Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57459 

basis when these designated industry groups 

are added to the Small Business 

Competitiveness Demonstration Programs 

given the history of their success in recent 

unrestricted competitive Government 

acquisitions falling under NAICS codes 

561730 and 561710. Additional data 

retrieved from FPDS show that the number 

of small business set-asides for NAICS code 

561730 in fiscal years 2002 and 2003 

combined was approximately 952 and the 

number of small business set-asides for 

NAICS code 561710 in fiscal years 2002 and 

2003 combined was approximately 96. 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., because 

previously set-aside acquisitions for services 

falling within NAICS codes 561730 and 

561710 will now be included in the 

designated industry groups of the Small 

Business Competitiveness Demonstration 

Program. FAR 19.1007(b) states that 

‘‘Solicitations for acquisitions in any of the 

designated industry groups that have an 

anticipated dollar value greater than the 

emerging small business reserve amount 

must not be considered for small business 

set-asides under FAR 19.5. However, 

agencies may reinstate the use of small 

business set-asides as necessary to meet their 

assigned goals, but only within 

organizational units that failed to meet the 

small business participation goal. 

Acquisitions in the designated industry 

groups must continue to be considered for 

placement under the 8(a) Program (see 

Subpart 19.8), the HUBZone Program (see 

Subpart 19.13), and the Service-Disabled 

Veteran-Owned Small Business Procurement 

Program (see Subpart 19.14).’’ Given the large 

number of awards made under these NAICS 

codes, it is anticipated that the addition of 

the two NAICS codes to the Small Business 

Competitiveness Demonstration Program will 

promote an increased number of 

opportunities for small business concerns to 

develop teaming arrangements and joint 

ventures. 

The purpose of the Competitiveness 

Demonstration Program is to assess the 

ability of small businesses to compete 

successfully in certain industry categories 

without competition being restricted by the 

use of small business set-asides. This portion 

of the program is limited to the four 

designated industry groups listed in FAR 

19.1005 and will include the addition of 

landscaping and pest control services to the 

designated industry groups. The final rule 

imposes no reporting, recordkeeping, or other 

compliance requirements. 

The final rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no practical alternatives that will 

accomplish the objectives of this final rule. 

Interested parties may obtain a copy 

of the FRFA from the FAR Secretariat. 

The FAR Secretariat has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the 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. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 19 and 

52 

Government procurement. 

Dated: September 22, 2005. 

Julia B. Wise, 

Director, Contract Policy Division. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

amending 48 CFR parts 19 and 52, 

which was published at 70 FR 11740, 

March 9, 2005, is adopted as a final rule 

without change. 

[FR Doc. 05–19473 Filed 9–29–05; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 19 and 28 

[FAC 2005–06; FAR Case 2003–029; Item 

VII] 

RIN 9000–AK01 

Federal Acquisition Regulation; 

Powers of Attorney for Bid Bonds 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to establish that a 

copy of an original power of attorney, 

including a photocopy or facsimile 

copy, when submitted in support of a 

bid bond, is sufficient evidence of the 

authority to bind the surety. The 

authenticity and enforceability of the 

power of attorney at the time of the bid 

opening will be treated as a matter of 

responsibility. 

DATES: Effective Date: September 30, 

2005. 

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755 for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Ms. Cecelia L. Davis, 

Procurement Analyst, at (202) 219–

0202. Please cite FAC 2005–06, FAR 

case 2003–029. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule amends the Federal 

Acquisition Regulation to revise the 

policy relating to acceptance of copies 

of powers of attorney accompanying bid 

bonds. There has been a significant level 

of controversy surrounding contracting 

officers’ decisions regarding the 

evaluation of bid bonds and 

accompanying powers of attorney. 

Since 1999, a series of GAO decisions 

has rejected telefaxed as well as 

photocopied powers of attorney. The 

latest decision from GAO (All Seasons 

Construction, Inc., B–291166.2, Dec. 6, 

2002) has been interpreted by industry 

and procuring agencies to require a 

contracting officer to inspect the power 

of attorney at bid opening to ascertain 

that the signatures are original and 

applied after generation of the 

documents. This case law has created a 

costly and unworkable requirement for 

the surety industry and left contracting 

officers with an almost impossible 

standard to enforce. More recently, on 

January 9, 2004, the U.S. Court of 

Federal Claims, in Hawaiian Dredging 

Construction, Co. v. U.S., 59 Fed. Cl.205 

(2004), issued a ruling highlighting that 

the FAR does not require an original 

signature on the document serving as 

evidence of authority to bind the surety. 

