[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Rules and Regulations]
[Pages 48258-48272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22780]
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DEPARTMENT OF DEFENSE
48 CFR Parts 4, 5, 6, 9, 14, 15, 16, 17, 19, 20, 25, 26, 42, 44, 52
and 53
[FAC 90-32; FAR Case 94-780; Item V]
RIN 9000-AG37
Federal Acquisition Regulation; Small Business
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Federal Acquisition Regulatory Council has agreed on a
final rule to amend the Federal Acquisition Regulation (FAR) to
implement sections 7101(a) and 7106 and to augment regulation
implementation of Section 10004 of the Federal Acquisition Streamlining
Act of 1994 (Pub. L. 103-355), dated October 13, 1994. Section 7101(a)
of FASA deletes sections 15(e) and (f) from the Small Business Act.
Those sections established the priority for award of set-asides and
provided the statutory basis for a procurement preference for concerns
located in Labor Surplus Areas (LSA). Based on this deletion, this rule
removes the LSA set-aside program and LSA subcontracting program from
the FAR.
Section 7106 of FASA revises sections 8 and 15 of the Small
Business Act to accommodate a Governmentwide goal of 5 percent for
women-owned small businesses. This rule deletes existing, separate
coverage relating to women-owned businesses and revises existing
coverage to place women-owned small businesses on an equal footing with
small disadvantaged businesses. In connection with this revision, the
Standard Forms 294 and 295 are revised and streamlined.
Section 10004 of FASA, which requires the collection of specified
data through the Federal Procurement Data System, is being implemented
by FAR case 94-701. This rule augments that coverage by providing a
solicitation provision to collect the information on women-owned
businesses as required by that FAR case.
This regulatory action was subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Ms. Victoria Moss, Small Business Team
Leader, at (202) 501-4764 in reference to this FAR case. For general
information, contact the FAR Secretariat, Room 4037, GS Building,
Washington, DC 20405 (202) 501-4755. Please cite FAC 90-32, FAR case
94-780.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994 (the Act), Pub. L.
103-355, provides authorities that streamline the acquisition process
and minimize burdensome Government-unique requirements. The following
sections of the Federal Acquisition Streamlining Act are implemented by
this final rule:
Section 7101, Repeal of Certain Requirements, paragraph (a),
deletes sections 15(e) and (f) from the Small Business Act. These
sections established the priority for the award of contracts and
subcontracts in carrying out the set-aside programs.
Section 7106, Procurement Goals for Small Business Concerns Owned
by Women, establishes a Governmentwide goal for participation by women-
owned small business concerns in prime and subcontracts and revises
sections 8 and 15 of the Small Business Act to accommodate the goal.
Section 10004, Data Collection through the Federal Procurement Data
System, has been implemented in FAR case 94-701. This rule augments
that implementation.
These sections are implemented in this final rule by way of the
following substantial changes:
Elimination of the Labor Surplus Area (LSA) set-aside program;
Development of coverage giving women-owned small businesses equal
standing with small and small disadvantaged business in subcontracting
plans;
Issuance of an abbreviated provision to allow firms to represent
their status as small, small disadvantaged and/or women-owned small
business in one place;
Simplification and streamlining of the Standard Form (SF) 294,
Subcontract for Individual Contracts, and SF 295, Summary Subcontract
Report;
Inclusion of a solicitation provision collecting information on
women-owned businesses.
[[Page 48259]]
B. Regulatory Flexibility Act
The changes may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule requires large
business contractors to submit and negotiate a subcontracting plan
addressing subcontracting with women-owned small businesses. The rule
further provides for imposition of liquidated damages on those firms
which do not make a good faith effort to comply with that
subcontracting plan. A Final Regulatory Flexibility Analysis (FRFA) has
been prepared and will be provided to the Chief Counsel for Advocacy
for the Small Business Administration. A copy of the FRFA may be
obtained from the FAR Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) applies because the
final rule contains information collection requirements. Requests for
approval of the revised information collection requirements concerning
OMB Control Numbers 9000-0006, Subcontracting Plans/Subcontracting
Report for Individual Contracts, and 9000-0007, Summary Subcontract
Report, were submitted to the Office of Management and Budget under 44
U.S.C. 3501, et seq. The information collections were approved through
March 31, 1998. Public comments concerning this request were invited
through a Federal Register notice published on January 6, 1995. Based
on the comments received concerning these information collection
requirements, substantial changes were made to SFs 294 and 295. The
most significant changes include removal of blocks which collect
information not essential to program management, changing the reporting
frequency for the SF 295 from quarterly to semi-annually (DOD only),
removing signature blocks from the SF 294 (to facilitate electronic
submittal) and clarifying the instructions on the reverse.
D. Public Comments
On January 6, 1995, a proposed rule was published in the Federal
Register (60 FR 2302). In response to the notice of proposed
rulemaking, 114 public comments were received. In order to more
effectively implement those sections of the Act addressed in the
proposed rule, the proposed rule has been divided into distinguishable
segments. Section 4004, Small Business Reservation, has been added to
FAR Case 94-770. Section 7102, Contracting Program for Certain Small
Business Concerns, remains under consideration in light of the Supreme
Court's recent decision in Adarand Constructors, Inc. v. Pena, 115 S.
Ct. 2097 (1995), which set forth a new standard for evaluating the
constitutionality of race-based affirmative action programs, and the
President's directive of July 19, 1995, that executive agencies review
such programs under that standard. Section 7102 has been assigned FAR
case 94-781. The comments of all respondents were considered in
developing this final rule. As a result, the following changes have
been made:
Requirements for acquisition plans were revised to include
consideration of women-owned small business concerns.
Use of the provision entitled ``Priority for Labor Surplus Area
Concerns'' was limited to sealed bids.
The Standard Forms 294 and 295 were simplified and streamlined.
List of Subjects in 48 CFR Parts 4, 5, 6, 9, 14, 15, 16, 17, 19, 20,
25, 26, 42, 44, 52 and 53
Government procurement.
Dated: September 7, 1995.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, 48 CFR Parts 4, 5, 6, 9, 14, 15, 16, 17, 19, 20, 25, 26,
42, 44, 52 and 53 are amended as set forth below:
1. The authority citation for 48 CFR Parts 4, 5, 6, 9, 14, 15, 16,
17, 19, 20, 25, 26, 42, 44, 52 and 53 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 4--ADMINISTRATIVE MATTERS
2. Section 4.602 is amended by revising paragraph (a)(2) to read as
follows:
4.602 Federal Procurement Data System.
(a) * * *
(2) A means of measuring and assessing the impact of Federal
contracting on the Nation's economy and the extent to which small,
small disadvantaged and women-owned small business concerns are sharing
in Federal contracts; and
* * * * *
3. Section 4.603 is added to read as follows:
4.603 Solicitation provision.
The contracting officer shall insert the provision at 52.204-5,
Women-Owned Business, in all solicitations that are not set aside for
small business concerns and that exceed the simplified acquisition
threshold in Part 13, when the contract is to be performed inside the
United States, its territories or possessions, Puerto Rico, the Trust
Territory of the Pacific Islands, or the District of Columbia.
