[Federal Register Volume 86, Number 112 (Monday, June 14, 2021)]
[Proposed Rules]
[Pages 31468-31474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12003]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 5, 6, 13, 19 and 52

[FAR Case 2019-007; Docket No. FAR 2019-0007, Sequence No. 1]
RIN 9000-AN90


Federal Acquisition Regulation: Update of Historically 
Underutilized Business Zone Program

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement changes to the Small Business 
Administration's regulations for the Historically Underutilized 
Business Zone Program.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
August 13, 2021 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2019-007 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2019-007''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2019-007''. Follow the instructions 
provided at the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case

[[Page 31469]]

2019-007'' on your attached document. If your comment cannot be 
submitted using https://www.regulations.gov, call or email the points 
of contact in the FOR FURTHER INFORMATION CONTACT section of this 
document for alternate instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2019-
007'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement 
Analyst, at 703-605-2815, or by email at <a href="/cdn-cgi/l/email-protection#afc2cec3c6dcdcce81c5c0c1cadcefc8dcce81c8c0d9"><span class="__cf_email__" data-cfemail="cfa2aea3a6bcbcaee1a5a0a1aabc8fa8bcaee1a8a0b9">[email protected]</span></a>, for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or <a href="/cdn-cgi/l/email-protection#3b7c687a695e5c685e587b5c485a155c544d"><span class="__cf_email__" data-cfemail="470014061522201422240720342669202831">[email protected]</span></a>. Please cite FAR Case 2019-007.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to implement 
revisions the Small Business Administration (SBA) has made in its 
regulations for the Historically Underutilized Business Zone (HUBZone) 
Program. Following a review of its HUBZone program regulations, SBA 
issued a rule on November 26, 2019, at 84 FR 65222, to update its 
regulations to reflect current policies, to eliminate ambiguities in 
its regulations, and to reduce burdens on small businesses and 
procuring agencies. This proposed FAR rule updates terminology and 
processes to correspond with SBA's changes, such as updating the 
definition of a HUBZone small business concern and the procedures for 
filing and processing HUBZone protests.

II. Discussion and Analysis

    The proposed changes to the FAR are summarized in the following 
paragraphs.

A. Definitions and Terminology

    The definition of ``HUBZone small business concern'' at FAR 2.101, 
Definitions, and FAR 52.219-8, Utilization of Small Business Concerns, 
is revised to refer to the requirements described in 13 CFR 126.200 and 
SBA's designation of a HUBZone small business concern in the Dynamic 
Small Business Search (DSBS). The term ``qualified'' HUBZone is removed 
throughout as the definition of HUBZone specifies it is a firm the SBA 
has certified as a HUBZone small business concern.
    The representations for HUBZone small business concerns in FAR 
52.212-3, Offeror Representations and Certifications--Commercial Items, 
and in FAR 52.219-1, Small Business Program Representations, are 
revised to replace references to SBA's List of Qualified HUBZone Small 
Business Concerns with references to DSBS. Throughout the FAR, 
instructions to contact SBA to ascertain a concern's status as a 
HUBZone small business concern are revised to direct the reader to 
DSBS.

B. Process for Filing a Protest

    HUBZone status protests procedures at FAR 19.306 are revised to 
specify who may protest the prospective contractor's HUBZone status for 
HUBZone sole-source awards, that the Director of SBA's HUBZone Program 
will determine whether a protested concern has certified HUBZone status 
and, if SBA upholds the protest, that SBA will remove the concern's 
HUBZone status in DSBS. Updated references and procedures for filing 
protests against a HUBZone joint venture, based on SBA's regulations, 
are added.

C. Removal of Obsolete Text

    This rule proposes to delete obsolete text in FAR subpart 19.13, 
Historically Underutilized Business Zone (HUBZone) Program. In FAR 
19.1302, Applicability, text is deleted regarding the application of 
the procedures in FAR subpart 19.13 to all Federal agencies that employ 
one or more contracting officers. This text is no longer necessary 
because agencies using the FAR employ one or more contracting officers. 
Paragraph (e) is deleted in FAR 19.1304, Exclusions. This paragraph 
contains an outdated exclusion for requirements that do not exceed the 
micro-purchase threshold. SBA removed this requirement from their 
regulations at 13 CFR 126.608; therefore, this rule proposes to remove 
it from the FAR.

