FEDERAL CONTRACTS PERSPECTIVE

OMB Issues Instructions for Reviews of
Compliance with Executive Order 13940

In August, President Trump issued Executive Order (EO) 13940, Aligning Federal Contracting and Hiring Practices with the Interests of American Workers, to create opportunities for United States workers to compete for jobs, including jobs created through federal contracts (see the September 2020 Federal Contracts Perspective article “President Orders Review of Foreign Labor on Contracts”). The Office of Management and Budget (OMB) has issued instructions to the heads of all departments and agencies for conducting reviews of contractor hiring practices and developing reports on their findings.

EO 13940 explained that federal contractors’ use of temporary foreign labor or offshoring the performance of a contract may take work away from American workers and adversely affect national security.

The EO directed each agency head to review “performance of contracts (including subcontracts) awarded by the agency in fiscal years 2018 and 2019 to assess: (i) whether contractors (including subcontractors) used temporary foreign labor for contracts performed in the United States, and, if so, the nature of the work performed by temporary foreign labor on such contracts; whether opportunities for United States workers were affected by such hiring; and any potential effects on the national security caused by such hiring; and (ii) whether contractors (including subcontractors) performed in foreign countries services previously performed in the United States, and, if so, whether opportunities for United States workers were affected by such offshoring; whether affected United States workers were eligible for assistance...; and any potential effects on the national security caused by such offshoring.”

To ensure that all federal agencies conduct reviews that are consistent with the EO, the OMB has issued the following instructions:

• Agencies should evaluate service contracts from the 25 contractors with which they have made the most obligations during Fiscal Years (FY) 2018 and 2019, or the contractors responsible for at least 10% of the agency’s obligations for services during this period, whichever is less, for work performed in the U.S.
  
  
• For each service contractor in the review pool, agencies must determine if the contractor has policies in place to recruit U.S. or permanent residents before hiring temporary foreign labor.
  
  
• For any contract performed by a contractor in the agency's review pool that involved any temporary foreign labor (that is, labor performed by a non-U.S. citizen authorized to work pursuant to a temporary work visa), the agency should seek to document the following: (1) the contract number; (2) a brief description of the services provided under the contract; and (3) for work performed by foreign labor: a brief description of the tasks performed (for example, software engineering, information technology help desk support), the type of work visa under which the work was performed (for example, H-1B visa); whether opportunities for U.S. workers were affected by such hirings, and any potential effects on the national security caused by such hiring.
  
  
• The agency should work with each contractor to document this same information for any of the contractor’s first tier subcontractors.
  
  
• For each service contractor in the review pool, the agency must determine if the contractor engaged in “offshoring” in the performance of any service contract it received or was performing during FY 2018 and 2019. For purposes of this review, “offshoring” refers to the reassignment of any work activities (directly supporting performance of the contract or overhead activities) previously performed at a company's U.S. operations to a location outside the United States. If the agency identifies any such offshoring activities, it must document:
  
  
  • The contract number identifying the contract where offshoring occurred;
    
    
  • A brief description of the scope of the contract;
    
    
  • A brief description of the work activities (tasks) that were offshored;
    
    
  • Whether the identified offshoring affected or otherwise reduced U.S. citizen job opportunities;
    
    
  • Whether the identified offshoring affected U.S. workers eligible for assistance under the Trade Adjustment Assistance program (which provides aid to workers who lose their jobs or whose hours of work and wages are reduced as a result of increased imports – see https://www.dol.gov/agencies/eta/tradeact/law/regulations); and
    
    
  • What, if any, effects there may have been on national security as a result of the identified offshoring.
  
  
• Finally, agencies are to summarize the results of the reviews and identify any actions planned in response to those results. Also, reports should include recommendations to improve the economy and efficiency of federal procurement and to protect national security.

These reports are to be submitted to OMB at MBX.OMB.OFPPv2@OMB.eop.gov by December 31, 2020.

DOD Tidies Things Up a Bit

The Department of Defense (DOD) took it easy in November, only issuing two final rules, two proposed rules, one deviation, and two memoranda.

• Repeal of Provision and Clause on Reserve Officer Training Corps (ROTC) and Military Recruiting on Campus: This final rule removes DFARS 252.209-7003, Reserve Officer Training Corps and Military Recruiting on Campus – Representation, and DFARS 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus, because the Federal Acquisition Regulation (FAR) now covers the statutory requirement.
  
