§ 18-1.605-2 Authority in NASA to suspend firms or individuals.

(a) The Administrator may, in the interest of the Government, suspend a firm or individual for any of the causes set forth in § 18-1.605-3.

(b) The Director of Procurement, as an authorized representative of the Administrator, is authorized to suspend in the interest of the Government a firm or individual for any of the causes set forth in § 18-1.605-3, except for paragraph (b) thereof, in accordance with the procedures set forth in this subpart.

§ 18-1.605-3 Causes for suspension.

A firm or individual may be suspended, whenever such suspension is determined to be in the interest of the Government, for the following causes:

(a) Whenever the firm or individual is suspected of

(1) Commission of fraud or a criminal offense as an incident to obtaining, attempting to obtain, or in the performance of a public contract;

(2) Violation of the Federal antitrust statutes arising out of the submission of bids and proposals; or

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which seriously and directly affects the question of present responsibility as a Government contractor.

(b) Any other causes of such serious and compelling nature as may be determined to justify suspension: Provided, That no firm or individual shall be suspended for failure to comply with the Equal Opportunity clause set forth in § 18-12.804(a), or the Equal Opportunity (Federally Assisted Construction) (Applicant) clause set forth in § 18-12.804 (b); except as prescribed under § 1812.813-2.

[37 FR 14922, July 26, 1972]

§ 18-1.605-4

pension.

Period and scope of sus

(a) Period of suspension. All suspensions made by NASA shall be for a temporary period pending the completion of investigations and such legal proceedings as may ensue.

(1) In the event a firm or individual is suspended for any cause set forth in

§ 18–1.605–3 (a) and prosecutive action is not initiated by the Department of Justice within 12 months from the date of the notice of suspension, the suspension shall be terminated unless an Assistant Attorney General requests continuation of the suspension. If such a request is received, the suspension may be continued for an additional 6 months. Notice of the proposed removal of the suspension shall be given to the Department of Justice 30 days prior to the expiration of the 12-month period. In no event shall suspension continue beyond 18 months unless prosecutive action has been initiated within that period. Where prosecutive action is initiated, the suspension may continue until legal proceedings are completed.

(2) In the event a firm or an individual is suspended by the Administrator for any cause in accordance with § 18-1.605-3 (b), the period of suspension shall not exceed 90 days. The period of suspension may be extended for additional periods of 90 days upon a determination by the Administrator of the reasons and necessity therefor. However, in no event shall the total of any suspension under this § 18-1.605-4 exceed 1 year or be in addition to any period of suspension under subparagraph (1) of this paragraph.

(3) Upon the completion of the legal proceedings under subparagraph (1) of this paragraph or investigation under subparagraph (2) of this paragraph, the suspension shall be removed and, if appropriate, changed to a debarment in accordance with § 18-1.604-2(a). Firms or individuals released from suspension and not debarred shall be replaced on appropriate bidders lists.

(b) Scope of suspension. (1) Suspension may include all known affiliates of a firm or individual. For the definition of an affiliate, see § 18-1.600-2.

(2) An attempt shall be made to determine who are the affiliates of any firm or individual who is proposed to be suspended. Consideration shall be given to suspending such affiliates whenever the facts and circumstances justifying suspension of the firm or individual concerned would also justify suspension of such affiliates.

(3) The fraud or criminal conduct of an individual may be imputed to the business firm with which he is connected whenever the impropriety involved was performed in the course of official duty

or with the knowledge or approval of the business firm.

§ 18-1.605-5 Restrictions during period of suspension.

Suspended firms or individuals shall be subject to the provisions of § 18-1.603 (a) (4), (b), and (c).

§ 18-1.605–6 Notice of suspension.

(a) The firms or individuals who have been suspended will be furnished a written notice, by the Director of Procurement, of the suspension within 10 days after the effective date of the suspension. The notice of suspension will state:

(1) That the suspension is based on information that the firm or individual has committed irregularities of a serious nature in business dealings with the Government or that the suspension is based on irregularities which seriously reflect on the propriety of further dealings of the firm or individual with the Government, together with a description of the nature of those irregularities, in general terms, without disclosing the Government's evidence;

(2) That the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue; and

(3) That bids and proposals will not be solicited from such firms or individuals and if received will not be considered, and awards of contracts may not be made, unless it is determined to be in the best interest of the Government by the Administrator or his authorized representative to do so.

