Federal Acquisition Regulation: Protests of Orders Set Aside for Small Business, 68067-68070 [2023-21317]
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Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Proposed Rules
with a new build or major release, the
contractor must update the computer SBOM
in paragraph (c)(3)(i) of this clause to reflect
the new version of the computer software
and provide (or provide access to) the
updated SBOM to the Contracting Officer.
This includes computer software builds to
integrate an updated component or
dependency.
(iii) If an SBOM has been provided to the
contracting officer at the basic contract level,
the SBOM does not need to be provided to
the contracting officer for each order.
(4) Incident and damage assessment
activities. If the Government elects to
conduct an incident or damage assessment
regarding a security incident, the Contractor
shall promptly provide to the Government,
and any independent third party specifically
authorized by the Government, all
information identified in paragraphs (c)(1),
(c)(2), and (c)(3) of this clause.
(5) Malicious computer software. If the
Contractor discovers and isolates malicious
computer software in connection with a
security incident, the Contractor shall submit
malicious code samples or artifacts to CISA
using the appropriate form at https://
www.malware.us-cert.gov within 8 hours of
discovery and isolation of the malicious
computer software in addition to required
incident reporting pursuant to paragraph (b)
of this clause.
(6) Access, including access to additional
information or equipment necessary for
forensic analysis.
(i) Upon request by the Contracting Officer,
CISA or the FBI, in response to a security
incident reported in accordance with
paragraph (b)(1) of this clause, or in response
to a CISA or FBI access request based on an
identified security incident, the Contractor
shall first validate any CISA or FBI access
request according to the procedures in
(c)(6)(ii) of this clause, and then respond to
any requests for access from the contracting
agency, CISA, and the FBI within 96 hours
with available information identified in
paragraphs (c)(1), (c)(2), and (c)(3) of this
clause, as well as access to additional
information or equipment that is necessary to
conduct a forensic analysis.
(A) Consistent with applicable laws,
regulations, and Governmentwide policies
that limit or prohibit access to data, this
includes full access and cooperation for all
activities determined by the contracting
agency, CISA, and the FBI to:
(1) Ensure an effective incident response,
investigation of potential incidents, and
threat hunting activity, including supporting
cloud and virtual infrastructure; and
(2) Coordinate with CISA, the FBI, and the
contracting agency to develop and implement
corrections, fixes or other mitigations for
discovered vulnerabilities and exploits.
(B) This also includes timely access to
Contractor personnel involved in the
performance of the contract.
(ii) Prior to responding to a request from
CISA or the FBI for information or access
under this clause, the Contractor shall:
(A)(1) For requests from CISA, confirm the
validity of the request by contacting CISA
Central at report@cisa.gov or (888) 282–0870,
(2) For requests from the FBI, confirm the
validity of the request by contacting the FBI
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field office identified by the requestor using
contact information from https://
www.fbi.gov/contact-us/field-offices; and
(B) Immediately notify the Contracting
Officer and any other agency official
designated in the contract in writing of
receipt of the request. Provision of
information and access to CISA and the FBI
under this clause shall not be delayed by
submission of this notification or awaiting
acknowledgement of its receipt.
(d) Cyber threat indicators and defensive
measures reporting. The Contractor shall
either—
(1) Subscribe to the Automated Indicator
Sharing (AIS) (https://www.cisa.gov/ais)
capability or successor technology during the
performance of the contract. The Contractor
shall share cyber threat indicators and
recommended defensive measures, to include
associated tactics, techniques, and
procedures, if available, when such
indicators or measures are observed on
information and communications technology
used in performance of the contract or
provided to the Government, in an automated
fashion using this medium during the
performance of the contract. Contractors
submitting cyber threat indicators and
defensive measures through AIS will receive
applicable legal protections (see 6 U.S.C.
1505) in accordance with the Cybersecurity
Information Sharing Act of 2015, Procedures
and Guidance; or
(2) During the performance of the contract,
participate in an information sharing and
analysis organization or information sharing
and analysis center with the capability to
share indicators with AIS or successor
technology and that further shares cyber
threat indicators and recommended
defensive measures submitted to it with AIS,
during the performance of the contract. The
Contractor shall share cyber threat indicators
and recommended defensive measures, when
such indicators or measures are observed on
information and communications technology
used during performance of the contract or
provided to the Government, with the ISAO
or ISAC during the performance of the
contract, in addition to required incident
reporting pursuant to paragraph (b) of this
clause. Contractors submitting cyber threat
indicators and defensive measures through
an ISAO or ISAC will receive applicable legal
protections in accordance with the
Cybersecurity Information Sharing Act of
2015 Procedures and Guidance.
(e) Internet Protocol version 6 (IPv6).
(1) This paragraph (e) applies to—
(i) Any ICT using internet protocol
provided to the Government, and
(ii) Any interfaces exposed to the
Government from a Contractor information
system using internet protocol.