  Title 10 of the U.S. Code, Section 983, Institutions of Higher Education That Prevent ROTC Access or Military Recruiting On Campus: Denial Of Grants And Contracts From Department of Defense, Department of Education, and Certain Other Departments and Agencies (10 USC 983), prohibits funds from being provided through a contract to institutions of higher education that prohibit or prevent: (1) the maintenance, establishment, or operation of a Senior Reserve Officer Training Corps (ROTC) unit at the institution; (2) a student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education; (3) the secretary of a military department or secretary of Homeland Security from gaining access to campuses, or students on campuses, for military recruiting purposes; or (4) access by military recruiters, for the purposes of military recruiting, to certain information pertaining to students enrolled at the institution.
  
  The DFARS has implemented 10 USC 983 since 2000 with DFARS 252.209-7005, which is required to be included in all solicitations and contracts with institutions of higher education (the representation contained in DFARS 252.209-7005 was separated from DFARS 252.209-7005 and designated as DFARS 252.209-7003 in 2012). DFARS 252.209-7003 advises offerors that, by submitting an offer, they represent that the institution does not have any prohibitive policies or practices subject to the statute. DFARS 252.209-7005 prohibits contractors, during performance of the contract, from having any policies or practices subject to the prohibition at 10 USC 983, and identifies the actions available to the government as a result of a contractor’s misrepresentation or noncompliance.
  
  In 2020, the FAR finally implemented the provisions of 10 USC 983 with the issuance of a final rule in Federal Acquisition Circular (FAC) 2021-02 (see “Reserve Officer Training Corps (ROTC) and Military Recruiting on Campus” in the November 2020 Federal Contracts Perspective article “FAC 2021-02 Addresses ROTC, Recreational Services”). Now that the FAR contains 10 USC 983 implementation (see FAR 9.110, Reserve Officer Training Corps and Military Recruiting on Campus, and FAR 52.209-14, Reserve Officer Training Corps and Military Recruiting on Campus), DFARS 252.209-7003 and DFARS 252.209-7005 are duplicative and no longer necessary, so they are removed, along with DFARS 209.470, Reserve Officer Training Corps and Military Recruiting on Campus, which explained 10 USC 983, provided procedures, and prescribed DFARS 252.209-7003 and DFARS 252.209-7005.
  
  
• Repeal of Clauses Related to Taxes Applied to Foreign Contracts in Afghanistan: This final rule removes DFARS 252.229-7014, Taxes – Foreign Contracts in Afghanistan, and DFARS 252.229-7015, Taxes – Foreign Contracts in Afghanistan (North Atlantic Treaty Organization Status of Forces Agreement), because the FAR now covers the same information.
  
  DFARS 252.229-7014 is included in solicitations and contracts with performance in Afghanistan, unless DFARS 252.229-7015 applies. It implements terms of the Security and Defense Cooperation Agreement between the United States and the Islamic Republic of Afghanistan (the “Agreement”). The Agreement applies to all persons or legal entities supplying goods and services in Afghanistan to or on behalf of U.S. forces under a contract with or in support of U.S. forces. The clause advises contractors that the contract is subject to the Agreement and exempt from taxes or similar charges assessed in Afghanistan; requires contractors to exclude any Afghan taxes, customs, duties, fees, or similar charges from the contract price; and explains the applicability of taxes to Afghan citizens employed by DOD or DOD contractors performing under the contract.
  
  DFARS 252.229-7015 is included in solicitations and contracts that are performed in Afghanistan and awarded on behalf of the North Atlantic Treaty Organization (NATO). It implements terms of the Status of Forces Agreement (SOFA) between NATO and the Islamic Republic of Afghanistan. The SOFA applies to all persons or legal entities supplying goods and services in Afghanistan to or on behalf of NATO forces under a contract with or in support of NATO, NATO member states, or operational partners. The clause advises contractors that the contract is subject to the SOFA and exempt from taxes or similar charges assessed in Afghanistan; requires contractors to exclude any Afghan taxes, customs, duties, fees, or similar charges from the contract price; and explains the applicability of taxes to Afghan citizens employed by NATO performing under the contract.
  
