CLASS DEVIATION IMPLEMENTING THE NASA AND SBA PARTNERSHIP AGREEMENT (PA) TO
ALLOW DIRECT CONTRACTING WITH 8(a) FIRMS
Subpart 19.8—Contracting with the Small Business Administration (The
8(a) Program)
19.800 General. (No Change)
19.801 [Reserved] NASA/SBA
Partnership Agreement
[(a) By Partnership Agreement (PA) dated August 10, 2007, between
the Small Business Administration (SBA) and NASA, the SBA delegated to each
NASA installation and to NASA contracting officers, its authority under section
8(a)(1)(A) of the Small Business Act to enter into section 8(a) prime
contracts, and its authority under section 8(a)(1)(B) of the Small Business Act
to award the performance of those contracts to eligible section 8(a) program
participants. This authority is being
delegated on a pilot test basis and shall expire on September 30, 2009, unless
the PA is renewed by mutual agreement between NASA and SBA.
(b) The PA provides for the award of both contracts and purchase
orders. It encompasses all competitive
and non-competitive requirements offered and accepted by SBA into the 8(a)
program including but not limited to:
Acquisition of Commercial Items (FAR Part 12); awards under the
Simplified Acquisition Procedures (FAR Part 13); awards resulting from Sealed
Bidding (FAR Part 14); Contracting by Negotiation (FAR Part 15); and
Construction and Architect Engineer Contracts (FAR Part 36).
(c) The PA provides that
NASA may award contracts and purchase orders directly to the 8(a)
participant. An SBA signature on the
contract or purchase order is not required.
Awards may be made on a sole source basis or as a result of
competition.]
19.802 Selecting concerns for the 8(a) Program. (No Change)
19.803 Selecting acquisitions for the
8(a) Program. (No Change)
19.804 Evaluation,
offering, and acceptance.
19.804-1 Agency
evaluation. (No Change)
19.804-2 Agency
offering.
(a)
– (c) (No Change)
[(d) During the period of the PA identified in 19.801, the
notification shall clearly indicate that the offer is being processed under the
PA. All notifications should be faxed or
e-mailed to the SBA when possible and, in addition to the information required
by FAR 19.804-2 (a)-(c), shall specify –
(1) That under the PA, an SBA acceptance or rejection of
the offer is required to be transmitted to NASA within 5 working days of
receipt of the offer. The letter should
request that the SBA response be faxed or e-mailed to NASA;
(2) For sole source offers, that acceptance shall include
a size verification and a determination of the 8(a) participant’s program
eligibility, and that upon acceptance, the contracting officer will solicit a
proposal, conduct negotiations, and make award directly to the 8(a) firm; or
(3) For competitive offers, that upon acceptance, the
contracting officer will solicit offers and conduct source selection. The contracting officer will, upon selecting
an 8(a) contractor, submit the contractor’s name, address and telephone number
to SBA for eligibility verification. The
notice should be faxed or e-mailed to SBA if possible. SBA has 5 working days to transmit to NASA
that the 8(a) firm selected is eligible for award. Upon confirmation of eligibility by SBA or
after the 5 working days have elapsed, the contracting officer may award a
contract directly to the selected 8(a) program participant.]
19.804-3 SBA acceptance.
(a)
Upon receipt of the contracting agency’s offer, the SBA will determine whether
to accept the requirement for the 8(a) Program. The SBA’s decision whether to
accept the requirement will be transmitted to the contracting agency in writing
within 10 working days of receipt of the offer if the contract is likely
to exceed the simplified acquisition threshold [except for those requirements processed under the PA cited in 19.801
(see 19.804-3(e))] and within 2 days of receipt if the contract is at
or below the simplified acquisition threshold. The contracting agency may grant
an extension of these time periods. If SBA does not respond to an offering
letter within 10 days, the contracting activity may seek SBA’s acceptance
through the Associate Administrator (AA)/8(a)BD [except for those requirements processed under the PA cited in 19.801
(see 19.804-3(e))].
