[Federal Register: September 30, 2005 (Volume 70, Number 189)]
[Rules and Regulations]
[Page 57458-57459]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se05-43]
[[Page 57458]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19 and 52
[FAC 2005-06; FAR Case 2004-036; Item VI]
RIN 9000-AK11
Federal Acquisition Regulation; Addition of Landscaping and Pest
Control Services to the Small Business Competitiveness Demonstration
Program
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed to finalize,
without change, the interim rule published in the Federal Register at
70 FR 11740, March 9, 2005. This rule implements Section 821 of the
Ronald W. Reagan National Defense Authorization Act for Fiscal Year
2005. Section 821 added landscaping and pest control services to the
Small Business Competitiveness Demonstration Program.
DATES: Effective Date: September 30, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Kimberly Marshall, Procurement
Analyst, at (202) 219-0986. Please cite FAC 2005-06, FAR case 2004-036.
SUPPLEMENTARY INFORMATION:
A. Background
This rule finalizes, without change, the interim rule published in
the Federal Register at 70 FR 11740, March 9, 2005. The rule implements
Section 821 of the Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005 (Public Law 108-375). Section 821 amended Section
717 of the Small Business Competitiveness Demonstration Program Act of
1988 (15 U.S.C. 644 note) by adding landscaping and pest control
services to the program. As a result, agencies are precluded from
considering acquisitions for landscaping and pest control services over
the emerging small business reserve, currently $25,000, for small
business set-asides unless the set-asides are needed to meet their
assigned goals.
The Councils published the interim rule in the Federal Register at
70 FR 11740, March 9, 2005, with a request for comments by May 9, 2005.
One respondent submitted a comment in response to the interim rule. The
comment is addressed below.
Comment: The rule should be changed to provide small businesses,
including ``mom and pop'' businesses, the first opportunity to compete
for awards under NAICS codes 561730 and 561710.
Councils' response: The rule implements a statute which added
landscaping and pest control services to the Small Business
Competitiveness Demonstration Program. The Councils have no authority
to change the statute or implementing regulation to make the suggested
change. The Councils note, however, that the rule applies only to
acquisitions over the emerging small business reserve amount which is
currently $25,000. Agencies will continue to set-aside, for emerging
small businesses, acquisitions at or below the emerging small business
reserve amount consistent with the requirements in FAR subparts
19.1007(c). In addition, agencies are allowed to reinstate the small
business set-asides if needed to meet their assigned goals.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., pertains to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been performed. The analysis is summarized as follows:
Final Regulatory Flexibility Analysis
This final rule amends FAR Parts 19 and 52 to implement Section
821 of the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005, Public Law 108-375, which amends Section 717 of
the Small Business Competitiveness Demonstration Program Act of 1988
(15 U.S.C. 644 note). Section 821 provides for the addition of two
North American Industry Classification System (NAICS) codes,
landscaping (561730) and pest control services (561710) to the Small
Business Competitiveness Demonstration Program under the designated
industry groups.
The changes inform the agencies of the new additions to the
Small Business Competitiveness Demonstration Program and also gives
the Contracting Officer the specific ``Emerging small business
reserve amount'' of $25,000 for the designated groups.
The objective of the final rule is to further assess the ability
of small business concerns to compete successfully in certain
industry categories without competition being restricted by the use
of small business set-asides. The implementation of section 821 of
the Ronald W. Reagan National Defense Authorization Act for Fiscal
Year 2005, Public Law 108-375 will change the FAR as follows: (1)
revises the designated industry groups to include Exterminating and
Pest Control Services and Landscaping Services in FAR 19.1002(1) and
19.1005; (2) deletes the word ``four'' before designated industry
groups in the FAR.
There was one comment that addressed the IRFA. The comment is
addressed below:
Comment: The rule should be changed to provide small businesses,
including ``mom and pop'' businesses, the first opportunity to
compete for awards under NAICS codes 561730 and 561710.
