§ 5B-1.701-8 Set-aside for small business. (a) Clarification of class set-aside definition. In further explanation of § 1-1.705-3(b), a class set-aside may consist of contracts for selected items or services or all contracts for like items or services when restricted to small business on a continuing basis, as opposed to a one-time basis.

(b) Determining the set-aside status. The fact that a particular contract is within a class set-aside does not mean that a procurement is automatically set aside without consideration of events which may have occurred since the last procurement. The contracting officer must determine if the circumstances justify excluding the procurement from being set-aside.

(c) Class set-aside authority. Except for construction and architect-engineer services contracts subject to provisions of § 5B-1.706(b), (c), and (f), small business class set-asides normally will be made on a unilateral basis by the contracting officer and documented in accordance with § 5B-1.70651(a), using the format set forth therein. It should be noted that § 11.706-2(c) requires that class set-aside determinations be reviewed at least annually and that they do not apply to any individual procurement for which small purchase procedures are to be used. The legal authorities for making small business set-asides are set forth in §§ 1-1.706-8 and 1-3.201. All GSA-initiated determinations to set aside shall be approved in accordance with current Agency delegations of authority.

[43 FR 55761, Nov. 29, 1978, as amended at 46 FR 51746, Oct. 22, 1981]

§ 5B-1.702 Small business policies.

It is the policy of GSA to carry out, to the maximum extent, the small business policy expressed in the Federal Property and Administrative Services Act of 1949 and the Small Business Act, that a fair proportion of Government contracts be placed with small business concerns.

§ 5B-1.703 Determination of status as a small business concern.

[43 FR 55761, Nov. 29, 1978]

§ 5B-1.703-1 Representation by bidder or offeror.

If during the contracting officer's review of offers and other preaward information there is data that causes the contracting officer to question the veracity of an offeror's small business representation, the requirements of § 1-1.703-1(c)(4) shall be followed. [46 FR 51746, Oct. 22, 1981]

§ 5B-1.704 Agency program direction and operations.

§ 5B-1.704-2 Program operations.

(a) Each procuring activity shall use its best efforts to identify procurements where a potential exists for increasing the small business share of contract awards. Whenever feasible, contracting officers shall seek the assistance of the Business Service Center (BSC) personnel and the Small Business Administration (SBA) procurement representatives in identifying qualified small business concerns for inclusion on the bidders mailing list.

(b) The Business Service Centers, with respect to the commodities and services identified pursuant to (a) of this 5B-1.704-2 and with respect to small business concerns doing business in such commodities and services in their regional areas, are responsible for:

(1) Taking appropriate actions to publicize advance and current information about regional and national GSA business opportunities to the maximum extent practicable. (See Subpart 1-1.10.)

(2) Provide maximum advance and current information, assistance, and counseling of such nature, extent, and timeliness as to enable small business concerns to take full advantage of the available GSA business opportunities and to compete for contracts.

(3) Developing publications and public relations techniques to stimulate the interest and participation of small business concerns in GSA procurements. This activity will include, but not be limited to, the following:

(i) Arranging for and participating in meetings with business groups such as Chambers of Commerce, trade asso

(a) General. Procuring activities, to the maximum extent feasible, shall make unilateral small business setasides on all procurements qualifying therefor, as provided in Subpart 1-1.7, and as required by the following paragraphs.

(b) Construction contracts from $10,000 to $500,000. Pursuant to an understanding with the SBA, every proposed procurement for construction, including alteration, maintenance, and repairs estimated to cost between $10,000 and $500,000 shall be considered individually as though the SBA had initiated a set-aside request and shall be set aside, except as otherwise provided in § 5B-1.706(d) and (h).

(c) Construction contracts from $500,000 to $1 million. A unilateral class set-aside has been established for procurements of construction, including alteration, maintenance, and repairs estimated to cost between $500,000 and $1 million. Such procurements shall be set aside for small business except as otherwise provided in § 5B-1.706(d) and (h).