(b) – (d)
(No Change)
[(e) For requirements processed under the PA identified in 19.801,
SBA’s acceptance is required to be transmitted to NASA within 5 working
days. If an offer letter has not been
accepted within the 5 working days, NASA contracting officers may assume
acceptance of the 8(a) acquisition and may continue with the 8(a) procurement
process.]
19.804-4 Repetitive acquisitions,
through 19.804-6 Indefinite
delivery contracts. (No Change)
19.805 Competitive 8(a).
19.805-1 General.
(No Change)
19.805-2 Procedures.
(a)
Offers shall be solicited from those sources identified in accordance with 19.804-3.
[Announcement of the 8(a) solicitations
shall be made in the Commerce Business Daily and on the Internet, and a copy
sent to the SBA’s coordinating office.]
(b)-(d)
(No Change)
19.806 Pricing the 8(a) contract.
(a)-(d)
(No Change)
[(e) For requirements processed under the PA identified in 19.801,
SBA concurrence in the negotiated price is not required. However, except for purchase orders, the
contracting officer shall notify the SBA prior to withdrawing a requirement
from the 8(a) program due to failure to agree on price or other terms and
conditions.]
19.807 Estimating
fair market price. (No Change)
19.808 Contract negotiation.
19.808-1 Sole source.
(a) and
(b) (No Change)
[(c) For requirements processed under the PA identified in 19.801
–
(1) The contracting officer is responsible for initiating
and conducting negotiations;
(2) The agency may negotiate directly with the 8(a)
contractor; however, if requested by the 8(a) participant, the SBA may
participate in negotiations; and
(3) SBA approval of the contract is not required.]
19.808-2 Competitive. (No Change)
19.809 Preaward considerations. (No Change)
19.810 SBA appeals. (No Change)
19.811 Preparing the contracts.
19.811-1 Sole
source.
(a)
The contract to be awarded by the agency to the SBA shall be prepared in
accordance with agency procedures and in the same detail as would be required
in a contract with a business concern. The contracting officer shall use the Standard
Form 26 as the award form, except for construction contracts,
in which case the Standard
Form 1442 shall be used as required in 36.701(a).
[Awards under the PA identified in
19.801 may be made directly to the 8(a) contractor, and award documents shall
be prepared in accordance with procedures established for non-8(a) contracts
and purchase orders, using any authorized award form or equivalent electronic
forms. The “Issued by” block shall
identify the awarding NASA office. The
section 8(a) participant’s name and address shall be listed as the contractor.]
(b)
[Reserved] The agency shall
prepare the contract that the SBA will award to the 8(a) contractor in
accordance with agency procedures, as if the agency were awarding the contract
directly to the 8(a) contractor, except for the following:
(1)
The award form shall cite 41 U.S.C. 253(c)(5)
or 10 U.S.C. 2304(c)(5)
(as appropriate) as the authority for use of other than full and open
competition.
(2)
Appropriate clauses shall be included, as necessary, to reflect that the
contract is between the SBA and the 8(a) contractor.
(3)
The following items shall be inserted by the SBA:
(i)
The SBA contract number.
(ii)
The effective date.
(iii)
The typed name of the SBA’s contracting officer.
(iv)
The signature of the SBA’s contracting officer.
(v)
The date signed.
(4)
The SBA will obtain the signature of the 8(a) contractor prior to signing and
returning the prime contract to the contracting officer for signature. The SBA
will make every effort to obtain signatures and return the contract, and any
subsequent bilateral modification, to the contracting officer within a maximum
of 10 working days.
(c)
Except in procurements where the SBA will make advance payments to its 8(a)
contractor, the agency contracting officer may, as an alternative to the
procedures in paragraphs (a) and (b) of this subsection, use a single
contract document for both the prime contract between the agency and the SBA
and its 8(a) contractor. The single contract document shall contain the
information in paragraphs (b) (1), (2), and (3) of this subsection.
Appropriate blocks on the Standard
Form (SF) 26 or 1442 will be asterisked and a continuation sheet
appended as a tripartite agreement which includes the following:
(1) Agency acquisition office, prime contract number, name
of agency contracting officer and lines for signature, date signed, and
effective date.
(2)
The SBA office, the SBA contract number, name of the SBA contracting officer,
and lines for signature and date signed.
