Federal Acquisition Regulation; Addition of Landscaping and Pest Control Services to the Small Business Competitiveness Demonstration Program, 57458-57459 [05-19473]
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57458
Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations
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
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCIES:
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.
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:
FOR FURTHER INFORMATION CONTACT:
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
VerDate Aug<31>2005
17:16 Sep 29, 2005
Jkt 205001
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
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
‘‘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 setasides. 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
E:\FR\FM\30SER4.SGM
30SER4
Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations
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.
VerDate Aug<31>2005
17:16 Sep 29, 2005
Jkt 205001
C. Paperwork Reduction Act
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
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.
I
[FR Doc. 05–19473 Filed 9–29–05; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 19 and 28
[FAC 2005–06; FAR Case 2003–029; Item
VII]
RIN 9000–AK01
Federal Acquisition Regulation;
Powers of Attorney for Bid Bonds
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
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 establish that a
copy of an original power of attorney,
including a photocopy or facsimile
copy, when submitted in support of a
bid bond, is sufficient evidence of the
authority to bind the surety. The
authenticity and enforceability of the
power of attorney at the time of the bid
opening will be treated as a matter of
responsibility.
Effective Date: September 30,
2005.
PO 00000
Frm 00013
Fmt 4701
Sfmt 4700
The
FAR Secretariat at (202) 501–4755 for
information pertaining to status or
publication schedules. For clarification
of content, contact Ms. Cecelia L. Davis,
Procurement Analyst, at (202) 219–
0202. Please cite FAC 2005–06, FAR
case 2003–029.
FOR FURTHER INFORMATION CONTACT:
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.
DATES:
57459
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the Federal
Acquisition Regulation to revise the
policy relating to acceptance of copies
of powers of attorney accompanying bid
bonds. There has been a significant level
of controversy surrounding contracting
officers’ decisions regarding the
evaluation of bid bonds and
accompanying powers of attorney.
Since 1999, a series of GAO decisions
has rejected telefaxed as well as
photocopied powers of attorney. The
latest decision from GAO (All Seasons
Construction, Inc., B–291166.2, Dec. 6,
2002) has been interpreted by industry
and procuring agencies to require a
contracting officer to inspect the power
of attorney at bid opening to ascertain
that the signatures are original and
applied after generation of the
documents. This case law has created a
costly and unworkable requirement for
the surety industry and left contracting
officers with an almost impossible
standard to enforce. More recently, on
January 9, 2004, the U.S. Court of
Federal Claims, in Hawaiian Dredging
Construction, Co. v. U.S., 59 Fed. Cl.205
(2004), issued a ruling highlighting that
the FAR does not require an original
signature on the document serving as
evidence of authority to bind the surety.
The court was critical of GAO’s
reasoning in the All Seasons case. In
response to the split between the two
bid protest fora and the quandary shared
by industry and government in
implementing a workable standard to be
applied at bid opening, the Councils
agreed to a revision to FAR part 28 that
would remove the matter of authenticity
and enforceability of powers of attorney
from a contracting officer’s
responsiveness determination, which is
based solely on documents available at
the time of bid opening. Instead, the
rule instructs contracting officers to
address these issues after bid opening as
a matter of responsibility.
DoD, GSA, and NASA published a
proposed rule in the Federal Register at
69 FR 51936, August 23, 2004, and 46
public comments were received. A
resolution of the public comments
follows:
E:\FR\FM\30SER4.SGM
30SER4
]]>Agencies
[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57458-57459]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19473]
[[Page 57458]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
