Federal Acquisition Regulation: Exemption of Certain Contracts From the Periodic Inflation Adjustments to the Acquisition-Related Thresholds, 58300-58302 [2022-20766]

Download as PDF 58300 Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer. posted without change to https:// www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission to verify posting. FOR FURTHER INFORMATION CONTACT: Ms. Marissa Ryba, Procurement Analyst, at 314–586–1280 or by email at marissa.ryba@gsa.gov, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755 or GSARegSec@gsa.gov. Please cite FAR Case 2022–002. SUPPLEMENTARY INFORMATION: [FR Doc. 2022–20711 Filed 9–23–22; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 1 [FAR Case 2022–002; Docket No. 2022– 0002; Sequence No. 1] RIN 9000–AO39 Federal Acquisition Regulation: Exemption of Certain Contracts From the Periodic Inflation Adjustments to the Acquisition-Related Thresholds Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2022 that provides a statutory exception to the periodic inflation adjustments of acquisition-related thresholds for certain bond requirements. SUMMARY: Interested parties should submit written comments to the Regulatory Secretariat Division at the address shown below on or before November 25, 2022 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAR Case 2022–002 to the Federal eRulemaking portal at https:// www.regulations.gov by searching for ‘‘FAR Case 2022–002’’. Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2022–002’’. Follow the instructions provided on the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2022–002’’ on your attached document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Instructions: Please submit comments only and cite ‘‘FAR Case 2022–002’’ in all correspondence related to this case. Comments received generally will be DATES: VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 I. Background DoD, GSA, and NASA are proposing to amend the FAR at section 1.109 to implement section 861 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117–81), which provides a statutory exception to the periodic inflation adjustments of acquisition-related thresholds under 41 U.S.C. 1908. A. What is an acquisition-related threshold? 41 U.S.C. 1908 is applicable to ‘‘a dollar threshold that is specified in law as a factor in defining the scope of the applicability of a policy, procedure, requirement, or restriction provided in that law to the procurement of property or services by an executive agency, as the [Federal Acquisition Regulatory] Council determines.’’ B. What acquisition-related thresholds are not subject to escalation adjustment? 41 U.S.C. 1908 does not permit escalation of acquisition-related thresholds established by the Construction Wage Rate Requirements statute (Davis Bacon Act), the Service Contract Labor Standards statute, or the United States Trade Representative pursuant to the authority of the Trade Agreements Act of 1979. C. Revisions to 41 U.S.C. 1908 Section 861 of the NDAA for FY 2022 modifies 41 U.S.C. 1908(b)(2) to add performance and payment bond requirements for construction in 40 U.S.C. chapter 31 to the already established list of acquisition-related thresholds that are not subject to escalation. The list appears in the FAR at 1.109(c). 40 U.S.C. chapter 31, subchapter III, Bonds (formerly known as the Miller Act) requires certain performance and payment bonds for construction PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 contracts. Sections 3131 through 3134 are the subject of the changes required by section 861. • 40 U.S.C. 3131 requires performance and payment bonds for any construction contract exceeding $100,000, unless otherwise waived. • 40 U.S.C. 3132 requires alternatives to payment bonds as payment protections for certain types of construction contracts. For construction contracts greater than $25,000, but not greater than $100,000, the contracting officer must select one or more payment protections. • 40 U.S.C. 3133 requires agencies to provide a certified copy of the payment bonds referenced in section 3131 to any person (e.g., subcontractor) who has not been paid or is being sued on the bond. • 40 U.S.C. 3134 provides waivers from the subchapter for certain contracts issued by the Military Departments, Department of Transportation, and the National Oceanic and Atmospheric Administration. The FAR threshold for performance and payment bonds at 28.102 is currently $150,000 as a result of one escalation adjustment in accordance with FAR 1.109. FAR Case 2008–024, published on August 30, 2010, at 75 FR 53129, raised the threshold by $50,000 from the $100,000 reflected in 40 U.S.C. 3131. The threshold was added to 52.228–11, Individual Surety—Pledge of Assets, after the most recent escalation, by FAR case 2017–003, published on January 14, 2021, at 86 FR 3682. The FAR threshold for alternatives to payment bonds at 28.102 is currently $35,000, as a result of two escalation adjustments in accordance with FAR 1.109. FAR Case 2004–033, published on September 28, 2006, at 71 FR 57363 and 2014–022 published on July 2, 2015, at 80 FR 38293, each raised the threshold by $5,000 from the $25,000 reflected at 40 U.S.C. 3132. II. Discussion and Analysis The proposed rule adds the statutory exception provided by section 861 to the list of acquisition-related thresholds that are not subject to escalation under 41 U.S.C. 1908 at FAR 1.109(c). Section 1908 does not permit the escalation of acquisition-related thresholds established by the following: • 40 U.S.C. 31, subchapter IV, Wage Rate Requirements (Construction). • 41 U.S.C. 67, Service Contract Labor Standards. • The United States Trade Representative under the Trade Agreements Act. The rule proposes to restructure FAR 1.109(c), by consolidating the citation for 40 U.S.C. chapter 31, subchapter III, E:\FR\FM\26SEP1.SGM 26SEP1 Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules Bonds, with the existing citation for subchapter IV, Wage Rate Requirements (Construction). Since section 861 requires the thresholds to remain at the current escalated values, no other changes are required for implementation. