I. Background

DoD, GSA, and NASA are issuing an interim rule amending the FAR, to implement section 1347 of the Small Business Jobs Act of 2010 (Pub. L. 111-240). Section 1347 changed the word ''shall'' to ''may'' at section 31(b)(2)(B) of the Small Business Act (15 U.S.C. 657a(b)(2)(B)). This interim rule makes similar changes to the FAR, ensuring that the FAR clearly reflects the statutory relationship among the small business programs and eliminates any confusion on the part of contracting officers or others.

DoD, GSA, and NASA published a proposed rule under FAR Case 2006-034 in the Federal Register at 73 FR 12699, March 10, 2008, which would have amended the FAR to clearly reflect the Small Business Administration's (SBA) interpretation of the Small Business Act and its agency regulations that no order of precedence applies when the contracting officer considers satisfying a requirement through an award to a HUBZone small business concern, a SDVOSB concern, or a small business participating in the 8(a) Program. The proposed rule was closed due to the Government Accountability Office's and the Court of Federal Claims' interpretation of the Small Business Act to require acquisitions to be set aside for HUBZone small businesses before setting aside acquisitions for other small business programs. See Mission Critical Solutions v. U.S., 91 Fed. Cl. 386 (2010), and B-401057.

This rule does not address the women-owned small businesses and their relationship to the other small business programs. FAR Case 2010-015, Women-Owned Small Business Program, will be published as an interim rule with request for comments to implement the SBA's Women-owned Small Business (WOSB) Federal Contract Program final rule, (75 FR 62258, October 7, 2010), which became effective on February 4, 2011. SBA's rule provides parity for WOSBs with SBA's other small business contracting programs.