Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Proposed Rules 3761 

Notice of Set-Aside for, or Sole-Source 

Award to, Economically Disadvantaged 

Women-Owned Small Business Concerns 

(DATE) 

* * * * * 

(b) * * * 

(3) Orders set aside for contract 

awardees that are EDWOSB concerns 

under multiple-award contracts as 

described in 8.405–5 and 

16.505(b)(1)(i)(C); and 

* * * * * 

■ 24. Amend section 52.219–30 by 

revising the date of clause and 

paragraph (b)(3) to read as follows: 

52.219–30 Notice of Set-Aside for, or SoleSource Award to, Women-Owned Small 

Business Concerns Eligible Under the 

Women-Owned Small Business Program. 

* * * * * 

Notice of Set-Aside for, or Sole-Source 

Award to, Women-Owned Small Business 

Concerns Eligible Under the Women-Owned 

Small Business Program (DATE) 

* * * * * 

(b) * * * 

(3) Orders set aside for contract 

awardees that are WOSB concerns 

eligible under the WOSB Program, 

under multiple-award contracts as 

described in 8.405–5 and 

16.505(b)(1)(i)(C); and 

* * * * * 

■ 25. Amend section 52.219–33 by— 

■ a. Revising the date of the clause and 

paragraph (b)(2)(iii)(A); and 

■ b. In paragraph (b)(2)(iv)(A) removing 

‘‘16.505(b)(2)(i)(F)’’ and adding 

‘‘16.505(b)(1)(i)(C)’’ in its place. 

The revisions read as follows: 

52.219–33 Nonmanufacturer Rule. 

* * * * * 

Nonmanufacturer Rule (DATE) 

* * * * * 

(b) * * * 

(2) * * * 

(iii) * * * 

(A) Set aside for contract awardees 

that are small business concerns under 

multiple-award contracts, as described 

in 8.405–5 and 16.505(b)(1)(i)(C); or 

* * * * * 

[FR Doc. 2025–00615 Filed 1–14–25; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 16 

[FAR Case 2024–007, Docket No. FAR– 

2024–0007, Sequence No. 1] 

RIN 9000–AO76 

Federal Acquisition Regulation: 

Protests of Orders Under Certain 

Multiple-Award Contracts 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to clarify 

protest rights for orders set aside under 

certain multiple-award contracts. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat Division at the address 

shown below on or before March 17, 

2025, to be considered in the formation 

of the final rule. 

ADDRESSES: Submit comments in 

response to FAR Case 2024–007 to the 

Federal eRulemaking portal at https://

www.regulations.gov by searching for 

‘‘FAR Case 2024–007’’. Select the link 

‘‘Comment Now’’ that corresponds with 

‘‘FAR Case 2024–007’’. Follow the 

instructions provided on the ‘‘Comment 

Now’’ screen. Please include your name, 

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

2024–007’’ on your attached document. 

If your comment cannot be submitted 

using https://www.regulations.gov, call 

or email the points of contact in the FOR

FURTHER INFORMATION CONTACT section of 

this document for alternate instructions. 

Instructions: Please submit comments 

only and cite ‘‘FAR Case 2024–007’’ in 

all correspondence related to this case. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. Public comments 

may be submitted as an individual, as 

an organization, or anonymously (see 

frequently asked questions at https://

www.regulations.gov/faq). To confirm 

receipt of your comment(s), please 

check https://www.regulations.gov, 

approximately two to three days after 

submission to verify posting. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Carrie Moore, Procurement Analyst, at 

571–300–5917 or by email at 

carrie.moore@gsa.gov. For information 

pertaining to status, publication 

schedules, or alternate instructions for 

submitting comments if https://

www.regulations.gov cannot be used, 

contact the Regulatory Secretariat 

Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAR 

Case 2024–007. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA are proposing 

to revise the FAR to clarify protest 

rights, in accordance with existing 

statute and regulations, when an order 

is or is not set aside. This includes 

whether the action was taken in 

accordance with the policy proposed in 

FAR Case 2023–011, Small Business 

Participation on Certain MultipleAward Contracts, published at XX FR 

XXX, on January XX, 2025. 

To increase small business 

opportunities and maximize their 

participation on multiple-award 

contracts, FAR Case 2023–011 proposes 

guidance for contracting officers 

regarding how to exercise the statutory 

grant of discretion to set aside an order 

for a small business under a multipleaward contract. Under that proposed 

rule, if the contracting officer 

determines that there is a reasonable 

expectation of obtaining offers from two 

or more responsible small business 

awardees that are competitive in terms 

of various criteria under the applicable 

multiple-award contract, then the order 

should be set aside for small business. 