PART 5--PUBLICIZING CONTRACT ACTIONS
5.002 [Amended]
4. Section 5.002 is amended in paragraph (c) by removing ``labor
surplus area'' and inserting ``women-owned small business'' in its
place.
5.207 [Amended]
5. Section 5.207 is amended in paragraph (c)(2)(xiii) by removing
``and labor surplus area concerns'', and in paragraph (d) by removing
``or labor surplus area (LSA)''.
5.404-1 [Amended]
6. Section 5.404-1 is amended in paragraph (b)(6)(ii) by removing
``or LSA''.
7. Section 5.503 is amended by revising the second sentence of
paragraph (a) to read as follows:
5.503 Procedures.
(a) * * * Contracting officers shall give small, small
disadvantaged and women-owned small business concerns maximum
opportunity to participate in these acquisitions.
* * * * *
PART 6--COMPETITION REQUIREMENTS
8. Section 6.203 is revised to read as follows:
6.203 Set-asides for small business concerns.
(a) To fulfill the statutory requirements relating to small
business concerns, contracting officers may set aside solicitations to
allow only such business concerns to compete. This includes contract
actions conducted under the Small Business Innovation Research Program
established under Pub. L. 97-219.
(b) No separate justification or determination and findings is
required under this part to set aside a contract action for small
business concerns.
(c) Subpart 19.5 prescribes policies and procedures that shall be
followed with respect to set-asides.
6.501 [Amended]
9. Section 6.501 is amended in paragraph (c) by removing ``and
disadvantaged''.
[[Page 48260]]
PART 9--CONTRACTOR QUALIFICATIONS
10. Section 9.104-3 is amended by revising the last sentence of
paragraph (c) to read as follows:
9.104-3 Application of standards.
* * * * *
(c) * * * If the pending contract requires a subcontracting plan
pursuant to Subpart 19.7, Subcontracting with Small, Small
Disadvantaged Business and Women-Owned Small Business Concerns, the
contracting officer shall also consider the prospective contractor's
compliance with subcontracting plans under recent contracts.
* * * * *
PART 14--SEALED BIDDING
14.205-1 [Amended]
11. Section 14.205-1(e) is amended in the last sentence after the
word ``Disadvantaged'' by inserting ``and women-owned''.
14.205-4 [Amended]
12. Section 14.205-4 is amended in the fourth sentence of paragraph
(b) by inserting after the word ``small'' the phrase ``, small
disadvantaged and women-owned small''; and removing ``and labor surplus
areas (see 20.104(e) and (f))''; and in the last sentence of paragraph
(b) by removing ``parts 19 and 20'' and inserting in its place ``part
19''.
13. Section 14.206 is revised to read as follows:
14.206 Small business set-asides.
(See Part 19.)
14.408-6 [Amended]
14. Section 14.408-6 is amended by removing paragraph (a)(3) and
redesignating paragraph (a)(4) as paragraph (a)(3).
14.502 [Amended]
15. Section 14.502(b)(3) is amended by removing the text following
the word ``business'' and inserting in its place ``set-aside (see
19.502-2).''
PART 15--CONTRACTING BY NEGOTIATION
15.705 [Amended]
16. Section 15.705 is amended in paragraph (b) by removing
``business and labor surplus area'' and inserting in its place ``,
small disadvantaged and women-owned small business''.
15.706 [Amended]
17. Section 15.706 is amended at the end of the first sentence of
paragraph (b) by removing ``and disadvantaged business utilization''
and inserting in its place ``business''; and in paragraph (d)(4) by
removing ``labor surplus area'' and inserting in its place ``women-
owned small business''.
15.905-1 [Amended]
18. Section 15.905-1 is amended in the first sentence of paragraph
(c) by inserting after the word ``individuals,'' the phrase ``women-
owned small businesses,''; and removing the phrase ``labor surplus
areas,''.
PART 16--TYPES OF CONTRACTS
16.103 [Amended]
19. Section 16.103 is amended in paragraph (d)(3) by removing the
words ``or labor surplus area concerns''.
16.505 [Amended]
20. Section 16.505 is amended in paragraphs (d)(4) and (d)(5)(ii)
by removing the phrase ``or labor surplus area''.
PART 17--SPECIAL CONTRACTING METHODS
17.104-1 [Amended]
21. Section 17.104-1 is amended--
a. In paragraph (a) by removing the phrase ``or labor surplus
area'',
b. In paragraph (b) by removing the phrase ``or labor surplus
area''; and
c. In paragraph (b)(2) by removing ``(Partial labor surplus area
set-asides are only authorized for DOD activities at this time.)''.
PART 19--SMALL BUSINESS PROGRAMS
22. The heading of Part 19 is revised to read as set forth above.
* * * * *
23. Section 19.001 is amended by adding, in alphabetical order, the
definitions Labor surplus area, Labor surplus area concern, and Women-
owned small business concern to read as follows:
19.001 Definitions.
* * * * *
Labor surplus area means a geographical area identified by the
Department of Labor in accordance with 20 CFR Part 654, Subpart A, as
an area of concentrated unemployment or underemployment or an area of
labor surplus.
Labor surplus area concern means a concern that together with its
first-tier subcontractors will perform substantially in labor surplus
areas. Performance is substantially in labor surplus areas if the costs
incurred under the contract on account of manufacturing, production, or
performance of appropriate services in labor surplus areas exceed 50
percent of the contract price.
* * * * *
Women-owned small business concern means a small business concern--
(a) Which is at least 51 percent owned by one or more women; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(b) Whose management and daily business operations are controlled
by one or more women.
24. Section 19.201 is amended by revising paragraphs (a), (b),
(c)(9), and (d) to read as follows:
19.201 General policy.
(a) It is the policy of the Government to provide maximum
practicable opportunities in its acquisitions to small business
concerns, small disadvantaged business concerns, and women-owned small
business concerns. Such concerns shall also have the maximum
practicable opportunity to participate as subcontractors in the
contracts awarded by any executive agency, consistent with efficient
contract performance. The Small Business Administration (SBA) counsels
and assists small business concerns and assists contracting personnel
to ensure that a fair proportion of contracts for supplies and services
is placed with small business.
