Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16823 

requester has a commercial interest that 

would be furthered by the requested 

disclosure. NSF will consider any 

commercial interest of the requester 

(with reference to the definition of 

‘‘commercial use’’ in paragraph (b)(1) of 

this section), or of any person on whose 

behalf the requester may be acting, that 

would be furthered by the requested 

disclosure. Requesters will be given an 

opportunity in the administrative 

process to provide explanatory 

information regarding this 

consideration. 

(ii) The primary interest in disclosure: 

Whether any identified commercial 

interest of the requester is sufficiently 

large, in comparison with the public 

interest in disclosure, that disclosure is 

‘‘primarily in the commercial interest of 

the requester.’’ A fee waiver or 

reduction is justified where the public 

interest standard is satisfied and that 

public interest is greater in magnitude 

than that of any identified commercial 

interest in disclosure. NSF ordinarily 

will presume that where a news media 

requester has satisfied the public 

interest standard, the public interest 

will be the interest primarily served by 

disclosure to that requester. Disclosure 

to data brokers or others who merely 

compile and market government 

information for direct economic return 

will not be presumed to primarily serve 

the public interest. 

(4) Where only some of the requested 

records satisfy the requirements for a 

waiver of fees, a waiver will be granted 

for those records. 

(5) Requests for the waiver or 

reduction of fees should address the 

factors listed in paragraphs (k)(2) and (3) 

of this section, insofar as they apply to 

each request. 

§ 612.11 Other rights and services. 

Nothing in this part will be construed 

to entitle any person, as of right, to any 

service or to the disclosure of any record 

to which such person is not entitled 

under the FOIA. 

Dated: April 7, 2009. 

Amy Northcutt, 

Deputy General Counsel. 

[FR Doc. E9–8262 Filed 4–10–09; 8:45 am] 

BILLING CODE 7555–01–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 19 and 52 

[FAR Case 2006–005; Docket 2009–0014; 

Sequence 1] 

RIN 9000–AL18 

Federal Acquisition Regulation; FAR 

Case 2006–005, HUBZone Program 

Revisions 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

implement revisions to the Small 

Business Administration’s HUBZone 

Program as a result of revisions to the 

Small Business Administration’s 

regulations. 

DATES: Interested parties should submit 

written comments to the FAR 

Secretariat on or before June 12, 2009 to 

be considered in the formulation of a 

final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2006–005 by any 

of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2006–005’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2006–005. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2006– 

005’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW., Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAR case 2006–005 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: 

Rhonda Cundiff, Procurement Analyst, 

at (202) 501–0044 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAR case 2006–005. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On May 24, 2004, the Small Business 

Administration (SBA) published a final 

rule in the Federal Register at 69 FR 

29411, and on August 30, 2005, an 

interim rule at 70 FR 51243 amending 

its HUBZone regulations at 13 CFR Part 

126 to implement the Small Business 

Reauthorization Act of 2000, the 

Consolidated Appropriations Act, 2005, 

and other various policy changes. This 

rule proposes to amend the FAR, as 

follows, to implement changes in the 

HUBZone regulations: 

• FAR 19.1303(d), Status as a 

qualified HUBZone small business 

concern; 52.219–3, Notice of Total 

HUBZone Set-Aside; and 52.219–4, 

Notice of Price Evaluation Preference for 

HUBZone Small Business Concerns, are 

revised to stipulate that to be eligible for 

a HUBZone contract, a HUBZone small 

business concern must be a HUBZone 

small business concern both at the time 

of its initial offer and at the time of 

contract award. SBA revised the 

HUBZone regulations to require 

HUBZone small business concerns to 

‘‘certify,’’ at the time of their initial 

offers and again at the time of contract 

award, their HUBZone small business 

concern status. While the SBA 

regulations use the term ‘‘certify,’’ the 

certification is intended to be a 

‘‘representation’’ as used in the FAR. 

Small business concern offerors are 

already required to ‘‘represent’’ their 

HUBZone small business concern status 

at the time of their initial offer. 

• FAR 52.219–3 and 52.219–4 are 

revised to add a requirement that the 

HUBZone concern provide to the 

contracting officer a copy of the notice 

required by 13 CFR 126.501 if material 

changes occur before award that could 

affect its HUBZone eligibility. 

• The performance of work 

requirements of sections 52.219–3 and 

52.219–4 are revised to be consistent 

with the SBA HUBZone regulations. 

Alternate I would be used if there are 

not at least two HUBZones that can 

meet the 50 percent requirement. FAR 

19.1308, Performance of work 

requirements (limitations on 

subcontracting), is also revised to reflect 

the changes in the performance of work 

requirements. 

• The definition of ‘‘HUBZone 

contract,’’ which is used in the SBA 

16824 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

regulations, is added at section 2.101, 

Definitions. 

This rule also proposes to revise the 

FAR as follows: 

• Adds ‘‘qualified base closure areas’’ 

and ‘‘redesignated areas’’ to the list of 

HUBZone locations in the definition of 

‘‘HUBZone’’ at section 2.101 as required 

by the Small Business Reauthorization 

Act of 2000 and the Consolidated 

Appropriations Act, 2005. 

