NASA Mentor-Protégé Program, 25671-25677 [E9-12487]

Download as PDF Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations GENERAL SERVICES ADMINISTRATION 48 CFR Parts 547 and 552 [GSAR Amendment 2009–06; GSAR Case 2006–G518 (Change 34); Docket 2008–0007; Sequence 2] RIN 3090–AI52 General Services Administration Acquisition Regulation; GSAR Case 2006–G518; Rewrite of GSAR Part 547, Transportation AGENCIES: General Services Administration (GSA), Office of the Chief Acquisition Officer. ACTION: Final rule. SUMMARY: The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) by deleting and reserving Part 547, Transportation. DATES: Effective Date: June 29, 2009 A. Background tjames on PRODPC75 with RULES GSA published a proposed rule, with request for comments, in the Federal Register at 73 FR 32277 on June 6, 2008. No comments were received in response to the proposed rule. Therefore, the proposed rule is converted to final with no change. The information contained in Subpart 547.3—Transportation in Supply Contracts, sections 547.300, 547.303, 547.304, 547.305, and 547.370, is being deleted. In addition, clauses 552.247–70, Placarding Railcar Shipments, and 552.247–71, Diversion of Shipment Under f.o.b. Destination Contracts, are being deleted from 552.547. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Regulatory Flexibility Act The General Services Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities 15:25 May 28, 2009 Jkt 217001 C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C. Chapter 35, et seq. List of Subjects in 48 CFR Parts 547 and 552 Government procurement. Dated: March 6, 2009. Rodney P. Lantier, Acting, Senior Procurement Executive, Office of the Chief Acquisition Officer, General Services Administration. Therefore, under the authority of 40 U.S.C. 121(c), GSA amends 48 CFR parts 547 and 552 as set forth below: ■ For clarification of content, contact Jeritta Parnell, Procurement Analyst, at (202) 501–4082. For information pertaining to status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC, 20405, (202) 501–4755. Please cite Amendment 2009–06, GSAR case 2008– G518 (Change 34). SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: VerDate Nov<24>2008 within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule deletes information and clauses that are deemed unnecessary and therefore, has no impact. PART—547 [Removed and Reserved] 1. Remove and reserve part 547. 2. The authority citation for 48 CFR part 552 continues to read as follows: ■ ■ Authority: 40 U.S.C. 121(c). PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 552.247–70 ■ 552.247–71 ■ [Removed] 3. Remove section 552.247–70. [Removed] 4. Remove section 552.247–71. [FR Doc. E9–12362 Filed 5–28–09; 8:45 am] BILLING CODE 6820–61–S NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1819 and 1852 RIN 2700–AD41 ´ ´ NASA Mentor-Protege Program AGENCY: National Aeronautics and Space Administration. ACTION: Final rule. SUMMARY: This final rule amends the NASA FAR Supplement (NFS) to update the procedures for NASA’s ´ ´ Mentor-Protege program. The changes will streamline the program; align the mentoring to technical skills; expand the program to Veteran-owned, HUBZone, and NASA Small Business PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 25671 Innovation Research (SBIR) Phase II small businesses; and include award fee incentives. DATES: Effective date: May 29, 2009. Applicability date: NASA’s revised ´ ´ procedures for the Mentor-Protege program will be effective for new applications that are submitted on or after May 29, 2009. FOR FURTHER INFORMATION CONTACT: Sandra Morris, Office of Procurement, Contract Management Division, (202) 358–0532; e-mail: Sandra.Morris@nasa.gov. SUPPLEMENTARY INFORMATION: A. Background On September 19, 2008, the National Aeronautics and Space Administration (NASA) published in the Federal Register (73 FR 54340–54345), a proposed rule, with request for comments, to amend its regulations ´ ´ governing the NASA Mentor-Protege Program. This program is authorized under Title 42, U.S.C., 2473(c)(1). Specifically, the proposed rule defined the new program’s eligibility requirements, and agreement submission and approval process. It also introduced mentor award fee incentives and explained the calculated subcontracting credit pursuant to FAR 52.219–9, Small Business Subcontracting Plan. Discussion of Comments on the Proposed Rule The comment period for the proposed rule closed on November 18, 2008. NASA received substantive comments from eight commenters. One of the commenters opposed NASA’s approach to implementation of the proposed rule, and the remaining seven supported it. The commenter who opposed NASA’s approach as set forth in the proposed rule felt that there are already adequate numbers of specialized programs for various small businesses, and stated that they adversely impact the opportunities for regular small business entities. Of the seven commenters who generally supported the proposed rule, about half sought to be included in the mentoring program or requested referrals, and the other half requested that specific language be added to the rule. Based on NASA’s evaluation of the comments and the purpose of the rule, NASA modified the proposed rule in response to issues raised in the comments. As discussed below, this final rule provides definitions and ´ ´ clarifications of NASA’s Mentor Protege program. The following is an analysis of the substantive comments and NASA’s corresponding responses. E:\FR\FM\29MYR1.SGM 29MYR1 25672 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations tjames on PRODPC75 with RULES ´ ´ Requirements To Qualify as a Protege Three of the commenters expressed the view that the proposed eligibility requirements in section 1819.7202(b) ´ ´ Eligibility of Proteges, should be expanded to include non-profit agencies for the blind or a qualified nonprofit agency for the severely disabled. The suggestion was made to add the following under paragraph (b)(1) ‘‘or a qualified non-profit agency for the blind or a qualified nonprofit agency for other severely disabled as defined in 41 CFR 51–4 under the Ability One Program.’’ Response: NASA has modified section 1819.7202 ‘‘Eligibility’’ by adding under ´ ´ paragraph (b)(1) ‘‘Eligibility of Protege, nonprofit agencies employing people who are blind or severely disabled’’. Award Fee One commenter asked for additional clarification regarding award fees. According to this commenter, the new rule appears to eliminate the existing award fee provisions and introduces a new award fee incentive for companies ´ ´ which mentor SBIR II protege firms. The commenter states that 1819.7215(b)(4) provides that ‘‘[i]n contracts with award fee incentives, potential for payment of an award fee for voluntary participation and successful performance in the ´ ´ Mentor-Protege Program, in accordance with NFS 1819.7209.’’ The commenter further notes that the new 1819.7209 addresses credit agreements and reimbursement of certain costs associated with providing developmental assistance, and asks whether award fees will be limited to arrangements with SBIR II companies, or if preexisting award fees will still be available. Could the agency mean that when a prime contract contains an award fee incentive, participation as a mentor will be favorably factored into the award fee determination? Response: The correct citation for the referenced language is 1852.219–77 rather than 1819.7215(b)(4). The award fee evaluation criteria as stated in NFS 1816.405–274(g)(3) remains unchanged. NFS 1816.405–274(g)(3) states that the contractor’s achievements in subcontracting high technology efforts as well as the contractor’s performance ´ ´ under the Mentor-Protege Program may be evaluated. In addition to the award fee evaluation criteria stated in NFS 1816.405–274(g)(3), the new Mentor´ ´ Protege program in 1819.7208 has been ´ ´ added and applies when the protege is a NASA SBIR Phase II contractor. ´ ´ DOD Mentor-Protege Reciprocity Another commenter asks whether ´ ´ reciprocity to the DOD Mentor-Protege VerDate Nov<24>2008 15:25 May 28, 2009 Jkt 217001 program would be eliminated under the proposed rule. Response: This rule removes the DOD reciprocity previously referenced in 1819.7204 ‘‘Transportability of features from the Department of Defense (DOD) ´ ´ Mentor-Protege Program to NASA contractors’’. The information collection has been approved by the Office of Management and Budget under 44 U.S.C. 3501, et seq. via control number 2007–0078. Self-Certification William P. McNally, Assistant Administrator for Procurement. One commenter requested ´ ´ confirmation that protege companies will no longer be allowed to self-certify. ´ ´ Response: Protege companies are still allowed to self-certify. ´ ´ Protege Selection Process A commenter asked NASA to confirm the change that mentors would be ´ ´ required to select protege companies that are SDBs, WOSB, HUBZone SBs, VO/SDVO SBs, HBCUs, MIs or SBIR II companies. The preexisting rule stated that it would ‘‘encourage’’ as opposed to ‘‘require’’ this selection. ´ ´ Response: Eligible protege companies must be one of the types of companies listed in section 1819.7202. In response to comments received, NASA has added nonprofit agencies employing people who are blind or severely disabled to ´ ´ the list of eligible proteges. ´ ´ SBIR Phase II Protege One commenter states that because the rule requires that companies under the award fee pilot have already been selected for SBIR Phase II contracts with NASA, it does not explain how a prime contractor mentor subcontracts with a ´ ´ SBIR II protege, which is a prime contractor in its own right. Response: The SBIR Phase II contractor can hold the SBIR Phase II contract and be eligible for developmental assistance in the form of noncompetitive award of subcontracts under NASA contracts in accordance with 1819.7205(c)(2). B. Regulatory Flexibility Act NASA certifies that this proposed rule will not 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., because participation in the ´ ´ mentor protege program is voluntary and does not impose an economic impact beyond that addressed in the FAC 2005–14 publication of the FAR final rule. C. Paperwork Reduction Act The Paperwork Reduction Act (Pub. L. 104–13) is applicable because the NFS changes impose information collection requirements in the form of applications and report submissions. PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 List of Subjects in 48 CFR Parts 1819 and 1852 Government procurement. Accordingly, 48 CFR parts 1819 and 1852 are amended as follows: ■ 1. The authority citation for 48 CFR parts 1819 and 1852 continues to read as follows: ■ Authority: 42 U.S.C. 2473(c)(1). PART 1819—SMALL BUSINESS PROGRAMS 2. Subpart 1819–72 is revised to read as follows: ■ ´ ´ Subpart 1819.72—NASA Mentor-Protege Program 1819.7201 Scope of subpart. 