General Services Administration Acquisition Regulation; GSAR Case 2006-G501, Mentor-Protégé Program, 41060-41067 [E9-19482]
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41060
Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations
under Colorado, is amended by adding
DTV channel 49 and removing DTV
channel 10 at Colorado Springs.
Clay C. Pendarvis,
Associate Chief, Video Division, Media
Bureau, Federal Communications
Commission.
[FR Doc. E9–19525 Filed 8–13–09; 8:45 am]
BILLING CODE 6712–01–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–36
[FMR Amendment 2009–05; FMR Case
2009–102–2; Docket 2009–0002, Sequence
4]
RIN 3090–AI87
Federal Management Regulation; FMR
Case 2009–102–2; Disposition of
Excess Personal Property
AGENCY: Office of Governmentwide
Policy, General Services Administration
(GSA).
ACTION: Final rule.
SUMMARY: The General Services
Administration is amending the Federal
Management Regulation (FMR) by
making a change to its personal property
policy. This final rule updates and
clarifies language that has caused some
confusion with our customers and
resulted in unnecessarily prolonged
periods to remove property.
DATES: Effective Date: This final rule is
effective on August 14, 2009.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Robert Holcombe, Office of
Governmentwide Policy, Office of
Travel, Transportation, and Asset
Management (MT), (202) 501–3828 or
e-mail at robert.holcombe@gsa.gov. For
information pertaining to status or
publication schedules contact the
Regulatory Secretariat, 1800 F Street,
NW., Room 4041, Washington, DC,
20405, (202) 501–4755. Please cite FMR
case 2009–102–2.
SUPPLEMENTARY INFORMATION:
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A. Background
A proposed rule was published in the
Federal Register on February 23, 2009
(74 FR 14510) to solicit comments on a
proposed change to FMR section 102–
36.135 (41 CFR 102–36.135). The
language used in that section caused
confusion with our customers and
resulted in unnecessarily prolonged
removal periods. The proposed revision
would make it clear that the acquiring
agency is responsible for scheduling and
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coordinating the property removal once
the acquiring agency receives
notification from GSA that they have
been allocated the property. No
comments were received.
B. Executive Order 12866
This final rule is excepted from the
definition of ‘‘regulation’’ or ‘‘rule’’
under Section 3(d)(3) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993 and,
therefore, was not subject to review
under Section 6(b) of that Executive
Order.
C. Regulatory Flexibility Act
This final rule was not required to be
published in the Federal Register for
comment. Therefore, the Regulatory
Flexibility Act does not apply. However,
a proposed rule was published on
February 23, 2009 in order to elicit
comments and to provide transparency
in the promulgation of federal policies.
D. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
FMR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
E. Small Business Regulatory
Enforcement Fairness Act
This final rule is exempt from
Congressional review under 5 U.S.C.
801 since it relates solely to agency
management and personnel.
List of Subjects in 41 CFR Part 102–36
Government property, property
disposal.
Dated: July 15, 2009.
Paul F. Prouty,
Acting Administrator of General Services.
For the reasons set forth in the
preamble, GSA amends 41 CFR part
102–36 as set forth below:
■
PART 102–36—DISPOSITION OF
EXCESS PERSONAL PROPERTY
1. The authority citation for 41 CFR
part 102–36 continues to read as
follows:
■
Authority: 40 U.S.C. 121(c).
2. Revise § 102–36.135 to read as
follows:
■
§ 102–36.135 How much time do we have
to pick up excess personal property that
has been approved for transfer?
Normally, you have 15 calendar days
from the date of GSA allocation to pick
up the excess personal property for
transfer, and you are responsible for
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scheduling and coordinating the
property removal with the holding
agency. If additional removal time is
required, you are responsible for
requesting such additional removal
time.
[FR Doc. E9–19481 Filed 8–13–09; 8:45 am]
BILLING CODE 6820–14–P
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 501, 519, and 552
[GSAR Amendment 2009–09; GSAR Case
2006–G501 (Change 37) Docket 2008–0007;
Sequence 6]
RIN 3090–AI56
General Services Administration
Acquisition Regulation; GSAR Case
´ ´
2006–G501, Mentor-Protege Program
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) to
amend its acquisition regulations to
formally encourage GSA prime
contractors to assist small business,
including veteran-owned small
business, service-disabled veteranowned small business, HUBZone, small
disadvantaged business, and womenowned small business, in enhancing
their capabilities to perform contracts
and subcontracts for GSA and other
Federal agencies. The program seeks to
increase the base of small business
eligible to perform GSA contracts and
subcontracts. The program also seeks to
foster long-term business relationships
between GSA prime contractors and
small business entities and to increase
the overall number of small business
entities that receive GSA contracts, and
subcontract awards.
DATES: Effective Date: September 14,
2009.
Applicability Date: The final rule
applies to solicitations and existing
contracts for supplies or services,
including Federal Supply Schedules
and construction. Existing contracts
shall be modified at no cost to the
Government by mutual agreement of
both parties.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Rhonda Cundiff, Procurement Analyst,
at (202) 501–0044. For information
pertaining to status or publication
schedules, contact the Regulatory
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Federal Register / Vol. 74, No. 156 / Friday, August 14, 2009 / Rules and Regulations
Secretariat (VPR), Room 4041, 1800 F
Street, NW, Washington, DC, 20405,
(202) 501–4755. Please cite Amendment
2009–09, GSAR case 2006–G501
(Change 37).
SUPPLEMENTARY INFORMATION:
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A. Background
The U.S. General Services
Administration (GSA) published a
notice of proposed rulemaking in the
Federal Register at 73 FR 32669, June
10, 2008), in which GSA proposed to
´ ´
develop a Mentor-Protege Program that
encouraged GSA prime contractors to
assist small business, including small
disadvantaged business, veteran-owned,
service-disabled veteran-owned,
HUBZone, and women-owned small
business in enhancing their capabilities
to perform contracts and subcontracts
for GSA and other Federal agencies.
´ ´
Successful Mentor-Protege arrangements
represent opportunities for creating
access for small business to GSA
contracts and awards. GSA received
comments on the proposed rule
suggesting the Agency clarify the
eligible participants in the Program and
the types of incentives GSA may
provide to prime contractors for
providing developmental assistance to
´ ´
proteges. After careful consideration of
the public comments received on the
notice of proposed rulemaking, GSA is
issuing a final rule.
Resolution of Comments
Twelve commenters submitted
comments in response to the proposed
rule. Three of the twelve commenters
expressed interest in participating in the
´ ´
GSA Mentor-Protege Program. A
discussion of the comments and the
changes made to the rule as a result of
those comments is provided below.
Comment: One commenter
recommends that the word ‘‘small’’
needs to be defined. Large businesses
‘‘hide’’ behind small businesses.
Response: Non-concur. The comment
is outside the scope of this GSAR case.
With the exception of small
disadvantaged businesses, 8(a)
Participants and HUBZone small
business concerns, all other firms selfcertify in accordance with the
definitions in FAR Part 2.
Comment: A commenter states that
incentives are insufficient and suggests
monetary reimbursement for mentoring
expenses, limited ownership interest in
´ ´
the protege, or relaxation of small
business affiliation rule.
Response: Non-concur. GSA does not
have legal authority to incorporate the
incentives suggested by the commenter.
GSAM 519.7004, Incentive for Prime
Contract Participation, is consistent
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´ ´
with the Mentor-Protege Programs of
other civilian agencies.
Comment: Two commenters
recommend better monitoring of the
´ ´
Mentor-Protege Programs.
Response: GSA is not responsible for
the experiences of other Federal agency
´ ´
Mentor-Protege Programs and plans to
carefully monitor the GSA Mentor´ ´
Protege Program. GSA anticipates
having a very successful program that
will be beneficial to both mentors and
´ ´
proteges.
Comment: Under GSAM 519.7003,
General Policy, a commenter
recommends the need to address how
´ ´
Mentor-Protege Agreements can be
incorporated into small business prime
awards and how evaluation credit
during source selection is given to small
business firms that are mentors with
small business subcontractors.
Response: Concur. As with other
terms and conditions that need
incorporation into a contract, the
´ ´
Mentor-Protege agreement should be
incorporated into the small business
prime contractor’s contract. In addition,
there is nothing in the FAR or GSAR
that precludes establishing source
selection criteria that would apply to
both large and small businesses.
Comment: One commenter states that
GSAR 519.7004, paragraph (b) does not
appear to belong in this section since it
points out that the mentor’s cost are not
reimbursable directly but may be
reimbursable once indirect cost rates are
established with the cognizant audit
agency. How does this relate to
incentives for mentors?
Response: Non-concur. The civilian
agencies do not have the statutory
authority that the Department of
´ ´
Defense has for its Mentor-Protege
Program; therefore, civilian agency
incentives are limited. GSAM 519.7004,
Incentive for Prime Contract
Participation, is consistent with the
´ ´
Mentor-Protege Programs of other
civilian agencies.
Comment: One commenter requests
specific details about the non-monetary
award in GSAM 519.7004(d). In
addition, the commenter questions why
the GSA annual conference in GSAM
519.7004(e) is listed as an incentive and
states that overall there are no true
incentives offered for the time and effort
the Mentor Program would require.
Response: Non-concur. GSA will
provide the specifics of the nonmonetary award at a later date. The
civilian agencies do not have the
statutory authority that the Department
of Defense has; therefore, the incentives
for civilian agencies are limited. The
GSA annual conference is an
opportunity to network, share Mentor-
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´ ´
Protege experiences and share the
‘‘Lessons Learned’’. GSAM 519.7004,
Incentive for Prime Contract
Participation, is consistent with the
´ ´
Mentor-Protege Programs of other
civilian agencies.
Comment: A commenter questions
indirect costs and states that these costs
are generally established for cost
contracts and certain special fixed price
contracts. The references for indirect
cost rates seem to be entirely out of
place and would often be inapplicable
to many competitive firm fixed GSA
contracts.
