[Federal Register Volume 74, Number 176 (Monday, September 14, 2009)]
[Rules and Regulations]
[Pages 46885-46887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21602]



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  Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / 
Rules and Regulations  

[[Page 46885]]



SMALL BUSINESS ADMINISTRATION

13 CFR Parts 124, 125, and 126

RIN 3245-AF74


Inflationary Adjustments to Acquisition-Related Dollar Thresholds

AGENCY: U.S. Small Business Administration.

ACTION: Interim final rule, with request for comments.

-----------------------------------------------------------------------

SUMMARY: The U.S. Small Business Administration (SBA) is amending its 
regulations to implement the statutorily required inflationary 
adjustment of the Agency's acquisition-related dollar thresholds and to 
make SBA's regulations consistent with the inflationary adjustments 
that are already codified in the Federal Acquisition Regulation (FAR).

DATES: Effective Date: This rule is effective on September 14, 2009.
    Comment Date: Comments must be received on or before October 14, 
2009.

ADDRESSES: You may submit comments, identified by RIN 3245-AF74 by any 
of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov and 
follow the instructions for submitting comments.
     Mail, for paper, disk, or CD-ROM submissions: Dean Koppel, 
Assistant Director for Policy and Research, 409 Third Street, SW., 
Washington, DC 20416.
     Hand Delivery/Courier: Dean Koppel, Assistant Director for 
Policy and Research, 409 Third Street, SW., Washington, DC 20416.
    SBA will post all comments on http://www.Regulations.gov. If you 
wish to submit confidential business information (CBI) as defined in 
the User Notice at http://www.Regulations.gov, please submit the 
information to Dean Koppel and highlight the information that you 
consider to be CBI and explain why you believe this information should 
be held confidential. SBA will review the information and make a final 
determination of whether the information will be published or not.

FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Director for 
Policy, and Research, at (202) 205-7322 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Small Business Act provides thresholds with respect to 8(a) 
Business Development (8(a)), Historically Underutilized Business Zone 
(HUBZone), Service Disabled Veteran-Owned (SDVO), and other Government 
Contracting Programs. For example, work offered into the 8(a) Program 
shall be competed among eligible 8(a) participants if the value of the 
procurement is greater than $5 million for procurements with 
manufacturing North American Industry Classification System (NAICS) 
codes and greater than $3 million for procurements with other than 
manufacturing NAICS codes, commonly referred to as ``all other'' 
procurements. Section 431a of title 41 of the United States Code 
authorizes the Office of Federal Procurement Policy's FAR Council to 
review all statutes with dollar based acquisition-related thresholds 
and adjust for inflation where appropriate. The FAR Council reviewed 
all such thresholds and decided that thresholds contained within the 
Small Business Act should be adjusted. The FAR final rule, published on 
September 28, 2006, at 71 FR 57363, amended the following FAR 
provisions and established the adjusted dollar based acquisition 
thresholds for SBA's small business programs.

------------------------------------------------------------------------
                                                             Threshold
                      FAR Citation                          adjustment
------------------------------------------------------------------------
FAR 7.104(d)(2)(i)(A)...................................      $7,500,000
FAR 7.104(d)(2)(i)(B)...................................       5,500,000
FAR 7.107(b)(1).........................................      86,000,000
FAR 7.107(b)(2).........................................       8,600,000
FAR 19.702(a)(1)........................................         550,000
FAR 19.702(a)(2)........................................         550,000
FAR 19.704(a)(9)........................................         550,000
FAR 19.708(b)(1)........................................         550,000
FAR 19.805-1(a)(2)......................................       5,500,000
FAR 19.805-1(a)(2)......................................       3,500,000
FAR 19.1306(a)(2)(i)....................................       5,500,000
FAR 19.1306(a)(2)(ii)...................................       3,500,000
FAR 19.1406(a)(2)(i)....................................       5,500,000
------------------------------------------------------------------------

    Because these adjusted thresholds affect SBA's contracting 
programs, this rule makes the necessary changes to the Agency's 
regulations to ensure consistency with the FAR.

