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part-time basis to any procuring activi. 81-1.705-4 Access to information.
Upon request, and subject to appliness Act. SBA representatives will
cable security regulations, SBA repre
sentatives shall be given access to comply with agency directives con
available or reasonably obtainable incerning the conduct of procurement
formation, including technical data personnel and instructions concerning
(including drawings and specificarelease of procurement information.
tions), procurement history, bidders
lists, and planned requirements imme§ 1-1.705-3 Screening of procurements.
diately upon receipt by the procuring (a) Individual set-asides. SBA repre- activity. The SBA representative will sentatives (cleared for security where be furnished such other available or classified procurements are to be reasonably obtainable information as screened) shall, upon request, prompt. may be required for the SBA referral ly be afforded an opportunity at the
gram. procuring activity to review all proposed procurements if it is anticipated § 1-1.705-5 Joint s.nall business set-asides. that the resulting contract or con. The policies and procedures for joint tracts will exceed $2,500 unless in the small business set-asides, set forth in case of procurements which are not 81-1.706, were developed cooperatively expected to exceed $10,000, the head with the SBA and Government proof the procuring activity determines curement agencies. that such review would unduly delay the procurement process. A copy of § 1-1.705-6 Certificates of competency. the determination and the justifica- Section 1-1.708 prescribes policies tion therefor shall be furnished to the and procedures governing cooperative SBA representative. Where it is antici action with SBA concerning certifipated that the resulting contract or cates of competency. contracts will exceed $2,500, such SBA representatives shall, upon request, 1-1.705–7 Performance of contract by promptly be afforded an opportunity SBA. to make recommendations concerning In accordance with the Small Busiproposed procurements, including that ness Act (15 U.S.C. 637(a)), in any case they be exclusively or partially set in which the Administrator of SBA aside for small business concerns.
certifies to the head of the procuring The contracting officer shall afford agency concerned that SBA is compethe SBA representative an opportuni tent to perform any specific contract, ty to recommend appropriate names of the contracting officer is authorized, small business concerns for inclusion in his discretion, to award the contract in lists of bidders for firms to be solic. to SBA upon such terms and condiited in connection with current and tions, consistent with applicable profuture procurements.
curement regulations, as may be (b) Class set-asides. SBA representa
agreed upon between SBA and the tives shall be afforded an opportunity
contracting officer. The policies and to make recommendations that cur
procedures governing the award of rent and future procurements, or por
such contracts are set forth in § 1
1.713. tions thereof, of selected items or serv. ices, or groups of like items or services, (37 FR 1037, Jan. 22, 1972) shall be set aside as provided in § 11.706, for exclusive small business par- $ 1-1.706 Procurement set-asides for small ticipation. Such set-asides, when ap- business. proved by the contracting officer, shall be known as class set-asides. Con
§ 1-1.706-1 General. currence in a class set-aside shall not (a) Purpose. The purpose of small be dependent upon the existence of a business set-asides is to increase small current procurement if future pro- business participation in Government curements can be clearly foreseen. 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 business 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 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. Set. asides shall be effected when it is determined to be in the interest of main
ning 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 contract. ing 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 $ 11.313) shall set forth the factual basis 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)
8 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 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. apply, however, to any particular proDuring consideration of such appeal, curement action which, as determined there shall be a full and free inter- by the contracting officer, must, in change of all pertinent facts between order to protect the public interest, be the SBA representative and the pro initiated without delay and as to curing activity concerned. Within 1 which he inserts in the contract file a workday after receipt of a decision statement signed by him setting forth from the head of the procuring activi. the facts and circumstances justifying ty or his designee disapproving a rec the determination. The contracting of. ommended set-aside, the SBA repre. ficer shall promptly notify the SBA sentative may request the contracting representative of any procurement officer to suspend action on the pro- action initiated pursuant to the precurement pending a further appeal by ceding sentence by supplying him with the SBA Administrator to the head of a copy of the justification, the agency concerned. SBA shall be al. (b) None of the following is, in itself, lowed 15 workdays after making any sufficient cause for not making a setsuch request within which (A) the Ad- aside: ministrator of SBA may appeal the de- (1) A large percentage of previous cision of the head of the procuring ac procurements of the item in question tivity (or his designee) to the head of has been placed with small business the agency concerned, and (B) to concerns. notify the contracting officer of the (2) The item to be purchased is on appeal. If such a notification is not re- an established planning list under the ceived by the contracting officer Industrial Readiness Planning Prowithin the 15-day period, SBA shall be gram, except that a total set-aside deemed to have withdrawn its request shall not be authorized when one or to suspend action on the procurement more large business Planned Emergenand to have refrained from taking an
cy Producers of the item desire to parappeal to the head of the agency.
