Federal Acquisition Regulation; Reform of Affirmative Action in Federal Procurement

SUMMARY: The Department of Defense, the General Services

Administration, and the National Aeronautics and Space Administration

have agreed to issue Federal Acquisition Circular 97-07, as an interim

rule to make amendments to the Federal Acquisition Regulation (FAR)

concerning programs for small disadvantaged business (SDB) concerns.

These amendments conform to a Department of Justice (DoJ) proposal to

reform affirmative action in Federal procurement. DoJ's proposal is

designed to ensure compliance with the constitutional standards

established by the Supreme Court in Adarand Constructors, Inc. v. Pena,

115 S. Ct. 2097 (1995). This regulatory action was subject to Office of

Management and Budget review under Executive Order 12866, dated

September 30, 1993. This is a major rule under 5 U.S.C. 804.

DATES: Effective Date: January 1, 1999.

Applicability Date: The policies, provisions, and clauses of this

interim rule are effective for all solicitations issued on or after

January 1, 1999.

Comment Date: Comments should be submitted to the FAR Secretariat

at the address shown below on or before August 31, 1998 to be

considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to:

General Services Administration, FAR Secretariat (MVR), 1800 F Street,

NW, Room 4035, Attn: Ms. Laurie Duarte, Washington, DC 20405.

E-Mail comments submitted over the Internet should be addressed to:

[email protected]

Please cite FAC 97-07, FAR case 97-004B in all correspondence

related to this case.

FOR FURTHER INFORMATION CONTACT:

Ms. Victoria Moss, Procurement Analyst, Federal Acquisition Policy

Division, General Services Administration, 1800 F Street NW, Washington

DC 20405, Telephone: (202) 501-4764, or Mr. Mike Sipple, Procurement

Analyst, Contract Policy and Administration, Director, Defense

Procurement, Department of Defense, 3060 Defense Pentagon, Washington

DC 20301-3060, Telephone: (703) 695-8567.

For general information call the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

In Adarand, the Supreme Court extended strict judicial scrutiny to

Federal affirmative action programs that use racial or ethnic criteria

as a basis for decisionmaking. In procurement, this means that any use

of race in the decision to award a contract is subject to strict

scrutiny. Under strict scrutiny, any Federal programs that make race a

basis for contract decisionmaking must be narrowly tailored to serve a

compelling Government interest.

DoJ developed a proposed structure to reform affirmative action in

Federal procurement designed to ensure compliance with the

constitutional standards established by the Supreme Court in Adarand.

The DoJ proposal was published for public notice and invitation for

comments (61 FR 26042, May 23, 1996). The DoJ model is being

implemented in several parts: revisions to the FAR and the FAR

supplements; Small Business Administration (SBA) regulations; and

procurement mechanisms and applicable factors (percentages) determined

by the Department of Commerce. The SBA regulations were published for

public comment on August 14, 1997 (62 FR 23584). Requirements related

to certification, protests, and appeals and other issues are also

addressed in SBA's rules. On May 9, 1997, proposed amendments to the

FAR, based on the DoJ Model, were published as a proposed rule in the

Federal Register (62 FR 25786). An interim FAR rule that implemented

the price evaluation adjustment for SDB concerns was previously issued

in the Federal Register on June 30, 1998. This interim rule implements

the evaluation factor or subfactor for SDB participation, incentive

subcontracting with SDB concerns, and other coverage that is not

directly related to the price evaluation adjustment for SDB concerns.

B. Regulatory Flexibility Act

These changes may 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 et seq., because through the

rule small business concerns may be provided benefits in Federal

contracting. An Initial Regulatory Flexibility Analysis (IRFA) was

submitted to the Chief Counsel for Advocacy of the Small Business

Administration. A summary of the IRFA was published along with the FAR

proposed rule in the Federal Register at 62 FR 25786, May 9, 1997. The

economic impact associated with certification and associated costs, as

well as other program requirements addressed in the SBA's changes to 13

CFR Parts 121, 124, and 134 have been addressed in analyses prepared by

the SBA. The following information is provided to update the IRFA

related to this FAR interim rule:

This interim rule would establish in the FAR two procurement

mechanisms benefiting small disadvantaged businesses (SDBs). The

first of these mechanisms is a source selection evaluation factor or

subfactor for planned SDB participation, primarily at the

subcontract level, in the performance of a contract in the SIC Major

Groups as determined by the Department of Commerce. This evaluation

factor or subfactor would be used in competitive, negotiated

acquisitions expected to exceed $500,000 ($1,000,000 for

construction). This mechanism would not be applied to certain major

categories of acquisition, including, for example, small business

set-asides, 8(a) acquisitions, and acquisitions in which source

selection is based on a cost or price competition between proposals

meeting the Government's minimum requirements.

