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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Rules and Regulations available to the program or component for which the ICT supply or service is being procured.
2 Fundamental alteration. When an agency determines that acquisition of ICT that conforms with all applicable ICT accessibility standards would result in a fundamental alteration in the nature of the ICT, such acquisition is required to conform only to the extent that conformance will not result in a fundamental alteration in the nature of the ICT.
3 Nonavailability of conforming commercial items. Where there are no commercial items that fully conform to the ICT accessibility standards, the agency shall procure the supplies or service available in the commercial marketplace that best meets the ICT
accessibility standards consistent with the agencys needs.
b Alternative means of access. An agency shall provide individuals with disabilities access to and use of information and data by an alternative means to meet the identified needs when an exemption in paragraphs a1, 2, or 3 of this section applies.
c Documentation. When an exemption applies, the contracting officer shall obtain, as part of the requirements documentation, a written determination from the requiring activity explaining the basis for the exemption in paragraphs a1, 2 or 3
of this section. This documentation shall be maintained in the contract file.
1 Undue burden. A determination of undue burden shall address why and to what extent compliance with applicable ICT accessibility standards constitutes an undue burden.
2 Fundamental alteration. A
determination of fundamental alteration shall address the extent to which compliance with the applicable ICT
accessibility standards would result in a fundamental alteration in the nature of the ICT.
3 Nonavailability of conforming commercial items. A determination of commercial items nonavailability shall include i A description of the market research performed;
ii A listing of the requirements that cannot be met; and iii The rationale for determining that the ICT to be procured best meets the ICT accessibility standards in 36 CFR
1194.1, consistent with the agencys needs.
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DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 19 and 52
FAC 202107; FAR Case 2016011; Item II; Docket No. 20160011; Sequence No. 1
RIN 9000AN35

Federal Acquisition Regulation:
Revision of Limitations on Subcontracting Department of Defense DoD, General Services Administration GSA, and National Aeronautics and Space Administration NASA.
ACTION: Final rule.
AGENCY:

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation FAR to implement revised and standardized limitations on subcontracting, including the nonmanufacturer rule, that apply to small business concerns.
DATES: Effective September 10, 2021.
FOR FURTHER INFORMATION CONTACT: Ms.
Mahruba Uddowla, Procurement Analyst, at 7036052868 or by email at mahruba.uddowla@gsa.gov, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 2025014755 or GSARegSec@gsa.gov. Please cite FAC
202107, FAR Case 2016011.
SUPPLEMENTARY INFORMATION:
SUMMARY:

I. Background DoD, GSA, and NASA published a proposed rule at 83 FR 62540 on December 4, 2018, to implement regulatory changes made by the Small Business Administration SBA in its final rule published in the Federal Register at 81 FR 34243 on May 31, 2016, which became effective on June 30, 2016. SBAs final rule implements the statutory requirements of section 1651 of the National Defense Authorization Act NDAA for Fiscal Year FY 2013 15 U.S.C. 657s. Section 1651 revised and standardized the limitations on subcontracting, including the nonmanufacturer rule, that apply to small business concerns under FAR part 19. Twenty-nine respondents submitted comments on the proposed rule.
II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council the Councils
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reviewed the public comments in the development of the final rule. A
discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
A. Summary of Significant Changes This final rule makes the following significant changes from the proposed rule:
The definition of similarly situated entity. The definition of similarly situated entity is revised at FAR 19.001
and in FAR clause 52.21914, Limitations on Subcontracting. It now provides an example of entities having the same small business program status and to specify that the entity must be small under the size standard associated with the North American Industry Classification System NAICS code the prime contractor assigned to the subcontract.
Applicable dollar threshold. The final rule reflects the clarification that the nonmanufacturer rule and the limitations on subcontracting apply to set-asides and sole source awards made pursuant to subparts 19.8, 19.13, 19.14, and 19.15, as well as awards using the HUBZone price evaluation preference pursuant to subpart 19.13, regardless of dollar value.
HUBZone price evaluation preference.
Paragraph e2 is added to FAR
19.507, Solicitation provisions and contract clauses, to clarify that, in solicitations and contracts using the HUBZone price evaluation preference, the contracting officer shall insert the clause at FAR 52.21914, Limitations on Subcontracting. Paragraph h1iiB is added to specify that the contracting officer shall insert the clause at FAR
52.21933, Nonmanufacturer Rule, in solicitations and contracts when the HUBZone price evaluation preference is used. For the FAR clauses at 52.21914
and 52.21933, the prescription also states that the contracting officer shall not insert the clause in the resultant contract if the prospective contractor waived the use of the price evaluation preference or is an other than small business.
The clause at FAR 52.2194, Notice of Price Evaluation Preference for HUBZone Small Business Concerns, is revised to remove the proposed rule definition of similarly situated entity, and to delete instead of revising the new redundant paragraphs d and e, which pertained to the limitation on subcontracting.
Limitations on Subcontracting. FAR
clause 52.21914, Limitations on Subcontracting, is revised to clarify that
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