[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Rules and Regulations]
[Pages 41060-41067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19482]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 519, and 552
[GSAR Amendment 2009-09; GSAR Case 2006-G501 (Change 37) Docket 2008-
0007; Sequence 6]
RIN 3090-AI56
General Services Administration Acquisition Regulation; GSAR Case
2006-G501, Mentor-Prot[eacute]g[eacute] Program
AGENCIES: General Services Administration (GSA), Office of the Chief
Acquisition Officer.
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) to amend
its acquisition regulations to formally encourage GSA prime contractors
to assist small business, including veteran-owned small business,
service-disabled veteran-owned small business, HUBZone, small
disadvantaged business, and women-owned small business, in enhancing
their capabilities to perform contracts and subcontracts for GSA and
other Federal agencies. The program seeks to increase the base of small
business eligible to perform GSA contracts and subcontracts. The
program also seeks to foster long-term business relationships between
GSA prime contractors and small business entities and to increase the
overall number of small business entities that receive GSA contracts,
and subcontract awards.
DATES: Effective Date: September 14, 2009.
Applicability Date: The final rule applies to solicitations and
existing contracts for supplies or services, including Federal Supply
Schedules and construction. Existing contracts shall be modified at no
cost to the Government by mutual agreement of both parties.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-0044. For
information pertaining to status or publication schedules, contact the
Regulatory
[[Page 41061]]
Secretariat (VPR), Room 4041, 1800 F Street, NW, Washington, DC, 20405,
(202) 501-4755. Please cite Amendment 2009-09, GSAR case 2006-G501
(Change 37).
SUPPLEMENTARY INFORMATION:
A. Background
The U.S. General Services Administration (GSA) published a notice
of proposed rulemaking in the Federal Register at 73 FR 32669, June 10,
2008), in which GSA proposed to develop a Mentor-Prot[eacute]g[eacute]
Program that encouraged GSA prime contractors to assist small business,
including small disadvantaged business, veteran-owned, service-disabled
veteran-owned, HUBZone, and women-owned small business in enhancing
their capabilities to perform contracts and subcontracts for GSA and
other Federal agencies. Successful Mentor-Prot[eacute]g[eacute]
arrangements represent opportunities for creating access for small
business to GSA contracts and awards. GSA received comments on the
proposed rule suggesting the Agency clarify the eligible participants
in the Program and the types of incentives GSA may provide to prime
contractors for providing developmental assistance to
prot[eacute]g[eacute]s. After careful consideration of the public
comments received on the notice of proposed rulemaking, GSA is issuing
a final rule.
Resolution of Comments
Twelve commenters submitted comments in response to the proposed
rule. Three of the twelve commenters expressed interest in
participating in the GSA Mentor-Prot[eacute]g[eacute] Program. A
discussion of the comments and the changes made to the rule as a result
of those comments is provided below.
Comment: One commenter recommends that the word ``small'' needs to
be defined. Large businesses ``hide'' behind small businesses.
Response: Non-concur. The comment is outside the scope of this GSAR
case. With the exception of small disadvantaged businesses, 8(a)
Participants and HUBZone small business concerns, all other firms self-
certify in accordance with the definitions in FAR Part 2.
Comment: A commenter states that incentives are insufficient and
suggests monetary reimbursement for mentoring expenses, limited
ownership interest in the prot[eacute]g[eacute], or relaxation of small
business affiliation rule.
Response: Non-concur. GSA does not have legal authority to
incorporate the incentives suggested by the commenter. GSAM 519.7004,
Incentive for Prime Contract Participation, is consistent with the
Mentor-Prot[eacute]g[eacute] Programs of other civilian agencies.
Comment: Two commenters recommend better monitoring of the Mentor-
Prot[eacute]g[eacute] Programs.
Response: GSA is not responsible for the experiences of other
Federal agency Mentor-Prot[eacute]g[eacute] Programs and plans to
carefully monitor the GSA Mentor-Prot[eacute]g[eacute] Program. GSA
anticipates having a very successful program that will be beneficial to
both mentors and prot[eacute]g[eacute]s.
Comment: Under GSAM 519.7003, General Policy, a commenter
recommends the need to address how Mentor-Prot[eacute]g[eacute]
Agreements can be incorporated into small business prime awards and how
evaluation credit during source selection is given to small business
firms that are mentors with small business subcontractors.
Response: Concur. As with other terms and conditions that need
incorporation into a contract, the Mentor-Prot[eacute]g[eacute]
agreement should be incorporated into the small business prime
contractor's contract. In addition, there is nothing in the FAR or GSAR
that precludes establishing source selection criteria that would apply
to both large and small businesses.
Comment: One commenter states that GSAR 519.7004, paragraph (b)
does not appear to belong in this section since it points out that the
mentor's cost are not reimbursable directly but may be reimbursable
once indirect cost rates are established with the cognizant audit
agency. How does this relate to incentives for mentors?
Response: Non-concur. The civilian agencies do not have the
statutory authority that the Department of Defense has for its Mentor-
Prot[eacute]g[eacute] Program; therefore, civilian agency incentives
are limited. GSAM 519.7004, Incentive for Prime Contract Participation,
is consistent with the Mentor-Prot[eacute]g[eacute] Programs of other
civilian agencies.
Comment: One commenter requests specific details about the non-
monetary award in GSAM 519.7004(d). In addition, the commenter
questions why the GSA annual conference in GSAM 519.7004(e) is listed
as an incentive and states that overall there are no true incentives
offered for the time and effort the Mentor Program would require.
