Defense Federal Acquisition Regulation Supplement; Socioeconomic Programs, 19038-19039 [05-7092]

Agencies

• DEPARTMENT OF DEFENSE

[Federal Register Volume 70, Number 69 (Tuesday, April 12, 2005)]
[Proposed Rules]
[Pages 19038-19039]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7092]


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DEPARTMENT OF DEFENSE

48 CFR Parts 205, 226, and 252

[DFARS Case 2003-D029]


Defense Federal Acquisition Regulation Supplement; Socioeconomic 
Programs

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to update text pertaining to 
socioeconomic considerations in DoD contracting. This proposed rule is 
a result of a transformation initiative undertaken by DoD to 
dramatically change the purpose and content of the DFARS.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 13, 2005, to be considered in 
the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D029, 
using any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    [cir] Defense Acquisition Regulations Web Site: https://
emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for 
submitting comments.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2003-D029 in the 
subject line of the message.
    [cir] Fax: (703) 602-0350.
    [cir] Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Debbie Tronic, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
    [cir] Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to https://
emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Debbie Tronic, (703) 602-0289.

SUPPLEMENTARY INFORMATION:

A. Background

    DFARS Transformation is a major DoD initiative to dramatically 
change the purpose and content of the DFARS. The objective is to 
improve the efficiency and effectiveness of the acquisition process, 
while allowing the acquisition workforce the flexibility to innovate. 
The transformed DFARS will contain only requirements of law, DoD-wide 
policies, delegations of FAR authorities, deviations from FAR 
requirements, and policies/procedures that have a significant effect 
beyond the internal operating procedures of DoD or a significant cost 
or administrative impact on contractors or offerors. Additional 
information on the DFARS Transformation initiative is available at 
https://www.acq.osd.mil/dpap/dfars/transf.htm.
    This proposed rule is a result of the DFARS Transformation 
initiative.
    The proposed changes--
    [cir] Delete text at DFARS 226.103 containing internal DoD 
procedures for funding of incentive payments to contractors under the 
clause at 252.226-7001, Utilization of Indian Organizations, Indian-
Owned Economic Enterprises, and Native Hawaiian Small Business 
Concerns. This text will be relocated to the new DFARS companion 
resource, Procedures, Guidance, and Information (PGI), available at 
https://www.acq.osd.mil/dpap/dars/pgi.
    [cir] Relocate text on contracting with historically black colleges 
and universities and minority institutions (HBCU/MI) from DFARS Subpart 
226.70 to Subpart 226.3, for consistency with the location of FAR 
policy on this subject. The relocated text is substantially unchanged, 
but excludes information on HBCU/MI percentage goals and infrastructure 
assistance (presently at DFARS 226.7000 and 226.7002) that is 
considered unnecessary for inclusion in the DFARS.
    [cir] Delete DFARS Subpart 226.72, Base Closures and Realignments, 
as the text in this subpart unnecessarily duplicates text found 
elsewhere in the DFARS.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to 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 the rule 
makes no significant change to DoD contracting policy. Therefore, DoD 
has not performed an initial regulatory flexibility analysis. DoD 
invites comments from small businesses and other interested parties. 
DoD also will consider comments from small entities concerning the 
affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments 
should be submitted separately and should cite DFARS Case 2003-D029.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any 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 205, 226, and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
    Therefore, DoD proposes to amend 48 CFR Parts 205, 226, and 252 as 
follows:
    1. The authority citation for 48 CFR Parts 205, 226, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 205--PUBLICIZING CONTRACT ACTIONS


205.207  [Amended]

    2. Section 205.207 is amended in paragraph (d)(i) introductory text 
by removing ``226.7003'' and adding in its place ``226.370''.

PART 226--OTHER SOCIOECONOMIC PROGRAMS

    3. Section 226.103 is revised to read as follows:


226.103  Procedures.

    Follow the procedures at PGI 226.103 when submitting a request for 
funding of an Indian incentive.
    4. Subpart 226.3 is added to read as follows:

Subpart 226.3--Historically Black Colleges and Universities and 
Minority Institutions

Sec.
226.370 Contracting with historically black colleges and 
universities and minority institutions.
226.370-1 General.
226.370-2 Definitions.
226.370-3 Policy.
226.370-4 Set-aside criteria.
226.370-5 Set-aside procedures.
226.370-6 Eligibility for award.
226.370-7 Protesting a representation.
226.370-8 Goals and incentives for subcontracting with HBCU/MIs.
226.370-9 Solicitation provision and contract clause.

[[Page 19039]]

226.370  Contracting with historically black colleges and universities 
and minority institutions.


226.370-1  General.

