Federal Acquisition Regulation: Certification of Service-Disabled Veteran-Owned Small Businesses, 101828-101831 [2024-29374]
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Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Rules and Regulations
report described in paragraph (b)(2) of this
clause by October 30th, via email, to the
following agencies:
(i) General Services Administration:
TraffickingPreventionReport@gsa.gov;
(ii) U.S. Department of Transportation:
trafficking@dot.gov;
(iii) Department of Labor: AirCarrierHTreports@dol.gov;
(iv) Transportation Security
Administration: ics-cchtfams@tsa.dhs.gov;
(v) U.S. Customs and Border Protection:
CLP@cbp.dhs.gov; and
(vi) DHS Center for Countering Human
Trafficking: Info@CCHT.dhs.gov.
(2) The annual report shall include
information from the preceding Government
fiscal year (October 1 through September 30)
regarding—
(i) The number of personnel trained in the
detection and reporting of potential human
trafficking, including the training required
under 49 U.S.C. 44734(a)(4);
(ii) The number of notifications of potential
human trafficking victims received from staff
or other passengers; and
(iii)(A) Whether the Contractor notified the
Global Human Trafficking Hotline, another
comparable hotline, or law enforcement at
the relevant airport of the potential human
trafficking victim for each such notification
of potential human trafficking; and
(B) If the Contractor made a notification,
the date the notification was made and the
method of notification (e.g., text to Hotline,
call to law enforcement).
(c) Training. In accordance with 49 U.S.C.
44734 and 44738, personnel trained in the
detection and reporting of potential human
trafficking should include the following:
(1) Flight attendants;
(2) Ticket counter agents;
(3) Gate agents; and
(4) Other air carrier workers whose jobs
require regular interaction with passengers.
(End of clause)
[FR Doc. 2024–29373 Filed 12–13–24; 8:45 am]
BILLING CODE 6820–EP–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 6, 9, 18, 19, and 52
[FAC 2025–02; FAR Case 2022–009, Item
II; Docket No. FAR–2022–0009; Sequence
No. 1]
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DoD, GSA, and NASA published an
interim rule at 89 FR 13950 on February
23, 2024, to implement regulatory
changes made by the Small Business
Administration (SBA) in its final rules
published on November 29, 2022, at 87
FR 73400 and at 88 FR 42592 on July
3, 2023, to implement section 862 of the
William M. (Mac) Thornberry National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2021 (Pub. L. 116–283;
15 U.S.C. 657f). This final rule also
partially implements section 863 of the
NDAA for FY 2022 (Pub. L. 117–81; 15
U.S.C. 634(i)), as implemented by SBA
in its final rule published on April 27,
2023, at 88 FR 26164. For further details
please see the interim rule. Three
respondents submitted comments on the
interim rule.
There are no significant changes from
the interim rule.
B. Analysis of Public Comments
Federal Acquisition Regulation:
Certification of Service-Disabled
Veteran-Owned Small Businesses
1. Exceptions to Implementation
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
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I. Background
A. Summary of Significant Changes
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DoD, GSA, and NASA have
adopted as final, without change, an
interim rule amending the Federal
Acquisition Regulation (FAR) to
implement the final rules published by
the Small Business Administration to
implement sections of the National
Defense Authorization Acts for Fiscal
Years 2021 and 2022.
DATES: Effective December 16, 2024.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Carrie Moore, Procurement Analyst, at
571–300–5917, or by email at
carrie.moore@gsa.gov. For information
pertaining to status or publication
schedules contact the Regulatory
Secretariat Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAC
2025–02, FAR Case 2022–009.
SUPPLEMENTARY INFORMATION:
SUMMARY:
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (the Councils)
reviewed the public comments in the
development of the final rule. A
discussion of the comments and the
changes made to the rule as a result of
those comments are provided as
follows:
GENERAL SERVICES
ADMINISTRATION
VerDate Sep<11>2014
Final rule.
II. Discussion and Analysis
DEPARTMENT OF DEFENSE
AGENCY:
ACTION:
Comment: One respondent
recommended the grace period for
certification be extended to allow
businesses additional time to comply
with the new requirements.
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Response: This rule implements
section 862 of the NDAA for FY 2021.
Section 862 provides for a one-year
grace period after the transfer date of
January 1, 2023, for service-disabled
veteran-owned small businesses
(SDVOSBs) to submit an application for
certification to SBA.
Therefore, since the grace period is
statutory, it cannot be extended by the
Councils.
Comment: One respondent
recommended that SBA expand its
outreach and support services to ensure
that all interested businesses are able to
successfully navigate the certification
process.
Response: To implement SDVOSB
certification, SBA established a website
at https://veterans.certify.sba.gov. This
website streamlines and facilitates the
SDVOSB certification process and
provides links for SDVOSBs to obtain
assistance, including both online and
telephonic support.
2. Outside the Scope of the Rule.
Comment: One respondent submitted
a comment that is unrelated to this case.
