[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