The Code of Federal Regulations of the United States of America

appear with witnesses and counsel to present facts or circumstances showing cause why such firm or individual should not be debarred. If the firm or individual elects not to appear, the reviewing authority will make its decision based on the facts on record and such additional evidence as may be furnished by the parties involved. After consideration of the facts, the reviewing authority shall notify the firm or individual of the final decision.

§ 3-1.605 Suspension of bidders.

§ 3-1.605-1 Causes and conditions under which HHS may suspend contractors. Any contracting officer may recommend suspension of bidders for the causes and conditions set forth in FPR 1-1.605-1. These recommendations shall be accompanied by the documented file of the case and be submitted through administrative channels to the Director, Office of Procurement and Materiel Management, OSOASAM, for a determination of suspension.

§ 3-1.605-4 Notice of suspension.

The Director, Office of Procurement and Materiel Management, OSOASAM, or his designee, is responsible for notifying bidders of suspensions in accordance with the provisions of FPR 1-1.605-4.

Office of Small and Disadvantaged Business Utilization. In that capacity, the Director is responsible for:

(1) Recommending to the Under Secretary overall Department-wide operating concepts and policies relating to the Department's small business, disadvantaged business, and labor surplus area programs;

(2) Implementing policy decisions through the issuance of operating procedures (Operating Divisions (OPDIVS) may develop alternative procedures for achieving departmental policy, goals, and objectives. However, any change in procedures must be approved by the Under Secretary);

(3) Reviewing and evaluating the Department's policies, practices, and procedures pertaining to the disadvantaged business, small business, and labor surplus area programs, as well as recommending changes or corrective actions to the OPDIV heads or to the Under Secretary, as appropriate;

(4) Providing the Under Secretary with regular appraisals of performance and quality of effort, including timely notification of significant problems, events, and accomplishments, and the need for changes in Department-wide objectives and policies; and

(5) Providing technical assistance and support to the small and disadvantaged business utilization specialists.

(b) The Director of the Office of Small and Disadvantaged Business Utilization is authorized to:

(1) Establish standards, procedures and operating guidelines controlling the manner in which the small business, disadvantaged business, and labor surplus areas programs are conducted throughout the Department;

(2) Provide advice on proposed allocations of personnel, funds, and other resources in light of the total needs of the Department;

(3) Prescribe, after coordination with appropriate concerned personnel, reporting requirements necessary to preserve openness in reporting, identify emerging problems, monitor Department-wide activity, and provide a basis for appraisal and evaluation of performance. To the maximum extent, these reporting requirements will be satisfied through existing Depart

ment-wide reporting systems or by making modifications to them;

(4) Conduct surveys and reviews of operating practices in the OPDIVS and regional offices; and

(5) Communicate directly with the small and disadvantaged business utilization specialists to assist them in carrying out their individual and collective responsibilities.

§ 3-1.704-2 Small and disadvantaged business utilization specialist.

(a) The Head of each OPDIV shall appoint a qualified full time small and disadvantaged business utilization specialist (SADBUS) in the following activities: Office of Human Development Services (OHDS), Health Care Financing Administration (HCFA), Social Security Administration (SSA), Public Health Service (PHS), to include the Food and Drug Administration (FDA), Health Resources Administration (HRA), National Institutes of Health (NIH), Alcohol, Drug Abuse, and Mental Health Administration (ADAMHA), Centers for Disease Control (CDC), Health Services Administration (HSA), and Administrative Services Center (ASC). A SADBUS shall also be appointed for the Office of the Secretary (OS), Office of Facilities Engineering (OFE), and for each Regional Office. In the regions, a SADBUS shall also be appointed for each Regional Operations for Facilities Engineering and Construction. As deemed necessary, additional small and disadvantaged business utilization specialists may be appointed in larger procuring activities.

(b) When the volume of contracting does not warrant assignment of a fulltime small and disadvantaged business utilization specialist, an individual shall be appointed as the specialist on a part-time basis. The responsibilities of this assignment shall take precedence over other responsibilities. The specialist shall be responsible directly to the appointing authority and shall be at an organizational level outside the direct procurement chain of command; i.e., should report directly to the principal official responsible for procurement, where appropriate.

Business

functional

Utilization will exercise management authority over small and disadvantaged business utilization specialists regarding small business, disadvantaged business, and labor surplus area matters. Appointments of small and disadvantaged business utilization specialists shall only be made after consultation with the Director of the Office of Small and Disadvantaged Business Utilization (OSDBU). A copy of each appointment and termination of appointment of specialists shall be forwarded to the Director, OSDBU.