The second mechanism provides for a monetary incentive for

subcontracting with SDBs. Contracts resulting from solicitations in

which SDB participation is evaluated may provide for a monetary

payment to those prime contractors that meet specified targets for

SDB participation as subcontractors in the SIC Major Groups as

determined by the Department of Commerce.

The rule would also add to the FAR a requirement to evaluate the

past performance of offerors in complying with targets for SDB

participation and subcontracting plan goals for SDBs whenever past

performance is to be evaluated.

The main impact of the rule is expected to be on firms seeking

to obtain contracts from Federal government agencies and SDBs

seeking subcontracts under those prime contracts. The best available

estimate of the number of such firms is 30,000. The basis for this

estimate is the IRFA prepared by SBA addressing the changes to 13

CFR Parts 121, 124, and 134. The anticipated costs for certification

and protest and appeal procedures are addressed in SBA's IRFA. The

primary impact of this interim rule is expected to be the increase

in contract awards to qualified firms and a corresponding decrease

in contract awards to firms that are not qualified as SDBs.

[[Page 36121]]

Within the constraints imposed by the need to implement the DOJ-

proposed reforms, the rule was crafted throughout to select

alternatives that would minimize any adverse economic impact on

small business.

A copy of the IRFA may be obtained from the FAR Secretariat.

C. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (Pub. L. 104-13) applies

because the interim rule contains reporting and recordkeeping

requirements. Requests for approval of new and revised information

collection requirements were submitted to the Office of Management and

Budget under 44 U.S.C. 3501 et seq. The information collections

required by this rule were approved under clearance 9000-0007 through

June 30, 2000, and 9000-0150 through June 30, 2000. Public comments

concerning this request were invited through a Federal Register notice

published on May 9, 1997. No comments were received.

D. Determination to Issue an Interim Rule

A determination has been made under the authority of the Secretary

of Defense (DOD), the Administrator of General Services (GSA), and the

Administrator of the National Aeronautics and Space Administration

(NASA) that urgent and compelling reasons exist to promulgate this

interim rule without prior opportunity for public comment. This action

is necessary to allow adequate time for the significant number of

potential SDB subcontractors to understand the requirements of the rule

and to be certified as SDB's by SBA. The rule will conform the FAR to

the model program designed by the Department of Justice to ensure

compliance with Constitutional standards established by the Supreme

Court and, thereby, avoid unnecessary litigation. A proposed FAR rule

on this subject was published for public comment at 62 FR 25786 on May

9, 1997. As a result of public comments received in response to the

proposed rule, changes have been made to the rule. This interim rule

would qualify for publication as a final rule; however, further public

comments are requested. Pursuant to Public Law 98-577 and FAR 1.501,

public comments received in response to this interim rule will be

considered in the formation of the final rule.

List of Subjects in 48 CFR Parts 1, 12, 15, 19, 52, and 53

Government procurement.

Dated: June 23, 1998.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Federal Acquisition Circular

FAC 97-07

Federal Acquisition Circular (FAC) 97-07 is issued under the

authority of the Secretary of Defense, the Administrator of General

Services, and the Administrator for the National Aeronautics and

Space Administration.

The policies, provisions, and clauses of this interim rule are

effective for all solicitations issued on or after January 1, 1999.

Dated: June 17, 1998.

R.D. Kerrins,

Col, USA, Deputy Director, Defense Procurement.

Dated: June 16, 1998.

Ida M. Ustad,

Deputy Associate Administrator, Office of Acquisition Policy, General

Services Administration.

Dated: June 17, 1998.

Deidre A. Lee,

Associate Administrator for Procurement, NASA.

Therefore, 48 CFR Parts 1, 12, 15, 19, 52, and 53 are amended as

set forth below:

1. The authority citation for 48 CFR Parts 1, 12, 15, 19, 52, and

53 continues to read as follows:

Authority: 41 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

2. Section 1.106 is amended in the table following the introductory

paragraph by adding, in numerical order, the following entries:

1.106 OMB approval under the Paperwork Reduction Act.

* * * * *

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

FAR segment OMB control No.