D. Removal of Notification Requirement

    This rule proposes to delete language at FAR 19.1303(d), FAR 
52.212-3(c)(10)(i), paragraph (g) in the clause at FAR 52.219-3, Notice 
of HUBZone Set-Aside or Sole-Source Award, and paragraph (f) in the 
clause at FAR 52.219-4, Notice of Price Evaluation Preference for 
HUBZone Small Business Concerns. The current language requires a 
HUBZone offeror to be a HUBZone small business concern at the time of 
contract award and to notify the contracting officer if material 
changes occur before contract award that could affect its HUBZone 
eligibility. SBA's rule removes this requirement; therefore, this FAR 
rule proposes to remove it from the FAR.

E. Removal of Restriction To Applying HUBZone Authorities to Contracts 
and Subcontracts at or Below the Simplified Acquisition Threshold

    This rule proposes to delete paragraph (a)(9) of FAR 13.005, List 
of laws inapplicable to contracts and subcontracts at or below the 
simplified acquisition threshold (SAT). This would remove the 
restriction against applying the HUBZone Act of 1997, 15 U.S.C. 657a, 
to contracts and subcontracts at or below the SAT. In FAR 19.1305, 
HUBZone set-aside procedures, the exception for acquisitions not 
exceeding the simplified acquisition threshold is proposed for 
deletion. This would result in the procedures at FAR 19.202-1 and FAR 
19.402 being applied to HUBZone set-asides that do not exceed the 
simplified acquisition threshold. Additionally, FAR 19.1306, HUBZone 
sole-source awards, was revised to remove paragraph (a)(4), which 
restricted HUBZone sole-source awards to those valued above the SAT. 
This means that contracting officers would be able to make HUBZone 
sole-source awards with dollar values at or below the SAT.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-The-Shelf (COTS) Items

    This rule amends the provision and clauses at FAR 52.212-3, 52.219-
1, 52.219-4, and 52.219-8. However, this rule does not impose any new 
requirements on contracts at or below the SAT or for commercial items, 
including COTS items. These provisions and clauses continue to apply to 
acquisitions at or below the SAT and to acquisitions for commercial 
items, including COTS items.
    This rule proposes to apply HUBZone sole-source authority of 15 
U.S.C. 657a to acquisitions at or below the SAT. Therefore, the clause 
at FAR 52.219-3 will apply to acquisitions at or below the SAT.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    41 U.S.C. 1905 governs the applicability of laws to acquisitions at 
or below the SAT. Section 1905 generally limits the applicability of 
new laws when agencies are making

[[Page 31470]]

acquisitions at or below the SAT, but provides that such acquisitions 
will not be exempt from a provision of law under certain circumstances, 
including when the FAR Council makes a written determination and 
finding that it would not be in the best interest of the Federal 
Government to exempt contracts and subcontracts in amounts not greater 
than the SAT from the provision of law. The FAR Council intends to make 
a determination to apply this statute to acquisitions at or below the 
SAT.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including Commercially Available Off-The-Shelf (COTS) Items

    41 U.S.C. 1906 governs the applicability of laws to contracts for 
the acquisition of commercial items, and is intended to limit the 
applicability of laws to contracts for the acquisition of commercial 
items. Section 1906 provides that if the FAR Council makes a written 
determination that it is not in the best interest of the Federal 
Government to exempt commercial item contracts, the provision of law 
will apply to contracts for the acquisition of commercial items.
    41 U.S.C. 1907 states that acquisitions of COTS items will be 
exempt from certain provisions of law unless the Administrator for 
Federal Procurement Policy makes a written determination and finds that 
it would not be in the best interest of the Federal Government to 
exempt contracts for the procurement of COTS items.
    The FAR Council intends to make a determination to apply this 
statute to acquisitions for commercial items. The Administrator for 
Federal Procurement Policy intends to make a determination to apply 
this statute to acquisitions for COTS items.