(3)
Name and lines for the 8(a) subcontractor’s signature and date signed.
[(c) For direct awards made under
the PA identified in 19.801 the contract shall –
(1) Cite 10 U.S.C. 2304(c)(5) as the authority for use of
other than full and open competition;
(2) Include the clause at 52.219-11 (Deviation) which
allows for direct award to the 8(a) contractor and identification of the
cognizant SBA district office for the 8(a) contractor;
(3) Not include an SBA contract number or signature; and,
(4) Include the name of the NASA Center/Installation in
the NASA contracting officer title in the signature block;]
(d) For
acquisitions not exceeding the simplified acquisition threshold, the
contracting officer may use the alternative procedures in paragraph (c) of
this subsection with the appropriate simplified acquisition forms. [The
contracting officer must provide an executed copy of the contract to the SBA
servicing District Office.]
19.811-2 Competitive.
(a)
[Awards made under the PA shall be
prepared in accordance with 19.811-1.]The contract will be prepared in
accordance with 14.408-1(d),
except that appropriate blocks on the Standard
Form 26 or 1442
will be asterisked and a continuation sheet appended as a tripartite agreement
which includes the following:
(1)
The agency contracting activity, prime contract number, name of agency
contracting officer, and lines for signature, date signed, and effective date.
(2)
The SBA office, the SBA subcontract number, name of the SBA contracting officer
and lines for signature and date signed.
(b)
The process for obtaining signatures shall be as specified in 19.811-1(b)(4).
19.811-3 Contract clauses.
(a)
[The contracting officer shall insert
the clause at 52.219-11, Special 8(a) Contract Conditions (DEVIATION), in
direct award contracts and purchase orders processed under the PA identified in
19.801.] The contracting officer shall insert the clause at 52.219-11,
Special 8(a) Contract Conditions, in contracts between the SBA and the agency
when the acquisition is accomplished using the procedures of 19.811-1(a)
and (b).
(b)
[Reserved]The contracting officer
shall insert the clause at 52.219-12,
Special 8(a) Subcontract Conditions, in contracts between the SBA and its 8(a)
contractor when the acquisition is accomplished using the procedures of 19.811-1(a)
and (b).
(c)
[Reserved] The contracting
officer shall insert the clause at 52.219-17,
Section 8(a) Award, in competitive solicitations and contracts when the
acquisition is accomplished using the procedures of 19.805
and in sole source awards which utilize the alternative procedure in 19.811-1(c).
(d)
The contracting officer shall insert the clause at 52.219-18,
Notification of Competition Limited to Eligible 8(a) Concerns [(Deviation)], in competitive
solicitations and contracts when the acquisition is accomplished using the
procedures of 19.805.
[the PA identified in 19.801].
(1)
The [NASA deviation to the] clause
at 52.219-18
with its Alternate I will be used when competition is to be limited to
8(a) concerns within one or more specific SBA districts pursuant to 19.804-2.
(2)
The [NASA deviation to the] clause
at 52.219-18
with its Alternate II will be used when the acquisition is for a product
in a class for which the Small Business Administration has waived the
nonmanufacturer rule (see 19.102(f)(4)
and (5)).
(e)
(No Change)
19.812 Contract
administration.
