Federal Acquisition Regulation (FAR): Alaska Native Corporations and Indian tribes; small business credit,
[Federal Register: August 17, 2007 (Volume 72, Number 159)]
[Rules and Regulations]
[Page 46345-46357]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17au07-25]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19, 52, and 53
[FAC 2005-19; FAR Case 2004-017; Item VII; Docket 2007-001; Sequence 6]
RIN 9000-AK18
Federal Acquisition Regulation; FAR Case 2004-017, Small Business Credit for Alaska Native Corporations and Indian Tribes
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 on a final rule amending the Federal Acquisition Regulation (FAR) to implement section 702 of the Emergency Supplemental Act, 2002, as amended by section 3003 of the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States. The law permits subcontracts awarded to Alaska Native Corporations (ANCs) and Indian tribes to be counted towards a contractor's goals for subcontracting with small business (SB) and small disadvantaged business (SDB) concerns.
DATES: Effective Date: September 17, 2007.
FOR FURTHER INFORMATION CONTACT: Contact Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-0044, for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAC 2005-19, FAR case 2004-017.
SUPPLEMENTARY INFORMATION:
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Background
Section 702 of the Emergency Supplemental Act, 2002 (Public Law 107-117), as amended by section 3003 of the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States (Public Law 107-206)(43 U.S.C. 1626), provides that subcontracts awarded to ANCs that are considered a minority and economically disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1), and any of their direct and indirect subsidiary corporations, joint ventures, and partnerships that meet the requirements of 43 U.S.C. 1626(e)(2), shall be counted towards the satisfaction of a contractor's goal for subcontracting with SB and SDB concerns. The law also provides that subcontracts awarded to Indian tribes that are recognized by the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c), and Indian-owned economic enterprises that meet the requirements of 25 U.S.C. 1452(e), may be counted towards the satisfaction of a contractor's goal for subcontracting with SB and SDB concerns. Such credit is taken even where the ANC or Indian tribe may be ``other than small'' under the Small Business Administration (SBA) regulations.
In addition, section 3003 provides that where lower-tier subcontracts exist, the ANC or Indian tribe shall designate the appropriate contractor or contractors to receive credit towards their SB and SDB subcontracting goals. Accordingly, the rule requires that, where one or more subcontractors are in the subcontract tier between the prime contractor and the ANC or Indian tribe, the ANC or Indian tribe shall designate the appropriate contractor(s) to count the subcontract towards its SB and SDB subcontracting goals. In most cases, the appropriate contractor is the contractor that awarded the subcontract to the ANC or Indian tribe. To help avoid possible double counting, the rule requires the ANC or Indian tribe to provide a copy of its written designation to the contracting officer, the prime contractor, and any subcontractors between the prime contractor and ANC or Indian tribe within 30 days of date of award to the ANC or Indian tribe. If the contracting officer does not receive a copy of the ANC or Indian tribe's written designation within 30 days of the subcontract award, the contractor that awarded the subcontract to the ANC or Indian tribe will be considered the designated contractor.
The law does not require the ANC or Indian tribe to be eligible for SDB or 8(a) certification. Similarly, the law does not provide for contractors to count subcontracts awarded to such an entity toward the evaluation of the extent of the participation of SDB concerns in the performance of certain North American Industry Classification System (NAICS) Industry codes unless the entity is certified as an SDB by SBA (FAR Subpart 19.12).
The Councils initially interpreted section 702 of Public Law 107- 117, as amended by section 3003 of Public Law 107-206, to allow Indian tribes to be counted towards a contractor's goal for subcontracting with SB concerns but not SDB concerns. Upon further consideration, the Councils believe their initial interpretation was incorrect. Nothing in the plain language of the statute or the legislative history indicates that Congress intended to treat Indian tribes differently than ANCs. In addition, the Councils believe interpreting the statute to treat Indian tribes differently contradicts the intent of other laws (e.g., Small Business Act and Technical Corrections Act of 1994 (Public Law 103- 263)) and longstanding Government policy that attempts to eliminate distinctions between the various Indian tribes, including ANCs and Indian-owned economic enterprises. Therefore, the rule allows Indian tribes to also be counted as SDBs.
