24836 Federal Register / Vol. 87, No. 80 / Tuesday, April 26, 2022 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket No. FAR–2022–0051, Sequence No. 

3] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2022–06; 

Introduction 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Summary presentation of final 

rules. 

SUMMARY: This document summarizes 

the Federal Acquisition Regulation 

(FAR) rules agreed to by the Civilian 

Agency Acquisition Council and the 

Defense Acquisition Regulations 

Council (Councils) in this Federal 

Acquisition Circular (FAC) 2022–06. A 

companion document, the Small Entity 

Compliance Guide (SECG), follows this 

FAC. 

DATES: For effective dates see the 

separate documents, which follow. 

ADDRESSES: The FAC, including the 

SECG, is available at https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: The 

analyst whose name appears in the table 

below in relation to the FAR case. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat Division at 202– 

501–4755 or GSARegSec@gsa.gov. 

RULES LISTED IN FAC 2022–06 

Item Subject FAR case Analyst 

I .................... Applicability of Small Business Regulations Outside the United States ...................... 2016–002 Uddowla. 

II ................... Technical Amendments.

SUPPLEMENTARY INFORMATION: 

Summaries for each FAR rule follow. 

For the actual revisions and/or 

amendments made by these FAR rules, 

refer to the specific item numbers and 

subjects set forth in the documents 

following these item summaries. FAC 

2022–06 amends the FAR as follows: 

Item I—Applicability of Small Business 

Regulations Outside the United States 

(FAR Case 2016–002) 

This final rule amends the Federal 

Acquisition Regulation (FAR) to give 

agencies the tools they need, especially 

the ability to use set-asides, to maximize 

opportunities for small businesses 

outside the United States or its outlying 

areas, as defined in FAR part 2. Prior to 

this rule, the FAR stated that the small 

business programs do not apply outside 

of the United States (FAR 19.000(b)). 

This rule supports the Small Business 

Administration (SBA) policy of 

including overseas contracts in agency 

small business contracting goals. 

Item II—Technical Amendments 

Editorial changes are made at FAR 

4.402, 4.1103, 12.302, 12.402, 15.601, 

18.205, 46.102, 52.212–5, and 52.222– 

54. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Federal Acquisition Circular (FAC) 

2022–06 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator of National 

Aeronautics and Space Administration. 

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2022–06 is effective April 26, 

2022 except for Item I, which is effective 

May 26, 2022, and Item II, which is 

effective May 1, 2022. 

Linda W. Neilson 

Director, Defense Pricing and Contracting 

(DARS) Department of Defense. 

Jeffrey A. Koses, 

Senior Procurement Executive/Deputy CAO, 

Office of Acquisition Policy, U.S. General 

Services Administration. 

Karla Smith Jackson, 

Assistant Administrator for Procurement, 

Senior Procurement Executive, National 

Aeronautics and Space Administration. 

[FR Doc. 2022–08720 Filed 4–25–22; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 19, and 52 

[FAC 2022–06; FAR Case 2016–002; Item 

I; Docket No. 2016–0002, Sequence No. 1] 

RIN 9000–AN34 

Federal Acquisition Regulation: 

Applicability of Small Business 

Regulations Outside the United States 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

support the Small Business 

Administration (SBA) policy of 

including overseas contracts in agency 

small business contracting goals. This 

final rule allows small business 

contracting procedures, e.g., set-asides, 

to apply to overseas procurements. 

DATES: Effective: May 26, 2022. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mahruba Uddowla, Procurement 

Analyst, at 703–605–2868, or by email 

at mahruba.uddowla@gsa.gov, for 

clarification of content. For information 


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pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAC 

2022–06, FAR Case 2016–002. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 84 FR 39793 on August 

12, 2019, to support SBA’s policy of 

including overseas contracts in agency 

small business contracting goals by 

allowing small business contracting 

procedures, e.g., set-asides, to apply to 

overseas procurements (i.e., 

procurements outside the United States 

and its outlying areas), which is 

expected to expand overseas 

opportunities for small business 

concerns. Twenty-six respondents 

submitted comments on the proposed 

rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule. A 

discussion of the comments received 

and any changes made to the rule as a 

result of the public comments are 

provided as follows: 

A. Summary of Significant Changes 

From the Proposed Rule 

This final rule makes conforming 

changes to FAR solicitation provisions 

52.204–8, Annual Representations and 

Certifications, and 52.212–3, Offeror 

Representations and Certifications— 

Commercial Products and Commercial 

Services. These changes are required to 

resolve conflicts between these 

provisions and the changes in the 

proposed rule to the prescriptions at 

FAR 19.309. 

B. Analysis of Public Comments 

1. Support for the Rule 

Comment: Multiple respondents 

expressed their support for the rule. 

Response: The Councils acknowledge 

the respondents’ support for the rule. 

2. Opposition to the Rule 

Comment: A few respondents 

expressed their opposition to the rule. 

Response: The Councils acknowledge 

the respondents’ opposition to the rule. 

The Councils have taken into 

consideration all of the public 

comments in the development of this 

final rule. 

3. Legal Concerns Regarding Overseas 

Application of the Small Business Act 

Comment: One respondent stated that 

the Small Business Act must show an 

affirmative intent to apply overseas and 

reconcile conflicts of law, otherwise the 

statute is meant to apply only within the 

territorial jurisdiction of the United 

States. The respondent further stated the 

Small Business Act is silent regarding 

its application overseas and does not 

account for conflicts of law. A second 

respondent stated that it has been the 

position of DoD that the Small Business 

Act does not apply outside of the United 

States and its outlying areas. According 

to the respondent, absent a statement of 

Congressional intent, the Government 

Accountability Office (GAO) has 

deferred to DoD’s interpretation of the 

Small Business Act embodied in FAR 

19.000(b) (Latvian Connection Gen. 

