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working days after receipt of a deci- shall be mailed or delivered to the sion by an SBA Regional Director or SBA Size Appeals Board within 5 days his delegatee. Unless written notice of of receipt of appropriate notification such an appeal is received by the SBA of appeal or other action in the proSize Appeals Board before the close of ceeding unless an extension is granted business on the fifth working day for cause by the Chairman of the after receipt of the decision, the appel- Board. If the appellant is the concern lant will be deemed to have waived its whose size status is in question, the rights of appeal insofar as the pending Board will provide copies of such procurement is concerned.
statements and appropriate evidence (2) No particular form is prescribed
submitted in connection with the for the notice of appeal. However, the appeal (or reconsideration thereof) to appellant shall submit to the SBA Size
such appellant. Appeals Board an original and four
(4) The SBA Size Appeals Board will legible copies of such notice and, to
consider the appeal on the written avoid time-consuming correspondence,
submission of the parties. The Board, the notice should include the follow
in its discretion, may also conduct an ing information: (i) Name and address
oral inquiry to assist it in arriving at of the concern on which the size deter
the facts necessary for deciding the mination was made; (ii) the character of the determination from which the
appeal. After consideration of all rele
vant information, the Board will appeal is taken and its date; (iii) if ap
promptly render a decision which will plicable, the IFB or contract number and date, and the name and address of
state the reason for such decision. The
decision of the SBA Size Appeals the contracting officer; (iv) a concise
Board will be predicated upon the and direct statement of the reasons why the decision of the SBA Regional
entire record and the Board will state Director or his delegatee is alleged to
in writing the basis for its findings and be erroneous; (v) documentary evi
conclusions. The Chairman of the dence in support of such allegations;
Board will promptly notify, in writing, and (vi) action sought by the appel
the appellant and other interested
parties (including the contracting offi(3) The SBA Size Appeals Board
cer if a pending procurement is inshall promptly acknowledge receipt of
volved) of the Board's decision, togeththe notice of appeal and shall send a
er with the reasons therefor. copy of such notice to the appropriate
(5) Within no more than 5 working SBA Regional Director or his delega- days following a decision in a size tee and to the contracting officer (if a appeal case, any interested party may pending procurement is involved). If petition the SBA Size Appeals Board the appellant is not the concern whose for reconsideration upon presentation size status is in question, the Size Ap- of appropriate justification therefor. peals Board shall also send a copy of The request for reconsideration may the notice of appeal to such concern. be in any form, with an original and The Board shall also notify all known four legible copies. Grounds for reconinterested parties that the appeal has sideration will be (i) a material error been filed. In its discretion, the Board of fact in the original decision, or (ii) may also provide any of such interest relevant information not previously ed parties with copies of the appel considered by the Board or relevant lant's notice of appeal, or parts there information not previously available of, when the Board determines that to any of the parties involved. When a this would be in the interest of fair request for reconsideration is made by ness or would assist in the perform any of the interested parties, such reance of its functions. After an appeal questing party must demonstrate to has been filed, any other interested the Board that the grounds for reconparty may file with the Board a signed sideration involve facts or information statement, together with four legible which were not previously presented copies thereof, as to why the appeal to the Board through no fault or omisshould or should not be denied. Such sion of such party. The Board will statement and supporting evidence notify all interested parties that a re
uest for reconsideration has been re- than 30 calendar days after the issueived.
ance of the invitation for bids or re(6) The SBA Size Appeals Board will quests for proposals or quotations, or onsider the request for reconsider- (2) not less than 5 working days before tion upon the statement and other the bid opening date or closing date vidence submitted by the petitioners for submitting proposals or quotations nd any other evidence which the when the bid opening date or closing loard, in its discretion, deems neces- date for the submission of proposals or ary. If the Board denies the request quotations is 30 calendar days or less or reconsideration, it will notify all after the issuance of the invitation for arties. If the request for reconsider- bids or request for proposals or quotation is granted, the Board will so tions. The appeal shall be addressed to otify all interested parties and will the Chairman, Size Appeals Board, et forth a reasonable time within Small Business Administration, Washwhich the interested parties, if appro- ington, DC 20416. No particular form riate, may submit additional informa is prescribed for the notice of appeal. ion. The Board may, in its discretion, However, the appellant shall submit to rovide interested parties with copies the SBA Size Appeals Board an origiof appropriate information submitted nal and four legible copies of such
y other parties where it determines notice of appeal and, to avoid timehat this is necessary in the interest of consuming correspondence, the notice airness or to better assist the Board of appeal should include the following n its factfinding functions. Following information: (i) The character of the ts reconsideration of the matter, the determination from which the appeal Board will promptly render its deci. is taken and its date; (ii) the number ion in the same manner as provided and date of the invitation for bids or n paragraph (f)(4) of this section. request for proposals or quotations, Chereafter, the Board will notify all and the name and address of the connterested parties of its decision.