In addition, the Councils initially interpreted the statute to allow certain entities owned and controlled by ANCs to also be counted towards a contractor's goal for subcontracting with SB and SDB concerns but did not believe the statute authorized entities owned and controlled by Indian tribes to be counted towards a contractor's goal for subcontracting with SB and SDB concerns. Upon further consideration, the Councils believe their initial interpretation was also incorrect. Section 16 of the Indian Reorganization Act of 1934 (25 U.S.C. 476), as amended, prohibits departments or agencies from promulgating any regulation or making any decision or determination that classifies, enhances, or diminishes the privileges and immunities available to an Indian tribe relative to other federally recognized tribes. Excluding entities owned and controlled by Indian tribes from the treatment afforded by section 702 of Public Law 107-117, as amended by section 3003 of Public Law 107-206 (43 U.S.C. 1626) to other federally recognized tribes diminishes the privileges available to entities owned and controlled by Indian tribes and enhances the privileges available to entities owned and controlled by ANCs. Therefore, the rule provides the same
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treatment for entities owned and controlled by Indian tribes.
DoD, GSA, and NASA published a proposed rule in the Federal Register at 70 FR 32553, June 3, 2005. Twenty-eight respondents submitted comments on the proposed rule which are discussed below.
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Comment: Excluding Indian-owned economic enterprises contradicts the congressional intent underlying a plethora of laws and regulations generally applicable to tribes and Indian-owned economic enterprises. Distinguishing Indian-owned economic enterprises from Indian tribes is a departure from longstanding Government policy which consistently recognizes the practical necessity of tribes operating Indian-owned economic enterprises. Indian tribes only perform contracts through their legally distinct Indian-owned economic enterprises. Excluding these Indian-owned economic enterprises provides little productive assistance to Indian tribes.
Response: Section 16 of the Indian Reorganization Act of 1934 (25 U.S.C. 476), as amended, prohibits departments or agencies from promulgating any regulation or making any decision or determination that classifies, enhances, or diminishes the privileges and immunities available to an Indian tribe relative to other federally recognized tribes. Excluding Indian-owned economic enterprises from the treatment afforded by section 702 of Public Law 107-117, as amended by section 3003 of Public Law 107-206 (43 U.S.C. 1626) to other federally recognized tribes diminishes the privileges available to Indian-owned economic enterprises and enhances the privileges available to ANCs direct and indirect subsidiary corporations, joint ventures, and partnerships. The rule was revised to provide the same treatment for Indian-owned economic enterprises.
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Comment: Allow Indian tribes and Indian-owned economic enterprises to be counted as SB or SDB like ANCs. Congress and the SBA have consistently provided ANC, Indian tribes, and entities they own and operate with comparable standing. Nothing in the statute suggests Congress intended to provide less help to Indian tribes.
Response: Nothing in the plain language of the statute or the legislative history indicates that Congress intended to treat Indian tribes differently than ANCs. Interpreting the statute to provide a different treatment for Indian tribes contradicts the intent of provisions of other laws (e.g., Small Business Act, Technical Corrections Act of 1994) and longstanding Government policy that attempts to eliminate distinctions between the various Indian tribes, including ANCs and Indian-owned economic enterprises. The rule was revised to also allow Indian tribes to be counted as SDBs.
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Comment: The rule says the contractor awarding the subcontract is, in most cases, the appropriate contractor to count the subcontract towards its SB or SDB goals. However, the rule does not provide any guidelines or criteria for determining when it might be appropriate to designate the award to a contractor other than the contractor awarding the subcontract. Recommend the Councils establish guidelines and criteria to ensure consistent and equitable decision making on the part of ANCs and Indian tribes.
