82 FR 4724 - Federal Acquisition Regulation; Contracts Under the Small Business Administration 8(a) Program

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 82, Issue 9 (January 13, 2017)

Page Range		4724-4731
FR Document		2016-31498
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement regulatory clarifications made by the Small Business Administration regarding the 8(a) program.
Federal Register, Volume 82 Issue 9 (Friday, January 13, 2017)
[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Rules and Regulations]
[Pages 4724-4731]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31498]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 6, 18, 19 and 52

[FAC 2005-95; FAR Case 2012-022; Item IV; Docket No. 2012-0022, 
Sequence No. 1]
RIN 9000-AM68


Federal Acquisition Regulation; Contracts Under the Small 
Business Administration 8(a) Program

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement regulatory 
clarifications made by the Small Business Administration regarding the 
8(a) program.

DATES: Effective: January 13, 2017.

FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement 
Analyst, at 703-605-2868, or by email at [email protected], for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755. Please cite FAC 2005-95, FAR Case 2012-022.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 79 FR 6135 on February 3, 2014, soliciting public comments 
regarding the implementation of regulatory clarifications made by the 
Small Business Administration (SBA) under section 8(a) of the Small 
Business Act (15 U.S.C. 637(a)). The proposed rule provided additional 
guidance for the evaluation, offering, and acceptance process; 
procedures for releasing a requirement for non-8(a) procurement; and 
information on the effect exiting the 8(a) program will have on its 
current contractual obligations and the firm's ability to receive new 
8(a) requirements. Six respondents submitted comments on the proposed 
rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the comments in the 
development of the final rule. A discussion of the comments is 
provided.

A. Summary of Significant Changes

    The final rule contains revisions to the language at FAR 19.804-
6(a) to clarify that offers and acceptances are required for individual 
orders under multiple-award contracts that were not set aside for 
competition among 8(a) contractors. The final rule also revises the 
language at FAR 19.814(a) to indicate that the SBA Inspector General 
can request a formal size determination. In addition, the final rule 
revises the language at FAR 19.815 regarding the release of 
requirements from the 8(a) program. Language has been added to clarify 
that any follow-on 8(a) requirement shall remain in the 8(a) program 
unless there is a mandatory source for the requirement pursuant to FAR 
8.002 or 8.003 or SBA agrees to release the requirement for procurement 
outside the 8(a) program.

B. Analysis of Public Comments

1. Support Proposed Changes
    Comment: One respondent stated support for the changes made in the 
proposed rule.
    Response: The Councils acknowledge receipt of this comment.
2. Potential Conflict With Other Statutorily Mandated Socioeconomic 
Programs
    Comment: Two respondents expressed concern that the proposed 
language at FAR 19.815 appeared to be in conflict with other 
socioeconomic programs, such as the Javits-Wagner-O'Day (JWOD) Act (now 
codified at 41 U.S.C. chapter 85). The proposed rule at FAR section 
19.815, Release for non-8(a) procurement, implies that the SBA 
Associate Administrator for Business Development will only consider 
releasing requirements from the 8(a) program when there are assurances 
that the requirement will be procured under another small business 
program. However, the proposed rule does not mention that another 
reason a requirement must be released is when it can be procured under 
a statutory authority other than the Small Business Act. For example, 
if the requirement has been placed on the Procurement List by the 
Committee for Purchase from People Who are Blind or Severely Disabled 
(AbilityOne), it must, by law, be procured under JWOD, using the 
procedures at FAR subpart 8.7. These respondents asked for further 
clarification of this point in the FAR.
    Response: The purpose of FAR 19.815 is to clarify that the 
contracting officer must submit a formal request to the SBA Associate 
Administrator for the release of a requirement that is currently 
accepted into the 8(a) program, if he or she intends to procure the 
item from a non-8(a) source. It further clarifies the factors SBA will 
take into consideration when determining whether to release the 
requirement from the 8(a) program.
    This clarification does not conflict or eliminate an agency's 
obligation to follow the procedures at FAR 8.002, Priorities for use of 
mandatory Government sources, and FAR 8.003, Use of other mandatory 
sources. As stated in these sections of the FAR, an agency may consider 
satisfying its requirement(s) through a commercial source, such as a 
small business, only after it has exhausted the possibility of 
fulfilling its requirement through one of the mandatory sources 
identified in FAR 8.002 or 8.003. However, new language has been added 
at FAR 19.815(a) and (b), to clarify that a requirement accepted into 
the 8(a) program shall remain in the 8(a) program unless the 
requirement can be satisfied through one of the mandatory sources 
listed at FAR 8.002 or 8.003 or the SBA Associate Administrator for 
Business Development agrees to release it.

[[Page 4725]]

3. The Rule Gives Preference to 8(a)Program Participants Over Other 
Small Businesses or Other Small Business Socioeconomic Programs
    Comment: One respondent remarked that FAR 19.800(d) appears to give 
preferential treatment to 8(a) awards over other small business or 
other socioeconomic goals. FAR 19.800(d) of the proposed rule states 
the following: ``the contracting officer shall consider 8(a) set-asides 
or sole source awards before considering small business set-asides . . 
. .'' This respondent stated that each agency should have autonomy in 
achieving its own socioeconomic goals.
    Response: The language in question already existed in the FAR as 
19.800(e), but was renumbered as 19.800(d) by the proposed rule. The 
intent of the language at FAR 19.800(d) of the proposed rule is to 
further convey the policy established at FAR 19.203(c), i.e., for 
acquisitions above the simplified acquisition threshold (SAT), the 
contracting officer shall first consider small business socioeconomic 
contracting programs, such as the HUBZone program, the service-disabled 
veteran-owned small business (SDVOSB) program, the women-owned small 
business program (WOSB), and the 8(a) program, before considering a 
small business set-aside, thus allowing agencies to independently 
tailor acquisition strategies based on their small business and small 
business socioeconomic goaling achievements. Similar language appears 
in FAR subparts 19.13, 19.14, and 19.15, though it is adapted to suit 
the specific socioeconomic program under discussion, i.e., HUBZone, 
SDVOSB program, or the WOSB program. For further information on the 
socioeconomic parity rules within the small business programs, refer to 
the final rule for FAR case 2011-004, Socioeconomic Program Parity, 
published in the Federal Register at 77 FR 12930 on March 2, 2012.
4. Further Clarification of 8(a) Offer and Acceptance Procedures Is 
Needed
    Comment: A respondent recommended that the language at FAR 19.804-
3(c)(2), which discusses sole source awards where the contracting 
officer has not nominated a specific 8(a) participant, be amended to 
allow the contracting officer to have input in the selection process 
and the opportunity to concur with SBA's selection.
    Response: The guidance provided in the FAR for ``open'' sole source 
requirements is consistent with SBA's regulations at 13 CFR part 124. 
In open sole source requirements, the agency provides input into the 
selection through its offering letter, including such criteria as the 
special capabilities or disciplines needed for contract performance. 
Concurrence with SBA's selection is evidenced by the contracting 
officer's signature on the tripartite agreement or, where SBA has 
delegated 8(a) contract execution functions to an agency, the 
contracting officer's signature on the contract award document.
    Comment: One respondent requested additional guidance to clarify 
when the contracting office may assume SBA's acceptance of a 
requirement valued below the SAT that is not offered on behalf of a 
specific 8(a) participant. For acquisitions at or below the SAT, FAR 
19.804-3(a)(2) states that the contracting office may assume SBA's 
acceptance has occurred within two working days when the offer was made 
on behalf of a specific 8(a) participant; however, the FAR is silent 
regarding when the contracting officer may assume SBA's acceptance of a 
requirement that was not offered on behalf of a specific 8(a) 
participant.
    Response: Although the proposed rule contained minor editorial 
revisions in this paragraph, the basic guidance was not changed because 
it is consistent with SBA's regulations. In order for SBA to make the 
decision to accept an offer of a requirement into the 8(a) program, it 
must have reasonable assurance that an eligible 8(a) participant is 
available.
    In the case of a sole source requirement at or below the SAT, when 
the contracting officer has identified a specific 8(a) participant, SBA 
will normally respond within two working days. This quick turnaround is 
attributed to the fact that SBA will usually accept the requirement on 
behalf of the 8(a) program in support of the specific participant 
nominated in the offering letter. However, when a contracting officer 
submits an open requirement to SBA, i.e., does not identify a specific 
participant for the performance of the sole source requirement, the 
matching process is more complicated, and SBA will require variable 
amounts of time to pair the offered requirement with an 8(a) 
participant possessing the competencies needed for successful 
performance. For this reason, a definitive time frame for assuming 
SBA's acceptance of an open requirement below the SAT is not provided 
in the FAR.
5. Editorial Recommendations
    Comment: One respondent recommended the inclusion of a definitions 
section, rather than defining all the terms at FAR 19.800(a). This 
respondent suggested that the new Definitions section should define the 
terms ``offering letter'' and ``competitive threshold.''
    Response: The intent of the rule is to provide needed clarification 
of certain aspects of the 8(a) program relating to Federal procurement. 
In its present format, the definitions of certain terms such as 
``offering letter'' and ``competitive threshold'' occur in the FAR 
section where the phrase is introduced and the primary discussion of 
these subjects takes place. For example, the meaning of the term 
``offering letter'' is explained in FAR 19.804-2, Agency offering, 
which is the area where the subject matter is introduced and where the 
primary discussion of offering letters is located. Similarly, the 
discussion of ``competitive threshold'' occurs in two back-to-back 
sections of FAR subpart 19.8, where the term is defined and its primary 
discussion takes place.
    Comment: One respondent stated that the language at FAR 19.816(a) 
pertaining to an 8(a) contractor's eligibility to receive contracts 
after exiting the 8(a) program requires further explanation, since it 
appears to conflict with FAR 19.804-6 as well as section 19.816(c). 
This respondent suggested that the verbiage ``except as provided in FAR 
19.804-6 and paragraph 19.816(c) . . .'' be added to ensure these 
exceptions are made clear.
    Response: FAR 19.816(a) has been revised to add ``[e]xcept as 
provided in 19.816(c) . . . .'' However, FAR 19.804-6 addresses 
different subject matter. FAR 19.804-6 discusses the conditions by 
which an 8(a) prime contractor may continue to accept new orders under 
its existing multiple-award, indefinite-delivery, indefinite-quantity 
contract. On the other hand, FAR 19.816 discusses the contractual 
obligations upon exiting the 8(a) program.
    Comment: One respondent stated that the language at FAR 19.816(c) 
pertaining to a contractor's eligibility to receive contracts after 
exiting the program should be further clarified. Based on the 
assumption that an 8(a) contractor would necessarily have new North 
American Industry Classification System (NAICS) code applicability upon 
exiting the program, the respondent recommended that additional 
language be added to stipulate that the contractor must have been 
eligible for contract award in the specific NAICS code(s) identified in 
the contract on the initial date specified for receipt of offers.
    Response: The recommended change is unnecessary since 8(a) program