Response: Non-concur. GSA will provide the specifics of the non-
monetary award at a later date. The civilian agencies do not have the
statutory authority that the Department of Defense has; therefore, the
incentives for civilian agencies are limited. The GSA annual conference
is an opportunity to network, share Mentor-Prot[eacute]g[eacute]
experiences and share the ``Lessons Learned''. GSAM 519.7004, Incentive
for Prime Contract Participation, is consistent with the Mentor-
Prot[eacute]g[eacute] Programs of other civilian agencies.
Comment: A commenter questions indirect costs and states that these
costs are generally established for cost contracts and certain special
fixed price contracts. The references for indirect cost rates seem to
be entirely out of place and would often be inapplicable to many
competitive firm fixed GSA contracts.
Response: Non-concur. Even though this paragraph may not apply to
many GSA contracts, this is a GSA-wide Mentor-Prot[eacute]g[eacute]
Program that can include contracts that may have indirect costs
associated with it. The intent of the GSA Mentor-Prot[eacute]g[eacute]
Program is to not exclude any potential GSA contracts, including GSA
cost contracts.
Comment: One commenter refers to FAR 15.101-1 which discusses the
trade-off process. The commenter states that the natural implication is
that the evaluation credit is not applicable to lowest-price
technically acceptable source selection, given that tradeoffs are not
permitted in that scenario and should be clearly stated, for it
substantially limits the circumstance under which this incentive could
be applied. The commenter further states that careful distinction is
required since the same paragraph goes on to state that past compliance
with subcontracting plans can be considered as part of past performance
evaluation (trade-off scenario) but also as part of Responsibility
Determinations which are made regardless of whether the trade-off or
LPTA scenario is used so the paragraph is unclear in regard to the
distinction between the two types of source selection.
Response: Non-concur. The FAR clearly explains how the trade-off
process is utilized. The GSAR language at 519.7004(c) states that the
contracting officer ``may'' give mentors evaluation credit under FAR
15.101-1 considerations for subcontracts which means that it may not be
used in all cases.
Comment: Regarding GSAM 519.7005, one commenter suggests that the
regulation address how measurement of the program success within the
first year of the agreement if a Prot[eacute]g[eacute] has not received
a contract award or dollars. Depending on the terms of the agreement,
the first year of the program may involve only development or training;
therefore, contract awards may not be immediate.
[[Page 41062]]
Response: The GSA Mentor-Prot[eacute]g[eacute] Program will not be
measured only on the contract award and dollars. The measurement of
success will include developmental assistance given to the
Prot[eacute]g[eacute] as required by the Mentor-Prot[eacute]g[eacute]
Program.
Comment: One commenter requests clarification on GSAM 519.7006 and
519.7009. GSAM 519.7009 indicates that a large business mentor's
application must include a statement that the firm is currently
performing under at least one active approved subcontracting plan.
However, GSAM 519.7006 states that mentors must either currently be
operating under an approved subcontracting plan under a negotiated
award or must have operated under one for a contract awarded within the
past five years.
Response: Concur. The language has been revised to state that the
large business mentor must currently be performing under an approved
subcontracting plan. The language ``or has performed under at least one
approved subcontracting plan awarded under a negotiated contract within
the last five years'' has been deleted.
Comment: A commenter believes that GSAM 519.7003(c) is vague and
recommends that the provision be changed to state that an active
mentor-prot[eacute]g[eacute] arrangement requires the
prot[eacute]g[eacute] to already be or become a subcontractor under a
GSA contract of the mentor firm that contains a subcontracting plan.
This revision will then be in agreement with GSAM 519.7009(b).
Response: Concur. The language in GSAM 519.7003(c) has been
revised.
Comment: One commenter recommends that the GSAM language be clear
to indicate that this section includes schedules.
Response: Concur. Adopted comment.
Comment: One commenter states that GSAM 519.7004(c) does not
clearly elaborate on the incentives and the associated specifics. The
commenter further states that the current language does not mention
that the mentor can take credit for costs incurred by the mentor. Other
Federal mentor-prot[eacute]g[eacute] programs allow the mentor to
subsequently receive credit towards their subcontracting plan based on
the amount invested. This section combines mentor-prot[eacute]g[eacute]
performance with small business subcontracting plan compliance which
are totally separate elements. Commenter recommends adding language
that explicitly describes the incentive as follows: ``future
solicitations contain a source selection factor or subfactor regarding
the participation in the Mentor-Prot[eacute]g[eacute] Program. In order
to receive credit under source selection factor or subfactor, the
offeror shall provide a signed letter of mentor-prot[eacute]g[eacute]
agreement approval before initial evaluation of proposals. The
contracting officer may, in his or her discretion, give credit for
approvals that occur after the initial evaluation of proposals, but
before final evaluation''. (Currently in DHS and NASA's programs).
Response: Non-concur. With the exception of instances of allowing
indirect costs, costs incurred by the mentor are not allowable.
Comment: A commenter suggests adding language that enables the
mentor to take credit for the developmental assistance provided and how
this credit can be applied. Suggested language: ``Mentors are eligible
to take post-award incentive for subcontracting plan credit whereby the
mentor will receive credit towards its subcontracting plan for costs it
incurs to provide assistance to a prot[eacute]g[eacute] firm. The
mentor may use this additional credit toward achievement of its goal
under the same or another GSA subcontracting plan. GSA may wish to
adjust the credit factor as it sees fit, but it is a federal agency
best practice as represented at DOD, DHS, NASA, and others to
explicitly state how the benefit and credit is determined.''
Response: GSA does not concur. GSA believes that the incentives in
GSAM 519.7004, ``Incentives for prime contractors,'' that includes
coverage whereby mentors may be reimbursed for their indirect costs are
sufficient incentives.
Comment: One commenter recommends removing GSAM 519.7004(c)(2) in
its entirety.