Response: This comment is outside of
the scope of this rule.
Comment: One respondent took
exception to the certification
requirements for SDVOSBs and took
exception to the three-year certification
period for SDVOSBs, indicating that it
is too long and may result in fraud.
Response: This rule implements
regulatory changes made by the SBA in
its final rules published on November
29, 2022, at 87 FR 73400 and at 88 FR
42592 on July 3, 2023. SBA regulations
regarding the Veteran Small Business
Certification Program, including
SDVOSB certification requirements, are
addressed at 13 CFR part 128. SBA’s
regulations regarding recertification
requirements are implemented at 13
CFR 128.306. This rule simply
implements SBA’s regulations;
therefore, this comment is outside the
scope of this rule.
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 amends the following
provisions and clauses at FAR: 52.212–
3, Offeror Representations and
Certifications—Commercial Products
and Commercial Services; 52.212–5,
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial
Products and Commercial Services;
52.213–4, Terms and Conditions-
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Simplified Acquisitions (Other Than
Commercial Products and Commercial
Services); 52.219–1, Small Business
Program Representations; 52.219–8,
Utilization of Small Business Concerns;
52.219–27, Notice of Set-Aside for, or
Sole-Source Award to, Service-Disabled
Veteran-Owned Small Business
(SDVOSB) Concerns Eligible Under the
SDVOSB Program; 52.219–28, PostAward Small Business Program
Rerepresentation; and 52.244–6,
Subcontracts for Commercial Products
and Commercial Services. These
provisions and clauses continue to
apply to acquisitions at or below the
SAT and to acquisitions for commercial
products, including COTS items, and
commercial services.
This rule applies section 862 of the
NDAA for FY 2021 and section 863 of
the NDAA for FY 2022, as implemented
by this rule, to contracts at or below the
SAT and to commercial services and
commercial products, including COTS
items.
A. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
41 U.S.C. 1905 governs the
applicability of laws to acquisitions at
or below the SAT. Section 1905
generally limits the applicability of new
laws when agencies are making
acquisitions at or below the SAT, but
provides that such acquisitions will not
be exempt from a provision of law
under certain circumstances, including
when the Federal Acquisition
Regulatory Council (FAR Council)
makes a written determination and
finding that it would not be in the best
interest of the Federal Government to
exempt contracts and subcontracts in
amounts not greater than the SAT from
the provision of law. The FAR Council
has made a determination to apply this
statute to acquisitions at or below the
SAT.
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B. Applicability to Contracts for the
Acquisition of Commercial Products
and Commercial Services, Including
Commercially Available Off-the-Shelf
(COTS) Items
41 U.S.C. 1906 governs the
applicability of laws to contracts for the
acquisition of commercial products and
commercial services, and is intended to
limit the applicability of laws to
contracts for the acquisition of
commercial products and commercial
services. Section 1906 provides that if
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt commercial contracts, the
provision of law will apply to contracts
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for the acquisition of commercial
products and commercial services.
41 U.S.C. 1907 states that acquisitions
of COTS items will be exempt from
certain provisions of law unless the
Administrator for Federal Procurement
Policy makes a written determination
and finds that it would not be in the best
interest of the Federal Government to
exempt contracts for the procurement of
COTS items.
The FAR Council has made a
determination to apply this statute to
acquisitions for commercial products
and commercial services. The
Administrator for Federal Procurement
Policy has made a determination to
apply this statute to acquisitions for
COTS items.
IV. Expected Impact of the Rule
This rule is expected to impact
Government and contractor operations.
As of January 1, 2024, contracting
officers are required to check the System
for Award Management (SAM) to verify
that a concern is designated as an
SDVOSB certified by SBA for solesource or set-aside awards under the
SDVOSB Program. If the concern is not
designated in SAM as a certified
SDVOSB, the contracting officer will be
required to check SBA’s Veteran Small
Business Certification Program database
to determine if the concern submitted
an application for certification to SBA
on or before December 31, 2023. If a
concern submitted an application for
certification to SBA on or before
December 31, 2023, and represented its
status as an SDVOSB concern in SAM,
contracting officers may rely on a
concern’s representation in SAM.