Agency's Response: The rule implements a statute which added
landscaping and pest control services to the Small Business
Competitiveness Demonstration Program. The Councils have no
authority to change the statute or implementing regulation to make
the suggested change. The Councils note, however, that the rule
applies only to acquisitions over the emerging small business
reserve amount which is currently $25,000. Agencies will continue to
set-aside, for emerging small businesses, acquisitions at or below
the emerging small business reserve amount consistent with the
requirements in FAR subparts 19.1007(c). In addition, agencies are
allowed to reinstate the small business set-asides if needed to meet
their assigned goals.
The final rule will apply to all small business concerns that
compete on Federal procurements falling under NAICS codes 561730 and
561710. Based on Governmentwide data retrieved from the Federal
Procurement Data System (FPDS) for the specified NAICS codes,
approximately 141 small business concerns were awarded contracts of
$25,000 or more on an unrestricted basis in fiscal year 2002 for
NAICS code 561730. This represents about 88 percent of all contracts
awarded with unrestricted competition for that NAICS code. In fiscal
year 2003 there were 116 contracts awarded to small business
concerns on an unrestricted basis, which represents approximately 81
percent of all contracts awarded with unrestricted competition for
that NAICS codes. FPDS data also show that 25 small business
concerns were awarded contracts of $25,000 or more on an
unrestricted basis in fiscal year 2002 for NAICS code 561710. This
represents about 56 percent of all contracts awarded with
unrestricted competition for that NAICS code. In fiscal year 2003
there were 17 contracts awarded to small business concerns on an
unrestricted basis, which represents approximately 77 percent of all
contracts awarded with unrestricted competition for that NAICS
codes. It is estimated that small business concerns will continue to
be successful in winning at least one-half to three-fourths of
awards on an unrestricted
[[Page 57459]]
basis when these designated industry groups are added to the Small
Business Competitiveness Demonstration Programs given the history of
their success in recent unrestricted competitive Government
acquisitions falling under NAICS codes 561730 and 561710. Additional
data retrieved from FPDS show that the number of small business set-
asides for NAICS code 561730 in fiscal years 2002 and 2003 combined
was approximately 952 and the number of small business set-asides
for NAICS code 561710 in fiscal years 2002 and 2003 combined was
approximately 96. The changes 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, et seq., because
previously set-aside acquisitions for services falling within NAICS
codes 561730 and 561710 will now be included in the designated
industry groups of the Small Business Competitiveness Demonstration
Program. FAR 19.1007(b) states that ``Solicitations for acquisitions
in any of the designated industry groups that have an anticipated
dollar value greater than the emerging small business reserve amount
must not be considered for small business set-asides under FAR 19.5.
However, agencies may reinstate the use of small business set-asides
as necessary to meet their assigned goals, but only within
organizational units that failed to meet the small business
participation goal. Acquisitions in the designated industry groups
must continue to be considered for placement under the 8(a) Program
(see Subpart 19.8), the HUBZone Program (see Subpart 19.13), and the
Service-Disabled Veteran-Owned Small Business Procurement Program
(see Subpart 19.14).'' Given the large number of awards made under
these NAICS codes, it is anticipated that the addition of the two
NAICS codes to the Small Business Competitiveness Demonstration
Program will promote an increased number of opportunities for small
business concerns to develop teaming arrangements and joint
ventures.
The purpose of the Competitiveness Demonstration Program is to
assess the ability of small businesses to compete successfully in
certain industry categories without competition being restricted by
the use of small business set-asides. This portion of the program is
limited to the four designated industry groups listed in FAR 19.1005
and will include the addition of landscaping and pest control
services to the designated industry groups. The final rule imposes
no reporting, recordkeeping, or other compliance requirements.
The final rule does not duplicate, overlap, or conflict with any
other Federal rules. There are no practical alternatives that will
accomplish the objectives of this final rule.
Interested parties may obtain a copy of the FRFA from the FAR
Secretariat. The FAR Secretariat has submitted a copy of the FRFA to
the Chief Counsel for Advocacy of the Small Business Administration.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
List of Subjects in 48 CFR Parts 19 and 52
Government procurement.
Dated: September 22, 2005.
Julia B. Wise,
Director, Contract Policy Division.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR parts 19 and 52, which
was published at 70 FR 11740, March 9, 2005, is adopted as a final rule
without change.
[FR Doc. 05-19473 Filed 9-29-05; 8:45 am]
BILLING CODE 6820-EP-S