Federal Acquisition Regulation: Policy on Joint Ventures, 58219-58227 [2022-20340]

Agencies

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

[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Rules and Regulations]
[Pages 58219-58227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20340]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 9, 15, 19, and 52

[FAC 2022-08; FAR Case 2017-019; Item I; Docket No. FAR-2017-019, 
Sequence No. 1]
RIN 9000-AN59


Federal Acquisition Regulation: Policy on Joint Ventures

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement statutory and 
regulatory changes regarding joint ventures made by the Small Business 
Administration (SBA) in its final rule published in the Federal 
Register on July 25, 2016, and to clarify that 8(a) joint ventures are 
not certified into the 8(a) program. Additionally, the rule implements 
SBA's statutory and regulatory changes that eliminated SBA approval of 
joint venture agreements for competitive 8(a) awards.

DATES: Effective October 28, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement 
Analyst, at 571-882-4687 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 2022-08, FAR Case 
2017-019.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 85 FR 34561 on June 5, 2020, to revise the FAR to implement 
statutory and regulatory changes made by the SBA regarding joint 
ventures. These changes allow a joint venture comprised of a 
prot[eacute]g[eacute] and its mentor to qualify as a small business or 
under a socioeconomic program (e.g., 8(a)) for which the 
prot[eacute]g[eacute] qualifies. These changes also provide updated 
requirements for other joint ventures to qualify as small businesses or 
to qualify under a socioeconomic program.
    Section 1347 of the Small Business Jobs Act of 2010 (Pub. L. 111-
240) and section 1641 of the National Defense Authorization Act (NDAA) 
for Fiscal Year (FY) 2013 (Pub. L. 112-239; 15 U.S.C. 657r) authorized 
the SBA Administrator to establish mentor-prot[eacute]g[eacute] 
programs for small business concerns, service-disabled veteran owned 
small business (SDVOSB) concerns, women-owned small business concerns 
in the Women-Owned Small Business (WOSB) Program, and HUBZone small 
business concerns modeled after the mentor-prot[eacute]g[eacute] 
program under section 8(a) of the Small Business Act (15 U.S.C. 
637(a)). On July 25, 2016, SBA issued a final rule (81 FR 48558) that 
implemented the mentor-prot[eacute]g[eacute] programs at 13 CFR 125.9. 
SBA's final rule allows a joint venture comprised of a 
prot[eacute]g[eacute] and its mentor to seek any type of small business 
contract, including a contract under a socioeconomic program, for which 
the prot[eacute]g[eacute] qualifies.
    Additionally, this rule implements SBA's final rule published on 
October 16, 2020, at 85 FR 66146, which implemented statutory and 
regulatory changes that eliminated SBA approval of joint venture 
agreements for competitive 8(a) awards.
    For further details see Section IV of this preamble, and see 
Section II of the proposed rule.
    Seven respondents submitted public comments in response to the 
proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule; however, no changes were made as a 
result of the public comments received. A discussion of the comments 
received, and the changes made to the rule as a result of SBA's final 
rule (85 FR 66146) published October 16, 2020, are provided as follows:

A. Summary of Significant Changes From the Proposed Rule

    This final rule makes changes to paragraph (a) at FAR 19.703, 
Eligibility requirements for participating in the program, to add 
HUBZone small business to paragraphs (2)(i) and (ii). The proposed 
language at FAR 19.805-2(d)(2) is revised to clarify that SBA does not 
approve joint ventures for competitive awards, and the proposed 
language regarding SBA approval of joint ventures at 19.805-2(d)(2) and 
(e) is removed. Conforming changes are made to 52.219-18. These changes 
are required to resolve conflicts between the changes in the proposed 
rule and SBA's

[[Page 58220]]

