into account the

applicable exclusions set forth at 13 CFR

124.104(c)(2); or

(B) It b has, b has not submitted a

completed application to the Small Business

Administration or a Private Certifier to be

certified as a small disadvantaged business

concern in accordance with 13 CFR 124,

Subpart B, and a decision on that application

is pending, and that no material change in

disadvantaged ownership and control has

occurred since its application was submitted.

(ii) Joint Ventures under the Price

Evaluation Adjustment for Small

Disadvantaged Business Concerns. The

offeror represents, as part of its offer, that it

is a joint venture that complies with the

requirements in 13 CFR 124.1002(f) and that

the representation in paragraph (c)(7)(i) of

this provision is accurate for the small

disadvantaged business concern that is

participating in the joint venture. [The offeror

shall enter the name of the small

disadvantaged business concern that is

participating in the joint venture:

llllll.]

* * * * *

(End of provision)

Alternate I (Oct 1998). As prescribed in

12.301(b)(2), add the following paragraph

(c)(8) to the basic provision:

(8) (Complete if the offeror has represented

itself as disadvantaged in paragraph (c)(2) or

(c)(7) of this provision.) [The offeror shall

check the category in which its ownership

falls]:

llBlack American.

llHispanic American.

llNative American (American Indians,

Eskimos, Aleuts, or Native Hawaiians).

llAsian-Pacific American (persons with

origins from Burma, Thailand, Malaysia,

Indonesia, Singapore, Brunei, Japan, China,

Taiwan, Laos, Cambodia (Kampuchea),

Vietnam, Korea, The Philippines, U.S. Trust

Territory of the Pacific Islands (Republic of

Palau), Republic of the Marshall Islands,

Federated States of Micronesia, the

Commonwealth of the Northern Mariana

Islands, Guam, Samoa, Macao, Hong Kong,

Fiji, Tonga, Kiribati, Tuvalu, or Nauru).

llSubcontinent Asian (Asian-Indian)

American (persons with origins from India,

Pakistan, Bangladesh, Sri Lanka, Bhutan, the

Maldives Islands, or Nepal).

llIndividual/concern, other than one of

the preceding.

19. Section 52.212–5 is amended by

revising the clause date; redesignating

paragraphs (b)(6) through (b)(17) as

(b)(7) through (b)(18), respectively; and

adding a new paragraph (b)(6) to read as

follows:

52.212–5 Contract Terms and Conditions

Required to Implement Statutes or

Executive Orders—Commercial Items.

* * * * *
Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations 35725

Contract Terms and Conditions Required to

Implement Statutes or Executive OrdersCommercial Items (Oct 1998)

* * * * *

(b) * * *

ll(6)(i) 52.219–23, Notice of Price

Evaluation

Adjustment for Small Disadvantaged

Business Concerns (Pub. L. 103–355, section

7102, and 10 U.S.C. 2323) (if the offeror

elects to waive the adjustment, it shall so

indicate in its offer).

(ii) llAlternate I of 52.219–23.

* * * * *

20. Section 52.219–1 is amended by

revising the introductory text of the

provision; the provision date and

paragraph (b)(2); by deleting the

definitions of ‘‘Joint venture’’ and

‘‘Small disadvantaged business

concern’’; and adding an Alternate I to

read as follows:

52.219–1 Small Business Program

Representations.

As prescribed in 19.306(a), insert the

following provision:

Small Business Program Representations

(Oct 1998)

* * * * *

(b) * * *

(2) (Complete only if offeror represented

itself as a small business concern in

paragraph (b)(1) of this provision.) The

offeror represents, for general statistical

purposes, that it b is, b is not, a small

disadvantaged business concern as defined in

13 CFR 124.1002.

* * * * *

Alternate I (Oct 1998). As prescribed in

19.306(a), add the following paragraph (b)(4)

to the basic provision:

(4) (Complete if offeror represented itself as

disadvantaged in paragraph (b)(2) of this

provision). [The offeror shall check the

category in which its ownership falls]:

llBlack American.

llHispanic American.

