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by conventional negotiation or by a special method of procurement known as “Small Business Restricted Advertising.” Whenever possible, the small business restricted advertising method, as defined in § 1-1.701–9, shall be used. Invitations for bids and requests for proposals involving total small business set-asides shall be restricted to small business concerns. Bids received from firms which do not qualify as small business concerns shall be considered nonresponsive and shall be rejected.

(c) In procurements involving total set-asides for small business, each invitation for bids or request for proposals shall contain the following notice. The applicable small business size standard shall be set forth in the schedule. NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE

(a) Restriction. Bids or proposals under this procurement are solicited from small business concerns only and this procurement is be awarded only to one or more small business concerns. This action is based on a determination by the Contracting Officer, alone or in conjunction with a representative of the Small Business Administration, that it is in the interest of maintaining or mobilizing the Nation's full productive capacity, in the interest of war or national defense programs, or in the interest of assuring that a

proportion of Government procurement is placed with small business concerns. Bids or proposals received from firms which are not small business concerns shall be considered nonresponsive.

(b) Definition. A "small business concern” is a concern, including its affiliates, which is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts, and can further qualify under the criteria set forth in regulations of the Small Business Administration (13 CFR 121.3-8). In addition to meeting these criteria, a manufacturer or a regular dealer submitting bids or proposals in his own name must agree to furnish in the performance of the contract end items manufactured or produced in the United States, its possessions, or Puerto Rico, by small business concerns: Provided, That this additional requirement does not apply in connection with construction or service contracts. 129 F.R. 10104, July 24, 1964, as amended at 30 F.R. 9591, July 31, 1965) § 1-1.706–6 Partial set-asides.

(a) General. Subject to the conditions set forth in § 1-1.706–1, a portion of a procurement shall be set aside for exclusive small business participation where

(1) The procurement is not appropriate for total set-aside pursuant to § 1-1.706-5;

(2) The procurement is severable into two or more economic production runs or reasonable lots; and

(3) One or more small business concerns are expected to have the technical competence and productive capacity to furnish a severable portion of the procurement at a reasonable price.

Similarly, a class of procurements (including but not limited to contracts for maintenance, repair, and construction) may be partially set aside in accordance with § 1-1.706–2(c).

(b) Dividing the procurement. Where a portion of a procurement is to be set aside for small business pursuant to (a) of this § 1-1.706-6, the procurement shall be divided into a set-aside portion and a non-set-aside portion, each of which shall be not less than an economic production run or reasonable lot. Insofar as practicable, the set-aside portion will be such as to make maximum use of small business capacity. Delivery and other terms applicable to the set-aside portion of an item and those applicable to the non-set-aside portion of that item shall be comparable.

(c) Notice. Invitations for bids or requests for proposals involving partial set-asides pursuant to this subpart shall contain a notice substantially as set forth in this paragraph. The applicable small business size standard shall be set forth in the schedule. NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE

(a) General. A portion of this procurement, as identified elsewhere in the Schedule, has been set aside for award only to one or more small business concerns. Negotiations for award of this set-aside portion will be conducted only with responsible small business concerns who have submitted responsive bids on the non-set-aside portion at a unit price within 120 percent of the highest award made on the non-set-aside portion. Negotiations shall be conducted with such small business concerns in the following order of priority:

Group 1. Small business concerns which are also certified-eligible concerns.

Group 2. Small business concerns which are also persistent labor surplus area concerns.

Group 3. Small business concerns which are also substantial labor surplus area concerns.

Group 4. Small business concerns which are not labor surplus area concerns.

Within each of the above groups, negotiations with such concerns will be in the order

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of their bids on the non-set-aside portion, beginning with the lowest responsive bid. The set-aside shall be awarded at the highest unit price awarded on the non-set-aside portion, adjusted to reflect transportation and other cost factors which were considered in evaluating bids on the non-set-aside portion. However, the Government reserves the right not to consider token bids or other devices designed to secure an unfair advantage over other bidders eligible for the set-aside portion. The partial set-aside of this procurement for small business concerns is based on a determination by the contracting Officer, alone or in conjunction with a representative of the Small Business Administration, that it is in the interest of maintaining or mobilizing the Nation's full productive capacity, or in the interest of war or national defense programs, or in the interest of assuring that a fair portion of Government procurement is placed with small business concerns.

(b) Definitions. (1) A "small business concern" is a concern, including its affiliates, which is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts, and can further qualify under the criteria set forth in regulations of the Small Business Administration (13 CFR 121.3–8). In addition to meeting these criteria, a manufacturer or a regular dealer submitting bids or proposals in his own name must agree to furnish in the performance of the contract end items manufactured or produced in the United States, its possessions, or Puerto Rico, by small business concerns: Provided, That this additional requirement does not apply in connection with construction or service contracts.

