Page images
PDF
EPUB

CU

agency to award a contract to SBA under terms and conditions which are agreeable to both agencies, provided that there is no material change in requirements, availability of funds, or other pertinent factors. In the notification to the SBA, the procuring agency may also fix a time limit (generally not less than 30 workdays after receipt of the notification) within which the SBA must establish contact with the designated procuring activity of the procuring agency and initiate negotiation of the section 8(a) contract. If negotiations are not completed within the time frame established by the procuring agency, the agency may notify SBA that it intends to proceed with the procurement without futher regard for the section 8(a) procedures, unless additional time is requested by SBA and such additional time is granted by the procuring agency after giving due regard to the urgency of the proposed procurement.

(d) Provisions of contracts with SBA. After the SBA has completed its negotiations with an eligible concern pursuant to the procurement commitment made by the procuring agency, and after the SBA and the procuring agency have reached an agreement concerning the terms and conditions (including price) to be included in the contract to be awarded by the procuring agency to the SBA and have also mutually agreed upon the terms and conditions (including price) to be included in the subcontract to be awarded by the SBA to a small business concern, the procuring agency shall prepare two sets of contract documents as follows:

(1) Standard Form 26, Award/Contract, and Standard Form 36, Continuation Sheet, shall be prepared for execution by the SBA and the procuring agency. Authority for negotiation of the contract shall be cited as 41 U.S.C. 252 (c) (15) and 15 U.S.C. 637(a). The con. tract shall be prepared in the same detail as would be required for an award to a private business. It should be recognized, however, that the contract is to be executed by the SBA and the procuring agency. No requirement for the SBA to furnish payment or performance bonds shall be included in the contract. In addition to the terms and conditions which have been mutually agreed upon by the SBA and the procuring agency, Standard Form 32, General Provisions, appropriate procuring agency forms, and other appropriate provisions shall be incorporated in the contract. Unless other

wise agreed upon between the SBA and the procuring agency, the following clause (or a clause similar thereto) also shall be incorporated in the contract:

SPECIAL 8(a) CONTRACT CONDITIONS The Small Business Administration (SBA) agrees as follows:

(a) To furnish the supplies or services set forth in this contract according to the specifications and the terms and conditions hereof by subcontracting with an eligible concern pursuant to the provisions of section 8(a) of the Small Business Act, as amended (15 U.S.C. 637(a)).

(b) That in the event SBA does not award & subcontract for all or & part of the work hereunder, this contract may be terminated either in whole or in part without cost to either party.

(c) SBA hereby delegates to the (insert name of procuring agency) the responsibility for administering the subcontract to be awarded hereunder with complete authority to take any action on behalf of the Government under the terms and conditions of the subcontract: Provided, however, That the (insert name of procuring agency) shall give advance notice to the SBA before it issues & final notice terminating the right of a subcontractor to proceed with further performance, either in whole or in part, under the subcontract for default or for the convenience of the Government.

(d) Payments to be made under any subcontract awarded under this contract will be made directly to the subcontractor by the (insert name of procuring agency).

(e) That the subcontractor awarded a subcontract hereunder shall have the right of appeal from decisions of the Contracting Officer cognizable under the “Disputes" clause of said subcontract, which clause shall be identical with that set out in Article 12 of Standard Form 32. It is further understood and agreed that the subcontract to be executed between the SBA and SBA's subcontractor shall also include & clause as follows:

For the purpose of this subcontract, the reference to the “Secretary or his duly authorized representative" in the “Disputes" clause of this subcontract (Article 12 of Standard Form 32, General Provisions) shall be deemed to mean, respectively, the (insert Secretary or Administrator) of the (insert name of procuring agency) and the Board of Contract Appeals of the (insert name of procuring agency).

