[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Rules and Regulations]
[Pages 53751-53753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16659]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 19, and 52

[FAC 2023-05, FAR Case 2023-004, Item II; Docket No. 2023-0004; 
Sequence No. 1]
RIN 9000-AO52


Federal Acquisition Regulation: Small Disadvantaged Business 
Threshold

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement regulatory changes 
made by the Small Business Administration to adjust the net worth 
threshold for owners of small disadvantaged business concerns.

DATES: Effective September 7, 2023.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Carrie Moore, Procurement Analyst, at 571-300-5917, or by email at 
[email protected]. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2023-05, FAR Case 
2023-004.

SUPPLEMENTARY INFORMATION: 

[[Page 53752]]

I. Background

    DoD, GSA, and NASA are amending the FAR to implement regulatory 
changes made by the Small Business Administration (SBA) in its interim 
rule published on November 17, 2022, at 87 FR 69118, which adjusted for 
inflation the net worth threshold for an individual to be eligible as 
an owner of a small disadvantaged business concern from $750,000 to 
$850,000. To do so, this rule updates this threshold to reflect a 
reference to SBA's regulations at 13 CFR 124.104(c)(2), which is used 
in the definition of ``small disadvantaged business concern,'' in the 
FAR. This rule also updates FAR citations to former SBA regulations 13 
CFR 124.1002 through 124.1016, as SBA removed these sections from their 
regulations in a rule published May 8, 2020 (85 FR 27290).

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement 
policy, regulation, procedure, or form (including an amendment or 
modification thereof) must be published for public comment if it 
relates to the expenditure of appropriated funds, and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment 
because it does not change existing acquisition procedures for agencies 
or contractors; instead, this final rule simply revises the FAR to 
align with SBA's regulation by reflecting the increased threshold 
established by SBA in its regulations, and updates obsolete FAR 
citations to certain SBA regulations that no longer exist.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items), or for Commercial Services

    This rule amends the solicitation provisions at FAR 52.212-3 and 
52.219-1, and contract clauses at FAR 52.212-5, 52.213-4, 52.219-8, 
52.219-9, 52.219-28, and 52.244-6. However, this rule does not impose 
any new requirements on contracts valued at or below the SAT, or on 
contracts for commercial products, including COTS items, or commercial 
services. The clauses continue to apply to acquisitions at or below the 
SAT and to acquisitions for commercial products, including COTS items, 
and commercial services.

IV. 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 (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.

V. 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. The Office of Information 
and Regulatory Affairs (OIRA) in the Office of Management and Budget 
has determined that this is not a major rule under 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section II. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are 
not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

VII. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 48 CFR Parts 2, 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 amend 48 CFR parts 2, 19, and 52 as 
set forth below:

0
1. The authority citation for 48 CFR parts 2, 19, and 52 continues to 
read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 2--DEFINITIONS OF WORDS AND TERMS


2.101  [Amended]

0
2. Amend section 2.101, in paragraph (b)(2), in the definition of 
``Small disadvantaged business concern'' by--
0
a. Removing from the introductory text ``13 CFR 124.1002'' and adding 
``13 CFR 124.1001'' in its place; and
0
b. Removing from paragraph (1)(ii) ``$750,000'' and adding ``the 
threshold at 13 CFR 124.104(c)(2)'' in its place.

PART 19--SMALL BUSINESS PROGRAMS


19.301-1  [Amended]

0
3. Amend section 19.301-1 by removing from the third sentence of 
paragraph (h) the phrase ``13 CFR 124.1004 for small disadvantaged 
business, 13 CFR 125.29'' and adding ``13 CFR 128.600'' in its place.


19.304  [Amended]

0
4. Amend section 19.304 by removing from paragraph (c) ``13 CFR 
124.1001(b)'' and adding ``13 CFR 124.1001'' in its place.

0
5. Amend section 19.305 by revising the section heading, introductory 
text, and paragraph (c) to read as follows:


19.305  Reviews of SDB status.

    This section applies to reviews of a small business concern's SDB 
status as a prime contractor or subcontractor.
* * * * *
    (c) An SBA review of a subcontractor's SDB status differs from a 
formal protest. Protests of a concern's size as a prime contractor are 
processed under 19.302. Protests of a concern's size as a subcontractor 
are processed under 19.703(b).


19.703  [Amended]

0
6. Amend section 19.703 by:

[[Page 53753]]

0
a. Removing from paragraph (a)(2)(iv) ``13 CFR 121.411, 124.1015, 
125.29, 126.900, and 127.700'' and adding ``13 CFR 121.411, 126.900, 
127.700, and 128.600'' in its place; and
0
b. Removing paragraph (e).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Amend section 52.212-3 by--
0
a. Revising the date of the provision; and
0
b. In paragraph (a), in the definition of ``Small disadvantaged 
business concern'' by--
0
i. Removing from the introductory text ``13 CFR 124.1002'' and adding 
``13 CFR 124.1001'' in its place; and
0
ii. Removing from paragraph (1)(ii) ``$750,000'' and adding ``the 
threshold at 13 CFR 124.104(c)(2)'' in its place.
    The revision reads as follows:


52.212-3  Offeror Representations and Certifications--Commercial 
Products and Commercial Services.