(2) The Contractor shall comply with all
applicable mandatory capabilities specified
in the current version of the USGv6 Profile
(NIST Special Publication 500–267B) (see
Office of Management and Budget (OMB)
Memorandum M–21–07, Completing the
Transition to Internet Protocol Version 6
(IPv6) dated November 19, 2020) and provide
to the Contracting Officer a copy of or access
to the corresponding supplier’s declaration of
conformity in accordance with the USGv6
Test Program (see NIST SP 500–281A).
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68067
(3) The agency may have granted a waiver
to this paragraph (e). If so, elsewhere in this
contract the waiver will be identified along
with any conditions (see FAR 39.106–2).
(f) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (f), in all
subcontracts where ICT is used or provided
in the performance of the subcontract,
including subcontracts for the acquisition of
commercial products or services. All
references to the Contractor are applicable to
all subcontractors. The Contractor shall
require subcontractors to notify the prime
Contractor and next higher tier subcontractor
within 8 hours of discovery of a security
incident.
(End of clause)
■ 25. Amend section 52.244–6 by—
■ a. Revising the date of the clause; and
■ b. Redesignating paragraph (c)(1)(xxi)
as paragraph (c)(1)(xxii) and adding a
new paragraph (c)(1)(xxi).
The revision and addition read as
follows:
52.244–6 Subcontracts for Commercial
Products and Commercial Services.
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Subcontracts for Commercial Products
and Commercial Services (DATE)
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(c)(1) * * *
(xxi) 52.239–ZZ, Incident and Threat
Reporting and Incident Response
Requirements for Products or Services
Containing Information and Communications
Technology (Date) (E.O. 14028), if flow down
is required in accordance with paragraph (f)
of FAR clause 52.239–ZZ.
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[FR Doc. 2023–21328 Filed 10–2–23; 8:45 am]
BILLING CODE 6820–14–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 19
[FAR Case 2021–009; Docket No. FAR–
2021–0010; Sequence No. 1]
RIN 9000–AO26
Federal Acquisition Regulation:
Protests of Orders Set Aside for Small
Business
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
SUMMARY:
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Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Proposed Rules
Acquisition Regulation (FAR) to
implement regulatory changes made by
the Small Business Administration to
update and clarify requirements
associated with size and/or
socioeconomic status protests in
connection with multiple-award
contract set-asides and reserves and
orders placed under multiple-award
contracts.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat Division at the address
shown below on or before December 4,
2023 to be considered in the formation
of the final rule.
ADDRESSES: Submit comments in
response to FAR Case 2021–009 to the
Federal eRulemaking portal at https://
www.regulations.gov by searching for
‘‘FAR Case 2021–009’’. Select the link
‘‘Comment Now’’ that corresponds with
‘‘FAR Case 2021–009’’. Follow the
instructions provided on the ‘‘Comment
Now’’ screen. Please include your name,
company name (if any), and ‘‘FAR Case
2021–009’’ 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 2021–009’’ 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. Public comments
may be submitted as an individual, as
an organization, or anonymously (see
frequently asked questions at https://
www.regulations.gov/faq). 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.
Dana Bowman, Procurement Analyst, at
202–803–3188 or by email at
dana.bowman@gsa.gov, for clarification
of content. For information pertaining to
status, publication schedules, or
alternate instructions for submitting
comments if https://
www.regulations.gov cannot be used,
contact the Regulatory Secretariat
Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAR
Case 2021–009.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing
to amend the FAR to implement
regulatory changes made by the Small
Business Administration (SBA), in its
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final rules published in the Federal
Register on October 2, 2013 (78 FR
61113), October 16, 2020 (85 FR 66146),
and on November 29, 2022 (87 FR
73400). SBA added clarifying language
at 13 CFR 121.1004 to specify when size
protests must be submitted for the set
aside or reserve of a multiple-award
indefinite-delivery indefinite-quantity
(IDIQ) contract and for orders that are
set-aside for small business under an
unrestricted multiple-award IDIQ
contract, except for orders and blanket
purchase agreements placed under a
Federal Supply Schedule contract in
accordance with FAR 8.405. In addition,
in its final rule published on October
16, 2020, SBA amended 13 CFR
126.801, 13 CFR 125.28 (now at 13 CFR
134.1004), and 13 CFR 127.603 to
authorize socioeconomic protests for
set-aside orders for HUBZone, SDVOSB,
or EDWOSB/WOSB concerns placed
under a multiple-award IDIQ contract
this is not partially or totally set aside
or reserved for that particular
socioeconomic category. SBA’s rule also
clarified the SBA entities that may file
a size protest in connection with a
particular procurement. In addition,
SBA’s final rule published on November
29, 2022 (87 FR 73400) amended its
regulations to remove references to the
SDVOSB program at 13 CFR part 125
and relocate them to 13 CFR part 128
and 13 CFR part 134.
