United States Office of
Environmental Protection Small and Disadyantaged
Agency Business Utilization
August 1992
Preferential
Procurement Program
Handbook
For Project Officers,
Contract Officers, and
Small Business
Specialists
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U.S. ENVIRONMENTAL PROTECTION AGENCY
PREFERENTIAL
PROCUREMENT PROGRAM
HANDBOOK
FOR
PROJECT OFFICERS
CONTRACT OFFICERS AND
SMALL BUSINESS SPECIALISTS
OFFICE OF SMALL AND
DISADVANTAGE!) BUSINESS
UTILIZATION
AUGUST 1992
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FOREWORD
This Handbook is designed to assist contract officers, project
officers, and small business specialists in promoting the increased
utilization of small, small disadvantaged, minority, and women-
owned firms through the Agency's acquisition activities. The
Handbook outlines the procedures needed to be followed in
contracting and subcontracting with these business entities.
Building strong, viable, and competitive entities can be a
challenging and rewarding experience. Small businesses are the
largest generators of job opportunities and keeping them healthy
and viable helps to create economic independence and ensures that
our Nation will remain strong and free.
Your continuing commitment.to and support for the advancement
of socioeconomic concerns are vital to the success of the Agency's
Preferential Procurement Program effort.
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TABLE OF CONTENTS
PREFERENTIAL PROCUREMENT PROGRAM
PAGE NO.
FOREWORD
PART I - PREFERENTIAL PROCUREMENT PROGRAM
Purpose and Authority 1
Policy 1
Background 2-3
Objectives 3-4
Annual Goals, Forecast and Accomplishments 4-5
Appointment of SDBS 5-6
Qualifications of Agency SDBS 6-8
Responsibilities of the OSDBU Director 8-11
PART II - SECTION 8(A) PROGRAM
Purpose and Authority 12
Background 12-13
Policy 12-13
Eligibility 13-14
Competition 15
Support to 8 (a) Contractors 15-16
Implementing Procedures 16-25
PART III - SMALL BUSINESS SET-ASIDE PROGRAM
Purpose and Authority 25
Background 25-26
Definitions 26
Small Business Size Status 26-27
Criteria for Set Asides 27
Types of Small Business Set-Asides 27-29
Establishing Set-Asides 29-32
PART IV - LABOR SURPLUS AREA PROGRAM
Purpose and Authority 32
Policy 33
Background 33-34
Definition 34
Implementing Procedures ; 34-35
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TABLE OF CONTENTS
(continued)
PREFERENTIAL PROCUREMENT PROGRAM
PAGE NO.
PART V - SUBCONTRACTING PROGRAM
Purpose and Authority 35
Background 35-36
Definitions 36
Types of Subcontracting Plans 36-37
Applying Subcontracting Provisions 37
Implementing Procedures 38-39
Subcontracting Plan Reports 39-40
Final Performance Assessment 40-41
APPENDIXES
#1 EPA Form 1900-37 42
#2 SBA Offering Letter 43
#3 SF 295 Summary Subcontract Report 44
ii
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PART I - PREFERENTIAL PROCUREMENT PROGRAM
1. Purpose. This handbook establishes uniform policies and
procedures, and assigns responsibilities for implementing the
Environmental Protection Agency's (EPA) Small and Disadvantaged
Business Utilization (SDBU) Program. The SDBU Program is divided
into eight major components: (1) socially and economically
disadvantaged business (8(a), (2) small business set-asides, (3)
minority business (non 8(a)), (4) labor surplus area set-asides,
(5) women-owned business concerns, (6) subcontracting, (7) rural
area small business, and (8) Historically Black Colleges and
Universities (HBCUs). This handbook provides an in-depth
discussion on the FAR and EPA policies and procedures which must be
followed when contracting and subcontracting with small
disadvantaged businesses, including women-owned entities.
2. Authority. The EPA's Office of Small and Disadvantaged
Business Utilization (OSDBU) implements the Preferential
Procurement Programs in accordance with the following:
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a. The Small Business and the Small Business Investment Act
of 1958 (Public Law (P.L. 85-536), as amended by P.L.s 95-89, 95-
507, 96-302, 99-591, 100-533 and 100-656.
b. Executive Orders 11625 and 12432, Minority Business
Enterprise.
c. Executive Orders 12138 and 12426, Women-Owned Business
(WOB) Enterprise.
d. Federal Acquisition Regulations (FAR) 48 CFR, Parts 19
and 20, Small Business and Labor Surplus Area respectively.
e. Environmental Protection Agency's Acquisition Regulations
(EPAAR), EPA Part 1519.2, Small and Small Disadvantaged Business
and Labor Surplus Area (LSA), respectively.
f. Public Law 101-507, EPA's Appropriations Act of 1990
which requires at least 8% of Federal funds for contracting to be
made available to SDBs.
g. Public Law 101-549, Clean Air Act of 1990 which requires
a 10% SDBE goaling provision for air research contracts.
3. Policy. It is the Environmental Protection Agency's policy to
ensure that small business, small disadvantaged business, 8(a)
business, women-owned business, labor surplus business concerns,
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HBCU(s) and Rural Area small businesses are provided the maximum
practical opportunity to compete for and receive a fair proportion
of the Agency's total acquisition dollars.
4. Background. For many years the Government has been committed
to improving the opportunities of small businesses and small
businesses owned and controlled by socially and economically
disadvantaged persons. The concept of assisting small business and
small disadvantaged business concerns originated with the
recognition that certain communities of the producing sector merit
special consideration in Government procurement as a means of
assuring them an equal opportunity to receive Government prime
contracts and subcontracts resulting therefrom. This concept was
manifested in 1958 by the enactment of Public Law 85-536 (Small
Business Act) which established statutory mandates for Federal
assistance to small businesses. Such assistance included
management consulting, financial loans, procurement set-asides.
certificates of competency, and advocacy programs. The Act was
amended in 1977 by P.L. 95-89 to provide statutory authority for
the Labor Surplus Area (LSA) Program, and to authorize Federal
agencies to set aside contracts to contractors which agree to carry
out a substantial portion of their contract work in Labor Surplus
Areas. In 1977, Executive Order 12138 was issued to initiate
action for channeling Government services to women-owned businesses
(WOB).
The Federal commitment to support small business was reinforced by
Public Law 95-507, which amended the Small Business Act. This law
established the requirement for small business/small purchase set-
asides, and for subcontracting plans submitted by prime
contractors. It also provided a statutory basis for the Section
8(a) business development program. P.L. 95-507 further required
each Federal agency to establish an Office of Small and
Disadvantaged Business Utilization (OSDBU) in which the Director
shall be responsible only to and report directly to the head of the
Agency or the deputy. (The EPA established its OSDBU in July 1979
under the Office of the Administrator).
The Section 8(a) Program, technically called the Minority Capital
Ownership Development Program, was further enhanced by the
enactment of P.L. 100-656, another Amendment to the Small Business
Act. The primary focus of this Amendment was to address overall
programmatic deficiencies and reaffirm business development
objectives directed towards establishing the basic framework for
sound business development. The significant features of the Law
include:
a. Affirming that the Section 8 (a) authority is used
exclusively for business development purposes to help small
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businesses owned by the socially and economically disadvantaged to
compete on an equal basis in the mainstream of the American
economy.
b. Affirming that the measure of success in the Section 8(a)
program is the number of competitive firms that exit the program
without being unreasonably reliant on Section 8(a)
contracts, and that are able to compete on an equal basis in the
mainstream of the American economy.
c. Insuring that the program benefits accrue to individuals
who are both socially and economically disadvantaged.
These Laws and Executive Orders designate specific Federal agencies
as lead agencies in strengthening and promoting the Government-wide
Preferential Procurement Programs as follows:
(1) Small Business Administration (S6A) is responsible
for the small business set-aside, and small, socially and
economically disadvantaged business (8 (a)), WOB, and subcontracting
programs.
(2) The U.S. Department of Commerce (DOC) through its
Minority Business Development.Agency (MBDA) , is responsible for the
minority business (non 8(a)) program which includes both large and
small minority concerns.
(3) General Services Administration (GSA) is responsible
for the LSA program.
Each Federal department and agency is required to cooperate with
and support SBA, DOC and GSA in the promotion of and greater
development of small and small disadvantaged businesses, including
women-owned entities.
5. Objectives. The objectives of the Small and Disadvantaged
Business Utilization (SDBU) Program are to:
a. Promote opportunities for small business, small
disadvantaged business concerns, and small women-owned entities, to
participate in the EPA acquisition programs. This includes: ,
(1) Awarding contracts to small and small disadvantaged
business concerns through 8(a) procedures, small business set-
asides, or normal competitive procedures to the maximum practicable
extent.
(2) To aid in assuring the achievement of the overall
socioeconomic goals for all EPA major programs.
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(3) Encouraging the use of small disadvantaged business
and small women-owned concerns as suppliers and subcontractors by
large prime contractors.
b. Disseminate information about those laws administered by
the Agency which affect contractor and subcontractor activities.
c. Provide assistance to small disadvantaged business and
small women-owned concerns either directly or through the Agency's
major headquarters and field buying activities.
d. Encouraging project officers to share in the responsi-
bility for meeting socioeconomic program goals and participating
actively towards achievement.
6. Annual Goals. The Small Business Act (15 U.S.C. 644(g)) as
amended by Section 502 of P.L. 100-656, requires that the President
shall annually establish two Government-wide procurement goals for
contract awards: One for contract awards to small businesses, and
another for contract awards to small disadvantaged businesses. The
President delegated this responsibility to the Director, Office of
Management and Budget. The statutory minimum goal for small
business participation must be at least 20 percent of the total
value of the Government's direct prime contract awards. The
statutory minimum for small disadvantaged business participation
shall be at least 5 percent of the total value of Government-wide
prime contract awards and 5 percent of the total value of
subcontract awards.
The Act further requires that the "head of each Federal agency
shall, after consultation with the Small Business Administration,
establish goals for the participation by small business concerns,
and small business concerns owned and controlled by socially and
economically disadvantaged individuals, in procurement contracts".
Individual agencies' goals must represent the estimated maximum
practicable opportunity for socioeconomic firms to participate in
the performance of contracts let by the Agency. The SBA also
negotiates goals for women-owned businesses pursuant to Executive
Order 12138. The Administrator of General Services is responsible
for negotiating goals for labor surplus area set-aside awards. The
EPA, through its OSDBU, carries out the mandates of these laws and
executive orders.
