[Federal Register Volume 70, Number 236 (Friday, December 9, 2005)]
[Rules and Regulations]
[Pages 73148-73150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23729]


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DEPARTMENT OF DEFENSE

48 CFR Parts 205, 226, and 252

[DFARS Case 2003-D029]


Defense Federal Acquisition Regulation Supplement; Socioeconomic 
Programs

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD has issued a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to update text pertaining to 
socioeconomic considerations in DoD contracting. This rule is a result 
of a transformation initiative undertaken by DoD to dramatically change 
the purpose and content of the DFARS.

EFFECTIVE DATE: December 9, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah Tronic, Defense 
Acquisition Regulations System, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 
Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0289; 
facsimile (703) 602-0350. Please cite DFARS Case 2003-D029.

SUPPLEMENTARY INFORMATION:

A. Background

    DFARS Transformation is a major DoD initiative to dramatically 
change the purpose and content of the DFARS. The objective is to 
improve the efficiency and effectiveness of the acquisition process, 
while allowing the acquisition workforce the flexibility to innovate. 
The transformed DFARS will contain only requirements of law, DoD-wide 
policies, delegations of FAR authorities, deviations from FAR 
requirements, and policies/procedures that have a significant effect 
beyond the internal operating procedures of DoD or a significant cost 
or administrative impact on contractors or offerors. Additional 
information on the DFARS Transformation initiative is available at 
http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.
    This final rule is a result of the DFARS Transformation initiative. 
The DFARS changes include--
    <bullet> Deletion of text at 226.103 containing internal DoD 
procedures for funding of incentive payments to contractors under the 
clause at 252.226-7001, Utilization of Indian Organizations, Indian-
Owned Economic Enterprises, and Native Hawaiian Small Business 
Concerns. This text has been relocated to the new DFARS companion 
resource, Procedures, Guidance, and Information (PGI), available at 
http://www.acq.osd.mil/dpap/dars/pgi.
    <bullet> Relocation of text on contracting with historically black 
colleges and universities and minority institutions (HBCU/MI) from 
Subpart 226.70 to Subpart 226.3, for consistency with the location of 
FAR policy on this subject. The relocated text is substantially 
unchanged, but excludes information on HBCU/MI percentage goals and 
infrastructure assistance (226.7000 and 226.7002) that is considered 
unnecessary for inclusion in the DFARS.
    <bullet> Deletion of Subpart 226.72, Base Closures and 
Realignments, as the text

[[Page 73149]]

in this subpart unnecessarily duplicates text found elsewhere in the 
DFARS.
    DoD published a proposed rule at 70 FR 19038 on April 12, 2005. DoD 
received no comments on the proposed rule. Therefore, DoD has adopted 
the proposed rule as a final rule without change.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD certifies that this final rule will not 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 the rule updates and streamlines DFARS text, but makes no 
significant change to DoD contracting policy.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any 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 205, 226, and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 205, 226, and 252 are amended as follows:
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1. The authority citation for 48 CFR parts 205, 226, and 252 continues 
to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 205--PUBLICIZING CONTRACT ACTIONS


205.207  [Amended]

0
2. Section 205.207 is amended in paragraph (d)(i) introductory text by 
removing ``226.7003'' and adding in its place ``226.370''.

PART 226--OTHER SOCIOECONOMIC PROGRAMS

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3. Section 226.103 is revised to read as follows:


226.103  Procedures.

    Follow the procedures at PGI 226.103 when submitting a request for 
funding of an Indian incentive.

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4. Subpart 226.3 is added to read as follows:

Subpart 226.3--Historically Black Colleges and Universities and 
Minority Institutions

Sec.
226.370 Contracting with historically black colleges and 
universities and minority institutions.
226.370-1 General.
226.370-2 Definitions.
226.370-3 Policy.
226.370-4 Set-aside criteria.
226.370-5 Set-aside procedures.
226.370-6 Eligibility for award.
226.370-7 Protesting a representation.
226.370-8 Goals and incentives for subcontracting with HBCU/MIs.
226.370-9 Solicitation provision and contract clause.

Subpart 226.3--Historically Black Colleges and Universities and 
Minority Institutions


226.370  Contracting with historically black colleges and universities 
and minority institutions.


226.370-1  General.

    This section implements the historically black college and 
university (HBCU) and minority institution (MI) provisions of 10 U.S.C. 
2323.


226.370-2  Definitions.