(b) Heads of contracting activities are responsible for effectively
implementing the small business programs within their activities,
including achieving program goals. They are to ensure that contracting
and technical personnel maintain knowledge of small, small
disadvantaged and women-owned small business program requirements and
take all reasonable action to increase participation in their
activities' contracting processes by these businesses.
(c) * * *
(9) Make recommendations in accordance with agency regulations as
to whether a particular acquisition should be awarded under Subpart
19.5 as a set-aside, or under Subpart 19.8 as a Section 8(a) award.
(d) Small Business Specialists shall be appointed and act in
accordance with agency regulations.
25. Section 19.202 is amended by revising the first sentence to
read as follows:
19.202 Specific policies.
In order to further the policy in 19.201(a), contracting officers
shall comply with the specific policies listed
[[Page 48261]]
in this section and shall consider recommendations of the agency
Director of Small and Disadvantaged Business Utilization, or the
Director's designee, as to whether a particular acquisition should be
awarded under Subpart 19.5 or 19.8. * * *
26. Section 19.202-3 is revised to read as follows:
19.202-3 Equal low bids.
In the event of equal low bids (see 14.408-6), awards shall be made
first to small business concerns which are also labor surplus area
concerns, and second to small business concerns which are not also
labor surplus area concerns.
27. Section 19.202-5 is amended by revising paragraphs (a) and (b)
to read as follows:
19.202-5 Data collection and reporting requirements.
* * * * *
(a) Require each prospective contractor to represent whether it is
a small business, small disadvantaged business or women-owned small
business (see the provision at 52.219-1, Small Business Program
Representations).
(b) Accurately measure the extent of participation by small, small
disadvantaged, and women-owned small businesses in Government
acquisitions in terms of the total value of contracts placed during
each fiscal year, and report data to the SBA at the end of each fiscal
year (see Subpart 4.6).
* * * * *
28. Section 19.301 is amended by revising the first sentence of
paragraph (d) to read as follows:
19.301 Representation by the offeror.
(d) If the SBA determines that the status of a concern as a ``small
business,'' a ``small disadvantaged business'' or a ``women-owned small
business'' has been misrepresented in order to obtain a set-aside
contract, an 8(a) subcontract, a subcontract that is to be included as
part or all of a goal contained in a subcontracting plan, or a prime or
subcontract to be awarded as a result, or in furtherance of any other
provision of Federal law that specifically references Section 8(d) of
the Small Business Act for a definition of program eligibility, the SBA
may take action as specified in Section 16(d) of the Act. * * *
* * * * *
29. Section 19.304 is revised to read as follows:
19.304 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 52.219-1,
Small Business Program Representations, in solicitations exceeding the
micro-purchase threshold when the contract is to be performed inside
the United States, its territories or possessions, Puerto Rico, the
Trust Territory of the Pacific Islands, or the District of Columbia.
(b) When contracting by sealed bidding, the contracting officer
shall insert the provision at 52.219-2, Equal Low Bids, in
solicitations and contracts when the contract is to be performed inside
the United States, its territories or possessions, Puerto Rico, the
Trust Territory of the Pacific Islands, or the District of Columbia.
19.401 [Amended]
30. Section 19.401 is amended in paragraph (a) by removing the
phrase ``and small disadvantaged business''.
31. Section 19.402 is amended by revising paragraph (c)(1)(ii) to
read as follows:
19.402 Small Business Administration procurement center
representatives.
* * * * *
(c) * * *
(1) * * *
(ii) New qualified small, small disadvantaged and women-owned small
business sources, and
* * * * *
32. Section 19.501 is amended in the third sentence of paragraph
(a) by removing ``or, except for the Department of Defense, restricted
to small businesses located in labor surplus areas''; and by revising
the first sentence of paragraph (h) to read as follows:
19.501 General.
* * * * *
(h) Section 305 of Public Law 103-403 authorizes public and private
organizations for the handicapped to participate for fiscal year 1995
in acquisitions set-aside for small business concerns. * * *
* * * * *
19.504 [Reserved]
33. Section 19.504 is removed and reserved.
34. Section 19.505 is revised to read as follows:
19.505 Rejecting Small Business Administration recommendations.
(a) If the contracting officer rejects a recommendation of the SBA
procurement center representative or breakout procurement center
representative, written notice shall be furnished to the appropriate
SBA center representative within 5 working days of the contracting
officer's receipt of the recommendation.
(b) The SBA procurement center representative may appeal the
contracting officer's rejection to the head of the contracting activity
(or designee) within 2 working days after receiving the notice. The
head of the contracting activity (or designee) shall render a decision
in writing, and provide it to the SBA representative within 7 working
days. Pending issuance of a decision to the SBA procurement center
representative, the contracting officer shall suspend action on the
acquisition.
(c) If the head of the contracting activity agrees that the
contracting officer's rejection was appropriate, the SBA procurement
center representative may--
(1) Within 1 working day, request the contracting officer to
suspend action on the acquisition until the SBA Administrator appeals
to the agency head (see paragraph (f) of this section); and
(2) The SBA shall be allowed 15 working days after making such a
written request, within which the Administrator of SBA
(i) May appeal to the Secretary of the Department concerned, and
(ii) Shall notify the contracting officer whether the further
appeal has, in fact, been taken.
If notification is not received by the contracting officer within the
15-day period, it shall be deemed that the SBA request to suspend
contracting action has been withdrawn and that an appeal to the
Secretary was not taken.
(d) When the contracting officer has been notified within the 15-
day period that the SBA has appealed to the agency head, the head of
the contracting activity (or designee) shall forward justification for
its decision to the agency head. The contracting officer shall suspend
contract action until notification is received that the SBA appeal has
been settled.
(e) The agency head shall reply to the SBA within 30 working days
after receiving the appeal. The decision of the agency head shall be
final.
(f) A request to suspend action on an acquisition need not be
honored if the contracting officer determines that proceeding to
contract award and performance is in the public interest. The
contracting officer shall include in the contract file a statement of
the facts justifying the determination, and shall promptly notify the
SBA representative of the determination and provide a copy of the
justification.
35. Section 19.506 is revised to read as follows:
[[Page 48262]]
19.506 Withdrawing or modifying set-asides.
(a) If, before award of a contract involving a set-aside, the
contracting officer considers that award would be detrimental to the
public interest, (e.g., payment of more than a fair market price), the
contracting officer may withdraw the set-aside determination whether it
was unilateral or joint. The contracting officer shall initiate a
withdrawal of an individual set-aside by giving written notice to the
agency small business specialist and the SBA procurement center
representative, if one is assigned, stating the reasons. In a similar
manner, the contracting officer may modify a unilateral or joint class
set-aside to withdraw one or more individual acquisitions.
