General Services Administration Acquisition Regulation; Implementation of FASA Small Business; Protest, Disputes and Appeals; Subcontractor Payments Rules, and Service Contract Funding

GENERAL SERVICES ADMINISTRATION

48 CFR Parts 505, 519, 520, 532, 533, and 552

[APD 2800.12A, CHGE 69]

RIN 3090-AF87

General Services Administration Acquisition Regulation;

Implementation of FASA Small Business; Protest, Disputes and Appeals;

Subcontractor Payments Rules, and Service Contract Funding

AGENCY: Office of Acquisition Policy, GSA.

ACTION: Final rule.

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SUMMARY: The General Services Administration Acquisition Regulation

(GSAR) is amended to implement several sections of the Federal

Acquisition Streamlining Act of 1994 (Pub. L. 103-355) which related to

protests, disputes and appeals; subcontractor payments, service

contract funding and small business programs. This change revises the

GSAR to accommodate those changes and to reflect current organizational

changes within GSA. In addition, GSA Form 2677, Minority Contract Fact

Sheet, is removed and GSA Form 2689, Procurement Not Set Aside, is

revised to illustrate the new edition of the form.

EFFECTIVE DATE: December 29, 1995.

FOR FURTHER INFORMATION CONTACT: Victoria Moss, Office of GSA

Acquisition Policy, (202) 501-4764.

SUPPLEMENTARY INFORMATION:

A. Public Comments

This rule was not published in the Federal Register for public

comment because it merely revises the GSAR to conform to the Federal

Acquisition Regulation (FAR) and makes organizational changes within

GSA.

B. Executive Order 12866

This rule was not submitted to the Office of Management and Budget

for review because it is not a significant rule as defined in Executive

Order 12866, Regulatory Planning and Review.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply because this rule is

not a significant revision as defined in FAR 1.501-1.

D. Paperwork Reduction Act

This rule does not impose any information collection or

recordkeeping requirements that require the approval of OMB under 44

U.S.C. 3501 et seq. Therefore, the requirements of the Paperwork

Reduction Act do not apply.

List of Subjects in 48 CFR Parts 505, 519, 520, 532, 533, and 552

Government procurement.

Accordingly, 48 CFR Parts 505, 519, 520, 532, 533 and 552 are

amended as follows:

1. The authority citation for 48 CFR Parts 505, 519, 520, 532, 533,

and 552 continues to read as follows:

Authority: 40 U.S.C. 486(c).

PART 505--PUBLICIZING CONTRACT ACTIONS

2. Section 505.303-70 is amended by revising paragraphs (a)(1),

(b)(1), (b)(2), and (b)(3)(ii) to read as follows:

505.303-70 Notification of proposed substantial awards and awards

involving Congressional interest.

(a) * * *

(1) A contract with the Small Business Administration (the 8(a)

program) exceeding or estimated to exceed $100,000.

* * * * *

(b) * * *

(1) The Office of Congressional and Intergovernmental Affairs (S)

will notify the heads of contracting activities in writing with the

names of Members of Congress who wish to be notified of any or all

contract awards in excess of $100,000 to contractors located within

their district or State, as applicable. Upon such notification, the

contracting activities will provide, via electronic mail, facsimile or

hand delivery applicable notices of award to S. A copy of the submittal

should be provided to the regional congressional liaison office.

(2) Except for submittals hand delivered to S, the submittal must

be made by electronic mail or facsimile transmission. Except for

contracts awarded under urgent and compelling circumstances,

notification to S of an award must made on the same day that the award

is made and 24 hours before telephonic notice (if applicable) is

provided to the contractor. If the timeframe for notification to S

cannot be met, the Contracting Director must notify S by telephone.

(3) * * *

(ii) Identify the type of contract and contractor using the

following codes:

(A) DO for definite quantity contract.

(B) SC for schedule contract.

(C) TC for indefinite delivery contract other than schedule.

(D) S for small business concern.

(E) SD for small disadvantaged business concern.

(F) WO for women-owned small business concern.

(G) O for other than a small business concern.

* * * * *

3. Part 519 is amended by revising the heading to read as follows:

PART 519--SMALL BUSINESS PROGRAMS

4. Section 519.001 is revised to read as follows:

519.001 Definitions.

Agency small business technical advisors (SBTAs) as used in this

part, means the individuals designated in writing by the Office of

Enterprise Development (E). In addition to the duties outlined at FAR

19.201(c), the agency small business technical advisors perform the

functions of the small business specialist described in FAR 19.506 (a)

and (b) and 19.705-4(d)(5).

5. Section 519.201 is revised to read as follows:

519.201 General policy.

The Associate Administrator for Enterprise Development (E) may make

recommendations to the contracting officer as to whether a particular

acquisition should be awarded under

[[Page 1151]]

FAR 19.5 as a set-aside or under FAR 19.8 as a section 8(a) award

directly or through the SBTA.