final rule at 85 FR 66146, published October 16, 2020. In SBA's final 
rule, SBA specified that it no longer approves joint venture agreements 
for competitive 8(a) awards. As a result, changes are made to the text 
in this final rule.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: Three respondents expressed support for the rule.
    Response: The Councils acknowledge the respondents' support for the 
rule.
2. Outside the Scope of This Rule
    Comment: One respondent recommended adding the verbiage ``need only 
be approved by the SBA prior to the contract award'' to the pre-award 
timeline.
    Response: This final rule amends the FAR to implement statutory and 
regulatory changes regarding joint ventures made by the SBA. Editing or 
revising the pre-award timeline is outside the scope of this rule.
    Comment: One respondent stated that there is no cost effective 
mechanism under the General Services Administration Federal Supply 
Schedule (FSS) program (referenced by the respondent as the Multiple 
Award Schedule) to track ``the requirement that certain small business 
or socioeconomic parties to a joint venture perform 40 percent of the 
work performed by the joint venture and that the work performed must be 
more than administrative functions.''
    Response: The purpose of this rule is to implement SBA's final rule 
issued on July 25, 2016, at 81 FR 48558, which established the 
requirement that certain small business parties to a joint venture 
perform 40 percent of all work done by the joint venture and that work 
performed is more than merely performing administrative functions. GSA 
uses Industrial Operations Analysts to ensure contractors are complying 
with terms and conditions of Multiple Award Schedule contracts.
3. Negative Impacts of the Rule
    Comment: Two respondents expressed concern regarding the potential 
negative impacts of the rule. One respondent believes that the new rule 
will undermine small businesses. Under the proposed rule, a large 
business affiliated under a joint venture with a small business can 
collectively utilize a combined past performance, making the small 
business a ``front'' for the large business. The respondent believes 
this rule should be retired and not entered into the FAR. Another 
respondent stated that the rule places the joint venture in an unfair 
advantage over other small businesses when considering past performance 
as an evaluation factor for source selection. The respondent further 
stated that the joint venture should receive a neutral rating if it has 
no past performance.
    Response: This rule is expected to have an overall positive impact 
on small businesses by creating new opportunities under the mentor-
prot[eacute]g[eacute] program. All mentors and prot[eacute]g[eacute]s 
are subject to the requirements and limitations of the mentor-
prot[eacute]g[eacute] program and, in accordance with 13 CFR 
121.103(h)(1)(ii), only mentor-prot[eacute]g[eacute] joint ventures are 
eligible for set-aside opportunities, including those where a large 
business is a mentor. This final rule requires the small business 
prot[eacute]g[eacute] or 8(a) participant to perform at least 40 
percent of the work done by the joint venture in accordance with 13 CFR 
125.8. This rule recognizes that joint ventures perform work through 
their members, not as independent entities. Furthermore, this rule 
requires contracting officers to consider the past performance of each 
party to the joint venture if the joint venture does not demonstrate 
past performance.
4. Clarification Needed
a. Clarify SBA Requirements for Evaluating a Mentor-
Prot[eacute]g[eacute] Joint Venture's Past Performance
    Comment: One respondent requested that this case address 
solicitation language indicating that the managing member must provide 
relevant past performance information. The respondent believes 
requesting past performance from a joint venture managing partner does 
not allow prot[eacute]g[eacute]s to gain experience using their 
mentor's past performance.
    Response: This rule implements SBA's final rule, 81 FR 48558, which 
requires the contracting officer to consider the past performance of 
the prot[eacute]g[eacute] when a joint venture under the mentor-
prot[eacute]g[eacute] program does not have past performance. This 
change is made in subpart 9.1, Responsible Prospective Contractors, and 
in subpart 15.3, Source Selection.
b. Clarify Definition of Small Business Concern/Size Status 
Determination
    Comment: One respondent stated that the amended definition of small 
business concern does not directly specify whether the contracting 
officer or SBA is authorized to make the size status determination of a 
concern. The respondent provided the following suggested language to 
provide clarity, ``Contractors shall self-certify size status. 
Questions of a contractor's size status shall be determined by the 
Small Business Administration.''
    Response: FAR subpart 19.3, Determination of Small Business Size 
and Status for Small Business Programs, specifies that SBA makes a size 
status determination. Therefore, it is not necessary to modify the 
definition of small business concern.
c. Clarify Joint Venture Applicability Under the GSA Federal Supply 
Schedules
    Comment: One respondent requested clarification of the 
applicability of joint ventures to the GSA FSS Program. The respondent 
believes that the limited duration of a joint venture creates a 
conflict for its use in the FSS program. According to the respondent, 
under the FSS program contracts may be awarded for up to 20 years, in 
5-year increments, and joint ventures are set up to bid on a specific 
job and may last up to six years, including one extension.
    Response: This rule implements SBA's final rule at 85 FR 66146, 
published on October 16, 2020, which provides further clarification 
regarding the requirements for joint venture formation and duration. 
SBA's regulations do not prohibit a small business joint venture from 
performing the full length of their FSS contract and do not include a 
maximum time limitation on a joint venture.
d. Clarify Supplementary Information in Background Section
    Comment: One respondent suggested that the adjective ``improper'' 
be replaced with ``unintended'' in the sentence that appeared in the 
last paragraph of the Background section under the Supplementary 
Information in the Federal Register Notice for the proposed rule: 
``This rule proposes clarifications to prevent the improper elimination 
of 8(a) joint venture proposals in the future.''
    Response: As noted in the Federal Register notice for the proposed 
rule, the clarification that 8(a) joint venture agreements need only be 
approved by the SBA prior to contract award is necessary because the 
Government Accountability Office (GAO) sustained a protest (BGI-Fiore 
JV, LLC, B-409520, May 29, 2014) in which an agency rejected an 8(a) 
joint venture's proposal on the basis that the 8(a) joint venture had 
not been certified by the SBA prior to submission of proposals. As 
stated in GAO's decision, GAO affirmed the protestor's argument that 
the agency improperly rejected its proposal. The use of the adjective 
``improper'' in the Federal Register notice for the proposed

[[Page 58221]]

rule is derived directly from the text of the GAO decision. Further, 
the adjective suggested by the respondent, ``unintended'', does not 
have the same meaning as ``improper'' and is not an appropriate 
substitution in this context. Finally, the suggested revision has no 
effect on the text of the rule; therefore, the final rule is unchanged.
e. Clarify SBA Joint Venture Review Timeline
    Comment: One respondent asked to clarify the amount of time the SBA 
Associate Administrator for Business Development has to review the 
joint venture agreement.
    Response: The final rule makes changes to the proposed rule FAR 
text at 19.805-2 to remove the proposed paragraph (e), which referred 
to the SBA Associate Administrator for Business Development review of 
the joint venture agreement. SBA's final rule at 85 FR 66146 published 
on October 16, 2020, specified that SBA no longer approves joint 
venture agreements for competitive 8(a) awards. As a result, changes 
are made to the text in this final rule.
    Comment: One respondent was concerned about ``certification of the 
joint venture as an 8(a)'' participant and how to properly address this 
situation given the workload of the SBA Business Opportunity 
Specialist. The respondent stated that the two proposals his joint 
venture proposed required a certification letter, which they did not 
have due to the joint venture not being approved. The respondent 
provided that his SBA office and Business Opportunity Specialist will 
not review any joint ventures unless a contracting officer or agency is 
willing to make an award, which is well after the proposal process is 
completed. To address this situation, the respondent recommended that 
the SBA conduct preliminary reviews prior to the submission of a 
contract effort and possibly when the joint venture is formed (approve 
the joint venture agreement and/or certify the joint venture is small) 
then conduct a full review at contract award. The respondent believes 
this approach will reduce the risk to the members of the joint venture 
of having to go through the proposal process only to be disqualified by 
the SBA.
    Response: The Councils acknowledge the respondents concern with 
certification of the joint venture as an 8(a) participant and the 
differing interpretations of FAR clause 52.219-18, Notification of 
Competition Limited to Eligible 8(a) Concerns. Some have interpreted 
this clause to mean that 8(a) joint ventures that submitted an offer 
for an 8(a) contract needed to be ``certified'' by the SBA and the 
joint venture agreement needed to be approved by the SBA by ``the time 
of submission of offer.'' This interpretation of the FAR clause is 
incorrect. This final rule amends the FAR to clarify that 8(a) joint 
ventures are not certified into the 8(a) program, and that 8(a) joint 
venture agreements need only be approved by the SBA prior to the award 
of an 8(a) sole source contract to prevent the improper elimination of 
8(a) joint venture proposals in the future.
f. Clarify Size Status for Mentor-Prot[eacute]g[eacute] Joint Ventures
    Comment: One respondent asked to clarify if a joint venture between 
a prime contractor and prot[eacute]g[eacute] in a socioeconomic program 
is considered a small business concern within that socioeconomic 
program. The respondent also asked to clarify if a joint venture 
between a mentor and a prot[eacute]g[eacute] (other than small business 
mentor and small business prot[eacute]g[eacute]) is a ``small business 
joint venture.''
    Response: The SBA regulations at 13 CFR 121.103(h) and 125.8(a) and 
(b) specify the requirements for joint ventures to qualify as a small 
business concern. The final rule amends FAR 19.3, Determination of 
Small Business Status for Small Business Programs, to address how a 
joint venture may qualify for an award as a small business concern 
under the socioeconomic programs. A joint venture may qualify as a 
small business concern if each participant in the joint venture 
qualifies as small under the size standard for the solicitation, or the 
prot[eacute]g[eacute] is small under the size standard for the 
solicitation in a joint venture comprised of a mentor and 
prot[eacute]g[eacute] with an approved agreement under a SBA mentor 
prot[eacute]g[eacute] program. A joint venture may qualify under 
socioeconomic programs when the joint venture qualifies as a small 
business joint venture and one of the parties to the joint venture 
qualifies under one or more of the socioeconomic programs. Therefore, 
an offer submitted by the joint venture made up of a mentor and 
prot[eacute]g[eacute] will be considered small. The language in the 
final rule is consistent with SBA's regulations.
g. Clarify 8(a) Certification Requirements for a Small Business Joint 
Venture Party
    Comment: Two respondents requested clarification regarding section 
8(a) certification requirements for small business joint ventures prior 
to proposal submission. Additionally, one respondent requested that the 
specific requirements be provided. The respondent also stated that 
since SBA does not certify joint ventures into the 8(a) program, once a 
firm outgrows its small business status for the size standard for its 
primary NAICS code, it should no longer be eligible for contracting 
benefits from its mentor-prot[eacute]g[eacute] relationship.
    Response: In accordance with 13 CFR 124.513(e)(1), for 8(a) sole-
source awards, SBA approves the joint venture agreement prior to award. 
SBA's final rule at 85 FR 66146 published on October 16, 2020, amended 
13 CFR 124.513(e)(1) to specify that SBA will not approve joint 
ventures in connection with competitive 8(a) awards (but see 13 CFR 
124.501(g) for SBA's determination of participant eligibility). As a 
result, changes are made to the text in this final rule at FAR 19.805-
2(d).
h. Clarify the Method Used To Determine the Percentage of Work 
Performed in the Rule
    Comment: One respondent asked to clarify how the Councils 
determined the requirement that certain small business parties to the 
joint venture must perform 40% of non-administrative work performed by 
the joint venture.
    Response: This case implements SBA's final rule published on July 
25, 2016 at 81 FR 48558. SBA's final rule established the requirement 
that certain small business parties to the joint venture perform 40% of 
all work done by the joint venture, and that work performed is more 
than merely administrative work.