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Services and Commercial Products, Including Commercially Available Offthe-Shelf (COTS) Items This rule does not create new solicitation provisions or contract clauses or revise the text of any existing provisions or clauses. The rule does not change any current requirements in the provisions or clauses but does prevent future periodic inflation adjustments to an acquisition-related threshold. IV. Expected Impact of the Rule This rule is not expected to have a significant impact on the Government or industry because this rule maintains acquisition-related thresholds that have been in the FAR for several years without significant change. The FAR threshold for performance and payment bonds at 28.102 had one escalation adjustment in 2010, which raised the threshold by $50,000 from $100,000 and has since remained unchanged. The FAR threshold for alternatives to payment bonds at 28.102 is currently $35,000; it was escalated twice, one in 2006 and again in 2015. Each adjustment raised the threshold by $5,000 starting from $25,000. Since the second adjustment, this threshold has also remained unchanged. Because the acquisition-related thresholds under 28.102 have remained mostly unchanged, there is little expectation for future increases or changes that would affect Government and industry. There is also no expected cost impact of this rule since the acquisition-related thresholds will remain the same. There may be some benefit of consistency to the public by ensuring that the thresholds remain the same. 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 equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This rule is not anticipated to be a major rule under 5 U.S.C. 804. VII. Regulatory Flexibility Act DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601– 612, because the rule maintains the status quo. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 861 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117–81) that provides a statutory exception to the periodic inflation adjustments of acquisitionrelated thresholds for certain bond requirements. The objective of the proposed rule is to retain the current dollar thresholds for performance and payments bonds as well as the threshold for alternatives to such bonds until changed by statute. The legal basis for the rule is Section 861 of the NDAA for FY 2022 (Pub. L. 117–81). The proposed rule will apply to small entities performing construction services for the Government; however, the impact is expected to be de minimis. Contract actions with a value between $35,000 and $150,000 will still require an alternative to payment bonds for payment protection, and those with a value exceeding $150,000 will still require performance and payment bonds. The rule makes permanent the thresholds that have been in place for several years, resulting in no changes for any entity performing construction services. Data obtained from the Federal Procurement Data System (FPDS) for FY 2019, 2020, and 2021 indicates that an average of 678 unique small entities received an estimated 1,219 awards annually that require alternatives to payment bonds. FPDS data also indicates that an average of 1,340 unique small entities received an estimated 2,706 awards that are subject to performance and payment bonds annually. Approximately PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 58301 2,018 (678 + 1,340) unique small entities will continue to comply with current bond requirements as a result of this proposed rule. The proposed rule does not include additional reporting or record keeping requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no available alternatives to the proposed rule to accomplish the desired objective of the statute. The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2022–002), in correspondence. VIII. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. 3501–3521) applies to the information collection described in this rule; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000–0045, Bid Guarantees, Performance and Payment Bonds, and Alternative Payment Protection. List of Subjects in 48 CFR Part 1 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 propose amending 48 CFR part 1 as set forth below: PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM 1. The authority citation for 48 CFR part 1 continues to read as follows: ■ Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. 