Response: Non-concur. The commenter provides no rationale for its
removal. GSA believes that this subparagraph is an incentive for prime
contractor participation.
Comment: A commenter recommends that GSA, if not at inception, then
at a later date, to provide greater elaboration and detail regarding
the criteria for the OSBU mentoring award.
Response: Concur. After implementation of the GSA Mentor-
Prot[eacute]g[eacute] Program, the Associate Administrator of the
Office of Small Business Utilization (OSBU), will be responsible for
developing the criteria for the OSBU mentoring award.
Comment: One commenter states that GSAM 519.7009 as currently
proposed combines elements of a Mentor Application process and a
Mentor-Prot[eacute]g[eacute] agreement submittal process. It implies
that for each prot[eacute]g[eacute] agreement, a mentor submit an
application. These two elements should be completely separate as
consistent with other Federal agency practices and procedures. The
application for the mentor should not contain requests for the number
of proposed mentor-prot[eacute]g[eacute] arrangements as cited in GSAM
519.7009(b)(2) since it is not known how many will be developed in
outlying years. In addition, the specifics on the type of developmental
assistance GSAM 519.7009(b)(5) to be provided, or that a signed letter
of intent by the mentor and prot[eacute]g[eacute] GSAM 519.7009(b)(6)
be required are not truly indicative of a prime contractor's
eligibility as a mentor. They are elements germane to the development
of a specific mentor-prot[eacute]g[eacute] agreement and should be
incorporated into the ensuing section. By separating the mentor
application process from the agreement submittal process, industry and
Government are given the flexibility in the future to efficiently add a
prot[eacute]g[eacute] or prot[eacute]g[eacute]s as long as it is in
good standing both as a prime contractor and mentor. This will result
in a reduction in the amount of paperwork and time saving for the
Government.
Response: Non-concur. Initially, in the proposed rule, GSA had the
application and the agreement as separate submissions. However, GSA has
determined that it would be less burdensome on both the contractors and
GSA personnel to have the application and agreement combined. This is
consistent with Mentor-Prot[eacute]g[eacute] Programs of other Federal
agencies, such as USAID and Department of Homeland Security.
Comment: One commenter recommends deletion of GSAM 519.7009(b)(2)
requiring mentors to state the number of proposed prot[eacute]g[eacute]
arrangements at the time of mentor application review and mentor-
prot[eacute]g[eacute] agreement process.
Response: Non-concur. GSA is interested in how many
prot[eacute]g[eacute]s the mentor plans to develop.
Comment: Delete GSAM 519.7009(b)(6) requiring a letter of intent be
signed by the prospective mentor and prot[eacute]g[eacute] at the time
of mentor application submittal. This should be a requirement at the
time of mentor-prot[eacute]g[eacute] submittal.
Response: Concur. The final rule now combines the application and
agreement. Therefore, the letter of intent is unnecessary.
Comment: A commenter recommends adding a section in the mentor
application for prospective mentors to provide information on their
previous participation in Federal agency mentor-prot[eacute]g[eacute]
programs. Should the prospective mentor not have any prior
[[Page 41063]]
experience, they should describe the entity's ability to provide
developmental assistance and how that assistance will potentially
increase subcontracting opportunities for prot[eacute]g[eacute]s. This
should be inserted under GSAM 519.7009.
Response: Non-concur. The GSA Mentor-Prot[eacute]g[eacute] Program
stands independently. GSA will be evaluating the mentor-
prot[eacute]g[eacute] relationship on its own merits. Having experience
(positive or negative) on other mentor-prot[eacute]g[eacute] programs
would not add value and would increase the paperwork burden on the
contractor.
Comment: Commenter encourages GSA to review and consider the
current mentor-prot[eacute]g[eacute] application process and forms of
those currently in practice at NASA, DOD or DHS as a baseline.
Response: GSA has reviewed and considered other agencies' mentor-
prot[eacute]g[eacute] application processes and forms and has chosen
the most appropriate to suit GSA's needs.
Comment: Section 519.7017 provides guidance for contracting
officers to insert this clause. It seems to imply that will be only for
new contracts with no clear guidance regarding the GSA contracts
already in place. This will limit the ability for participation by
industry at the onset, thus limiting the potential short-term impact
and success. Recommend that GSA give clear guidance or instructions as
to how existing contracts can be modified to incorporate these new
clauses in order to facilitate industry participated once initiated.
Response: Concur. GSA did not intend for current contractors to be
excluded from participation in the Mentor-Prot[eacute]g[eacute]
Program. GSAM 519.7017 does not need a revision as it states to insert
the clause in all contracts and is not stating newly awarded contracts.
The Federal Register Notice indicates that the final rule applies to
current contracts.
Comment: Two commenters recommend that GSA amend its rule to
include language defining non-profit agencies (NPAs) for people who are
blind or have severe disabilities authorized by the Committee for
Purchase from People Who Are Blind or Severely disabled as
prot[eacute]g[eacute] firms in Section 519.7007(a).
Response: Non-concur. The Small Business Administration regulation,
13 CFR 121.105(a)(1) states: ``Except for small agricultural
cooperatives, a business concern eligible for assistance from SBA as a
small business is a business entity organized for profit, with a place
of business located in the United States, and which operates primarily
within the United States or which makes a significant contribution to
the U.S. economy through payment of taxes or use of American products,
materials or labor.''