C. Other Changes

    Changes have been made to FAR 19.1503(f)(2) to clarify at least one 
party to the joint venture is an EDWOSB for an EDWOSB joint venture, or 
at least one party to the joint venture is a WOSB for a WOSB joint 
venture. Additionally, conforming changes have been made to FAR clauses 
52.219-3, Notice of HUBZone Set-aside or Sole-Source Award and 52.219-
4, Notice of Price Evaluation Preference for HUBZone Small Business 
Concerns, and paragraph numbers for FAR clauses 52.219-27, Notice of 
Service-Disabled Veteran-Owned Small Business Set-Aside, 52.219-29, 
Notice of Set-Aside for, or Sole-Source Award to, Economically 
Disadvantaged Women-Owned Small Business Concerns, and 52.219-30, 
Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small 
Business Concerns Eligible Under the Women-Owned Small Business 
Program, were revised due to baseline changes.

[[Page 58222]]

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

    This rule amends the provisions and clauses at FAR 52.212-3, 
52.212-5, 52.213-4, 52.219-1, 52.219-3, 52.219-4, 52.219-8, 52.219-9, 
52.219-14, 52.219-18, 52.219-27, 52.219-28, 52.219-29, 52.219-30, and 
52.244-6. However, this rule does not change the application to 
solicitations and contracts at or below the SAT or for commercial 
products (including COTS items) or for commercial services. The 
provisions and clauses continue to apply to acquisitions for commercial 
products (including COTS items), to acquisitions for commercial 
services, and acquisitions at or below the SAT.

A. Applicability to Contracts at or Below the SAT

    41 U.S.C. 1905 governs the applicability of laws to acquisitions at 
or below the SAT. Section 1905 generally limits the applicability of 
new laws when agencies are making acquisitions at or below the SAT, but 
provides that such acquisitions will not be exempt from a provision of 
law under certain circumstances, including when the Federal Acquisition 
Regulatory Council (FAR Council) makes a written determination and 
finding that it would not be in the best interest of the Federal 
Government to exempt contracts and subcontracts in amounts not greater 
than the SAT from the provision of law.
    The FAR Council has made a determination to apply this statute to 
acquisitions at or below the SAT. Application of section 1641 to SAT 
procurements will further the Administration's efforts to advance 
equity in procurement, consistent with Executive Order 13985, Advancing 
Racial Equity and Support for Underserved Communities Through the 
Federal Government, and promote ``maximum practicable opportunities'' 
for small businesses, consistent with the longstanding policy expressed 
in FAR 19.201. Although acquisitions under the SAT are set aside for 
small businesses by law, some awards are made to other than small 
businesses because small businesses are not able to meet the 
performance requirements. Section 1641 advances the interests of small 
business concerns by allowing for more joint ventures that include a 
small business to qualify as a small business or under a socioeconomic 
program. This access allows such small businesses to perform work under 
SAT set-asides as part of a joint venture that they cannot perform as 
stand-alone entities. Exclusion of a large segment of Federal 
contracting, such as acquisitions under the SAT, will limit the full 
implementation of these objectives.

B. Applicability to Contracts for the Acquisition of Commercial 
Products (Including Commercially Available Off-the-Shelf Items) and for 
Commercial Services

    41 U.S.C. 1906 governs the applicability of laws to contracts for 
the acquisition of commercial products or commercial services, and is 
intended to limit the applicability of laws to those contracts. Section 
1906 provides that if the FAR Council makes a written determination 
that it is not in the best interest of the Federal Government to exempt 
contracts and subcontracts for commercial products or commercial 
services, the provision of law will apply to them.
    41 U.S.C. 1907 states that acquisitions of COTS items will be 
exempt from a provision of law unless certain circumstances apply, 
including if the Administrator for Federal Procurement Policy makes a 
written determination and finding that it would not be in the best 
interest of the Federal Government to exempt contracts for the 
procurement of COTS items from the provision of law.
    The FAR Council has made a determination to apply this statute to 
acquisitions for commercial products or commercial services. The 
Administrator for Federal Procurement Policy has made a determination 
to apply this statute to acquisitions for COTS items. Application of 
section 1641 to acquisitions of commercial products and commercial 
services, including COTS items, would further the Administration's 
efforts to advance equity in procurement, consistent with Executive 
Order 13985, Advancing Racial Equity and Support for Underserved 
Communities Through the Federal Government, and promote ``maximum 
practicable opportunities'' for small businesses, consistent with the 
longstanding policy expressed in FAR 19.201. Section 1641 advances the 
interests of small business concerns by allowing for more joint 
ventures that include a small business to qualify as a small business 
or under a socioeconomic program. This access allows such small 
businesses to perform work under set-aside procurements of commercial 
products and services, including COTS items, as part of a joint venture 
that they cannot perform as stand-alone entities. Exclusion of a large 
segment of Federal contracting, such as acquisitions of commercial 
products and commercial services, including COTS items, will limit the 
full implementation of these objectives.

