[Federal Register Volume 80, Number 111 (Wednesday, June 10, 2015)]
[Proposed Rules]
[Pages 32909-32922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14055]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 15, 19, and 52
[FAR Case 2014-003; Docket No. 2014-0003, Sequence No. 1]
RIN 9000-AM91
Federal Acquisition Regulation: Small Business Subcontracting
Improvements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and the National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement regulatory changes made by
the Small Business Administration, which provide for a Governmentwide
policy on small business subcontracting.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before August 10, 2015 to be considered in the formation of the
final rule.
ADDRESSES: Submit comments in response to FAR case 2014-003 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching ``FAR Case
2014-003''. Select the link ``Comment Now'' that corresponds with ``FAR
Case 2014-003.'' Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2014-003'' on
your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd
Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2014-
003, in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement
Analyst, at 703-605-2868 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAR Case 2014-003.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to revise the FAR to implement
regulatory changes made by the Small Business Administration (SBA) in
its final rule at 78 FR 42391, dated July 16, 2013, concerning small
business subcontracting. Among other things, SBA's final rule
implements the statutory requirements set forth at sections 1321 and
1322 of the Small Business Jobs Act of 2010 (Jobs Act), (Pub. L. 111-
240).
Section 1321 of the Jobs Act requires promulgation of
regulations on subcontracting compliance relating to small business
concerns, including assignment of compliance responsibilities between
contracting offices, small business offices, and
[[Page 32910]]
program offices and periodic oversight and review activities.
Section 1322 of the Jobs Act amends the Small Business Act
(15 U.S.C. 637(d)(6)) to require as part of a subcontracting plan that
a prime contractor make a good faith effort to utilize a small business
subcontractor during performance of a contract to the same degree the
prime contractor relied on the small business in preparing and
submitting its bid or proposal. If a prime contractor does not utilize
a small business subcontractor as described above, the prime contractor
is required to explain, in writing, to the contracting officer the
reasons why it is unable to do so.
SBA's final rule revised 13 CFR 125.3, and also implemented changes
aimed at improving subcontracting regulations to increase small
business opportunities. These changes include:
Authorizing contracting officers to establish
subcontracting goals in terms of total contract dollars in addition to
the required goals in terms of total subcontracted dollars, for
individual plans.
Providing contracting officers discretion to require a
subcontracting plan in instances where a prime contractor's size status
changes from small to other than small business as a result of
rerepresentation.
Requiring subcontracting plans, to the extent that
subcontracting opportunities exist, when a modification causes the
overall contract value to exceed the subcontracting plan threshold,
even if the modification's value is less than the threshold.
Requiring prime contractors to assign North American
Industry Classification System (NAICS) codes to subcontracts.
Providing that prime contractors cannot prohibit a
subcontractor from discussing payment or utilization matters with the
contracting officer.
Requiring prime contractors to resubmit a corrected
subcontracting report within 30 days of receiving the contracting
officer's notice of report rejection.
Clarifying a requirement that prime contractors notify
unsuccessful offerors for subcontracts in writing.
Requiring prime contractors with individual subcontracting
plans to report order level subcontracting information.
Clarifying that failure to comply in good faith with the
subcontracting plan shall be a material breach of the contract and may
be considered in any past performance evaluation of the prime
contractor.
The proposed rule will implement a change in the method that
Federal agencies will receive small business subcontracting credit.
Historically, the agency that awards the contract also receives the
small business subcontracting credit. The proposed rule changes this
model by allowing the funding agency to receive the small business
credit. SBA implemented this change of providing funding agency credit
in its final rule in deference to the concerns expressed by the users
of multi-agency contracts (MACs) and Government-wide acquisition
contracts (GWACs), who have long been of the opinion that the agencies
using these vehicles, i.e., the funding agencies, should receive the
small business subcontracting credit. For consistency, this proposed
FAR rule implements the requirement for funding agencies receiving
small business subcontracting credit for all contract vehicles, not
just MACs and GWACs.
This proposed FAR rule also changes the requirement for a prime
contractor to submit Summary Subcontract Reports (SSRs) for DoD and
NASA contracts to be annually rather than semi-annually, and deletes
the requirement for a prime contractor to submit a separate report to
each DoD component for construction and related maintenance and repair
contracts.
II. Discussion and Analysis
Amendments to FAR subparts 1.1, 2.1, 15.3, 19.3, 19.7, and 52.2 are
proposed by this rule. The proposed changes are summarized in the
following paragraphs.
A. FAR Subpart 1.1, Purpose, Authority, Issuance. Section 1.106
under this subpart is amended to reflect the new Paperwork Burden OMB
clearance number associated with the requirement of section 1322 of the
Jobs Act.
B. FAR Subpart 2.1, Definitions. This subpart is amended to revise
the definitions of HUBZone contract and HUBZone small business concern
to clarify that HUBZone status is not a self-certification. The
clarification is necessary due to instances of some small business
concerns located in HUBZones identifying themselves as HUBZone small
business concerns without realizing that business concerns may not
self-certify as a HUBZone small business concern. A certified HUBZone
small business concern is one on the List of Qualified HUBZone Small
Business Concerns maintained by the Small Business Administration. This
subpart is also amended to revise the definition of ``small business
subcontractor.''
C. FAR Subpart 15.3, Source Selection.
FAR 15.304, Evaluation factors and significant subfactors.
This section is amended to make minor editorial changes.
D. FAR Subpart 19.3, Determination of Small Business Status for
Small Business Programs.
FAR 19.301-2, Rerepresentation by a contractor that
represented itself as a small business concern. This subsection is
amended to give contracting officers the discretionary authority to
require a subcontracting plan in the event a prime contractor's size
changes from small to other than small as a result of a size
rerepresentation on a contract that contains FAR clause 52.219-9, Small
Business Subcontracting Plan.
E. FAR Subpart 19.7, The Small Business Subcontracting Program.
FAR 19.701, Definitions. This section is amended to
reflect the common usage name of ``individual subcontracting plans''
instead of ``individual contract plans'' and clarify that a ``master
plan'' refers to a ``master subcontracting plan.'' This section also
adds a definition for the term ``total contract dollars'' which is
introduced in 19.704 in this case.
FAR 19.702, Statutory requirements. This section is
amended to be more consistent with SBA's revised regulations on
requiring subcontracting plans when a modification causes the value of
a contract without a subcontracting plan to exceed the subcontracting
threshold. This section is also amended to remove an outdated reference
to clauses in contracts awarded before 1978.
FAR 19.703, Eligibility requirements for participating in
the program. This section is amended to implement SBA's regulatory
changes regarding prime contractors' responsibility in assigning NAICS
codes and corresponding size standards to subcontracts. In addition,
new guidance is added regarding acceptable sources of information a
prime contractor may use to determine a subcontractor's size and
socioeconomic status and the old language is removed. This section is
also amended to correct outdated information and to move language
regarding protest of the disadvantaged status of a proposed
subcontractor to new paragraph (e).
FAR 19.704, Subcontracting plan requirements. This section
is amended to implement various SBA regulatory changes and
clarifications including--
[cir] Explicitly authorizing contracting officers to establish
additional subcontract goals in terms of total
[[Page 32911]]
contract dollars for individual subcontracting plans;
[cir] A requirement for prime contractors to report order-level
subcontracting information for multiple-award contracts intended for
use by multiple agencies;
[cir] A requirement for prime contractors to resubmit a corrected
subcontracting report within 30 days of receiving the contracting
officer's notice of report rejection;
[cir] Changing the requirement for semi-annual submission of the
SSR for DoD and NASA to be annual;
[cir] A requirement that prime contractors make good faith efforts
to utilize the small business subcontractors to the same or greater
extent they were used in preparing the bid or proposal;
[cir] A requirement for the prime contractor to provide the
contracting officer with a written explanation if it does not use a
small business subcontractor to the same extent as described in the
prime contractor's bid or proposal; and
[cir] Restricting prime contractors from prohibiting a
subcontractor from discussing payment or utilization matters with the
contracting officer.
FAR 19.705, Responsibilities of the contracting officer
under the subcontracting assistance program.
