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, 2007October 02, 2009,
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
delegated and shall expire on September 30, 20092012, 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 should
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) – (b) (No
Change)
(c) All
requirements for 8(a) competition, other than construction, should be forwarded
to the district office servicing the geographical area in which the contracting
office is located. All requirements for 8(a) construction competition should be
forwarded to the district office servicing the geographical area in which all
or the major portion of the construction is to be performed. [For construction contracts to be performed
overseas, should be forwarded to SBA Headquarters.] All requirements,
including construction, must be synopsized through the GPE. For construction,
the synopsis must include the geographical area of the competition set forth in
the SBA’s acceptance letter.
[(d)
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, above the simplified acquisition threshold, 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, above the simplified acquisition threshold, that upon
acceptance, the contracting officer will solicit offers and conduct source
selection.
(e)
For acquisitions valued at or below the simplified acquisition threshold, a
separate offer and acceptance letter is not required. ]
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 [5]working days of receipt of the offer
if the contract is likely to exceed the simplified acquisition threshold 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. [For competitive
acquisitions, I]if SBA does not respond to an offering letter
[with a notification of rejection]
within 10 [5 working days of
receipt of an offer], the contracting activity may seek SBA’s acceptance
through the Associate Administrator, [Office
of Business Development] (AA)/8(a)BD.
[If the (AA)/BD does not reply to the
offer within 5 working days of receipt of the offer, the contracting activity
may assume acceptance on the sixth working day.
For sole source acquisitions, absent a notification of rejection within
5 working days of receipt of offer, the contracting activity may assume
acceptance on the sixth working day unless an extension has been granted.]
(b) If the acquisition is
accepted as a sole source, the SBA will advise the contracting activity of the
8(a) firm selected for negotiation. Generally, the SBA will accept a
contracting activity’s recommended source. [Acceptance
shall include a size verification and determination with respect to all
elements of eligibility (i.e., determinations of adverse impact, North American
Industry Classification System (NAICS) Code appropriateness and program
eligibility).]
(c) [For acquisitions at or below the simplified acquisition threshold,
a separate offer and acceptance letter is not required. Prior to award, the contracting officer shall
request a determination of eligibility of the selected 8(a) Participant from
the SBA. The SBA will review the program
eligibility of the 8(a) Participant within 2 working days after the request for
eligibility determination by the contracting officer. Absent a notification that the selected 8(a)
Participant is ineligible for the award within 2 working days, the contracting
officer may assume the 8(a) Participant is eligible and proceed with the award]
For acquisitions not exceeding
the simplified acquisition threshold, when the contracting activity makes an
offer to the 8(a) Program on behalf of a specific 8(a) firm and does not
receive a reply to its offer within 2 days, the contracting activity may
assume the offer is accepted and proceed with award of an 8(a) contract.
(d)
(no change)
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
(b) The SBA will
determine the eligibility of the firms for award of the contract. Eligibility
will be determined by the SBA as of the time of submission of initial offers
which include price. Eligibility is based on Section 8(a) Program
criteria.
(1) In sealed bid acquisitions, upon receipt of offers,
the contracting officer will provide the SBA a copy of the solicitation, the
estimated fair market price, and a list of offerors ranked in the order of
their standing for award (i.e., first low, second low, etc.) with
the total evaluated price for each offer, differentiating between basic
requirements and any options. The SBA will consider the eligibility of the
first low offeror. If the first low offeror is not determined to be eligible,
the SBA will consider the eligibility of the next low offeror until an eligible
offeror is identified. The SBA will determine the eligibility of the firms and
advise the contracting officer within 5 working days after its receipt of
the list of bidders. Once eligibility has been established by the SBA, the
successful offeror will be determined by the contracting activity in accordance
with normal contracting procedures.
(2) In negotiated acquisition, the SBA will determine eligibility
when the successful offeror has been established by the agency and the [contracting officer has submitted a
request for eligibility determination] transmitted for signature
unless a referral has been made under 19.809,
in which case the SBA will determine eligibility at that point. [The
SBA shall issue an eligibility determination for the apparent successful
offeror within 5 working days from the request of the contracting officer.]
(c)-(d)
(No Change)
19.806 Pricing the 8(a) contract.
(a) The
contracting officer shall price the 8(a) contract in accordance with Subpart 15.4.
If required by Subpart 15.4,
the SBA [contracting officer]
shall obtain cost or pricing data from the 8(a) contractor. If the SBA requests audit assistance to
determine the reasonableness of the proposed price in a sole source
acquisition, the contracting activity shall furnish it to the extent it is
available.
(b)-(c)
(No Change)
(d) [For acquisitions above the simplified
acquisition threshold, 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.] The
negotiated contract price and the estimated fair market price are subject to
the concurrence of the SBA. In the event of a disagreement between the
contracting officer and the SBA, the SBA may appeal in accordance with 19.810.
19.807 Estimating fair
market price. (No Change)
19.808 Contract negotiation.
19.808-1 Sole
source.
(a) The SBA is responsible
for initiating negotiations with the agency within the time established by the
agency. If the SBA does not initiate negotiations within the agreed time and
the agency cannot allow additional time, the agency may, after notifying the
SBA, proceed with the acquisition from other sources. [The
contracting officer is responsible for initiating and conducting negotiations.]
(b) The SBA should
participate, whenever practicable, in negotiating the contracting terms. When
mutually agreeable, the SBA may authorize the contracting activity to negotiate
directly with the 8(a) contractor. Whether or not direct negotiations take
place, the SBA is responsible for approving the resulting contract before
award. [The contracting officer shall negotiate directly with the 8(a)
Participant. If requested by the 8(a)
Participant, the SBA may participate in negotiations.]
[(c)
The contracting officer shall evaluate and document the 8(a) Participant’s
ability to comply with the requirements of 52.219-14 Limitations on
Subcontracting.]
19.808-2 Competitive.
In competitive 8(a)
acquisitions subject to Part 15,
the contracting officer conducts negotiations directly with the competing 8(a)
firms. Conducting competitive negotiations among 8(a) firms prior to SBA’s
formal acceptance of the acquisition for the 8(a) Program may be grounds for
SBA’s not accepting the acquisition for the 8(a) Program. [The contracting officer shall evaluate and document the
8(a) Participant’s ability to comply with the requirements of 52.219-14
Limitations on Subcontracting.]
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 [shall be made directly] to the SBA [8(a)
Participant and] 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).
(b)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.
(b)[The contract
to the 8(a) Participant shall:
(1) Cite 10 U.S.C. 2304(c)(5) as the
authority for use of other than full and open competition;
(2)
The “Issued by” block shall identify the awarding NASA office
(3)
The section 8(a) Participant’s name and address shall be listed as the contractor
(4) [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;]
(5)[Include
the name of the NASA Center/Installation in the NASA contracting officer title
in the signature block;]
(c) [The contracting officer shall provide an
executed copy of the contract or purchase order to the SBA servicing District
Office within 15 working days of contract award.] 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.
19.811-2 Competitive.
[Awards 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 contracts and
purchase orders awarded directly to the 8(a) contractor] 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.
(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) No change
(b) The agency
shall distribute copies of the contract(s) in accordance with Part 4.
All contracts and modifications, if any, shall be distributed to both the
SBA and the firm in accordance with the timeframes set forth in 4.201
[and to the SBA servicing District
Office within 15 working days of award.].
(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 signatory 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 [Reserved]
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. [Reserved]
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)