II. Section By Section Analysis

    SBA is amending Sec.  124.506(a) to inform the users about the 
inflationary adjustments for the 8(a) Program's competitive thresholds. 
Thresholds within this section are stating the total dollar values for 
determining if procurements shall be competed among 8(a) firms or 
awarded as 8(a) sole-source contracts. These thresholds are 
acquisition-related dollar thresholds as defined elsewhere in this 
preamble and in part contribute to the acquisition community's 
procurement planning for contracts awarded through the SBA's 8(a) 
Program. Section 124.506(a) is further amended to correct the 
identifier of a referenced example that was indirectly changed by the 
re-designating of paragraphs within Sec.  124.506(a).
    Section 125.2 is revising acquisition-related dollar thresholds the 
Federal agencies use for determining when the procuring activities must 
coordinate review of its agencies' acquisition strategies with the 
agencies' respective small business specialists (SBSs), Offices of 
Small Disadvantaged Business Utilization (OSDBUs), and the SBA's 
procurement center representatives (PCRs).
    Section 125.3 provides the statutory thresholds for the submission 
of subcontracting plans by other than small business concerns awarded 
contracts offering subcontracting possibilities. Only one threshold for 
contracts and modifications in excess of $500,000 for procurements that 
are for other than construction of public facilities, received an 
inflationary adjustment under the FAR; section 125.3 reflects that 
change.
    SBA is adding a paragraph at Sec.  125.7 that provides an 
explanation of the inflationary adjustments as applied to regulations 
governing SBA's Government Contracting Assistance Programs.
    The SDVO SBC Program regulations at Sec.  125.20 contain statutory 
acquisition-related dollar thresholds for competing manufacturing and 
``all other'' requirements, as explained elsewhere in the preamble. 
Only the threshold of $5,000,000, for competing manufacturing 
procurements is being revised to reflect the inflationary adjustment 
made in the FAR.

[[Page 46886]]

    The SBA is amending Sec.  126.601 by adding a new paragraph to 
advise the users about the inflationary adjustments for the HUBZone 
Program's competitive thresholds that are used to determine if 
procurements are to be competed among qualified HUBZone firms or 
awarded as HUBZone sole-source contracts. The amendments to Sec.  
126.612 reflect the actual revised thresholds, each of which 
establishes a dollar value that is utilized by the Federal procuring 
agencies for determining competitive decisions for procurements that 
are limited to participation by qualified HUBZone firms.

III. Justification for Publication as an Interim Final Status Rule

    In general, SBA publishes a rule for public comment before issuing 
a final rule in accordance with the Administrative Procedure Act (APA) 
and SBA regulations. 5 U.S.C. 553 and 13 CFR 101.108. The APA provides 
an exception to this standard rulemaking process where an agency finds 
good cause to adopt a rule without prior public participation. 5 U.S.C. 
553(b)(3)(B). The good cause requirement is satisfied when prior public 
participation is impracticable, unnecessary, or contrary to the public 
interest. Under such circumstances, an agency may publish an interim 
final rule without soliciting public comment.
    In the present case, the SBA notes that Public Law 108-375, 41 
U.S.C. 431a. requires the FAR Council to take responsibility for 
adjusting each acquisition-related dollar threshold provided by law and 
publish a notice of the adjusted dollar thresholds in the Federal 
Register. These actions have been completed and a final rule with an 
immediate effective date was published in the Federal Register on 
September 28, 2006, 71 FR 57363. Small business programs within the 
SBA's 8(a) Business Development, Government Contracting, and HUBZone 
Programs codified within Title 13, Parts 124, 125, and 126 contain 
acquisition-related dollar thresholds subject to inflationary 
adjustments that are currently codified in the FAR. This interim final 
rule is amending SBA's regulations to acknowledge and implement the 
adjustments that are codified within the FAR. The SBA is not 
establishing new or differing acquisition-related dollar thresholds 
with this interim final rule. Rather, SBA is merely amending its 
regulations to advise the users of SBA's regulations of the 
inflationary adjustments to SBA's small business programs every five 
years. Immediate implementation of the interim final rule is needed to 
ensure a consistency between the SBA's regulations and the FAR for the 
acquisition-related dollar thresholds governing small business 
contracting opportunities. Consequently, SBA believes it is unnecessary 
to publish this rule as a proposed rule because it is beneficial to the 
public and acquisition communities that the regulations governing the 
SBA's small business programs are made consistent through implementing 
this rule promptly. Comments may be offered by the public and will be 
reviewed by the SBA. Accordingly, SBA finds that good cause exists to 
publish this rule as an interim final rule as quickly as possible.