II. Discussion and Analysis
This rule proposes to modify FAR
subpart 19.3 to implement SBA’s final
rule as follows:
—Modify FAR 19.302(a)(2) to add a
reference to SBA’s regulations at 13
CFR 121.1001(a)(1) to clarify the
entities that may file a protest in
connection with a particular
procurement;
—Modify FAR 19.302(d)(1) to
implement SBA’s regulations at 13
CFR 121.1004(a)(2) to specify when
size protests are due for partial set
asides and reserves of multiple-award
contracts and orders that are set aside
under an unrestricted multiple-award
contract, with the exception of orders
and blanket purchase agreements
placed under Federal Supply
Schedule contracts;
—Modify FAR 19.306, 19.307, and
19.308 to implement SBA’s
regulations at 13 CFR 126.801(d), 13
CFR 134.1004(a), and 127.603(c),
respectively, to specify when protests
are due for orders placed under
multiple-award contracts where the
contracting officer requested
rerepresentation;
—Modify FAR 19.306, 19.307, and
19.308 to implement SBA’s
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regulations at 13 CFR 126.801(d), 13
CFR 134.1004(a), and 13 CFR
127.603(c), respectively, to specify
when protests are due for orders that
are set aside for HUBZone small
business concerns, service-disabled
veteran-owned small business
concern (SDVOSB), and economically
disadvantaged women-owned small
business concerns and women-owned
small business concerns under a
multiple-award contract that is not
itself partially or totally set-aside or
reserved for the particular concern.
This does not apply to orders and
blanket purchase agreements placed
under Federal Supply Schedule
contracts.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items),
or for Commercial Services
This rule does not create new
solicitation provisions or contract
clauses or impact any existing
provisions or clauses.
IV. Expected Impact of the Rule
This proposed rule implements SBA’s
final rules issued on October 2, 2013,
(78 FR 61113), October 16, 2020, (85 FR
66146) and November 29, 2022 (87 FR
73400) to update and clarify regulations
regarding size and socioeconomic status
protests associated with orders placed
under multiple-award contracts, with
the exception of orders and blanket
purchase agreements placed under
Federal Supply Schedule contracts in
accordance with FAR 8.405. This
proposed rule will allow contracting
officers, SBA, and interested parties to
protest the size of a concern for partial
set asides and reserves of multipleaward contracts and orders that are set
aside under multiple-award contracts.
The proposed rule will allow
contracting officers, SBA, and interested
parties to protest the socioeconomic
status of a HUBZone small business
concern, an economically disadvantaged
women-owned small businesses and
women-owned small businesses, or a
service-disabled veteran-owned small
business concern for orders set aside for
one of these socioeconomic categories
when placed against a multiple-award
contract that is not partially or totally
set aside or reserved for that
socioeconomic category. This proposed
rule will also allow contracting officers,
SBA, and interested parties to protest an
order placed against a multiple-award
contract where the contracting officer
requested rerepresentation for the order.
This proposed rule is expected to help
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contracting officers and interested
parties to understand the requirements
for filing size and socioeconomic status
protests for orders placed under
multiple-award contracts. Given that
this proposed rule clarifies protest
requirements and reduces ambiguities
for small business entities and
procuring activities, any impact is
expected to be beneficial to both
Government, contractors, and offerors.
Any cost to the Government is not
expected to be significant.
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.
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VI. 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 this proposed rule clarifies
size and socioeconomic protest
requirements associated with multipleaward contracts and is expected to assist
both small entities and the Government
in submitting a timely protest. 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 regulatory changes made
by the Small Business Administration (SBA)
in its final rules dated October 2, 2013 (78
FR 61113), October 16, 2020(85 FR 66146),
and November 29, 2022(87 FR 73400). This
rule proposes to update and clarify
requirements associated with size and
socioeconomic status protests related to
partial set asides and reserves of multipleaward indefinite-delivery indefinite-quantity
(IDIQ) contracts, and protests related to
orders placed against multiple-award IDIQ
contracts with the exception of blanket
purchase agreements and orders placed
under Federal Supply Schedule contracts.
The objective of this proposed rule is to
implement SBA’s final rules published on
October 2, 2013 (78 FR 61113), October 16,
2020 (85 FR 66146), and November 29, 2022
(87 FR 73400) to clarify the requirements for
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size and/or socioeconomic status protests for
orders placed against multiple-award IDIQ
contracts. This proposed rule clarifies the
timelines for an interested party to submit a
size protest for a partial set aside or reserve
of a multiple-award IDIQ contract and for an
order placed under a multiple-award IDIQ
contract. In addition, this rule clarifies when
a socioeconomic status protest of a set-aside
order placed under a multiple-award IDIQ
contract where the socioeconomic status of
the set-aside differs from that of the
underlying contract, or the reserve or set
aside portion of the underlying contract (e.g.,
small business set aside multiple-award IDIQ
contract where an order is further set aside
for SDVOSB concerns). This proposed rule
does not apply to orders and blanket
purchase agreements placed under Federal
Supply Schedule contracts. Promulgation of
FAR regulations is authorized by 40 U.S.C.