Trading & Constr. LLC, B–408633, 2013 

CPD 224, September 8, 2013). The 

respondent described GAO’s deference 

to DoD’s interpretation embodied in the 

FAR as an example of ‘‘Chevron’’ 

deference, which does not give agencies 

license to follow statutes to the extent 

they deem desirable; instead, it is 

deference to an agency’s permissible 

interpretation of an ambiguous statute. 

A third respondent noted that the 

Federal Acquisition Regulatory Council 

(FAR Council) stated that the change in 

the proposed rule is being done to be 

consistent with SBA’s own rules. The 

respondent stated that by revising FAR 

19.000(b) to explicitly make application 

of FAR part 19 ‘‘discretionary’’ for 

overseas contracts, the FAR Council is 

amending the FAR to continue to 

conflict with SBA’s regulations directly, 

or at the very least conflict with SBA’s 

stated interpretation of its regulations. 

This respondent mentioned that SBA’s 

interpretation of the Small Business Act 

is that the application of the Act 

overseas is mandatory, not 

discretionary. The respondent 

recommended that the FAR Council 

consult with SBA to ensure the FAR 

rule, and FAR 19.000(b) in particular, 

conform to SBA’s regulations. Two 

respondents expressed concern 

regarding conflicts between this FAR 

rule and treaties and international 

agreements. One of the respondents 

stated the proposed rule did not require 

the contracting officer to document how 

they considered international 

agreements when exercising their 

discretion. The other respondent 

indicated that overseas contracting 

officers will not have the discretion to 

apply FAR part 19 when international 

treaties or international agreements 

require solicitation or award to host 

nation sources. According to this 

respondent, if the proposed rule is 

adopted, it should be revised to reflect 

this lack of discretion. 

Response: In its October 2, 2013, final 

rule, SBA applied the Small Business 

Act to overseas acquisitions. The 

Councils note that, at the time of the 

GAO’s decision in the cited Latvian 

Connection case, SBA’s regulations 

were silent regarding the application of 

the Small Business Act outside the 

United States and its outlying areas. 

SBA’s final rule amended 13 CFR 125.2, 

which SBA stated was issued in part to 

clarify its position that the Small 

Business Act applies ‘‘regardless of the 

place of performance’’. 

The Councils proposed to amend the 

FAR to support SBA’s changes to the 

basis for the Governmentwide small 

business contracting goals. This rule 

will allow for application of FAR part 

19 overseas and thereby expand 

opportunities for small business 

concerns overseas. The Councils are 

aware that the SBA regulations at 13 

CFR 125.2 do not make application of 

small business set-aside and sole-source 

authorities discretionary for overseas 

acquisitions. However, the Councils 

recognize that overseas acquisitions are 

subject to international agreements, 

treaties, local laws, diplomatic and 

other considerations that are unique to 

the overseas environment and may limit 

the Government’s ability to apply the 

small business preferences in FAR part 

19 on a mandatory basis. In addition, 

the Councils believe that policies issued 

subsequent to the promulgation of 

SBA’s regulations, such as those in 

Executive Order (E.O.) 14005, Ensuring 

the Future Is Made in All of America by 

All of America’s Workers, addressing 

steps to increase reliance on domestic 

manufacturing, will operate more 

effectively with a discretionary policy 

for use of set-asides overseas. 

It is not practicable to list in the FAR 

everything that may affect the decision 

to set aside an overseas acquisition. 

Therefore, the Councils are amending 

the FAR to make the use of part 19 

discretionary outside the United States 

and its outlying areas, so agencies and 

their contracting officers can consider 

these factors in the exercise of their 

discretion. The Councils confirm that 

SBA representatives participated in the 

development of both the proposed and 

final FAR rules and concurred with both 

the proposed and final FAR rules. 

4. Rule Creates Conflicts Within the 

FAR 

Comment: Two respondents stated 

that the proposed rule created conflicts 


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within the FAR. The respondents cited 

the following examples of conflicts: 

• The provisions at FAR 52.204–8, 

Annual Representations and 

Certifications, and 52.212–3, Offeror 

Representations and Certifications— 

Commercial Products and Commercial 

Services, explicitly provide that small 

business representations only apply 

when the resulting contract is to be 

performed in the United States or its 

outlying areas. This conflict makes the 

rule unclear for offerors and contracting 

officers. 

• FAR 19.702(b)(3) and 19.708 do not 

explicitly require small business 

subcontracting plans for any contract 

performed entirely outside the United 

States or its outlying areas. The 

respondent believes that it is illogical 

for an agency to set aside an overseas 

contract for small business when it is 

prohibited from requiring small 

business subcontracting for those same 

contracts. The respondent points to 

Defense Federal Acquisition Regulation 

Supplement (DFARS) clause 252.225– 

7002(b), Qualifying Country Sources as 

Subcontractors, as a further example 

that complements the FAR’s prohibition 

on requiring a small business 

subcontracting plan for overseas 

contract. 

• FAR part 25, Foreign Acquisition, is 

problematic to reconcile with the 

proposed rule. Specifically, the 

respondent points to the requirements at 

FAR 25.802 and DFARS 225.7401 for 

contracting officers to incorporate 

relevant requirements of international 

agreements into solicitations and 

contracts, while the proposed rule is 

silent on how contracting officers are to 

account for international agreements in 

making their discretionary set-aside 

decisions. 

• It is difficult for a small business to 

comply with the requirements at FAR 

52.219–14, Limitations on 

Subcontracting, and the ‘‘Balance of 

Payments’’ regulations at DFARS 225.75 

(e.g., World Trade Organization 

Government Procurement Agreement) 

because each requirement specifies use 

of certain sources. 