[[Page 4726]]

eligibility is already addressed in FAR sections 19.802, 19.803, and 
19.805 of the rule.
    Comment: Two respondents suggested a few minor editorial changes.
    Response: All suggested minor editorial changes have been 
incorporated.

III. 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 a significant regulatory action and, therefore, was 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.

IV. 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 final rule amends the FAR to implement regulatory changes 
that SBA made to the 8(a) program. The final rule clarifies 
procedures and requirements used when agencies are contracting under 
the 8(a) Program. Among other issues, these changes include 
clarification of the evaluation, offering, and acceptance process; 
procedures for acquiring SBA's consent to procure an 8(a) 
requirement outside the 8(a) program; and the impact of exiting the 
8(a) program in terms of the firm's ability to receive future 8(a) 
requirements and its current contractual commitments. These 
revisions do not place any new requirements, financial or otherwise, 
on small entities, and serve mainly to provide more explicit 
guidance to Federal contracting officials.
    There were no significant issues raised by the public in 
response to the Initial Regulatory Flexibility Analysis provided in 
the proposed rule.
    Currently, the 8(a) Program has approximately 6,885 active 
Participants, and of these, approximately 1,289 are owned by Native 
Americans. These entities may be economically impacted by the 
changes addressed in this final rule.
    This rule does not impose any new information collection 
requirements on small businesses. The rule will have no direct 
negative impact on any small business concern, since it merely 
provides clarification of existing procedures and requirements used 
by agencies when contracting under the 8(a) Program.
    There are no alternative approaches that will accomplish the 
stated objectives of the rule.

    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.

V. 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 5, 6, 18, 19 and 52.

    Government procurement.

    Dated: December 21, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, 18, 19 and 
52 as set forth below:

0
1. The authority citation for 48 CFR parts 5, 6, 18, 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 5--PUBLICIZING CONTRACT ACTIONS

0
2. Amend section 5.205 by revising paragraph (f) to read as follows:


5.205  Special situations.

* * * * *
    (f) Section 8(a) competitive acquisition. When a national buy 
requirement is being considered for competitive acquisition limited to 
eligible 8(a) participants under subpart 19.8, the contracting officer 
must transmit a synopsis of the proposed contract action to the GPE. 
The synopsis may be transmitted to the GPE concurrent with submission 
of the agency offering (see 19.804-2) to the Small Business 
Administration (SBA). The synopsis should also include information--
    (1) Advising that the acquisition is being offered for competition 
limited to eligible 8(a) participants;
    (2) Specifying the North American Industry Classification System 
(NAICS) code;
    (3) Advising that eligibility to participate may be restricted to 
8(a) participants in either the developmental stage or the 
developmental and transitional stages; and
    (4) Encouraging interested 8(a) participants to request a copy of 
the solicitation as expeditiously as possible since the solicitation 
will be issued without further notice upon SBA acceptance of the 
requirement for the section 8(a) program.
* * * * *

PART 6--COMPETITION REQUIREMENTS

0
3. Revise section 6.204 to read as follows:


6.204   Section 8(a) competition.

    (a) To fulfill statutory requirements relating to section 8(a) of 
the Small Business Act, as amended by Public Law 100-656, contracting 
officers may limit competition to eligible 8(a) participants (see 
subpart 19.8).
    (b) No separate justification or determination and findings is 
required under this part to limit competition to eligible 8(a) 
participants. (But see 6.302-5 and 6.303-1 for sole source 8(a) awards 
over $22 million.)

PART 18--EMERGENCY ACQUISITIONS


18.114  [Amended]

0
4. Amend section 18.114 by removing ``firms'' and adding 
``participants'' in its place.

PART 19--SMALL BUSINESS PROGRAMS


19.000   [Amended]

0
5. Amend section 19.000 by removing from paragraph (a)(3) ``business 
development''.

0
6. Revise section 19.800 to read as follows:


19.800  General.

    (a) Section 8(a) of the Small Business Act (15 U.S.C. 637(a)) 
established a program that authorizes the Small Business Administration 
(SBA) to enter into all types of contracts with other agencies and 
award subcontracts for performing those contracts to firms eligible for 
program participation. This program is the ``8(a) Business Development 
Program,'' commonly referred to as the ``8(a) program.'' A small 
business that is accepted into the 8(a) program is known as a 
``participant.'' SBA's subcontractors are referred to as ``8(a) 
contractors.'' As used in this subpart, an 8(a) contractor is an 8(a) 
participant that is currently performing on a Federal contract or order 
that was set aside for 8(a) participants.

[[Page 4727]]

    (b) Contracts may be awarded to the SBA for performance by eligible 
8(a) participants on either a sole source or competitive basis.
    (c) Acting under the authority of the program, the SBA certifies to 
an agency that SBA is competent and responsible to perform a specific 
contract. The contracting officer has the discretion to award the 
contract to the SBA based upon mutually agreeable terms and conditions.
    (d) The contracting officer shall comply with 19.203 before 
deciding to offer an acquisition to a small business concern under the 
8(a) program. For acquisitions above the simplified acquisition 
threshold, the contracting officer shall consider 8(a) set-asides or 
sole source awards before considering small business set-asides.
    (e) When SBA has delegated its 8(a) program contract execution 
authority to an agency, the contracting officer must refer to its 
agency supplement or other policy directives for appropriate guidance.

0
7. Revise section 19.802 to read as follows:


19.802  Determining eligibility for the 8(a) program.

    Determining the eligibility of a small business to be a participant 
in the 8(a) program is the responsibility of the SBA. SBA's regulations 
on eligibility requirements for participation in the 8(a) program are 
found at 13 CFR 124.101 through 124.112.

0
8. Revise section 19.803 to read as follows:


19.803   Selecting acquisitions for the 8(a) program.

    Through their cooperative efforts, the SBA and an agency match the 
agency's requirements with the capabilities of 8(a) participants to 
establish a basis for the agency to contract with the SBA under the 
program. Selection is initiated in one of three ways:
    (a) The SBA advises the contracting activity of an 8(a) 
participant's capabilities through a search letter and requests the 
contracting activity to identify acquisitions to support the 
participant's business plans. In these instances, the SBA will provide 
at a minimum the following information in order to enable the 
contracting activity to match an acquisition to the participant's 
capabilities:
    (1) Identification of the participant and its owners.
    (2) Background information on the participant, including any and 
all information pertaining to the participant's technical ability and 
capacity to perform.
    (3) The participant's present production capacity and related 
facilities.
    (4) The extent to which contracting assistance is needed in the 
present and the future, described in terms that will enable the agency 
to relate the participant's plans to present and future agency 
requirements.
    (5) If construction is involved, the request shall also include the 
following:
    (i) A participant's capabilities in and qualifications for 
accomplishing various categories of construction work typically found 
in North American Industrial Category System subsector 236 
(construction of buildings), subsector 237 (heavy and civil engineering 
construction), or subsector 238 (specialty trade contractors).
    (ii) The participant's capacity in each construction category in 
terms of estimated dollar value (e.g., electrical, up to $100,000).
    (b) The SBA identifies a specific requirement for one or more 8(a) 
participant(s) and sends a requirements letter to the agency's Office 
of Small and Disadvantaged Business Utilization, or for the Department 
of Defense, Office of Small Business Programs, requesting the 
contracting office offer the acquisition to the 8(a) program. In these 
instances, in addition to the information in paragraph (a) of this 
section, the SBA will provide--
    (1) A clear identification of the acquisition sought; e.g., project 
name or number;
    (2) A statement as to how the required equipment and real property 
will be provided in order to ensure that the participant will be fully 
capable of satisfying the agency's requirements;
    (3) If construction, information as to the bonding capability of 
the participant(s); and
    (4) Either--
    (i) If a sole source request--
    (A) The reasons why the participant is considered suitable for this 
particular acquisition; e.g., previous contracts for the same or 
similar supply or service; and
    (B) A statement that the participant is eligible in terms of its 
small business size status relative to the assigned NAICS code, 
business support levels, and business activity targets; or
    (ii) If competitive, a statement that at least two 8(a) 
participants are considered capable of satisfying the agency's 
requirements and a statement that the participants are also eligible in 
terms of their small business size status relative to the assigned 
NAICS code, business support levels, and business activity targets. If 
requested by the contracting office, SBA will identify at least two 
such participants and provide information concerning the participants' 
capabilities.
    (c) Agencies may also review other proposed acquisitions for the 
purpose of identifying requirements which may be offered to the SBA. 
Where agencies independently, or through the self marketing efforts of 
an 8(a) participant, identify a requirement for the 8(a) program, they 
may offer on behalf of a specific 8(a) participant, for the 8(a) 
program in general, or for 8(a) competition.

