83 FR 19146 - Federal Acquisition Regulation: Duties of Office of Small and Disadvantaged Business Utilization
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 83, Issue 84 (May 1, 2018)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 83, Issue 84 (May 1, 2018)
| Page Range | 19146-19148 | |
| FR Document | 2018-09166 |
[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)] [Rules and Regulations] [Pages 19146-19148] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-09166] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 19 [FAC 2005-98; FAR Case 2017-008: Item II; Docket No. 2017-0008; Sequence No. 1] RIN 9000-AN36 Federal Acquisition Regulation: Duties of Office of Small and Disadvantaged Business Utilization AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to reflect sections of the National Defense Authorization Act for Fiscal Year 2017, which amend section 15(k) of the Small Business Act to provide additional duties for agencies' Office of Small and Disadvantaged Business Utilization (OSDBU), and for DoD's Office of Small Business Programs (OSBP). DATES: Effective: May 31, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Janet Fry, Procurement Analyst, at 703-605-3167 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-98, FAR Case 2017-008. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are amending the FAR to reflect sections of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328), which amend the Small Business Act to provide additional duties for OSDBUs. By operation of 10 U.S.C. 144(b), these additional duties also apply to OSBPs. Section 1812, paragraph (a) of section 1813, and paragraph (b) of section 1821 of the NDAA for FY 2017 amend section 15(k) of the Small Business Act to add duties for OSDBUs and OSBPs. Section 1812 of the NDAA for FY 2017 amends the Small Business Act to specifically reference the existing duties of OSDBUs and OSBPs with respect to the various small business programs and consolidation of contract requirements. Section 1812 also requires that OSDBUs and OSBPs review summary purchase card data for acquisitions above the micro- purchase threshold (e.g., $3,500), but below the simplified acquisition threshold (e.g., $150,000), to ensure these acquisitions are compliant with the Small Business Act and have been properly recorded in the Federal Procurement Data System (FPDS). The revision to the FAR reflecting section 1812 of the NDAA includes flexibility for each OSDBU or OSBP to identify the best purchase card data available to their agency when implementing the statutory requirement. Paragraph (a) of section 1813 requires OSDBUs and OSBPs to provide assistance to a small business prime contractor or subcontractor in finding resources for education and training on compliance with the FAR after award of their contract or subcontract. Paragraph (b) of section 1821 requires OSDBUs and OSBPs to review all required small business subcontracting plans to ensure that they provide maximum practicable opportunity for small business concerns to participate as subcontractors. Currently, acquisition-related duties of OSDBUs and OSBPs are found in FAR 19.201, General policy. The duties found in FAR 19.201 are based on the duties found in section 15(k) of the Small Business Act (15 U.S.C. 644(k)). Additional OSDBU and OSBP acquisition-related duties enacted before the NDAA for FY 2017 listed at 15 U.S.C. 644(k), which were not previously updated in the FAR, are also included in this rule. Additionally, this rule revises the OSDBU and OSBP duty at FAR 19.201(c)(5), which relates to increasing small business participation in solicitations that involve bundling. This revision reflects that OSDBUs and OSBPs perform much broader functions under those scenarios than what is currently listed in the FAR. II. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the FAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, [[Page 19147]] regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. While this final rule relates to the expenditure of appropriated funds, it is not required to be published for public comment because it does not have a significant effect or impose any requirements on contractors or offerors; the rule only provides information to contracting officers. This information affects only the internal operating procedures of the Government. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items This rule amends FAR 19.201, General policy. The objective of the rule is to update the list of duties for OSDBUs and OSBPs in line with section 15(k) of the Small Business Act. No clauses or provisions are being created or revised by this rule. 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. Executive Order 13771 This rule is exempt under E.O. 13771 as it is related to agency organization, management, or personnel. VI. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) does not apply to this rule, because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section II. of this preamble). Accordingly, no regulatory flexibility analysis is required and none has been prepared. VII. 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 Part 19 Government procurement. Dated: April 25, 2018. 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 part 19 as set forth below: PART 19--SMALL BUSINESS PROGRAMS 0 1. The authority citation for 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. 