[cir] FAR 19.705-1, General support of the program. This subsection
is amended to revise the title of the subsection and to implement SBA's
regulatory requirements regarding subcontracting plans for indefinite-
delivery, indefinite-quantity contracts exceeding the subcontracting
threshold and discretion of ordering contracting officers to establish
subcontracting goals for individual orders.
[cir] FAR 19.705-2, Determining the need for a subcontracting plan.
This subsection is amended to implement SBA's regulatory requirement to
establish a subcontracting plan when a modification of any value causes
the contract to exceed the subcontracting plan threshold, and there are
potential subcontracting opportunities. Language is added to explicitly
require the rationale to be placed in the contract file for determining
that no subcontracting opportunities exist. This subsection is also
amended to clarify that while changes made to an existing
subcontracting plan do not apply retroactively, the contractor's
achievements prior to the modification will be factored into its
overall achievement on the plan. This subsection also adds language
clarifying that when a subcontracting plan is required for a contract
as a result of a size rerepresentation or a modification which causes
the value of the contract to exceed the threshold for a subcontracting
plan, the goals in the subcontracting plan apply from the date of
incorporation of the plan into the contract and the contractor is to
report its subcontracting achievement from the date the plan is
incorporated into the contract.
[cir] FAR 19.705-4, Reviewing the subcontracting plan. This
subsection makes conforming changes to paragraphs (b) and (c).
[cir] FAR 19.705-6, Postaward responsibilities of the contracting
officer. This subsection implements the SBA's regulatory requirements
for contracting officers to ensure prime contractors meet their
obligations under their subcontracting plan. This subsection is amended
as follows--
[ssquf] New language is added clarifying that upon receipt of the
prime contractor's subcontracting reports into eSRS, the contracting
officer shall review the submitted reports within 60 days of the report
ending date and ensure that an explanation is provided in the event the
contracting officer rejects a submitted report; and
[ssquf] New language is added to require the contracting officer to
evaluate a prime contractor's written explanation concerning its
failure to use a small business concern in the performance of a
contract when that small business concern was used to prepare the bid
or proposal.
FAR 19.708, Contract Clauses. This section is amended to
add a prescription for the newly-created Alternate IV to clause 52.219-
9 Small Business Subcontracting Plan.
F. FAR Subpart 52.2, Text of Provisions and Clauses.
FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders-Commercial Items. This clause is
amended to reflect the updated 52.219-8 and 52.219-9.
FAR 52.219-8, Utilization of Small Business Concerns. This
clause is amended to make conforming changes based on changes to FAR
2.101 and 19.703.
FAR 52.219-9, Small Business Subcontracting Plan. This
clause is amended to incorporate corresponding guidance and policy
changes made to section 19.704 and SBA's regulatory guidance regarding
inclusion of indirect costs and awards made by affiliates in ISRs and
SSRs. This clause is also amended to reflect the change of DoD's and
NASA's semi-annual submission requirement for Summary Subcontract
Reports (SSR) and eliminate a unique DoD requirement for a separate SSR
for construction contracts. In addition, an Alternate IV to the clause
is created for use in contracts where a subcontracting plan will be
required when a modification causes the contract to exceed the
threshold for a subcontracting plan and there are subcontracting
opportunities.
III. Applicability to Commercial Items, Including Commercially
Available Off-the-Shelf Items
This rule proposes to amend the clauses at 52.219-8, Utilization of
Small Business Concerns, and 52.219-9, Small Business Subcontracting
Plan, in order to implement sections 1321 and 1322 of the Small
Business Jobs Act of 2010. The Federal Acquisition Regulatory Council,
pursuant to the authority granted in 41 U.S.C. 1906 and the
Administrator, Office of Federal Procurement Policy, pursuant to the
authority granted in 41 U.S.C. 1907, have determined that the
application of these statutory provisions to contracts for commercial
items and commercially available off-the-shelf items, is in the best
interests of the Federal Government.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This proposed rule is not a major
rule under 5 U.S.C. 804.
V. Regulatory Flexibility Act
The change 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. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
DoD, GSA, and NASA are proposing to amend the FAR to provide
uniform guidance consistent with SBA's final rule at 78 FR 42391,
dated July 16, 2013, which implements Sections 1321 and 1322 of the
Small Business Jobs Act of 2010 (Pub. L. 111-240). SBA's final rule
also implements other changes intended to help small
[[Page 32912]]
business subcontractors by explicitly authorizing procuring agencies
to consider proposed small business participation when evaluating
offers from other than small business concerns and to require other
than small prime contractors to report data on small business
subcontracting in connection with orders.
The objectives of this proposed rule are to implement statutory
requirements as well as make improvements to increase subcontracting
opportunities for small businesses. The authorizing legislation for
this action are sections 1321 and 1322 of the Small Business Jobs
Act of 2010 (Pub. L. 111-240).
This rule may have a positive economic impact on any small
business entity that wishes to participate in the Federal
procurement arena as a subcontractor. Analysis of the System for
Award Management (SAM) database indicates there are over 297,181
small business registrants. It is unknown how many of these concerns
participate in small business subcontracting. Firms do not need to
register in the SAM database to participate in subcontracting. Thus,
the number of firms participating in subcontracting may be greater
than or lower than the number of firms registered in the SAM
database.
This rule does not impose any new reporting, recordkeeping or
other compliance requirements for small businesses. This rule does
not duplicate, overlap, or conflict with any other Federal rules.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA, and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule
consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-003),
in correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. This
proposed rule contains information collection requirements.
Accordingly, the Regulatory Secretariat Division has submitted a
request for approval of one new and two revised information collection
requirements concerning FAR Case 2014-003 Small Business Subcontracting
Improvements to the Office of Management and Budget.
A1. Request for approval of new information collection requirement
9000-00xx. Public reporting burden for the collection of information
regarding a contractor's utilization of small business subcontractors
to the same degree the prime contractor relied on the small business in
preparing and submitting its bid or proposal is estimated to be
$202,464. FPDS for FY 2013 lists 5,327 actions with small business
subcontracting plans. However, it is estimated that at most 50 percent
of these contracts with subcontracting plans may have instances of the
prime contractor not using a small business subcontractor to the same
extent used in preparing the bid or proposal. Using this method
provides the number of respondents as 2,664. It is estimated that the
average time required to read and prepare information for this
collection is two hours. It is also estimated that the responses per
respondent would be once a year since prime contractors have until 30
days of contract completion to submit the written explanation.
The annual reporting burden is estimated as follows:
Respondents: 2,664.
Responses per respondent: 1.
Total annual responses: 2,664.
Preparation hours per response: 2.
Total response burden hours: 5,328.
Cost per hour: $38.
Total annual burden: $202,464.
A2. Revision to existing OMB Clearance 9000-0006. Based on the
proposed revisions to the FAR as well as a more accurate basis for
estimation, an upward adjustment is being made to the average burden
hours for reporting and recordkeeping per response but a downward
adjustment is being made to the number of respondents (i.e.,
subcontracting plans and the individual subcontracting reports
associated with them). As a result, a downward adjustment is being made
to the estimated annual reporting burden since the notice regarding an
extension to this clearance published in the Federal Register at 78 FR
17668, on March 22, 2013.
Respondents: 59,336.
Responses per respondent: 3.
Total annual responses: 178,008.
Preparation hours per response: 13.5.
Total response burden hours: 2,403,108.
Cost per hour: $30.
Total annual burden: $72,093,240.
A3. Revision to existing OMB Clearance 9000-0007. Based on the
proposed revisions to the FAR as well as a more accurate basis for
estimation, a downward adjustment is being made to the number of
respondents (i.e., summary subcontracting reports). Since the proposed
revisions to the FAR do not require additional information in the
Summary Subcontract Report, the estimated preparation hours per
response remains unchanged. As a result, a downward adjustment is being
made to the estimated annual reporting burden since the notice
regarding an extension to this clearance published in the Federal
Register at 78 FR 17668, on March 22, 2013.
Respondents: 59,336.
Responses per respondent: 1.
