§9-1.606-52 Initiation of action.

The Senior Procurement Official, Headquarters, with the concurrence of Counsel and after consultation with appropriate offices, shall determine whether causes and conditions exist to initiate a debarment action or to issue a notice of suspension.

§9-1.606-53 Notice of proposed debarment.

(a) The Senior Procurement Official, Headquarters, shall initiate a debarment proceeding by sending a notice of proposed debarment by registered mail (return receipt requested) to the firm or individual proposed for debarment.

(b) A notice of proposed debarment will:

(1) Concisely state the facts on which the proposed debarment is predicated.

(2) Specify the period of the proposed debarment.

(3) Inform the firm or individual of the action which DOE may take in the event a low bid or proposal is received from the firm or individual before the proposed debarment is finally determined.

(4) Inform the firm or individual of its right, within 20 days of the date of the notice of the proposed debarment, or such other time as may be specified in the notice, to request a hearing.

(5) Provide that the firm or individual may submit a written reply to the notice of proposed debarment within 20 days of its date, or such other time as may be specified in the notice. It shall further explain:

(i) That the reply shall set forth the facts on which the firm or individual intends to rely in contesting the Government's claim; and

ed.

(ii) That if a hearing is desired by the firm or individual, it must be specifically request

(6) Inform the firm or individual that if no reply or request for hearing is received within the time specified in the notice of proposed debarment, that the right to a debarment hearing shall be forfeited as of the date specified in the notice.

§9-1.606-54 Hearing.

A hearing, if requested, shall be conducted before the DOE Board of Contract Appeals. (See 10 CFR 703.117, "Hearings") The Board of Contract Appeals has the final agency authority to decide debarment cases provided that a hearing has been requested as provided in the notice.

§9-1.606-55 Final debarment determination after forfeiture of the right to be heard.

(a) If the Senior Procurement Official, Headquarters, on the basis of an analysis of all information, determines that the proposed debarment is not warranted, that official shall notify, in writing, the firm or individual concerned within 40 days after the notice of proposed debarment.

(b) If the Senior Procurement Official, Headquarters, on the basis of an analysis of all information, determines that the proposed debarment is warranted, that official shall transmit the recommendation for debarment, and all information on which such recommendation is based, to the head of the agency or designee. If the head of the agency or designee determines in writing to debar, the Senior Procurement Official, Headquarters, shall notify, in writing, the firm or individual within 40 days after the notice of proposed debarment. The determination shall accompany the notice confirming the proposed debarment. The notice confirming the proposed debarment shall state the effective date and the period of the debarment. The period of the debarment shall be no greater than that specified in the notice of proposed debarment.

§9-1.606-56 Notice of final debarment determination.

(a) The Senior Procurement Official, Headquarters, shall promptly notify all Senior Program Officials and Heads of Procuring Activities of all debarment actions taken pursuant to this subpart.

(b) The Senior Procurement Official, Headquarters, shall notify the General Services Administration of the names of all firms or individuals placed on or removed from the DOE list.

89-1.700 General.

Subpart 9-1.7 Small Business Concerns

This subpart sets forth the policies for the utilization of small business concerns in DOE procurements. The policies and procedures prescribed in FPR 1-1.7 and this subpart apply to all DOE procurements.

89-1.703-1 Certification.

The following certifications are to be used in procurements exceeding $10,000.

(a) The offeror certifies that he is ( ) is not ( ) a small business concern as defined in accordance with Section 3 of the Small Business Act (15 U.S.C. 832).

(b) The offeror certifies that he is a small business as set forth in (a) above and is () is not ( ) owned and controlled by socially and economically disadvantaged individuals. Such a firm is defined as one

(1) Which is at least 51 per centum owned by one or more such individuals or, in the case of a publicly owned business, at least 51 per centum of the stock is owned by such individuals.

(2) Whose management and daily business operations are controlled by one or more such individuals, and

(3) Which certifies concerning said ownership and control in accordance with paragraph (c) of this section.

(c) The offeror certifies that his is ( ) is not ( ) a minority individual(s) in accordance with paragraph (c)(1) of this section or that he is ( ) is not ( ) socially and economically disadvantaged in accordance with paragraph (c)(2) or (c)(3) of this section. Socially and economically disadvantaged individuals are defined as:

(1) United States citizens who are Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans or other specified minorities;

(2) Any other individual found to be disadvantaged pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637); or

(3) Any other individual defined by the Small Business Administration as socially and economically disadvantaged, for purposes relating to other sections of the Small Business Act.

Failure to execute all parts of the representation will be deemed a minor informality and the bidder or offeror shall be permitted to satisfy the requirement prior to award.

89-1.704 Agency program direction and operation.

89-1.704-1 DOE headquarters.

The Director of Small and Disadvantaged Business Utilization (SDBU), Headquarters, is responsible for the administration of the DOE small and small disadvantaged business programs. This includes responsibility for developing, implementing, executing, and managing these programs, providing advice on these programs, and representing DOE before other Government agencies on matters primarily affecting small and small disadvantaged businesses.

89-1.704-2 Other procuring activities.