(b) If the agency small business specialist does not agree to a
withdrawal or modification, the case shall be promptly referred to the
SBA representative (if one is assigned) for review. If an SBA
representative is not assigned, disagreements between the agency small
business specialist and the contracting officer shall be resolved using
agency procedures. However, the procedures are not applicable to
automatic dissolutions of set-asides (see 19.507) or dissolution of
set-asides under $100,000.
(c) The contracting officer shall prepare a written statement
supporting any withdrawal or modification of a set-aside and include it
in the contract file.
19.508 [Amended]
36. Section 19.508 is amended by removing and reserving paragraph
(b).
Subpart 19.7--Subcontracting With Small Business, Small
Disadvantaged Business and Women-Owned Small Business Concerns
37. The heading of Subpart 19.7 is revised to read as set forth
above.
38. Section 19.702 is amended by revising the introductory text and
paragraph (b)(4) to read as follows:
19.702 Statutory requirements.
Any contractor receiving a contract for more than the simplified
acquisition threshold in Part 13 shall agree in the contract that small
business concerns, small disadvantaged business concerns and women-
owned small business concerns shall have the maximum practicable
opportunity to participate in contract performance consistent with its
efficient performance. It is further the policy of the United States
that its prime contractors establish procedures to ensure the timely
payment of amounts due pursuant to the terms of their subcontracts with
small business concerns, small disadvantaged business concerns and
women-owned small business concerns.
* * * * *
(b) * * *
(4) For modifications to contracts that do not contain the clause
at 52.219-8, Utilization of Small, Small Disadvantaged and Women-Owned
Small Business Concerns (or equivalent prior clauses).
* * * * *
39. Section 19.703 is amended by revising paragraph (a)
introductory text, (a)(1), and (b) to read as follows:
19.703 Eligibility requirements for participating in the program.
(a) To be eligible as a subcontractor under the program, a concern
must represent itself as a small business concern, small disadvantaged
business concern or a woman-owned small business concern.
(1) To represent itself as a small business concern or a women-
owned small business concern, a concern must meet the appropriate
definition in 19.001.
* * * * *
(b) A contractor acting in good faith may rely on the written
representation of its subcontractor regarding the subcontractor's
status. The contractor, the contracting officer, or any other
interested party can challenge a subcontractor's size status
representation by filing a protest, in accordance with 13 CFR 121.1601
through 121.1608. Protests challenging a subcontractor's disadvantaged
status representation shall be filed in accordance with 13 CFR 124.601
through 124.610. Protests challenging a subcontractor's status as a
women-owned small business concern shall be filed in accordance with
Small Business Administration procedures.
40. Section 19.704 is amended by revising paragraphs (a)(1),
(a)(3), (a)(4), (a)(6), and (b) to read as follows:
19.704 Subcontracting plan requirements.
(a) * * *
(1) Separate percentage goals for using small business concerns,
small disadvantaged business concerns and women-owned small business
concerns as subcontractors;
* * * * *
(3) A description of the efforts the offeror will make to ensure
that small business concerns, small disadvantaged business concerns and
women-owned small business concerns will have an equitable opportunity
to compete for subcontracts;
(4) Assurances that the offeror will include the clause at 52.219-
8, Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns (see 19.708(b)), in all subcontracts that offer
further subcontracting opportunities, and that the offeror will require
all subcontractors (except small business concerns) that receive
subcontracts in excess of $500,000 ($1,000,000 for construction) to
adopt a plan similar to the plan required by the clause at 52.219-9,
Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan (see 19.708(c));
* * * * *
(6) A recitation of the types of records the offeror will maintain
to demonstrate procedures adopted to comply with the requirements and
goals in the plan, including establishing source lists; and a
description of the offeror's efforts to locate small, small
disadvantaged and women-owned small business concerns and to award
subcontracts to them.
(b) Contractors may establish, on a plant or division-wide basis, a
master subcontracting plan which contains all the elements required by
the clause at 52.219-9, Small, Small Disadvantaged and Women-Owned
Small Business Subcontracting Plan, except goals. Master plans shall be
effective for a 1-year period after approval by the contracting
officer; however, a master plan when incorporated in an individual plan
shall apply to that contract throughout the life of the contract.
* * * * *
19.705-1 [Amended]
41. Section 19.705-1 is amended in the first sentence by removing
the phrase ``for Small and Small Disadvantaged Business Concerns''.
19.705-2 [Amended]
42. Section 19.705-2 is amended in the first sentence of paragraph
(d) introductory text by removing the words ``small business and small
disadvantaged'' and inserting in their place, ``small, small
disadvantaged and women-owned small''.
43. Section 19.705-4 is amended by revising the last sentence of
paragraph (b), the second and last sentences of paragraph (c); the
first sentence of paragraphs (d)(1) and (d)(5); and paragraphs (d)(4)
and (d)(6) to read as follows:
19.705-4 Reviewing the subcontracting plan.
* * * * *
(b) * * * If the plan, although responsive, evidences the bidder's
intention not to comply with its obligations under the clause at
52.219-
[[Page 48263]]
8, Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns, the contracting officer may find the bidder
nonresponsible.
(c) * * * Subcontracting goals should be set at a level that the
parties reasonably expect can result from the offeror expending good
faith efforts to use small, small disadvantaged and women-owned small
business subcontractors to the maximum practicable extent. * * * An
incentive subcontracting clause (see 52.219-10, Incentive
Subcontracting Program), may be used when additional and unique
contract effort, such as providing technical assistance, could
significantly increase subcontract awards to small, small disadvantaged
or women-owned small businesses.
(d) * * *
(1) Evaluate the offeror's past performance in awarding
subcontracts for the same or similar products or services to small,
small disadvantaged and women-owned small business concerns. * * *
* * * * *
(4) Evaluate subcontracting potential, considering the offeror's
make-or-buy policies or programs, the nature of the products or
services to be subcontracted, the known availability of small, small
disadvantaged and women-owned small business concerns in the
geographical area where the work will be performed, and the potential
contractor's long-standing contractual relationship with its suppliers.
(5) Advise the offeror of available sources of information on
potential small, small disadvantaged and women-owned small business
subcontractors, as well as any specific concerns known to be potential
subcontractors. * * *
(6) Obtain advice and recommendations from the SBA procurement
center representative (if any) and the agency small business
specialist.
19.705-7 [Amended]
44. Section 19.705-7 is amended--
a. In the first sentence of paragraph (a) by removing the word
``and'' the first time it appears and inserting a comma in its place;
and adding the phrase ``and women-owned small'' after the word
``disadvantaged'';
b. In the third sentence of paragraph (d) by removing the words
``business and'' and replacing them with a comma; and adding the phrase
``and women-owned small'' after the word ``disadvantaged'';
c. In the fourth sentence of paragraph (d) by removing the phrase
``business or'' and inserting a comma in its place; and adding the
phrase ``or woman-owned small'' after the word ``disadvantaged'';
d. In paragraph (f) by removing the words ``Business and'' and
replacing them with a comma; and adding the phrase ``and Women-Owned
Small'' after the word ``Disadvantaged''.