IV. Expected Impact of the Rule

    This final rule will allow joint ventures to qualify as small if 
all parties to the joint venture qualify as small under the size 
standard associated with the NAICS code for the solicitation, or if the 
joint venture is comprised of a mentor and prot[eacute]g[eacute] in the 
SBA Mentor-Prot[eacute]g[eacute] Program. Additionally, this rule 
allows a joint venture to qualify for one of the socioeconomic programs 
if the joint venture qualifies as a small business joint venture and 
one of the parties to the joint venture meets the associated 
requirements of the socioeconomic program. The joint venture will 
identify its size and socioeconomic status in accordance with FAR 
52.212-3, Offeror Representations and Certifications--Commercial 
Products and Commercial Services, and 52.219-1, Small Business Program 
Representations.
    This rule requires agencies to consider the past performance of 
each party to a joint venture if the joint venture is not able to 
demonstrate past performance for an offer for award. Currently, 
agencies are not required to review the past performance of each party 
to a joint venture; therefore, this rule is expected to help joint 
ventures to have qualifying past performance for award when a joint 
venture does not have qualifying past performance. This additional 
requirement is beneficial to joint ventures that are in the initial 
stages of their agreement and do not have past performance experience.
    This rule revises the FAR to align 8(a) joint venture requirements 
with SBA's regulations, which is expected to decrease the number of 
protests. This rule clarifies that SBA does not approve joint ventures 
for competitive 8(a) awards. In addition, this rule revises the FAR to 
include SBA's requirement that small business parties to a joint 
venture must perform 40% of the work done by the joint venture and that 
the work performed must be more than merely administrative.

V. 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

[[Page 58223]]

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.

VI. 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. 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.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    DoD, GSA, and NASA are issuing a final rule amending the Federal 
Acquisition Regulation (FAR) to implement section 1347 of the Small 
Business Jobs Act of 2010 (Pub. L. 111-240) and section 1641 of the 
National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 
112-239; 15 U.S.C. 657r) regarding joint ventures as implemented by 
the Small Business Administration (SBA) in its final rule at 81 FR 
48558, published on July 25, 2016. The rule also implements SBA's 
final rule published on October 16, 2020, at 85 FR 66146. The 
statutory and regulatory changes establish the mentor-
prot[eacute]g[eacute] program, clarify that 8(a) joint ventures are 
not certified into the 8(a) program, and specify that SBA no longer 
approves joint venture agreements for competitive 8(a) awards.
    There were no significant issues raised by the public comments 
in response to the initial regulatory flexibility analysis.
    The final rule 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. 601-612. This rule will impact 
small business joint ventures and small business entities in a SBA 
mentor-prot[eacute]g[eacute] program. Based on joint venture data in 
the System for Award Management, the estimated number of small 
business joint ventures is 3,347. Assuming that each joint venture 
includes 2 small businesses, the number of small entities impacted 
is 6,694. According to SBA's final rule, there are an estimated 
2,000 pairs of mentors and prot[eacute]g[eacute]s that may be 
impacted. Therefore, the estimated number of total small entities to 
which the rule applies is 8,694.
    This final rule does not include any recordkeeping or other 
compliance requirements for small businesses.
    Joint ventures will be required to represent themselves as small 
businesses in accordance with the updated representation provisions 
at FAR 52.212-3 or 52.219-1. Representation is currently required 
for all small entities doing business with the Government; however, 
representation is not a new requirement. The number of options for 
the entities to select from has merely increased to include joint 
venture options. Therefore, the potential impact is de minimis.
    The final rule may have a positive economic impact on small 
entities. The updated SBA regulations allow for more joint ventures 
that include a small business to qualify as a small business or 
under a socioeconomic program; and therefore, more small businesses 
can qualify for set-aside procurements.
    There are no known significant alternative approaches to the 
final rule.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
SBA.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies to the 
information collection requirements in the provision at FAR 52.212-3, 
Offeror Representations and Certifications--Commercial Products and 
Commercial Services; however, these changes to the FAR do not impose 
additional information collection requirements to the paperwork burden 
previously approved under OMB Control Numbers 9000-0136 and 9000-0007.

List of Subjects in 48 CFR Parts 2, 9, 15, 19, and 52

    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 parts 2, 9, 15, 19, and 
52 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 9, 15, 19, and 52 
continues to read as follows:

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

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101, in paragraph (b)(2), by revising paragraph (1) 
of the definition of ``Small business concern'' to read as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Small business concern--
    (1) Means a concern, including its affiliates, that is 
independently owned and operated, not dominant in its field of 
operation, and qualified as a small business under the criteria and 
size standards in 13 CFR part 121 (see 19.102).
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
3. Amend section 9.104-3 by redesignating paragraph (c) as paragraph 
(c)(1) and adding paragraph (c)(2) to read as follows:


9.104-3   Application of standards.

* * * * *
    (c)(1) * * *
    (2) Joint ventures. For a prospective contractor that is a joint 
venture, the contracting officer shall consider the past performance of 
the joint venture. If the joint venture does not demonstrate past 
performance for award, the contracting officer shall consider the past 
performance of each party to the joint venture.
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

0
4. Amend section 15.305 by adding paragraph (a)(2)(vi) to read as 
follows:


15.305   Proposal evaluation.

    (a) * * *
    (2) * * *
    (vi) For offerors that are joint ventures, the evaluation shall 
take into account past performance of the joint venture. If the joint 
venture does not demonstrate past performance for award, the 
contracting officer shall consider the past performance of each party 
to the joint venture.
* * * * *

PART 19--SMALL BUSINESS PROGRAMS

0
5. Amend section 19.301-1 by revising paragraph (a) to read as follows:


19.301-1   Representation by the offeror.