Section 9 of the Act, as amended by the Small Business Innovation
Development Act, P.L. 97-219, requires each Federal agency with
research and development (R&D) budgets which exceeds $20 million
for any fiscal year to establish goals for R&D awards to small
businesses. The annual goal must be at least the percentage of the
R&D budget expended by the Agency with small business concerns in
the immediately preceding fiscal year.
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7. Forecast of Contract Opportunities for Small or Small
Disadvantages Business. Section 501 of the Small Business Act, as
amended by P.L. 100-656, mandates that each Federal agency with
aggregate contracting dollars exceeding $50M in 1988, or in any
succeeding fiscal year, shall prepare a forecast of expected
contract opportunities (individual or class) over $25,000 to be
awarded to small or small disadvantaged businesses during the
succeeding fiscal year. The forecast shall include a description
of the purchase, the product or service code, the estimated value,
the estimated quarter for release of the solicitation, and the name
and telephone number of a contact person for each entry. The EPA's
program offices shall submit EPA's annual forecast information to
the small and minority business community. The Agency's forecast
shall reflect requirements for the utilization of small businesses
and 8(a) companies. The forecast shall be submitted to OSDBU upon
request in accordance with the due date established by SBA, which
is expected to be no later than June 15th, for the following fiscal
year.
8. Accomplishments. Congress has mandated the SBA, in
conjunction with the Office of Federal Procurement Policy,
responsibility to ensure that the cumulative annual prime contract
goals for all agencies meet or exceed the annual Government-wide
prime contract goal. Section 503 of P.L. 100-656 requires SBA to
report agencies' actual achievements of goals to the President for
inclusion in his State of Small Business Report. Thus, agencies
are required to submit cumulative reports of performance against
goals to the SBA and the GSA on a quarterly basis. The reports
shall comply with the SBA annual guidelines, and must contain an
analysis of any failure to achieve the current fiscal year goals
and the actions planned to achieve goals in the succeeding fiscal
year.
9. Appointment of Agency Small Disadvantages Business
Specialist(s) (Appointment Procedures). The Director of each EPA
major buying facility (i.e., Durham, Cincinnati, and Washington)
shall appoint, in writing, to the Director, OSDBU, a qualified,
senior-level , small and disadvantaged business specialist (SDBS)
to carry out the day-to-day responsibility for operating the SDBU
Program within the appropriate buying facility. Appointments shall
be made on a full or part-time basis, depending on the volume of
work within the Agency. However, appointments which are on a part-
time basis, shall clearly indicate that the part-time nature of the
appointee's duty shall not, in any way, relieve individuals from
full responsibility for effectively accomplishing the objectives of
the SDBU Program.
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Each Director of the Agency's major buying facility, with the
concurrence of the Director, OSDBU, and in accordance with the
above guidelines, shall appoint an SDBS to perform the SDBS duties
consistent with the level of small business program activity in the
respective facility. SDBS appointment document shall clearly state
that the assignment is effective only as long as the individual
holds his/her current position. New appointments shall be made
immediately whenever a vacancy occurs.
10. Qualifications ef Agency Small Business Specialists. All SDBS
appointments must be at a grade level which enables him/her to
carry out the SDBU Program in an independent manner. Appointments
at the National level shall be at the GS or GM 12 level or higher,
and appointments at the Regional level shall be at the GS 11 level
or higher. Individuals performing SDBS duties shall be in the 1101
or 1102 series. Such individuals shall have training related to
EPA's SDBU Program; experienced in contracting; and be well versed
in small business matters.
The SDBS functions shall be separate from the procurement
operations function, but he/she must possess a working knowledge of
acquisition regulations and procedures.
11. Agency's Small and Disadvantages Business Specialists are the
on-site operating arm of the EPA SDBU Program. It is their
responsibility to:
a. Review all procurement requisitions in excess of $25K for
small business, 8(a) and labor surplus area set-asides. The review
shall be documented on Form 1900-37, shown in Appendix #1.
b. Review and document in writing, all requisitions over
$5,000 which are subject to small purchase procedures to ensure
that they are reserved for small business concerns, or to ascertain
that no small business sources are available from which to obtain
two or more competitive offers or quotations as required by Section
221 (j) of P.L. 95-507, and Section 13.10(a) of Federal Acquisition
Regulations.
c. Review all proposed contracts over the subcontracting
plan threshold of $500K (negotiated) and $1M for construction to
make recommendations for subcontracting possibilities.
d. Serve as the Agency's primary contact to coordinate with
the OSDBU, the SBA PCR, and the contracting officer on small
business matters, and to keep the Agency program and management
personnel abreast of improvements in the SDBU Program.
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e. Develop and maintain a program to identify new and
emerging small, LSA, small disadvantaged, and women-owned
businesses having potential capabilities to fulfill EPA procurement
requirements, and assuring that such firms are included on the
contracting office solicitation mailing lists.
f. Coordinate inquiries from, advise, and counsel small and
disadvantaged business concerns on ways to increase their
participation in the Agency's contract and subcontract
opportunities, and serve as the focal point to ensure that small
business sources have access to appropriate acquisition,
management, technical and other program and project personnel.
g. Be knowledgeable of the Agency's Annual Advance
Procurement Plan and small and disadvantaged business goals. The
plans should be reviewed by the SDBS in concert with the SBA PCR,
and assessed for set-aside possibilities or for possible breakout
of items suitable for acquisition from small business sources.
h. Assist project officers with, and be knowledgeable of the
Agency's Forecast of Contract Opportunities, to identify potential
set-asides, and assist vendors in marketing to the appropriate
program offices.
i. Assist small businesses to obtain timely payments, late
payment interest penalties, or information due to such concerns in
conformance with Chapter 39 or 31 , U.S.C., by coordinating with
the Agency's Prompt Payment Officers.
j. Assist program management as early as possible in the
acquisition cycle to identify potential 8(a), small business/LSA or
WOB sources, including arranging for and attending marketing
presentations by such firms.
k. Verify that solicitations which are for potential award
under Section 8(a) small business and/or LSA set-asides procedures
clearly set forth the applicable Standard Industrial Classification
(SIC) Code and small business size standards.
1. Furnish specifications, plans, and drawings with
solicitations, or provide information in the solicitation on where
such can be obtained or examined.
m. Encourage prime contractors to establish aggressive and
innovative programs to subcontract with small business and small
disadvantaged business concerns, including small women-owned
entities.
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n. If prime contractors have not made a good faith effort to
achieve their subcontracting plan goals, consult with the Director,
OSDBU, relative to not meeting the goals, and proceed to take steps
to initiate liquidated damages against such contractors, if
warranted.
12. Reg .irement Reviews. Every acquisition with an estimated
value of $25K or greater shall be reviewed by the Agency's SDBS
prior to forwarding to the contracting activity, to ensure that
small and small disadvantaged business, including women-owned
concerns are given the maximum opportunity to participate in the
Agency's procurement activities. The SDBS shall also determine the
set-aside priority as identified below. The SDBS shall provide the
names of small, small disadvantaged, women-owned, and/or labor
surplus area business sources to be included on the solicitation
mailing list. The SDBS shall document the review and
recommendation on the Acquisition Screening and Review EPA Form
1900-37, Record of Procurement Request Review.
In order to conduct an effective review, the PCR may need to meet
with contracting and/or technical personnel. As a rule, the PCR
will include a listing of small business sources when recommending
set-asides. Such sources shall be included on the solicitation
mailing list.
b. The contracting officer may reject the OSDBU or PCR
recommendation for set-aside. The SBA PCR may either concur with
the contracting officer's decision or appeal the case in accordance
with the procedures in FAR 19.505. The appeal may be elevated to
the level of the SBA Administrator and the Administrator of EPA.
The Administrator's decision is final. The Director, OSDBU, shall
be kept abreast of any such appeals and their outcome.
13. Responsibilities of EPA OSDBU Director has overall
responsibility for managing and developing, coordinating and
monitoring an effective Agency-wide SDBU Program. Such
responsibility includes developing policies, procedures, and
operating guidelines; establishing program priorities; establishing
and monitoring EPA goals for the preferential programs; conducting
required analysis for and preparing reports on the extent of small
and disadvantaged business participation in acquisition activities.
The Director, OSDBU, also has supervisory authority over Agency
SDBS to the extent that their functions and duties relate to the
SDBU Program in accordance with Section 15 of P.L. 95-507.
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14. Responsibilities of EPA Program Managers. Each Program
Assistant or Associate Administrator is responsible for developing
its Preferential Procurement Goals on a fiscal year basis. The
goals are developed in consultation with the supporting Chiefs of
Contracting Offices and local Small and Disadvantaged Business
Specialists (SDBS) and the OSDBU. The goaling process is performed
in accordance with FAR Part 19.2 as supplemented by EPA Part
1519.2.
15. Program Management Officers are responsible for coordinating
with the appropriate procurement office for ensuring the maximum
utilization of the socioeconomic firms. In carrying out this
function, program officers shall (1) ensure that advance annual
procurement plans reflect full participation of small and
disavantaged business concerns; (2) coordinate with the SDBS to
identify work which can be performed by socioeconomic firms; (3)
ensure that requirements are structured and tailored to permit SDB
firms to participate; (4) keep open the channels of communication
between the Project Officer, Contract Officer and OSDBU.
16. Contracting Officers are responsible for ensuring that small
businesses, 8(a), small disadvantages, and women-owned businesses
are afforded an equitable opportunity to compete for all contracts
in the area of their expertise. To carry out his/her
responsibilities, the Contracting Officer shall:
a. Have a thorough knowledge of annual advance procurement
plans and SDBS goals for each client.
b. Ensures, by documentation, that all acquisitions expected
to be less than the small purchase threshold, and to be awarded
under small purchase procedures are reserved for small business
concerns whenever two or more firms are available to fulfill the
requirement, as mandated by P.L. 99-591.
c. Ensure, by documentation that each requirement in excess
of the small purchase threshold has been adequately considered for
8(a) or small business set-aside.
d. Use 8(a) set-asides whenever qualified 8(a) firms can be
identified for a particular acquisition.
e. Use total or partial small business set-asides whenever
there are at least two responsible small businesses qualified to
respond.
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f. Maintain solicitation mailing lists for each procurement
based on known sources, recommendations from OSDBU and responses to
the CBD. With the assistance of the Agency's SDBS and the SBA
Procurement Center Representative (PCR), make every reasonable
effort to locate additional small business sources and include same
on source lists.
g. Solicit small business sources identified on the
solicitation mailing list to the maximum extent as to the
completeness of the lists.
h. Publicize procurement opportunities in the Commerce
Business Daily (CBD) and other appropriate media. Use sources-
sought synopsis and other advance procurement notifications
whenever possible.
i. Ensure fair qualification and evaluation criteria are
provided in all competitive negotiated acquisitions.
j. Ensure that delivery schedules are realistic and
consistent with the Government's need to encourage small and
disadvantaged business participation.
k. Consider the use of partial set-asides for those
requirements which are not feasible for full set-asides.