2. Amend section 1.109 by revising paragraph (c)(1) to read as follows: ■ 1.109 Statutory acquisition—related dollar thresholds—adjustment for inflation. * * * (c) * * * E:\FR\FM\26SEP1.SGM 26SEP1 * * 58302 Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules (1) 40 U.S.C. chapter 31— (i) Subchapter III, Bonds; and (ii) Subchapter IV, Wage Rate Requirements (Construction); * * * * * [FR Doc. 2022–20766 Filed 9–23–22; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 220919–0194] RIN 0648–BL46 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; SnapperGrouper Fishery of the South Atlantic; Amendment 50 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS proposes regulations to implement Amendment 50 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). For red porgy, this proposed rule would revise the sector annual catch limits (ACLs), commercial seasonal quotas, commercial trip limits, recreational bag and possession limits, recreational fishing season, and recreational accountability measures (AMs). In addition, Amendment 50 would establish a new rebuilding plan, and revise the acceptable biological catch (ABC), annual optimum yield (OY), and sector allocations. The purpose of this proposed rule and Amendment 50 is to end overfishing of red porgy, rebuild the stock, and achieve OY while minimizing, to the extent practicable, adverse social and economic effects. DATES: Written comments must be received on or before October 26, 2022. ADDRESSES: You may submit comments on the proposed rule, identified by ‘‘NOAA–NMFS–2022–0054,’’ by either of the following methods: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter ‘‘NOAA–NMFS–2022–0054’’, in the Search box. Click the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. SUMMARY: VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 • Mail: Submit written comments to Frank Helies, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous). Electronic copies of Amendment 50, which includes a fishery impact statement and a regulatory impact review, may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/ amendment-50-catch-level-adjustmentsrebuilding-schedule-and-allocationsred-porgy/. FOR FURTHER INFORMATION CONTACT: Frank Helies, telephone: 727–824–5305, or email: frank.helies@noaa.gov. SUPPLEMENTARY INFORMATION: The South Atlantic snapper-grouper fishery, which includes red porgy, is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Background The Magnuson-Stevens Act requires that NMFS and regional fishery management councils prevent overfishing and achieve, on a continuing basis, the OY from federally managed fish stocks. These mandates are intended to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to minimize bycatch and bycatch mortality to the extent practicable. In 1990, a stock assessment for red porgy was completed and it was determined that the stock was subject to overfishing and overfished. As a result of that stock status, Amendment 4 to the FMP established an initial rebuilding plan and implemented a minimum size PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 limit for red porgy (56 FR 56016; October 31, 1991). The rebuilding plan was put into effect in 1991 with a target time to rebuild of 10 years. The stock was again assessed in 1999 and again was determined to be subject to overfishing and overfished. Through an emergency rule published in 1999, NMFS prohibited the harvest and possession of red porgy in or from the exclusive economic zone off the southern Atlantic states (64 FR 48324; September 3, 1999). NMFS subsequently extended the emergency rule to prohibit the harvest and possession of red porgy through August 28, 2000 (65 FR 10039; February 25, 2000). The final rule to implement Amendment 12 to the FMP replaced the emergency rule and closed commercial harvest during the red porgy peak spawning season, reduced the commercial trip limit, and reduced the recreational bag limit (65 FR 51248; August 23, 2000). Amendment 12 also specified a new 18-year rebuilding plan, which began with the implementation of the emergency rule that prohibited harvest on September 3, 1999. The red porgy stock was assessed again in 2002, as the first stock in the South Atlantic to be assessed through the Southeast Data, Assessment, and Review (SEDAR) process (SEDAR 1). The SEDAR 1 assessment indicated the stock was overfished but not undergoing overfishing. Subsequent update assessments in 2006 and 2012 also resulted in the same stock status determinations as the 2002 SEDAR 1 assessment. The most recent SEDAR stock assessment for South Atlantic red porgy (SEDAR 60) was completed in April 2020. The assessment included data through 2017 and incorporated the revised estimates for recreational catch from the Marine Recreational Information Program Fishing Effort Survey (MRIP FES), as discussed later in this proposed rule. The Council’s Scientific and Statistical Committee (SSC) reviewed SEDAR 60 at their April 2020 meeting and found that the assessment was conducted using the best scientific information available, and was adequate for determining stock status and supporting fishing level recommendations. The findings of the assessment indicated that the South Atlantic red porgy stock is undergoing overfishing and is overfished. NMFS also determined that the red porgy stock has not made adequate progress towards rebuilding because it did not rebuild by the end of 2017 under the previous 18year rebuilding plan. The red porgy stock has not rebuilt despite E:\FR\FM\26SEP1.SGM 26SEP1