llNative American (American Indians,

Eskimos, Aleuts, or Native Hawaiians).

llAsian-Pacific American (persons with

origins from Burma, Thailand, Malaysia,

Indonesia, Singapore, Brunei, Japan, China,

Taiwan, Laos, Cambodia (Kampuchea),

Vietnam, Korea, The Philippines, U.S. Trust

Territory of the Pacific Islands (Republic of

Palau), Republic of the Marshall Islands,

Federated States of Micronesia, the

Commonwealth of the Northern Mariana

Islands, Guam, Samoa, Macao, Hong Kong,

Fiji, Tonga, Kiribati, Tuvalu, or Nauru).

llSubcontinent Asian (Asian-Indian)

American (persons with origins from India,

Pakistan, Bangladesh, Sri Lanka, Bhutan, the

Maldives Islands, or Nepal).

llIndividual/concern, other than one of

the preceding.

52.219–2 [Amended]

21. Section 52.219–2 is amended in

the introductory paragraph by revising

‘‘19.304(b)’’ to read ‘‘19.306(c)’’.

22. Sections 52.219–22 and 52.219–23

are added to read as follows:

52.219–22 Small Disadvantaged Business

Status.

As prescribed in 19.306(b), insert the

following provision:

Small Disadvantaged Business Status (Oct

1998)

(a) General. This provision is used to

assess an offeror’s small disadvantaged

business status for the purpose of obtaining

a benefit on this solicitation. Status as a small

business and status as a small disadvantaged

business for general statistical purposes is

covered by the provision at FAR 52.219–1,

Small Business Program Representation.

(b) Representations.

(1) General. The offeror represents, as part

of its offer, that it is a small business under

the size standard applicable to this

acquisition; and either—

b (i) It has received certification by the

Small Business Administration as a small

disadvantaged business concern consistent

with 13 CFR 124, Subpart B; and

(A) No material change in disadvantaged

ownership and control has occurred since its

certification;

(B) Where the concern is owned by one or

more disadvantaged individuals, the net

worth of each individual upon whom the

certification is based does not exceed

$750,000 after taking into account the

applicable exclusions set forth at 13 CFR

124.104(c)(2); and

(C) It is listed, on the date of this

representation, on the register of small

disadvantaged business concerns maintained

by the Small Business Administration; or

b (ii) It has submitted a completed

application to the Small Business

Administration or a Private Certifier to be

certified as a small disadvantaged business

concern in accordance with 13 CFR 124,

Subpart B, and a decision on that application

is pending, and that no material change in

disadvantaged ownership and control has

occurred since its application was submitted.

(2)bFor Joint Ventures. The offeror

represents, as part of its offer, that it is a joint

venture that complies with the requirements

at 13 CFR 124.1002(f) and that the

representation in paragraph (b)(1) of this

provision is accurate for the small

disadvantaged business concern that is

participating in the joint venture. [The offeror

shall enter the name of the small

disadvantaged business concern that is

participating in the joint venture:

llllll.]

(c) Penalties and Remedies. Anyone who

misrepresents any aspects of the

disadvantaged status of a concern for the

purposes of securing a contract or

subcontract shall:

(1) Be punished by imposition of a fine,

imprisonment, or both;

(2) Be subject to administrative remedies,

including suspension and debarment; and

(3) Be ineligible for participation in

programs conducted under the authority of

the Small Business Act.

(End of provision)

52.219–23 Notice of Price Evaluation

Adjustment for Small Disadvantaged

Business Concerns.