C. Determinations

    The HUBZone Act of 1997, 15 U.S.C. 657a, tasks SBA with 
administering a program to assist participating small businesses 
located in areas with low income levels, high poverty and high 
unemployment rates, Indian reservations, closed military bases, or 
disaster areas with contracting opportunities in the form of set-
asides, sole-source awards, and price-evaluation preferences. Its 
primary objectives are job creation and increased capital investment in 
distressed communities. The purpose of this rule is to implement 
revisions SBA has finalized in their HUBZone program.
    These statutory requirements are reflected in SBA's final rule 
published in the Federal Register at 84 FR 65222 on November 26, 2019, 
which did not exempt acquisitions at or below the SAT that are set 
aside for, or awarded on a sole-source basis to HUBZone small 
businesses.
    The law is silent on the applicability of these requirements to 
acquisitions at or below the SAT and does not independently provide for 
criminal or civil penalties; nor does it include terms making express 
reference to 41 U.S.C. 1905 and its application to acquisitions at or 
below the SAT. Therefore, it does not apply to acquisitions at or below 
the SAT unless the FAR Council makes a written determination as 
provided at 41 U.S.C. 1905.
    Application of the law to acquisitions at or below the SAT will 
maximize the positive impact set-aside and sole-source contracts 
provide for HUBZone small businesses by ensuring these benefits extend 
to the many contracts valued at or below the SAT. According to the 
Federal Procurement Data System, an average of 283,374 contracts per 
year resulted from FAR part 19 set-asides and sole-source awards at or 
below the SAT during fiscal years 2016-2018. Failure to apply the 
HUBZone Act to the maximum extent possible would exclude a significant 
number of acquisitions, which would not advance the interests of small 
businesses and increase their opportunities in the Federal marketplace. 
The Federal Government has a policy of promoting HUBZone participation 
in Government contracting. The Small Business Act (Section 15(g)(1), 15 
U.S.C. 644(g)(1)) includes a 3% annual HUBZone contracting goal for all 
prime contracts and subcontract awards each fiscal year. Historically, 
the Federal Government has not achieved the HUBZone goal. Applying the 
requirement below the SAT will aid Federal agencies in achieving the 
goal.
    For these reasons, it is in the best interest of the Federal 
Government to apply the requirements of the rule to acquisitions at or 
below the SAT.
    In addition, SBA's final rule did not exempt the acquisition of 
commercial items that are set aside for, or awarded on a sole-source 
basis to HUBZone small businesses. The law is silent on the 
applicability of these requirements to acquisitions of commercial items 
and does not independently provide for criminal or civil penalties; nor 
does it include terms making express reference to 41 U.S.C. 1906 and 
its application to acquisitions of commercial items. Therefore, it does 
not apply to acquisitions of commercial items unless the FAR Council 
makes a written determination as provided at 41 U.S.C. 1906.
    Application of the law to acquisitions of commercial items will 
maximize the positive impact set-aside and sole-source contracts 
provide for HUBZone small businesses by ensuring these benefits extend 
to the many contracts for commercial items. According to the Federal 
Procurement Data System, an average of 1,548,105 contracts per year 
resulted from FAR part 19 set-asides and sole-source awards for 
commercial items during fiscal years 2016-2018. Failure to apply the 
HUBZone Act to the maximum extent possible would exclude a significant 
number of acquisitions, which would not advance the interests of small 
businesses and increase their opportunities in the Federal marketplace. 
The Federal Government has a policy of promoting HUBZone participation 
in Government contracting. The Small Business Act (Section 15(g)(1), 15 
U.S.C. 644(g)(1)) includes a 3% annual HUBZone contracting goal for all 
prime contracts and subcontract awards each fiscal year. Historically 
the Federal Government has not achieved the HUBZone goal. Applying the 
requirement to commercial items will aid Federal agencies in achieving 
the goal.
    For these reasons, it is in the best interest of the Federal 
Government to apply the requirements of the rule to the acquisition of 
commercial items.

