Administrator for Minority Small Business and Capital Ownership Development, U.S. Small Business Administration, 1441 L Street, NW., Washington, DC 20416, no later than 5 working days after the date of receipt of such determination.

(2) An untimely appeal shall be dismissed.

(d) Grounds for Appeal. The SBA will re-examine a disadvantaged status determination only if there was a clear and significant administrative error in the processing of such decision, or if the Director of OPE completely failed to consider a significant fact contained within the materials supplied by the protestor or the protested concern. Disadvantaged status determinations shall not be re-examined based on additional information or changed circumstances which were not disclosed to the Director of OPE at the time of his/her decision.

(e) No specific form is required for the appeal. However, the appeal must identify the disadvantaged status determination for which a re-examination is sought, set forth a full and specific statement of the reasons as to why the disadvantaged status determination is alleged to be erroneous pursuant to paragraph (d) of this section, and present arguments in support of such allegations.

(f) An appeal may proceed to completion even though an award of the SDB acquisition or other procurement requirement which prompted the initial protest has been made. In such a case, however, a reversal by the AA/ MSB&COD shall not apply to the awarded SDB acquisition or other awarded procurement requirement and shall have future effect only.

(g) The appeal will be decided by the AA/MSB&COD within 5 working days of its receipt, if practicable.

(h) The appeal decision shall be based on all the information and documentation in the record. A copy of the decision shall be provided to the protested concern by certified mail, return receipt requested. To the extent consistent with the Privacy Act and the Freedom of Information Act, all parties to the proceeding shall be notified of SBA's final decision.

125.7 Defense production pools. 125.8 Government property sales assistance program.

125.9 Subcontracting assistance program. 125.10 Procurement Automated Source System (PASS).

125.11 Technology assistance program.

AUTHORITY: Sec. 610(a) of Pub. L. 100-202, (101 Stat. _), secs. 5(b)(6), 8 and 15 of the Small Business Act, 72 Stat. 384, as amended (15 U.S.C. 631, et seq.), 31 U.S.C. 9701, 9702 (96 Stat. 1051).

SOURCE: 44 FR 60274, Oct. 19, 1979, unless otherwise noted.

It is the policy of the United States that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency. The Small Business Administration will aid, counsel and assist, insofar as is possible, small business concerns to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government (including but not limited to contracts or subcontracts for equipment, materials and supplies; maintenance, repair, construction and architect-engineer services; research, development, test and evaluation) are placed with small business enterprises; to insure that a fair proportion of the total sales of Government property be made to such enterprises; and to main

For purposes of this part:

(a) Administrator means the Administrator of the Small Business Administration.

(b) SBA means the Small Business Administration.

(c) Small Business means a business which qualifies as a small business under the small business size standards requirements, part 121 of this chapter and includes small concerns owned and controlled by socially and economically disadvantaged individuals under the definition thereof in part 124 of this chapter.

(d) The terms procurement and acquisition are used interchangeably throughout.

(e) The term Federal agency as used herein does not include the United States Postal Service or the General Accounting Office.

(f) The term Government procurement contract means any contract for the procurement of any goods or services by any Federal agency.

The regulations in this part implement the procurement assistance programs of the Small Business Administration. The Office of the Associate Administrator for Procurement Assistance establishes SBA policy for, and directs the nationwide operation of (currently) five major programs: Certificate of Competency; Prime Contracts Assistance; Property Sales Assistance; Subcontracting Assistance; and Technology Assistance. The five programs are involved in aiding small business firms to obtain a fair share of Federal Government procurement contracts and subcontracts, and Federal Government resources.

§ 125.4 Statutory provisions summarized.

SBA procurement assistance is authorized, as of the date of this regulation, under sections 8(b) (15 U.S.C. 637(b)), 8(d) (15 U.S.C. 637(d)), 9 (15 U.S.C. 638), 11 (15 U.S.C. 640), 14 (14

U.S.C. 643), 15 (15 U.S.C. 644), 222 (41 U.S.C. 405(a)) (40 U.S.C. 401 note), and 223(a) (15 U.S.C. 637(b)) of the Small Business Act, as amended.