tracting officer; (iii) a concise and (g) The contracting officer shall de- direct statement of the reasons why ermine the appropriate classification the determination of the contracting of a product or service establishing the officer is alleged to be erroneous; (iv) imall business definition to be used in documentary evidence to support such 1 specific procurement. If different allegations; and (v) the action sought products or services are being pro- by the appellant. Following receipt of cured on the same solicitation, an ap- the appeal by the SBA Size Appeals propriate small business size standard Board, the appeal will be handled and shall be established for each product the decision thereon will be rendered or service. Both the classification and in accordance with the procedures set the applicable size standard (number forth in paragraph (f) of this $ 1of employees, average annual receipts, 1.703-2. etc.), pursuant to § 1-1.701, shall be set
[36 FR 16656, Sept. 25, 1971, as amended at forth in each solicitation in excess of
39 FR 35658, Oct. 3, 1974; 43 FR 26005, June $10,000 and in each solicitation of
16, 1978) $10,000 or less which is a small business set-aside. The contracting offi § 1-1.704 Agency program direction and cer's determination shall be final operation. (Reserved for use by individunless appealed in the manner pre ual agencies) scribed in paragraph (h) of this section.
§ 1-1.705 Cooperation with the Small (h) A written appeal from a product Business Administration. or service classification determination made by a contracting officer may be
§ 1-1.705-1 General. taken (1) not less than 10 working It is a requirement of the Small days before the bid opening date or Business Act that SBA and procureclosing date for submitting proposals ment agencies consult and cooperate or quotations when the bid opening in carrying out the policies of that date or closing date for the submission Act. Such consultation and cooperaof proposals or quotations is more tion is particularly significant in the
areas and programs described in $811.705-2 through 1-1.705-7.
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.
§ 1-1.705-2 SBA representatives.
SBA may assign one or more repre. sentatives (hereinafter referred to as "SBA representatives") on a full- or part-time basis to any procuring activity for the purpose of carrying out SBA responsibilities under the Small Business Act. SBA representatives will comply with agency directives concerning the conduct of procurement personnel and instructions concerning release of procurement information.
§ 1-1.705-4 Access to information.
Upon request, and subject to applicable security regulations, SBA representatives shall 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 procuring activity. The SBA representative will be furnished such other available or reasonably obtainable information as may be required for the SBA referral program.
§ 1-1.705-5 Joint small business set-asides.
The policies and procedures for joint small business set-asides, set forth in § 1-1.706, were developed cooperatively with the SBA and Government procurement agencies.
§ 1-1.705-6 Certificates of competency.
Section 1-1.708 prescribes policies and procedures governing cooperative action with SBA concerning certificates of competency.
§ 1-1.705-3 Screening of procurements.
(a) Individual set-asides. SBA representatives (cleared for security where classified procurements are to be screened) shall, upon request, prompt ly be afforded an opportunity at the procuring activity to review all proposed procurements 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 exceed $10,000, the head of the procuring activity determines that such review would unduly 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 representatives 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 representative an opportuni. ty to recommend 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. SBA representatives shall be afforded an opportunity to make recommendations that current and future procurements, or portions thereof, of selected items or seryices, or groups of like items or services, shall be set aside as provided in § 11.706, for exclusive small business participation. Such set-asides, when approved by the contracting officer,
§ 1-1.705–7 Performance of contract by
SBA. In accordance with the Small Business Act (15 U.S.C. 637(a)), in any case in which the Administrator of SBA certifies to the head of the procuring agency concerned that SBA is competent to perform any specific contract, the contracting officer is authorized, in his discretion, to award the contract to SBA upon such terms and conditions, consistent with applicable procurement regulations, as may be agreed upon between SBA and the contracting officer. The policies and procedures governing the award of such contracts are set forth in $ 11.713. [37 FR 1037, Jan. 22, 1972)
81-1.706 Procurement set-asides for small
$ 1-1.706-1 General.
(a) Purpose. The purpose of small business set-asides is to increase small business participation in Government procurement. The order in which the various kinds of set-asides are to be made is provided by the priorities set forth in the Small Business Act (15 U.S.C. 644(e));
(1) Concerns which are located in labor surplus areas, and which are also small busi
which are also small busi ness concerns, on the basis of a total setaside.
(2) Concerns which are small business concerns on the basis of a total set-aside.
(3) Concerns which are small business concerns, on the basis of a partial set-aside.
(4) Concerns which are located in labor surplus area concerns on the basis of a total set-aside. (See $ 1-1.804-1.)
(b) Applicability. This section is applicable to small business set-aside programs of executive agencies in connection with all procurement of property and services, maintenance, repair and construction, and research and development.
