Federal Acquisition Regulation; FAR Case 2004-017, Small Business Credit for Alaska Native Corporations and Indian Tribes, 46345-46357 [07-3798]
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Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations
18.204
Resources.
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(b) OFPP Guidelines. The Office of
Federal Procurement Policy (OFPP)
‘‘Emergency Acquisitions Guide’’ is
available at https://www.whitehouse.gov/
omb/procurement/guides/
emergencylacquisitionslguide.pdf.
[FR Doc. 07–3797 Filed 8–16–07; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 19, 52, and 53
[FAC 2005–19; FAR Case 2004–017; Item
VII; Docket 2007–001; Sequence 6]
RIN 9000–AK18
Federal Acquisition Regulation; FAR
Case 2004–017, Small Business Credit
for Alaska Native Corporations and
Indian Tribes
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 on a final rule
amending the Federal Acquisition
Regulation (FAR) to implement section
702 of the Emergency Supplemental
Act, 2002, as amended by section 3003
of the 2002 Supplemental
Appropriations Act for Further
Recovery From and Response to
Terrorist Attacks on the United States.
The law permits subcontracts awarded
to Alaska Native Corporations (ANCs)
and Indian tribes to be counted towards
a contractor’s goals for subcontracting
with small business (SB) and small
disadvantaged business (SDB) concerns.
DATES: Effective Date: September 17,
2007.
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FOR FURTHER INFORMATION CONTACT:
Contact Ms. Rhonda Cundiff,
Procurement Analyst, at (202) 501–
0044, for clarification of content. For
information pertaining to status or
publication schedules, contact the FAR
Secretariat at (202) 501–4755. Please
cite FAC 2005–19, FAR case 2004–017.
SUPPLEMENTARY INFORMATION:
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A. Background
Section 702 of the Emergency
Supplemental Act, 2002 (Public Law
107–117), as amended by section 3003
of the 2002 Supplemental
Appropriations Act for Further
Recovery From and Response to
Terrorist Attacks on the United States
(Public Law 107–206)(43 U.S.C. 1626),
provides that subcontracts awarded to
ANCs that are considered a minority
and economically disadvantaged
concern under the criteria at 43 U.S.C.
1626(e)(1), and any of their direct and
indirect subsidiary corporations, joint
ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2),
shall be counted towards the
satisfaction of a contractor’s goal for
subcontracting with SB and SDB
concerns. The law also provides that
subcontracts awarded to Indian tribes
that are recognized by the Bureau of
Indian Affairs in accordance with 25
U.S.C. 1452(c), and Indian-owned
economic enterprises that meet the
requirements of 25 U.S.C. 1452(e), may
be counted towards the satisfaction of a
contractor’s goal for subcontracting with
SB and SDB concerns. Such credit is
taken even where the ANC or Indian
tribe may be ‘‘other than small’’ under
the Small Business Administration
(SBA) regulations.
In addition, section 3003 provides
that where lower-tier subcontracts exist,
the ANC or Indian tribe shall designate
the appropriate contractor or contractors
to receive credit towards their SB and
SDB subcontracting goals. Accordingly,
the rule requires that, where one or
more subcontractors are in the
subcontract tier between the prime
contractor and the ANC or Indian tribe,
the ANC or Indian tribe shall designate
the appropriate contractor(s) to count
the subcontract towards its SB and SDB
subcontracting goals. In most cases, the
appropriate contractor is the contractor
that awarded the subcontract to the
ANC or Indian tribe. To help avoid
possible double counting, the rule
requires the ANC or Indian tribe to
provide a copy of its written designation
to the contracting officer, the prime
contractor, and any subcontractors
between the prime contractor and ANC
or Indian tribe within 30 days of date of
award to the ANC or Indian tribe. If the
contracting officer does not receive a
copy of the ANC or Indian tribe’s
written designation within 30 days of
the subcontract award, the contractor
that awarded the subcontract to the
ANC or Indian tribe will be considered
the designated contractor.
The law does not require the ANC or
Indian tribe to be eligible for SDB or 8(a)
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certification. Similarly, the law does not
provide for contractors to count
subcontracts awarded to such an entity
toward the evaluation of the extent of
the participation of SDB concerns in the
performance of certain North American
Industry Classification System (NAICS)
Industry codes unless the entity is
certified as an SDB by SBA (FAR
Subpart 19.12).
The Councils initially interpreted
section 702 of Public Law 107–117, as
amended by section 3003 of Public Law
107–206, to allow Indian tribes to be
counted towards a contractor’s goal for
subcontracting with SB concerns but not
SDB concerns. Upon further
consideration, the Councils believe their
initial interpretation was incorrect.
Nothing in the plain language of the
statute or the legislative history
indicates that Congress intended to treat
Indian tribes differently than ANCs. In
addition, the Councils believe
interpreting the statute to treat Indian
tribes differently contradicts the intent
of other laws (e.g., Small Business Act
and Technical Corrections Act of 1994
(Public Law 103–263)) and longstanding
Government policy that attempts to
eliminate distinctions between the
various Indian tribes, including ANCs
and Indian-owned economic
enterprises. Therefore, the rule allows
Indian tribes to also be counted as SDBs.
In addition, the Councils initially
interpreted the statute to allow certain
entities owned and controlled by ANCs
to also be counted towards a
contractor’s goal for subcontracting with
SB and SDB concerns but did not
believe the statute authorized entities
owned and controlled by Indian tribes
to be counted towards a contractor’s
goal for subcontracting with SB and
SDB concerns. Upon further
consideration, the Councils believe their
initial interpretation was also incorrect.
Section 16 of the Indian Reorganization
Act of 1934 (25 U.S.C. 476), as
amended, prohibits departments or
agencies from promulgating any
regulation or making any decision or
determination that classifies, enhances,
or diminishes the privileges and
immunities available to an Indian tribe
relative to other federally recognized
tribes. Excluding entities owned and
controlled by Indian tribes from the
treatment afforded by section 702 of
Public Law 107–117, as amended by
section 3003 of Public Law 107–206 (43
U.S.C. 1626) to other federally
recognized tribes diminishes the
privileges available to entities owned
and controlled by Indian tribes and
enhances the privileges available to
entities owned and controlled by ANCs.
Therefore, the rule provides the same
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treatment for entities owned and
controlled by Indian tribes.
DoD, GSA, and NASA published a
proposed rule in the Federal Register at
70 FR 32553, June 3, 2005. Twenty-eight
respondents submitted comments on the
proposed rule which are discussed
below.
a. Comment: Excluding Indian-owned
economic enterprises contradicts the
congressional intent underlying a
plethora of laws and regulations
generally applicable to tribes and
Indian-owned economic enterprises.
Distinguishing Indian-owned economic
enterprises from Indian tribes is a
departure from longstanding
Government policy which consistently
recognizes the practical necessity of
tribes operating Indian-owned economic
enterprises. Indian tribes only perform
contracts through their legally distinct
Indian-owned economic enterprises.
Excluding these Indian-owned
economic enterprises provides little
productive assistance to Indian tribes.
Response: Section 16 of the Indian
Reorganization Act of 1934 (25 U.S.C.