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

* * * * *

19.12..................................... 9000-0150

* * * * *

52.219-25................................. 9000-0150

* * * * *

OF 312.................................... 9000-0150

* * * * *

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

PART 12--ACQUISITION OF COMMERCIAL ITEMS

3. Section 12.303(b)(1) is revised to read as follows:

12.303 Contract format.

* * * * *

(b) * * *

(1) Block 10 if a price evaluation adjustment for small

disadvantaged business concerns is applicable (the contracting officer

shall indicate the percentage(s) and applicable line item(s)), if an

incentive subcontracting clause is used (the contracting officer shall

indicate the applicable percentage), or if set aside for emerging small

businesses;

* * * * *

PART 15--CONTRACTING BY NEGOTIATION

4. Section 15.304 is amended by adding paragraph (c)(4) to read as

follows:

15.304 Evaluation factors and significant subfactors.

* * * * *

(c) * * *

(4) The extent of participation of small disadvantaged business

concerns in performance of the contract shall be evaluated in

unrestricted acquisitions expected to exceed $500,000 ($1,000,000 for

construction) subject to certain limitations (see 19.201 and 19.1202).

* * * * *

5. Section 15.305 is amended by adding paragraph (a)(2)(v) to read

as follows:

15.305 Proposal evaluation.

(a) * * *

(2) * * *

(v) The evaluation should include the past performance of offerors

in complying with subcontracting plan goals for small disadvantaged

business (SDB) concerns (see Subpart 19.7), monetary targets for SDB

participation (see 19.1202), and notifications submitted under 19.1202-

4(b).

* * * * *

6. Section 15.503 is amended in paragraph (a)(2) by revising the

first sentence to read as follows:

15.503 Notifications to unsuccessful offerors.

(a) * * *

(2) Preaward notices for small business programs. In addition to

the notice in paragraph (a)(1) of this section, when using a small

business set-aside (see Subpart 19.5), or when a small disadvantaged

business concern receives a benefit based on its disadvantaged status

(see Subpart 19.11 and 19.1202) and is the apparently successful

offeror, upon completion of negotiations and determinations of

[[Page 36122]]

responsibility, and completion of the process in 19.304(d), if

necessary, but prior to award, the contracting officer shall notify

each offeror in writing of the name and address of the apparently

successful offeror. * * *

* * * * *

PART 19--SMALL BUSINESS PROGRAMS

7. Section 19.000 is amended at the end of paragraph (a)(7) by

removing ``and''; in paragraph (a)(8) by removing the period and

inserting ``; and'' in its place; and by adding paragraph (a)(9) to

read as follows:

19.000 Scope of part.

(a) * * *

(9) The Small Disadvantaged Business Participation Program.

* * * * *

19.001 Definitions.

8. Section 19.001 is amended by revising the definition of ``Small

disadvantaged business concern'' to read as follows:

19.001 Definitions.

* * * * *

Small disadvantaged business concern, as used in this part, means

(except for 52.212-3(c)(2) and 52.219-1(b)(2) for general statistical

purposes and 52.212-3(c)(7)(ii), 52.219-22(b)(2), and 52.219-23(a) for

joint ventures under the price evaluation adjustment for small

disadvantaged business concerns) an offeror that represents, as part of

its offer, that it is a small business under the size standard

applicable to the acquisition; and either--

(1) It has received certification as a small disadvantaged business

concern consistent with 13 CFR 124, Subpart B; and

(i) No material change in disadvantaged ownership and control has

occurred since its certification;

(ii) Where the concern is owned by one or more disadvantaged

individuals, the net worth of each individual upon whom the

certification is based does not exceed $750,000 after taking into

account the applicable exclusions set forth at 13 CFR 124.104(c)(2);

and

(iii) It is listed, on the date of its representation, on the

register of small disadvantaged business concerns maintained by the

Small Business Administration; or

(2) For prime contractors, it has submitted a completed application

to the Small Business Administration or a Private Certifier to be

certified as a small disadvantaged business concern in accordance with

13 CFR 124, Subpart B, and a decision on that application is pending,

and that no material change in disadvantaged ownership and control has

occurred since its application was submitted. In this case, a

contractor must receive certification as an SDB by the SBA prior to

contract award.