• Adds ‘‘HUBZone joint ventures’’ to 

the list of affiliates that are controlled 

through contractual relationships at 

section 19.101, Explanation of terms, to 

recognize that HUBZone joint ventures, 

comprised of members who are 

individually small under the 

appropriate size standard, can qualify as 

HUBZone small business concerns 

when the aggregate total of the joint 

venture is small under the size standard 

for the NAICS code assigned to the 

contract, or alternative, when the 

aggregate total of the joint venture is not 

small, and then either: (1) for a 

procurement having a revenue-based 

size standard, the estimated contract 

value exceeds half the size standard 

corresponding to the NAICS code 

assigned to the contract; or (2) for a 

procurement having an employee-based 

size standard, the estimated contract 

value exceeds $10 million. 

• Adds a definition in Subpart 19.3, 

Determination of Small Business Status 

for Small Business Programs, for 

‘‘interested party’’ and a notice that SBA 

will dismiss protests from offerors SBA 

determines are not ‘‘interested parties.’’ 

• Changes the protest procedures in 

19.306, Protesting a firm’s status as a 

HUBZone small business concern, to 

require protests to be ‘‘submitted’’ 

instead of ‘‘received’’ by certain 

specified dates consistent with SBA 

regulations. 

• At 19.800, General, removes an 

obsolete reference to priority of 

HUBZone 8(a) concerns, deleted from 

SBA regulations. 

• Adds options for obtaining 

information on HUBZone small 

business concerns at 19.1303, Status as 

a qualified HUBZone small business 

concern. 

• Changes the nonmanufacturer rule 

at 19.102, Size standards, paragraph 

(f)(8), 19.1303(e), 52.219–3(e), and 

52.219–4(f) to be consistent with SBA 

HUBZone regulations. 

• Changes the HUBZone set-aside 

procedures at 19.1305 to business days, 

and changes 19.1305(e)(3), HUBZone 

set-aside procedures, to require SBA to 

file its formal appeal with the head of 

the agency. 

• Changes procedures for HUBZone 

sole source awards at 19.1306, 

HUBZone sole source awards, to be 

consistent with the HUBZone 

regulations. 

• Adds procedures at 19.1307, Price 

evaluation preference for HUBZone 

small business concerns, and 52.219–4 

for how to make award when, after 

considering the price evaluation 

preference, an offer submitted by a 

qualified HUBZone is equal to an offer 

submitted by a large business. 

• Retitles clause 52.219–3, ‘‘Notice of 

Total HUBZone Set-Aside,’’ to ‘‘Notice 

of Total HUBZone Set-Aside or Sole 

Source Award,’’ and clarifies the clause 

prescription for sole source awards to 

implement the performance of the work 

requirements of the clause in sole 

source HUBZone awards. 

• In 52.219–3 and 52–219–4, adds a 

reference to SBA definitions on 

limitations on subcontracting. 

• Adds to 52.219–8(d), Utilization of 

Small Business Concerns, the 

requirement that the contractor shall 

confirm that a subcontractor is certified 

by SBA as a HUBZone small business by 

accessing the Central Contractor 

Registration database or contacting SBA. 

Additional language to 52.219–8(d) 

requires that for a competitive 

subcontract, the contractor must inform 

each unsuccessful subcontract offeror in 

writing of the name and location of the 

apparent successful offeror prior to 

award of the contract to the successful 

subcontract offer. 

In addition to these HUBZone small 

business changes, this rule proposes to 

amend the FAR as follows: 

• Changes the term ‘‘8(a) program’’ at 

19.000, Scope of part to ‘‘8(a) business 

development program’’ to reflect the 

complete title of the program. To avoid 

confusion, however, other references to 

the 8(a) program are unchanged since 

nothing other than the title of the 

program is changed. 

• Deletes the terminology 

‘‘acquisition and property sale 

assistance’’ from ‘‘joint venture— 

acquisition and property sales 

assistance’’ at 19.101 because the term 

‘‘acquisition’’ added no meaning and 

‘‘property sales’’ are beyond the scope of 

the FAR. The proposed rule also deletes 

the other reference to a ‘‘property sale’’ 

in the same paragraph. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

B. Regulatory Flexibility Act 

On May 24, 2004, the Small Business 

Administration (SBA) published a final 

rule in the Federal Register at 69 FR 

29411, and on August 30, 2005, an 

interim rule at 70 FR 51243 amending 

its HUBZone regulations at 13 CFR Part 

126 to implement the Small Business 

Reauthorization Act of 2000, the 

Consolidated Appropriations Act, 2005, 

and other various policy changes. This 

rule proposes to revise the Federal 

Acquisition Regulation (FAR) in order 

to update the FAR to comply with the 

Small Business Administration’s 

regulations as they pertain to 

acquisition. 

The 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. 

An Initial Regulatory Flexibility 

Analysis (IRFA) has been prepared and 

will be provided to the Chief Counsel 

for Advocacy for the Small Business 

Administration. The reason these 

changes may have a significant 

economic impact on a substantial 

number of small entities is because the 

small entities must comply with 

additional HUBZone requirements as 

discussed below. In addition, the 

proposed rule adds ‘‘qualified base 

closure areas’’ and ‘‘redesignated areas’’ 

to the list of HUBZone locations in the 

definition of ‘‘HUBZone’’. This means 

that there will be more qualified 

HUBZone contractors competing for 

HUBZone contracts. The analysis is 

summarized as follows: 

The proposed FAR rule requires a 

HUBZone small business concern to be 

eligible for the HUBZone Program both 

at the time of its initial offer and at the 

time of contract award in addition to 

requiring the HUBZone concern to 

provide to the contracting officer a copy 

of the notice required by 13 CFR 

126.501 if material changes occur before 

award that could affect its HUBZone 

eligibility. These requirements will 

eliminate some small businesses that are 

not eligible in both instances. The 

requirement for a HUBZone small 

business concern to provide to the 

contracting officer a copy of the notice 

required by 13 CFR 126.501 if material 

changes occur before award that could 

affect its HUBZone eligibility will 

eliminate those vendors that are no 

longer a HUBZone concern. This will 

result in those HUBZone concerns that 

are still eligible to compete having to 

compete only among other eligible 

HUBZone concerns, thus increasing 

their chances for award. 