476), as amended, prohibits
departments or agencies from
promulgating any regulation or making
any decision or determination that
classifies, enhances, or diminishes the
privileges and immunities available to
an Indian tribe relative to other federally
recognized tribes. Excluding Indianowned economic enterprises from the
treatment afforded by section 702 of
Public Law 107–117, as amended by
section 3003 of Public Law 107–206 (43
U.S.C. 1626) to other federally
recognized tribes diminishes the
privileges available to Indian-owned
economic enterprises and enhances the
privileges available to ANCs direct and
indirect subsidiary corporations, joint
ventures, and partnerships. The rule
was revised to provide the same
treatment for Indian-owned economic
enterprises.
b. Comment: Allow Indian tribes and
Indian-owned economic enterprises to
be counted as SB or SDB like ANCs.
Congress and the SBA have consistently
provided ANC, Indian tribes, and
entities they own and operate with
comparable standing. Nothing in the
statute suggests Congress intended to
provide less help to Indian tribes.
Response: Nothing in the plain
language of the statute or the legislative
history indicates that Congress intended
to treat Indian tribes differently than
ANCs. Interpreting the statute to
provide a different treatment for Indian
tribes contradicts the intent of
provisions of other laws (e.g., Small
Business Act, Technical Corrections Act
of 1994) and longstanding Government
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policy that attempts to eliminate
distinctions between the various Indian
tribes, including ANCs and Indianowned economic enterprises. The rule
was revised to also allow Indian tribes
to be counted as SDBs.
c. Comment: The rule says the
contractor awarding the subcontract is,
in most cases, the appropriate contractor
to count the subcontract towards its SB
or SDB goals. However, the rule does
not provide any guidelines or criteria for
determining when it might be
appropriate to designate the award to a
contractor other than the contractor
awarding the subcontract. Recommend
the Councils establish guidelines and
criteria to ensure consistent and
equitable decision making on the part of
ANCs and Indian tribes.
Response: Neither the statute nor the
legislative history addresses when it
might be appropriate to designate the
credit to a contractor other than the
contractor awarding the subcontract and
the Councils are unaware of specific
situations where it would be
appropriate to do so. However, the
language of the statute is clear and
unambiguous on this point by stating
‘‘where lower tier subcontractors exist,
the entity shall designate the
appropriate contractor or contractors to
receive such credit.’’ The Councils
invited industry to comment on the
feasibility of the proposed approach and
any alternatives for complying with the
law. No alternatives were identified. In
accordance with the statute, the final
rule requires the ANC or Indian Tribe to
designate the contractor or contractors
to receive credit for the award.
d. Comment: Identify the mechanism
the ANCs and Indian tribes will use to
communicate the contractor or
contractors that have been designated to
receive the small business and/or small
disadvantaged business credit. Address
whether the designated contractor or
contractors are required to retain the
designation document in their
procurement records.
Response: The rule was revised to
require the ANC or Indian tribe to
provide copies of the written
designation(s) to the contracting officer,
prime contractor, and any
subcontractors between the prime
contractor and ANC or Indian tribe
within 30 days of date of award to the
ANC or Indian tribe. If the contracting
officer does not receive a copy of the
ANC or Indian tribe’s written
designation within 30 days of the
subcontract award, the contractor that
awarded the subcontract to the ANC or
Indian tribe will be considered the
designated contractor.
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e. Comment: The instructions on the
proposed Standard Forms (SF) 294 and
295 are ambiguous because the forms
show inclusion of ANCs and Indian
tribes in the HUBZone category but the
language in the proposed rule makes no
reference to this provision.
Response: SFs 294 and 295 have been
revised and no longer include ANCs and
Indian tribes in the HUBZone category.
f. Comment: The rule allows large
ANCs and Indian tribes to be included
in both the SB and Large Business (LB)
concerns categories on SFs 294 and 295.
This will distort the contractor’s total
subcontracting base dollars since ‘‘total’’
is calculated as ‘‘SB’’ plus ‘‘LB.’’ Also,
the performance percentages for the
other subcategories of SB (e.g. servicedisabled veteran-owned small business)
will be negatively impacted because
these figures are stated as a percentage
of ‘‘total’’. Recommend that subcontract
awards to large ANCs and Indian tribes
be excluded from the LB category.
Response: The Councils revised SFs
294 and 295 to address this issue.
g. Comment: Allow contractors to take
credit for awards to entities that obtain
their ANC or federally-recognized tribal
status in the middle of a Government
reporting cycle.
Response: The entity’s status at the
time of subcontract award is the status
to be reported in subsequent periods
consistent with the treatment for
reporting any other subcontract award.
h. Comment: In collaboration with the
Bureau of Indian Affairs, develop a
single source that identifies ANCs,
Indian tribes, and Indian-owned
economic enterprises to help industry
locate the entities. In the interim,
modify the Central Contractor
Registration (CCR) database to capture
these additional supplier designations.
Response: The Team believes industry
can easily locate these entities using
market research. In addition, the CCR
database already has the necessary
categories to capture this data under
Native American entities. Vendors can
register as Alaska Native Corporation
Owned Firms, American Indian Owned,
Indian Tribe (Federally Recognized),
Tribally Owned Firms, etc. However,
only prime contractors are required to
be registered in the CCR.
i. Comment: Object to the rule. This
rule is another step toward eliminating
the truly small disadvantaged business
in America. Over the past five years
special legislation has exempted ANCs
and tribally-owned businesses, many of
which are multi-billion dollar
corporations, from the rules that all
other small disadvantaged businesses
must comply with – size standards,
affiliation rules, sole source limits –
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making it difficult to compete with
ANCs and tribally-owned
businesses.This rule will extend the
pattern of ANC dominance to the
subcontracting arena. Treating ANCs
and Indian Tribes as small businesses
when they exceed the size standards for
their applicable NAICS codes does a
grave disservice to other small
businesses that are required to function
as large businesses when they exceed
the size standard. Instead, the
Government should develop new
programs that help these entities
compete with large business. SBA, GSA
and other Government agencies do not
monitor and enforce the regulations that
provide additional benefits to ANCs. As
a result, the benefits extended to ANCs
are commonly abused and exaggerated.
The rule provides additional benefits to
ANCs that the Government is not
prepared to monitor or enforce.
Response: This rule implements
section 702 of Public Law 107–117, as
amended by section 3003 of Public Law
107–206. It permits subcontracts
awarded to certain ANCs and Indian
tribes to be counted towards a
contractor’s SB and SDB goals even
though those businesses may not be
small or certified SDBs. We have
modified SFs 294 and 295 to help
ensure that subcontract award
information is reported.
j. Comment: Restrict the percent of the
SDB goal that can be satisfied by awards
to ANCs to prevent a wholesale takeover
of the SDB subcontracting program by
ANCs.
Response: The statute contained no
such limits. Therefore, the Councils
have no authority to restrict the percent
of the SDB goal that can be satisfied by
awards to ANCs.
k. Comment: Allowing a contractor,
other than the contractor awarding the
subcontract, to receive SB or SDB credit
for awards by one of its lower-tier
subcontractors will be a disincentive to
prime contractor’s outreach efforts.
