Defense Federal Acquisition Regulation: Past Performance of Affiliate Companies of Small Business Concerns (DFARS Case 2024-D016), 90237-90238 [2024-26055]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 89, Number 221 (Friday, November 15, 2024)]
[Rules and Regulations]
[Pages 90237-90238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26055]


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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 215

[Docket DARS-2024-0035]
RIN 0750-AM13


Defense Federal Acquisition Regulation: Past Performance of 
Affiliate Companies of Small Business Concerns (DFARS Case 2024-D016)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2024 that provides 
direction to contracting officers evaluating the past performance of 
small business concerns.

DATES: Effective November 15, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly R. Ziegler, telephone 
703-901-3176.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is issuing a final rule amending the DFARS to implement section 
865 of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2024 (Pub. L. 118-31). Section 865 requires DoD contracting 
officers to consider relevant past performance of affiliate companies 
of small business concerns during the evaluation of past performance in 
response to a competitive solicitation.

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

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed 
Regulations. Subsection (a)(1) of the statute requires that a 
procurement policy, regulation, procedure, or form (including an 
amendment or modification thereof) must be published for public comment 
if it relates to the expenditure of appropriated funds and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment, 
because there is no significant cost or administrative impact on 
contractors or offerors. When past performance will be evaluated in a 
source selection, contracting officers already request offerors to 
submit past performance information. This rule will allow offerors to 
provide past performance information for an affiliate company within 
that submission, and the Government would consider those submissions 
during the existing evaluation process.

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

    This final rule does not create any new solicitation provisions or 
contract clauses. It does not impact any existing solicitation 
provisions or contract clauses or their applicability to contracts 
valued at or below the simplified acquisition threshold, for commercial 
products including COTS items, or for commercial services.

IV. 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, as amended.

V. 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 will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
Under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require 
publication for public comment.

VII. Paperwork Reduction Act

    This final 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. chapter 35).

List of Subjects in 48 CFR Part 215

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, the Defense Acquisition Regulations System amends 48 CFR 
part 215 as follows:

[[Page 90238]]

PART 215--CONTRACTING BY NEGOTIATION

0
1. The authority citation for 48 CFR part 215 continues to read as 
follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.


0
2. Revise and republish section 215.305 to read as follows:


215.305   Proposal evaluation.

    (a)(2) Past performance evaluation. (A) When a past performance 
evaluation is required by FAR 15.304, and the solicitation includes the 
clause at FAR 52.219-8, Utilization of Small Business Concerns, the 
evaluation factors shall include the past performance of offerors in 
complying with requirements of that clause. When a past performance 
evaluation is required by FAR 15.304, and the solicitation includes the 
clause at FAR 52.219-9, Small Business Subcontracting Plan, the 
evaluation factors shall include the past performance of offerors in 
complying with requirements of that clause.
    (B) Contracting officers shall consider an offeror's failure to 
make a good faith effort to comply with its comprehensive 
subcontracting plan under the Test Program described at 219.702-70 as 
part of the evaluation of the past performance.
    (C) When evaluating the past performance of an offeror that is a 
small business concern in response to a competitive solicitation, 
contracting officers shall consider relevant past performance 
information provided for affiliates of the offeror.

[FR Doc. 2024-26055 Filed 11-14-24; 8:45 am]
BILLING CODE 6001-FR-P