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule. The changes may have a significant economic impact on
a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., GSA prepared a Final
Regulatory Flexibility Analysis (FRFA), and it is summarized as
follows:
The GSA Mentor-Prot[eacute]g[eacute] Program will allow small
businesses to become prot[eacute]g[eacute]s and receive
developmental assistance from large business mentors. The GSA
Mentor-Prot[eacute]g[eacute] Program also will allow small
businesses who want to mentor other small businesses to participate
in the program to provide developmental assistance to
prot[eacute]g[eacute]s. This Program encourages fostering the
establishment of long-term business relationships between these
small business entities and GSA prime contractors. It is expected
that the Program will increase the overall number of small business
entities that receive GSA contract and subcontract awards.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat. The Regulatory Secretariat will be submitting a
copy of the FRFA to the Chief Counsel for Advocacy of the Small
Business Administration.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 3090-
0286.
List of Subjects in 48 CFR Parts 501, 519, and 552
Government procurement.
Dated: August 7, 2009.
Rodney P. Lantier,
Acting Senior Procurement Executive, and Acting Deputy Chief
Acquisition Officer, Office of the Chief Acquisition Officer, General
Services Administration.
0
Therefore, GSA amends 48 CFR parts 501, 519, and 552 as set forth
below:
0
1. The authority citation for 48 CFR parts 501, 519, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
0
2. Amend section 501.106, in the table, by adding, in numerical
sequence, GSAR References ``519.70'', ``552.219-75'', ``552.219-76''
and their corresponding OMB Control Number ``3090-0286''.
PART 519--SMALL BUSINESS PROGRAMS
0
3. Add Subpart 519.70, consisting of sections 519.7001 through
519.7017, to read as follows:
Subpart 519.70--GSA Mentor-Prot[eacute]g[eacute] Program
Sec.
519.7001 Scope of subpart.
519.7002 Definitions.
519.7003 General policy.
519.7004 Incentives for prime contractors.
519.7005 Measurement of program success.
519.7006 Mentor firms.
519.7007 Prot[eacute]g[eacute] firms.
519.7008 Selection of prot[eacute]g[eacute] firms.
519.7009 Application process.
519.7010 Agreement contents.
519.7011 Application review.
519.7012 Developmental assistance.
519.7013 Obligation.
519.7014 Internal controls.
519.7015 Reports.
519.7016 Program review.
519.7017 Contract clauses.
Subpart 519.70--GSA Mentor-Prot[eacute]g[eacute] Program
519.7001 Scope of subpart.
The GSA Mentor-Prot[eacute]g[eacute] Program is designed to
encourage and motivate GSA prime contractors to assist small businesses
concerns, small disadvantaged businesses concerns, women-owned small
businesses concerns, veteran-owned small business concerns, service-
disabled veteran-owned small businesses concerns, and HUBZone small
businesses concerns, and enhance their capability of performing
successfully on GSA contracts and subcontracts, foster the
establishment of long-term business relationships between these small
business entities and GSA prime contractors, and increase the overall
number of small business entities that receive GSA contract and
subcontract awards.
519.7002 Definitions.
The definitions of small business concern, small disadvantaged
business concern, HUBZone small business concern, women-owned small
business concern, veteran-owned small business
[[Page 41064]]
concern, and service-disabled veteran-owned small business concern are
the same as found in FAR 2.101. Also see 13 CFR 121, 124, 125 and 126.
(a) Mentor as used in the GSA Mentor-Prot[eacute]g[eacute] Program,
is a prime contractor that elects, on a specific GSA contract, to
promote and develop small business subcontractors by providing
developmental assistance designed to enhance the business success of
the prot[eacute]g[eacute].
(b) Mentor-Prot[eacute]g[eacute] Program Manager means an employee
in the Office of Small Business Utilization (OSBU) (E) designated by
the Associate Administrator of OSBU to manage the Mentor-
Prot[eacute]g[eacute] Program.
(c) Prot[eacute]g[eacute] as used in the GSA Mentor-
Prot[eacute]g[eacute] Program is a small business concern that is the
recipient of developmental assistance pursuant to a mentor-
prot[eacute]g[eacute] arrangement on a specific GSA contract.
519.7003 General policy.
(a) A large business prime contractor that meets the requirements
at section 519.7006, and is approved as a mentor firm by the Mentor-
Prot[eacute]g[eacute] Program Manager, may enter into an Agreement with
a small business concern, small disadvantaged business concern, women-
owned small business concern, veteran-owned small business concern,
service-disabled veteran-owned small business concern or HUBZone small
business concern that meets the requirements for being a
prot[eacute]g[eacute] (see 519.7007) in order to provide appropriate
developmental assistance to enhance the capabilities of the
prot[eacute]g[eacute] to perform successfully as a subcontractor and
supplier.
(b) A small business prime contractor that is capable of providing
developmental assistance to prot[eacute]g[eacute]s, may also be
approved as a mentor.
(c) An active mentor-prot[eacute]g[eacute] arrangement requires the
prot[eacute]g[eacute] to either be a current or newly selected
subcontractor under the mentor's prime contract with GSA.
(d) A small business concern's status as a prot[eacute]g[eacute]
under a GSA contract shall not have an effect on its ability to seek
other prime contracts or subcontracts.
(e) Potential Mentors may submit an application for admittance to
the Mentor-Prot[eacute]g[eacute] Program at any time as long as the
requirements at section 519.7006 are met.
(f) The determination of affiliation is a function of the SBA.
519.7004 Incentives for prime contractors.
(a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), the GSA
is authorized to provide appropriate incentives to prime contractors in
order to encourage subcontracting opportunities for small business
concerns consistent with the efficient and economical performance of
the contract. This authority is limited to negotiated procurements,
including the GSA Multiple Award Schedule contracts and the GSA
Governmentwide Acquisition Contracts. It does not include orders under
any GSA contracts.
