[Federal Register Volume 59, Number 81 (Thursday, April 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9960]
[Federal Register: April 28, 1994]
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DEPARTMENT OF DEFENSE
Defense Logistics Agency
48 CFR Parts 5419 and 5452
DLA Acquisition Regulation; Small Business and Small
Disadvantaged Business Concerns
AGENCY: Defense Logistics Agency, DOD.
ACTION: Proposed rule and request for comments.
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SUMMARY: The Defense Logistics Agency (DLA) proposes to establish a new
48 CFR Chapter 54 to contain Defense Logistics Agency acquisition
regulations. New parts 5419 and 5452 provide regulatory coverage which
incorporates two nonstandard clauses in domestic bulk petroleum
solicitations and contracts concerning small business set asides and
evaluation preference for Small Disadvantaged Business Concerns into
DLAR on a permanent basis. Comments are hereby requested on the
proposed coverage which supplements the contract quality requirements
of the Defense Federal Acquisition Regulation Supplement (DFARS) by
adding prescriptive language and contract clauses to satisfy the
specific needs of DLA. The proposed coverage is being published in the
Federal Register because it is expected to have an effect beyond the
internal operating procedures of DLA and, in some cases, a significant
cost or administrative impact on contractors, when required.
DATES: Comments on the proposed DLAR rules must be submitted in writing
to the address shown below on or before June 27, 1994, to be considered
in the formulation of the final rules.
ADDRESSES: Interested parties should submit written comments to Defense
Logistics Agency, Directorate of Procurement, Contract Policy Team
(AQPLL), Ms. Melody Reardon, Cameron Station, Alexandria, Virginia
22306-6100 FAX: (703) 274-0310.
FOR FURTHER INFORMATION CONTACT: Ms. Melody Reardon, Defense Logistics
Agency, AQPLL (703) 274-6431.
SUPPLEMENTARY INFORMATION:
A. Background
Section 1207 of Public Law 99-661, as amended, sets a goal for the
Department of Defense to award five percent of contract and performance
dollars to small disadvantaged business (SDB) concerns, historically
black colleges and universities, and minority institutions. Defense
Fuel Supply Center has historically utilized deviations to DFARS
252.219-7001 and 252.219-7006 which are reviewed and approved on an
annual basis by the Director of Defense Procurement. Defense Fuel
Supply Center proposes incorporating two nonstandard clauses in DLAR in
order to eliminate the need for the class deviation. An additional
objective of the two clauses is to include the term small disadvantaged
joint ventures in the definition of small disadvantaged business
concerns. Small disadvantaged joint ventures will now be eligible to
receive the evaluation preference for those items solicited under these
clauses if the small disadvantaged business or small disadvantaged
joint venture manufactures or supplies the products of small
disadvantaged businesses.
B. Regulatory Flexibility Act
The proposed clauses are not expected to have significant economic
impacts on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. since the clauses
have been utilized for many years by Defense Fuel Supply Center as
deviations to DFARS. Comments are invited from small businesses and
other interested parties. Comments from small entities concerning the
affected DFARS sections will also be considered in accordance with
section 610 of the Act. Such comments must be submitted separately and
cite this case in correspondence.
C. Paperwork Reduction Act
The proposed rules do not impose any reporting or record keeping
requirements which require the approval of OMB under 44 U.S.C. 3501, et
seq.
List of Subjects in 48 CFR 5419 and 5452
Government procurement.
Therefore, it is proposed that 48 CFR chapter 54 consisting of
parts 5419 and 5452, be added to read as follows:
CHAPTER 54--DEFENSE LPGISTICS AGENCY, DEPARTMENT OF DEFENSE
PART 5419--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
PART 5452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 5419--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
Authority: 5 U.S.C. 301, 10 U.S.C. 2202, 48 CFR Part 1, subpart
1.3 and 48 CFR Part 201, subpart 201.3.
5419.001 Definitions.
The definition of ``small disadvantaged business concern'' to be
used for DFSC competitive bulk solicitions and contracts is in the
provision at 5452.219-9F06 and is different from the definition in
DFARS 252.219-7001. For purposes of contract opportunities, Small
Disadvantaged Business Joint Ventures, as defined in 252.219-7001 have
the same status as small disadvantaged business concerns.