Total annual responses: 59,336.
Preparation hours per response: 9.0.
Total response burden hours: 534,024.
Cost per hour: $30.
Total annual burden: $16,020,720.
B. Request for Comments Regarding Paperwork Burden. Submit
comments, including suggestions for reducing this burden, no later than
August 10, 2015 to: FAR Desk Officer, OMB, Room 10102, NEOB,
Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms.
Flowers, 1800 F. Street NW., 2nd Floor, Washington, DC 20405.
Public comments are particularly invited on: Whether these
collections of information are necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of these collections of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, or clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requesters may obtain a copy of the supporting statements from the
General Services Administration, Regulatory Secretariat Division
(MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd Floor, Washington,
DC 20405. Please cite OMB Control Number 9000-00XX, Utilization of
Small Business Subcontractors, 9000-0006, Subcontracting Plans/
Subcontract Report For Individual Contracts, or 9000-0007, Summary
Subcontract Report, as applicable, in all correspondence.
List of Subjects in 48 CFR Parts 1, 2, 15, 19, and 52
Government procurement.
Dated: June 3, 2015.
William Clark
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts
1, 2, 15, 19, and 52, as set forth below:
0
1. The authority citation for 48 CFR parts 1, 2, 15, 19, and 52
continues to read as follows:
[[Page 32913]]
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106 by removing from the table ``19.7'' and
``52.219-9'' and their corresponding OMB Control Numbers ``9000-0006
and 9000-0007'' and adding, in numerical sequence, ``19.7'' and
``52.219-9'' with their corresponding control numbers ``9000-00xx,
9000-0006, and 9000-0007'', respectively.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 2.101 in paragraph (b) by--
0
a. Revising the introductory paragraph of the definition ``HUBZone
Contract'';
0
b. Revising the definition ``HUBZone small business concern''; and
0
c. Revising the definition ``Small business subcontractor''.
The revised text reads as follows:
2.101 Definitions.
* * * * *
HUBZone contract means a contract awarded to a SBA certified
``HUBZone small business concern'' through any of the following
procurement methods:
* * * * *
HUBZone small business concern means a small business concern,
certified by the Small Business Administration, that appears on the
List of Qualified HUBZone Small Business Concerns maintained by the
Small Business Administration (13 CFR 126.103).
* * * * *
Small business subcontractor means a concern that does not exceed
the size standard for the North American Industry Classification
Systems code that the prime contractor determines best describes the
product or service being acquired by the subcontract.
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
0
4. Amend section 15.304 by--
0
a. Revising paragraph (c)(3)(i); and
0
b. Removing from paragraphs (c)(3)(ii) and (c)(4) ``must'' and adding
``shall'' in their places.
The revised text reads as follows:
15.304 Evaluation factors and significant subfactors.
* * * * *
(c) * * *
(3)(i) Past performance, except as set forth in paragraph
(c)(3)(iii) of this section, shall be evaluated in all source
selections for negotiated competitive acquisitions expected to exceed
the simplified acquisition threshold.
* * * * *
PART 19--THE SMALL BUSINESS PROGRAMS
0
5. Amend section 19.301-2 by revising paragraph (e) to read as follows:
19.301-2 Rerepresentation by a contractor that represented itself as a
small business concern.
* * * * *
(e) A change in size status does not change the terms and
conditions of the contract. However, the contracting officer may
require a subcontracting plan for a contract containing 52.219-9, Small
Business Subcontracting Plan, if a prime contractor's size status
changes from small to other than small as a result of a size
rerepresentation.
19.305 [Amended]
0
6. Amend section 19.305 by removing from paragraph (c) ``19.703(a)(2)''
and ``19.703(b)'' and adding ``19.703(e)'' and ``19.703(c)'' in their
places, respectively.
0
7. Amend section 19.701 by--
0
a. Revising the heading of the definition ``Individual contract plan''
to read ``Individual subcontracting plan'';
0
b. Revising the heading of ``Master plan'' to read ``Master
subcontracting plan''; and revising the definition; and
0
c. Adding, in alphabetical order, the definition ``Total contract
dollars''.
The revised and added text reads as follows:
19.701 Definitions.
* * * * *
Master subcontracting plan means a subcontracting plan that
contains all the required elements of an individual subcontracting
contract plan, except goals, and may be incorporated into individual
subcontracting contract plans, provided the master plan has been
approved.
* * * * *
Total contract dollars means the final anticipated dollar value,
including the dollar value of all options.
0
8. Amend section 19.702 by--
0
a. Removing from paragraph (a) introductory text the word ``Section''
and adding ``section'' in its place;
0
b. Removing from paragraphs (a)(1) and (a)(2) ``a contract or contract
modification that individually is'' and adding ``a contract is'' in
their places wherever they appear;
0
c. Adding paragraph (a)(3); and
0
d. Revising paragraph (b)(4).
The revised and added text reads as follows:
19.702 Statutory requirements.
* * * * *
(a) * * *
(3) Each contract modification that causes the value of a contract
without a subcontracting plan to exceed $650,000 ($1.5 million for
construction), shall require the contractor to submit an acceptable
subcontracting plan for the contract, if the contracting officer
determines that subcontracting opportunities exist.
(b) * * *
(4) For modifications to contracts within the general scope of the
contract that do not contain the clause at 52.219-8, Utilization of
Small Business Concerns.
* * * * *
0
9. Amend section 19.703 by--
0
a. Adding a sentence to the end of paragraph (a)(1);
0
b. Revising paragraphs (a)(2) and (b);
0
c. Removing from paragraph (d)(1) ``System for Award Management'' and
adding ``SAM'' in its place;
0
d. Removing from paragraph (d)(1)(i) ``or http://www.sba.gov/hubzone'';
0
e. Removing from paragraph (d)(1)(ii) ``HUB'' and adding ``HUBZone
Program'' in its place;
0
f. Removing from paragraph (d)(2) ``13 CFR 121.411'' and adding ``13
CFR 126.801'' in its place; and
0
g. Adding paragraph (e).
The added and revised text reads as follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(a) * * *
(1) * * * For subcontracting purposes, a concern is small if it
does not exceed the size standard for the NAICS code that the prime
contractor determines best describes the product or service being
acquired by the subcontract.
(2)(i) The prime contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-disabled
veteran-owned small business, or a woman-owned small business in the
System for Award Management (SAM) if:
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the subcontract.
(ii) The prime contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged
[[Page 32914]]
business, veteran-owned small business, service-disabled veteran-owned
small business, or a woman-owned small business if:
(A) The subcontractor is not registered in SAM; and
(B) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
(b) The contractor, the contracting officer, or any other
interested party can challenge a subcontractor's size status
representation by filing a protest, in accordance with 13 CFR 121.1001
through 121.1008.
* * * * *
(e) The contracting officer or the SBA may protest the
disadvantaged status of a proposed subcontractor. Protests challenging
a subcontractor's small disadvantaged business representation must be
filed in accordance with 13 CFR 124.1007 through 124.1014. Other
interested parties may submit information to the contracting officer or
the SBA in an effort to persuade the contracting officer or the SBA to
initiate a protest. Such protests, in order to be considered timely,
must be submitted to the SBA prior to completion of performance by the
intended subcontractor.
0
10. Amend section 19.704 by--
0
a. Revising the introductory text of paragraph (a);
0
b. Revising paragraphs (a)(2) and (3);
0
c. Redesignating paragraphs (a)(10)(iii) through (vi) as paragraphs
(a)(10)(iv) through (vii), respectively;
0
d. Adding new paragraph (a)(10)(iii);
0
e. Removing from the newly designated paragraph (a)(10)(iv) ``eSRS;''
and adding ``eSRS.'' in its place;
0
f. Adding a sentence to the end of the newly designated paragraph
(a)(10)(iv)(A);
0
g. Revising the newly designated paragraph (a)(10)(iv)(B);
0
h. Removing from the newly designated paragraph (a)(10)(vii) ``plans.''
and adding ``plans;'' in its place;
0
i. Removing from paragraph (a)(11) ``them.'' and adding ``them;'';
0
j. Adding paragraphs (a)(12) through (14);
0
k. Removing from paragraph (b) ``master'' and ``Master'' adding
``master subcontracting'' and ``Master subcontracting'' in their
places, respectively, wherever they appear; and
0
l. Revising the last sentence of paragraph (c).