    (a)(1) To be eligible for award as a small business concern 
identified in 19.000(a)(3), an offeror is required to represent in good 
faith--
    (i)(A) That it meets the small business size standard corresponding 
to the North American Industry Classification System (NAICS) code 
identified in the solicitation; or
    (B) For a multiple-award contract where there is more than one 
NAICS

[[Page 58224]]

code assigned, that it meets the small business size standard for each 
distinct portion or category (e.g., line item numbers, Special Item 
Numbers (SINs), sectors, functional areas, or the equivalent) for which 
it submits an offer. If the small business concern submits an offer for 
the entire multiple-award contract, it must meet the size standard for 
each distinct portion or category (e.g., line item number, SIN, sector, 
functional area, or equivalent); and
    (ii) The Small Business Administration (SBA) has not issued a 
written determination stating otherwise pursuant to 13 CFR 121.1009.
    (2)(i) A joint venture may qualify as a small business concern if 
the joint venture complies with the requirements of 13 CFR 121.103(h) 
and 13 CFR 125.8(a) and (b) and if--
    (A) Each party to the joint venture qualifies as small under the 
size standard for the solicitation; or
    (B) The prot[eacute]g[eacute] is small under the size standard for 
the solicitation in a joint venture comprised of a mentor and 
prot[eacute]g[eacute] with an approved mentor-prot[eacute]g[eacute] 
agreement under an SBA mentor-prot[eacute]g[eacute] program.
    (ii) A joint venture may qualify for an award under the 
socioeconomic programs as described in subparts 19.8, 19.13, 19.14, and 
19.15.
* * * * *

0
6. Amend section 19.703 by--
0
a. Removing from paragraph (a)(2)(i) and paragraph (a)(2)(ii) 
introductory text, the phrase ``small business, or'' and adding the 
phrase ``small business, HUBZone small business, or'' in its place, 
respectively; and
0
b. Revising paragraph (d).
    The revision reads as follows:


19.703   Eligibility requirements for participating in the program.

* * * * *
    (d) Protests challenging the socioeconomic status of a HUBZone 
small business concern must be filed in accordance with 13 CFR 126.801.
* * * * *

0
7. Amend section 19.804-3 in paragraph (c) introductory text by adding 
a sentence to the end of the paragraph to read as follows:


19.804-3   SBA acceptance.

* * * * *
    (c) * * * For a joint venture, SBA will determine eligibility as 
part of its acceptance of a sole-source requirement and will approve 
the joint venture agreement prior to award in accordance with 13 CFR 
124.513(e).
* * * * *

0
8. Amend section 19.805-2 by revising paragraph (b) introductory text 
and adding paragraph (d) to read as follows:


19.805-2   Procedures.

* * * * *
    (b) The SBA will determine the eligibility of the apparent 
successful offeror. Eligibility is based on section 8(a) program 
criteria. See paragraph (d) of this section regarding eligibility of 
joint ventures.
* * * * *
    (d)(1) SBA does not certify joint ventures, as entities, into the 
8(a) program.
    (2) A contracting officer may consider a joint venture for contract 
award. SBA does not approve joint ventures for competitive awards (but 
see 13 CFR 124.501(g) for SBA's determination of participant 
eligibility).

0
9. Amend section 19.1303 by revising paragraph (c) to read as follows:


19.1303   Status as a HUBZone small business concern.

* * * * *
    (c) A joint venture may be considered a HUBZone small business 
concern if--
    (1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
    (2) At least one party to the joint venture is a HUBZone small 
business concern; and
    (3) The joint venture complies with 13 CFR 126.616(a) through (c).
* * * * *

0
10. Amend section 19.1403 by revising paragraph (c) to read as follows:


19.1403   Status as a service-disabled veteran-owned small business 
concern.

* * * * *
    (c) A joint venture may be considered a service-disabled veteran 
owned small business concern if--
    (1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
    (2) At least one party to the joint venture is a service-disabled 
veteran-owned small business concern, and makes the representations in 
paragraph (b) of this section; and
    (3) The joint venture complies with the requirements of 13 CFR 
125.18(b).
* * * * *

0
11. Amend section 19.1503 by revising paragraph (f) to read as follows:


19.1503   Status.

* * * * *
    (f) A joint venture may be considered an EDWOSB concern or WOSB 
concern eligible under the WOSB Program if--
    (1) The joint venture qualifies as small under 19.301-1(a)(2)(i);
    (2)(i) At least one party to the joint venture is an EDWOSB for an 
EDWOSB joint venture, or at least one party to the joint venture is a 
WOSB for a WOSB joint venture; and
    (ii) That party complies with the criteria in paragraph (b) of this 
section; and
    (3) The joint venture complies with the requirements of 13 CFR 
127.506(a) through (c).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. Amend section 52.212-3 by--
0
a. Revising the date of the provision;
0
b. Removing from the introductory text of the provision the phrase 
``(c) through (v))'' and adding the phrase ``(c) through (v)'' in its 
place;
0
c. In paragraph (a), revising paragraph (1) of the definition ``Small 
business concern'';
0
d. Revising paragraphs (c)(1) and (3);
0
e. Removing from the end of paragraph (c)(6)(i) the word ``and'' and 
adding the word ``or'' in its place;
0
f. Revising paragraph (c)(6)(ii);
0
g. Removing from the end of paragraph (c)(7)(i) the word ``and'' and 
adding the word ``or'' in its place;
0
h. Revising paragraph (c)(7)(ii);
0
i. Revising the bracketed sentence in paragraph (c)(10);
0
j. Removing from the end of paragraph (c)(10)(i) the phrase ``13 CFR 
Part 126; and'' and adding the phrase ``13 CFR 126.200; or'' in its 
place; and
0
k. Revising paragraph (c)(10)(ii).
    The revisions read as follows:


52.212-3   Offeror Representations and Certifications--Commercial 
Products and Commercial Services.