0 2. Amend section 19.201 by revising paragraph (c) to read as follows. 19.201 General policy. * * * * * (c) The Small Business Act requires each agency with contracting authority to establish an Office of Small and Disadvantaged Business Utilization (see section 15(k) of the Small Business Act). For the Department of Defense, in accordance with section 904 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163) (10 U.S.C. 144 note), the Office of Small and Disadvantaged Business Utilization has been redesignated as the Office of Small Business Programs. Management of the office is the responsibility of an officer or employee of the agency who, in carrying out the purposes of the Act-- (1) Is known as the Director of Small and Disadvantaged Business Utilization, or for the Department of Defense, the Director of Small Business Programs; (2) Is appointed by the agency head; (3) Is responsible to and reports directly to the agency head or the deputy to the agency head; (4) Is responsible for the agency carrying out the functions and duties in sections 8, 15, 31, 36, and 44 of the Small Business Act; (5) Works with the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)(2)) to identify proposed solicitations that involve bundling and work with the agency acquisition officials and SBA to revise the acquisition strategies for such proposed solicitations to increase the probability of participation by small businesses; (6) Assists small business concerns in obtaining payments under their contracts, late payment interest penalties, or information on contractual payment provisions; (7) Has supervisory authority over agency personnel to the extent that their functions and duties relate to sections 8, 15, 31, 36, and 44 of the Small Business Act; (8) Assigns a small business technical advisor to each contracting activity within the agency to which the SBA has assigned a representative (see 19.402)-- (i) Who is a full-time employee of the contracting activity, well qualified, technically trained, and familiar with the supplies or services contracted for by the activity; and (ii) Whose principal duty is to assist the SBA's assigned representative in performing functions and duties relating to sections 8, 15, 31, 36, and 44 of the Small Business Act; (9) Cooperates and consults on a regular basis with the SBA in carrying out the agency's functions and duties in sections 8, 15, 31, 36, and 44 of the Small Business Act; (10) Makes recommendations in accordance with agency procedures as to whether a particular acquisition should be awarded under subpart 19.5 as a small business set-aside, under subpart 19.8 as a section 8(a) award, under subpart 19.13 as a HUBZone set-aside, under subpart 19.14 as a service-disabled veteran-owned small business set-aside, or under subpart 19.15 as a set-aside for economically disadvantaged women-owned small business (EDWOSB) concerns or women-owned small business (WOSB) concerns eligible under the WOSB Program; (11) Conducts annual reviews to assess the-- (i) Extent to which small businesses are receiving a fair share of Federal procurements, including contract opportunities under the programs administered under the Small Business Act; (ii) Adequacy of consolidated or bundled contract documentation and justifications; and (iii) Actions taken to mitigate the effects of necessary and justified consolidation or bundling on small businesses; [[Page 19148]] (12) Provides a copy of the assessment made under paragraph (c)(11) of this section to the Agency Head and SBA Administrator; (13) Provides to the chief acquisition officer and senior procurement executive advice and comments on acquisition strategies, market research, and justifications related to consolidation of contract requirements; (14) When notified by a small business concern prior to the award of a contract that the small business concern believes that a solicitation, request for proposal, or request for quotation unduly restricts the ability of the small business concern to compete for the award-- (i) Submits the notification by the small business concern to the contracting officer and, if necessary, recommends ways in which the solicitation, request for proposal, or request for quotation may be altered to increase the opportunity for competition; and (ii) Informs the advocate for competition of such agency (as established under 41 U.S.C 1705 or 10 U.S.C. 2318) of such notification; (15) Ensures agency purchases using the Governmentwide purchase card that are greater than the micro-purchase threshold and less than the simplified acquisition threshold were made in compliance with the Small Business Act and were properly recorded in accordance with subpart 4.6 in the Federal Procurement Data System; (16) Assists small business contractors and subcontractors in finding resources for education and training on compliance with contracting regulations; (17) Reviews all subcontracting plans required by 19.702(a) to ensure the plan provides maximum practicable opportunity for small business concerns to participate in the performance of the contract; and (18) Performs other duties listed at 15 U.S.C. 644(k). * * * * * [FR Doc. 2018-09166 Filed 4-30-18; 8:45 am] BILLING CODE 6820-EP-P
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rule is not a major rule under 5 U.S.C. (ii) Protests of orders in excess of the of the Small Business Act to add duties
804. thresholds stated in 16.505(a)(10)(i)(B) for OSDBUs and OSBPs.