The court was critical of GAO’s 

reasoning in the All Seasons case. In 

response to the split between the two 

bid protest fora and the quandary shared 

by industry and government in 

implementing a workable standard to be 

applied at bid opening, the Councils 

agreed to a revision to FAR part 28 that 

would remove the matter of authenticity 

and enforceability of powers of attorney 

from a contracting officer’s 

responsiveness determination, which is 

based solely on documents available at 

the time of bid opening. Instead, the 

rule instructs contracting officers to 

address these issues after bid opening as 

a matter of responsibility. 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

69 FR 51936, August 23, 2004, and 46 

public comments were received. A 

resolution of the public comments 

follows: 

57460 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

Summary of the Public Comments/ 

Disposition 

Some commenters agree with the 

proposed rule and expressed 

appreciation for the clarification the 

proposed rule would bring to a 

presently unworkable situation. 

Comment: By making authenticity of 

the power of attorney a matter of 

responsibility, where small businesses 

are concerned, a contracting officer’s 

decision becomes subject to referral to 

the Small Business Administration 

(SBA) for a certificate of competency. To 

resolve this issue, the commenter 

suggested the following language for the 

FAR: ‘‘Subpart 19.6 does not apply to 

determinations of responsibility of 

sureties or on the acceptability of 

powers of attorney.’’ This language is 

based on GAO case law holding that 

acceptability of individual bid bond 

sureties need not be referred to the SBA 

because such determinations are based 

solely on the qualifications of the surety 

and not the small business offeror. 

Response: The Councils concur with 

the interpretation of GAO case law 

cited. Referral to SBA of a contracting 

officer’s non-responsibility finding, 

pursuant to FAR subpart 19.6, is a 

matter arising entirely out of the small 

business’ qualifications, not that of the 

surety. However, in the interest of being 

entirely clear on this issue, the Councils 

adopted language in paragraph 28.101–

3(f), that a non-responsibility 

determination is not subject to the 

Certificate of Competency process if the 

surety has disavowed the validity of the 

power of attorney. 

Comment: One commenter requests 

clarification regarding the extent to 

which the review of a power of attorney 

is a matter of responsiveness. As 

written, the issue is only one of 

responsiveness if a signed and dated 

power of attorney is not submitted. The 

commenter requests a revision to state a 

power of attorney should be rejected if 

it is obvious that the document is 

invalid. The commenter has received 

powers of attorney that indicate on their 

face that they have expired or do not 

name the individual who signed the bid 

bond. 

Response: The Councils disagree and 

feel the proposed rule makes clear the 

responsiveness determination is very 

narrow. To insert language requiring the 

contracting officer to determine whether 

a document is facially valid is not 

helpful unless we define facial validity. 

The proposed language intends to 

establish a simple dichotomy—

• Where an attorney-in-fact has signed 

the bid bond, the bidder must provide 

a signed and dated power of attorney to 

evidence the attorney-in-fact’s authority 

to bind the surety; failure to provide a 

power of attorney renders the bid nonresponsive; 

• Any and all questions regarding the 

authenticity and enforceability of the 

power of attorney are not matters of 

responsiveness and, as such, shall be 

handled by the contracting officer after 

bid opening when he/she can seek 

clarification from the surety. 

Finally, the bidder cannot be said to 

have an unfair opportunity to improve 

its bid when it is only the surety, not the 

bidder, that can vouch for the 

authenticity of a power of attorney. 

Paragraph (e) has been added to FAR 

28.101–3 clarifying that in those 

circumstances where a surety rejects a 

power of attorney as invalid, the bidder 

may not substitute a new surety. 

Comment: Several comments asked 

for clarification that modern forms of 

signatures and dates (i.e. digital, 

mechanically applied, or printed), in 

addition to facsimiles, be accepted as 

valid. 

Response: The Councils have 

determined it appropriate to adopt 

language listing, with greater specificity 

than was provided in the original 

proposal, ‘‘electronic, mechanicallyapplied and printed signatures, seals, 

and dates’’ as acceptable evidence of 

authority to bind the surety. The 

Councils believe these terms are broad 

enough to encompass present practices 

within the surety industry, particularly 

because a broad consortium of surety 

associations suggested the language. As 

such, we find it would be redundant to 

include ‘‘digital’’ within the list. 

Comment: There should be a revision 

to require powers of attorney to include 

notarized signatures and the contact 

information for the signers and the 

notary in order to authenticate the 

power of attorney. 