1819.7202 Eligibility. 1819.7203 Mentor approval process. ´ ´ 1819.7204 Protege selection. ´ ´ 1819.7205 Mentor-protege agreements. 1819.7206 Agreement contents. 1819.7207 Agreement submission and approval process. 1819.7208 Award Fee Pilot Program. 1819.7209 Credit agreements. 1819.7210 Agreement terminations. 1819.7211 Loss of eligibility. 1819.7212 Reporting requirements. 1819.7213 Performance reviews. 1819.7214 Measurement of program success 1819.7215 Solicitation provision and contract clauses. Subpart 1819.72—NASA Mentor´ ´ Protege Program 1819.7201 Scope of subpart. (a) This subpart implements the ´ ´ NASA Mentor-Protege Program (hereafter referred to as the Program) established under the authority of Title 42, U.S.C., 2473(c)(1). The purpose of the Program is to: (1) Provide incentives to NASA contractors, performing under at least one active approved subcontracting plan ´ ´ negotiated with NASA to assist proteges in enhancing their capabilities to satisfy NASA and other contract and subcontract requirements; (2) Increase the overall participation ´ ´ of proteges as subcontractors and suppliers under NASA contracts, other Federal agency contracts, and commercial contracts; and (3) Foster the establishment of longterm business relationships between ´ ´ proteges and mentors. (b) Under the Program, eligible entities approved as mentors will enter ´ ´ into mentor-protege agreements with E:\FR\FM\29MYR1.SGM 29MYR1 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations ´ ´ eligible proteges to provide appropriate developmental assistance to enhance ´ ´ the capabilities of the proteges to perform as subcontractors and suppliers. NASA may provide the mentor award fee incentives. Additionally, this subpart explains the calculated subcontracting credit for a ´ ´ mentor-protege program pursuant to FAR 52.219–9, Small Business Subcontracting Plan. tjames on PRODPC75 with RULES 1819.7202 Eligibility. (a) Eligibility of Mentors: To be eligible to participate as a mentor, an entity must be— (1) A large prime contractor performing under contracts with at least one approved subcontracting plan negotiated with NASA, pursuant to FAR Subpart 19.7, The Small Business Subcontracting Program. A contractor may apply to become a mentor even if they currently are not performing under a NASA contract with an approved subcontracting plan, if they are currently performing for another Federal Agency under a contract with an approved subcontracting plan. A NASA ´ ´ mentor-protege agreement will not be approved until such time the mentor company is performing under a NASA contract with an approved subcontracting plan; and (2) A contractor eligible for receipt of Government contracts. (i) An entity may not be approved for participation in the Program as a mentor if, at the time of requesting participation in the program, it is currently debarred or suspended from contracting with the Federal Government pursuant to FAR Subpart 9.4, Debarment, Suspension, and Ineligibility. ´ ´ (b) Eligibility of Proteges: To be ´ ´ eligible to participate as a protege, an entity must— (1) Be classified as a Small Disadvantaged Business (SDB), a women-owned small business, a HUBZone small business, a veteranowned or service-disabled veteranowned small business, an historically black college and university, minority institution of higher education, as defined in FAR Part 2, Definitions of Parts and Terms, an active NASA SBIR Phase II company, or a non-profit agency employing people who are blind or severely disabled as defined in 41 CFR Chapter 51. (2) Be eligible for the award of Federal contracts; and (3) Be a small business according to the Small Business Administration (SBA) size standard for the North American Industry Classification System (NAICS) code that represents the contemplated supplies or services to be VerDate Nov<24>2008 15:25 May 28, 2009 Jkt 217001 ´ ´ provided by the protege to the mentor ´ ´ if the protege is representing itself as a women-owned small business, HUBZone small business, or a veteranowned or service-disabled veteranowned small business. ´ ´ (4) Except for SDBs, a protege firm may self-certify to a mentor firm that it meets the requirements set forth in paragraph (a) of this section. Mentors may rely in good faith on written ´ ´ representations by potential proteges that they meet the specified eligibility requirements. SDB status eligibility and documentation requirements are determined according to FAR 19.304. 1819.7203 Mentor approval process. (a) An entity seeking to participate as a mentor must apply to the NASA Headquarters Office of Small Business Programs (OSBP), to establish its initial eligibility and approval as a mentor, ´ ´ prior to submission of a mentor-protege agreement. (b) The application must provide the following information: (1) A statement that the entity is currently performing under at least one active approved subcontracting plan negotiated with NASA pursuant to FAR 19.702, The Small Business Subcontracting Program, and that the entity is currently eligible for the award of Government contracts. (2) A summary of the entity’s historical and recent activities and accomplishments under its small and disadvantaged business utilization program. (3) The total dollar amount of NASA contracts and subcontracts that the entity received during the two preceding fiscal years. (Show prime contracts and subcontracts separately per year.) (4) The total dollar amount of all other Federal agency contracts and subcontracts that the entity received during the two preceding fiscal years. (Show prime contracts and subcontracts separately per year.) (5) The total dollar amount of subcontracts that the entity awarded under NASA contracts during the two preceding fiscal years. (6) The total dollar amount of subcontracts that the entity awarded under all other Federal agency contracts during the two preceding fiscal years. (7) The total dollar amount and percentage of subcontracts that the entity awarded to all SDB, womenowned small businesses, HUBZone small businesses, veteran-owned and service-disabled veteran-owned small businesses, Historically Black Colleges, and Universities, minority institutions of higher education and nonprofit PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 25673 agencies employing people who are blind and severely disabled under NASA contracts and other Federal agency contracts during the two preceding fiscal years. If the entity is presently required to submit a Summary Subcontracting Report via the Government Electronic Subcontracting Reporting System (eSRS), the application must include copies of the final reports for the two preceding fiscal years. (8) Information on the entity’s ability to provide developmental assistance to ´ ´ its eligible proteges. (9) Any additional information as requested by NASA OSBP. (c) In accordance with the Small Business Act, developmental assistance as described in 1819.7205(c) and ´ ´ provided by a mentor to its protege ´ ´ pursuant to a mentor-protege agreement may not be a basis for determining affiliation or control (either direct or indirect) between the parties. (d) Entities that apply for participation and are not approved will be provided the reasons and an opportunity to submit additional information for reconsideration. (e) Entities approved for participation as a mentor in the NASA program must resubmit a mentor application every six (6) years for review and approval by NASA OSBP. (f) A template of the mentor application is available at: http:// www.osbp.nasa.gov. 1819.7204 ´ ´ Protege selection. (a) Mentors will be solely responsible ´ ´ for selecting proteges. Mentors are required to identify and select concerns that are defined as an SDB, womenowned small business, HUBZone small business, veteran-owned or servicedisabled veteran-owned small business, Historically Black Colleges and Universities, minority institutions of higher education, an active NASA SBIR Phase II company or a nonprofit agency employing the blind or severely disabled. ´ ´ (b) The selection of proteges by a mentor may not be protested, except as in paragraph (c) of this section. (c) In the event of a protest regarding the size or eligibility of an entity ´ ´ selected to be a protege, the mentor must refer the protest to the SBA to resolve in accordance with 13 CFR part 121 (with respect to size) or 13 CFR part 124 (with respect to disadvantaged status). ´ ´ (d) A protege may have only one ´ ´ active NASA mentor-protege agreement, and may not participate in the NASA Program more than two times as a ´ ´ protege. E:\FR\FM\29MYR1.SGM 29MYR1 25674 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations ´ ´ (e) Proteges will be required to submit ´ ´ a protege application concurrently with the agreement submission. This application will include the following information: (1) A summary of the entity’s historical and recent activities, including annual revenue and number of employees. (2) The total dollar amount of NASA contracts and subcontracts that the entity received during the two preceding fiscal years. (Show prime contracts and subcontracts separately per year.) (3) The total dollar amount of all other Federal agency contracts and subcontracts that the company received during the two preceding fiscal years. (Show prime contracts and subcontracts separately per year.) (4) The total dollar amount of subcontracts