1. Ensure that financial assistance available under existing
regulations is offered (e.g., negotiations of payment due dates,
progress payments, advance payment, etc.), and that requests for
such assistance by small business offerers are not construed as a
handicap in contract awards.
m. Participate in preaward surveys conducted by the Agency
to make preliminary determinations of responsibility of small
business concerns, and ensure that prospective contractors found to
be non-responsible, are aware of their option to apply for a
certificate of competency.
n. Ensure that the Agency is accurately reporting its
preferential program awards into the Agency's Contract Information
System by proper and timely submission of Individual Contract
Action Reports and the Summary Contract Action Reports.
NOTE: It is the contracting officer's responsibility to consider
every opportunity for award under Section 8(a) procedures, or
through small business and/or LSA set-aside procedures, to the
maximum extent practical.
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17. Role of the PCR. Procurement Center Representative (PCR).
Within the EPA, it is the responsibility of the assigned PCR by the
SBA, to review all potential open market procurements expected to
exceed $25,000 which has not been set-aside for award under Section
8 (a) or small business procedures, and to make recommendations
regarding such set-asides. It is important to note that while the
PCR may review agencies' requirements, and assist in determining
potential set-aside items during the early stage, it remains
his/her responsibility to make a set-aside decision on each
Individual potential procurement designated for full and open
competitive award prior to issuance of the solicitation. PCRs are
authorized by the Small Business Act to suspend action for
procurement on which agreements cannot be reached, pending the SBA
Administrator's appeal to the Head of the Agency. The sources to
be solicited are in connection with current and future
procurements.
18. commerce Business Daily (CBD) Notices. Publication in the CBD
is an important means by which small businesses learn of, and are
able to compete for, Federal procurement in excess of $25,000.
Therefore, EPA procurement offices shall publish all proposed
procurement actions of $25,000 and above in the CBD immediately
upon determining the necessity of the procurement or at least 30
days prior to issuance of solicitations. Such notices do not
obviate the requirement for OSDBU/PCR reviews prior to issuance of
RFP or IFB in accordance with FAR 5-207. In addition, procurement
offices shall allow a bidding period of not less than 30 calendar
days after issuance of solicitation to give small business concerns
the benefit of the longest possible bidding time.
19. Vendor Sources Identification. To ensure that availability
of, or access to, all possible sources of small and disadvantaged
business concerns, procurement offices are encouraged to make
maximum use of the following sources:
a. The SBA Procurement Automated Source System (PASS), a
comprehensive data base for small business, small disadvantaged
business (both 8(a) and non-8(a)), WOB, and LSA concerns, including
veteran-owned concerns, is considered to be the principal source
system for locating and identifying small and small disadvantaged
business concerns. The SBA's terminal is located in OSDBU.
b. The appropriate SBA national or regional listing of
"Firms in the 8(a) Business Development Program" should be used as
an aid in locating eligible 8(a) firms. These publications are
good sources for locating 8(a) vendors.
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PART II - SECTION 8 (A) PROGRAM
1. Purpose. To provide the Environmental Protection Agency (EPA)
procedures and guidelines for implementing its Socially and
Economically Disadvantaged Business Development Program, as
required by the Small Business Act, and for awarding contracts with
the Small Business Administration (SBA) under Section 8(a)
procedures.
2. Authority. Sections 7(j) and 8(a) of the Small Business Act,
as amended, authorizes the 8(a) Program. The Competition in
Contracting Act (CICA) specifically excludes contracts awarded
through the 8 (a) program from the requirement for full and open
competition. These laws are implemented through the SBA
regulations, 13 CFR Part 124, and FAR Subpart 19.8. Further
guidance on the operation of the program is found in the SBA
Standard Operating Procedures (SOP) Manual 80 05 2.
3. Background. The Section 8(a) Contracting and Business
Development Program started in 1968 and is named for a section of
the Small Business Act from which it derives its authority.
Through the 8(a) Program, small companies determined by SBA to be
owned and controlled by socially and economically disadvantaged
persons can obtain Federal Government contracts and other
assistance in developing business pursuant to Section 8(a), if SBA
certified to participate in the Program. The authorization applies
to all types of contractual actions, including but not limited to
supplies, services, construction, and research and development.
SBA also provides technical and managerial assistance to eligible
8(a) firms in developing skills necessary to achieve competitive
status. The rationale behind the Section 8(a) Program is to offer
an effective means to stimulate growth of disadvantaged businesses
so that these firms may become self-sustaining, competitive
entities in the commercial marketplace within a reasonable period
of time.
The Business Opportunity Development Reform Act of 1988, P.L. 100-
656, has refocused the Section 8 (a) Program in regard to its
business development objectives. The process for determining
eligibility has been decentralized and simplified; the program
participation term has been expanded to nine years and divided
into a developmental stage and a transitional stage. More emphasis
has been placed on business planning, and the utilization of
competition among 8(a) companies for larger procurements; thereby
eliminating the dependency on sole-source contracts by
participating firms.
4. Policy. It is EPA policy to enter into contracts with the
SBA, which will fulfill the requirements of the contract by
subcontracting with a Section 8(a) firm.
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The basis for entering into an 8 (a) contract will be SBA's
certification to the EPA that it is competent to perform a specific
requirement. The certification will indicate /that SBA has
determined the intended 8(a) contractor to be responsible in terms
of capability, competency, capacity, credit, integrity,
perserverance, and tenacity to perform on the specific 8(a)
contract. SBA will also certify that the intended contractor is
eligible under the Walsh-Healey Act, (41 U.S.C. 35(a) for each
individual 8(a) contract).
5. Agency Advantages of the Section 8 fa) Program. There are
definite benefits associated with the Section 8 (a) negotiated
contracting approach. These benefits include:
a. Limited Competitive Procurement Procedures in that 8(a)
contracts up to $3 million, including options, may be awarded on a
leave non-competitive basis, or the contracts may be among a
maximum of five qualified 8(a) firms. 8(a) requirements with
service or construction SIC .codes having a value in excess of $3
million, including options, will be awarded under 8(a) competitive
procedures. It is in appropriate to split requirements among 8(a)
multiple contracts to stay below the $3 million threshold to avoid
8(a) competitive procedures. For requirements with manufacturing
SIC codes, the threshold is $5 million.
b. Preliminary Oral Briefing with prospective 8 (a) firms and
the opportunity to either accept or reject their proposals on the
basis of their oral presentations.
c. Expeditious Contract Approach from twelve to sixteen
weeks vs. seven to nine months if other contracting procedures are
used.
6. > Eligibility. A firm seeking EPA contracts under the Section
8(a) Program must have satisfied eligibility criteria established
by SBA as set forth in 13 CFR 121 and 124.102 through 123.110. To
meet this criteria, a firm must be unconditionally 51 percent owned
and controlled, on a day-to-day basis, by sociallyfand economically
disadvantaged persons who are U.S. citizens. The term "socially
and economically disadvantaged" as defined by SBA means those
persons who, because or reasons beyond their control, have been
deprived of the opportunity to develop and maintain a position in
the competitive economy. Such groups include, but are not limited
to Black Americans, Hispanic Americans, Asian Pacific Americans,
Subcontinent Asian Americans, Native Americans, and Indian Tribes.
Individuals who are not members of one of the designated groups
must present to SBA clear and convincing evidence to establish that
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they are socially and economically disadvantaged. In addition, a
firm must certify its small business status based on its primary
industry classification for each contract they are awarded under
Section 8 (a) procedures. The firm must also have the potential for
success as determined by SBA, based on its technical and managerial
experience, competency, financial capacity, and record of
performance on previous Federal and private sector contracts in its
primary industry.
a. An 8(a) concern is permitted to perform only those 8(a)
contracts that are classified according to the SIC code numbers
which appear in its business plan. However, the firm is free to
pursue any nonsection 8(a) contract, small business set-aside (if
it so qualifies in terms of size standards) or full and open
competition, which it is capable and competent to perform
regardless of its SIC code number.
b. Every 8 (a) firm is permitted to participate in the
Section 8(a) Program for a period of nine (9) years. This period
is divided into a developmental stage and a transitional stage.
The developmental stage, which consists of four years, is designed
to assist program participants to overcome their economic
disadvantage by enabling them to access relevant markets and
strengthen their financial and managerial skills. During this
period, the firms may receive contract support through:
(1) Section 8(a) awards through sole source as well as
competition.
(2) A maximum of two exemptions from the requirements of
the Walsh-Healey Act.
(3) A maximum of five exemptions from the requirements
of the Miller Act for construction performance and payment bonds on
the sole source contracts.
The transitional stage is the last five (5) years of program
participation and is designed to assist participants to overcome
the remaining elements of economic disadvantage and prepare them
for leaving the 8(a) Program. During this period, firms are
permitted to continue to receive sole source and competitive 8(a)
contract support, however, concerns must achieve certain non 8(a)
business activity targets. For example, by the fifth year of the
transitional stage, firms must receive between 55% and 75% of its
revenue from non 8(a) sources. Failure to achieve these targets
will result in remedial action, including the denial of 8(a)
contract support. The purpose of this requirement is to ensure
that 8 (a) participants are not completely reliant on the 8 (a)
Program for their revenue and survival.
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7. Technical Competition, with the advent of price competition
in the 8(a) Program, SBA will no longer approve separate technical
competitions for the purpose of identifying a single contractor
with which to negotiate price. Under no circumstances nay a
limited technical competition be conducted for sole source
procurements. Contracting and program offices shall not use this
technique. However, informal technical presentations may be used
for procurements under the threshold for competition. Such
presentations are permitted when several 8(a) firms with similar
capabilities market a procurement; if the program/contracting
officer or SDBS is aware that multiple capabilities exist in the
8(a) market; or when needs are not clearly defined, and it is
important to obtain the best possible technical expertise. In such
situations, the Agency may hold informal technical presentations to
determine the best contractor for the particular procurement.
Price Competition among 8 (a) participants is required for all
potential 8 (a) contract awards which are expected to exceed $3
million. The criteria for 8(a) competitions are the same as for
set-aside programs—that is, a reasonable expectation of receiving
offers from at least two eligible 8(a) concerns, and making an
award at a fair market price, if the acquisition will exceed the
8 (a) competition threshold. For indefinite quantity-indefinite
delivery-type contracts, the determination of whether the
competition threshold is exceeded will be based on the guaranteed
minimum value of the procurement. The guaranteed minimum should be
a reasonable amount which is consistent with prior procurements for
similar goods or services.
