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peals Board will be predicated upon the entire record and the Board will state in writing the basis for its findings and conclusions. The Chairman of the Board will promptly notify, in writing, the appellant and other interested parties (including the contracting officer if a pending procurement is involved) of the Board's decision, together with the reasons therefor.

(5) Within no more than 5 working days following a decision in a size appeal case, any interested party may petition the SBA Size Appeals Board for reconsideration upon presentation of appropriate justification therefor. The request for reconsideration may be in any form, with an original and four legible copies. Grounds for reconsideration will be (i) a material error of fact in the original decision, or (ü) relevant information not previously considered by the Board or relevant information not previously available to any of the parties involved. When a request for reconsideration is made by any of the interested parties, such requesting party must demonstrate to the Board that the grounds for reconsideration involve facts or information which were not previously presented to the Board through no fault or omission of such party. The Board will notify all interested parties that a request for reconsideration has been received.

(6) The SBA Size Appeals Board will consider the request for reconsideration upon the statement and other evidence submitted by the petitioners and any other evidence which the Board, in its discretion, deems necessary. If the Board denies the request for reconsideration, it will notify all parties. If the request for reconsideration is granted, the Board will so notify all interested parties and will set forth a reasonable time within which the interested parties, if appropriate, may submit additional information. The Board may, in its discretion, provide interested parties with copies of appropriate information submitted by other parties where it determines that this is necessary in the interest of fairness or to better assist the Board in its factfinding functions. Following its reconsideration of the matter, the Board will promptly render its decision in the same manner as provided in subparagraph (4) of this paragraph. Thereafter, the Board will notify all interested parties of its decision.

(g) The determination of the appropriate classification of a product or sery

ice establishing the small business definition to be used in a specific procurement shall be made by the contracting officer. The contracting officer's determination of the appropriate classification of a product or service shall be final unless appealed in the manner prescribed in paragraph (h) of this § 1-1.703–2.

(h) A written appeal from a product or service classification determination made by a contracting officer may be taken (1) not less than 10 working days before the bid opening date or closing date for submitting proposals or quotations when the bid opening date or closing date for the submission of proposals or quotations is more than 30 calendar days after the issuance of the invitation for bids or requests for proposals or quotations, or (2) not less than 5 working days before the bid opening date or closing date for submitting proposals or quotations when the bid opening date or closing date for the submission of proposals or quotations is 30 calendar days or less after the issuance of the invitation for bids or request for proposals or quotations. The appeal shall be addressed to the Chairman, Size Appeals Board, Small Business Administration, Washington, DC 20416. No particular form is prescribed for the notice of appeal. However, the appellant shall submit to the SBA Size Appeals Board an original and four legible copies of such notice of appeal and, to avoid timeconsuming correspondence, the notice of appeal should include the following information: (i) The character of the determination from which the appeal is taken and its date; (ii) the number and date of the invitation for bids or request for proposals or quotations, and the name and address of the contracting officer; (iii) a concise and direct statement of the reasons why the determination of the contracting officer is alleged to be erroneous; (iv) documentary evidence to support such allegations; and (v) the action sought by the appellant. Following receipt of the appeal by the SBA Size Appeals Board, the appeal will be handled and the decision thereon will be rendered in accordance with the procedures set forth in paragraph (f) of this § 1-1.703-2. 136 F.R. 16656, Sept. 25, 1971) § 1-1.704 Agency program direction

and operation. [Reserved for us by individual agencies)

$ 1-1.705 Cooperation with tho Small

Business Administration. 1-1.705-1 General.

It is a requirement of the Small Business Act that SBA and procurement agencies consult and cooperate in carrying out the policies of that Act. Such consultation and cooperation is particularly significant in the areas and programs described in $ $ 1-1.705-2 through 1-1.705–7. & 1-1.705–2 SBA representatives.

