Subpart 18-16.9 of this chapter. cordingly, each NASA procurement office shall, when soliciting bids or proposals, state the applicable small business size standard (or standards in the case where more than one item is being procured and two or more industries with different size standards are involved) and request from any bidder or offeror, a statement as to whether such bidder or offeror meets the prescribed size standard(s). § 18-1.703

Determination of status as

small business concern.

(a) Except as provided in paragraph (b) of this section, the contracting officer shall accept at face value, for the particular procurement involved, a statement by the bidder or offeror that he is a small business concern (see §§ 181.701-1 and 1.701-4).

(b) Statements by a bidder or offeror that he is a small business concern shall be effective, even though questioned in accordance with the terms of this paragraph (b), unless the SBA, in response to such question and pursuant to the procedures in subparagraph (3) of this paragraph, determines that the bidder or offeror in question is not a small business concern. The controlling point in time for a determination concerning the size status of a questioned bidder or offeror shall be the date of award, except that no bidder or offeror shall be eligible for award as a small business concern unless he has in good faith represented himself as small business prior to the opening of bids or closing date for submission of offers (see § 18-2.405 of this chapter with respect to minor informalities and irregularities in bids).

(1) Any responsive bidder or offeror may, prior to award, question the small business status of the apparently successful bidder or offeror by sending a written protest to the contracting officer. The contracting officer shall forward the protest to the SBA Regional Office for the region in which the questioned bidder or offeror has his principal place of business. SBA will promptly notify the contracting officer of the date of its receipt of any such protest and will advise the questioned bidder or offeror that his small business status is under review.

(2) A contracting officer may, prior to award, question the small business status

(3) The SBA will determine the small business status of the questioned bidder or offeror and notify the contracting officer and the bidder or offeror of its decision. If the SBA determination is not received by the contracting officer within 10 workdays after the SBA's receipt of the protest or notice questioning small business status, it shall be presumed that the questioned bidder or offeror is a small business concern. This presumption will not be used as a basis for making an award to the questioned bidder or offeror without first ascertaining when a size determination can be expected from the SBA, and, where practicable, waiting for such determination, unless further delay in award would be disadvantageous to the Government. Pending SBA determination or expiration of the 10-day period, whichever is earlier, procurement action shall be suspended: Provided, That such 10-day suspension period shall not apply to any urgent procurement action which, as determined by the contracting officer, must, in order to protect the public interest, be awarded without delay and as to which he inserts in the contract file a statement signed by him justifying this determination.

(4) Any prospective bidder or offeror may, prior to the opening of bids or closing date for submission of offers, question the validity of the small business size standard established for the proposed procurement by sending a written protest to the contracting officer and to the SBA Regional Office servicing the area in which the procurement office is located. SBA will promptly notify the contracting officer of the date of its receipt of any such protest. SBA will determine the current small business size standard applicable to the procurement and notify the contracting officer and the bidder or offeror of its decision.

If the SBA determination is not received by the contracting officer within 5 workdays after SBA's receipt of the protest questioning the validity of the small business size standard, it shall be presumed that the contracting officer's initial determination was correct. In the event that the SBA small business size determination differs from that originally made by the contracting officer, the bid (proposal) shall be appropriately amended to reflect such determination. When the SBA determination also results in a higher small business

form such other functions as he is specifically directed to perform by this Subpart 18-1.7 or which the Procurement Officer may prescribe for the purpose of implementing the small business program. When the Director of a field installation considers that the volume of procurement or the functions relating to procurement at the installation does not warrant a full-time small business specialist, he may assign such duties to procurement personnel on a part-time basis.

licized and the opening of bids and closing date for submission of offers extended to permit competition from additional eligible small business sources. Pending SBA determination or expiration of the 5-day period, whichever is earlier, procurement action shall be suspended provided that such 5-day suspension period shall not apply to any urgent procurement action which, as determined by the contracting officer, must, in order to protect the public interest, be awarded without delay and as to which he inserts in the contract file a statement signed by him justifying this determination.

Business Administration.

§ 18-1.705-1

General.

All NASA procurement offices are responsible for consulting and cooperating with the SBA in carrying out the purposes of the Small Business Act.

§ 18-1.705-2 Small Business Administration representatives.

The SBA may assign one or more representatives on a full or part-time basis to any NASA procurement office to act in its behalf in carrying out SBA responsibilities under the Small Business Act, as amended.

§ 18-1.705-3 Screening of procure

ments.

