The Dept. of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) are proposing to amend the Federal Acquisition Regulations (FAR) to implement regulatory changes applicable to small businesses that were proposed by the Small Business Administration (SBA) The proposed rule would set federal government-wide policy for partial set-asides and reserves, as well as set aside orders for small business under multiple-award contracts.
The draft FAR rule was published on December 6, 2016. This rule is designed to implement an SBA policy rule on the same subject that was published final at 78 FR 61114, on October 2, 2013. The rule implements the statutory requirements of the Small Business Jobs Act of 2010 (15 U.S.C. 644(r)). DoD, GSA, and NASA published an interim rule in the Federal Register, at 76 FR 68032, on November 2, 2011, under FAR Case 2011–024, so that Federal agencies could begin taking advantage of the authorities set forth in section 1331 while SBA developed rules.
The Act, signed on September 27, 2010, was supposed to enhance small business participation in Federal procurement. Section 1331 of the Jobs Act, the focus of this rule, provided authority for three acquisition techniques to facilitate contracting with small businesses on multiple-award contracts:
Setting aside part or parts of the requirement for small businesses.
Reserving one or more contract awards for small business concerns under full and open multiple-award procurements.
Setting aside orders placed against multiple-award contracts, notwithstanding the fair opportunity requirements of 10 U.S.C. 2304c(b) and 41 U.S.C. 4106(c).
Multiple Award Contracts
Multiple-award contracts are commonly used in Federal procurement. They are used to contract for large quantities of supplies and services when quantity and delivery requirements cannot be definitively determined when the contract is awarded. Prior to 2011, the FAR was largely silent on the use of acquisition strategies to promote small business participation in conjunction with multiple-award contracts.
This proposed rule also clarifies agencies’ and small business contractors’ responsibilities with respect to performance of work requirements, i.e., the limitations on subcontracting and the nonmanufacturer rule because compliance with the limitations on subcontracting and the nonmanufacturer rule is essential to assure that the small business contractor performs the appropriate percentage of requirements in contracts or orders that have been set aside.
Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown in the proposed rule by February 6, 2017. More information, instructions for submitting comments and addresses can be found in the proposed rule at https://www.gpo.gov/fdsys/pkg/FR-2016-12-06/pdf/2016-28432.pdf.