  FAC 2021-02 included a final rule that added two clauses to the FAR that notify applicable contractors of the same information included in DFARS 252.229-7014 and DFARS 252.229-7015 (see “Taxes on Foreign Contracts in Afghanistan” in the November 2020 Federal Contracts Perspective article “FAC 2021-02 Addresses ROTC, Recreational Services”). Since the text of the DFARS clauses are now included in the FAR, the two DFARS clauses are no longer necessary and are removed from the DFARS along with paragraphs (k) and (l) of DFARS 229.402-70, Additional Provisions and Clauses [for foreign contracts], which prescribed DFARS 252.229-7014 and DFARS 252.229-7015.
  
  
• Commercial Item Determinations: This proposed rule would amend DFARS 212.102, Applicability [of FAR part 12 and DFARS part 212, Acquisition of Commercial Items], to further implement the National Defense Authorization Act (NDAA) for FY 2018 (Public Law 115-91), Section 848, Commercial Item Determinations.
  
  Section 848 amends 10 USC 2380, Commercial Item Determinations by the Department of Defense, to provide that a contract for an item acquired using FAR part 12 procedures shall serve as a prior commercial item determination (“a prior commercial item determination made by a military department, a defense agency, or another component of DOD shall serve as a determination for subsequent procurements of such item”) unless the appropriate official determines that the use of such procedures was improper or that it is no longer appropriate to acquire the item using commercial item acquisition procedures.
  
  DOD published a proposed rule in 2019 to implement Section 848 (along with NDAA for FY 2017 [Public Law 114-328], Section 877, Treatment of Commingled Items Purchased by Contractors as Commercial Items, and Section 878, Treatment of Services Provided by Nontraditional Contractors as Commercial Items) (see “Treatment of Certain Items as Commercial Items” in the December 2019 Federal Contracts Perspective article “DOD Takes It Easy”). One respondent submitted comments on the Section 848 portion of the proposed rule that resulted in substantial changes that necessitated a second proposed rule to implement Section 848.
  
  The first proposed rule would have amended DFARS 212.102 by:
  
  
  • Adding new paragraph (a)(i) to clarify that the use of FAR part 12 procedures is not only for the acquisition of items that have been determined to be “commercial items” as defined in FAR 2.101, Definitions, but also for the acquisition of items that do not meet that definition but are to be treated as commercial items due to the applicability of Title 41 of the U.S. Code, Section 1903 (41 USC 1903), Special Emergency Procurement Authority (“when used to procure supplies or services to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack”), or 10 USC 2380a, Treatment of Certain Items as Commercial Items (“when used to procure supplies or services from nontraditional defense contractors”).
    
    
  • Redesignating paragraph (a)(ii) on prior commercial item determinations as (a)(iii) and expanding it to cover other prior use of FAR part 12 procedures.
    
    
  • Adding paragraph (a)(iii)(A)(2) to state that a contract for an item acquired using the commercial item acquisition procedures under FAR ppart 12 shall serve as a prior commercial item determination unless the item was acquired in accordance with 41 USC 1903 or 10 USC 2380a and did not require a commercial item determination.
    
    
  • Adding paragraph (a)(iii)(B) to clarify when DFARS subpart 212.70, Limitation on Conversion of Procurement from Commercial Acquisition Procedures, is applicable (“until November 15, 2020, prior to converting a procurement of commercial items valued at more than $1 million from commercial acquisition procedures to noncommercial acquisition procedures under FAR part 15 [Contracting by Negotiation], follow the procedures at [DFARS] subpart 212.70...”).
  
  In response to the comments on the first proposed rule, the second proposed rule would make the following changes to DFARS 212.102:
  
  
  • It would move the coverage on prior commercial item determinations that was proposed to be redesignated as paragraph (a)(iii) back to paragraph (a)(ii) because prior commercial item determinations logically precedes commercial item determinations. Coverage on commercial items determinations would remain in proposed paragraph (a)(iii).
    
    
  • It would change the applicability of commercial item determinations in paragraph (a)(iii) to apply to acquisitions at any dollar value, not just those that exceed $1 million. The $1 million threshold was based on policy; 10 USC 2380 does not distinguish between acquisitions above and below $1 million.
  
  Comments on this proposed rule must be submitted no later than January 22, 2021, identified as “DFARS Case 2020-D033,” by any of the following methods: (1) through the Federal eRulemaking Portal: http://www.regulations.gov; (2) email to: osd.dfars@mail.mil; or (3) mail to: Defense Acquisition Regulations System, Attn: Heather Kitchens, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon, Washington, DC 20301-3060.
  