In addition, the proposed rule impacts 

some small business concerns by 

revising the FAR to state that except for 

construction or service contracts, when 

the total value of the contract exceeds 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16825 

$25,000, a HUBZone small business 

concern nonmanufacturer must agree to 

furnish in performing the contract only 

end items manufactured or produced by 

HUBZone small business manufacturer 

concerns. In SBA’s final rule dated 

August 30, 2005, SBA states that it is 

difficult to obtain a precise quantitative 

estimate of the impact these changes 

might have on small businesses. 

However, SBA estimates that 220 

counties will be added as HUBZones a 

result of base closures. 

The FAR Secretariat has submitted a 

copy of the IRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. A copy of the IRFA may 

be obtained from the FAR Secretariat. 

The Councils will consider comments 

from small entities concerning the 

affected FAR parts 2, 19 and 52 in 

accordance with 5 U.S.C. 610. 

Comments must be submitted separately 

and should cite 5 U.S.C 601, et seq. 

(FAR case 2006–005), in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed 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. 

List of Subjects in 48 CFR Parts 2, 19 

and 52 

Government procurement. 

Dated: March 20, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 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) by revising the definition 

‘‘HUBZone’’; adding, in alphabetical 

order, the definition ‘‘HUBZone 

contract’’; and adding a second sentence 

to the definition ‘‘HUBZone small 

business concern’’. The revised and 

added text read as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

HUBZone means a historically 

underutilized business zone that is an 

area located within one or more 

qualified census tracts, qualified 

nonmetropolitan counties, lands within 

the external boundaries of an Indian 

reservation, qualified base closure areas, 

or redesignated areas, as defined in 13 

CFR 126.103. 

HUBZone contract means a contract 

awarded to a ‘‘HUBZone small 

business’’ concern through any of the 

following procurement methods: 

(1) A sole source award to a HUBZone 

small business concern; 

(2) Set-aside awards based on 

competition restricted to HUBZone 

small business concerns; or 

(3) Awards to HUBZone small 

business concerns through full and open 

competition after a price evaluation 

preference in favor of HUBZone small 

business concerns. 

HUBZone small business concern 

* * * 13 CFR 126.103. 

* * * * * 

PART 19—SMALL BUSINESS 

PROGRAMS 

3. Amend section 19.000 by revising 

paragraph (a)(6) to read as follows: 

19.000 Scope of part. 

(a) * * * 

(6) The ‘‘8(a)’’ business development 

program (hereafter referred to as 8(a) 

program), under which agencies 

contract with the SBA for goods or 

services to be furnished under a 

subcontract by a small disadvantaged 

business concern; 

* * * * * 

4. Amend section 19.101, in the 

definition ‘‘Affiliates’’ by redesignating 

paragraphs (7)(ii) through (7)(v) as 

(7)(iii) through (7)(vi), respectively, and 

adding a new paragraph (7)(ii); and 

revising the paragraph heading and first 

sentence of the newly redesignated 

paragraph (7)(iii) to read as follows: 

19.101 Explanation of terms. 

* * * * * 

Affiliates. * * * 

(7) * * * 

(ii) HUBZone joint venture. A 

HUBZone joint venture of two or more 

HUBZone small business concerns may 

submit an offer for a HUBZone contract 

as long as each concern is small under 

the size standard corresponding to the 

NAICS code assigned to the 

requirement, provided one of the 

following conditions apply: 

(A) The aggregate total of the joint 

venture is small under the size standard 

corresponding to the NAICS code 

assigned to the contract. 

(B) The aggregate total of the joint 

venture is not small under the size 

standard corresponding to the NAICS 

code assigned to the contract and 

either— 

(1) For a revenue-based size standard, 

the estimated contract value exceeds 

half the size standard corresponding to 

the NAICS code assigned to the 

contract; or 

(2) For an employee-based size 

standard, the estimated contract value 

exceeds $10 million. 

(iii) Joint venture. Concerns 

submitting offers on a particular 

acquisition as joint ventures are 

considered as affiliated and controlling 

or having the power to control each 

other with regard to performance of the 

contract. * * * 

* * * * * 

5. Amend section 19.102 by adding 

paragraph (f)(8) to read as follows: 

19.102 Size standards. 

* * * * * 

(f) * * * 

(8) For non-manufacturer rules 

pertaining to HUBZone contracts, see 

19.1303(e). 

* * * * * 

6. Revise section 19.306 to read as 

follows: 

19.306 Protesting a firm’s status as a 

HUBZone small business concern. 

(a) Definition as used in this section— 

Interested party has the meaning 

given in 13 CFR 126.103. 

(b) HUBZone Small Business Status. 

(1) For sole source acquisitions, the SBA 

or the contracting officer may protest 

the apparently successful offeror’s 

HUBZone small business concern 

status. 