As prescribed in 19.1104, insert the

following clause:

Notice of Price Evaluation Adjustment for

Small Disadvantaged Business Concerns

(Oct 1998)

(a) Definitions. As used in this clause—

Small disadvantaged business concern

means an offeror that represents, as part of

its offer, that it is a small business under the

size standard applicable to this acquisition;

and either—

(1) It has received certification by the

Small Business Administration as a small

disadvantaged business concern consistent

with 13 CFR 124, Subpart B; and

(i) No material change in disadvantaged

ownership and control has occurred since its

certification;

(ii) Where the concern is owned by one or

more disadvantaged individuals, the net

worth of each individual upon whom the

certification is based does not exceed

$750,000 after taking into account the

applicable exclusions set forth at 13 CFR

124.104(c)(2); and

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

representation, on the register of small

disadvantaged business concerns maintained

by the Small Business Administration;

(2) It has submitted a completed

application to the Small Business

Administration or a Private Certifier to be

certified as a small disadvantaged business

concern in accordance with 13 CFR 124,

Subpart B, and a decision on that application

is pending, and that no material change in

disadvantaged ownership and control has

occurred since its application was submitted.

In this case, in order to receive the benefit

of a price evaluation adjustment, an offeror

must receive certification as a small

disadvantaged business concern by the Small

Business Administration prior to contract

award; or

(3) Is a joint venture as defined in 13 CFR

124.1002(f).

Historically black college or university

means an institution determined by the

Secretary of Education to meet the

requirements of 34 CFR 608.2. For the

Department of Defense (DoD), the National

Aeronautics and Space Administration

(NASA), and the Coast Guard, the term also

includes any nonprofit research institution

that was an integral part of such a college or

university before November 14, 1986.

Minority institution means an institution of

higher education meeting the requirements of

Section 1046(3) of the Higher Education Act

of 1965 (20 U.S.C. 1135d–5(3)) which, for

purposes of this clause, includes a Hispanicserving institution of higher education as

defined in Section 316(b)(1) of the Act (20

U.S.C. 1059c(b)(1)).

United States means the United States, its

territories and possessions, the

Commonwealth of Puerto Rico, the U.S. Trust

Territory of the Pacific Islands, and the

District of Columbia.

(b) Evaluation adjustment. (1) Offers will

be evaluated by adding a factor of

llllll [percentage to be inserted by
35726 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations

the contracting officer] percent to the price of

all offers, except—

(i) Offers from small disadvantaged

business concerns that have not waived the

adjustment;

(ii) For DOD, NASA, and Coast Guard

acquisitions, otherwise successful offers from

historically black colleges or universities or

minority institutions;

(iii) Otherwise successful offers of eligible

products under the Trade Agreements Act

when the dollar threshold for application of

the Act is equaled or exceeded (see section

25.402 of the Federal Acquisition Regulation

(FAR));

(iv) Otherwise successful offers where

application of the factor would be

inconsistent with a Memorandum of

Understanding or other international

agreement with a foreign government; and

(v) For DOD acquisitions, otherwise

successful offers of qualifying country end

products (see sections 225.000–70 and

252.225–7001 of the Defense FAR

Supplement).

(2) The factor shall be applied on a line

item basis or to any group of items on which

award may be made. Other evaluation factors

described in the solicitation shall be applied

before application of the factor. The factor

may not be applied if using the adjustment

would cause the contract award to be made

at a price that exceeds the fair market price

by more than the factor in paragraph (b)(1)

of this clause.

(c) Waiver of evaluation adjustment. A

small disadvantaged business concern may

elect to waive the adjustment, in which case

the factor will be added to its offer for

evaluation purposes. The agreements in

paragraph (d) of this clause do not apply to

offers that waive the adjustment.

llOfferor elects to waive the adjustment.

(d) Agreements. (1) A small disadvantaged

business concern, that did not waive the

adjustment, agrees that in performance of the

contract, in the case of a contract for—

(i) Services, except construction, at least 50

percent of the cost of personnel for contract

performance will be spent for employees of

the concern;

(ii) Supplies (other than procurement from

a nonmanufacturer of such supplies), at least

50 percent of the cost of manufacturing,

excluding the cost of materials, will be

performed by the concern;

(iii) General construction, at least 15

percent of the cost of the contract, excluding

the cost of materials, will be performed by

employees of the concern; or

(iv) Construction by special trade

contractors, at least 25 percent of the cost of

the contract, excluding the cost of materials,

will be performed by employees of the

concern.