  
• Authorities for Minimizing the Use of Materials Containing Hexavalent Chromium: This proposed rule would amend DFARS subpart 223.73, Minimizing the Use of Materials Containing Hexavalent Chromium, to remove references to revoked Executive Orders (EO) related to minimizing the use of materials containing hexavalent chromium.
  
  DFARS 223.7301, Policy, and DFARS 223.7302, Authorities, cite two EOs as authority for DFARS subpart 223.73: EO 13423, Strengthening Federal Environmental, Energy, and Transportation Management, and EO 13514, Federal Leadership in Environmental, Energy, and Economic Performance. Both EOs were revoked by EO 13693, Planning for Federal Sustainability in the Next Decade, which was subsequently revoked by EO 13834, Efficient Federal Operations.
  
  This proposed rule would remove DFARS 223.7302 and revise DFARS 223.7301 to read as follows: “In accordance with the DOD policy memorandum of April 8, 2009, Minimizing the Use of Hexavalent Chromium, it is DOD policy to minimize hexavalent chromium (an anti-corrosive) in items acquired by DOD (deliverables and construction material), due to the serious human health and environmental risks related to its use.” (EDITOR’S NOTE: The April 8, 2009, DOD policy memorandum is currently cited in DFARS 223.7305, Authorization and Approval.)
  
  Comments on this proposed rule must be submitted no later than January 22, 2021, identified as “DFARS Case 2020-D031,” by any of the following methods: (1) through the Federal eRulemaking Portal: http://www.regulations.gov; (2) email to: osd.dfars@mail.mil; or (3) mail to: Defense Acquisition Regulations System, Attn: Kimberly R. Ziegler, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon, Washington, DC 20301-3060.
  
  
• Deviation on Combating Race and Sex Stereotyping: This deviation, issued by John M. Tenaglia, Principal Director, Defense Pricing and Contracting, implements Section 4 of EO 13950, Combating Race and Sex Stereotyping, which requires agencies to include a clause in new solicitations and resultant contracts that prohibits contractors from using any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating (see the October 2020 Federal Contracts Perspective article “President Orders ‘Divisive, Anti-American’ Training Cease”).
  
  The deviation requires that DOD contracting officers: (1) include DFARS 252.222-7999, Combating Race and Sex Stereotyping (DEVIATION 2021-O0001), in solicitations issued on or after November 20, 2020, and in any resultant contracts that will include FAR 52.222-26, Equal Opportunity; and (2) amend solicitations issued prior to November 20, 2020, and in any resultant contract award expected to occur on or after November 20, 2020, to include DFARS 252.222-7999 (DEVIATION 2021-O0001) if the contract is contemplated to include the clause at FAR 52.222-26, Equal Opportunity.
  
  DFARS 252.222-7999 (DEVIATION 2021-O0001) includes the following:
  
  
  • Definitions of “race or sex scapegoating” (“assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex”) and “race or sex stereotyping” (“ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex”).
    
    
  • Exempts contracts or subcontracts that are covered by FAR 22.807, Exemptions [from equal opportunity requirements], from DFARS 252.222-7999 (DEVIATION 2021-O0001).
    
    
  • Prohibits contractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” including any of the eight “concepts” listed in Section 4, paragraph 1 (such as “one race or sex is inherently superior to another race or sex” and “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex”).
    
    
  • Provides a “notice” that the contractor is to send to each labor union or representative of workers with which it has a collective bargaining agreement (or other contract or understanding). The notice includes the eight concepts listed in Section 4, paragraph 1, and the definitions of “race or sex scapegoating” and “race or sex stereotyping”. In addition, the notice advises that “any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under this notice should immediately contact the Office of Federal Contract Compliance Programs (OFCCP) Complaint Hotline to Combat Race and Sex Stereotyping at 202-343-2008 or via email at OFCCPComplaintHotline@dol.gov.”
    
    
  • Provides that a noncompliant contractor may have its contract cancelled, terminated, or suspended in whole or in part; the contractor may be declared ineligible for further government contracts; and sanctions may be imposed and remedies invoked against the contractor.
    
    
  • Requires the contractor to include DFARS 252.222-7999 (DEVIATION 2021-O0001) in subcontracts that exceed $10,000 and are not exempt by FAR 22.807.
  