(b) Costs incurred by a mentor to provide developmental assistance,
as described in section 519.7012 to fulfill the terms of their
agreement(s) with a prot[eacute]g[eacute] firm(s), are not reimbursable
as a direct cost under a GSA contract. If GSA is the mentor's
responsible audit agency under FAR 42.703-1, GSA will consider these
costs in determining indirect cost rates. If GSA is not the responsible
audit agency, mentors are encouraged to enter into an advance agreement
with their responsible audit agency on the treatment of such costs when
determining indirect cost rates.
(c) In addition to paragraph (b) of this section, contracting
officers may give mentors evaluation credit during the source selection
process for subcontracts awarded under their subcontracting plans
pursuant to their Mentor-Prot[eacute]g[eacute] Agreements. (See FAR
15.101-1). Therefore:
(1) Contracting officers may evaluate proposals with subcontracting
plans containing Mentor-Prot[eacute]g[eacute] Agreements more favorably
than proposals with subcontracting plans that do not include Mentor-
Prot[eacute]g[eacute] Agreements; and
(2) Contracting officers may assess the prime contractor's
compliance with the subcontracting plans submitted in previous
contracts as a factor in evaluating past performance under certain
circumstances (see FAR 15.304(c)(3) and 15.305(a)(2)(v)) and
determining contractor responsibility FAR section 19.705-5(a)(1).
(d) OSBU Mentoring Award. A non-monetary award may be presented
annually to the mentoring firm providing the most effective
developmental support of a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to
the Administrator of GSA.
(e) OSBU Mentor-Prot[eacute]g[eacute] Annual Conference. At the
conclusion of each year in the Mentor-Prot[eacute]g[eacute] Program,
mentor firms will be invited to brief contracting officers, program
leaders, office directors, and other guests on their experience and
progress under the Program. Participation is voluntary.
519.7005 Measurement of program success.
The overall success of the GSA Mentor-Prot[eacute]g[eacute] Program
encompassing all participating mentors and prot[eacute]g[eacute]s will
be measured by the extent to which it results in:
(a) An increase in the number, dollar value, and percentage of
subcontracts awarded to prot[eacute]g[eacute]s by mentor firms under
GSA contracts since the date of entry into the Program. The baseline
that demonstrates an increase is determined by comparing the number and
total dollar amount of subcontract awards made to the identified
prot[eacute]g[eacute] firm(s) during the two preceding fiscal years (if
any) that are listed in application;
(b) An increase in the number and dollar value of contract and
subcontract awards (including percentage of subcontract awards) to
prot[eacute]g[eacute] firms since the date of the
prot[eacute]g[eacute]'s entry into the Program (under GSA contracts and
contracts awarded by other Federal agencies);
(c) An increase in the number and dollar value of subcontracts
awarded to a prot[eacute]g[eacute] firm by its mentor firm; and
(d) An increase in subcontracting with prot[eacute]g[eacute] firms
in industry categories where they have not traditionally participated
within the mentor firm's activity (i.e., the prot[eacute]g[eacute] is
expanding its field of expertise or is increasing its opportunities in
areas where it has not traditionally performed).
(e) Assessments of the semi-annual reports submitted by the mentors
and ``Lessons Learned'' evaluation submitted by the mentors and
prot[eacute]g[eacute]s to the GSA Mentor-Prot[eacute]g[eacute] Program
Manager.
519.7006 Mentor firms.
(a) Mentors must be:
(1) A large business prime contractor that is currently performing
under an approved subcontracting plan as required by FAR 19.7 - Small
business mentors are exempted; or
(2) A small business prime contractor that can provide
developmental assistance to enhance the capabilities of
prot[eacute]g[eacute]s to perform as contractors, subcontractors, and
suppliers;
(b) Must be eligible (not listed in the ``Excluded Parties List
System'') for U.S. Government contracts and not excluded from the
Mentor-Prot[eacute]g[eacute] Program under section 519.7014(b);
(c) Must be able to provide developmental assistance that will
enhance the ability of prot[eacute]g[eacute]s to perform as contractors
and subcontractors; and
[[Page 41065]]
(d) Must provide semi-annual reports detailing the assistance
provided and the cost incurred in supporting prot[eacute]g[eacute]s.
519.7007 Prot[eacute]g[eacute] firms.
(a) For selection as a prot[eacute]g[eacute], a firm must be:
(1) A small business concern, small disadvantaged business concern,
veteran-owned small business concern, service-disabled veteran-owned
small business concern, HUBZone small business concern, or women-owned
small business concern;
(2) Small for the NAICS code the prime contractor/mentor assigns to
the subcontract; and
(3) Eligible (not listed in the ``Excluded Parties List System'')
for U.S. Government contracts and not excluded from the Mentor-
Prot[eacute]g[eacute] Program under section 519.7014(b).
(b) A prot[eacute]g[eacute] firm may self-represent to a mentor
firm that it meets the requirements set forth in paragraph (a) of this
section. Mentors may check the Central Contractor Registration (CCR) at
www.ccr.gov to verify that the self-representation of the potential
prot[eacute]g[eacute] meets the specified small business and
socioeconomic category eligibility requirements (see FAR 19.703(b) and
(d)). HUBZone and small disadvantaged business status eligibility and
documentation requirements are determined according to 13 CFR Parts 124
and 126.
(c) A prot[eacute]g[eacute] firm must not have another formal,
active mentor-prot[eacute]g[eacute] relationship under GSA's Mentor-
Prot[eacute]g[eacute] Program but may have an active mentor-
prot[eacute]g[eacute] relationship under another agency's program.
519.7008 Selection of prot[eacute]g[eacute] firms.
(a) Mentor firms will be solely responsible for selecting
prot[eacute]g[eacute] firms. Mentors are encouraged to select from a
broad base of small business concerns including small disadvantaged
business concerns, women-owned small business concerns, veteran-owned
small business concerns, service-disabled veteran-owned small business
concerns, and HUBZone small business concerns. A prot[eacute]g[eacute]
must be either a current subcontractor or a newly selected
subcontractor for the prime contractor's GSA contract.
