[Federal Register Volume 64, Number 90 (Tuesday, May 11, 1999)]
[Rules and Regulations]
[Pages 25214-25216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11885]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1815, 1816, 1819, and 1852


Small Disadvantaged Business Participation Evaluation and 
Incentives

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: This final rule conforms the NASA FAR Supplement (NFS) to 
recent changes made to the Federal Acquisition Regulation (FAR) 
regarding the evaluation and incentive for small disadvantaged business 
(SDB) participation in competitive negotiated acquisitions. 
Specifically, this rule requires that evaluation of SDB participation 
be limited to SDBs in the Major SIC Groups designated by the Department 
of Commerce, and that it be accomplished normally as a subfactor under 
the NASA Mission Suitability evaluation factor. This rule also limits 
incentives for use of SDB firms to an award fee provision or the 
designated FAR incentive clause provision. Moreover, both incentives 
are limited to use of SDBs in the designated Major SIC Groups. This 
rule also makes editorial revisions to reflect recent FAR terminology 
and clause title changes associated with implementation of the 
Historically Underutilized Business Zone (HUBZone) Empowerment 
Contracting Program. Finally, editorial changes are made to correct a 
NASA official's title and to eliminate an erroneous designation of the 
NASA Mentor-Protege program as a pilot program.

EFFECTIVE DATE: May 11, 1999.

FOR FURTHER INFORMATION CONTACT: Tom O'Toole, NASA Headquarters, Code 
HK, Washington, DC 20546, telephone: (202) 358-0478; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Federal Acquisition Circular 97-07 revised the FAR to prescribe 
procedures for the evaluation and incentive of SDB participation in 
Government contracts. With respect to evaluation, it required that the 
proposed participation of SDBs in the Department of Commerce designated 
Major SIC Groups be evaluated in unrestricted competitive negotiations 
expected to exceed $500,000 ($1,000,000 for construction). In addition, 
two forms of post-award incentives for use of SDBs in the designated 
SIC Major Groups were prescribed: the clause at 52.219-26, Small 
Disadvantaged Business Participation Program--Incentive Subcontracting, 
or an award fee provision. NASA procedures for award fee already 
required evaluation of SDB utilization, but needed revision to limit 
evaluation to SDBs in the designated Major SIC Groups.

Impact

Regulatory Flexibility Act

    This final rule does not constitute a significant revision within 
the meaning of FAR 1.501 and Pub. L. 98-577, and publication for 
comments is not required. However, comments from small business 
entities concerning the affected NFS coverage will be considered in 
accordance with 5 U.S.C. 610. Such comments may be submitted separately 
and should cite 5 U.S.C. 601, et seq.

Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the NFS do not impose any recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public that require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1815, 1816, 1819, and 1852

    Government procurement.
Tom Luedtke,
Acting Associate Administrator for Procurement.

    Accordingly, 48 CFR Parts 1815, 1816, 1819, and 1852 are amended as 
follows:

PART 1815--CONTRACTING BY NEGOTIATION

    1. The authority citation for 48 CFR Parts 1815, 1816, 1819, and 
1852 continues to read as follows:

    Authority: 42 U.S.C. 2473(c)(1).

    2. In section 1815.304, the section heading is revised and 
paragraph (c) is added to read as follows:


1815.304  Evaluation factors and significant subfactors. (NASA 
supplements paragraph (c))

    (c)(4)(A) The extent of participation of small disadvantaged 
business (SDB) concerns shall be evaluated as a subfactor under the 
Mission Suitability factor. If a Mission Suitability factor is not 
used, the SDB participation shall be evaluated as a separate factor or 
subfactor, as appropriate.
    (B) SDB concerns that choose the FAR 19.11 price evaluation 
adjustment shall receive the lowest possible score/rating under the FAR 
15.304(c)(4) evaluation.

[[Page 25215]]

    3. In section 1815.304-70, paragraph (b)(2) is revised to read as 
follows:


1815.304-70  NASA evaluation factors.

* * * * *
    (b) * * *
    (2) The Mission Suitability factor may identify evaluation 
subfactors to further define the content of the factor. Each Mission 
Suitability subfactor shall be weighted and scored. The adjectival 
rating percentages in 1815.305(a)(3)(A) shall be applied to the 
subfactor weight to determine the point score. The number of Mission 
Suitability subfactors is limited to five. The Mission Suitability 
evaluation subfactors and their weights shall be identified in the RFP.
* * * * *
    4. In section 1815.404-470, paragraph (c)(5) is revised to read as 
follows:


1815.404-470  NASA structured approach for profit or fee objective.

* * * * *
    (c) * * *
    (5) Federal socioeconomic programs. In addition to rewarding 
contractors for unusual initiative in supporting Government 
socioeconomic programs, failure or unwillingness on the part of the 
contractor to support these programs should be viewed as evidence of 
poor performance for the purpose of establishing this profit/fee 
objective factor. However, this factor does not apply to utilization of 
small disadvantaged businesses. Incentives for use of these firms may 
only be structured according to FAR 19.1203 and 19.1204(c).
* * * * *

PART 1816--TYPES OF CONTRACTS

    5. In section 1816.405-274, paragraph (f) is revised to read as 
follows:


1816.405-274  Award fee evaluation factors.