Response: Neither the statute nor the legislative history addresses when it might be appropriate to designate the credit to a contractor other than the contractor awarding the subcontract and the Councils are unaware of specific situations where it would be appropriate to do so. However, the language of the statute is clear and unambiguous on this point by stating ``where lower tier subcontractors exist, the entity shall designate the appropriate contractor or contractors to receive such credit.'' The Councils invited industry to comment on the feasibility of the proposed approach and any alternatives for complying with the law. No alternatives were identified. In accordance with the statute, the final rule requires the ANC or Indian Tribe to designate the contractor or contractors to receive credit for the award.
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Comment: Identify the mechanism the ANCs and Indian tribes will use to communicate the contractor or contractors that have been designated to receive the small business and/or small disadvantaged business credit. Address whether the designated contractor or contractors are required to retain the designation document in their procurement records.
Response: The rule was revised to require the ANC or Indian tribe to provide copies of the written designation(s) to the contracting officer, prime contractor, and any subcontractors between the prime contractor and ANC or Indian tribe within 30 days of date of award to the ANC or Indian tribe. If the contracting officer does not receive a copy of the ANC or Indian tribe's written designation within 30 days of the subcontract award, the contractor that awarded the subcontract to the ANC or Indian tribe will be considered the designated contractor.
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Comment: The instructions on the proposed Standard Forms (SF) 294 and 295 are ambiguous because the forms show inclusion of ANCs and Indian tribes in the HUBZone category but the language in the proposed rule makes no reference to this provision.
Response: SFs 294 and 295 have been revised and no longer include ANCs and Indian tribes in the HUBZone category.
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Comment: The rule allows large ANCs and Indian tribes to be included in both the SB and Large Business (LB) concerns categories on SFs 294 and 295. This will distort the contractor's total subcontracting base dollars since ``total'' is calculated as ``SB'' plus ``LB.'' Also, the performance percentages for the other subcategories of SB (e.g. service-disabled veteran-owned small business) will be negatively impacted because these figures are stated as a percentage of ``total''. Recommend that subcontract awards to large ANCs and Indian tribes be excluded from the LB category.
Response: The Councils revised SFs 294 and 295 to address this issue.
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Comment: Allow contractors to take credit for awards to entities that obtain their ANC or federally-recognized tribal status in the middle of a Government reporting cycle.
Response: The entity's status at the time of subcontract award is the status to be reported in subsequent periods consistent with the treatment for reporting any other subcontract award.
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Comment: In collaboration with the Bureau of Indian Affairs, develop a single source that identifies ANCs, Indian tribes, and Indian-owned economic enterprises to help industry locate the entities. In the interim, modify the Central Contractor Registration (CCR) database to capture these additional supplier designations.
Response: The Team believes industry can easily locate these entities using market research. In addition, the CCR database already has the necessary categories to capture this data under Native American entities. Vendors can register as Alaska Native Corporation Owned Firms, American Indian Owned, Indian Tribe (Federally Recognized), Tribally Owned Firms, etc. However, only prime contractors are required to be registered in the CCR.
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Comment: Object to the rule. This rule is another step toward eliminating the truly small disadvantaged business in America. Over the past five years special legislation has exempted ANCs and tribally- owned businesses, many of which are multi-billion dollar corporations, from the rules that all other small disadvantaged businesses must comply with - size standards, affiliation rules, sole source limits -
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making it difficult to compete with ANCs and tribally-owned businesses.This rule will extend the pattern of ANC dominance to the subcontracting arena. Treating ANCs and Indian Tribes as small businesses when they exceed the size standards for their applicable NAICS codes does a grave disservice to other small businesses that are required to function as large businesses when they exceed the size standard. Instead, the Government should develop new programs that help these entities compete with large business. SBA, GSA and other Government agencies do not monitor and enforce the regulations that provide additional benefits to ANCs. As a result, the benefits extended to ANCs are commonly abused and exaggerated. The rule provides additional benefits to ANCs that the Government is not prepared to monitor or enforce.