ticipate in the procurement. Where SBA has appealed to the head (3) The item to be purchased is on a of the agency concerned and the con- Qualified Products List, except that a tracting officer has been notified of total set-aside shall not be authorized that fact within the 15-day period, the when the products of one or more head of the procuring activity shall, in large businesses are on the Qualified accordance with agency procedures, Products List unless it has been con
vard a full iustification of his deci. firmed that none of such large busision through appropriate channels to
Lappropriate channels to nesses desires to participate in the prothe head of the agency. The head of the agency shall respond to the appeal (4) A period of less than 30 days by the Administrator of SBA within 30 from date of issuance of invitations for workdays.
bids or requests for proposals is pre(2) Any procurement action affected
scribed for the submission of the bids by a set-aside recommendation which or proposals. has been disapproved by the contract
(5) The procurement is classified. ing officer and appealed by the SBA (6) Small business concerns are rerepresentative shall be suspended ceiving a fair proportion of the total pending the decision of the head of contracts for property or services. the procuring activity or his designee. (7) A class set-aside of the item or If the decision sustains the disapprov service concerned has been made at al and if the SBA representative re- some other procuring activity. quests further suspension in accord (8) The item will be described by ance with (1) of this § 1-1.706-2(a), the “brand name or equal." suspension shall continue until (i) the (c) In approving a proposed class setSBA appeal is deemed to have been aside, the contracting officer shall withdrawn (as provided in (1) of this make sure that the set-aside determi$ 1-1.706-2(a)), or (ii) the matter is de- nation (1) specifically identifies the termined by the head of the agency items or services subject thereto; (2) concerned. Such suspension shall not provides that it will, at least once each
year, be reviewed jointly by an SBA representative and the procuring activity to determine whether it should be withdrawn (see § 1-1.706-3 for with drawal procedures); (3) provides that it does not apply to any individual procurement for which small purchase procedures are to be used; and (4) provides that such class set-aside applies only to the procuring activity making or participating in the set-aside deter. mination. Any class of procurements proposed to be totally set aside shall satisfy the requirements of $ 1-1.7065(a). With respect to any class of procurements proposed to be partially set aside the set-aside determination shall specify that it is not applicable to any individual procurement which is not severable into two or more economic production runs or reasonable lots. (29 FR 10104, July 24, 1964, as amended at 43 FR 26006, June 16, 1978)
to the SBA representative (by tele phone where liaison representatives are involved). Similarly, a class setaside may be modified so as to withdraw one or more individual procurements therefrom. If the SBA representative does not agree to a withdrawal or modification, the action may be appealed in accordance with the procedures set forth in § 1-1.706-2(a). This procedure is not applicable to automatic dissolutions of set-asides as provided in g 1-1.706-7. In all cases where SBA has not designated either resident or liaison representatives for the agency, the contracting officer shall withdraw a unilateral set-aside determination where he considers that procurement of the set-aside from a small business concern would be detrimental to the public interest (e.g., because of unreasonable price).
(c) A statement supporting any withdrawal or modification of a set-aside shall be made by the procuring activity and retained in the contract file. (29 FR 10104, July 24, 1964, as amended at 37 FR 1363, Jan. 28, 1972)
§ 1-1.706-4 Reporting for Department of
Commerce Procurement Synopsis. Section 1-1.1003-7 contains special instructions concerning reporting of procurements involving small business set-asides to the Department of Commerce for publication in the “Commerce Business Daily."