* * * * *
    (f)(1) The contractor's performance against the subcontracting plan 
incorporated in the contract shall be evaluated. Emphasis may be placed 
on the contractor's accomplishment of its goals for subcontracting with 
small business, HUBZone small business, and women-owned small business 
concerns.
    (2) The contractor's performance against the contract target for 
participation as subcontractors by small disadvantaged business 
concerns in the SIC Major Groups designated by the Department of 
Commerce (see FAR 19.201(c)) shall also be evaluated if the clause at 
FAR 52.219-26, Small Disadvantaged Business Participation--Incentive 
Subcontracting, is not included in the contract (see FAR 19.1204(c)).
    (3) The contractor's achievements in subcontracting high technology 
efforts as well as the contractor's performance under the Mentor-
Protege Program, if applicable, may also be evaluated.
    (4) The evaluation weight given to the contractor's performance 
against the considerations in paragraphs (f)(1) through (f)(3) of this 
section should be significant (up to 15 percent of available award 
fee). The weight should motivate the contractor to focus management 
attention to subcontracting with small, HUBZone, and women-owned small 
business concerns, and with small disadvantaged business concerns in 
designated SIC Major Groups to the maximum extent practicable, 
consistent with efficient contract performance.
* * * * *

PART 1819--SMALL BUSINESS PROGRAMS

    6. In section 1819.201, the section heading and paragraph (a) are 
revised and paragraph (f)(1) is added to read as follows:


1819.201  General Policy. (NASA supplements paragraphs (a), (c), (d), 
and (f))

    (a)(i) NASA is committed to providing to small, HUBZone, small 
disadvantaged, and women-owned small business concerns, maximum 
practicable opportunities to participate in Agency acquisitions at the 
prime contract level. The participation of NASA prime contractors in 
providing subcontracting opportunities to such entities is also an 
essential part of the Agency's commitment. The participation of these 
entities is particularly emphasized in high-technology areas where they 
have not traditionally dominated.
    (ii) NASA annually negotiates Agency small, HUBZone, small 
disadvantaged, and women-owned small business prime and subcontracting 
goals with the Small Business Administration pursuant to section 15(g) 
of the Small Business Act (15 U.S.C. 644). In addition, NASA has the 
following statutory goals based on the total value of prime and 
subcontract awards:
    (A) Under Public Laws 101-144, 101-507, and 102-389, an annual goal 
of at least 8 percent for prime and subcontract awards to small 
disadvantaged business (SDB) concerns, Historically Black Colleges and 
Universities (HBCUs), minority institutions (MIs), and women-owned 
small businesses (WOSBs) (see 1819.7000); and
    (B) Under 10 U.S.C. 2323, an annual goal of 5 percent for prime and 
subcontract awards to SDBs, HBCUs, and WOSBs.
* * * * *
    (f)(1) The NASA Ombudsman, the Deputy Associate Administrator for 
Procurement (Code H), is the designated official for determining 
whether the use of the SDB mechanism in FAR subpart 19.11 has resulted 
in an undue burden on non-SDB firms in the Department of Commerce 
designated SIC Major Groups, or is otherwise inappropriate.


1819.202-170  [Amended]

    7. In the last sentence to section 1819.202-170, the word 
``(Technical)'' is removed.


1819.705-470  [Amended]

    8. In the last sentence to section 1819.705-470, the word ``, 
HUBZone,'' is added before the phrase ``and women-owned small business 
concerns''.
    9. Section 1819.708-70 is revised to read as follows:


1819.708-70  NASA solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 1852.219-
73, Small Business Subcontracting Plan, in invitations for bids 
containing the clause at FAR 52.219-9 with its Alternate I. Insert in 
the last sentence the number of calendar days after request that the 
offeror must submit a complete plan.
    (b) The contracting officer shall insert the clause at 1852.21975, 
Small Business Subcontracting Reporting, in solicitations and contracts 
containing the clause at FAR 52.219-9, except for contracts covered by 
an approved commercial plan.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    10. In section 1852.219-73, the section title, date, and paragraph 
(b) are revised to read as follows:


1852.219-73  Small Business Subcontracting Plan.

    As prescribed in 1819.708-70(a), insert the following provision:

Small Business Subcontracting Plan

May 1999

* * * * *
    (b) The contract expected to result from this solicitation will 
contain FAR clause 52.219-9, ``Small Business Subcontracting Plan.'' 
The apparent low bidder must submit the complete plan within [Insert 
number of days] calendar days after request by the Contracting 
Officer.

(End of provision)


[[Page 25216]]


    11. In section 1852.219-75, the section title and date are revised 
to read as follows:


1852.219-75  Small Business Subcontracting Reporting.

* * * * *

Small Business Subcontracting Reporting

May 1999

* * * * *


1852.219-77  [Amended]

    12. In section 1852.219-77, the date is revised to read ``May 
1999'' and in paragraph (d), the word ``pilot'' is removed.

[FR Doc. 99-11885 Filed 5-10-99; 8:45 am]
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