As of January 1, 2024, a small
business concern that pursues a solesource or set-aside award under the
SDVOSB Program is required to be
certified by SBA, or the concern must
have both submitted a complete
application for certification to SBA on
or before December 31, 2023, and
represented its status as an SDVOSB
concern in SAM. A small business
concern that submitted a complete
application for certification to SBA on
or before December 31, 2023, may
continue to represent its status as an
SDVOSB in SAM until SBA makes its
final eligibility determination. This rule
will not impact previous participants in
the Department of Veterans Affairs (VA)
VIP Verification Program as the
requirements for the new SBA
certification program are nearly
identical to those of the VA. The only
change that will impact small
businesses is the certification
requirement for SDVOSB concerns. As
indicated in SBA’s final rule, SBA does
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101829
not anticipate the requirement for SBA
certification to significantly impact
small business concerns seeking
SDVOSB certification. To minimize the
potential impact on small businesses,
SDVOSB concerns previously certified
by the VA are reflected as certified in
the SBA Veteran Small Business
Certification Program database during
the time that remains in the firm’s threeyear term of eligibility. To facilitate the
transition of those firms already verified
by the VA prior to the transfer date that
have an eligibility period that expires in
the first year of the Program, SBA
extended the eligibility of those verified
firms for an additional period of one
year. The one-year grace period allows
concerns that are not yet certified by the
SBA to continue to represent their status
as an SDVOSB in SAM while preparing
their applications for SDVOSB
certification. Furthermore, SBA did not
change the documentation requirements
for certification. Additionally, firms that
represent their status in SAM likely
have the documentation necessary for
certification as that documentation is
necessary to be able to represent their
status as an SDVOSB in SAM.
Therefore, concerns will only have to
enter the information already in hand to
apply to be included in SBA’s Veteran
Small Business Certification Program
database.
The public cost associated with
obtaining SDVOSB certification is
accounted for under SBA’s final rule
implementing the certification
requirements (87 FR 73400). SBA’s final
rule advises concerns that effective
January 1, 2024, only a certified
SDVOSB or a concern that has
submitted a complete application for
certification to SBA on or before
December 31, 2023, may seek a set-aside
or sole-source award under the SDVOSB
Program. SBA estimates it will take a
concern approximately one hour to
complete the application process.
Small business concerns are also
required to update SAM within two
days of an SBA determination of
ineligibility. Small business concerns
are already required to update
representations in SAM at least
annually and ensure that
representations are current, accurate,
and complete. SBA’s final rule
published on April 27, 2023, at 88 FR
26164, advised small business concerns
of the requirement to remove their
designation from SAM within two days
of an SBA decision regarding
ineligibility.
Given SBA’s notice to small business
concerns, the cost to the public
associated with the FAR
implementation of SBA’s final rules is
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Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Rules and Regulations
de minimis and is limited to the cost of
regulatory familiarization.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as
amended by E.O. 14094) and 13563
direct agencies to assess the 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
Pursuant to the Congressional Review
Act, DoD, GSA, and NASA will send
this rule to each House of the Congress
and to the Comptroller General of the
United States. The Office of Information
and Regulatory Affairs (OIRA) in the
Office of Management and Budget has
determined that this rule does not meet
the definition in 5 U.S.C. 804(2).
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VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared
a Final Regulatory Flexibility Analysis
(FRFA) consistent with the Regulatory
Flexibility Act, 5 U.S.C. 601–612. The
FRFA is summarized as follows:
DoD, GSA, and NASA are adopting,
without change, an interim rule published on
February 23, 2024 (89 FR 13950), that
amended the Federal Acquisition Regulation
(FAR) to implement regulatory changes made
by the Small Business Administration (SBA)
in its final rules published on November 29,
2022, at 87 FR 73400, and on July 3, 2023,
at 88 FR 42592, to implement section 862 of
the William M. (Mac) Thornberry National
Defense Authorization Act (NDAA) for Fiscal
Year (FY) 2021 (Pub. L. 116–283; 15 U.S.C.
657f) and to partially implement section 863
of the NDAA for FY 2022 (Pub. L. 117–81;
15 U.S.C. 634(i)), as implemented by SBA in
its final rule published April 27, 2023, at 88
FR 26164.
The objective of this rule is to finalize the
FAR implementation of SBA’s
Governmentwide certification program for
SDVOSB concerns, update SDVOSB protest
procedures, and to require an SDVOSB
concern determined ineligible by SBA to
update its status in the System for Award
Management (SAM) within two days of the
eligibility determination.
There were no significant issues raised by
the public comments in response to the
initial regulatory flexibility analysis.
This rule impacts small business concerns
that seek a sole-source or set-aside award
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under the SDVOSB Program. Effective
January 1, 2024, an SDVOSB concern must be
certified as an SDVOSB concern by SBA, or
have both represented that it is an SDVOSB
concern in SAM and submitted a complete
application for certification to SBA on or
before December 31, 2023, in order to be
eligible for these types of awards. SBA has
minimized the impact on SDVOSB concerns
by accepting verifications of eligibility
already determined by the Department of
Veterans Affairs (VA). SBA granted a oneyear extension on certification for VA
verified firms and by providing firms that
represent their status in SAM a one-year
grace period to apply for certification. In
addition, this rule impacts SDVOSB concerns
that SBA determines are not eligible for
SDVOSB certification, as these concerns will
be ineligible for set-aside and sole-source
awards under the SDVOSB Program. A
concern determined ineligible for SDVOSB
certification, however, may continue to
represent its SDVOSB status in SAM and be
eligible for set-aside and sole-source awards
outside of the SDVOSB Program.