45. Section 19.706 is amended by revising paragraphs (a)(2) and
(a)(3) to read as follows:
19.706 Responsibilities of the cognizant administrative contracting
officer.
(a) * * *
(2) Information on the extent to which the contractor is meeting
the plan's goals for subcontracting with eligible small, small
disadvantaged and women-owned small business concerns;
(3) Information on whether the contractor's efforts to ensure the
participation of small, small disadvantaged and women-owned small
business concerns are in accordance with its subcontracting plan;
* * * * *
46. Section 19.708 is amended by revising paragraph (a)
introductory text, (b) and (c) to read as follows:
19.708 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the clause at 52.219-8,
Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns, in solicitations and contracts when the contract
amount is expected to be over the simplified acquisition threshold in
Part 13 unless--
* * * * *
(b)(1) The contracting officer shall, when contracting by
negotiation, insert the clause at 52.219-9, Small, Small Disadvantaged
and Women-Owned Small Business Subcontracting Plan, in solicitations
and contracts that
(i) Offer subcontracting possibilities,
(ii) Are expected to exceed $500,000 ($1,000,000 for construction
of any public facility), and
(iii) Are required to include the clause at 52.219-8, Utilization
of Small, Small Disadvantaged and Women-Owned Small Business Concerns,
unless the acquisition has been set aside or is to be accomplished
under the 8(a) program.
When contracting by sealed bidding rather than by negotiation, the
contracting officer shall use the clause with its Alternate I.
(2) The contracting officer shall insert the clause at 52.219-16,
Liquidated Damages--Subcontracting Plan, in all solicitations and
contracts containing the clause at 52.219-9, Small, Small Disadvantaged
and Women-Owned Small Business Subcontracting Plan, or its Alternate I.
(c)(1) The contracting officer may, when contracting by
negotiation, insert in solicitations and contracts a clause
substantially the same as the clause at 52.219-10, Incentive
Subcontracting Program, when a subcontracting plan is required (see
19.702(a)(1)), and inclusion of a monetary incentive is, in the
judgment of the contracting officer, necessary to increase
subcontracting opportunities for small, small disadvantaged and women-
owned small business concerns, and is commensurate with the efficient
and economical performance of the contract; unless the conditions in
paragraph (c)(3) of this section are applicable. The contracting
officer may vary the terms of the clause as specified in paragraph
(c)(2) of this section.
(2) Various approaches may be used in the development of small,
small disadvantaged and women-owned small business concerns'
subcontracting incentives. They can take many forms, from a fully
quantified schedule of payments based on actual subcontract achievement
to an award fee approach employing subjective evaluation criteria (see
paragraph (c)(3) of this section). The incentive should not reward the
contractor for results other than those that are attributable to the
contractor's efforts under the incentive subcontracting program.
(3) As specified in paragraph (c)(2) of this section, the
contracting officer may include small, small disadvantaged and women-
owned small business subcontracting as one of the factors to be
considered in determining the award fee in a cost-plus-award-fee
contract; in such cases, however, the contracting officer shall not use
the clause at 52.219-10, Incentive Subcontracting Program.
19.811-3 [Amended]
47. Section 19.811-3(d)(3) is amended by removing the citation
``19.502-2(b)'' and inserting ``19.502-2(c)'' in its place.
Subpart 19.9 [Remove and Reserved]
48. Subpart 19.9, consisting of sections 19.901 and 19.902, is
removed and reserved.
PART 20 [REMOVED AND RESERVED]
49. Part 20 is removed and reserved.
PART 25--FOREIGN ACQUISITION
25.105 [Amended]
50. Section 25.105 is amended in paragraph (a)(1) by removing the
phrase ``that is not a labor surplus area concern''; and in paragraph
(a)(2) by
[[Page 48264]]
removing the phrase ``or any labor surplus area concern''.
25.404 [REMOVED AND RESERVED]
51. Section 25.404 is removed and reserved.
PART 26--OTHER SOCIOECONOMIC PROGRAMS
52. The Note to Part 26 is amended by removing ``20,''.
26.104 [Amended]
53. Section 26.104 is amended in paragraphs (a) and (b) by removing
``Business and'' and inserting a comma in its place; and inserting
after the word ``Disadvantaged'' the phrase ``and Women-Owned Small''.
PART 42--CONTRACT ADMINISTRATION
54. Section 42.302 is amended by revising paragraphs (a)(52)
through (a)(55) to read as follows:
42.302 Contract administration functions.
* * * * *
(a) * * *
(52) Review, evaluate, and approve plant or division-wide small,
small disadvantaged and women-owned small business master
subcontracting plans.
(53) Obtain the contractor's currently approved company- or
division-wide plans for small, small disadvantaged and women-owned
small business subcontracting for its commercial products, or, if there
is no currently approved plan, assist the contracting officer in
evaluating the plans for those products.
(54) Assist the contracting officer, upon request, in evaluating an
offeror's proposed small, small disadvantaged and women-owned small
business subcontracting plans, including documentation of compliance
with similar plans under prior contracts.
(55) By periodic surveillance, ensure the contractor's compliance
with small, small disadvantaged and women-owned small business
subcontracting plans and any labor surplus area contractual
requirements; maintain documentation of the contractor's performance
under and compliance with these plans and requirements; and provide
advice and assistance to the firms involved, as appropriate.
* * * * *
42.501 [Amended]
55. Section 42.501 is amended in paragraph (b) by removing the word
``and'' and inserting a comma in its place; and inserting after the
word ``disadvantaged'' the phrase ``and women-owned small''.
56. Section 42.502 is amended by revising paragraphs (i) and (j) to
read as follows:
42.502 Selecting contracts for postaward orientation.
* * * * *
(i) Contractor's status, if any, as a small business, small
disadvantaged or women-owned small business concern;
(j) Contractor's performance history with small, small
disadvantaged and women-owned small business subcontracting programs;
* * * * *
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
44.202-2 [Amended]
57. Section 44.202-2 is amended in paragraph (a)(4) by removing the
phrase ``labor surplus area or''; removing the phrase ``business
concerns and'' and inserting a comma in its place; and inserting after
the word ``disadvantaged'' the phrase ``and women-owned small''.
44.303 [Amended]
58. Section 44.303 is amended in paragraph (e) by removing the
phrase ``labor surplus area concerns and''; and inserting after the
word ``disadvantaged'' the phrase ``and women-owned small''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
59. Section 52.204-5 is added to read as follows:
52.204-5 Women-Owned Business.