Agencies

[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Proposed Rules]
[Pages 58300-58302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20766]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1

[FAR Case 2022-002; Docket No. 2022-0002; Sequence No. 1]
RIN 9000-AO39


Federal Acquisition Regulation: Exemption of Certain Contracts 
From the Periodic Inflation Adjustments to the Acquisition-Related 
Thresholds

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

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2022 that provides a 
statutory exception to the periodic inflation adjustments of 
acquisition-related thresholds for certain bond requirements.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
November 25, 2022 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2022-002 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2022-002''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2022-002''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2022-002'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2022-
002'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Marissa Ryba, Procurement Analyst, 
at 314-586-1280 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 FAR Case 2022-002.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR at section 1.109 
to implement section 861 of the National Defense Authorization Act 
(NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81), which provides a 
statutory exception to the periodic inflation adjustments of 
acquisition-related thresholds under 41 U.S.C. 1908.

A. What is an acquisition-related threshold?

    41 U.S.C. 1908 is applicable to ``a dollar threshold that is 
specified in law as a factor in defining the scope of the applicability 
of a policy, procedure, requirement, or restriction provided in that 
law to the procurement of property or services by an executive agency, 
as the [Federal Acquisition Regulatory] Council determines.''

B. What acquisition-related thresholds are not subject to escalation 
adjustment?

    41 U.S.C. 1908 does not permit escalation of acquisition-related 
thresholds established by the Construction Wage Rate Requirements 
statute (Davis Bacon Act), the Service Contract Labor Standards 
statute, or the United States Trade Representative pursuant to the 
authority of the Trade Agreements Act of 1979.

C. Revisions to 41 U.S.C. 1908

    Section 861 of the NDAA for FY 2022 modifies 41 U.S.C. 1908(b)(2) 
to add performance and payment bond requirements for construction in 40 
U.S.C. chapter 31 to the already established list of acquisition-
related thresholds that are not subject to escalation. The list appears 
in the FAR at 1.109(c).
    40 U.S.C. chapter 31, subchapter III, Bonds (formerly known as the 
Miller Act) requires certain performance and payment bonds for 
construction contracts. Sections 3131 through 3134 are the subject of 
the changes required by section 861.
     40 U.S.C. 3131 requires performance and payment bonds for 
any construction contract exceeding $100,000, unless otherwise waived.
     40 U.S.C. 3132 requires alternatives to payment bonds as 
payment protections for certain types of construction contracts. For 
construction contracts greater than $25,000, but not greater than 
$100,000, the contracting officer must select one or more payment 
protections.
     40 U.S.C. 3133 requires agencies to provide a certified 
copy of the payment bonds referenced in section 3131 to any person 
(e.g., subcontractor) who has not been paid or is being sued on the 
bond.
     40 U.S.C. 3134 provides waivers from the subchapter for 
certain contracts issued by the Military Departments, Department of 
Transportation, and the National Oceanic and Atmospheric 
Administration.
    The FAR threshold for performance and payment bonds at 28.102 is 
currently $150,000 as a result of one escalation adjustment in 
accordance with FAR 1.109. FAR Case 2008-024, published on August 30, 
2010, at 75 FR 53129, raised the threshold by $50,000 from the $100,000 
reflected in 40 U.S.C. 3131. The threshold was added to 52.228-11, 
Individual Surety--Pledge of Assets, after the most recent escalation, 
by FAR case 2017-003, published on January 14, 2021, at 86 FR 3682.
    The FAR threshold for alternatives to payment bonds at 28.102 is 
currently $35,000, as a result of two escalation adjustments in 
accordance with FAR 1.109. FAR Case 2004-033, published on September 
28, 2006, at 71 FR 57363 and 2014-022 published on July 2, 2015, at 80 
FR 38293, each raised the threshold by $5,000 from the $25,000 
reflected at 40 U.S.C. 3132.