8. Support to 8(a) Contractors. EPA support to 8(a) contractors
encompasses identifying and reserving contract opportunities for
offering to the SBA for award through Section 8(a) procedures.
a. Types of Procurements for the 8(ay Program. There are no
limitations on the types or size of procurements suitable for award
under Section 8 (a) procedures. 8 (a) contractors are capable of
performing virtually every type of manufacturing, service, or
construction contract. Therefore, every requirement should be
viewed as a potential for 8 (a) award unless one or more of the
following circumstances exist:
(1) The proposed procurement has been publicly
synopsized as a small business set-aside.
(2) The requirement was most recently performed by a
small business and SBA has determined that to remove it from
competition will cause a major hardship on the small business firm.
(3) The potential contract could reasonably be expected
to be won by a small disadvantaged business concern under normal
competitive procedures.
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(4) The procurement should not require excessive
subcontracting by the prospective 8(a) contractor.
b. National and Local Buys
(1) A "National Buv Requirement" is a supply or service
purchased to meet the needs of one or more users in two or more
locations where supply control, inventory management, or
acquisition responsibility has been assigned to a central
contracting activity to support the needs of two or more locations.
Examples include: regional or national contracts for data entry,
equipment maintenance or repair, management of ADP facilities which
serve multiple sites, studies, evaluations, or similar services
purchased by the national office for use in more than one location.
(2) A "Local buy Requirement" is a supply, service or
product purchased by a contracting agency to meet the specific
needs of one user in one location. Examples include, the purchase
or services such as custodial, trash removal, auditing, training,
data entry for one site, and construction work to be performed in
one location.
9. Implementing Procedures. Procuring activities shall proceed
with the award of contracts under Section 8 (a) procedures as
follows:
a. Identifying Procurements. Proposed procurements suitable
for the Section 8(a) Program can be identified in a number of ways:
(1) The program officer can identify requirements for
8 (a) award during the planning of advance procurement plans or
contract forecast.
(2) The SDBS or contracting officer can recommend an
8(a) award during the regular procurement process.
(3) The OSDBU, pursuant to P.L. 101-655, Section 603,
can recommend a particular contract requirement for award under
Section 8(a) procedures. If the contracting officer rejects the
OSDBU recommendation, such rejection shall be documented and
included within the appropriate contract file.
(4) An 8 (a) contractor or contractors can market and
identify the procurement during marketing efforts.
b. Procurement Request for 8fa) Award. When the program
office identifies a requirement which is appropriate for an 8 (a)
firm, it shall submit to the procuring activity a complete
procurement package which shall include the necessary paperwork for
transmittal to the SBA.
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c. Offering Procurement to the SBA. When a suitable
procurement has been identified for processing through 8 (a)
procedures, the contracting officer shall furnish to the
appropriate SBA a letter offering the procurement for 8(a) award.
A sample offering letter is shown at Appendix #2. The offering
letter must identify the SIC code which applies to the principal
nature of the proposed procurement and the appropriate size
standard, and
must include a copy of the statement of work, estimated period of
performance, anticipated dollar value, history of the procurement,
and all other information pertinent to the proposed procurement.
The proposed procurement can be offered for the 8 (a) program in
general in which SBA will select the 8(a) firm(s), on behalf of a
particular 8(a) firm identified by the Agency, or for formal 8(a)
competition. If the proposed procurement is below the threshold
for competition, the offering letter should include the statement
requesting SBA to delegate negotiation responsibility to the EPA
procuring activity.
For national buy requirements, the offering letter should be sent
to the Director, Division of Program Development, Office of
Minority Small Business and Capital Ownership Development, Small
Business Administration, 409 3rd Street, S.W., 8th Floor,
Washington, D.C. 20416. For local buy requirements, the offering
letter should be sent to the SBA regional or district office which
has jurisdiction over that location.
(1) Specific 8 (a) Contractors. If the project/
contracting officer is aware of a contractor's expert capabilities
either through the contractor's prior performance or marketing
efforts, a proposed' procurement can be offered to SBA on behalf of
that contractor. Prior to offering procurements to SBA on behalf
of a particular contractor, the contracting officer shall contact
the SBA field/district office where the company's business plan is
administered to verify that the contractor has that SIC code in its
business plan, is still a small business in the SIC code, has not
exceeded its business plan support level, and is in compliance with
the competitive business mix targets.
(2) General Offers. If a proposed procurement below the
threshold for competition is offered for the 8 (a) program in
general, the SBA will select the 8(a) contractor to perform based
on the capabilities, approved level of contractor support in the
business plan, and compliance with the competitive businesses.
(3) Informal Technical Presentation. Contracting
officers in consultation with the OSDBU may invite several 8 (a)
firms (usually up to four) to give presentations on their
capability to perform a specific procurement. The Agency shall not
require the firms to develop elaborate technical presentations or
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to incur unnecessary cost for technical presentation. The OSDBU in
consultation with the contracting officer may develop a list of
salient characteristics and/or necessary expertise to perform the
contract with a statement that the list is not inclusive and is not
the statement of work. DO NOT GIVE THESE FIRMS THE STATEMENT OF
WORK TO HELP THEM PREPARE FOR INFORMAL PRESENTATIONS. If the
statement of work is issued, SBA will consider that the procuring
agency has initiated a competitive procurement.
The SDBS and/or a representative of the OSDBU contracting officer,
should attend the presentations with the program office staff. The
contracting officer or SDBS shall make clear to all in attendance
that the presentation is a marketing effort and not a commitment to
offer a contract. No cost information may be solicited.
Appropriate questions regarding firms' capabilities may be asked
after the presentation is complete.
Based on the informal technical presentations, an 8(a) firm should
be recommended with whom to continue the acquisition process. An
offering letter should then- be submitted to SBA on behalf of that
firm (see Appendix for a sample offering letter #2). A brief
narrative shall be developed by the recommending program office as
to the reasons why the unsuccessful 8 (a) firms were not recommended
to continue the acquisition process. The resulting information
shall be forwarded to the OSDBU for appropriate review.
(4) Competitive Procurement. For procurements which
exceed the threshold for competition ($3 million), the offering
letter should identify the geographic conditions which are
important for contract performance and list the names of 8(a)
firms, if any, which have already expressed an interest in the
procurement.
(5) SBA Response. SBA shall acknowledge the EPA
offering letter, within 15 days after receipt, by either an
acceptance or rejection of the proposed procurement for the 8 (a)
program. Prior to acceptance of the offer, SBA will determine
whether this would have an adverse impact on another small
business. An adverse impact is generally considered to exist if
the contract is currently being performed by a small business (not
in the 8(a) program) and accounts for 25% or more of that concern's
annual receipts. If below the threshold for competition, the
acceptance letter will also identify the contractor selected for
the procurement. In most cases, SBA will authorize the procuring
agency to conduct negotiations directly with that contractor.
For competitive procurements, the acceptance letter will advise
whether competition is limited geographically or further limited to
participants in the developmental stage or the transitional stage
of program participation.
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d. Synopsis. Sole source solicitations and local buy
competitions which are to be awarded using Section 8 (a) procedures
do not require synopsis in the CBD. However, national buy
competitive solicitations must be synopsized in the CBD, using the
format prescribed in FAR Subpart 5.205(f). In addition, all 8(a)
contract awards must be synopsized in the CBD.
e« Sole Source 8fal Awards - (Solicitations). Upon receipt
of SBA's letter to proceed with a procurement involving a
particular contractor, the contracting officer shall solicit from
the potential contractor using the identified procedures described
above) a proposal, which may include price. The solicitation
package for an 8 (a) contractor should not differ significantly from
that of a competitive procurement. The Request for Proposals (RFP)
must contain a complete statement of work, a clearly stated
delivery schedule, and any other information necessary to enable
the concern to prepare a complete and thorough proposal. As in any
RFP, the factors against which the technical proposals will be
evaluated should be clearly stated.
The RFP should also include a complete set of representations and
certifications on which the offeror may certify its small business
status. The date of the offerer's written self-certification
submitted with the initial offer including price will be the date
used by SBA to determine the concern's eligibility to receive the
particular contract. The RFP should also require the potential
8(a) contractor to include in the technical proposal a statement
that it will not subcontract to another firm without prior SBA
approval. Where approval to subcontract is given, the 8 (a)
contractor must certify that it will perform the required
percentage of work with its own labor force in accordance with SBA
regulations (13 CRF 124.363). In addition, the proposal should
contain a statement that it understands that the Federal Government
is not obligated to pay any expenses incurred by the concern in
preparing and submitting its proposal. Should the firm refuse to
provide either statement, the contracting officer shall terminate
any further action to consummate the contract.
(1) Contract Performance. To assure the accomplishment
of the purposes of the 8 (a) Program, each 8 (a) contractor is
required to perform work equivalent to the following percentages of
the total dollar amount of each contract, exclusive of material
costs, with its own labor force:
(1) Professional Services 51%
(2) Nonprofessional Services 75%
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(3) Construct ion
General 15%
Special trades such as
electrical, plumbing, etc. 25%
(4) Manufacturing (other than
regular dealers) 25%
(2) Evaluating the Proposal. The technical proposal
shall be evaluated in accordance with the evaluation factors set
forth in the RFP. The 8(a) sole source contract is a non-
competitive, negotiated instrument, therefore, the contracting
officer and technical representative have considerable latitude to
discuss, and if necessary, refine the statement of work during the
negotiation process. Discussions should verify that the contractor
fully understands the work to be performed.
The cost proposal shall be evaluated in accordance with FAR 15.8.
The objective is to award the contract at a fair market price. The
fair market price must be estimated based on cost or price
analysis, consideration of commercial prices for similar products
and services, in-house cost estimates and data submitted by the SBA
or the 8(a) contractor. For a repeat purchase, the contracting
officer must consider recent award prices for the same item or work
if there is comparability in quantities, conditions, terms and
performance times. The estimated price should be adjusted to
reflect differences in specifications, plans, transportation costs,
packaging and packing costs, and other circumstances. The
determination of the estimated fair market price must be documented
in the contract file. The documentation should reflect the extent
of analysis performed, consideration of all recent award prices,
including unrealistically low prices or contracts performed at a
loss, the adjustments provided above, and any other unusual
circumstances related to the particular procurement. NOTE; The
negotiated contract price and the estimated fair market price are
subject to SBA's concurrence. If SBA disagrees with the
contracting officer's determination, SBA may appeal in accordance
with the procedures discussed above.