The revised and added text reads as follows:
19.704 Subcontracting plan requirements.
(a) Each subcontracting plan required under 19.301-2(e) and
19.702(a)(1), (2), and (3) shall include--
(1) * * *
(2) A statement of the total dollars planned to be subcontracted
and a statement of the total dollars planned to be subcontracted to
small business (including ANCs and Indian tribes), veteran-owned small
business, service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business (including ANCs and Indian
tribes) and women-owned small business concerns, as a percentage of
total subcontract dollars. For individual subcontracting plans, a
contracting officer may require the goals referenced in paragraph
(a)(1) of this section to be established as a percentage of total
contract dollars, in addition to the goals established as a percentage
of total subcontract dollars;
(3) The NAICS code and corresponding size standard of each
subcontract that best describes the principal purpose, including the
supplies and services to be subcontracted, and an identification of
types of supplies or services planned for subcontracting to small
business, veteran-owned small business, service-disabled veteran-owned
small business, HUBZone small business, small disadvantaged business
(including ANCs and Indian tribes), and women-owned small business
concerns;
* * * * *
(10) * * *
(iii) Include subcontracting data for each order when reporting
subcontracting achievements for multiple-award contracts intended for
use by multiple agencies;
(iv) * * *
(A) * * * When a contracting officer rejects an ISR due the report
being incomplete or incorrect, the contractor is required to submit a
revised ISR within 30 days of receiving the notice of the ISR
rejection.
(B) The SSR shall be submitted annually by October 30 for the
twelve-month period ending September 30. When a contracting officer
rejects an SSR due to the report being incomplete or incorrect, the
contractor is required to submit a revised SSR within 30 days of
receiving the notice of SSR rejection;
* * * * *
(12) Assurances that the offeror will make a good faith effort to
acquire articles, equipment, supplies, services, or materials, or
obtain the performance of construction work from the small business
concerns that the offeror used in preparing the bid or proposal, in the
same or greater scope, amount, and quality used in preparing and
submitting the bid or proposal. Responding to a request for a quote
does not constitute use in preparing a bid or proposal. An offeror used
a small business concern in preparing the bid or proposal if--
(i) The offeror identifies the small business concern as a
subcontractor in the bid or proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a portion
of the contract; or
(ii) The offeror used the small business concern's pricing or cost
information or technical expertise in preparing the bid or proposal,
where there is written evidence of an intent or understanding that the
small business concern will be awarded a subcontract for the related
work if the offeror is awarded the contract;
(13) A requirement for the contractor to provide the contracting
officer with a written explanation if the contractor fails to acquire
articles, equipment, supplies, services or materials or obtain the
performance of construction work as described in (a)(12) of this
section. This written explanation shall be submitted to the contracting
officer within 30 days of contract completion; and
(14) Assurances that the contractor will not prohibit a
subcontractor from discussing with the contracting officer any material
matter pertaining to payment to or utilization of a subcontractor.
* * * * *
(c) * * * If a subcontracting plan is necessary and the offeror is
submitting an individual subcontracting plan, the individual
subcontracting plan shall contain all the elements required by
paragraph (a) of this section and shall contain separate statements and
goals for the basic contract and for each option.
* * * * *
0
11. Amend section 19.705-1 by--
0
a. Revising the heading;
0
b. Redesignating the introductory paragraph as paragraph (a); and
0
c. Adding paragraph (b).
The revised and added text reads as follows:
19.705-1 General.
(a) * * *
(b)(1) Except where a contractor has a commercial plan, the
contracting officer shall require a subcontracting plan for each
indefinite-delivery, indefinite-quantity contract (including task or
delivery order contracts, FSS, GWACs, and MACs), when the estimated
value of the contract meets the subcontracting
[[Page 32915]]
plan thresholds at 19.702(a)(1) and small business subcontracting
opportunities exist.
(2) Contracting officers placing orders may establish small
business subcontracting goals for each order.
0
12. Amend section 19.705-2 by--
0
a. Removing from the introductory text ``must'' and adding ``shall'' in
its place;
0
b. Revising paragraph (a);
0
c. Adding paragraph (b)(3);
0
d. Revising paragraphs (c) and (e); and
0
e. Adding paragraph (f).
The revised and added text reads as follows:
19.705-2 Determining the need for a subcontracting plan.
* * * * *
(a)(1) Determine whether the proposed total contract dollars will
exceed the subcontracting plan threshold in 19.702(a).
(2) Determine whether a proposed modification will cause the total
contract dollars to exceed the subcontracting plan threshold (see
19.702(a)).
(b) * * *
(3) Whether the firm can acquire the items to be furnished by
contract with minimal or no disruption of contract performance (with
consideration given to the time remaining until contract completion),
and at fair market value, when a determination is made in accordance
with paragraph (a)(2).
(c)(1) When adding a subcontracting plan pursuant to 19.705-
2(a)(2), the subcontracting goals apply from the date of incorporation
of the subcontracting plan into the contract.
(2) If it is determined that there are no subcontracting
possibilities, the determination shall include a detailed rationale, be
approved at a level above the contracting officer, and placed in the
contract file.
* * * * *
(e) A contract may have no more than one subcontracting plan. When
a contract modification exceeds the subcontracting plan threshold (see
19.702(a)), or an option is exercised, the goals of an existing
subcontracting plan shall be amended to reflect any new subcontracting
opportunities. These goal changes do not apply retroactively.
(f) If a subcontracting plan has been added to the contract due to
a modification (see 19.702(a)(3)) or a size re-representation (see
19.301-2(e)), the contractor's achievements must be reported on the ISR
(or the SF-294, if applicable) on a cumulative basis from the date of
incorporation of the subcontracting plan into the contract.
19.705-4 [Amended]
0
13. Amend section 19.705-4 by removing from paragraph (b) ``11
required'' and adding ``14 required'' in its place; and removing from
paragraph (c) ``11 elements'' and adding ``14 elements'' in its place.
0
14. Amend section 19.705-6 by--
0
a. Revising the introductory paragraph;
0
b. Removing from paragraph (a) ``Notifying'' and adding ``Notify'' in
its place;
0
c. Removing from paragraph (b) ``Forwarding'' and adding ``Forward'' in
its place;
0
d. Removing from the introductory text of paragraph (c) ``Giving'' and
adding ``Give'' in its place;
0
e. Removing from paragraph (d) ``Notifying'' and adding ``Notify'' in
its place;
0
f. Removing from paragraph (e) ``Forwarding'' and adding ``Forward'' in
its place;
0
g. Redesignating paragraphs (f) through (h) as paragraphs (h) through
(j), respectively;
0
h. Adding new paragraphs (f) and (g);
0
i. Removing from newly redesignated paragraph (h) ``Initiating'' and
adding ``Initiate'' in its place;
0
j. Removing from newly redesignated paragraph (i) ``Taking'' and adding
``Take'' in its place; and
0
k. Removing from newly redesignated paragraph (j) ``Acknowledging
receipt of or rejecting'' and adding ``Acknowledge receipt of or
reject'' in its place.
The revised and added text reads as follows:
19.705-6 Postaward responsibilities of the contracting officer.
After a contract or contract modification containing a
subcontracting plan is awarded or an existing subcontracting plan is
amended, the contracting officer shall do the following:
* * * * *
(f) Monitor the prime contractor's compliance with its
subcontracting plan, to include the following:
(1) Ensure that subcontracting reports are submitted into the eSRS
(or any successor system) within 30 days after the report ending date
(e.g., by October 30th for the fiscal year ended September 30th).
(2) Review ISRs, and where applicable, SSRs, in eSRS (or any
successor system) within 60 days of the report ending date (e.g., by
November 30th for a report submitted for the fiscal year ended
September 30th).