The SBA for security

(a) Individual set-asides. representatives (cleared where classified procurements are to be screened) shall, upon request, promptly be afforded an opportunity at the procurement office to review all proposed procurements for the purpose of recommending set-asides if it is anticipated that the resulting contract or contracts will exceed $2,500 unless, in the case of procurements which are not expected to determines that such review would unexceed $10,000, the procurement officer duly delay the procurement process. A copy of the determination and the justification therefor shall be furnished to the SBA representative. Where it is anticipated that the resulting contract or contracts will exceed $2,500, such SBA representative shall, upon request, promptly be afforded an opportunity to make recommendations concerning proposed procurements, including that they be exclusively or partially set aside for small business concerns. The contracting officer shall afford the SBA repre

sentative an opportunity to recommend, within a reasonable time, appropriate names of small business concerns for inclusion in lists of bidders for firms to be solicited in connection with current and future procurements.

(b) Class set-asides. (1) The SBA representatives shall be afforded an opportunity to make recommendations that current and future procurements, or portions thereof, of selected items or services, or groups of like items or services, shall be set aside as provided in § 18-1.706, for exclusive small business participation. Such set-asides, when approved by the contracting officer, shall be known as class set-asides. Concurrence in a class set-aside shall not be dependent upon the existence of a current procurement if future procurements can be clearly foreseen.

(2) The SBA representatives, upon request, shall be furnished such available or reasonably obtainable information as may be required for the SBA to determine whether or not to recommend a class set-aside.

(c) When no SBA representative is available to screen proposed procurements, the small business specialist is responsible for making appropriate recommendations to the contracting officer that procurements be set aside for small business concerns.

Upon request, and subject to applicable security regulations, SBA representatives will be given access to available or reasonably obtainable information, including technical data (including drawings and specifications), procurement history, bidders lists, and planned requirements immediately upon receipt by the procurement office. The SBA representative will be furnished such other available or reasonably obtainable information as may be required for the SBA referral program.

§ 18-1.705-5 Joint SBA-NASA small business class set-aside for construction, repair and alteration work.

A joint class set-aside for small business is considered to have been made for each proposed procurement for construction, repair and alteration work in an estimated amount ranging from $2,500

to $500,000. Accordingly, the contracting officer shall set aside for small business each such proposed procurement. If, in his judgment, the particular procurement falling within the dollar limits specified in this section is unsuitable for a set-aside for exclusive small business participation, he shall notify the appropriate SBA representative of this decision. Unless SBA appeals the decision, pursuant to the provisions of § 18-1.7062, the contracting officer shall proceed to process the procurement on an unrestricted basis. Proposed procurements for construction, repair and alteration work in an estimated amount of more than $500,000 shall be processed on a case-by-case basis pursuant to § 181.705-3(a).

§ 18-1.705-6 Certificates of competency.

(a) The SBA has statutory authority to certify the competency of any small business concern as to capacity and credit. "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, "know-how," technical equipment, and facilities. Contracting officers shall accept SBA certificates of competency as conclusive of a prosspective contractor's responsibility as to capacity (see § 18-1.903-1(d)) and credit (see § 18-1.903-1(b)), unless the contracting officer has substantial doubts as to the firm's ability to perform, in which case he shall, prior to award, promptly refer the matter through normal channels to the Director of Procurement, including all supporting facts and an indication of the degree of urgency of the proposed award. In such cases, the SBA may be requested to consider the withdrawal of the certificate and, in any event, the contracting officer will be informed by the Director of Procurement of the final decision.

(b) If a small business concern has submitted an otherwise acceptable bid or proposal but has been found by the contracting officer to be nonresponsible as to capacity or credit and, if the bid or proposal is to be rejected for this reason alone, (1) the contracting officer shall notify the SBA of the circumstances so

as to permit it to issue a certificate of compentency, and (2) award shall be withheld pending either SBA action concerning issuance of a certificate of competency or the expiration of 15 workdays after the SBA is so notified, whichever is earlier, subject to the following:

(i) This procedure is not mandatory where the contracting officer certifies in writing that award must be made without delay and promptly advises the SBA representative thereof, and includes in the contract file a statement signed by him which justifies the certificate. copy of the statement shall be furnished to the SBA representative.

A

(ii) This procedure does not apply to proposed awards of not more than $2,500. (iii) This procedure is optional, within the discretion of the contracting officer, as to proposed awards of more than $2,500, but less than $10,000.

(iv) This procedure does not apply where the contracting officer has found a small business concern nonresponsible for a reason other than lack of capacity of credit. Thus, it does not apply where a concern does not satisfy the criteria of responsibility in § 18-1.903–1 (a), (f), (g), and (h). Where the contracting officer determines that a concern does not meet the requirements of § 18–1.903–1(e) as to a satisfactory record of performance, the procedure is mandatory only if the unsatisfactory record of performance was due solely to inadequate capacity or credit. However, 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, the matter shall be discussed with the local SBA representative. If the local SBA representative is of the opinion that the unsatisfactory record of performance is attributable solely to a lack of capacity or credit, and the contracting officer disagrees, the contracting officer shall forward the matter to the Director of Procurement for resolution and final decision. The contracting officer will be informed of the final decision by the Director of Procurement. To assist the SBA in determining the capacity and credit of small business concerns involved in a particular procurement, the procurement office shall make available to the 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) In procurements where the highest competence obtainable or the best scientific approach is needed, such as in certain negotiated procurements of research and development, highly complex equipment, or personal or professional services, the certificate of competency procedure is not applicable to the selection of the source offering the highest competence obtainable or the best scientific approach. 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 (b) of this section is applicable.