121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C.
3016); and 51 U.S.C. 20113. The legal basis
for this rule is SBA’s regulations at 13 CFR
126.801, 13 CFR 127.603, 13 CFR 121.1001,
and 13 CFR 134.1004 as amended by the
three SBA final rules.
This proposed rule will impact small
businesses that are or may become multipleaward IDIQ contract holders and that may be
awarded orders under multiple-award IDIQ
contracts. According to the Federal
Procurement Data System (FPDS), in the last
three fiscal years (FYs), agencies set aside
orders under unrestricted multiple-award
IDIQ contracts as follows: 6,509 in FY 2019;
7,392 in FY 2020; and 7,251 in FY 2021; for
an average of 7051 per fiscal year. According
to FPDS, in the last three fiscal years,
agencies further set aside orders under set
aside multiple-award IDIQ contracts as
follows: 8,403 in FY 2019; 9,470 in FY 2020;
and 10,034 in FY 2021; for an average of
9,302 per fiscal year. According to FPDS, in
the last three fiscal years contracting officers
required rerepresentation for orders as
follows: 363 in FY 2019; 470 in FY 2020; and
530 in FY 2021; which averages out to 454
per fiscal year. According to FPDS, in the last
three fiscal years, agencies further set aside
orders for a socioeconomic category under
the set aside portion of a multiple-award
IDIQ contract, where the socioeconomic
category differs from the underlying
multiple-award IDIQ contract, as follows: 43
in FY 2019; 41 in FY 2020; and 37 in FY
2021; for an average of 40 per fiscal year.
This averages out to approximately 4,212
total orders to which this rule may apply per
fiscal year. Although we can estimate the
number of set aside orders that may be
affected by this rule, it is not possible to
estimate the number of small entities that
may be affected by potential protests as a
result of this rule.
The proposed rule does not impose any
new reporting, recordkeeping, or other
compliance requirements for small entities.
The proposed rule does not duplicate,
overlap, or conflict with any other Federal
rules.
There are no known significant alternative
approaches to the proposed rule.
The Regulatory Secretariat Division
has submitted a copy of the IRFA to the
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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 2021–009) in
correspondence.
VII. Paperwork Reduction Act
This rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
3501–3521).
List of Subjects in 48 CFR Part 19
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR part 19 as set
forth below:
PART 19—SMALL BUSINESS
PROGRAMS
1. The authority citation for 48 CFR
part 19 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51
U.S.C. 20113.
2. Amend section 19.302 by—
a. Removing from the end of the
second sentence of paragraph (a)(2) ‘‘or
the SBA.’’ and adding ‘‘or SBA. (See 13
CFR 121.1001(a).’’ in its place; and
■ b. Revising paragraph (d).
The revision reads as follows:
■
■
19.302 Protesting a small business
representation or rerepresentation.
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(d) In order to affect a specific
solicitation, a protest must be timely.
SBA’s regulations on timeliness are
contained in 13 CFR 121.1004. SBA’s
regulations on timeliness related to
protests of disadvantaged status are
contained in 13 CFR 124, Subpart B.
(1) To be timely, a protest by any
concern or other interested party must
be received by the contracting officer by
the close of business of the fifth
business day after-
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(i) Bid opening for sealed bid
acquisitions; or
(ii) Receipt of the special notification
from the contracting officer (see
15.503(a)(2)) that identifies the
apparently successful offeror for
negotiated acquisitions, including(A) Partial set-asides and reserves of
multiple-award IDIQ contracts; and
(B) Orders that are set-aside under an
unrestricted multiple-award IDIQ
contract (except for orders and blanket
purchase agreements placed under a
Federal Supply Schedule contract (see
8.405 and paragraph (d)(5) of this
section)); or
(iii) Receipt of notification using other
communication means when written
notification is not required.
(2) A protest may be made orally if it
is confirmed in writing and received by
the contracting officer within the 5-day
period or by letter postmarked no later
than 1 business day after the oral
protest.
(3) A protest may be made in writing
if it is delivered to the contracting
officer by hand, mail, facsimile, email,
express or overnight delivery service.
(4) Except as provided in paragraph
(d)(6) of this section, a protest filed by
the contracting officer or SBA is always
considered timely whether filed before
or after award.
(5) A protest under a Multiple Award
Schedule will be timely if received by
SBA at any time prior to the expiration
of the contract period, including
renewals.
(6) A protest filed before bid opening,
or notification to offerors of the
selection of the apparent successful
offeror, will be dismissed as premature
by SBA.
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■ 3. Amend section 19.306 by revising
paragraph (e)(1)(ii) and adding
paragraph (e)(1)(iii) to read as follows:
19.306 Protesting a firm’s status as a
HUBZone small business concern.