The cost to concerns seeking SDVOSB
certification should be de minimis because
the eligibility documentation requirements
currently exist under the VA’s VIP
Verification Program. In addition, the initial
application, program examination, and
recertification requirement will remain the
same under SBA’s management of the
program. Firms likely have the
documentation required for application,
examination, and recertification through the
transferred program because either such
documentation was already required for
certification through the VA’s VIP
Verification Program, or such documentation
is likely needed for a firm to represent its
status as an SDVOSB in SAM. Further, SBA
anticipates that the application process
should only require one hour of the concern’s
time. The cost to concerns to update their
status in SAM is de minimis as concerns are
already responsible for maintaining their
representations in SAM to ensure that they
are current, accurate, and complete.
According to SAM, there are 32,284
concerns registered as SDVOSBs. Of the
32,284 SDVOSB concerns registered in SAM,
10,635 are already verified SDVOSBs in VA’s
verification program, which leaves 21,649
SDVOSB concerns that represent their
socioeconomic status in SAM. Of the 21,649
that represent their socioeconomic status as
an SDVOSB in SAM, 181 are veteran-owned
small business concerns that are SDVOSB
certified in the VA’s certification database.
Therefore, there are 21,468 SDVOSBs that
represent their status in SAM that are not
currently in the VA’s verification program
and that may submit an application for
certification to SBA. However, the number of
SDVOSB concerns that will submit
applications for certification is unknown as
is the number of potential new SDVOSB
entrants; therefore, the number of small
business entities impacted by this rule may
be greater than or less than the 21,468
SDVOSBs that currently represent their
status in SAM.
As of January 1, 2024, this rule requires
small business concerns that submit an offer
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for a set-aside or sole-source requirement
under the SDVOSB Program to either be
certified by SBA, or have both submitted an
application for certification to SBA on or
before December 31, 2023, and represented
their SDVOSB status in SAM. Concerns
found ineligible to be a certified SDVOSB by
SBA must update their status in SAM within
two days of the eligibility determination.
SDVOSB protests will be decided by OHA
instead of SBA’s Director of Government
Contracting.
SBA implemented a certification and
information collection platform that
replicates the VA’s Center for Verification
and Evaluation currently approved
information collection and recordkeeping
requirements under OMB Control Number
2900–0675.
There are no known significant alternative
approaches to this rule that would
accomplish the stated objectives of the
applicable statutes and which would
minimize any significant economic impact of
this interim rule on small entities, as the
economic impact is not anticipated to be
significant.
Interested parties may obtain a copy
of the FRFA from the Regulatory
Secretariat Division. The Regulatory
Secretariat Division has submitted a
copy of the FRFA to the Chief Counsel
for Advocacy of the Small Business
Administration.
VIII. 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). These changes to the FAR
do not impose additional information
collection requirements to the
associated paperwork burdens
previously approved under Office of
Management and Budget (OMB) Control
Numbers 2900–0675, VETBIZ Vendor
Information Pages Verification Program;
9000–0136, Commercial Acquisitions;
FAR Sections Affected: 52.212–3(b)(2);
9000–0034, Examination of Records by
Comptroller General and Contract
Audit: FAR Section(s) Affected: 52.212–
5(d), 52.214–26, 52.215–2; and 9000–
0163, Small Business Size
Rerepresentation; FAR Sections
Affected 19.301 and 52.219–28.
List of Subjects in 48 CFR Parts 2, 6, 9,
18, 19, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Interim Rule Adopted as Final Without
Change
Accordingly, the interim rule
amending 48 CFR parts 2, 6, 9, 18, 19,
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and 52 which was published in the
Federal Register at 89 FR 13950 on
February 23, 2024, is adopted as a final
rule without change.
[FR Doc. 2024–29374 Filed 12–13–24; 8:45 am]
BILLING CODE 6820–EP–P
PART 25—FOREIGN ACQUISITION
25.101
[Amended]
3. Amend section 25.101, in
paragraph (d)(2)(ii) by removing
‘‘52.213–4(b)(1)(xvii)(B)’’ and adding
‘‘52.213–4(b)(1)(xviii)(B)’’ in its place.
■
DEPARTMENT OF DEFENSE
PART 36—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
GENERAL SERVICES
ADMINISTRATION
36.603
[Amended]
48 CFR Parts 13, 25, 36, 49, and 52
4. Amend section 36.603, in
paragraph (c) introductory text, by
removing from the last sentence ‘‘SF’s
254 and 255’’ and adding ‘‘SF 330’’ in
its place.
[FAC 2025–02; Item III; Docket No. FAR–
2024–0052; Sequence No. 4]
PART 49—TERMINATION OF
CONTRACTS
■
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
Federal Acquisition Regulation;
Technical Amendments
49.601–2
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
This document amends the
Federal Acquisition Regulation (FAR) to
make needed editorial changes.
DATES: Effective: January 3, 2025.
FOR FURTHER INFORMATION CONTACT: Ms.