(3) Either acknowledge receipt of or reject the reports in
accordance with subpart 19.7, 52.219-9, Small Business Subcontracting
Plan, and the eSRS instructions (www.esrs.gov).
(i) The authority to acknowledge or reject SSRs for commercial
plans resides with the contracting officer who approved the commercial
plan.
(ii) If a report is rejected, the contracting officer must provide
an explanation for the rejection to allow the prime contractor the
opportunity to respond specifically to perceived deficiencies.
(g) Evaluate the prime contractor's compliance with its
subcontracting plan, to include the following:
(1) Assess whether the prime contractor made a good faith effort to
comply with its small business subcontracting plan (see 13 CFR
125.3(d)(3)).
(2) Assess the prime contractor's written explanation concerning
the prime contractor's failure to use a small business concern in the
performance of the contract in the same scope, amount, and quality used
in preparing and submitting the bid or proposal, if applicable.
* * * * *
0
15. Amend section 19.708 by--
0
a. Removing from paragraph (b)(1) ``facility),'' and adding
``facility)'' in its place;
0
b. Removing the period at the end of paragraphs (b)(1)(i) and (ii) and
adding a semicolon in their places;
0
c. Removing from paragraph (b)(1)(iii) ``Alternate III.'' and adding
``Alternate III; or'' in its place;
0
d. Adding a new paragraph (b)(1)(iv);
0
e. Removing from paragraph (b)(2) ``Alternate I, II, or III.'' and
adding ``Alternate I, II, III, or IV.'' in its place.
The added text reads as follows:
19.708 Contract clauses.
* * * * *
(b)(1) * * *
(iv) Incorporating a subcontracting plan due to a modification as
provided for in 19.702(a)(3), the contracting officer shall use the
clause with its Alternate IV.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
16. Amend section 52.212-5 by revising the date of the clause; and
revising paragraphs (b) (16) and (17) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
[[Page 32916]]
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Date)
* * * * *
(b) * * *
__(16) 52.219-8, Utilization of Small Business Concerns (Date)
(15 U.S.C. 637(d)(2) and (3)).
__(17)(i) 52.219-9, Small Business Subcontracting Plan (Date)
(15 U.S.C. 637(d)(4)).
__(ii) Alternate I (Date) of 52.219-9.
__(iii) Alternate II (Date) of 52.219-9.
__(iv) Alternate III (Date) of 52.219-9.
__(v) Alternative IV (Date) of 52.219-9.
* * * * *
0
17. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. Revising the definition in paragraph (a) of ``HUBZone small business
concern'';
0
c. Revising paragraph (d)(1);
0
d. Redesignating paragraph (d)(2) as (d)(3); and
0
e. Adding a new paragraph (d)(2).
The revised and added text reads as follows:
52.219-8 Utilization of Small Business Concerns.
* * * * *
Utilization of Small Business Concerns (Date)
(a) * * *
HUBZone small business concern means a small business concern,
certified by the Small Business Administration, that appears on the
List of Qualified HUBZone Small Business Concerns maintained by the
Small Business Administration.
* * * * *
(d)(1) The prime Contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business in the System for Award Management (SAM) if:
(i) The subcontractor is registered in SAM; and
(ii) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the
subcontract.
(2) The prime Contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business if:
(i) The subcontractor is not registered in SAM; and
(ii) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
* * * * *
0
18. Amend section 52.219-9 by--
0
a. Revising the section heading;
0
b. Revising the date of the clause;
0
c. Revising paragraphs (b), (c), and (d);
0
d. Revising paragraphs (e)(4) and (6);
0
e. Revising paragraphs (f), (i), (k), and (l);
0
f. Revising Alternates I, II, and III; and
0
g. Adding Alternate IV.
The revised and added text reads as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
Small Business Subcontracting Plan (Date)
* * * * *
(b) Definitions. As used in this clause--
Alaska Native Corporation (ANC) means any Regional Corporation,
Village Corporation, Urban Corporation, or Group Corporation
organized under the laws of the State of Alaska in accordance with
the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601,
et seq.) and which is considered a minority and economically
disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1).
This definition also includes ANC direct and indirect subsidiary
corporations, joint ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2).
Commercial item means a product or service that satisfies the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation.
Commercial plan means a subcontracting plan (including goals)
that covers the Offeror's fiscal year and that applies to the entire
production of commercial items sold by either the entire company or
a portion thereof (e.g., division, plant, or product line).
Electronic Subcontracting Reporting System (eSRS) means the
Governmentwide, electronic, web-based system for small business
subcontracting program reporting. The eSRS is located at http://www.esrs.gov.
Indian tribe means any Indian tribe, band, group, pueblo, or
community, including native villages and native groups (including
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as
defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1601
et seq.), that is recognized by the Federal Government as eligible
for services from the Bureau of Indian Affairs in accordance with 25
U.S.C. 1452(c). This definition also includes Indian-owned economic
enterprises that meet the requirements of 25 U.S.C. 1452(e).
Individual subcontracting plan means a subcontracting plan that
covers the entire contract period (including option periods),
applies to a specific contract, and has goals that are based on the
Offeror's planned subcontracting in support of the specific
contract, except that indirect costs incurred for common or joint
purposes may be allocated on a prorated basis to the contract.
Master subcontracting plan means a subcontracting plan that
contains all the required elements of an individual subcontracting
plan, except goals, and may be incorporated into individual
subcontracting plans, provided the master plan has been approved.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Federal Government
prime Contractor or subcontractor calling for supplies or services
required for performance of the contract or subcontract.
Total contract dollars means the final anticipated dollar value,
including the dollar value of all options.
(c)(1) The Offeror, upon request by the Contracting Officer,
shall submit and negotiate a subcontracting plan, where applicable,
that separately addresses subcontracting with small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns. If the Offeror is submitting an
individual subcontracting plan, the plan must separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The subcontracting plan
shall be included in and made a part of the resultant contract. The
subcontracting plan shall be negotiated within the time specified by
the Contracting Officer. Failure to submit and negotiate the
subcontracting plan shall make the Offeror ineligible for award of a
contract.
(2)(i) The prime Contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business in the System for Award Management (SAM) if:
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the
subcontract.
(ii) The prime Contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business if:
(A) The subcontractor is not registered in SAM; and
(B) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
(d) The Offeror's subcontracting plan shall include the
following:
(1) Separate goals, expressed in terms of total dollars
subcontracted, and as a percentage of total planned subcontracting
dollars, for the use of small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business
[[Page 32917]]
concerns as subcontractors. For individual subcontracting plans, and
if required by the Contracting Officer, goals also be expressed in
terms of percentage of total contract dollars, in addition to the
goals expressed as a percentage of total subcontract dollars. The
Offeror shall include all sub-contracts that contribute to contract
performance, and may include a proportionate share of products and
services that are normally allocated as indirect costs. In
accordance with 43 U.S.C. 1626:
(i) Subcontracts awarded to an ANC or Indian tribe shall be
counted towards the subcontracting goals for small business and
small disadvantaged business (SDB) concerns, regardless of the size
or Small Business Administration certification status of the ANC or
Indian tribe.
(ii) Where one or more subcontractors are in the subcontract
tier between the Contractor and the ANC or Indian tribe, the ANC or
Indian tribe shall designate the appropriate Contractor(s) to count
the subcontract towards its small business and small disadvantaged
business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor
that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one
Contractor to count the subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of the total subcontract
award to each Contractor. The sum of the amounts designated to
various Contractors cannot exceed the total value of the
subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the prime Contractor, and
the subcontractors in between the prime Contractor and the ANC or
Indian tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the
ANC's or the Indian tribe's written designation within 30 days of
the subcontract award, the Contractor that awarded the subcontract
to the ANC or Indian tribe will be considered the designated
Contractor.
(2) A statement of--
(i) Total dollars planned to be subcontracted for an individual
contract plan; or the Offeror's total projected sales, expressed in
dollars, and the total value of projected subcontracts to support
the sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-
disabled veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes);
and
(vii) Total dollars planned to be subcontracted to women-owned
small business concerns.