  
• DOD Warranty Guide, Version 2.0: This memorandum, issued by Kim Herrington, Acting Principal Director, Defense Pricing and Contracting, alerts program managers, project officers, logistics managers, contracting officers, and others within DOD responsible for warranty development and implementation that the DOD Warranty Guide has been updated for the first time since 2009 (see “Defense Warranty Guide” in the November 2009 Federal Contracts Perspective article “DOD Memos and DFARS Changes Abound”). Version 2 of the guide is available at https://www.acq.osd.mil/dpap/pdi/docs/Warranty_Guide_Version_2.0.pdf.
  
  
• Assessing Contractor Implementation of Cybersecurity Requirements: This memorandum, issued by John M. Tenaglia, Principal Director, Defense Pricing and Contracting, provides (1) an executive summary of the interim DFARS rule “Assessing Contractor Implementation of Cybersecurity Requirements" (see “Assessing Contractor Implementation of Cybersecurity Requirements” in the October 2020 Federal Contracts Perspective article “DOD Adjusts Acquisition-Related Thresholds for Inflation, Implements Cybersecurity Requirements”), and (2) the Under Secretary of Defense for Acquisition and Sustainment memorandum, dated August 4, 2020, which implements the Cybersecurity Maturity Model Certification (CMMC) Framework within DOD. The purpose of the memorandum is to ensure workforce awareness and understanding of the requirements of the interim rule.

Eight More Sector Size Standards to be Revised

Just like in October, in November the Small Business Administration (SBA) is seeking comments on two proposed rules that would revise the small business size standards in 13 CFR 121.201, What Size Standards has SBA Identified by North American Industry Classification System Codes?, for businesses in eight North American Industrial Classification System (NAICS) sectors to increase small business eligibility for SBA’s loan and contracting programs. The SBA estimates that more than 7,300 additional firms in these eight sectors will become eligible for SBA’s programs under the revised size standards if adopted.

The first rule proposes to increase the receipts-based small business size definitions (commonly referred to as “size standards”) for 27 industries in NAICS Sector 54, Professional, Scientific and Technical Services; two industries in NAICS Sector 55, Management of Companies and Enterprises; and 17 industries in NAICS Sector 56, Administrative and Support and Waste Management and Remediation Services. Comments on this proposed rule must be submitted by January 12, 2021, identified as “RIN 3245-AG91” and submitted by one of the following methods: (1) Federal eRulemaking Portal: https://www.regulations.gov; or (2) mail/hand delivery/courier to: Khem R. Sharma, Ph.D., Chief, Office of Size Standards, 409 Third Street SW, Mail Code 6530, Washington, DC 20416.

The second rule proposes to increase the receipts-based small business size standards for 14 industries in NAICS Sector 61, Education Services; 18 industries in NAICS Sector 62, Health Care and Social Assistance; 11 industries in NAICS Sector 71, Arts, Entertainment, and Recreation; four industries in NAICS Sector 72, Accommodation and Food Services; and 23 industries in NAICS Sector 81, Other Services. Comments on this proposed rule must be submitted by January 26, 2021, identified as “RIN 3245-AG88” and submitted by one of the following methods: (1) Federal eRulemaking Portal: https://www.regulations.gov; or (2) mail/hand delivery/courier to: Khem R. Sharma, Ph.D., Chief, Office of Size Standards, 409 Third Street SW, Mail Code 6530, Washington, DC 20416.

SBA’s proposed revisions rely on its recently revised “Size Standards Methodology,” which is available at https://www.sba.gov/document/support--size-standards-methodology-white-paper. SBA seeks comments on its proposed changes to size standards in the above sectors, and the data sources it evaluated to develop the proposed size standards. The SBA considers the structural characteristics of individual industries, including average firm size, the degree of competition, and federal government contracting trends. This ensures that small business size standards reflect current economic conditions in those industries.

For more on the October proposed revisions to eight industrial sectors, see the November 2020 Federal Contracts Perspective article “Eight Industrial Sector Size Standards to be Revised.”

SBA Tinkers with VOSB Regulations

Besides proposing changes to the small business size standards in eight industrial sectors (see above), the SBA has issued two final rules that have a direct affect on veteran-owned small businesses (VOSB).