Response: The statute requires the
ANC or Indian tribe to designate the
appropriate contractor or contractors to
receive credit towards their
subcontracting goals.
l. Comment: The same rule should
apply to Native Hawaiian Organizations
(NHOs), Native Hawaiian-owned small
businesses, Native Hawaiian-owned 8(a)
small disadvantaged businesses and
Native Hawaiian certified 8(a) firms.
Under section 8021 of the 2004
Appropriations Act, NHOs were
afforded the same eligibility for certain
types of non-competitively awarded
contracts as Alaska Native Corporations
and Indian tribally-owned 8(a) firms.
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Response: The statute only addressed
ANC and Indian tribes. Statutory
authority would be required to expand
the authority to Hawaiian entities.
m. Comment: Distinguish the 562 notfor-profit Indian tribes from the 13 forprofit ANCs in the Regulatory
Flexibility Act statement. The 562
federally recognized Indian tribes
formed under the Indian Reorganization
Act, as amended, are all not-for-profit
entities organized under the Federal
Government. An additional 13 regional
ANC established pursuant to the Alaska
Native Claims Settlement Act (ANSCA)
of 1971, as amended, are for-profit
businesses organized under the State of
Alaska laws.
Response: Whether the Indian tribe or
ANC is a not-for-profit entity or a forprofit business does not affect the
implementation of section 702 of Public
Law 107–117.
n. Comment: Require ANCs to provide
the Indian tribe(s) within their region
copies of the Subcontract Report on
Individual Contracts (SF 294) because
the tribes have an interest in ANC
activities within their regions.
Response: The Indian tribes are not a
party to the contracts that require
submission of the SF 294. Therefore, the
Councils lack the authority to require
the ANCs to provide copies of the SF
294 to the Indian tribes.
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),
and it is summarized as follows:
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 the law allows other than SB
Federal contractors to receive SDB and SB
subcontract credit for subcontracts awarded
to Indian tribes and ANCs, regardless of
whether they are a SB or are SDB certified.
SBs and certified SDBs may be adversely
impacted, to the extent that there are Indian
tribes or ANCs that are large businesses and
may now be more likely to be used as
subcontractors or suppliers on Federal
contracts.
Section 702 of Public Law 107–117, as
amended by section 3003 of Public Law 107–
206 (43 U.S.C. 1626) provides that
subcontracts awarded to an ANC that is
considered a minority and economically
disadvantaged concern under the criteria at
43 U.S.C. 1626(e)(1), and any of its direct and
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indirect subsidiary corporations, joint
ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2), or
Indian tribes, and any Indian-owned
economic enterprises meeting the
requirements of 25 U.S.C. 1452 can be
counted towards a contractor’s goal for
subcontracting with SB and SDB concerns.
Such credit can be taken even where the
ANC or Indian tribe may be ‘‘other than
small’’ under the Small Business
Administration (SBA) regulations or is not
certified as an SDB pursuant to SBA’s
regulations.
According to the Department of Interior,
there are approximately 550 Indian tribes and
ANCs. Information was not available on the
number of these entities that were large
business, small business or small
disadvantaged business. One comment
received on the summary of the IRFA that
was in the Federal Register Notice for the
proposed rule was that there are 562 Indian
tribes, some of which are Alaska Native and
all of which are non-profit, and 12 ANCs, all
of which are for profit. No information was
provided in the comment on the number of
Indian tribes or ANCs that are small entities.
The FAR Secretariat has submitted a
copy of the FRFA to the Chief Counsel
for Advocacy of the Small Business
Administration. Interested parties may
obtain a copy from the FAR Secretariat.
The Councils will consider comments
from small entities concerning the
affected FAR Parts in accordance with 5
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C. 610, et seq. (FAC
2005–19, FAR Case 2004–017), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Public
Law 104–13) applies because this final
rule contains information collection
requirements. Accordingly, the FAR
Secretariat will forward a request for
approval of a revision to the information
collection requirements concerning
OMB Clearances 9000–0006 (Standard
Form 294) and 9000–0007 (Standard
Form 295) to the Office of Management
and Budget under 44 U.S.C. 3501, et
seq. Public comments concerning this
request will be invited through a
subsequent Federal Register Notice.
List of Subjects in 48 CFR Parts 19, 52,
and 53
Government procurement.
Dated: July 30, 2007.
Al Matera,
Acting Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 19, 52, and 53 as
set forth below:
I 1. The authority citation for 48 CFR
parts 19, 52, and 53 continues to read
as follows:
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Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PART 19—SMALL BUSINESS
PROGRAMS
2. Amend section 19.701 by adding in
alphabetical order, the definitions
‘‘Alaska Native Corporation (ANC)’’ and
‘‘Indian tribe’’ to read as follows:
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19.701
Definitions.
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Alaska Native Corporation (ANC)
means any Regional Corporation,
Village Corporation, Urban Corporation,
or Group Corporation organized under
the laws of the State of Alaska in
accordance with the Alaska Native
Claims Settlement Act, as amended (43
U.S.C.A. 1601, et seq.) and which is
considered a minority and economically
disadvantaged concern under the
criteria at 43 U.S.C. 1626(e)(1). This
definition also includes ANC direct and
indirect subsidiary corporations, joint
ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2).
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Indian tribe means any Indian tribe,
band, group, pueblo, or community,
including native villages and native
groups (including corporations
organized by Kenai, Juneau, Sitka, and
Kodiak) as defined in the Alaska Native
Claims Settlement Act (43 U.S.C.A.
1601 et seq.), that is recognized by the
Federal Government as eligible for
services from the Bureau of Indian
Affairs in accordance with 25 U.S.C.
1452(c). This definition also includes
Indian-owned economic enterprises that
meet the requirements of 25 U.S.C.
1452(e).
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I 3. Amend section 19.703 in the
introductory text of paragraph (a) by
removing the word ‘‘To’’ and adding
‘‘Except as provided in paragraph (c) of
this section to’’ in its place; by
redesignating paragraph (c) as paragraph
(d); and by adding new paragraph (c) to
read as follows:
19.703 Eligibility requirements for
participating in the program.
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(c)(1) In accordance with 43 U.S.C.
1626, the following procedures apply:
(i) Subcontracts awarded to an ANC
or Indian tribe shall be counted towards
the subcontracting goals for small
business and small disadvantaged
business (SDB) concerns, regardless of
the size or Small Business
Administration certification status of
the ANC or Indian tribe.
(ii) Where one or more subcontractors
are in the subcontract tier between the
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prime contractor and the ANC or Indian
tribe, the ANC or Indian tribe shall
designate the appropriate contractor(s)
to count the subcontract towards its
small business and small disadvantaged
business subcontracting goals.
(A) In most cases, the appropriate
contractor is the contractor that awarded
the subcontract to the ANC or Indian
tribe.
(B) If the ANC or Indian tribe
designates more than one contractor to
count the subcontract toward its goals,
the ANC or Indian tribe shall designate
only a portion of the total subcontract
award to each contractor. The sum of
the amounts designated to various
contractors cannot exceed the total
value of the subcontract.
(C) The ANC or Indian tribe shall give
a copy of the written designation to the
contracting officer, the prime contractor,
and the subcontractors in between the
prime contractor and the ANC or Indian
tribe within 30 days of the date of the
subcontract award.