This proposed rule for FAR Case 2024– 

007 clarifies that the proposed rule for 

FAR Case 2023–011 does not alter the 

existing statutory grant of discretion to 

agencies as to whether or not to set 

aside an order. The proposed rule for 

FAR Case 2023–011, if finalized, cannot 

alter the existing protest rights in 

connection with the issuance or 

proposed issuance of an order under a 

multiple-award contract. (See FAR 

16.505(a)(10), 41 U.S.C. 4106, and 10 

U.S.C. 3406.) 

II. Discussion and Analysis 

This proposed rule adds clarifying 

text to FAR part 16 to specify that a 

contracting officer’s decision to set aside 

or not set aside an order under a 

multiple-award contract is not grounds 

for protest. 

Specifically, under 15 U.S.C. 644(r), 

Federal agencies, and contracting 

officers acting on behalf of those 

agencies, are granted discretion as to 

whether to set aside an order under a 

multiple-award contract for small 


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3762 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Proposed Rules 

businesses. This statutory grant of 

discretion means that agencies are not 

required to set aside orders; it is a 

choice. To the extent a bid protest 

challenges an agency’s decision to set 

aside or not set aside an order for small 

business, that protest challenges a 

discretionary act statutorily committed 

to agency decision-making, and 

therefore cannot form the basis for a 

protest seeking to compel an agency to 

make a different choice. 

This issue has not been clearly 

understood and has been subject to 

litigation, which is why FAR Case 

2023–011 proposes to clarify guidance 

for agencies and this FAR Case 2024– 

007 proposes to clarify protest rights. 

On the one hand, in a series of 

decisions, the U.S. Government 

Accountability Office (GAO) has 

determined that 15 U.S.C. 644(r) 

‘‘clearly provides for granting agency 

officials discretion in deciding whether 

to set aside orders under multiple-award 

contracts.’’ Aldevra, B–411752 (Oct. 16, 

2015), 2015 CPD ¶ 339. In a separate 

decision, GAO discussed 15 U.S.C. 

644(r) and the regulations implementing 

that provision in the FAR and issued by 

the SBA, and concluded that, ‘‘we think 

it is beyond debate that these 

regulations, by their plain language, 

grant discretion to a contracting officer 

about whether to set aside for small 

business participation task orders 

placed under multiple-award 

contracts.’’ See FAR 19.502–4 and 

16.505(b)(2)(i)(F). Edmond Scientific 

Co., B–410179 (Nov. 12, 2014), 2014 

CPD ¶ 336. On the other hand, the U.S. 

Court of Federal Claims, in Tolliver 

Group, Inc. v. United States, 151 Fed. 

Cl. 70 (2020), held that an agency is 

required to apply the Rule of Two prior 

to deciding to utilize a given multipleaward contract, and that, if the Rule of 

Two is satisfied, the agency is required 

to set the contract aside for small 

business. The Court rejected the 

position that 15 U.S.C. 644(r) provides 

agencies with discretion to utilize a 

multiple-award contract and then 

decide whether to set the order aside for 

small business. 

Through the proposed rule for FAR 

case 2023–011, as well as this proposed 

rule, DoD, GSA, and NASA seek to 

address the confusion and disagreement 

regarding the discretion that is provided 

to agencies by clarifying the guidance 

previously issued under 15 U.S.C. 

644(r). DoD, GSA, and NASA agree 

with, and adopts, GAO’s conclusion that 

‘‘the statutory grant of discretion does 

not require application of the Rule of 

Two prior to issuing an order, unless the 

multiple-award contract or task order 

solicitation expressly anticipated the 

use of the Rule of Two.’’ ITility, LLC, B– 

419167 (Dec. 23, 2020), 2020 CPD ¶ 412. 

Furthermore, as GAO explained in this 

decision, the discretion provided by the 

statute necessarily means that an agency 

decision as to whether to set aside an 

order, or not to set it aside, under a 

multiple-award contract, is not a 

decision that can be challenged via a bid 

protest: ‘‘Where Congress has 

enunciated a clear policy granting 

contracting officials discretion, and the 

Executive Branch’s regulatory 

implementation similarly emphasizes 

the statutory grant of discretion, our 

Office cannot substitute the parties’ or 

our own judgments on the matter.’’ Id. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items) 

or for Commercial Services 

This proposed rule does not create 

new solicitation provisions or contract 

clauses or impact any existing 

provisions or clauses. 