(c) Implementation. Any individual procurement or class of procurements shall be set aside entirely for small business-labor surplus area concerns, for small business concerns, and (during fiscal year 1978) for public and
lic and private organizations for the handicapped and handicapped individuals eligible for assistance, as provided in the Small Business Act (15 U.S.C. 636(h)(1)). In the alternative, an appropriate part of the procurement shall be set aside for the exclusive participation of the referenced concerns, organizations, and individuals. Setasides shall be effected when it is determined to be in the interest of maintaining or mobilizing the Nation's full productive capacity, or to be in the interest of war or national defense programs, or to be in the interest of assuring that a fair proportion of Government procurement is placed with small business concerns. Determinations shall be made (1) unilaterally by a
contracting officer, or (2) jointly by an SBA representative and a contracting officer, upon initiation by either party.
(d) Initiation of set-asides. Insofar as practicable, unilateral determinations initiated by a contracting officer of a procuring agency shall be used as the basis for small business set-asides rather than joint determinations by an SBA representative and a contracting officer. This, however, does not preclude SBA from initiating with an agency a proposal for a joint determination set-aside.
(e) Set-aside priorities. (1) The setaside priorities in paragraph (a) of this section shall be followed in determining the type of set-aside to be employed. Individual procurements shall be reviewed by the contracting officer to determine if they can be set aside:
(i) Totally for small business-labor surplus area concerns (see § 1-1.7065(a)).
(ii) Totally for small business concerns where a total set-aside for small business-labor surplus area concerns cannot be made (see § 1-1.706-5(a)).
(iii) Partially for small business concerns where a total set-aside for small business concerns cannot be made (see § 1-1.706-6).
(iv) Totally for labor surplus area concerns where a partial set-aside for small business concerns cannot be made (see § 1-1.804).
(2) If it is determined that the procurement cannot be set aside in accordance with any of the set-aside priorities in paragraph (e)(1) of this section, the procurement may be made without regard to those priorities.
(f) Record of contract actions. The record of contract actions (see $ 1
for the contracting officer's decision regarding the type of set-aside selected or the decision not to make a set-aside. [29 FR 10104, July 24, 1964, as amended at 33 FR 10393, July 20, 1968; 43 FR 26006, June 16, 1978)
$ 1-1.706–2 Review of SBA set-aside pro
posals. (a)(1) When an SBA representative has recommended that all, or a portion, of an individual procurement or class of procurements be set aside for
For a temporary regulation affecting 811.706-1, see Appendix-Temporary Regulations, appearing at the end of Chapter 1.
small business-labor surplus area concerns or for small business concerns, the contracting officer (or other designated representative of the procurement agency) 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 head of the procuring activity or his designee. During consideration of such appeal, there shall be a full and free interchange of all pertinent facts between the SBA representative and the procuring activity concerned. Within 1 workday after receipt of a decision from the head of the procuring activity or his designee disapproving a recommended set-aside, the SBA representative may request the contracting officer to suspend action on the procurement pending a further appeal by the SBA Administrator to the head of the agency concerned. SBA shall be allowed 15 workdays after making any such request within which (A) the Administrator of SBA may appeal the decision of the head of the procuring activity (or his designee) to the head of the agency concerned, and (B) to notify the contracting officer of the appeal. If such a notification is not received by the contracting officer within the 15-day period, SBA shall be deemed to have withdrawn its request to suspend action on the procurement and to have refrained from taking an appeal to the head of the agency. Where SBA has appealed to the head of the agency concerned and the contracting officer has been notified of that fact within the 15-day period, the head of the procuring activity shall, in accordance with agency procedures, forward a full justification of his decision through appropriate channels to the head of the agency. The head of the agency shall respond to the appeal by the Administrator of SBA within 30 workdays.
(2) Any procurement action affected by a set-aside recommendation which has been disapproved by the contract ing officer and appealed by the SBA representative shall be suspended pending the decision of the head of the procuring activity or his designee.
If the decision sustains the disapproval and if the SBA representative requests further suspension in accordance with (1) of this g 1-1.706-2(a), the suspension shall continue until (i) the SBA appeal is deemed to have been withdrawn (as provided in (1) of this § 1-1.706-2(a)), or (ii) the matter is determined by the head of the agency concerned. Such suspension shall not apply, however, 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 of ficer shall promptly notify the SBA representative of any procurement action initiated pursuant to 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 an established planning list under the Industrial Readiness Planning Program, except that a total set-aside shall not be authorized when one or more large business Planned Emergency Producers of the item desire to par. ticipate in the procurement.
(3) 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 desires to participate in the procurement.
(4) A period of less than 30 days from date of issuance of invitations for bids or requests for proposals is prescribed for the submission of the bids or proposals.
(5) The procurement is classified.
(6) Small business concerns are receiving a fair proportion of the total contracts for property or services.