[Federal Register Volume 86, Number 112 (Monday, June 14, 2021)]
[Proposed Rules]
[Pages 31468-31474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12003]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 5, 6, 13, 19 and 52
[FAR Case 2019-007; Docket No. FAR 2019-0007, Sequence No. 1]
RIN 9000-AN90
Federal Acquisition Regulation: Update of Historically
Underutilized Business Zone Program
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement changes to the Small Business
Administration's regulations for the Historically Underutilized
Business Zone Program.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
August 13, 2021 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2019-007 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2019-007''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2019-007''. Follow the instructions
provided at the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case
[[Page 31469]]
2019-007'' on your attached document. If your comment cannot be
submitted using https://www.regulations.gov, call or email the points
of contact in the FOR FURTHER INFORMATION CONTACT section of this
document for alternate instructions.
Instructions: Please submit comments only and cite ``FAR Case 2019-
007'' in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement
Analyst, at 703-605-2815, or by email at [email protected], for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or [email protected]. Please cite FAR Case 2019-007.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement
revisions the Small Business Administration (SBA) has made in its
regulations for the Historically Underutilized Business Zone (HUBZone)
Program. Following a review of its HUBZone program regulations, SBA
issued a rule on November 26, 2019, at 84 FR 65222, to update its
regulations to reflect current policies, to eliminate ambiguities in
its regulations, and to reduce burdens on small businesses and
procuring agencies. This proposed FAR rule updates terminology and
processes to correspond with SBA's changes, such as updating the
definition of a HUBZone small business concern and the procedures for
filing and processing HUBZone protests.
II. Discussion and Analysis
The proposed changes to the FAR are summarized in the following
paragraphs.
A. Definitions and Terminology
The definition of ``HUBZone small business concern'' at FAR 2.101,
Definitions, and FAR 52.219-8, Utilization of Small Business Concerns,
is revised to refer to the requirements described in 13 CFR 126.200 and
SBA's designation of a HUBZone small business concern in the Dynamic
Small Business Search (DSBS). The term ``qualified'' HUBZone is removed
throughout as the definition of HUBZone specifies it is a firm the SBA
has certified as a HUBZone small business concern.
The representations for HUBZone small business concerns in FAR
52.212-3, Offeror Representations and Certifications--Commercial Items,
and in FAR 52.219-1, Small Business Program Representations, are
revised to replace references to SBA's List of Qualified HUBZone Small
Business Concerns with references to DSBS. Throughout the FAR,
instructions to contact SBA to ascertain a concern's status as a
HUBZone small business concern are revised to direct the reader to
DSBS.
B. Process for Filing a Protest
HUBZone status protests procedures at FAR 19.306 are revised to
specify who may protest the prospective contractor's HUBZone status for
HUBZone sole-source awards, that the Director of SBA's HUBZone Program
will determine whether a protested concern has certified HUBZone status
and, if SBA upholds the protest, that SBA will remove the concern's
HUBZone status in DSBS. Updated references and procedures for filing
protests against a HUBZone joint venture, based on SBA's regulations,
are added.
C. Removal of Obsolete Text
This rule proposes to delete obsolete text in FAR subpart 19.13,
Historically Underutilized Business Zone (HUBZone) Program. In FAR
19.1302, Applicability, text is deleted regarding the application of
the procedures in FAR subpart 19.13 to all Federal agencies that employ
one or more contracting officers. This text is no longer necessary
because agencies using the FAR employ one or more contracting officers.
Paragraph (e) is deleted in FAR 19.1304, Exclusions. This paragraph
contains an outdated exclusion for requirements that do not exceed the
micro-purchase threshold. SBA removed this requirement from their
regulations at 13 CFR 126.608; therefore, this rule proposes to remove
it from the FAR.
D. Removal of Notification Requirement
This rule proposes to delete language at FAR 19.1303(d), FAR
52.212-3(c)(10)(i), paragraph (g) in the clause at FAR 52.219-3, Notice
of HUBZone Set-Aside or Sole-Source Award, and paragraph (f) in the
clause at FAR 52.219-4, Notice of Price Evaluation Preference for
HUBZone Small Business Concerns. The current language requires a
HUBZone offeror to be a HUBZone small business concern at the time of
contract award and to notify the contracting officer if material
changes occur before contract award that could affect its HUBZone
eligibility. SBA's rule removes this requirement; therefore, this FAR
rule proposes to remove it from the FAR.