Response: Non-concur. Even though
this paragraph may not apply to many
GSA contracts, this is a GSA-wide
´ ´
Mentor-Protege Program that can
include contracts that may have indirect
costs associated with it. The intent of
´ ´
the GSA Mentor-Protege Program is to
not exclude any potential GSA
contracts, including GSA cost contracts.
Comment: One commenter refers to
FAR 15.101–1 which discusses the
trade-off process. The commenter states
that the natural implication is that the
evaluation credit is not applicable to
lowest-price technically acceptable
source selection, given that tradeoffs are
not permitted in that scenario and
should be clearly stated, for it
substantially limits the circumstance
under which this incentive could be
applied. The commenter further states
that careful distinction is required since
the same paragraph goes on to state that
past compliance with subcontracting
plans can be considered as part of past
performance evaluation (trade-off
scenario) but also as part of
Responsibility Determinations which
are made regardless of whether the
trade-off or LPTA scenario is used so the
paragraph is unclear in regard to the
distinction between the two types of
source selection.
Response: Non-concur. The FAR
clearly explains how the trade-off
process is utilized. The GSAR language
at 519.7004(c) states that the contracting
officer ‘‘may’’ give mentors evaluation
credit under FAR 15.101–1
considerations for subcontracts which
means that it may not be used in all
cases.
Comment: Regarding GSAM 519.7005,
one commenter suggests that the
regulation address how measurement of
the program success within the first year
´ ´
of the agreement if a Protege has not
received a contract award or dollars.
Depending on the terms of the
agreement, the first year of the program
may involve only development or
training; therefore, contract awards may
not be immediate.
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´ ´
Response: The GSA Mentor-Protege
Program will not be measured only on
the contract award and dollars. The
measurement of success will include
developmental assistance given to the
´ ´
Protege as required by the Mentor´ ´
Protege Program.
Comment: One commenter requests
clarification on GSAM 519.7006 and
519.7009. GSAM 519.7009 indicates
that a large business mentor’s
application must include a statement
that the firm is currently performing
under at least one active approved
subcontracting plan. However, GSAM
519.7006 states that mentors must either
currently be operating under an
approved subcontracting plan under a
negotiated award or must have operated
under one for a contract awarded within
the past five years.
Response: Concur. The language has
been revised to state that the large
business mentor must currently be
performing under an approved
subcontracting plan. The language ‘‘or
has performed under at least one
approved subcontracting plan awarded
under a negotiated contract within the
last five years’’ has been deleted.
Comment: A commenter believes that
GSAM 519.7003(c) is vague and
recommends that the provision be
changed to state that an active mentor´ ´
protege arrangement requires the
´ ´
protege to already be or become a
subcontractor under a GSA contract of
the mentor firm that contains a
subcontracting plan. This revision will
then be in agreement with GSAM
519.7009(b).
Response: Concur. The language in
GSAM 519.7003(c) has been revised.
Comment: One commenter
recommends that the GSAM language be
clear to indicate that this section
includes schedules.
Response: Concur. Adopted comment.
Comment: One commenter states that
GSAM 519.7004(c) does not clearly
elaborate on the incentives and the
associated specifics. The commenter
further states that the current language
does not mention that the mentor can
take credit for costs incurred by the
´ ´
mentor. Other Federal mentor-protege
programs allow the mentor to
subsequently receive credit towards
their subcontracting plan based on the
amount invested. This section combines
´ ´
mentor-protege performance with small
business subcontracting plan
compliance which are totally separate
elements. Commenter recommends
adding language that explicitly
describes the incentive as follows:
‘‘future solicitations contain a source
selection factor or subfactor regarding
´ ´
the participation in the Mentor-Protege
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Program. In order to receive credit
under source selection factor or
subfactor, the offeror shall provide a
´ ´
signed letter of mentor-protege
agreement approval before initial
evaluation of proposals. The contracting
officer may, in his or her discretion, give
credit for approvals that occur after the
initial evaluation of proposals, but
before final evaluation’’. (Currently in
DHS and NASA’s programs).
Response: Non-concur. With the
exception of instances of allowing
indirect costs, costs incurred by the
mentor are not allowable.
Comment: A commenter suggests
adding language that enables the mentor
to take credit for the developmental
assistance provided and how this credit
can be applied. Suggested language:
‘‘Mentors are eligible to take post-award
incentive for subcontracting plan credit
whereby the mentor will receive credit
towards its subcontracting plan for costs
it incurs to provide assistance to a
´ ´
protege firm. The mentor may use this
additional credit toward achievement of
its goal under the same or another GSA
subcontracting plan. GSA may wish to
adjust the credit factor as it sees fit, but
it is a federal agency best practice as
represented at DOD, DHS, NASA, and
others to explicitly state how the benefit
and credit is determined.’’
Response: GSA does not concur. GSA
believes that the incentives in GSAM
519.7004, ‘‘Incentives for prime
contractors,’’ that includes coverage
whereby mentors may be reimbursed for
their indirect costs are sufficient
incentives.
Comment: One commenter
recommends removing GSAM
519.7004(c)(2) in its entirety.
Response: Non-concur. The
commenter provides no rationale for its
removal. GSA believes that this
subparagraph is an incentive for prime
contractor participation.
Comment: A commenter recommends
that GSA, if not at inception, then at a
later date, to provide greater elaboration
and detail regarding the criteria for the
OSBU mentoring award.
Response: Concur. After
implementation of the GSA Mentor´ ´
Protege Program, the Associate
Administrator of the Office of Small
Business Utilization (OSBU), will be
responsible for developing the criteria
for the OSBU mentoring award.
Comment: One commenter states that
GSAM 519.7009 as currently proposed
combines elements of a Mentor
Application process and a Mentor´ ´
Protege agreement submittal process. It
´ ´
implies that for each protege agreement,
a mentor submit an application. These
two elements should be completely
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separate as consistent with other
Federal agency practices and
procedures. The application for the
mentor should not contain requests for
´ ´
the number of proposed mentor-protege
arrangements as cited in GSAM
519.7009(b)(2) since it is not known
how many will be developed in outlying
years. In addition, the specifics on the
type of developmental assistance GSAM
519.7009(b)(5) to be provided, or that a
signed letter of intent by the mentor and
´ ´
protege GSAM 519.7009(b)(6) be
required are not truly indicative of a
prime contractor’s eligibility as a
mentor. They are elements germane to
the development of a specific mentor´ ´
protege agreement and should be
incorporated into the ensuing section.
By separating the mentor application
process from the agreement submittal
process, industry and Government are
given the flexibility in the future to
´ ´
´ ´
efficiently add a protege or proteges as
long as it is in good standing both as a
prime contractor and mentor. This will
result in a reduction in the amount of
paperwork and time saving for the
Government.
Response: Non-concur. Initially, in
the proposed rule, GSA had the
application and the agreement as
separate submissions. However, GSA
has determined that it would be less
burdensome on both the contractors and
GSA personnel to have the application
and agreement combined. This is
´ ´
consistent with Mentor-Protege
Programs of other Federal agencies,
such as USAID and Department of
Homeland Security.
Comment: One commenter
recommends deletion of GSAM
519.7009(b)(2) requiring mentors to state
´ ´
the number of proposed protege
arrangements at the time of mentor
´ ´
application review and mentor-protege
agreement process.
Response: Non-concur. GSA is
´ ´
interested in how many proteges the
mentor plans to develop.
Comment: Delete GSAM
519.7009(b)(6) requiring a letter of
intent be signed by the prospective
´ ´
mentor and protege at the time of
mentor application submittal. This
should be a requirement at the time of
´ ´
mentor-protege submittal.
Response: Concur. The final rule now
combines the application and
agreement. Therefore, the letter of intent
is unnecessary.
Comment: A commenter recommends
adding a section in the mentor
application for prospective mentors to
provide information on their previous
participation in Federal agency mentor´ ´
protege programs. Should the
prospective mentor not have any prior
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experience, they should describe the
entity’s ability to provide
developmental assistance and how that
assistance will potentially increase
subcontracting opportunities for
´ ´
proteges. This should be inserted under
GSAM 519.7009.
Response: Non-concur. The GSA
´ ´
Mentor-Protege Program stands
independently. GSA will be evaluating
´ ´
the mentor-protege relationship on its
own merits. Having experience (positive
´ ´
or negative) on other mentor-protege
programs would not add value and
would increase the paperwork burden
on the contractor.
Comment: Commenter encourages
GSA to review and consider the current
´ ´
mentor-protege application process and
forms of those currently in practice at
NASA, DOD or DHS as a baseline.
Response: GSA has reviewed and
considered other agencies’ mentor´ ´
protege application processes and forms
and has chosen the most appropriate to
suit GSA’s needs.
Comment: Section 519.7017 provides
guidance for contracting officers to
insert this clause. It seems to imply that
will be only for new contracts with no
clear guidance regarding the GSA
contracts already in place. This will
limit the ability for participation by
industry at the onset, thus limiting the
potential short-term impact and success.
Recommend that GSA give clear
guidance or instructions as to how
existing contracts can be modified to
incorporate these new clauses in order
to facilitate industry participated once
initiated.
Response: Concur. GSA did not
intend for current contractors to be
excluded from participation in the
´ ´
Mentor-Protege Program. GSAM
519.7017 does not need a revision as it
states to insert the clause in all contracts
and is not stating newly awarded
contracts. The Federal Register Notice
indicates that the final rule applies to
current contracts.
Comment: Two commenters
recommend that GSA amend its rule to
include language defining non-profit
agencies (NPAs) for people who are
blind or have severe disabilities
authorized by the Committee for
Purchase from People Who Are Blind or
´ ´
Severely disabled as protege firms in
Section 519.7007(a).