(2) For all other acquisitions, an 

offeror that is an interested party, the 

contracting officer, or the SBA may 

protest the apparently successful 

offeror’s HUBZone small business 

concern status. 

(c) Protests relating to whether a 

HUBZone small business concern is a 

small business for purposes of any 

Federal program are subject to the 

procedures of subpart 19.3. Protests 

relating to small business size status for 

the acquisition and the HUBZone 

qualifying requirements will be 

processed concurrently by SBA. 

(d) All protests must be in writing and 

must state all specific grounds for the 

protest. Assertions that a protested 

concern is not a qualified HUBZone 

small business concern, without setting 

forth specific facts or allegations, are 

insufficient. An offeror must submit its 

protest to the contracting officer. The 

contracting officer and the SBA must 

submit protests to SBA’s Associate 

16826 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

Administrator for the HUBZone 

Program (AA/HUB). 

(e) The protest of an offeror that is an 

interested party must be submitted by 

close of business on the fifth business 

day after bid opening (in sealed bid 

acquisitions) or by close of business on 

the fifth business day after notification 

by the contracting officer of the 

apparently successful offeror (in 

negotiated acquisitions). Any protest 

submitted after these time limits is 

untimely, unless it is submitted by the 

SBA or the contracting officer. Any 

protest received prior to bid opening or 

notification of intended award, 

whichever applies, is premature and 

shall be returned to the protester. 

(f) Except for premature protests, the 

contracting officer shall forward all 

protests received, notwithstanding 

whether the contracting officer believes 

that the protest is not sufficiently 

specific, timely, or submitted by an 

interested party. The contracting officer 

shall also forward a referral letter with 

the information required by 13 CFR 

126.801(e). 

(g) Protests may be submitted in 

person or by facsimile, express delivery 

service, or U.S. mail (postmarked within 

the applicable time period) to: Associate 

Administrator/Historically 

Underutilized Business, AA/HUB, U.S. 

Small Business Administration, 409 3rd 

Street, SW., Washington, DC 20416; Fax 

(202) 205–7167. The AA/HUB will 

notify the protester and the contracting 

officer that the protest was received and 

indicate whether the protest will be 

processed or dismissed for lack of 

timeliness or specificity. A protest will 

be dismissed if SBA determines the 

protester is not an interested party. 

(h) SBA will determine the HUBZone 

status of the protested HUBZone small 

business concern within 15 business 

days after receipt of a protest. If SBA 

does not contact the contracting officer 

within 15 business days, the contracting 

officer may award the contract to the 

apparently successful offeror, unless the 

contracting officer has granted SBA an 

extension. The contracting officer may 

award the contract after receipt of a 

protest if the contracting officer 

determines in writing that an award 

must be made to protect the public 

interest. 

(i) SBA will notify the contracting 

officer, the protester, and the protested 

concern of its determination. The 

determination is effective immediately 

and is final unless overturned on appeal 

by SBA’s Associate Deputy 

Administrator for Government 

Contracting and Business Development 

(ADA/GC&BD). 

(j) The protested HUBZone small 

business concern, the protester, or the 

contracting officer may file appeals of 

protest determinations with SBA’s 

ADA/GC&BD. The ADA/GC&BD must 

receive the appeal no later than 5 

business days after the date of receipt of 

the protest determination. SBA will 

dismiss any appeal received after the 5- 

day period. 

(k) The appeal must be in writing. The 

appeal must identify the protest 

determination being appealed and must 

set forth a full and specific statement as 

to why the decision is erroneous or 

what significant fact the AA/HUB failed 

to consider. 

(l) The party appealing the decision 

must provide notice of the appeal to the 

contracting officer and either the 

protested HUBZone small business 

concern or the original protester, as 

appropriate. SBA will not consider 

additional information or changed 

circumstances that were not disclosed at 

the time of the AA/HUB’s decision or 

that are based on disagreement with the 

findings and conclusions contained in 

the determination. 

(m) The ADA/GC&BD will make its 

decision within 5 business days of the 

receipt of the appeal, if practicable, and 

will base its decision only on the 

information and documentation in the 

protest record as supplemented by the 

appeal. SBA will provide a copy of the 

decision to the contracting officer, the 

protester, and the protested HUBZone 

small business concern. The SBA 

decision, if received before award, will 

apply to the pending acquisition. SBA 

rulings received after award will not 

apply to that acquisition. The ADA/ 

GC&BD’s decision is the final decision. 

7. Amend section 19.703 by revising 

paragraph (d)(1)(i) to read as follows: 

19.703 Eligibility requirements for 

participating in the program. 

* * * * * 

(d) * * * 

(1) * * * 

(i) HUBZone web page at http:// 

dsbs.sba.gov/dsbs/ 

dsp_searchhubzone.cfm or https:// 

eweb1.sba.gov/hubzone/internet/ 

general/approved-firms.cfm; 

* * * * * 

19.800 [Amended] 

8. Amend section 19.800 by removing 

the second sentence of paragraph (e). 

19.803 [Amended] 

9. Amend section 19.803 by removing 

from the end of paragraph (c) ‘‘(but see 

19.800(e))’’. 

19.804–3 [Amended] 

10. Amend section 19.804–3 by 

removing from the end of paragraph (a) 

‘‘(AA)/8(a)BD’’ and adding ‘‘AA/BD’’ in 

its place. 