IV. Expected Impact of the Rule 

This proposed rule is expected to 

impact contractors and the Government 

by clarifying that the proposed policies 

of FAR Case 2023–011 and the existing 

statutory grant of discretion to agencies 

as to whether or not to set aside an order 

do not alter the existing protest rights in 

connection with the issuance or 

proposed issuance of an order under a 

multiple-award contract. As such, this 

clarification is expected to deter 

contractors from submitting protests of 

decisions to set aside or not set aside 

orders placed against multiple-award 

contracts, thereby saving contractors 

and the Government time and resources. 

This savings in time and resources is 

expected to expedite the award of such 

orders and preclude delays in meeting 

mission needs. This rule is also 

expected to provide clarity for all 

parties in the protest process. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 (as 

amended by E.O. 14094) and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action under section 3(f)(1) of 

E.O. 12866 and, therefore, was not 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

VI. Regulatory Flexibility Act 

DoD, GSA, and NASA do not expect 

this proposed rule, if finalized, to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, 

because this rule only clarifies protest 

statute and regulations for contractors 

and the Government. However, an 

Initial Regulatory Flexibility Analysis 

(IRFA) has been performed and is 

summarized as follows: 

DoD, GSA, and NASA are proposing to 

amend the Federal Acquisition Regulation 

(FAR) to specify that the policy of FAR Case 

2023–011, which proposes guidance for 

contracting officers regarding how to exercise 

the existing statutory grant of discretion to 

agencies as to whether or not to set aside an 

order, does not alter the existing protest 

rights in connection with the issuance or 

proposed issuance of an order under a 

multiple-award contract. 

The objective of this rule is to clarify 

protest regulations in the FAR regarding the 

set-aside of certain orders under multipleaward contracts. Promulgation of FAR 

regulations is authorized by 40 U.S.C. 121(c); 

10 U.S.C. chapter 4 and 10 U.S.C. chapter 

137 legacy provisions (see 10 U.S.C. 3016); 

and 51 U.S.C. 20113. 

This proposed rule will impact small 

business contract holders under certain 

multiple-award contracts. Specifically, small 

entities will have clear guidance regarding 

when an order under a multiple-award 

contract may be protested. The impacts of 

this rule cannot be quantified, as there is no 

reliable way to estimate the number of 

protests that would have occurred without 

this proposed rule; therefore, there is no data 

with which to accurately reflect the number 

of small entities to which this rule will 

apply. Instead, this rule has the potential to 

benefit any small entity looking to do 

business with the Government under certain 

multiple-award contracts. According to data 

from the System for Award Management 

(SAM), there are approximately 384,100 

small entities currently registered in SAM to 

do business with the Government. This 

proposed rule has the potential to impact any 

number of these small entities, depending on 

several factors, including: the primary 

industry of the entity; the Government’s 

future needs for products and services; and 

the entity’s submission of proposals and 

offers for orders to be placed against 

multiple-award contracts. 

The proposed rule does not impose any 

new reporting, recordkeeping, or other 

compliance requirements for small entities. 

The proposed rule does not duplicate or 

conflict with any other Federal rules. This 

rule is related to and overlaps with the 

proposed rule for FAR Case 2023–011. 


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Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Proposed Rules 3763 

There are no known significant alternative 

approaches to the proposed rule that would 

accomplish the stated objectives of the rule 

and further minimize any significant 

economic impact of this proposed rule on 

small entities, as the economic impact is not 

anticipated to be significant. 

The Regulatory Secretariat Division 

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 

Regulatory Secretariat Division. DoD, 

GSA, and NASA invite comments from 

small business concerns and other 

interested parties on the expected 

impact of this proposed rule on small 

entities. 

DoD, GSA, and NASA will also 

consider comments from small entities 

concerning the existing regulations in 

subparts affected by the rule in 

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

parties must submit such comments 

separately and should cite 5 U.S.C. 610 

(FAR Case 2024–007), in 

correspondence. 

VII. Paperwork Reduction Act 

This rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521). 