* * * * *

Offeror Representations and Certifications--Commercial Products and 
Commercial Services (OCT 2022)

* * * * *
    (a) * * *
    Small business concern--(1) Means a concern, including its 
affiliates, that is independently owned and operated, not dominant 
in its field of operation, and qualified as a small business under 
the criteria in 13 CFR part 121 and size standards in this 
solicitation.
* * * * *
    (c) * * *
    (1) Small business concern. The offeror represents as part of 
its offer that--
    (i) It [square] is, [square] is not a small business concern; or
    (ii) It [square] is, [square] is not a small business joint 
venture that complies with the requirements of 13 CFR 121.103(h) and 
13 CFR 125.8(a) and (b). [The offeror shall enter the name and 
unique entity identifier of each party to the joint venture: __.]
* * * * *

[[Page 58225]]

    (3) Service-disabled veteran-owned small business concern. 
[Complete only if the offeror represented itself as a veteran-owned 
small business concern in paragraph (c)(2) of this provision.] The 
offeror represents as part of its offer that--
    (i) It [square] is, [square] is not a service-disabled veteran-
owned small business concern; or
    (ii) It [square] is, [square] is not a joint venture that 
complies with the requirements of 13 CFR 125.18(b)(1) and (2). [The 
offeror shall enter the name and unique entity identifier of each 
party to the joint venture: __.] Each service-disabled veteran-owned 
small business concern participating in the joint venture shall 
provide representation of its service-disabled veteran-owned small 
business concern status.
* * * * *
    (6) * * *
    (ii) It [square] is, [square] is not a joint venture that 
complies with the requirements of 13 CFR 127.506(a) through (c). 
[The offeror shall enter the name and unique entity identifier of 
each party to the joint venture: __.] Each WOSB concern eligible 
under the WOSB Program participating in the joint venture shall 
provide representation of its WOSB status.
    (7) * * *
    (ii) It [square] is, [square] is not a joint venture that 
complies with the requirements of 13 CFR 127.506(a) through (c). 
[The offeror shall enter the name and unique entity identifier of 
each party to the joint venture:__.] Each EDWOSB concern 
participating in the joint venture shall provide representation of 
its EDWOSB status.

    Note to Paragraphs (c)(8) and (9): Complete paragraphs (c)(8) 
and (9) only if this solicitation is expected to exceed the 
simplified acquisition threshold.

* * * * *
    (10) * * * [Complete only if the offeror represented itself as a 
small business concern in paragraph (c)(1) of this provision.] * * *
* * * * *
    (ii) It [square] is, [square] is not a HUBZone joint venture 
that complies with the requirements of 13 CFR 126.616(a) through 
(c). [The offeror shall enter the name and unique entity identifier 
of each party to the joint venture:__.] Each HUBZone small business 
concern participating in the HUBZone joint venture shall provide 
representation of its HUBZone status.
* * * * *

0
13. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(11) the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place;
0
c. Removing from paragraph (b)(12) the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place;
0
d. Removing from paragraph (b)(16) the date ``(OCT 2018)'' and adding 
the date ``(OCT 2022)'' in its place;
0
e. Removing from paragraph (b)(17)(i) the date ``(NOV 2021)'' and 
adding the date ``(OCT 2022)'' in its place;
0
f. Removing from paragraph (b)(19) the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place;
0
g. Removing from paragraph (b)(21) the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place;
0
h. Removing from paragraph (b)(22)(i) the date ``(SEP 2021)'' and 
adding the date ``(OCT 2022)'' in its place;
0
i. Removing from paragraph (b)(23) the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place;
0
j. Removing from paragraph (b)(24) the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place;
0
k. Removing from paragraph (e)(1)(v) the date ``(OCT 2018)'' and adding 
the date ``(OCT 2022)'' in its place;
0
l. Revising the date of Alternate II; and
0
m. Removing from paragraph (e)(1)((ii)(E) of Alternate II the date 
``(OCT 2018)'' and adding the date ``(OCT 2022)'' in its place.
    The revisions read as follows:


52.212-5   Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (OCT 
2022)

* * * * *
Alternate II (OCT 2022). * * *
* * * * *

0
14. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(2)(viii) the date ``(JAN 2022)'' and 
adding the date ``(OCT 2022)'' in its place.
    The revision reads as follows:


52.213-4   Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (OCT 2022)

* * * * *

0
15. Amend section 52.219-1 by--
0
a. Revising the date of the provision;
0
b. In paragraph (a), revising paragraph (1) in the definition of 
``Small business concern'';
0
c. Revising paragraph (c)(1);
0
d. Removing from the end of paragraph (c)(4)(i) the word ``and'' and 
adding the word ``or'' in its place;
0
e. Revising paragraph (c)(4)(ii);
0
f. Removing from the end of paragraph (c)(5)(i) the word ``and'' and 
adding the word ``or'' in its place;
0
g. Revising paragraphs (c)(5)(ii) and (c)(7);
0
h. Removing from the end of paragraph (c)(8)(i) the phrase ``13 CFR 
Part 126; and'' and adding the phrase ``13 CFR 126.200; or'' in its 
place; and
0
i. Revising paragraph (c)(8)(ii).
    The revisions read as follows:


52.219-1   Small Business Program Representations.

* * * * *

Small Business Program Representations (OCT 2022)

* * * * *
    Small business concern-- (1) Means a concern, including its 
affiliates, that is independently owned and operated, not dominant 
in its field of operation, and qualified as a small business under 
the criteria in 13 CFR part 121 and the size standard in paragraph 
(b) of this provision.
* * * * *
    (c) * * *
    (1) The offeror represents as part of its offer that--
    (i) It [square] is, [square] is not a small business concern; or
    (ii) It [square] is, [square] is not a small business joint 
venture that complies with the requirements of 13 CFR 121.103(h) and 
13 CFR 125.8(a) and (b). [The offeror shall enter the name and 
unique entity identifier of each party to the joint venture:__.]
* * * * *
    (4) * * *
    (ii) It [square]; is, [square] is not a joint venture that 
complies with the requirements of 13 CFR 127.506(a) through (c). 
[The offeror shall enter the name and unique entity identifier of 
each party to the joint venture: __.] Each WOSB concern eligible 
under the WOSB Program participating in the joint venture shall 
provide representation of its WOSB status.
* * * * *
    (5) * * *
    (ii) It [square] is, [square] is not a joint venture that 
complies with the requirements of 13 CFR 127.506(a) through (c). 
[The offeror shall enter the name and unique entity identifier of 
each party to the joint venture: __.] Each EDWOSB concern 
participating in the joint venture shall provide representation of 
its EDWOSB status.
* * * * *
    (7) [Complete only if the offeror represented itself as a 
veteran-owned small business concern in paragraph (c)(6) of this 
provision.] The offeror represents as part of its offer that--
    (i) It [square] is, [square] is not a service-disabled veteran-
owned small business concern; or
    (ii) It [square] is, [square] is not a service-disabled veteran-
owned joint venture that complies with the requirements of 13 CFR 
125.18(b)(1) and (2). [The offeror shall enter the name and unique 
entity identifier of each party to the joint venture:__.] Each 
service-disabled veteran-owned small business concern participating 
in the joint venture shall provide representation of its service-
disabled veteran-owned small business concern status.
    (8) * * *
    (ii) It [square] is, [square] is not a HUBZone joint venture 
that complies with the requirements

[[Page 58226]]

of 13 CFR 126.616(a) through (c). [The offeror shall enter the name 
and unique entity identifier of each party to the joint venture: 
__.] Each HUBZone small business concern participating in the 
HUBZone joint venture shall provide representation of its HUBZone 
status.
* * * * *

0
16. Amend section 52.219-3 by revising the date of the clause and 
adding paragraphs (e) and (f) to read as follows:


52.219-3   Notice of HUBZone Set-Aside or Sole-Source Award.

