SUBPART 219.8--CONTRACTING WITH THE SMALL
BUSINESS ADMINISTRATION (THE 8(a)
PROGRAM)
(Revised
March 27, 2007)
219.800 General.
219.803 Selecting acquisitionsfor the 8(a) Program.
219.804 Evaluation, offering,and acceptance.
219.804-1 Agency evaluation.
219.804-2 Agency offering.
219.804-3 SBA acceptance.
219.805 Competitive 8(a).
219.805-1 General.
219.805-2 Procedures.
219.806 Pricing the 8(a) contract.
219.808 Contract negotiations.
219.808-1 Sole source.
219.811 Preparing the contracts.
219.811-1 Sole source.
219.811-2 Competitive.
219.811-3 Contract clauses.
219.812 Contract administration.
219.800 General.
(a) By Partnership Agreement (PA) dated February 1, 2002, between the Small Business Administration (SBA) and the Department of Defense (DoD), the SBA delegated to the Under Secretary of Defense (Acquisition, Technology, and Logistics) its authority under paragraph 8(a)(1)(A) of the Small Business Act (15 U.S.C. 637(a)) to enter into 8(a) prime contracts, and its authority under 8(a)(1)(B) of the Small Business Act to award the performance of those contracts to eligible 8(a) Program participants.
However, the SBA remains the prime contractor on all 8(a) contracts, continues to determine eligibility of concerns for contract award, and retains appeal rights under FAR 19.810. The SBA delegates only the authority to sign contracts on its behalf.
Consistent with the
provisions of this subpart, this authority is hereby redelegated to DoD
contracting officers within the
See DoD Class Deviation 2007-O0003, New 8(a)
Partnership Agreement Between the U.S. Small Business Administration and the
Department of Defense, issued on February 28, 2007. This deviation is effective until superseded,
rescinded, or incorporated into the DFARS.
(b) Contracts awarded under the PA may be awarded directly to the 8(a) participant on either a sole source or competitive basis. An SBA signature on the contract is not required.
(c) Notwithstanding the PA, the contracting officer may elect to award a contract pursuant to the provisions of FAR Subpart 19.8.
219.803 Selecting acquisitions
for the 8(a) Program.
(b) Contracting activities should respond to SBA requests for contract support within 30 calendar days after receipt.
(c) Before considering a small business set-aside, review the acquisition for offering under the 8(a) Program.
219.804 Evaluation, offering,
and acceptance.
219.804-1 Agency evaluation.
(f) The 8(a) firms should be offered the opportunity to give a technical presentation.
219.804-2 Agency offering.
(1) For requirements processed under the PA cited in 219.800 (but see paragraph (2) of this subsection for procedures related to purchase orders that do not exceed the simplified acquisition threshold), the notification to the SBA shall clearly indicate that the requirement is being processed under the PA. All notifications should be submitted in writing, using facsimile or electronic mail, when possible, and shall specify that¾
(i) Under the PA, an SBA acceptance or rejection of the offering is required within 5 working days of receipt of the offering; and
(ii)(A) For sole source requirements, an SBA acceptance shall include a size verification and a determination of the 8(a) firm’s program eligibility, and, upon acceptance, the contracting officer will solicit a proposal, conduct negotiations, and make award directly to the 8(a) firm; or
(B) For competitive requirements, upon acceptance, the contracting officer will solicit offers, conduct source selection, and, upon receipt of an eligibility verification, award a contract directly to the selected 8(a) firm.
(2) Under the PA cited in 219.800, no separate agency offering or SBA acceptance is needed for requirements that are issued under purchase orders that do not exceed the simplified acquisition threshold. After an 8(a) contractor has been identified, the contracting officer shall establish the prices, terms, and conditions with the 8(a) contractor and shall prepare a purchase order consistent with the procedures in Part 213 and FAR Part 13, including the applicable clauses required by this subpart. No later than the day that the purchase order is provided to the 8(a) contractor, the contracting officer shall provide to the cognizant SBA Business Opportunity Specialist, using facsimile, electronic mail, or any other means acceptable to the SBA district office¾
(i) A copy of the signed purchase order; and
(ii) A notice stating that the purchase order is being processed under the PA. The notice also shall indicate that the 8(a) contractor will be deemed eligible for award and will automatically begin work under the purchase order unless, within 2 working days after SBA’s receipt of the purchase order, the 8(a) contractor and the contracting officer are notified that the 8(a) contractor is ineligible for award.
(3) The notification to SBA shall identify any joint venture proposed for performance of the contract. SBA shall approve a joint venture before award of an 8(a) contract involving the joint venture.
