06-3683. Federal Acquisition Regulation; FAR Case 2005-002; Expiration of the Price Evaluation Adjustment

AGENCIES:

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

ACTION:

Final rule.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed to adopt as final, without change, the interim rule published in the Federal Register at 70 FR 57462, September 30, 2005, to cancel for civilian agencies (except NASA and Coast Guard) the Small Disadvantaged Business (SDB) price evaluation adjustment which was originally authorized under the Federal Acquisition Streamlining Act of 1994. Civilian agencies (except NASA and Coast Guard) are not authorized to apply the price evaluation adjustment to their acquisitions.

DATES:

Effective Date: April 19, 2006.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Ms. Rhonda Cundiff, Procurement Analyst, at [phone]. Please cite FAC 2005-09, FAR case 2005-002. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone].

SUPPLEMENTARY INFORMATION:

A. Background

DoD, GSA, and NASA published an interim rule at 70 FR 57462 on September 30, 2005, to cancel for civilian agencies (except NASA and Coast Guard) the Small Disadvantaged Business (SDB) price evaluation adjustment which was originally authorized under the Federal Acquisition Streamlining Act of 1994. The Councils received no comments on the interim rule. Therefore, the Councils have adopted the interim rule as a final rule without change.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to this final rule. The Councils prepared a Final Regulatory Flexibility Analysis (FRFA), and it is summarized as follows:

Final Regulatory Flexibility Analysis

The small disadvantaged business price evaluation adjustment for civilian agencies other than National Aeronautics and Space Administration (NASA) and Coast Guard, originally authorized under the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355, Sec. 7102) expired. This provision, as implemented in Federal Acquisition Regulation, authorized agencies to apply the price evaluation adjustment to benefit certain small disadvantaged business concerns in competitive acquisitions. As a result of its expiration for civilian agencies with the exception of NASA and Coast Guard, these agencies have no statutory authority to apply the small disadvantaged business price evaluation adjustment to their acquisitions.

This change will 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 civilian agencies (excluding NASA and Coast Guard) will no longer have the authority to apply the price evaluation adjustment to benefit certain small disadvantaged business concerns in competitive acquisitions. However, not all of these small disadvantaged businesses will be affected because the price evaluation adjustment is authorized only for specific NAICs codes. The price evaluation adjustment is still authorized for the Department of Defense, U.S. Coast Guard, and National Aeronautics and Space Administration. The rule will positively impact certain large and small entities in specific NAICS codes competing with certain small disadvantaged business concerns in competitive acquisitions wherein the price evaluation adjustment could have applied if the authority had not expired. There will be a negative impact on a number of small disadvantaged businesses in competitive acquisitions for certain NAICS codes wherein the price evaluation adjustment authority could have applied.

Interested parties may obtain a copy of the FRFA from the FAR Secretariat. The FAR Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 19 and 52

• Government procurement

Dated: April 12, 2006.

Gerald Zaffos,

Director,Contract Policy Division.

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR parts 19 and 52, which was published at 70 FR 57462, September 30, 2005, is adopted as a final rule without change.