List of Subjects in 48 CFR Part 16 

Government procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR part 16 as set 

forth below: 

PART 16—TYPES OF CONTRACTS 

■ 1. The authority citation for 48 CFR 

part 16 continues to read as follows: 

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

chapter 4 and 10 U.S.C. chapter 137 legacy 

provisions (see 10 U.S.C. 3016); and 51 

U.S.C. 20113. 

■ 2. Amend section 16.505 by adding 

paragraph (a)(10)(iv) to read as follows: 

16.505 Ordering. 

(a) * * * 

(10) * * * 

(iv) In accordance with 15 U.S.C. 

644(r), a contracting officer’s decision to 

set aside or not set aside an order for 

small business concerns is an exercise 

of discretion granted to agencies and not 

a basis for protest. However, this does 

not preclude the filing of a protest of 

such an order if such a protest would 

otherwise be authorized on a separate 

basis recognized in accordance with 

paragraph (a)(10)(i) of this section. 

* * * * * 

[FR Doc. 2025–00616 Filed 1–14–25; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2022–0150; 

FF09E21000–256–FXES11130900000] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding for the 

Greater Yellowstone Ecosystem of the 

Grizzly Bear in the Lower-48 States 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notification of finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to 

establish and delist a Greater 

Yellowstone Ecosystem (GYE) distinct 

population segment (DPS) of the grizzly 

bear (Ursus arctos horribilis) in the 

lower-48 States. After a thorough review 

of the best scientific and commercial 

data available, we find that grizzly bears 

in the petitioned DPS do not, on their 

own, represent a valid DPS. Thus, we 

find that the petitioned action to 

establish and delist a GYE DPS is not 

warranted at this time. 

DATES: The finding in this document 

was made on January 15, 2025. 

ADDRESSES: The finding and the 

supporting information that we 

developed for this finding, including the 

species status assessment report and 

species assessment form, are available 

on the internet at https://

www.regulations.gov under Docket No. 

FWS–R6–ES–2022–0150. Please submit 

any new information, materials, 

comments, or questions concerning this 

finding to the appropriate person, as 

specified under FOR FURTHER

INFORMATION CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Hilary Cooley, Grizzly Bear Recovery 

Coordinator, Grizzly Bear Recovery 

Office, telephone: 406–243–4903, email: 

hilary_cooley@fws.gov. Individuals in 

the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Previous Federal Actions 

Under the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.; hereafter, ‘‘Act’’), the grizzly bear 

(Ursus arctos horribilis) is currently 

listed as threatened species in the 

lower-48 States (40 FR 31734, July 28, 

1975). We detail the original rulemaking 

and our subsequent actions for the 

species in our species status assessment 

(SSA) report (Service 2024, pp. 74–76) 

and summarize the relevant actions for 

this finding below. 

On June 30, 2017, we finalized a rule 

to establish the Greater Yellowstone 

Ecosystem (GYE) distinct population 

segment (DPS) of the grizzly bear and 

remove it from the Federal List of 

Endangered and Threatened Wildlife 

(List) due to recovery (82 FR 30502). 

However, in 2018, the U.S. District 

Court for the District of Montana 

vacated and remanded the 2017 

delisting rule, putting the GYE grizzly 

bear population back on the List (as 

threatened) as part of the lower-48 

States listed entity. As a result, the List 

does not currently include an entry for 

a GYE DPS. On March 30, 2021, we 

completed a 5-year status review for the 

grizzly bear in the lower-48 States in 

which we concluded that the listed 

entity should retain its status as a 

threatened species under the Act 

(Service 2021, entire). 

On January 21, 2022, we received a 

petition from the State of Wyoming 

(petitioner) to revise the listed entity of 

grizzly bear under the Act. The petition 

requested that we: (1) establish a GYE 

DPS; and (2) remove it from the List 

(‘‘delist’’), asserting that the GYE DPS 

did not meet the definition of an 

endangered or threatened species. On 

February 6, 2023, we published a 90-day 

finding (88 FR 7658) that the petition 

contained substantial information 

indicating that establishing and 

delisting a GYE DPS may be warranted. 

This document and our supporting 

species assessment form constitutes our 

12-month finding on the January 21, 

2022, petition to establish and delist a 

GYE DPS of grizzly bear under the Act. 

Background 

Under section 4(b)(3)(B) of the Act (16 

U.S.C. 1531 et seq.), we are required to 

make a finding, within 12 months after 

receiving any petition that we have 

determined contains substantial 

scientific or commercial information 

indicating that the petitioned action 

may be warranted, as to whether the 

petitioned action is warranted, not 


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