[Federal Register Volume 64, Number 207 (Wednesday, October 27, 1999)]
[Proposed Rules]
[Pages 57964-57965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27857]
[[Page 57963]]
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Part V
Department of Defense
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General Services Administration
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National Aeronautics and Space Administration
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48 CFR Parts 26 and 52
Federal Acquisition Regulation; Utilization of Indian Organizations and
Indian-Owned Economic Enterprises; Proposed Rule
Federal Register / Vol. 64, No. 207 / Wednesday, October 27, 1999 /
Proposed Rules
[[Page 57964]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 26 and 52
[FAR Case 99-301]
RIN 9000-AI52
Federal Acquisition Regulation; Utilization of Indian
Organizations and Indian-Owned Economic Enterprises
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to delete DoD-unique language
pertaining to incentive payments made to prime contractors for the
utilization of Indian organizations and Indian-owned economic
enterprises.
DATES: Comments should be submitted on or before December 27, 1999 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 1800 F Street,
NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
Address e-mail comments submitted via the Internet to: farcase.99-
[email protected].
Please submit comments only and cite FAR case 99-301 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAR case 99-301.
SUPPLEMENTARY INFORMATION:
A. Background
Section 504 of the Indian Financing Act of 1974 (25 U.S.C. 1544)
established the Indian Incentive Program. Annual DoD appropriations
acts have restricted DoD payments under the Program to those
contractors that submitted subcontracting plans pursuant to 15 U.S.C.
637(d) and those contractors participating in the test program for
comprehensive small business subcontracting plans established by
Section 854 of Pub. L. 101-189. Section 8024 of the DoD Appropriations
Act for Fiscal Year 1999 (Pub. L. 105-262) eliminated the link between
a DoD contractor's subcontracting plan requirement and the contractor's
eligibility for participation in the Indian Incentive Program. This
change now allows DoD to make incentive payments to small businesses
that subcontract to Indian organizations or Indian-owned economic
enterprises when the contract includes the clause at FAR 52.226-1,
Utilization of Indian Organizations and Indian-owned Economic
Enterprises. This rule proposes to remove obsolete DoD-unique
implementing guidance from the FAR. The Defense Acquisition Regulations
Council will add guidance to the Defense Federal Acquisition Regulation
Supplement under a separate case to implement the change made in
Section 8024 of Pub. L. 105-262.
This rule was not subject to Office of Management and Budget review
under Section 6(b) of Executive Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
B. Regulatory Flexibility Act
This proposed rule is not expected to 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
merely deletes DoD-unique requirements from the FAR. The rule will have
no effect on small entities doing business with civilian agencies. An
Initial Regulatory Flexibility Analysis has, therefore, not been
performed. Comments are invited from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR Subparts in accordance with 5
U.S.C. 610. Interested parties must submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAR case 99-301), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements 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 26 and 52
Government procurement.
Dated: October 20, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR parts 26 and 52
be amended as set forth below:
1. The authority citation for 48 CFR parts 26 and 52 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 26--OTHER SOCIOECONOMIC PROGRAM
26.101 [Amended]
2. Amend section 26.101 as follows:
a. In the definition ``Indian'', remove ``which'' and insert
``that'', in its place;
b. In the definition ``Indian-owned economic enterprise'' remove
``shall constitute'' and insert ``constitutes'', in its place; and
c. In the definition ``Indian tribe'', remove ``which'' and insert
``that'', in its place.
3. Revise section 26.104 to read as follows:
26.104 Contract clause.
Contracting Officers in civilian agencies may insert the clause at
52.226-1, Utilization of Indian Organizations and Indian-Owned Economic
Enterprises, in solicitations and contracts if--
(a) In the opinion of the contracting officer, subcontracting
possibilities exist for Indian organizations or Indian-owned economic
enterprises; and
(b) Funds are available for any increased costs as described in
paragraph (b)(2) of the clause at 52.226-1.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Amend section 52.226-1 as follows:
a. Revise the date of the clause;
b. Remove paragraph (a);
c. Redesignate paragraphs (b) through (d) as (a) through (c),
respectively;
d. In the newly designated paragraph (a):
(1) Remove ``which'' from the definition ``Indian'' and insert
``that'', in its place;
(2) Remove ``shall constitute'' from the definition ``Indian-owned
economic enterprise'' and insert ``constitutes'', in its place; and
(3) Remove ``which'' from the definition ``Indian tribe'' and
insert ``that'', in its place.
e. Revise newly designated paragraphs (b) and (c).
The revised text reads as follows:
[[Page 57965]]
52.226-1 Utilization of Indian Organizations and Indian-Owned Economic
Enterprises.
* * * * *
Utilization of Indian Organizations and Indian-Owned Economic
Enterprises (Date)
* * * * *
(b) The Contractor shall use its best efforts to give Indian
organizations and Indian-owned economic enterprises (25 U.S.C. 1544)
the maximum practicable opportunity to participate in the
subcontracts it awards to the fullest extent consistent with
efficient performance of its contract.
(1) The Contracting Officer and the Contractor, acting in good
faith, may rely on the representation of an Indian organization or
Indian-owned economic enterprise as to its eligibility, unless an
interested party challenges its status or the Contracting Officer
has independent reason to question that status. In the event of a
challenge to the representation of a subcontractor, the Contracting
Officer will refer the matter to the U.S. Department of the
Interior, Bureau of Indian Affairs (BIA), Attn: Chief, Division of
Contracting and Grants Administration, 1849 C Street, NW, MS 2626-
MIB, Washington, DC 20240-4000. The BIA will determine the
eligibility and notify the Contracting Officer. No incentive payment
will be made within 50 working days of subcontract award or while a
challenge is pending. If a subcontractor is determined to be an
ineligible participant, no incentive payment will be made under the
Indian Incentive Program.
(2) The Contractor may request an adjustment under the Indian
Incentive Program to the following:
(i) The estimated cost of a cost-type contract.
(ii) The target cost of a cost-plus-incentive-fee prime
contract.
(iii) The target cost and ceiling price of a fixed-price
incentive prime contract.
(iv) The price of a firm-fixed-price prime contract.
(3) The amount of the adjustment to the prime contract is 5
percent of the estimated cost, target cost, or firm-fixed-price
included in the subcontract initially awarded to the Indian
organization or Indian-owned economic enterprise.
(4) The Contractor has the burden of proving the amount claimed
and must assert its request for an adjustment prior to completion of
contract performance.
(c) The Contracting Officer, subject to the terms and conditions
of the contract and the availability of funds, will authorize an
incentive payment of 5 percent of the amount paid to the
subcontractor. The Contracting Officer will seek funding in
accordance with agency procedures. The Contracting Officer's
decision is final and not subject to the Disputes clause of this
contract.
(End of clause)
[FR Doc. 99-27857 Filed 10-26-99; 8:45 am]
BILLING CODE 6820-EP-P