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)

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).

[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