[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37692-37694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14616]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 19

[FAC 2005-67; FAR Case 2013-010; Item VII; Docket 2013-0010, Sequence 
1]
RIN 9000-AM59


Federal Acquisition Regulation; Contracting With Women-Owned 
Small Business Concerns

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule.

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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to remove the dollar limitation 
for set-asides to economically disadvantaged women-owned small business 
concerns and to women-owned small business concerns eligible under the 
Women-owned Small Business Program.

DATES: Effective Date: June 21, 2013.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before August 20, 2013 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-67, FAR Case 2013-
010, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2013-010''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2013-010.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2013-010'' on your attached document.
     Fax: 202-501-4067.
     Mail: U.S. General Services Administration, Regulatory 
Secretariat Division (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd 
Floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-67, FAR 
Case 2013-010, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: Mr. Karlos Morgan, Procurement 
Analyst, at 202-501-2364, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-67, FAR Case 2013-
010.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are issuing an interim rule amending the FAR, to 
implement section 1697 of the National Defense Authorization Act (NDAA) 
for Fiscal Year (FY) 2013, Public Law 112-239, which amended section 
8(m) of the Small Business Act, (15 U.S.C. 637(m)). Section 8(m) of the 
Small Business Act sets forth the Procurement Program for

[[Page 37693]]

Women-owned Small Business Concerns, which is the statutory authority 
for SBA's Women-owned Small Business Federal Contract Program. Section 
1697 of the NDAA for FY 2013 amended section 8(m) by removing the 
dollar limitation for set-asides. The dollar limit (as increased for 
inflation--see FAR 1.109) for acquisitions in the manufacturing 
industries, was $6.5 million or less (including options), and in the 
case of all other acquisitions, $4 million or less (including options).
    Pursuant to this statutory change and in conformance with the Small 
Business Administration's (SBA's) revised regulations at 13 CFR 
127.503(a)(2) and 127.503(b)(2), (see SBA's interim final rule 
published in the Federal Register at 78 FR 26504, on May 7, 2013), this 
rule amends FAR 19.1505(b) and (c) by removing the dollar limitations 
on the anticipated award price of contracts to economically 
disadvantaged women-owned small business (EDWOSB) concerns or women-
owned small business (WOSB) concerns eligible under the WOSB Program. 
As a result, contracting officers may set aside acquisitions for 
competition restricted to EDWOSB concerns or WOSB concerns eligible 
under the WOSB Program at any dollar level above the micro-purchase 
threshold, provided the other requirements for a set-aside under the 
WOSB Program are met.

II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

III. Regulatory Flexibility Act

    The change 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. The Initial Regulatory 
Flexibility Analysis (IRFA) is summarized as follows:

    The objective of this interim rule is to remove language in the 
FAR that restricts set-asides to economically disadvantaged women-
owned small business (EDWOSB) concerns and to women-owned small 
business concerns eligible under the women-owned small business 
(WOSB) Program, in industries that are underrepresented or 
substantially underrepresented by women-owned small business 
concerns. The dollar limits (as increased for inflation--see FAR 
1.109) are currently $6.5 million (including options) for 
acquisitions in manufacturing industries and $4 million (including 
options) for all other acquisitions. The legal basis for this 
interim rule is section 1697 of the National Defense Authorization 
Act for Fiscal Year 2013, Public Law 112-239, which amended the 
statutory limitations at section 8(m) of the Small Business Act, (15 
U.S.C. 637(m)), by permanently removing these limitations.
    Analysis of the Federal Procurement Data System from April 1, 
2011 (the implementation date of the WOSB Program) through January 
1, 2013, reveals there are approximately 26,712 WOSB concerns, 
including 131 EDWOSB concerns and 388 women-owned small business 
concerns eligible under the WOSB Program, that received obligated 
funds from Federal contract awards, task or delivery orders, and 
modifications to existing contracts. This interim rule may have a 
significant positive economic impact on EDWOSB concerns competing 
for contracting opportunities in industries determined by SBA to be 
underrepresented by women-owned small business concerns and may 
positively affect WOSB concerns eligible under the WOSB Program 
competing in industries determined by SBA to be substantially 
underrepresented by women-owned small business concerns, since 
removing the dollar threshold for set-asides under the WOSB Program 
will provide greater access to Federal contracting opportunities. 
However, this rule may have a negative effect on firms that are 
women-owned but are not WOSB Program participants and small 
businesses that are not owned by women (i.e., small business 
concerns that are not 51 percent owned and controlled by women), 
because those firms may now be excluded from competition on some 
acquisitions that could not be set aside for EDWOSB concerns or WOSB 
concerns eligible under the WOSB Program due to the dollar 
thresholds and now will be set aside.
    This interim rule does not impose new recordkeeping or reporting 
requirements. The rule does not duplicate, overlap, or conflict with 
any other Federal rules. There are no alternatives to the rule which 
would accomplish the stated objectives of the statute.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by this rule 
in accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAC 2005-67, FAR Case 
2013-010), in correspondence.

IV. Paperwork Reduction Act

    The interim rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

V. 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 in order to avoid conflicting guidance between the two 
primary regulations used by the Federal acquisition community to 
implement the WOSB Program, the Small Business Regulations and the FAR.
    Section 1697 of the NDAA for Fiscal Year 2013 (Publ. Law 112-239) 
was enacted by Congress and became effective on January 2, 2013. In 
response to this statutory change, the Small Business Administration 
issued an interim final rule published in the Federal Register at 78 FR 
26504, on May 7, 2013, amending 13 CFR 127.503(a)(2) and 127.503(b)(2) 
to remove the anticipated contract dollar thresholds for determining 
when the contracting officer may set aside a requirement for 
economically disadvantaged women-owned small business (EDWOSB) concerns 
and/or WOSB concerns eligible under the WOSB Program. As a result, the 
FAR must also be amended at 19.1505(b)(2) and 19.1505(c)(2) to remove 
the anticipated award thresholds for EDWOSB concerns and WOSB concerns 
eligible under the WOSB Program, in order to minimize the risk of 
disseminating conflicting guidance to the Federal acquisition 
community.
    In addition, by issuing an interim rule that is effective upon 
publication, prior to the receipt of public comment, agencies can 
immediately begin taking advantage of having no dollar limitations for 
set-asides to EDWOSB or WOSB concerns eligible under the

[[Page 37694]]

WOSB Program, as envisioned by section 1697.
    However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, 
and NASA will consider public comments received in response to this 
interim rule in the formation of the final rule.

List of Subject in 48 CFR Part 19

    Government procurement.

    Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 19 as set forth 
below:

PART 19--SMALL BUSINESS PROGRAMS

0
1. The authority citation for 48 CFR part 19 continues to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.


19.1505  [Amended]

0
2. Amend section 19.1505 by--
0
a. Adding to the end of paragraph (b)(1) ``and'';
0
b. Removing paragraph (b)(2);
0
c. Redesignating paragraph (b)(3) as (b)(2);
0
d. Adding to the end of paragraph (c)(1) ``and'';
0
e. Removing paragraph (c)(2);
0
f. Redesignating paragraph (c)(3) as (c)(2); and
0
g. Removing from paragraph (g)(3) ``appeal, that there are urgent'' and 
adding ``appeal, unless the head of the agency makes a written 
determination that urgent'' in its place.

[FR Doc. 2013-14616 Filed 6-20-13; 8:45 am]
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