19.805–1 [Amended] 

11. Amend section 19.805–1 by 

removing from paragraph (d) ‘‘(AA/ 

8(a)BD)’’ each time it appears and 

adding ‘‘AA/BD’’ in its place. 

12. Amend section 19.1301 by 

revising paragraph (a) to read as follows: 

19.1301 General. 

(a) The Historically Underutilized 

Business Zone (HUBZone) Act of 1997 

(15 U.S.C. 631 note) created the 

HUBZone Program. 

* * * * * 

13. Amend section 19.1303 by 

revising the section heading and 

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

paragraph (e). The revised and added 

text read as follows: 

19.1303 Status as a HUBZone small 

business concern. 

* * * * * 

(b) If the SBA determines that a 

concern is a HUBZone small business 

concern, it will issue a certification to 

that effect and will add the concern to 

the List of Qualified HUBZone Small 

Business Concerns https:// 

eweb1.sba.gov/hubzone/internet/ 

general/approved-firms.cfm. Only firms 

on the list are HUBZone small business 

concerns, eligible for HUBZone 

preferences. HUBZone preferences 

apply without regard to the place of 

performance. Information on HUBZone 

small business concerns can also be 

obtained at http://dsbs.sba.gov/dsbs/ 

dsp_dsbs.cfm or by writing to the 

Associate Administrator for the 

HUBZone Program (AA/HUB) at U.S. 

Small Business Administration, 409 3rd 

Street, SW., Washington, DC 20416 or at 

hubzone@sba.gov. 

(c) A joint venture (see 19.101) may be 

considered a HUBZone small business 

concern if it meets the criteria in the 

explanation of affiliates in 19.101. 

(d) To be eligible for a HUBZone 

contract under this section, a HUBZone 

small business concern must be a 

HUBZone small business concern both 

at the time of its initial offer and at the 

time of contract award. 

(e) A HUBZone small business 

concern may submit an offer for 

supplies as a nonmanufacturer if it 

meets the requirements of the 

nonmanufacturer rule set forth at 13 

CFR 121.406(b)(1) and if the small 

manufacturer providing the end item is 

also a HUBZone small business concern. 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16827 

(1) There are no waivers to the 

nonmanufacturer rule for HUBZone 

contracts. 

(2) For HUBZone contracts at or 

below $25,000 in total value, a 

HUBZone small business concern may 

supply the end item of any 

manufacturer, including a large 

business, so long as the product 

acquired is manufactured or produced 

in the United States. 

14. Amend section 19.1305 by 

removing from paragraph (a) ‘‘A 

participating agency’’ and adding ‘‘The’’ 

in its place; and revising paragraphs (c) 

and (e) to read as follows: 

19.1305 HUBZone set-aside procedures. 

* * * * * 

(c) A contracting officer may set aside 

acquisitions exceeding the micropurchase threshold that do not exceed 

the simplified acquisition threshold for 

competition restricted to HUBZone 

small business concerns at the sole 

discretion of the contracting officer, 

provided the requirements of paragraph 

(b) of this section can be satisfied. 

* * * * * 

(e) The procedures at 19.202–1 and, 

except for acquisitions not exceeding 

the simplified acquisition threshold, at 

19.402 apply to this section. 

(1) When the SBA intends to appeal 

a contracting officer’s decision to reject 

a recommendation of the SBA 

procurement center representative (or, if 

a procurement center representative is 

not assigned, see 19.402(a)) to set aside 

an acquisition for competition restricted 

to HUBZone small business concerns, 

the SBA procurement center 

representative shall notify the 

contracting officer, in writing, of its 

intent within 5 business days of 

receiving the contracting officer’s notice 

of rejection. 

(2) Upon receipt of notice of SBA’s 

intent to appeal, the contracting officer 

shall suspend action on the acquisition 

unless the head of the contracting 

activity makes a written determination 

that urgent and compelling 

circumstances, which significantly 

affect the interests of the Government, 

exist. 

(3) Within 15 business days of SBA’s 

notification to the contracting officer, 

SBA must file its formal appeal with the 

head of the agency, or the appeal will 

be deemed withdrawn. The head of the 

agency shall reply to SBA within 15 

business days of receiving the appeal. 

The decision of the head of the agency 

shall be final. 

15. Amend section 19.1306 by 

revising paragraph (a) to read as follows: 

19.1306 HUBZone sole source awards. 

(a) An agency contracting officer may 

award contracts to HUBZone small 

business concerns on a sole source basis 

without considering small business setasides (see Subpart 19.5), provided none 

of the exclusions at 19.1304 apply and— 

(1) The contracting officer does not 

have a reasonable expectation that offers 

would be received from two or more 

HUBZone small business concerns; 

(2) The anticipated price of the 

contract, including options, will not 

exceed— 

(i) $5.5 million for a requirement 

within the NAICS codes for 

manufacturing; or 

(ii) $3.5 million for a requirement 

within all other NAICS codes; 

(3) The acquisition is greater than the 

simplified acquisition threshold (see 

part 13); 

(4) The HUBZone small business 

concern has been determined to be a 

responsible contractor with respect to 

performance; and 

(5) Award can be made at a fair and 

reasonable price. 

* * * * * 

16. Amend section 19.307 by adding 

paragraph (e) to read as follows: 

19.1307 Price evaluation preference for 

HUBZone small business concerns. 