(2) The term "labor surplus area" means a geographical area which is either a section of concentrated unemployment or underemployment, a persistent labor surplus area, or a substantial labor surplus area, as defined below:

(1) "Section of concentrated unemployment or underemployment” means appropriate sections of States or "labor areas" so classified by the Secretary of Labor.

(ii) "Persistent labor surplus area" means an area which (A) is classified by the Department of Labor as an “Area of Substantial and Persistent Labor Surplus" (also called “Area of Substantial and Persistent Unemployment”) and is listed as such by that Department in conjunction with its publication “Area Trends in Employment and Unemployment," or (B) is certified as an area of substantial and persistent labor surplus by the Department of Labor pursuant to a request by a prospective contractor.

(iii) “Substantial labor surplus area” means an area which (A) is classified by the Department of Labor as an “Area of Substantial Labor Surplus" (also called "Area of Substantial Unemployment") and which is listed as such by that Department in conjunction with its publication "Area Trends in Employment and Unemployment,” or (B)

is certified as an area of substantial labor surplus by the Department of Labor pursuant to a request by a prospective contractor.

(3) The term "labor surplus area concern" includes certified-eligible concerns, persistent labor surplus area concerns, and substantial labor surplus area concerns, as defined below:

(i) "Certified-eligible concern" means a concern located in or near a section of concentrated unemployment or underemployment which has been certified by the Secretary of Labor in accordance with 29 CFR 8.7 (b) with respect to employment of disadvantaged persons residing within such sections, and which will agree to perform, or cause to be performed by a certified concern, a substantial proportion of a contract in or near such sections; it includes a concern which, though not so certified, agrees to have a substantial proportion of a contract performed by certified concerns in or near such sections. A concern shall be deemed to perform a substantial proportion of a contract in or near sections of concentrated unemployment or underemployment if the costs that the concern will incur on account of manufacturing or production in or near such sections (by itself, if a certified concern, or by certified concerns acting as first-tier subcontractors) amount to more than 30 percent of the contract price.

(ii) "Persistent labor surplus area concern" means a concern that agrees to perform, or cause to be performed, a substantial proportion of a contract in persistent labor surplus areas. A concern shall be deemed to perform a substantial proportion of a contract in persistent labor surplus areas if the costs that the concern will incur on account of manufacturing or production performed in such areas (by itself or its first-tier subcontractors) amount to more than 50 percent of the contract price.

(iii) "Substantial labor surplus area concern” means a concern that agrees to perform, or cause to be performed, a substantial proportion of a contract in substantial labor surplus areas. A concern shall be deemed to perform a substantial proportion of a contract in substantial labor surplus areas if the costs that the concern will incur on account of manufacturing or production performed in substantial and persistent labor surplus areas (by itself or its first-tier subcontractors) amount to more than 50 percent of the contract price.

(c) Identification of Areas of Performance. Each bidder desiring to be considered for award as a small business labor surplus area concern on the set-aside portion of this procurement shall identify in his bid the geographical areas in which he proposes to perform, or cause to be performed, a substantial proportion of the production of the contract. If the Department of Labor classification of any such area changes after the bidder has submitted his bid, the bidder may change the areas in which he proposes to perform: Provided, That he so notifies the ing Officer before award of the set-aside por

tion. Priority for negotiation will be based upon the labor surplus classification of the designated production areas as of the time of the proposed award.

(d) Eligibility Based on Certification. Where eligibility for preference is based upon the status of the bidder, or bidder's subcontractors, as a "certified-eligible concern,” the bidder shall furnish with his bid evidence of certification by the Secretary of Labor.

(e) Agreement. The bidder agrees that: (1) If awarded a contract as a certifiedeligible concern under the set-aside portion of this procurement, he will perform. or cause to be performed, a substantial proportion of the contract in or near sections of concentrated unemployment or underemployment, and in the performance of such contract will employ, or require certified subcontractors to employ, a proportionate number of disadvantaged persons residing within sections of concentrated unemployment or underemployment in accordance with plans approved by the Secretary of Labor;

(2) If awarded a contract as a persistent labor surplus area concern under the setaside portion of this procurement, he will perform, or cause to be performed, a substantial proportion of the production in areas classified at the time of award, or at the time of performance of the contract, as persistent labor surplus areas; and

(3) If awarded a contract as a substantial labor surplus area concern under the set-aside portion of this procurement, he will perform, or cause to be performed, a substantial proportion of the production in areas, classified at the time of award, or at the time of performance of the contract, as substantial or persistent labor surplus areas.

. (End of Notice) (d) (Reserved]

(e) Award procedures-(1) Awarding the non-set-aside portion. Awards of the non-set-aside portion shall be made in accordance with normal procurement procedures.