$ 1-1.706-3 Withdrawal or modification of
set-asides. (a) Each individual procurement governed by a class set-aside shall be carefully reviewed to insure that any changes in the magnitude of anticipated requirements, specifications for the items or services, delivery require ments, or competitive market condi. tions, since the initial approval of the class set-aside, are not of such material nature as to result in the probable payment of an unreasonable price by the Government or in a change in small business capability.
(b) If, prior to the award of a contract involving an individual or class set-aside for small business, the contracting officer considers the procure ment of the set-aside portion from a small business concern would be detri. mental to the public interest (e.g., because of unreasonable price), the con tracting officer may withdraw either a joint or a unilateral set-aside determination. In the case of (1) a joint set. aside determination, or (2) a unilateral set-aside determination where SBA has designated either a resident or a liaison representative for the agency, the contracting officer shall initiate the withdrawal thereof by giving notice, containing the reason therefor,
91-1.706-0 Total set-asides.
(a) General. The entire amount of an individual procurement or class of procurements shall be set aside either (1) for small business-labor surplus area concerns and eligible organizations for the handicapped and handicapped individuals that agree to perform as labor surplus area concerns, or (2) for small business concerns and eli. gible organizations for the handicapped and handicapped individuals. However, there must be a reasonable expectation that bids or proposals will be obtained from a sufficient number of responsible concerns, organizations, and individuals so that awards will be made at reasonable prices. Total setasides shall not be made unless such a reasonable expectation exists. In the
ibsence of such an expectation, a parial set-aside shall be considered puruant to § 1-1.706-6. Although the past procurement history of the item or similar items is important, it is not the only controlling factor which should be considered in determining whether 2 reasonable expectation exists.
(b) Authority. Contracts involving total small business set-asides (with or without reference to labor surplus areas) shall be entered into by negotiation either through conventional negotiation or through a special method of procurement known as “Small Business Restricted Advertising.” When ever possible, the small business restricted advertising method (see § 11.701-9) 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 bidders that do not qualify as (1) small businesslabor surplus area concerns and eligible organizations for the handicapped and handicapped individuals, or (2) small business concerns and eligible organizations for the handicapped and handicapped individuals, shall be considered nonresponsive and shall be rejected.
(c) Records and reports. Executive agencies shall maintain such records of contracts to be performed in labor surplus areas as are necessary to prepare reports required by $ 1-16.804-4.
(d) Notice of total small businesslabor surplus area set-asides. In procurements involving total set-asides for small business-labor surplus area concerns and eligible organizations for the handicapped and handicapped individuals, each invitation for bids or request for proposals shall contain the following notice. The applicable small business size standard and product or service classification shall also be set forth in the solicitation.
or more such concerns, organizations, or individuals. This set-aside 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 ca. pacity, or in the interest of war or national defense programs, or in the interest of assuring that a fair proportion of Government procurement is placed with small business concerns, or in the interest of assisting eligible organizations for the handicapped and handicapped individuals. Bids or proposals received from others will be considered nonresponsive.
(b) Definition. (1) The term "small business concern" means 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 the 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 territories and possessions, Commonwealth of Puerto Rico, Trust Territory of the Pacific Islands, and the District of Columbia 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 identified by the Department of Labor as an area of concentrated unemployment or underemployment or an area of labor surplus.
(3) The term "concern located in a labor surplus area" means a labor surplus area concern.
(4) The term "labor surplus area concern" means a concern that together with its firsttier subcontractors will perform substantially in labor surplus areas.
(5) The term "perform substantially in labor surplus areas" means that the costs incurred on account of manufacturing, production, or appropriate services in labor surplus areas exceed 50 percent of the contract price.
(c) Agreement. The bidder or offeror agrees that, if awarded a contract as a labor surplus area concern, he will:
(1) Perform the contract, or cause it to be performed, substantially in areas classified as labor surplus areas on the date of the solicitation. However, if an area selected by the bidder or offeror is no longer classified as a labor surplus area at the time of performance, he is encouraged to select an
NOTICE OF TOTAL SMALL BUSINESS-LABOR
SURPLUS AREA SET-ASIDE (a) General. Bids or proposals under this procurement are solicited from (1) small business concerns and (2) eligible organizations for the handicapped and handicapped individuals under the Small Business Act, that agree to perform as labor surplus area concerns. Awards will be made only to one