IV. Justification for Immediate Effective Date of Interim Final Rule

    The APA requires that ``publication or service of a substantive 
rule shall be made not less than 30 days before its effective date, 
except * * * as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d)(3) SBA finds that good 
cause exists to make this final rule effective the same day it is 
published in the Federal Register.
    The purpose of the APA provision is to provide interested and 
affected members of the public sufficient time to adjust their behavior 
before the rule takes effect. For the reasons set forth above in 
Section III, ``Justification for Publication as Interim Final Status 
Rule'', SBA finds that good cause exists for making this interim final 
rule effective immediately, instead of observing the 30-day period 
between publication and effective date. Nonetheless, the public may 
provide comments to SBA by the deadline for comments. SBA will review 
any comments received.

V. Compliance With Executive Orders 12866, 12988, and 13132, and the 
Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory 
Flexibility Act (5 U.S.C. 601-612)

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule does not constitute a significant regulatory action under E.O. 
12866.

Executive Order 12988

    This action meets applicable standards set forth in Sections 3(a) 
and 3(b)(2) E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden. The action does not have 
retroactive or preemptive effect.

Executive Order 13132

    For the purpose of E.O. 13132, SBA has determined that the rule 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, this final rule has no federalism implications 
warranting preparation of a federalism assessment.

Paperwork Reduction Act

    SBA has determined that this rule does not impose additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act, 44 U.S.C., Chapter 35.

Regulatory Flexibility Act

    Because this rule is an interim final rule, there is no requirement 
for SBA to prepare an Initial Regulatory Flexibility Act analysis. The 
RFA requires administrative agencies to consider the effect of their 
actions on small entities, small non-profit businesses, and small local 
governments. Pursuant to the RFA, when an agency issues a rule the 
agency must prepare analysis that describes whether the impact of the 
rule will have a significant economic impact on a substantial number of 
small entities. However, the RFA requires such analysis only where 
notice and comment rulemaking is required.

List of Subjects

13 CFR Part 124

    Administrative practice and procedure, Government procurement, 
Hawaiian Natives, Indians--business and finance, Minority business, 
Reporting and recordkeeping requirements, Small businesses, Technical 
assistance.

13 CFR Part 125

    Government contracts, Government procurement, Reporting and 
recordkeeping requirements, Small businesses, Technical assistance.

13 CFR Part 126

    Administrative practice and procedure, Government procurement, 
Penalties, Reporting and recordkeeping requirements Small businesses.


0
For the reasons stated in the preamble, the Small Business 
Administration amends 13 CFR Parts 124, 125 and 126 as follows:

[[Page 46887]]

PART 124--8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS 
STATUS DETERMINATION

0
1. The authority citation for 13 CFR Part 124 continues to read as 
follows:

    Authority: 15 U.S.C. 634(b)(6), 636(j) 637(a), 637(d) and Public 
Law 99-661, Public Law 100-656, sec. 1207, Public Law 100-656, 
Public Law 101-37, Public Law 101-574, and 42 U.S.C. 9815.

Subpart A--8(a) Business Development


Sec.  124.506  [Amended]

0
2. Amend Sec.  124.506 as follows:
0
a. In Sec.  124.506 redesignate paragraphs (a)(1) through (4) as 
paragraphs (a)(2) through (5) and add new paragraph (a)(1) to read as 
set forth below.
0
b. Amend newly designated paragraph (a)(2)(ii) by removing 
``$5,000,000'' and adding in its place ``$5,500,000''.
0
c. Amend newly designated paragraph (a)(2)(ii) by removing 
``$3,000,000'' and adding in its place ``$3,500,000''.
0
d. Amend newly designated paragraph (a)(4) by removing ``$2.7 million'' 
and adding in its place ``$3.4 million''.
0
e. Amend newly designated paragraph (a)(4) by removing ``$3.1 million'' 
and adding in its place ``$3.7 million''.


Sec.  124.506  At what dollar threshold must an 8(a) procurement be 
competed among eligible Participants?

    (a) * * *
    (1) The Federal Acquisition Regulatory Council (FAR Council) has 
the responsibility of adjusting each acquisition-related dollar 
threshold on October 1, of each year that is evenly divisible by five. 
Acquisition-related dollar thresholds are defined as dollar thresholds 
that are specified in law as a factor in defining the scope of the 
applicability of a policy, procedure, requirement, or restriction 
provided in that law to the procurement of property or services by an 
executive agency as determined by the FAR Council. 41 U.S.C. 431a(c). 
Part 124, Subpart A, 8(a) Business Development, contains acquisition-
related dollar thresholds subject to inflationary adjustments. The FAR 
Council shall publish a notice of the adjusted dollar thresholds in the 
Federal Register. The adjusted dollar thresholds shall take effect on 
the date of publication.
* * * * *

PART 125--GOVERNMENT CONTRACTING PROGRAMS



0
3. The authority citation for 13 CFR Part 125 continues to read as 
follows:

    Authority:  15 U.S.C. 632(p), (q); 634(b)(6); 637; 644 and 
657(f).


