[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Proposed Rules]
[Pages 53269-53270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21743]





48 CFR Parts 6 and 19

[FAR Case 2009-038, Docket 2010-0095; Sequence 1]

Federal Acquisition Regulation; Tribal Consultation; 
Justification and Approval of Sole-Source 8(a) Contracts

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

ACTION: Notice of tribal consultation and outreach meetings and request 
for comments.


SUMMARY: The Federal Acquisition Regulatory Council (FAR Council) will 
hold tribal consultation and outreach meetings to discuss rulemaking 
associated with section 811 of the National Defense Authorization Act 
(NDAA) for FY 2010, Public Law 111-84. Section 811 addresses 
requirements for the justification and approval of sole-source 
contracts over $20 million under the 8(a) small business development 
program. Presentations made during the meetings will be taken into 
consideration by the FAR Council as it develops changes to the Federal 
Acquisition Regulation (FAR) to implement section 811.

DATES: The meetings will be held during the month of October in 
Washington, DC, Albuquerque, NM, and Fairbanks, AK. For more detailed 
information about the consultation registration procedures, dates, 
location, times, and agendas, please see http://www.acq.osd.mil/dpap/dars/section811.html.

FOR FURTHER INFORMATION CONTACT: For questions about registration, the 
submission of comments, or for clarification of the subject matter of 
the consultation and outreach, submit them to the e-mail address 
identified at http://www.acq.osd.mil/dpap/dars/section811.html. Please 
put ``Consultation Questions'' in the subject line of the e-mail.


A. Additional Information

    Procedures for the consultation and outreach: The FAR Council 
respectfully requests that any elected or appointed representatives of 
the tribal communities that are interested in attending the 
consultation and outreach meeting preregister and indicate whether they 
would like to make a presentation during the meeting. Registration is 
on a first-come first-served basis. To pre-register, please go to 
http://www.acq.osd.mil/dpap/dars/section811.html and send an e-mail to 
the address identified on the site with your name, organization 
affiliation, address, telephone number, e-mail address, and fax number, 
and indicate which consultation and outreach session you are interested 
in attending. Please put ``Consultation Registration'' in the subject 
line of the e-mail.
    Formal oral presentations: The purpose of these consultations and 
outreach is to encourage meaningful dialogue with tribal officials 
regarding the development of federal acquisition policy when 
implementing section 811 of the NDAA 2010. In addition, participants 
interested in making formal oral presentations during the meeting 
should provide the following information by the preregistration 
deadline stated on http://www.acq.osd.mil/dpap/dars/section811.html: 
Name, organization affiliation, address, telephone number, e-mail 
address, and fax number. Based on the number of registrants requesting 
time for presentations, the FAR Council may ask participants to limit 
the length of their formal presentations so that all attendees wishing 
to speak have the opportunity to be heard and there is adequate time 
for discussion.
    Written comments: The FAR Council welcomes written statements from 
attendees making formal oral presentations, other attendees, and 
members of the tribal communities who

[[Page 53270]]

are unable to attend the meeting but wish to share their views on the 
development of regulations to implement section 811. Written comments 
may be submitted to the e-mail address identified at http://www.acq.osd.mil/dpap/dars/section811.html. Please provide your name, 
organization affiliation, address, telephone number, e-mail address, 
and fax number. Please put ``Consultation Comments'' in the subject 
line of the e-mail. Parties wishing to have their written comments 
shared at the meeting should ensure comments are received by the 
deadlines stated on Web site.
    Meeting accommodations: The meeting is physically accessible to 
persons with disabilities. For information on facilities or services 
for individuals with disabilities or to request special assistance at 
the meeting, contact the Special Assistance Contact via the telephone 
number or e-mail address listed on http://www.acq.osd.mil/dpap/dars/section811.html.

B. Background

    Section 811 of the FY 2010 NDAA establishes a new requirement for 
Federal agencies to justify a sole-source contract award to a business 
under the Small Business Administration's 8(a) business development 
program, including businesses owned by Indian Tribes and Alaska Native 
Corporations, if the sole-source award is to exceed $20 million. The 
8(a) program enables contract awards to be made to socially and 
economically disadvantaged small business concerns using the Small 
Business Administration (SBA) as the prime contractor to the requiring 
    Section 811 states that a sole-source justification must include 
the following information: (1) A description of the needs of the agency 
concerned for the matters covered by the contract, (2) a specification 
of the statutory provision providing the exception from the requirement 
to use competitive procedures in entering into the contract, (3) a 
determination that the use of a sole-source contract is in the best 
interest of the agency concerned, (4) a determination that the 
anticipated cost of the contract will be fair and reasonable, and (5) 
such other matters as the head of the agency concerned shall specify. 
Before an award can be made, the justification must be approved by an 
appropriate official, as specified in statute. Section 811 does not 
require a justification and approval (J&A) if the contract award is 
equal to or less than $20 million. Similar to the handling of J&As for 
other sole-source awards, J&As prepared pursuant to section 811 must be 
made public within 14 days after contract award is made. Finally, 
section 811 requires that the FAR--the government-wide regulation 
governing the Federal acquisition process--be revised to reflect its 
    The FAR Council is responsible for overseeing the development and 
maintenance of the FAR, including changes to implement section 811. Its 
members include the Administrator for Federal Procurement Policy, who 
serves as the chair of the Council and is a senior official in the 
Office of Management and Budget, and senior acquisition officials from 
the Department of Defense, the General Services Administration, and the 
National Aeronautics and Space Administration.
    The FAR Council believes the conduct of tribal consultation and 
outreach in connection with section 811 will be a valuable component of 
its deliberations in preparing to implement this law, which includes 
contracting with Indian Tribes and Alaska Native Corporations. As 
explained in E.O. 13175, Tribal consultation is a critical component of 
a sound and productive Federal-Tribal relationship. The President's 
Memorandum of November 5, 2009 underscores this Administration's 
commitment to regular and meaningful consultation with tribal officials 
in policy decisions that have tribal implications. The FAR Council 
seeks tribal consultation and outreach in connection with section 811 
to allow for constructive dialogue and an opportunity for the FAR 
Council to hear the views of the tribal community, Tribal Leaders, 
Elders and elected members of Alaska Native Villages or their appointed 
representatives on how this law may affect the ability of Indian Tribes 
and Alaska Native Corporations to receive Federal contracts under the 
8(a) Program. Officials from the Small Business Administration will 
also participate in the consultation and outreach.
    Attendees who plan to make oral presentations during the meeting 
are also encouraged to provide a written copy of their statements and 
any supplementary material they believe is relevant and will assist the 
FAR Council in its deliberations. Electronic or digitized copies are 
especially welcomed. FAR Council members or other officials 
representing the FAR Council may ask questions of individuals making 
formal oral presentations during the meeting to clarify or further 
explain their statements. The FAR Council will analyze the 
presentations, both oral and written, along with any written comments 
received. Following consultation and outreach and analysis of comments 
from the tribal community, the FAR Council will prepare a rule for 
review by the Office of Management and Budget pursuant to Executive 
Order 12866, Regulatory Planning and Review. Members of the public at 
large, as well as tribal officials, will have the opportunity to 
provide written comments on FAR changes to implement section 811, which 
will be considered by the FAR Council, before a final rule is 

    Dated: August 26, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
[FR Doc. 2010-21743 Filed 8-30-10; 8:45 am]