(a) 8(b) authorizes the SBA

(1) To provide procurement and technical assistance to small business concerns, by advising and counseling on matters in connection with Government procurement (including certain Federal prime contractor procurement) and property disposal and on policies, principles, and practices of Federal Government acquisition;

(2) To obtain from any Federal department, establishment or agency engaged in procurement or in the financing of procurement or production, or in the disposal of Federal property, such reports concerning the letting of and compliance with contracts and subcontracts, solicitations of bids or proposals, time of sale, or otherwise as it may deem appropriate in carrying out its functions under the Small Business Act, as amended;

(3) To certify to Government procurment officers, and officers engaged in the sale and disposal of Federal property with respect to all elements of responsibility including but not limited to the competency, capability, capacity, credit, integrity, perseverance and tenacity, of any small business concern or group or such concerns to perform a specific Government contract;

(4) To review a Government procurement officer's finding that an otherwise qualified small business concern may be ineligible due to the provisions of section 35(a) of Title 41, United States Code (the Walsh-Healey Public Contracts Act);

(5) To make a complete inventory of all productive facilities of small business concerns or to arrange for such inventory to be made by any other Governmental agency which has the facilities;

(6) To assist small business concerns to obtain Government contracts for research and development; to assist small business concerns to obtain the benefits of research and development performed under Government contracts or at Government expense; to provide technical assistance to small business concerns to accomplish this purpose; and to insure that a fair pro

(1) To review solicitations requiring the submission of subcontracting plans to determine the maximum practicable opportunity for small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals to participate as subcontractors in the performance of any contract resulting from any solicitation, and submit findings which shall be advisory in nature to the appropriate Federal agency;

(2) To assist Federal agencies and businesses in complying with their subcontracting responsibilities (sec.

8(d) of the Small Business Act, as amended), including the formulation of subcontracting plans for contracts to be let pursuant to the negotiated method of procurement;

(3) To obtain reports from Federal prime contractors and subcontractors demonstrating the extent of compliance with the contract provisions for small and disadvantaged subcontracting;

(4) To evaluate compliance with subcontracting plans, either on a contract by contract basis or in the case of contractors having multiple contracts, on an aggregate basis;

(c) Section 8(d) provides—

or

(1) That each Government procurement prime contract and any amendment or modification thereto, and each subcontract let thereunder, which may exceed $1,000,000 in the case of construction projects $500,000 in every other case, except those which (i) will be performed entirely outside of any State, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; (ii) are for personal services; or (iii) are awarded to small business concerns; shall contain a mandatory provision for timely submission by the apparent successful bidder or offeror of an acceptable subcontracting plan that reflects maximum practicable opportunities for participation by and utilization of, to the fullest extent consistent with effi

cient contract performance, small and small disadvantaged business concerns to perform subcontracts to be let thereunder;

(2) That any contractor or subcontractor who fails to comply in good faith with the mandatory subcontracting provisions of a Government procurement contract or subcontract thereunder shall be found in material breach of such contract or subcontract;

(d) Section 9 authorizes the SBA(1) To consult with and make recommendations to all Government agencies for the purpose of providing small business concerns assistance, including technical assistance, to obtain (i) Government contracts for research and development, and (ii) the benefits of research and development performed under Government contracts or at Government expense; and to conduct studies, with the cooperation of Government agencies, of Government procurement or funding of research and development effort;

(2) To assist and encourage small business concerns to jointly undertake programs for research and development through such corporate or other mechanism appropriate for the purpose and to approve, after consultation with the Chairman of the Federal Trade Commission and with prior authorization of the Attorney General, any agreement between small business firms providing for such a joint program.

(e) Section 11 provides

concerns

(1) That small business may be authorized and encouraged, if found to be in the public interest as contributing to the national defense, to enter into voluntary agreements and programs to form Defense Production Pools for the purpose of furthering the objectives of the Small Business Act;

(f) Section 14 authorizes the SBA

(1) To make a fair charge for the use of Government-owned property, as and to the fullest extent it deems practicable, and to make and let contracts on a basis that will result in recovery of the direct costs which it incurs in so doing;

(g) Section 15 provides

(1) That small business concerns shall be awarded any Government procurement contract, or any part thereof, and any contract for the sale of Government property, as to which it is determined by the SBA and the procurement or disposal contracting agency to be in the interest of (i) maintaining or mobilizing the Nation's full productive capacity, (ii) war or national defense programs, (iii) assuring that a fair proportion of the total purchases and contracts for property and services for the Government placed with small business concerns, or (iv) assuring that a fair proportion of the total sales of Government property be made to small business concerns; and, that any failure of the SBA and contracting agency to reach agreement shall cause the SBA Administrator to submit the matter to the Secretary or head of the appropriate department or agency for determination;

are

(2) That the head of each Federal agency will provide the SBA a report at the conclusion of each fiscal year on the extent of participation by small business concerns, and by small disadvantaged business concerns in procurement contracts, which report shall contain the rationale and justification for any failure by the Federal agency to meet established goals, for review, consolidation and submission to the Select Committee on Small Business of the Senate and the Committee on Small Business of the House of Representatives;

(3) That separate goals for the participation by small business concerns and small disadvantaged business in Government procurement contracts and subcontracts thereunder shall be established annually by the head of each Federal agency following consultation with the SBA, and that the Administrator of the Office of Federal Procurement Policy shall establish the goal whenever there is disagreement between a Federal agency head and the SBA;