(3) Negotiating the Contract. In most instances, SBA
will authorize the procuring agency to negotiate directly with the
8 (a) contractor. SBA may wish to participate in negotiations for
contractors which are new program participants. In either case,
SBA must approve the resulting price and contract terms before
award.
(4) Preparing the Contract Documents. When the
negotiations have been concluded, the contracting officer shall
prepare both the prime contracts to be awarded to the SBA and the
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subcontract between the SBA and the 8(a) firm. The contract should
be prepared in the same detail as would be used for a contract with
any other business concern. The contracting officer should use the
Standard Form (SF) 26 as the award form, except for construction
contracts, where the SF 1442 must be used.
If the contract is for construction work, it must include the
Miller Act requirements for performance and payment bonds, unless
SBA has granted an exemption from the bonding requirement.
SBA will insert its contract number, the name and signature of its
contracting officer, and the date signed. SBA will also obtain the
signature of the 8 (a) contractor prior to signing and returning the
package for the procuring agency's signature. SBA will make every
effort to process contract documents, and subsequent bilateral
modifications, within 10 working days.
(5) Memorandum of Negotiation. The contracting officer
shall prepare and document by signature a negotiation memorandum
summarizing, in narrative form, the complete negotiation process
from start to finish. A copy of the memorandum shall be appended
to the contract documents. The information contained in the
memorandum of negotiation shall include the following:
— the prime contract number, a description of the
requirement, and negotiation dates;
the agency acquisition office, name of agency
contracting officer and lines for signature, date
signed, and effective date;
names, identification, and telephone numbers of all
persons involved in the negotiation;
summary of discussions and resolutions prepared by
the program officer, and how all technical aspects
and costs were arrived at including pertinent terms
and conditions.
The SBA will provide to the contracting activity the competing
contractor certifications required by FAR 3.104-9 prior to award of
contract actions exceeding $100,000. SBA will obtain the
certifications from the 8(a) contractor.
(1) Competitive Solicitation. Competitive 8 (a)
requirements may be conducted using either sealed bids or
competitive proposals. The same criteria for selecting the method
solicitation (sealed bid vs. competitive proposals) apply as for
other competitive contracts. The solicitation package for a
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competitive 8(a) contract should not differ from that required for
any other competitive procurement. The solicitation shall include
a complete statement of work, detailed evaluation factors for
award, and the clause at FAR 52.219-18, or its Alternate I, II, or
III, with the SIC code and other required information inserted.
The date of the 8 (a) offerer's written self-certification as a
small business, submitted with its initial offer including price,
will be the date used by SBA to determine the concern's eligibility
to receive the particular contract. Therefore, it is particularly
important to obtain a complete set of representations and
certifications from each 8(a) offerer.
(2) Evaluation of Offers. Offers from 8(a) concerns are
evaluated in accordance with the evaluation factors listed in the
solicitation. Evaluations shall proceed as they would for any
competitive solicitation, whether sealed bid or competitive
proposals. The contracting officer must use the same care to
safeguard information and evaluate 8(a) offers as is required for
other competitive procurements.
(3) Negotiating the Competitive Contract. EPA
contracting officers are responsible for conducting all
negotiations necessary for determining an apparent successful
offerer on solicitations requiring competitive proposals. The SBA
contracting officer is not involved in these negotiations.
(4) Eligibility Determinations for Competitive
Procurements. SBA will determine the eligibility of offerers for
award of the contract, as of the time of submission of initial
offers which include price. Eligibility is based on whether the
firm has the SIC code in its approved business plan, whether it is
still small for the SIC code, whether the firm is in the
developmental or transitional stage, whether the firm is within its
approved 8(a) support level, and whether it meets the competitive
business mix targets.
For sealed bid procurements, the contracting officer provides SBA
a copy of the solicitation, the estimated fair market price, and a
ranked list of offerers. The ranking should include the total
evaluated price for each offer, differentiating between basic
requirements and any options. SBA will review the eligibility of
the first low offerer, and proceed down the list as needed until an
eligible offerer is identified. SBA will determine the eligibility
and advise the contracting officer within five (5) working days
after receipt of the list of offerers.
For negotiated procurements, the contracting officer should provide
SBA the name of the apparent successful pfferor. SBA will
determine the eligibility when the contract is forwarded for its
signature.
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It is the responsibility of SBA to notify any firms which it finds
ineligible. Eligibility of an 8(a) concern to receive a particular
contract may not be protested or challenged by another offerer or
any other party. only SBA has the authority to determine
eligibility of 8(a) contractors.
(6) Preparing the Competitive 8 (a) contract Documents.
The procuring agency prepares the contract for award to SBA and its
8 (a) subcontractor. The contracting officer should use the
Standard Form (SF) 26 as the award form, except for construction
contracts, where the SF 1442 must be used. Unless SBA plans to
make advance payments available to the.8(a) contractor, a single
contract document may be used for both the prime contract between
the agency and the SBA and the subcontract between the SBA and its
8(a) subcontractor. The contract document shall include:
The clause at FAR 52.219-17, "Section 8 (a)
Award"
A continuation sheet, as an appendix, which
identifies the agency acquisition office, prime
contract number, name of agency contracting
officer and lines for signature, date signed,
and effective date; the SBA office, the SBA
contract number, name of the SBA contracting
officer, and lines for signature and date
signed; and name and lines for the 8 (a)
subcontractor's signature and date signed.
If the contract is for construction work, it
must include the Miller Act requirements for
performance and payment bonds, unless SBA has
granted an exemption from the bonding
requirement.
SBA will insert its contract number, the name and signature of its
contracting officer, and the date of its signature. SBA will also
obtain the signature of the 8(a) contractor prior to signing and
returning the package for the procuring agency's signature. SBA
will make every effort to process contract documents, and
subsequent bilateral modifications, within ten working days.
The contracting officer shall obtain the competing contracting
certifications required by FAR 3.104-9 directly from the 8(a)
competition.
f. Post-Award Action
(1) coordination with the SBA and EPA. In accordance
with 48 CFR 19 800 (c), SBA is required to certify to the procuring
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agency that it is competent to perform any specific contract upon
which it agrees. Procuring activities shall ensure that the SBA
certification (signed document) is contained in the contract file,
prior to the performance of any work on the contract. Careful
evaluation of the contractor's capabilities prior to award ensures
that most 8 (a) contracts are performed successfully. However, any
significant performance problems under an 8(a) contract shall be
reported immediately by the contracting officer to the SBA
contracting officer, the appropriate SDBS, and to OSDBU. It is the
responsibility of SBA to provide the 8 (a) contractor assistance to
enable satisfactory completion of the contract. The contracting
officer must not initiate termination proceedings, either for
default or for the convenience of the Government/ without first
informing the SDBS, the OSDBU, and the SBA contracting officer.
(2) Approval of Lower Tier Subcontracting. SBA must
give its approval before any of the performance under an 8 (a)
contract is subcontracted to another concern. This requirement is
in addition to the overall limitations on subcontracting required
for set-aside contracts under Section 8(a). SBA's approval is not
required for each subcontract. SBA will generally accept the 8(a)
concern's subcontracting arrangements if the limitation on
subcontracting requirements are met; however, SBA must be informed
of all subcontracting arrangements. SBA reserves the right to
disapprove any such agreements.
9- Contract Modifications. All modifications to the 8(a)
subcontract will be negotiated between the EPA contracting office
and the 8(a) contractor, and will be processed in accordance with
established procedures. Unilateral modifications, such as "Change
Order" or "Administrative Changes" do not require agreement by the
prime contractor (SBA). However, bilateral modifications must be
signed by all three parties. SBA will make every effort to sign
and return modifications to the procuring activity within a maximum
of 10 working days. It is the responsibility of the procuring
activity to keep SBA apprised of all modifications, progress
payments, and any other pertinent data requested by SBA.
NOTE: A modification within the scope of the initial contract may
be issued whether the contractor has exited the 8 (a) program or
whether the concern is no longer small under the size standard for
the contract. SBA's concurrence in the issuance of such a
modification is required. However, a modification outside the
scope of the initial contract is considered a new contract action.
Therefore, if the 8(a) contractor has exited the program or is no
longer small for that size standard, the modification cannot be
issued.
h. Contract Close-Out. A copy of the acceptance document
and a copy of the final payment document shall be provided to SBA.
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Performance of Contracts by Original afal Concern. Any 8 (a)
contract (including options) awarded on or after June 1, 1989 must
be performed by the 8 (a) concern that initially received the
contract. If the owner(s) upon whom eligibility was based
relinquish ownership, the contract or option shall be terminated
for the convenience of the Government. The SBA Administrator, on
a non-delegable basis, may waive this requirement if certain
conditions exist (such as the death or incapacity of the owner and
termination of the contract would severely impair attainment of the
Agency program objective or mission). In case such a circumstance
exists, the contracting officer may request a waiver by immediately
notifying SBA in writing. The request for waiver must be
coordinated with the OSDBU, and must be filed within 15 working
days after the notice.
If SBA does not approve a waiver, the contracting officer must
terminate the contract for convenience upon receipt of SBA's
written request.
i. 8(a) Program Size Protests. For Section 8(a) contracts,
whether sole source or competitive, size determinations may be
requested by the SBA contracting officer, the SBA Regional
Administrator for the geographical area covering the location of
the concern's headquarters, or the Associate Administrator for
Minority Small Business and Capital Ownership Development (AA/MSB
& COD). If SBA declines a procurement offer because it has made a
preliminary determination that the 8 (a) concern nominated to obtain
or compete for the procurement is no longer a small business, the
nominated 8(a) concern may request a formal size determination.
PART III - SMALL BUSINESS SET-ASIDE PROGRAM
1. Purpose. This section highlights the Environmental Protection
Agency (EPA) Small Business Set-Aside Program and establishes
procedures and guidelines for its implementation.
2. Authority. The Small Business Set-Aside Program is authorized
by Section 15 of the Small Business Act, as amended.
3. Background. To enhance the opportunity for small business
concerns to receive a fair proportion of Government contracting
dollars, Congress established, through the Small Business Act, the
Small Business Set-Aside Program. The rationale for this
preferential treatment is that a healthy small business community:
is essential for the preservation of the nation's free enterprise
system. P.L. 95-507 added strength to the Small Business Set-Aside
Program by requiring that all procurements up to $10,000 which are
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subject to small purchase procedures be set aside for exclusive
participation by small business concerns. These procurements are
called small business - small purchase set-asides. The $10,000
threshold was raised to $25,000 by Sections 921 and 922 of P.L. 99-
591 Of 1986.
P.L. 101-574, the Small Business Administration (SBA)
Reauthorization and Amendments Act of 1990, requires procuring
agencies to notify the SBA Procurement Center Representative (PCR)
about planned acquisitions which are consolidations of contracts
currently being performed by small business concerns. The notice
shall be given to the PCR at least 30 calendar days prior to
issuance of the solicitation, and must explain why the acquisition
cannot be divided. The notice must also explain why the
acquisition can be offered as a small business set-aside.