* * * * *

9. Section 19.201 is amended by revising paragraph (b) to read as

follows:

19.201 General policy.

* * * * *

(b) The Department of Commerce will determine on an annual basis,

by Major Groups as contained in the Standard Industrial Classification

(SIC) manual, and region, if any, the authorized small disadvantaged

business (SDB) procurement mechanisms and applicable factors

(percentages). The Department of Commerce determination shall only

affect solicitations that are issued on or after the effective date of

the determination. The effective date of the Department of Commerce

determination shall be no less than 60 days after its publication date.

The Department of Commerce determination shall not affect ongoing

acquisitions. The SDB procurement mechanisms are a price evaluation

adjustment for SDB concerns (see Subpart 19.11), an evaluation factor

or subfactor for participation of SDB concerns (see 19.1202), and

monetary subcontracting incentive clauses for SDB concerns (see

19.1203). The Department of Commerce determination shall also include

the applicable factors, by SIC Major Group, to be used in the price

evaluation adjustment for SDB concerns (see 19.1104). The authorized

procurement mechanisms shall be applied consistently with the policies

and procedures in this subpart. The agencies shall apply the

procurement mechanisms determined by the Department of Commerce. The

Department of Commerce, in making its determination, is not limited to

the SDB procurement mechanisms identified in this section where the

Department of Commerce has found substantial and persuasive evidence

of--

(1) A persistent and significant underutilization of minority firms

in a particular industry, attributable to past or present

discrimination; and

(2) A demonstrated incapacity to alleviate the problem by using

those mechanisms.

* * * * *

10. Section 19.304 is amended in the introductory text of paragraph

(c) by revising the second sentence to read as follows:

19.304 Disadvantaged business status.

* * * * *

(c) * * * The mechanisms that may provide benefits on the basis of

disadvantaged status as a prime contractor are a price evaluation

adjustment for SDB concerns (see Subpart 19.11), and an evaluation

factor or subfactor for SDB participation (see 19.1202).

* * * * *

11. Section 19.305 is amended in paragraph (a) by revising the last

sentence to read as follows:

19.305 Protesting a representation of disadvantaged business status.

(a) * * * An offeror, the contracting officer, or the SBA may

protest the apparently successful offeror's representation of

disadvantaged status if the concern is eligible to receive a benefit

based on its disadvantaged status (see Subpart 19.11 and 19.1202).

* * * * *

12. Section 19.306 is amended by revising paragraph (b) to read as

follows:

19.306 Solicitation provisions.

* * * * *

(b) The contracting officer shall insert the provision at 52.219-

22, Small Disadvantaged Business Status, in solicitations that include

the clause at 52.219-23, Notice of Price Evaluation Adjustment for

Small Disadvantaged Business Concerns, or 52.219-25, Small

Disadvantaged Business Participation Program-Disadvantaged Status and

Reporting.

* * * * *

13. Section 19.703 is amended by revising paragraphs (a)(2) and (b)

to read as follows:

19.703 Eligibility requirements for participating in the program.

(a) * * *

(2) In connection with a subcontract, or a requirement for which

the apparently successful offeror received an evaluation credit for

proposing one or more SDB subcontractors, the contracting officer or

the SBA may protest the disadvantaged status of a proposed

subcontractor. Such protests will be processed in accordance with 13

CFR 124.1015 through 124.1022. Other interested parties may submit

information to the contracting officer or the SBA in an effort to

persuade the contracting officer or the SBA to initiate a protest. Such

protests, in order to be considered timely, must be submitted to the

SBA prior to completion of performance by the intended subcontractor.

(b) A contractor acting in good faith may rely on the written

representation

[[Page 36123]]

of its subcontractor regarding the subcontractor's status as a small

business concern or a woman-owned small business concern. The

contractor shall obtain representations of small disadvantaged status

from subcontractors through use of a provision substantially the same

as paragraph (b)(1)(i) of the provision at 52.219-22, Small

Disadvantaged Business Status. A contractor shall confirm that a

subcontractor representing itself as a small disadvantaged business

concern is listed on the SBA's list of SDBs by accessing the list at

http://www.sba.gov or by contacting the SBA's Office of Small

Disadvantaged Business Certification and Eligibility. The contractor,

the contracting officer, or any other interested party can challenge a

subcontractor's size status representation by filing a protest, in

accordance with 13 CFR 121.1601 through 121.1608. Protests challenging

a subcontractor's small disadvantaged business representation shall be

filed in accordance with 13 CFR 124.1015 through 124.1022.