(4) That exclusive small business setasides are authorized for government procurements of architect and engineering services, and research, development, test and evaluation;

(5) That each Government contract for procurement of goods or services

which has an anticipated value of less than $10,000 and is subject to small purchase procedures shall be set aside exclusively for small business concerns unless the contracting officer is unable to obtain competitive offers from at least two small business concerns;

(6) That a method of prompt payment to contractors which also minimizes paperwork shall be employed whenever circumstances permit for Government procurement contracts effected under small purchase procedures;

(7) That an 'Office of Small and Disadvantaged Business Utilization' shall be established in each Federal agency having procurement powers, and that management of such office shall be vested in an employee of each such agency who shall be known as the 'Director of Small and Disadvantaged Business Utilization' and who shall—

(i) Be appointed by the head of such agency, and be responsible only to, and report directly to, the head of such agency or to his deputy,

(ii) Be responsible for implementation and execution of the Federal agency's functions and duties under sections 8 and 15 of the Small Business Act, as amended, and have supervisory authority over such agency personnel to the extent of their functions and duties thereunder,

(iii) Cooperate and consult on a regular basis with the SBA relative to carrying out the Federal agency's functions and duties under sections 8 and 15 of the Small Business Act, as amended, and

(iv) Assign to each acquisition activity within such Federal agency, to which the SBA has a procurement center representative assigned, a small business technical adviser (A) who shall be a full-time employee of the activity and well qualified, technically trained and familiar with the supplies or services purchased at the activity, and (B) whose principal duty shall be to assist the assigned SBA procurement center representative in carrying out his duties and functions relating to sections 8 and 15 of the Small Business Act, as amended;

(h) Section 222 of Pub. L. 95-507 provides

(1) That, in formulating Federal procurement procedures which govern the acquisition process for all Government procurement requirements, the Administrator of the Office of Federal Procurement Policy shall, in consultation with the SBA, conduct analyses of the impact on small business concerns;

(2) That the forthcoming Federal Acquisition Regulation directed by Pub. L. 93-400 incorporate revised Government procurement regulations which provide for simplified bidding, contract administration, and contract performance procedures for small business concerns;

(i) Section 223(a) of Pub. L. 95-507 provides

(1) That any small business concern shall be provided upon its request, in connection with any Government procurement contract to be let by any Federal agency, except in the case of contract (i) which will be performed entirely outside any State, territory or possession of the United States, the District of Columbia or the Commonwealth of Puerto Rico, or (ii) which is for personal services

(A) The applicable bid set and specifications,

(B) The name and telephone number of an employee of such agency to answer questions with respect to such contract, and

(C) Adequate citations to each major Federal law or agency rule with which small business concerns must comply in performing such contract.

OFFICE OF PROCUREMENT AND TECHNICAL ASSISTANCE

§ 125.5 Certificate of Competency program.

The Certificate of Competency (COC) Program is authorized under section 8(b)(7) of the Small Business Act as amended. A COC is a written instrument issued by SBA to a Government contracting officer, certifying that a small concern (or a group of such concerns) named therein possesses a responsibility and/or eligibility to perform a specific Government procurement (or sale) contract.

(a) To be eligible for the program, a firm must be:

(1) A small business concern using the size standard as of the date of the determination and the SIC Code contained in the solicitation; or

(2) A group of such concerns in the form of a small business pool approved under the Small Business Act.

(b) A manufacturing, construction, or service concern shall not be eligible for a Certificate unless it performs a significant portion of the contract with its own facilities and personnel.

(c) A non-manufacturing concern which submits a bid or offer on a setaside contract shall not be eligible for a COC unless the end items to be furnished under the contract will be manufactured by a small business concern in the United States; when an unrestricted procurement or a procurement utilizing small purchase procedures, an otherwise qualified non-manufacturer may supply any domestically produced or manufactured product. The responsibility of the small nonmanufacturer is certified, not the large manufacturer. In the event of a tie bid, preference shall be given to the concern supplying the product of a small business. Tool kit assemblers are required to provide items manufactured by small business concerns amounting to more than 50 percent of the kit material value.

(d) Government procurement officers, and officers engaged in the sale and disposal of Federal property, upon determining and documenting that a small business lacks certain elements of responsibility, including but not limited to competency, capability, capacity, credit, integrity, perseverance, and tenacity, shall notify SBA of such determination. Award is withheld by the contracting officer for a period up to 15 working days following the date of receipt by SBA of notice of such determination (with appropriate documentation) in order to permit SBA to investigate and certify as to the bidder's responsibility.

(e) Upon receipt of this notification, SBA personnel then contact the company concerned to inform it of the impending decision, and to offer the opportunity to apply to SBA for a Certificate. A concern wishing to apply advises the SBA regional office for the geographic region within which the