IV. Expected Impact of the Rule

    This proposed rule will impact the operations of the Government as 
described in this section. The proposed rule specifies SBA certifies 
firms as HUBZone small business concerns in DSBS. The HUBZone small 
business certification data contained in SBA's DSBS is also available 
in the System for Award Management (SAM). Contracting officers may use 
this information to identify certified HUBZone small business concerns. 
The proposed rule removes the requirement for a HUBZone offeror to be a 
HUBZone small business concern at the time of contract award and to 
notify the contracting officer if material changes occur before 
contract award that could affect its HUBZone eligibility. Additionally, 
minor changes are made to the processing of HUBZone status protests.
    This proposed rule is not expected to result in any costs to 
contractors or offerors.

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

[[Page 31471]]

(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 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. 
This rule is not anticipated to be a major rule under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    The 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. 601-612. The Initial Regulatory Flexibility 
Analysis (IRFA) has been performed and is summarized as follows:

    DoD, GSA, and NASA are proposing to amend the FAR to implement 
revisions SBA has made in its regulations for the HUBZone Program. 
Following a review of its HUBZone program regulations, SBA issued a 
final rule on November 26, 2019, at 84 FR 65222, to update its 
regulations to reflect current policies, to eliminate ambiguities in 
its regulations, and to reduce burdens on small businesses and 
procuring agencies. This proposed FAR rule updates terminology and 
processes to correspond with SBA's changes, such as updating the 
definition of HUBZone small business concern and the procedures for 
filing and processing HUBZone protests. This rule also proposes to 
remove the restriction against applying the HUBZone Act of 1997, 15 
U.S.C. 657a, to contracts and subcontracts at or below the SAT.
    The objective of this rule is to implement SBA's revisions to 
the HUBZone program regulations.
    This rule may have a positive economic impact on small entities 
that qualify for the HUBZone program and that are interested in 
participating in Federal procurement. By reducing burden on firms 
interested in becoming HUBZone small business concerns, more firms 
may participate in and benefit from the program. SBA's Dynamic Small 
Business Search database includes 6,897 small businesses with active 
HUBZone certifications. For fiscal years 2016, 2017, and 2018, the 
Federal Government made approximately 6,600 awards to approximately 
662 unique entities certified by SBA as HUBZone small business 
concerns. About 5,627 of these were awarded to 601 unique entities 
through a HUBZone set-aside; 203 were awarded to 97 unique entities 
on a sole-source basis under the HUBZone program; and 632 were 
awarded to 25 unique entities using the HUBZone price evaluation 
preference. Approximately 46,187 were awarded to about 2,084 unique 
HUBZone small businesses in open competition with other firms. 
According to the Federal Procurement Data System, an average of 
283,374 contracts per year resulted from FAR part 19 set-asides and 
sole-source awards at or below the SAT during fiscal years 2016-
2018. Application of the HUBZone Act to acquisitions at or below the 
SAT is expected to increase the benefits from HUBZone set-aside and 
sole-source contracts and increase HUBZone small businesses' 
opportunities in the Federal marketplace.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small entities.
    The proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    There are no known significant alternative approaches that would 
accomplish the stated objectives.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by this rule 
in accordance with 5 U.S.C. 610. Interested parties must submit 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2019-007) in 
correspondence.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 3501-3521) applies 
to the information collection described in this rule; however, these 
changes to the FAR do not impose additional information collection 
requirements to the paperwork burden previously approved under OMB 
Control Numbers 9000-0136, Commercial Item Acquisitions, and 9000-0007, 
Subcontracting Plans.

List of Subjects in 48 CFR Parts 2, 5, 6, 13, 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 propose amending 48 CFR parts 2, 5, 
6, 13, 19, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 5, 6, 13, 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

0
2. Amend section 2.101 in paragraph (b)(2) by--
0
a. In the definition ``HUBZone'' removing ``or redesignated areas,'' 
and adding ``redesignated areas, governor-designated covered areas, or 
qualified disaster areas,'' in its place;
0
b. In the definition ``HUBZone contract'' removing from paragraph (1) 
``sole source'' and adding ``sole-source'' in its place; and
0
c. Revising the definition ``HUBZone small business concern'' to read 
as follows:


Sec.  2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    HUBZone small business concern means a small business concern that 
meets the requirements described in 13 CFR 126.200, certified by the 
Small Business Administration (SBA) and designated by SBA as a HUBZone 
small business concern in the Dynamic Small Business Search (DSBS) (13 
CFR 126.103).
* * * * *

PART 5--PUBLICIZING CONTRACT ACTIONS


Sec.  5.206  [Amended]

0
3. Amend section 5.206 in paragraph (a) introductory text, by removing 
the word ``qualified''.