4. Definitions - (Small Business) is a concern, including its
affiliates, which is not dominant in its field of operation, in
accordance with SBA size standards for the particular industry, in
which it is bidding on Government contracts and meets certain other
size standard criteria for the industry as established by SBA.
a. Small Business Set-Aside is a potential acquisition which
is reserved for exclusive competition among small businesses.
Large businesses may not participate in these acquisitions;
therefore, large business response to solicitations based on set-
asides are rejected as nonresponsive.
b. Class Set-Aside is an agreement whereby current and
future procurements of selected items and services, or groups of
related items and services are reserved for exclusive small
business participation. It is a means of setting aside partially
or entirely items or services which are purchased repetitively,
without the need for recommending set-asides on each procurement
section.
5. Small Business Size Status. Eligibility for firms to
participate in EPA's small business set-aside program requires
simply that firms are "small" in accordance with the standards
established by SBA. Size standards vary by industry, as defined in
the Standard Industrialization Classification (SIC) Manual. Size
standard measurements are based on (1) the firm's average number of
employees during each of the pay periods in the preceding 12
months, or (2) its average annual receipts for the past three
fiscal years. Any particular SIC code will have a size standard
expressed in either number of employees or dollars of receipts.
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a. For size standard purposes, procurements are classified
in the industry which definition best describes the principal
nature of the product or service being acquired. Procedures for
contracting procurements are defined in FAR 19.102.
b. Once the SIC code has been determined, the corresponding
small business size standard can be found by consulting the SBA
size standard regulation in FAR 19.102, 13 CFR 121, or by
contacting the OSDBU.
6. Criteria. A procurement shall be conducted as a small
business set-aside whenever the contracting officer has a
reasonable expectation of receiving at least two offers from
responsible small businesses and being able to make awards at fair
market prices.
7. Small Business Set-Asides - (Order of Precedence! . As a
civilian Agency, EPA contracting officers must award contracts and
encourage placement of subcontracts in the following order of
precedence:
a. Total set-aside for small business concerns located
in labor surplus areas.
b. Total set-aside for small business concerns.
c. Partial set-aside for small business concerns
located in labor surplus areas.
d. Partial set-aside for concerns located in labor
surplus area, regardless of size.
(1) Class Set-Asides. The EPA has designated the
following selected types of acquisitions which shall continually be
set-aside for exclusive small business participation without
individual procurement reviews, as long as the market and other
conditions remain appropriate for set-aside. Such class set-asides
apply to all EPA procurement offices. A list identifying class
set-asides shall be maintained in the procurement office and shall
be updated on an annual basis.
1. Architectural and engineering services
2. Audit services (exclusive of management and systems
audits and urgent requirements beyond the capacity
of small business)
3. Automatic data processing services, such as data
entry (including key punch), verification, key-to-
tape, etc., (exclusive of work incidental to program
maintenance and emergency requirements)
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4. Business services, including ADP
5. Clerical training
6. Conference Management
7 Construction (dollar value up to $2 million; all
other shall be set aside on a case-by-case basis)
8. Editing and proofreading services
9, Engineering, accounting, research, management and
related services
10. Maintenance and repair of equipment
11. Messenger/courier services
12. Moving services
13. Photographic laboratory services
14. Press clipping services
15. Security guard services
16. Services, not elsewhere classified
17. Sign printing
18. Stenographic services (exclusive of nationwide
requirements of Administrative Law Judges)
19. Translations services
20. Verbatim reporting services
Contracting officers must give advance written notice to OSDBU of
any decision not to set aside a procurement designated for class
set-aside, stating the reason for the decision. A written waiver
must be obtained from the OSDBU prior to issuing the solicitation.
Procuring activities shall initiate other class set-asides which
are appropriate for their specific activity. A copy of the list of
new additions shall be forwarded to the OSDBU.
(2) Total Set-Asides. The entire amount of an
acquisition must be set aside for exclusive small business
participation whenever the contracting officer determines that
there is a reasonable expectation that offers will be obtained from
at least two responsible small business concerns offering the
products, and that awards will be made at a fair market price.
Every procurement must be viewed as a potential small business set-
aside. Products or services which are on the EPA class set-aside
list are not the only candidates for set-aside. Past acquisition
history is not the only factor to consider in determining whether
a reasonable expectation exists. The purpose of the SDBS/OSDBU and
SBA PCR reviews is to ensure that the capabilities of small
businesses are fairly considered for every procurement (see FAR
Subpart 19.502).
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(3) Partial Set-Asides. A portion of an acquisition
expected to exceed $25,000, except for construction, must be set-
aside for exclusive small business participation when:
A total set-aside is not appropriate;
The requirement can be divided into two or more
economic production runs or lots; and
One or more small business concerns are expected to
have the technical competence and capacity to
fulfill the set-aside portion of the requirement at
a fair market price.
A partial set-aside shall not be made if there is a reasonable
expectation that only one large business and one small business
will respond with offers, unless authorized by the head of the
contracting office on a case-by-case basis.
(4) Insufficient Causes for Non-Set-Asides. None of the
following is sufficient cause for not setting aside an acquisition
for exclusive small business participation (see FAR 19.502-5):
A large percentage of previous contracts for the
required item or service has been awarded to small
business;
Less than 30 calendar days is available for receipt
of offers;
The contract is classified;
Small businesses are already receiving a fair
proportion of the Agency's contracts for supplies
and services; and
A brand name or "equal" product description will be
used in the solicitation.
8. Establishing Set-Asides. Small business set-asides may be
established by a unilateral determination of the contracting
officer, with input from the OSDBU and/or the Small and
Disadvantaged Business Specialist (SDBS); or they may be
established by a joint determination of the contracting officer and
the SBA PCR or other SBA representative. The set-asides should be
determined unilaterally to avoid delays in the procurement process,
whenever possible.
a. For potential action anticipated to exceed $25,000, total
and partial small business set-asides may be conducted by sealed
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bidding or competitive negotiations. Except for offers received on
the non-set-aside portion of partial set-asides, offers received
from concerns that are not small businesses are considered
nonresponsive and must be rejected.
b. The SDBS shall review individual requirements to
determine the suitability of small business set-asides in
accordance with the priorities in FAR 19.501. The set-aside
recommendations shall be documented by using EPA Form 1900-37, (see
Appendix 1900-37, and where appropriate, shall include adequate
justification for recommending against a set-aside. The complete
form shall be forwarded with the requirement package to the
contracting officer to become a part of the contract file.
c. Withdrawing or Modifying Set-Asides. If a contracting
officer decides that procurement of an individual or class set
aside would be detrimental to the public interest (because of
unreasonable price, for example), the contracting officer may
initiate to withdraw or modify the set-aside determination by
giving written notice to OSDBU stating the reason for the
withdrawal. If OSDBU does not agree to a withdrawal or
modification, the case may be referred to the PCR for appropriate
appeal or the head of the procuring activity. If the PCR disagrees
with the head of the procuring activity decision, he/she may stop
action on the requirement and shall appeal to the head of the
Agency whose decision shall be final. If no award can be made, the
set-aside is automatically dissolved.
d. Solicitation Provisions. All EPA solicitations shall
include the Small Business Concern Representation Clause as
required by FAR 52.219-1, as well as the contracting officer's
determination of the appropriate Standard Industrial Classification
(SIC) code and related small business size standard. This is
particularly important for set-aside procurements where the size
standard set forth in the solicitation establishes one criterion of
eligibility for award.
The provision at FAR 52.219-2 shall be included in Section K of all
solicitations with the SIC code and small business size standard
filled in. Open market purchase orders and blanket purchase
agreements must also include this information in the supplemental
clauses.
e. Participation by Organizations for the Handicapped.
Under P.L. 100-590, public and private organizations for the
handicapped are authorized to submit offers on procurements set-
aside for small businesses. This policy is currently in effect
through fiscal year 1993, and is expected to be extended. Small
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businesses which experience, or are likely to experience severe
economic injury as a result of such an award may file an appeal
with the SBA Associate Administrator for Procurement Assistance.
9* Small Business - Small Purchase Set-Asides. Except for
certain limitations as described in FAR 13.501, all potential open
market acquisitions expected to be $25,000 or less, and which are
subject to small purchase procedures, shall be reserved for
exclusive small business participation, as required by law. Offers
shall be solicited only from small business whenever the
contracting officer can reasonably expect to obtain two or more
acceptable offers from small business concerns that are competitive
in market prices, quality, and delivery.
All written solicitations under small business - small purchase
set-asides shall contain the provision at FAR 52.219-4, Notice of
Small Business - Small Purchase Set-Aside. If the solicitation is
oral, information similar to that in the provision should be given
to all potential offerers.
If the contracting officer determines that the mandatory small
business - small purchase set-aside is not appropriate, and the
purchase should be completed on an unrestricted basis,
documentation justifying the reason for dissolving such statutory
set-aside shall be forwarded to the OSDBU for the SBA PCR review.
Such documentation shall become a permanent part of the purchase
order file. NOTE: The SBA PCR may appeal the contracting
officer's decision.
All small purchasing officers shall post a notice of each available
solicitation valued between $10,000 and $25,000, on a public board
in the building in which the contracting office is located. For
the national office, such notices shall be forwarded to the OSDBU
for appropriate posting.
10. Protest of Small Business Status - (Who Mav Protest). Any
offerer or interested party may protest the small business
representation of any offerer in a specific acquisition.
Contracting officers may challenge the small business
representation of an offerer by filing their own protest any time
after offers are opened.
a. Timely Submission of Protest. A protest must be received
by the contracting officer by the close of business five (5)
working days after bid opening (in sealed bid acquisitions) or
receipt of the contracting officer's notification of the apparent
successful offerer (in negotiated acquisitions; see FAR Subpart
15). If the contracting officer fails to notify the parties five
(5) working days before award, a protest is timely if received
within five (5) working days after announcement of the award. A
protest filed by a contracting officer is always considered timely.
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b. Procedures for Handling Size Protests. Any protest or
appeal involving the SBA should immediately be brought to the
attention of the SDBS and the Director, OSDBU. Complete
documentation should be prepared describing the basis for the
protest, the contracting officer's position (if appropriate), and
other supporting information—acquisition history, solicitation,
Dun and Bradstreet reports, and pertinent correspondence.