PART 5452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 5452.2--Texts of Provisions and Clauses
Sec.
5452.219-F05 Notice of Evaluation Preference for Small
Disadvantaged Business Concerns
5452.219-F06 Notice of Partial Small Business Set-Aside with
Preferential Consideration for Small Disadvantaged Business Concerns
Authority: 5 U.S.C. 301, 10 U.S.C. 2202, 48 CFR part 1, subpart
1.3 and 48 CFR part 201, subpart 201.3
5452.219-9F05. Notice of Evaluation Preference for Small Disadvantaged
Business Concerns.
As prescribed by DFARS 219.7003, the Defense Fuel Supply Center
will use the following clause in competitive domestic bulk
solicitations and contracts when (a) solicitation contains one or more
DOD set-aside items, and (b) when Small Disadvantaged Business (SDB) or
Small Disadvantaged Business Joint Ventures are expected to offer:
5452.219-9F05 Notice of Evaluation Preference for Small Disadvantaged
Business Concerns (Dec 1991 (DFSC) (Deviation).
(a) Definitions. (1) The term ``small disadvantaged business
(SDB) concern,'' has the meaning set forth in the Representation
clause of this contract and includes the term small disadvantaged
business joint venture. SDB concerns must supply petroleum product
from an SDB manufacturer who complies with the petroleum products
size standards at 13 CFR part 121, to be eligible for the evaluation
preference.
(b) Evaluation preference. (1) After all evaluation factors
described in this solicition are applied, offers will be evaluated
by adding a factor of 10 percent to the price of all offers except--
(i) Offers from SDB concerns which have not waived the
preferenced;
(ii) Otherwise successful offers of eligible products under the
Trade Agreements Act when the dollar threshold for application of
the Act is exceeded.
(2) The 10 percent factor will be applied on a line item by line
item basis or to any group of items on which award may be made.
Other evaluation factors described in the solicitation will be
applied before application of the 10 percent factor. However, in no
event may award be made to an SDB concern at a price which exceeds
fair market price (as determined under FAR 19.806-2) by more than
ten percent (10%).
(c) Waiver of Evaluation Preference.
An SDB may elect to waive the preference, in which case the 10
percent factor will be added to its offer for evaluation purposes.
[ ] Offeror elects to waive the preference in paragraph (6)
above.
[End of Clause]
5452.219-9F06 Notice of Partial Small Business Set-Aside with
Preferential Consideration for Small Disadvantaged Business Concerns.
As prescribed in DFARS 219.7002(d), the Defense Fuel Supply Center
will use the following clause in lieu of DFARS clause 52.219-7001 in
competitive domestic bulk solicitations and contracts when the
solicitation contains one or more DOD set-aside items:
5452.219-9F06 Notice of Partial Small Business Set-Aside with
Preferential Consideration for Small Disadvantaged Business Concerns.
(DEC 1991)(DFSC) (Deviation).
(a) Definitions. (1) Small Business concern means a concern
including its affiliates, that is independently owned and operated,
not dominant in the field of operation in which it is bidding on
Government contracts, and qualified as a small business under the
size standards in this solicitation.
(2) Small disadvantaged business concern means a small business
concern or small disadvantaged joint venture, owned and controlled
by individuals who are both socially and economically disadvantaged,
as defined by the Small Business Administration at 13 CFR part 124,
the majority of earnings which directly accrue to such individuals.
This term also means a small business concern owned and controlled
by an economically disadvantaged Indian tribe or native Hawaiian
organization which meets the requirements of 24 CFR 124.112 or 13
CFR 124.113, respectively. In order to be eligible for preferential
consideration set forth in paragraph (c) below, SDB concerns must
supply product from an SDB manufacturer.
(b) General.
(1) A portion of certain items of this procurement, as listed in
the Schedule, has (have) been set aside for award to eligible small
businesses, with preferential consideration for SDB concerns. The
quantities indicated for such items in the Schedule include the set-
aside portion. All offerors are urged to offer the maximum
quantities they desire and are capable of delivering. Small
businesses and SDB concerns interested in receiving a set-aside
contract should submit an offer in the same manner as though there
were no set-aside. Volumes offered by qualified small businesses or
SDB concerns will be evaluated for the non set-aside and set-aside
portions of the procurement. Separate offers should not be submitted
on the non set-aside and set-aside portions.