0
9. Revise section 19.804-1 to read as follows:


19.804-1   Agency evaluation.

    In determining the extent to which a requirement should be offered 
in support of the 8(a) program, the agency should evaluate--
    (a) Current and future plans to acquire the specific items or work 
that 8(a) participants are seeking to provide, identified in terms of--
    (1) Estimated quantities of the supplies or services required or 
the estimated number of construction projects planned; and
    (2) Performance or delivery requirements, including--
    (i) Required monthly production rates, when applicable; and
    (ii) For construction, the geographical location where work is to 
be performed;
    (b) The impact of any delay in delivery;
    (c) Whether the items or work have previously been acquired using 
small business set-asides, and the date the items or work were 
acquired;
    (d) Problems encountered in previous acquisitions of the items or 
work from the 8(a) participants or other contractors; and
    (e) Any other pertinent information about known 8(a) participants, 
the items, or the work. This includes any information concerning the 
participants' products or capabilities. When necessary, the contracting 
agency shall make an independent review of the factors in 19.803(a) and 
other aspects of the participants' capabilities which would ensure the 
satisfactory performance of the requirement being considered for 
commitment to the 8(a) program.

0
10. Amend section 19.804-2 by--
0
a. Revising paragraphs (a) introductory text and (a)(10);
0
b. Redesignating paragraphs (a)(12) through (15) as paragraphs (a)(13) 
through (16), respectively;
0
c. Adding a new paragraph (a)(12);
0
d. Removing from the newly redesignated paragraph (a)(13)

[[Page 4728]]

``Program'' and adding ``program'' in its place;
0
e. Removing from paragraph (b)(3) ``firm'' and adding ``8(a) 
participant'' in its place (twice).
    The revisions and addition read as follows:


19.804-2   Agency offering.

    (a) After completing its evaluation, the contracting office shall 
notify the SBA of the extent of its plans to place 8(a) contracts with 
the SBA for specific quantities of items or work. The notification, 
referred to as an offering letter, shall identify the time frames 
within which resulting 8(a) awards must be completed in order for the 
agency to meet its responsibilities. The offering letter shall also 
contain the following information applicable to each prospective 
contract:
* * * * *
    (10) Identification of any particular 8(a) participant designated 
for consideration, including a brief justification, such as--
    (i) The 8(a) participant, through its own efforts, marketed the 
requirement and caused it to be reserved for the 8(a) program; or
    (ii) The acquisition is a follow-on or renewal contract and the 
nominated 8(a) participant is the incumbent.
* * * * *
    (12) Identification of all 8(a) participants which have expressed 
an interest in being considered for the acquisition.
* * * * *

0
11. Revise section 19.804-3 to read as follows:


19.804-3   SBA acceptance.

    (a) Upon receipt of the contracting office's offering letter, SBA 
will determine whether to accept the requirement for the 8(a) program. 
SBA's decision whether to accept the requirement will be transmitted to 
the contracting office in writing within 10 working days of receipt of 
the offer if the contract is likely to exceed the simplified 
acquisition threshold and within two working days of receipt if the 
contract is at or below the simplified acquisition threshold. The 
contracting office may grant an extension of these time periods, if 
requested by SBA.
    (1) For acquisitions exceeding the simplified acquisition 
threshold, if SBA does not respond to an offering letter within ten 
working days, the contracting office may seek SBA's acceptance through 
the Associate Administrator for Business Development. The contracting 
office may assume that SBA has accepted the requirement into the 8(a) 
program if it does not receive a reply from the Associate Administrator 
for Business Development within five calendar days of receipt of the 
contracting office's request.
    (2) For acquisitions not exceeding the simplified acquisition 
threshold, when the contracting office makes an offer to the 8(a) 
program on behalf of a specific 8(a) participant and does not receive a 
reply to its offering letter within two working days, the contracting 
office may assume the offer is accepted and proceed with award of an 
8(a) contract.
    (b) As part of the acceptance process, SBA will review the 
appropriateness of the NAICS code designation assigned to the 
requirement by the contracting officer.
    (1) SBA will not challenge the NAICS code assigned to the 
requirement by the contracting officer if it is reasonable, even though 
other NAICS codes may also be reasonable.
    (2) If SBA and the contracting officer are unable to agree on a 
NAICS code designation for the requirement, SBA may refuse to accept 
the requirement for the 8(a) program, appeal the contracting officer's 
determination to the head of the agency pursuant to 19.810, or appeal 
the NAICS code designation to the SBA Office of Hearings and Appeals 
under subpart C of 13 CFR part 134.
    (c) Sole source 8(a) awards. If an appropriate match exists, SBA 
will advise the contracting officer whether it will participate in 
contract negotiations or whether SBA will authorize the contracting 
officer to negotiate directly with the identified 8(a) participant. 
Where SBA has delegated its contract execution functions to a 
contracting agency, SBA will also identify that delegation in its 
acceptance letter.
    (1) Sole source award where the contracting officer nominates a 
specific 8(a) participant. SBA will determine whether an appropriate 
match exists where the contracting officer identifies a particular 
participant for a sole source award.
    (i) Once SBA determines that a procurement is suitable to be 
accepted as an 8(a) sole source contract, SBA will normally accept it 
on behalf of the 8(a) participant recommended by the contracting 
officer, provided that the 8(a) participant complies with the 
requirements of 13 CFR 124.503(c)(1).
    (ii) If an appropriate match does not exist, SBA will notify the 
8(a) participant and the contracting officer, and may then nominate an 
alternate 8(a) participant.
    (2) Sole source award where the contracting officer does not 
nominate a specific 8(a) participant. When a contracting officer does 
not nominate an 8(a) participant for performance of a sole source 8(a) 
contract, SBA will select an 8(a) participant for possible award from 
among two or more eligible and qualified 8(a) participants. The 
selection will be based upon relevant factors, including business 
development needs, compliance with competitive business mix 
requirements (if applicable), financial condition, management ability, 
technical capability, and whether award will promote the equitable 
distribution of 8(a) contracts. (For construction requirements see 13 
CFR 124.503(d)(1)).

0
12. Amend section 19.804-4--
0
a. Removing from the introductory text ``Program'' and adding 
``program'' in its place;
0
b. Revising paragraph (b); and
0
c. Removing from paragraph (d) ``Program'' and adding ``program'' in 
its place.
    The revision reads as follows:


19.804-4  Repetitive acquisitions.

* * * * *
    (b) A nominated 8(a) participant's eligibility, and whether or not 
it is the same 8(a) participant that performed the previous contract;
* * * * *

0
13. Amend section 19.804-5 by revising paragraphs (a) and (c) to read 
as follows:


19.804-5  Basic ordering agreements.

    (a) The contracting office shall submit an offering letter for, and 
SBA must accept, each order under a basic ordering agreement (BOA) in 
addition to the agency offering and SBA accepting the BOA itself.
* * * * *
    (c) Once an 8(a) participant's program term expires, the 
participant otherwise exits the 8(a) program, or becomes other than 
small for the NAICS code assigned under the BOA, SBA will not accept 
new orders for the participant.

0
14. Revise section 19.804-6 to read as follows:


19.804-6  Indefinite-delivery contracts.

    (a) Separate offers and acceptances are not required for individual 
orders under multiple-award contracts (including the Federal Supply 
Schedules managed by GSA, multi-agency contracts or Governmentwide 
acquisition contracts, or indefinite-delivery, indefinite-quantity 
(IDIQ) contracts) that have been set aside for exclusive competition 
among 8(a) contractors. SBA's acceptance of the original contract is 
valid for the term of the contract. Offers and acceptances are required 
for individual orders under multiple-award

[[Page 4729]]

contracts that have not been set aside for exclusive competition among 
8(a) contractors.
    (b) An 8(a) contractor may continue to accept new orders under the 
contract, even if it exits the 8(a) program, or becomes other than 
small for the NAICS code assigned to the contract.
    (c) Agencies may continue to take credit toward their prime 
contracting small disadvantaged business or small business goals for 
orders awarded to 8(a) participants, even after the contractor's 8(a) 
program term expires, the contractor otherwise exits the 8(a) program, 
or the contractor becomes other than small for the NAICS code assigned 
under the 8(a) contract. However, if an 8(a) contractor rerepresents 
that it is other than small for the NAICS code assigned under the 
contract in accordance with 19.301-2 or, where ownership or control of 
the 8(a) contractor has changed and SBA has granted a waiver to allow 
the contractor to continue performance (see 13 CFR 124.515), the agency 
may not credit any subsequent orders awarded to the contractor towards 
its small disadvantaged business or small business goals.

