GENERAL PROVISIONS or reasonably obtainable information, including technical data (including drawings and specifications), procurement history. and bidders lists, and to procurement planning information. The SBA representative will be furnished such other available or reasonably obtainable information as may be required for the SBA referral program. 1.705-4 Certificates of Competency. (a) SBA has statutory authority to certify the competency of any small business concern as to all elements of responsibility including but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity except regulatory requirements under the jurisdiction of other Federal agencies. Contracting officers shall accept SBA certificates of competency as conclusive of a prospective contractor's responsibility (see 1.903-1, 1.903-2 and 1.903-3), unless the contracting officer has substantial doubt as to the concern's ability to perform, in which case the procedures in (f) and (g) apply. (b) In procurement where the highest competence obtainable or the best scientific approach is needed, as in certain negotiated procurement 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 competence obtainable or best scientific approach. However, if a small business concern has been selected on the basis of the highest competence obtainable or best scientific approach and, prior to award, the contracting I officer determines that the concern is not responsible, the certificate of competency procedure is applicable. a (c) If a bid or proposal of a small business concern is to be rejected because the contracting officer has determined the concern to be nonresponsible, the matter shall be referred to the appropriate SBA field office having the authority to process the referral in the geographical area involved. If required, guidance as to the location of the appropriate SBA field office may be obtained from an SBA representative assigned to the procurement office or the nearest SBA field office. This procedure applies only to proposed awards exceeding $10.000. A pre-award survey (see 1.905) shall be made prior to determination by a contracting officer that a small business I concern is not responsible on a proposed award of more than $10,000. Concurrent referrals of two or more bids or proposals, I rejected because of non-responsibility for a proposed award, shall not be made to SBA by the contracting officer. Final processing of a case. including possible issuance of certificate of competency, must be completed by SBA on each referral before the contracting officer may proceed with an additional referral on the proposed award to SBA. If a partial set-aside is involved and the bid of a small business concern on the unreserved I portion is to be rejected for non-responsibility and the same small business concern is entitled to consideration on the reserved portion of the set-aside if a certificate of competency CFR TITLE 41 CHAPTER 18 SMALL BUSINESS CONCERNS is issued by the SBA, the entire quantity of the procurement (reserved and unreserved) for which that small business concern may be entitled, if competent, shall be referred to SBA and the referral papers so noted. The SBA may then certify the small business concern for the maximum quantity of the procurement for which it has been determined responsible. The award shall be withheld until SBA action concerning issuance of a certificate of competency. or until 15 working days after the SBA is so notified, whichever is earlier, subject to the following: an (1) Under no circumstances will a referral be made to the SBA prior to a determination by the contracting officer that the offer of the small business concern is responsive. Except for procurements resulting in construction or service contracts, offer of an otherwise eligible nonmanufacturer shall not be referred to the SBA for certificate of competency action if the offeror agrees that he does not meet the definition of small business for preferential treatment purposes as prescribed in 1.701-1(a)(2)c. Disagreements will be resolved in accordance with 1.703(b). (ii) The activity performing the pre-award survey shall furnish the survey to the contracting officer. If the I contracting officer determines, in accordance with 1.904, that the small business concern is not responsible, he will refer the matter directly to the SBA, or he may notify the pre-award survey activity to refer the matter to the SBA, whichever is the more expeditious (e.g.. where the surveying activity is substantially closer to the cognizant SBA office than the procurement office. it may be more expeditious to have the surveying activity refer the matter to the Small Business Administration). A copy of the communication referring the matter to SBA shall be forwarded to the Director of Procurement. I NASA Headquarters. (111) (A) Upon making a determination to refer the matter to 1 the SBA, the contracting officer shall furnish to the SBA, or to the surveying activity, whichever is consistent with the action taken under (ii) above the data prescribed in (d) below. The procurement office that refers the matter to the SBA shall maintain close liaison with the SBA to assure compliance with (e) below. If the procurement office does not hear from the cognizant SBA field office within five working days after the matter has been referred, the procurement office will contact the SBA office to which the matter was referred to determine whether a certificate of competency is being processed. When, in accordance with (ii) above, the contracting officer has requested the pre-award survey activity to refer the matter to SBA, that activity shall keep the contracting officer advised of significant developments, including the results of any inquiry to the SBA at the end of the five working day period. and any new or additional facts, learned from the SBA, that warrant reversal of the pre-award survey activity's negative finding. NASA PROCUREMENT REGULATION GENERAL PROVISIONS (B) The NASA Director, Small and Minority Business Office identified in 1.704-2 shall be informed by the procuring activity small business specialist. in writing, on a quarterly basis, of all certificate of competency cases initiated during a particular quarter and of the final disposition made on cases during the quarter, including the number and dollar value of certificates of competency issued during the period. The information shall include company name, item being procured. solicitation number, dollar value of the procurement, and the date the case was submitted to SBA. In addition, advice and data will be furnished for all cases where (a) the small business concern elects not to file an application for a certificate of competency. or (b) SBA declines to issue a certificate of competency, or (c) the purchasing activity reverses the pre-award survey activity's negative finding concerning responsibility. withdraws the request for the certificate of competency, and makes the award. This reporting requirement shall be included in the Summary of Significant Matters related to the Small Business Program Reports Control No. 10000000029. (iv) Reserved (v) A referral need not be made to the SBA if a contracting officer determines a small business concern nonresponsible pursuant to 1.903-1(v) and such determination is approved by the head of the installation or his designee. (vi) A referral need not be made to the SBA if a small business concern has been suspended or debarred pursuant to E.0. 