(2) The original and one duplicate original copy of the contract documents shall be executed by an authorized official of the SBA and the contracting officer of the procuring agency. The original executed contract (and such additional authenticated, conformed, or reproduced copies as may be required by the procuring agency) shall be retained by the pro

curing agency and distribution shall be made in accordance with its internal regulations and procedures. The duplicate original copy of the contract (and such additional authenticated, conformed, or reproduced copies as may be required by SBA) shall be forwarded by the procuring agency to SBA for distribution in accordance with its internal regulations and procedures.

(e) Provisions of subcontracts awarded by SBA. (1) The subcontract which will be executed by SBA and its subcontractor shall be prepared by the procuring agency on Standard Form 33, Solicitation, Offer, and Award, or on Standard Form 26, Award/Contract, as appropriate, and Standard Form 36, Continuation Sheet. It shall be prepared in the same detail as would be required for a normal procurement contract awarded by the procuring agency, recognizing at the same time, however, that the subcontract is to be executed by SBA and its subcontractor. In addition to the terms and conditions, including price, delivery and performance dates, and other pertinent information which have been agreed upon and incorporated in the contract between SBA and the procuring agency, and which, in turn, have been agreed upon during the negotiations between the SBA and its subcontractor, Standard Form 32, General Provisions, and other appropriate procuring agency forms and special provisions shall also be incorporated in the subcontract. Unless otherwise agreed upon between the SBA and the procuring agency, the following clause (or a similar clause) shall also be incorporated in the subcontract:

SPECIAL 8(a) SUBCONTRACT CONDITIONS

(a) The Small Business Administration (SBA) has entered into Contract No. (insert number of contract) with the (insert name of procuring agency) to furnish the supplies or services as described therein. A copy of said contract is attached hereto and made a part hereof. As used in this subcontract, the reference to "the Secretary or his duly authorized representative" in the “Disputes" clause of this subcontract (Article 12 of Standard Form 32, General Provisions) shall be deemed to mean, respectively, the (insert Secretary or Administrator) of the (insert name of procuring agency) and the Board of Contract Appeals of the (insert name of procuring agency).

(b) The (insert name of the subcontractor), hereafter referred to as the subcontractor, agrees and acknowledges as follows:

(1) That he will, for and on behalf of the SBA, fulfill and perform all of the require

ments of Contract No. (insert number of contract) for the consideration stated therein and that he has read and is familiar with each and every part of said contract.

(2) That the SBA has delegated responsibility for the administration of this subcontract to the (insert name of procuring agency) with complete authority to take any action on behalf of the Government under the terms and conditions of this subcontract.

(3) That he will not subcontract the performance of any of the requirements of this subcontract to any lower tier subcontractor without the prior written approval of the SBA and the designated contracting officer of the (insert name of procuring agency).

(C) Payments, including any progress payments, under this subcontract will be made directly to the subcontractor by the (insert name of procuring agency).

(2) The original and two duplicate original copies of the subcontract shall be executed by the subcontractor and an authorized official of the SBA. The original executed subcontract and such additional authenticated, conformed, or reproduced copies as may be required by SBA shall be retained by SBA for internal distribution in accordance with its regulations and procedures. One duplicate original copy of the executed subcontract and such additional authenticated, conformed, or reproduced copies as may be required by the procuring agency shall be furnished to the procuring agency for internal distribution in accordance with its regulations and procedures. The second duplicate original copy of the executed subcontract, together with an attached copy of the contract between the SBA and the procuring agency shall be furnished to the subcontractor.

(f) Special services. The requirements set forth in $ $ 1-1.713-3(d) (1) and 1-1. 713-3(e) (1) concerning the terms and conditions to be included in contracts between the SBA and procuring agencies and in subcontracts between the SBA and eligible concerns may be modified as appropriate for contracts and subcontracts involving specialized types of services such as building services, food services, and business concessions. 137 FR 1038, Jan. 22, 1972) § 1-1.713_4 Procurement of construc.

tion.