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(e) * * *
(1) * * *
(ii) For negotiated acquisitions, by the
close of business on the fifth business
day after notification by the contracting
officer of the apparently successful
offeror, including—
(A) Orders placed under multipleaward indefinite-delivery indefinitequantity (IDIQ) contracts where the
contracting officer requested
rerepresentation for the order (see 13
CFR 126.801(d)(1)); and
(B) Orders set aside for HUBZone
small businesses under multiple-award
IDIQ contracts that are not partially or
totally set aside or reserved for
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HUBZone small business concerns (see
13 CFR 126.801(d)(1)), except for orders
and blanket purchase agreements placed
under a Federal Supply Schedule
contract (see 8.405 and 19.302(d)(5)); or
(iii) Receipt of notification using other
communication means when written
notification is not required.
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■ 4. Amend section 19.307 by—
■ a. Removing from paragraph (e)(1)(i)
‘‘(in sealed bid acquisitions); or’’ and
adding ‘‘for sealed bid acquisitions; or’’
in its place;
■ b. Revising paragraph (e)(1)(ii); and
■ c. Adding paragraph (e)(1)(iii).
The revision reads as follows:
19.307 Protesting a firm’s status as a
service-disabled veteran-owned small
business concern.
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(e) * * *
(1) * * *
(ii) To be received by close of
business on the fifth business day after
notification by the contracting officer of
the apparently successful offeror for
negotiated acquisitions, including—
(A) Orders placed under multipleaward IDIQ contracts where the
contracting officer requested
rerepresentation for the order (see 13
CFR 134.1004(a)(3)(ii)); and
(B) Orders set aside for servicedisabled veteran-owned small
businesses under multiple-award IDIQ
contracts that are not partially or totally
set aside or reserved for service-disabled
veteran-owned small business concerns
(see 13 CFR 134.1004(a)(3)(i)), except for
orders and blanket purchase agreements
placed under a Federal Supply
Schedule contract (see 8.405 and
19.302(d)(5)); or
(iii) Receipt of notification using other
communication means when written
notification is not required.
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■ 5. Amend section 19.308 by—
■ a. Removing from paragraph (e)(1)(i)
‘‘(in sealed bid acquisitions); or’’ and
adding ‘‘for sealed bid acquisitions; or’’
in its place;
■ b. Revising paragraph (e)(1)(ii); and
■ c. Adding paragraph (e)(1)(iii).
The revision reads as follows:
19.308 Protesting a firm’s status as an
economically disadvantaged women-owned
small business concern or women-owned
small business concern eligible under the
Women-Owned Small Business Program.
*
*
*
*
*
(e) * * *
(1) * * *
(ii) To be received by the close of
business by the fifth business day after
notification by the contracting officer of
PO 00000
Frm 00084
Fmt 4702
Sfmt 4702
the apparent successful offeror for
negotiated acquisitions including—
(A) Orders placed under multipleaward IDIQ contracts where the
contracting officer requested
rerepresentation for the order (see 13
CFR 127.603(c)(1)); and
(B) Orders set aside for EDWOSB or
WOSB concerns under multiple-award
IDIQ contracts that are not partially or
totally set aside or reserved for
EDWOSB or WOSB concerns (see 13
CFR 127.603(c)(1)), except for orders
and blanket purchase agreements placed
under a Federal Supply Schedule
contract (see 8.405 and 19.302(d)(5)); or
(iii) Receipt of notification using other
communication means when written
notification is not required.
*
*
*
*
*
[FR Doc. 2023–21317 Filed 10–2–23; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2023–0158;
FF09E21000 FXES1111090FEDR 234]
RIN 1018–BG40
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
With Section 4(d) Rule for Short-Tailed
Snake
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the short-tailed snake (Lampropeltis
extenuata), a snake species from
peninsular Florida, as a threatened
species under the Endangered Species
Act of 1973, as amended (Act). This
determination also serves as our 12month finding on a petition to list the
short-tailed snake. After a review of the
best available scientific and commercial
information, we find that listing the
species is warranted. Accordingly, we
propose to list the short-tailed snake as
a threatened species with a rule issued
under section 4(d) of the Act (‘‘4(d)
rule’’). If we finalize this rule as
proposed, it would add this species to
the List of Endangered and Threatened
Wildlife and extend the Act’s
protections to the species.
