[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Rules and Regulations]
[Pages 21431-21432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05977]



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 Rules and Regulations
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  Federal Register / Vol. 89, No. 61 / Thursday, March 28, 2024 / Rules 
and Regulations  

[[Page 21431]]



SMALL BUSINESS ADMINISTRATION

13 CFR Part 125

RIN 3245-AH70


Ownership and Control and Contractual Assistance Requirement for 
the 8(a) Business Development Program; Correction

AGENCY: Small Business Administration.

ACTION: Correcting amendment.

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

SUMMARY: This document corrects a technical error in the definition of 
substantial bundling that appeared in the Federal Register on April 27, 
2023, a final rule entitled, ``Ownership and Control and Contractual 
Assistance Requirements for the 8(a) Business Development Program.'' 
The definition of substantial bundling, as it relates to Blanket 
Purchase Agreements (BPAs), improperly limited substantial bundling to 
BPAs entered against a U.S. General Services Administration (GSA) 
Schedule Contract. This notice removes that limitation so that the 
definition of substantial bundling applies to all BPAs and not only 
BPAs entered against GSA Schedule Contracts.

DATES: Effective March 28, 2024.

FOR FURTHER INFORMATION CONTACT: Sam Le at (202) 619-1789 or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Summary of Errors

    This technical correction amends the definition of substantial 
bundling in the U.S. Small Business Administration's (SBA's) 
regulations at 13 Code of Federal Regulations (CFR) 125.1. The 
definition of substantial bundling, as previously published on page 
26210 of FR Doc. 2023-07855, mistakenly limited the scope of 
substantial bundling, with respect to BPAs, to apply only to BPAs 
entered against GSA Schedule Contracts, as authorized by Federal 
Acquisition Regulations (FAR) subpart 8.4. BPAs, however, may be 
entered in other contexts aside from GSA Schedule Contracts, including 
as authorized by simplified acquisition procedures at section 13.303 of 
the FAR.
    The SBA did not intend to limit the application of the substantial 
bundling definition only to BPAs entered against GSA Schedule 
Contracts. This is clear from the preamble to SBA's final rule, 
published at pages 26188-26189 of 88 FR 26164, which reads, ``SBA 
agrees that the consolidation and bundling requirements should apply to 
BPAs established with more than one supplier or a single firm and to 
both BPAs established under FAR Part 8 or Part 13 procedures.'' 
Furthermore, the definition of bundling, as defined in the same final 
rule that is at issue, applies to BPAs without any specification for 
whether those BPAs are issued against a GSA Schedule contract or in 
accordance with simplified acquisition procedures. Based on the clear 
intent in the preamble and the already established definition of 
bundling, SBA amends the definition of substantial bundling to remove 
the reference to GSA Schedule contracts for BPAs impacted by 
substantial bundling.

II. Waiver of Proposed Rulemaking and Waiver of the Delay in Effective 
Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 551, et 
seq.), while a notice of proposed rulemaking and an opportunity for 
public comment is generally required before the promulgation of 
regulations, this is not required when an agency, for good cause, finds 
that notice and public comment are impracticable, unnecessary, or 
contrary to the public interest and incorporates a statement of the 
reasons for that finding in the document. The APA also generally 
requires that a final rule be effective no sooner than 30 days after 
the date of publication in the Federal Register, though an agency may 
also waive this requirement for good cause found.
    Sections 553(b)(B) and 553(d)(3) of the APA provide the exceptions 
from the APA notice and comment and delay in effective date 
requirements. Section 553(b)(B) of the APA authorizes an agency to 
dispense with normal notice and comment rulemaking procedures when the 
agency finds, for good cause, that the notice and comment process is 
impracticable, unnecessary, or contrary to the public interest. 
Additionally, the agency must state that conclusion and the supporting 
rationale in the rule. Similarly, section 553(d)(3) of the APA allows 
the agency to waive the 30-day delay in effective date where good cause 
is found and the agency includes that conclusion and the supporting 
rationale in the rule.
    The SBA is publishing this technical correction without advance 
notice or an opportunity for comment because it falls under the ``good 
cause'' exception of the APA, 5 U.S.C. 553(b)(B). This document 
corrects technical errors made in the final rule, which was published 
in accordance with the APA after the SBA proposed the rule and provided 
the public with an opportunity to comment on the proposal. The 
correction contained in this document does not make any substantive 
changes to the policies adopted in the final rule and explained in the 
preamble. This document makes a technical correction within the 
regulation text to align the definition of substantial bundling with 
the already published definition of bundling and for consistency with 
the policy discussion of the substantial bundling definition in the 
preamble to the final rule. The policy discussion explained that the 
substantial bundling definition would apply to all BPAs and not just 
those awarded against GSA Schedule Contracts, as supported by the 
public comments received. Therefore, the SBA finds good cause to 
conclude that it is impracticable, unnecessary, and contrary to the 
public interest to undertake further notice and comment procedures to 
incorporate this correction.
    The SBA is also waiving the 30-day delay in effective date for this 
correction. It is in the public interest to ensure that the final rules 
setting forth the definition of substantial bundling be accurate so 
that agencies and small businesses are aware of when a procurement 
action falls within that definition such that the agency prepares the 
necessary justification and completes the required analyses and 
assessments to maximize small business participation to the extent 
possible. If the definition of substantial bundling remains improperly 
limited in its application due to the technical oversight in the 
definition, there is potential for small businesses to lose the 
opportunity to protest procurement actions that were not properly 
documented to support substantial

[[Page 21432]]

bundling. The SBA finds that delaying the effective date of this 
correction would be contrary to the public interest. In doing so, the 
SBA finds good cause to waive the 30-day delay in the effective date.

List of Subjects in 13 CFR Part 125

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

    For the reasons stated above, 13 CFR part 125 is corrected by 
making the following correcting amendments:

PART 125--GOVERNMENT CONTRACTING PROGRAMS

0
1. The authority citation for part 125 continues to read as follows:

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


0
2. Amend Sec.  125.1 by revising the definition of ``Substantial 
bundling'' to read as follows:


Sec.  125.1  What definitions are important to SBA's Government 
Contracting Programs?

* * * * *
    Substantial bundling means any bundling that meets or exceeds the 
following dollar amounts (if the acquisition strategy contemplates 
multiple award contracts, orders placed under unrestricted multiple 
award contracts, or a Blanket Purchase Agreement or a task or delivery 
order contract awarded by another agency, these thresholds apply to the 
cumulative estimated value of the Multiple Award Contracts, orders, or 
Blanket Purchase Agreement, including options):
    (1) $8.0 million or more for the Department of Defense;
    (2) $6.0 million or more for the National Aeronautics and Space 
Administration, the General Services Administration, and the Department 
of Energy; and
    (3) $2.5 million or more for all other agencies.

Larry Stubblefield,
Deputy Associate Administrator, Office of Government Contracting and 
Business Development.
[FR Doc. 2024-05977 Filed 3-27-24; 8:45 am]
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