[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57462-57463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19475]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Agency Web Site: http://www.acqnet.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#9dfbfceffefceef8b3afadada8b0adadafddfaeefcb3faf2eb"><span class="__cf_email__" data-cfemail="43252231202230266d717373766e737371032430226d242c35">[email protected]</span></a>. Include FAC 2005-06, FAR 
case 2005-002 in the subject line of the message.
    <bullet> Fax: 202-501-4067.
    <bullet> 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,

[[Page 57463]]

originally authorized under the Federal Acquisition Streamlining Act 
of 1994 (Public Law 103-355, Sec. 7102) expired. This provision, as 
implemented in Federal Acquisition Regulation subpart 19.11 
authorized agencies to apply the price evaluation adjustment to 
benefit certain small disadvantaged business concerns in competitive 
acquisitions. This change 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 civilian 
agencies (excluding NASA and Coast Guard) will no longer have the 
authority to apply the price evaluation adjustment to benefit 
certain small disadvantaged business concerns in competitive 
acquisitions. However, the price evaluation adjustment is still 
authorized for the Department of Defense, U.S. Coast Guard, and 
NASA.
    The FAR Secretariat has submitted a copy of the IRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. Interested 
parties may obtain a copy from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR Part 
19 in accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C 601 et seq. (FAC 2005-06, 
FAR case 2005-002), in correspondence.

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.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the small disadvantaged business price evaluation 
adjustment for civilian agencies other than NASA and Coast Guard, 
originally authorized under the Federal Acquisition Streamlining Act of 
1994 (Public Law 103-355, Sec. 7102) expired. This revision to the FAR 
is necessary to ensure that civilian agencies (except Coast Guard and 
NASA) are aware that the price evaluation adjustment should not be 
applied to their acquisitions. However, pursuant to Public Law 98-577 
and FAR 1.501, the Councils will consider public comments received in 
response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 19 and 52

    Government procurement.

    Dated: September 22, 2005.
Julia B. Wise,
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 19 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 19 and 52 continues to read 
as follows:

    Authority: 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

0
2. Amend section 19.1102 by redesignating paragraphs (a) and (b) as (b) 
and (c), respectively, and adding a new paragraph (a) to read as 
follows:


19.1102  Applicability.

    (a) This subpart applies to the Department of Defense, National 
Aeronautics and Space Administration, and the U.S. Coast Guard. 
Civilian agencies do not have the statutory authority (originally 
authorized in the Federal Acquisition Streamlining Act of 1994 (Public 
Law 103-355, Sec. 7102)) for use of the Small Disadvantaged Business 
(SDB) price evaluation adjustment.
* * * * *

0
2. Amend section 19.1103 by revising paragraph (a)(2) to read as 
follows:


19.1103  Procedures.

    (a)* * *
    (2) An otherwise successful offer from a historically black college 
or university or minority institution.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.212-5 by revising the date of the clause and 
paragraph (b)(10)(i) of the clause to read as follows:


52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *
    CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR 
EXECUTIVE ORDERS--COMMERCIAL ITEMS (SEP 2005)
* * * * *
    (b)* * *
    (10)(i) 52.219-23, Notice of Price Evaluation Adjustment for Small 
Disadvantaged Business Concerns (SEP 2005) (10 U.S.C. 2323) (if the 
offeror elects to waive the adjustment, it shall so indicate in its 
offer).
* * * * *

0
4. Amend section 52.219-23 by revising the date of the clause and 
paragraph (b)(1)(ii) of the clause to read as follows:


52.219-23  Notice of Price Evaluation Adjustment for Small 
Disadvantaged Business Concerns.

* * * * *
    NOTICE OF PRICE EVALUATION ADJUSTMENT FOR SMALL DISADVANTAGED 
BUSINESS CONCERNS (SEP 2005)
* * * * *
    (b) Evaluation adjustment. (1)* * *
    (ii) An otherwise successful offer from a historically black 
college or university or minority institution.
* * * * *
[FR Doc. 05-19475 Filed 9-29-05; 8:45 am]
BILLING CODE 6820-EP-S


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