(3) The NAICS code and corresponding size standard of each
subcontract that best describes the principal purpose, including the
types of supplies and services to be subcontracted, and an
identification of the types planned for subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the
subcontracting goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential
sources for solicitation purposes (e.g., existing company source
lists, the System for Award Management (SAM), veterans service
organizations, the National Minority Purchasing Council Vendor
Information Service, the Research and Information Division of the
Minority Business Development Agency in the Department of Commerce,
or small, HUBZone, small disadvantaged, and women-owned small
business trade associations). A firm may rely on the information
contained in SAM as an accurate representation of a concern's size
and ownership characteristics for the purposes of maintaining a
small, veteran-owned small, service-disabled veteran-owned small,
HUBZone small, small disadvantaged, and women-owned small business
source list. Use of SAM as its source list does not relieve a firm
of its responsibilities (e.g., outreach, assistance, counseling, or
publicizing subcontracting opportunities) in this clause.
(6) A statement as to whether or not the Offeror in included
indirect costs in establishing subcontracting goals, and a
description of the method used to determine the proportionate share
of indirect costs to be incurred with--
(i) Small business concerns (including ANC and Indian tribes);
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and
Indian tribes); and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the Offeror who will
administer the Offeror's subcontracting program, and a description
of the duties of the individual.
(8) A description of the efforts the Offeror will make to assure
that small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have
an equitable opportunity to compete for subcontracts.
(9) Assurances that the Offeror will include the clause of this
contract entitled ``Utilization of Small Business Concerns'' in all
subcontracts that offer further subcontracting opportunities, and
that the Offeror will require all subcontractors (except small
business concerns) that receive subcontracts in excess of $650,000
($1.5 million for construction of any public facility) with further
subcontracting possibilities to adopt a subcontracting plan that
complies with the requirements of this clause.
(10) Assurances that the Offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the Offeror with the
subcontracting plan;
(iii) Include subcontracting data for each order when reporting
subcontracting achievements for multiple-award contracts intended
for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l)
of this clause using the Electronic Subcontracting Reporting System
(eSRS) at http://www.esrs.gov. The reports shall provide information
on subcontract awards to small business concerns (including ANCs and
Indian tribes that are not small businesses), veteran-owned small
business concerns, service-disabled veteran-owned small business
concerns, HUBZone small business concerns, small disadvantaged
business concerns (including ANCs and Indian tribes that have not
been certified by SBA as small disadvantaged businesses), women-
owned small business concerns, and for NASA only, Historically Black
Colleges and Universities and Minority Institutions. Reporting shall
be in accordance with this clause, or as provided in agency
regulations;
(v) Ensure that its subcontractors with subcontracting plans
agree to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its DUNS number, and the
email address of the Offeror's official responsible for
acknowledging receipt of or rejecting the ISRs, to all first-tier
subcontractors with subcontracting plans so they can enter this
information into the eSRS when submitting their ISRs; and
(vii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the
email address of the subcontractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to its
subcontractors with subcontracting plans.
(11) A description of the types of records that will be
maintained concerning procedures that have been adopted to comply
with the requirements and goals in the plan, including establishing
source lists; and a description of the Offeror's efforts to locate
small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns and
award subcontracts to them. The records shall include at least the
following (on a plant-wide or company-wide basis, unless otherwise
indicated):
[[Page 32918]]
(i) Source lists (e.g., SAM), guides, and other data that
identify small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources
that are small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an
award of more than $150,000, indicating--
(A) Whether small business concerns were solicited and, if not,
why not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business
concerns were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and,
if not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited
and, if not, why not; and
(G) If applicable, the reason award was not made to a small
business concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, and women-owned small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the
program's requirements.
(vi) On a contract-by-contract basis, records to support award
data submitted by the Offeror to the Government, including the name,
address, and business size of each subcontractor. Contractors having
commercial plans need not comply with this requirement.
(12) Assurances that the Offeror will make a good faith effort
to acquire articles, equipment, supplies, services, or materials, or
obtain the performance of construction work from the small business
concerns that it used in preparing the bid or proposal, in the same
or greater scope, amount, and quality used in preparing and
submitting the bid or proposal. Responding to a request for a quote
does not constitute use in preparing a bid or proposal. The Offeror
used a small business concern in preparing the bid or proposal if--
(i) The Offeror identifies the small business concern as a
subcontractor in the bid or proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a
portion of the subcontract; or
(ii) The Offeror used the small business concern's pricing or
cost information or technical expertise in preparing the bid or
proposal, where there is written evidence of an intent or
understanding that the small business concern will be awarded a
subcontract for the related work if the Offeror is awarded the
contract.
(13) A requirement for the Contractor to provide the Contracting
Officer with a written explanation if the Contractor fails to
acquire articles, equipment, supplies, services or materials or
obtain the performance of construction work as described in (d)(12)
of this clause. This written explanation must be submitted to the
Contracting Officer within 30 days of contract completion.
(14) Assurances that the Contractor will not prohibit a
subcontractor from discussing with the Contracting Officer any
material matter pertaining to payment to or utilization of a
subcontractor.
(e) * * *
(4) Confirm that a subcontractor representing itself as a
HUBZone small business concern is certified by SBA as a HUBZone
small business concern in accordance with 52.219-8(d)(2).
* * * * *
(6) For all competitive subcontracts over the simplified
acquisition threshold in which a small business concern received a
small business preference, upon determination of the successful
subcontract Offeror, the Contractor must inform each unsuccessful
small business subcontract Offeror in writing of the name and
location of the apparent successful Offeror and if the successful
subcontract Offeror is a small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, or women-owned small
business concern, prior to award of the subcontract.
(f) A master subcontracting plan on a plant or division-wide
basis that contains all the elements required by paragraph (d) of
this clause, except goals, may be incorporated by reference as a
part of the subcontracting plan required of the Offeror by this
clause; provided--
(1) The master subcontracting plan has been approved,
(2) The Offeror ensures that the master subcontracting plan is
updated as necessary and provides copies of the approved master
plan, including evidence of its approval, to the Contracting
Officer, and
(3) Goals and any deviations from the master subcontracting plan
deemed necessary by the Contracting Officer to satisfy the
requirements of this contract are set forth in the individual
subcontracting plan.
* * * * *
(i) A contract may have no more than one subcontracting plan.
When a contract modification exceeds the subcontracting plan
threshold in 19.702(a), or an option is exercised, the goals of the
existing subcontracting plan shall be amended to reflect any new
subcontracting opportunities. When the goals in a subcontracting
plan are amended, these goal changes do not apply retroactively.
* * * * *
(k) The failure of the Contractor or subcontractor to comply in
good faith with--
(1) The clause of this contract entitled ``Utilization Of Small
Business Concerns''; or
(2) An approved plan required by this clause, shall be a
material breach of the contract and may be considered in any past
performance evaluation of the Contractor.
(l) The Contractor shall submit ISRs and SSRs using the web-
based eSRS at http://www.esrs.gov. Purchases from a corporation,
company, or subdivision that is an affiliate of the Contractor or
subcontractor are not included in these reports. Subcontract awards
by affiliates shall be treated as subcontract awards by the
Contractor. Subcontract award data reported by the Contractors and
subcontractors shall be limited to awards made to their immediate
next-tier subcontractors. Credit cannot be taken for awards made to
lower tier subcontractors, unless the Contractor or subcontractor
has been designated to receive a small business or small
disadvantaged business credit from an ANC or Indian tribe. Only
subcontracts involving performance in the United States or its
outlying areas should be included in these reports with the
exception of subcontracts under a contract awarded by the State
Department or any other agency that has statutory or regulatory
authority to require subcontracting plans for subcontracts performed
outside the United States and its outlying areas.
(1) ISR. This report is not required for commercial plans. The
report is required for each contract containing an individual
subcontract plan.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A
report is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each
reporting period, unless otherwise directed by the Contracting
Officer. Reports are required when due, regardless of whether there
has been any subcontracting activity since the inception of the
contract or the previous reporting period. When the Contracting
Officer rejects an ISR, the Contractor shall submit a corrected
report shall within 30 days of receiving the notice of ISR
rejection.