SBA may assign one or more representatives (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. 8 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, promptly 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 opportunity 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 recomiendations that current

and future procurements, or portions thereof, of selected items or services, or groups of like items or services, shall be set aside as provided in § 1-1.706, for exclusive small business participation. Such set-asides, when approved by the contracting officer, 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. 81-1.705 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. 81-1.705-5 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. § 1-1.705-7 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 § 1-1.713. (37 FR 1037, Jan. 22, 1972] &1-1.706 Procurement set-asides for

small business.

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81–1.706–) General.

appeal there shall be full and free inter(a) Purpose. The purpose of small

change of all pertinent facts between the business set-asides is to increase small

SBA representative and the procuring business participation in Government

activity concerned. Within one working procurement.

day after receipt of a decision from the (b) Applicability. This section is ap

head of the procuring activity or his plicable to small business set-aside pro

designee disapproving a recommended grams of executive agencies in connec

set-aside, the SBA representative may tion with all procurement of property

request the contracting officer to suspend and services, maintenance, repair and

procurement actions affected by the rec

ommended set-aside pending a further construction, and research and develop

appeal by the Administrator of SBA to ment. (c) Implementation. Subject to any

the head of the agency concerned for

determination, SBA shall be allowed applicable preference for labor surplus

seven working days after making any area set-asides as provided in § 1-1.802,

such request within which (i) the any individual procurement or class of

Administrator of SBA may appeal the procurements, or an appropriate part

decision of the head of the procuring thereof, shall be set aside for the exclu

activity (or his designee) to the head of sive participation of small business con

the agency concerned, and (ii) to notify cerns when such action (1) is unilaterally

the contracting officer whether such an determined by a contracting officer, or

appeal has in fact been taken. If such (2) is jointly determined by an SBA rep

notification is not received by the conresentative and a contracting officer,

tracting officer within the seven-day peupon initiation by either party, to be in

riod, it shall be deemed that the SBA the interest of maintaining or mobilizing

request to suspend procurement action the Nation's full productive capacity, or

has been withdrawn and that no appeal to be in the interest of war or national

to the head of the agency was taken. defense programs, or to be in the interest

Where an appeal to the head of the of assuring that a fair proportion of

agency concerned has been taken and Government procurement is placed with

the contracting officer has been notified small business concerns.

of that fact within the seven-day pe(d) Initiation of set-asides. Insofar as

riod, the head of the procuring activity practicable, unilateral determinations

will, in accordance with agency proceinitiated by a contracting officer of a

dures, forward through appropriate procuring agency shall be used as the

channels to the head of the agency & basis for small business set-asides rather

full justification of his decision. than joint determinations by an SBA

(2) Any procurement action affected representative and a contracting officer.

by a set-aside recommendation which This, however, does not preclude SBA

has been disapproved by the contracting from initiating with an agency a proposal

officer and appealed by the SBA reprefor a joint determination set-aside.

sentative shall be suspended pending the (29 F.R. 10104, July 24, 1964, as amended at decision of the head of the procuring 33 F.R. 10393, July 20, 1968)

activity or his designee. If the decision § 1-1.706–2 Review of SBA set-asido sustains the disapproval and if the SBA proposals.

representative requests further suspen(a) (1) When an SBA representative

sion in accordance with (1) of this $ 1

1.706-2(a), the suspension shall continue has recommended that all, or a portion,

until (i) the SBA appeal is deemed to of an individual procurement or class

have been withdrawn (as provided in (1) of procurements be set aside for small

of this $ 1-1.706-2(a), or (ii) the matter business, the contracting officer (or other

is determined by the head of the agency designated representative) of the pro

concerned. Such suspension shall not curement agency shall promptly either

apply, however, to any particular pro(i) concur in the recommendation, or

curement action which, as determined by (ii) disapprove the recommendation,

the contracting officer, must, in order to stating in writing his reasons for disap protect the public interest, be initiated proval. The SBA representative shall be without delay and as to which he inserts allowed two working days to appeal any in the contract file a statement signed such disapproval to the head of the pro- by him setting forth the facts and circuring activity or his designee for deci- cumstances justifying the determination. sion. During consideration of such The contracting officer 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 participate in the procurement.