As prescribed in 4.603, insert the following provision:
Women-Owned Business (Oct 1995)
(a) Representation. The offeror represents that it {time} is,
{time} is not a women-owned business concern.
(b) Definition. ``Women-owned business concern,'' as used in
this provision, means a concern which is at least 51 percent owned
by one or more women; or in the case of any publicly owned business,
at least 51 percent of the stock of which is owned by one or more
women; and whose management and daily business operations are
controlled by one or more women.
(End of provision)
52.216-21 [Amended]
60. Section 52.216-21 is amended by revising the clause date to
read (OCT 1995), in Alternates III and IV by revising the dates to read
``(OCT 1995)'' and by removing the phrase ``or labor surplus area''
from the introductory texts.
61. Section 52.219-1 is revised to read as follows:
52.219-1 Small Business Program Representations.
As prescribed in 19.304(a), insert the following provision:
Small Business Program Representations (Oct 1995)
(a)(1) The standard industrial classification (SIC) code for
this acquisition is __________ (insert SIC code).
(2) The small business size standard is ________ (insert size
standard).
(3) The small business size standard for a concern which submits
an offer in its own name, other than on a construction or service
contract, but which proposes to furnish a product which it did not
itself manufacture, is 500 employees.
(b) Representations. (1) The offeror represents and certifies as
part of its offer that it {time} is, {time} is not a small
business concern.
(2) (Complete only if offeror represented itself as a small
business concern in block (b)(1) of this section.) The offeror
represents as part of its offer that it {time} is, {time} is not a
small disadvantaged business concern.
(3) (Complete only if offeror represented itself as a small
business concern in block (b)(1) of this section.) The offeror
represents as part of its offer that it {time} is, {time} is not a
women-owned small business concern.
(c) Definitions. Small business concern, as used in this
provision, means a concern, including its affiliates, that is
independently owned and operated, not dominant in the field of
operation in which it is bidding on Government contracts, and
qualified as a small business under the criteria in 13 CFR Part 121
and the size standard in paragraph (a) of this provision.
Small disadvantaged business concern, as used in this provision,
means a small business concern that (1) is at least 51 percent
unconditionally owned by one or more individuals who are both
socially and economically disadvantaged, or a publicly owned
business having at least 51 percent of its stock unconditionally
owned by one or more socially and economically disadvantaged
individuals, and (2) has its management and daily business
controlled by one or more such individuals. This term also means a
small business concern that is at least 51 percent unconditionally
owned by an economically disadvantaged Indian tribe or Native
Hawaiian Organization, or a publicly owned business having at least
51 percent of its stock unconditionally owned by one or more of
these entities, which has its management and daily business
controlled by members of an economically disadvantaged Indian tribe
or Native Hawaiian Organization, and which meets the requirements of
13 CFR Part 124.
Women-owned small business concern, as used in this provision,
means a small business concern--
(1) Which is at least 51 percent owned by one or more women or,
in the case of any publicly owned business, at least 51 percent of
the stock of which is owned by one or more women; and
(2) Whose management and daily business operations are
controlled by one or more women.
(d) Notice. (1) If this solicitation is for supplies and has
been set aside, in whole or
[[Page 48265]]
in part, for small business concerns, then the clause in this
solicitation providing notice of the set-aside contains restrictions
on the source of the end items to be furnished.
(2) Under 15 U.S.C. 645(d), any person who misrepresents a
firm's status as a small or small disadvantaged business concern in
order to obtain a contract to be awarded under the preference
programs established pursuant to sections 8(a), 8(d), 9, or 15 of
the Small Business Act or any other provision of Federal law that
specifically references section 8(d) for a definition of program
eligibility, shall--
(i) Be punished by imposition of fine, imprisonment, or both;
(ii) Be subject to administrative remedies, including suspension
and debarment; and
(iii) Be ineligible for participation in programs conducted
under the authority of the Act.
(End of provision)
52.219-2 [Removed]
52.220-1 [Redesignated as 52.219]
62. Section 52.219-2 is removed and 52.220-1 is redesignated in its
place and is revised to read as follows:
52.219-2 Equal Low Bids.
As prescribed in 19.304(b), insert the following provision:
Equal Low Bids (Oct 1995)
(a) This provision applies to small business concerns only.
(b) The bidder's status as a labor surplus area (LSA) concern
may affect entitlement to award in case of tie bids. If the bidder
wishes to be considered for this priority, the bidder must identify,
in the following space, the LSA in which the costs to be incurred on
account of manufacturing or production (by the bidder or the first-
tier subcontractors) amount to more than 50 percent of the contract
price.
----------------------------------------------------------------------
----------------------------------------------------------------------
(c) Failure to identify the labor surplus areas as specified in
paragraph (b) of this provision will preclude the bidder from
receiving priority consideration. If the bidder is awarded a
contract as a result of receiving priority consideration under this
provision and would not have otherwise received award, the bidder
shall perform the contract or cause the contract to be performed in
accordance with the obligations of an LSA concern.
(End of provision)
52.219-3 and 52.219-5 [Removed and reserved]
63. Sections 52.219-3 and 52.219-5 are removed and reserved.
64. Section 52.219-6 is amended by revising Alternate I to read as
follows:
52.219-6 Notice of Total Small Business Set-Aside.
* * * * *
Alternate I (OCT 1995). When the acquisition is for a product in
a class for which the Small Business Administration has determined
that there are no small business manufacturers or processors in the
Federal market in accordance with 19.502-2(c), delete paragraph (c).
65. Section 52.219-7 is amended by revising the date of the clause;
in paragraph (a) by removing the definitions Labor surplus area, Labor
surplus area concern, and Perform substantially in labor surplus areas;
and by revising paragraphs (b)(4) and (c) and Alternate I to read as
follows:
52.219-7 Notice of Partial Small Business Set-Aside.
* * * * *
Notice of Partial Small Business Set-Aside (Oct 1995)
* * * * *
(b) * * *
(4) The contractor(s) for the set-aside portion will be selected
from among the small business concerns that submitted responsive
offers on the non-set-aside portion. Negotiations will be conducted
with the concern that submitted the lowest responsive offer on the
non-set-aside portion. If the negotiations are not successful or if
only part of the set-aside portion is awarded to that concern,
negotiations will be conducted with the concern that submitted the
second-lowest responsive offer on the non-set-aside portion. This
process will continue until a contract or contracts are awarded for
the entire set-aside portion.
* * * * *
(c) Agreement. For the set-aside portion of the acquisition, a
manufacturer or regular dealer submitting an offer in its own name
agrees to furnish, in performing the contract, only end items
manufactured or produced by small business concerns inside the
United States, its territories and possessions, the Commonwealth of
Puerto Rico, the Trust Territory of the Pacific Islands, or the
District of Columbia. However, this requirement does not apply in
connection with construction or service contracts.