(2) Awarding the set-aside portion. After all awards have been made on the non-set-aside portion, award of the setaside portion shall be effected by negotiation with eligible concerns as provided in the applicable Notice used. If equal low bids were received on the non-setaside portion from concerns which are equally eligible for the set-aside portion, the concern which is awarded the nonset-aside portion (under the equal low bid procedures of § 1-2.407-6) shall have first priority with respect to negotiations for the set-aside portion. (29 F.R. 10104, July 24, 1964, as amended at

ded at 30 F.R. 9591, July 31, 1965; 30 F.R. 16110, Dec. 28, 1965; 32 F.R. 18045, Dec. 16, 1967]

§ 1-1.706–7 Automatic dissolution of

set-asides. If the entire set-aside portion is not procured by the method set forth in § 1-1.706-5, as to total set-asides, or $ 1–1.706–6, as to partial set-asides, the determination referred to in § 1-1.706-1 is automatically dissolved as to the unawarded portion of the set-aside and such unawarded portion may be procured by advertising or negotiation, as appropriate, in accordance with applicable regulations. 8 1-1.706–8 Contract authority.

(a) Joint small business set-asides. Contracts resulting from either total or partial joint small business set-asides (see § 1-3.215), whether entered into by conventional negotiation or by Small Business Restricted Advertising, shall cite as legal authority for negotiation section 302(c) (15) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 252(c) (15)), the revised Armed Services Procurement Act of 1947 (10 U.S.C. 2304 (a) (17)), or other applicable proper authority, together with section 15 of the Small Business Act.

(b) Unilateral small business setasides. Contracts resulting from unilateral small business set-asides shall cite the applicable legal authority for negotiation (see $1–3.201). § 1-1.707 (Reserved] § 1-1.708 Certificate of competency

program. § 1-1.708_1 General.

Pursuant to authority of the Small Business Act (15 U.S.C. 637(b) (7)), SBA is empowered to certify to Government procurement officers the competency as to capacity and credit of any small business concern or group of such concerns to perform a specific Government contract. As used in this section, “capacity" means the overall ability of a prospective small business contractor to meet quality, quantity, and time requirements of a proposed contract and includes ability to perform, organization, experience, technical knowledge, skills, "knowhow,” technical equipment, and facilities. § 1-1.708-2 Applicability and proce

dure. (a) If a small business concern has submitted an otherwise acceptable bid or proposal but has been found by the contracting officer not to be responsible

as to capacity or credit, and if the bid or proposal is to be rejected for this reason alone, SBA shall be notified of the circumstances so as to permit it to issue a certificate of competency. If a partial set-aside is involved and the bid of a small business concern on the unreserved portion is to be rejected for lack of capacity or credit and the same small business concern is entitled to consideration on the reserved portion of the set-aside if a certificate of competency is issued by SBA, the entire quantity of the procurement (reserved and unreserved) for which that small business concern may be entitled, if competent, shall be referred to SBA and the referral papers so noted, in which event SBA may certify the small business concern for the maximum in quantity for which it is eligible under the procurement. The award shall be withheld pending either SBA issuance of a certificate of competency or the expiration of 15 working days after SBA is so notified, whichever is earlier, subject to the following:

(1) This procedure is not mandatory where award must be made without delay and the contracting oficer includes in the contract file a statement signed by him which justifies immediate action. A copy of the statement shall be furnished the SBA representative.

(2) This procedure does not apply to proposed awards of less than $2,500.

(3) This procedure is optional, within the discretion of the contracting offi cer, as to proposed awards of more than $2,500, but less than $10,000.

(4) This procedure does not apply where the contracting officer has found a small business concern not to be responsible for a reason other than lack of capacity or credit.

(5) A determination by a contracting officer that a small business concern is not responsible for reasons other than deficiencies in capacity or credit (e.g., lack of integrity, business ethics, or persistent failure to apply necessary tenacity or perseverence to do an acceptable job) must be supported by substantial evidence documented in the contract file.

(6) If the contracting officer has any doubt as to whether the unsatisfactory record of performance can reasonably be attributed solely to lack of capacity or credit, he shall forward the matter to higher authority within his agency for resolution. The decision of such higher authority shall be final.

(b) To assist SBA in determining the capacity and credit of small business concerns involved in a particular procurement, the procurement agency shall at the time of notification make availa able to SBA all pertinent technical and financial information with respect to the small business concern involved, including but not limited to copies of the invitation for bids or request for proposals, drawings, specifications, preaward surveys, and abstracts of bids.