(d) The small and disadvantaged business utilization specialist shall perform the following duties, as determined to be appropriate to the activity by the appointing official or by the Director of the Office of Small and Disadvantaged Business Utilization. The SADBUS shall:

(1) Maintain a program designed to locate capable small business, disadvantaged business, and labor surplus area business sources for current and future procurements, through SBA or by using other methods;

(2) Coordinate inquiries and requests for advice from small business, disadvantaged business, and labor surplus area business concerns on procurement matters;

(3) Prior to the issuance of solicitations (or contract modifications for additional supplies or services) in excess of $10,000, which have not been reviewed according to the procedures in § 3-1.706-2 and which have not been reserved or set-aside by the contracting officer, review the contracting officer's justification for such action;

(4) Assure that small business, disadvantaged business, and labor surplus area concerns are provided adequate specifications or drawings by initiating actions, in writing, with appropriate technical and contracting personnel to ensure that all necessary specifications or drawings for current and future acquisitions, as appropriate, are available;

(5) Review proposed requirements for possible breakout of items suitable for procurement from small business, disadvantaged business, and labor surplus area concerns;

(6) Assure that financial assistance, available under existing regulations, is

offered, and that requests by small business concerns for proper assistance are not treated as a handicap in the award of contracts;

(7) Participate in determinations concerning responsibility of prospective contractors whenever small business concerns are involved;

(8) Participate in the evaluation of a prime contractor's small business, labor surplus area, and disadvantaged business subcontracting plans;

(9) Advise and assist contracting officers in discharging their responsibilities by:

(i) Monitoring and reviewing contractor performance to determine compliance with small and small disadvantaged business subcontracting plans, and

(ii) Developing and maintaining records and reports that reflect such compliance or noncompliance;

(10) Review and make appropriate recommendations to the contracting officer on proposals to furnish Government-owned facilities to contractors if this action may enhance the small business program;

(11) Assure that the participation of small businesses, disadvantaged businesses, and labor surplus area concerns is accurately reported;

(12) Make available to SBA copies of solicitations when so requested;

(13) When a bid or offer from a small business, disadvantaged business, or labor surplus area concern has been rejected for nonresponsiveness or nonresponsibility, upon request, aid, counsel and assist that firm in understanding requirements for responsiveness and responsibility so that the firm may be able to qualify for future awards;

(14) Participate in government-industry conferences to assist small business, disadvantaged business, and labor surplus area concerns, including Business Opportunity/Federal Procurement Conferences, Minority Business Enterprises Procurement Seminars, and Business Opportunity Committee meetings;

(15) Advise potential sources how they can obtain information about formally advertised and negotiated procurements;

(16) Brief the head of the procuring activity at least once quarterly concerning the status of the activity's small business, disadvantaged business, and labor surplus area programs in relation to goals and objectives established;

(17) Participate in the development, implementation, and review of automated source systems to assure that the interest of small business, disadvantaged business and labor surplus area concerns are fully considered;

(18) Assure that the organization maintains a list of products and services which are categorized as repetitive small business set-asides;

(19) Provide small business, disadvantaged business, and labor surplus area concerns information regarding assistance available from Federal agencies such as the Small Business Administration, Minority Business Development Agency, Bureau of Indian Affairs, Economic Development Administration, National Science Foundation, Department of Labor, and others, including State agencies and trade associations;

(20) Be responsible for establishing an education and training program for personnel whose duties and functions affect the activity's small business, disadvantaged business and labor surplus areas programs; and

(21) Participate in interagency programs relating to small business, disadvantaged business, and labor surplus area matters as authorized by the Director of the Office of Small and Disadvantaged Business Utilization.

§ 3-1.705 Cooperation with the Small Business Administration.

§ 3-1.705-1 General.

All HHS procuring activities are responsible for consulting and cooperating with SBA in carrying out the purposes of the Small Business Act.

§ 3-1.706 Procurement set-asides for small business.

§ 3-1.706-1 General.

(a)-(b) [Reserved]

small business-labor surplus area concerns or small business concerns or labor surplus area concerns when the contracting officer is able to identify two or more qualified sources, and there is reasonable expectation that responses will be received from small business-labor surplus area concerns, or small business concerns, or labor surplus area concerns to ensure adequate competition. In the event a total set-aside is inappropriate, a partial setaside shall be considered, in which case the same criteria for a total setaside shall be applied by the contracting officer.

(2) Determinations for set-asides shall be made by the SADBUS and the contracting officer, using Form HHS653, Small Business-Labor Surplus Set-Aside Review Form. The SADBUS, if necessary, will identify, using various sources, small and labor surplus area business concerns capable of performing contracts.