Lois Mandell, Regulatory Secretariat
Division (MVCB), at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAC
2025–02, Technical Amendments.
SUPPLEMENTARY INFORMATION: This
document makes editorial changes to 48
CFR parts 13, 25, 36, 49, and 52.
SUMMARY:
List of Subjects in 48 CFR Parts 13, 25,
36, 49, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 13, 25, 36, 49, and
52 as set forth below:
■ 1. The authority citation for 48 CFR
parts 13, 25, 36, 49, and 52 continues to
read as follows:
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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.
[Amended]
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
[Amended]
[Amended]
7. Amend section 52.204–7 by adding
the phrase ‘‘(End of provision)’’ after
paragraph (d) and before the Alternate I.
■ 8. Amend section 52.204–8 by
revising the date of the provision, and
removing from paragraph (c)(1)(xix) the
phrase ‘‘include the clause at 52.204–7’’
and adding ‘‘include the provision at
52.204–7’’ in its place.
The revision reads as follows:
■
52.204–8 Annual Representations and
Certifications.
*
*
*
*
Annual Representations and
Certifications (JAN 2025)
*
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
*
52.204–19
*
*
*
[Amended]
9. Amend section 52.204–19 by
removing from the introductory text
‘‘clause.’’ and adding ‘‘clause:’’ in its
place.
■ 10. Amend section 52.212–5 by—
■ a. Revising the date of the clause;
■
13.302–5
[Amended]
2. Amend section 13.302–5, in
paragraph (d)(4) by removing ‘‘52.213–
4(b)(1)(xvii)(B)’’ and adding ‘‘52.213–
4(b)(1)(xviii)(B)’’ in its place.
■
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*
*
*
*
*
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial
Products and Commercial Services
(JAN 2025)
*
*
*
*
11. Amend section 52.225–3 in
Alternate II by—
■ a. Revising the date of the Alternate;
and
■ b. Removing from paragraph (c) the
phrase ‘‘provision entitled ‘‘Buy
American—Free Trade Agreements—
Israeli Trade Act.’’ ’’ and adding the
phrase ‘‘provision entitled ‘‘Buy
American—Free Trade Agreements—
Israeli Trade Act Certificate.’’ ’’ in its
place.
The revision reads as follows:
52.225–3 Buy American—Free Trade
Agreements—Israeli Trade Act.
*
6. Amend section 52.204–2 by
removing from the introductory text the
word ‘‘clauses’’ and adding ‘‘clause’’ in
its place.
■
*
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Products
and Commercial Services.
■
5. Amend section 49.601–2 by—
a. Removing from the end of the
introductory text, the undesignated text
‘‘LINE ITEMS, ETC.’’ ’’ and adding
‘‘Notice of Termination to Prime
Contractors’’ in its place; and
■ b. Removing from the undesignated
text before paragraph (a) ‘‘items, etc.’’
and adding ‘‘line items, etc.’’ in its
place.
52.204–7
b. Removing from paragraph (b)(30)
‘‘(15 U.S.C. 657s)’’ and adding ‘‘(15
U.S.C. 637(a)(17))’’ in its place; and
■ c. Removing from paragraph
(b)(49)(iii) the date ‘‘DEC 2022’’ and in
its place adding (JAN 2025).
The revision reads as follows:
■
*
■
■
52.204–2
101831
Sfmt 4700
*
*
*
*
Alternate II (JAN 2025) * * *
*
*
*
*
*
12. Amend section 52.225–4—
a. In Alternate II by—
i. Revising the date of the Alternate;
and
■ ii. Removing from paragraph (b) the
phrases ‘‘ ‘‘Buy American—Free Trade
Agreements—Israeli Trade Act—
Balance of Payments Program’’:’’ and
‘‘Israeli End Products’’ and adding the
phrases ‘‘ ‘‘Buy American—Free Trade
Agreements—Israeli Trade Act’’.’’ and
‘‘Israeli End Products:’’ in their place.
■ b. In Alternate III by—
■ i. Revising the date of the Alternate;
and
■ ii. Removing from paragraph (b)
‘‘ ‘‘Buy American—Free Trade
Agreements—Israeli Trade Act’’:’’ and
adding ‘‘ ‘‘Buy American—Free Trade
Agreements—Israeli Trade Act’’.’’ in its
place.
The revisions read as follows:
■
■
■
52.225–4 Buy American—Free Trade
Agreements—Israeli Trade Act Certificate.
*
*
*
*
*
Alternate II (JAN 2025) * * *
*
E:\FR\FM\16DER4.SGM
*
*
16DER4
*
*
]]>Agencies
[Federal Register Volume 89, Number 241 (Monday, December 16, 2024)]
[Rules and Regulations]
[Pages 101828-101831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29374]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 6, 9, 18, 19, and 52
[FAC 2025-02; FAR Case 2022-009, Item II; Docket No. FAR-2022-0009;
Sequence No. 1]
RIN 9000-AO46
Federal Acquisition Regulation: Certification of Service-Disabled
Veteran-Owned Small Businesses
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA have adopted as final, without change, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement the final rules published by the Small Business
Administration to implement sections of the National Defense
Authorization Acts for Fiscal Years 2021 and 2022.