may only be filed with the Government Section 1812 of the NDAA for FY
VII. Executive Order 13771 2017 amends the Small Business Act to
Accountability Office, in accordance
Pursuant to E.O. 13771, this rule is a with the procedures at 33.104. specifically reference the existing duties
deregulatory action. Information on the * * * * * of OSDBUs and OSBPs with respect to
expected cost savings of this action can [FR Doc. 2018–09165 Filed 4–30–18; 8:45 am] the various small business programs and
be found in section III of the preamble. BILLING CODE 6820–EP–P
consolidation of contract requirements.
Section 1812 also requires that OSDBUs
VIII. Regulatory Flexibility Act and OSBPs review summary purchase
Because a notice of proposed DEPARTMENT OF DEFENSE card data for acquisitions above the
rulemaking and an opportunity for micro-purchase threshold (e.g., $3,500),
public comment are not required to be GENERAL SERVICES but below the simplified acquisition
given for this rule under 41 U.S.C. ADMINISTRATION threshold (e.g., $150,000), to ensure
1707(a)(1) (see section V. of this these acquisitions are compliant with
preamble), the analytical requirements NATIONAL AERONAUTICS AND the Small Business Act and have been
of the Regulatory Flexibility Act (5 SPACE ADMINISTRATION properly recorded in the Federal
U.S.C. 601 et seq.) are not applicable. Procurement Data System (FPDS). The
Accordingly, no regulatory flexibility 48 CFR Part 19 revision to the FAR reflecting section
analysis is required and none has been 1812 of the NDAA includes flexibility
[FAC 2005–98; FAR Case 2017–008: Item
prepared. II; Docket No. 2017–0008; Sequence No. 1]
for each OSDBU or OSBP to identify the
best purchase card data available to
IX. Paperwork Reduction Act RIN 9000–AN36 their agency when implementing the
The rule does not contain any statutory requirement.
information collection requirements that Federal Acquisition Regulation: Duties Paragraph (a) of section 1813 requires
require the approval of the Office of of Office of Small and Disadvantaged OSDBUs and OSBPs to provide
Management and Budget under the Business Utilization assistance to a small business prime
Paperwork Reduction Act (44 U.S.C. AGENCY: Department of Defense (DoD), contractor or subcontractor in finding
chapter 35). General Services Administration (GSA), resources for education and training on
and National Aeronautics and Space compliance with the FAR after award of
List of Subjects in 48 CFR Part 16
Administration (NASA). their contract or subcontract.
Government procurement. Paragraph (b) of section 1821 requires
ACTION: Final rule.
Dated: April 25, 2018. OSDBUs and OSBPs to review all
William F. Clark, SUMMARY: DoD, GSA, and NASA are required small business subcontracting
issuing a final rule amending the plans to ensure that they provide
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition Federal Acquisition Regulation (FAR) to maximum practicable opportunity for
Policy, Office of Government-wide Policy. reflect sections of the National Defense small business concerns to participate
Authorization Act for Fiscal Year 2017, as subcontractors.
Therefore, DoD, GSA, and NASA are Currently, acquisition-related duties
amending 48 CFR part 16 as set forth which amend section 15(k) of the Small
Business Act to provide additional of OSDBUs and OSBPs are found in
below: FAR 19.201, General policy. The duties
duties for agencies’ Office of Small and
Disadvantaged Business Utilization found in FAR 19.201 are based on the
PART 16—TYPES OF CONTRACTS duties found in section 15(k) of the
(OSDBU), and for DoD’s Office of Small
■ 1. The authority citation for part 16 Business Programs (OSBP). Small Business Act (15 U.S.C. 644(k)).
continues to read as follows: Additional OSDBU and OSBP
DATES: Effective: May 31, 2018.