(b) Mentor firms may have more than one prot[eacute]g[eacute]. GSA
reserves the right to limit the number of prot[eacute]g[eacute]s
participating under each mentor firm.
(c) The selection of prot[eacute]g[eacute] firms by mentor firms is
not protestable, except for a protest regarding the size or eligibility
status of an entity selected by a mentor to be a prot[eacute]g[eacute].
Such protests shall be handled in accordance with FAR 19.703(b). The
contracting officer shall notify the Office of Small Business
Utilization (OSBU) of the protest.
519.7009 Application process.
(a) Prime contractors interested in becoming a mentor firm must
apply in writing by submitting the GSA Form 3695 to the GSA Mentor-
Prot[eacute]g[eacute] Program Manager, at GSA Office of Small Business
Utilization (E), Washington, DC 20405. The Application shall include
the Mentor-Prot[eacute]g[eacute] Agreement and will be evaluated for
approval based on the extent to which the company plans to provide
developmental assistance.
(b) The application must contain:
(1) A statement that the mentor firm is currently performing under
at least one active approved subcontracting plan (small business
exempted) and the firm is eligible, as of the date of Application, for
the award of Federal contracts;
(2) The number of proposed prot[eacute]g[eacute] arrangements;
(3) Data on all current GSA contracts, and subcontracts including
the contract/subcontract number(s), type of contract(s), period of
performance (including options), contract/subcontract value(s)
including options, technical program effort(s) (program title), name of
GSA Project Manager or Contracting Officer's Representative (including
contact information), name of contracting officer(s) and contact
information, and awarding GSA installation;
(4) Data on total number and dollar value of subcontracts awarded
under GSA prime contracts within the past 2 years and the number and
dollar value of such subcontracts awarded to entities who are proposed
prot[eacute]g[eacute]s;
(5) Information on the proposed types of developmental assistance.
For each proposed mentor-prot[eacute]g[eacute] relationship include
information on the company's ability to provide developmental
assistance to the identified prot[eacute]g[eacute] firm and how that
assistance will potentially increase subcontracting opportunities for
the prot[eacute]g[eacute] firm, including subcontracting opportunities
in industry categories where these entities are not dominant in the
company's current subcontractor base; and
(6) Agreement information as listed in 519.7010.
519.7010 Agreement contents.
The contents of the Agreement must contain:
(a) Names, addresses (including facsimile, e-mail, and homepage)
and telephone numbers of mentor and prot[eacute]g[eacute] firms and the
name, telephone number, and position title within both firms of the
person who will oversee the Agreement.
(b) An eligibility statement from the prot[eacute]g[eacute] stating
that it is a small business, its primary NAICS code, and when
applicable the type of small business (small disadvantaged business
concern, HUBZone small business concern, women-owned small business
concern, veteran-owned small business concern, or service-disabled
veteran-owned small business concern).
(c) A description of the type of developmental assistance that will
be provided by the mentor firm to the prot[eacute]g[eacute] firm (see
519.7012).
(d) Milestones for providing the identified developmental
assistance.
(e) Factors to assess the prot[eacute]g[eacute] firm's
developmental progress under the Program.
(f) The anticipated dollar value and type of subcontracts that may
be awarded to the prot[eacute]g[eacute] firm consistent with the extent
and nature of mentor firm's business, and the period of time over which
they may be awarded.
(g) Program participation term: State the period of time over which
the developmental assistance will be performed.
(h) Mentor termination procedures: Describe the procedures
applicable to the mentor firm when notifying the Prot[eacute]g[eacute]
firm, in writing and at least 30 days in advance, of the mentor firm's
intent to voluntarily withdraw its participation in the Program, or to
terminate the Agreement.
(i) Prot[eacute]g[eacute] termination procedures: Describe the
procedures applicable to the prot[eacute]g[eacute] firm when notifying
the mentor firm, in writing at least 30 days in advance, of the
prot[eacute]g[eacute] firm's intent to terminate the Mentor-
Prot[eacute]g[eacute] Agreement.
(j) Plan for accomplishing contract work should the Mentor-
Prot[eacute]g[eacute] Agreement be terminated or a party excluded under
519.7014(b). The mentor's prime contract with GSA continues even if the
Mentor-Prot[eacute]g[eacute] Agreement or the Mentor-
Prot[eacute]g[eacute] Program is discontinued.
(k) The prot[eacute]g[eacute] must agree to provide input into the
mentor firm's semi-annual reports (see 519.7015). The
prot[eacute]g[eacute] must submit a ``Lessons Learned'' evaluation
along with the mentor firm at the conclusion of the Mentor-
Prot[eacute]g[eacute] agreement.
(l) Other terms and conditions as specified by the Mentor-
Prot[eacute]g[eacute] Manager on a case-by-case basis.
519.7011 Application review.
(a) The Mentor-Prot[eacute]g[eacute] Program Manager will review
the information specified in section 519.7009(b) and
[[Page 41066]]
519.7010 to establish the Mentor's and Prot[eacute]g[eacute]'s
eligibility and to ensure all necessary information is included. If the
application relates to a specific contract, then the Mentor-
Prot[eacute]g[eacute] Program Manager will consult with the applicable
contracting officer regarding the adequacy of the proposed Agreement,
as appropriate. The Mentor-Prot[eacute]g[eacute] Program Manager will
complete its review no later than 30 days after receipt of the
application. The contracting officer must provide feedback to the
Program Manager no later than 10 days after receipt of the application.