(b) Copies of the notice of suspension and of any removal from such suspension shall be furnished to the Department of Justice.

(c) All inquiries or correspondence from or in behalf of suspended firms and individuals concerning their status, reasons for suspension, and so forth, shall be forwarded to the Procurement Office, NASA Headquarters (Code KDP1) for appropriate action. Information beyond that stated in the notice of suspension concerning the reasons for suspension shall not be furnished to the contractor or his representatives until the Department of Justice has been advised of the inquiry.

§ 18-1.605-50 Reporting procedures.

(a) Procurement officers may submit reports recommending suspension of a

firm or individual for any of the causes set forth in § 18-1.605-3. Such actions shall be coordinated with local counsel.

(b) Reports recommending suspension shall be submitted in triplicate to the Procurement Office, NASA Headquarters (Code KDP-1). Such reports shall contain a complete statement of the pertinent facts indicating alleged criminal conduct, fraudulent activity, or suspicion thereof, and shall be supported by appropriate exhibits, including copies of any contracts involved and any assignments of claims thereunder. Such reports shall include the names and addresses of all known affiliates of reported firms or individuals, together with the nature of such affiliation.

When it is determined to debar or suspend a concern pursuant to § 18-1.604 or § 18-1.605, the Administrator or his authorized representative shall decide whether the debarment or suspension should extend to procurement contracts or sales contracts or to both. If the debarment or suspension is limited to either procurement contracts or sales contracts, the listing should so indicate. Likewise, a decision may be made to except from an administrative debarment or suspension a particular commodity or commodities or a particular division or subsidiary or other appropriate organizational element of the contractor where such action is considered to be in the best interests of the Government.

§ 18-1.607 Interchange of debarment information.

(a) The General Services Administration, in accordance with FPR 1-1.607(a), is charged with compiling from the notice of debarments furnished it by NASA and other executive agencies a combined list of such debarments, including the basis of action, and distributing a copy of such list to NASA and all other executive agencies.

(b) The list furnished by General Services Administration shall be for information purposes only; it is not intended to take the place of, or be an addition to, the lists used by NASA.

(c) The Procurement Office, NASA Headquarters will check the combined list of debarred bidders furnished by the General Services Administration and

consider firms or individuals listed thereon for inclusion upon the NASA list, in accordance with the provisions of this subpart.

(d) On specific request of the Director of Procurement, the General Services Administration has agreed to furnish to NASA, in accordance with FPR 1-1.607 (b), a copy of the notice reflecting the basis for debarment action taken by another agency pursuant to its regulations or under the Buy American Act (see § 181.603 (a) (3) Type C listing). If desired, the Director of Procurement may make a direct inquiry concerning any debarment case to the agency which originated the action.

Subpart 18-1.7-Small Business
Concerns

§ 18-1.700 Scope of subpart.

This Subpart 18-1.7, which applies only in the United States, its possessions, Puerto Rico, and the Trust Territory of the Pacific Islands implements the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2451-2459), and the Small Business Act, as amended (15 U.S.C. 631 et seq.), and sets forth policy and procedures governing (a) contract awards to small business concerns, (b) relationships with the Small Business Administration (SBA), (c) small business set-asides, and (d) small business subcontracting.

[36 F.R. 21455, Nov. 10, 1971]

§ 18-1.701. Definitions.

The definitions of small business concerns are promulgated by the Small Business Administration. As used throughout this subpart, the following terms shall have the meanings set forth in this section. When a procurement office is in doubt as to the specific small business definition that should apply to a particular procurement, a written determination from the Small Business Administration regional office having jurisdiction over the geographical area in which the contracting officer is located will be requested for inclusion in the procurement file.

[36 F.R. 21455, Nov. 10, 1971]

§ 18-1.701-1 Small Business concern.

(a) (1) General definition. A small business concern is a concern that is independently owned and operated, is not

dominant in the field of operation in which it is bidding on Government contracts, and with its affiliates, can further qualify under the criteria set forth in paragraph (a) (2) and (3) of this section. "Concern" means any business entity organized for profit with a place of business in the United States, its possessions, Puerto Rico, or the Trust Territory of the Pacific Islands, including but not limited to an individual, partnership, corporation, joint venture, association, or cooperative. For the purpose of a procurement of a product or service that could be classified into two or more industries with different size standards, the size standard to be used in determining a bidder's size status shall be that for the industry whose definition best describes the principal nature of the product or service being procured.