PART 6--COMPETITION REQUIREMENTS

0
4. Amend section 6.205 by revising paragraph (a); and removing from 
paragraph (b) the word ``qualified''.
    The revision reads as follows:


Sec.  6.205   Set-asides for HUBZone small business concerns.

    (a) To fulfill the statutory requirements relating to the HUBZone

[[Page 31472]]

Act of 1997 (15 U.S.C. 631 note), contracting officers may set aside 
solicitations to allow only HUBZone small business concerns to compete 
(see 19.1305).
* * * * *

PART 13--SIMPLIFIED ACQUISITION PROCEDURES


Sec.  13.003   [Amended]

0
5. Amend section 13.003 in paragraph (b)(2)(ii) by removing ``and 
19.1306(a)(4)''.


Sec.  13.005  [Amended]

0
6. Amend section 13.005 by removing paragraph (a)(5), and redesignating 
paragraphs (a)(6) through (8) as paragraphs (a)(5) through (7), 
respectively.

PART 19--SMALL BUSINESS PROGRAMS


19.301-1   [Amended]

0
7. Amend section 19.301-1 in paragraph (d) by removing ``concern both 
at the time of initial offer and at the time of contract award'' and 
adding ``concern at the time of initial offer'' in its place.
0
8. Amend section 19.306 by--
0
a. Revising paragraph (b);
0
b. In paragraph (c) removing ``HUBZone qualifying'' and adding 
``HUBZone eligibility'' in its place;
0
c. Revising paragraph (d);
0
d. In paragraph (e)--
0
i. Revising the heading;
0
ii. Removing from the introductory text of paragraph (e)(1) ``protest'' 
and adding ``written protest'' in its place;
0
e. Revising paragraphs (f) and (h)(1)(ii);
0
f. Removing paragraph (h)(3);
0
g. In paragraph (i)--
0
i. Removing from the introductory text ``The HUBZone Program Director'' 
and ``(AA/GCBD)'' and adding ``SBA'' and ``(AA/GC&BD)'' in their 
places, respectively;
0
ii. Revising the second sentence of paragraph (1);
0
iii. Removing from paragraph (2) ``AA/GCBD'' and adding ``AA/GC&BD'' in 
its place;
0
iv. Revising paragraph (3);
0
v. Removing from paragraph (4) ``or (h)(3)'', and removing wherever it 
appears ``(AA/GCBD)'' and adding ``(AA/GC&BD)'' in its place; and
0
vi. Revising paragraph (5).
0
h. In paragraph (l)--
0
i. Adding to the end of paragraph (i) ``and'';
0
ii. Removing paragraph (ii), and redesignating paragraph (iii) as 
paragraph (ii); and
0
iii. Removing from paragraph (2) ``Director/HUB's decision'' and adding 
``HUBZone Program Director's determination'' in its place; and
0
i. Removing from paragraph (m) wherever it appears ``AA/GCBD'' and 
adding ``AA/GC&BD'' in its place.
    The revisions read as follows:


19.306   Protesting a firm's status as a HUBZone small business 
concern.

* * * * *
    (b)(1) For sole-source procurements, SBA or the contracting officer 
may protest the prospective contractor's certified HUBZone status; for 
all other procurements, SBA, the contracting officer, or any other 
interested party may protest the apparent successful offeror's 
certified HUBZone status. (See 13 CFR 126.800.)
    (2) The Director of SBA's Office of the HUBZone Program will 
determine whether the concern has certified HUBZone status. If SBA 
upholds the protest, SBA will remove the concern's HUBZone status in 
the Dynamic Small Business Search (DSBS). SBA's protest regulations are 
found in subpart H ``Protests'' at 13 CFR 126.800 through 126.805.
* * * * *
    (d)(1) All protests must be in writing and must state all specific 
grounds for the protest, i.e., why the protested concern did not meet 
the eligibility requirements at 13 CFR 126.200 at the time of the 
concern's application to SBA for certification as a HUBZone small 
business concern or at the time SBA certified or last recertified the 
concern as a HUBZone small business concern. Assertions that a 
protested concern is not a HUBZone small business concern, without 
setting forth specific facts or allegations, will not be considered by 
SBA (see 13 CFR 126.801(b)).
    (2) Protests filed against a HUBZone joint venture must state one 
or, if applicable, both of the following:
    (i) Why the HUBZone small business party to the joint venture did 
not meet the eligibility requirements at 13 CFR 126.200 at the time of 
its application to SBA for certification or at the time SBA certified 
or last recertified the concern as a HUBZone small business concern.
    (ii) Why the joint venture did not meet the requirements at 13 CFR 
126.616 at the time of submission of its offer for a HUBZone contract.
    (e) Submission of a protest. * * *
    (f) The contracting officer shall forward all protests with a 
referral letter to the Director of SBA's Office of the HUBZone Program, 
by email to <a href="/cdn-cgi/l/email-protection#81e9fbf1f3eef5e4f2f5f2c1f2e3e0afe6eef7"><span class="__cf_email__" data-cfemail="51392b21233e2534222522112233307f363e27">[email protected]</span></a>. The referral letter shall include the 
following:
    (1) The solicitation number.
    (2) The contracting officer's name and contact information.
    (3) The type of HUBZone contract (i.e., sole source, set-aside, 
full and open competition with a HUBZone price evaluation preference, 
or reserve for HUBZone small business concerns under a multiple-award 
contract).
    (4) For a procurement conducted using full and open competition 
with a HUBZone price evaluation preference, whether the protester's 
opportunity for award was affected by the preference.
    (5) For a HUBZone set-aside, whether the protester submitted an 
offer.
    (6) Whether the protested concern was the apparent successful 
offeror.
    (7) Whether the procurement was conducted using sealed bid or 
negotiated procedures.
    (8) The bid opening date, if applicable.
    (9) The date the protester was notified of the apparent successful 
offeror.
    (10) The date the contracting officer received the protest.
    (11) The date the protested concern submitted its initial offer or 
quote to the contracting officer.
    (12) Whether a contract has been awarded, and if so, the date of 
award and contract number.
* * * * *
    (h) * * *
    (1) * * *
    (ii) Award the contract if--
    (A) SBA does not issue its decision within 15 business days after 
receipt of the protest; and
    (B) The contracting officer determines in writing that there is an 
immediate need to award the contract and that waiting for SBA's 
determination will be disadvantageous to the Government.
* * * * *
    (i) * * *
    (1) * * *. If the AA/GC&BD subsequently overturns the initial 
determination or dismissal, the contracting officer may apply the AA/
GC&BD decision to the procurement in question.
* * * * *
    (3) If the contracting officer has made a written determination in 
accordance with (h)(1)(ii) of this section, awarded the contract, and 
the Director of SBA's Office of the HUBZone Program's ruling sustaining 
the protest is received after award--
    (i) The contracting officer shall either--
    (A) Terminate the contract; or
    (B)(1) Make a written determination that termination is not in the 
best interests of the Government; and
    (2) Not exercise any options or award further task or delivery 
orders under the contract;

[[Page 31473]]

    (ii) SBA will remove the concern's designation as a certified 
HUBZone small business concern in the Dynamic Small Business Search 
(DSBS). The concern is not permitted to submit an offer as a HUBZone 
small business concern, until SBA issues a decision that the 
ineligibility is resolved; and
    (iii) After SBA updates the concern's designation as a HUBZone 
small business in DSBS, the contracting officer shall update the 
Federal Procurement Data System (FPDS) to reflect the final decision of 
the HUBZone Program Director if no appeal is filed.
* * * * *
    (5) If the AA/GC&BD affirms the decision of the HUBZone Program 
Director, finding the protested concern is ineligible, and contract 
award has occurred--
    (i) The contracting officer shall either--
    (A) Terminate the contract; or
    (B)(1) Make a written determination that termination is not in the 
best interests of the Government; and
    (2) Not exercise any options or award further task or delivery 
orders under the contract;
    (ii) SBA will remove the concern's designation as a certified 
HUBZone small business concern in DSBS. The concern is not permitted to 
submit an offer as a HUBZone small business concern until SBA issues a 
decision that the ineligibility is resolved or the AA/GC&BD finds the 
concern is eligible on appeal; and
    (iii) After SBA updates the concern's designation as a HUBZone 
small business in DSBS, the contracting officer shall update FPDS to 
reflect the AA/GC&BD decision.
* * * * *
0
9. Amend section 19.703 by revising paragraph (d)(1) to read as 
follows:


19.703   Eligibility requirements for participating in the program.

* * * * *
    (d)(1) Contractors are required to confirm that a subcontractor 
representing itself as a HUBZone small business concern is certified by 
SBA as a HUBZone small business concern by accessing SAM or the Dynamic 
Small Business Search (DSBS) at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm.
* * * * *


19.1302   [Removed and Reserved]

0
10. Remove and reserve section 19.1302.
0
11. Amend section 19.1303 by revising paragraphs (b) and (d) to read as 
follows:


19.1303   Status as a HUBZone small business concern.

* * * * *
    (b) If SBA determines that a concern is a HUBZone small business, 
it will designate the concern as a HUBZone small business in the 
Dynamic Small Business Search (DSBS) at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm. SBA's designation also appears in SAM. Only firms 
designated in DSBS as HUBZone small business concerns are eligible for 
HUBZone preferences. HUBZone preferences are not contingent on the 
place of performance.
* * * * *
    (d) To be eligible for a HUBZone contract under this section, a 
HUBZone small business concern must be a HUBZone small business concern 
at the time of its initial offer.


19.1304  [Amended]

0
12. Amend section 19.1304 by removing paragraph (e) and redesignating 
paragraph (f) as paragraph (e).


19.1305   [Amended]

0
13. Amend section 19.1305 by--
0
a. Removing from paragraph (a)(3) ``sole source'' and adding ``sole-
source'' in its place;
0
b. Removing from paragraph (c) ``qualified'';
0
c. In paragraph (d)--
0
i. Removing from the introductory text ``, except for acquisitions not 
exceeding the simplified acquisition threshold,''; and
0
ii. Removing from paragraph (2) ``acquisition'' and adding 
``acquisition until the head of the contracting activity issues a 
written decision on the appeal,'' in its place.
0
14. Amend section 19.1306 by--
0
a. Revising the section heading;
0
b. In paragraph (a)--
0
i. Removing from the introductory text ``sole source'' and adding 
``sole-source'' in its place;
0
ii. Removing paragraph (4);
0
iii. Redesignating paragraphs (5) and (6) as paragraphs (4) and (5); 
and
0
c. Removing from paragraph (b) ``sole source award'' and adding ``sole-
source award (see 13 CFR 126.610)'' in its place.
    The revision reads as follows:


19.1306  HUBZone sole-source awards.

* * * * *


19.1309  [Amended]

0
15. Amend section 19.1309 by removing from paragraph (a)(1) ``Sole 
Source Award'' and ``sole source basis'' and adding ``Sole-Source 
Award'' and ``sole-source basis'' in their places, respectively.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
16. Amend section 52.212-3 by revising the date of the provision and 
paragraph (c)(10)(i) to read as follows:


52.212-3   Offeror Representations and Certifications--Commercial 
Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (DATE)