14. Section 19.705-1 is amended by inserting the following sentence

after the first sentence to read as follows:

19.705-1 General support of the program.

* * * This subsection does not apply to SDB subcontracting (see

19.1203). * * *

19.705-4 [Amended]

15. Section 19.705-4 is amended in the last sentence of paragraph

(c) by removing ``, small disadvantaged''.

19.708 [Amended]

16. Section 19.708 is amended in the first sentence of paragraphs

(c)(1), (c)(2), and (c)(3) by removing ``, small disadvantaged''.

17. Subpart 19.12, consisting of sections 19.1201 through 19.1204,

is added to read as follows:

Subpart 19.12--Small Disadvantaged Business Participation Program

19.1201 General.

19.1202 Evaluation factor or subfactor.

19.1202-1 General.

19.1202-2 Applicability.

19.1202-3 Considerations in developing an evaluation factor or

subfactor.

19.1202-4 Procedures.

19.1203 Incentive subcontracting with small disadvantaged business

concerns.

19.1204 Solicitation provisions and contract clauses.

Authority: 41 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

Subpart 19.12--Small Disadvantaged Business Participation Program

19.1201 General.

This subpart addresses the evaluation of the extent of

participation of small disadvantaged business (SDB) concerns in

performance of contracts in the Standard Industrial Classification

(SIC) Major Groups as determined by the Department of Commerce (see

19.201(b)), and to the extent authorized by law. Two mechanisms are

addressed in this subpart--

(a) An evaluation factor or subfactor for the participation of SDB

concerns in performance of the contract; and

(b) An incentive subcontracting program for SDB concerns.

19.1202 Evaluation factor or subfactor.

19.1202-1 General.

The extent of participation of SDB concerns in performance of the

contract, in the SIC Major Groups as determined by the Department of

Commerce, and to the extent authorized by law, shall be evaluated

consistent with this section. Participation in performance of the

contract includes joint ventures, teaming arrangements, and

subcontracts. Credit under the evaluation factor or subfactor is not

available to SDB concerns that receive a price evaluation adjustment

under Subpart 19.11. If an SDB concern waives the price evaluation

adjustment at Subpart 19.11, participation in performance of that

contract includes the work expected to be performed by the SDB concern

at the prime contract level.

19.1202-2 Applicability.

(a) Except as provided in paragraph (b) of this subsection, the

extent of participation of SDB concerns in performance of the contract

in the authorized SIC Major Groups shall be evaluated in competitive,

negotiated acquisitions expected to exceed $500,000 ($1,000,000 for

construction).

(b) The extent of participation of SDB concerns in performance of

the contract in the authorized SIC Major Groups (see paragraph (a) of

this subsection) shall not be evaluated in--

(1) Small business set-asides (see Subpart 19.5);

(2) 8(a) acquisitions (see Subpart 19.8);

(3) Negotiated acquisitions where the lowest price technically

acceptable source selection process is used (see 15.101-2); or

(4) Contract actions that will be performed entirely outside of any

State, territory, or possession of the United States, the District of

Columbia, and the Commonwealth of Puerto Rico.

19.1202-3 Considerations in developing an evaluation factor or

subfactor.

In developing an SDB participation evaluation factor or subfactor,

agencies may consider--

(a) The extent to which SDB concerns are specifically identified;

(b) The extent of commitment to use SDB concerns (for example,

enforceable commitments are to be weighted more heavily than non-

enforceable ones);

(c) The complexity and variety of the work SDB concerns are to

perform;

(d) The realism of the proposal;

(e) Past performance of offerors in complying with subcontracting

plan goals for SDB concerns and monetary targets for SDB participation;

and

(f) The extent of participation of SDB concerns in terms of the

value of the total acquisition.

19.1202-4 Procedures.

(a) The solicitation shall describe the SDB participation

evaluation factor or subfactor. The solicitation shall require offerors

to provide, with their offers, targets, expressed as dollars and

percentages of total contract value, in each of the applicable,

authorized SIC Major Groups, and a total target for SDB participation

by the contractor, including joint venture partners, and team members,

and a total target for SDB participation by subcontractors. The

solicitation shall require an SDB offeror that waives the SDB price

evaluation adjustment in the clause at 52.219-23, Notice of Price

Evaluation Adjustment for Small Disadvantaged Business Concerns, to

provide with its offer a target for the work that it intends to perform

as the prime contractor. The solicitation shall state that any targets

will be incorporated into and become part of any resulting contract.

