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, 

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

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 19 and 52 as set 

forth below: 

■ 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 

■ 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. 

* * * * * 

■ 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 

■ 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). 

* * * * * 

■ 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 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 31 

[FAC 2005–06; FAR Case 2004–006; Item 

IX] 

RIN 9000–AK06 

Federal Acquisition Regulation; 

Accounting for Unallowable Costs 

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) by revising language 

regarding accounting for unallowable 

costs. The final rule adds language 

which provides specific criteria on the 

use of statistical sampling as a method 

to identify unallowable costs, including 

the applicability of penalties for failure 

to exclude certain projected 

unallowable costs. The final rule also 

revises the language regarding advance 

agreements by adding statistical 

sampling methods as an example for 

which advance agreements between the