(2) Industry small business size standards. In addition to being independently owned and operated, and not dominant in the field of operation in which it is bidding on Government contracts, a small business concern in order to qualify as such must meet the criteria established for the industries set forth below. "Annual receipts" means the gross income (less returns and allowances, sales of fixed assets and interaffiliate transactions) of a concern (and its affiliates) from sales of products and services, interest, rents, fees, commissions, and/or from whatever other source derived, as entered on its regular books of account for its most recently completed fiscal year (whether on a cash, accrual, completed contracts, percentage of completion, or other acceptable accounting basis) and in the case of a concern subject to U.S. Federal income taxation, reported or to be reported to the U.S. Treasury Department, Internal Revenue Service, for Federal income tax purposes. If a concern has been in business less than one year, its annual receipts shall be computed by determining its average weekly receipts for the period in which it has been in business and multiplying such figure by 52. If a concern has 50 percent or more of its annual receipts attributable to business activity within Alaska, then whenever the size criterion of "annual receipts" is used in any size definition contained in this Subpart, the stated dollar limitation for the purpose of qualifying as a small business con

cern shall be increased by 25 percent of the indicated amount.

(i) Construction industries. For construction, alteration, or repair (including painting and decorating), of buildings, bridges, roads, or other real property, the average annual receipts of the concern and its affiliates for its preceding three fiscal years must not exceed $7,500,000. For dredging, the average annual receipts of the concern and its affiliates for its preceding 3 fiscal years must not exceed $5,000,000. Also, in order to be eligible for a small business set-aside award on dredging contracts, the firms must perform the dredging of at least 40 percent of the yardage advertised in the plans and specifications with dredging equipment owned by the bidder or obtained from another small business dredging concern.

(ii) Manufacturing industries.—(a) Food canning and preserving industry. For food canning and preserving, the number of employees of the concern and its affiliates must not exceed 500 persons, exclusive of "agricultural labor" as defined in 26 U.S.C. 3306(k).

(b) Refined Petroleum Products. Any concern bidding on a contract for a refined petroleum product other than paving mixture and blocks, asphalt felts and coatings, lubricating oils and greases, or products of petroleum and coal, not elsewhere classified, is classified as small if (1) (i) its number of employees does not exceed 1,000 persons; (ii) it does not have more than 30,000 barrelsper-day crude or bonafide feed stock capacity from owned or leased facilities or from facilities made available to such concern under an arrangement such as, but not limited to, an exchange agreement (except one on a refined product for refined product basis), or a throughput or other form of processing agreeIment with the same effect as though such facilities had been leased; and (iii) the product to be delivered in the performance of the contract will contain at lease 90 percent components refined by the bidder from either crude oil or bona fide feed stocks: Provided, however, That a petroleum refining concern which meets the requirements in (i) and (ii) of this (b) (1) may furnish the product of a refinery not qualified as small business if such product is obtained pursuant to a bona fide exchange agreement, in effect

on the date of the bid or offer, between the bidder or offeror and the refiner of the product to be delivered to the Government which require exchanges in a stated ratio on a refined petroleum product for a refined petroleum product basis, and precludes a monetary settlement, and that the products exchanged for the products offered and to be delivered to the Government meet the requirement in (iii) of this (b) (1): And, provided further, That the exchange of products for products to be delivered to the Government will be completed within 90 days after expiration of the delivery period under the Government contract and that any product furnished pursuant to a bona fide exchange agreement must be for delivery in the same Petroleum Administration for Defense (PAD) District as that in which the small refinery is located; or (2) its number of employees does not exceed 500 persons and the product to be delivered to the Government has been refined by a concern which qualifies under this (b)(1).