Contractors with SDB participation targets shall be required to report

SDB participation.

(b) When an evaluation includes an SDB participation evaluation

factor or subfactor that considers the extent to which SDB concerns are

specifically identified, the SDB concerns considered in the evaluation

shall be listed in the contract, and the contractor shall be required

to notify the contracting officer of any substitutions of firms that

are not SDB concerns.

19.1203 Incentive subcontracting with small disadvantaged business

concerns.

The contracting officer may encourage increased subcontracting

opportunities in the SIC Major Groups as determined by the Department

of Commerce for SDB

[[Page 36124]]

concerns in negotiated acquisitions by providing monetary incentives

(see the clause at 52.219-26, Small Disadvantaged Business

Participation Program Incentive Subcontracting, and 19.1204(c)).

Monetary incentives shall be based on actual achievement as compared to

proposed monetary targets for SDB subcontracting. The incentive

subcontracting program is separate and distinct from the establishment,

monitoring, and enforcement of SDB subcontracting goals in a

subcontracting plan.

19.1204 Solicitation provisions and contract clauses.

(a) The contracting officer may insert a provision substantially

the same as the provision at 52.219-24, Small Disadvantaged Business

Participation Program Targets, in solicitations that consider the

extent of participation of SDB concerns in performance of the contract.

The contracting officer may vary the terms of this provision consistent

with the policies in 19.1202-4.

(b) The contracting officer shall insert the clause at 52.219-25,

Small Disadvantaged Business Participation Program--Disadvantaged

Status and Reporting, in solicitations and contracts that consider the

extent of participation of SDB concerns in performance of the contract.

(c) The contracting officer may, when contracting by negotiation,

insert in solicitations and contracts containing the clause at 52.219-

25, Small Disadvantaged Business Participation Program--Disadvantaged

Status and Reporting, a clause substantially the same as the clause at

52.219-26, Small Disadvantaged Business Participation Program--

Incentive Subcontracting, when authorized (see 19.1203). The

contracting officer may include an award fee provision in lieu of the

incentive; in such cases, however, the contracting officer shall not

use the clause at 52.219-26.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.212-2 [Amended]

18. Section 52.212-2 is amended by revising the provision date to

read ``(Jan 1999)''; and in the parenthetical following paragraph (a)

of the provision by inserting ``; (iv) small disadvantaged business

participation;'' after ``(see FAR 15.304)''.

19. Section 52.212-3 is amended by revising the provision date; and

the introductory text of paragraph (c)(7) to read as follows:

52.212-3 Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (Jan.

1999)

* * * * *

(c) * * *

(7) (Complete only if the solicitation contains the clause at

FAR 52.219-23, Notice of Price Evaluation Adjustment for Small

Disadvantaged Business Concerns, or FAR 52.219-25, Small

Disadvantaged Business Participation Program--Disadvantaged Status

and Reporting, and the offeror desires a benefit based on its

disadvantaged status.)

* * * * *

20. Section 52.212-5 is amended by revising the clause date;

redesignating paragraphs (b)(7) through (b)(18) as (b)(9) through

(b)(20), respectively; and adding new paragraphs (b)(7) and (b)(8) to

read as follows:

52.212-5 Contract Terms and Conditions Required to Implement Statutes

or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required to Implement Statutes or

Executive Orders--Commercial Items (Jan. 1999)

* * * * *

(b) * * *

________ (7) 52.219-25, Small Disadvantaged Business

Participation Program--Disadvantaged Status and Reporting (Pub. L.

103-355, section 7102, and 10 U.S.C. 2323).

________ (8) 52.219-26, Small Disadvantaged Business

Participation Program--Incentive Subcontracting (Pub. L. 103-355,

section 7102, and 10 U.S.C. 2323).

* * * * *

21. Section 52.219-8 is amended by revising the clause date and

paragraph (c) to read as follows:

52.219-8 Utilization of Small, Small Disadvantaged, and Women-Owned

Small Business Concerns.