(a) Information furnished by SBA. In subcontracts for construction (including maintenance, repair, and alteration), it is the policy of the Small Business Administration to award subcontracts under the section 8(a) program only to those concerns which have been approved

by SBA as supporting the policy objec- should contain the following information tives of $ 1-1.713–2. In the execution of with regard to the work projects: this policy, the SBA will furnish to the (1) A summary of the proposed work; procuring agency its request for a com- (2) Plans and specifications; mitment showing at least the following (3) Required performance schedules; information:

(4) Any other pertinent and reason(1) The various categories of main- ably available data, wage determination tenance, repair, alteration, and construc- by the Secretary of Labor, if required; tion work in such specific work project and categories as mechanical, electrical, heat- (5) Available detailed Government ing and air conditioning, demolition, cost estimates, including: building painting, paving, earth work, (i) Material quantities and unit costs; waterfront work, or general construction (ii) Labor costs (identified with the work; and

specific item of material to be placed or (2) The individual identification of the operation to be performed); estimated dollar value in each category. (ii) Construction equipment (hours

(b) Evaluation of SBA requests. The and rates); procuring agency will evaluate the SBA (iv) Workmen's compensation and request for a commitment and determine public liability insurance; to what extent the agency has proposed (V) Overhead and profit; work projects for which funding is avail (vi) Employment taxes under FICA able in those requested categories. In the and FUTA; and evaluation of the SBA request for a com

(vii) Bonds. mitment, the matters considered shall (f) Time limitations. In the notificainclude the following:

tion to the SBA, the procuring agency (1) The extent to which work projects may also fix a time limit (generally not of the type requested by SBA are planned iess than 30 days after receipt of the notifor procurement in the current fiscal year fication) within which the SBA must esand, to the extent known, future fiscal tablish contact with the designated proyears; and

curing activity and initiate negotiations (2) Work projects of similar complex - of the section 8(a) contract. If negotiaity and nature if there are no known tions are not completed within the time work projects of the specific type frame established by the procuring requested.

agency, the designated procuring activity (c) Lists of construction projects. In may notify the SBA that it intends to addition to specific individual requests by proceed with the procurement without the SBA, the procuring agency shall fur- further regard to the section 8(a) pronish to the SBA, in accordance with a cedures, unless additional time is remutually acceptable schedule, lists of quested by SBA and granted by the proconstruction work projects which it curing activity after due consideration deems to be suitable for subcontracting for the urgency of the proposed by SBA under the section 8(a) program. procurement.

(d) Cost or pricing data. When re- (g) Provisions of contracts with SBA. quired by § 1-3.807-3, the SBA shall se The procuring agency shall prepare two cure from its prospective subcontractor sets of contract documents as provided cost or pricing data, together with any by this paragraph (g) after: (1) The necessary supporting certificate.

SBA has completed negotiations with the (e) Notification. After completing its eligible concern pursuant to the commitreview of the SBA request for a commit ment made by the procuring agency; ment, the procuring agency shall notify (2) the SBA and the procuring agency the SBA of the extent to which a section have reached mutual agreement concern8(a) contract will be placed with the SBA ing all terms and conditions (including and the time frames within which the price) to be included in the contract to contract actions need to be completed in be awarded by the procuring agency to order to satisfy its program responsibili SBA; and (3) the SBA and the procuring ties. This notification represents a firm agency have agreed upon all the terms commitment by the procuring agency to and conditions (including price) to be award a contract to SBA under mutually included in the subcontract to be acceptable terms and conditions, pro- awarded by SBA to the eligible concern. vided there is no material change in re. (1) The contract to be executed bequirements, availability of funds, or tween the SBA and the procuring agency other pertinent factors. The notification shall be prepared by the procuring