Response: With regard to the 

representation provisions, the Councils 

concur that there is a conflict. 

Conforming edits have been made to 

resolve the conflict at FAR 52.204– 

8(c)(1)(xii) and (xiii) as well as FAR 

52.212–3(c). 

With regard to FAR subpart 19.7, the 

Councils note that FAR 19.702(b) states 

that small business subcontracting plans 

are not required for contracts performed 

entirely overseas, but it does not 

prohibit use of set-asides for prime 

contracts overseas. Therefore, there is 

no conflict that needs to be resolved. 

With regard to FAR 25.802, this final 

rule provides discretion to contracting 

officers in making a set-aside decision 

for overseas acquisitions so they can 

choose the appropriate acquisition 

strategy for the location. The discretion 

provided in the rule will allow 

contracting officers to avoid possible 

conflicts between FAR 52.219–14 and 

other regulations. For further discussion 

related to international agreements, see 

the responses to comments under 

category 9. For further discussion 

related to the limitations on 

subcontracting, see the response to 

comments under category 11. 

5. Application of Consolidation and 

Bundling to Overseas Contracts 

Comment: Two respondents 

recommend not revising the definition 

of ‘‘bundling’’ in FAR subpart 2.1, 

Definitions, to make bundling 

applicable to a contract that will be 

awarded and performed entirely outside 

of the United States. The respondents 

believe that if the requirements of FAR 

7.107–2, Consolidation; 7.107–3, 

Bundling; and 7.107–4, Substantial 

bundling, are mandatory for overseas 

contracts, then: (a) Contracting officers 

would be required to justify not 

applying FAR part 19, and (b) this 

would cause overseas procurement 

actions involving bundling to be 

extremely burdensome, time 

consuming, and unlikely to occur. 

Therefore, contracting officers should 

not be required to follow consolidation 

and bundling procedures for overseas 

contracts. One of the respondents stated 

that making bundling requirements 

applicable to overseas acquisitions is 

problematic for two reasons. First, such 

requirements can be inconsistent with 

acquisition approaches and source 

restrictions in international agreements, 

foreign military sales (FMS) letters of 

offer and acceptance, and other 

arrangements with foreign partners. 

Second, agencies regularly use the 

bundling strategy to make overseas 

requirements attractive to capable 

vendors to induce them to enter foreign 

markets. 

Response: The Small Business Act 

does not exempt an agency from 

justifying its consolidation and 

bundling of contract requirements based 

on location of award, location of service 

performance, or location of supply 

delivery. The Councils note that the 

FAR currently applies the consolidation 

requirements to overseas contracts, 

which is consistent with the Small 

Business Act. As such, this rule is not 

making any changes to the FAR 

definition of ‘‘consolidation or 

consolidated requirement’’ at FAR 

2.101, Definitions, nor the applicability 

of FAR 7.107–2, Consolidation. The 

bundling requirements at FAR 7.107–3, 

Bundling, and 7.107–4, Substantial 

bundling, require an agency to make a 

written determination that such action 

is necessary and justified, allowing 

agencies to bundle in certain 

circumstances. Applying the bundling 

requirements to overseas contracts 

requires agencies to provide for 

maximum practicable participation by 

small business concerns as contractors. 

Providing for maximum practicable 

participation by small business 

concerns is not the same as mandating 

the use of set-asides or creating a de 

facto justification requirement for not 

applying FAR part 19 to overseas 

contracts. The respondent’s comments 

on the DoD FMS Program are outside 

the scope of this case. 

6. Negative Impacts of the Rule 

a. Higher Prices 

Comment: Two respondents stated the 

changes in the proposed rule would 

negatively impact the taxpayer by 

driving up prices. One of the 

respondents believed that foreignowned entities would almost always 

have better pricing for contracts 

performed overseas than U.S.-owned 

small businesses. The other respondent 

believed the changes would result in 

higher liabilities, ignorance of the 

market and environment, and less 

control over the work. 

Response: The Councils recognize 

that overseas contracts are subject to 

considerations that are unique to the 

overseas environment, as described in 

the response to comments under 

category 3. In acknowledgment of these 

considerations, this final rule retains the 

proposed rule text to make the use of 

FAR part 19 discretionary outside the 

United States and its outlying areas to 

allow contracting officers to use the 

most appropriate acquisition strategy. 

When the contracting officer is 

determining whether to set aside the 

procurement, fair market price, quality, 

and delivery are some of the factors 

considered. Any new entrants into 

overseas markets, whether small or 

other than small business concerns, will 

experience the same challenges: 

Competing with native businesses who 

know the market, economic conditions, 

and applicable laws. However, each 

time U.S. small businesses go through 

the solicitation process for overseas 

contracts, they will gain experience and 

knowledge. By allowing discretionary 

use of small business procurement rules 


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for overseas contracts, contracting 

officers can develop appropriate 

acquisition strategies to encourage U.S. 

small businesses to participate and 

become competitive. Small businesses 

will win contracts when their proposal 

or bid demonstrates they can perform 

the work at the lowest price or based on 

tradeoffs among price and non-price 

evaluation factors. 

b. Additional Acquisition Lead Time 

Comment: One respondent stated that 

contracting officers must already 

consider complex sourcing 

requirements for overseas acquisitions, 

and adding small business goals and setasides to the process will add to 

acquisition lead time without adding 

corresponding value. The respondent 

noted that nothing currently precludes 

small businesses from competing for 

overseas acquisitions. 