that the company awarded under NASA contracts during the two preceding fiscal years. (5) The total dollar amount of subcontracts that the company awarded under all other Federal agency contracts during the two preceding fiscal years. tjames on PRODPC75 with RULES 1819.7205 ´ ´ Mentor-protege agreements. (a) The agreements shall be structured after the mentor completes an assessment of the developmental needs ´ ´ of the protege and a mutual agreement is reached regarding the developmental assistance to be permitted to address ´ ´ those needs and enhance the protege’s ability to perform successfully under contracts and/or subcontracts. (b) A mentor shall not require a ´ ´ ´ ´ protege to enter into a mentor-protege agreement as a condition for award of a contract by the mentor, including a subcontract under a NASA contract awarded to the mentor. ´ ´ (c) The mentor-protege agreement may provide for the mentor to furnish any or all of the following types of developmental assistance: (1) Assistance by the mentor’s personnel in— (i) General business management, including organizational management, financial management, personnel management, marketing, business development, and overall business planning; (ii) Engineering, environmental and technical matters; and (iii) Any other assistance designed to ´ ´ develop the capabilities of the protege under the developmental program. (2) Award of subcontracts under NASA contracts or other contracts on a noncompetitive basis. (3) Advance payments under such subcontracts. The mentor must administer advance payments when first VerDate Nov<24>2008 15:25 May 28, 2009 Jkt 217001 approved by NASA in accordance with FAR Subpart 32.4, Advance Payments for Non-Commercial Items. (4) Loans. ´ ´ (5) Investment(s) in the protege in exchange for an ownership interest in ´ ´ the protege, not to exceed 10 percent of the total ownership interest. Investments may include, but are not limited to, cash, stock, and contributions in kind. (6) Assistance that the mentor obtains ´ ´ for the protege from one or more of the following: (i) Small Business Development Centers established pursuant to Section 21 of the Small Business Act (15 U.S.C. 648). (ii) Entities providing procurement technical assistance pursuant to 10 U.S.C. Chapter 142 (Procurement Technical Assistance Centers). (iii) Historically Black Colleges and Universities. (iv) Minority institutions of higher education. (d) Developmental assistance provided under an approved mentor´ ´ protege agreement is distinct from, and must not duplicate, any effort that is the normal and expected product of the award and administration of the mentor’s subcontracts. Costs associated with the latter must be accumulated and charged in accordance with the contractor’s approved accounting practices; they are not considered developmental assistance costs eligible for credit under the Program. ´ ´ (e) A template of the mentor-protege agreement is available at http:// www.osbp.nasa.gov. (f) A developmental program specifying the type of assistance the ´ ´ mentor will provide to the protege and how that assistance will— ´ ´ (1) Increase the protege’s ability to participate in NASA, Federal, and/or commercial contracts and subcontracts; and (2) Increase small business subcontracting opportunities in industry ´ ´ categories where eligible proteges or other small business firms are not dominant in the company’s vendor base; ´ ´ (g) Factors to assess the protege’s developmental progress under the Program, including specific milestones for providing each element of the identified assistance; (h) An estimate of the dollar value and type of subcontracts that the mentor ´ ´ will award to the protege, and the period of time over which the subcontracts will be awarded; (i) A statement from the mentor and ´ ´ protege indicating a commitment to comply with the requirements for reporting in accordance with 1819.7212 and for review of the agreement during the duration of the agreement, and ´ ´ additionally for the protege, two years thereafter; (j) Procedures to terminate the agreement in accordance with 1819.7210; (k) A provision that the term for the agreement will not exceed 3 years for a credit agreement; (l) Additional terms and conditions as may be agreed upon by both parties; and (m) Signatures and dates for both ´ ´ parties to the mentor-protege agreement. 1819.7206 1819.7207 Agreement submission and approval process. Agreement contents. ´ ´ Each mentor-protege agreement will contain the following elements: (a) The name, address, e-mail address, and telephone number of the mentor ´ ´ and protege points of contact; (b) The NAICS code(s) that represent the contemplated supplies or services to ´ ´ be provided by the protege to the mentor and a statement that, at the time the agreement is submitted for approval, ´ ´ the protege, if an SDB, a women-owned small business, a HUBZone small business, or a veteran-owned, a servicedisabled veteran-owned small business concern or a NASA SBIR Phase II Company, does not exceed the size standard for the appropriate NAICS code; (c) The DUNS number of the mentor ´ ´ and protege; (d) A statement that the mentor is eligible to participate in accordance with 1819.7202(a); ´ ´ (e) A statement that the protege is eligible to participate in accordance with 1819.7202(b); PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 (a) To participate in the Program, entities approved as mentors in accordance with 1819.7203, will submit to a Small Business Specialist at a NASA Center— ´ ´ (1) A signed mentor-protege agreement pursuant to 1819.7206; (2) The estimated cost of the technical assistance to be provided, broken out per year and per task, in a separate cost volume; and (3) NASA OSBP may require additional information as requested upon agreement submission. ´ ´ (b) The mentor-protege agreement must be approved by the Assistant Administrator, NASA OSBP, prior to the mentor incurring eligible costs for developmental assistance provided to ´ ´ the protege. (c) The cognizant NASA center will issue a contract modification, if justified prior to the mentor incurring costs for ´ ´ developmental assistance to the protege. E:\FR\FM\29MYR1.SGM 29MYR1 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 1819.7208 Award Fee Pilot Program. (a) Mentors will be eligible to earn a separate award fee associated with the provision of developmental assistance ´ ´ to NASA SBIR Phase II Proteges only. The award fee will be assessed at the ´ ´ end of the Mentor-Protege agreement period. (b) The overall developmental assistance performance of NASA contractors, in promoting the use of small businesses as subcontractors, will be a required evaluation factor in award fee plans. (c) Evaluation criteria to determine the award fee would include: (1) Active participation in the Program; (2) The amount and quality of developmental assistance provided; (3) Subcontracts awarded to small businesses and others; ´ ´ (4) Success of the proteges in increasing their business as a result of receiving developmental assistance; and (5) Accomplishment of any other ´ ´ activity as related to the mentor-protege relationship. (d) The Award Fee Pilot Program is an addition to the credit agreement. Participants that are eligible for award fee will also receive credit as described in 1819.7209. tjames on PRODPC75 with RULES 1819.7209 Credit agreements. (a) The credit permits the mentor to include the cost it expends on a mentor´ ´ protege agreement as part of any subcontracting plan pursuant to the clause at FAR 52.219–9, Small Business Subcontracting Plan. The following provisions apply to all credit mentor´ ´ protege agreements: (1) Developmental assistance costs incurred by a mentor for providing ´ ´ assistance to a protege pursuant to an ´ ´ approved credit mentor-protege agreement may be credited as if the costs were incurred in a subcontract ´ ´ awarded to that protege. Credit is given for the sole purpose of determining the performance of the mentor in attaining an applicable subcontracting goal established under any contract containing a subcontracting plan pursuant to the clause at FAR 52.219– 9, Small Business Subcontracting Plan. (2) Other costs that have been reimbursed through inclusion in indirect expense pools may also be credited as subcontract awards for determining the performance of the mentor in attaining an applicable subcontracting goal established under any contract containing a subcontracting plan. (3) The amount of credit a mentor may receive for developmental VerDate Nov<24>2008 15:25 May 28, 2009 Jkt 217001 assistance costs must be reported on a one-to-one basis for all dollars spent. 