E. Removal of Restriction To Applying HUBZone Authorities to Contracts
and Subcontracts at or Below the Simplified Acquisition Threshold
This rule proposes to delete paragraph (a)(9) of FAR 13.005, List
of laws inapplicable to contracts and subcontracts at or below the
simplified acquisition threshold (SAT). This would remove the
restriction against applying the HUBZone Act of 1997, 15 U.S.C. 657a,
to contracts and subcontracts at or below the SAT. In FAR 19.1305,
HUBZone set-aside procedures, the exception for acquisitions not
exceeding the simplified acquisition threshold is proposed for
deletion. This would result in the procedures at FAR 19.202-1 and FAR
19.402 being applied to HUBZone set-asides that do not exceed the
simplified acquisition threshold. Additionally, FAR 19.1306, HUBZone
sole-source awards, was revised to remove paragraph (a)(4), which
restricted HUBZone sole-source awards to those valued above the SAT.
This means that contracting officers would be able to make HUBZone
sole-source awards with dollar values at or below the SAT.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-The-Shelf (COTS) Items
This rule amends the provision and clauses at FAR 52.212-3, 52.219-
1, 52.219-4, and 52.219-8. However, this rule does not impose any new
requirements on contracts at or below the SAT or for commercial items,
including COTS items. These provisions and clauses continue to apply to
acquisitions at or below the SAT and to acquisitions for commercial
items, including COTS items.
This rule proposes to apply HUBZone sole-source authority of 15
U.S.C. 657a to acquisitions at or below the SAT. Therefore, the clause
at FAR 52.219-3 will apply to acquisitions at or below the SAT.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to acquisitions at
or below the SAT. Section 1905 generally limits the applicability of
new laws when agencies are making
[[Page 31470]]
acquisitions at or below the SAT, but provides that such acquisitions
will not be exempt from a provision of law under certain circumstances,
including when the FAR Council makes a written determination and
finding that it would not be in the best interest of the Federal
Government to exempt contracts and subcontracts in amounts not greater
than the SAT from the provision of law. The FAR Council intends to make
a determination to apply this statute to acquisitions at or below the
SAT.
B. Applicability to Contracts for the Acquisition of Commercial Items,
Including Commercially Available Off-The-Shelf (COTS) Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. Section 1906 provides that if the FAR Council makes a written
determination that it is not in the best interest of the Federal
Government to exempt commercial item contracts, the provision of law
will apply to contracts for the acquisition of commercial items.
41 U.S.C. 1907 states that acquisitions of COTS items will be
exempt from certain provisions of law unless the Administrator for
Federal Procurement Policy makes a written determination and finds that
it would not be in the best interest of the Federal Government to
exempt contracts for the procurement of COTS items.
The FAR Council intends to make a determination to apply this
statute to acquisitions for commercial items. The Administrator for
Federal Procurement Policy intends to make a determination to apply
this statute to acquisitions for COTS items.
C. Determinations
The HUBZone Act of 1997, 15 U.S.C. 657a, tasks SBA with
administering a program to assist participating small businesses
located in areas with low income levels, high poverty and high
unemployment rates, Indian reservations, closed military bases, or
disaster areas with contracting opportunities in the form of set-
asides, sole-source awards, and price-evaluation preferences. Its
primary objectives are job creation and increased capital investment in
distressed communities. The purpose of this rule is to implement
revisions SBA has finalized in their HUBZone program.
These statutory requirements are reflected in SBA's final rule
published in the Federal Register at 84 FR 65222 on November 26, 2019,
which did not exempt acquisitions at or below the SAT that are set
aside for, or awarded on a sole-source basis to HUBZone small
businesses.
The law is silent on the applicability of these requirements to
acquisitions at or below the SAT and does not independently provide for
criminal or civil penalties; nor does it include terms making express
reference to 41 U.S.C. 1905 and its application to acquisitions at or
below the SAT. Therefore, it does not apply to acquisitions at or below
the SAT unless the FAR Council makes a written determination as
provided at 41 U.S.C. 1905.
Application of the law to acquisitions at or below the SAT will
maximize the positive impact set-aside and sole-source contracts
provide for HUBZone small businesses by ensuring these benefits extend
to the many contracts valued at or below the SAT. According to the
Federal Procurement Data System, an average of 283,374 contracts per
year resulted from FAR part 19 set-asides and sole-source awards at or
below the SAT during fiscal years 2016-2018. Failure to apply the
HUBZone Act to the maximum extent possible would exclude a significant
number of acquisitions, which would not advance the interests of small
businesses and increase their opportunities in the Federal marketplace.