Response: The Councils recognize the 

complex sourcing requirements for 

overseas acquisitions. Discretionary use 

of FAR part 19 for overseas 

procurements will address an important 

public policy objective of the 

Government to enhance the 

participation of small businesses in 

overseas Federal acquisition as 

appropriate. 

c. Improper Influence of Government 

Personnel 

Comment: One respondent 

commented that allowing for 

discretionary authority to set aside 

overseas procurements may lead to 

prospective offerors trying to influence 

Government personnel in favor of setasides or full and open competition in 

corrupt ways, since there are likely to be 

very few U.S. small businesses capable 

of fulfilling any complicated 

Government requirement in many 

foreign countries. 

Response: The FAR addresses 

improper business practices and 

personal conflicts of interest in 

Government procurement at part 3, 

which applies regardless of the location 

or situation. Part 3 states that 

expenditure of public funds requires the 

highest degree of public trust and an 

impeccable standard of conduct. 

Therefore, Government personnel are 

required to act in good faith when 

making acquisition decisions, which are 

subject to review as appropriate. 

d. Contract Issues and Financial 

Hardship 

Comment: One respondent believed 

that it is impossible for a contracting 

officer to take into account all the 

possible unforeseen impediments and 

costs that a U.S. small business could 

encounter when performing in a foreign 

country. By making set-aside decisions, 

the contracting officer would end up 

awarding contracts with higher rates of 

default, delays, and claims than 

contracts awarded with unrestricted 

competition or including participation 

by host nation firms. Two respondents 

commented that U.S. small businesses 

are not suitable for overseas acquisitions 

and may end up suffering substantial 

losses by operating overseas. One of the 

respondents believed that small 

businesses, unlike large businesses, are 

unlikely to have the capability to make 

the necessary capital outlay, assign the 

necessary personnel, or offer local 

partners sufficient expectation of future 

work, to effectively prepare to perform 

in foreign countries, which may lead to 

project delays and increased costs for 

which the contractor could be liable. 

The other respondent used the cost of 

Value Added Taxes (VAT) on materials 

and services purchased in foreign 

countries, which the respondent 

calculates as averaging 20 percent, as an 

example to highlight the unsuitability of 

a small business for overseas 

acquisitions. According to the 

respondent, while some contractors are 

exempt from paying VAT for work 

performed on behalf of the U.S. 

Government, the contractors must still 

pay the VAT at initial point of sale and 

then wait 6 months to a year for a 

refund of that VAT from the foreign 

government. According to the 

respondent, this creates financial 

hardship for small businesses. 

Response: The Councils recognize 

overseas contracts are subject to 

considerations that are unique to the 

overseas environment, as described in 

the response to comments under 

category 3, for both small business 

concerns and other than small business 

concerns. In acknowledgment of these 

considerations, this final rule retains the 

proposed rule text to make the use of 

FAR part 19 discretionary outside the 

United States and its outlying areas to 

allow contracting officers to utilize the 

most appropriate acquisition strategy. 

The Councils note that prospective 

contractors are required to meet certain 

standards in order to be determined 

responsible and therefore, eligible for 

award. If there are questions regarding 

a prospective small business 

contractor’s responsibility, the matter 

would be referred to SBA in accordance 

with FAR subpart 19.6. Offerors are 

expected to practice sound business 

judgment in deciding which overseas 

opportunities to pursue and be aware of 

potential financial risks. 

7. Overseas Construction and Services 

Contracts 

Comment: A few respondents noted 

that overseas construction contracts are 

high risk and complex. The respondents 

pointed to difficulties with supply chain 

management, meeting specified staffing 

requirements, understanding local 

market conditions, and managing local 

subcontractors and material suppliers as 

examples of the complexities of 

overseas construction contracts. One of 

the respondents stated that overseas 

construction and architect-engineer 

(A/E) contracts are inherently local in 

nature and require detailed knowledge 

of host nation laws and requirements 

related to construction, e.g., building 

standards, permitting and licensing 

requirements, environmental matters. 

As such, the respondents stated that 

overseas construction contracts are not 

suitable for small businesses. Two 

respondents stated FAR part 19 should 

exclude overseas construction and 

service contracts. One of the 

respondents proposed a revision at FAR 

19.000(b) to exclude construction 

contracts. 

Response: The Councils considered 

the recommended revision and decided 

not to adopt it in the final rule since it 

does not reflect the best course of action 

for every overseas construction 

acquisition. The Councils recognize 

overseas construction and service 

contracts are subject to considerations 

that are unique to the overseas 

environment, as described in the 

response to comments under category 3, 

for both small business concerns and 

other than small business concerns. In 

acknowledgment of these 

considerations, this final rule retains the 

proposed rule text to make the use of 

FAR part 19 discretionary outside the 

United States and its outlying areas. 

8. Clarification Needed 

a. Change Not Clear 

Comment: One respondent stated the 

proposed rule is not clear regarding 

what is meant by ‘‘applying’’ FAR part 

19 to overseas acquisitions. The 

respondent requested the rule state 

whether application referred to where 

the contracting officer is located or 

where contract performance will take 

place. 

Response: The final rule does not 

change the way FAR part 19 applies in 

the United States and its outlying areas. 

The rule is written to provide maximum 

flexibility to contracting officers to 

apply FAR part 19 outside the United 

States and its outlying areas. 


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b. Revisions Required to FAR 19.309 

Comment: One respondent stated FAR 

19.309 requires updating to indicate 

when provisions and clauses must be 

added. 

Response: The final rule retains the 

proposed rule text to make changes to 

FAR 19.309, Solicitation provisions and 

contract clauses, which allows the 

provisions and clauses to be added 

when the contracting officer exercises 

their discretion and applies FAR part 19 

to an overseas procurement. 

