81 FR 67735 - Federal Acquisition Regulation; Sole Source Contracts for Women-Owned Small Businesses

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 81, Issue 190 (September 30, 2016)

DoD, GSA, and NASA have adopted as final, with a minor edit, an interim rule amending the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration (SBA) that provide for authority to award sole source contracts to economically disadvantaged women-owned small business concerns and to women-owned small business concerns eligible under the Women-Owned Small Business (WOSB) Program.

[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67735-67736]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23197]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 4, 6, 18, 19, and 52

[FAC 2005-91; FAR Case 2015-032; Item IV; Docket No. 2015-0032; 
Sequence No. 1]
RIN 9000-AN13


Federal Acquisition Regulation; Sole Source Contracts for Women-
Owned Small Businesses

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA have adopted as final, with a minor edit, 
an interim rule amending the Federal Acquisition Regulation (FAR) to 
implement regulatory changes made by the Small Business Administration 
(SBA) that provide for authority to award sole source contracts to 
economically disadvantaged women-owned small business concerns and to 
women-owned small business concerns eligible under the Women-Owned 
Small Business (WOSB) Program.

DATES: Effective: September 30, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement 
Analyst, at 703-605-2868 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-91, FAR Case 
2015-032.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 80 FR 81888 on December 31, 2015, to implement regulatory 
changes that the SBA has made in its final rule published in the 
Federal Register at 80 FR 55019, on September 14, 2015, concerning sole 
source award authority under the WOSB Program. SBA's final rule 
implements the statutory requirements of paragraph (a)(3) of section 
825 of the Carl Levin and Howard P. ``Buck'' McKeon National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2015, Public Law 113-291, 
granting contracting officers the authority to award sole source 
contracts to economically disadvantaged women-owned small business 
(EDWOSB) concerns and to WOSB concerns eligible under the WOSB Program. 
Four respondents submitted comments on the interim rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. All four respondents expressed support 
of the interim rule. Therefore, no further change to the interim rule 
is required as a result of the public comments, but there is a minor 
edit to 19.1505(a)(1).

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

    This rule adopts as final the amendments to the FAR clauses at 
52.219-29, Notice of Set-Aside for, or Sole Source Award to, 
Economically Disadvantaged Women-owned Small Business Concerns, and 
52.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-
Owned Small Business Concerns Eligible Under the Women-Owned Small 
Business Program, in order to implement paragraph (a)(3) of section 825 
of the NDAA for FY 2015. The Federal Acquisition Regulatory Council, 
pursuant to the authority granted in 41 U.S.C. 1905 and 1906, and the 
Administrator, Office of Federal Procurement Policy, pursuant to the 
authority granted in 41 U.S.C 1907, have determined that the 
application of this statutory authority to contracts at or below the 
simplified acquisition threshold and to contracts for commercial items 
and commercially available off-the-shelf items, is in the best 
interests of the Federal Government.

IV. 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 (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. This rule is not a major rule 
under 5 U.S.C. 804.

V. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act 5 U.S.C. 
601, et seq. The FRFA is summarized as follows:

    This rule implements paragraph (a)(3) of section 825 of the Carl 
Levin and Howard P. `Buck' McKeon National Defense Authorization Act 
for Fiscal Year 2015, Public Law 113-291, (Fiscal Year 2015 NDAA). 
Section 825 of the Fiscal Year 2015 NDAA included language granting 
contracting officers the authority to award sole source contracts to 
Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged 
Women-Owned Small Businesses (EDWOSBs) under the WOSB Program. The 
purpose of this rule is to finalize the procedures whereby Federal 
agencies may award sole source contracts to WOSBs and EDWOSBs 
eligible under the WOSB Program. The rule provides an additional 
tool for Federal agencies to ensure that WOSBs have an equal 
opportunity to participate in Federal contracting and ensures 
consistency among SBA's socioeconomic small business contracting 
programs.

[[Page 67736]]

    The interim rule, published at 80 FR 81888, on December 31, 
2015, put the WOSB Program on a level playing field with other SBA 
Government contracting programs with sole source authority and 
provided an additional, needed tool for agencies to meet the 
statutorily mandated goal of 5 percent of the total value of all 
prime contract and subcontract awards for WOSBs.
    There were no significant issues raised by the public in 
response to the Initial Regulatory Flexibility Analysis provided in 
the interim rule.
    This rule may have a positive economic impact on WOSB concerns. 
The Dynamic Small Business Supplemental Search (DSBS) lists 
approximately 41,500 firms as either WOSBs or EDWOSBs under the WOSB 
Program. An analysis of the Federal Procurement Data System from 
April 1, 2011 (the implementation date of the WOSB Program), through 
September 1, 2015, revealed that there were approximately 17,353 
women-owned small business concerns that received obligated funds 
from Federal contract awards, task or delivery orders, and 
modifications to existing contracts, in an industry where a WOSB or 
EDWOSB sole source is authorized, and where the contract is valued 
at or below the thresholds for sole source contracts to WOSBs or 
EDWOSBs. Of those 17,353 women-owned small business concerns, 328 
EDWOSBs and 974 WOSBs were eligible to participate in the WOSB 
Program (i.e., received set-asides under the WOSB Program), and 
could have received sole source awards. This rule could affect a 
smaller number of EDWOSBs and WOSBs than those eligible under the 
WOSB Program since the sole source authority can only be used where 
a contracting officer conducts market research in an industry where 
a WOSB or EDWOSB set-aside is authorized, and cannot identify two or 
more eligible EDWOSB or WOSB concerns that can perform at a fair and 
reasonable price, but identifies one WOSB or EDWOSB that can 
perform. In addition, the sole source authority for WOSBs and 
EDWOSBs is limited to contracts valued at $6.5 million or less for 
manufacturing contracts and $4 million or less for all other 
contracts.
    This rule does not impose any new reporting, recordkeeping or 
other compliance requirements for small businesses. This rule does 
not duplicate, overlap, or conflict with any other Federal rules.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VI. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 2, 4, 6, 18, 19, and 52

    Government procurement.

    Dated: September 19, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

Interim Rule Adopted as Final With Change

0
Accordingly, the interim rule amending 48 CFR parts 2, 4, 6, 18, 19, 
and 52 which was published in the Federal Register at 80 FR 81888, on 
December 31, 2015, is adopted as a final rule with the following 
change:

PART 19--SMALL BUSINESS PROGRAMS

0
1. The authority citation for 48 CFR part 19 continues to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.


19.1505  [Amended]

0
2. Amend section 19.1505 by removing from paragraph (a)(1) ``Program.'' 
and adding ``Program; and'' in its place.

[FR Doc. 2016-23197 Filed 9-29-16; 8:45 am]
 BILLING CODE 6820-EP-P