(b) After the Mentor-Prot[eacute]g[eacute] Program Manager
completes its review and provides written approval, the Mentor may
execute the Agreement and implement the developmental assistance as
provided under the Agreement. The Mentor-Prot[eacute]g[eacute] Program
Manager will provide a copy of the Mentor-Prot[eacute]g[eacute]
Agreement to the GSA contracting officer for any GSA contracts affected
by the Agreement.
(c) The Agreement defines the relationship between the Mentor and
the Prot[eacute]g[eacute] firms only. The Agreement itself does not
create any privity of contract or contractual relationship between the
Mentor and GSA nor the Prot[eacute]g[eacute] and GSA.
(d) If the Agreement is disapproved, the Mentor may provide
additional information for reconsideration. The Mentor-
Prot[eacute]g[eacute] Program Manager will complete the review of any
supplemental information no later than 30 days after its receipt. Upon
finding deficiencies that GSA considers correctable, the Mentor-
Prot[eacute]g[eacute] Program Manager will notify the Mentor and
Prot[eacute]g[eacute] and request correction of the deficiencies to be
provided within 15 days.
519.7012 Developmental assistance.
The forms of developmental assistance a mentor can provide to a
prot[eacute]g[eacute] include:
(a) Management guidance relating to--
(1) Financial management;
(2) Organizational management;
(3) Overall business management/planning; and
(4) Business development.
(b) Engineering and other technical assistance.
(c) Loans.
(d) Rent-free use of facilities and/or equipment.
(e) Temporary assignment of personnel to the prot[eacute]g[eacute]
for purpose of training.
(f) Any other types of developmental assistance approved by the GSA
Mentor-Prot[eacute]g[eacute] Program Manager.
519.7013 Obligation.
(a) The mentor or prot[eacute]g[eacute] may terminate the Agreement
in accordance with 519.7010. The mentor will notify the Mentor-
Prot[eacute]g[eacute] Program Manager and the contracting officer, in
writing, at least 30 days in advance of the mentor firm's intent to
voluntarily withdraw from the Program or to terminate the Agreement, or
upon receipt of a prot[eacute]g[eacute]'s notice to withdraw from the
Program.
(b) Mentor and prot[eacute]g[eacute] firms will submit a ``Lessons
Learned'' evaluation to the GSA Mentor-Prot[eacute]g[eacute] Program
Manager at the conclusion or termination of each Mentor-
Prot[eacute]g[eacute] Agreement or withdrawal from the Mentor-
Prot[eacute]g[eacute] program.
519.7014 Internal controls.
(a) The GSA Mentor-Prot[eacute]g[eacute] Program Manager will
manage the Program. Internal controls will be established by the
Mentor-Prot[eacute]g[eacute] Program Manager to achieve the stated
Program objectives (by serving as checks and balances against undesired
actions or consequences) such as:
(1) Reviewing and evaluating mentor Applications for realism,
validity and accuracy of provided information;
(2) Monitoring each Mentor-Prot[eacute]g[eacute] Agreement by
reviewing semi-annual progress reports submitted by mentors and
prot[eacute]g[eacute]s on prot[eacute]g[eacute] development to measure
prot[eacute]g[eacute] progress against the master plan contained in the
approved Agreement;
(3) Monitoring milestones in the Agreement (see 519.7010); and
(4) Evaluating ``Lessons Learned'' submitted by the Mentor and the
Prot[eacute]g[eacute] as required by section 519.7013 to improve the
GSA Mentor-Prot[eacute]g[eacute] Program.
(b)(1) GSA has the authority to exclude mentor or
prot[eacute]g[eacute] firms from participating in the GSA Program.
(2) GSA may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] Agreement if it determines that such action is in
GSA's best interest. The rescission shall be in writing and sent to the
Mentor and prot[eacute]g[eacute] after approval by the Director of
OSBU. Rescission of an Agreement does not change the terms of any
subcontract between the Mentor and the Prot[eacute]g[eacute].
(3) Exclusion from the Program does not constitute a termination of
the subcontract between the mentor and the prot[eacute]g[eacute].
519.7015 Reports.
(a) Semi-annual reports shall be submitted by the mentor to the GSA
Mentor-Prot[eacute]g[eacute] Program manager to include information as
outlined in section 552.219-76(c).
(b) Prot[eacute]g[eacute]s must agree to provide input into the
mentor firm's semi-annual reports detailing the assistance provided and
goals achieved since agreement inception. However, for cost
reimbursable contracts, costs associated with the preparation of these
reports are unallowable costs under these Government contracts and will
not be reimbursed by the Government.
(c) The GSA contracting officer, or if applicable the technical
program manager, shall include an assessment of the prime contractor's
(mentor's) performance in the Mentor-Prot[eacute]g[eacute] Program in a
quarterly ``Strengths and Weaknesses'' evaluation report. A copy of
this assessment will be provided to the Mentor-Prot[eacute]g[eacute]
Program Manager and to the mentor and prot[eacute]g[eacute].
519.7016 Program review.
At the conclusion of each year in the Mentor-Prot[eacute]g[eacute]
Program (anniversary date of the Mentor-Prot[eacute]g[eacute] Program),
the prime contractor and prot[eacute]g[eacute], as appropriate, will
formally brief the GSA Mentor-Prot[eacute]g[eacute] Program Manager,
the technical program manager, and the contracting officer regarding
Mentor-Prot[eacute]g[eacute] Program accomplishments pertaining to the
approved Agreement.
519.7017 Contract clauses.
(a) The contracting officer shall insert the clause at 552.219-75,
GSA Mentor-Prot[eacute]g[eacute] Program, in all unrestricted
solicitations (not set aside) and contracts that exceed the simplified
acquisition threshold that offer subcontracting opportunities or in the
case of a small business, that can offer developmental assistance to a
small business prot[eacute]g[eacute].