The Federal Government has a policy of promoting HUBZone participation
in Government contracting. The Small Business Act (Section 15(g)(1), 15
U.S.C. 644(g)(1)) includes a 3% annual HUBZone contracting goal for all
prime contracts and subcontract awards each fiscal year. Historically,
the Federal Government has not achieved the HUBZone goal. Applying the
requirement below the SAT will aid Federal agencies in achieving the
goal.
For these reasons, it is in the best interest of the Federal
Government to apply the requirements of the rule to acquisitions at or
below the SAT.
In addition, SBA's final rule did not exempt the acquisition of
commercial items that are set aside for, or awarded on a sole-source
basis to HUBZone small businesses. The law is silent on the
applicability of these requirements to acquisitions of commercial items
and does not independently provide for criminal or civil penalties; nor
does it include terms making express reference to 41 U.S.C. 1906 and
its application to acquisitions of commercial items. Therefore, it does
not apply to acquisitions of commercial items unless the FAR Council
makes a written determination as provided at 41 U.S.C. 1906.
Application of the law to acquisitions of commercial items will
maximize the positive impact set-aside and sole-source contracts
provide for HUBZone small businesses by ensuring these benefits extend
to the many contracts for commercial items. According to the Federal
Procurement Data System, an average of 1,548,105 contracts per year
resulted from FAR part 19 set-asides and sole-source awards for
commercial items during fiscal years 2016-2018. Failure to apply the
HUBZone Act to the maximum extent possible would exclude a significant
number of acquisitions, which would not advance the interests of small
businesses and increase their opportunities in the Federal marketplace.
The Federal Government has a policy of promoting HUBZone participation
in Government contracting. The Small Business Act (Section 15(g)(1), 15
U.S.C. 644(g)(1)) includes a 3% annual HUBZone contracting goal for all
prime contracts and subcontract awards each fiscal year. Historically
the Federal Government has not achieved the HUBZone goal. Applying the
requirement to commercial items will aid Federal agencies in achieving
the goal.
For these reasons, it is in the best interest of the Federal
Government to apply the requirements of the rule to the acquisition of
commercial items.
IV. Expected Impact of the Rule
This proposed rule will impact the operations of the Government as
described in this section. The proposed rule specifies SBA certifies
firms as HUBZone small business concerns in DSBS. The HUBZone small
business certification data contained in SBA's DSBS is also available
in the System for Award Management (SAM). Contracting officers may use
this information to identify certified HUBZone small business concerns.
The proposed rule removes the requirement for a HUBZone offeror to be a
HUBZone small business concern at the time of contract award and to
notify the contracting officer if material changes occur before
contract award that could affect its HUBZone eligibility. Additionally,
minor changes are made to the processing of HUBZone status protests.
This proposed rule is not expected to result in any costs to
contractors or offerors.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits
[[Page 31471]]
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This is not a
significant regulatory action and, therefore, was not subject to review
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD, GSA and NASA will
send the rule and the ``Submission of Federal Rules Under the
Congressional Review Act'' form to each House of the Congress and to
the Comptroller General of the United States. A major rule cannot take
effect until 60 days after it is published in the Federal Register.
This rule is not anticipated to be a major rule under 5 U.S.C. 804.
VII. Regulatory Flexibility Act
The change may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act 5 U.S.C. 601-612. The Initial Regulatory Flexibility
Analysis (IRFA) has been performed and is summarized as follows:
DoD, GSA, and NASA are proposing to amend the FAR to implement
revisions SBA has made in its regulations for the HUBZone Program.
Following a review of its HUBZone program regulations, SBA issued a
final rule on November 26, 2019, at 84 FR 65222, to update its
regulations to reflect current policies, to eliminate ambiguities in
its regulations, and to reduce burdens on small businesses and
procuring agencies. This proposed FAR rule updates terminology and
processes to correspond with SBA's changes, such as updating the
definition of HUBZone small business concern and the procedures for
filing and processing HUBZone protests. This rule also proposes to
remove the restriction against applying the HUBZone Act of 1997, 15
U.S.C. 657a, to contracts and subcontracts at or below the SAT.
The objective of this rule is to implement SBA's revisions to
the HUBZone program regulations.