DATES: Effective December 16, 2024.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Carrie Moore, Procurement Analyst, at 571-300-5917, or by email at
[email protected]. For information pertaining to status or
publication schedules contact the Regulatory Secretariat Division at
202-501-4755 or [email protected]. Please cite FAC 2025-02, FAR Case
2022-009.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule at 89 FR 13950 on
February 23, 2024, to implement regulatory changes made by the Small
Business Administration (SBA) in its final rules published on November
29, 2022, at 87 FR 73400 and at 88 FR 42592 on July 3, 2023, to
implement section 862 of the William M. (Mac) Thornberry National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L.
116-283; 15 U.S.C. 657f). This final rule also partially implements
section 863 of the NDAA for FY 2022 (Pub. L. 117-81; 15 U.S.C. 634(i)),
as implemented by SBA in its final rule published on April 27, 2023, at
88 FR 26164. For further details please see the interim rule. Three
respondents submitted comments on the interim rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments and the
changes made to the rule as a result of those comments are provided as
follows:
A. Summary of Significant Changes
There are no significant changes from the interim rule.
B. Analysis of Public Comments
1. Exceptions to Implementation
Comment: One respondent recommended the grace period for
certification be extended to allow businesses additional time to comply
with the new requirements.
Response: This rule implements section 862 of the NDAA for FY 2021.
Section 862 provides for a one-year grace period after the transfer
date of January 1, 2023, for service-disabled veteran-owned small
businesses (SDVOSBs) to submit an application for certification to SBA.
Therefore, since the grace period is statutory, it cannot be
extended by the Councils.
Comment: One respondent recommended that SBA expand its outreach
and support services to ensure that all interested businesses are able
to successfully navigate the certification process.
Response: To implement SDVOSB certification, SBA established a
website at https://veterans.certify.sba.gov. This website streamlines
and facilitates the SDVOSB certification process and provides links for
SDVOSBs to obtain assistance, including both online and telephonic
support.
2. Outside the Scope of the Rule.
Comment: One respondent submitted a comment that is unrelated to
this case.
Response: This comment is outside of the scope of this rule.
Comment: One respondent took exception to the certification
requirements for SDVOSBs and took exception to the three-year
certification period for SDVOSBs, indicating that it is too long and
may result in fraud.
Response: This rule implements regulatory changes made by the SBA
in its final rules published on November 29, 2022, at 87 FR 73400 and
at 88 FR 42592 on July 3, 2023. SBA regulations regarding the Veteran
Small Business Certification Program, including SDVOSB certification
requirements, are addressed at 13 CFR part 128. SBA's regulations
regarding recertification requirements are implemented at 13 CFR
128.306. This rule simply implements SBA's regulations; therefore, this
comment is outside the scope of this rule.
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 amends the following provisions and clauses at FAR:
52.212-3, Offeror Representations and Certifications--Commercial
Products and Commercial Services; 52.212-5, Contract Terms and
Conditions Required To Implement Statutes or Executive Orders--
Commercial Products and Commercial Services; 52.213-4, Terms and
Conditions-
[[Page 101829]]
Simplified Acquisitions (Other Than Commercial Products and Commercial
Services); 52.219-1, Small Business Program Representations; 52.219-8,
Utilization of Small Business Concerns; 52.219-27, Notice of Set-Aside
for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small
Business (SDVOSB) Concerns Eligible Under the SDVOSB Program; 52.219-
28, Post-Award Small Business Program Rerepresentation; and 52.244-6,
Subcontracts for Commercial Products and Commercial Services. These
provisions and clauses continue to apply to acquisitions at or below
the SAT and to acquisitions for commercial products, including COTS
items, and commercial services.
This rule applies section 862 of the NDAA for FY 2021 and section
863 of the NDAA for FY 2022, as implemented by this rule, to contracts
at or below the SAT and to commercial services and commercial products,
including COTS items.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to acquisitions at
or below the SAT. Section 1905 generally limits the applicability of
new laws when agencies are making acquisitions at or below the SAT, but
provides that such acquisitions will not be exempt from a provision of
law under certain circumstances, including when the Federal Acquisition
Regulatory Council (FAR Council) makes a written determination and
finding that it would not be in the best interest of the Federal
Government to exempt contracts and subcontracts in amounts not greater
than the SAT from the provision of law. The FAR Council has made a
determination to apply this statute to acquisitions at or below the
SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Products and Commercial Services, Including Commercially Available Off-
the-Shelf (COTS) Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial products and commercial services, and is
intended to limit the applicability of laws to contracts for the
acquisition of commercial products and commercial services. Section
1906 provides that if the FAR Council makes a written determination
that it is not in the best interest of the Federal Government to exempt
commercial contracts, the provision of law will apply to contracts for
the acquisition of commercial products and commercial services.