6. Section 519.202-2 is revised to read as follows:

519.202-2 Locating small business sources.

Contracting officers should request assistance from SBTAs in

locating small business sources.

519.202-5 [Removed]

7. Section 519.202-5 is removed.

8. Section 519.502-70 is amended by revising paragraphs (a) and (d)

to read as follows:

519.502-70 Review of non-set-aside determinations.

(a) If the contracting officer decides that a procurement that is

expected to exceed $100,000 cannot be set aside for small business, the

reasons for the decision must be recorded on the GSA Form 2689,

Procurement Not Set Aside. The GSA Form 2689 must be submitted to the

SBTA for review and coordination with the SBA.

* * * * *

(d) Before the GSA or SBA reviewing officials provide additional

small business sources to the contracting officer when requesting

reconsideration of the non-set-aside determination, the reviewing

officials shall contact the sources to ensure the sources are

interested in submitting offers and to obtain information regarding the

capability of the sources to fulfill the Government's requirements. The

information obtained should be provided to the contracting officer for

consideration.

* * * * *

519.503 [Amended]

9. Section 519.503 is amended in the last sentence of paragraph (b)

format: ``Small Business Class Set-Aside Determination,'' by removing

the words ``for which small purchase procedures are to be used'' and

inserting in their place ``of $100,000 or less.''

519.602-3 [Amended]

10. Section 519.602-3 is amended by removing the office symbol

``AU'' once in paragraph (a) and where it appears three times in

paragraph (b) and inserting office symbol ``E'' in its place.

11. Subpart 519.7 is amended by revising the heading to read as

follows.

Subpart 519.7 Subcontracting With Small Business, Small

Disadvantaged Business and Women-Owned Small Business Concerns

12. Section 519.708 is revised to read as follows:

519.708 Solicitation provisions and contract clauses.

(a) The contracting officer shall insert the provision at 552.219-

72, Notice to Offerors of Subcontracting Plan Requirements, on the

cover page of the solicitation if the solicitation includes the clause

at FAR 52.219-9, Small, Small Disadvantaged and Women-Owned Small

Business Subcontracting Plan.

(b) The contracting officer shall insert the provision at 552.219-

73, Preparation, Submission, and Negotiation of Subcontracting Plans,

in negotiated solicitations if the solicitation includes the clause at

FAR 52.219-9, Small, Small Disadvantaged and Women-Owned Small Business

Subcontracting Plan, and the contract will be awarded on the basis of

an evaluation of technical and/or management proposals and cost or

price proposals using source selection procedures. The provision does

not apply to (1) solicitations for commercial products, or (2)

solicitations where, in the judgment of the contracting officer,

subcontracting opportunities are minimal.

(c) The contracting officer shall insert the provision at 552.219-

74, Goals for Subcontracting Plan, in sealed bid solicitations if the

solicitation includes the clause at FAR 52.219-9, Small, Small

Disadvantaged and Women-Owned Small Business Subcontracting Plan. The

basic provision should be used when the contracting officer is able to

realistically establish target goals. Alternate 1 should be used in

sealed bid solicitations when the contracting officer cannot establish

realistic target goals and in negotiated solicitations that include the

clause at FAR 52.219-9 but do not include the provision at 552.219-73.

13. Section 519.803-70 is revised to read as follows:

519.803-70 Contracting officer evaluation of recommendations for 8(a)

set-aside(s).

If the Associate Administrator for Enterprise Development (E) or

the SBTA recommends that a procurement be set aside for award under the

8(a) program and the contracting officer disagrees, the contracting

officer shall discuss the matter with the official that made the

recommendation before making a decision. If the contracting officer

decides not to award the contract under the 8(a) program as

recommended, the reasons for the decision must be documented for the

record as required by FAR 19.202 and a copy of the documentation must

be forwarded to E within 10 working days of the contracting officer's

decision.

PART 520--[RESERVED]

14. Part 520 is removed and reserved.

PART 532--CONTRACTING FINANCING

15. Sections 532.112 and 532.112-1 are added to read as follows:

532.112 Payment of subcontractors under contracts for non-commercial

items.

532.112-1 Subcontractor assertions of nonpayment.

Contracting officers who determine that a certification of payment

of a subcontractor or supplier under FAR 32.112-1 is inaccurate in any

material respect shall report the matter to the Office of Inspector

General. If appropriate, the Office of Inspector General will forward a

report and recommendation to the Department of Justice.

16. Section 532.705-1 is revised to read as follows:

532.705-1 Clauses for contracting in advance of funds.