* * * * *

Notice of HUBZone Set-Aside or Sole-Source Award (OCT 2022)

* * * * *
    (e) Joint venture. A joint venture may be considered a HUBZone 
concern if--
    (1) At least one party to the joint venture is a HUBZone small 
business concern and complies with 13 CFR 126.616(c); and
    (2) Each party to the joint venture qualifies as small under the 
size standard for the solicitation, or the prot[eacute]g[eacute] is 
small under the size standard for the solicitation in a joint 
venture comprised of a mentor and prot[eacute]g[eacute] with an 
approved mentor-prot[eacute]g[eacute] agreement under the SBA 
mentor-prot[eacute]g[eacute] program.
    (f) A HUBZone joint venture agrees that, in the performance of 
the contract, at least 40 percent of the aggregate work performed by 
the joint venture shall be completed by the HUBZone small business 
parties to the joint venture. Work performed by the HUBZone small 
business party or parties to the joint venture must be more than 
administrative functions.
* * * * *

0
17. Amend section 52.219-4 by revising the clause title and date and 
adding paragraph (d) to read as follows:


52.219-4  Notice of Price Evaluation Preference for HUBZone Small 
Business Concerns.

* * * * *

Notice of Price Evaluation Preference for HUBZone Small Business 
Concerns (OCT 2022)

* * * * *
    (d) A HUBZone joint venture agrees that, in the performance of 
the contract, at least 40 percent of the aggregate work performed by 
the joint venture shall be completed by the HUBZone small business 
parties to the joint venture. Work performed by the HUBZone small 
business parties to the joint venture must be more than 
administrative functions.
* * * * *

0
18. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), revising the definition of ``Small business 
concern'';
0
c. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e) and 
adding a new paragraph (c); and
0
d. Revising newly redesignated paragraph (e)(5) introductory text.
    The revisions read as follows:


52.219-8   Utilization of Small Business Concerns.

* * * * *

Utilization of Small Business Concerns (OCT 2022)

* * * * *
    (a) * * *
    Small business concern means a concern, including its 
affiliates, that is independently owned and operated, not dominant 
in its field of operation and qualified as a small business under 
the criteria and size standards in 13 CFR part 121, including the 
size standard that corresponds to the NAICS code assigned to the 
contrac t or subcontract.
* * * * *
    (c)(1) A joint venture qualifies as a small business concern 
if--
    (i) Each party to the joint venture qualifies as small under the 
size standard for the solicitation; or
    (ii) The prot[eacute]g[eacute] is small under the size standard 
for the solicitation in a joint venture comprised of a mentor and 
prot[eacute]g[eacute] with an approved mentor-prot[eacute]g[eacute] 
agreement under a SBA mentor-prot[eacute]g[eacute] program.
    (2) A joint venture qualifies as--
    (i) A service-disabled veteran-owned small business concern if 
it complies with the requirements in 13 CFR part 125; or
    (ii) A HUBZone small business concern if it complies with the 
requirements in 13 CFR 126.616(a) through (c).
* * * * *
    (e) * * *
    (5) The Contractor shall confirm that a subcontractor 
representing itself as a HUBZone small business concern is certified 
by SBA as a HUBZone small business concern. If the subcontractor is 
a joint venture, the Contractor shall confirm that at least one 
party to the joint venture is certified by SBA as a HUBZone small 
business concern. The Contractor may confirm the representation by 
accessing the System for Award Management or contacting SBA. Options 
for contacting the SBA include--
* * * * *

0
19. Amend section 52.219-9 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (e)(4) the phrase ``52.219-8(d)(2)'' and 
adding the phrase ``52.219-8(e)(2)'' in its place.
    The revision reads as follows:


52.219-9  Small Business Subcontracting Plan.

* * * * *

Small Business Subcontracting Plan (OCT 2022)

* * * * *

0
20. Amend section 52.219-14 by revising the date of the clause and 
paragraph (g) to read as follows:


52.219-14   Limitations on Subcontracting.

* * * * *

Limitations on Subcontracting (OCT 2022)

* * * * *
    (g) A joint venture agrees that, in the performance of the 
contract, the applicable percentage specified in paragraph (e) of 
this clause will be performed by the aggregate of the joint venture 
participants.
    (1) In a joint venture comprised of a small business 
prot[eacute]g[eacute] and its mentor approved by the Small Business 
Administration, the small business prot[eacute]g[eacute] shall 
perform at least 40 percent of the work performed by the joint 
venture. Work performed by the small business prot[eacute]g[eacute] 
in the joint venture must be more than administrative functions.
    (2) In an 8(a) joint venture, the 8(a) participant(s) shall 
perform at least 40 percent of the work performed by the joint 
venture. Work performed by the 8(a) participants in the joint 
venture must be more than administrative functions.
* * * * *

0
21. Amend section 52.219-18 by--
0
a. Revising the date of the clause and paragraph (a);
0
b. Removing from paragraph (b) the phrase ``all of the'' and adding the 
phrase ``the applicable'' in its place;
0
c. Adding a sentence to the end of paragraph (c); and
0
d. Revising Alternate I.
    The revisions and addition read as follows:


52.219-18   Notification of Competition Limited to Eligible 8(a) 
Participants.