This rule may have a positive economic impact on small entities
that qualify for the HUBZone program and that are interested in
participating in Federal procurement. By reducing burden on firms
interested in becoming HUBZone small business concerns, more firms
may participate in and benefit from the program. SBA's Dynamic Small
Business Search database includes 6,897 small businesses with active
HUBZone certifications. For fiscal years 2016, 2017, and 2018, the
Federal Government made approximately 6,600 awards to approximately
662 unique entities certified by SBA as HUBZone small business
concerns. About 5,627 of these were awarded to 601 unique entities
through a HUBZone set-aside; 203 were awarded to 97 unique entities
on a sole-source basis under the HUBZone program; and 632 were
awarded to 25 unique entities using the HUBZone price evaluation
preference. Approximately 46,187 were awarded to about 2,084 unique
HUBZone small businesses in open competition with other firms.
According to the Federal Procurement Data System, an average of
283,374 contracts per year resulted from FAR part 19 set-asides and
sole-source awards at or below the SAT during fiscal years 2016-
2018. Application of the HUBZone Act to acquisitions at or below the
SAT is expected to increase the benefits from HUBZone set-aside and
sole-source contracts and increase HUBZone small businesses'
opportunities in the Federal marketplace.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small entities.
The proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known significant alternative approaches that would
accomplish the stated objectives.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA, and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit
comments separately and should cite 5 U.S.C. 610 (FAR Case 2019-007) in
correspondence.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 3501-3521) applies
to the information collection described in this rule; however, these
changes to the FAR do not impose additional information collection
requirements to the paperwork burden previously approved under OMB
Control Numbers 9000-0136, Commercial Item Acquisitions, and 9000-0007,
Subcontracting Plans.
List of Subjects in 48 CFR Parts 2, 5, 6, 13, 19, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 5,
6, 13, 19, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 5, 6, 13, 19, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by--
0
a. In the definition ``HUBZone'' removing ``or redesignated areas,''
and adding ``redesignated areas, governor-designated covered areas, or
qualified disaster areas,'' in its place;
0
b. In the definition ``HUBZone contract'' removing from paragraph (1)
``sole source'' and adding ``sole-source'' in its place; and
0
c. Revising the definition ``HUBZone small business concern'' to read
as follows:
Sec. 2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
HUBZone small business concern means a small business concern that
meets the requirements described in 13 CFR 126.200, certified by the
Small Business Administration (SBA) and designated by SBA as a HUBZone
small business concern in the Dynamic Small Business Search (DSBS) (13
CFR 126.103).
* * * * *
PART 5--PUBLICIZING CONTRACT ACTIONS
Sec. 5.206 [Amended]
0
3. Amend section 5.206 in paragraph (a) introductory text, by removing
the word ``qualified''.
PART 6--COMPETITION REQUIREMENTS
0
4. Amend section 6.205 by revising paragraph (a); and removing from
paragraph (b) the word ``qualified''.
The revision reads as follows:
Sec. 6.205 Set-asides for HUBZone small business concerns.
(a) To fulfill the statutory requirements relating to the HUBZone
[[Page 31472]]
Act of 1997 (15 U.S.C. 631 note), contracting officers may set aside
solicitations to allow only HUBZone small business concerns to compete
(see 19.1305).
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
Sec. 13.003 [Amended]
0
5. Amend section 13.003 in paragraph (b)(2)(ii) by removing ``and
19.1306(a)(4)''.
Sec. 13.005 [Amended]
0
6. Amend section 13.005 by removing paragraph (a)(5), and redesignating
paragraphs (a)(6) through (8) as paragraphs (a)(5) through (7),
respectively.
PART 19--SMALL BUSINESS PROGRAMS
19.301-1 [Amended]
0
7. Amend section 19.301-1 in paragraph (d) by removing ``concern both
at the time of initial offer and at the time of contract award'' and
adding ``concern at the time of initial offer'' in its place.