41 U.S.C. 1907 states that acquisitions of COTS items will be
exempt from certain provisions of law unless the Administrator for
Federal Procurement Policy makes a written determination and finds that
it would not be in the best interest of the Federal Government to
exempt contracts for the procurement of COTS items.
The FAR Council has made a determination to apply this statute to
acquisitions for commercial products and commercial services. The
Administrator for Federal Procurement Policy has made a determination
to apply this statute to acquisitions for COTS items.
IV. Expected Impact of the Rule
This rule is expected to impact Government and contractor
operations.
As of January 1, 2024, contracting officers are required to check
the System for Award Management (SAM) to verify that a concern is
designated as an SDVOSB certified by SBA for sole-source or set-aside
awards under the SDVOSB Program. If the concern is not designated in
SAM as a certified SDVOSB, the contracting officer will be required to
check SBA's Veteran Small Business Certification Program database to
determine if the concern submitted an application for certification to
SBA on or before December 31, 2023. If a concern submitted an
application for certification to SBA on or before December 31, 2023,
and represented its status as an SDVOSB concern in SAM, contracting
officers may rely on a concern's representation in SAM.
As of January 1, 2024, a small business concern that pursues a
sole-source or set-aside award under the SDVOSB Program is required to
be certified by SBA, or the concern must have both submitted a complete
application for certification to SBA on or before December 31, 2023,
and represented its status as an SDVOSB concern in SAM. A small
business concern that submitted a complete application for
certification to SBA on or before December 31, 2023, may continue to
represent its status as an SDVOSB in SAM until SBA makes its final
eligibility determination. This rule will not impact previous
participants in the Department of Veterans Affairs (VA) VIP
Verification Program as the requirements for the new SBA certification
program are nearly identical to those of the VA. The only change that
will impact small businesses is the certification requirement for
SDVOSB concerns. As indicated in SBA's final rule, SBA does not
anticipate the requirement for SBA certification to significantly
impact small business concerns seeking SDVOSB certification. To
minimize the potential impact on small businesses, SDVOSB concerns
previously certified by the VA are reflected as certified in the SBA
Veteran Small Business Certification Program database during the time
that remains in the firm's three-year term of eligibility. To
facilitate the transition of those firms already verified by the VA
prior to the transfer date that have an eligibility period that expires
in the first year of the Program, SBA extended the eligibility of those
verified firms for an additional period of one year. The one-year grace
period allows concerns that are not yet certified by the SBA to
continue to represent their status as an SDVOSB in SAM while preparing
their applications for SDVOSB certification. Furthermore, SBA did not
change the documentation requirements for certification. Additionally,
firms that represent their status in SAM likely have the documentation
necessary for certification as that documentation is necessary to be
able to represent their status as an SDVOSB in SAM. Therefore, concerns
will only have to enter the information already in hand to apply to be
included in SBA's Veteran Small Business Certification Program
database.
The public cost associated with obtaining SDVOSB certification is
accounted for under SBA's final rule implementing the certification
requirements (87 FR 73400). SBA's final rule advises concerns that
effective January 1, 2024, only a certified SDVOSB or a concern that
has submitted a complete application for certification to SBA on or
before December 31, 2023, may seek a set-aside or sole-source award
under the SDVOSB Program. SBA estimates it will take a concern
approximately one hour to complete the application process.
Small business concerns are also required to update SAM within two
days of an SBA determination of ineligibility. Small business concerns
are already required to update representations in SAM at least annually
and ensure that representations are current, accurate, and complete.
SBA's final rule published on April 27, 2023, at 88 FR 26164, advised
small business concerns of the requirement to remove their designation
from SAM within two days of an SBA decision regarding ineligibility.
Given SBA's notice to small business concerns, the cost to the
public associated with the FAR implementation of SBA's final rules is
[[Page 101830]]
de minimis and is limited to the cost of regulatory familiarization.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563
direct agencies to assess the 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
Pursuant to the Congressional Review Act, DoD, GSA, and NASA will
send this rule to each House of the Congress and to the Comptroller
General of the United States. The Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget has determined
that this rule does not meet the definition in 5 U.S.C. 804(2).
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
DoD, GSA, and NASA are adopting, without change, an interim rule
published on February 23, 2024 (89 FR 13950), that amended the
Federal Acquisition Regulation (FAR) to implement regulatory changes
made by the Small Business Administration (SBA) in its final rules
published on November 29, 2022, at 87 FR 73400, and on July 3, 2023,
at 88 FR 42592, to implement section 862 of the William M. (Mac)
Thornberry National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2021 (Pub. L. 116-283; 15 U.S.C. 657f) and to partially
implement section 863 of the NDAA for FY 2022 (Pub. L. 117-81; 15
U.S.C. 634(i)), as implemented by SBA in its final rule published
April 27, 2023, at 88 FR 26164.