9. Treaties and Other International 

Agreements 

Comment: One respondent concluded 

that the Competition in Contracting Act 

(CICA) explains how it applies when 

international agreements and treaties 

apply for contracts awarded outside of 

the United States. Two respondents 

pointed out that neither the Small 

Business Act nor the proposed rule do 

the same to reconcile U.S. obligations in 

applicable treaties and international 

agreements. One of these respondents 

stated that the proposed rule is contrary 

to international treaty obligations, other 

applicable international agreement 

obligations, or local laws. Consequently, 

the contracting officer may not have the 

discretion to apply FAR part 19 to most 

construction and services contracts to be 

performed in a foreign overseas 

location. Treaties and international 

agreements are treated as paramount 

and are recognized as authorized 

restrictions on competition outside the 

United States. 

Response: The Councils agree that the 

Small Business Act does not specifically 

address U.S. contracting obligations 

under applicable treaties or 

international agreements. The Councils 

also agree that contracting officers may 

not be able to apply FAR part 19 to 

overseas acquisitions when treaties or 

international agreements require 

solicitation or award to host nation 

sources or prohibit setting aside awards 

for U.S. firms. This FAR rule clarifies 

that FAR part 19 may be applied to 

procurements for supplies to be 

delivered or services to be performed 

outside the United States and its 

outlying areas. The proposed changes 

will encourage agencies to see if there 

are opportunities to contract with small 

businesses for overseas acquisitions and 

apply the Small Business Act to 

contracts awarded for performance 

overseas. 

10. Foreign Entities 

a. Rule Is Supported by Inaccurate Data 

on Foreign Entities 

Comment: One respondent stated that 

SBA cannot determine size standards 

for foreign entities, and that the entities 

are not eligible for socioeconomic 

categories. These entities are shown by 

default as ‘‘other than small’’ in the 

System for Award Management (SAM) 

and Federal Procurement Data System 

(FPDS), even though the entities may be 

small. The respondent noted that the 

proposed changes ignore that many 

contracts awarded outside the United 

States, for performance outside the 

United States, are awarded to foreign 

entities. 

Response: SBA establishes size 

standards corresponding to North 

American Industry Classification 

System (NAICS) codes, which apply to 

all offerors for a specific procurement, 

regardless of whether the offerors are 

foreign entities. SBA’s regulations 

define ‘‘business concern’’ as an entity 

that is ‘‘organized for profit, with a 

place of business located in the United 

States, and which operates primarily 

within the United States or which 

makes a significant contribution to the 

U.S. economy through payment of taxes 

or use of American products, materials 

or labor’’ (13 CFR 121.105). Such 

entities that meet the definition of 

‘‘business concern’’ may be considered 

small for FAR part 19 procurements if 

they meet the size standard for the 

NAICS code assigned to a specific 

procurement. According to SBA, SAM 

and FPDS function as intended. 

b. Rule Excludes Small Foreign Entities 

Comment: A respondent commented 

that, since non-U.S. businesses are not 

considered ‘‘small,’’ applying small 

business size standards outside the 

United States excludes foreign entities 

and limits competition to U.S. 

companies only, contrary to CICA. 

Response: As explained in the 

response to the comment under category 

10a, SBA’s regulations allow ‘‘non-U.S. 

businesses’’ to be considered small 

business concerns for the purposes of 

FAR part 19 procurements if they meet 

the criteria at 13 CFR 121.105. The 

Councils note that CICA provides an 

exception that allows agencies to 

exclude from competition other than 

small businesses in furtherance of 

sections 9 and 15 of the Small Business 

Act (see 10 U.S.C. 2304(b)(2) and 41 

U.S.C. 3303(b)). 

c. Rule Allows Foreign Entities To 

Benefit From Set-Asides 

Comment: One respondent questioned 

why a small business that is ‘‘foreign 

located, foreign owned, foreign 

controlled’’ should be allowed to benefit 

from Federal procurement regulations. 

Response: This FAR rule is not 

changing which business concerns 

qualify for part 19 procurements. See 

the response to the comment under 

category 10a for discussion of SBA’s 

definition of ‘‘business concern.’’ 

11. Compliance With the Limitations on 

Subcontracting Requirements 

Comment: Two respondents raised 

concerns that many small businesses 

will likely have difficulties complying 

with the limitations on subcontracting 

requirements. One respondent pointed 

out that unlike large businesses, small 

businesses lack the necessary on-site 

personnel to perform certain 

percentages of work that are required by 

the FAR. The respondent further stated 

that in some countries labor laws 

mandate the use of local labor, which 

creates the concern of how to apply and 

administer the limitations on 

subcontracting requirements. The other 

respondent stated that in certain 

countries, non-local entities would need 

to be ‘‘sponsored,’’ which means a U.S. 

small business cannot operate without 

contracting out all on-site performance 

to a local subcontractor. 

Response: The Councils recognize 

overseas contracts are subject to 

considerations that are unique to the 

overseas environment. It is not 

practicable to list in the FAR every 

factor that may affect an overseas 

acquisition. In acknowledgment of these 

considerations, this final rule retains the 

proposed rule text to make the use of 

FAR part 19 discretionary outside the 

United States and its outlying areas to 

allow contracting officers to utilize the 

most appropriate acquisition strategy. In 

addition, the Councils note that offerors 

should practice sound business 

judgment in deciding which 

opportunities to pursue. The Councils 

also note that FAR part 9 addresses 

certain standards every prospective 

contractor is required to meet to be 

determined responsible and therefore 

eligible for award. 

12. Compliance With Existing Set-Aside 

and Subcontracting Regulations 

Comment: One respondent 

recommended that effort be made in 

forcing greater compliance with existing 

small business set-aside and 

subcontracting regulations instead of 

pursuing the changes in the proposed 


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rule. The respondent believes the 

proposed rule is expanding the 

definition of small business to include 

‘‘foreign located, foreign owned, foreign 

controlled’’ businesses overseas. 