§ 18-1.705-7 Performance of contract by Small Business Administration.

In accordance with section 8a of the Small Business Act (15 U.S.C. 637(a)), in any case in which the Administrator, SBA, certifies to the Administrator, NASA, that the SBA is competent to perform any specific contract, the contracting officer is authorized, in his discretion, to award the contract to the SBA upon such terms and conditions, consistent with these regulations, as may be agreed upon between the SBA and the contracting officer.

§ 18-1.706 Set-asides for small business. General. § 18-1.706–1

Subject to any applicable preference for labor surplus area set-asides, any individual procurement or class of procurements or an appropriate part thereof shall be set aside for the exclusive participation of small business concerns when such action is (a) jointly determined by a Small Business Administration representative and the contracting officer upon the initiation of either agency, or (b), if no SBA representative is available, is unilaterally determined by the contracting officer to be in the interest of maintaining or mobilizing the Nation's full productive capacity, or in

the interest of assuring that a fair proportion of Government procurement is placed with small business concerns. Insofar as practicable, joint determinations shall be used as a basis for setasides rather than unilateral determinations; but the impracticability of obtaining a joint determination should not be treated as an obstacle to making a setaside based on a unilateral determination in an otherwise appropriate case. § 18-1.706-2 Review of Small Business

Administration set-aside proposals.

(a) (1) Upon the recommendation of a SBA representative that an individual procurement or class of procurements, or portions thereof, be set aside for small business, the contracting officer shall promptly either (i) concur in the recommendation, or (ii) disapprove the recommendation, stating in writing his reasons for disapproval. The SBA representative shall be allowed 2 workdays to appeal any such disapproval to the Director of the field installation involved or his designee for decision. During consideration of such appeal there shall be full and free interchange of all pertinent facts between the SBA representative and the procurement office concerned. Within 1 workday after receipt of a decision of the Director of the field installation or his designee disapproving a recommended set-aside, the SBA representative may request the contracting officer to suspend any procurement action affected by the recommended set-aside pending a further appeal by the Administrator, SBA, to the Administrator, NASA, for determination. The SBA shall be allowed 7 workdays after making any such request within which (a) the Administrator of SBA may appeal the decision of the Director of the field installation or his designee to the Administrator, NASA, and (b) to notify the contracting officer whether such an appeal has in fact been taken. If such notification is not received by the contracting officer within the 7-day period, it shall be deemed that the SBA request to suspend procurement action has been withdrawn and that no appeal to the Administrator, NASA, was taken. When an appeal to the Administrator, NASA, has been taken and the contracting officer has been notified of that fact

within the 7-day period, the Director of the field installation shall forward to the Administrator, NASA, via the Director of Procurement, a full justification of his decision.

(2) Any procurement action affected by a set-aside recommendation which has been disapproved by the contracting officer and appealed by the SBA representative shall be suspended pending the decision of the Director of the field installation or his designee. If the decision sustains the disapproval and if the SBA representative requests further suspension in accordance with subparagraph (1) of this paragraph, the suspension shall continue until (i) the SBA appeal is deemed to have been withdrawn (as provided in subparagraph (1) of this paragraph) or (ii) the matter is determined by the Administrator, NASA: Provided, That such suspension shall not apply to any particular procurement action which, as determined by the contracting officer, must, in order to protect the public interest, be initiated without delay and as to which he inserts in the contract file a statement signed by him setting forth the facts and circumstances justifying the determination. The contracting officer shall promptly notify the SBA representative of any procurement action initiated pursuant to the proviso of the preceding sentence by supplying him with a copy of the justification.

(b) None of the following is, in itself, sufficient cause for not making a setaside:

(1) A large percentage of previous procurements of the item in question has been placed with small business concerns;

(2) The item to be purchased is on a Qualified Products List except that a total set-aside shall not be authorized when the products of one or more large businesses are on the Qualified Products List (unless it has been confirmed that none of such large businesses desire to participate in the procurement);

(3) A period of less than 30 days from the date of issuance of the invitation for bids or request for proposals is prescribed for the submission of bids or proposals;

(4) The procurement is classified; (5) Small business concerns are receiving a fair proportion of the total contracts for supplies or services;