0
15. Amend section 19.805-1 by--
0
a. Revising paragraph (a) introductory text;
0
b. Removing from paragraph (a)(1) ``firms'' and adding ``participants'' 
in its place;
0
c. Revising paragraph (b) introductory text;
0
d. Removing from paragraph (b)(1) ``firms'' and adding ``participants'' 
in its place; and
0
e. Revising paragraph (d).
    The revisions read as follows:


19.805-1  General.

    (a) Except as provided in paragraph (b) of this section, an 
acquisition offered to the SBA under the 8(a) program shall be awarded 
on the basis of competition limited to eligible 8(a) participants 
when--
* * * * *
    (b) Where an acquisition exceeds the competitive threshold (see 
paragraph (a)(2) of this section), the SBA may accept the requirement 
for a sole source 8(a) award if--
* * * * *
    (d) The SBA Associate Administrator for Business Development may 
approve a contracting office's request for a competitive 8(a) award 
below the competitive thresholds. Such requests will be approved only 
on a limited basis and will be primarily granted where technical 
competitions are appropriate or where a large number of responsible 
8(a) participants are available for competition. In determining whether 
a request to compete below the threshold will be approved, the SBA 
Associate Administrator for Business Development will, in part, 
consider the extent to which the contracting activity is supporting the 
8(a) program on a noncompetitive basis. The agency may include 
recommendations for competition below the threshold in the offering 
letter or by separate correspondence to the SBA Associate Administrator 
for Business Development.

0
16. Revise section 19.805-2 to read as follows:


19.805-2  Procedures.

    (a) Offers shall be solicited from those sources identified in 
accordance with 19.804-3.
    (b) The SBA will determine the eligibility of the participants for 
award of the contract. Eligibility will be determined by the SBA as of 
the time of submission of initial offers which include price. 
Eligibility is based on Section 8(a) program criteria. An 8(a) 
participant must represent that it is a small business in accordance 
with the size standard corresponding to the NAICS code assigned to the 
contract.
    (1) In either negotiated or sealed bid competitive 8(a) 
acquisitions SBA will determine the eligibility of the apparent 
successful offeror and advise the contracting office within 5 working 
days after receipt of the contracting office's request for an 
eligibility determination.
    (i) If SBA determines that the apparent successful offeror is 
ineligible, the contracting office will then send to SBA the identity 
of the next highest evaluated offeror for an eligibility determination. 
The process is repeated until SBA determines that an identified offeror 
is eligible for award.
    (ii) If the contracting officer believes that the apparent 
successful offeror (or the offeror SBA has determined eligible for 
award) is not responsible to perform the contract, the contracting 
officer must refer the matter to SBA for Certificate of Competency 
consideration under subpart 19.6.
    (2) In any case in which an 8(a) participant is determined to be 
ineligible, SBA will notify the 8(a) participant of that determination.
    (c) Any party with information questioning the eligibility of an 
8(a) participant to continue participation in the 8(a) program or for 
the purposes of a specific 8(a) award may submit such information to 
the SBA in accordance with 13 CFR 124.112(c).

0
17. Amend section 19.808-1 by removing from paragraph (c) ``activity'' 
and ``contractor'' and adding ``officer'' and ``participant'' in their 
places, respectively, and adding paragraphs (d) and (e) to read as 
follows:


19.808-1  Sole source.

* * * * *
    (d) An 8(a) participant must represent that it is a small business 
in accordance with the size standard corresponding to the NAICS code 
assigned to the contract.
    (e) An 8(a) participant owned by an Alaska Native Corporation, 
Indian Tribe, Native Hawaiian Organization, or Community Development 
Corporation may not receive an 8(a) sole source award that is a follow-
on contract to an 8(a) contract, if the predecessor contract was 
performed by another 8(a) participant (or former 8(a) participant) 
owned by the same Alaska Native Corporation, Indian Tribe, Native 
Hawaiian Organization, or Community Development Corporation (See 13 CFR 
124.109 through 124.111).

0
18. Revise section 19.808-2 to read as follows.


19.808-2  Competitive.

    In competitive 8(a) acquisitions subject to part 15, the 
contracting officer conducts negotiations directly with the competing 
8(a) participants. Conducting competitive negotiations among 8(a) 
participants prior to SBA's formal acceptance of the acquisition for 
the 8(a) program may be grounds for SBA's not accepting the acquisition 
for the 8(a) program.

0
19. Revise section 19.809 to read as follows.


19.809  Preaward considerations.

    The contracting officer should request a preaward survey of the 
8(a) participant whenever considered useful. If the results of the 
preaward survey or other information available to the contracting 
officer raise substantial doubt as to the participant's ability to 
perform, the contracting officer must refer the matter to SBA for 
Certificate of Competency consideration under subpart 19.6.

0
20. Amend section 19.810 by--
0
a. Removing from paragraph (a)(2) ``firm'' and ``Program'' and adding 
``participant'' and ``program'' in their places, respectively;
0
b. Removing from paragraph (a)(3) ``activity's'' and adding 
``officer's'' in its place;
0
c. Revising paragraph (b); and
0
d. Removing from paragraph (c) ``firm'' and adding ``participant'' in 
its place.
    The revision reads as follows:

[[Page 4730]]

19.810  SBA appeals.

* * * * *
    (b)(1) Notification by SBA of an intent to appeal to the agency 
head--
    (i) Must be received by the contracting officer within 5 working 
days after SBA is formally notified of the contracting officer's 
decision; and
    (ii) Must be provided to the contracting agency Director for Small 
and Disadvantaged Business Utilization or, for the Department of 
Defense, the Director of Small Business Programs.
    (2) SBA must send the written appeal to the agency head within 15 
working days of SBA's notification of intent to appeal or the appeal 
may be considered withdrawn. Pending issuance of a decision by the 
agency head, the contracting officer shall suspend action on the 
acquisition. The contracting officer need not suspend action on the 
acquisition if the contracting officer makes a written determination 
that urgent and compelling circumstances that significantly affect the 
interests of the United States will not permit waiting for a decision.
* * * * *

0
21. Amend section 19.811-1 by revising paragraph (b) introductory text 
to read as follows:


19.811-1  Sole source.

* * * * *
    (b) The contracting officer shall prepare the contract that the SBA 
will award to the 8(a) participant in accordance with agency 
procedures, as if awarding the contract directly to the 8(a) 
participant, except for the following:
* * * * *


19.811-3  [Amended]

0
22. Amend section 19.811-3 by--
0
a. Removing from paragraph (d) introductory text ``Concerns'' and 
adding ``Participants'' in its place; and
0
b. Removing from paragraphs (d)(1) and (e) ``concerns'' and adding 
``participants'' in its place, respectively.

0
23. Amend section 19.812 by removing from paragraph (b) ``firm'' and 
adding ``8(a) contractor'' in its place and revising paragraph (d) to 
read as follows:


19.812  Contract administration.

* * * * *
    (d) An 8(a) contract, whether in the base or an option year, must 
be terminated for convenience if the 8(a) contractor to which it was 
awarded transfers ownership or control of the firm or if the contract 
is transferred or novated for any reason to another firm, unless the 
Administrator of the SBA waives the requirement for contract 
termination (13 CFR 124.515). The Administrator may waive the 
termination requirement only if certain conditions exist. Moreover, a 
waiver of the requirement for termination is permitted only if the 8(a) 
contractor's request for waiver is made to the SBA prior to the actual 
relinquishment of ownership or control, except in the case of death or 
incapacity where the waiver must be submitted within 60 calendar days 
after such an occurrence. The clauses in the contract entitled 
``Special 8(a) Contract Conditions'' and ``Special 8(a) Subcontract 
Conditions'' require the SBA and the 8(a) subcontractor to notify the 
contracting officer when ownership of the firm is being transferred. 
When the contracting officer receives information that an 8(a) 
contractor is planning to transfer ownership or control to another 
firm, the contracting officer shall take action immediately to preserve 
the option of waiving the termination requirement. The contracting 
officer shall determine the timing of the proposed transfer and its 
effect on contract performance and mission support. If the contracting 
officer determines that the SBA does not intend to waive the 
termination requirement, and termination of the contract would severely 
impair attainment of the agency's program objectives or mission, the 
contracting officer shall immediately notify the SBA in writing that 
the agency is requesting a waiver. Within 15 business days thereafter, 
or such longer period as agreed to by the agency and the SBA, the 
agency head must either confirm or withdraw the request for waiver. 
Unless a waiver is approved by the SBA, the contracting officer must 
terminate the contract for convenience upon receipt of a written 
request by the SBA. This requirement for a convenience termination does 
not affect the Government's right to terminate for default if the cause 
for termination of an 8(a) contract is other than the transfer of 
ownership or control.

0
24. Add sections 19.813 through 19.816 to read as follows:

Sec.
19.813 Protesting an 8(a) participant's eligibility or size status.
19.814 Requesting a formal size determination (8(a) sole source 
requirements).
19.815 Release for non-8(a) procurement.
19.816 Exiting the 8(a) program.
19.813 Protesting an 8(a) participant's eligibility or size status.