Response: Non-concur. The Small
Business Administration regulation, 13
CFR 121.105(a)(1) states: ‘‘Except for
small agricultural cooperatives, a
business concern eligible for assistance
from SBA as a small business is a
business entity organized for profit,
with a place of business located in the
United States, and which operates
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primarily within the United States or
which makes a significant contribution
to the U.S. economy through payment of
taxes or use of American products,
materials or labor.’’
This is a significant regulatory action
and, therefore, was subject to review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601, et seq., applies to this final
rule. The changes may have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., GSA prepared
a Final Regulatory Flexibility Analysis
(FRFA), and it is summarized as
follows:
´ ´
The GSA Mentor-Protege Program will
´ ´
allow small businesses to become proteges
and receive developmental assistance from
large business mentors. The GSA Mentor´ ´
Protege Program also will allow small
businesses who want to mentor other small
businesses to participate in the program to
provide developmental assistance to
´ ´
proteges. This Program encourages fostering
the establishment of long-term business
relationships between these small business
entities and GSA prime contractors. It is
expected that the Program will increase the
overall number of small business entities that
receive GSA contract and subcontract
awards.
Interested parties may obtain a copy
of the FRFA from the Regulatory
Secretariat. The Regulatory Secretariat
will be submitting a copy of the FRFA
to the Chief Counsel for Advocacy of the
Small Business Administration.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply; however, these changes to the
FAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
3090–0286.
List of Subjects in 48 CFR Parts 501,
519, and 552
Government procurement.
Dated: August 7, 2009.
Rodney P. Lantier,
Acting Senior Procurement Executive, and
Acting Deputy Chief Acquisition Officer,
Office of the Chief Acquisition Officer,
General Services Administration.
Therefore, GSA amends 48 CFR parts
501, 519, and 552 as set forth below:
■ 1. The authority citation for 48 CFR
parts 501, 519, and 552 continues to
read as follows:
■
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41063
Authority: 40 U.S.C. 121(c).
PART 501—GENERAL SERVICES
ADMINISTRATION ACQUISITION
REGULATION SYSTEM
2. Amend section 501.106, in the
table, by adding, in numerical sequence,
GSAR References ‘‘519.70’’, ‘‘552.219–
75’’, ‘‘552.219–76’’ and their
corresponding OMB Control Number
‘‘3090–0286’’.
■
PART 519—SMALL BUSINESS
PROGRAMS
3. Add Subpart 519.70, consisting of
sections 519.7001 through 519.7017, to
read as follows:
■
´ ´
Subpart 519.70—GSA Mentor-Protege
Program
Sec.
519.7001
519.7002
519.7003
519.7004
519.7005
519.7006
519.7007
519.7008
519.7009
519.7010
519.7011
519.7012
519.7013
519.7014
519.7015
519.7016
519.7017
Scope of subpart.
Definitions.
General policy.
Incentives for prime contractors.
Measurement of program success.
Mentor firms.
´ ´
Protege firms.
´ ´
Selection of protege firms.
Application process.
Agreement contents.
Application review.
Developmental assistance.
Obligation.
Internal controls.
Reports.
Program review.
Contract clauses.
´ ´
Subpart 519.70—GSA Mentor-Protege
Program
519.7001
Scope of subpart.
´ ´
The GSA Mentor-Protege Program is
designed to encourage and motivate
GSA prime contractors to assist small
businesses concerns, small
disadvantaged businesses concerns,
women-owned small businesses
concerns, veteran-owned small business
concerns, service-disabled veteranowned small businesses concerns, and
HUBZone small businesses concerns,
and enhance their capability of
performing successfully on GSA
contracts and subcontracts, foster the
establishment of long-term business
relationships between these small
business entities and GSA prime
contractors, and increase the overall
number of small business entities that
receive GSA contract and subcontract
awards.
519.7002
Definitions.
The definitions of small business
concern, small disadvantaged business
concern, HUBZone small business
concern, women-owned small business
concern, veteran-owned small business
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concern, and service-disabled veteranowned small business concern are the
same as found in FAR 2.101. Also see
13 CFR 121, 124, 125 and 126.
(a) Mentor as used in the GSA Mentor´ ´
Protege Program, is a prime contractor
that elects, on a specific GSA contract,
to promote and develop small business
subcontractors by providing
developmental assistance designed to
enhance the business success of the
´ ´
protege.
´ ´
(b) Mentor-Protege Program Manager
means an employee in the Office of
Small Business Utilization (OSBU) (E)
designated by the Associate
Administrator of OSBU to manage the
´ ´
Mentor-Protege Program.
´ ´
(c) Protege as used in the GSA
´ ´
Mentor-Protege Program is a small
business concern that is the recipient of
developmental assistance pursuant to a
´ ´
mentor-protege arrangement on a
specific GSA contract.
mstockstill on DSKH9S0YB1PROD with RULES
519.7003
General policy.
(a) A large business prime contractor
that meets the requirements at section
519.7006, and is approved as a mentor
´ ´
firm by the Mentor-Protege Program
Manager, may enter into an Agreement
with a small business concern, small
disadvantaged business concern,
women-owned small business concern,
veteran-owned small business concern,
service-disabled veteran-owned small
business concern or HUBZone small
business concern that meets the
´ ´
requirements for being a protege (see
519.7007) in order to provide
appropriate developmental assistance to
´ ´
enhance the capabilities of the protege
to perform successfully as a
subcontractor and supplier.
(b) A small business prime contractor
that is capable of providing
´ ´
developmental assistance to proteges,
may also be approved as a mentor.
´ ´
(c) An active mentor-protege
´ ´
arrangement requires the protege to
either be a current or newly selected
subcontractor under the mentor’s prime
contract with GSA.
(d) A small business concern’s status
´ ´
as a protege under a GSA contract shall
not have an effect on its ability to seek
other prime contracts or subcontracts.
(e) Potential Mentors may submit an
application for admittance to the
´ ´
Mentor-Protege Program at any time as
long as the requirements at section
519.7006 are met.
(f) The determination of affiliation is
a function of the SBA.
519.7004
Incentives for prime contractors.
(a) Under the Small Business Act, 15
U.S.C. 637(d)(4)(E), the GSA is
authorized to provide appropriate
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16:09 Aug 13, 2009
Jkt 217001
incentives to prime contractors in order
to encourage subcontracting
opportunities for small business
concerns consistent with the efficient
and economical performance of the
contract. This authority is limited to
negotiated procurements, including the
GSA Multiple Award Schedule
contracts and the GSA Governmentwide
Acquisition Contracts. It does not
include orders under any GSA
contracts.
(b) Costs incurred by a mentor to
provide developmental assistance, as
described in section 519.7012 to fulfill
the terms of their agreement(s) with a
´ ´
protege firm(s), are not reimbursable as
a direct cost under a GSA contract. If
GSA is the mentor’s responsible audit
agency under FAR 42.703–1, GSA will
consider these costs in determining
indirect cost rates. If GSA is not the
responsible audit agency, mentors are
encouraged to enter into an advance
agreement with their responsible audit
agency on the treatment of such costs
when determining indirect cost rates.
(c) In addition to paragraph (b) of this
section, contracting officers may give
mentors evaluation credit during the
source selection process for
subcontracts awarded under their
subcontracting plans pursuant to their
´ ´
Mentor-Protege Agreements. (See FAR
15.101–1). Therefore:
(1) Contracting officers may evaluate
proposals with subcontracting plans
´ ´
containing Mentor-Protege Agreements
more favorably than proposals with
subcontracting plans that do not include
´ ´
Mentor-Protege Agreements; and
(2) Contracting officers may assess the
prime contractor’s compliance with the
subcontracting plans submitted in
previous contracts as a factor in
evaluating past performance under
certain circumstances (see FAR
15.304(c)(3) and 15.305(a)(2)(v)) and
determining contractor responsibility
FAR section 19.705–5(a)(1).
(d) OSBU Mentoring Award. A nonmonetary award may be presented
annually to the mentoring firm
providing the most effective
´ ´
developmental support of a protege. The
´ ´
Mentor-Protege Program Manager will
recommend an award winner to the
Administrator of GSA.
´ ´
(e) OSBU Mentor-Protege Annual
Conference. At the conclusion of each
´ ´
year in the Mentor-Protege Program,
mentor firms will be invited to brief
contracting officers, program leaders,
office directors, and other guests on
their experience and progress under the
Program. Participation is voluntary.
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519.7005 Measurement of program
success.
The overall success of the GSA
´ ´
Mentor-Protege Program encompassing
´ ´
all participating mentors and proteges
will be measured by the extent to which
it results in:
(a) An increase in the number, dollar
value, and percentage of subcontracts
´ ´
awarded to proteges by mentor firms
under GSA contracts since the date of
entry into the Program. The baseline
that demonstrates an increase is
determined by comparing the number
and total dollar amount of subcontract
´ ´
awards made to the identified protege
firm(s) during the two preceding fiscal
years (if any) that are listed in
application;
(b) An increase in the number and
dollar value of contract and subcontract
awards (including percentage of
´ ´
subcontract awards) to protege firms
´ ´
since the date of the protege’s entry into
the Program (under GSA contracts and
contracts awarded by other Federal
agencies);
(c) An increase in the number and
dollar value of subcontracts awarded to
´ ´
a protege firm by its mentor firm; and
(d) An increase in subcontracting with
´ ´
protege firms in industry categories
where they have not traditionally
participated within the mentor firm’s
´ ´
activity (i.e., the protege is expanding its
field of expertise or is increasing its
opportunities in areas where it has not
traditionally performed).
(e) Assessments of the semi-annual
reports submitted by the mentors and
‘‘Lessons Learned’’ evaluation
´ ´
submitted by the mentors and proteges
´ ´
to the GSA Mentor-Protege Program
Manager.
519.7006
Mentor firms.