* * * * * 

(e) When the two highest rated 

offerors are a HUBZone small business 

concern and a large business, and the 

evaluated offer of the HUBZone small 

business concern is equal to the 

evaluated offer of the large business 

after considering the price evaluation 

preference, the contracting officer shall 

award the contract to the HUBZone 

small business concern. 

19.1308 [Redesignated as 19.1309] 

17. Redesignate section 19.1308 as 

19.1309; and add a new section 19.1308 

to read as follows: 

19.1308 Performance of work 

requirements (limitations on 

subcontracting). 

(a) Before issuing a solicitation for 

general construction or construction by 

special trade contractors, the contracting 

officer must determine if at least two 

HUBZone small business concerns can 

individually perform at least 50 percent 

of the cost of contract performance 

incurred for personnel, using its own 

employees or subcontract employees of 

other HUBZone small business 

concerns. If not, the clause at 52.219–3 

Notice of Total HUBZone Set-Aside or 

Sole Source Award, or 52.219–4, Notice 

of Price Evaluation Preference for 

HUBZone Small Business Concerns, 

shall be used, as applicable, with its 

Alternate I (see 19.1309). 

(b) See 13 CFR 125.6 for definitions of 

terms used in paragraph (a) of this 

section. 

18. Revise the newly designated 

section 19.1309 to read as follows: 

19.1309 Contract clauses. 

(a) The contracting officer shall insert 

the clause 52.219–3, Notice of Total 

HUBZone Set-Aside or Sole Source 

Award, in solicitations and contracts for 

acquisitions that are set aside for, or 

awarded on a sole source basis to, 

HUBZone small business concerns 

under 19.1305 or 19.1306. The 

contracting officer shall insert the clause 

with its Alternate I if market research 

indicates that there are not at least two 

HUBZone small business concerns that 

can meet the requirements of 19.1308. 

(b) The contracting officer shall insert 

the clause at FAR 52.219–4, Notice of 

Price Evaluation Preference for 

HUBZone Small Business Concerns, in 

solicitations and contracts for 

acquisitions conducted using full and 

open competition. The clause shall not 

be used in acquisitions that do not 

exceed the simplified acquisition 

threshold. The contracting officer shall 

insert the clause with its Alternate I if 

market research indicates that there are 

not at least two HUBZone small 

business concerns that can meet the 

requirements of 19.1308. 

PART 33—PROTESTS, DISPUTES, 

AND APPEALS 

19. Amend section 33.102 by revising 

the second sentence of paragraph (a) to 

read as follows: 

33.102 General. 

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

small business status, 19.305 for 

protests of disadvantaged business 

status, 19.306 for protests of HUBZone 

small business status, and 19.307 for 

protests of service-disabled veteranowned small business status. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

20. Amend section 52.212–3 by 

revising the date of the provision; 

removing from paragraph (c)(10)(i) the 

word ‘‘change’’ and adding ‘‘changes’’ 

in its place and removing the word 

‘‘has’’ and adding ‘‘have’’ in its place; 

and revising paragraph (c)(10)(ii). The 

revised text reads as follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

16828 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

Offeror Representations and 

Certifications—Commercial Items 

(Date) 

* * * * * 

(c) * * * 

(10) * * * 

(ii) It b is, b is not a HUBZone joint 

venture that complies with the requirements 

of 13 CFR Part 126, and the representation in 

paragraph (c)(10)(i) of this provision is 

accurate for each HUBZone small business 

concern participating in the HUBZone joint 

venture. [The offeror shall enter the names of 

each of the HUBZone small business 

concerns participating in the HUBZone joint 

venture: __________.] Each HUBZone small 

business concern participating in the 

HUBZone joint venture shall submit a 

separate signed copy of the HUBZone 

representation. 

* * * * * 

(End of provision) 

21. Amend section 52.212–5 by 

revising the date of the clause, 

paragraphs (b)(3), (b)(4), and (b)(8); and 

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

2009’’ and adding ‘‘(Date)’’ 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 (DATE) 

* * * * * 

(b) * * * 

ll(3) 52.219–3, Notice of Total HUBZone 

Set-Aside or Sole Source Award (Date) (15 

U.S.C. 657a). 

ll(4) 52.219–4, Notice of Price 

Evaluation Preference for HUBZone Small 

Business Concerns (Date) (if the offeror elects 

to waive the preference, it shall so indicate 

in its offer) (15 U.S.C. 657a). 

* * * * * 

___(8) 52.219–8, Utilization of Small 

Business Concerns (Date) (15 U.S.C. 637(d)(2) 

and (3)). 

* * * * * 

(End of clause) 

22. Amend section 52.213–4 by 

revising the date of the clause and 

paragraph (a)(2)(vi) 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) (DATE) 

* * * * * 

(a) * * * 

(2) * * * 

(vi) 52.244–6, Subcontracts for Commercial 

Items (Date). 

* * * * * 

(End of clause) 

23. Amend section 52.219–1 by 

revising the date of the clause and 

paragraphs (b)(6)(i) and (b)(6)(ii) to read 

as follows: 

52.219–1 Small Business Program 

Representations. 