1819.7210 Agreement terminations. (a) Agreements may be terminated for cause or on a voluntary basis by the ´ ´ mentor or the protege. The procedures for agreement termination are outlined ´ ´ in the mentor-protege agreement template available at http:// www.osbp.nasa.gov. (b) NASA OSBP maintains the right to terminate an agreement if milestones provided under the original agreement submission, pursuant to 1819.7206(g), are not satisfactorily achieved, or for other reasons as determined necessary by the NASA OSBP. 1819.7211 Loss of eligibility. (a) If the mentor is suspended or debarred while performing under an ´ ´ approved mentor-protege agreement, the mentor— (1) May not be reimbursed or take credit for any costs of providing ´ ´ developmental assistance to its protege, incurred more than 30 days after the imposition of such suspension or debarment; and (2) Must promptly give notice of its ´ ´ suspension or debarment to its protege and NASA OSBP. ´ ´ (b) If the protege is suspended or debarred while performing under an ´ ´ approved mentor-protege agreement or ´ ´ the SBA determines that a protege is ineligible according to program eligibility requirements, then— (1) The mentor shall not be able to receive credit for any of the costs of ´ ´ providing assistance to the protege after the date of the determination regarding ´ ´ the protege’s loss of eligibility; and (2) The mentor shall not be eligible to receive an award fee for the assistance ´ ´ provided to the protege after the date of the determination regarding the ´ ´ protege’s suspension or debarment, if participating in the Award Fee Pilot Program. ´ ´ (c) If the protege is a Historically Black College or University, or other minority institution of higher education that loses either their accredited or minority status, then: (1) The mentor shall not be able to receive credit for any the costs of ´ ´ providing assistance to the protege after the date of the determination regarding ´ ´ the protege’s status. (2) The mentor shall not be eligible to receive an award fee for the assistance ´ ´ provided to the protege after the date of the determination regarding the ´ ´ protege’s loss of accreditation or minority status. PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 1819.7212 25675 Reporting requirements. (a) Mentors must report on the progress made under active mentor´ ´ protege agreements semiannually throughout the term of the agreement. (b) Reports are due 30 days after the end of each six-month period of performance commencing with the start of the agreement. (c) Each semiannual report must include the following data on ´ ´ performance under the mentor-protege agreement: (1) Expenditures by the mentor. (2) The number and dollar value of ´ ´ subcontracts awarded to the protege. (3) Description of developmental assistance provided, including milestones achieved. (4) Impact of the agreement in terms of capabilities enhanced, certifications received, and/or technology transferred. ´ ´ (d) Semiannually, the protege must provide an independently developed progress report using the semiannual report template, on the progress made during the prior six months by the ´ ´ protege in employment, revenues, and participation in NASA contracts during each year of the Program participation ´ ´ term. The Protege must also provide an additional post-agreement report for each of the two years following the expiration of the Program participation term. ´ ´ (e) The protege semiannual report required by paragraph (d) of this section may be provided with the mentor semiannual report required by paragraph (a) of this section, or submitted separately. (f) Reports for all agreements must be submitted to the NASA OSBP Mentor´ ´ Protege Program Manager, the mentor’s cognizant administrative contracting officer, and their cognizant center small business specialist. (g) Templates for the semiannual report and the Post-Agreement report and guidance for their submission are available at: http://www.osbp.nasa.gov. 1819.7213 Performance reviews. (a) NASA OSBP will conduct annual performance reviews of the progress and accomplishments realized under ´ ´ approved mentor-protege agreements. These reviews will include verification of— (1) All costs incurred by the mentor under the agreement to determine if they were reasonable in the provision of ´ ´ developmental assistance to the protege ´ ´ in accordance with the mentor-protege agreement and applicable regulations and procedures; and ´ ´ (2) The mentor’s and protege’s ´ ´ reported progress made by the protege in employment, revenues, and E:\FR\FM\29MYR1.SGM 29MYR1 25676 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations participation in NASA contracts during the program participation term. 1819.7214 success. Measurement of program (a) NASA will measure the overall success of the Program by the extent to which the Program results in— (1) An increase in the number and dollar value of contracts and ´ ´ subcontract awards to proteges (under NASA contracts, contracts awarded by other Federal agencies, and commercial contracts) from the date of their entry into the program until two years after the conclusion of the agreement; (2) An increase in the number and dollar value of subcontracts awarded to ´ ´ ´ ´ a protege (or former protege) by its mentor (or former mentor); and ´ ´ (3) An increase in the protege’s number of employees from the date of entry into the program until two years after the completion of the agreement. 1819.7215 Solicitation provision and contract clauses. (a) The contracting officer shall insert the clause at 1852.219–77, NASA ´ ´ Mentor-Protege Program, in: (1) Any contract that includes the clause at FAR 52.219–9, Small Business Subcontracting Plan. (b) The contracting officer shall insert the clause at 1852.219–79, Mentor Requirements and Evaluation, in contracts where the prime contractor is a participant in the NASA Mentor´ ´ Protege Program. PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. Sections 1852.219–77 and 1852.219–79 are revised to read as follows: ■ 1852.219–77 Program. ´ ´ NASA Mentor-Protege (1) Mentors, which are large businesses and prime contractors with at least one active and approved NASA subcontracting plan; ´ ´ (2) Proteges, which are subcontractors ´ ´ to the prime contractor. Proteges must qualify as certified small disadvantaged business concerns, women-owned small business concerns, veteran-owned or service-disabled veteran-owned small business concerns, HUBZone small business concerns, Historically Black Colleges and Universities, minority institutions of higher education, meeting the qualifications defined in FAR Part 2, Definitions of Parts and Term, active NASA SBIR Phase II companies or nonprofit agencies employing people who are blind or severely disabled as defined in 41 CFR Chapter 51. ´ ´ (3) Mentor-protege agreements endorsed by the cognizant NASA centers and approved by the NASA Office of Small Business Programs (OSBP); (4) In contracts with award fee incentives, potential for payment of an award fee for voluntary participation and successful performance in the ´ ´ Mentor-Protege Program, in accordance with NFS 1819.7208. (c) Mentor participation in the Program, described in NFS 1819.72, means providing technical, managerial ´ ´ and financial assistance to aid proteges in developing requisite high-tech expertise and business systems to compete for and successfully perform NASA contracts and subcontracts. (d) Contractors interested in participating in the program are encouraged to contact the NASA OSBP, Washington, DC 20546, (202) 358–2088, for further information. (End of clause) 1852.219–79 Evaluation. Mentor Requirements and As prescribed in 1819.7215, insert the following clause: As prescribed in 1819.7215, insert the following clause: ´ ´ NASA Mentor-Protege Program (Month/ Year) Mentor Requirements and Evaluation (Month/Year) (a) The purpose of the NASA Mentor´ ´ Protege Program is for a NASA prime contractor to provide developmental assistance to certain subcontractors ´ ´ qualifying as proteges. ´ ´ Eligible proteges include certified small disadvantaged business concerns, women-owned small business concerns, tjames on PRODPC75 with RULES (a) Prime contractors are encouraged to participate in the NASA Mentor´ ´ Protege Program for the purpose of providing developmental assistance to ´ ´ eligible protege entities to enhance their capabilities and increase their participation in NASA contracts. (b) The Program consists of: VerDate Nov<24>2008 15:25 May 28, 2009 Jkt 217001 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 veteran-owned or service-disabled veteran-owned small business concerns, HUBZone small business concerns, Historically Black Colleges and Universities, minority institutions of higher education, as defined in FAR Part 2, Definitions of Parts and Terms, active NASA SBIR Phase II companies and nonprofit agencies employing the blind or severely handicapped as defined in 41 CFR Chapter 51. (b) NASA will evaluate the contractor’s performance on the following factors. If this contract includes an award fee incentive, this assessment will be accomplished as part of the fee evaluation process. (1) Specific actions taken by the contractor, during the evaluation period, ´ ´ to increase the participation of proteges as subcontractors and suppliers; (2) Specific actions taken by the contractor during this evaluation period to develop the technical and corporate ´ ´ administrative expertise of a protege as defined in the agreement; (3) To what extent the mentor and ´ ´ protege have met the developmental milestones outlined in the agreement; and (4) To what extent the entities’ ´ ´ participation in the Mentor-Protege ´ ´ Program resulted in the protege receiving competitive contract(s) and subcontract(s) from private firms and agencies other than the mentor. (c) Semiannual reports shall be ´ ´ submitted by the mentor and the protege to the cognizant NASA center and NASA Headquarters Office of Small Business Programs (OSBP), following the semiannual report template found on the Web site at http:// www.osbp.nasa.gov. (d) The mentor will notify the cognizant NASA center and NASA OSBP in writing, at least 30 days in advance of the mentor’s intent to voluntarily withdraw from the program ´ ´ or upon receipt of a protege’s notice to withdraw from the Program; (e) At the end of each year in the ´ ´ Mentor-Protege Program, the mentor ´ ´ and protege, as appropriate, will ´ ´ formally brief the NASA Mentor-Protege program manager, the technical program manager, and the contracting officer during a formal program review regarding Program accomplishments, as it pertains to the approved agreement. E:\FR\FM\29MYR1.SGM 29MYR1 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations tjames on PRODPC75 with RULES (f) NASA may terminate mentor´ ´ protege agreements for good cause, ´ ´ thereby excluding mentors or proteges from participating in the NASA Mentor´ ´ Protege program. These actions shall be approved by the NASA OSBP. NASA shall terminate an agreement by VerDate Nov<24>2008 15:25 May 28, 2009 Jkt 217001 delivering to the contractor a letter specifying the reason for termination and the effective date. Termination of an agreement does not constitute a termination of the subcontract between ´ ´ the mentor and the protege. A plan for accomplishing the subcontract effort PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 25677 should the agreement be terminated shall be submitted with the agreement. (End of clause) [FR Doc. E9–12487 Filed 5–28–09; 8:45 am] BILLING CODE 7510–01–P E:\FR\FM\29MYR1.SGM 29MYR1

