Federal Acquisition Regulation (FAR): Affirmative action reform in Federal procurement,

[Federal Register: September 30, 1999 (Volume 64, Number 189)]

[Rules and Regulations]

[Page 52670-52671]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30se99-17]

DEPARTMENT OF DEFENSE

48 CFR Parts 205, 206, 217, 219, 225, 226, 236, 252, and 253

[DFARS Case 98-D007]

Defense Federal Acquisition Regulation Supplement; Reform of Affirmative Action in Federal Procurement

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) policy concerning programs for small disadvantaged business (SDB) concerns. The amendments conform to a Department of Justice (DoJ) proposal to reform affirmative action in Federal procurement, and are consistent with the changes made to the Federal Acquisition Regulation (FAR) in Federal Acquisition Circulars (FACs) 97-06 and 97-13. DoJ's proposal is designed to ensure compliance with the constitutional standards established by the Supreme Court in Adarand

[[Page 52671]]

Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

EFFECTIVE DATE: October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, Defense Acquisition Regulations Council, PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; telefax (703) 602-0350. Please cite DFARS Case 98-D007.

SUPPLEMENTARY INFORMATION:

1. Background

   This rule finalizes, with changes, the interim rule published at 63 FR 41972 on August 6, 1998. The interim rule was issued to conform the DFARS to the interim FAR rule published in FAC 97-06, at 63 FR 35719 on June 30, 1998, pertaining to reform of affirmative action in Federal procurement. A final FAR rule on this subject was published in FAC 97- 13, at 64 FR 36222 on July 2, 1999, and will become effective on October 1, 1999.

   Two sources submitted comments on the interim DFARS rule published on August 6, 1998. All comments were considered in the development of the final rule. The final rule differs from the interim rule in that it (1) amends DFARS 226.7008(b) to remove language requiring use of the provision at FAR 52.226-2 when the clause at FAR 52.219-23 is used, since FAC 97-13 added this requirement to the FAR; and (2) removes the provision at 252.226-7001, since this provision duplicates the provision at FAR 52.226-2.

   This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

2. Regulatory Flexibility Act

   DoD certifies 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., because most of the changes merely conform the DFARS to the FAR rules in FACs 97-06 and 97-13. Two source selection considerations for SDB concerns currently in the DFARS, but not in the FAR, are amended by this rule to conform to the DoJ model: Leader company contracting (DFARS 217.401); and architect-engineer (A-E) services (DFARS 236.602). These two changes are not expected to have a significant economic impact on a substantial number of small entities, since (1) leader company contracting is infrequently used by DoD; and (2) the primary factor in A-E selection is the determination of the most highly qualified firm; the SDB consideration is one of several secondary source selection factors.

3. Paperwork Reduction Act

   The Paperwork Reduction Act does not apply because the rule does not impose any 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 205, 206, 217, 219, 225, 226, 236, 252, and 253

   Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

   Interim Rule Adopted as Final With Changes

   Accordingly, the interim rule amending 48 CFR parts 205, 206, 217, 219, 225, 226, 236, 252, and 253, which was published at 63 FR 41972 on August 6, 1998, and amended at 63 FR 64427 on November 20, 1998, is adopted as a final rule with the following changes:

   1. The authority citation for 48 CFR parts 205, 206, 217, 219, 225, 226, 236, 252, and 253 continues to read as follows:

      Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

      PART 226--OTHER SOCIOECONOMIC PROGRAMS

   2. Section 226.7008 is amended by revising paragraph (b) to read as follows:

      226.7008 Solicitation provision and contract clause.

      * * * * * * *

      (b) Use the provision at FAR 52.226-2, Historically Black College or University and Minority Institution Representation, in solicitations set aside for HBCU/MIs.

      PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

      252.226-7001 [Removed]

   3. Section 252.226-7001 is removed.

      [FR Doc. 99-25162Filed9-29-99; 8:45 am]

      BILLING CODE 5000-04-M