Heads of Procuring Activities (HPAs) or designees, with the advice and consent of the Director, SDBU, shall appoint a small business/small disadvantaged business (SB/DB) specialist.

89-1.705-3 Screening of procurements.

(a) Individual Set-Asides. The Department has established a comprehensive review and screening process of procurement actions for possible participation in those actions by small business, small disadvantaged business, and labor surplus area concerns (see §9–16.804).

(b) Initiation of Class Set-Asides.-(1) Class Set-Asides. By agreement with SBA, DOE has established a class set-aside for procurements of construction where the estimated value is from $10,000 through $2 million including new construction and repair and alteration of structures. Lists of other class set-asides shall be maintained by all DOE procuring offices, including contractors who manage Government-owned sites. These lists shall be updated at least annually. (2) In establishing and reviewing small business class set-asides, consideration shall be given to contracting with SBA pursuant to FPR 1-1.705–7 as well as the set-aside priorities in FPR 1-1.706-1. The list of class set-asides maintained at DOE and contractor procuring activities shall identify corresponding priorities.

89-1.705-7 Performance of contract by SBA.

(a) Consideration will be given to contracting with SBA in order to foster or assist in the establishment or growth of SBA-designated socially and economically disadvantaged small busi

ness concerns.

(b) The SBA has delegated to its field offices authority to negotiate contracts and subcontracts under Section 8(a) of the Small Business Act. Heads of procuring activities or designees should assure full cooperation with SBA in efforts to place procurements with firms which are eligible for subcontract awards by SBA under Section 8(a). They shall take the necessary steps

to:

(1) Invite appropriate SBA field representatives to identify needs for 8(a) contracts and to provide for cooperation and assistance on the part of DOE in verifying the availability or nonavailability of requirements, funding and other pertinent factors;

(2) Propose any requirements which appear to offer potential opportunity for contracting with SBA under the authority of Section 8(a) of the Small Business Act, for consideration by appropriate SBA field representatives; and

(3) Work out detailed arrangements for individual 8(a) contracts with SBA offices, consistent with FPR 1-1.712. Any problems relating to contracting with SBA should be reported to the Director, SDBU, Headquarters.

(c) Once a product or service has been procured successfully from the SBA,-future requirements for similar products or services shali be considered for procurement from SBA. The SB/DB specialist shall maintain a list of recurring procurements subject to this subsection.

89-1.706 Procurement set-aside for small business.

89-1.706-1 General.

(a) Procurements of $10,000 or less awarded through small purchase procedures, are setaside for small business. (See §9-3.601)

(b) In addition to paragraph (a) of this section, Contracting Officers are authorized and encouraged to seek set-asides for all susceptible procurements including procurement of architectural and engineering services, research, development, test and evaluation.

89-1.706-5 Total set-asides.

It is DOE policy to use the preferred method of procurement known as “Small Business Restricted Advertising” for contracts involving total set-asides unless there are circumstances which make conventional negotiation necessary.

§9-1.710 Subcontracting with small business concerns.

Procuring activities shall maintain lists of active prime contracts containing the clause entitled "Subcontracting Plan for Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals."

89-1.710-3 Required clauses.

(a) On April 20, 1979, the Office of Federal Procurement Policy (OFPP) issued, in the Federal Register (44 FR 23610), its implementation of Section 211 of Pub. L. 95-507. This issuance as modified on June 18, 1979 (44 FR 35068), contains various subcontracting provisions and guidance for their use. FPR Temporary Regulation 50 (44 FR 38478) requires the use of OFPP's clauses and procedures.

DOE activities shall not utilize Part D, “Incentive Subcontracting Program," of OFPP's April 20, 1979 issuance, without prior approval of the Senior Procurement Official, Headquarters, or his designee.

(c) The following contract clause is to be included in formally advertised and negotiated procurements when there is a requirement for a small and small disadvantaged business subcontracting plan. Contracting Officers may modify this clause to specify the forms on which quarterly reports are to be submitted.

"Subcontracting Plan for Small Business Concerns and Small Business Con-
cerns Owned and Controlled by Socially and Economically Disadvantaged Individu-
als."

(a) the contractor agrees to comply in good faith with the Small and Small
Disadvantaged Business Concerns Subcontracting Plan which is hereby incorporated
in and made a part of this contract. In this connection, the contractor shall:
(1) Use his best efforts to attain such percentage goals as may be set forth
in the plan.

(2) Designate an individual who will:

(i) Maintain liaison with the Government on matters relating to small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals;

(ii) Monitor compliance with the clause entitled "Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals"; and

(iii) Administer the contractor's plan.

(3) Provide adequate and timely consideration of the potentialities of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals in all “make-or-buy" decisions.

(4) Assure that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals will, consistent with efficient performance of the contract, have the maximum practicable opportunity to compete for subcontracts, particularly by arranging solicitations, time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation of such concerns. Where the Contractor's lists of potential subcontractors which are small business and small business concerns owned and controlled by socially and economically disadvantaged individuals are excessively long, reasonable effort shall be made to give all such concerns an opportunity to compete over a period of time.