Agencies

[Federal Register Volume 74, Number 102 (Friday, May 29, 2009)]
[Rules and Regulations]
[Pages 25671-25677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12487]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1819 and 1852

RIN 2700-AD41


NASA Mentor-Prot[eacute]g[eacute] Program

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the NASA FAR Supplement (NFS) to update 
the procedures for NASA's Mentor-Prot[eacute]g[eacute] program. The 
changes will streamline the program; align the mentoring to technical 
skills; expand the program to Veteran-owned, HUBZone, and NASA Small 
Business Innovation Research (SBIR) Phase II small businesses; and 
include award fee incentives.

DATES: Effective date: May 29, 2009.
    Applicability date: NASA's revised procedures for the Mentor-
Prot[eacute]g[eacute] program will be effective for new applications 
that are submitted on or after May 29, 2009.

FOR FURTHER INFORMATION CONTACT: Sandra Morris, Office of Procurement, 
Contract Management Division, (202) 358-0532; e-mail: 
Sandra.Morris@nasa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    On September 19, 2008, the National Aeronautics and Space 
Administration (NASA) published in the Federal Register (73 FR 54340-
54345), a proposed rule, with request for comments, to amend its 
regulations governing the NASA Mentor-Prot[eacute]g[eacute] Program. 
This program is authorized under Title 42, U.S.C., 2473(c)(1). 
Specifically, the proposed rule defined the new program's eligibility 
requirements, and agreement submission and approval process. It also 
introduced mentor award fee incentives and explained the calculated 
subcontracting credit pursuant to FAR 52.219-9, Small Business 
Subcontracting Plan.

Discussion of Comments on the Proposed Rule

    The comment period for the proposed rule closed on November 18, 
2008. NASA received substantive comments from eight commenters. One of 
the commenters opposed NASA's approach to implementation of the 
proposed rule, and the remaining seven supported it.
    The commenter who opposed NASA's approach as set forth in the 
proposed rule felt that there are already adequate numbers of 
specialized programs for various small businesses, and stated that they 
adversely impact the opportunities for regular small business entities. 
Of the seven commenters who generally supported the proposed rule, 
about half sought to be included in the mentoring program or requested 
referrals, and the other half requested that specific language be added 
to the rule.
    Based on NASA's evaluation of the comments and the purpose of the 
rule, NASA modified the proposed rule in response to issues raised in 
the comments. As discussed below, this final rule provides definitions 
and clarifications of NASA's Mentor Prot[eacute]g[eacute] program. The 
following is an analysis of the substantive comments and NASA's 
corresponding responses.

[[Page 25672]]

Requirements To Qualify as a Prot[eacute]g[eacute]

    Three of the commenters expressed the view that the proposed 
eligibility requirements in section 1819.7202(b) Eligibility of 
Prot[eacute]g[eacute]s, should be expanded to include non-profit 
agencies for the blind or a qualified nonprofit agency for the severely 
disabled. The suggestion was made to add the following under paragraph 
(b)(1) ``or a qualified non-profit agency for the blind or a qualified 
nonprofit agency for other severely disabled as defined in 41 CFR 51-4 
under the Ability One Program.''
    Response: NASA has modified section 1819.7202 ``Eligibility'' by 
adding under paragraph (b)(1) ``Eligibility of Prot[eacute]g[eacute], 
nonprofit agencies employing people who are blind or severely 
disabled''.

Award Fee

    One commenter asked for additional clarification regarding award 
fees. According to this commenter, the new rule appears to eliminate 
the existing award fee provisions and introduces a new award fee 
incentive for companies which mentor SBIR II prot[eacute]g[eacute] 
firms. The commenter states that 1819.7215(b)(4) provides that ``[i]n 
contracts with award fee incentives, potential for payment of an award 
fee for voluntary participation and successful performance in the 
Mentor-Prot[eacute]g[eacute] Program, in accordance with NFS 
1819.7209.'' The commenter further notes that the new 1819.7209 
addresses credit agreements and reimbursement of certain costs 
associated with providing developmental assistance, and asks whether 
award fees will be limited to arrangements with SBIR II companies, or 
if preexisting award fees will still be available. Could the agency 
mean that when a prime contract contains an award fee incentive, 
participation as a mentor will be favorably factored into the award fee 
determination?
    Response: The correct citation for the referenced language is 
1852.219-77 rather than 1819.7215(b)(4). The award fee evaluation 
criteria as stated in NFS 1816.405-274(g)(3) remains unchanged. NFS 
1816.405-274(g)(3) states that the contractor's achievements in 
subcontracting high technology efforts as well as the contractor's 
performance under the Mentor-Prot[eacute]g[eacute] Program may be 
evaluated.
    In addition to the award fee evaluation criteria stated in NFS 
1816.405-274(g)(3), the new Mentor-Prot[eacute]g[eacute] program in 
1819.7208 has been added and applies when the prot[eacute]g[eacute] is 
a NASA SBIR Phase II contractor.

DOD Mentor-Prot[eacute]g[eacute] Reciprocity

    Another commenter asks whether reciprocity to the DOD Mentor-
Prot[eacute]g[eacute] program would be eliminated under the proposed 
rule.
    Response: This rule removes the DOD reciprocity previously 
referenced in 1819.7204 ``Transportability of features from the 
Department of Defense (DOD) Mentor-Prot[eacute]g[eacute] Program to 
NASA contractors''.

Self-Certification

    One commenter requested confirmation that prot[eacute]g[eacute] 
companies will no longer be allowed to self-certify.
    Response: Prot[eacute]g[eacute] companies are still allowed to 
self-certify.

Prot[eacute]g[eacute] Selection Process

    A commenter asked NASA to confirm the change that mentors would be 
required to select prot[eacute]g[eacute] companies that are SDBs, WOSB, 
HUBZone SBs, VO/SDVO SBs, HBCUs, MIs or SBIR II companies. The 
preexisting rule stated that it would ``encourage'' as opposed to 
``require'' this selection.
    Response: Eligible prot[eacute]g[eacute] companies must be one of 
the types of companies listed in section 1819.7202. In response to 
comments received, NASA has added nonprofit agencies employing people 
who are blind or severely disabled to the list of eligible 
prot[eacute]g[eacute]s.

SBIR Phase II Prot[eacute]g[eacute]

    One commenter states that because the rule requires that companies 
under the award fee pilot have already been selected for SBIR Phase II 
contracts with NASA, it does not explain how a prime contractor mentor 
subcontracts with a SBIR II prot[eacute]g[eacute], which is a prime 
contractor in its own right.
    Response: The SBIR Phase II contractor can hold the SBIR
    Phase II contract and be eligible for developmental assistance in 
the form of noncompetitive award of subcontracts under NASA contracts 
in accordance with 1819.7205(c)(2).

B. Regulatory Flexibility Act

    NASA certifies that this proposed rule will not 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., 
because participation in the mentor prot[eacute]g[eacute] program is 
voluntary and does not impose an economic impact beyond that addressed 
in the FAC 2005-14 publication of the FAR final rule.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) is applicable because 
the NFS changes impose information collection requirements in the form 
of applications and report submissions. The information collection has 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501, et seq. via control number 2007-0078.

List of Subjects in 48 CFR Parts 1819 and 1852

    Government procurement.

William P. McNally,
Assistant Administrator for Procurement.

0
Accordingly, 48 CFR parts 1819 and 1852 are amended as follows:
0
1. The authority citation for 48 CFR parts 1819 and 1852 continues to 
read as follows:

    Authority: 42 U.S.C. 2473(c)(1).

PART 1819--SMALL BUSINESS PROGRAMS

0
2. Subpart 1819-72 is revised to read as follows:
Subpart 1819.72--NASA Mentor-Prot[eacute]g[eacute] Program
1819.7201 Scope of subpart.
1819.7202 Eligibility.
1819.7203 Mentor approval process.
1819.7204 Prot[eacute]g[eacute] selection.
1819.7205 Mentor-prot[eacute]g[eacute] agreements.
1819.7206 Agreement contents.
1819.7207 Agreement submission and approval process.
1819.7208 Award Fee Pilot Program.
1819.7209 Credit agreements.
1819.7210 Agreement terminations.
1819.7211 Loss of eligibility.
1819.7212 Reporting requirements.
1819.7213 Performance reviews.
1819.7214 Measurement of program success
1819.7215 Solicitation provision and contract clauses.

Subpart 1819.72--NASA Mentor-Prot[eacute]g[eacute] Program


1819.7201  Scope of subpart.

    (a) This subpart implements the NASA Mentor-Prot[eacute]g[eacute] 
Program (hereafter referred to as the Program) established under the 
authority of Title 42, U.S.C., 2473(c)(1). The purpose of the Program 
is to:
    (1) Provide incentives to NASA contractors, performing under at 
least one active approved subcontracting plan negotiated with NASA to 
assist prot[eacute]g[eacute]s in enhancing their capabilities to 
satisfy NASA and other contract and subcontract requirements;
    (2) Increase the overall participation of prot[eacute]g[eacute]s as 
subcontractors and suppliers under NASA contracts, other Federal agency 
contracts, and commercial contracts; and
    (3) Foster the establishment of long-term business relationships 
between prot[eacute]g[eacute]s and mentors.
    (b) Under the Program, eligible entities approved as mentors will 
enter into mentor-prot[eacute]g[eacute] agreements with

[[Page 25673]]

eligible prot[eacute]g[eacute]s to provide appropriate developmental 
assistance to enhance the capabilities of the prot[eacute]g[eacute]s to 
perform as subcontractors and suppliers. NASA may provide the mentor 
award fee incentives. Additionally, this subpart explains the 
calculated subcontracting credit for a mentor-prot[eacute]g[eacute] 
program pursuant to FAR 52.219-9, Small Business Subcontracting Plan.