(D) If the contracting officer does not
receive a copy of the ANC’s or the
Indian tribe’s written designation within
30 days of the subcontract award, the
contractor that awarded the subcontract
to the ANC or Indian tribe will be
considered the designated contractor.
(2) A contractor acting in good faith
may rely on the written representation
of an ANC or an Indian tribe as to the
status of the ANC or Indian tribe unless
an interested party challenges its status
or the contracting officer has
independent reason to question its
status. In the event of a challenge of a
representation of an ANC or Indian
tribe, the interested parties shall follow
the procedures at 26.103(b) through (e).
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I 4. Amend section 19.704 by revising
paragraphs (a)(1), (a)(2), (a)(3), and (a)(6)
to read as follows:
disadvantaged business (including
ANCs and Indian tribes) and womenowned small business concerns;
(3) A description of the principal
types of supplies and services to be
subcontracted and an identification of
types planned for subcontracting to
small business (including ANCs and
Indian tribes), veteran-owned small
business, service-disabled veteranowned small business, HUBZone small
business, small disadvantaged business
(including ANCs and Indian tribes), and
women-owned small business concerns;
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(6) A statement as to whether or not
the offeror included indirect costs in
establishing subcontracting goals, and a
description of the method used to
determine the proportionate share of
indirect costs to be incurred with small
business (including ANCs and Indian
tribes), veteran-owned small business,
service-disabled veteran-owned small
business, HUBZone small business,
small disadvantaged business (including
ANCs and Indian tribes), and womenowned small business concerns;
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PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
5. Amend section 52.212–5 by
revising the clause date and revising
paragraph (b)(8)(i) to read as follows:
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52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
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CONTRACT TERMS AND CONDITIONS
REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS—COMMERCIAL
ITEMS (SEP 2007)
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(b) * * *
(8)(i) 52.219–9, Small Business
Subcontracting Plan (SEP 2007) (15 U.S.C.
637(d)(4).)
Subcontracting plan requirements.
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(a) * * *
(1) Separate percentage goals for using
small business (including ANCs and
Indian tribes), veteran-owned small
business, service-disabled veteranowned small business, HUBZone small
business, small disadvantaged business
(including ANCs and Indian tribes) and
women-owned small business concerns
as subcontractors;
(2) A statement of the total dollars
planned to be subcontracted and a
statement of the total dollars planned to
be subcontracted to small business
(including ANCs and Indian tribes),
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
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*
*
*
6. Amend section 52.219–9 by—
a. Revising the clause date;
b. Adding in paragraph (b), in
alphabetical order, the definitions
‘‘Alaska native Corporation (ANC’’) and
‘‘Indian tribe’’; and
I c. Revising paragraphs (d)(1), (d)(2)(ii)
and (vi), and (d)(6)(i) and (v) to read as
follows:
52.219–9
Plan.
*
*
Small Business Subcontracting
*
*
*
SMALL BUSINESS SUBCONTRACTING
PLAN (SEP 2007)
(b) * * *
Alaska Native Corporation (ANC) means
any Regional Corporation, Village
Corporation, Urban Corporation, or Group
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Corporation organized under the laws of the
State of Alaska in accordance with the Alaska
Native Claims Settlement Act, as amended
(43 U.S.C. 1601, et seq.) and which is
considered a minority and economically
disadvantaged concern under the criteria at
43 U.S.C. 1626(e)(1). This definition also
includes ANC direct and indirect subsidiary
corporations, joint ventures, and partnerships
that meet the requirements of 43 U.S.C.
1626(e)(2).
*
*
*
*
*
Indian tribe means any Indian tribe, band,
group, pueblo, or community, including
native villages and native groups (including
corporations organized by Kenai, Juneau,
Sitka, and Kodiak) as defined in the Alaska
Native Claims Settlement Act (43 U.S.C.A.
1601 et seq.), that is recognized by the
Federal Government as eligible for services
from the Bureau of Indian Affairs in
accordance with 25 U.S.C. 1452(c). This
definition also includes Indian-owned
economic enterprises that meet the
requirements of 25 U.S.C. 1452(e).
*
*
*
*
*
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(d) * * *
(1) In accordance with 43 U.S.C. 1626:
(i) Subcontracts awarded to an ANC or
Indian tribe shall be counted towards the
subcontracting goals for small business and
small disadvantaged business (SDB)
concerns, regardless of the size or Small
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Business Administration certification status
of the ANC or Indian tribe.
(ii) Where one or more subcontractors are
in the subcontract tier between the prime
contractor and the ANC or Indian tribe, the
ANC or Indian tribe shall designate the
appropriate contractor(s) to count the
subcontract towards its small business and
small disadvantaged business subcontracting
goals.
(A) In most cases, the appropriate
Contractor is the Contractor that awarded the
subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates
more than one Contractor to count the
subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of
the total subcontract award to each
Contractor. The sum of the amounts
designated to various Contractors cannot
exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a
copy of the written designation to the
Contracting Officer, the prime Contractor,
and the subcontractors in between the prime
Contractor and the ANC or Indian tribe
within 30 days of the date of the subcontract
award.
(D) If the Contracting Officer does not
receive a copy of the ANC’s or the Indian
tribe’s written designation within 30 days of
the subcontract award, the Contractor that
awarded the subcontract to the ANC or
Indian tribe will be considered the
designated Contractor.
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(2) * * *
(ii) Total dollars planned to be
subcontracted to small business concerns
(including ANC and Indian tribes);
*
*
*
*
*
(vi) Total dollars planned to be
subcontracted to small disadvantaged
business concerns (including ANCs and
Indian tribes); and
*
*
*
*
*
(6) * * *
(i) Small business concerns (including
ANC and Indian tribes);
*
*
*
*
*
(v) Small disadvantaged business concerns
(including ANC and Indian tribes); and
*
*
*
*
*
PART 53—FORMS
53.219
[Amended]
7. Amend section 53.219 by removing
from paragraphs (a) and (b) ‘‘SEP 2006’’
and adding (SEP 2007) in its place.
I
8. Revise section 53.301–294 to read
as follows:
I
BILLING CODE 6820–EP–S
53.301–294 Subcontracting Report for
Individual Contracts.
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9. Revise section 53.301–295 to read
as follows:
I
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Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations
[FR Doc. 07–3798 Filed 8–16–07; 8:45 am]
BILLING CODE 6820–EP–C
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 22, 25, and 52
[FAC 2005–19; FAR Case 2006–028; Item
VIII; Docket 2007–0001, Sequence 01]
RIN 9000–AK77
Federal Acquisition Regulation; FAR
Case 2006–028, New Designated
Countries—Bulgaria, Dominican
Republic, and Romania
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCIES:
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Dominican Republic—Central
America—United States Free Trade
Agreement with respect to the
Dominican Republic. The rule also adds
Bulgaria and Romania to the list of
World Trade Organization Government
Procurement Agreement countries.
DATES: Effective Date: August 17, 2007.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before October 16,
2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–19, FAR case
2006–028, by any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Search for any
document by first selecting the proper
document types and selecting ‘‘Federal
Acquisition Regulation’’ as the agency
of choice. At the ‘‘Keyword’’ prompt,
type in the FAR case number (for
example, FAR case 2006–028) and click
on the ‘‘Submit’’ button. Please include
your name and company name (if any)
inside the document.
