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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Rules and Regulations The revision reads as follows:
19.704

Subcontracting plan requirements.

d A commercial plan as defined in 19.701 is the preferred type of subcontracting plan for contractors furnishing commercial items. The subcontracting goals established for a commercial plan shall include all indirect costs with the exception of those such as the following: Employee salaries and benefits; payments for petty cash; depreciation; interest; income taxes; property taxes; lease payments;
bank fees; fines, claims, and dues;
original equipment manufacturer relationships during warranty periods negotiated up front with the product;
utilities and other services purchased from a municipality or an entity solely authorized by the municipality to provide those services in a particular geographical region; and philanthropic contributions. Once a contractors commercial plan has been approved, the Government shall not require another subcontracting plan from the same contractor while the plan remains in effect, as long as the product or service being provided by the contractor continues to meet the definition of a commercial item. The contractor shall

19.7054

Amended
3. In section 19.7054 amend paragraph c, in the fourth sentence, by removing the phrase faith effort and adding the phrase faith effort see 19.7057 in its place.
4. Amend section 19.7056 by revising paragraphs g1, h, and i to read as follows:

19.7056 Postaward responsibilities of the contracting officer.

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g
1 Assess whether the prime contractor made a good faith effort to comply with its small business subcontracting plan. See 19.7057b for more information on the determination of good faith effort.

h Initiate action to assess liquidated damages in accordance with 19.7057
upon a recommendation by the administrative contracting officer, if one is assigned, or receipt of other reliable evidence to indicate that assessing liquidated damages is warranted.
i Take action to enforce the terms of the contract upon receipt of a notice from the contract administration office under 19.706f.

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5. Amend section 19.7057 by a. Revising the section heading;
b. In paragraph a i. Adding a paragraph heading;
ii. Removing the phrase small disadvantaged business and adding the phrase small disadvantaged business, in its place;
c. Revising paragraphs b, c, d, and e;
d. Adding a paragraph heading to the introductory text of paragraph f;
e. Removing paragraph g; and f. Redesignating paragraph h as paragraph f5.
The revisions and additions read as follows:

19.7057 Compliance with the subcontracting plan.

a General.
b Determination of good faith effort.
1 In determining whether a contractor failed to make a good faith effort to comply with its subcontracting plan, a contracting officer must look to the totality of the contractors actions, consistent with the information and assurances provided in its plan. The fact that the contractor failed to meet its subcontracting goals does not, in and of itself, constitute a failure to make a good faith effort see 19.701. For example, notwithstanding a contractors diligent effort to identify and solicit offers from any of the small business, veteranowned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and womenowned small business concerns, factors such as unavailability of anticipated sources or unreasonable prices may frustrate achievement of the contractors subcontracting goals. The contracting officer may consider any of the following, though not all inclusive, to be indicators of a good faith effort:
i Breaking out work to be subcontracted into economically feasible units, as appropriate, to facilitate small business participation.
ii Conducting market research to identify potential small business subcontractors through all reasonable means, such as searching SAM, posting notices or solicitations on SBAs SUBNet, participating in business matchmaking events, and attending preproposal conferences.
iii Soliciting small business concerns as early in the acquisition process as practicable to allow them sufficient time to submit a timely offer for the subcontract.
iv Providing interested small businesses with adequate and timely information about plans, specifications, and requirements for performance of the
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prime contract to assist them in submitting a timely offer for the subcontract.
v Negotiating in good faith with interested small businesses.
vi Directing small businesses that need additional assistance to SBA.
vii Assisting interested small businesses in obtaining bonding, lines of credit, required insurance, necessary equipment, supplies, materials, or services.
viii Utilizing the available services of small business associations; local, state, and Federal small business assistance offices; and other organizations.
ix Participating in a formal mentorprotege program with one or more small business proteges that results in developmental assistance to the proteges.
x Although failing to meet the subcontracting goal in one socioeconomic category, exceeding the goal by an equal or greater amount in one or more of the other categories.
xi Fulfilling all of the requirements of the subcontracting plan.
2 When considered in the context of the contractors total effort in accordance with its plan, the contracting officer may consider any of the following, though not all inclusive, to be indicators of a failure to make a good faith effort:
i Failure to attempt through market research to identify, contact, solicit, or consider for contract award small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, or women-owned small business concerns, through all reasonable means including outreach, industry days, or the use of Federal systems such as SBAs Dynamic Small Business Search or SUBNet systems.
ii Failure to designate and maintain a company official to administer the subcontracting program and monitor and enforce compliance with the plan.
iii Failure to submit an acceptable ISR, or the SSR, using the eSRS, or as provided in agency regulations, by the report due dates specified in 52.2199, Small Business Subcontracting Plan.
iv Failure to maintain records or otherwise demonstrate procedures adopted to comply with the plan including subcontracting flowdown requirements.
v Adoption of company policies or documented procedures that have as their objectives the frustration of the objectives of the plan.
vi Failure to pay small business subcontractors in accordance with the
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