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Federal Register / Vol. 86, No. 211 / Thursday, November 4, 2021 / Rules and Regulations and consolidation of contract requirements. FAR 7.1075b1
currently requires annual publication on the agency website of a list of bundled contracts and rationale, because section 1312 of Public Law 111240 requires it.
Thus, this rule could not mandate that all notifications be published on SAM
via the GPE.
Additionally, the FAR text is amended at 7.1075c and 7.1075d to require the Senior Procurement Executive or Chief Acquisition Officer to publish notifications of consolidation and substantial bundling of contract requirements in the GPE not later than 7 days after making such a determination and prior to issuance of the solicitation. The FAR does not use social media as a publication platform.
No changes were made to the FAR text as a result of this comment.

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4. Broader Applicability of Notice Requirement Comment: One respondent questioned why the required notification did not apply to all bundled procurements. The respondent further stated that the definition for substantial bundling should be referenced to provide guidance to the procurement office.
Response: This rule implements section 863 of the NDAA for FY 2016
Pub. L. 11492 and the SBA
implementing regulations, which require publication of notices when a procurement involves consolidation or substantial bundling of contract requirements. The definition for substantial bundling can be found at 7.1074a1. Neither section 863 nor the SBA regulations altered notification requirements for bundled procurements below the substantial bundling threshold; therefore, this final rule does not apply these requirements below the substantial bundling threshold.
5. Outside the Scope of the Rule Comment: One respondent questioned whether information is being withheld from the proposed rule. Another respondent stated that SBA
procurement center representatives often disagree with the bundling justification but sign form 2579 despite their opposition. The respondent further stated that small business subcontractors are not being utilized by large businesses given that there is no punishment for a large not subcontracting and no incentive for large businesses to comply with subcontracting goals beyond their initial proposal submission. Additionally, the respondent stated that bundling has been prohibited in Federal acquisition and recommends the following actions:

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Allow small businesses to be involved in the crafting of bundling efforts given that large businesses are involved in the crafting of the bundling effort; and Give SBA the power to do their jobs by allowing for a process for the procurement center representative to disagree with the bundling effort.
Response: The respondents comments are outside the scope of this FAR rule. The Councils note that FAR
19.5028 addresses the process for SBA
PCRs to appeal the contracting officers rejection of SBAs recommendation.
III. Applicability to Contracts at or Below the Simplified Acquisition Threshold SAT and for Commercial Items, Including Commercially Available Off-the-Shelf COTS Items This rule does not create new solicitation provisions or contract clauses or impact any existing provisions or clauses.
IV. Executive Orders 12866 and 13563
Executive Orders E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, this rule was not subject to review under section 6b of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
V. Congressional Review Act As required by the Congressional Review Act 5 U.S.C. 801808 before an interim or final rule takes effect, DoD, GSA, and NASA will send the rule and the Submission of Federal Rules Under the Congressional Review Act form to each House of the Congress and to the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register. The Office of Information and Regulatory Affairs OIRA in the Office of Management and Budget has determined that this is not a major rule under 5 U.S.C. 804.
VI. Regulatory Flexibility Act DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis FRFA consistent with the Regulatory
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Flexibility Act, 5 U.S.C. 601612. The FRFA is summarized as follows:
This rule is necessary to implement section 863 of the National Defense Authorization Act for 2016 Pub. L. 11492, codified at 15
U.S.C. 644e3 and 15 U.S.C. 657qc2, and the Small Business Administration SBA implementing regulations. Section 863
requires the head of a contracting agency to publish a notice on a public website within 7 days of making the determination that an acquisition plan involves a substantial bundling of contract requirements.
Additionally, section 863 requires the senior procurement executive or chief acquisition officer to publish a notice on a public website that consolidation of contract requirements is necessary and justified. For substantial bundling and for consolidation, the agency may not issue the solicitation any earlier than 7 days after publication of the notices described above. The agency must also publish the justification along with the solicitation. The objective of this rule is to amend the FAR to require that a notice of substantial bundling or of a notice of consolidation be published on the Governmentwide Point of Entry, as required in the SBA final rule. This section also contains references to the required content of the consolidation determination at FAR
7.1072 and the substantial bundling determination at FAR 7.1074.
No public comments were received in response to the initial regulatory flexibility analysis.
This rule may have a positive economic impact on any small entity that is interested in participating in Federal procurement. By posting justifications and notices of upcoming procurements that are planned to be substantially bundled or consolidated, small business concerns are made aware of potential subcontracting opportunities and possibilities for participating in joint ventures or small business teaming arrangements, which will help small businesses increase their competitiveness.
The System for Award Management shows 315,655 entities that are small business concerns under at least one North American Industry Classification System code.
This rule does not include any new reporting, recordkeeping, or other compliance requirements for any small entities.
There are no known significant alternative approaches to the rule that would meet the stated objectives of the applicable statute.

Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of SBA.
VII. Paperwork Reduction Act This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act 44 U.S.C.
35013521.

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