(c) Nothing in this section shall be construed to prevent a contracting officer from selecting, in the first instance, the source of supply offering the highest competence obtainable or the best scientific approach where such source is needed in certain negotiated procurements of research and development, highly complex equipment, or personal or professional services. However, if a small business concern has been selected on the basis of the highest competence obtainable or best scientific approach and, prior to award, the contracting officer determines that the concern is not responsible because of lack of capacity or credit, the certificate of competency procedure in paragraph (a) of this $ 1-1.708–2 is applicable.

(d) If the contracting officer learns, after referral of a negative finding as to capacity or credit, that an SBA regional office is planning to issue a certificate of competency or to refer the application therefor to the SBA Central Office, Washington, D.C., the contracting officer should ask the local office of SBA if there are new or additional facts in the case. If these facts warrant, the contracting officer should consider a reversal of his negative finding. Every effort should be made to resolve the differences between SBA and the contracting agency through a complete exchange of preaward information. [30 F.R. 9591, July 31, 1965) $ 1-1.708–3 Conclusiveness of certifi.

cate of competency. As provided in the Small Business Act (15 U.S.C. 637(b) (7)), procurement agencies are required to accept SBA certificates of competency as conclusive of a prospective contractor's responsibility as to capacity and credit. However, if the contracting officer has substantial doubt as to the firm's ability to perform, he shall, before award, promptly refer the matter to higher authority within the agency in accordance

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with procedures of the agency concerned.
In cases referred to higher authority,
SBA may be requested to consider with-
drawal of the certificate and, in any
event, the contracting officer will be
informed of the final decision in the
matter.
8 1-1.709 Records and reports.

Executive agencies shall maintain rec-
ords of the value of procurement con-
tracts placed with small business con-
cerns. Accordingly, each procuring
activity shall, in soliciting bids, or
proposals, request from any bidder or
offeror any information needed to deter-
mine whether the bidder or offeror is a
small business concern (when Standard
Forms 18, 19-B, and 33 are used, this in
formation is available from the small
business representation included on
these forms). Agencies shall summarize
and report such procurement data on
Standard Form 37 (Report on Procure-
ment by Civilian Executive Agencies) in
accordance with $ 1-16.804.
(31 F.R. 5880, Apr. 16, 1966]
§ 1-1.710 Subcontracting with small

business concerns. § 1-1.710_1 General.

(a) It is the policy of the Government to enable small business concerns to be considered fairly as subcontractors and suppliers to contractors performing work or rendering services as prime contractors or subcontractors under Government procurement contracts, and to assure that prime contractors and subcontractors having small business subcontracting programs will consult through the appropriate procuring agency with the Small Business Administration when requested by SBA. However, the Small Business Administration is not authorized to prescribe the extent to which any contractor or subcontractor shall subcontract or specify the concerns to which subcontracts shall be granted, and is not vested with authority respecting the administration of individual prime contracts or subcontracts. (See § 1-1.805 for subcontracting poli. cies with respect to labor surplus area concerns.)

(b) This § 1-1.710 sets forth the program for furtherance of this policy and, together with Subpart 1-3.9, prescribes the contract clauses and procedures for use in carrying out the small business subcontracting program.

(c) As used in this Subpart 1-1.7, the term subcontractor includes a supplier and applies at any level of performance of the contract; and the term subcontract includes a purchase order. § 1-1.710–2 Small business subcontract

ing program. The Government's small business subcontracting program requires Government prime contractors to assume an affirmative obligation with respect to subcontracting with small business concerns. In contracts which range from $5,000 to $500,000, the contractor undertakes the obligation of accomplishing the maximum amount of small business subcontracting which is consistent with the efficient performance of the contra This undertaking is set forth in the contract clause prescribed in § 1-1.710–3(a). In contracts which may exceed $500.000. the contractor is required, pursuant to the clause set forth in § 1-1.710–3(b), to undertake a number of specific responsibilities designed to assure that small business concerns are considered fairly in the subcontracting role and to impose similar responsibilities on major subcontractors. (The liaison officer required by the latter clause may also serve as liaison officer for labor surplus area matters.) § 1-1.710–3 Required clauses.

(a) The Utilization of Small Business Concerns clause, set forth in this § 1-1.710–3, shall be included in all contracts in amounts which may exceed $5,000 except (1) contracts which, including all subcontracts thereunder, are to be performed entirely outside the United States, its possessions, and Puerto Rico, and (2) contracts for services which are personal in nature: UTILIZATION OF SMALL BUSINESS CONCERNS

(a) It is the policy of the Government as declared by the Congress that a fair proportion of the purchases and contracts for supplies and services for the Government be placed with small business concerns.

(b) The Contractor agrees to accomplish the maximum amount of subcontracting to small business concerns that the Contractor finds to be consistent with the efficient performance of this contract.

[End of Clause) (b) The Small Business Subcontracting Program clause, set forth in this $ 1-1.710–3, shall be included in all contracts which may exceed $500,000, which contain the clause required by § 1-1.710–3

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