(d) Exemption of certain construction and repair contracts. All separate construction contracts under a construction-management-phased construction project and contracts for repair of mechanical systems, such as elevators, steam generators, air-conditioners, or distributing systems, are exempt from the requirements of § 5B-1.706 (b) or (c). However, contracting officers shall review each such exempt procurement and initiate a small business set-aside where it appears that there would be sufficient

competition to insure award at a reasonable price and set-aside is otherwise feasible.

(e) Building service contracts of $10,000 or more. Each procuring activity shall, to the maximum extent feasible, arrange for the making of small business set-asides on all contract actions which qualify therefor, as provided in Subpart 1-1.7. In the initiation of small business set-asides, procuring activities should give priority consideration to the establishment of class set-asides. Procuring activities shall periodically review individual setasides to identify services suitable for class set-asides.

(f) Architect-engineer contracts. (1) All architect-engineer contracts for construction projects with an estimated construction contract amount not exceeding $2.5 million shall be set aside for small business.

(2) A synopsis message indicating that the architect-engineer contract is set aside for small business shall be prepared and forwarded as provided by §1-1.1003-7(b)(6).

(g) All other contracts. All contracts other than those contracts subject to the provisions of § 5B-1.706 (b), (c), (d), (e), and (f) are subject to set-aside in accordance with the provisions of § 1-1.706 and § 5B-1.706(a).

(h) Determinations not to set aside. Where the contracting officer determines that a small business set-aside of a procurement is not feasible, the procedures defined in § 1-1.706 and § 5B-1.706-52 shall be followed.

[43 FR 55762, Nov. 29, 1978, as amended at 45 FR 67663, Oct. 14, 1980; 46 FR 51746, Oct. 22, 1981]

8 5B-1.706-5 Total set-aside.

When a total small business set-aside is made, a statement to that effect shall be placed on the face of the invitation for bids.

§ 5B-1.706-51 Class set-aside determinations.

Class set-aside determination shall be documented substantially in the format set forth herein and a copy shall be retained in the purchase history file or equivalent record covering the commodity or service involved.

SMALL BUSINESS CLASS SET-ASIDE
DETERMINATION

In accordance with FPR 1-1.706, it is hereby determined that procurements by the (name of procuring activity) for the following procurement classes shall be set aside for small business concerns on a class basis. This determination shall be reviewed jointly by a Small Business Administration Procurement Center Representative and the procuring activity not later than 1 year after the above determination date. This determination does not generally apply to any individual procurement for which small purchase procedures are to be used and applies only to the procuring activity named above.

(List items or services)

The above format should be appropriately modified with respect to any class procurements proposed to be partially set-aside. It shall be signed by the contracting officer who is responsible for the contract involved and shall be approved by the Regional Commissioner, PBS.

[43 FR 55762, Nov. 29, 1978]

§ 5B-1.706-52 Determination not to set aside.

(a) When the contracting officer determines that, in his judgment, a particular procurement subject to § 5B1.706 or to another GSA-initiated setaside is unsuitable as a set-aside for small business participation, he shall document the reasons for his determination and shall notify the appropriate GSA Regional Director of Business Affairs or, in Central Office procurements, the Director, Procurement Policy Review Staff of his decision. GSA form 2689, Procurement Not Set Aside for Small Business, shall be used for this purpose. The officials designated above are responsible for the review of procurements not to be set aside (when feasible this review shall be conducted jointly with the Small Business Administration Procurement Center Representative). The designated reviewing officials are responsible for any necessary coordination with the Small Business Administration. When the Small Business Administration Procurement Center Representative does not agree to a proposed nonset-aside action, the procedures set forth in FPR 1-1.706-2 and 3 shall be followed instead of this § 5B-1.706-52. (b) Reviews by officials designated in § 5B-1.706-52(a) shall be completed

within 5 working days from the time they are notified by the contracting officer. If the contracting officer receives no response or objections within the 5-working-day period, he may assume concurrence by the reviewing official in his determination not to set aside the procurement for small business, and he may proceed to process the procurement on an unrestricted basis.