(c) Pneumatic tires. For passenger cars, motorcycles, truck, bus, and offthe-road pneumatic tires, a concern is classified as small when bidding on a contract for the above listed items: Provided, That (1) the value of the above types of pneumatic tires which it manufactured in the United States during the preceding calendar year is more than 50 percent of the value of its total worldwide manufacture, (2) the value of these pneumatic tires which it manufactured worldwide during the preceding calendar year was less than 5 percent of the value of all such tires manufactured in the United States during said period, and (3) the value of the principal products which it manufactured or otherwise produced or sold worldwide during the preceding calendar year is less than 10 percent of the total value of such products manufactured or otherwise produced or sold in the United States during said period. This section does not apply to procurements for the repairing and/or retreading of pneumatic aircraft tires which, by reason of the extent and nature of the equipment and operations required, is considered for size standards purposes to be manufactured within the meaning of Standard Industrial Classification Industry No. 3011, Tires and Inner Tubes.

(d) Passenger cars. A company is classified as small if it is bidding on a contract for passenger cars: Provided, That (1) the value of the passenger cars which it manufactured or otherwise produced in the United States during the preceding calendar year is more than 50 percent of the value of its total worldwide manufacture or production of such passenger cars, (2) the value of the passenger cars which it manufactured or otherwise produced during the preceding calendar year was less than 5 percent of the total value of all such cars manufactured or produced in the United States during the said period, and (3) the value of the principal products which it manufactured or otherwise produced or sold during the preceding calendar year is less than 10 percent of the total value of such products manufactured or otherwise produced or sold in the United States during said period.

(e) Rebuilding of machinery on a factory basis. Any concern bidding on a contract for the rebuilding of machinery or equipment on a factory basis is classified as small business: Provided, The purpose of the rebuilding is to restore such machinery or equipment to as serviceable and as like new condition as possible and the number of employees does not exceed the number of employees specified for the classification code applicable to the manufacturer of the original item. The size standard is not limited to concerns who are manufacturers of the original item but is applicable to all bidders or offerors. The term "rebuilding on a factory basis" as used in this subsection does not include ordinary repair services such as those involving minor repair and/or preservation operations.

(f) Manufacturing industries listed in § 18-1.701.4. For a product classified within an industry listed in § 18-1.701-4. the number of employees of the concern and its affiliates must not exceed the small business size standard established therein for that industry.

(g) Manufacturing industries not listed in § 18-1.701-4. For a product classified within an industry not set forth in this paragraph or in § 18-1.701-4, the number of employees of the concern and its affiliates must not exceed 500 persons.

(iii) Nonmanufacturing industries. For a product not manufactured by the concern submitting a bid or proposal, other than for a construction or service contract, the number of employees of that

concern must not exceed 500 persons, and in the case of a procurement set aside for small business (see § 18-1.706) or involving equal low bids (see § 18-2.407-6), or otherwise involving the preferential treatment of small business (e.g., Certificate of Competency procedures, see § 18-1.705-4), it must agree to furnish in the performance of the contract end items manufactured or produced in the United States, its possessions, Puerto Rico, or the Trust Territory of the Pacific Islands by small business concerns. However, if the goods to be furnished are wool, worsted, knitwear, duck, or webbing, nonmanufacturers (dealers and converters), shall furnish such products which have been manufactured or produced by a small weaver (small knitter for knitwear) and, if finishing is required, by a small finisher. If the product to be furnished is thread, nonmanufacturers (dealers and converters) shall furnish thread which has been finished by a small finisher. (Finishing of thread is defined as all dyeing, bleaching, glazing, mildew proofing, coating, waxing, and other applications required by the pertinent specification, but excluding mercerizing, spinning, throwing, or twisting operations).

(iv) Service industries. (a) For services not elsewhere defined in this Subpart the average annual receipts of the concern and its affiliates for the preceding three fiscal years must not exceed $1 million.

(b) Any concern bidding on a contract for engineering services (other than marine engineering services), motion picture production, or motion picture services is classified as small if its average annual receipts for its preceding three fiscal years do not exceed $5 million.

(c) Any concern bidding on a contract for naval architectural and marine engineering services is classified as small if its average annual receipts for its preceding three fiscal years do not exceed $6 million.

(d) Any concern bidding on a contract for janitorial and custodial services is classified as small if its average annual receipts for its preceding three fiscal years do not exceed $3 million.

(e) Any concern bidding on a contract for base maintenance is classified as small if its average annual receipts for its preceding three fiscal years do not exceed $5 million. Base maintenance is de