    (a) The eligibility of an 8(a) participant for a sole source or 
competitive 8(a) requirement may not be challenged by another 8(a) 
participant or any other party, either to SBA or any administrative 
forum as part of a bid or other contract protest (see 13 CFR 124.517).
    (b) The size status of an 8(a) participant nominated for an 8(a) 
sole source contract may not be protested by another 8(a) participant 
or any other party.
    (c) The size status of the apparent successful offeror for 
competitive 8(a) awards may be protested. The filing of a size status 
protest is limited to--
    (1) Any offeror whom the contracting officer has not eliminated for 
reasons unrelated to size;
    (2) The contracting officer; or
    (3) The SBA District Director in either the district office serving 
the geographical area in which the contracting activity is located or 
the district office that services the apparent successful offeror, or 
the Associate Administrator for Business Development.
    (d) Protests of competitive 8(a) awards shall follow the procedures 
at 19.302. For additional information, refer to 13 CFR 121.1001.


19.814  Requesting a formal size determination (8(a) sole source 
requirements).

    (a) If the size status of an 8(a) participant nominated for award 
of an 8(a) sole source contract is called into question, a request for 
a formal size determination may be submitted to SBA pursuant to 13 CFR 
121.1001(b)(2)(ii) by--
    (1) The 8(a) participant nominated for award of the particular sole 
source contract;
    (2) The contracting officer who has been delegated SBA's 8(a) 
contract execution functions, where applicable, or the SBA program 
official with authority to execute the 8(a) contract;
    (3) The SBA District Director in the district office that services 
the 8(a) participant or the Associate Administrator for Business 
Development; or
    (4) The SBA Inspector General.
    (b) SBA's Government Contracting Area Director will issue a formal 
size determination within 15 business days, if possible, after SBA 
receives the request for a formal size determination.
    (c) An appeal of an SBA size determination shall follow the 
procedures at 19.302.


19.815  Release for non-8(a) procurement.

    (a) Once a requirement has been accepted by SBA into the 8(a) 
program, any follow-on requirements shall remain in the 8(a) program 
unless there is a mandatory source (see 8.002 or

[[Page 4731]]

8.003) or SBA agrees to release the requirement from the 8(a) program 
in accordance with 13 CFR 124.504(d).
    (b) To obtain release of a requirement for a non-8(a) procurement 
(other than a mandatory source listed at 8.002 or 8.003), the 
contracting officer shall make a written request to, and receive 
concurrence from, the SBA Associate Administrator for Business 
Development.
    (c)(1) The written request to the SBA Associate Administrator for 
Business Development shall indicate--
    (i) Whether the agency has achieved its small disadvantaged 
business goal;
    (ii) Whether the agency has achieved its HUBZone, SDVOSB, WOSB, or 
small business goal(s); and
    (iii) Whether the requirement is critical to the business 
development of the 8(a) contractor that is currently performing the 
requirement.
    (2) Generally, a requirement that was previously accepted into the 
8(a) program will only be released for procurements outside the 8(a) 
program when the contracting activity agency agrees to set aside the 
requirement under the small business, HUBZone, SDVOSB, or WOSB 
programs.
    (3) The requirement that a follow-on procurement must be released 
from the 8(a) program in order for it to be fulfilled outside the 8(a) 
program does not apply to task or delivery orders offered to and 
accepted into the 8(a) program, where the basic contract was not 
accepted into the 8(a) program.


19.816  Exiting the 8(a) program.

    (a) Except as provided in paragraph (c) of this section, when a 
contractor exits the 8(a) program, it is no longer eligible to receive 
new 8(a) contracts. However, the contractor remains under contractual 
obligation to complete existing contracts, and any priced options that 
may be exercised.
    (b) If an 8(a) contractor is suspended from the program (see 13 CFR 
124.305), it may not receive any new 8(a) contracts unless the head of 
the contracting agency makes a determination that it is in the best 
interest of the Government to issue the award and SBA adopts that 
determination.
    (c) A contractor that has completed its term of participation in 
the 8(a) program may be awarded a competitive 8(a) contract if it was 
an 8(a) participant eligible for award of the contract on the initial 
date specified for receipt of offers contained in the solicitation, and 
if the contractor continues to meet all other applicable eligibility 
criteria.
    (d) SBA's regulations on exiting the 8(a) program are found at 13 
CFR 124.301 through 124.305, and 13 CFR 124.507(d).


19.1304  [Amended]

0
25. Amend section 19.1304 by removing from paragraph (d) ``Program'' 
and adding ``program'' in its place (twice).


19.1404  [Amended]

0
26. Amend section 19.1404 by removing from paragraph (d) ``Program'' 
and adding ``program'' in its place (twice).

0
27. Amend section 19.1504 by revising paragraph (a) to read as follows:


19.1504  Exclusions.

* * * * *
    (a) Requirements that an 8(a) contractor is currently performing 
under the 8(a) program or that SBA has accepted for performance under 
the authority of the 8(a) program, unless SBA has consented to release 
the requirements from the 8(a) program;
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
28. Amend section 52.212-5 by revising the date of the clause and 
paragraph (b)(19) 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 (JAN 2017)

* * * * *
    (b) * * *

(19) 52.219-14, Limitations on Subcontracting (JAN 2017) (15 U.S.C. 
637(a)(14)).

* * * * *

0
29. Amend section 52.219-11 by revising the date of the clause and 
removing from paragraph (c) ``and advance payments'' to read as 
follows:


52.219-11  Special 8(a) Contract Conditions.

* * * * *

Special 8(a) Contract Conditions (JAN 2017)

* * * * *

0
30. Amend section 52.219-12 by revising the date of the clause and 
paragraph (b)(2) to read as follows:


52.219-12  Special 8(a) Subcontract Conditions.

* * * * *

Special 8(a) Subcontract Conditions (JAN 2017)

* * * * *
    (b) * * *
    (2) That the SBA has delegated responsibility, except for 
novation agreements, for the administration of this subcontract to 
the _____ [insert name of contracting agency] with complete 
authority to take any action on behalf of the Government und_d 
conditions of this subcontract.
* * * * *

0
31. Amend section 52.219-14 by revising the date of the clause and 
removing from paragraphs (b)(1), (2), and (3) ``8(a) concerns'' and 
adding ``8(a) participants'' in its place to read as follows:


52.219-14  Limitations on Subcontracting.

* * * * *

Limitations on Subcontracting (JAN 2017)

* * * * *

0
32. Amend section 52.219-17 by revising the date of the clause and 
removing from paragraph (a)(2) ``and advance payments'' to read as 
follows:


52.219-17  Section 8(a) Award.

* * * * *

Section 8(a) Award (JAN 2017)

* * * * *

0
33. Amend section 52.219-18 by--
0
a. Revising the section and clause headings; and
0
b. In Alternate I, revising the date of the alternate and removing 
``concerns'' and adding ``participants'' in its place.
    The revisions read as follows:


52.219-18  Notification of Competition Limited to Eligible 8(a) 
Participants.

* * * * *

Notification of Competition Limited to Eligible 8(a) Participants (JAN 
2017)

* * * * *

Alternate I (JAN 2017) * * *

* * * * *
[FR Doc. 2016-31498 Filed 1-12-17; 8:45 am]
BILLING CODE 6820-EP-P
4724 Federal Register / Vol. 82, No. 9 / Friday, January 13, 2017 / Rules and Regulations