Response: This rule implements section 702 of Public Law 107-117, as amended by section 3003 of Public Law 107-206. It permits subcontracts awarded to certain ANCs and Indian tribes to be counted towards a contractor's SB and SDB goals even though those businesses may not be small or certified SDBs. We have modified SFs 294 and 295 to help ensure that subcontract award information is reported.
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Comment: Restrict the percent of the SDB goal that can be satisfied by awards to ANCs to prevent a wholesale takeover of the SDB subcontracting program by ANCs.
Response: The statute contained no such limits. Therefore, the Councils have no authority to restrict the percent of the SDB goal that can be satisfied by awards to ANCs.
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Comment: Allowing a contractor, other than the contractor awarding the subcontract, to receive SB or SDB credit for awards by one of its lower-tier subcontractors will be a disincentive to prime contractor's outreach efforts.
Response: The statute requires the ANC or Indian tribe to designate the appropriate contractor or contractors to receive credit towards their subcontracting goals.
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Comment: The same rule should apply to Native Hawaiian Organizations (NHOs), Native Hawaiian-owned small businesses, Native Hawaiian-owned 8(a) small disadvantaged businesses and Native Hawaiian certified 8(a) firms. Under section 8021 of the 2004 Appropriations Act, NHOs were afforded the same eligibility for certain types of non- competitively awarded contracts as Alaska Native Corporations and Indian tribally-owned 8(a) firms.
Response: The statute only addressed ANC and Indian tribes. Statutory authority would be required to expand the authority to Hawaiian entities.
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Comment: Distinguish the 562 not-for-profit Indian tribes from the 13 for-profit ANCs in the Regulatory Flexibility Act statement. The 562 federally recognized Indian tribes formed under the Indian Reorganization Act, as amended, are all not-for-profit entities organized under the Federal Government. An additional 13 regional ANC established pursuant to the Alaska Native Claims Settlement Act (ANSCA) of 1971, as amended, are for-profit businesses organized under the State of Alaska laws.
Response: Whether the Indian tribe or ANC is a not-for-profit entity or a for-profit business does not affect the implementation of section 702 of Public Law 107-117.
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Comment: Require ANCs to provide the Indian tribe(s) within their region copies of the Subcontract Report on Individual Contracts (SF 294) because the tribes have an interest in ANC activities within their regions.
Response: The Indian tribes are not a party to the contracts that require submission of the SF 294. Therefore, the Councils lack the authority to require the ANCs to provide copies of the SF 294 to the Indian tribes.
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.
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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:
The changes may 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 the law allows other than SB Federal contractors to receive SDB and SB subcontract credit for subcontracts awarded to Indian tribes and ANCs, regardless of whether they are a SB or are SDB certified. SBs and certified SDBs may be adversely impacted, to the extent that there are Indian tribes or ANCs that are large businesses and may now be more likely to be used as subcontractors or suppliers on Federal contracts.
Section 702 of Public Law 107-117, as amended by section 3003 of Public Law 107-206 (43 U.S.C. 1626) provides that subcontracts awarded to an ANC that is considered a minority and economically disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1), and any of its direct and indirect subsidiary corporations, joint ventures, and partnerships that meet the requirements of 43 U.S.C. 1626(e)(2), or Indian tribes, and any Indian-owned economic enterprises meeting the requirements of 25 U.S.C. 1452 can be counted towards a contractor's goal for subcontracting with SB and SDB concerns. Such credit can be taken even where the ANC or Indian tribe may be ``other than small'' under the Small Business Administration (SBA) regulations or is not certified as an SDB pursuant to SBA's regulations.
According to the Department of Interior, there are approximately 550 Indian tribes and ANCs. Information was not available on the number of these entities that were large business, small business or small disadvantaged business. One comment received on the summary of the IRFA that was in the Federal Register Notice for the proposed rule was that there are 562 Indian tribes, some of which are Alaska Native and all of which are non-profit, and 12 ANCs, all of which are for profit. No information was provided in the comment on the number of Indian tribes or ANCs that are small entities.