You may also search for any
document by clicking on the ‘‘Advanced
search/document search’’ tab at the top
of the screen, selecting from the agency
field ‘‘Federal Acquisition Regulation’’,
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and typing the FAR case number in the
keyword field. Select the ‘‘Submit’’
button.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VIR), 1800 F Street, NW, Room 4035,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–19, FAR case
2006–028, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Meredith Murphy, Procurement
Analyst, at (202) 208–6925 for
clarification of content. Please cite FAC
2005–19, FAR case 2006–028. For
information pertaining to status or
publication schedules, contact the FAR
Secretariat at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends FAR Part 25 and the
corresponding clauses in Part 52 to
implement the Dominican Republic—
Central America—United States Free
Trade Agreement (CAFTA-DR) with
respect to the Dominican Republic.
Congress approved this trade agreement
in the Dominican Republic—Central
America—United States Free Trade
Agreement Implementation Act (Public
Law 109–53). This trade agreement
waives the applicability of the Buy
American Act for some foreign supplies
and construction materials from the
Dominican Republic and specifies
procurement procedures designed to
ensure fairness in the acquisition of
supplies and services.
This interim rule adds the Dominican
Republic to the definition of ‘‘Free
Trade Agreement country.’’ The rule
also deletes the Dominican Republic
from the definition of ‘‘Caribbean Basin
country’’ because, in accordance with
Section 201(a)(3) of Pub. L. 109–53,
when the CAFTA-DR agreement enters
into force with respect to a country, that
country is no longer designated as a
beneficiary country for purposes of the
Caribbean Basin Economic Recovery
Act.
The Councils changed the heading for
excluded service on line 6 of the table
at 25.401(b) to read ‘‘Transportation,
travel, and relocation services. . .’’ as
being reflective of the wording of the
majority of the Free Trade Agreements,
including the CAFTA-DR.
The Dominican Republic has the same
thresholds as the other CAFTA-DR
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46357
countries ($64,786 for supply and
service contracts, $7,407,000 for
construction contracts).
This rule also adds Bulgaria and
Romania to the list of World Trade
Organization Government Procurement
Agreement countries in wherever it
appears, whether as a separate
definition, part of the definition of
designated countries, or as part of the
list of countries exempt from the
prohibition of acquisition of products
produced by forced or indentured child
labor (22.1503, 25.003, 52.222–19,
52.225–5, and 52.225–11).
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 interim rule is not expected 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.
Although the rule opens up Government
procurement to the goods and services
of Bulgaria, the Dominican Republic,
and Romania, the Councils do not
anticipate any significant economic
impact on U.S. small businesses. The
Department of Defense only applies the
trade agreements to the non-defense
items listed at DFARS 225.401–70, and
acquisitions that are set aside for small
businesses are exempt. Therefore, an
Initial Regulatory Flexibility Analysis
has not been performed. The Councils
will consider comments from small
entities concerning the affected FAR
Parts 22, 25, and 52 in accordance with
5 U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C 601, et seq. (FAC
2005–19, FAR case 2006–028), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply; however, these changes to the
FAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Numbers
9000–0025, 9000–0130, 9000–0136, and
9000–0141 respectively. The interim
rule affects the certification and
information collection requirements in
the provisions at FAR 52.212–3, 52.225–
4, 52.225–6, and 52.225–11.
D. Determination to Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
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]]>Agencies
[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Rules and Regulations]
[Pages 46345-46357]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3798]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19, 52, and 53
[FAC 2005-19; FAR Case 2004-017; Item VII; Docket 2007-001; Sequence 6]
RIN 9000-AK18
Federal Acquisition Regulation; FAR Case 2004-017, Small Business
Credit for Alaska Native Corporations and Indian Tribes
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 implement section
702 of the Emergency Supplemental Act, 2002, as amended by section 3003
of the 2002 Supplemental Appropriations Act for Further Recovery From
and Response to Terrorist Attacks on the United States. The law permits
subcontracts awarded to Alaska Native Corporations (ANCs) and Indian
tribes to be counted towards a contractor's goals for subcontracting
with small business (SB) and small disadvantaged business (SDB)
concerns.
DATES: Effective Date: September 17, 2007.
FOR FURTHER INFORMATION CONTACT: Contact Ms. Rhonda Cundiff,
Procurement Analyst, at (202) 501-0044, for clarification of content.
For information pertaining to status or publication schedules, contact
the FAR Secretariat at (202) 501-4755. Please cite FAC 2005-19, FAR
case 2004-017.
SUPPLEMENTARY INFORMATION:
A. Background
Section 702 of the Emergency Supplemental Act, 2002 (Public Law
107-117), as amended by section 3003 of the 2002 Supplemental
Appropriations Act for Further Recovery From and Response to Terrorist
Attacks on the United States (Public Law 107-206)(43 U.S.C. 1626),
provides that subcontracts awarded to ANCs that are considered a
minority and economically disadvantaged concern under the criteria at
43 U.S.C. 1626(e)(1), and any of their direct and indirect subsidiary
corporations, joint ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2), shall be counted towards the
satisfaction of a contractor's goal for subcontracting with SB and SDB
concerns. The law also provides that subcontracts awarded to Indian
tribes that are recognized by the Bureau of Indian Affairs in
accordance with 25 U.S.C. 1452(c), and Indian-owned economic
enterprises that meet the requirements of 25 U.S.C. 1452(e), may be
counted towards the satisfaction of a contractor's goal for
subcontracting with SB and SDB concerns. Such credit is taken even
where the ANC or Indian tribe may be ``other than small'' under the
Small Business Administration (SBA) regulations.
In addition, section 3003 provides that where lower-tier
subcontracts exist, the ANC or Indian tribe shall designate the
appropriate contractor or contractors to receive credit towards their
SB and SDB subcontracting goals. Accordingly, the rule requires that,
where one or more subcontractors are in the subcontract tier between
the prime contractor and the ANC or Indian tribe, the ANC or Indian
tribe shall designate the appropriate contractor(s) to count the
subcontract towards its SB and SDB subcontracting goals. In most cases,
the appropriate contractor is the contractor that awarded the
subcontract to the ANC or Indian tribe. To help avoid possible double
counting, the rule requires the ANC or Indian tribe to provide a copy
of its written designation to the contracting officer, the prime
contractor, and any subcontractors between the prime contractor and ANC
or Indian tribe within 30 days of date of award to the ANC or Indian
tribe. If the contracting officer does not receive a copy of the ANC or
Indian tribe's written designation within 30 days of the subcontract
award, the contractor that awarded the subcontract to the ANC or Indian
tribe will be considered the designated contractor.
The law does not require the ANC or Indian tribe to be eligible for
SDB or 8(a) certification. Similarly, the law does not provide for
contractors to count subcontracts awarded to such an entity toward the
evaluation of the extent of the participation of SDB concerns in the
performance of certain North American Industry Classification System
(NAICS) Industry codes unless the entity is certified as an SDB by SBA
(FAR Subpart 19.12).
