§ 3-1.604 Causes and conditions applicable

OS

to determination of debarment. Determination to debar or take other action concerning a firm or individual for a cause or condition for a specified period of time as provided in § 1-1.604 of this title shall be made by the Director, Office of Procurement and Materiel Management, OASAM. Whenever cause for debarment becomes known to any contracting officer, he may submit recommendations for debarment to the Director, Office of Procurement and Materiel Management, OS-OASAM, through administrative channels. Such recommendations shall be accompanied by the documented file of the case.

§ 3-1.604-1 Procedural requirements relating to the imposition of debarment. (a) Initiation of debarment action. The Director, Office of Procurement and Materiel Management, OSOASAM, after consultation with the Office of General Counsel, shall determine whether the facts are sufficient to warrant debarment. If the decision is not to debar, he will notify the contracting officer recommending the action. If he decides to institute debarment proceedings, he shall send a letter by certified mail (return receipt requested) to the firm or individual proposed for debarment. The letter shall (1) state that debarment is being considered, (2) set forth the reasons for the proposed debarment, and (3) state that such party will be accorded an opportunity for a hearing within 30 days from the date of receipt of such letter.

(b) Hearings. Hearings requested in connection with debarment proceedings shall be conducted before the Director, Office of Procurement and Materiel Management, OS-OASAM, or his designee. An opportunity shall be afforded to the firm or individual to 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 HEW 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.

§ 3-1.606 Departmental procedure.

The Director, Office of Procurement and Materiel Management, OSOASAM, is responsible for complying with the provisions of FPR 1-1.606.

Subpart 3-1.7-Small Business Concerns

SOURCE: 39 FR 22265, June 21, 1974, unless otherwise noted.

§ 3-1.704 Agency program direction and operation.

§ 3-1.704-1 HEW headquarters.

The Office of Grants and Procurement Management, OASAM, is responsible for the general supervision of the HEW small business program. Within the Office of Grants and Procurement Management (OGPM), the Director of Business Affairs is responsible for developing and managing the HEW small business program, advising the Deputy Assistant Secretary for Grants and Procurement Management and other HEW officials on small busi

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§ 3-1.704-2 Other procuring activities.

The head of the procuring activity (see § 3-75.101) or his designee shall appoint a qualified individual as a small business specialist, directly responsible to him, to serve as small business coordinator for the activity to provide a central point of contract to which small business concerns may direct inquiries concerning participation in the procurement program and small business matters. As deemed necessary, additional small business specialist shall be appointed in principal procurement offices. The principal small business specialist, through the appointing authority, shall be directly responsible to the Director of Business Affairs, (OGPM) for policies, technical guidance and assistance and in the resolution of complex matters involving higher echelons and other Government agencies. The small business specialist shall also perform such other functions as he is specifically directed to perform by this Subpart 3-1.7 and any additional functions which the head of the procuring activity may prescribe for the purpose of implementing the small business program. A copy of each appointment and termination of appointment of small business specialists shall be forwarded to the Director of Business Affairs, OGPM.

§ 3-1.704-3 Small business specialists.

The small business specialist appointed pursuant to § 3-1.704-2 shall perform the following duties as determined appropriate by the head of the procuring activity or his designee:

(a) Maintain a program designed to locate capable small business sources for current and future procurements, through SBA or other methods.

'The Director of Business Affairs is not responsible for matters pertaining to the minority business programs of the Department.

(b) Coordinate inquiries and requests for advice from small business concerns on procurement matters.

(c) Prior to issuance of solicitations (or contract modifications for additional supplies or services) in excess of $2,500, determine that small business concerns will receive adequate consideration including initiation of setasides (see § 1-1.706). This determination may be made jointly with the contracting officer or may be in form of a recommendation to him. Disagreements between the small business specialist and the contracting officer on proposed set-aside actions shall be resolved by the head of the procuring activity or his designee, whose decision shall be final except in those cases where an SBA representative intervenes as an interested party (see §§ 11.706-2 and 3-1.706-2).

(d) Review procurement programs for possible breakout of items suitable for procurement from small business

concerns.

(e) Advise small business concerns with respect to the financial assistance available under existing law and regulations and assist such concerns in applying for financial assistance, assuring that requests by small business concerns for proper assistance are not treated as a handicap in securing the award of contracts.

determinations

(f) Participate in concerning responsibility of a prospective contractor (see § 1-1.310) whenever small business concerns are involved and shall provide advice to the contracting officer concerning responsibility determinations of small business concerns.

