Federal Acquisition Regulation: Scope of Review by Procurement Center Representatives, 44247-44248 [2021-16365]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Rules and Regulations]
[Pages 44247-44248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16365]



[[Page 44247]]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 19

[FAC 2021-07; FAR Case 2020-012; Item III; Docket No. FAR-2020-0012; 
Sequence No. 1]
RIN 9000-AO16


Federal Acquisition Regulation: Scope of Review by Procurement 
Center Representatives

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation to implement section 1811 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 to 
provide procurement center representatives with the discretion to 
review any acquisition.

DATES: Effective September 10, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement 
Analyst, at 703-605-2815, or by email at [email protected], for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2021-07, FAR Case 
2020-012.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are amending the Federal Acquisition Regulation 
(FAR) to implement section 1811 of the National Defense Authorization 
Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328, 15 U.S.C. 
644(l)(9)(A)). Section 1811 allows procurement center representatives 
to review any solicitation for a contract or task order without regard 
as to whether the contract or order is set aside for small business 
concerns, or reserved in the case of a multiple-award contract, or 
whether or not the solicitation would result in a bundled or 
consolidated contract or order. The Small Business Administration (SBA) 
issued a final rule at 84 FR 65647, dated November 29, 2019, to 
implement section 1811 of the NDAA for FY 2017. In their final rule, 
SBA amended 13 CFR 125.2(b)(1)(i)(A) to allow procurement center 
representatives to review any acquisition, regardless of whether it is 
set aside, partially set aside, or reserved for small business or other 
socioeconomic categories.

II. Discussion and Analysis

    The changes to the FAR and the rationale for the changes are 
summarized in the following paragraphs.

A. Contracting Officer Requirements for Review of Acquisitions

    Section 19.202-1, Encouraging small business participation in 
acquisitions, is amended to require that contracting officers provide 
the procurement center representative a copy of any proposed 
acquisition package and other reasonably obtainable information related 
to the acquisition, if the procurement center representative exercises 
their discretion to review any proposed acquisition. The specific 
procedures are typically articulated in agreements between procuring 
activities and procurement center representatives. Section 19.202-1 is 
also amended to clarify the acquisitions for which the contracting 
officer must provide the statement described in paragraph (e)(2). In 
addition, changes are made to paragraph (d) of section 19.501, General, 
to provide that SBA procurement center representatives may review any 
proposed acquisition in excess of the micro-purchase threshold.

B. Duties of Procurement Center Representatives

    Section 19.402, Small Business Administration procurement center 
representatives, is amended to update the description of a procurement 
center representative's duties to better reflect SBA's regulation at 13 
CFR 125.2(b). Specifically, changes to FAR 19.402(c) are made to 
provide that procurement center representatives may recommend the set-
aside or sole-source award to a small business; the breakout of 
discrete components, items, and requirements for competition; and ways 
to improve competition. Paragraph (c)(7) in section 19.402 is relocated 
from section 19.403, Small Business Administration breakout procurement 
center representatives. This paragraph describes the appeal a 
procurement center representative may file if a contracting activity 
does not adopt the procurement center representative's recommendation.

C. Duties of Breakout Procurement Center Representative

    The text of section 19.403, Small Business Administration breakout 
procurement center representatives, is removed and marked ``Reserved.'' 
Paragraph (c)(8) in this section is relocated to section 19.402 (see 
section II.B. of this preamble). Breakout procurement center 
representatives were removed from the Small Business Act (15 U.S.C. 
644) by section 1621 of the NDAA for FY 2013 (Pub. L. 112-239). 
Therefore, section 19.403 is no longer needed.

D. Technical Amendments

    Section 19.502-8, Rejecting Small Business Administration 
recommendations, has a two working-day appeals period. There is a 
different appeals period for the HUBZone, Service-Disabled Veteran-
Owned Small Business, and Women-Owned Small Business Programs, of five 
working days; therefore, a reference is added to FAR 19.502-8(b) for 
those sections.

III. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707 entitled ``Publication of Proposed Regulations.'' Paragraph (a)(1) 
of the statute requires that a procurement policy, regulation, 
procedure or form (including an amendment or modification thereof) must 
be published for public comment if it relates to the expenditure of 
appropriated funds, and has either a significant effect beyond the 
internal operating procedures of the agency issuing the policy, 
regulation, procedure or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because it amends 
requirements related to the review of proposed acquisitions by SBA's 
procurement center representatives. These requirements affect only the 
internal operating procedures of the Government.

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule amends FAR part 19, Small Business Programs. The 
objective of this rule is to update requirements for contracting 
officers with regard to reviews of proposed acquisitions by SBA's 
procurement center representatives, to align with section 1811 of the 
NDAA for FY 2017 (Pub. L. 114-328, 15 U.S.C. 644(l)(9)(A)). This rule 
does not change the applicability or text of any FAR solicitation 
provisions or contract clauses.

[[Page 44248]]

V. Expected Impact of the Rule

    The changes in this rule will affect Government operations, but not 
contractor operations.
    As a result of this rule, contracting officers may have to provide 
additional acquisition packages to procurement center representatives 
for review prior to issuance of the solicitation. The number of 
additional acquisitions to be reviewed by PCRs is unknown, as the 
reviews will be conducted at the discretion of the procurement center 
representatives.
    The cost impact for the Government will depend on how many 
additional acquisition packages contracting officers provide to 
procurement center representatives for review. This rule will have no 
cost impact for contractors.

VI. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

VII. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VIII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section III of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are 
not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

IX. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 48 CFR Part 19

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 19 as set forth 
below:

PART 19--SMALL BUSINESS PROGRAMS

0
1. The authority citation for 48 CFR part 19 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.


0
2. Amend section 19.202-1 by--
0
a. In paragraph (e)(1)(ii) removing ``; or'' and adding ``;'' in its 
place;
0
b. In paragraph (e)(1)(iii) removing ``Utilization.'' and adding 
``Utilization; or'' in its place;
0
c. Adding paragraph (e)(1)(iv); and
0
d. Revising paragraph (e)(2) introductory text.
    The addition and revision read as follows:


19.202-1   Encouraging small business participation in acquisitions.

* * * * *
    (e)(1) * * *
    (iv) The acquisition will be reviewed at the PCR's discretion.
    (2) For acquisitions described in paragraph (e)(1)(i) through (iii) 
of this section, provide a statement explaining why the--
* * * * *

0
3. Amend section 19.402 by--
0
a. Revising paragraph (c)(1)(i);
0
b. Removing from the end of paragraph (c)(1)(ii) ``and'';
0
c. Revising paragraph (c)(1)(iii); and
0
d. Adding paragraphs (c)(1)(iv) and (c)(7).
    The revisions and additions read as follows:


19.402   Small Business Administration procurement center 
representatives.

* * * * *
    (c) * * *
    (1) * * *
    (i) The set-aside or sole-source award to a small business of 
selected acquisitions;
* * * * *
    (iii) Breakout of discrete components, items, and requirements for 
competitive acquisitions; and
    (iv) Ways to improve competition.
* * * * *
    (7) Appealing a contracting officer's rejection of PCR's 
recommendation. Such appeal must be in writing and shall be filed and 
processed in accordance with the appeal procedures set out in 19.502-8.


19.403   [Removed and Reserved]

0
4. Remove and reserve section 19.403.

0
5. Amend section 19.501 by revising paragraph (d) to read as follows:


19.501   General.

* * * * *
    (d) At the request of an SBA PCR (or, if a PCR is not assigned, see 
19.402(a)), the contracting officer shall make available for review at 
the contracting office (to the extent of the SBA representative's 
security clearance) any proposed acquisition in excess of the micro-
purchase threshold.
* * * * *

0
6. In section 19.502-8 amend paragraph (b) by revising the first 
sentence to read as follows:


19.502-8  Rejecting Small Business Administration recommendations.

* * * * *
    (b) The SBA PCR (or, if a PCR is not assigned, see 19.402(a)) may 
appeal the contracting officer's rejection to the head of the 
contracting activity within 2 working days after receiving the notice 
(except see 19.1305(d), 19.1405(d), and 19.1505(g)). * * *
* * * * *
[FR Doc. 2021-16365 Filed 8-10-21; 8:45 am]
BILLING CODE 6820-EP-P