The Councils initially interpreted section 702 of Public Law 107-
117, as amended by section 3003 of Public Law 107-206, to allow Indian
tribes to be counted towards a contractor's goal for subcontracting
with SB concerns but not SDB concerns. Upon further consideration, the
Councils believe their initial interpretation was incorrect. Nothing in
the plain language of the statute or the legislative history indicates
that Congress intended to treat Indian tribes differently than ANCs. In
addition, the Councils believe interpreting the statute to treat Indian
tribes differently contradicts the intent of other laws (e.g., Small
Business Act and Technical Corrections Act of 1994 (Public Law 103-
263)) and longstanding Government policy that attempts to eliminate
distinctions between the various Indian tribes, including ANCs and
Indian-owned economic enterprises. Therefore, the rule allows Indian
tribes to also be counted as SDBs.
In addition, the Councils initially interpreted the statute to
allow certain entities owned and controlled by ANCs to also be counted
towards a contractor's goal for subcontracting with SB and SDB concerns
but did not believe the statute authorized entities owned and
controlled by Indian tribes to be counted towards a contractor's goal
for subcontracting with SB and SDB concerns. Upon further
consideration, the Councils believe their initial interpretation was
also incorrect. Section 16 of the Indian Reorganization Act of 1934 (25
U.S.C. 476), as amended, prohibits departments or agencies from
promulgating any regulation or making any decision or determination
that classifies, enhances, or diminishes the privileges and immunities
available to an Indian tribe relative to other federally recognized
tribes. Excluding entities owned and controlled by Indian tribes from
the treatment afforded by section 702 of Public Law 107-117, as amended
by section 3003 of Public Law 107-206 (43 U.S.C. 1626) to other
federally recognized tribes diminishes the privileges available to
entities owned and controlled by Indian tribes and enhances the
privileges available to entities owned and controlled by ANCs.
Therefore, the rule provides the same
[[Page 46346]]
treatment for entities owned and controlled by Indian tribes.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 70 FR 32553, June 3, 2005. Twenty-eight respondents
submitted comments on the proposed rule which are discussed below.
a. Comment: Excluding Indian-owned economic enterprises contradicts
the congressional intent underlying a plethora of laws and regulations
generally applicable to tribes and Indian-owned economic enterprises.
Distinguishing Indian-owned economic enterprises from Indian tribes is
a departure from longstanding Government policy which consistently
recognizes the practical necessity of tribes operating Indian-owned
economic enterprises. Indian tribes only perform contracts through
their legally distinct Indian-owned economic enterprises. Excluding
these Indian-owned economic enterprises provides little productive
assistance to Indian tribes.
Response: Section 16 of the Indian Reorganization Act of 1934 (25
U.S.C. 476), as amended, prohibits departments or agencies from
promulgating any regulation or making any decision or determination
that classifies, enhances, or diminishes the privileges and immunities
available to an Indian tribe relative to other federally recognized
tribes. Excluding Indian-owned economic enterprises from the treatment
afforded by section 702 of Public Law 107-117, as amended by section
3003 of Public Law 107-206 (43 U.S.C. 1626) to other federally
recognized tribes diminishes the privileges available to Indian-owned
economic enterprises and enhances the privileges available to ANCs
direct and indirect subsidiary corporations, joint ventures, and
partnerships. The rule was revised to provide the same treatment for
Indian-owned economic enterprises.
b. Comment: Allow Indian tribes and Indian-owned economic
enterprises to be counted as SB or SDB like ANCs. Congress and the SBA
have consistently provided ANC, Indian tribes, and entities they own
and operate with comparable standing. Nothing in the statute suggests
Congress intended to provide less help to Indian tribes.
Response: Nothing in the plain language of the statute or the
legislative history indicates that Congress intended to treat Indian
tribes differently than ANCs. Interpreting the statute to provide a
different treatment for Indian tribes contradicts the intent of
provisions of other laws (e.g., Small Business Act, Technical
Corrections Act of 1994) and longstanding Government policy that
attempts to eliminate distinctions between the various Indian tribes,
including ANCs and Indian-owned economic enterprises. The rule was
revised to also allow Indian tribes to be counted as SDBs.
c. Comment: The rule says the contractor awarding the subcontract
is, in most cases, the appropriate contractor to count the subcontract
towards its SB or SDB goals. However, the rule does not provide any
guidelines or criteria for determining when it might be appropriate to
designate the award to a contractor other than the contractor awarding
the subcontract. Recommend the Councils establish guidelines and
criteria to ensure consistent and equitable decision making on the part
of ANCs and Indian tribes.
Response: Neither the statute nor the legislative history addresses
when it might be appropriate to designate the credit to a contractor
other than the contractor awarding the subcontract and the Councils are
unaware of specific situations where it would be appropriate to do so.
However, the language of the statute is clear and unambiguous on this
point by stating ``where lower tier subcontractors exist, the entity
shall designate the appropriate contractor or contractors to receive
such credit.'' The Councils invited industry to comment on the
feasibility of the proposed approach and any alternatives for complying
with the law. No alternatives were identified. In accordance with the
statute, the final rule requires the ANC or Indian Tribe to designate
the contractor or contractors to receive credit for the award.
d. Comment: Identify the mechanism the ANCs and Indian tribes will
use to communicate the contractor or contractors that have been
designated to receive the small business and/or small disadvantaged
business credit. Address whether the designated contractor or
contractors are required to retain the designation document in their
procurement records.
Response: The rule was revised to require the ANC or Indian tribe
to provide copies of the written designation(s) to the contracting
officer, prime contractor, and any subcontractors between the prime
contractor and ANC or Indian tribe within 30 days of date of award to
the ANC or Indian tribe. If the contracting officer does not receive a
copy of the ANC or Indian tribe's written designation within 30 days of
the subcontract award, the contractor that awarded the subcontract to
the ANC or Indian tribe will be considered the designated contractor.
e. Comment: The instructions on the proposed Standard Forms (SF)
294 and 295 are ambiguous because the forms show inclusion of ANCs and
Indian tribes in the HUBZone category but the language in the proposed
rule makes no reference to this provision.
Response: SFs 294 and 295 have been revised and no longer include
ANCs and Indian tribes in the HUBZone category.
f. Comment: The rule allows large ANCs and Indian tribes to be
included in both the SB and Large Business (LB) concerns categories on
SFs 294 and 295. This will distort the contractor's total
subcontracting base dollars since ``total'' is calculated as ``SB''
plus ``LB.'' Also, the performance percentages for the other
subcategories of SB (e.g. service-disabled veteran-owned small
business) will be negatively impacted because these figures are stated
as a percentage of ``total''. Recommend that subcontract awards to
large ANCs and Indian tribes be excluded from the LB category.
Response: The Councils revised SFs 294 and 295 to address this
issue.
g. Comment: Allow contractors to take credit for awards to entities
that obtain their ANC or federally-recognized tribal status in the
middle of a Government reporting cycle.
Response: The entity's status at the time of subcontract award is
the status to be reported in subsequent periods consistent with the
treatment for reporting any other subcontract award.
h. Comment: In collaboration with the Bureau of Indian Affairs,
develop a single source that identifies ANCs, Indian tribes, and
Indian-owned economic enterprises to help industry locate the entities.
In the interim, modify the Central Contractor Registration (CCR)
database to capture these additional supplier designations.
