[Code of Federal Regulations]

[Title 13, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 13CFR124.503]



[Page 390-393]

 

                TITLE 13--BUSINESS CREDIT AND ASSISTANCE

 

                CHAPTER I--SMALL BUSINESS ADMINISTRATION

 

PART 124_8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS 

DETERMINATIONS--Table of Contents

 

                   Subpart A_8(a) Business Development

 

Sec. 124.503  How does SBA accept a procurement for award through the 

8(a) BD program?



    (a) Acceptance of the requirement. Upon receipt of the procuring 

activity's offer of a procurement requirement, SBA will determine 

whether it will accept the requirement for the 8(a) BD program. SBA's 

decision whether to accept the requirement will be sent to the procuring 

activity in writing within 10 working days of receipt of the written 

offering letter if the contract is valued at more than the simplified 

acquisition threshold, and within two days of receipt of the offering 

letter if the contract is valued at or below the simplified acquisition 

threshold, unless SBA requests, and the procuring activity grants, an 

extension. SBA is not required to accept any particular procurement 

offered to the 8(a) BD program.

    (1) Where SBA decides to accept an offering of a sole source 8(a) 

procurement, SBA will accept the offer both on behalf of the 8(a) BD 

program and in support of a specific Participant.

    (2) Where SBA decides to accept an offering of a competitive 8(a) 

procurement, SBA will accept the offer on behalf of the 8(a) BD program.

    (3) Where SBA has delegated its contract execution functions to a 

procuring activity, the procuring activity may assume that SBA accepts 

its offer for the 8(a) program if the procuring activity does not 

receive a reply to its offer within five days.



[[Page 391]]



    (4) In the case of procurement requirements valued at or below the 

Simplified Acquisition Procedures threshold:

    (i) Where a procuring activity makes an offer to the 8(a) program on 

behalf of a specific Program Participant and does not receive a reply to 

its offer within two days, the procuring activity may assume the offer 

is accepted and proceed with award of an 8(a) contract;

    (ii) Where SBA has delegated its 8(a) contract execution functions 

to an agency, SBA may authorize the procuring activity to award an 8(a) 

contract without requiring an offer and acceptance of the requirement 

for the 8(a) program. In such a case, the procuring activity must notify 

SBA of all 8(a) awards made under this authority.

    (5) Where SBA does not respond to an offering letter within the 

normal 10-day time period, the procuring activity may seek SBA's 

acceptance through the AA/8(a)BD. The procuring activity may assume that 

SBA accepts its offer for the 8(a) program if it does not receive a 

reply from the AA/8(a)BD within 5 days of his or her receipt of the 

procuring activity request.

    (b) Verification of SIC code. As part of the acceptance process, SBA 

will verify the appropriateness of the SIC code designation assigned to 

the requirement by the procuring activity contracting officer.

    (1) SBA will accept the SIC code assigned to the requirement by the 

procuring activity contracting officer as long as it is reasonable, even 

though other SIC codes may also be reasonable.

    (2) If SBA and the procuring activity are unable to agree as to the 

proper SIC code designation for the requirement, SBA may either refuse 

to accept the requirement for the 8(a) BD program, appeal the 

contracting officer's determination to the head of the agency pursuant 

to Sec. 124.505, or appeal the SIC code designation to OHA under part 

134 of this title.

    (c) Sole source award where procuring activity nominates a specific 

Participant. SBA will determine whether an appropriate match exists 

where the procuring activity identifies a particular Participant for a 

sole source award.

    (1) Once SBA determines that a procurement is suitable to be 

accepted as an 8(a) sole source contract, SBA will normally accept it on 

behalf of the Participant recommended by the procuring activity, 

provided that:

    (i) The procurement is consistent with the Participant's business 

plan;

    (ii) The Participant complies with its applicable non-8(a) business 

activity target imposed by Sec. 124.509(d);

    (iii) The Participant is small for the size standard corresponding 

to the SIC code assigned to the requirement by the procuring activity 

contracting officer; and

    (iv) The Participant has submitted required financial statements to 

SBA.

    (2) If an appropriate match exists, SBA will advise the procuring 

activity whether SBA will participate in contract negotiations or 

whether SBA will authorize the procuring activity to negotiate directly 

with the identified Participant. Where SBA has delegated its contract 

execution functions to a procuring activity, SBA will also identify that 

delegation in its acceptance letter.

    (3) If an appropriate match does not exist, SBA will notify the 

Participant and the procuring activity, and may then nominate an 

alternate Participant.

