E8-21387. Federal Acquisition Regulation; FAR Case 2006-014, Local Community Recovery Act of 2006

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 adopted as final, with a minor change to the second interim rule, two interim rules amending the Federal Acquisition Regulation (FAR) to implement amendments to the Robert T. Stafford Disaster Relief and Emergency Assistance Act. The first interim rule was published in the Federal Register at 71 FR 44546, August 4, 2006. The second interim rule was published in the Federal Register at 72 FR 63084, November 7, 2007.

DATES:

Effective Date: October 17, 2008.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. William Clark, Procurement Analyst, at [phone]. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone]. Please cite FAC 2005-27, FAR case 2006-014.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule amends the Federal Acquisition Regulation implementing amendments to the Robert T. Stafford Disaster Relief and Emergency Assistance Act at 42 U.S.C. 5150.

The Local Community Recovery Act of 2006 amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act to authorize set-asides for major disaster or emergency assistance acquisitions to businesses that reside or primarily do business in the geographic area affected by the disaster or emergency. DoD, GSA, and NASA published an interim rule in the Federal Register at 71 FR 44546, August 4, 2006, to implement this statutory amendment.

Subsequently, Section 694 of the Department of Homeland Security Appropriations Act of 2007, Pub. L. 109-295, amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act to enact requirements for transitioning work under existing contracts. A second interim rule was published in the Federal Register at 72 FR 63084, November 7, 2007, to address this statutory amendment. The second interim rule addressed the public comments received on the first interim rule. There were no comments received on the second interim rule.

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 Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not 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 rule implements set-asides for local businesses in an area affected by a major disaster or emergency to promote economic recovery.

The set-aside does not replace the small business set-aside. Both set-asides can apply to an acquisition. The local set-aside encourages the use of local small businesses.

The rule also implements a new requirement that work performed under contracts already in effect be transitioned to local area organizations, firms or individuals, unless the agency head determines it is not feasible or practicable. The Councils expect that more work will be transitioned to small businesses than away from them. The Government Accountability Office (GAO) report on Hurricane Katrina Small Business Contracts (GAO-07-205) found that businesses in the three states primarily affected by the hurricane received $1.9 billion, which was 18 percent of the $11.6 billion spent by DHS, GSA, DoD and the Army Corps of Engineers between August 1, 2005 and June 30, 2006. Small businesses received 66 percent of the $1.9 billion awarded to those local businesses. The Councils believe this shows that small businesses would not be hurt by a local area set-aside.

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 5, 6, 12, 18, 26, and 52

• Government procurement

Dated: September 9, 2008.

Al Matera,

Director, Office of Acquisition Policy.

Accordingly, under the authority of 40 U.S.C. 121, the interim rule published at 71 FR 44546, August 4, 2006, is adopted as a final rule, and the interim rule published at 72 FR 63084, November 7, 2007, is adopted as a final rule with the following change:

PART 26—OTHER SOCIOECONOMIC PROGRAMS

1. The authority citation for 48 CFR part 26 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

2. Revise section 26.202-2 to read as follows.

26.202-2

Evaluation preference.

The contracting officer may use an evaluation preference, when authorized in agency regulations or procedures.