Response: The Team believes industry can easily locate these
entities using market research. In addition, the CCR database already
has the necessary categories to capture this data under Native American
entities. Vendors can register as Alaska Native Corporation Owned
Firms, American Indian Owned, Indian Tribe (Federally Recognized),
Tribally Owned Firms, etc. However, only prime contractors are required
to be registered in the CCR.
i. Comment: Object to the rule. This rule is another step toward
eliminating the truly small disadvantaged business in America. Over the
past five years special legislation has exempted ANCs and tribally-
owned businesses, many of which are multi-billion dollar corporations,
from the rules that all other small disadvantaged businesses must
comply with - size standards, affiliation rules, sole source limits -
[[Page 46347]]
making it difficult to compete with ANCs and tribally-owned
businesses.This rule will extend the pattern of ANC dominance to the
subcontracting arena. Treating ANCs and Indian Tribes as small
businesses when they exceed the size standards for their applicable
NAICS codes does a grave disservice to other small businesses that are
required to function as large businesses when they exceed the size
standard. Instead, the Government should develop new programs that help
these entities compete with large business. SBA, GSA and other
Government agencies do not monitor and enforce the regulations that
provide additional benefits to ANCs. As a result, the benefits extended
to ANCs are commonly abused and exaggerated. The rule provides
additional benefits to ANCs that the Government is not prepared to
monitor or enforce.
Response: This rule implements section 702 of Public Law 107-117,
as amended by section 3003 of Public Law 107-206. It permits
subcontracts awarded to certain ANCs and Indian tribes to be counted
towards a contractor's SB and SDB goals even though those businesses
may not be small or certified SDBs. We have modified SFs 294 and 295 to
help ensure that subcontract award information is reported.
j. Comment: Restrict the percent of the SDB goal that can be
satisfied by awards to ANCs to prevent a wholesale takeover of the SDB
subcontracting program by ANCs.
Response: The statute contained no such limits. Therefore, the
Councils have no authority to restrict the percent of the SDB goal that
can be satisfied by awards to ANCs.
k. Comment: Allowing a contractor, other than the contractor
awarding the subcontract, to receive SB or SDB credit for awards by one
of its lower-tier subcontractors will be a disincentive to prime
contractor's outreach efforts.
Response: The statute requires the ANC or Indian tribe to designate
the appropriate contractor or contractors to receive credit towards
their subcontracting goals.
l. Comment: The same rule should apply to Native Hawaiian
Organizations (NHOs), Native Hawaiian-owned small businesses, Native
Hawaiian-owned 8(a) small disadvantaged businesses and Native Hawaiian
certified 8(a) firms. Under section 8021 of the 2004 Appropriations
Act, NHOs were afforded the same eligibility for certain types of non-
competitively awarded contracts as Alaska Native Corporations and
Indian tribally-owned 8(a) firms.
Response: The statute only addressed ANC and Indian tribes.
Statutory authority would be required to expand the authority to
Hawaiian entities.
m. Comment: Distinguish the 562 not-for-profit Indian tribes from
the 13 for-profit ANCs in the Regulatory Flexibility Act statement. The
562 federally recognized Indian tribes formed under the Indian
Reorganization Act, as amended, are all not-for-profit entities
organized under the Federal Government. An additional 13 regional ANC
established pursuant to the Alaska Native Claims Settlement Act (ANSCA)
of 1971, as amended, are for-profit businesses organized under the
State of Alaska laws.
Response: Whether the Indian tribe or ANC is a not-for-profit
entity or a for-profit business does not affect the implementation of
section 702 of Public Law 107-117.
n. Comment: Require ANCs to provide the Indian tribe(s) within
their region copies of the Subcontract Report on Individual Contracts
(SF 294) because the tribes have an interest in ANC activities within
their regions.
Response: The Indian tribes are not a party to the contracts that
require submission of the SF 294. Therefore, the Councils lack the
authority to require the ANCs to provide copies of the SF 294 to the
Indian tribes.
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), and it is summarized as follows:
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 the law
allows other than SB Federal contractors to receive SDB and SB
subcontract credit for subcontracts awarded to Indian tribes and
ANCs, regardless of whether they are a SB or are SDB certified. SBs
and certified SDBs may be adversely impacted, to the extent that
there are Indian tribes or ANCs that are large businesses and may
now be more likely to be used as subcontractors or suppliers on
Federal contracts.
Section 702 of Public Law 107-117, as amended by section 3003 of
Public Law 107-206 (43 U.S.C. 1626) provides that subcontracts
awarded to an ANC that is considered a minority and economically
disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1),
and any of its direct and indirect subsidiary corporations, joint
ventures, and partnerships that meet the requirements of 43 U.S.C.
1626(e)(2), or Indian tribes, and any Indian-owned economic
enterprises meeting the requirements of 25 U.S.C. 1452 can be
counted towards a contractor's goal for subcontracting with SB and
SDB concerns. Such credit can be taken even where the ANC or Indian
tribe may be ``other than small'' under the Small Business
Administration (SBA) regulations or is not certified as an SDB
pursuant to SBA's regulations.
According to the Department of Interior, there are approximately
550 Indian tribes and ANCs. Information was not available on the
number of these entities that were large business, small business or
small disadvantaged business. One comment received on the summary of
the IRFA that was in the Federal Register Notice for the proposed
rule was that there are 562 Indian tribes, some of which are Alaska
Native and all of which are non-profit, and 12 ANCs, all of which
are for profit. No information was provided in the comment on the
number of Indian tribes or ANCs that are small entities.
The FAR Secretariat has submitted a copy of the FRFA to the Chief
Counsel for Advocacy of the Small Business Administration. Interested
parties may obtain a copy from the FAR Secretariat. The Councils will
consider comments from small entities concerning the affected FAR Parts
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610, et seq. (FAC 2005-19,
FAR Case 2004-017), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Public Law 104-13) applies because
this final rule contains information collection requirements.
Accordingly, the FAR Secretariat will forward a request for approval of
a revision to the information collection requirements concerning OMB
Clearances 9000-0006 (Standard Form 294) and 9000-0007 (Standard Form
295) to the Office of Management and Budget under 44 U.S.C. 3501, et
seq. Public comments concerning this request will be invited through a
subsequent Federal Register Notice.
List of Subjects in 48 CFR Parts 19, 52, and 53
Government procurement.
Dated: July 30, 2007.
Al Matera,
Acting Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 19, 52, and 53 as set
forth below:
0
1. The authority citation for 48 CFR parts 19, 52, and 53 continues to
read as follows:
[[Page 46348]]
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS
0
2. Amend section 19.701 by adding in alphabetical order, the
definitions ``Alaska Native Corporation (ANC)'' and ``Indian tribe'' to
read as follows:
19.701 Definitions.
* * * * *
Alaska Native Corporation (ANC) means any Regional Corporation,
Village Corporation, Urban Corporation, or Group Corporation organized
under the laws of the State of Alaska in accordance with the Alaska
Native Claims Settlement Act, as amended (43 U.S.C.A. 1601, et seq.)
and which is considered a minority and economically disadvantaged
concern under the criteria at 43 U.S.C. 1626(e)(1). This definition
also includes ANC direct and indirect subsidiary corporations, joint
ventures, and partnerships that meet the requirements of 43 U.S.C.