The contracting officer shall insert the clause at 552.232-77,

Availability of Funds, in solicitations and contracts for services

which are ``severable'' when the contact, or a portion of the contract,

will be chargeable to funds of the new fiscal year and the

circumstances described in the prescriptions for the FAR clauses at

52.232-18 or 52.232-19 do not apply.

PART 533--PROTESTS, DISPUTES, AND APPEALS

17. In Section 533.104 paragraph (a) the heading is revised to

read: ``General procedures,'' the FAR cite in paragraph (a)(1) is

revised to read ``FAR 33.104(a)(3);'' remove ``25 workdays'' in

paragraph (a)(3)(v) and insert ``35 days,''; revise the FAR cite in

paragraph (b)(5) introductory text to read ``FAR 33.104(a)(2), remove

the words ``within 7 calendar days of receiving this notice'' in the

last paragraph of (a)(5), remove the word ``calendar'' in the first

sentence of paragraph (b), and revise paragraphs (c) and (d) to read as

follows:

533.104 Protests to GAO.

* * * * *

(c) Protests after award. If the protest is received from GAO (not

from protester or any other party) within the time periods specified in

FAR 33.104(c) contract performance must be suspended unless the HCA

determines in writing that contract performance is in the best

interests of the United States

[[Page 1152]]

or that urgent and compelling circumstances that significantly affect

the interests of the United States do not permit waiting for the GAO's

decision. The written determination and findings (D&F), in the format

shown at 501.704-70(e)(2), should be prepared by the contracting

officer for signature of the HCA. The D&F must be concurred in by the

Regional Counsel (on regional procurements), and the appropriate AGC.

After the D&F is approved, it must be returned to the AGC who notifies

GAO of the agency's findings and intended action before contract

performance is authorized.

(d) Notice to GAO. The HCA responsible for the solicitation,

proposed award, or award of the contract must report to the Comptroller

General through the OGC within 65 days of receipt of the GAO's

recommendation if the agency has decided not to comply with the

recommendation. The report must explain the reasons why the GAO's

recommendation will not be followed.

533.105 [Amended]

18. In section 533.105 paragraph (a)(1) introductory text, remove

the words ``Resources Management'' after the word ``Information'' and

insert in their place ``Technology.''

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

552.219-9 [Removed]

19. Section 552.219-9 and its Alternate I are removed.

552.219-16 [Removed]

20. Section 552.219-16 is removed.

21. Section 552.219-72 is revised to read as follows:

552.219-72 Notice to Offerors of Subcontracting Plan Requirements.

As prescribed in 519.708(a), insert the following provision:

NOTICE OF OFFERORS OF SUBCONTRACTING PLAN REQUIREMENTS (DEC 1995)

The General Services Administration (GSA) is committed to

assuring that maximum practicable opportunity is provided to small,

small disadvantaged, and women-owned small business concerns to

participate in the performance of this contract consistent with its

efficient performance. GSA expects any subcontracting plan submitted

pursuant to FAR 52.219-9, Small, Small Disadvantaged and Women Owned

Small Business Subcontracting Plan, to reflect this commitment.

Consequently, an offeror, other than a small business concern,

before being awarded a contract exceeding $500,000 ($1,000,000 for

construction) will be required to demonstrate that its

subcontracting plan represents a creative and innovative program for

involving small, small disadvantaged, and women-owned small business

concerns as subcontractors in the performance of this contract.

(End of Provision)

552.219-73 [Amended]

22. In section 552.219-73 introductory text revise the GSAR cite to

read ``519.708(b),'' and revise the date of the clause to read ``DEC

1995''; in paragraph (b) of the clause remove the GSAR cite ``552.219-

9(d)'' and insert in its place ``FAR 52.219-9(d).'' Also in paragraph

(b) second sentence, revise the phrase ``Small Business'' to read

``Small, Small Disadvantaged and Women-Owned Small Business''; in

paragraph (c)(1) remove ``552.219-9'' and insert in its place ``FAR

52.219-9.''

552.219-74 [Amended]

23. In section 552.219-74 introductory text, revise the GSAR cite

to read ``519.708(c),'' revise the clause date to read ``(DEC 1995),''

in paragraph (a)(1) of the clause remove all the text after the word

``at'' at the end of paragraph (a)(1) and insert in its place ``FAR

52.219-9, Small, Small Disadvantaged and Women-Owned Small Business

Subcontracting Plan;'' in paragraph (a)(2) remove ``552.219-9(d)'' and

insert in its place ``FAR 52.219-9(d); in paragraph (c)(1) remove

``552.219-9'' and insert in its place ``FAR 52.219-9.''

Dated: December 14, 1995.

Ida M. Ustad,

Associate Administrator for Acquisition Policy.

[FR Doc. 96-265 Filed 1-16-96; 8:45 am]

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