Response: Agencies have procedures 

and processes in place to monitor and 

ensure compliance with existing 

acquisition regulations. For example, 

with respect to compliance with the 

acquisition regulations in FAR part 19, 

the agencies’ Office of Small and 

Disadvantaged Business Utilization, or 

for DoD, Office of Small Business 

Programs, along with the procurement 

center representatives at SBA, have 

oversight of the use of FAR part 19 in 

the procurement process. As a result of 

these roles and functions, the 

Government has met its statutory small 

business goals since fiscal year 2013. 

This rule is expected to expand 

opportunities for small businesses 

overseas. 

For further discussion related to 

businesses that may qualify as small for 

FAR part 19 procurements, see the 

response to comments under category 

10c. 

13. Small Businesses as Subcontractors 

for Overseas Acquisitions 

Comment: One respondent stated that 

U.S. small businesses in most cases are 

better off supplying their expertise 

under overseas acquisitions as 

subcontractors to prime contractors that 

are able to undertake the necessary 

preparations to perform the 

Government’s overall requirements. The 

respondent believes that small 

businesses incur excessive overhead 

charges compared to large businesses, 

which will result in the Government 

being charged significantly more 

overhead costs. 

Response: The Councils do not concur 

with the assumption that small 

businesses are not suitable as prime 

contractors for overseas acquisitions. 

This FAR case clarifies that FAR part 19 

may be applied to overseas acquisitions. 

The changes will encourage agencies to 

seek opportunities to contract to small 

businesses for overseas acquisitions. 

The Councils note that market research 

and competition will help to establish 

fair and reasonable prices, inclusive of 

overhead, for overseas acquisitions, 

regardless of whether offerors are small 

businesses or large businesses. 

14. Exemption From Adjudication for 

Complaints About Noncompliance 

Overseas 

Comment: One respondent 

recommended that contracting officer 

decisions to set aside, or not to set aside, 

procurements outside of the United 

States and its outlying areas for small 

business be excluded from available 

grounds for protest. Similarly, the 

respondent recommended that 

advertisements of procurements alleged 

to represent bundling of requirements 

for performance outside of the United 

States and its outlying areas also be 

excluded from available grounds for 

protest. The respondent believes that 

because the proposed change has the 

effect of making compliance with the 

Small Business Act optional for 

procurements outside of the United 

States and its outlying areas, those 

procurements should be exempt from 

protests related to noncompliance with 

the Small Business Act. 

Response: The Councils do not have 

jurisdiction to exclude bundling actions 

or set-aside decisions as an available 

ground for protest. Agency level protests 

are governed by E.O. 12979, Agency 

Procurement Protests (October 25, 

1995). GAO protests are governed by 4 

CFR part 21. Protests in Federal courts 

are governed by 28 U.S.C. 1491. 

Therefore, the respondent’s 

recommendation is not incorporated 

into the final rule. 

15. Outside the Scope of This Rule 

Comment: One respondent asked how 

this rule would impact the DoD 

requirement at DFARS 219.201 and if 

agencies outside of the United States 

would have to use the DD Form 2579, 

Small Business Coordination Record. A 

second respondent recommended that if 

the form 2579 was left as ‘‘fully open 

and competitive with no set aside,’’ 

even if a small business wins the award, 

there should be zero credit for the small 

business winning the award because 

neither the agency nor the SBA had 

anything to do with its award to a small 

business. This respondent further asked 

why the agency or SBA should receive 

credit when not making solicitations set 

aside for small business. A third 

respondent noted that the proposed rule 

is contrary to the countless Defense 

agreements that restrict competition to 

local contractors. This respondent 

specifically referred to the input a host 

nation would normally have regarding 

changes to an existing Status of Forces 

Agreement (SOFA). The respondent 

further stated that any changes without 

host nation input would not be well 

received by the host nation. One 

respondent noted that there are several 

DoD statutory exemptions for categories 

of contracts that should not be included 

by SBA for goaling purposes. The 

respondent also stated that these same 

contracting categories are exempt from 

SBA procurement center representative 

oversight. Therefore, the respondent 

does not believe the proposed rule is 

consistent with SBA’s goaling 

guidelines. One respondent noted that 

SBA had a regulation stating that, unless 

a small business was owned and located 

in the United States, it was not a small 

business that could benefit from Federal 

procurement regulations. 

Response: These comments are 

outside the scope of this rule. Although 

FAR 19.502–2 addresses small business 

set-asides, the use of the DD Form 2579 

is addressed in DFARS 219.201. The 

procedures addressing credit for small 

business awards, small business 

procurement goals, and how they are 

implemented, are established in Section 

15(g) of the Small Business Act and are 

not included in this FAR rule. DoDspecific requirements related to review 

by procurement center representatives 

are addressed in DFARS 219.402. 

Guidance specific to compliance with 

Defense agreements and SOFAs, as well 

as the statutory exemptions, are 

implemented by DoD and are DoDspecific. Past definitions of ‘‘business 

concern’’ in SBA’s regulations are not 

relevant to this rule. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items) 

or for Commercial Services 

This rule amends the prescriptions at 

FAR 19.309, Solicitation provisions and 

contract clauses, for provision 52.219–1, 

Small Business Program 

Representations; provision 52.219–2, 

Equal Low Bids; and clause 52.219–28, 

Post-Award Small Business Program 

Rerepresentation. As a result of those 

amendments, this rule makes 

conforming changes to FAR provisions 

52.204–8, Annual Representations and 

Certifications and 52.212–3, Offeror 

Representations and Certifications— 

Commercial Products and Commercial 

Services. However, this rule does not 

impose any new requirements on 

contracts at or below the SAT, for 

commercial products including COTS 

items, or for commercial services. The 

provisions and clause continue to apply 

to acquisitions at or below the SAT, and 

apply or not apply to commercial 

products including COTS items, and for 

commercial services. 