(a)
–(c) (No Change)
(d)
An 8(a) contract, whether in the base or an option year, must be terminated for
convenience if the 8(a) concern to which it was awarded transfers ownership or
control of the firm or if the contract is transferred or novated for any reason
to another firm, unless the Administrator of the SBA waives the requirement for
contract termination (13 CFR 124.515). The Administrator may waive
the termination requirement only if certain conditions exist. Moreover, a
waiver of the requirement for termination is permitted only if the 8(a) firm’s
request for waiver is made to the SBA prior to the actual relinquishment of
ownership or control, except in the case of death or incapacity where the
waiver must be submitted within 60 days after such an occurrence. The
clauses in the contract entitled “Special 8(a) Contract Conditions [(Deviation)]” and “Special 8(a)
Subcontract Conditions” require[s]
the [8(a) contractor] SBA and the
8(a) subcontractor to notify the contracting officer [and SBA] when ownership of the firm is being transferred. When the
contracting officer receives information that an 8(a) contractor is planning to
transfer ownership or control to another firm, the contracting officer must
take action immediately to preserve the option of waiving the termination
requirement. The contracting officer should determine the timing of the proposed
transfer and its effect on contract performance and mission support. If the
contracting officer determines that the SBA does not intend to waive the
termination requirement, and termination of the contract would severely impair
attainment of the agency’s program objectives or mission, the contracting
officer should immediately notify the SBA in writing that the agency is
requesting a waiver. Within 15 business days thereafter, or such longer
period as agreed to by the agency and the SBA, the agency head must either
confirm or withdraw the request for waiver. Unless a waiver is approved by the
SBA, the contracting officer must terminate the contract for convenience upon
receipt of a written request by the SBA. This requirement for a convenience
termination does not affect the Government’s right to terminate for default if
the cause for termination of an 8(a) contract is other than the transfer of
ownership or control.
PART 52 – SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.219-11 Special
8(a) Contract Conditions.
As prescribed in 19.811-3(a), insert the following clause:
Special 8(a) Contract Conditions (Feb 1990)
[(Deviation)]
The Small Business Administration (SBA)
agrees to the following:
(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) Except for novation agreements and
advance payments, delegate to the _________ [insert name of contracting 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 contracting 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) That payments to be made under any
subcontract awarded under this contract will be made directly to the
subcontractor by the ___________ [insert name of contracting 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.
(f) To notify the _________ [insert name
of contracting agency] Contracting Officer immediately upon notification by
the subcontractor that the owner or owners upon whom 8(a) eligibility was based
plan to relinquish ownership or control of the concern.
[(a) This contract is issued as a direct
award between the contracting activity and the 8(a) contractor pursuant to a
Partnership Agreement between the Small Business Administration (SBA) and the
National Aeronautics and Space Administration. Accordingly, the SBA is not a
party to this contract. SBA does retain responsibility for 8(a) certification,
8(a) eligibility determinations and related issues, and providing counseling
and assistance to the 8(a) contractor under the 8(a) program. The cognizant SBA
district office is:
________________________________________
________________________________________
________________________________________
________________________________________
[insert name and
address of cognizant SBA office]
(b) The contracting activity is responsible
for administering the contract and taking any action on behalf of the
Government under the terms and conditions of the contract; provided, however,
that the contracting activity shall give advance notice to the SBA before it
issues a final notice terminating performance, either in whole or in part, under
the contract. The contracting activity shall also coordinate with the SBA prior
to processing any novation agreement. The contracting activity may assign
contract administration functions to a contract administration office.
(c) The contractor agrees --
(1) To notify the Contracting
Officer, simultaneous with its notification to SBA (as required by SBA's 8(a)
regulations), when the owner or owners upon whom 8(a)
eligibility is based plan to relinquish ownership or control of the concern.
Consistent with Section 407 of Public Law 100-656, transfer of ownership or
control shall result in termination of the contract for convenience, unless SBA
waives the requirement for termination prior to the actual relinquishing of
ownership and control; and
(2) It will not subcontract the
performance of any of the requirements of this contract without the prior
written approval of the SBA and the Contracting Officer.]
(End of clause)
52.219-12 Special
8(a) Subcontract Conditions.
As prescribed in 19.811-3(b), insert the
following clause:
Special 8(a) Subcontract Conditions (FEB
1990)
(a) The Small Business Administration (SBA)
has entered into Contract No.________ [insert number of contract] with
the ____________ [insert name of contracting agency] to furnish the
supplies or services as described therein. A copy of the contract is attached
hereto and made a part hereof.
(b) The ___________ [insert name of
subcontractor], hereafter referred to as the subcontractor, agrees and
acknowledges as follows:
(1) That it will, for and on behalf
of the SBA, fulfill and perform all of the requirements of Contract No. ______
[insert number of contract] for the consideration stated therein and
that it has read and is familiar with each and every part of the contract.