1819.7202  Eligibility.

    (a) Eligibility of Mentors: To be eligible to participate as a 
mentor, an entity must be--
    (1) A large prime contractor performing under contracts with at 
least one approved subcontracting plan negotiated with NASA, pursuant 
to FAR Subpart 19.7, The Small Business Subcontracting Program. A 
contractor may apply to become a mentor even if they currently are not 
performing under a NASA contract with an approved subcontracting plan, 
if they are currently performing for another Federal Agency under a 
contract with an approved subcontracting plan. A NASA mentor-
prot[eacute]g[eacute] agreement will not be approved until such time 
the mentor company is performing under a NASA contract with an approved 
subcontracting plan; and
    (2) A contractor eligible for receipt of Government contracts. (i) 
An entity may not be approved for participation in the Program as a 
mentor if, at the time of requesting participation in the program, it 
is currently debarred or suspended from contracting with the Federal 
Government pursuant to FAR Subpart 9.4, Debarment, Suspension, and 
Ineligibility.
    (b) Eligibility of Prot[eacute]g[eacute]s: To be eligible to 
participate as a prot[eacute]g[eacute], an entity must--
    (1) Be classified as a Small Disadvantaged Business (SDB), a women-
owned small business, a HUBZone small business, a veteran-owned or 
service-disabled veteran-owned small business, an historically black 
college and university, minority institution of higher education, as 
defined in FAR Part 2, Definitions of Parts and Terms, an active NASA 
SBIR Phase II company, or a non-profit agency employing people who are 
blind or severely disabled as defined in 41 CFR Chapter 51.
    (2) Be eligible for the award of Federal contracts; and
    (3) Be a small business according to the Small Business 
Administration (SBA) size standard for the North American Industry 
Classification System (NAICS) code that represents the contemplated 
supplies or services to be provided by the prot[eacute]g[eacute] to the 
mentor if the prot[eacute]g[eacute] is representing itself as a women-
owned small business, HUBZone small business, or a veteran-owned or 
service-disabled veteran-owned small business.
    (4) Except for SDBs, a prot[eacute]g[eacute] firm may self-certify 
to a mentor firm that it meets the requirements set forth in paragraph 
(a) of this section. Mentors may rely in good faith on written 
representations by potential prot[eacute]g[eacute]s that they meet the 
specified eligibility requirements. SDB status eligibility and 
documentation requirements are determined according to FAR 19.304.


1819.7203  Mentor approval process.

    (a) An entity seeking to participate as a mentor must apply to the 
NASA Headquarters Office of Small Business Programs (OSBP), to 
establish its initial eligibility and approval as a mentor, prior to 
submission of a mentor-prot[eacute]g[eacute] agreement.
    (b) The application must provide the following information:
    (1) A statement that the entity is currently performing under at 
least one active approved subcontracting plan negotiated with NASA 
pursuant to FAR 19.702, The Small Business Subcontracting Program, and 
that the entity is currently eligible for the award of Government 
contracts.
    (2) A summary of the entity's historical and recent activities and 
accomplishments under its small and disadvantaged business utilization 
program.
    (3) The total dollar amount of NASA contracts and subcontracts that 
the entity received during the two preceding fiscal years. (Show prime 
contracts and subcontracts separately per year.)
    (4) The total dollar amount of all other Federal agency contracts 
and subcontracts that the entity received during the two preceding 
fiscal years. (Show prime contracts and subcontracts separately per 
year.)
    (5) The total dollar amount of subcontracts that the entity awarded 
under NASA contracts during the two preceding fiscal years.
    (6) The total dollar amount of subcontracts that the entity awarded 
under all other Federal agency contracts during the two preceding 
fiscal years.
    (7) The total dollar amount and percentage of subcontracts that the 
entity awarded to all SDB, women-owned small businesses, HUBZone small 
businesses, veteran-owned and service-disabled veteran-owned small 
businesses, Historically Black Colleges, and Universities, minority 
institutions of higher education and nonprofit agencies employing 
people who are blind and severely disabled under NASA contracts and 
other Federal agency contracts during the two preceding fiscal years. 
If the entity is presently required to submit a Summary Subcontracting 
Report via the Government Electronic Subcontracting Reporting System 
(eSRS), the application must include copies of the final reports for 
the two preceding fiscal years.
    (8) Information on the entity's ability to provide developmental 
assistance to its eligible prot[eacute]g[eacute]s.
    (9) Any additional information as requested by NASA OSBP.
    (c) In accordance with the Small Business Act, developmental 
assistance as described in 1819.7205(c) and provided by a mentor to its 
prot[eacute]g[eacute] pursuant to a mentor-prot[eacute]g[eacute] 
agreement may not be a basis for determining affiliation or control 
(either direct or indirect) between the parties.
    (d) Entities that apply for participation and are not approved will 
be provided the reasons and an opportunity to submit additional 
information for reconsideration.
    (e) Entities approved for participation as a mentor in the NASA 
program must resubmit a mentor application every six (6) years for 
review and approval by NASA OSBP.
    (f) A template of the mentor application is available at: http://www.osbp.nasa.gov.


1819.7204  Prot[eacute]g[eacute] selection.

    (a) Mentors will be solely responsible for selecting 
prot[eacute]g[eacute]s. Mentors are required to identify and select 
concerns that are defined as an SDB, women-owned small business, 
HUBZone small business, veteran-owned or service-disabled veteran-owned 
small business, Historically Black Colleges and Universities, minority 
institutions of higher education, an active NASA SBIR Phase II company 
or a nonprofit agency employing the blind or severely disabled.
    (b) The selection of prot[eacute]g[eacute]s by a mentor may not be 
protested, except as in paragraph (c) of this section.
    (c) In the event of a protest regarding the size or eligibility of 
an entity selected to be a prot[eacute]g[eacute], the mentor must refer 
the protest to the SBA to resolve in accordance with 13 CFR part 121 
(with respect to size) or 13 CFR part 124 (with respect to 
disadvantaged status).
    (d) A prot[eacute]g[eacute] may have only one active NASA mentor-
prot[eacute]g[eacute] agreement, and may not participate in the NASA 
Program more than two times as a prot[eacute]g[eacute].

[[Page 25674]]

    (e) Prot[eacute]g[eacute]s will be required to submit a 
prot[eacute]g[eacute] application concurrently with the agreement 
submission. This application will include the following information:
    (1) A summary of the entity's historical and recent activities, 
including annual revenue and number of employees.
    (2) The total dollar amount of NASA contracts and subcontracts that 
the entity received during the two preceding fiscal years. (Show prime 
contracts and subcontracts separately per year.)
    (3) The total dollar amount of all other Federal agency contracts 
and subcontracts that the company received during the two preceding 
fiscal years. (Show prime contracts and subcontracts separately per 
year.)
    (4) The total dollar amount of subcontracts that the company 
awarded under NASA contracts during the two preceding fiscal years.
    (5) The total dollar amount of subcontracts that the company 
awarded under all other Federal agency contracts during the two 
preceding fiscal years.