1626(e)(2).
* * * * *
Indian tribe means any Indian tribe, band, group, pueblo, or
community, including native villages and native groups (including
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined
in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601 et seq.),
that is recognized by the Federal Government as eligible for services
from the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c).
This definition also includes Indian-owned economic enterprises that
meet the requirements of 25 U.S.C. 1452(e).
* * * * *
0
3. Amend section 19.703 in the introductory text of paragraph (a) by
removing the word ``To'' and adding ``Except as provided in paragraph
(c) of this section to'' in its place; by redesignating paragraph (c)
as paragraph (d); and by adding new paragraph (c) to read as follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(c)(1) In accordance with 43 U.S.C. 1626, the following procedures
apply:
(i) Subcontracts awarded to an ANC or Indian tribe shall be counted
towards the subcontracting goals for small business and small
disadvantaged business (SDB) concerns, regardless of the size or Small
Business Administration certification status of the ANC or Indian
tribe.
(ii) Where one or more subcontractors are in the subcontract tier
between the prime contractor and the ANC or Indian tribe, the ANC or
Indian tribe shall designate the appropriate contractor(s) to count the
subcontract towards its small business and small disadvantaged business
subcontracting goals.
(A) In most cases, the appropriate contractor is the contractor
that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one contractor
to count the subcontract toward its goals, the ANC or Indian tribe
shall designate only a portion of the total subcontract award to each
contractor. The sum of the amounts designated to various contractors
cannot exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the contracting officer, the prime contractor, and the
subcontractors in between the prime contractor and the ANC or Indian
tribe within 30 days of the date of the subcontract award.
(D) If the contracting officer does not receive a copy of the ANC's
or the Indian tribe's written designation within 30 days of the
subcontract award, the contractor that awarded the subcontract to the
ANC or Indian tribe will be considered the designated contractor.
(2) A contractor acting in good faith may rely on the written
representation of an ANC or an Indian tribe as to the status of the ANC
or Indian tribe unless an interested party challenges its status or the
contracting officer has independent reason to question its status. In
the event of a challenge of a representation of an ANC or Indian tribe,
the interested parties shall follow the procedures at 26.103(b) through
(e).
* * * * *
0
4. Amend section 19.704 by revising paragraphs (a)(1), (a)(2), (a)(3),
and (a)(6) to read as follows:
19.704 Subcontracting plan requirements.
(a) * * *
(1) Separate percentage goals for using small business (including
ANCs and Indian tribes), veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business (including ANCs and Indian tribes) and women-
owned small business concerns as subcontractors;
(2) A statement of the total dollars planned to be subcontracted
and a statement of the total dollars planned to be subcontracted to
small business (including ANCs and Indian tribes), veteran-owned small
business, service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business (including ANCs and Indian
tribes) and women-owned small business concerns;
(3) A description of the principal types of supplies and services
to be subcontracted and an identification of types planned for
subcontracting to small business (including ANCs and Indian tribes),
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business
(including ANCs and Indian tribes), and women-owned small business
concerns;
* * * * *
(6) A statement as to whether or not the offeror included indirect
costs in establishing subcontracting goals, and a description of the
method used to determine the proportionate share of indirect costs to
be incurred with small business (including ANCs and Indian tribes),
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business
(including ANCs and Indian tribes), and women-owned small business
concerns;
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Amend section 52.212-5 by revising the clause date and revising
paragraph (b)(8)(i) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (SEP 2007)
* * * * *
(b) * * *
(8)(i) 52.219-9, Small Business Subcontracting Plan (SEP 2007)
(15 U.S.C. 637(d)(4).)
* * * * *
0
6. Amend section 52.219-9 by--
0
a. Revising the clause date;
0
b. Adding in paragraph (b), in alphabetical order, the definitions
``Alaska native Corporation (ANC'') and ``Indian tribe''; and
0
c. Revising paragraphs (d)(1), (d)(2)(ii) and (vi), and (d)(6)(i) and
(v) to read as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
SMALL BUSINESS SUBCONTRACTING PLAN (SEP 2007)
(b) * * *
Alaska Native Corporation (ANC) means any Regional Corporation,
Village Corporation, Urban Corporation, or Group
[[Page 46349]]
Corporation organized under the laws of the State of Alaska in
accordance with the Alaska Native Claims Settlement Act, as amended
(43 U.S.C. 1601, et seq.) and which is considered a minority and
economically disadvantaged concern under the criteria at 43 U.S.C.
1626(e)(1). This definition also includes ANC direct and indirect
subsidiary corporations, joint ventures, and partnerships that meet
the requirements of 43 U.S.C. 1626(e)(2).
* * * * *
Indian tribe means any Indian tribe, band, group, pueblo, or
community, including native villages and native groups (including
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as
defined in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601
et seq.), that is recognized by the Federal Government as eligible
for services from the Bureau of Indian Affairs in accordance with 25
U.S.C. 1452(c). This definition also includes Indian-owned economic
enterprises that meet the requirements of 25 U.S.C. 1452(e).
* * * * *
(d) * * *
(1) In accordance with 43 U.S.C. 1626:
(i) Subcontracts awarded to an ANC or Indian tribe shall be
counted towards the subcontracting goals for small business and
small disadvantaged business (SDB) concerns, regardless of the size
or Small Business Administration certification status of the ANC or
Indian tribe.
(ii) Where one or more subcontractors are in the subcontract
tier between the prime contractor and the ANC or Indian tribe, the
ANC or Indian tribe shall designate the appropriate contractor(s) to
count the subcontract towards its small business and small
disadvantaged business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor
that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one
Contractor to count the subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of the total subcontract
award to each Contractor. The sum of the amounts designated to
various Contractors cannot exceed the total value of the
subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the prime Contractor, and
the subcontractors in between the prime Contractor and the ANC or
Indian tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the
ANC's or the Indian tribe's written designation within 30 days of
the subcontract award, the Contractor that awarded the subcontract
to the ANC or Indian tribe will be considered the designated
Contractor.
(2) * * *
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
* * * * *
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes);
and
* * * * *
(6) * * *
(i) Small business concerns (including ANC and Indian tribes);
* * * * *
(v) Small disadvantaged business concerns (including ANC and
Indian tribes); and
* * * * *
PART 53--FORMS
53.219 [Amended]
0
7. Amend section 53.219 by removing from paragraphs (a) and (b) ``SEP
2006'' and adding (SEP 2007) in its place.
0
8. Revise section 53.301-294 to read as follows:
BILLING CODE 6820-EP-S
53.301-294 Subcontracting Report for Individual Contracts.
[[Page 46350]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.000
[[Page 46351]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.001
[[Page 46352]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.002
[[Page 46353]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.003
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9. Revise section 53.301-295 to read as follows:
53.301-295 Summary Subcontract Report.
[[Page 46354]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.004
[[Page 46355]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.005
[[Page 46356]]
[GRAPHIC] [TIFF OMITTED] TR17AU07.006
[[Page 46357]]
[FR Doc. 07-3798 Filed 8-16-07; 8:45 am]
BILLING CODE 6820-EP-C