Response: The Councils do not agree. 

First, it detracts from the two-part rule 

established by the proposed language to 

identify specific requirements for 

powers of attorney. Second, while the 

comment is well taken and a 

requirement for contact information 

would prove helpful to the contracting 

officer, such detailed directions are not 

appropriate for a FAR provision. 

Comment: Representatives from the 

surety industry submitted a three-part 

comment as follows: 

1. The sureties recommend certain 

additions and deletions of commas in 

paragraph (b), which would clarify that 

‘‘original’’ modifies ‘‘power of attorney’’

and that original powers of attorney, 

photocopied original powers of 

attorney, and facsimile copied original 

powers of attorney are all acceptable 

means of establishing an attorney in 

fact’s authority. 

2. The sureties recommend removing 

the signature and date of the power of 

attorney as matters of responsiveness in 

paragraph (c)(1), alleging that this 

would undercut the goal of avoiding 

situations where a low bid must be 

rejected simply based on formatting 

errors. The sureties note that FAR 

28.101–4(c)(7) and (8) require an agency 

to waive the fact that a bid bond itself 

was not signed, dated, or erroneously 

dated. 

3. The sureties recommend a new 

paragraph (d) to clarify that a ‘‘printed’’

power of attorney is an ‘‘original’’ and 

that a photocopied or facsimile copied 

copy of a ‘‘printed’’ power of attorney is 

also acceptable. The sureties suggest 

this clarification is necessary because 

FAR part 2 does not define ‘‘original’’

and the All Seasons decision called into 

question the reliability of a printed 

power of attorney because the 

contracting officer could not be certain 

whether the signature had been applied 

before or after printing. FAR part 2 

should be revised to include a broader 

definition of ‘‘facsimile’’ and a 

definition of ‘‘original.’’ Because the 

proposed revision is intended to remove 

the confusion created by the All Seasons 

reasoning, the sureties suggest further 

clarifying that printed or mechanicallyapplied signatures, dates, and seals are 

acceptable without regard to the order 

in which they are affixed. The sureties 

also note that printed documents with 

printed signatures and seals are widely 

accepted as originals in commercial 

practice. 

Response: 1. The Councils agree that 

the suggested comma placement 

clarifies that original powers of attorney, 

as well as photocopies of originals and 

facsimiles of originals, are all acceptable 

as evidence of authority to bind the 

surety. It also clarifies that a photocopy 

of a non-original is not acceptable. 

2. The Councils are concerned that 

removing the text ‘‘signed and dated’’

would harm the integrity of the 

procurement process. Making the lack of 

a signature and date an issue of 

responsibility would mean they could 

be added after bid opening and a 

document that was not otherwise legally 

sufficient could be made so. The 

Councils feel a signature and date are so 

fundamental to the document that they 

must be present at bid opening. 

However, the rule does state that any 

questions regarding the authenticity of 

signature(s) and date(s) on the power of 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57461 

attorney are treated as matters of 

responsibility and, therefore, can be 

addressed after bid opening. 

The Councils note the sureties cite 

FAR 28.101–4(c)(7) and (8) in support of 

their position; however, we distinguish 

that the FAR also makes clear that in 

order for the contracting officer to waive 

the lack of an offeror’s signature and 

date on the bid bond, the bond must 

otherwise be acceptable. It is our 

reading that this would mean the bond 

must bear the signature of the surety or 

its representative and that all related 

documents, including any power of 

attorney, must be acceptable. It is not 

incongruous to require a signature and 

date on the power of attorney and we, 

therefore, retain the stated language in 

the proposed rule. 

3. The Councils concur with the 

suggestion to add a paragraph detailing 

those means of applying signatures and 

dates that are commonly acceptable as 

‘‘original’’ in commercial practice. We 

accept the clarification in the interest of 

partnering with the surety industry to 

achieve a rule that works well for both 

sureties and contracting officers. It is the 

intent of the proposed rule to come to 

a resolution that is consistent with 

sureties’ commercial practices and 

protections, while ensuring the 

Government can accept the lowest bid, 

confident that the bid bond binds the 

surety. The revision clarifies the 

undoing of the GAO-made rule 

requiring signatures and dates to be 

applied after the power of attorney is 

printed. This ‘‘wet signature’’

requirement is the most onerous and 

unworkable aspect of the All Seasons 

holding. As revised, a power of attorney 

with signatures and dates applied 

electronically and printed at the time 

the hard copy document is generated is 

clearly acceptable, as was intended by 

the original proposal. 