(ii)(A) When a subcontracting plan contains separate goals for
the basic contract and each option, as prescribed by 19.704(c), the
dollar goal inserted on this report shall be the sum of the base
period through the current option; for example, for a report
submitted after the second option is exercised, the dollar goal
would be the sum of the goals for the basic contract, the first
option, and the second option.
(B) If a subcontracting plan has been added to the contract
pursuant to 19.705-2(c) or 19.301-2(e), the Contractor's
achievements must be reported in the ISR on a cumulative basis from
the date of incorporation of the subcontracting plan into the
contract.
(iii) When a subcontracting plan includes indirect costs in the
goals, these costs must be included in this report.
(iv) The authority to acknowledge receipt or reject the ISR
resides--
(A) In the case of the prime Contractor, with the Contracting
Officer; and
[[Page 32919]]
(B) In the case of a subcontract with a subcontracting plan,
with the entity that awarded the subcontract.
(2) SSR. (i) Reports submitted under individual subcontracting
plans.
(A) This report encompasses all subcontracting under prime
contracts and subcontracts with an executive agency, regardless of
the dollar value of the subcontracts. This report also includes
indirect costs on a prorated basis when the indirect costs are
excluded from the subcontracting goals;
(B) The report may be submitted on a corporate, company or
subdivision (e.g. plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If the Contractor or a subcontractor is performing work for
more than one executive agency, a separate report shall be submitted
to each executive agency covering only that agency's contracts,
provided at least one of that agency's contracts is over $650,000
(over $1.5 million for construction of a public facility) and
contains a subcontracting plan. For DoD, a consolidated report shall
be submitted for all contracts awarded by military departments/
agencies and/or subcontracts awarded by DoD prime Contractors.
(D) The report shall be submitted annually by October 30 for the
twelve month period ending September 30. When a Contracting Officer
rejects an SSR, the Contractor shall submit a revised report within
30 days of receiving the notice of SSR rejection.
(F) The authority to acknowledge or reject SSRs in eSRS,
including SSRs submitted by subcontractors with subcontracting
plans, resides with the Government agency awarding the prime
contracts unless stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year and
all indirect costs.
(B)The report shall be submitted annually, within thirty days
after the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work
for more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial
plans resides with the Contracting Officer who approved the
commercial plan.
(End of clause)
* * * * *
Alternate I (Date). As prescribed in 19.708(b)(1)(i), substitute
the following paragraph (c)(1) for paragraph (c)(1) of the basic
clause:
(c)(1) The apparent low bidder, upon request by the Contracting
Officer, shall submit a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-
owned small business, service-disabled veteran-owned small business,
HUBZone small business, small disadvantaged business, and women-
owned small business concerns. If the bidder is submitting an
individual subcontracting plan, the plan must separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The plan shall be included
in and made a part of the resultant contract. The subcontracting
plan shall be submitted within the time specified by the Contracting
Officer. Failure to submit the subcontracting plan shall make the
bidder ineligible for the award of a contract.
Alternate II (Date). As prescribed in 19.708(b)(1)(ii),
substitute the following paragraph (c)(1) for paragraph (c)(1) of
the basic clause:
(c)(1) Proposals submitted in response to this solicitation
shall include a subcontracting plan that separately addresses
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns. If the Offeror is submitting an individual
subcontracting plan, the plan must separately address subcontracting
with small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns,
with a separate part for the basic contract and separate parts for
each option (if any). The plan shall be included in and made a part
of the resultant contract. The subcontracting plan shall be
negotiated within the time specified by the Contracting Officer.
Failure to submit and negotiate a subcontracting plan shall make the
Offeror ineligible for award of a contract.
Alternate III (Date). As prescribed in 19.708(b)(1)(iii),
substitute the following paragraphs (d)(10) and (l) for paragraphs
(d)(10) and (l) in the basic clause;
(d)(10) Assurances that the Offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the Offeror with the
subcontracting plan;
(iii) Submit Standard Form (SF) 294 Subcontracting Report for
Individual Contract in accordance with paragraph (l) of this clause.
Submit the Summary Subcontract Report (SSR), in accordance with
paragraph (l) of this clause using the Electronic Subcontracting
Reporting System (eSRS) at http://www.esrs.gov. The reports shall
provide information on subcontract awards to small business concerns
(including ANCs and Indian tribes that are not small businesses),
veteran-owned small business concerns, service-disabled veteran-
owned small business concerns, HUBZone small business concerns,
small disadvantaged business concerns (including ANCs and Indian
tribes that have not been certified by the Small Business
Administration as small disadvantaged businesses), women-owned small
business concerns, and for NASA only, Historically Black Colleges
and Universities and Minority Institutions. Reporting shall be in
accordance with this clause, or as provided in agency regulations;
and
(iv) Ensure that its subcontractors with subcontracting plans
agree to submit the SF 294 in accordance with paragraph (l) of this
clause. Ensure that its subcontractors with subcontracting plans
agree to submit the SSR in accordance with paragraph (l) of this
clause using the eSRS.
(l) The Contractor shall submit a SF 294. The Contractor shall
submit SSRs using the web-based eSRS at http://www.esrs.gov.
Purchases from a corporation, company, or subdivision that is an
affiliate of the Contractor or subcontractor are not included in
these reports. Subcontract awards by affiliates shall be treated as
subcontract awards by the prime Contractor. Subcontract award data
reported by Contractors and subcontractors shall be limited to
awards made to their immediate next-tier subcontractors. Credit
cannot be taken for awards made to lower tier subcontractors, unless
the Contractor or subcontractor has been designated to receive a
small business or small disadvantaged business credit from an ANC or
Indian tribe. Only subcontracts involving performance in the U.S. or
its outlying areas should be included in these reports with the
exception of subcontracts under a contract awarded by the State
Department or any other agency that has statutory or regulatory
authority to require subcontracting plans for subcontracts performed
outside the United States and its outlying areas.
(1) SF 294. This report is not required for commercial plans.
The report is required for each contract containing an individual
subcontract plan. For Contractors the report shall be submitted to
the Contracting Officer, or as specified elsewhere in this contract.
In the case of a subcontract with a subcontracting plan, the report
shall be submitted to the entity that awarded the subcontract.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A
report is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each
reporting period, unless otherwise directed by the Contracting
Officer. Reports are required when due, regardless of whether there
has been any subcontracting activity since the inception of the
contract or the previous reporting period. When a Contracting
Officer rejects a report, the Contractor shall submit a revised
report within 30 days of receiving the notice of report rejection.
(ii) When a subcontracting plan contains separate goals for the
basic contract and each option, as prescribed by 19.704(c), the
dollar goal inserted on this report shall be the sum of the base
period through the current option; for example, for a report
submitted after the second option is exercised, the dollar goal
would be the sum of the goals for the basic
[[Page 32920]]
contract, the first option, and the second option.
(iii) When a subcontracting plan includes indirect costs in the
goals, these costs must be included in this report.
(2) SSR. (i) Reports submitted under individual subcontracting
plans.
(A) This report encompasses all subcontracting under prime
contracts and subcontracts with an executive agency, regardless of
the dollar value of the subcontracts. This report also includes
indirect costs on a prorated basis when the indirect costs are
excluded from the subcontracting goals.
(B) The report may be submitted on a corporate, company or
subdivision (e.g. plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If the Contractor and/or subcontractor is performing work
for more than one executive agency, a separate report shall be
submitted to each executive agency covering only that agency's
contracts, provided at least one of that agency's contracts is over
$550,000 (over $1,000,000 for construction of a public facility) and
contains a subcontracting plan. For DoD, a consolidated report shall
be submitted for all contracts awarded by military departments/
agencies and/or subcontracts awarded by DoD prime Contractors.
(D) The report shall be submitted annually by October 30, for
the twelve month period ending September 30. When a Contracting
Officer rejects an SSR, the Contractor is required to submit a
revised SSR within 30 days of receiving the notice of report
rejection.
(E) Subcontract awards that are related to work for more than
one executive agency shall be appropriately allocated.