(a) Mentors must be:
(1) A large business prime contractor
that is currently performing under an
approved subcontracting plan as
required by FAR 19.7 - Small business
mentors are exempted; or
(2) A small business prime contractor
that can provide developmental
assistance to enhance the capabilities of
´ ´
proteges to perform as contractors,
subcontractors, and suppliers;
(b) Must be eligible (not listed in the
‘‘Excluded Parties List System’’) for U.S.
Government contracts and not excluded
´ ´
from the Mentor-Protege Program under
section 519.7014(b);
(c) Must be able to provide
developmental assistance that will
´ ´
enhance the ability of proteges to
perform as contractors and
subcontractors; and
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(d) Must provide semi-annual reports
detailing the assistance provided and
´ ´
the cost incurred in supporting proteges.
519.7007
´ ´
Protege firms.
519.7009
´ ´
(a) For selection as a protege, a firm
must be:
(1) A small business concern, small
disadvantaged business concern,
veteran-owned small business concern,
service-disabled veteran-owned small
business concern, HUBZone small
business concern, or women-owned
small business concern;
(2) Small for the NAICS code the
prime contractor/mentor assigns to the
subcontract; and
(3) Eligible (not listed in the
‘‘Excluded Parties List System’’) for U.S.
Government contracts and not excluded
´ ´
from the Mentor-Protege Program under
section 519.7014(b).
´ ´
(b) A protege firm may self-represent
to a mentor firm that it meets the
requirements set forth in paragraph (a)
of this section. Mentors may check the
Central Contractor Registration (CCR) at
www.ccr.gov to verify that the self´ ´
representation of the potential protege
meets the specified small business and
socioeconomic category eligibility
requirements (see FAR 19.703(b) and
(d)). HUBZone and small disadvantaged
business status eligibility and
documentation requirements are
determined according to 13 CFR Parts
124 and 126.
´ ´
(c) A protege firm must not have
´ ´
another formal, active mentor-protege
relationship under GSA’s Mentor´ ´
Protege Program but may have an active
´ ´
mentor-protege relationship under
another agency’s program.
mstockstill on DSKH9S0YB1PROD with RULES
519.7008
´ ´
Selection of protege firms.
(a) Mentor firms will be solely
´ ´
responsible for selecting protege firms.
Mentors are encouraged to select from a
broad base of small business concerns
including small disadvantaged business
concerns, women-owned small business
concerns, veteran-owned small business
concerns, service-disabled veteranowned small business concerns, and
HUBZone small business concerns. A
´ ´
protege must be either a current
subcontractor or a newly selected
subcontractor for the prime contractor’s
GSA contract.
(b) Mentor firms may have more than
´ ´
one protege. GSA reserves the right to
´ ´
limit the number of proteges
participating under each mentor firm.
´ ´
(c) The selection of protege firms by
mentor firms is not protestable, except
for a protest regarding the size or
eligibility status of an entity selected by
´ ´
a mentor to be a protege. Such protests
shall be handled in accordance with
VerDate Nov<24>2008
16:09 Aug 13, 2009
FAR 19.703(b). The contracting officer
shall notify the Office of Small Business
Utilization (OSBU) of the protest.
Jkt 217001
Application process.
(a) Prime contractors interested in
becoming a mentor firm must apply in
writing by submitting the GSA Form
´ ´
3695 to the GSA Mentor-Protege
Program Manager, at GSA Office of
Small Business Utilization (E),
Washington, DC 20405. The Application
´ ´
shall include the Mentor-Protege
Agreement and will be evaluated for
approval based on the extent to which
the company plans to provide
developmental assistance.
(b) The application must contain:
(1) A statement that the mentor firm
is currently performing under at least
one active approved subcontracting plan
(small business exempted) and the firm
is eligible, as of the date of Application,
for the award of Federal contracts;
´ ´
(2) The number of proposed protege
arrangements;
(3) Data on all current GSA contracts,
and subcontracts including the contract/
subcontract number(s), type of
contract(s), period of performance
(including options), contract/
subcontract value(s) including options,
technical program effort(s) (program
title), name of GSA Project Manager or
Contracting Officer’s Representative
(including contact information), name of
contracting officer(s) and contact
information, and awarding GSA
installation;
(4) Data on total number and dollar
value of subcontracts awarded under
GSA prime contracts within the past 2
years and the number and dollar value
of such subcontracts awarded to entities
´ ´
who are proposed proteges;
(5) Information on the proposed types
of developmental assistance. For each
´ ´
proposed mentor-protege relationship
include information on the company’s
ability to provide developmental
´ ´
assistance to the identified protege firm
and how that assistance will potentially
increase subcontracting opportunities
´ ´
for the protege firm, including
subcontracting opportunities in industry
categories where these entities are not
dominant in the company’s current
subcontractor base; and
(6) Agreement information as listed in
519.7010.
519.7010
Agreement contents.
The contents of the Agreement must
contain:
(a) Names, addresses (including
facsimile, e-mail, and homepage) and
telephone numbers of mentor and
´ ´
protege firms and the name, telephone
number, and position title within both
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Fmt 4700
Sfmt 4700
41065
firms of the person who will oversee the
Agreement.
(b) An eligibility statement from the
´ ´
protege stating that it is a small
business, its primary NAICS code, and
when applicable the type of small
business (small disadvantaged business
concern, HUBZone small business
concern, women-owned small business
concern, veteran-owned small business
concern, or service-disabled veteranowned small business concern).
(c) A description of the type of
developmental assistance that will be
provided by the mentor firm to the
´ ´
protege firm (see 519.7012).
(d) Milestones for providing the
identified developmental assistance.
´ ´
(e) Factors to assess the protege firm’s
developmental progress under the
Program.
(f) The anticipated dollar value and
type of subcontracts that may be
´ ´
awarded to the protege firm consistent
with the extent and nature of mentor
firm’s business, and the period of time
over which they may be awarded.
(g) Program participation term: State
the period of time over which the
developmental assistance will be
performed.
(h) Mentor termination procedures:
Describe the procedures applicable to
the mentor firm when notifying the
´ ´
Protege firm, in writing and at least 30
days in advance, of the mentor firm’s
intent to voluntarily withdraw its
participation in the Program, or to
terminate the Agreement.
´ ´
(i) Protege termination procedures:
Describe the procedures applicable to
´ ´
the protege firm when notifying the
mentor firm, in writing at least 30 days
´ ´
in advance, of the protege firm’s intent
´ ´
to terminate the Mentor-Protege
Agreement.
(j) Plan for accomplishing contract
´ ´
work should the Mentor-Protege
Agreement be terminated or a party
excluded under 519.7014(b). The
mentor’s prime contract with GSA
´ ´
continues even if the Mentor-Protege
´ ´
Agreement or the Mentor-Protege
Program is discontinued.
´ ´
(k) The protege must agree to provide
input into the mentor firm’s semiannual reports (see 519.7015). The
´ ´
protege must submit a ‘‘Lessons
Learned’’ evaluation along with the
mentor firm at the conclusion of the
´ ´
Mentor-Protege agreement.
(l) Other terms and conditions as
´ ´
specified by the Mentor-Protege
Manager on a case-by-case basis.
519.7011
Application review.
´ ´
(a) The Mentor-Protege Program
Manager will review the information
specified in section 519.7009(b) and
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519.7010 to establish the Mentor’s and
´ ´
Protege’s eligibility and to ensure all
necessary information is included. If the
application relates to a specific contract,
´ ´
then the Mentor-Protege Program
Manager will consult with the
applicable contracting officer regarding
the adequacy of the proposed
Agreement, as appropriate. The Mentor´ ´
Protege Program Manager will complete
its review no later than 30 days after
receipt of the application. The
contracting officer must provide
feedback to the Program Manager no
later than 10 days after receipt of the
application.
´ ´
(b) After the Mentor-Protege Program
Manager completes its review and
provides written approval, the Mentor
may execute the Agreement and
implement the developmental
assistance as provided under the
´ ´
Agreement. The Mentor-Protege
Program Manager will provide a copy of
´ ´
the Mentor-Protege Agreement to the
GSA contracting officer for any GSA
contracts affected by the Agreement.
(c) The Agreement defines the
relationship between the Mentor and
´ ´
the Protege firms only. The Agreement
itself does not create any privity of
contract or contractual relationship
between the Mentor and GSA nor the
´ ´
Protege and GSA.
(d) If the Agreement is disapproved,
the Mentor may provide additional
information for reconsideration. The
´ ´
Mentor-Protege Program Manager will
complete the review of any
supplemental information no later than
30 days after its receipt. Upon finding
deficiencies that GSA considers
´ ´
correctable, the Mentor-Protege Program
Manager will notify the Mentor and
´ ´
Protege and request correction of the
deficiencies to be provided within 15
days.
mstockstill on DSKH9S0YB1PROD with RULES
519.7012
Developmental assistance.
The forms of developmental
assistance a mentor can provide to a
´ ´
protege include:
(a) Management guidance relating
to—
(1) Financial management;
(2) Organizational management;
(3) Overall business management/
planning; and
(4) Business development.
(b) Engineering and other technical
assistance.
(c) Loans.
(d) Rent-free use of facilities and/or
equipment.
(e) Temporary assignment of
´ ´
personnel to the protege for purpose of
training.
(f) Any other types of developmental
assistance approved by the GSA Mentor´ ´
Protege Program Manager.
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16:09 Aug 13, 2009
Jkt 217001
519.7013
Obligation.
´ ´
(a) The mentor or protege may
terminate the Agreement in accordance
with 519.7010. The mentor will notify
´ ´
the Mentor-Protege Program Manager
and the contracting officer, in writing, at
least 30 days in advance of the mentor
firm’s intent to voluntarily withdraw
from the Program or to terminate the
Agreement, or upon receipt of a
´ ´
protege’s notice to withdraw from the
Program.