(g) Participate in the evaluation of a prime contractor's subcontracting program (see § 3-1.710).

(h) Assure that participation of small business concerns is accurately reported (see § 3-1.709).

(i) Make available to SBA copies of solicitations when so requested.

(j) Act as liaison between the contracting officer and SBA field offices and representatives in connection with setasides, certificates of competency, and other matters in which the small business program may be involved. Procurements estimated to cost $100,000, or more, in which certificates

of competency are requested, shall be reported to the Director of Business Affairs, OGPM. The report shall contain a description of the requirement, a list of the bidders or proposers, and the contract prices specified in the bids or proposals submitted and the reason for the proposed rejection of an otherwise acceptable small business bid or proposal. Pertinent dates such as the required date for the completion of the procurement, the date of the request for the certificate of competency, etc., shall also be furnished.

(k) In cooperation with the contracting officer and technical personnel, seek and develop information on the technical competence of small business concerns for research and development contracts. Regularly bring to the attention of the contracting officers and technical personnel descriptive data, brochures, and other information as to small business concerns that are apparently competent to perform research and development work in fields which the operating agency is interested in.

the rationale therefor. Upon receipt of such recommendation, the contracting officer shall promptly (i) concur in the recommendation, or (ii) disapprove, stating in writing his reasons for disapproval. If the contracting officer disapproves the recommendation of the small business specialist, the case shall be promptly referred to the SBA representative (if one is assigned and available) for his review. The SBA representative will either concur in the decision of the contracting officer or appeal the case to the head of the procuring activity (see § 1-1.706-2(a)). No further appeal action will be taken by the small business specialist. If an SBA representative is not assigned or available, and the contracting officer notifies the small business specialist of his disagreement, the small business specialist may appeal, in writing, to the head of the procuring activity for decision. A memorandum of the decision of the head of the procuring activity shall be placed in the contract file. After receipt of a decision of the head of the procuring activity, which shall be final, and if the decision approves the action of the contracting officer, the small business specialist shall forward for information and management purposes complete documentation of the case to the Director of Business Affairs, OGPM. Documentation transmitted shall include as a minimum, (A) a copy of the IFB or RFP, (B) a list of sources solicited, indicating if the invites is small or large business by SBA definition, (C) copies of the reasons for or against set-aside submitted by the small business specialist and the contracting officer, (D) a copy of the head of the procuring activity's decision, and (E) a complete abstract of bids or proposals received indicating the successful bidder together with any other material considered by the head of the procuring activity in arriving at his decision. The small business specialist's transmittal letter shall contain an affirmative statement that the enclosures constitute the complete file reviewed and considered by the head of the procuring activity in making his decision.

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

(a) [Reserved]

(b) Concurrent with notification to the SBA representative or liaison, telephonic notification regarding all setaside withdrawals will be furnished to the Director of Business Affairs in the Office of Grants and Procurement Management, OASAM.

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

A class set-aside for small business 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 $1,000,000. Accordingly, the contracting officer shall set aside for small business each such proposed procurement. If, in his judgment, the particular procurement falling within the dollar limits specified above is unsuitable for a set-aside for exclusive small business participation, the procedure set forth in § 3-1.706-3 shall apply. Proposed procurements for construction, repair, and alteration work in an estimated amount of more than $1,000,000 shall be processed on a case by case basis.

§ 3-1.708 Certificate of competency program.

SBA has statutory authority (15 U.S.C. 637(b)(7)) to certify the competency (responsibility) of any small business concern as to capacity and credit. "Capacity" means the overall ability of a prospective small business contractor to meet quality, quantity, and time requirements of a proposed contract and includes ability to perform, organization, experience, technical knowledge, skills, know-how, technical equipment and facilities.

§ 3-1.708-2 Applicability and procedure.