• Use of Federal Surplus Property to Veteran-Owned Small Businesses and Small Businesses in Disaster Areas: This final rule expands access to the General Services Administration’s (GSA) Federal Surplus Personal Property Donation Program for certain small businesses, including VOSBs. Prior to this rule, GSA’s Donation Program allows eligible state and local government agencies and nonprofit organizations to obtain personal property that the government no longer needs. (For more information on GSA’s Donation Program, see https://www.gsa.gov/buying-selling/government-property-for-sale-or-disposal/personal-property-for-reuse-sale/for-state-agencies-and-public-organizations/.)
  
  The Veterans Small Business Enhancement Act of 2018 (Public Law 115-416), added the following as paragraph (g) to 15 USC 657b, Veterans Programs: “The Administrator [of SBA], in coordination with the Administrator of General Services, shall provide access to and manage the distribution of surplus property, and foreign excess property returned to a state for handling as surplus property, owned by the United States under Chapter 7 of Title 40, United States Code [Foreign Excess Property], to small business concerns owned and controlled by veterans...” To implement this provision, SBA is adding subpart F, Surplus Personal Property for Veteran-Owned Small Business Programs, to Title 13 of the Code of Federal Regulations (CFR), part 125, Government Contracting Programs (13 CFR part 125). Subpart F consists of 13 CFR 125.100, How does a small business concern owned and controlled by veterans obtain federal surplus personal property?, which provides procedures for such transfer and authorized uses of the transferred surplus personal property.
  
  In addition, this rule implements two more statutory provisions:
  
  
  • The Recovery Improvements for Small Entities After Disaster Act of 2015 (RISE After Disaster Act) (Public Law 114-88), Section 2105, Use of Federal Surplus Property in Disaster Areas, which authorizes SBA to transfer technology or surplus personal property to small business concerns located in disaster areas.
    
    
  • The National Defense Authorization Act for Fiscal Year 2019 (Public Law 115-232), Section 861, Puerto Rico Businesses, which authorizes SBA to transfer technology or surplus personal property to a small business concern located in Puerto Rico if the small business meets the requirements for such a transfer, without regard to whether that small business is a participant in the 8(a) Business Development program.
  
  To implement these two statutory changes, SBA is amending 13 CFR 124.405, How does a participant obtain federal government surplus property?, and adding Subpart B, Surplus Personal Property for Small Businesses Located in Disaster Areas, and Subpart C, Surplus Personal Property for Small Businesses Located in Puerto Rico, to 13 CFR part 129, Contracts for Small Businesses Located in Disaster Areas, and Surplus Personal Property for Small Businesses Located in Disaster Areas and Puerto Rico (formerly titled “Contracts for Small Businesses Located in Disaster Areas”).
  
  
• Removal of Service-Disabled Veteran-Owned Small Business Concern Program Regulations: This finalizes, without changes, the rule that proposed to remove from the CFR four regulations in the Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC) Program that are no longer necessary because they are unnecessary or redundant.
  
  The four SDVO SBC regulations proposed for removal were:
  
  
  • 13 CFR 125.15, May an SDVO SBC have affiliates?, which provides that an SDVO SBC may have affiliates. This was considered redundant because whether an SDVO SBC can have an affiliate is addressed in 13 CFR 121.103, How does SBA determine affiliation?
    
    
  • 13 CFR 125.16, May 8(a) program participants, HUBZone SBCs, small and disadvantaged businesses, or women-owned small businesses qualify as SDVO SBCs?, which states that an SDVO SBC may qualify for other SBA contracting programs. This regulation was considered unnecessary because the requirements for an SDVO SBC to qualify for other programs are addressed in the rules on eligibility for those specific programs.
    
    
  • 13 CFR 125.19, Does SDVO SBC status guarantee receipt of a contract?, which states that an SDVO SBC is not guaranteed receipt of a contract. This was considered unnecessary because nothing in SBA’s regulations indicates that qualification as an SDVO SBC entitles a firm to a contract.
    
    
  • 13 CFR 125.20, Who decides if a contract opportunity for SDVO competition exists?, was considered redundant because 13 CFR 125.22, When may a contracting officer set-aside a procurement for SDVO SBCs?, and 13 CFR 125.23, When may a contracting officer award sole source contracts to SDVO SBCs?, already provide that contracting officers make SDVO SBC competition decisions.
  
  No comments were submitted in response to the proposed rule, so SBA is finalizing it without changes. For more on the proposed rule, see the March 2020 Federal Contracts Perspective article “SBA Proposes Removing Four SDVO SBC Regulations.”

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