acquisition-related duties enacted before
Authority: 40 U.S.C. 121(c); 10 U.S.C. FOR FURTHER INFORMATION CONTACT: Ms. the NDAA for FY 2017 listed at 15
chapter 137; and 51 U.S.C. 20113. Janet Fry, Procurement Analyst, at 703– U.S.C. 644(k), which were not
■ 2. Amend section 16.505 by revising 605–3167 for clarification of content. previously updated in the FAR, are also
paragraph (a)(10) to read as follows: For information pertaining to status or included in this rule.
publication schedules, contact the Additionally, this rule revises the
16.505 Ordering. Regulatory Secretariat Division at 202– OSDBU and OSBP duty at FAR
(a) * * * 501–4755. Please cite FAC 2005–98, 19.201(c)(5), which relates to increasing
(10)(i) No protest under subpart 33.1 FAR Case 2017–008. small business participation in
is authorized in connection with the SUPPLEMENTARY INFORMATION: solicitations that involve bundling. This
issuance or proposed issuance of an revision reflects that OSDBUs and
order under a task-order contract or I. Background
OSBPs perform much broader functions
delivery-order contract, except— DoD, GSA, and NASA are amending under those scenarios than what is
(A) A protest on the grounds that the the FAR to reflect sections of the currently listed in the FAR.
order increases the scope, period, or National Defense Authorization Act
maximum value of the contract; or (NDAA) for Fiscal Year (FY) 2017 (Pub. II. Publication of This Final Rule for
(B)(1) For agencies other than DoD, L. 114–328), which amend the Small Public Comment Is Not Required by
NASA, and the Coast Guard, a protest of Business Act to provide additional Statute
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an order valued in excess of $10 million duties for OSDBUs. By operation of 10 The statute that applies to the
(41 U.S.C. 4106(f)); or U.S.C. 144(b), these additional duties publication of the FAR is the Office of
(2) For DoD, NASA, or the Coast also apply to OSBPs. Section 1812, Federal Procurement Policy statute
Guard, a protest of an order valued in paragraph (a) of section 1813, and (codified at title 41 of the United States
excess of $25 million (10 U.S.C. paragraph (b) of section 1821 of the Code). Specifically, 41 U.S.C. 1707(a)(1)
2304c(e)). NDAA for FY 2017 amend section 15(k) requires that a procurement policy,
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(12) Provides a copy of the assessment DEPARTMENT OF DEFENSE under a contract or subcontract subject
made under paragraph (c)(11) of this to the overtime provisions of the
section to the Agency Head and SBA GENERAL SERVICES Contract Work Hours and Safety
Administrator; ADMINISTRATION Standards Act was required or
permitted to work in excess of the
(13) Provides to the chief acquisition
NATIONAL AERONAUTICS AND standard workweek of 40 hours without
officer and senior procurement SPACE ADMINISTRATION payment of the required overtime
executive advice and comments on wages. Since this rate will continue to
acquisition strategies, market research, 48 CFR Parts 22 and 52 change annually for inflation, FAR
and justifications related to 22.302, Liquidated Damages and
consolidation of contract requirements; [FAC 2005–98; FAR Case 2017–004; Item
III; Docket No. 2017–0004, Sequence Overtime Pay, and paragraph (b) of FAR
(14) When notified by a small No. 1] clause 52.222–4, Contract Work Hours
business concern prior to the award of and Safety Standards—Overtime
RIN 9000–AN37 Compensation, are revised to reference
a contract that the small business
concern believes that a solicitation, the current liquidated damages rate, as
Federal Acquisition Regulation:
request for proposal, or request for specified in the DOL regulations at 29
Liquidated Damages Rate Adjustment
quotation unduly restricts the ability of CFR 5.5(b)(2). With this reference being
the small business concern to compete AGENCY: Department of Defense (DoD), incorporated in lieu of the dollar
for the award— General Services Administration (GSA), amount, an annual FAR change will not
and National Aeronautics and Space be necessary.