(viii) 52.244–6, Subcontracts for Analyst, at 703–605–2868, or by email 2. Potential Conflict With Other
Commercial Items (JAN 2017). at mahruba.uddowla@gsa.gov, for Statutorily Mandated Socioeconomic
* * * * * clarification of content. For information Programs
■ 11. Amend section 52.244–6 by—
pertaining to status or publication
schedules, contact the Regulatory Comment: Two respondents
■ a. Revising the date of the clause; expressed concern that the proposed
■ b. Redesignating paragraphs (c)(1)(iii)
Secretariat Division at 202–501–4755.
Please cite FAC 2005–95, FAR Case language at FAR 19.815 appeared to be
through (xix) as paragraphs (c)(1)(iv) in conflict with other socioeconomic
through (c)(1)(xx); 2012–022.
SUPPLEMENTARY INFORMATION:
programs, such as the Javits-Wagner-
■ c. In the note to newly redesignated O’Day (JWOD) Act (now codified at 41
paragraph (c)(1)(xiv), remove I. Background U.S.C. chapter 85). The proposed rule at
‘‘paragraph (c)(1)(xiii)’’ and add FAR section 19.815, Release for non-8(a)
DoD, GSA, and NASA published a
‘‘paragraph (c)(1)(xiv)’’ in its place; and procurement, implies that the SBA
proposed rule in the Federal Register at
■ d. Adding a new paragraph (c)(1)(iii).
79 FR 6135 on February 3, 2014, Associate Administrator for Business
The revision and addition reads as Development will only consider
soliciting public comments regarding
follows: releasing requirements from the 8(a)
the implementation of regulatory
52.244–6 Subcontracts for Commercial clarifications made by the Small program when there are assurances that
Items. Business Administration (SBA) under the requirement will be procured under
* * * * * section 8(a) of the Small Business Act another small business program.
(15 U.S.C. 637(a)). The proposed rule However, the proposed rule does not
Subcontracts for Commercial Items provided additional guidance for the mention that another reason a
(JAN 2017) evaluation, offering, and acceptance requirement must be released is when it
* * * * * process; procedures for releasing a can be procured under a statutory
(c) * * * requirement for non-8(a) procurement; authority other than the Small Business
(1) * * * and information on the effect exiting the Act. For example, if the requirement has
(iii) 52.203–19, Prohibition on 8(a) program will have on its current been placed on the Procurement List by
Requiring Certain Internal contractual obligations and the firm’s the Committee for Purchase from People
Confidentiality Agreements or ability to receive new 8(a) requirements. Who are Blind or Severely Disabled
Statements (JAN 2017). Six respondents submitted comments (AbilityOne), it must, by law, be
* * * * * on the proposed rule. procured under JWOD, using the
[FR Doc. 2016–31497 Filed 1–12–17; 8:45 am] procedures at FAR subpart 8.7. These
II. Discussion and Analysis
BILLING CODE 6820–EP–P
respondents asked for further
The Civilian Agency Acquisition clarification of this point in the FAR.
Council and the Defense Acquisition
Response: The purpose of FAR 19.815
DEPARTMENT OF DEFENSE Regulations Council (the Councils)
is to clarify that the contracting officer
reviewed the comments in the
must submit a formal request to the SBA
GENERAL SERVICES development of the final rule. A
Associate Administrator for the release
ADMINISTRATION discussion of the comments is provided.
of a requirement that is currently
A. Summary of Significant Changes accepted into the 8(a) program, if he or
NATIONAL AERONAUTICS AND she intends to procure the item from a
SPACE ADMINISTRATION The final rule contains revisions to
the language at FAR 19.804–6(a) to non-8(a) source. It further clarifies the
clarify that offers and acceptances are factors SBA will take into consideration
48 CFR Parts 5, 6, 18, 19 and 52 when determining whether to release
required for individual orders under
[FAC 2005–95; FAR Case 2012–022; Item multiple-award contracts that were not the requirement from the 8(a) program.
IV; Docket No. 2012–0022, Sequence No. set aside for competition among 8(a) This clarification does not conflict or
1] contractors. The final rule also revises eliminate an agency’s obligation to
RIN 9000–AM68 the language at FAR 19.814(a) to follow the procedures at FAR 8.002,
indicate that the SBA Inspector General Priorities for use of mandatory
Federal Acquisition Regulation; can request a formal size determination. Government sources, and FAR 8.003,
Contracts Under the Small Business In addition, the final rule revises the Use of other mandatory sources. As
Administration 8(a) Program language at FAR 19.815 regarding the stated in these sections of the FAR, an
release of requirements from the 8(a) agency may consider satisfying its
AGENCY: Department of Defense (DoD), program. Language has been added to requirement(s) through a commercial
General Services Administration (GSA), clarify that any follow-on 8(a) source, such as a small business, only
and National Aeronautics and Space requirement shall remain in the 8(a) after it has exhausted the possibility of
Administration (NASA). program unless there is a mandatory fulfilling its requirement through one of
ACTION: Final rule. source for the requirement pursuant to the mandatory sources identified in
FAR 8.002 or 8.003 or SBA agrees to FAR 8.002 or 8.003. However, new
SUMMARY: DoD, GSA, and NASA are release the requirement for procurement
issuing a final rule amending the language has been added at FAR
outside the 8(a) program. 19.815(a) and (b), to clarify that a
Federal Acquisition Regulation (FAR) to
asabaliauskas on DSK3SPTVN1PROD with RULES

implement regulatory clarifications B. Analysis of Public Comments requirement accepted into the 8(a)
made by the Small Business program shall remain in the 8(a)
1. Support Proposed Changes program unless the requirement can be
Administration regarding the 8(a)
program. Comment: One respondent stated satisfied through one of the mandatory
support for the changes made in the sources listed at FAR 8.002 or 8.003 or
DATES: Effective: January 13, 2017. proposed rule. the SBA Associate Administrator for
FOR FURTHER INFORMATION CONTACT: Ms. Response: The Councils acknowledge Business Development agrees to release
Mahruba Uddowla, Procurement receipt of this comment. it.

VerDate Sep<11>2014 20:34 Jan 12, 2017 Jkt 241001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR4.SGM 13JAR4
Federal Register / Vol. 82, No. 9 / Friday, January 13, 2017 / Rules and Regulations 4725

3. The Rule Gives Preference to sole source requirements, the agency all the terms at FAR 19.800(a). This
8(a)Program Participants Over Other provides input into the selection respondent suggested that the new
Small Businesses or Other Small through its offering letter, including Definitions section should define the
Business Socioeconomic Programs such criteria as the special capabilities terms ‘‘offering letter’’ and ‘‘competitive
Comment: One respondent remarked or disciplines needed for contract threshold.’’
performance. Concurrence with SBA’s Response: The intent of the rule is to
that FAR 19.800(d) appears to give
selection is evidenced by the provide needed clarification of certain
preferential treatment to 8(a) awards
contracting officer’s signature on the aspects of the 8(a) program relating to
over other small business or other
tripartite agreement or, where SBA has Federal procurement. In its present
socioeconomic goals. FAR 19.800(d) of
delegated 8(a) contract execution format, the definitions of certain terms
the proposed rule states the following:
functions to an agency, the contracting such as ‘‘offering letter’’ and
‘‘the contracting officer shall consider ‘‘competitive threshold’’ occur in the
officer’s signature on the contract award
8(a) set-asides or sole source awards FAR section where the phrase is
document.
before considering small business set- Comment: One respondent requested introduced and the primary discussion
asides . . . .’’ This respondent stated additional guidance to clarify when the of these subjects takes place. For
that each agency should have autonomy contracting office may assume SBA’s example, the meaning of the term
in achieving its own socioeconomic acceptance of a requirement valued ‘‘offering letter’’ is explained in FAR
goals. below the SAT that is not offered on 19.804–2, Agency offering, which is the
Response: The language in question behalf of a specific 8(a) participant. For area where the subject matter is
already existed in the FAR as 19.800(e), acquisitions at or below the SAT, FAR introduced and where the primary
but was renumbered as 19.800(d) by the 19.804–3(a)(2) states that the contracting discussion of offering letters is located.
proposed rule. The intent of the office may assume SBA’s acceptance has Similarly, the discussion of
language at FAR 19.800(d) of the occurred within two working days when ‘‘competitive threshold’’ occurs in two
proposed rule is to further convey the the offer was made on behalf of a back-to-back sections of FAR subpart
policy established at FAR 19.203(c), i.e., specific 8(a) participant; however, the 19.8, where the term is defined and its
for acquisitions above the simplified FAR is silent regarding when the primary discussion takes place.
acquisition threshold (SAT), the contracting officer may assume SBA’s Comment: One respondent stated that
contracting officer shall first consider acceptance of a requirement that was the language at FAR 19.816(a)
small business socioeconomic not offered on behalf of a specific 8(a) pertaining to an 8(a) contractor’s
contracting programs, such as the participant. eligibility to receive contracts after
HUBZone program, the service-disabled Response: Although the proposed rule exiting the 8(a) program requires further
veteran-owned small business contained minor editorial revisions in explanation, since it appears to conflict
(SDVOSB) program, the women-owned this paragraph, the basic guidance was with FAR 19.804–6 as well as section
small business program (WOSB), and not changed because it is consistent 19.816(c). This respondent suggested
the 8(a) program, before considering a with SBA’s regulations. In order for SBA that the verbiage ‘‘except as provided in
small business set-aside, thus allowing to make the decision to accept an offer FAR 19.804–6 and paragraph 19.816(c)
agencies to independently tailor of a requirement into the 8(a) program, . . .’’ be added to ensure these
acquisition strategies based on their it must have reasonable assurance that exceptions are made clear.
small business and small business an eligible 8(a) participant is available. Response: FAR 19.816(a) has been
socioeconomic goaling achievements. In the case of a sole source revised to add ‘‘[e]xcept as provided in
Similar language appears in FAR requirement at or below the SAT, when 19.816(c) . . . .’’ However, FAR
subparts 19.13, 19.14, and 19.15, though the contracting officer has identified a 19.804–6 addresses different subject
it is adapted to suit the specific specific 8(a) participant, SBA will matter. FAR 19.804–6 discusses the
socioeconomic program under normally respond within two working conditions by which an 8(a) prime
discussion, i.e., HUBZone, SDVOSB days. This quick turnaround is contractor may continue to accept new
program, or the WOSB program. For attributed to the fact that SBA will orders under its existing multiple-
further information on the usually accept the requirement on award, indefinite-delivery, indefinite-
socioeconomic parity rules within the behalf of the 8(a) program in support of quantity contract. On the other hand,
small business programs, refer to the the specific participant nominated in FAR 19.816 discusses the contractual
final rule for FAR case 2011–004, the offering letter. However, when a obligations upon exiting the 8(a)
Socioeconomic Program Parity, contracting officer submits an open program.
published in the Federal Register at 77 requirement to SBA, i.e., does not Comment: One respondent stated that
FR 12930 on March 2, 2012. identify a specific participant for the the language at FAR 19.816(c)
performance of the sole source pertaining to a contractor’s eligibility to
4. Further Clarification of 8(a) Offer and receive contracts after exiting the
Acceptance Procedures Is Needed requirement, the matching process is
more complicated, and SBA will require program should be further clarified.
Comment: A respondent variable amounts of time to pair the Based on the assumption that an 8(a)
recommended that the language at FAR offered requirement with an 8(a) contractor would necessarily have new
19.804–3(c)(2), which discusses sole participant possessing the competencies North American Industry Classification
source awards where the contracting needed for successful performance. For System (NAICS) code applicability upon
officer has not nominated a specific 8(a) this reason, a definitive time frame for exiting the program, the respondent
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participant, be amended to allow the assuming SBA’s acceptance of an open recommended that additional language
contracting officer to have input in the requirement below the SAT is not be added to stipulate that the contractor
selection process and the opportunity to provided in the FAR. must have been eligible for contract
concur with SBA’s selection. award in the specific NAICS code(s)
Response: The guidance provided in 5. Editorial Recommendations identified in the contract on the initial
the FAR for ‘‘open’’ sole source Comment: One respondent date specified for receipt of offers.
requirements is consistent with SBA’s recommended the inclusion of a Response: The recommended change
regulations at 13 CFR part 124. In open definitions section, rather than defining is unnecessary since 8(a) program