1819.7205  Mentor-prot[eacute]g[eacute] agreements.

    (a) The agreements shall be structured after the mentor completes 
an assessment of the developmental needs of the prot[eacute]g[eacute] 
and a mutual agreement is reached regarding the developmental 
assistance to be permitted to address those needs and enhance the 
prot[eacute]g[eacute]'s ability to perform successfully under contracts 
and/or subcontracts.
    (b) A mentor shall not require a prot[eacute]g[eacute] to enter 
into a mentor-prot[eacute]g[eacute] agreement as a condition for award 
of a contract by the mentor, including a subcontract under a NASA 
contract awarded to the mentor.
    (c) The mentor-prot[eacute]g[eacute] agreement may provide for the 
mentor to furnish any or all of the following types of developmental 
assistance:
    (1) Assistance by the mentor's personnel in--
    (i) General business management, including organizational 
management, financial management, personnel management, marketing, 
business development, and overall business planning;
    (ii) Engineering, environmental and technical matters; and
    (iii) Any other assistance designed to develop the capabilities of 
the prot[eacute]g[eacute] under the developmental program.
    (2) Award of subcontracts under NASA contracts or other contracts 
on a noncompetitive basis.
    (3) Advance payments under such subcontracts. The mentor must 
administer advance payments when first approved by NASA in accordance 
with FAR Subpart 32.4, Advance Payments for Non-Commercial Items.
    (4) Loans.
    (5) Investment(s) in the prot[eacute]g[eacute] in exchange for an 
ownership interest in the prot[eacute]g[eacute], not to exceed 10 
percent of the total ownership interest. Investments may include, but 
are not limited to, cash, stock, and contributions in kind.
    (6) Assistance that the mentor obtains for the 
prot[eacute]g[eacute] from one or more of the following:
    (i) Small Business Development Centers established pursuant to 
Section 21 of the Small Business Act (15 U.S.C. 648).
    (ii) Entities providing procurement technical assistance pursuant 
to 10 U.S.C. Chapter 142 (Procurement Technical Assistance Centers).
    (iii) Historically Black Colleges and Universities.
    (iv) Minority institutions of higher education.
    (d) Developmental assistance provided under an approved mentor-
prot[eacute]g[eacute] agreement is distinct from, and must not 
duplicate, any effort that is the normal and expected product of the 
award and administration of the mentor's subcontracts. Costs associated 
with the latter must be accumulated and charged in accordance with the 
contractor's approved accounting practices; they are not considered 
developmental assistance costs eligible for credit under the Program.
    (e) A template of the mentor-prot[eacute]g[eacute] agreement is 
available at http://www.osbp.nasa.gov.


1819.7206  Agreement contents.

    Each mentor-prot[eacute]g[eacute] agreement will contain the 
following elements:
    (a) The name, address, e-mail address, and telephone number of the 
mentor and prot[eacute]g[eacute] points of contact;
    (b) The NAICS code(s) that represent the contemplated supplies or 
services to be provided by the prot[eacute]g[eacute] to the mentor and 
a statement that, at the time the agreement is submitted for approval, 
the prot[eacute]g[eacute], if an SDB, a women-owned small business, a 
HUBZone small business, or a veteran-owned, a service-disabled veteran-
owned small business concern or a NASA SBIR Phase II Company, does not 
exceed the size standard for the appropriate NAICS code;
    (c) The DUNS number of the mentor and prot[eacute]g[eacute];
    (d) A statement that the mentor is eligible to participate in 
accordance with 1819.7202(a);
    (e) A statement that the prot[eacute]g[eacute] is eligible to 
participate in accordance with 1819.7202(b);
    (f) A developmental program specifying the type of assistance the 
mentor will provide to the prot[eacute]g[eacute] and how that 
assistance will--
    (1) Increase the prot[eacute]g[eacute]'s ability to participate in 
NASA, Federal, and/or commercial contracts and subcontracts; and
    (2) Increase small business subcontracting opportunities in 
industry categories where eligible prot[eacute]g[eacute]s or other 
small business firms are not dominant in the company's vendor base;
    (g) Factors to assess the prot[eacute]g[eacute]'s developmental 
progress under the Program, including specific milestones for providing 
each element of the identified assistance;
    (h) An estimate of the dollar value and type of subcontracts that 
the mentor will award to the prot[eacute]g[eacute], and the period of 
time over which the subcontracts will be awarded;
    (i) A statement from the mentor and prot[eacute]g[eacute] 
indicating a commitment to comply with the requirements for reporting 
in accordance with 1819.7212 and for review of the agreement during the 
duration of the agreement, and additionally for the 
prot[eacute]g[eacute], two years thereafter;
    (j) Procedures to terminate the agreement in accordance with 
1819.7210;
    (k) A provision that the term for the agreement will not exceed 3 
years for a credit agreement;
    (l) Additional terms and conditions as may be agreed upon by both 
parties; and
    (m) Signatures and dates for both parties to the mentor-
prot[eacute]g[eacute] agreement.


1819.7207  Agreement submission and approval process.

    (a) To participate in the Program, entities approved as mentors in 
accordance with 1819.7203, will submit to a Small Business Specialist 
at a NASA Center--
    (1) A signed mentor-prot[eacute]g[eacute] agreement pursuant to 
1819.7206;
    (2) The estimated cost of the technical assistance to be provided, 
broken out per year and per task, in a separate cost volume; and
    (3) NASA OSBP may require additional information as requested upon 
agreement submission.
    (b) The mentor-prot[eacute]g[eacute] agreement must be approved by 
the Assistant Administrator, NASA OSBP, prior to the mentor incurring 
eligible costs for developmental assistance provided to the 
prot[eacute]g[eacute].
    (c) The cognizant NASA center will issue a contract modification, 
if justified prior to the mentor incurring costs for developmental 
assistance to the prot[eacute]g[eacute].

[[Page 25675]]

1819.7208  Award Fee Pilot Program.

    (a) Mentors will be eligible to earn a separate award fee 
associated with the provision of developmental assistance to NASA SBIR 
Phase II Prot[eacute]g[eacute]s only. The award fee will be assessed at 
the end of the Mentor-Prot[eacute]g[eacute] agreement period.
    (b) The overall developmental assistance performance of NASA 
contractors, in promoting the use of small businesses as 
subcontractors, will be a required evaluation factor in award fee 
plans.
    (c) Evaluation criteria to determine the award fee would include:
    (1) Active participation in the Program;
    (2) The amount and quality of developmental assistance provided;
    (3) Subcontracts awarded to small businesses and others;
    (4) Success of the prot[eacute]g[eacute]s in increasing their 
business as a result of receiving developmental assistance; and
    (5) Accomplishment of any other activity as related to the mentor-
prot[eacute]g[eacute] relationship.
    (d) The Award Fee Pilot Program is an addition to the credit 
agreement. Participants that are eligible for award fee will also 
receive credit as described in 1819.7209.


1819.7209  Credit agreements.

    (a) The credit permits the mentor to include the cost it expends on 
a mentor-prot[eacute]g[eacute] agreement as part of any subcontracting 
plan pursuant to the clause at FAR 52.219-9, Small Business 
Subcontracting Plan. The following provisions apply to all credit 
mentor-prot[eacute]g[eacute] agreements:
    (1) Developmental assistance costs incurred by a mentor for 
providing assistance to a prot[eacute]g[eacute] pursuant to an approved 
credit mentor-prot[eacute]g[eacute] agreement may be credited as if the 
costs were incurred in a subcontract awarded to that 
prot[eacute]g[eacute]. Credit is given for the sole purpose of 
determining the performance of the mentor in attaining an applicable 
subcontracting goal established under any contract containing a 
subcontracting plan pursuant to the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.
    (2) Other costs that have been reimbursed through inclusion in 
indirect expense pools may also be credited as subcontract awards for 
determining the performance of the mentor in attaining an applicable 
subcontracting goal established under any contract containing a 
subcontracting plan.
    (3) The amount of credit a mentor may receive for developmental 
assistance costs must be reported on a one-to-one basis for all dollars 
spent.


1819.7210  Agreement terminations.

    (a) Agreements may be terminated for cause or on a voluntary basis 
by the mentor or the prot[eacute]g[eacute]. The procedures for 
agreement termination are outlined in the mentor-prot[eacute]g[eacute] 
agreement template available at http://www.osbp.nasa.gov.
    (b) NASA OSBP maintains the right to terminate an agreement if 
milestones provided under the original agreement submission, pursuant 
to 1819.7206(g), are not satisfactorily achieved, or for other reasons 
as determined necessary by the NASA OSBP.


1819.7211  Loss of eligibility.

    (a) If the mentor is suspended or debarred while performing under 
an approved mentor-prot[eacute]g[eacute] agreement, the mentor--
    (1) May not be reimbursed or take credit for any costs of providing 
developmental assistance to its prot[eacute]g[eacute], incurred more 
than 30 days after the imposition of such suspension or debarment; and
    (2) Must promptly give notice of its suspension or debarment to its 
prot[eacute]g[eacute] and NASA OSBP.
    (b) If the prot[eacute]g[eacute] is suspended or debarred while 
performing under an approved mentor-prot[eacute]g[eacute] agreement or 
the SBA determines that a prot[eacute]g[eacute] is ineligible according 
to program eligibility requirements, then--
    (1) The mentor shall not be able to receive credit for any of the 
costs of providing assistance to the prot[eacute]g[eacute] after the 
date of the determination regarding the prot[eacute]g[eacute]'s loss of 
eligibility; and
    (2) The mentor shall not be eligible to receive an award fee for 
the assistance provided to the prot[eacute]g[eacute] after the date of 
the determination regarding the prot[eacute]g[eacute]'s suspension or 
debarment, if participating in the Award Fee Pilot Program.
    (c) If the prot[eacute]g[eacute] is a Historically Black College or 
University, or other minority institution of higher education that 
loses either their accredited or minority status, then:
    (1) The mentor shall not be able to receive credit for any the 
costs of providing assistance to the prot[eacute]g[eacute] after the 
date of the determination regarding the prot[eacute]g[eacute]'s status.
    (2) The mentor shall not be eligible to receive an award fee for 
the assistance provided to the prot[eacute]g[eacute] after the date of 
the determination regarding the prot[eacute]g[eacute]'s loss of 
accreditation or minority status.