(End of clause)
Alternate I (OCT 1995). When the acquisition is for a product in
a class for which the Small Business Administration has determined
that there are no small business manufacturers or processors in the
Federal market in accordance with 19.502-2(c), delete paragraph (c).
66. Section 52.219-8 is amended by revising the section heading;
the clause heading and date; paragraph (a); redesignating paragraph (d)
as (e) and revising it; and adding a new paragraph (d) to read as
follows:
52.219-8 Utilization of Small, Small Disadvantaged and Women-Owned
Small Business Concerns.
* * * * *
Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns (Oct 1995)
(a) It is the policy of the United States that small business
concerns, small business concerns owned and controlled by socially
and economically disadvantaged individuals and small business
concerns owned and controlled by women shall have the maximum
practicable opportunity to participate in performing contracts let
by any Federal agency, including contracts and subcontracts for
subsystems, assemblies, components, and related services for major
systems. It is further the policy of the United States that its
prime contractors establish procedures to ensure the timely payment
of amounts due pursuant to the terms of their subcontracts with
small business concerns, small business concerns owned and
controlled by socially and economically disadvantaged individuals
and small business concerns owned and controlled by women.
* * * * *
(d) The term ``small business concern owned and controlled by
women'' shall mean a small business concern (i) which is at least 51
percent owned by one or more women, or, in the case of any publicly
owned business, at least 51 percent of the stock of which is owned
by one or more women, and (ii) whose management and daily business
operations are controlled by one or more women; and
(e) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as a
small business concern, a small business concern owned and
controlled by socially and economically disadvantaged individuals or
a small business concern owned and controlled by women.
(End of clause)
67. Section 52.219-9 is amended by revising--
a. The section heading;
b. The clause heading and date;
c. The first two sentences of paragraph (c);
d. Paragraphs (d), (e), (i), and Alternate I to read as follows:
52.219-9 Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan.
* * * * *
Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan (Oct 1995)
* * * * *
(c) The offeror, upon request by the Contracting Officer, shall
submit and negotiate a subcontracting plan, where applicable, which
separately addresses subcontracting with small business concerns,
with small disadvantaged business concerns and with women-owned
small business concerns. If the offeror is submitting an individual
contract plan, the plan must separately address subcontracting with
small business concerns, small disadvantaged business concerns, and
women-owned small
[[Page 48266]]
business concerns with a separate part for the basic contract and
separate parts for each option (if any). * * *
(d) The offeror's subcontracting plan shall include the
following:
(1) Goals, expressed in terms of percentages of total planned
subcontracting dollars, for the use of small business concerns,
small disadvantaged business concerns and women-owned small business
concerns as subcontractors. The offeror shall include all
subcontracts that contribute to contract performance, and may
include a proportionate share of products and services that are
normally allocated as indirect costs.
(2) A statement of--
(i) Total dollars planned to be subcontracted;
(ii) Total dollars planned to be subcontracted to small business
concerns;
(iii) Total dollars planned to be subcontracted to small
disadvantaged business concerns; and
(iv) Total dollars planned to be subcontracted to women-owned
small business concerns.
(3) A description of the principal types of supplies and
services to be subcontracted, and an identification of the types
planned for subcontracting to (i) small business concerns, (ii)
small disadvantaged business concerns and (iii) women-owned small
business concerns.
(4) A description of the method used to develop the
subcontracting goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential
sources for solicitation purposes (e.g., existing company source
lists, the Procurement Automated Source System (PASS) of the Small
Business Administration, the National Minority Purchasing Council
Vendor Information Service, the Research and Information Division of
the Minority Business Development Agency in the Department of
Commerce, or small, small disadvantaged and women-owned small
business concerns trade associations). A firm may rely on the
information contained in PASS as an accurate representation of a
concern's size and ownership characteristics for purposes of
maintaining a small business source list. A firm may rely on PASS as
its small business source list. Use of the PASS as its source list
does not relieve a firm of its responsibilities (e.g., outreach,
assistance, counseling, publicizing subcontracting opportunities) in
this clause.
(6) A statement as to whether or not the offeror included
indirect costs in establishing subcontracting goals, and a
description of the method used to determine the proportionate share
of indirect costs to be incurred with (i) small business concerns,
(ii) small disadvantaged business concerns, and (iii) women-owned
small business concerns.
(7) The name of the individual employed by the offeror who will
administer the offeror's subcontracting program, and a description
of the duties of the individual.
(8) A description of the efforts the offeror will make to assure
that small, small disadvantaged and women-owned small business
concerns have an equitable opportunity to compete for subcontracts.
(9) Assurances that the offeror will include the clause in this
contract entitled ``Utilization of Small, Small Disadvantaged and
Women-Owned Small Business Concerns'' in all subcontracts that offer
further subcontracting opportunities, and that the offeror will
require all subcontractors (except small business concerns) who
receive subcontracts in excess of $500,000 ($1,000,000 for
construction of any public facility) to adopt a plan similar to the
plan agreed to by the offeror.
(10) Assurances that the offeror will (i) cooperate in any
studies or surveys as may be required, (ii) submit periodic reports
in order to allow the Government to determine the extent of
compliance by the offeror with the subcontracting plan, (iii) submit
Standard Form (SF) 294, Subcontracting Report for Individual
Contracts, and/or SF 295, Summary Subcontract Report, in accordance
with the instructions on the forms, and (iv) ensure that its
subcontractors agree to submit Standard Forms 294 and 295.
(11) A recitation of the types of records the offeror will
maintain to demonstrate procedures that have been adopted to comply
with the requirements and goals in the plan, including establishing
source lists; and a description of its efforts to locate small,
small disadvantaged and women-owned small business concerns and
award subcontracts to them. The records shall include at least the
following (on a plant-wide or company-wide basis, unless otherwise
indicated):
(i) Source lists (e.g., PASS), guides, and other data that
identify small, small disadvantaged and women-owned small business
concerns.
(ii) Organizations contacted in an attempt to locate sources
that are small, small disadvantaged or women-owned small business
concerns.
(iii) Records on each subcontract solicitation resulting in an
award of more than $100,000, indicating (A) whether small business
concerns were solicited and if not, why not, (B) whether small
disadvantaged business concerns were solicited and if not, why not,
(C) whether women-owned small business concerns were solicited and
if not, why not, and (D) if applicable, the reason award was not
made to a small business concern.
(iv) Records of any outreach efforts to contact (A) trade
associations, (B) business development organizations, and (C)
conferences and trade fairs to locate small, small disadvantaged and
women-owned small business sources.