(F) The authority to acknowledge or reject SSRs in the eSRS,
including SSRs submitted by subcontractors with subcontracting
plans, resides with the Government agency awarding the prime
contracts unless stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year and
all indirect costs.
(B) The report shall be submitted annually, within thirty days
after the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work
for more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial
plans resides with the Contracting Officer who approved the
commercial plan.
Alternate IV (Date). As prescribed in 19.708(b)(1)(iv),
substitute the following paragraphs (c) and (d) for paragraphs (c)
and (d) of the basic clause:
(c)(1) The Contractor, upon request by the Contracting Officer,
shall submit and negotiate a subcontracting plan, where applicable,
that separately addresses subcontracting with small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns. If the Contractor is submitting
an individual subcontracting plan, the plan shall separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The subcontracting plan
shall be incorporated into the contract. The subcontracting plan
shall be negotiated within the time specified by the Contracting
Officer.
(2)(i) The prime Contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business in the System for Award Management (SAM) if:
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the
subcontract.
(ii) The prime Contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business if:
(A) The subcontractor is not registered in SAM; and
(B) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
(d) The Contractor's subcontracting plan shall include the
following:
(1) Separate goals, expressed in terms of total dollars
subcontracted and as a percentage of total planned subcontracting
dollars, for the use of small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns as subcontractors. For individual subcontracting
plans, and if required by the Contracting Officer, goals also be
expressed in terms of percentage of total contract dollars, in
addition to the goals expressed as a percentage of total subcontract
dollars. The Contractor shall include all subcontracts that
contribute to contract performance, and may include a proportionate
share of products and services that are normally allocated as
indirect costs. In accordance with 43 U.S.C. 1626--
(i) Subcontracts awarded to an ANC or Indian tribe shall be
counted towards the subcontracting goals for small business and
small disadvantaged business concerns, regardless of the size or
Small Business Administration certification status of the ANC or
Indian tribe; and
(ii) Where one or more subcontractors are in the subcontract
tier between the prime Contractor and the ANC or Indian tribe, the
ANC or Indian tribe shall designate the appropriate Contractor(s) to
count the subcontract towards its small business and small
disadvantaged business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor
that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one
Contractor to count the subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of the total subcontract
award to each Contractor. The sum of the amounts designated to
various Contractors cannot exceed the total value of the
subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the Contractor, and the
subcontractors in between the prime Contractor and the ANC or Indian
tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the
ANC's or the Indian tribe's written designation within 30 days of
the subcontract award, the Contractor that awarded the subcontract
to the ANC or Indian tribe will be considered the designated
Contractor.
(2) A statement of--
(i) Total dollars planned to be subcontracted for an individual
subcontracting plan; or the Contractor's total projected sales,
expressed in dollars, and the total value of projected subcontracts
to support the sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-
disabled veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes);
and
(vii) Total dollars planned to be subcontracted to women-owned
small business concerns.
(3) The NAICS code and corresponding size standard of each
subcontract that best describes the principal purpose, including the
types of supplies and services to be subcontracted, and an
identification of the types planned for subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the
subcontracting goals in paragraph (d)(1) of this clause.
[[Page 32921]]
(5) A description of the method used to identify potential
sources for solicitation purposes (e.g., existing company source
lists, SAM, veterans service organizations, the National Minority
Purchasing Council Vendor Information Service, the Research and
Information Division of the Minority Business Development Agency in
the Department of Commerce, or small, HUBZone, small disadvantaged,
and women-owned small business trade associations). The Contractor
may rely on the information contained in SAM as an accurate
representation of a concern's size and ownership characteristics for
the purposes of maintaining a small, veteran-owned small, service-
disabled veteran-owned small, HUBZone small, small disadvantaged,
and women-owned small business source list. Use of SAM as its source
list does not relieve a firm of its responsibilities (e.g.,
outreach, assistance, counseling, or publicizing subcontracting
opportunities) in this clause.
(6) A statement as to whether or not the Contractor included
indirect costs in establishing subcontracting goals, and a
description of the method used to determine the proportionate share
of indirect costs to be incurred with--
(i) Small business concerns (including ANC and Indian tribes);
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and
Indian tribes); and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the Contractor who
will administer the Contractor's subcontracting program, and a
description of the duties of the individual.
(8) A description of the efforts the Contractor will make to
assure that small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have
an equitable opportunity to compete for subcontracts.
(9) Assurances that the Contractor will include the clause of
this contract entitled ``Utilization of Small Business Concerns'' in
all subcontracts that offer further subcontracting opportunities,
and that the Contractor will require all subcontractors (except
small business concerns) that receive subcontracts in excess of
$650,000 ($1.5 million for construction of any public facility) with
further subcontracting possibilities to adopt a subcontracting plan
that complies with the requirements of this clause.
(10) Assurances that the Contractor will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the Contractor with the
subcontracting plan;
(iii) Include subcontracting data for each order when reporting
subcontracting achievements for a multiple-award contract intended
for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l)
of this clause using the Electronic Subcontracting Reporting System
(eSRS) at http://www.esrs.gov. The reports shall provide information
on subcontract awards to small business concerns (including ANCs and
Indian tribes that are not small businesses), veteran-owned small
business concerns, service-disabled veteran-owned small business
concerns, HUBZone small business concerns, small disadvantaged
business concerns (including ANCs and Indian tribes that have not
been certified by SBA as small disadvantaged businesses), women-
owned small business concerns, and for NASA only, Historically Black
Colleges and Universities and Minority Institutions. Reporting shall
be in accordance with this clause, or as provided in agency
regulations;
(v) Ensure that its subcontractors with subcontracting plans
agree to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its DUNS number, and the
email address of the Contractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to all first-tier
subcontractors with subcontracting plans so they can enter this
information into the eSRS when submitting their ISRs; and
(vii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the
email address of the subcontractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to its
subcontractors with subcontracting plans.
(11) A description of the types of records that will be
maintained concerning procedures that have been adopted to comply
with the requirements and goals in the plan, including establishing
source lists; and a description of the Contractor's efforts to
locate small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns and
award subcontracts to them. The records shall include at least the
following (on a plant-wide or company-wide basis, unless otherwise
indicated):
(i) Source lists (e.g., SAM), guides, and other data that
identify small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources
that are small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an
award of more than $150,000, indicating--
(A) Whether small business concerns were solicited and, if not,
why not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business
concerns were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and,
if not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited
and, if not, why not; and
(G) If applicable, the reason award was not made to a small
business concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, service-disabled veteran-owned, and women-owned
small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the
program's requirements.
(vi) On a contract-by-contract basis, records to support award
data submitted by the Contractor to the Government, including the
name, address, and business size of each subcontractor. Contractors
having commercial plans need not comply with this requirement.
(12) Assurances that the Contractor will make a good faith
effort to acquire articles, equipment, supplies, services, or
materials, or obtain the performance of construction work from the
small business concerns that it used in preparing or proposal for
the modification, in the same or greater scope, amount, and quality
used in preparing and submitting the modification proposal.
Responding to a request for a quote does not constitute use in
preparing a proposal. The Contractor used a small business concern
in preparing the proposal for a modification if--
(i) The Contractor identifies the small business concern as a
subcontractor in the proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a
portion of the subcontract; or
(ii) The Contractor used the small business concern's pricing or
cost information or technical expertise in preparing the proposal,
where there is written evidence of an intent or understanding that
the small business concern will be awarded a subcontract for the
related work when the modification is executed.
(13) A requirement for the Contractor to provide the Contracting
Officer with a written explanation if the Contractor fails to
acquire articles, equipment, supplies, services or materials or
obtain the performance of construction work as described in
paragraph (d)(12) of this clause. This written explanation must be
submitted to the Contracting Officer within 30 days of contract
completion.
(14) Assurances that the Contractor will not prohibit a
subcontractor from discussing with the contracting officer any
material
[[Page 32922]]
matter pertaining to the payment to or utilization of a
subcontractor.
[FR Doc. 2015-14055 Filed 6-9-15; 8:45 am]
BILLING CODE 6820-EP-P