(2) The partial small business set-aside of the procurement is
based on a determination by the Contracting Officer that it is in
the interest of maintaining or mobilizing the nation's full
production capacity or in the interest of national defense programs,
or in the interest of assuring that a fair portion of Government
procurement is placed with small business concerns.
(3) All of the offers received under this solicitation will be
first negotiated as to price and an evaluation will be made as
though there were no set-aside.
(4) For the purposes of set-aside evaluation, when an offer
contains increments at different prices, each increment will be
considered a separate offer. Except as provided in paragraph (e)
below, negotiations will be limited to the offered quantities not
awarded under the provisions of subparagraph (d)(2).
(c) Set-aside award procedure (preferential consideration for
SDB concerns).
(1) Offers from SDBs and small business concerns will be
evaluated with preferential consideration, as described below, given
to eligible SDB concerns.
(2) Offers from SDB concerns will be reviewed first to determine
if an award can be made to an SDB concern at its offered price,
beginning with the SDB concern offering the lowest evaluated price
for that item. Awards to SDB concerns on the set-aside portion of
this procurement will be made at the price offered by the SDB
concern if that evaluated price does not exceed the highest award
price on the non set-aside portion by more than 10 percent, as
adjusted for transportation charges and other factors. If the SDB
price exceeds the highest non set-aside price by more than 10
percent, the SDB will be treated as a small business and the
procedures set forth in paragraph (d) below will apply.
(3) Any volumes remaining on the set-aside portion that are not
awarded to the lowest priced eligible SDB concern under subparagraph
(c)(2) will be awarded to any other SDBs eligible for award under
the procedures set forth above, beginning with the SDB concern
offering the next lowest price.
(d) Set-aside award procedure (small business concerns).
(1) After evaluation and award to eligible SDB concerns, if any,
negotiations will be conducted with small business concerns for any
set-aside volumes not awarded to eligible SDB concerns under
paragraph (c).
(2) The price for the small business set-aside portion will be
negotiated by the Contracting Officer based upon prices the
Government would otherwise pay under this solicitation had there
been no set-aside for supply of the location at which the set-aside
is placed, adjusted for transportation charges, and other factors.
For the set-aside portion of an item not already awarded to SDB
concerns, awards will be made to the small business concern whose
offer is determined by this evaluation to be low without further
negotiations. Contracts for the remaining set-aside portions will be
negotiated with those eligible small business concerns who have
submitted a responsive offer on the various items for which a set-
aside has been established.
(3) Negotiations for small business set-aside awards will begin
with the small business concern with the lowest evaluated price and
a quantity of offered product remaining. If the low small business
concern on the item does not offer to supply product at the set-
aside price, the next low small business concern on the item will be
given the same opportunity and continuing with the next low small
business concern until all small business concerns have been
contacted.
(e) After the set-aside negotiations have been concluded, a
final evaluation will be accomplished. All eligible offerors,
without regard to the size of the company, will be afforded an
opportunity to compete for non set-aside quantities. The Government
reserves the right to make awards to the otherwise low offeror for
all or any portion of the set-aside quantities, without regard to
the size of the company, if eligible SDB or small business concerns
do not offer a quantity of product sufficient to meet a set-aside
requirement or do not offer to supply at the set-aside prices. The
total quantity which will be awarded a small business or an SDB
offeror on both the unreserved and reserved portions will not exceed
the total quantity offered under this solicitation by such small
business or SDB offerors. However, if insufficient product is
offered by small business and SDB concerns to meet the quantity set-
aside for small business, SDB and small business concerns with whom
the Government has already commenced negotiations may be given an
opportunity to offer additional product.
(f) Where the Trade Agreement Act applies to the non set-aside
portion, offers of eligible products will be treated as if they were
qualifying country end products.
(g) Token offers. The Government reserves the right to not
consider token offers or offers designed to secure an unfair
advantage over other offerors eligible for the set-aside portion.
[End of Clause]
Marilyn S. Barnett,
Executive Director, (Procurement).
[FR Doc. 94-9960 Filed 4-26-94; 8:45 am]
BILLING CODE 3620-01-M
