November 28, 2012
NASA AND SBA PARTNERSHIP AGREEMENT (PA) TO ALLOW DIRECT CONTRACTING WITH 8(a) FIRMS
PURPOSE: To implement the NASA/SBA Partnership Agreement (PA) that enables NASA contracting officers to contract directly with 8(a) contractors, streamlining the 8(a) contracting process, and to replace the previous implementing FAR class deviation provided by PIC 10-03B.
BACKGROUND: Since the late 1990s the SBA has signed PAs with interested Federal agencies to simplify the execution of Section 8(a) contract awards. The most recent SBA-NASA agreement was signed on October 20, 2009 and was extended twice expiring on November 30, 2012. It was implemented by PIC 10-03B. On November 27, 2012, a new PA was executed between SBA and NASA that establishes streamlined procedures for expediting the 8(a) Business Development (BD) Program award requirements pursuant to Sections 7(j) and 8(a) of the Small Business Act (15 U.S.C. 636(j) and 15 U.S.C. 637(a)). The objectives of the new PA are to:
1. Delineate the responsibilities as they relate to the oversight, monitoring, and compliance with procurement laws and regulations governing 8(a) contracts between SBA and NASA;
2. Establish the procedures for offer and acceptance between SBA and NASA;
3. Establish the time between when the NASA contracting office sends an offering letter to SBA and when it receives SBA’s decision. This period is limited to a maximum of five working days for requirements greater than the simplified acquisition threshold.
4. Remove the offering and acceptance letter requirement for actions below the simplified acquisition threshold. Program eligibility will be reviewed within two working after contracting officer request. Absent notification of program ineligibility the procuring agency may assume the 8(a) participant is eligible after the two day period;
5. Establish a requirement to refer offer letters to SBA Associate Administrator for Business Development if the cognizant SBA District office has not responded within five days for actions greater than $20M;
6. Emphasize that although SBA delegates the authority to sign contracts on its behalf, it remains the prime contractor on all 8(a) contracts and as such, must receive copies of the contract and any subsequent modifications;
7. Ensure subcontract limitations (52.219-14) are implemented into the resulting contracts IAW 19.811-3; and
8. Establish procedures for releasing renewals or follow-on requirements of existing 8(a) contracts from the 8(a) program.
GUIDANCE: A revised FAR class deviation is enclosed implementing the new PA. The deviation is substantively the same as that provided under PIC 10-03B. The class deviation works in conjunction with FAR 19.8 and FAR 52. When subsections within the deviation are notated with “no change” that signifies the corresponding FAR language is unchanged by the class deviation. When subsection or clause language is provided in the class deviation it replaces what is written in the FAR. This class deviation is mandatory for all applicable requirements generated after the effective date of this PIC. Ongoing requirements may be converted to these procedures with the written concurrence of the cognizant SBA field office.
CANCELLATION: PIC 10-03B, which expires on November 30, 2012, is superseded by this PIC.
EFFECTIVE DATE: This PIC is effective as dated and remains in effect, unless extended, superseded, or canceled.
HEADQUARTERS CONTACT: Craig Bowers, Office of Procurement, Analysis Division, (202) 358-2235, email: Craig.W.Bowers@nasa.gov.
William P. McNally
Assistant Administrator for Procurement
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)
(a) By Partnership Agreement
(PA) dated November 27, 2012, between the Small Business Administration (SBA)
and NASA, the SBA has 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 remain
in effect until modified or cancelled.
(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 should award contracts and purchase orders directly to the 8(a) Participant. An SBA signature on the contract or purchase order is not required.
19.804 Evaluation, offering, and acceptance.
(a) – (c) (No Change)
(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 five 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.
(4) For acquisitions valued at or below the simplified acquisition threshold no offering or acceptance letter is required.
(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 five working days of receipt of the offer if the contract is likely to exceed the simplified acquisition threshold. The contracting agency may grant an extension of these time periods. For all actions, competitive and sole source above the SAT threshold and under $20M, if SBA does not respond with a notification of rejection within five working days of receipt of an offer, the contracting activity may assume acceptance on the sixth working day. On all actions greater than $20 million, sole source and competitive, if an acceptance or rejection has not been received from the SBA District Office on the sixth working day, the contracting officer shall seek acceptance from the Associate Administrator, Office of Business Development (AA/BD). If a reply is not received from the AA/BD within five working days after the AA/BD receipt of the offer, on competitive actions the contracting officers may assume acceptance on the sixth working day.
(b) (No Change)
(d) (No Change)
19.804-4 Repetitive acquisitions (No Change)
19.804-5 Basic Ordering Agreements (No Change)
19.804-7000 Release for non-8(a) competition
(a) Renewals or follow-on awards to an existing 8(a) contract must remain in the 8(a) program unless SBA agrees to release it. Written requests will be sent to the AA/BD for concurrence. Release decisions will be made within ten working days.
(b) In the request include whether the agency is achieving its SDB, HUBZone, SDVOSB, WOSB and small business goals. The request shall address what other SB program will be used in lieu of the 8(a) program (HUBZone, SDVOSB, WOSB or small business). Release from the 8(a) program is unlikely if another SB program is not used.
(c) The release requirement does not apply to task or delivery orders accepted into the 8(a) program.
(b) [(No Change)]
(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 unless a referral has been made under 19.809, in which case the SBA will determine eligibility at that point. The SBA shall issue a determination for the apparent successful offeror within five working days from the request of the contracting officer.
(c)-(d) (No Change)
The contracting officer shall price the 8(a) contract in accordance with Subpart 15.4. If
required by Subpart 15.4, the contracting
officer shall obtain cost or pricing data from the 8(a) contractor.
(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.
19.807 Estimating fair market price. (No Change)
(a) The contracting officer is responsible for initiating and conducting negotiations.
(b) 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.
19.809 Preaward considerations. (No Change)
(a) The contract to be awarded by the agency shall be made directly to the 8(a) Participant and shall be prepared in accordance with agency procedures. 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 contract to the 8(a) Participant shall:
(2) The “Issued by” block shall identify the awarding NASA office
The section 8(a) Participant’s name and address shall be listed as the
Awards shall be prepared in accordance with
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 when the acquisition is accomplished using the procedures of 19.811-1(a) and (b).
(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.
(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)).
(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 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 clause
the contract entitled “Special 8(a) Contract Conditions (Deviation)” requires
the 8(a) contractor 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
[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.
The contractor agrees 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.
52.219-13 through 16. (No Change)
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
(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—
(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.