(2) A small disadvantaged business

concern submitting an offer in its own name

agrees to furnish in performing this contract

only end items manufactured or produced by

small disadvantaged business concerns in the

United States. This paragraph does not apply

in connection with construction or service

contracts.

(End of clause)

Alternate I (Oct 1998). As prescribed in

19.1104, substitute the following paragraph

(d)(2) for paragraph (d)(2) of the basic clause:

(2) A small disadvantaged business

concern submitting an offer in its own name

agrees to furnish in performing this contract

only end items manufactured or produced by

small business concerns in the United States.

This paragraph does not apply in connection

with construction or service contracts.

[FR Doc. 98–17197 Filed 6–26–98; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Chapter 1

Federal Acquisition Regulation; Small

Entity Compliance Guide

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Small Entity Compliance Guide.

SUMMARY: This document is issued

under the joint authority of the

Secretary of Defense, the Administrator

of General Services, and the

Administrator for the National

Aeronautics and Space Administration

as the Federal Acquisition Regulatory

Council. This Small Entity Compliance

Guide has been prepared in accordance

with Section 212 of the Small Business

Regulatory Enforcement Fairness Act of

1996 (Public Law 104–121). It consists

of a summary of the rule appearing in

Federal Acquisition Circular (FAC) 97–

06 which amends the Federal

Acquisition Regulation (FAR). Further

information regarding this rule may be

obtained by referring to FAC 97–06

which precedes this document. This

document may be obtained from the

Internet at http://www.arnet.gov/far.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, (202) 501–4755.

Reform of Affirmative Action in

Federal Procurement

FAC 97–06/FAR Case 97–004A. The

interim rule amends FAR Parts 1, 12, 14,

15, 19, 33, and 52 to establish a

mechanism to benefit small

disadvantaged business concerns at the

prime contract level. This mechanism is

a price evaluation adjustment of up to

ten percent in certain Standard

Industrial Classification (SIC) Major

Groups as determined by the

Department of Commerce. This price

evaluation adjustment conforms to the

Department of Justice proposal to reform

affirmative action in Federal

procurement and to regulations issued

by the Small Business Administration

regarding small disadvantaged business

programs. This price evaluation

adjustment is mandatory for those

competitive procurements to which it

applies. It does not, however, apply to

several major categories of acquisition,

including, for example, acquisitions

within the simplified acquisition

threshold, acquisitions set aside for

small business, and acquisitions

conducted pursuant to the 8(a) program.

Dated: June 23, 1998.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

[FR Doc. 98–17198 Filed 6–26–98; 8:45 am]

BILLING CODE 6820–EP–P

SMALL BUSINESS ADMINISTRATION

13 CFR Parts 121, 124, and 134

Small Business Size Regulations; 8(a)

Business Development/Small

Disadvantaged Business Status

Determinations; Rules of Procedure

Governing Cases Before the Office of

Hearings and Appeals

AGENCY: Small Business Administration.

ACTION: Final rule.

SUMMARY: In response to President

Clinton’s government-wide regulatory

reform initiative, the Small Business

Administration (SBA) amends both the

eligibility requirements for, and

contractual assistance provisions

within, the SBA’s 8(a) Business

Development (8(a) BD) program. This

final rule changes the name of the

program from the Minority Small

Business and Capital Ownership

Development program to the 8(a) BD

program to better reflect the purpose of

the program. This rule streamlines the

operation of the 8(a) BD program, eases

certain restrictions perceived to be

burdensome on Program Participants,

clarifies certain eligibility requirements,

and deletes obsolete regulations.

DATES: Effective Date: This rule is

effective on July 30, 1998.

Compliance Dates: Subpart A applies

to all applications for the 8(a) Business

Development program pending as of

July 30, 1998 and all 8(a) procurement

requirements accepted by SBA on or

after July 30, 1998. These rules do not

apply to any appeals pending before

SBA’s Office of Hearings and Appeals.

The revisions to 13 CFR part 121 apply

with respect to all solicitations issued

on or after June 30, 1998. Except for 13

CFR 134.408(c), the procedural

revisions to 13 CFR part 134 apply to all

appeals served or filed on or after June