11246 or 1.600 of this Regulation. (vii) A determination by a contracting officer that a small business concern is not responsible, must be supported by substantial evidence documented in the contract files. (d) It is the policy of NASA to endeavor to reach agreement with the SBA regarding the responsibility of a small business concern. To assist the SBA and to assure that it has the benefit of the views of NASA, the SBA shall be, furnished three Next page is 1-7:257 CFR TITLE 41 CHAPTER 18 SMALL BUSINESS CONCERNS copies of the solicitation, one copy of the pertinent drawings and specifications, the pre-award survey findings. pertinent technical and financial information, and, if available, the abstract of bids, and other pertinent information which supported the contracting officer's determination of nonresponsibility. (e) SBA field offices will notify the contracting officer of each case where they (1) plan to issue a certificate of competency. or (14) are submitting a case to SBA, Washington, D.C., for approval prior to issuance of a certificate of competency. and to 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 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 of SBA. Personnel from a procurement office. who participated in a pre-award survey of the prospective contractor shall be prepared to discuss with the SBA the basis for the pre-award findings. Every effort should be made to resolve any differences between the SBA and NASA through a complete exchange of pre-award information developed by each agency. (f) One of the following courses of action shall be taken subsequent to discussions or a meeting between representatives of the contracting officer and SBA field offices: (1) if the new and additional facts presented by the SBA field office representatives SO warrant, the negative determination as to responsibility of the apparent low bidder or i 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 by SBA. The contracting officer shall promptly inform the SBA field office of his intention to take such action and the anticipated date of contract award. (ii) if agreement cannot be reached between the SBA field office and the contracting officer and substantial doubt still exists as to the ability of the contractor to perform, the contracting officer shall request the SBA field office to suspend action and to forward the case to SBA, Washington. D.C. for review. The contracting officer shall then forward through channels on an expedited basis a complete case file to the Director of Procurement with a request that the case be l considered for appeal to SBA Headquarters. This file wil1 include the data specified in (d) above. SBA's rationale for NASA PROCUREMENT REGULATION GENERAL PROVISIONS * proposing affirmative certificate of competency action, and the contracting officer's comments thereon. Procurement action shall be suspended until the contracting officer is informed by the Director of Procurement of the final decision in the case. If the Director of Procurement concludes that the request for certificate of competency action should be withdrawn and a contract awarded without benefit of a certificate of competency. the contracting officer will be so informed and provided written instructions on how to proceed with the procurement. If the Director of Procurement, agrees with the recommended appeal action of the contracting officer. he will request the SBA | Associate Administrator for Procurement Assistance, Washington, D.C., to review the proposed affirmative certificate of competency action of the SBA field office. If SBA, Washington, D.C., does not concur with the proposed affirmative certificate of competency action of its field office, it shall so inform the Director of Procurement. If SBA, Washington, D.C., concurs with the affirmative certificate of competency action proposed by the SBA field office it shall so inform the Director of Procurement. giving reasons for its position. Within 10 working days after receipt of such notice, or such longer time as may be agreed I upon, the Director of Procurement will inform the SBA Headquarters whether or not a formal appeal will be made. Such appeal will be presented to SBA Headquarters within 10 working days after the SBA has been informed that an appeal will be made, or at such longer time as may be agreed upon. The 15 day period referred to in (c) shall be automatically suspended when the contracting officer requests SBA to suspend action and to forward the request to SBA Headquarters for review in accordance with this paragraph. Following an appeal, the determination made by the SBA Associate Administrator relative to certificate of competency action shall be considered final and not subject to further appeal by NASA. (111) if agreement cannot be reached between the contracting officer and the SBA field office, the contracting officer may conclude it would not be practicable to appeal the case to the Washington SBA level nor would it be appropriate to withdraw his request for certificate of competency action. In that case, the contracting officer shall inform the SBA field office that it must issue a certificate of competency as a prerequisite to contract award. However, such action shall not be taken by the contracting officer without prior approval from the Procurement Officer. (g) If an SBA field office fails to give a contracting officer the opportunity to refer a proposed affirmative certificate of competency action to the Assistant Administrator for Procurement for review and possible appeal, appeal action described in (f) above may be taken by the contracting officer subsequent to the Issuance of a certificate of competency if he has substantial doubt as to the ability of the contractor to perform. CFR TITLE 41 CHAPTER 18 |