DATES: We will accept comments
received or postmarked on or before
December 4, 2023. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
SUMMARY:
E:\FR\FM\03OCP1.SGM
03OCP1
]]>Agencies
[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Proposed Rules]
[Pages 68067-68070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21317]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAR Case 2021-009; Docket No. FAR-2021-0010; Sequence No. 1]
RIN 9000-AO26
Federal Acquisition Regulation: Protests of Orders Set Aside for
Small Business
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
[[Page 68068]]
Acquisition Regulation (FAR) to implement regulatory changes made by
the Small Business Administration to update and clarify requirements
associated with size and/or socioeconomic status protests in connection
with multiple-award contract set-asides and reserves and orders placed
under multiple-award contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
December 4, 2023 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2021-009 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2021-009''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2021-009''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2021-009'' 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 2021-
009'' 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. Public comments may be submitted as an individual, as an
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). 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. Dana Bowman, Procurement Analyst,
at 202-803-3188 or by email at [email protected], for clarification
of content. For information pertaining to status, publication
schedules, or alternate instructions for submitting comments if https://www.regulations.gov cannot be used, contact the Regulatory Secretariat
Division at 202-501-4755 or [email protected]. Please cite FAR Case
2021-009.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement
regulatory changes made by the Small Business Administration (SBA), in
its final rules published in the Federal Register on October 2, 2013
(78 FR 61113), October 16, 2020 (85 FR 66146), and on November 29, 2022
(87 FR 73400). SBA added clarifying language at 13 CFR 121.1004 to
specify when size protests must be submitted for the set aside or
reserve of a multiple-award indefinite-delivery indefinite-quantity
(IDIQ) contract and for orders that are set-aside for small business
under an unrestricted multiple-award IDIQ contract, except for orders
and blanket purchase agreements placed under a Federal Supply Schedule
contract in accordance with FAR 8.405. In addition, in its final rule
published on October 16, 2020, SBA amended 13 CFR 126.801, 13 CFR
125.28 (now at 13 CFR 134.1004), and 13 CFR 127.603 to authorize
socioeconomic protests for set-aside orders for HUBZone, SDVOSB, or
EDWOSB/WOSB concerns placed under a multiple-award IDIQ contract this
is not partially or totally set aside or reserved for that particular
socioeconomic category. SBA's rule also clarified the SBA entities that
may file a size protest in connection with a particular procurement. In
addition, SBA's final rule published on November 29, 2022 (87 FR 73400)
amended its regulations to remove references to the SDVOSB program at
13 CFR part 125 and relocate them to 13 CFR part 128 and 13 CFR part
134.
II. Discussion and Analysis
This rule proposes to modify FAR subpart 19.3 to implement SBA's
final rule as follows:
--Modify FAR 19.302(a)(2) to add a reference to SBA's regulations at 13
CFR 121.1001(a)(1) to clarify the entities that may file a protest in
connection with a particular procurement;
--Modify FAR 19.302(d)(1) to implement SBA's regulations at 13 CFR
121.1004(a)(2) to specify when size protests are due for partial set
asides and reserves of multiple-award contracts and orders that are set
aside under an unrestricted multiple-award contract, with the exception
of orders and blanket purchase agreements placed under Federal Supply
Schedule contracts;
--Modify FAR 19.306, 19.307, and 19.308 to implement SBA's regulations
at 13 CFR 126.801(d), 13 CFR 134.1004(a), and 127.603(c), respectively,
to specify when protests are due for orders placed under multiple-award
contracts where the contracting officer requested rerepresentation;
--Modify FAR 19.306, 19.307, and 19.308 to implement SBA's regulations
at 13 CFR 126.801(d), 13 CFR 134.1004(a), and 13 CFR 127.603(c),
respectively, to specify when protests are due for orders that are set
aside for HUBZone small business concerns, service-disabled veteran-
owned small business concern (SDVOSB), and economically disadvantaged
women-owned small business concerns and women-owned small business
concerns under a multiple-award contract that is not itself partially
or totally set-aside or reserved for the particular concern. This does
not apply to orders and blanket purchase agreements placed under
Federal Supply Schedule contracts.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), or for Commercial Services
This rule does not create new solicitation provisions or contract
clauses or impact any existing provisions or clauses.
IV. Expected Impact of the Rule
This proposed rule implements SBA's final rules issued on October
2, 2013, (78 FR 61113), October 16, 2020, (85 FR 66146) and November
29, 2022 (87 FR 73400) to update and clarify regulations regarding size
and socioeconomic status protests associated with orders placed under
multiple-award contracts, with the exception of orders and blanket
purchase agreements placed under Federal Supply Schedule contracts in
accordance with FAR 8.405. This proposed rule will allow contracting
officers, SBA, and interested parties to protest the size of a concern
for partial set asides and reserves of multiple-award contracts and
orders that are set aside under multiple-award contracts. The proposed
rule will allow contracting officers, SBA, and interested parties to
protest the socioeconomic status of a HUBZone small business concern,
an economically disadvantaged women-owned small businesses and women-
owned small businesses, or a service-disabled veteran-owned small
business concern for orders set aside for one of these socioeconomic
categories when placed against a multiple-award contract that is not
partially or totally set aside or reserved for that socioeconomic
category. This proposed rule will also allow contracting officers, SBA,
and interested parties to protest an order placed against a multiple-
award contract where the contracting officer requested rerepresentation
for the order. This proposed rule is expected to help
[[Page 68069]]
contracting officers and interested parties to understand the
requirements for filing size and socioeconomic status protests for
orders placed under multiple-award contracts. Given that this proposed
rule clarifies protest requirements and reduces ambiguities for small
business entities and procuring activities, any impact is expected to
be beneficial to both Government, contractors, and offerors. Any cost
to the Government is not expected to be significant.