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4726 Federal Register / Vol. 82, No. 9 / Friday, January 13, 2017 / Rules and Regulations

eligibility is already addressed in FAR requirements used by agencies when stage or the developmental and
sections 19.802, 19.803, and 19.805 of contracting under the 8(a) Program. transitional stages; and
the rule. There are no alternative approaches that (4) Encouraging interested 8(a)
will accomplish the stated objectives of the participants to request a copy of the
Comment: Two respondents suggested rule.
a few minor editorial changes. solicitation as expeditiously as possible
Response: All suggested minor Interested parties may obtain a copy since the solicitation will be issued
editorial changes have been of the FRFA from the Regulatory without further notice upon SBA
incorporated. Secretariat Division. The Regulatory acceptance of the requirement for the
Secretariat Division has submitted a section 8(a) program.
III. Executive Orders 12866 and 13563 copy of the FRFA to the Chief Counsel * * * * *
Executive Orders (E.O.s) 12866 and for Advocacy of the Small Business
13563 direct agencies to assess all costs Administration. PART 6—COMPETITION
and benefits of available regulatory REQUIREMENTS
V. Paperwork Reduction Act
alternatives and, if regulation is The rule does not contain any ■ 3. Revise section 6.204 to read as
necessary, to select regulatory information collection requirements that follows:
approaches that maximize net benefits require the approval of the Office of
(including potential economic, 6.204 Section 8(a) competition.
Management and Budget under the
environmental, public health and safety Paperwork Reduction Act (44 U.S.C. (a) To fulfill statutory requirements
effects, distributive impacts, and chapter 35). relating to section 8(a) of the Small
equity). E.O. 13563 emphasizes the Business Act, as amended by Public
importance of quantifying both costs List of Subjects in 48 CFR Parts 5, 6, 18, Law 100–656, contracting officers may
and benefits, of reducing costs, of 19 and 52. limit competition to eligible 8(a)
harmonizing rules, and of promoting Government procurement. participants (see subpart 19.8).
flexibility. This is a significant (b) No separate justification or
Dated: December 21, 2016. determination and findings is required
regulatory action and, therefore, was
William F. Clark, under this part to limit competition to
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and Director, Office of Government-wide eligible 8(a) participants. (But see
Acquisition Policy, Office of Acquisition 6.302–5 and 6.303–1 for sole source 8(a)
Review, dated September 30, 1993. This
Policy, Office of Government-wide Policy. awards over $22 million.)
rule is not a major rule under 5 U.S.C.
804. Therefore, DoD, GSA, and NASA
amend 48 CFR parts 5, 6, 18, 19 and 52 PART 18—EMERGENCY
IV. Regulatory Flexibility Act as set forth below: ACQUISITIONS
DoD, GSA, and NASA have prepared ■ 1. The authority citation for 48 CFR
18.114 [Amended]
a Final Regulatory Flexibility Analysis parts 5, 6, 18, 19 and 52 continues to
read as follows: ■ 4. Amend section 18.114 by removing
(FRFA) consistent with the Regulatory
‘‘firms’’ and adding ‘‘participants’’ in its
Flexibility Act, 5 U.S.C. 601, et seq. The Authority: 40 U.S.C. 121(c); 10 U.S.C. place.
FRFA is summarized as follows: chapter 137; and 51 U.S.C. 20113.
This final rule amends the FAR to PART 19—SMALL BUSINESS
implement regulatory changes that SBA PART 5—PUBLICIZING CONTRACT
PROGRAMS
made to the 8(a) program. The final rule ACTIONS
clarifies procedures and requirements used 19.000 [Amended]
when agencies are contracting under the 8(a) ■ 2. Amend section 5.205 by revising
paragraph (f) to read as follows: ■ 5. Amend section 19.000 by removing
Program. Among other issues, these changes from paragraph (a)(3) ‘‘business
include clarification of the evaluation,
offering, and acceptance process; procedures
5.205 Special situations. development’’.
for acquiring SBA’s consent to procure an * * * * * ■ 6. Revise section 19.800 to read as
8(a) requirement outside the 8(a) program; (f) Section 8(a) competitive follows:
and the impact of exiting the 8(a) program in acquisition. When a national buy
terms of the firm’s ability to receive future requirement is being considered for 19.800 General.
8(a) requirements and its current contractual competitive acquisition limited to (a) Section 8(a) of the Small Business
commitments. These revisions do not place eligible 8(a) participants under subpart Act (15 U.S.C. 637(a)) established a
any new requirements, financial or 19.8, the contracting officer must program that authorizes the Small
otherwise, on small entities, and serve Business Administration (SBA) to enter
transmit a synopsis of the proposed
mainly to provide more explicit guidance to into all types of contracts with other
Federal contracting officials. contract action to the GPE. The synopsis
may be transmitted to the GPE agencies and award subcontracts for
There were no significant issues raised by
the public in response to the Initial concurrent with submission of the performing those contracts to firms
Regulatory Flexibility Analysis provided in agency offering (see 19.804–2) to the eligible for program participation. This
the proposed rule. Small Business Administration (SBA). program is the ‘‘8(a) Business
Currently, the 8(a) Program has The synopsis should also include Development Program,’’ commonly
approximately 6,885 active Participants, and information— referred to as the ‘‘8(a) program.’’ A
of these, approximately 1,289 are owned by (1) Advising that the acquisition is small business that is accepted into the
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Native Americans. These entities may be being offered for competition limited to 8(a) program is known as a
economically impacted by the changes ‘‘participant.’’ SBA’s subcontractors are
addressed in this final rule.
eligible 8(a) participants;
(2) Specifying the North American referred to as ‘‘8(a) contractors.’’ As
This rule does not impose any new
information collection requirements on small Industry Classification System (NAICS) used in this subpart, an 8(a) contractor
businesses. The rule will have no direct code; is an 8(a) participant that is currently
negative impact on any small business (3) Advising that eligibility to performing on a Federal contract or
concern, since it merely provides participate may be restricted to 8(a) order that was set aside for 8(a)
clarification of existing procedures and participants in either the developmental participants.

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Federal Register / Vol. 82, No. 9 / Friday, January 13, 2017 / Rules and Regulations 4729