(v) Records of internal guidance and encouragement provided to
buyers through (A) workshops, seminars, training, etc., and (B)
monitoring performance to evaluate compliance with the program's
requirements.
(vi) On a contract-by-contract basis, records to support award
data submitted by the offeror to the Government, including the name,
address, and business size of each subcontractor. Contractors having
company or division-wide annual plans need not comply with this
requirement.
(e) In order to effectively implement this plan to the extent
consistent with efficient contract performance, the Contractor shall
perform the following functions:
(1) Assist small, small disadvantaged and women-owned small
business concerns by arranging solicitations, time for the
preparation of bids, quantities, specifications, and delivery
schedules so as to facilitate the participation by such concerns.
Where the contractor's lists of potential small, small disadvantaged
and women-owned small business subcontractors are excessively long,
reasonable effort shall be made to give all such small business
concerns an opportunity to compete over a period of time.
(2) Provide adequate and timely consideration of the
potentialities of small, small disadvantaged and women-owned small
business concerns in all ``make-or-buy'' decisions.
(3) Counsel and discuss subcontracting opportunities with
representatives of small, small disadvantaged and women-owned small
business firms.
(4) Provide notice to subcontractors concerning penalties and
remedies for misrepresentations of business status as small, small
disadvantaged or women-owned small business for the purpose of
obtaining a subcontract that is to be included as part or all of a
goal contained in the Contractor's subcontracting plan.
* * * * *
(i) The failure of the Contractor or subcontractor to comply in
good faith with (1) the clause of this contract entitled
``Utilization Of Small, Small Disadvantaged and Women-Owned Small
Business Concerns,'' or (2) an approved plan required by this
clause, shall be a material breach of the contract.
(End of clause)
Alternate I (OCT 1995). When contracting by sealed bidding
rather than by negotiation, substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(c) The apparent low bidder, upon request by the Contracting
Officer, shall submit a subcontracting plan, where applicable, which
separately addresses subcontracting with small business concerns,
with small disadvantaged business concerns and with women-owned
small business concerns. If the bidder is submitting an individual
contract plan, the plan must separately address subcontracting with
small business concerns, small disadvantaged business concerns and
women-owned small business concerns, with a separate part for the
basic contract and separate parts for each option (if any). The plan
shall be included in and made a part of the resultant contract. The
subcontracting plan shall be submitted within the time specified by
the Contracting Officer. Failure to submit the subcontracting plan
shall make the bidder ineligible for the award of a contract.
52.219-10 [Amended]
68. Section 52.219-10 is amended in--
(a) The section heading and clause heading by removing ``for Small
and Small Disadvantaged Business Concerns'' and revising the clause
date to read ``Oct. 1995''.
(b) The introductory text by removing the text following
``19.708(c)(1),'' and
[[Page 48267]]
inserting in its place ``insert the following clause:''; and
(c) Paragraph (a) of the clause by removing ``and'', inserting a
comma, and removing the period at the end of the sentence and inserting
``and a certain percentage to women-owned small business concerns.''
52.219-13 [Removed and reserved]
69. Section 52.219-13 is removed and reserved.
70. Section 52.219-16 is amended by revising the section heading,
clause heading and date; paragraph (a); the first sentence of paragraph
(b); and paragraphs (d) and (f) to read as follows:
52.219-16 Liquidated Damages--Subcontracting Plan.
* * * * *
Liquidated Damages--Subcontracting Plan (Oct 1995)
(a) Failure to make a good faith effort to comply with the
subcontracting plan, as used in this clause, means a willful or
intentional failure to perform in accordance with the requirements
of the subcontracting plan approved under the clause in this
contract entitled ``Small, Small Disadvantaged and Women-Owned Small
Business Subcontracting Plan,'' or willful or intentional action to
frustrate the plan.
(b) If, at contract completion, or in the case of a commercial
product plan, at the close of the fiscal year for which the plan is
applicable, the Contractor has failed to meet its subcontracting
goals and the Contracting Officer decides in accordance with
paragraph (c) of this clause that the Contractor failed to make a
good faith effort to comply with its subcontracting plan,
established in accordance with the clause in this contract entitled
``Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan,'' the Contractor shall pay the Government
liquidated damages in an amount stated. * * *
* * * * *
(d) With respect to commercial product plans; i.e., company-wide
or division-wide subcontracting plans approved under paragraph (g)
of the clause in this contract entitled ``Small, Small Disadvantaged
and Women-Owned Small Business Subcontracting Plan,'' the
Contracting Officer of the agency that originally approved the plan
will exercise the functions of the Contracting Officer under this
clause on behalf of all agencies that awarded contracts covered by
that commercial product plan.
* * * * *
(f) Liquidated damages shall be in addition to any other
remedies that the Government may have.
(End of clause)
71. Section 52.219-18 is amended by revising Alternate III to read
as follows:
52.219-18 Notification of Competition Limited to Eligible 8(a)
Concerns.
* * * * *
Alternate III (OCT 1995). When the acquisition is for a product
in a class for which the Small Business Administration has
determined that there are no small business manufacturers or
processors in the Federal market in accordance with 19.502-2(c),
delete paragraph (d).
52.219-22 [Removed and reserved]
72. Section 52.219-22 is removed and reserved.
52.220-2, 52.220-3, and 52.220-4 [Removed]
73. Sections 52.220-2, 52.220-3, and 52.220-4 are removed.
PART 53--FORMS
74. Section 53.219 is revised to read as follows:
53.219 Small business programs.
The following standard forms are prescribed for use in reporting
small, small disadvantaged and women-owned small business
subcontracting data, as specified in Part 19:
(a) SF 294 (REV OCT 1995), Subcontracting Report for Individual
Contracts. (See 19.704(a)(5).)
(b) SF 295 (REV OCT 1995), Summary Subcontract Report. (See
19.704(a)(5).) SF 295 is authorized for local reproduction and a copy
is furnished for this purpose in Part 53 of the loose-leaf edition of
the FAR.
75. Sections 53.301-294 and 53.301-295 are revised to read as
follows:
BILLING CODE 6820-EP-P
[[Page 48268]]
53.301-294 Subcontracting Report for Individual Contracts.
[GRAPHIC][TIFF OMITTED]TR18SE95.003
[[Page 48269]]
[GRAPHIC][TIFF OMITTED]TR18SE95.004
BILLING CODE 6820-EP-C
[[Page 48270]]
53.301-295 Summary Subcontract Report.
[GRAPHIC][TIFF OMITTED]TR18SE95.005
[[Page 48271]]
[GRAPHIC][TIFF OMITTED]TR18SE95.006
[[Page 48272]]
[FR Doc. 95-22780 Filed 9-15-95; 8:45 am]
BILLING CODE 6820-EP-C