Whether the protest is timely or not, the contracting officer shall
promptly forward it to the SBA Regional Office for the geographical
area where the protested offerer's headquarters are located,
regardless of the location of parent companies or affiliates.
c. SBA1s Determination Process. SBA will notify the parties
of the date the protest was received, and furnish a copy of the
protest and appropriate forms to the firm whose status is being
protested. The concern in question must file the completed forms
within three (3) working days after receipt of the notification.
The size determination is made primarily on the basis of
information supplied by the parties. However, SBA may use other
data contained in its files and may make inquiries for additional
information if necessary. The burden of proof for establishing its
small business size status is on the protested concern. If the
protested concern fails to submit the required forms, SBA may
conclude that disclosure of the information would be unfavorable to
the offerer's interest, and that the concern is not a small
business.
The SIC code and small business size standard set forth in the
solicitation are reviewed in conjunction with every size protest.
If the solicitation does not contain a SIC code or size standard,
SBA will supply one.
PART IV - LABOR SURPLUS AREA PROGRAM
1. Purpose. To establish procedures for implementing the
Environmental Protection Agency (EPA) Labor Surplus Area (LSA)
Program.
2. Authority. The Labor Surplus Area Program is authorized by
the following:
a. Small Business Act, as amended by Public Laws 95-89, 95-
507, 96-302, and 99-272.
b. Executive Orders 12073 and 10582, dated August 16, 1978,
Federal Procurement in Labor Surplus Areas.
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c. 48 CFR 20, Federal Acquisition Regulations (FAR), Labor
Surplus Areas.
3. policy. It is the policy of the EPA to encourage concerns
located in LSA to participate in the EPA contracting activities.
All procuring activities shall use its best efforts to award
contracts and encourage prime contractors to award subcontracts to
concerns that will perform a substantial portion of the contract
work in labor surplus areas.
4. Background. Public Law 95-89 was enacted in 1977, amending
the Small Business Act, to authorize and establish a small business
and LSA precedence for Federal agencies to set aside contracts for
employers which agree to perform a substantial portion (at least
51%) of the contract work in LSA. Additional support was added to
the program in 1978 by the issuance of E.O. 12073, which required
Federal agencies to set annual targets for procurement set-asides
in LSA. In 1980, P.L. 96-302 was enacted to provide permanent
authorization to the LSA program. It also authorized set-asides
when there is reasonable expectation that offers will be obtained
from a sufficient number of firms to ensure that awards are made at
reasonable prices, as well as change the order of precedence for
awarding all set-aside contracts. LSA classifications are based on
civil jurisdiction rather than metropolitan areas of labor market
areas so that Federal contracts can be directed to those specific
localities with high unemployment rather than to all civil
jurisdictions within a metropolitan area, since not all may have
suffered from the same degree of unemployment. The 1986 enactment
of P.L. 99-272, Section 18002, modified the Small Business Act to
reduce the population criteria for LSA classifications f.rom a
minimum of 50,000 to 25,000. To further strengthen the LSA program
is the Office of Federal Procurement Policy (OFPP) Policy Letter
81-2, which provides for the following:
o Contracts awarded under set-asides pursuant to Public Law
96-302 shall be recorded by agencies in fulfillment of their LSA
targets.
o Contracts awarded under Section 15(j) of the Small
Business Act shall, to the extent possible, be recorded as awards
against an agency's LSA targets if the costs to be incurred by the
contractor and its first tier subcontractors on account of
manufacturing, production, etc., in the LSA exceeds 50% of the
contract price.
o Subcontracts under set-asides to LSA Covernment-Owned-
Contractor-Operated (GOCOs) firms shall be counted towards an
agency's LSA performance.
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o Non-competitive awards under the Section 8 (a) Program,
purchases from blind and handicapped workshops, and Federal Prison
Industries are able to set-aside a particular product or service
for the Section 8 (a) Program, such contracts may be counted towards
LSA set-aside performance.
5. Definition. The EPA defines LSA as those discrete civil
jurisdictions (counties, county equivalents, and cites with a
population of at least 25,000) which have an average unemployment
rate that is at least 120 percent of the national average
unemployment rate during the base period (the preceding 24 months).
6. Implementing Procedures. Procedures for implementing the EPA
LSA Program entails the following activities:
a. Goals. Each major program office, upon request of, and
in consultation with the Director, OSDBU, shall establish annual
LSA goals. These goals shall be forwarded to the Director, OSDBU,
who shall prepare and submit the offices consolidated goals to the
General Services Administration.
b. LSA Set-Asides. Contracting officers and SDBS shall make
every effort to place as many contracts as possible on the basis of
LSA set-asides, either alone or combined with a small business set-
aside. When there is reasonable expectation that offers will be
obtained from a sufficient number of reasonable LSA firms, and that
awards will be made at reasonable prices, the entire amount of an
individual procurement may be set aside. Within EPA, consideration
of at least two firms constitutes a "sufficient number".
c. Insufficient Causes for not Setting Aside an Acquisition.
None of the following is, itself, sufficient cause for not setting
aside an acquisition (see FAR 19.502-5):
(1) A large part of the previous contract for the item
or service was awarded to LSA concerns.
(2) Less than 30 calendar days are available for receipt
of offers.
(3) The contract is classified.
(4) The item is on a Qualified Products List.
d. Award Procedures. Sealed bids or competitive proposals
may be used for LSA set-asides. Offerers must certify that, with
their first-tier subcontractors, they will perform at least 50% of
the contract in an LSA. Offers received from concerns that do not
qualify as LSA concerns are considered nonresponsive and must be
rejected.
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e. Eligible Firms. A firm need not be located in an LSA to
be awarded an LSA set-aside; however, the firm must agree to
perform a substantial portion of the contract requirement in a
geographical area specified as an LSA on the date the procurement
was awarded. To be substantial, the aggregate cost that the
contractor or its first-tier subcontractors incur on account of
production, manufacturing, or services performed in an LSA must
equal more than half of the contract price (at least 51%). Half or
less than half is not substantial.
f. Award Procedures. Sealed bids or competitive proposals
may be used for LSA set-asides. Offerers must certify that, with
their first-tier subcontractors, they will perform at least 50% of
the contract in an LSA. Offers received from concerns that do not
qualify as LSA concerns are considered nonresponsive, and must be
rejected.
9- Withdrawal of Set-asides. An LSA set-aside may be
withdrawn prior to award if the contracting officer determines that
the set-aside is not in the public interest (because of
unreasonable price, for example). The reasons for withdrawal must
be documented in the contract file.
PART V - SUBCONTRACTING PROGRAM
1. Purpose. This section establishes procedures and
responsibilities for implementing the Environmental Protection
Agency (EPA) Subcontracting Program for small business, small
disadvantaged business, and women-owned business concerns.
2. Authority. The EPA Subcontracting Program shall be conducted
in accordance with the following:
(1) Small Business Act, as amended by Section 211,
Public Laws 95-507 and 100-656.
(2) 48 CFR 19.7, Federal Acquisition Regulations, Small
Business and Small Disadvantaged Business Subcontracting.
3. Background. In an effort to strengthen support to the small
business program through Government procurement dollars, Congress
enacted Public Law 95-507, mandating Government prime contracts to
place a fair portion of their planned subcontracting dollars with
small and small disadvantaged business concerns. Section 211 of
the Act requires that all contracts for nonpersonal services, which
are to be performed within the U.S., must include a clause
requiring prime contractors to subcontract with small and small
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d i sad van t aged businesses to the maximum extent practicable
consistent with efficient performance of the contract. It requires
further that all proposed contracts with large businesses expected
to exceed $500,000 be negotiated ($1,000,000 for construction) and
shall contain an approved subcontracting plan indicating specified
percentage goals for awarding subcontracts to small and small
disadvantaged business concerns. Failure of any contractor to
comply in good faith with the provisions of P.L. 95-507 shall be
reason for a material breach of the contract or subcontract.
4. Definitions. A subcontract is any agreement (other than one
involving an employer-employee relationship) entered into by a
Federal Government prime contractor or subcontractor for products
or services required for the performance of the original contract,
modification, or subcontract, including a proportionate share of
products and services whose costs are normally allocated as
indirect or overhead costs.
a. A eomingT-gjal product is a product in regular production
which is sold in substantial quantities to the general public or
industry at established market or catalog prices. It is also a
product which, in the opinion of the contracting officer, differs
only insignificantly from the contractor's commercial product,
i.e., a product which is ordered in a special color but is
otherwise identical to off-the-shelf products.
b. Subcontracting Plan. The term "subcontracting plan"
means an outline of a prime contractor's objectives in utilizing
the services of small and disadvantaged business firms in carrying
out the requirements of the contract.
5. Types of Subcontracting Plans - (Individual Plans) . An
individual subcontract plan contains separate dollar and percentage
goals with all administrative elements developed for the specific
contract. Each item of the plan must be negotiated and approved by
the contracting officer prior to award. The plan applies to the
entire life of the contract.
Commercial Products Plans. Commercial products plans may be
submitted when a vendor sells large quantities for similar
commercial products to multiple Government agencies; for example,
from a GSA Federal Supply Schedule. This type of plan contains
administrative elements and goals developed and approved on a
company-wide basis. Individual contract goals are not required.
Commercial products plans are negotiated and in a given fiscal
year, apply to all contracts awarded during that year for the
commodities covered by the plan. A copy of the plan and the lead
agency contracting officer's approval of the plan must be obtained.
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The plan must cover the products being purchased under the EPA
contract. If it does not, an individual plan must be negotiated.
Commercial product plans cannot be used for services contracts.
Such plans are valid only for the year in which they are approved.
Therefore, a current plan must be obtained and approved prior to
modifying or exercising options to contracts containing commercial
products plans.
6. Applying Subcontracting Provision - (Clauses). All EPA
contractual actions in excess of $10,000 shall include the clause
at FAR 52.219-8, "Utilization of Small Business and Small Business
Concerns", unless performance is outside the United States or for
personal services.
a. All solicitations and contracts in excess of the small
purchase limitation shall include the clause at FAR 52.219.13,
Utilization of Women-Owned Small Businesses, unless performance is
outside the U.S., or for personal services.
b. All solicitations and contracts expected to exceed the
small purchase threshold shall include the clause at FAR 52.220.3,
"Utilization of Labor Surplus Area Concerns", unless the
performance is for personal services or by foreign contractors,
including all related subcontracts, and will be performed entirely
outside the United States.
c. All solicitations and contracts expected to exceed the
$500,000 statutory threshold shall include the clauses at FAR
52.219.9, "Small Business and Small Disadvantaged Business
Subcontracting Plan", and where applicable, its Alternate I, and
52.220.4 for respective competitive, sealed bidding, or LSA
actions.
d. All solicitations and contracts which contain the
subcontracting plan clause (FAR 52.2319.9 and its Alternate I)
shall include the clause at FAR 52.219.16, "Liquidated Damages—
Small Business Subcontracting Plan".