(c) If the reviewing official is able to identify additional small business firms (which the contracting officer was not aware of) who are capable of performing the contract, who are interested in bidding on it, and who have been contacted by the reviewing official to verify capability and interest, the extent of the additional competition should be taken into consideration by the contracting officer. Names obtained from registers or listings, without contact for verification, may not be considered in reviewing the contracting officer's determination. Contact for purposes of verifying capability and interest in bidding may be made orally (by telephone or in person) when necessary in order to complete a review within the 5-working-day time period. If the reviewing official identifies additional prospective sources, determined in accordance with provisions of this § 5B-1.70652(c), and concludes that a contract should be set aside, contrary to the contracting officer's determination not to set it aside, the information obtained on these additional prospective sources shall be furnished to the contracting officer with the conclusions reached by the reviewing official.

(d) If there is disagreement between the reviewing official and the contracting officer concerning the initiation of a small business set-aside, the disagreement shall be referred as fol

lows:

(1) In regional procurement actions, to the appropriate Division Director or, if the Division Director is the contracting officer, to the Regional Commissioner. In the event the disagreement is not resolved, referral shall be made to the Regional Administrator for decision.

(2) In Central Office procurement actions, to the appropriate Assistant

Commissioner or, if the Assistant Commissioner is the contracting officer, to the Commissioner, PBS. If the disagreement is not resolved, referral shall be made to the Commissioner, PBS, for decision.

(e) Actions taken pursuant to this § 5B-1.706-52 shall be summarized in the contract file.

[43 FR 55762, Nov. 29, 1978]

§ 5B-1.706-53 Change of status of unrestricted or set-aside procurements.

(a) The determination not to make a set-aside shall not be changed (except when pursuant to an appeal by the Small Business Administration) once the solicitation is issued even if information subsequently becoming available discloses a basis for setting aside an unrestricted procurement. See § 11.706-3.

(b) A procurement set aside for exclusive participation by small business may be opened up to participation by all firms by:

(1) The issuance of an amendment to the solicitation and the publication in the Commerce Business Daily. In accordance with the provisions of § 11.1003-6;

(2) The notice shall describe the procurement and the fact that it has been changed to an unrestricted procurement; and

(3) The establishment of a new bid opening date, if necessary, under the requirement of § 5B-2.202-1.

(c) The contracting officer may set-aside under circum

a

remove stances where:

(1) It becomes apparent that there will not be adequate competition within the small business community;

or

(2) An amendment is issued which will increase materially the scope or extent of the procurement which would diminish participation by small business.

(d) This determination shall be submitted for review in accordance with the procedures prescribed in § 5B1.706-52 except when the review is completed within 2 working days. [43 FR 55763, Nov. 29, 1978]

Subpart 5B-1.9-Reporting Possible Antitrust Violations

§ 5B-1.901 General.

contracting

officers

(a) When become aware of circumstances concerning an offer or offers that may indicate violation of antitrust laws, they shall report the information required by §§ 1-1.902 and 1-1.903 in narrative form, in duplicate, as follows:

(1) Central Office contracting officers shall report to the appropriate Assistant Commissioner in the service (for PBS, the Assistant Commissioner for Contracts).

(2) Regional contracting officers shall report to the appropriate Assistant Regional Administrator.

(b) Contracting officers may contact the Office of Inspector General for assistance in preparing formal documents and statements for submission to the Department of Justice. [46 FR 51747, Oct. 22, 1981]

§ 5B-1.902 Documents to be transmitted.

(a) Contracting officers initially shall prepare documents and statements required by §§ 1-1.902 and 11.903.

(b) Specific material shall be prepared for each category in §§ 1-1.902 and 1-1.903. When a category has no applicability to a particular procurement, it shall be so stated in the report. Written statements shall indicate if information is unavailable or if contracting officers are ignorant of such matters as, for example, the existence of patents.

(c) The Office of Inspector General shall determine the need for additional data to meet the requirement of Subpart 1-1.9. Contracting officers shall secure such additional data and complete all documents and statements and forward them to the Inspector General.

(d) If the Inspector General finds that violations of antitrust laws may have been committed, the Inspector General, with the coordination of General Counsel, will refer the matter to the Department of Justice, in accordance with section 4(d) of the In