´ ´
(b) Mentor and protege firms will
submit a ‘‘Lessons Learned’’ evaluation
´ ´
to the GSA Mentor-Protege Program
Manager at the conclusion or
´ ´
termination of each Mentor-Protege
Agreement or withdrawal from the
´ ´
Mentor-Protege program.
519.7014
Internal controls.
´ ´
(a) The GSA Mentor-Protege Program
Manager will manage the Program.
Internal controls will be established by
´ ´
the Mentor-Protege Program Manager to
achieve the stated Program objectives
(by serving as checks and balances
against undesired actions or
consequences) such as:
(1) Reviewing and evaluating mentor
Applications for realism, validity and
accuracy of provided information;
´ ´
(2) Monitoring each Mentor-Protege
Agreement by reviewing semi-annual
progress reports submitted by mentors
´ ´
´ ´
and proteges on protege development to
´ ´
measure protege progress against the
master plan contained in the approved
Agreement;
(3) Monitoring milestones in the
Agreement (see 519.7010); and
(4) Evaluating ‘‘Lessons Learned’’
submitted by the Mentor and the
´ ´
Protege as required by section 519.7013
´ ´
to improve the GSA Mentor-Protege
Program.
(b)(1) GSA has the authority to
´ ´
exclude mentor or protege firms from
participating in the GSA Program.
(2) GSA may rescind approval of an
´ ´
existing Mentor-Protege Agreement if it
determines that such action is in GSA’s
best interest. The rescission shall be in
writing and sent to the Mentor and
´ ´
protege after approval by the Director of
OSBU. Rescission of an Agreement does
not change the terms of any subcontract
´ ´
between the Mentor and the Protege.
(3) Exclusion from the Program does
not constitute a termination of the
subcontract between the mentor and the
´ ´
protege.
519.7015
Reports.
(a) Semi-annual reports shall be
submitted by the mentor to the GSA
´ ´
Mentor-Protege Program manager to
include information as outlined in
section 552.219–76(c).
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´ ´
(b) Proteges must agree to provide
input into the mentor firm’s semiannual reports detailing the assistance
provided and goals achieved since
agreement inception. However, for cost
reimbursable contracts, costs associated
with the preparation of these reports are
unallowable costs under these
Government contracts and will not be
reimbursed by the Government.
(c) The GSA contracting officer, or if
applicable the technical program
manager, shall include an assessment of
the prime contractor’s (mentor’s)
´ ´
performance in the Mentor-Protege
Program in a quarterly ‘‘Strengths and
Weaknesses’’ evaluation report. A copy
of this assessment will be provided to
´ ´
the Mentor-Protege Program Manager
´ ´
and to the mentor and protege.
519.7016
Program review.
At the conclusion of each year in the
´ ´
Mentor-Protege Program (anniversary
´ ´
date of the Mentor-Protege Program), the
´ ´
prime contractor and protege, as
appropriate, will formally brief the GSA
´ ´
Mentor-Protege Program Manager, the
technical program manager, and the
contracting officer regarding Mentor´ ´
Protege Program accomplishments
pertaining to the approved Agreement.
519.7017
Contract clauses.
(a) The contracting officer shall insert
the clause at 552.219–75, GSA Mentor´ ´
Protege Program, in all unrestricted
solicitations (not set aside) and
contracts that exceed the simplified
acquisition threshold that offer
subcontracting opportunities or in the
case of a small business, that can offer
developmental assistance to a small
´ ´
business protege.
(b) The contracting officer shall insert
the clause at 552.219–76, Mentor
Requirements and Evaluation, in
contracts anticipated to exceed the
simplified acquisition threshold where
the prime contractor has signed a
´ ´
Mentor-Protege Agreement with GSA.
PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Add sections 552.219–75 and
552.219–76 to read as follows:
■
552.219–75
´ ´
GSA Mentor-Protege Program.
As prescribed in 519.7017(a), insert
the following clause:
´ ´
GSA MENTOR-PROTEGE PROGRAM
([SEP 2009])
(a) Prime contractors, including small
businesses, are encouraged to participate in
´ ´
the GSA Mentor-Protege Program for the
purpose of providing developmental
´ ´
assistance to eligible protege entities to
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enhance their capabilities and increase their
participation in GSA contracts.
(b) The Program consists of:
(1) Mentor firms are large prime
contractors with at least one active
subcontracting plan, or that are eligible small
businesses;
´ ´
(2) Proteges are subcontractors to the prime
contractor, and include small business
concerns, small disadvantaged business
concerns, veteran-owned small business
concerns, service-disabled veteran-owned
small business concerns, HUBZone small
business concerns, and women-owned small
business concerns meeting the qualifications
specified in Subpart 519.70; and
´ ´
(3) Mentor-protege Applications and
´ ´
Agreements, approved by the Mentor-Protege
Program Manager in the GSA Office of Small
Business Utilization (OSBU).
(c) Mentor participation in the Program
means providing technical, managerial and
´ ´
financial assistance to aid proteges in
developing requisite high-tech expertise and
business systems to compete for and
successfully perform GSA contracts and
subcontracts.
(d) Contractors interested in participating
in the Program are encouraged to read FAR
Subpart 19.7 and to contact the GSA Office
of Small Business Utilization (E),
Washington, DC 20405, (202) 501–1021, for
further information.
(End of clause)
552.219–76 Mentor Requirements and
Evaluation.
As prescribed in 519.7017(b), insert
the following clause:
mstockstill on DSKH9S0YB1PROD with RULES
MENTOR REQUIREMENTS AND
EVALUATION ([SEP 2009])
´ ´
(a) The purpose of the GSA Mentor-Protege
Program is for a GSA prime contractor to
provide developmental assistance to certain
´ ´
subcontractors qualifying as proteges.
´ ´
Eligible proteges include small business
concerns, small disadvantaged business
concerns, veteran-owned small business
concerns, service-disabled veteran-owned
small business concerns, HUBZone small
business concerns, and women-owned small
business concerns meeting the qualifications
specified in section 519.7007. The Program
requires an Application process and an
Agreement between the mentor and the
´ ´
protege. See GSAR Subpart 519.70 for more
information.
(b) GSA will evaluate a GSA mentor’s
performance on the following factors:
(1) Specific actions taken by the contractor,
during the evaluation period, to increase the
´ ´
participation of its protege as a subcontractor
and supplier;
(2) Specific actions taken by the contractor
during this evaluation period to develop the
technical and corporate administrative
´ ´
expertise of its protege as defined in the
Agreement;
´ ´
(3) To what extent the protege has met the
developmental objectives in the Agreement;
and
(4) To what extent the firm’s participation
´ ´
in the Mentor-Protege Program resulted in
´ ´
the protege receiving competitive contract(s)
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16:09 Aug 13, 2009
Jkt 217001
and subcontract(s) from private firms other
than the mentor, and from agencies.
(c) Semi-annual reports shall be submitted
´ ´
by a GSA mentor to the GSA Mentor-Protege
Program Manager, GSA Office of Small
Business Utilization (E), Washington, DC
20405. The reports must include information
as outlined in paragraph (b) of this section.
The semi-annual report may include a
narrative describing the forms of
developmental assistance a mentor provides
´ ´
to a protege and any other types of
permissible, mutually beneficial assistance.
(d) A GSA mentor will notify the GSA
´ ´
Mentor-Protege Program Manager and the
contracting officer, in writing, at least 30
days in advance of the mentor firm’s intent
to voluntarily withdraw from the GSA
Program or terminate the Agreement, or upon
´ ´
receipt of a protege’s notice to withdraw from
the Program.
´ ´
(e) GSA mentor and protege firms will
submit a ‘‘Lessons Learned’’ evaluation to the
´ ´
GSA Mentor-Protege Program Manager at the
´ ´
conclusion of the Mentor-Protege Agreement.
´ ´
At the end of each year in the Mentor-Protege
´ ´
Program, the mentor and protege, as
appropriate, will formally brief the GSA
´ ´
Mentor-Protege Program manager, the
technical program manager, and the
contracting officer during a formal Program
review regarding Program accomplishments
as they pertain to the approved Agreement.
(f) GSA has the authority to exclude
´ ´
mentor or protege firms from participating in
the GSA Program. If GSA excludes a mentor
´ ´
or a protege from the Program, the GSA
Office of Small Business Utilization will
deliver to the contractor a Notice specifying
the reason for Program exclusion and the
effective date. The exclusion from the
Program does not constitute a termination of
the subcontract between the mentor and the
´ ´
protege. A plan for accomplishing the
subcontract effort should the Agreement be
terminated shall be submitted with the
Agreement as required in section 519.7011(j).
´ ´
(g) Subcontracts awarded to GSA protege
firms under this Program are exempt from
competition requirements, notwithstanding
FAR 52.244–5. However, price
reasonableness should still be determined.
(End of clause)
[FR Doc. E9–19482 Filed 8–13–09; 8:45 am]
41067
amendment effectuates an adjustment
that will enable NHTSA to achieve its
mission more effectively and efficiently.
DATES: Effective Date: The amendment
is effective August 14, 2009.
FOR FURTHER INFORMATION CONTACT: You
may contact Jessica Lang, Office of Chief
Counsel, NHTSA, 1200 New Jersey
Avenue, SE., Washington, DC 20590, by
phone at 202–366–5263, or by fax at
202–366–3820.
SUPPLEMENTARY INFORMATION: This final
rule amends the regulation on
delegation of powers and duties within
the National Highway Traffic Safety
Administration (NHTSA). The
amendment relates solely to the
placement of the delegation of authority
for a function within the agency. It
increases the authority of the Chief
Counsel to compromise civil penalties
and monetary settlements. There is no
substantive effect. Notice and the
opportunity for comment are therefore
not required under the Administrative
Procedure Act. The amendment is
effective immediately upon publication
in the Federal Register. In addition, the
amendment is not subject to Executive
Order 12866, the Department of
Transportation’s regulatory policies and
procedures, or the provisions for
Congressional review of final rules in
Chapter 8 of Title 5, United States Code.