    Definitions of HBCUs and MIs are in the clause at 252.226-7000, 
Notice of Historically Black College or University and Minority 
Institution Set-Aside.


226.370-3  Policy.

    DoD will use outreach efforts, technical assistance programs, 
advance payments, HBCU/MI set-asides, and evaluation preferences to 
meet its contract and subcontract goals for use of HBCUs and MIs.


226.370-4  Set-aside criteria.

    Set aside acquisitions for exclusive HBCU and MI participation when 
the acquisition is for research, studies, or services of the type 
normally acquired from higher educational institutions and there is a 
reasonable expectation that--
    (a) Offers will be submitted by at least two responsible HBCUs or 
MIs that can comply with the subcontracting limitations in the clause 
at FAR 52.219-14, Limitations on Subcontracting;
    (b) Award will be made at not more than 10 percent above fair 
market price; and
    (c) Scientific or technological talent consistent with the demands 
of the acquisition will be offered.


226.370-5  Set-aside procedures.

    (a) As a general rule, use competitive negotiation for HBCU/MI set-
asides.
    (b) When using a broad agency announcement (FAR 35.016) for basic 
or applied research, make partial set-asides for HBCU/MIs as explained 
in 235.016.
    (c) Follow the special synopsis instructions in 205.207(d). 
Interested HBCU/MIs must provide evidence of their capability to 
perform the contract, and a positive statement of their eligibility, 
within 15 days of publication of the synopsis in order for the 
acquisition to proceed as an HBCU/MI set-aside.
    (d) Cancel the set-aside if the low responsible offer exceeds the 
fair market price (defined in FAR part 19) by more than 10 percent.


226.370-6  Eligibility for award.

    (a) To be eligible for award as an HBCU or MI under the preference 
procedures of this subpart, an offeror must--
    (1) Be an HBCU or MI, as defined in the clause at 252.226-7000, 
Notice of Historically Black College or University and Minority 
Institution Set-Aside, at the time of submission of its initial offer 
including price; and
    (2) Provide the contracting officer with evidence of its HBCU or MI 
status upon request.
    (b) The contracting officer shall accept an offeror's HBCU or MI 
status under the provision at FAR 52.226-2, Historically Black College 
or University and Minority Institution Representation, unless--
    (1) Another offeror challenges the status; or
    (2) The contracting officer has reason to question the offeror's 
HBCU/MI status. (A list of HBCU/MIs is published periodically by the 
Department of Education.)


226.370-7  Protesting a representation.

    Any offeror or other interested party may challenge an offeror's 
HBCU or MI representation by filing a protest with the contracting 
officer. The protest must contain specific detailed evidence supporting 
the basis for the challenge. Such protests are handled in accordance 
with FAR 33.103 and are decided by the contracting officer.


226.370-8  Goals and incentives for subcontracting with HBCU/MIs.

    (a) In reviewing subcontracting plans submitted under the clause at 
FAR 52.219-9, Small Business Subcontracting Plan, the contracting 
officer shall--
    (1) Ensure that the contractor included anticipated awards to HBCU/
MIs in the small disadvantaged business goal; and
    (2) Consider whether subcontracts are contemplated that involve 
research or studies of the type normally performed by higher 
educational institutions.

[[Page 73150]]

    (b) The contracting officer may, when contracting by negotiation, 
use in solicitations and contracts a clause similar to the clause at 
FAR 52.219-10, Incentive Subcontracting Program, when a subcontracting 
plan is required and inclusion of a monetary incentive is, in the 
judgment of the contracting officer, necessary to increase 
subcontracting opportunities for HBCU/MIs. The clause should include a 
separate goal for HBCU/MIs.


226.370-9  Solicitation provision and contract clause.

    (a) Use the clause at 252.226-7000, Notice of Historically Black 
College or University and Minority Institution Set-Aside, in 
solicitations and contracts set aside for HBCU/MIs.
    (b) Use the provision at FAR 52.226-2, Historically Black College 
or University and Minority Institution Representation, in solicitations 
set aside for HBCU/MIs.

Subpart 226.70--[Removed and Reserved]

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5. Subpart 226.70 is removed and reserved.

Subpart 226.72--[Removed]

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6. Subpart 226.72 is removed.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.226-7000  [Amended]

0
7. Section 252.226-7000 is amended in the introductory text by removing 
``226.7008'' and adding in its place ``226.370-9''.

[FR Doc. 05-23729 Filed 12-8-05; 8:45 am]
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