The FAR Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. Interested parties may obtain a copy from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR Parts in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610, et seq. (FAC 2005-19, FAR Case 2004-017), in correspondence.
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Paperwork Reduction Act
The Paperwork Reduction Act (Public Law 104-13) applies because this final rule contains information collection requirements. Accordingly, the FAR Secretariat will forward a request for approval of a revision to the information collection requirements concerning OMB Clearances 9000-0006 (Standard Form 294) and 9000-0007 (Standard Form 295) to the Office of Management and Budget under 44 U.S.C. 3501, et seq. Public comments concerning this request will be invited through a subsequent Federal Register Notice.
List of Subjects in 48 CFR Parts 19, 52, and 53
Government procurement.
Dated: July 30, 2007. Al Matera, Acting Director, Contract Policy Division.
0 Therefore, DoD, GSA, and NASA amend 48 CFR parts 19, 52, and 53 as set forth below: 0 1. The authority citation for 48 CFR parts 19, 52, and 53 continues to read as follows:
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Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS
0 2. Amend section 19.701 by adding in alphabetical order, the definitions ``Alaska Native Corporation (ANC)'' and ``Indian tribe'' to read as follows:
19.701 Definitions.
* * * * *
Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C.A. 1601, et seq.) and which is considered a minority and economically disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1). This definition also includes ANC direct and indirect subsidiary corporations, joint ventures, and partnerships that meet the requirements of 43 U.S.C. 1626(e)(2). * * * * *
Indian tribe means any Indian tribe, band, group, pueblo, or community, including native villages and native groups (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601 et seq.), that is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c). This definition also includes Indian-owned economic enterprises that meet the requirements of 25 U.S.C. 1452(e). * * * * *
0 3. Amend section 19.703 in the introductory text of paragraph (a) by removing the word ``To'' and adding ``Except as provided in paragraph (c) of this section to'' in its place; by redesignating paragraph (c) as paragraph (d); and by adding new paragraph (c) to read as follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(c)(1) In accordance with 43 U.S.C. 1626, the following procedures apply:
(i) Subcontracts awarded to an ANC or Indian tribe shall be counted towards the subcontracting goals for small business and small disadvantaged business (SDB) concerns, regardless of the size or Small Business Administration certification status of the ANC or Indian tribe.
(ii) Where one or more subcontractors are in the subcontract tier between the prime contractor and the ANC or Indian tribe, the ANC or Indian tribe shall designate the appropriate contractor(s) to count the subcontract towards its small business and small disadvantaged business subcontracting goals.
(A) In most cases, the appropriate contractor is the contractor that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one contractor to count the subcontract toward its goals, the ANC or Indian tribe shall designate only a portion of the total subcontract award to each contractor. The sum of the amounts designated to various contractors cannot exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a copy of the written designation to the contracting officer, the prime contractor, and the subcontractors in between the prime contractor and the ANC or Indian tribe within 30 days of the date of the subcontract award.
(D) If the contracting officer does not receive a copy of the ANC's or the Indian tribe's written designation within 30 days of the subcontract award, the contractor that awarded the subcontract to the ANC or Indian tribe will be considered the designated contractor.
(2) A contractor acting in good faith may rely on the written representation of an ANC or an Indian tribe as to the status of the ANC or Indian tribe unless an interested party challenges its status or the contracting officer has independent reason to question its status. In the event of a challenge of a representation of an ANC or Indian tribe, the interested parties shall follow the procedures at 26.103(b) through (e). * * * * *
0 4. Amend section 19.704 by revising paragraphs (a)(1), (a)(2), (a)(3), and (a)(6) to read as follows:
19.704 Subcontracting plan requirements.
(a) * * *
(1) Separate percentage goals for using small business (including ANCs and Indian tribes), veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including ANCs and Indian tribes) and women- owned small business concerns as subcontractors;
(2) A statement of the total dollars planned to be subcontracted and a statement of the total dollars planned to be subcontracted to small business (including ANCs and Indian tribes), veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including ANCs and Indian tribes) and women-owned small business concerns;
(3) A description of the principal types of supplies and services to be subcontracted and an identification of types planned for subcontracting to small business (including ANCs and Indian tribes), veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including ANCs and Indian tribes), and women-owned small business concerns; * * * * *
(6) A statement as to whether or not the offeror included indirect costs in establishing subcontracting goals, and a description of the method used to determine the proportionate share of indirect costs to be incurred with small business (including ANCs and Indian tribes), veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including ANCs and Indian tribes), and women-owned small business concerns; * * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0 5. Amend section 52.212-5 by revising the clause date and revising paragraph (b)(8)(i) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS--COMMERCIAL ITEMS (SEP 2007) * * * * *
(b) * * *
(8)(i) 52.219-9, Small Business Subcontracting Plan (SEP 2007) (15 U.S.C. 637(d)(4).) * * * * *
0 6. Amend section 52.219-9 by-- 0 a. Revising the clause date; 0 b. Adding in paragraph (b), in alphabetical order, the definitions ``Alaska native Corporation (ANC'') and ``Indian tribe''; and 0 c. Revising paragraphs (d)(1), (d)(2)(ii) and (vi), and (d)(6)(i) and (v) to read as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
SMALL BUSINESS SUBCONTRACTING PLAN (SEP 2007)
(b) * * *
Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or Group
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Corporation organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.) and which is considered a minority and economically disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1). This definition also includes ANC direct and indirect subsidiary corporations, joint ventures, and partnerships that meet the requirements of 43 U.S.C. 1626(e)(2). * * * * *
Indian tribe means any Indian tribe, band, group, pueblo, or community, including native villages and native groups (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601 et seq.), that is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c). This definition also includes Indian-owned economic enterprises that meet the requirements of 25 U.S.C. 1452(e). * * * * *
(d) * * *
(1) In accordance with 43 U.S.C. 1626:
(i) Subcontracts awarded to an ANC or Indian tribe shall be counted towards the subcontracting goals for small business and small disadvantaged business (SDB) concerns, regardless of the size or Small Business Administration certification status of the ANC or Indian tribe.
(ii) Where one or more subcontractors are in the subcontract tier between the prime contractor and the ANC or Indian tribe, the ANC or Indian tribe shall designate the appropriate contractor(s) to count the subcontract towards its small business and small disadvantaged business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one Contractor to count the subcontract toward its goals, the ANC or Indian tribe shall designate only a portion of the total subcontract award to each Contractor. The sum of the amounts designated to various Contractors cannot exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a copy of the written designation to the Contracting Officer, the prime Contractor, and the subcontractors in between the prime Contractor and the ANC or Indian tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the ANC's or the Indian tribe's written designation within 30 days of the subcontract award, the Contractor that awarded the subcontract to the ANC or Indian tribe will be considered the designated Contractor.
(2) * * *
(ii) Total dollars planned to be subcontracted to small business concerns (including ANC and Indian tribes); * * * * *
(vi) Total dollars planned to be subcontracted to small disadvantaged business concerns (including ANCs and Indian tribes); and * * * * *
(6) * * *
(i) Small business concerns (including ANC and Indian tribes); * * * * *
(v) Small disadvantaged business concerns (including ANC and Indian tribes); and * * * * *
PART 53--FORMS
53.219 [Amended]
0 7. Amend section 53.219 by removing from paragraphs (a) and (b) ``SEP 2006'' and adding (SEP 2007) in its place.
0 8. Revise section 53.301-294 to read as follows: BILLING CODE 6820-EP-S
53.301-294 Subcontracting Report for Individual Contracts.
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[GRAPHIC] [TIFF OMITTED] TR17AU07.003
0 9. Revise section 53.301-295 to read as follows:
53.301-295 Summary Subcontract Report.
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[GRAPHIC] [TIFF OMITTED] TR17AU07.005
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[FR Doc. 07-3798 Filed 8-16-07; 8:45 am]
BILLING CODE 6820-EP-C