IV. Expected Impact of the Rule 

Currently, FAR 19.000(b) states that 

FAR part 19, except for FAR subpart 

19.6, applies only in the United States 

or its outlying areas. Some contracting 

officers have interpreted the phrase 

‘‘applies only in the United States’’ to 

mean that they are not allowed to use 


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the set-aside and sole-source procedures 

of FAR part 19 for overseas 

procurements. Other contracting officers 

have interpreted ‘‘applies only in the 

United States’’ to mean that they are not 

required to use FAR part 19 procedures 

for overseas procurements but may do 

so if they choose. These conflicting 

interpretations have resulted in 

inconsistent use of FAR part 19 

procedures for overseas procurements 

across Federal agencies. Conflicting 

interpretations may also contribute to 

low numbers of overseas contract 

actions that are set aside for small 

businesses. 

This rule clarifies that contracting 

officers are allowed, but not required, to 

use the set-aside and sole-source 

procedures of FAR part 19 for overseas 

procurements. While SBA’s regulations 

do not make the use of small business 

regulations discretionary for overseas 

procurements, it is necessary for the 

FAR to make the use of the small 

business preferences in FAR part 19 

discretionary to resolve the conflicts 

between, on the one hand, the Small 

Business Act and SBA’s regulations and, 

on the other hand, international treaties 

and agreements, local laws, diplomatic 

and other factors that are unique to the 

overseas environment. Depending on 

the location of contract performance or 

delivery, these factors may limit the 

Government’s ability to apply the small 

business preferences in FAR part 19 on 

a mandatory basis. To resolve these 

conflicts, this final rule makes the use 

of FAR part 19 discretionary outside the 

United States and its outlying areas. 

As a result of the clarification 

provided in this rule, contracting 

officers may set aside more overseas 

actions for small businesses in the 

future. However, this rule does not 

impose additional costs or reduce 

existing costs for small businesses who 

may compete. The rule merely allows 

additional opportunities to be provided 

to small businesses through set-asides 

and other tools in FAR part 19 for 

overseas procurements. 

Data are not available on the number 

of overseas procurements contracting 

officers have not set aside for small 

business as a result of the conflicting 

interpretations described in the first 

paragraph of this section. According to 

data obtained from the Federal 

Procurement Data System (FPDS) for 

fiscal years 2019, 2020, and 2021 

combined, there were 359,567 awards 

for performance overseas, including 

contracts, task orders and delivery 

orders, and calls under FAR part 13 

blanket purchase agreements. Of those 

awards, 344,720 were made to 

approximately 12,002 unique large 

businesses, while 14,846 awards were 

made to approximately 3,223 unique 

small businesses. These numbers 

indicate that approximately 4 percent of 

actions awarded for performance 

outside the United States are awarded to 

small businesses. 

Contract awards to small businesses 

could increase if contracting officers 

expand their use of set-asides and other 

tools in FAR part 19 for overseas 

procurements. FAR 19.502–2(b) states 

that the set-aside authority can only be 

used where a contracting officer has a 

reasonable expectation that offers will 

be received from two small businesses 

and that award will be made at a fair 

market price. Similarly, sole-source 

authority under any of the small 

business programs also requires certain 

conditions to be met before being 

utilized. The conditions for using the 

FAR part 19 sole-source authorities 

include, but are not limited to, making 

award at a fair and reasonable price. It 

is not possible to identify how many 

small businesses will have the 

capability, capacity, or inclination to 

compete for contracts performed outside 

the United States. In addition, it is not 

possible to predict how many overseas 

procurements contracting officers will 

set aside for small businesses as a result 

of the FAR changes. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and therefore, was not 

subject to the review under section 6(b) 

of E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD, 

GSA, and NASA will send the rule and 

the ‘‘Submission of Federal Rules Under 

the Congressional Review Act’’ form to 

each House of the Congress and to the 

Comptroller General of the United 

States. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. The Office of 

Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget has determined that this is not 

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

VII. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. The 

FRFA is summarized as follows: 

DoD, GSA, and NASA are amending the 

Federal Acquisition Regulation (FAR) to give 

agencies the tools they need, especially the 

ability to use set-asides, to maximize 

opportunities for small businesses outside 

the United States. Currently, the FAR states 

that the small business programs do not 

apply outside of the United States and its 

outlying areas (FAR 19.000(b)). However, 

with the changes to the Small Business 

Administration’s (SBA’s) guidelines for 

establishment of small business goals in 

response to section 1631(c) of the National 

Defense Authorization Act for Fiscal Year 

2013 (Pub. L. 112–239), contracts performed 

outside of the United States are now 

included in the Government’s small business 

contracting goals. In addition, SBA has 

clarified that, as a general matter, its small 

business contracting regulations apply 

regardless of the place of performance. 

This rule is seeking to increase 

opportunities for small business overseas and 

to support SBA’s changes by expanding the 

use of set-asides and other tools to contracts 

performed outside of the United States. 

There were no significant issues raised by 

the public in response to the Initial 

Regulatory Flexibility Analysis. 

This rule may have a positive economic 

impact on small businesses. The rule 

expands existing procurement mechanisms 

(e.g., set-asides) to contracts performed 

outside the United States. Therefore, small 

businesses available to compete for Federal 

contracts performed outside the United 

States are most directly affected by this rule. 

Analysis of the System for Award 

Management (SAM) as of January 2022 

indicates there are over 420,000 small 

business registrants that can potentially 

benefit from the implementation of this rule. 