    This section implements the historically black college and 
university (HBCU) and minority institution (MI) provisions of 10 U.S.C. 
2323.


226.370-2  Definitions.

    Definitions of HBCUs and MIs are in the clause at 252.226-7000, 
Notice of Historically Black College or University and Minority 
Institution Set-Aside.


226.370-3  Policy.

    DoD will use outreach efforts, technical assistance programs, 
advance payments, HBCU/MI set-asides, and evaluation preferences to 
meet its contract and subcontract goals for use of HBCUs and MIs.


226.370-4  Set-aside criteria.

    Set aside acquisitions for exclusive HBCU and MI participation when 
the acquisition is for research, studies, or services of the type 
normally acquired from higher educational institutions and there is a 
reasonable expectation that--
    (a) Offers will be submitted by at least two responsible HBCUs or 
MIs that can comply with the subcontracting limitations in the clause 
at FAR 52.219-14, Limitations on Subcontracting;
    (b) Award will be made at not more than 10 percent above fair 
market price; and
    (c) Scientific or technological talent consistent with the demands 
of the acquisition will be offered.


226.370-5  Set-aside procedures.

    (a) As a general rule, use competitive negotiation for HBCU/MI set-
asides.
    (b) When using a broad agency announcement (FAR 35.016) for basic 
or applied research, make partial set-asides for HBCU/MIs as explained 
in 235.016.
    (c) Follow the special synopsis instructions in 205.207(d). 
Interested
    HBCU/MIs must provide evidence of their capability to perform the 
contract, and a positive statement of their eligibility, within 15 days 
of publication of the synopsis in order for the acquisition to proceed 
as an HBCU/MI set-aside.
    (d) Cancel the set-aside if the low responsible offer exceeds the 
fair market price (defined in FAR Part 19) by more than 10 percent.


226.370-6  Eligibility for award.

    (a) To be eligible for award as an HBCU or MI under the preference 
procedures of this subpart, an offeror must--
    (1) Be an HBCU or MI, as defined in the clause at 252.226-7000, 
Notice of Historically Black College or University and Minority 
Institution Set-Aside, at the time of submission of its initial offer 
including price; and
    (2) Provide the contracting officer with evidence of its HBCU or MI 
status upon request.
    (b) The contracting officer shall accept an offeror's HBCU or MI 
status under the provision at FAR 52.226-2, Historically Black College 
or University and Minority Institution Representation, unless--
    (1) Another offeror challenges the status; or
    (2) The contracting officer has reason to question the offeror's 
HBCU/MI status. (A list of HBCU/MIs is published periodically by the 
Department of Education.)


226.370-7  Protesting a representation.

    Any offeror or other interested party may challenge an offeror's 
HBCU or MI representation by filing a protest with the contracting 
officer. The protest must contain specific detailed evidence supporting 
the basis for the challenge. Such protests are handled in accordance 
with FAR 33.103 and are decided by the contracting officer.


226.370-8  Goals and incentives for subcontracting with HBCU/MIs.

    (a) In reviewing subcontracting plans submitted under the clause at 
FAR 52.219-9, Small Business Subcontracting Plan, the contracting 
officer shall--
    (1) Ensure that the contractor included anticipated awards to HBCU/
MIs in the small disadvantaged business goal; and
    (2) Consider whether subcontracts are contemplated that involve 
research or studies of the type normally performed by higher 
educational institutions.
    (b) The contracting officer may, when contracting by negotiation, 
use in solicitations and contracts a clause similar to the clause at 
FAR 52.219-10, Incentive Subcontracting Program, when a subcontracting 
plan is required and inclusion of a monetary incentive is, in the 
judgment of the contracting officer, necessary to increase 
subcontracting opportunities for HBCU/MIs. The clause should include a 
separate goal for HBCU/MIs.


226.370-9  Solicitation provision and contract clause.

    (a) Use the clause at 252.226-7000, Notice of Historically Black 
College or University and Minority Institution Set-Aside, in 
solicitations and contracts set aside for HBCU/MIs.
    (b) Use the provision at FAR 52.226-2, Historically Black College 
or University and Minority Institution Representation, in solicitations 
set aside for HBCU/MIs.

Subpart 226.70--[Removed and Reserved]

    5. Subpart 226.70 is removed and reserved.

Subpart 226.72--[Removed]

    6. Subpart 226.72 is removed.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.226-7000  [Amended]

    7. Section 252.226-7000 is amended in the introductory text by 
removing ``226.7008'' and adding in its place ``226.370-9''.
[FR Doc. 05-7092 Filed 4-11-05; 8:45 am]
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