* * * * *
Offeror Representations and Certifications--Commercial Products and 
Commercial Services (Sep 2023)
* * * * *

0
8. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraphs (b)(17) ``(OCT 2022)'' and adding ``(Sep 
2023)'' in its place;
0
c. Removing from paragraph (b)(18)(i) ``(OCT 2022)'' and adding ``(Sep 
2023)'' in its place;
0
d. Removing from paragraph (b)(18)(v) ``(SEP 2021)'' and adding ``(Sep 
2023)'' in its place;
0
e. Removing from paragraph (b)(23)(i) ``(MAR 2023)'' and adding ``(Sep 
2023)'' in its place;
0
f. Removing from paragraph (e)(1)(vi) ``(OCT 2022)'' and adding ``(Sep 
2023)'' in its place; and
0
g. In Alternate II by--
0
i. Revising the date of the Alternate; and
0
ii. Removing from paragraph (e)(1)(ii)(F) ``(OCT 2022)'' and adding 
``(Sep 2023)'' in its place.
    The revisions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *
Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (Sep 
2023)
* * * * *
Alternate II (Sep 2023) * * *
* * * * *

0
9. Amend section 52.213-4 by:
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(2)(vii) ``(JUN 2023)'' and adding ``(Sep 
2023)'' in its place.
    The revision reads as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (Sep 2023)
* * * * *

0
10. Amend section 52.219-1 by--
0
a. Revising the date of the provision;
0
b. In paragraph (a), in the definition of ``Small disadvantaged 
business concern'' by--
0
i. Removing from the introductory text ``13 CFR 124.1002'' and adding 
``13 CFR 124.1001'' in its place; and
0
ii. Removing from paragraph (1)(ii) ``$750,000'' and adding ``the 
threshold at 13 CFR 124.104(c)(2)'' in its place; and
0
c. Removing from paragraph (c)(2) ``13 CFR 124.1002'' and adding ``13 
CFR 124.1001'' in its place.
    The revision reads as follows:


52.219-1  Small Business Program Representations.

* * * * *
Small Business Program Representations (Sep 2023)
* * * * *

0
11. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), in the definition of ``Small disadvantaged 
business concern'' by--
0
i. Removing from the introductory text ``13 CFR 124.1002'' and adding 
``13 CFR 124.1001'' in its place; and
0
ii. Removing from paragraph (1)(ii) ``$750,000'' and adding ``the 
threshold at 13 CFR 124.104(c)(2)'' in its place; and
0
c. Removing from paragraph (e)(4) ``13 CFR 121.411, 124.1015, 125.29, 
126.900, and 127.700'' and adding ``13 CFR 121.411, 126.900, 127.700, 
and 128.600'' in its place.
    The revision reads as follows:


52.219-8  Utilization of Small Business Concerns.

* * * * *
Utilization of Small Business Concerns (Sep 2023)
* * * * *

0
12. Amend section 52.219-9 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (c)(2)(iv) ``13 CFR 121.411, 124.1015, 
125.29, 126.900, and 127.700'' and adding ``13 CFR 121.411, 126.900, 
127.700, and 128.600'' in its place; and
0
c. In Alternate IV by--
0
i. Revising the date of the alternate; and
0
ii. Removing from paragraph (c)(2)(iv) ``13 CFR 121.411, 124.1015, 
125.29, 126.900, and 127.700'' and adding ``13 CFR 121.411, 126.900, 
127.700, and 128.600'' in its place.
    The revision reads as follows:


52.219-9  Small Business Subcontracting Plan.

* * * * *
Small Business Subcontracting Plan (Sep 2023)
* * * * *
Alternate IV (Sep 2023) * * *
* * * * *

0
13. Amend section 52.219-28 by:
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (h)(2) ``13 CFR 124.1002'' and adding ``13 
CFR 124.1001'' in its place.
    The revision reads as follows:


52.219-28  Post-Award Small Business Program Rerepresentation.

* * * * *
Post-Award Small Business Program Rerepresentation (Sep 2023)
* * * * *

0
14. Amend section 52.244-6 by:
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(viii) ``(OCT 2022)'' and adding 
``(Sep 2023)'' in its place.
    The revision reads as follows:


52.244-6  Subcontracts for Commercial Products and Commercial Services.

* * * * *
Subcontracts for Commercial Products and Commercial Services (Sep 2023)
* * * * *
[FR Doc. 2023-16659 Filed 8-7-23; 8:45 am]
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