List of Subjects in 49 CFR Part 501
Authorities, Delegations, Organization
and functions, Succession to
Administrator.
■ In consideration of the foregoing, 49
CFR part 501 is amended as follows:
PART 501—[AMENDED]
1. The authority citation for part 501
continues to read as follows:
■
Authority: 49 U.S.C. secs. 105 and 322,
delegation of authority at 49 CFR 1.50.
Amendment effective August 14, 2009.
BILLING CODE 6820–61–S
2. Section 501.8(d)(2) is revised to
read as follows:
■
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 501
[Docket No. NHTSA–2009–0146; Notice 1]
Delegations of Authority
AGENCY: National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
SUMMARY: This document amends
NHTSA’s delegations of authority. The
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
§ 501.8
Delegations.
*
*
*
*
*
(d) * * *
(2) Establish the legal sufficiency of
all investigations and enforcement
actions conducted under the authority
of the following chapters, including
notes, of Title 49 of the United States
Code: Chapter 301; chapter 323; chapter
325; chapter 327; chapter 329; and
chapter 331; to make an initial penalty
demand based on a violations of any of
these chapters; and to compromise any
civil penalty or monetary settlement in
an amount of $100,000 or less resulting
E:\FR\FM\14AUR1.SGM
14AUR1
Agencies
[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Rules and Regulations]
[Pages 41060-41067]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19482]
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 519, and 552
[GSAR Amendment 2009-09; GSAR Case 2006-G501 (Change 37) Docket 2008-
0007; Sequence 6]
RIN 3090-AI56
General Services Administration Acquisition Regulation; GSAR Case
2006-G501, Mentor-Prot[eacute]g[eacute] Program
AGENCIES: General Services Administration (GSA), Office of the Chief
Acquisition Officer.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) to amend
its acquisition regulations to formally encourage GSA prime contractors
to assist small business, including veteran-owned small business,
service-disabled veteran-owned small business, HUBZone, small
disadvantaged business, and women-owned small business, in enhancing
their capabilities to perform contracts and subcontracts for GSA and
other Federal agencies. The program seeks to increase the base of small
business eligible to perform GSA contracts and subcontracts. The
program also seeks to foster long-term business relationships between
GSA prime contractors and small business entities and to increase the
overall number of small business entities that receive GSA contracts,
and subcontract awards.
DATES: Effective Date: September 14, 2009.
Applicability Date: The final rule applies to solicitations and
existing contracts for supplies or services, including Federal Supply
Schedules and construction. Existing contracts shall be modified at no
cost to the Government by mutual agreement of both parties.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-0044. For
information pertaining to status or publication schedules, contact the
Regulatory
[[Page 41061]]
Secretariat (VPR), Room 4041, 1800 F Street, NW, Washington, DC, 20405,
(202) 501-4755. Please cite Amendment 2009-09, GSAR case 2006-G501
(Change 37).
SUPPLEMENTARY INFORMATION:
A. Background
The U.S. General Services Administration (GSA) published a notice
of proposed rulemaking in the Federal Register at 73 FR 32669, June 10,
2008), in which GSA proposed to develop a Mentor-Prot[eacute]g[eacute]
Program that encouraged GSA prime contractors to assist small business,
including small disadvantaged business, veteran-owned, service-disabled
veteran-owned, HUBZone, and women-owned small business in enhancing
their capabilities to perform contracts and subcontracts for GSA and
other Federal agencies. Successful Mentor-Prot[eacute]g[eacute]
arrangements represent opportunities for creating access for small
business to GSA contracts and awards. GSA received comments on the
proposed rule suggesting the Agency clarify the eligible participants
in the Program and the types of incentives GSA may provide to prime
contractors for providing developmental assistance to
prot[eacute]g[eacute]s. After careful consideration of the public
comments received on the notice of proposed rulemaking, GSA is issuing
a final rule.
Resolution of Comments
Twelve commenters submitted comments in response to the proposed
rule. Three of the twelve commenters expressed interest in
participating in the GSA Mentor-Prot[eacute]g[eacute] Program. A
discussion of the comments and the changes made to the rule as a result
of those comments is provided below.
Comment: One commenter recommends that the word ``small'' needs to
be defined. Large businesses ``hide'' behind small businesses.
Response: Non-concur. The comment is outside the scope of this GSAR
case. With the exception of small disadvantaged businesses, 8(a)
Participants and HUBZone small business concerns, all other firms self-
certify in accordance with the definitions in FAR Part 2.
Comment: A commenter states that incentives are insufficient and
suggests monetary reimbursement for mentoring expenses, limited
ownership interest in the prot[eacute]g[eacute], or relaxation of small
business affiliation rule.
Response: Non-concur. GSA does not have legal authority to
incorporate the incentives suggested by the commenter. GSAM 519.7004,
Incentive for Prime Contract Participation, is consistent with the
Mentor-Prot[eacute]g[eacute] Programs of other civilian agencies.
Comment: Two commenters recommend better monitoring of the Mentor-
Prot[eacute]g[eacute] Programs.
Response: GSA is not responsible for the experiences of other
Federal agency Mentor-Prot[eacute]g[eacute] Programs and plans to
carefully monitor the GSA Mentor-Prot[eacute]g[eacute] Program. GSA
anticipates having a very successful program that will be beneficial to
both mentors and prot[eacute]g[eacute]s.
Comment: Under GSAM 519.7003, General Policy, a commenter
recommends the need to address how Mentor-Prot[eacute]g[eacute]
Agreements can be incorporated into small business prime awards and how
evaluation credit during source selection is given to small business
firms that are mentors with small business subcontractors.
Response: Concur. As with other terms and conditions that need
incorporation into a contract, the Mentor-Prot[eacute]g[eacute]
agreement should be incorporated into the small business prime
contractor's contract. In addition, there is nothing in the FAR or GSAR
that precludes establishing source selection criteria that would apply
to both large and small businesses.
Comment: One commenter states that GSAR 519.7004, paragraph (b)
does not appear to belong in this section since it points out that the
mentor's cost are not reimbursable directly but may be reimbursable
once indirect cost rates are established with the cognizant audit
agency. How does this relate to incentives for mentors?
Response: Non-concur. The civilian agencies do not have the
statutory authority that the Department of Defense has for its Mentor-
Prot[eacute]g[eacute] Program; therefore, civilian agency incentives
are limited. GSAM 519.7004, Incentive for Prime Contract Participation,
is consistent with the Mentor-Prot[eacute]g[eacute] Programs of other
civilian agencies.
Comment: One commenter requests specific details about the non-
monetary award in GSAM 519.7004(d). In addition, the commenter
questions why the GSA annual conference in GSAM 519.7004(e) is listed
as an incentive and states that overall there are no true incentives
offered for the time and effort the Mentor Program would require.
Response: Non-concur. GSA will provide the specifics of the non-
monetary award at a later date. The civilian agencies do not have the
statutory authority that the Department of Defense has; therefore, the
incentives for civilian agencies are limited. The GSA annual conference
is an opportunity to network, share Mentor-Prot[eacute]g[eacute]
experiences and share the ``Lessons Learned''. GSAM 519.7004, Incentive
for Prime Contract Participation, is consistent with the Mentor-
Prot[eacute]g[eacute] Programs of other civilian agencies.
Comment: A commenter questions indirect costs and states that these
costs are generally established for cost contracts and certain special
fixed price contracts. The references for indirect cost rates seem to
be entirely out of place and would often be inapplicable to many
competitive firm fixed GSA contracts.
Response: Non-concur. Even though this paragraph may not apply to
many GSA contracts, this is a GSA-wide Mentor-Prot[eacute]g[eacute]
Program that can include contracts that may have indirect costs
associated with it. The intent of the GSA Mentor-Prot[eacute]g[eacute]
Program is to not exclude any potential GSA contracts, including GSA
cost contracts.
Comment: One commenter refers to FAR 15.101-1 which discusses the
trade-off process. The commenter states that the natural implication is
that the evaluation credit is not applicable to lowest-price
technically acceptable source selection, given that tradeoffs are not
permitted in that scenario and should be clearly stated, for it
substantially limits the circumstance under which this incentive could
be applied. The commenter further states that careful distinction is
required since the same paragraph goes on to state that past compliance
with subcontracting plans can be considered as part of past performance
evaluation (trade-off scenario) but also as part of Responsibility
Determinations which are made regardless of whether the trade-off or
LPTA scenario is used so the paragraph is unclear in regard to the
distinction between the two types of source selection.
Response: Non-concur. The FAR clearly explains how the trade-off
process is utilized. The GSAR language at 519.7004(c) states that the
contracting officer ``may'' give mentors evaluation credit under FAR
15.101-1 considerations for subcontracts which means that it may not be
used in all cases.
Comment: Regarding GSAM 519.7005, one commenter suggests that the
regulation address how measurement of the program success within the
first year of the agreement if a Prot[eacute]g[eacute] has not received
a contract award or dollars. Depending on the terms of the agreement,
the first year of the program may involve only development or training;
therefore, contract awards may not be immediate.
[[Page 41062]]
Response: The GSA Mentor-Prot[eacute]g[eacute] Program will not be
measured only on the contract award and dollars. The measurement of
success will include developmental assistance given to the
Prot[eacute]g[eacute] as required by the Mentor-Prot[eacute]g[eacute]
Program.
Comment: One commenter requests clarification on GSAM 519.7006 and
519.7009. GSAM 519.7009 indicates that a large business mentor's
application must include a statement that the firm is currently
performing under at least one active approved subcontracting plan.
However, GSAM 519.7006 states that mentors must either currently be
operating under an approved subcontracting plan under a negotiated
award or must have operated under one for a contract awarded within the
past five years.
