[Federal Register Volume 75, Number 89 (Monday, May 10, 2010)]
[Pages 25844-25845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10969]



Office of the Secretary

Class Deviation From FAR 52.219-7, Notice of Partial Small 
Business Set-Aside

AGENCY: Defense Logistics Agency, DoD.

ACTION: Notice.


SUMMARY: This is to notify interested parties of a proposed class 
deviation to the Federal Acquisition Regulation (FAR) regarding partial 
small business set-asides for Defense Logistics Agency (DLA), Defense 
Energy Support Center (DESC) bulk fuels solicitations and resulting 
contract awards. DLA is requesting Department of Defense approval of a 
class deviation to FAR 52.219-7, to revise an existing class deviation 
to that clause.

DATES: Comments must be received on or before July 9, 2010.

ADDRESSES: Submit your comments concerning this Deviation to DLA, Attn: 
J-71 (Kerry Pilz), 8725 John J. Kingman Rd, Fort Belvoir, VA 22060-
6221. Telephone (703) 767-1461 or E-mail at [email protected].mil.

FOR FURTHER INFORMATION CONTACT: Kerry Pilz, (703) 767-1461 or e-mail 
at [email protected].

SUPPLEMENTARY INFORMATION: In accordance with Federal Acquisition 
Regulation (FAR) 1.404 and Defense Federal Acquisition Regulation 
Supplement 201.404, DESC is requesting a class deviation from FAR 
Clause 52.219-7, Notice of Partial Small Business Set-Aside. DESC 
intends to use the clause in domestic bulk fuel solicitations.
    Under the bulk petroleum program, DESC purchases, distributes, and 
manages millions of gallons of military specification fuel products for 
the Military Services. Domestic bulk fuel solicitations generally 
contain partial small business set-asides pursuant to FAR subpart 19.5. 
These set-asides are solicited and awarded using the current deviation 
clause, DESC Clause I237.06, Notice of Partial Small Business Set-Aside 
(Deviation). The current deviation was approved on June 25, 1990, 
pursuant to DAR Case 90-922. The current deviation established a 
methodology for partial small business set-aside evaluation and awards.
    DESC proposes revisions to the current deviation clause to clarify 
language in various portions of the clause, and in particular to 
clarify that a small business will not be awarded a set-aside portion 
at a price higher than its offer price under the non-set-aside portion. 
The proposed revisions are incorporated into the clause below:

    Defense Logistics Agency Defense Logistics Acquisition Directive 
provision and clause.


    Required in all domestic bulk solicitations/contracts when the 
solicitation contains one or more partial set-aside items. Be sure 
lead-in appears above the clause. This clause is a deviation from 
FAR Clause I237.



    (a) DEFINITION. Small business concern, as used in this clause, 
means a concern, including its affiliates that is independently 
owned and operated, not dominant in the field of operation in which 
it is bidding on Government contracts, and qualified as a small 
business under the size standards in this solicitation.
    (b) GENERAL.
    (1) A portion of certain items of this procurement, as listed in 
the Schedule, has been set aside for award to eligible small 
businesses. The quantities indicated for such items in the Schedule 
include the set-aside portion. All offerors are urged to offer the 
maximum quantities they desire and are capable of delivering. Small 
business concerns interested in receiving a set-aside contract 
should submit an offer in the same manner as though there were no 
set-aside. Volumes offered by qualified small business concerns will 
be evaluated for the non-set-aside and set-aside portions of the 
procurement. Separate offers should not be submitted on the non-set-
aside and set-aside portions.
    (2) The partial small business set-aside of the procurement is 
based on a determination by the Contracting Officer that it is in 
the interest of maintaining or mobilizing the nation's full 
production capacity or in the

[[Page 25845]]

interest of national defense programs, or in the interest of 
assuring that a fair portion of Government procurement is placed 
with small business concerns.
    (3) All of the offers received under this solicitation will 
first be negotiated as to price and an evaluation will be made as 
though there were no set-aside.
    (4) For the purposes of set-aside evaluation, when an offer 
contains increments at different prices, each increment will be 
considered a separate offer. Except as provided in (d) below, 
negotiations will be limited to the offered quantities not awarded 
under the provision of (c)(2) below.
    (1) The price for the small business set-aside portion will be 
negotiated by the Contracting Officer based upon prices the 
Government would otherwise pay the successful offeror for the non-
set-aside portion of the location under this solicitation, adjusted 
for transportation charges and other factors. In the case of a small 
business concern whose offer is determined by the evaluation process 
to be low on the non-set-aside portion, awards of the set-aside 
portion will be made to that small business concern without further 
negotiation. Contracts for any remaining set-aside portions will be 
negotiated with those eligible small business concerns that have 
submitted a responsive offer on the various items for which a set-
aside has been established. In no event will a small business 
concern be awarded a set-aside portion at a price higher than its 
offer price under the non-set-aside portion.
    (2) Negotiations for small business set-aside awards will begin 
with the small business concern with the lowest evaluated price and 
a quantity of offered product remaining. If the low small business 
concern on the item does not offer to supply product at the set-
aside price established in accordance with (1) above, the next low 
small business concern on the item will be given the same 
opportunity; this process will continue with the successive low 
small business concerns until all small business concerns have been 
    (3) The Government reserves the right to make awards to the 
otherwise low offeror for all or any portion of the set-aside 
quantities, without regard to the size of the offeror, if eligible 
small business concerns do not offer a quantity of product 
sufficient to meet a set-aside requirement or do not offer to supply 
at the set-aside prices. The total quantity that will be awarded a 
small business offeror on both the unreserved and reserved portions 
will not exceed the total quantity offered under this solicitation 
by such small business offerors. However, if insufficient product is 
offered by small business concerns to meet the quantity set aside 
for small business, small business concerns with which the 
Government has already commenced negotiations may be given an 
opportunity to offer additional product.
    (4) Where the Trade Agreements Act applies to the non-set-aside 
portion, offers of eligible products will be treated as if they were 
qualifying country end products.
    (d) AGREEMENT. For the set-aside portion of the acquisition, a 
small business concern submitting an offer in its own name agrees to 
furnish, in performing the contract, only end items manufactured or 
produced by small business concerns inside the United States. The 
term United States includes its territories and possessions, the 
Commonwealth of Puerto Rico, the Trust Territory of the Pacific 
Islands, and the District of Columbia. If this procurement is 
processed under simplified acquisition procedures and the total 
amount of this contract does not exceed $25,000, a small business 
concern may furnish the product of any domestic firm. This paragraph 
does not apply in connection with construction or service contracts.

    Dated: May 5, 2010.
Mitchell S. Bryman,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-10969 Filed 5-7-10; 8:45 am]