* * * * * 

SMALL BUSINESS PROGRAM 

REPRESENTATIONS (DATE) 

* * * * * 

(b) * * * 

(6) * * * 

(i) It b is, b is not a HUBZone small 

business concern listed, on the date of this 

representation, on the List of Qualified 

HUBZone Small Business Concerns 

maintained by the Small Business 

Administration; and no material changes in 

ownership and control, principal office, or 

HUBZone employee percentage have 

occurred since it was certified in accordance 

with 13 CFR Part 126; and 

(ii) It b is, b is not a HUBZone joint 

venture that complies with the requirements 

of 13 CFR Part 126, and the representation in 

paragraph (b)(6)(i) of this provision is 

accurate for each HUBZone small business 

concern participating in the HUBZone joint 

venture. [The offeror shall enter the names of 

each of the HUBZone small business 

concerns participating in the HUBZone joint 

venture: __________.] Each HUBZone small 

business concern participating in the 

HUBZone joint venture shall submit a 

separate signed copy of the HUBZone 

representation. 

* * * * * 

24. Revise section 52.219–3 to read as 

follows: 

52.219–3 Notice of Total HUBZone SetAside or Sole Source Award. 

As prescribed in 19.1309(a), insert the 

following clause: 

NOTICE OF TOTAL HUBZONE SETASIDE OR SOLE SOURCE AWARD 

(DATE) 

(a) Definitions. See 13 CFR 125.6(e) for 

definitions of terms used in paragraph (c). 

(b) General. (1) Offers are solicited only 

from HUBZone small business concerns. 

Offers received from concerns that are not 

HUBZone small business concerns will not 

be considered. 

(2) Any award resulting from this 

solicitation will be made to a HUBZone small 

business concern. 

(c) Agreement. A HUBZone small business 

concern agrees that, in the performance of the 

contract, in the case of a contract for— 

(1) Services (except construction), at least 

50 percent of the cost of personnel for 

contract performance will be spent for 

employees of the concern or employees of 

other HUBZone small business concerns; 

(2) Supplies (other than acquisition from a 

nonmanufacturer of the supplies), at least 50 

percent of the cost of manufacturing, 

excluding the cost of materials, will be 

performed by the concern or other HUBZone 

small business concerns; 

(3) General construction, at least 50 percent 

of the cost of the contract performance 

incurred for personnel will be spent on the 

concern’s employees or on a combination of 

the concern’s employees and employees of 

HUBZone small business concern 

subcontractors. At least 15 percent of the cost 

of contract performance incurred for 

personnel will be spent on the concern’s 

employees. No more than 50 percent of the 

cost of contract performance incurred for 

personnel will be subcontracted to concerns 

that are not HUBZone small business 

concerns; or 

(4) Construction by special trade 

contractors, at least 50 percent of the cost of 

the contract performance incurred for 

personnel will be spent on the concern’s 

employees or on a combination of the 

concern’s employees and employees of 

HUBZone small business concern 

subcontractors. At least 25 percent of the cost 

of contract performance incurred for 

personnel will be spent on the concern’s 

employees. No more than 50 percent of the 

cost of contract performance incurred for 

personnel will be subcontracted to concerns 

that are not HUBZone small business 

concerns. 

(d) A HUBZone joint venture agrees that, 

in the performance of the contract, the 

applicable percentage specified in paragraph 

(c) of this clause will be performed by the 

aggregate of the HUBZone small business 

participants. 

(e)(1) When the total value of the contract 

exceeds $25,000, a HUBZone small business 

concern nonmanufacturer agrees to furnish in 

performing this contract only end items 

manufactured or produced by HUBZone 

small business concern manufacturers. 

(2) When the total value of the contract is 

equal to or less than $25,000, a HUBZone 

small business concern nonmanufacturer 

may provide end items manufactured by 

other than a HUBZone small business 

concern manufacturer provided the end 

items are produced or manufactured in the 

United States. 

(3) Paragraphs 1 and 2 do not apply in 

connection with construction or service 

contracts. 

(f) Notice. If this solicitation has been setaside for HUBZone small business concerns 

or the price evaluation preference for 

HUBZone small business concerns applies, 

the HUBZone small business offeror 

acknowledges the requirement that a 

prospective HUBZone awardee must be a 

HUBZone small business concern at the time 

of award of this contract. The HUBZone 

offeror shall provide the Contracting Officer 

a copy of the notice required by 13 CFR 

126.501 if material changes occur before 

contract award that could affect its HUBZone 

eligibility. If the apparently successful 

HUBZone offeror is not a HUBZone small 

business concern at the time of award of this 

contract, the Contracting Officer will proceed 

to award to the next otherwise successful 

HUBZone small business concern or other 

offeror. 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16829 

(End of Clause) 

Alternate I (Date). As prescribed in 

19.1309(a), substitute the following 

paragraphs (c)(3) and (c)(4) for 

paragraphs (c)(3) and (c)(4) of the basic 

clause: 

(3) General construction, at least 15 percent 

of the cost of the contract performance 

incurred for personnel will be spent on the 

concern’s employees; or 

(4) Construction by special trade 

contractors, at least 25 percent of the cost of 

the contract performance incurred for 

personnel will be spent on the concern’s 

employees. 

25. Amend section 52.219–4 by— 

a. Revising the prescription, date of 

the clause, and paragraph (a); 

b. Adding paragraph (b)(4); 

c. Removing from paragraph (c) 

‘‘paragraph (d) of’’ and adding 

‘‘paragraphs (d) and (e) of’’ in its place; 

d. Revising paragraphs (d)(3), (d)(4), 

(e) and (f); 

e. Adding paragraph (g) and Alternate 

I. 

The revised and added text reads as 

follows: 

52.219–4 Notice of Price Evaluation 

Preference for HUBZone Small Business 

Concerns. 

