[Federal Register Volume 70, Number 109 (Wednesday, June 8, 2005)]
[Rules and Regulations]
[Pages 33661-33662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11187]



[[Page 33661]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 19 and 52

[FAC 2005-04; FAR Case 2003-015; Item V]
RIN 9000-AK02


Federal Acquisition Regulation; Applicability of SDB and HUBZone 
Price Evaluation Factor

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 Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to remove some of the 
exceptions to the applicability of the Small Disadvantaged Business 
(SDB) and HUBZone price evaluation factor.

DATES: Effective Date: July 8, 2005.

FOR FURTHER INFORMATION CONTACT:  The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Kimberly Marshall, Procurement 
Analyst, at (202) 219-0986. Please cite FAC 2005-04, FAR case 2003-015.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule amends FAR 19.1103(a) and FAR 19.1307(b) in order 
to remove the exceptions to the Small Disadvantaged Business (SDB) and 
HUBZone preference programs that direct the contracting officer not to 
apply a price evaluation adjustment to offers of eligible products in 
acquisitions subject to the Trade Agreements Act (19 U.S.C. 2501, et 
seq.) or where application of the factor would be inconsistent with a 
Memorandum of Understanding (MOU) or other international agreement.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 69 FR 53780, September 2, 2004. We received one response, 
which was entirely favorable to the rule. Therefore, we are converting 
the proposed rule to a final rule without change.
    This is not a significant regulatory action and, therefore, was not 
subject to 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 rule is expected to have a significant (beneficial) 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 it will 
reduce the exceptions to the preference for small disadvantaged 
businesses and HUBZone small businesses. A Final Regulatory Flexibility 
Analysis (FRFA) has been prepared and is summarized as follows:

    This rule was initiated at the request of the Small Business 
Administration in order to remove preferential treatment for certain 
offers of foreign products in acquisitions intending to provide a 
preference for small disadvantaged business concerns or HUBZone 
small business concerns. The objective of this rule is to remove 
exceptions to the Small Disadvantaged Business (SDB) and HUBZone 
preference programs that direct the contracting officer not to apply 
a price evaluation adjustment to offers of eligible products in 
acquisitions subject to the Trade Agreements Act or where 
application of the factor would be inconsistent with a Memorandum of 
Understanding (MOU) or other international agreement. The rule 
applies to all offerors in acquisitions that provide a preference 
for small disadvantaged business concerns or HUBZone small business 
concerns. Because of the reduced exceptions to the preferences, this 
rule will have a beneficial impact on all domestic concerns, 
especially small entities that are small disadvantaged business 
concerns or HUBZone small business concerns.
    The FAR Secretariat has submitted a copy of the FRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. Interested 
parties may obtain a copy from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR Parts 
19 and 52 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. 
(FAC 2005-04, FAR Case 2003-015), 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 19 and 52

    Government procurement.

    Dated: May 27, 2005
Julia B. Wise,
Director,Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 19 and 52 as set forth 
below:
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1. The authority citation for 48 CFR parts 19 and 52 is revised to read 
as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 19--SMALL BUSINESS PROGRAMS


19.1103  [Amended]

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2. Amend section 19.1103 by--
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 a. Adding ``or'' to the end of paragraph (a)(1);
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b. Removing paragraphs (a)(2), (a)(3), and (a)(5); and redesignating 
paragraph (a)(4) as (a)(2); and
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c. Removing ``; or'' from the end of newly redesignated paragraph 
(a)(2) and adding a period in its place.


19.1307  [Amended]

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3. Amend section 19.1307 by--
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a. Adding ``or'' to the end of paragraph (b)(1);
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b. Removing the semicolon from the end of paragraph (b)(2) and adding a 
period in its place; and
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 c. Removing paragraphs (b)(3) and (b)(4).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.212-5  [Amended]

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4. Amend section 52.212-5 by--
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a. Revising the date of the clause to read ``(JUL 2005)'';
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b. Removing ``(Jan 1999)'' from paragraph (b)(3) of the clause and 
adding ``(JUL 2005)'' in its place; and
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c. Removing ``(June 2003)'' from paragraph (b)(10)(i) of the clause and 
adding ``(JUL 2005)'' in its place.


52.219-4  [Amended]

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5. Amend section 52.219-4 by--
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a. Revising the date of the clause to read ``(JUL 2005)''; and
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b. Adding ``and'' to the end of paragraph (b)(1)(i) of the clause; 
removing the semicolon from the end of paragraph (b)(1)(ii) of the 
clause and adding a period in its place; and removing paragraphs 
(b)(1)(iii) and (b)(1)(iv) of the clause.
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6. Amend section 52.219-23 by revising the date of the clause and 
paragraph (b)(1) to read as follows:


52.219-23  Notice of Price Evaluation Adjustment for Small 
Disadvantaged Business Concerns.

* * * * *

[[Page 33662]]

NOTICE OF PRICE EVALUATION ADJUSTMENT FOR SMALL DISADVANTAGED BUSINESS 
CONCERNS (JUL 2005)

* * * * *
    (b) Evaluation adjustment. (1) The Contracting Officer will 
evaluate offers by adding a factor of ------------------------ 
[Contracting Officer insert the percentage] percent to the price of 
all offers, except--
    (i) Offers from small disadvantaged business concerns that have 
not waived the adjustment; and
    (ii) For DoD, NASA, and Coast Guard acquisitions, an otherwise 
successful offer from a historically black college or university or 
minority institution.
* * * * *
[FR Doc. 05-11187 Filed 6-7-05; 8:45 am]
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