[Federal Register: July 26, 2000 (Volume 65, Number 144)]
[Rules and Regulations]
[Page 46053-46055]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy00-42]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 5, 7, 10, 15, and 19
[FAC 97-19; FAR Case 1997-306 (97-306); Item I]
RIN 9000-AI55
Federal Acquisition Regulation; Contract Bundling
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 on a final rule
amending the Federal Acquisition Regulation (FAR) to implement Sections
411-417 of the Small Business Reauthorization Act of 1997. Sections
411-417 amend Title 15 of the United States Code to define ``contract
bundling,'' and to require agencies to avoid unnecessary bundling that
precludes small business participation in the performance of Federal
contracts.
DATES: Effective Date: July 26, 2000.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 97-19, FAR case 1997-306.
[[Page 46054]]
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 64 FR 72441, December 27, 1999. The interim rule is
converted to a final rule, with changes, and amends FAR Parts 2, 4, 5,
7, 10, 15, and 19 to implement Sections 411-417 of the Small Business
Reauthorization Act of 1997, Pub. L. 105-135, and the Small Business
Administration (SBA) interim rule published in the Federal Register at
64 FR 57366, October 25, 1999.
We received comments from six respondents in response to the
interim rule and considered them in drafting the final rule.
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., applies to
this final rule. The Councils prepared a Final Regulatory Flexibility
Analysis (FRFA). The FAR Secretariat has submitted a copy of the FRFA
to the Chief Counsel for Advocacy of the Small Business Administration.
The FRFA is summarized as follows:
This rule amends FAR Parts 2, 4, 5, 7, 10, 15, and 19 to
implement Sections 411-417 of the Small Business Reauthorization Act
of 1997, Pub. L. 105-135. Sections 411-417 amend Title 15 of the
United States Code to define ``contract bundling,'' and to require
agencies to avoid unnecessary bundling that precludes small business
participation in the performance of Federal contracts.
The objective of the rule is to establish agency procedures for
processing bundled requirements and to ensure maximum small business
participation in bundled acquisitions. Agencies must--
Perform market research when bundled requirements are
anticipated;
Justify bundling in acquisition strategies;
Meet specific estimated benefit thresholds before
bundling requirements;
Assess the impact of bundling on small businesses;
Submit solicitations containing bundled requirements to
the Small Business Administration (SBA) procurement center
representatives for review; and
Include, in negotiated competitions for bundled
requirements, a source selection factor for the offerors' proposed
use of small businesses as subcontractors and their past performance
in meeting subcontracting goals.
These objectives are stated in Sections 411-417 of Pub. L. 105-
135 and in SBA's implementing regulations, published in the Federal
Register at 64 FR 57366, October 25, 1999. We published an interim
rule in the Federal Register at 64 FR 72441, December 27, 1999. Six
respondents provided public comments. There are no practical
alternatives that will accomplish the objective of this rule (i.e.,
to ensure maximum participation of small businesses in Federal
contracting as agencies combine requirements in the face of
downsizing and other cost-saving measures). No viable alternatives
were proposed during the public comment period.
Interested parties may obtain a copy of the FRFA from the FAR
Secretariat.
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 2, 5, 7, 10, 15, and 19
Government procurement.
Dated: July 19, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final With Changes
Accordingly, DoD, GSA, and NASA adopt the interim rule amending 48
CFR parts 2, 4, 5, 7, 10, 15, and 19 which was published in the Federal
Register at 64 FR 72441, December 27, 1999, as a final rule with the
following changes:
1. The authority citation for 48 CFR parts 2, 5, 7, 10, 15, and 19
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 by revising the definition ``Bundled
contract'' to read as follows:
2.101 Definitions.
* * * * *
Bundled contract means a contract where the requirements have been
consolidated by bundling. (See the definition of bundling.)
* * * * *
PART 5--PUBLICIZING CONTRACT ACTIONS
3. In section 5.206, revise the introductory text of paragraph (a)
to read as follows:
5.206 Notices of subcontracting opportunities.
(a) The following entities may use a CBD notice to seek competition
for subcontracts, to increase participation by qualified HUBZone small
business, small, small disadvantaged, and small women-owned business
concerns, and to meet established subcontracting plan goals:
* * * * *
PART 7--ACQUISITION PLANNING
4. Amend section 7.107 by revising the section heading and
paragraphs (b)(2) and (h) to read as follows:
7.107 Additional requirements for acquisitions involving bundling.
* * * * *
(b) * * *
(2) Five percent of the estimated contract value (including
options) or $7.5 million, whichever is greater, if the value exceeds
$75 million.
* * * * *
(h) The requirements of this section, except for paragraph (e), do
not apply if a cost comparison analysis will be performed in accordance
with OMB Circular A-76.
PART 10--MARKET RESEARCH
5. In section 10.001, revise paragraph (c) to read as follows:
10.001 Policy.
* * * * *
(c) If an agency contemplates awarding a bundled contract, the
agency--
(1) When performing market research, should consult with the local
Small Business Administration procurement center representative (PCR)
or, if a PCR is not assigned to the procuring activity, the SBA Office
of Government Contracting Area Office serving the area in which the
procuring activity is located; and
(2) At least 30 days before release of the solicitation--
(i) Must notify any affected incumbent small business concerns of
the Government's intention to bundle the requirement; and
(ii) Should notify any affected incumbent small business concerns
of how the concerns may contact the appropriate Small Business
Administration representative.
PART 15--CONTRACTING BY NEGOTIATION
6. Amend section 15.305 by revising paragraph (a)(5) to read as
follows:
15.305 Proposal evaluation.
(a) * * *
(5) Small business subcontracting evaluation. Solicitations must be
structured to give offers from small
[[Page 46055]]
business concerns the highest rating for the evaluation factors in
15.304(c)(3)(iii) and (c)(5).
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
7. Amend section 19.101 by adding paragraph (g)(5) to read as
follows:
19.101 Explanation of terms.
* * * * *
(g) * * *
(5) Size determination for teaming arrangements. For size
determination purposes, apply the size standard tests in (g)(1)(i) and
(ii) of this section when a teaming arrangement of two or more business
concerns submits an offer, as appropriate.
* * * * *
8. Amend section 19.202-1 by revising paragraph (e)(1)(iii) to read
as follows:
19.202-1 Encouraging small business participation in acquisitions.
* * * * *
(e) * * *
(1) * * *
(iii) The proposed acquisition is for a bundled requirement. (See
10.001(c)(2)(i) for mandatory 30-day notice requirement to incumbent
small business concerns.)
* * * * *
[FR Doc. 00-18668 Filed 7-25-00; 8:45 am]
BILLING CODE 6820-EP-P