The Councils considered all 

comments before agreeing to convert 

this FAR case from a proposed rule to 

a final rule with changes. 

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 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. applies to this final 

rule. The Councils prepared a Final 

Regulatory Flexibility Analysis (FRFA), 

and it reads as follows: 

Final Regulatory Flexibility Analysis 

FAR Case 2003–029 

Powers of Attorney for Bid Bonds 

This Final Regulatory Flexibility Analysis 

has been prepared consistent with 5 U.S.C. 

604. 

1. Reasons for the action. 

This FAR case was initiated at the request 

of the Office of Federal Procurement Policy 

to resolve controversy relating to the 

standards for powers of attorney 

accompanying bid bonds. 

2. Objectives of, and legal basis for, the 

action. 

The objective of this final rule is to 

establish clear and uniform standards for 

powers of attorney accompanying bid bonds 

which will allow the contracting officer to 

make more informed decisions that are in the 

best interest of the Government. 

3. Summary of significant issues raised by 

the public comments in response to the 

Initial Regulatory Flexibility Analysis (IRFA), 

a summary of the assessment of the agency 

of such issues, and a statement of any 

changes made in the proposed rule as a 

result of such comment. 

There were no specific public comments 

that addressed the IRFA. 

4. Description of, and, where feasible, 

estimate of the number of small entities to 

which the final rule will apply. 

This final rule applies to all small entity 

bidders involved in Federal acquisitions that 

require bid bonds. It also applies to small 

entities who are sureties and attorneys-infact. 

5. Description of projected reporting, 

recordkeeping, and other compliance 

requirements of the final rule. 

This rule will have a beneficial impact on 

small entities, including small businesses 

within the surety industry, because the rule 

will amend the Federal Acquisition 

Regulation to change from the current 

structured process to a process that is used 

by the surety industry. These commercial 

practices are used by the surety industry 

when doing non-Government work and small 

businesses are familiar with these practices. 

By allowing commercial practices, the 

current costly and unworkable requirements 

are eliminated, which removes the burden 

from small businesses when doing business 

with the Government. 

The intent of this rule is to establish clear 

and uniform standards for powers of attorney 

accompanying bid bonds that are in the best 

interest of both the Government and 

industry. This rule removes the matter of 

authenticity and enforceability of powers of 

attorney from a contracting officer’s 

responsiveness determination, which is 

based solely on documents available at the 

time of bid opening. Instead, the rule 

instructs contracting officers to address these 

issues after bid opening. From the public 

comments received, this rule is deemed 

valuable because the changes being made to 

the process will guarantee that bidders will 

no longer be thrown out of the acquisition 

process prematurely when there is a question 

of validity. The rule changes are beneficial 

for all involved in the acquisition process. 

The final rule does not impose any new 

reporting, recordkeeping, or other 

information collection requirements. It will 

reduce the information collection 

requirement by simplifying the standards for 

an acceptable evidence of power of attorney 

in support of a bid bond. 

6. Relevant Federal rules which may 

duplicate, overlap, or conflict with the rule. 

This final rule does not duplicate, overlap, 

or conflict with other relevant Federal rules. 

7. Significant alternatives to the proposed 

rule which accomplish the stated objectives 

of applicable statutes and which minimize 

any significant economic impact of the 

proposed rule on small entities. 

There were no significant alternatives to 

the proposed rule, which accomplish the 

stated objectives. This rule will have a 

beneficial impact on small entities, which are 

bidders in Federal acquisitions that require 

bid bonds, as well as the associated sureties 

and attorneys-in-fact. 

Interested parties may obtain a copy 

of the FRFA from the FAR Secretariat. 

The FAR Secretariat has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the 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. 3501 et seq. 

List of Subjects in 48 CFR Parts 19 and 

28 

Government procurement. 

Dated: September 22, 2005. 

Julia B. Wise, 

Director, Contract Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 19 and 28 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 19 and 28 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 19—SMALL BUSINESS 

PROGRAMS 

19.602–1 [Amended] 

■ 2. Amend section 19.602–1 in the 

parenthetical in the introductory text of 

paragraph (a) by adding ‘‘, but for 

sureties see 28.101–3(f) and 28.203(c)’’

after the word ‘‘subcontracting’’. 

PART 28—BONDS AND INSURANCE 

■ 3. Revise section 28.101–3 to read as 

follows: 

57462 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

28.101–3 Authority of an attorney-in-fact 

for a bid bond. 