[ocr errors][ocr errors]

agency on Standard Form 19, Invitation, Bid, and Award (Construction, Alteration or Repair), Standard Form 23, Construction Contract, as may be appropriate. Authority for negotiation of the contract shall be cited as 41 U.S.C. 252(c) (15) and 15 U.S.C. 637(a). The contract shall be prepared in the same detail as would be required for a normal procurement contract to be awarded by the procuring agency to a private business, recognizing at the same time, however, that the contract documents are to be executed by the SBA and the procuring agency. No requirement for the SBA to furnish payment and performance bonds shall be included in the contract. In addition to including the terms and conditions (including price) which have been mutually agreed upon between SBA and the procuring agency, there shall also be incorporated in the contract Standard Form 19-A, Labor Standards Provisions Applicable to Contracts in Excess of $2,000, if the contract is in excess of $2,000, and Standard Form 23-A, General Provisions (Construction Contract), or the General Provisions on Standard Form 19, whichever is appropriate, together with such other procuring agency forms and special conditions as may be required. The contract shall also contain a provision that the SBA shall not be entitled to any commission on work performed by its subcontractor or any lower tier subcontractor. Unless otherwise agreed upon between the SBA and the procuring agency, the following additional clause (or a similar clause) shall be incorporated in contracts prepared on Standard Form 19 or Standard Form 23.

SPECIAL 8(a) CONTRACT CONDITIONS The Small Business Administration (SBA) agrees as follows:

(a) SBA will perform the work set forth in this contract according to the specifications and drawings and the terms and conditions hereof by subcontracting with an eligible concern pursuant to the provisions of section 8(a) of the Small Business Act, as amended (15 U.S.C. 637(a)).

(b) If SBA does not award a subcontract for the work hereunder, this contract may be terminated without cost to either party.

(c) The SBA hereby delegates to the (insert name of procurting agency) responsibility for administering the subcontract to be awarded hereunder with complete authority to take any action on behalf of the Government under the terms and conditions of the subcontract.

(d) Progress payments to be made under the subcontract awarded under this con

tråct shall be made directly to the subcon. tractor by the (insert name of procuring agency). However, final payment under the subcontract will be made only upon the written authorization of the SBA and after receipt of an executed release of claims from the subcontractor.

(e) The subcontractor awarded & subcontract hereunder shall have the right of appeal from decisions of the contracting officer under the "Disputes" clause of the subcon. tract, which shall be identical to Clause 3 on Standard Form 19 or to Clause 6 on Standard Form 23-A, whichever is applicable. Further, the subcontract to be executed between the SBA and its subcontractor pursuant to this contract shall contain the following clause:

For the purpose of this subcontract, the reference to the "head of the Federal agency" and "his duly authorized representative" in the “Disputes" clause of this subcontract (Article 3 of Standard Form 19 or Article 6 of Standard Form 23-A, whichever is applicable) shall be deemed to mean, respectively, the (insert Secretary or Administrator) of the (insert name of procuring agency) and the Board of Contract Appeals of the (insert name of procuring agency).

(2) The original and one duplicate copy of the contract documents shall be executed by an authorized official of the SBA and the contracting officer of the procuring agency. The original executed contract (and such additional authenticated, conformed, or reproduced copies as may be required by the procuring agency) shall be retained by the procuring agency and distribution shall be made in accordance with its internal regulations and procedures. The duplicate original copy of the contract (and such additional authenticated, conformed, or reproduced copies as may be required by SBA) shall be forwarded by the procuring agency to SBA for distribution in accordance with its internal regulations and procedures.

(h) Provisions of subcontracts awarded by SBA. (1) The subcontract which will be executed by SBA and its subcontractor shall be prepared by the procuring agency on Standard Form 19, Invitation, Bid, and Award (Construction, Alteration or Repair), or Standard Form 23, Construction Contract, as appropriate. It shall be prepared in the same detail as would be required for a normal procurement contract awarded by the procuring agency, recognizing at the same time, however, that the subcontract is to be executed by the SBA and its subcontractor. A provision shall be included in the subcontract which requires the subcontractor to furnish a