* * * * *
    (c) * * *
    (10) * * *
    (i) It [square] is, [square] is not a HUBZone small business 
concern listed, on the date of this representation, as having been 
certified by SBA as a HUBZone small business concern in the Dynamic 
Small Business Search, and will attempt to maintain (see 13 CFR 
126.200(e)) an employment rate of HUBZone residents of 35 percent of 
its employees during performance of a HUBZone contract; and
* * * * *
0
17. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(11)(i) ``Sole Source'' and ``(MAR 
2020)'' and adding ``Sole-Source'' and ``(DATE)'' in their places, 
respectively;
0
c. Removing from paragraph (b)(12)(i) ``(MAR 2020)'' and adding 
``(DATE)'' in its place;
0
d. Removing from paragraph (b)(16) ``(OCT 2018)'' and adding ``(DATE)'' 
in its place;
0
e. Removing from paragraph (b)(17)(i) ``(JUN 2020)'' and adding 
``(DATE)'' in its place;
0
f. In paragraph (e)(1)--
0
i. Removing from the introductory text ``of this paragraph''; and
0
ii. Removing from paragraph (v) ``(OCT 2018)'' and adding ``(DATE)'' in 
its place;
0
g. In Alternate II--
0
i. Revising the date; and
0
ii. In paragraph (e)(1)(ii)(E) removing ``(OCT 2018)'' and adding 
``(DATE)'' in its place.
    The revisions 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 (DATE)

* * * * *

[[Page 31474]]

    Alternate II (DATE). * * *
* * * * *
0
18. Amend section 52.213-4 by revising the date of the clause and 
removing from paragraph (a)(2)(viii) ``(NOV 2020)'' and adding 
``(DATE)'' in its place.
    The revision reads as follows:


52.213-4   Terms and Conditions-Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions-Simplified Acquisitions (Other Than Commercial 
Items) (DATE)

* * * * *
0
19. Amend section 52.219-1 by revising the date of the provision and 
paragraph (c)(8)(i) to read as follows:


52.219-1  Small Business Program Representations.

* * * * *

Small Business Program Representations (DATE)

* * * * *
    (c) * * *
    (8) * * *
    (i) It [ballot] is, [ballot] is not a HUBZone small business 
concern listed, on the date of this representation, as having been 
certified by SBA as a HUBZone small business concern in the Dynamic 
Small Business Search, and will attempt to maintain (see 13 CFR 
126.200(e)) an employment rate of HUBZone residents of 35 percent of 
its employees during performance of a HUBZone contract; and
* * * * *
0
20. Amend section 52.219-3 by revising the heading, clause heading and 
date; and removing paragraph (g).
    The revisions read as follows:


52.219-3  Notice of HUBZone Set-Aside or Sole-Source Award.

* * * * *

Notice of HUBZone Set-Aside or Sole-Source Award (DATE)

* * * * *
0
21. Amend section 52.219-4 by revising the clause heading and date, and 
removing paragraph (f).
    The revision reads as follows:


52.219-4   Notice of Price Evaluation Preference for HUBZone Small 
Business Concerns.

* * * * *

Notice of Price Evaluation Preference for HUBZone Small Business 
Concerns (DATE)

* * * * *
0
22. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), revising the definition ``HUBZone small business 
concern''; and
0
c. Revising paragraph (d)(5).
    The revisions read as follows:


52.219-8  Utilization of Small Business Concerns.

* * * * *

Utilization of Small Business Concerns (DATE)

    (a) * * *
    HUBZone small business concern means a small business concern that 
meets the requirements described in 13 CFR 126.200, certified by the 
Small Business Administration (SBA) and designated by SBA as a HUBZone 
small business concern in the Dynamic Small Business Search (DSBS).
* * * * *
    (d) * * *
    (5) The Contractor shall confirm that a subcontractor representing 
itself as a HUBZone small business concern is certified by SBA as a 
HUBZone small business concern by accessing DSBS at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm or SAM.
* * * * *
0
23. Amend section 52.219-9 by revising the date of clause and paragraph 
(e)(4) to read as follows:


52.219-9   Small Business Subcontracting Plan.

* * * * *

Small Business Subcontracting Plan (DATE)

* * * * *
    (e) * * *
    (4) Confirm that a subcontractor representing itself as a HUBZone 
small business concern is certified by SBA as a HUBZone small business 
concern by accessing the Dynamic Small Business Search (DSBS) at 
https://web.sba.gov/pro-net/search/dsp_dsbs.cfm or SAM.
* * * * *
0
24. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(vii) ``(Oct 2018)'' and adding 
``(DATE)'' in its place.
    The revision reads as follows:


52.244-6   Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (DATE)

* * * * *

[FR Doc. 2021-12003 Filed 6-11-21; 8:45 am]
BILLING CODE 6820-EP-P


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