* * * * *

Utilization of Small, Small Disadvantaged, and Women-Owned Small

Business Concerns (Jan. 1999)

* * * * *

(c) As used in this contract, the term ``small business

concern'' shall mean a small business as defined pursuant to section

3 of the Small Business Act and relevant regulations promulgated

pursuant thereto. The term ``small business concern owned and

controlled by socially and economically disadvantaged individuals''

means an offeror that represents, as part of its offer, that--

(1) It is a small business under the size standard applicable to

the acquisition;

(2) It has received certification as a small disadvantaged

business concern consistent with 13 CFR 124, Subpart B;

(3) No material change in disadvantaged ownership and control

has occurred since its certification;

(4) Where the concern is owned by one or more individuals, the

net worth of each individual upon whom the certification is based

does not exceed $750,000 after taking into account the applicable

exclusions set forth at 13 CFR 124.104(c)(2); and

(5) It is listed, on the date of its representation, on the

register of small disadvantaged business concerns maintained by the

Small Business Administration.

* * * * *

22. Section 52.219-9 is amended by revising the clause date and

paragraphs (d)(5), and (d)(10)(iii); and by adding paragraph (j) to

read as follows:

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

Subcontracting Plan.

* * * * *

Small, Small Disadvantaged and Women-Owned Small Business

Subcontracting Plan (Jan. 1999)

* * * * *

(d) * * *

(5) A description of the method used to identify potential

sources for solicitation purposes (e.g., existing company source

lists, the Procurement Marketing and Assistance Network (PRONET) of

the Small Business Administration (SBA), the list of certified small

disadvantaged business concerns of the SBA, the National Minority

Purchasing Council Vendor Information Service, the Research and

Information Division of the Minority Business Development Agency in

the Department of Commerce, or small, small disadvantaged, and

women-owned small business trade associations). A firm may rely on

the information contained in PRONET as an accurate representation of

a concern's size and ownership characteristics for the purposes of

maintaining a small and women-owned small business source list. A

firm shall rely on the information contained in SBA's list of small

disadvantaged business concerns as an accurate representation of a

concern's size and ownership characteristics for the purposes of

maintaining a small disadvantaged business source list. Use of

PRONET and/or the SBA list of small disadvantaged business concerns

as its source lists does not relieve a firm of its responsibilities

(e.g., outreach, assistance, counseling, publicizing subcontracting

opportunities) in this clause.

(10) * * *

(iii) Submit Standard Form (SF) 294, Subcontracting Report for

Individual Contracts, and/or SF 295, Summary Subcontract Report, in

accordance with the instructions on the forms or as provided in

agency regulations and in paragraph (j) of this clause; and

* * * * *

(j) The Contractor shall submit the following reports:

(1) Standard Form 294, Subcontracting Report for Individual

Contracts. This report shall be submitted to the Contracting Officer

semiannually and at contract completion. The report covers

subcontract award data related to this contract. This report is not

required for commercial plans.

[[Page 36125]]

(2) Standard Form 295, Summary Subcontract Report. This report

encompasses all the contracts with the awarding agency. It must be

submitted semi-annually for contracts with the Department of Defense

and annually for contracts with civilian agencies. If the reporting

activity is covered by a commercial plan, the reporting activity

must report annually all subcontract awards under that plan. All

reports submitted at the close of each fiscal year (both individual

and commercial plans) shall include a breakout, in the Contractor's

format, of subcontract awards, in whole dollars, to small

disadvantaged business concerns by Standard Industrial

Classification (SIC) Major Group. For a commercial plan, the

Contractor may obtain from each of its subcontractors a predominant

SIC Major Group and report all awards to that subcontractor under

its predominant SIC Major Group.

(End of clause)

* * * * *

52.219-10 [Amended]

23. Section 52.219-10 is amended by revising the clause date to

read ``(Jan. 1999)''; and in the first sentence of paragraph (b) of the

clause by inserting ``for small business concerns and women-owned small

business concerns'' after the word ``goals''.

24. Sections 52.219-24 through 52.219-26 are added to read as

follows:

52.219-24 Small Disadvantaged Business Participation Program--Targets.

As prescribed in 19.1204(a), insert a provision substantially

the same as the following:

Small Disadvantaged Business Participation Program--Targets (Jan. 1999)

(a) This solicitation contains a source selection factor or

subfactor related to the participation of small disadvantaged

business (SDB) concerns in the contract. Credit under that

evaluation factor or subfactor is not available to an SDB concern

that qualifies for a price evaluation adjustment under the clause at

FAR 52.219-23, Notice of Price Evaluation Adjustment for Small

Disadvantaged Business Concerns, unless the SDB concern specifically

waives the price evaluation adjustment.