    (d) Open requirements. When a procuring activity does not nominate a 

particular concern for performance of a sole source 8(a) contract (open 

requirement), the following additional procedures will apply:

    (1) If the procurement is a construction requirement, SBA will 

examine the portfolio of Participants that have a bona fide place of 

business within the geographical boundaries served by the SBA district 

office where the work is to be performed to select a qualified 

Participant. If none is found to be qualified or a match for a concern 

in that district is determined to be impossible or inappropriate, SBA 

may nominate a Participant with a bona fide place of business within the 

geographical boundaries served by another district office within the 

same state, or may nominate a Participant having a bona fide place of 

business out of state but within a reasonable proximity to



[[Page 392]]



the work site. SBA's decision will ensure that the nominated Participant 

is close enough to the work site to keep costs of performance 

reasonable.

    (2) If the procurement is not a construction requirement, SBA may 

select any eligible, responsible Participant nationally to perform the 

contract.

    (3) In cases in which SBA selects a Participant for possible award 

from among two or more eligible and qualified Participants, the 

selection will be based upon relevant factors, including business 

development needs, compliance with competitive business mix requirements 

(if applicable), financial condition, management ability, technical 

capability, and whether award will promote the equitable distribution of 

8(a) contracts.

    (e) Formal technical evaluations. Except for requirements for 

architectural and engineering services, SBA will not authorize formal 

technical evaluations for sole source 8(a) requirements. A procuring 

activity:

    (1) Must request that a procurement be a competitive 8(a) award if 

it requires formal technical evaluations of more than one Participant 

for a requirement below the applicable competitive threshold amount; and

    (2) May conduct informal assessments of several Participants' 

capabilities to perform a specific requirement, so long as the statement 

of work for the requirement is not released to any of the Participants 

being assessed.

    (f) Repetitive acquisitions. A procuring activity contracting 

officer must submit a new offering letter to SBA where he or she intends 

to award a follow-on or repetitive contract as an 8(a) award. This 

enables SBA to determine:

    (1) Whether the requirement should be a competitive 8(a) award;

    (2) A nominated firm's eligibility, whether or not it is the same 

firm that performed the previous contract;

    (3) The affect that contract award would have on the equitable 

distribution of 8(a) contracts; and

    (4) Whether the requirement should continue under the 8(a) BD 

program.

    (g) Basic Ordering Agreements (BOAs). A Basic Ordering Agreement 

(BOA) is not a contract under the FAR. See 48 CFR 16.703(a). Each order 

to be issued under the BOA is an individual contract. As such, the 

procuring activity must offer, and SBA must accept, each task order 

under a BOA in addition to offering and accepting the BOA itself.

    (1) SBA will not accept for award on a sole source basis any task 

order under a BOA that would cause the total dollar amount of task 

orders issued to exceed the applicable competitive threshold amount set 

forth in Sec. 124.506(a).

    (2) Where a procuring activity believes that task orders to be 

issued under a proposed BOA will exceed the applicable competitive 

threshold amount set forth in Sec. 124.506(a), the procuring activity 

must offer the requirement to the program to be competed among eligible 

Participants.

    (3) Once a concern's program term expires, the concern otherwise 

exits the 8(a) BD program, or becomes other than small for the SIC code 

assigned under the BOA, new orders will not be accepted for the concern.

    (h) Multiple Award and Federal Supply Schedule Contracts. Unlike 

Basic Ordering Agreements, Multiple Award and Federal Supply Schedule 

contracts are contracts. Orders issued under these contracts are not 

considered separate contracts. As such, SBA's acceptance of the original 

Multiple Award or Federal Supply Schedule contract is valid for the 

duration of the contract. Separate offers and acceptances will not be 

made for individual task orders under these contracts.

    (1) Task orders are not required to be competed where the value of 

the task order will exceed the competitive threshold as long as the 

original contract was competed.

    (2) A concern may continue to accept new orders under a Multiple 

Award or Federal Supply Schedule contract even where a concern's program 

term expires, the concern otherwise exits the 8(a) BD program, or the 

concern becomes other than small for the SIC code assigned under the 

contract subsequent to award of the contract.

    (i) Requirements where SBA has delegated contract execution 

authority. Except as provided in paragraph (a)(4)(i) of this section, 

where SBA has delegated its 8(a) contract execution authority to the 

procuring activity, the procuring activity must still offer



[[Page 393]]



and SBA must still accept all requirements intended to be awarded as 

8(a) contracts.

    (j) The contracting officer should consider setting aside the 

requirement for HUBZone, 8(a) or SDVO SBC participation before 

considering to set aside the requirement as a small business set-aside.



[63 FR 35739, June 30, 1998, as amended at 70 FR 51248, Aug. 30, 2005]