7. Subcontracting Plans. All contracts for new procurements over
the statutory dollar threshold which meet the criteria for
submission of subcontracting plans, shall contain an approved
subcontracting plan reflecting specific dollar and percentage goals
for small, small disadvantaged, and women-owned business
participation as subcontractors. The value of options and similar
provisions must be included in determining whether the dollar value
exceeds the threshold. Options must be included in the plan
coverage (see FAR 19.705.2(a)), with separate goals for the base
period, and for each option period. Contracts with businesses
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owned by a foreign country which operate from a location in the
United States, non-profit educational organizations, and State or
local governments must include plans unless they are otherwise
exempt.
a. All letter contracts shall include a preliminary basic
plan. A final plan must be negotiated within 90 days after award
or before definitizing the contract, whichever occurs first (FAR
19.705.5(b)).
b. All indefinite quantity/indefinite delivery and
requirements contracts must contain plans if actual previous
expenditures and/or internal estimates exceed the applicable
threshold.
c. All contract modifications, sole-source or otherwise,
which exceed the statutory dollar threshold must contain either
separate goals for the new effort or a revision to the original
goal which indicates expansion of the existing plan that increases
the percentage of dollar amounts. NOTE: A new subcontracting plan
is not necessary if the original contract already contains an
approved subcontracting plan-.
d. EPA contracting officers are encouraged to negotiate
subcontracting plans with all firms in the competitive range for
certain complex acquisitions.
8. Implementing Procedures. The following procedures shall be
followed in carrying out the EPA subcontracting plan:
a- Solicitation Instructions. All solicitations for
potential contracts expected to exceed the statutory thresholds
shall contain a notice advising offerers that subcontracting plans
may be requested from all firms determined to be in the competitive
range. In the case of a successful offerer, or if the contracting
officer deems it more feasible, plans may be negotiated with all
firms in the competitive range. When simultaneous negotiation is
desirable, the solicitation may require offerers to submit
subcontracting plans with their initial proposals. The
solicitation shall advise contractors that they must show evidence
of equal opportunity in soliciting subcontractors, and advise them
that the EPA has a source list of potential subcontractors which
may be used to supplement their own lists. A copy of the
solicitation shall be forwarded to OSDBU and the appropriate SDBS.
b. Evaluation of Requirements. The procuring activity, in
coordination with the SDBS and the OSDBU, shall evaluate each
procurement to determine subcontracting possibilities. A
determination that no subcontracting possibilities exist must be
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approved by the OSDBU, and shall become a permanent part of the
contract file. The contractor's performance must be monitored to
ensure that there is no change in this determination. Should
subcontracting actually occur, the contracting officer must
promptly request a written subcontracting plan from the prime
contractor for review and approval. If the determination is not
approved, a plan must be obtained from the contractor.
c. Subcontracting Program Evaluation Criteria. For large or
complex acquisitions where substantial subcontracting opportunities
exist, the offerer's subcontracting plan, and where appropriate,
prior performance shall be included as one of the evaluation
factors. The determination to incorporate subcontracting plans as
an evaluation factor should be a cooperative effort between the
program office, the contracting office, and OSDBU.
d. Subcontracting Program Support. The following statement
should be included in solicitations applicable to the
subcontracting requirement:
Small and small disadvantaged businesses, including
women-owned and labor surplus area, are encouraged to
participate as prime contractors or as members of joint
ventures with other small businesses. All interested
contractors are reminded that the successful contractor
will be expected to place subcontracts to the maximum
practicable extent with small and disadvantaged firms in
accordance with the provisions of Public Law 95-507 and
Subpart 19.7 of the Federal Acquisition Regulations.
e. Publicizing subcontracting Opportunities. Contracting
officers shall encourage prime contractors and subcontractors to
publicize their subcontracting opportunities in the Commerce
Business Daily (CBD). Subcontract information should be mailed
directly to the CBD under the heading "Subcontracting Assistance
Wanted". In addition, the cognizant SDBS shall, upon request
provide small businesses the list of contractors to whom
solicitations have been mailed.
9. Subcontracting Plan Reports. Contracting officers shall
ensure that contractors forward individual contractor data on SF
294 semiannually, and summary data of SF 295 annually, to the
procurement office and the OSDBU within 30 days of the reporting
period. The reports will be reviewed by the contracting officer
and OSDBU for progress in meeting subcontracting plan goals by
comparing the reports with the plan.
Instances where percentage goals are yet met, the contractor must
be required to explain the shortfall in the "Remarks" block on the
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subcontracting reports. In addition, the contractor should submit
evidence of its outreach efforts to locate and provide
subcontracting opportunities to small and disadvantaged business
concerns.
a. Delinquent Reports. The contracting officers must
notify, in writing, any contractor who fails to submit SF 294 and
SF 295 reports within 10 calendar days after the due date. If the
contractor fail to respond to the first notice, a second written
notice must be issued, by certified mail, which provides the
following information:
(1) A statement that the named report has not been
received;
(2) A statement that failure to submit the report is a
material breach of the contract;
(3) A statement that if the report is not received
within 10 calendar days from the date of the notice,
the contracting officer will consider withholding
payments as deemed appropriate under the
circumstances until the report is received, and may
terminate the contract for default;
(4) A reminder that failure to submit the report may
affect the contractor's ability to receive future
awards from the EPA and that willful failure to
perform or a history of failure to perform may
result in debarment from future contracting with the
Government; and
(5) The address of the contracting officer to whom the
reports shall be sent.
Copies of delinquency notices concerning SF 294 or 295 reports
shall be sent to the Director, OSDBU.
10. Final Performance Assessments - (Individual Contractor
Achievements). Upon contract completion, the contracting officer
shall submit a report documenting, evaluating, and advising the
OSDBU on the contractor's performance under the subcontracting
plan. The report shall include:
(1) The extent to which goals were met;
(2) Whether the contractor's efforts were consistent
with the effort proposed in the plan; and
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(3) Whether the contractor required its subcontractors
to adopt similar subcontract plans as required by
FAR 19.706.
EPA Achievement Report. OSDBU shall prepare a consolidated annual
achievement report of established subcontracting goals. The report
shall be forwarded to the Administrator for the Small Business
Administration by December 31st for the preceding fiscal year
ending September 30th.
For more information regarding the Agency's Preferential
Procurement Programs, please contact:
Leon H. Hampton/ Jr.
Director/OSDBU (703) 305-7777
EPA Headquarters
or
Margie A. Wilson
Senior Program Manager
EPA Headquarters
(703) 305-7305
Jerry Dodson
Small and Disadvantaged Business Specialist
EPA RTF, NC
(919) 541-2249
Norman White
Small and Disadvantaged Business Specialist
EPA Cincinnati, OH
(513) 366-2024
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APPENDIXES
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ffi
&EPA
Record of Procurement Request Review
To:.
V.il&on, OSDbL
Procurement Control No.
Date
Karch 1,
Ascription
Technical Support for the Statistical Policy brar.ch for Lr.vironment&lly
Related Statistical and Anaivtical Issues
SIC or Program Element No. (Use SIC Code in RFP/IFB)
Estimated Value of Total Procurement
t3,5GO,000.00
Source List Is Enclosed
Part 1 — Small Business and Labor Surplus Area Concerns Set-Aside Recommendation
A. LJ Pursuant to FAR Parts 19 and 20 and Environmental Protection Agency Acquisition Regulation 1519.201,
and in accordance with criteria set forth in the Small Business Act of 1958 (Public Law 85-536. as
amended), I recommend that this procurement be set aside for the award of contracts to small business and
labor surplus area concerns in the following priorities (in descending order):
LJ 1. Labor Surplus Area Concerns — SB (total set-asides) LJ 3. SB Concerns (partial set-asides)
2. SB Concerns (total set-asides)
4. Labor Surplus Area Concerns (totalset-asides)
Estimated Value of Set-AsideS
B. D I find that for the following reason(s), the Small Business and Labor Surplus Area Concerns Set-Asides
procedures are unsuitable for fulfilling this requirement:
I—I 1. JOFOC Attached LJ 5. Within the capability of large business only, as recommended by initiatoi
LJ 2. Insufficient Competition LJ 6. Emergency Procurement (Specie/)
LJ 3. GSA Stores Stock LJ 7. 8(a) procedures will be used
D 4. Federal Supply Schedule D Other (Specify)
tall Business Specialist (Signature)
Date
•? /
Part II — Action by Contracting Officer
fit. I approve the aforementioned recommendation.
I I I do not concur with the aforementioned recommendation because:
Contracting Officer (Signature)
ading Officer (Sigi
3%v J".', Y
Part IrM- Action of Review Authority by Small Business Administration Representative
Date
3/yVc)
LJ I concur with the Contracting Officer's action
Q I do not concur, and request supension of action on this procurement pending appeal under FAR subpart 19.505
Small Business Administration Representative (Signature)
Date
Part IV — Action of Review Authority by Head. Contracting Activity
LJ Small Business and Labor Surplus Areas Set-Asides shall be used.
LJ Small Business and Labor Surplus Areas Set-Asides shall not be used.
. *ad. Contracting Activity (Signature)
11 An M
>Viuf< p IrVVN
Date
EPA Form 1900-37 (Rev. 4-85) Previous editions are obsolete.
"'SMALL BUSINESS SPECIALIST
42
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Srrm 1 1 Business Administration
1441 L Street, N.W.
Washington, O.C. 20416
Gent Iemen:
It is requested that the enclosed procurement request and
statement of work associated with RFP No. W900332-A3 be evaluated
for clearance under section 8(a) of the Small Business Act.
Request permission for the Agency to negotiate with:
Vigyan Research Associates, Inc.
30 Research Drive
Hampton, VA 23666
President: Dr. Sudhir Mehrotra
Public solicitation for this procurement has not been issued
to the small business community, as a small business set-aside
and the procurement cannot reasonable be expected to be won by an
eligible 8(a) concern under normal competitive means.
Should any additional information be required, contact the
undersigned by phoning (20) 382-3246.
Sincerely,
Cheryl R. Nelson
Contracting Officer
ADP Procurement Section
(PM214F)
Enclosures
c: Margie Wilson
cc: SBA
Attn: Ernestine Beltonn
Federal Building
400 N. 8th Street
Richmond, VA 23240
43
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FAC84—58 JULY 23,1990 ,7j
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