(b) In order to receive credit under the source selection factor

or subfactor, the offeror must provide, with its offer, targets,

expressed as dollars and percentages of total contract value, for

SDB participation in any of the Standard Industrial Classification

(SIC) Major Groups as determined by the Department of Commerce. The

targets may provide for participation by a prime contractor, joint

venture partner, teaming arrangement member, or subcontractor;

however, the targets for subcontractors must be listed separately.

(End of provision)

52.219-25 Small Disadvantaged Business Participation Program--

Disadvantaged Status and Reporting.

As prescribed in 19.1204(b), insert the following clause:

Small Disadvantaged Business Participation Program--Disadvantaged

Status and Reporting (Jan. 1999)

(a) Disadvantaged status for joint venture partners, team

members, and subcontractors. This clause addresses disadvantaged

status for joint venture partners, teaming arrangement members, and

subcontractors and is applicable if this contract contains small

disadvantaged business (SDB) participation targets. The Contractor

shall obtain representations of small disadvantaged status from

joint venture partners, teaming arrangement members, and

subcontractors through use of a provision substantially the same as

paragraph (b)(1)(i) of the provision at FAR 52.219-22, Small

Disadvantaged Business Status. The Contractor shall confirm that a

joint venture partner, team member, or subcontractor representing

itself as a small disadvantaged business concern is included in the

SBA's on-line list of SDBs at http://www.sba.gov or by contacting

the SBA's Office of Small Disadvantaged Business Certification and

Eligibility.

(b) Reporting requirement. If this contract contains SDB

participation targets, the Contractor shall report on the

participation of SDB concerns at contract completion, or as

otherwise provided in this contract. Reporting may be on Optional

Form 312, Small Disadvantaged Business Participation Report, or in

the Contractor's own format providing the same information. This

report is required for each contract containing SDB participation

targets. If this contract contains an individual Small, Small

Disadvantaged and Women-Owned Small Business Subcontracting Plan,

reports may be submitted with the final Subcontracting Report for

Individual Contracts (Standard Form 294) at the completion of the

contract.

(End of clause)

52.219-26 Small Disadvantaged Business Participation Program--

Incentive Subcontracting.

As prescribed in 19.1204(c), insert a clause substantially the same

as the following:

Small Disadvantaged Business Participation Program--Incentive

Subcontracting (Jan. 1999)

(a) Of the total dollars it plans to spend under subcontracts,

the Contractor has committed itself in its offer to try to award a

certain amount to small disadvantaged business concerns in the

Standard Industrial Classification (SIC) Major Groups as determined

by the Department of Commerce.

(b) If the Contractor exceeds its total monetary target for

subcontracting to small disadvantaged business concerns in the

authorized SIC Major Groups, it will receive ________ [Contracting

Officer to insert the appropriate number between 0 and 10] percent

of the dollars in excess of the monetary target, unless the

Contracting Officer determines that the excess was not due to the

Contractor's efforts (e.g., a subcontractor cost overrun caused the

actual subcontract amount to exceed that estimated in the offer, or

the excess was caused by the award of subcontracts that had been

planned but had not been disclosed in the offer during contract

negotiations). Determinations made under this paragraph are not

subject to the Disputes clause of this contract.

(c) If this is a cost-plus-fixed-fee contract, the sum of the

fixed fee and the incentive fee earned under this contract may not

exceed the limitations in subsection 15.404-4 of the Federal

Acquisition Regulation.

(End of clause)

PART 53--FORMS

25. Section 53.219 is amended by adding paragraph (c) to read as

follows:

53.219 Small business programs.

* * * * *

(c) OF 312 (1/99), Small Disadvantaged Business Participation

Report. (See Subpart 19.12.)

26. Section 53.302-312 is added to read as follows:

53.302-312 OF 312, Small Disadvantaged Business Participation Report.

BILLING CODE 6820-EP-U

[[Page 36126]]

[GRAPHIC] [TIFF OMITTED] TR01JY98.039

[[Page 36127]]

[GRAPHIC] [TIFF OMITTED] TR01JY98.040

[FR Doc. 98-17298 Filed 6-30-98; 8:45 am]

BILLING CODE 6820-EP-C