The objective of this rule is to finalize the FAR implementation
of SBA's Governmentwide certification program for SDVOSB concerns,
update SDVOSB protest procedures, and to require an SDVOSB concern
determined ineligible by SBA to update its status in the System for
Award Management (SAM) within two days of the eligibility
determination.
There were no significant issues raised by the public comments
in response to the initial regulatory flexibility analysis.
This rule impacts small business concerns that seek a sole-
source or set-aside award under the SDVOSB Program. Effective
January 1, 2024, an SDVOSB concern must be certified as an SDVOSB
concern by SBA, or have both represented that it is an SDVOSB
concern in SAM and submitted a complete application for
certification to SBA on or before December 31, 2023, in order to be
eligible for these types of awards. SBA has minimized the impact on
SDVOSB concerns by accepting verifications of eligibility already
determined by the Department of Veterans Affairs (VA). SBA granted a
one-year extension on certification for VA verified firms and by
providing firms that represent their status in SAM a one-year grace
period to apply for certification. In addition, this rule impacts
SDVOSB concerns that SBA determines are not eligible for SDVOSB
certification, as these concerns will be ineligible for set-aside
and sole-source awards under the SDVOSB Program. A concern
determined ineligible for SDVOSB certification, however, may
continue to represent its SDVOSB status in SAM and be eligible for
set-aside and sole-source awards outside of the SDVOSB Program.
The cost to concerns seeking SDVOSB certification should be de
minimis because the eligibility documentation requirements currently
exist under the VA's VIP Verification Program. In addition, the
initial application, program examination, and recertification
requirement will remain the same under SBA's management of the
program. Firms likely have the documentation required for
application, examination, and recertification through the
transferred program because either such documentation was already
required for certification through the VA's VIP Verification
Program, or such documentation is likely needed for a firm to
represent its status as an SDVOSB in SAM. Further, SBA anticipates
that the application process should only require one hour of the
concern's time. The cost to concerns to update their status in SAM
is de minimis as concerns are already responsible for maintaining
their representations in SAM to ensure that they are current,
accurate, and complete.
According to SAM, there are 32,284 concerns registered as
SDVOSBs. Of the 32,284 SDVOSB concerns registered in SAM, 10,635 are
already verified SDVOSBs in VA's verification program, which leaves
21,649 SDVOSB concerns that represent their socioeconomic status in
SAM. Of the 21,649 that represent their socioeconomic status as an
SDVOSB in SAM, 181 are veteran-owned small business concerns that
are SDVOSB certified in the VA's certification database. Therefore,
there are 21,468 SDVOSBs that represent their status in SAM that are
not currently in the VA's verification program and that may submit
an application for certification to SBA. However, the number of
SDVOSB concerns that will submit applications for certification is
unknown as is the number of potential new SDVOSB entrants;
therefore, the number of small business entities impacted by this
rule may be greater than or less than the 21,468 SDVOSBs that
currently represent their status in SAM.
As of January 1, 2024, this rule requires small business
concerns that submit an offer for a set-aside or sole-source
requirement under the SDVOSB Program to either be certified by SBA,
or have both submitted an application for certification to SBA on or
before December 31, 2023, and represented their SDVOSB status in
SAM. Concerns found ineligible to be a certified SDVOSB by SBA must
update their status in SAM within two days of the eligibility
determination. SDVOSB protests will be decided by OHA instead of
SBA's Director of Government Contracting.
SBA implemented a certification and information collection
platform that replicates the VA's Center for Verification and
Evaluation currently approved information collection and
recordkeeping requirements under OMB Control Number 2900-0675.
There are no known significant alternative approaches to this
rule that would accomplish the stated objectives of the applicable
statutes and which would minimize any significant economic impact of
this interim rule on small entities, as the economic impact is not
anticipated to be significant.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VIII. 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). These changes to the
FAR do not impose additional information collection requirements to the
associated paperwork burdens previously approved under Office of
Management and Budget (OMB) Control Numbers 2900-0675, VETBIZ Vendor
Information Pages Verification Program; 9000-0136, Commercial
Acquisitions; FAR Sections Affected: 52.212-3(b)(2); 9000-0034,
Examination of Records by Comptroller General and Contract Audit: FAR
Section(s) Affected: 52.212-5(d), 52.214-26, 52.215-2; and 9000-0163,
Small Business Size Rerepresentation; FAR Sections Affected 19.301 and
52.219-28.
List of Subjects in 48 CFR Parts 2, 6, 9, 18, 19, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR parts 2, 6, 9, 18,
19,
[[Page 101831]]
and 52 which was published in the Federal Register at 89 FR 13950 on
February 23, 2024, is adopted as a final rule without change.
[FR Doc. 2024-29374 Filed 12-13-24; 8:45 am]
BILLING CODE 6820-EP-P