contracts that have not been set aside for 8(a) participants are available for and ‘‘contractor’’ and adding ‘‘officer’’
exclusive competition among 8(a) competition. In determining whether a and ‘‘participant’’ in their places,
contractors. request to compete below the threshold respectively, and adding paragraphs (d)
(b) An 8(a) contractor may continue to will be approved, the SBA Associate and (e) to read as follows:
accept new orders under the contract, Administrator for Business
even if it exits the 8(a) program, or Development will, in part, consider the 19.808–1 Sole source.
becomes other than small for the NAICS extent to which the contracting activity * * * * *
code assigned to the contract. is supporting the 8(a) program on a (d) An 8(a) participant must represent
(c) Agencies may continue to take noncompetitive basis. The agency may that it is a small business in accordance
credit toward their prime contracting include recommendations for with the size standard corresponding to
small disadvantaged business or small competition below the threshold in the the NAICS code assigned to the
business goals for orders awarded to 8(a) offering letter or by separate contract.
participants, even after the contractor’s correspondence to the SBA Associate (e) An 8(a) participant owned by an
8(a) program term expires, the Administrator for Business Alaska Native Corporation, Indian
contractor otherwise exits the 8(a) Development. Tribe, Native Hawaiian Organization, or
program, or the contractor becomes ■ 16. Revise section 19.805–2 to read as Community Development Corporation
other than small for the NAICS code follows: may not receive an 8(a) sole source
assigned under the 8(a) contract. award that is a follow-on contract to an
19.805–2 Procedures.
However, if an 8(a) contractor 8(a) contract, if the predecessor contract
rerepresents that it is other than small (a) Offers shall be solicited from those was performed by another 8(a)
for the NAICS code assigned under the sources identified in accordance with participant (or former 8(a) participant)
contract in accordance with 19.301–2 19.804–3. owned by the same Alaska Native
or, where ownership or control of the (b) The SBA will determine the Corporation, Indian Tribe, Native
8(a) contractor has changed and SBA eligibility of the participants for award Hawaiian Organization, or Community
has granted a waiver to allow the of the contract. Eligibility will be Development Corporation (See 13 CFR
contractor to continue performance (see determined by the SBA as of the time of
124.109 through 124.111).
13 CFR 124.515), the agency may not submission of initial offers which
include price. Eligibility is based on ■ 18. Revise section 19.808–2 to read as
credit any subsequent orders awarded to follows.
the contractor towards its small Section 8(a) program criteria. An 8(a)
participant must represent that it is a
disadvantaged business or small 19.808–2 Competitive.
small business in accordance with the
business goals. In competitive 8(a) acquisitions
size standard corresponding to the
■ 15. Amend section 19.805–1 by— NAICS code assigned to the contract. subject to part 15, the contracting officer
■ a. Revising paragraph (a) introductory (1) In either negotiated or sealed bid conducts negotiations directly with the
text; competitive 8(a) acquisitions SBA will competing 8(a) participants. Conducting
■ b. Removing from paragraph (a)(1) determine the eligibility of the apparent competitive negotiations among 8(a)
‘‘firms’’ and adding ‘‘participants’’ in its successful offeror and advise the participants prior to SBA’s formal
place; contracting office within 5 working days acceptance of the acquisition for the 8(a)
■ c. Revising paragraph (b) introductory after receipt of the contracting office’s program may be grounds for SBA’s not
text; request for an eligibility determination. accepting the acquisition for the 8(a)
■ d. Removing from paragraph (b)(1) (i) If SBA determines that the program.
‘‘firms’’ and adding ‘‘participants’’ in its apparent successful offeror is ineligible, ■ 19. Revise section 19.809 to read as
place; and the contracting office will then send to follows.
■ e. Revising paragraph (d). SBA the identity of the next highest
The revisions read as follows: evaluated offeror for an eligibility 19.809 Preaward considerations.
19.805–1 General. determination. The process is repeated The contracting officer should request
until SBA determines that an identified a preaward survey of the 8(a) participant
(a) Except as provided in paragraph
offeror is eligible for award. whenever considered useful. If the
(b) of this section, an acquisition offered (ii) If the contracting officer believes
to the SBA under the 8(a) program shall results of the preaward survey or other
that the apparent successful offeror (or information available to the contracting
be awarded on the basis of competition the offeror SBA has determined eligible
limited to eligible 8(a) participants officer raise substantial doubt as to the
for award) is not responsible to perform participant’s ability to perform, the
when— the contract, the contracting officer must contracting officer must refer the matter
* * * * * refer the matter to SBA for Certificate of to SBA for Certificate of Competency
(b) Where an acquisition exceeds the Competency consideration under consideration under subpart 19.6.
competitive threshold (see paragraph subpart 19.6.
(a)(2) of this section), the SBA may ■ 20. Amend section 19.810 by—
(2) In any case in which an 8(a)
accept the requirement for a sole source ■ a. Removing from paragraph (a)(2)
participant is determined to be
8(a) award if— ineligible, SBA will notify the 8(a) ‘‘firm’’ and ‘‘Program’’ and adding
* * * * * participant of that determination. ‘‘participant’’ and ‘‘program’’ in their
(d) The SBA Associate Administrator (c) Any party with information places, respectively;
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for Business Development may approve questioning the eligibility of an 8(a) ■ b. Removing from paragraph (a)(3)
a contracting office’s request for a participant to continue participation in ‘‘activity’s’’ and adding ‘‘officer’s’’ in its
competitive 8(a) award below the the 8(a) program or for the purposes of place;
competitive thresholds. Such requests a specific 8(a) award may submit such ■ c. Revising paragraph (b); and
will be approved only on a limited basis information to the SBA in accordance ■ d. Removing from paragraph (c)
and will be primarily granted where with 13 CFR 124.112(c). ‘‘firm’’ and adding ‘‘participant’’ in its
technical competitions are appropriate ■ 17. Amend section 19.808–1 by place.
or where a large number of responsible removing from paragraph (c) ‘‘activity’’ The revision reads as follows:

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Federal Register / Vol. 82, No. 9 / Friday, January 13, 2017 / Rules and Regulations 4731

8.003) or SBA agrees to release the 124.301 through 124.305, and 13 CFR Special 8(a) Subcontract Conditions
requirement from the 8(a) program in 124.507(d). (JAN 2017)
accordance with 13 CFR 124.504(d).
(b) To obtain release of a requirement 19.1304 [Amended] * * * * *
(b) * * *
for a non-8(a) procurement (other than ■ 25. Amend section 19.1304 by
(2) That the SBA has delegated
a mandatory source listed at 8.002 or removing from paragraph (d) ‘‘Program’’
responsibility, except for novation
8.003), the contracting officer shall and adding ‘‘program’’ in its place
agreements, for the administration of this
make a written request to, and receive (twice). subcontract to the _____[ [insert name of
concurrence from, the SBA Associate
19.1404 [Amended] contracting agency] with complete authority
Administrator for Business to take any action on behalf of the
Development. ■ 26. Amend section 19.1404 by Government und_d conditions of this
(c)(1) The written request to the SBA removing from paragraph (d) ‘‘Program’’ subcontract.
Associate Administrator for Business and adding ‘‘program’’ in its place
Development shall indicate— (twice). * * * * *
(i) Whether the agency has achieved ■ 27. Amend section 19.1504 by ■ 31. Amend section 52.219–14 by
its small disadvantaged business goal; revising paragraph (a) to read as follows: revising the date of the clause and
(ii) Whether the agency has achieved
removing from paragraphs (b)(1), (2),
its HUBZone, SDVOSB, WOSB, or small 19.1504 Exclusions.
and (3) ‘‘8(a) concerns’’ and adding
business goal(s); and * * * * *
(iii) Whether the requirement is ‘‘8(a) participants’’ in its place to read
(a) Requirements that an 8(a) as follows:
critical to the business development of contractor is currently performing under
the 8(a) contractor that is currently the 8(a) program or that SBA has 52.219–14 Limitations on Subcontracting.
performing the requirement. accepted for performance under the
(2) Generally, a requirement that was * * * * *
authority of the 8(a) program, unless
previously accepted into the 8(a) SBA has consented to release the Limitations on Subcontracting (JAN
program will only be released for requirements from the 8(a) program; 2017)
procurements outside the 8(a) program
* * * * * * * * * *
when the contracting activity agency
agrees to set aside the requirement PART 52—SOLICITATION PROVISIONS ■ 32. Amend section 52.219–17 by
under the small business, HUBZone, AND CONTRACT CLAUSES revising the date of the clause and
SDVOSB, or WOSB programs. removing from paragraph (a)(2) ‘‘and
(3) The requirement that a follow-on ■ 28. Amend section 52.212–5 by advance payments’’ to read as follows:
procurement must be released from the revising the date of the clause and
8(a) program in order for it to be paragraph (b)(19) to read as follows: 52.219–17 Section 8(a) Award.
fulfilled outside the 8(a) program does * * * * *
not apply to task or delivery orders 52.212–5 Contract Terms and Conditions
offered to and accepted into the 8(a) Required to Implement Statutes or Section 8(a) Award (JAN 2017)
Executive Orders—Commercial Items.
program, where the basic contract was
* * * * * * * * * *
not accepted into the 8(a) program.
Contract Terms and Conditions ■ 33. Amend section 52.219–18 by—
19.816 Exiting the 8(a) program.
Required To Implement Statutes or ■ a. Revising the section and clause
(a) Except as provided in paragraph
Executive Orders—Commercial Items headings; and
(c) of this section, when a contractor
(JAN 2017) ■ b. In Alternate I, revising the date of
exits the 8(a) program, it is no longer
eligible to receive new 8(a) contracts. * * * * * the alternate and removing ‘‘concerns’’
However, the contractor remains under (b) * * * and adding ‘‘participants’’ in its place.
contractual obligation to complete (19) 52.219–14, Limitations on The revisions read as follows:
existing contracts, and any priced Subcontracting (JAN 2017) (15 U.S.C.
options that may be exercised. 637(a)(14)). 52.219–18 Notification of Competition
(b) If an 8(a) contractor is suspended * * * * * Limited to Eligible 8(a) Participants.
from the program (see 13 CFR 124.305), ■ 29. Amend section 52.219–11 by * * * * *
it may not receive any new 8(a) revising the date of the clause and
contracts unless the head of the Notification of Competition Limited to
removing from paragraph (c) ‘‘and
contracting agency makes a Eligible 8(a) Participants (JAN 2017)
advance payments’’ to read as follows:
determination that it is in the best * * * * *
interest of the Government to issue the 52.219–11 Special 8(a) Contract
award and SBA adopts that Conditions. Alternate I (JAN 2017) * * *
determination. * * * * * * * * * *
(c) A contractor that has completed its [FR Doc. 2016–31498 Filed 1–12–17; 8:45 am]
term of participation in the 8(a) program Special 8(a) Contract Conditions (JAN
may be awarded a competitive 8(a) 2017) BILLING CODE 6820–EP–P
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contract if it was an 8(a) participant * * * * *
eligible for award of the contract on the ■ 30. Amend section 52.219–12 by
initial date specified for receipt of offers revising the date of the clause and
contained in the solicitation, and if the paragraph (b)(2) to read as follows:
contractor continues to meet all other
applicable eligibility criteria. 52.219–12 Special 8(a) Subcontract
(d) SBA’s regulations on exiting the Conditions.
8(a) program are found at 13 CFR * * * * *

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Document Created: 2017-01-13 02:45:25
Document Modified: 2017-01-13 02:45:25
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective: January 13, 2017.
Contact		Ms. Mahruba Uddowla, Procurement Analyst, at 703-605-2868, or by email at [email protected], for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-95, FAR Case 2012-022.
FR Citation		82 FR 4724
RIN Number		9000-AM68
CFR Citation		48 CFR 18 48 CFR 19 48 CFR 52 48 CFR 5 48 CFR 6
82 FR 4724 - Federal Acquisition Regulation; Contracts Under the Small Business Administration 8(a) Program

DEPARTMENT OF DEFENSEGENERAL SERVICES ADMINISTRATIONNATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 82, Issue 9 (January 13, 2017)

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
