possible. However, authorized representatives of the procuring agency shall cooperate with and assist SBA representatives, as needed, in developing identifying information for the requirements being sought from the procuring agency. When practicable and feasible, the procuring agency representatives shall arrange for such additional assistance as may be required from agency procurement, technical, and supply management officials. The SBA will provide its best estimates of current and future procurement requirements so as to enable the procuring agency to evaluate its ability to render future assistance. For construction, the SBA will identify the category or categories of work, the extent of work needed, and location restrictions, if any.

(c) In addition to giving consideration to requests for procurement commitments received from the SBA, each procuring agency should also review other proposed procurements estimated to exceed $2,500 for the purpose of identifying other requirements which may be awarded to the SBA. The procuring agency should promptly notify the SBA of any such proposed procurements which are available for award to SBA under section 8(a). In connection with all proposed procurements which may become involved in an award to SBA, the procuring agency should furnish all available information concerning the work including, where applicable, but not limited to, quantities, required delivery schedules or time for performance, location, drawings and specifications, if any, and current detailed Government estimates, where readily available, including quantities and unit costs; labor costs, identified where possible with specific items of materials to be placed or operations to be performed; facilities and equipment required, including rental, hours, and rates; workmen's compensation and public liability insurance; overhead, general and administrative, and profit; employment taxes under FICA and FUTA; bonds; and any other readily available information which will help SBA to determine whether it will submit a request to the procuring agency for a procurement commitment.

(d) When requested by the SBA, the contracting officer of the procuring agency and his authorized representatives shall render all possible assistance to the SBA relative to its negotiations with eligible concerns regarding the pos

sible award of section 8(a) subcontracts. At the SBA's request, the contracting officer of the procuring agency or his authorized representatives may conduct the negotiations with eligible concerns, but any agreements which may be reached as the result of such negotiations must be approved by an authorized representative of the SBA.

(e) Generally, section 8(a) contracts between a procuring agency and the SBA will not be considered for specific items or work after such items or work have been synopsized in the Commerce Business Daily or publicized to or solicited from industry.

[37 FR 1037, Jan. 22, 1972]

§ 1-1.713-3 Procurement of supplies, services, and research and develop

ment.

(a) Factors to be considered. When a procuring agency receives a request from SBA which involves the procurement of supplies, services, or research and development, consideration shall be given to:

(1) Estimated total requirements of the identified items planned for procurement in the current fiscal year and, to the extent possible, future fiscal years;

(2) Required monthly rates of production and delivery or performance;

(3) Items of work of similar complexity and nature if there are no known requirements for the specifically identified items;

(4) Impact if the items or work are urgent or if slippage in performance or delivery occurs; and

(5) Any other information concerning the items or work of the prospective subcontractor which is pertinent to the requested commitments, including the price range in previous or current procurements.

(b) Cost or pricing data. When required by § 1-3.807-3, the SBA shall secure from its prospective subcontractor cost or pricing data, together with any necessary supporting certificate.

(c) Notification. After completing its review of the SBA's request for a commitment, the procuring agency will notify the SBA of the extent to which a section 8(a) contract will be placed with the SBA and the time frames within which the prime and subcontract actions have to be completed in order to satisfy the procuring agency's program responsibilities. This notification represents a firm commitment by the procuring

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 contract 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 a subcontract for all or a 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 a 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 a 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 subcontract:

the

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. [37 FR 1038, Jan. 22, 1972] § 1-1.713-4

tion.

Procurement of construc

(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 objectives of § 1-1.713-2. In the execution of this policy, the SBA will furnish to the procuring agency its request for a commitment showing at least the following information:

(1) The various categories of maintenance, repair, alteration, and construction work in such specific work project categories as mechanical, electrical, heating and air conditioning, demolition, building painting, paving, earth work, waterfront work, or general construction work; and

(2) The individual identification of the estimated dollar value in each category.

(b) Evaluation of SBA requests. The procuring agency will evaluate the SBA request for a commitment and determine to what extent the agency has proposed work projects for which funding is available in those requested categories. In the evaluation of the SBA request for a commitment, the matters considered shall include the following:

(1) The extent to which work projects of the type requested by SBA are planned for procurement in the current fiscal year and, to the extent known, future fiscal years; and

(2) Work projects of similar complexity and nature if there are no known work projects of the specific type requested.

it

(c) Lists of construction projects. In addition to specific individual requests by the SBA, the procuring agency shall furnish to the SBA, in accordance with a mutually acceptable schedule, lists of construction work projects which deems to be suitable for subcontracting by SBA under the section 8(a) program. (d) Cost or pricing data. When required by § 1-3.807-3, the SBA shall secure from its prospective subcontractor cost or pricing data, together with any necessary supporting certificate.

(e) Notification. After completing its review of the SBA request for a commitment, the procuring agency shall notify the SBA of the extent to which a section 8(a) contract will be placed with the SBA and the time frames within which the contract actions need to be completed in order to satisfy its program responsibilities. This notification represents a firm commitment by the procuring agency to award a contract to SBA under mutually acceptable terms and conditions, provided there is no material change in requirements, availability of funds, or other pertinent factors. The notification

20-126 0-74- -6

(f) Time limitations. In the notification to the SBA, the procuring agency may also fix a time limit (generally not less than 30 days after receipt of the notification) within which the SBA must establish contact with the designated procuring activity and initiate negotiations of the section 8(a) contract. If negotiations are not completed within the time frame established by the procuring agency, the designated procuring activity may notify the SBA that it intends to proceed with the procurement without further regard to the section 8(a) procedures, unless additional time is requested by SBA and granted by the procuring activity after due consideration for the urgency of the proposed procurement.

(g) Provisions of contracts with SBA. The procuring agency shall prepare two sets of contract documents as provided by this paragraph (g) after: (1) The SBA has completed negotiations with the eligible concern pursuant to the commitment made by the procuring agency; (2) the SBA and the procuring agency have reached mutual agreement concerning all terms and conditions (including price) to be included in the contract to be awarded by the procuring agency to SBA; and (3) the SBA and the procuring agency have agreed upon all the terms and conditions (including price) to be included in the subcontract to be awarded by SBA to the eligible concern.

(1) The contract to be executed between the SBA and the procuring agency shall be prepared by the procuring

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

tract shall be made directly to the subcontractor 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 a subcontract hereunder shall have the right of appeal from decisions of the contracting officer under the "Disputes" clause of the subcontract, 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