(4) For competitive requirements for construction to be performed overseas, submit the notification to SBA Headquarters.
219.804-3 SBA acceptance.
For requirements processed under the PA cited in 219.800,
SBA’s acceptance is required within 5 working days (but see 219.804-2(2) for
purchase orders that do not exceed the simplified acquisition threshold).
219.805 Competitive 8(a).
219.805-1 General.
(b)(2)(A) For acquisitions that exceed the competitive
threshold, the SBA also may accept the requirement for a sole source 8(a) award
on behalf of a small business concern owned by a Native Hawaiian Organization
(Section 8020 of Pub. L. 109-148).
(B) “Native Hawaiian Organization,” as used in
this subsection and as defined by 15 U.S.C. 637(a)(15) and 13 CFR 124.3, means
any community service organization serving Native Hawaiians in the State of
(1)
That is a not-for-profit organization chartered by the State of
(2)
That is controlled by Native Hawaiians; and
(3)
Whose business activities will principally benefit such Native
Hawaiians.
219.805-2 Procedures.
(c) For requirements processed under the PA cited in 219.800—
(i) For sealed bid and negotiated acquisitions, the SBA will determine the eligibility of the firms and will advise the contracting officer within 2 working days after its receipt of a request for an eligibility determination; and
(ii) For negotiated acquisitions, the contracting officer may submit a request for an eligibility determination on all firms in the competitive range if discussions are to be conducted, or on all firms with a realistic chance of award if no discussions are to be conducted.
219.806 Pricing the 8(a) contract.
For requirements processed under the PA cited in 219.800—
(1) The contracting officer shall obtain cost or pricing data from the 8(a) contractor, if required by FAR Subpart 15.4; and
(2) SBA concurrence in the negotiated price is not required. However, except for purchase orders not exceeding the simplified acquisition threshold, the contracting officer shall notify the SBA prior to withdrawing a requirement from the 8(a) Program due to failure to agree on price or other terms and conditions.
219.808 Contract negotiations.
219.808-1 Sole source.
For requirements processed under the PA cited in 219.800—
(1) The agency may negotiate directly with the 8(a) contractor. The contracting officer is responsible for initiating negotiations;
(2) The 8(a) contractor is responsible for negotiating within the time established by the contracting officer;
(3) If the 8(a) contractor does not negotiate within the established time and the agency cannot allow additional time, the contracting officer may, after notifying the SBA, proceed with the acquisition from other sources;
(4) If requested by the 8(a) contractor, the SBA may participate in negotiations; and
(5) SBA approval of the contract is not required.
219.811 Preparing the contracts.
219.811-1 Sole source.
(a) Awards under the PA cited in 219.800 may be made directly to the 8(a) contractor and, except as provided in paragraph (b) of this subsection and in 219.811-3, award documents shall be prepared in accordance with procedures established for non-8(a) contracts, using any otherwise authorized award forms. The “Issued by” block shall identify the awarding DoD contracting office. The contractor’s name and address shall be that of the 8(a) participant.
(b) Use the following alternative procedures for direct awards made under the PA cited in 219.800:
(i) Cite 10 U.S.C. 2304(c)(5) as the authority for use of other than full and open competition;
(ii) Include the clause at 252.219-7009, which allows for direct award to the 8(a) contractor, and identify the cognizant SBA district office for the 8(a) contractor;
(iii) No SBA contract number is required; and
(iv) Do not require an SBA signature on the award document.
219.811-2 Competitive.
Awards made under the PA cited in 219.800 shall be prepared in accordance with 219.811-1.
219.811-3 Contract clauses.
(1) Use the clause at 252.219-7009, Section 8(a) Direct Award, instead of the clauses at FAR 52.219-11, Special 8(a) Contract Conditions, FAR 52.219-12, Special 8(a) Subcontract Conditions, and FAR 52.219-17, Section 8(a) Award, in solicitations and contracts processed in accordance with the PA cited in 219.800.
(2) Use the clause at FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns, with 252.219-7010, Alternate A, in solicitations and contracts processed in accordance with the PA cited in 219.800.
(3) Use the clause at 252.219-7011, Notification to Delay Performance, in solicitations and purchase orders issued in accordance with 219.804-2(2).
219.812 Contract administration.
(d) Awards under the PA cited in 219.800 are subject to Section 407 of Pub. L. 100-656. These contracts include the clause at 252.219-7009, Section 8(a) Direct Award, which requires the 8(a) contractor to notify the SBA and the contracting officer when ownership of the firm is being transferred.