(3) The item to be purchased is on a Qualified Products List, except that & 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.

(7) A class set-aside of the item or service concerned has been made at some other procuring activity.

(8) The item will be described by "brand name or equal."

(c) In approving a proposed class setaside, the contracting officer shall make sure that the set-aside determination (1) specifically identifies the items or seryices subject thereto; (2) 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 withdrawal 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 determination. Any class of procurements proposed to be totally set aside shall satisfy the requirements of $ 1-1.706–5(a). With respect to any class of procurements proposed to be

partially set aside, the set-aside determination shall specify that it is not appllcable to any individual procurement which is not severable into two or more economic production runs or reasonable lots. 81-1.706–3 Withdrawal or modifica.

tion 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 requirements, or competitive market conditions, 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 procurement of the setaside portion from a small business concern would be detrimental to the public interest (e.g., because of unreasonable price), the contracting officer may withdraw either a joint or a unilateral setaside 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, to the SBA representative (by telephone where liaison representatives are involved). Similarly, a class set-aside 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 § 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 setaside 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) 81–1.7064 Reporting for Department

of Commerce Procurement Synopsis. Section 1-1.1003–7 contains special instructions concerning reporting of procurements involving small business setasides to the Department of Commerce for publication in the "Commerce Business Daily." § 1-1.706-5 Total set-asideo.

(a) Subject to the conditions set forth in $ $ 1-1.706-1 and 1-1.706–2, the entire amount of an individual procurement or class of procurements shall be set aside for exclusive small business participation where there is a reasonable expectation that bids or proposals will be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices. Total set-asides shall not be made unless such a reasonable expectation exists; however, in the absence of such expectation, a partial set-aside shall be considered pursuant to § 1-1.706-6. Although past procurement history of the item or similar items is always important, it is not the only controlling factor which should be considered in determining whether a reasonable expectation exists.

(b) Contracts involving total small business set-asides shall be entered into by conventional negotiation or by a special method of procurement known as "Small Business Restricted Advertising." Whenever possible, the small business restricted advertising method, as defined in § 1-1.701-9, 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 firms which do not qualify as small business concerns shall be considered nonresponsive and shall be rejected.

(c) In procurements involving total set-asides for small business, each invitation for bids or request for proposals shall contain the following notice. The applicable small business size standard shall be set forth in the schedule. NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE

(a) Restriction. Bids or proposals under this procurement are solicited from small business concerns only and this procurement

is to be awarded only to one or more small business concerns. This action is based on a determination by the Contracting Omcer, 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 capacity, 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. Bids or proposals received from Arms which aro not small business concerns shall be considered nonresponsive.

(b) Definition. A "small business concern" is a concern, including its amliates, which is independently owned and operated, is not dominant in the Aeld of operation in which it is bidding on Government contracts, and can further quality under the criteria set forth in regulations of the Small Business Administration (13 CFR 121.3-8). In addi. tion to meeting these criteria. & manufacturer or & 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 possessions, or Puerto Rico, by small business concerns: Provided, That this additional requirement does not apply in connection with construction or service contracts. 129 F.R. 10104, July 24, 1964, as amended at 30 F.R. 9591, July 31, 1966) 81-1.706-6 Partial sct-asidea

(a) General. Subject to the conditions set forth in § 1-1.706-1, a portion of a procurement shall be set aside for exclusive small business participation where

(1) The procurement is not appropriate for total set-aside pursuant to $ 1-1.706-5;

(2) The procurement is severable into two or more economic production runs or reasonable lots; and

(3) One or more small business concerns are expected to have the technical competence and productive capacity to furnish a severable portion of the procurement at a reasonable price.

Similarly, a class of procurements (including but not limited to contracts for maintenance, repair, and construction) may be partially set aside in accordance with § 1-1.706-2(c).

(b) Dividing the procurement. Where a portion of a procurement is to be set aside for small business pursuant to (a) of this § 1-1.706-6, the procurement shall be divided into a set-aside portion and a non-set-aside portion, each of which shall be not less than an economic

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