Response: Concur. The language has been revised to state that the
large business mentor must currently be performing under an approved
subcontracting plan. The language ``or has performed under at least one
approved subcontracting plan awarded under a negotiated contract within
the last five years'' has been deleted.
Comment: A commenter believes that GSAM 519.7003(c) is vague and
recommends that the provision be changed to state that an active
mentor-prot[eacute]g[eacute] arrangement requires the
prot[eacute]g[eacute] to already be or become a subcontractor under a
GSA contract of the mentor firm that contains a subcontracting plan.
This revision will then be in agreement with GSAM 519.7009(b).
Response: Concur. The language in GSAM 519.7003(c) has been
revised.
Comment: One commenter recommends that the GSAM language be clear
to indicate that this section includes schedules.
Response: Concur. Adopted comment.
Comment: One commenter states that GSAM 519.7004(c) does not
clearly elaborate on the incentives and the associated specifics. The
commenter further states that the current language does not mention
that the mentor can take credit for costs incurred by the mentor. Other
Federal mentor-prot[eacute]g[eacute] programs allow the mentor to
subsequently receive credit towards their subcontracting plan based on
the amount invested. This section combines mentor-prot[eacute]g[eacute]
performance with small business subcontracting plan compliance which
are totally separate elements. Commenter recommends adding language
that explicitly describes the incentive as follows: ``future
solicitations contain a source selection factor or subfactor regarding
the participation in the Mentor-Prot[eacute]g[eacute] Program. In order
to receive credit under source selection factor or subfactor, the
offeror shall provide a signed letter of mentor-prot[eacute]g[eacute]
agreement approval before initial evaluation of proposals. The
contracting officer may, in his or her discretion, give credit for
approvals that occur after the initial evaluation of proposals, but
before final evaluation''. (Currently in DHS and NASA's programs).
Response: Non-concur. With the exception of instances of allowing
indirect costs, costs incurred by the mentor are not allowable.
Comment: A commenter suggests adding language that enables the
mentor to take credit for the developmental assistance provided and how
this credit can be applied. Suggested language: ``Mentors are eligible
to take post-award incentive for subcontracting plan credit whereby the
mentor will receive credit towards its subcontracting plan for costs it
incurs to provide assistance to a prot[eacute]g[eacute] firm. The
mentor may use this additional credit toward achievement of its goal
under the same or another GSA subcontracting plan. GSA may wish to
adjust the credit factor as it sees fit, but it is a federal agency
best practice as represented at DOD, DHS, NASA, and others to
explicitly state how the benefit and credit is determined.''
Response: GSA does not concur. GSA believes that the incentives in
GSAM 519.7004, ``Incentives for prime contractors,'' that includes
coverage whereby mentors may be reimbursed for their indirect costs are
sufficient incentives.
Comment: One commenter recommends removing GSAM 519.7004(c)(2) in
its entirety.
Response: Non-concur. The commenter provides no rationale for its
removal. GSA believes that this subparagraph is an incentive for prime
contractor participation.
Comment: A commenter recommends that GSA, if not at inception, then
at a later date, to provide greater elaboration and detail regarding
the criteria for the OSBU mentoring award.
Response: Concur. After implementation of the GSA Mentor-
Prot[eacute]g[eacute] Program, the Associate Administrator of the
Office of Small Business Utilization (OSBU), will be responsible for
developing the criteria for the OSBU mentoring award.
Comment: One commenter states that GSAM 519.7009 as currently
proposed combines elements of a Mentor Application process and a
Mentor-Prot[eacute]g[eacute] agreement submittal process. It implies
that for each prot[eacute]g[eacute] agreement, a mentor submit an
application. These two elements should be completely separate as
consistent with other Federal agency practices and procedures. The
application for the mentor should not contain requests for the number
of proposed mentor-prot[eacute]g[eacute] arrangements as cited in GSAM
519.7009(b)(2) since it is not known how many will be developed in
outlying years. In addition, the specifics on the type of developmental
assistance GSAM 519.7009(b)(5) to be provided, or that a signed letter
of intent by the mentor and prot[eacute]g[eacute] GSAM 519.7009(b)(6)
be required are not truly indicative of a prime contractor's
eligibility as a mentor. They are elements germane to the development
of a specific mentor-prot[eacute]g[eacute] agreement and should be
incorporated into the ensuing section. By separating the mentor
application process from the agreement submittal process, industry and
Government are given the flexibility in the future to efficiently add a
prot[eacute]g[eacute] or prot[eacute]g[eacute]s as long as it is in
good standing both as a prime contractor and mentor. This will result
in a reduction in the amount of paperwork and time saving for the
Government.
Response: Non-concur. Initially, in the proposed rule, GSA had the
application and the agreement as separate submissions. However, GSA has
determined that it would be less burdensome on both the contractors and
GSA personnel to have the application and agreement combined. This is
consistent with Mentor-Prot[eacute]g[eacute] Programs of other Federal
agencies, such as USAID and Department of Homeland Security.
Comment: One commenter recommends deletion of GSAM 519.7009(b)(2)
requiring mentors to state the number of proposed prot[eacute]g[eacute]
arrangements at the time of mentor application review and mentor-
prot[eacute]g[eacute] agreement process.
Response: Non-concur. GSA is interested in how many
prot[eacute]g[eacute]s the mentor plans to develop.
Comment: Delete GSAM 519.7009(b)(6) requiring a letter of intent be
signed by the prospective mentor and prot[eacute]g[eacute] at the time
of mentor application submittal. This should be a requirement at the
time of mentor-prot[eacute]g[eacute] submittal.
Response: Concur. The final rule now combines the application and
agreement. Therefore, the letter of intent is unnecessary.
Comment: A commenter recommends adding a section in the mentor
application for prospective mentors to provide information on their
previous participation in Federal agency mentor-prot[eacute]g[eacute]
programs. Should the prospective mentor not have any prior
[[Page 41063]]
experience, they should describe the entity's ability to provide
developmental assistance and how that assistance will potentially
increase subcontracting opportunities for prot[eacute]g[eacute]s. This
should be inserted under GSAM 519.7009.
Response: Non-concur. The GSA Mentor-Prot[eacute]g[eacute] Program
stands independently. GSA will be evaluating the mentor-
prot[eacute]g[eacute] relationship on its own merits. Having experience
(positive or negative) on other mentor-prot[eacute]g[eacute] programs
would not add value and would increase the paperwork burden on the
contractor.
Comment: Commenter encourages GSA to review and consider the
current mentor-prot[eacute]g[eacute] application process and forms of
those currently in practice at NASA, DOD or DHS as a baseline.
Response: GSA has reviewed and considered other agencies' mentor-
prot[eacute]g[eacute] application processes and forms and has chosen
the most appropriate to suit GSA's needs.
Comment: Section 519.7017 provides guidance for contracting
officers to insert this clause. It seems to imply that will be only for
new contracts with no clear guidance regarding the GSA contracts
already in place. This will limit the ability for participation by
industry at the onset, thus limiting the potential short-term impact
and success. Recommend that GSA give clear guidance or instructions as
to how existing contracts can be modified to incorporate these new
clauses in order to facilitate industry participated once initiated.
Response: Concur. GSA did not intend for current contractors to be
excluded from participation in the Mentor-Prot[eacute]g[eacute]
Program. GSAM 519.7017 does not need a revision as it states to insert
the clause in all contracts and is not stating newly awarded contracts.
The Federal Register Notice indicates that the final rule applies to
current contracts.
Comment: Two commenters recommend that GSA amend its rule to
include language defining non-profit agencies (NPAs) for people who are
blind or have severe disabilities authorized by the Committee for
Purchase from People Who Are Blind or Severely disabled as
prot[eacute]g[eacute] firms in Section 519.7007(a).
Response: Non-concur. The Small Business Administration regulation,
13 CFR 121.105(a)(1) states: ``Except for small agricultural
cooperatives, a business concern eligible for assistance from SBA as a
small business is a business entity organized for profit, with a place
of business located in the United States, and which operates primarily
within the United States or which makes a significant contribution to
the U.S. economy through payment of taxes or use of American products,
materials or labor.''
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule. The changes may have a significant economic impact on
a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., GSA prepared a Final
Regulatory Flexibility Analysis (FRFA), and it is summarized as
follows:
The GSA Mentor-Prot[eacute]g[eacute] Program will allow small
businesses to become prot[eacute]g[eacute]s and receive
developmental assistance from large business mentors. The GSA
Mentor-Prot[eacute]g[eacute] Program also will allow small
businesses who want to mentor other small businesses to participate
in the program to provide developmental assistance to
prot[eacute]g[eacute]s. This Program encourages fostering the
establishment of long-term business relationships between these
small business entities and GSA prime contractors. It is expected
that the Program will increase the overall number of small business
entities that receive GSA contract and subcontract awards.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat. The Regulatory Secretariat will be submitting a
copy of the FRFA to the Chief Counsel for Advocacy of the Small
Business Administration.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 3090-
0286.
List of Subjects in 48 CFR Parts 501, 519, and 552
Government procurement.
Dated: August 7, 2009.
Rodney P. Lantier,
Acting Senior Procurement Executive, and Acting Deputy Chief
Acquisition Officer, Office of the Chief Acquisition Officer, General
Services Administration.
0
Therefore, GSA amends 48 CFR parts 501, 519, and 552 as set forth
below:
0
1. The authority citation for 48 CFR parts 501, 519, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
0
2. Amend section 501.106, in the table, by adding, in numerical
sequence, GSAR References ``519.70'', ``552.219-75'', ``552.219-76''
and their corresponding OMB Control Number ``3090-0286''.
PART 519--SMALL BUSINESS PROGRAMS
0
3. Add Subpart 519.70, consisting of sections 519.7001 through
519.7017, to read as follows:
Subpart 519.70--GSA Mentor-Prot[eacute]g[eacute] Program
Sec.