(a) If a bid or proposal of a small business concern is to be rejected solely because the contracting officer has determined the concern to be nonresponsible as to capacity or credit, the matter shall be referred to the appropriate SBA field office having au

thority to process the referral in the geographical area where the small business concern is located. If required, guidance as to the location of the appropriate SBA field office may be obtained from the SBA representative assigned to the procurement office or the nearest SBA field office. Under no circumstances will a referral be made to the SBA prior to a determination by the contracting officer that a bid or proposal of the small business concern is responsive. Concurrent referrals of two or more bids or proposals, rejected because of lack of capacity or credit for a proposed award, shall not be made to SBA by the contracting officer. Final processing of a case, including possible issuance of a certificate of competency, must be completed by SBA on each referral before the contracting officer may proceed with an additional referral to SBA on the proposed award. The award shall be withheld pending either SBA issuance of a certificate of competency or the expiration of 15 working days after SBA is so notified, whichever is earlier, subject to the following:

(1) This procedure is not mandatory if the contracting officer certifies in writing that award must be made without delay and such certificate is approved by the principal procurement officer of the procuring activity (see § 3-1.704-4).

(2) A pre-award survey shall be made prior to a determination by a contracting officer that a small business concern is not responsible because of a lack of capacity or credit on a proposed award of more than $10,000.

(3) A determination by the contracting officer that a small business concern is not responsible for reasons other than deficiencies in capacity or credit shall be approved by the principal procurement officer of the procuring activity (see § 3-1.704-4).

the nearest SBA regional office, as appropriate.

(ii) The SBA office receiving the documentation will within 5 working days after receipt of the documentation notify the contracting officer in writing whether SBA desires to submit contrary views concerning the determination.

(iii) If the contracting officer is not so notified, he may conclude that SBA has no objection to the determination and he may then submit it to the principal procurement officer of the procuring activity for approval.

(iv) If the contracting officer does not agree with the SBA position, he shall then forward the determination to the principal procurement officer of the procuring activity for resolution with an explicit indication of his views and the contrary SBA position. The decision of the principal procurement officer shall be final.

(v) The provisions of §§ 1-1.7082(a)(1) and 3-1.708-2(a)(1) apply if the award must be made without delay. In such instances the determination of nonresponsibility for reasons other than deficiencies in capacity or credit shall be submitted immediately to the principal procurement officer of the procuring activity for approval. In all other instances the provisions of §§ 11.708-2(a)(5) (i) through (v) and 31.708-2(a)(3) (i), (iii), and (iv) shall apply.

(vi) The Director of Business Affairs, OGPM, shall be informed promptly in writing of all cases where (a) a small business concern elects not to file an application for a certificate of competency, or (b) the SBA declines to issue a certificate of competency, or (c) the procurement officer reverses the preaward survey negative finding.

In procurement where the highest competency obtainable or the best scientific approach is needed, as in certain negotiated procurements of research and development, highly complex equipment, or professional services, the certificate of competency procedure is not applicable to the selection of the source offering the highest competency obtainable or best scientific approach and, prior to award, the contracting officer determines that the concern is not responsible because

of lack of capacity or credit, the certificate of competency procedure is applicable.

(b)(1) SBA field offices will notify the contracting officer of each case where they (i) plan to issue a certificate of competency, or (ii) are submitting the case to the SBA Central Office, Washington, D.C., for approval prior to issuance of a certificate of competency; and provide the contracting officer or his designated representative with a brief written statement citing the reasons for SBA's proposed affirmative action. Prior to final SBA field office action, the contracting officer will be afforded an opportunity to meet or communicate with SBA field office representatives and furnish to them new or additional information on the case. Copies of significant data developed by SBA that are pertinent to the case will be made available, upon request, to the contracting officer, or his representative, at such meeting or through correspondence. SBA case files may be examined at the meeting and pertinent notes taken by the contracting officer or his representative, but such files will not be released outside SBA.

(2) One of the following courses of action shall be taken subsequent to discussions of a meeting between representatives of the contracting officer and SBA field offices:

(i) If new and additional facts presented by the SBA field office representatives so warrant, the negative determination as to capacity or credit of the apparent low bidder or offeror shall be reversed, the referral to SBA shall be withdrawn, and the contract award shall be made without the necessity for issuance of a certificate of competency.

(ii) If agreement cannot be reached between the SBA field office and the contracting officer and substantial doubt still exists as to the ability (capacity or credit) of the contractor to perform, the contracting officer shall request the SBA field office to suspend action to permit referral of the case to the SBA Central Office, Washington, D.C. for review. Simultaneously, the contracting officer shall forward to the Director of Business Affairs, OGPM, through administrative