(2) That the SBA has delegated
responsibility, except for novation agreements and advance payments, for the
administration of this subcontract to the _______ [insert name of
contracting agency] with complete authority to take any action on behalf of
the
Government under the
terms and conditions of this subcontract.
(3) That it 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 contracting agency].
(4) That it will notify the
__________ [insert name of contracting agency] Contracting Officer in
writing immediately upon entering an agreement (either oral or written) to
transfer all or part of its stock or other ownership interest to any other
party.
(c) Payments, including any progress payments
under this subcontract, will be made directly to the subcontractor by the
______ [insert name of contracting agency].
(End of clause)
52.219-13 through
-16. (No Change)
52.219-17 Section
8(a) Award.
As prescribed in
19.811-3(c), insert the following clause:
Section 8(a) Award (Dec 1996)
(a) By execution of a contract, the Small
Business Administration (SBA) agrees to the
following:
(1) To furnish the supplies or
services set forth in the contract according to the specifications and the
terms and conditions by subcontracting with the Offeror who has been determined
an eligible concern pursuant to the provisions of section 8(a) of the Small
Business Act, as amended (15 U.S.C. 637(a)).
(2) Except for novation agreements
and advance payments, delegates to the ______ [insert name of contracting
activity] the responsibility for administering the contract with complete
authority to take any action on behalf of the Government under the terms and
conditions of the contract; provided, however that the contracting agency shall
give advance notice to the SBA before it issues a final notice terminating the
right of the subcontractor to proceed with further performance, either in whole
or in part, under the contract.
(3) That payments to be made under
the contract will be made directly to the subcontractor by the contracting
activity.
(4) To notify the ___________ [insert
name of contracting agency] Contracting Officer immediately upon
notification by the subcontractor that the owner or owners upon whom 8(a)
eligibility was based plan to relinquish ownership or control of the concern.
(5) That the subcontractor awarded a
subcontract hereunder shall have the right of appeal from decisions of the
cognizant Contracting Officer under the "Disputes" clause of the
subcontract.
(b) The offeror/subcontractor agrees and
acknowledges that it will, for and on behalf of the SBA, fulfill and perform
all of the requirements of the contract.
(c) The offeror/subcontractor agrees that it
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 cognizant Contracting Officer of the ______________ [insert
name of contracting agency].
(End of clause)
52.219-18
Notification of Competition Limited to Eligible 8(a) Concerns.
As prescribed in
19.811-3(d), insert the following clause:
Notification of Competition Limited to Eligible 8(a) Concerns
(June 2003)
[(Deviation)]
(a)
Offers are solicited only from small business concerns expressly certified by
the Small Business Administration (SBA) for participation in the SBA’s 8(a)
Program and which meet the following criteria at the time of submission of
offer—
(1)
The Offeror is in conformance with the 8(a) support limitation set forth in its
approved business plan; and
(2)
The Offeror is in conformance with the Business Activity Targets set forth in
its approved business plan or any remedial action directed by the SBA.
(b)
By submission of its offer, the Offeror represents that it meets all of the
criteria set forth in paragraph (a) of this clause.
(c)
[Any award resulting from this
solicitation will be made directly by the Contracting Officer to the successful
8(a) offeror selected through the evaluation criteria set forth in this
solicitation.] Any award resulting from this solicitation will be made
to the Small Business Administration, which will subcontract performance to the
successful 8(a) offeror selected through the evaluation criteria set forth in
this solicitation.
(d)(1)
Agreement. A small business concern submitting an offer in its own name
shall furnish, in performing the contract, only end items manufactured or
produced by small business concerns in the United States or its outlying
areas. If this procurement is processed under simplified acquisition procedures
and the total amount of this contract does not exceed $25,000, a small business
concern may furnish the product of any domestic firm. This paragraph does not
apply to construction or service contracts.
(2)
The ____________ [insert name of SBA's contractor] will notify the
____________ [insert name of contracting agency] Contracting Officer
in writing immediately upon entering an agreement (either oral or written) to
transfer all or part of its stock or other ownership interest to any other
party.
(End of clause)
Alternate I (Apr 2005). (No
Change)
Alternate II (Dec 1996). (No Change)