(b) The contracting officer shall insert the clause at 552.219-76,
Mentor Requirements and Evaluation, in contracts anticipated to exceed
the simplified acquisition threshold where the prime contractor has
signed a Mentor-Prot[eacute]g[eacute] Agreement with GSA.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add sections 552.219-75 and 552.219-76 to read as follows:
552.219-75 GSA Mentor-Prot[eacute]g[eacute] Program.
As prescribed in 519.7017(a), insert the following clause:
GSA MENTOR-PROT[Eacute]G[Eacute] PROGRAM ([SEP 2009])
(a) Prime contractors, including small businesses, are
encouraged to participate in the GSA Mentor-Prot[eacute]g[eacute]
Program for the purpose of providing developmental assistance to
eligible prot[eacute]g[eacute] entities to
[[Page 41067]]
enhance their capabilities and increase their participation in GSA
contracts.
(b) The Program consists of:
(1) Mentor firms are large prime contractors with at least one
active subcontracting plan, or that are eligible small businesses;
(2) Prot[eacute]g[eacute]s are subcontractors to the prime
contractor, and include small business concerns, small disadvantaged
business concerns, veteran-owned small business concerns, service-
disabled veteran-owned small business concerns, HUBZone small
business concerns, and women-owned small business concerns meeting
the qualifications specified in Subpart 519.70; and
(3) Mentor-prot[eacute]g[eacute] Applications and Agreements,
approved by the Mentor-Prot[eacute]g[eacute] Program Manager in the
GSA Office of Small Business Utilization (OSBU).
(c) Mentor participation in the Program means providing
technical, managerial and financial assistance to aid
prot[eacute]g[eacute]s in developing requisite high-tech expertise
and business systems to compete for and successfully perform GSA
contracts and subcontracts.
(d) Contractors interested in participating in the Program are
encouraged to read FAR Subpart 19.7 and to contact the GSA Office of
Small Business Utilization (E), Washington, DC 20405, (202) 501-
1021, for further information.
(End of clause)
552.219-76 Mentor Requirements and Evaluation.
As prescribed in 519.7017(b), insert the following clause:
MENTOR REQUIREMENTS AND EVALUATION ([SEP 2009])
(a) The purpose of the GSA Mentor-Prot[eacute]g[eacute] Program
is for a GSA prime contractor to provide developmental assistance to
certain subcontractors qualifying as prot[eacute]g[eacute]s.
Eligible prot[eacute]g[eacute]s include small business concerns,
small disadvantaged business concerns, veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, and women-owned small business
concerns meeting the qualifications specified in section 519.7007.
The Program requires an Application process and an Agreement between
the mentor and the prot[eacute]g[eacute]. See GSAR Subpart 519.70
for more information.
(b) GSA will evaluate a GSA mentor's performance on the
following factors:
(1) Specific actions taken by the contractor, during the
evaluation period, to increase the participation of its
prot[eacute]g[eacute] as a subcontractor and supplier;
(2) Specific actions taken by the contractor during this
evaluation period to develop the technical and corporate
administrative expertise of its prot[eacute]g[eacute] as defined in
the Agreement;
(3) To what extent the prot[eacute]g[eacute] has met the
developmental objectives in the Agreement; and
(4) To what extent the firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute]
receiving competitive contract(s) and subcontract(s) from private
firms other than the mentor, and from agencies.
(c) Semi-annual reports shall be submitted by a GSA mentor to
the GSA Mentor-Prot[eacute]g[eacute] Program Manager, GSA Office of
Small Business Utilization (E), Washington, DC 20405. The reports
must include information as outlined in paragraph (b) of this
section. The semi-annual report may include a narrative describing
the forms of developmental assistance a mentor provides to a
prot[eacute]g[eacute] and any other types of permissible, mutually
beneficial assistance.
(d) A GSA mentor will notify the GSA Mentor-
Prot[eacute]g[eacute] Program Manager and the contracting officer,
in writing, at least 30 days in advance of the mentor firm's intent
to voluntarily withdraw from the GSA Program or terminate the
Agreement, or upon receipt of a prot[eacute]g[eacute]'s notice to
withdraw from the Program.
(e) GSA mentor and prot[eacute]g[eacute] firms will submit a
``Lessons Learned'' evaluation to the GSA Mentor-
Prot[eacute]g[eacute] Program Manager at the conclusion of the
Mentor-Prot[eacute]g[eacute] Agreement. At the end of each year in
the Mentor-Prot[eacute]g[eacute] Program, the mentor and
prot[eacute]g[eacute], as appropriate, will formally brief the GSA
Mentor-Prot[eacute]g[eacute] Program manager, the technical program
manager, and the contracting officer during a formal Program review
regarding Program accomplishments as they pertain to the approved
Agreement.
(f) GSA has the authority to exclude mentor or
prot[eacute]g[eacute] firms from participating in the GSA Program.
If GSA excludes a mentor or a prot[eacute]g[eacute] from the
Program, the GSA Office of Small Business Utilization will deliver
to the contractor a Notice specifying the reason for Program
exclusion and the effective date. The exclusion from the Program
does not constitute a termination of the subcontract between the
mentor and the prot[eacute]g[eacute]. A plan for accomplishing the
subcontract effort should the Agreement be terminated shall be
submitted with the Agreement as required in section 519.7011(j).
(g) Subcontracts awarded to GSA prot[eacute]g[eacute] firms
under this Program are exempt from competition requirements,
notwithstanding FAR 52.244-5. However, price reasonableness should
still be determined.
(End of clause)
[FR Doc. E9-19482 Filed 8-13-09; 8:45 am]
BILLING CODE 6820-61-S