(a) Any person signing a bid bond as 

an attorney-in-fact shall include with 

the bid bond evidence of authority to 

bind the surety. 

(b) An original, or a photocopy or 

facsimile of an original, power of 

attorney is sufficient evidence of such 

authority. 

(c) For purposes of this section, 

electronic, mechanically-applied and 

printed signatures, seals and dates on 

the power of attorney shall be 

considered original signatures, seals and 

dates, without regard to the order in 

which they were affixed. 

(d) The contracting officer shall—

(1) Treat the failure to provide a 

signed and dated power of attorney at 

the time of bid opening as a matter of 

responsiveness; and 

(2) Treat questions regarding the 

authenticity and enforceability of the 

power of attorney at the time of bid 

opening as a matter of responsibility. 

These questions are handled after bid 

opening. 

(e)(1) If the contracting officer 

contacts the surety to validate the power 

of attorney, the contracting officer shall 

document the file providing, at a 

minimum, the following information: 

(i) Name of person contacted. 

(ii) Date and time of contact. 

(iii) Response of the surety. 

(2) If, upon investigation, the surety 

declares the power of attorney to have 

been valid at the time of bid opening, 

the contracting officer may require 

correction of any technical error. 

(3) If the surety declares the power of 

attorney to have been invalid, the 

contracting officer shall not allow the 

bidder to substitute a replacement 

power of attorney or a replacement 

surety. 

(f) Determinations of nonresponsibility based on the 

unacceptability of a power of attorney 

are not subject to the Certificate of 

Competency process of subpart 19.6 if 

the surety has disavowed the validity of 

the power of attorney. 

[FR Doc. 05–19474 Filed 9–29–05; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 19 and 52 

[FAC 2005–06; FAR Case 2005–002; Item 

VIII] 

RIN 9000–AK28 

Federal Acquisition Regulation; 

Expiration of the Price Evaluation 

Adjustment 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to cancel for civilian 

agencies (except National Aeronautics 

and Space Administration (NASA) and 

Coast Guard) the Small Disadvantaged 

Business (SDB) price evaluation 

adjustment which was originally 

authorized under the Federal 

Acquisition Streamlining Act of 1994 

(Public Law 103–355, Sec. 7102). 

Civilian agencies (except NASA and 

Coast Guard) are not authorized to apply 

the price evaluation adjustment to their 

acquisitions. 

DATES: Effective Date: September 30, 

2005. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before November 

29, 2005, to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–06, FAR case 

2005–002, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Agency Web Site: http:// 

www.acqnet.gov/far/ProposedRules/ 

proposed.htm. Click on the FAR case 

number to submit comments. 

• E-mail: farcase.2005–002@gsa.gov. 

Include FAC 2005–06, FAR case 2005–

002 in the subject line of the message. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW, Room 4035, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–06, FAR case 

2005–002, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.acqnet.gov/far/ProposedRules/ 

proposed.htm, including any personal 

and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755, for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Ms. Rhonda Cundiff, 

Procurement Analyst, at (202) 501–

0044. Please cite FAC 2005–06, FAR 

case 2005–002. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The small disadvantaged business 

price evaluation adjustment for civilian 

agencies, originally authorized under 

the Federal Acquisition Streamlining 

Act of 1994 (Public Law 103–355, Sec. 

7102) expired. This provision, as 

implemented in FAR subpart 19.11, 

authorized agencies to apply the price 

evaluation adjustment to benefit certain 

small disadvantaged business concerns 

in competitive acquisitions. As a result 

of its expiration for civilian agencies 

(except NASA and Coast Guard), 

civilian agencies (except NASA and 

Coast Guard) have no statutory authority 

to apply the small disadvantaged 

business price evaluation adjustment to 

their acquisitions. 

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 

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., because certain 

small disadvantaged business concerns 

for specific North American Industry 

Classification System (NAICS) codes 

will no longer benefit from the price 

evaluation adjustment in competitive 

acquisitions. An Initial Regulatory 

Flexibility Analysis (IRFA) has been 

prepared. The analysis is summarized as 

follows: 

This interim rule amends Federal 

Acquisition Regulation (FAR) Subpart 19.11, 

Price Evaluation Adjustment for Small 

Disadvantaged Business Concerns. The small 

disadvantaged business price evaluation 

adjustment for civilian agencies other than 

National Aeronautics and Space 

Administration (NASA) and Coast Guard,