§ 3-1.706-2 Review of set-aside proposals.

The SADBUS shall review individual procurements to determine whether award can be made to the Small Business Administration pursuant section 8(a) of the Small Business Act. When the requirement cannot be awarded to the Small Business Administration pursuant to section 8(a), the SADBUS shall determine whether the requirement can be set-aside under one of the set-aside priorities in § 11.706-1(a). The SADBUS' set-aside recommendations shall be entered on Form HHS-653, with the reasons for the type of set-aside recommended or the reasons for recommending against a set-aside. The form shall ultimately be placed in the contract file. Upon receipt of the SADBUS' recommendation, the contracting officer shall promptly approve or disapprove the recommendation and state in writing the reasons for disapproval. If the contracting officer disapproves the small and disadvantaged business utilization specialist's affirmative recommendation, the case shall be promptly referred to the SBA resident Procurement Center Representative (PCR) that is assigned to the activity (if one is assigned and available) for review. The PCR will either concur in the de

cision of the contracting officer or appeal the case to the head of the procuring activity or his/her designee in accordance with § 1-1.706-2(a)(1). No further appeal action will be taken by the small and disadvantaged business utilization specialist. However, if a PCR is not assigned or available, and the contracting officer notifies the SADBUS of his/her decision against the set-aside, the SADBUS may appeal, in writing, to the head of the procuring activity (HPA) or his/her designee for a final decision. A memorandum of the decision by the HPA shall be attached to the review form and placed in the contract file. After receipt of a final decision by the HPA, and if the decision approves the action of the contracting officer, the SADBUS shall forward, for information and management purposes, complete documentation of the case to the OSDBU Director. Documentation transmitted shall include, as a minimum, a copy of the appeal memorandum submitted to the HPA, a copy of the IFB or RFP, a list of sources solicited, a copy of the Form HHS-653 and attachments completed by the SADBUS and the contracting officer, a copy of the HPA's decision, and all other written material considered by the HPA in arriving at the decision. The SADBUS' transmittal memorandum shall contain an affirmative statement that the attachments conIstitute the complete file reviewed and considered by the HPA in making the final decision.

§ 3-1.706-3 Withdrawal or modification of set-asides.

Concurrent with the notification to the SBA PCR or liaison, telephone notificaton regarding all set-aside withdrawals shall be furnished to the OSDBU Director by the SADBUS.

§ 3-1.706-50 Small business class set-aside for construction, repair, and alteration work.

A small business class set-aside 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 $2 million. Accordingly, the con

Contract payments to small business concerns must be made on a timely basis. Payment of an invoice or voucher must be made within 30 days after receipt of the invoice or voucher or from acceptance of the goods or services (see § 3-50.803(b)(3) of Procurement Manual Circular HEW(HHS)78.1). Each invoice or voucher from a small business concern not sent directly to the servicing finance office, but received by the contracting activity, shall be stamped or otherwise identified for expedited payment before it is forwarded to the servicing finance office.

(a) It is the policy of this Department that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals have the maximum practical opportunity to participate as subcontractors in the performance of contracts awarded by the Department.

(b) The following definitions are applicable to this section:

(1) "Small business concern" is defined in § 1-1.701-1(a).

(2) "Small business concerns owned and controlled by socially and economically disadvantaged individuals" means a small business concern (i) which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock is owned

by one or more socially and economically disadvantaged individuals; and (ii) whose management and daily business operations are controlled by one or more of the referenced individuals. Socially and economically disadvantaged individuals include members of the following groups: Black Americans, Hispanic Americans, Native Americans (American Indians, Eskimos, Aleuts, and native Hawaiians), and Asian-Pacific Americans (U.S. citizens whose origins are from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia, and Taiwan). Other individuals may qualify as socially and economically disadvantaged under procedures separately established by the Small Business Administration. The Office of Minority Small Business and Capital Ownership Development in SBA has the final authority to determine the eligibility of a concern to be designated as a small disadvantaged business and will answer inquiries from prime contractors and others regarding eligibility.

(3) "Self certification" refers to the concept that contractors, acting in good faith, may rely on the written representations by their subcontractors regarding their status as either a small business concern or a small business concern owned and controlled by socially and economically disadvantaged individuals.

(4) "Subcontract", as used in this section, means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime contractor or subcontractor calling for supplies or services required for the performance of the original contract or subcontract.

(5) "Commercial products" are defined as products in regular production which are sold in substantial quantities to the general public and/or industry at established market or catalog prices. A product which, in the opinion of the contracting officer, differs only insignificantly from the contractor's commercial product may be regarded as a “commercial product.”

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