FAR Secretariat
General Services Administration
18th & F Streets, N.W.
Room 4037
Washington, DC 20405
Subject: ADVANCE NOTICE OF PROPOSED RULEMAKING: Federal Acquisition Regulation; Implementation of Commercially Available Off-the-Shelf Item Acquisition Provisions of the Federal Acquisition Reform Act [FAR Case 96-308]
Dear FAR Secretariat:
This responds to your request for comments on the advance notice of proposed rulemaking entitled, "Implementation of Commercially Available Off-the-Shelf Item Acquisition Provisions of the Federal Acquisition Reform Act [FAR Case 96-308]."
The Federal Acquisition Reform Act (FARA) directs the FAR to list provisions of law that are inapplicable for contracts where commercially available off-the-shelf items are being acquired. We support many of the provisions identified in the advance notice. However, the Office of Advocacy and the small business community(1) strongly oppose including 15 U.S.C. 637(d)(2) and (3), Utilization of Small Business Concerns (FAR Clause 52.219.8) and 15 U.S.C. 637(d)(4), Small Business Subcontracting Plan (FAR Clause 52.219.9 as inapplicable provisions for the acquisition of commercially available off-the-shelf items.
FAR Clause 52.219.8, requires federal agencies to utilize small, small disadvantaged and women-owned businesses as contractors and subcontractors to the maximum extent practicable. It also requires that government prime contractors establish procedures to ensure that their small business subcontractors are paid in a timely manner. It is a provision that echoes the government's strong mandate to increase competition through the utilization of small businesses. It is a "best efforts" provision that is good government policy, represents minimal burden to agencies, offerors and contractors, and makes good sense for both commercial and non-commercial items purchased by the government. There is absolutely no sound justification to waive this provision of law which increases small business competition.
FAR Clause 52.219.9, requires contractors and subcontractors to prepare small business subcontracting plans for government contracts over certain threshold levels. The plans are intended to encourage subcontracting opportunities for small, small disadvantaged and women-owned businesses. The accepted use of company-wide subcontracting plans and/or commercial plans makes this requirement easy for offerors to comply with and is applicable to most commercial off-the-shelf buys. To waive this provision would eliminate a significant deterrent against barriers to free entry by small, small disadvantaged and women- owned businesses into competition for government business.
The small business community strongly opposes any effort to eliminate current subcontracting plan requirements for commercial buys. Such changes would have a significant adverse effect on the ability of small firms to participate in contract opportunities. Again, there is no sound justification to waive this provision of law which increases small business competition.
The Office of Advocacy and the small business community are very concerned that the regulatory process for implementing the Federal Acquisition Reform Act of 1995 be open, fair and equitable regarding the representation and integration of small business concerns.
The new law creates a "framework" for change -- important change. Specifics on how the legislation will be implemented are now left up to the Executive Branch and the regulation writers who will interpret the law. It is critical that this process be done in a meaningful way that equitably accounts for the concerns of all stakeholders.
Advocacy urges the FAR Council to guide the implementation process such that the concerns and suggestions of the small business community are solicited in the early stages of rule- development, are seriously considered and factored into the regulatory process. Specifically, Advocacy asks that:
1. The full intent of the Regulatory Flexibility Act (RFA) be exercised in the development of the implementing rules.
The RFA is designed to ensure that regulators do not burden small organizations disproportionately by imposing uniform regulations on all entities regardless of size. The Act requires agencies to analyze their rules to measure the impact they may have on small firms and to consider alternatives that can achieve the intent of the regulations, without adversely affecting small businesses; and,
2. The Small Business Administration, as the representative for the small business community in the Executive Branch, be given the opportunity to participate in the initial development/drafting of all proposed procurement rules.
Small firms are the vehicle of opportunity providing the majority of American jobs and innovations. They ensure competition and lower government costs in the federal procurement process. Their integration into the regulatory process is critical.
The Office of Advocacy is committed to making procurement reform a reality and stands ready to work with the FAR Council, the Office of Federal Procurement Policy and the promulgating agencies in that endeavor.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
END NOTE
1. The Office of Advocacy has been contacted by multiple small business groups opposing the waiver of FAR Clauses 52.219.8 and 52.219.9.