0
8. Amend section 19.306 by--
0
a. Revising paragraph (b);
0
b. In paragraph (c) removing ``HUBZone qualifying'' and adding
``HUBZone eligibility'' in its place;
0
c. Revising paragraph (d);
0
d. In paragraph (e)--
0
i. Revising the heading;
0
ii. Removing from the introductory text of paragraph (e)(1) ``protest''
and adding ``written protest'' in its place;
0
e. Revising paragraphs (f) and (h)(1)(ii);
0
f. Removing paragraph (h)(3);
0
g. In paragraph (i)--
0
i. Removing from the introductory text ``The HUBZone Program Director''
and ``(AA/GCBD)'' and adding ``SBA'' and ``(AA/GC&BD)'' in their
places, respectively;
0
ii. Revising the second sentence of paragraph (1);
0
iii. Removing from paragraph (2) ``AA/GCBD'' and adding ``AA/GC&BD'' in
its place;
0
iv. Revising paragraph (3);
0
v. Removing from paragraph (4) ``or (h)(3)'', and removing wherever it
appears ``(AA/GCBD)'' and adding ``(AA/GC&BD)'' in its place; and
0
vi. Revising paragraph (5).
0
h. In paragraph (l)--
0
i. Adding to the end of paragraph (i) ``and'';
0
ii. Removing paragraph (ii), and redesignating paragraph (iii) as
paragraph (ii); and
0
iii. Removing from paragraph (2) ``Director/HUB's decision'' and adding
``HUBZone Program Director's determination'' in its place; and
0
i. Removing from paragraph (m) wherever it appears ``AA/GCBD'' and
adding ``AA/GC&BD'' in its place.
The revisions read as follows:
19.306 Protesting a firm's status as a HUBZone small business
concern.
* * * * *
(b)(1) For sole-source procurements, SBA or the contracting officer
may protest the prospective contractor's certified HUBZone status; for
all other procurements, SBA, the contracting officer, or any other
interested party may protest the apparent successful offeror's
certified HUBZone status. (See 13 CFR 126.800.)
(2) The Director of SBA's Office of the HUBZone Program will
determine whether the concern has certified HUBZone status. If SBA
upholds the protest, SBA will remove the concern's HUBZone status in
the Dynamic Small Business Search (DSBS). SBA's protest regulations are
found in subpart H ``Protests'' at 13 CFR 126.800 through 126.805.
* * * * *
(d)(1) All protests must be in writing and must state all specific
grounds for the protest, i.e., why the protested concern did not meet
the eligibility requirements at 13 CFR 126.200 at the time of the
concern's application to SBA for certification as a HUBZone small
business concern or at the time SBA certified or last recertified the
concern as a HUBZone small business concern. Assertions that a
protested concern is not a HUBZone small business concern, without
setting forth specific facts or allegations, will not be considered by
SBA (see 13 CFR 126.801(b)).
(2) Protests filed against a HUBZone joint venture must state one
or, if applicable, both of the following:
(i) Why the HUBZone small business party to the joint venture did
not meet the eligibility requirements at 13 CFR 126.200 at the time of
its application to SBA for certification or at the time SBA certified
or last recertified the concern as a HUBZone small business concern.
(ii) Why the joint venture did not meet the requirements at 13 CFR
126.616 at the time of submission of its offer for a HUBZone contract.
(e) Submission of a protest. * * *
(f) The contracting officer shall forward all protests with a
referral letter to the Director of SBA's Office of the HUBZone Program,
by email to [email protected]. The referral letter shall include the
following:
(1) The solicitation number.
(2) The contracting officer's name and contact information.
(3) The type of HUBZone contract (i.e., sole source, set-aside,
full and open competition with a HUBZone price evaluation preference,
or reserve for HUBZone small business concerns under a multiple-award
contract).
(4) For a procurement conducted using full and open competition
with a HUBZone price evaluation preference, whether the protester's
opportunity for award was affected by the preference.
(5) For a HUBZone set-aside, whether the protester submitted an
offer.
(6) Whether the protested concern was the apparent successful
offeror.
(7) Whether the procurement was conducted using sealed bid or
negotiated procedures.
(8) The bid opening date, if applicable.
(9) The date the protester was notified of the apparent successful
offeror.
(10) The date the contracting officer received the protest.
(11) The date the protested concern submitted its initial offer or
quote to the contracting officer.
(12) Whether a contract has been awarded, and if so, the date of
award and contract number.
* * * * *
(h) * * *
(1) * * *
(ii) Award the contract if--
(A) SBA does not issue its decision within 15 business days after
receipt of the protest; and
(B) The contracting officer determines in writing that there is an
immediate need to award the contract and that waiting for SBA's
determination will be disadvantageous to the Government.
* * * * *
(i) * * *
(1) * * *. If the AA/GC&BD subsequently overturns the initial
determination or dismissal, the contracting officer may apply the AA/
GC&BD decision to the procurement in question.