II. Discussion and Analysis

    The proposed rule adds the statutory exception provided by section 
861 to the list of acquisition-related thresholds that are not subject 
to escalation under 41 U.S.C. 1908 at FAR 1.109(c). Section 1908 does 
not permit the escalation of acquisition-related thresholds established 
by the following:
     40 U.S.C. 31, subchapter IV, Wage Rate Requirements 
(Construction).
     41 U.S.C. 67, Service Contract Labor Standards.
     The United States Trade Representative under the Trade 
Agreements Act.
    The rule proposes to restructure FAR 1.109(c), by consolidating the 
citation for 40 U.S.C. chapter 31, subchapter III,

[[Page 58301]]

Bonds, with the existing citation for subchapter IV, Wage Rate 
Requirements (Construction). Since section 861 requires the thresholds 
to remain at the current escalated values, no other changes are 
required for implementation.

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

    This rule does not create new solicitation provisions or contract 
clauses or revise the text of any existing provisions or clauses. The 
rule does not change any current requirements in the provisions or 
clauses but does prevent future periodic inflation adjustments to an 
acquisition-related threshold.

IV. Expected Impact of the Rule

    This rule is not expected to have a significant impact on the 
Government or industry because this rule maintains acquisition-related 
thresholds that have been in the FAR for several years without 
significant change.
    The FAR threshold for performance and payment bonds at 28.102 had 
one escalation adjustment in 2010, which raised the threshold by 
$50,000 from $100,000 and has since remained unchanged. The FAR 
threshold for alternatives to payment bonds at 28.102 is currently 
$35,000; it was escalated twice, one in 2006 and again in 2015. Each 
adjustment raised the threshold by $5,000 starting from $25,000. Since 
the second adjustment, this threshold has also remained unchanged.
    Because the acquisition-related thresholds under 28.102 have 
remained mostly unchanged, there is little expectation for future 
increases or changes that would affect Government and industry. There 
is also no expected cost impact of this rule since the acquisition-
related thresholds will remain the same. There may be some benefit of 
consistency to the public by ensuring that the thresholds remain the 
same.

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 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. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. 
This rule is not anticipated to be a major rule under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because 
the rule maintains the status quo. However, an Initial Regulatory 
Flexibility Analysis (IRFA) has been performed and is summarized as 
follows:

    DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement section 861 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 
(Pub. L. 117-81) that provides a statutory exception to the periodic 
inflation adjustments of acquisition-related thresholds for certain 
bond requirements.
    The objective of the proposed rule is to retain the current 
dollar thresholds for performance and payments bonds as well as the 
threshold for alternatives to such bonds until changed by statute. 
The legal basis for the rule is Section 861 of the NDAA for FY 2022 
(Pub. L. 117-81).
    The proposed rule will apply to small entities performing 
construction services for the Government; however, the impact is 
expected to be de minimis. Contract actions with a value between 
$35,000 and $150,000 will still require an alternative to payment 
bonds for payment protection, and those with a value exceeding 
$150,000 will still require performance and payment bonds. The rule 
makes permanent the thresholds that have been in place for several 
years, resulting in no changes for any entity performing 
construction services.
    Data obtained from the Federal Procurement Data System (FPDS) 
for FY 2019, 2020, and 2021 indicates that an average of 678 unique 
small entities received an estimated 1,219 awards annually that 
require alternatives to payment bonds. FPDS data also indicates that 
an average of 1,340 unique small entities received an estimated 
2,706 awards that are subject to performance and payment bonds 
annually. Approximately 2,018 (678 + 1,340) unique small entities 
will continue to comply with current bond requirements as a result 
of this proposed rule.
    The proposed rule does not include additional reporting or 
record keeping requirements.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no available alternatives to the proposed rule to 
accomplish the desired objective of the statute.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2022-002), 
in correspondence.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies to the 
information collection described in this rule; however, these changes 
to the FAR do not impose additional information collection requirements 
to the paperwork burden previously approved under OMB Control Number 
9000-0045, Bid Guarantees, Performance and Payment Bonds, and 
Alternative Payment Protection.

List of Subjects in 48 CFR Part 1

    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 propose amending 48 CFR part 1 as set 
forth below:

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
1. The authority citation for 48 CFR part 1 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 1.109 by revising paragraph (c)(1) to read as follows:


1.109  Statutory acquisition--related dollar thresholds--adjustment for 
inflation.

* * * * *
    (c) * * *

[[Page 58302]]

    (1) 40 U.S.C. chapter 31--
    (i) Subchapter III, Bonds; and
    (ii) Subchapter IV, Wage Rate Requirements (Construction);
* * * * *
[FR Doc. 2022-20766 Filed 9-23-22; 8:45 am]
BILLING CODE 6820-EP-P

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