[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Proposed Rules]
[Pages 23373-23374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11648]





48 CFR Part 19

[FAR Case 2008-023; Docket 2009-0017; Sequence 1]
RIN 9000-AL29

Federal Acquisition Regulation; FAR Case 2008-023, Clarification 
of Criteria for Sole Source Awards to Service-disabled Veteran-owned 
Small Business Concerns

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and SpaceAdministration (NASA).

ACTION: Proposed rule with request for comments.


SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to clarify the criteria that need 
to be met in order to conduct a sole source Service-disabled Veteran-
owned Small Business (SDVOSB) concern acquisition.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before July 20, 2009 to be considered in 
the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR case 2008-023 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2008-023'' under the heading ``Comment or Submission''. 
Select the link ``Send a Comment or Submission'' that corresponds with 
FAR Case 2008-023. Follow the instructions provided to complete the 
``Public Comment and Submission Form''. Please include your name, 
company name (if any), and ``FAR Case 2008-023'' on your attached 
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street NW, Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2008-23 
in all correspondence related to this case. All comments received will 
be posted

[[Page 23374]]

without change to http://www.regulations.gov, including any personal 
and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Rhonda Cundiff, Procurement 
Analyst, at (202) 501-0044 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2008-023 
in all correspondence.


A. Background

    The United States Government Accountability Office's (GAO) decision 
in the matter of MCS Portable Restroom Service, B-299291, March 28, 
2007, deals in part with the issue of when a sole source SDVOSB 
acquisition may be conducted. In this decision, GAO notes that the 
plain wording of FAR 19.1406 may be unintentionally inconsistent with 
the Veterans Benefit Act of 2003 and the Small Business Administration 
regulations that implement that Act. GAO concludes the intent of the 
FAR language is that one criterion for a sole source award is that the 
contracting officer does not have a reasonable expectation that two or 
more SDVOSBs will submit offers. The intent of the FAR language is not 
that a sole source acquisition is prohibited if more than one SDVOSB 
that could conceivably perform the work exists.
    The Councils have reviewed the language in question, FAR 
19.1406(a)(1). The Councils have determined that in order to lessen the 
possibility of misinterpretation, the language should be revised to 
more closely mirror the Veterans Benefit Act of 2003 (15 U.S.C. 657f). 
The proposed rule contains language that was revised accordingly.
    The language in FAR 19.1306(a)(1), which deals with sole source 
awards to HUBZone small business concerns based on 15 U.S.C. 657a(b), 
is currently the same as the language in FAR 19.1406(a)(1). The 
Councils have determined that the language in 19.1306(a)(1) should be 
revised in the same manner as the language in 19.1406(a)(1). The intent 
in both cases is that one of the criterion for making a sole source 
award is that the contracting officer does not reasonably expect to 
receive offers from two or more concerns. Not revising the language in 
FAR 19.1306(a)(1) to match FAR 19.1406(a)(1) will lead to confusion. 
There could be a presumption that the intent is to convey different 
meanings, when that is not the intent. Therefore, the proposed rule 
contains language that has been revised accordingly.
    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

    The Councils do not expect this proposed rule 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 this revision is being done to clarify the intent of the 
existing language and is not a change in policy. An Initial Regulatory 
Flexibility Analysis has, therefore, not been performed. We invite 
comments from small businesses and other interested parties. The 
Councils will consider comments from small entities concerning the 
affected FAR Part 19 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 2008-023), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
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. Chapter 35, et seq.

List of Subjects in 48 CFR Part 19.

    Government procurement.

    Dated: May 12, 2009.
Al Matera,
Director, Office of Acquisition Policy.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 19 as 
set forth below:


    1. The authority citation for 48 CFR part 19 continues to read as 

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).
    2. Amend section 19.1306 by revising paragraphs (a) and (a)(1) to 
read as follows:

19.1306  HUBZone sole source awards.

    (a) A contracting officer may award contracts to HUBZone small 
business concerns on a sole source basis (see 19.501(c) and 6.302-5) 
without considering small business set-asides (see Subpart 19.5), 
    (1) The contracting officer does not have a reasonable expectation 
that offers would be received from two or more HUBZone small business 
* * * * *
    3. Amend section 19.1406 by revising paragraphs (a)(1) and (a)(2) 
to read as follows:

19.1406  Sole source awards to service-disabled veteran owned small 
business concerns.

    (a) * * *
    (1) The contracting officer does not have a reasonable expectation 
that offers would be received from two or more service-disabled 
veteran-owned small business concerns;
    (2) The anticipated award price of the contract, including options, 
will not exceed--
* * * * *
[FR Doc. E9-11648 Filed 5-18-09; 8:45 am]