* * * * *
(3) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) of this section, awarded the contract, and
the Director of SBA's Office of the HUBZone Program's ruling sustaining
the protest is received after award--
(i) The contracting officer shall either--
(A) Terminate the contract; or
(B)(1) Make a written determination that termination is not in the
best interests of the Government; and
(2) Not exercise any options or award further task or delivery
orders under the contract;
[[Page 31473]]
(ii) SBA will remove the concern's designation as a certified
HUBZone small business concern in the Dynamic Small Business Search
(DSBS). The concern is not permitted to submit an offer as a HUBZone
small business concern, until SBA issues a decision that the
ineligibility is resolved; and
(iii) After SBA updates the concern's designation as a HUBZone
small business in DSBS, the contracting officer shall update the
Federal Procurement Data System (FPDS) to reflect the final decision of
the HUBZone Program Director if no appeal is filed.
* * * * *
(5) If the AA/GC&BD affirms the decision of the HUBZone Program
Director, finding the protested concern is ineligible, and contract
award has occurred--
(i) The contracting officer shall either--
(A) Terminate the contract; or
(B)(1) Make a written determination that termination is not in the
best interests of the Government; and
(2) Not exercise any options or award further task or delivery
orders under the contract;
(ii) SBA will remove the concern's designation as a certified
HUBZone small business concern in DSBS. The concern is not permitted to
submit an offer as a HUBZone small business concern until SBA issues a
decision that the ineligibility is resolved or the AA/GC&BD finds the
concern is eligible on appeal; and
(iii) After SBA updates the concern's designation as a HUBZone
small business in DSBS, the contracting officer shall update FPDS to
reflect the AA/GC&BD decision.
* * * * *
0
9. Amend section 19.703 by revising paragraph (d)(1) to read as
follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(d)(1) Contractors are required to confirm that a subcontractor
representing itself as a HUBZone small business concern is certified by
SBA as a HUBZone small business concern by accessing SAM or the Dynamic
Small Business Search (DSBS) at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm.
* * * * *
19.1302 [Removed and Reserved]
0
10. Remove and reserve section 19.1302.
0
11. Amend section 19.1303 by revising paragraphs (b) and (d) to read as
follows:
19.1303 Status as a HUBZone small business concern.
* * * * *
(b) If SBA determines that a concern is a HUBZone small business,
it will designate the concern as a HUBZone small business in the
Dynamic Small Business Search (DSBS) at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm. SBA's designation also appears in SAM. Only firms
designated in DSBS as HUBZone small business concerns are eligible for
HUBZone preferences. HUBZone preferences are not contingent on the
place of performance.
* * * * *
(d) To be eligible for a HUBZone contract under this section, a
HUBZone small business concern must be a HUBZone small business concern
at the time of its initial offer.
19.1304 [Amended]
0
12. Amend section 19.1304 by removing paragraph (e) and redesignating
paragraph (f) as paragraph (e).
19.1305 [Amended]
0
13. Amend section 19.1305 by--
0
a. Removing from paragraph (a)(3) ``sole source'' and adding ``sole-
source'' in its place;
0
b. Removing from paragraph (c) ``qualified'';
0
c. In paragraph (d)--
0
i. Removing from the introductory text ``, except for acquisitions not
exceeding the simplified acquisition threshold,''; and
0
ii. Removing from paragraph (2) ``acquisition'' and adding
``acquisition until the head of the contracting activity issues a
written decision on the appeal,'' in its place.
0
14. Amend section 19.1306 by--
0
a. Revising the section heading;
0
b. In paragraph (a)--
0
i. Removing from the introductory text ``sole source'' and adding
``sole-source'' in its place;
0
ii. Removing paragraph (4);
0
iii. Redesignating paragraphs (5) and (6) as paragraphs (4) and (5);
and
0
c. Removing from paragraph (b) ``sole source award'' and adding ``sole-
source award (see 13 CFR 126.610)'' in its place.