It is not possible to identify which of these 

small businesses will have the capability, 

capacity, and/or inclination to compete for 

contracts performed outside the United 

States. An analysis of the Federal 

Procurement Data System (FPDS) for fiscal 

years 2019, 2020, and 2021 revealed that for 

the combined three years, there were 

approximately 359,567 awards for 

performance overseas, including contracts, 

task orders and delivery orders, and calls 

under part 13 blanket purchase agreements 

(BPAs). Of those awards, 344,720 were made 

to approximately 12,002 unique large 

businesses, while 14,846 awards were made 

to approximately 3,223 unique small 

businesses. 

This number could increase if contracting 

officers expand their use of set-asides and 

other tools in FAR part 19 for overseas 

contracts. 

Therefore, this rule could affect a smaller 

number of small businesses than those found 

in SAM, but potentially more than those 


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revealed by FPDS. DoD, GSA, and NASA 

note that the set-aside authority can only be 

used where a contracting officer has a 

reasonable expectation that offers will be 

received from at least two small businesses 

and that award will be made at a fair market 

price. Similarly, sole-source authority under 

any of the small business programs also 

requires certain conditions to be met before 

being utilized. 

Nonetheless, this rule may have a 

significant positive economic impact on 

small business concerns competing for 

Federal contracting opportunities since it 

will provide additional Federal contracting 

opportunities. 

This rule does not include any new 

reporting, recordkeeping, or other 

compliance requirements for small 

businesses. 

This final rule is not expected to have a 

negative impact on any small entity. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat Division. The Regulatory 

Secretariat Division has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of SBA. 

VIII. Paperwork Reduction Act 

This rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521). 

List of Subjects in 48 CFR Parts 2, 19, 

and 52 

Government Procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

amend 48 CFR 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 51 U.S.C. 20113. 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2.101 [Amended] 

■ 2. Amend section 2.101, in paragraph 

(b)(2), in the definition of ‘‘Bundling’’, 

by removing paragraph (3). 

PART 19—SMALL BUSINESS 

PROGRAMS 

■ 3. Amend section 19.000 by revising 

paragraph (b) to read as follows: 

19.000 Scope of part. 

* * * * * 

(b)(1) Unless otherwise specified in 

this part (see subparts 19.6 and 19.7)— 

(i) Contracting officers shall apply this 

part in the United States and its 

outlying areas; and 

(ii) Contracting officers may apply 

this part outside the United States and 

its outlying areas. 

(2) Offerors that participate in any 

procurement under this part are 

required to meet the definition of ‘‘small 

business concern’’ at 2.101 and the 

definition of ‘‘concern’’ at 19.001. 

■ 4. Amend section 19.309 by revising 

paragraphs (a)(1), (b), and (c)(1) to read 

as follows: 

19.309 Solicitation provisions and 

contract clauses. 

(a)(1) Insert the provision at 52.219– 

1, Small Business Program 

Representations, in solicitations 

exceeding the micro-purchase threshold 

when the contract is for supplies to be 

delivered or services to be performed in 

the United States or its outlying areas, 

or when the contracting officer has 

applied this part in accordance with 

19.000(b)(1)(ii). 

* * * * * 

(b) When contracting by sealed 

bidding, insert the provision at 52.219– 

2, Equal Low Bids, in solicitations when 

the contract is for supplies to be 

delivered or services to be performed in 

the United States or its outlying areas, 

or when the contracting officer has 

applied this part in accordance with 

19.000(b)(1)(ii). 

(c)(1) Insert the clause at 52.219–28, 

Post-Award Small Business Program 

Rerepresentation, in solicitations and 

contracts exceeding the micro-purchase 

threshold when the contract is for 

supplies to be delivered or services to be 

performed in the United States or its 

outlying areas, or when the contracting 

officer has applied this part in 

accordance with 19.000(b)(1)(ii). 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 5. Amend section 52.204–8 by 

revising the date of the provision and 

paragraphs (c)(1)(xii) introductory text 

and (c)(1)(xiii) to read as follows: 

52.204–8 Annual Representations and 

Certifications. 

* * * * * 

Annual Representations and 

Certifications (May 2022) 

* * * * * 

(c)(1) * * * 

(xii) 52.219–1, Small Business 

Program Representations (Basic, 

Alternates I, and II). This provision 

applies to solicitations when the 

contract is for supplies to be delivered 

or services to be performed in the 

United States or its outlying areas, or 

when the contracting officer has applied 

part 19 in accordance with 

19.000(b)(1)(ii). 

* * * * * 

(xiii) 52.219–2, Equal Low Bids. This 

provision applies to solicitations when 

contracting by sealed bidding and the 

contract is for supplies to be delivered 

or services to be performed in the 

United States or its outlying areas, or 

when the contracting officer has applied 

part 19 in accordance with 

19.000(b)(1)(ii). 

* * * * * 

■ 6. Amend section 52.212–3 by 

revising the date of the provision and 

paragraph (c) introductory text to read 

as follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Products and 

Commercial Services. 

* * * * * 

Offeror Representations and 

Certifications—Commercial Products 

and Commercial Services (May 2022) 

* * * * * 

(c) Offerors must complete the 

following representations when the 

resulting contract is for supplies to be 

delivered or services to be performed in 

the United States or its outlying areas, 

or when the contracting officer has 

applied part 19 in accordance with 

19.000(b)(1)(ii). Check all that apply. 

* * * * * 

[FR Doc. 2022–08577 Filed 4–25–22; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 12, 15, 18, 46, and 52 

[FAC 2022–06; Item II; Docket No. FAR– 

2022–0052; Sequence No. 1] 

Federal Acquisition Regulation; 

Technical Amendments 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: This document makes 

amendments to the Federal Acquisition 

Regulation (FAR) in order to make 

needed editorial changes. 


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