* * * * *

Notification of Competition Limited to Eligible 8(a) Participants (OCT 
2022)

    (a) Offers are solicited only from--
    (1) Small business concerns expressly certified by the Small 
Business Administration (SBA) for participation in SBA's 8(a) 
program and which meet the following criteria at the time of 
submission of offer--
    (i) The Offeror is in conformance with the 8(a) support 
limitation set forth in its approved business plan; and
    (ii) The Offeror is in conformance with the Business Activity 
Targets set forth in its approved business plan or any remedial 
action directed by SBA;
    (2) A joint venture, in which at least one of the 8(a) program 
participants that is a party to the joint venture complies with the 
criteria set forth in paragraph (a)(1) of this clause, that complies 
with 13 CFR 124.513(c); or
    (3) A joint venture--
    (i) That is comprised of a mentor and an 8(a) 
prot[eacute]g[eacute] with an approved mentor-prot[eacute]g[eacute] 
agreement under the 8(a) program;
    (ii) In which at least one of the 8(a) program participants that 
is a party to the joint venture complies with the criteria set forth 
in paragraph (a)(1) of this clause; and
    (iii) That complies with 13 CFR 124.513(c).
* * * * *
    (c) * * * A contracting officer may consider a joint venture for 
contract award. SBA does not approve joint ventures for competitive 
awards, but see 13 CFR 124.501(g) for SBA's determination of 
participant eligibility.
* * * * *

[[Page 58227]]

    Alternate I (OCT 2022). If the competition is to be limited to 
8(a) participants within one or more specific SBA regions or 
districts, add the following paragraph (a)(1)(iii) to paragraph (a) 
of the clause:
    (iii) The offeror's approved business plan is on the file and 
serviced by __[Contracting Officer completes by inserting the 
appropriate SBA District and/or Regional Office(s) as identified by 
the SBA].

0
22. Amend section 52.219-27 by revising the date of the clause and 
paragraph (d) and adding paragraph (e) to read as follows:


52.219-27   Notice of Service-Disabled Veteran-Owned Small Business 
Set-Aside.

* * * * *

Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (OCT 
2022)

* * * * *
    (d) A joint venture may be considered a service-disabled veteran 
owned small business concern if--
    (1) At least one party to the joint venture complies with the 
criteria defined in paragraph (a) of this clause and 13 CFR 
125.18(b)(2); and
    (2) Each party to the joint venture is small under the size 
standard corresponding to the NAICS code assigned to the 
procurement, or the prot[eacute]g[eacute] is small under the size 
standard corresponding to the NAICS code assigned to the procurement 
in a joint venture comprised of a mentor and prot[eacute]g[eacute] 
with an approved mentor-prot[eacute]g[eacute] agreement under an SBA 
mentor-prot[eacute]g[eacute] program.
    (e) In a joint venture that complies with paragraph (f) of this 
clause, the service-disabled veteran-owned small business party or 
parties to the joint venture shall perform at least 40 percent of 
the work performed by the joint venture. Work performed by the 
service-disabled veteran-owned small business party or parties to 
the joint venture must be more than administrative functions.
* * * * *

0
23. Amend section 52.219-28 by revising the date of the clause, and in 
paragraph (a) revising paragraph (1) of the definition of ``Small 
business concern'' to read as follows:


52.219-28  Post-Award Small Business Program Rerepresentation.

* * * * *

Post-Award Small Business Program Rerepresentation (OCT 2022)

    (a) * * *
    Small business concern--
    (1) Means a concern, including its affiliates, that is 
independently owned and operated, not dominant in its field of 
operation, and qualified as a small business under the criteria in 
13 CFR part 121 and the size standard in paragraph (d) of this 
clause.
* * * * *

0
24. Amend section 52.219-29 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), in the definition ``Economically disadvantaged 
women-owned small business (EDWOSB)'' removing the phrase ``It 
automatically'' and adding the phrase ``An EDWOSB concern 
automatically'' in its place;
0
c. Revising paragraph (d); and
0
d. Adding paragraph (e).
    The revisions and addition read as follows:


52.219-29   Notice of Set-Aside for, or Sole-Source Award to, 
Economically Disadvantaged Women-Owned Small Business Concerns.

* * * * *

Notice of Set-Aside for, or Sole-Source Award to, Economically 
Disadvantaged Women-Owned Small Business Concerns (OCT 2022)

* * * * *
    (d) Joint Venture. A joint venture may be considered an EDWOSB 
concern if--
    (1) At least one party to the joint venture complies with the 
criteria defined in paragraph (a) and paragraph (c)(3) of this 
clause, and 13 CFR 127.506(c); and
    (2) Each party to the joint venture qualifies as small under the 
size standard for the solicitation, or the prot[eacute]g[eacute] is 
small under the size standard for the solicitation in a joint 
venture comprised of a mentor and prot[eacute]g[eacute] with an 
approved mentor-prot[eacute]g[eacute] agreement under the SBA 
mentor-prot[eacute]g[eacute] program.
    (e) In a joint venture that complies with paragraph (d) of this 
clause, the EDWOSB party or parties to the joint venture shall 
perform at least 40 percent of the work performed by the joint 
venture. Work performed by the EDWOSB party or parties to the joint 
venture must be more than administrative functions.
* * * * *

0
25. Amend section 52.219-30 by revising the date of the clause and 
paragraph (d) and adding paragraph (e) to read as follows:


52.219-30   Notice of Set-Aside for, or Sole-Source Award to, Women-
Owned Small Business Concerns Eligible Under the Women-Owned Small 
Business Program.

* * * * *

Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small 
Business Concerns Eligible Under the Women-Owned Small Business Program 
(OCT 2022)

* * * * *
    (d) Joint Venture. A joint venture may be considered a WOSB 
concern eligible under the WOSB Program if--
    (1) At least one party to the joint venture complies with the 
criteria defined in paragraph (a) and (c)(3) of this clause, and 13 
CFR 127.506(c); and
    (2) Each party to the joint venture qualifies as small under the 
size standard for the solicitation, or the prot[eacute]g[eacute] is 
small under the size standard for the solicitation in a joint 
venture comprised of a mentor and prot[eacute]g[eacute] with an 
approved mentor-prot[eacute]g[eacute] agreement under the SBA 
mentor-prot[eacute]g[eacute] program.
    (e) In a joint venture that complies with paragraph (d) of this 
clause, the WOSB party or parties to the joint venture shall perform 
at least 40 percent of the work performed by the joint venture. Work 
performed by the WOSB party or parties to the joint venture must be 
more than administrative functions.
* * * * *

0
26. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(vii) the date ``(OCT 2018)'' and 
adding the date ``(OCT 2022)'' in its place.
    The revision reads as follows:


52.244-6   Subcontracts for Commercial Products and Commercial 
Services.

* * * * *

Subcontracts for Commercial Products and Commercial Services (OCT 2022)

* * * * *
[FR Doc. 2022-20340 Filed 9-22-22; 8:45 am]
BILLING CODE 6820-EP-P