The revision reads as follows:
19.1306 HUBZone sole-source awards.
* * * * *
19.1309 [Amended]
0
15. Amend section 19.1309 by removing from paragraph (a)(1) ``Sole
Source Award'' and ``sole source basis'' and adding ``Sole-Source
Award'' and ``sole-source basis'' in their places, respectively.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
16. Amend section 52.212-3 by revising the date of the provision and
paragraph (c)(10)(i) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (DATE)
* * * * *
(c) * * *
(10) * * *
(i) It [square] is, [square] is not a HUBZone small business
concern listed, on the date of this representation, as having been
certified by SBA as a HUBZone small business concern in the Dynamic
Small Business Search, and will attempt to maintain (see 13 CFR
126.200(e)) an employment rate of HUBZone residents of 35 percent of
its employees during performance of a HUBZone contract; and
* * * * *
0
17. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(11)(i) ``Sole Source'' and ``(MAR
2020)'' and adding ``Sole-Source'' and ``(DATE)'' in their places,
respectively;
0
c. Removing from paragraph (b)(12)(i) ``(MAR 2020)'' and adding
``(DATE)'' in its place;
0
d. Removing from paragraph (b)(16) ``(OCT 2018)'' and adding ``(DATE)''
in its place;
0
e. Removing from paragraph (b)(17)(i) ``(JUN 2020)'' and adding
``(DATE)'' in its place;
0
f. In paragraph (e)(1)--
0
i. Removing from the introductory text ``of this paragraph''; and
0
ii. Removing from paragraph (v) ``(OCT 2018)'' and adding ``(DATE)'' in
its place;
0
g. In Alternate II--
0
i. Revising the date; and
0
ii. In paragraph (e)(1)(ii)(E) removing ``(OCT 2018)'' and adding
``(DATE)'' in its place.
The revisions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (DATE)
* * * * *
[[Page 31474]]
Alternate II (DATE). * * *
* * * * *
0
18. Amend section 52.213-4 by revising the date of the clause and
removing from paragraph (a)(2)(viii) ``(NOV 2020)'' and adding
``(DATE)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions-Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions-Simplified Acquisitions (Other Than Commercial
Items) (DATE)
* * * * *
0
19. Amend section 52.219-1 by revising the date of the provision and
paragraph (c)(8)(i) to read as follows:
52.219-1 Small Business Program Representations.
* * * * *
Small Business Program Representations (DATE)
* * * * *
(c) * * *
(8) * * *
(i) It [ballot] is, [ballot] is not a HUBZone small business
concern listed, on the date of this representation, as having been
certified by SBA as a HUBZone small business concern in the Dynamic
Small Business Search, and will attempt to maintain (see 13 CFR
126.200(e)) an employment rate of HUBZone residents of 35 percent of
its employees during performance of a HUBZone contract; and
* * * * *
0
20. Amend section 52.219-3 by revising the heading, clause heading and
date; and removing paragraph (g).
The revisions read as follows:
52.219-3 Notice of HUBZone Set-Aside or Sole-Source Award.
* * * * *
Notice of HUBZone Set-Aside or Sole-Source Award (DATE)
* * * * *
0
21. Amend section 52.219-4 by revising the clause heading and date, and
removing paragraph (f).
The revision reads as follows:
52.219-4 Notice of Price Evaluation Preference for HUBZone Small
Business Concerns.
* * * * *
Notice of Price Evaluation Preference for HUBZone Small Business
Concerns (DATE)
* * * * *
0
22. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), revising the definition ``HUBZone small business
concern''; and
0
c. Revising paragraph (d)(5).
The revisions read as follows:
52.219-8 Utilization of Small Business Concerns.
* * * * *
Utilization of Small Business Concerns (DATE)
(a) * * *
HUBZone small business concern means a small business concern that
meets the requirements described in 13 CFR 126.200, certified by the
Small Business Administration (SBA) and designated by SBA as a HUBZone
small business concern in the Dynamic Small Business Search (DSBS).
* * * * *
(d) * * *
(5) The Contractor shall confirm that a subcontractor representing
itself as a HUBZone small business concern is certified by SBA as a
HUBZone small business concern by accessing DSBS at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm or SAM.
* * * * *
0
23. Amend section 52.219-9 by revising the date of clause and paragraph
(e)(4) to read as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
Small Business Subcontracting Plan (DATE)
* * * * *
(e) * * *
(4) Confirm that a subcontractor representing itself as a HUBZone
small business concern is certified by SBA as a HUBZone small business
concern by accessing the Dynamic Small Business Search (DSBS) at
https://web.sba.gov/pro-net/search/dsp_dsbs.cfm or SAM.
* * * * *
0
24. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(vii) ``(Oct 2018)'' and adding
``(DATE)'' in its place.
The revision reads as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
Subcontracts for Commercial Items (DATE)
* * * * *
[FR Doc. 2021-12003 Filed 6-11-21; 8:45 am]
BILLING CODE 6820-EP-P