As prescribed in 19.1309(b), insert the 

following clause: 

NOTICE OF PRICE EVALUATION 

PREFERENCE FOR HUBZONE SMALL 

BUSINESS CONCERNS (DATE) 

(a) Definitions. See 13 CFR 125.6(e) for 

definitions of terms used in paragraph (d). 

(b) * * * 

(4) When the two highest rated offerors are 

a HUBZone small business concern and a 

large business, and the evaluated offer of the 

HUBZone small business concern is equal to 

the evaluated offer of the large business after 

considering the price evaluation preference, 

award will be made to the HUBZone small 

business concern. 

(d) * * * 

(3) General construction, at least 50 percent 

of the cost of the contract performance 

incurred for personnel will be spent on the 

concern’s employees or on a combination of 

the concern’s employees and employees of 

HUBZone small business concern 

subcontractors. At least 15 percent of the cost 

of contract performance incurred for 

personnel will be spent on the concern’s 

employees. No more than 50 percent of the 

cost of contract performance incurred for 

personnel will be subcontracted to concerns 

that are not HUBZone small business 

concerns; or 

(4) Construction by special trade 

contractors, at least 50 percent of the cost of 

the contract performance incurred for 

personnel will be spent on the concern’s 

employees or on a combination of the 

concern’s employees and employees of 

HUBZone small business concern 

subcontractors. At least 25 percent of the cost 

of contract performance incurred for 

personnel will be spent on the concern’s 

employees. No more than 50 percent of the 

cost of contract performance incurred for 

personnel will be subcontracted to concerns 

that are not HUBZone small business 

concerns. 

(e) A HUBZone joint venture agrees that 

the aggregate of the HUBZone small business 

concerns to the joint venture, not each 

concern separately, will perform the 

applicable percentage of work requirements. 

(f)(1) When the total value of the contract 

exceeds $25,000, a HUBZone small business 

concern nonmanufacturer agrees to furnish in 

performing this contract only end items 

manufactured or produced by HUBZone 

small business concern manufacturers. 

(2) When the total value of the contract is 

equal to or less than $25,000, a HUBZone 

small business concern nonmanufacturer 

may provide end items manufactured by 

other than a HUBZone small business 

concern manufacturer provided the end 

items are produced or manufactured in the 

United States. 

(3) Paragraphs 1 and 2 do not apply in 

connection with construction or service 

contracts. 

(g) Notice. If this solicitation has been set 

aside for HUBZone small business concerns 

or the price evaluation preference for 

HUBZone small business concerns applies, 

the HUBZone small business offeror 

acknowledges the requirement that a 

prospective HUBZone awardee must be a 

HUBZone small business concern at the time 

of award of this contract. The HUBZone 

offeror shall provide the Contracting Officer 

a copy of the notice required by 13 CFR 

126.501 if material changes occur before 

contract award that could affect its HUBZone 

eligibility. If the apparently successful 

HUBZone offeror is not a HUBZone small 

business concern at the time of award of this 

contract, the Contracting Officer will proceed 

to award to the next otherwise successful 

HUBZone small business concern or other 

offeror. 

(End of Clause) 

Alternate I (Date). As prescribed in 

19.1309(b), substitute the following 

paragraphs (d)(3) and (d)(4) for 

paragraphs (d)(3) and (d)(4) of the basic 

clause: 

(3) General construction, at least 15 percent 

of the cost of the contract performance 

incurred for personnel will be spent on the 

concern’s employees; or 

(4) Construction by special trade 

contractors, at least 25 percent of the cost of 

the contract performance incurred for 

personnel will be spent on the concern’s 

employees. 

26. Amend section 52.219–8 by 

revising the date of the clause and 

paragraph (d) to read as follows: 

52.219–8 Utilization of Small Business 

Concerns. 

* * * * * 

UTILIZATION OF SMALL BUSINESS 

CONCERNS (DATE) 

* * * * * 

(d)(1) Contractors acting in good faith may 

rely on written representations by their 

subcontractors regarding their status as a 

small business concern, a veteran-owned 

small business concern, a service-disabled 

veteran-owned small business concern, a 

small disadvantaged business concern, or a 

women-owned small business concern. 

(2) The Contractor shall confirm that a 

subcontractor representing itself as a 

HUBZone small business concern is certified 

by SBA as a HUBZone small business 

concern by accessing the Central Contractor 

Registration (CCR) database or by contacting 

the SBA. Options for contacting the SBA 

include— 

(i) HUBZone web page at http:// 

dsbs.sba.gov/dsbs/dsp_searchhubzone.cfm; 

(ii) In writing to the—AA/HUB, U.S. Small 

Business Administration, 409 3rd Street, 

SW., Washington DC 20416; or 

(iii) E-mail at hubzone@sba.gov. 

(3) Upon determination of the successful 

subcontract offeror for a competitive 

subcontract, the Contractor must inform each 

unsuccessful subcontract offeror in writing of 

the name and location of the apparent 

successful offeror prior to award of the 

contract. 

(End of clause) 

52.244–6 [Amended] 

27. Amend section 52.244–6 by 

removing from the clause heading ‘‘(Dec 

2008)’’ and adding ‘‘(Date)’’ in its place; 

and by removing from paragraph 

(c)(1)(ii) ‘‘(May 2004)’’ and adding 

‘‘(Date)’’ in its place. 

[FR Doc. E9–8318 Filed 4–10–09; 8:45 am] 

BILLING CODE 6820–EP–P