(i) Submits the notification by the Administration (NASA).
small business concern to the III. Applicability to Contracts at or
ACTION: Final rule. Below the Simplified Acquisition
contracting officer and, if necessary,
recommends ways in which the Threshold and for Commercial Items,
SUMMARY: DoD, GSA, and NASA are Including Commercially Available Off-
solicitation, request for proposal, or issuing a final rule to amend the Federal the-Shelf Items
request for quotation may be altered to Acquisition Regulation (FAR) to adjust
increase the opportunity for for inflation the rate of liquidated This rule amends the FAR to refer to
competition; and damages assessed for violations of the the rate of liquidated damages for
overtime provisions of the Contract violations of the overtime provisions of
(ii) Informs the advocate for the Contract Work Hours and Safety
competition of such agency (as Work Hours and Safety Standards Act.
Standards Act, in accordance with DOL
established under 41 U.S.C 1705 or 10 DATES: Effective: May 31, 2018.
regulations, rather than provide a
U.S.C. 2318) of such notification; FOR FURTHER INFORMATION CONTACT: Ms. specific dollar rate, because this rate is
(15) Ensures agency purchases using Zenaida Delgado, Procurement Analyst, adjusted annually. The revisions do not
the Governmentwide purchase card that at 202–969–7207 for clarification of add any new burdens or impact
content. For information pertaining to applicability of clauses and provisions
are greater than the micro-purchase
status or publication schedules, contact at or below the simplified acquisition
threshold and less than the simplified
the Regulatory Secretariat Division at threshold, or to commercial items.
acquisition threshold were made in
202–501–4755. Please cite FAC 2005–
compliance with the Small Business Act 98, FAR Case 2017–004. IV. Publication of This Final Rule for
and were properly recorded in Public Comment Is Not Required by
SUPPLEMENTARY INFORMATION:
accordance with subpart 4.6 in the Statute
Federal Procurement Data System; I. Background The statute that applies to the
(16) Assists small business contractors DoD, GSA, and NASA are issuing a publication of the Federal Acquisition
and subcontractors in finding resources final rule amending the Federal Regulation (FAR) is the Office of Federal
for education and training on Acquisition Regulation (FAR) to Procurement Policy statute (codified at
compliance with contracting implement the Department of Labor title 41 of the United States Code).
regulations; (DOL) interim final rule published in Specifically, 41 U.S.C. 1707(a)(1)
the Federal Register at 81 FR 43430 on requires that a procurement policy,
(17) Reviews all subcontracting plans
July 1, 2016, the final rule published in regulation, procedure, or form
required by 19.702(a) to ensure the plan (including an amendment or
the Federal Register at 82 FR 5373 on
provides maximum practicable modification thereof) must be published
January 18, 2017, and subsequent
opportunity for small business concerns for public comment if it relates to the
adjustments for inflation pursuant to the
to participate in the performance of the Federal Civil Penalties Inflation expenditure of appropriated funds, and
contract; and Adjustment Act of 1990, as amended by has either a significant effect beyond the
(18) Performs other duties listed at 15 the Federal Civil Penalties Inflation internal operating procedures of the
U.S.C. 644(k). Adjustment Act Improvements Act of agency issuing the policy, regulation,
* * * * * 2015 (Inflation Adjustment Act) (section procedure, or form, or has a significant
[FR Doc. 2018–09166 Filed 4–30–18; 8:45 am] 701 of Pub. L. 114–74) (28 U.S.C. 2461 cost or administrative impact on
BILLING CODE 6820–EP–P
Note). The Inflation Adjustment Act contractors or offerors. This final rule is
requires agencies to adjust the levels of not required to be published for public
civil monetary penalties for inflation no comment, because this final FAR rule
merely implements the requirements of
amozie on DSK30RV082PROD with RULES2
later than January 15 of each year.
the DOL rule that was published for
II. Discussion and Analysis comment—interim final rule published
The DOL rule set the new rate of in the Federal Register at 81 FR 43430
liquidated damages at $25 per on July 1, 2016, and the final rule
individual for each calendar day on published in the Federal Register at 82
which a laborer or mechanic employed FR 5373 on January 18, 2017. The new
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Document Created: 2018-05-01 00:24:30
Document Modified: 2018-05-01 00:24:30
| 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: May 31, 2018. | |
| Contact | Ms. Janet Fry, Procurement Analyst, at 703-605-3167 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-98, FAR Case 2017-008. | |
| FR Citation | 83 FR 19146 | |
| RIN Number | 9000-AN36 |
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