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. 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
this proposed rule clarifies size and socioeconomic protest
requirements associated with multiple-award contracts and is expected
to assist both small entities and the Government in submitting a timely
protest. 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 regulatory changes made by
the Small Business Administration (SBA) in its final rules dated
October 2, 2013 (78 FR 61113), October 16, 2020(85 FR 66146), and
November 29, 2022(87 FR 73400). This rule proposes to update and
clarify requirements associated with size and socioeconomic status
protests related to partial set asides and reserves of multiple-
award indefinite-delivery indefinite-quantity (IDIQ) contracts, and
protests related to orders placed against multiple-award IDIQ
contracts with the exception of blanket purchase agreements and
orders placed under Federal Supply Schedule contracts.
The objective of this proposed rule is to implement SBA's final
rules published on October 2, 2013 (78 FR 61113), October 16, 2020
(85 FR 66146), and November 29, 2022 (87 FR 73400) to clarify the
requirements for size and/or socioeconomic status protests for
orders placed against multiple-award IDIQ contracts. This proposed
rule clarifies the timelines for an interested party to submit a
size protest for a partial set aside or reserve of a multiple-award
IDIQ contract and for an order placed under a multiple-award IDIQ
contract. In addition, this rule clarifies when a socioeconomic
status protest of a set-aside order placed under a multiple-award
IDIQ contract where the socioeconomic status of the set-aside
differs from that of the underlying contract, or the reserve or set
aside portion of the underlying contract (e.g., small business set
aside multiple-award IDIQ contract where an order is further set
aside for SDVOSB concerns). This proposed rule does not apply to
orders and blanket purchase agreements placed under Federal Supply
Schedule contracts. Promulgation of FAR regulations is authorized by
40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137
legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113. The
legal basis for this rule is SBA's regulations at 13 CFR 126.801, 13
CFR 127.603, 13 CFR 121.1001, and 13 CFR 134.1004 as amended by the
three SBA final rules.
This proposed rule will impact small businesses that are or may
become multiple-award IDIQ contract holders and that may be awarded
orders under multiple-award IDIQ contracts. According to the Federal
Procurement Data System (FPDS), in the last three fiscal years
(FYs), agencies set aside orders under unrestricted multiple-award
IDIQ contracts as follows: 6,509 in FY 2019; 7,392 in FY 2020; and
7,251 in FY 2021; for an average of 7051 per fiscal year. According
to FPDS, in the last three fiscal years, agencies further set aside
orders under set aside multiple-award IDIQ contracts as follows:
8,403 in FY 2019; 9,470 in FY 2020; and 10,034 in FY 2021; for an
average of 9,302 per fiscal year. According to FPDS, in the last
three fiscal years contracting officers required rerepresentation
for orders as follows: 363 in FY 2019; 470 in FY 2020; and 530 in FY
2021; which averages out to 454 per fiscal year. According to FPDS,
in the last three fiscal years, agencies further set aside orders
for a socioeconomic category under the set aside portion of a
multiple-award IDIQ contract, where the socioeconomic category
differs from the underlying multiple-award IDIQ contract, as
follows: 43 in FY 2019; 41 in FY 2020; and 37 in FY 2021; for an
average of 40 per fiscal year. This averages out to approximately
4,212 total orders to which this rule may apply per fiscal year.
Although we can estimate the number of set aside orders that may be
affected by this rule, it is not possible to estimate the number of
small entities that may be affected by potential protests as a
result of this rule.
The proposed rule does not impose any new reporting,
recordkeeping, or other compliance requirements for small entities.
The proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known significant alternative approaches to the
proposed rule.
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 2021-009) in
correspondence.
VII. Paperwork Reduction Act
This rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. 3501-3521).
List of Subjects in 48 CFR Part 19
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 19 as
set forth below:
PART 19--SMALL BUSINESS PROGRAMS
0
1. The authority citation for 48 CFR part 19 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
0
2. Amend section 19.302 by--
0
a. Removing from the end of the second sentence of paragraph (a)(2)
``or the SBA.'' and adding ``or SBA. (See 13 CFR 121.1001(a).'' in its
place; and
0
b. Revising paragraph (d).
The revision reads as follows:
19.302 Protesting a small business representation or rerepresentation.
* * * * *
(d) In order to affect a specific solicitation, a protest must be
timely. SBA's regulations on timeliness are contained in 13 CFR
121.1004. SBA's regulations on timeliness related to protests of
disadvantaged status are contained in 13 CFR 124, Subpart B.