0
4. Amend Sec.  125.2 as follows:
0
a. Amend paragraph (b)(2)(i)(A) by removing ``$7'' and adding in its 
place ``$7.5'';
0
b. Amend paragraph (b)(2)(i)(B) by removing ``$5'' and adding in its 
place ``$5.5'';
0
c. Amend paragraph (d)(5)(i)(A) by removing ``$75'' and adding in its 
place ``$86'';
0
d. Revise paragraph (d)(5)(i)(B) to read as follows:


Sec.  125.2  Prime contracting assistance.

* * * * *
    (d) * * *
    (5) * * *
    (i) * * *
    (B) Benefits equivalent to 5 percent of the contract or order value 
(including options) or $8.6 million, whichever is greater, where the 
contract or order value exceeds $86 million.
* * * * *


Sec.  125.3  [Amended]

0
5. Amend Sec.  125.3(a) as follows:
0
a. Amend paragraph (a) by removing ``$500,000'' and adding in its place 
``$550,000'';
0
b. Amend paragraph (c)(1) by removing ``$500,000'' and adding in its 
place ``$550,000''.

0
6. Add Sec.  125.7 to read as follows:


Sec.  125.7  Acquisition-related dollar thresholds.

    The Federal Acquisition Regulatory Council (FAR Council) has the 
responsibility of adjusting each acquisition-related dollar threshold 
on October 1, of each year that is evenly divisible by five. 
Acquisition-related dollar thresholds are defined as dollar thresholds 
that are specified in law as a factor in defining the scope of the 
applicability of a policy, procedure, requirement, or restriction 
provided in that law to the procurement of property or services by an 
executive agency as determined by the FAR Council. 41 U.S.C. 431a(c). 
Part 125, Government Contracting Programs, contains acquisition-related 
dollar thresholds subject to inflationary adjustments. The FAR Council 
shall publish a notice of the adjusted dollar thresholds in the Federal 
Register. The adjusted dollar thresholds shall take effect on the date 
of publication.

Subpart C--Contracting With SDVO SBCs


Sec.  125.20  [Amended]

0
7. Amend paragraph (b)(1) of Sec.  125.20 by removing ``$5,000,000'' 
and adding in its place ``$5,500,000''.

PART 126--HUBZONE PROGRAM

0
8. The authority citation for 13 CFR Part 126 continues to read as 
follows:

    Authority:  15 U.S.C. 632(a), 632(j), 632(p) and 657a.

Subpart F--Contractual Assistance

0
9. Amend Sec.  126.601 to redesignate paragraphs (a) through (e) as 
paragraphs (b) through (f) and add new paragraph (a) to read as 
follows:


Sec.  126.601  What additional requirements must a qualified HUBZone 
SBC meet to bid on a contract?

    (a) The Federal Acquisition Regulatory Council (FAR Council) has 
the responsibility of adjusting each acquisition-related dollar 
threshold on October 1 of each year that is evenly divisible by five. 
Acquisition-related dollar thresholds are defined as dollar thresholds 
that are specified in law as a factor in defining the scope of the 
applicability of a policy, procedure, requirement, or restriction 
provided in that law to the procurement of property or services by an 
executive agency as determined by the FAR Council. 41 U.S.C. 431a(c). 
Part 126, Subpart F, Contract Assistance, contains acquisition-related 
dollar thresholds subject to inflationary adjustments. The FAR Council 
shall publish a notice of the adjusted dollar thresholds in the Federal 
Register. The adjusted dollar thresholds shall take effect on the date 
of publication.
* * * * *


Sec.  126.612  [Amended]

0
10. Amend Sec.  126.612 as follows:
0
A. Amend paragraph (b)(1) by removing ``$5,000,000'' and adding in its 
place ``$5,500,000''.
0
B. Amend paragraph (b)(2) by removing ``$3,000,000'' and adding in its 
place ``$3,500,000''.

    Dated: August 25, 2009.
Karen G. Mills,
Administrator.
[FR Doc. E9-21602 Filed 9-11-09; 8:45 am]
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