1819.7212  Reporting requirements.

    (a) Mentors must report on the progress made under active mentor-
prot[eacute]g[eacute] agreements semiannually throughout the term of 
the agreement.
    (b) Reports are due 30 days after the end of each six-month period 
of performance commencing with the start of the agreement.
    (c) Each semiannual report must include the following data on 
performance under the mentor-prot[eacute]g[eacute] agreement:
    (1) Expenditures by the mentor.
    (2) The number and dollar value of subcontracts awarded to the 
prot[eacute]g[eacute].
    (3) Description of developmental assistance provided, including 
milestones achieved.
    (4) Impact of the agreement in terms of capabilities enhanced, 
certifications received, and/or technology transferred.
    (d) Semiannually, the prot[eacute]g[eacute] must provide an 
independently developed progress report using the semiannual report 
template, on the progress made during the prior six months by the 
prot[eacute]g[eacute] in employment, revenues, and participation in 
NASA contracts during each year of the Program participation term. The 
Prot[eacute]g[eacute] must also provide an additional post-agreement 
report for each of the two years following the expiration of the 
Program participation term.
    (e) The prot[eacute]g[eacute] semiannual report required by 
paragraph (d) of this section may be provided with the mentor 
semiannual report required by paragraph (a) of this section, or 
submitted separately.
    (f) Reports for all agreements must be submitted to the NASA OSBP 
Mentor-Prot[eacute]g[eacute] Program Manager, the mentor's cognizant 
administrative contracting officer, and their cognizant center small 
business specialist.
    (g) Templates for the semiannual report and the Post-Agreement 
report and guidance for their submission are available at: http://www.osbp.nasa.gov.


1819.7213  Performance reviews.

    (a) NASA OSBP will conduct annual performance reviews of the 
progress and accomplishments realized under approved mentor-
prot[eacute]g[eacute] agreements. These reviews will include 
verification of--
    (1) All costs incurred by the mentor under the agreement to 
determine if they were reasonable in the provision of developmental 
assistance to the prot[eacute]g[eacute] in accordance with the mentor-
prot[eacute]g[eacute] agreement and applicable regulations and 
procedures; and
    (2) The mentor's and prot[eacute]g[eacute]'s reported progress made 
by the prot[eacute]g[eacute] in employment, revenues, and

[[Page 25676]]

participation in NASA contracts during the program participation term.


1819.7214  Measurement of program success.

    (a) NASA will measure the overall success of the Program by the 
extent to which the Program results in--
    (1) An increase in the number and dollar value of contracts and 
subcontract awards to prot[eacute]g[eacute]s (under NASA contracts, 
contracts awarded by other Federal agencies, and commercial contracts) 
from the date of their entry into the program until two years after the 
conclusion of the agreement;
    (2) An increase in the number and dollar value of subcontracts 
awarded to a prot[eacute]g[eacute] (or former prot[eacute]g[eacute]) by 
its mentor (or former mentor); and
    (3) An increase in the prot[eacute]g[eacute]'s number of employees 
from the date of entry into the program until two years after the 
completion of the agreement.


1819.7215  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.219-77, 
NASA Mentor-Prot[eacute]g[eacute] Program, in:
    (1) Any contract that includes the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.
    (b) The contracting officer shall insert the clause at 1852.219-79, 
Mentor Requirements and Evaluation, in contracts where the prime 
contractor is a participant in the NASA Mentor-Prot[eacute]g[eacute] 
Program.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Sections 1852.219-77 and 1852.219-79 are revised to read as follows:


1852.219-77  NASA Mentor-Prot[eacute]g[eacute] Program.

    As prescribed in 1819.7215, insert the following clause:
NASA Mentor-Prot[eacute]g[eacute] Program (Month/Year)
    (a) Prime contractors are encouraged to participate in the NASA 
Mentor-Prot[eacute]g[eacute] Program for the purpose of providing 
developmental assistance to eligible prot[eacute]g[eacute] entities to 
enhance their capabilities and increase their participation in NASA 
contracts.
    (b) The Program consists of:
    (1) Mentors, which are large businesses and prime contractors with 
at least one active and approved NASA subcontracting plan;
    (2) Prot[eacute]g[eacute]s, which are subcontractors to the prime 
contractor. Prot[eacute]g[eacute]s must qualify as certified small 
disadvantaged business concerns, women-owned small business concerns, 
veteran-owned or service-disabled veteran-owned small business 
concerns, HUBZone small business concerns, Historically Black Colleges 
and Universities, minority institutions of higher education, meeting 
the qualifications defined in FAR Part 2, Definitions of Parts and 
Term, active NASA SBIR Phase II companies or nonprofit agencies 
employing people who are blind or severely disabled as defined in 41 
CFR Chapter 51.
    (3) Mentor-prot[eacute]g[eacute] agreements endorsed by the 
cognizant NASA centers and approved by the NASA Office of Small 
Business Programs (OSBP);
    (4) In contracts with award fee incentives, potential for payment 
of an award fee for voluntary participation and successful performance 
in the Mentor-Prot[eacute]g[eacute] Program, in accordance with NFS 
1819.7208.
    (c) Mentor participation in the Program, described in NFS 1819.72, 
means providing technical, managerial and financial assistance to aid 
prot[eacute]g[eacute]s in developing requisite high-tech expertise and 
business systems to compete for and successfully perform NASA contracts 
and subcontracts.
    (d) Contractors interested in participating in the program are 
encouraged to contact the NASA OSBP, Washington, DC 20546, (202) 358-
2088, for further information.


(End of clause)


1852.219-79  Mentor Requirements and Evaluation.

    As prescribed in 1819.7215, insert the following clause:
Mentor Requirements and Evaluation (Month/Year)
    (a) The purpose of the NASA Mentor-Prot[eacute]g[eacute] Program is 
for a NASA prime contractor to provide developmental assistance to 
certain subcontractors qualifying as prot[eacute]g[eacute]s.
    Eligible prot[eacute]g[eacute]s include certified small 
disadvantaged business concerns, women-owned small business concerns, 
veteran-owned or service-disabled veteran-owned small business 
concerns, HUBZone small business concerns, Historically Black Colleges 
and Universities, minority institutions of higher education, as defined 
in FAR Part 2, Definitions of Parts and Terms, active NASA SBIR Phase 
II companies and nonprofit agencies employing the blind or severely 
handicapped as defined in 41 CFR Chapter 51.
    (b) NASA will evaluate the contractor's performance on the 
following factors. If this contract includes an award fee incentive, 
this assessment will be accomplished as part of the fee evaluation 
process.
    (1) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of prot[eacute]g[eacute]s as 
subcontractors and suppliers;
    (2) Specific actions taken by the contractor during this evaluation 
period to develop the technical and corporate administrative expertise 
of a prot[eacute]g[eacute] as defined in the agreement;
    (3) To what extent the mentor and prot[eacute]g[eacute] have met 
the developmental milestones outlined in the agreement; and
    (4) To what extent the entities' participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute] 
receiving competitive contract(s) and subcontract(s) from private firms 
and agencies other than the mentor.
    (c) Semiannual reports shall be submitted by the mentor and the 
prot[eacute]g[eacute] to the cognizant NASA center and NASA 
Headquarters Office of Small Business Programs (OSBP), following the 
semiannual report template found on the Web site at http://www.osbp.nasa.gov.
    (d) The mentor will notify the cognizant NASA center and NASA OSBP 
in writing, at least 30 days in advance of the mentor's intent to 
voluntarily withdraw from the program or upon receipt of a 
prot[eacute]g[eacute]'s notice to withdraw from the Program;
    (e) At the end of each year in the Mentor-Prot[eacute]g[eacute] 
Program, the mentor and prot[eacute]g[eacute], as appropriate, will 
formally brief the NASA Mentor-Prot[eacute]g[eacute] program manager, 
the technical program manager, and the contracting officer during a 
formal program review regarding Program accomplishments, as it pertains 
to the approved agreement.

[[Page 25677]]

    (f) NASA may terminate mentor-prot[eacute]g[eacute] agreements for 
good cause, thereby excluding mentors or prot[eacute]g[eacute]s from 
participating in the NASA Mentor-Prot[eacute]g[eacute] program. These 
actions shall be approved by the NASA OSBP. NASA shall terminate an 
agreement by delivering to the contractor a letter specifying the 
reason for termination and the effective date. Termination of an 
agreement does not constitute a termination of the subcontract between 
the mentor and the prot[eacute]g[eacute]. A plan for accomplishing the 
subcontract effort should the agreement be terminated shall be 
submitted with the agreement.


(End of clause)

 [FR Doc. E9-12487 Filed 5-28-09; 8:45 am]
BILLING CODE 7510-01-P