(1) To be timely, a protest by any concern or other interested
party must be received by the contracting officer by the close of
business of the fifth business day after-
[[Page 68070]]
(i) Bid opening for sealed bid acquisitions; or
(ii) Receipt of the special notification from the contracting
officer (see 15.503(a)(2)) that identifies the apparently successful
offeror for negotiated acquisitions, including-
(A) Partial set-asides and reserves of multiple-award IDIQ
contracts; and
(B) Orders that are set-aside under an unrestricted multiple-award
IDIQ contract (except for orders and blanket purchase agreements placed
under a Federal Supply Schedule contract (see 8.405 and paragraph
(d)(5) of this section)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
(2) A protest may be made orally if it is confirmed in writing and
received by the contracting officer within the 5-day period or by
letter postmarked no later than 1 business day after the oral protest.
(3) A protest may be made in writing if it is delivered to the
contracting officer by hand, mail, facsimile, email, express or
overnight delivery service.
(4) Except as provided in paragraph (d)(6) of this section, a
protest filed by the contracting officer or SBA is always considered
timely whether filed before or after award.
(5) A protest under a Multiple Award Schedule will be timely if
received by SBA at any time prior to the expiration of the contract
period, including renewals.
(6) A protest filed before bid opening, or notification to offerors
of the selection of the apparent successful offeror, will be dismissed
as premature by SBA.
* * * * *
0
3. Amend section 19.306 by revising paragraph (e)(1)(ii) and adding
paragraph (e)(1)(iii) to read as follows:
19.306 Protesting a firm's status as a HUBZone small business concern.
* * * * *
(e) * * *
(1) * * *
(ii) For negotiated acquisitions, by the close of business on the
fifth business day after notification by the contracting officer of the
apparently successful offeror, including--
(A) Orders placed under multiple-award indefinite-delivery
indefinite-quantity (IDIQ) contracts where the contracting officer
requested rerepresentation for the order (see 13 CFR 126.801(d)(1));
and
(B) Orders set aside for HUBZone small businesses under multiple-
award IDIQ contracts that are not partially or totally set aside or
reserved for HUBZone small business concerns (see 13 CFR
126.801(d)(1)), except for orders and blanket purchase agreements
placed under a Federal Supply Schedule contract (see 8.405 and
19.302(d)(5)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
* * * * *
0
4. Amend section 19.307 by--
0
a. Removing from paragraph (e)(1)(i) ``(in sealed bid acquisitions);
or'' and adding ``for sealed bid acquisitions; or'' in its place;
0
b. Revising paragraph (e)(1)(ii); and
0
c. Adding paragraph (e)(1)(iii).
The revision reads as follows:
19.307 Protesting a firm's status as a service-disabled veteran-owned
small business concern.
* * * * *
(e) * * *
(1) * * *
(ii) To be received by close of business on the fifth business day
after notification by the contracting officer of the apparently
successful offeror for negotiated acquisitions, including--
(A) Orders placed under multiple-award IDIQ contracts where the
contracting officer requested rerepresentation for the order (see 13
CFR 134.1004(a)(3)(ii)); and
(B) Orders set aside for service-disabled veteran-owned small
businesses under multiple-award IDIQ contracts that are not partially
or totally set aside or reserved for service-disabled veteran-owned
small business concerns (see 13 CFR 134.1004(a)(3)(i)), except for
orders and blanket purchase agreements placed under a Federal Supply
Schedule contract (see 8.405 and 19.302(d)(5)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
* * * * *
0
5. Amend section 19.308 by--
0
a. Removing from paragraph (e)(1)(i) ``(in sealed bid acquisitions);
or'' and adding ``for sealed bid acquisitions; or'' in its place;
0
b. Revising paragraph (e)(1)(ii); and
0
c. Adding paragraph (e)(1)(iii).
The revision reads as follows:
19.308 Protesting a firm's status as an economically disadvantaged
women-owned small business concern or women-owned small business
concern eligible under the Women-Owned Small Business Program.
* * * * *
(e) * * *
(1) * * *
(ii) To be received by the close of business by the fifth business
day after notification by the contracting officer of the apparent
successful offeror for negotiated acquisitions including--
(A) Orders placed under multiple-award IDIQ contracts where the
contracting officer requested rerepresentation for the order (see 13
CFR 127.603(c)(1)); and
(B) Orders set aside for EDWOSB or WOSB concerns under multiple-
award IDIQ contracts that are not partially or totally set aside or
reserved for EDWOSB or WOSB concerns (see 13 CFR 127.603(c)(1)), except
for orders and blanket purchase agreements placed under a Federal
Supply Schedule contract (see 8.405 and 19.302(d)(5)); or
(iii) Receipt of notification using other communication means when
written notification is not required.
* * * * *
[FR Doc. 2023-21317 Filed 10-2-23; 8:45 am]
BILLING CODE 6820-EP-P