performance bond on Standard Form 25, Performance Bond, and a payment bond on Standard Form 25A, Payment Bond, as required by the Miller Act (40 U.S.C. 270a-270e). Applicable policies and procedures regarding the use of these bonds appear in $$ 1-10.104-1 and 1-10.105–1. In addition to incorporating the terms and conditions (including price) which have been agreed upon and incorporated in the contract between SBA and the procuring agency, and which, in turn, have been agreed upon during the negotiations between SBA and its subcontractor, the following shall also be in corporated in the subcontract: (1) Standard Form 19-A, if the subcontract is in excess of $2,000, (ii) Standard Form 23-A. General Provisions (Construction Contract), or the General Provisions on Standard Form 19, as appropriate, and (iii) such other procuring agency forms and special conditions as may be required. Unless otherwise agreed to by the SBA and the procuring agency, the following clause (or a similar clause) shall be included in the subcontract:

SPECIAL 8(a) SUBCONTRACT CONDITIONS (a) The Small Business Administration (SBA) has entered into Contract No. (insert contract number) with the (insert name of procuring agency) to perform the work as described therein. A copy of said contract is attached hereto and made a part hereof.

(b) The Small Business Administration and (insert name of subcontractor), herein. after called the subcontractor, agree as follows:

(1) The subcontractor shall, for and on behalf of the SBA, fulfill and perform all of the requirements of Contract No. (insert contract number) for the consideration stated therein. The subcontractor acknowledges that it has read and is familiar with each and every part of said contract.

(2) The SBA bas delegated responsibility for the administrattion of this subcontract to the (insert name of procuring agency) with complete authority to take any action on behalf of the Government under the terms and conditions of this subcontract.

(3) The term “Contracting Officer" es used in the General Provisions (Standard Form 19 or Standard Form 23-A, whichever applies) means the person designated by the (insert name of procuring agency) as Contracting Officer. The contracting Oficer designated for this subcontract shall be (name), (address), (insert name of procuring activity and the name of the procuring agency) or his duly appointed successor or authorized representative.

(4) The term "Contractor" as used in the General Provisions (Standard Form 19 or Standard Form 23-A, whichever applies)

means the "subcontractor" who has entered into this subcontract with SBA for the performance of all of the work under this subcontract.

(5) The reference to the “head of the Federal agency' and to "his duly authorized representative" in the "Disputes" cla of this subcontract (General Provisions, Article 3 of Standard Form 19 or Article 6 of Standard Form 23-A, whichever applies) shall be deemed to mean, respectively, the (insert Secretary or Administrator) of the (insert name of procuring agency) and the Board of Contract Appeals of the (insert name of procuring agency).

(6) The subcontractor will not subcontract the performance of any of the requirements of this subcontract to a lower tier subcontractor without the prior written approval of the SBA and the designated Contracting Officer of the (insert name of procuring agency), or his duly appointed successor or authorized representative.

(7) Nothing contained in this contract shall be construed as creating any contractual relationship between the Government and any second or lower tier subcontractor which may be authorized by the SBA and the Contracting Officer. The divisions or sections of the specifications are not intended to control the subcontractor in dividing the work among any duly authorized second tier subcontractors, or to limit the work of any trade.

(8) The subcontractor shall be responsible to the Government for the acts or omissions of his own employees and of any duly authorized lower tier subcontractors and their employees. He shall also be responsible for the coordination of the work of the trades, any duly authorized lower tier subcontractors, and suppliers.

(9) Any progress payments to be made under this subcontract will be made directly to the subcontractor by the (insert name of procuring agency). However, the final payment under the subcontract will be made only upon the written authorization of the SBA and after receipt of an executed release of claims from the subcontractor.

(2) The original and two duplicate original copies of the subcontract shall be executed by the subcontractor and an authorized official of the SBA. The original executed subcontract (and such additional authenticated, conformed, or reproduced copies as may be required by SBA) shall be retained by SBA for internal distribution in accordance with its regulations and procedures. One duplicate original copy of the executed subcontract (and such additional authenticated, conformed, or reproduced copies as may be required by the procuring agency) shall be furnished to the procuring agency for internal distribution in accordance with its regulations and

« PreviousContinue »