519.7001 Scope of subpart.
519.7002 Definitions.
519.7003 General policy.
519.7004 Incentives for prime contractors.
519.7005 Measurement of program success.
519.7006 Mentor firms.
519.7007 Prot[eacute]g[eacute] firms.
519.7008 Selection of prot[eacute]g[eacute] firms.
519.7009 Application process.
519.7010 Agreement contents.
519.7011 Application review.
519.7012 Developmental assistance.
519.7013 Obligation.
519.7014 Internal controls.
519.7015 Reports.
519.7016 Program review.
519.7017 Contract clauses.
Subpart 519.70--GSA Mentor-Prot[eacute]g[eacute] Program
519.7001 Scope of subpart.
The GSA Mentor-Prot[eacute]g[eacute] Program is designed to
encourage and motivate GSA prime contractors to assist small businesses
concerns, small disadvantaged businesses concerns, women-owned small
businesses concerns, veteran-owned small business concerns, service-
disabled veteran-owned small businesses concerns, and HUBZone small
businesses concerns, and enhance their capability of performing
successfully on GSA contracts and subcontracts, foster the
establishment of long-term business relationships between these small
business entities and GSA prime contractors, and increase the overall
number of small business entities that receive GSA contract and
subcontract awards.
519.7002 Definitions.
The definitions of small business concern, small disadvantaged
business concern, HUBZone small business concern, women-owned small
business concern, veteran-owned small business
[[Page 41064]]
concern, and service-disabled veteran-owned small business concern are
the same as found in FAR 2.101. Also see 13 CFR 121, 124, 125 and 126.
(a) Mentor as used in the GSA Mentor-Prot[eacute]g[eacute] Program,
is a prime contractor that elects, on a specific GSA contract, to
promote and develop small business subcontractors by providing
developmental assistance designed to enhance the business success of
the prot[eacute]g[eacute].
(b) Mentor-Prot[eacute]g[eacute] Program Manager means an employee
in the Office of Small Business Utilization (OSBU) (E) designated by
the Associate Administrator of OSBU to manage the Mentor-
Prot[eacute]g[eacute] Program.
(c) Prot[eacute]g[eacute] as used in the GSA Mentor-
Prot[eacute]g[eacute] Program is a small business concern that is the
recipient of developmental assistance pursuant to a mentor-
prot[eacute]g[eacute] arrangement on a specific GSA contract.
519.7003 General policy.
(a) A large business prime contractor that meets the requirements
at section 519.7006, and is approved as a mentor firm by the Mentor-
Prot[eacute]g[eacute] Program Manager, may enter into an Agreement with
a small business concern, small disadvantaged business concern, women-
owned small business concern, veteran-owned small business concern,
service-disabled veteran-owned small business concern or HUBZone small
business concern that meets the requirements for being a
prot[eacute]g[eacute] (see 519.7007) in order to provide appropriate
developmental assistance to enhance the capabilities of the
prot[eacute]g[eacute] to perform successfully as a subcontractor and
supplier.
(b) A small business prime contractor that is capable of providing
developmental assistance to prot[eacute]g[eacute]s, may also be
approved as a mentor.
(c) An active mentor-prot[eacute]g[eacute] arrangement requires the
prot[eacute]g[eacute] to either be a current or newly selected
subcontractor under the mentor's prime contract with GSA.
(d) A small business concern's status as a prot[eacute]g[eacute]
under a GSA contract shall not have an effect on its ability to seek
other prime contracts or subcontracts.
(e) Potential Mentors may submit an application for admittance to
the Mentor-Prot[eacute]g[eacute] Program at any time as long as the
requirements at section 519.7006 are met.
(f) The determination of affiliation is a function of the SBA.
519.7004 Incentives for prime contractors.
(a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), the GSA
is authorized to provide appropriate incentives to prime contractors in
order to encourage subcontracting opportunities for small business
concerns consistent with the efficient and economical performance of
the contract. This authority is limited to negotiated procurements,
including the GSA Multiple Award Schedule contracts and the GSA
Governmentwide Acquisition Contracts. It does not include orders under
any GSA contracts.
(b) Costs incurred by a mentor to provide developmental assistance,
as described in section 519.7012 to fulfill the terms of their
agreement(s) with a prot[eacute]g[eacute] firm(s), are not reimbursable
as a direct cost under a GSA contract. If GSA is the mentor's
responsible audit agency under FAR 42.703-1, GSA will consider these
costs in determining indirect cost rates. If GSA is not the responsible
audit agency, mentors are encouraged to enter into an advance agreement
with their responsible audit agency on the treatment of such costs when
determining indirect cost rates.
(c) In addition to paragraph (b) of this section, contracting
officers may give mentors evaluation credit during the source selection
process for subcontracts awarded under their subcontracting plans
pursuant to their Mentor-Prot[eacute]g[eacute] Agreements. (See FAR
15.101-1). Therefore:
(1) Contracting officers may evaluate proposals with subcontracting
plans containing Mentor-Prot[eacute]g[eacute] Agreements more favorably
than proposals with subcontracting plans that do not include Mentor-
Prot[eacute]g[eacute] Agreements; and
(2) Contracting officers may assess the prime contractor's
compliance with the subcontracting plans submitted in previous
contracts as a factor in evaluating past performance under certain
circumstances (see FAR 15.304(c)(3) and 15.305(a)(2)(v)) and
determining contractor responsibility FAR section 19.705-5(a)(1).
(d) OSBU Mentoring Award. A non-monetary award may be presented
annually to the mentoring firm providing the most effective
developmental support of a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to
the Administrator of GSA.
(e) OSBU Mentor-Prot[eacute]g[eacute] Annual Conference. At the
conclusion of each year in the Mentor-Prot[eacute]g[eacute] Program,
mentor firms will be invited to brief contracting officers, program
leaders, office directors, and other guests on their experience and
progress under the Program. Participation is voluntary.
519.7005 Measurement of program success.
The overall success of the GSA Mentor-Prot[eacute]g[eacute] Program
encompassing all participating mentors and prot[eacute]g[eacute]s will
be measured by the extent to which it results in:
(a) An increase in the number, dollar value, and percentage of
subcontracts awarded to prot[eacute]g[eacute]s by mentor firms under
GSA contracts since the date of entry into the Program. The baseline
that demonstrates an increase is determined by comparing the number and
total dollar amount of subcontract awards made to the identified
prot[eacute]g[eacute] firm(s) during the two preceding fiscal years (if
any) that are listed in application;
(b) An increase in the number and dollar value of contract and
subcontract awards (including percentage of subcontract awards) to
prot[eacute]g[eacute] firms since the date of the
prot[eacute]g[eacute]'s entry into the Program (under GSA contracts and
contracts awarded by other Federal agencies);
(c) An increase in the number and dollar value of subcontracts
awarded to a prot[eacute]g[eacute] firm by its mentor firm; and
(d) An increase in subcontracting with prot[eacute]g[eacute] firms
in industry categories where they have not traditionally participated
within the mentor firm's activity (i.e., the prot[eacute]g[eacute] is
expanding its field of expertise or is increasing its opportunities in
areas where it has not traditionally performed).
(e) Assessments of the semi-annual reports submitted by the mentors
and ``Lessons Learned'' evaluation submitted by the mentors and
prot[eacute]g[eacute]s to the GSA Mentor-Prot[eacute]g[eacute] Program
Manager.
519.7006 Mentor firms.
(a) Mentors must be:
(1) A large business prime contractor that is currently performing
under an approved subcontracting plan as required by FAR 19.7 - Small
business mentors are exempted; or
(2) A small business prime contractor that can provide
developmental assistance to enhance the capabilities of
prot[eacute]g[eacute]s to perform as contractors, subcontractors, and
suppliers;
(b) Must be eligible (not listed in the ``Excluded Parties List
System'') for U.S. Government contracts and not excluded from the
Mentor-Prot[eacute]g[eacute] Program under section 519.7014(b);
(c) Must be able to provide developmental assistance that will
enhance the ability of prot[eacute]g[eacute]s to perform as contractors
and subcontractors; and
[[Page 41065]]
(d) Must provide semi-annual reports detailing the assistance
provided and the cost incurred in supporting prot[eacute]g[eacute]s.
519.7007 Prot[eacute]g[eacute] firms.
(a) For selection as a prot[eacute]g[eacute], a firm must be:
(1) A small business concern, small disadvantaged business concern,
veteran-owned small business concern, service-disabled veteran-owned
small business concern, HUBZone small business concern, or women-owned
small business concern;
(2) Small for the NAICS code the prime contractor/mentor assigns to
the subcontract; and
(3) Eligible (not listed in the ``Excluded Parties List System'')
for U.S. Government contracts and not excluded from the Mentor-
Prot[eacute]g[eacute] Program under section 519.7014(b).
(b) A prot[eacute]g[eacute] firm may self-represent to a mentor
firm that it meets the requirements set forth in paragraph (a) of this
section. Mentors may check the Central Contractor Registration (CCR) at
www.ccr.gov to verify that the self-representation of the potential
prot[eacute]g[eacute] meets the specified small business and
socioeconomic category eligibility requirements (see FAR 19.703(b) and
(d)). HUBZone and small disadvantaged business status eligibility and
documentation requirements are determined according to 13 CFR Parts 124
and 126.
(c) A prot[eacute]g[eacute] firm must not have another formal,
active mentor-prot[eacute]g[eacute] relationship under GSA's Mentor-
Prot[eacute]g[eacute] Program but may have an active mentor-
prot[eacute]g[eacute] relationship under another agency's program.
519.7008 Selection of prot[eacute]g[eacute] firms.
(a) Mentor firms will be solely responsible for selecting
prot[eacute]g[eacute] firms. Mentors are encouraged to select from a
broad base of small business concerns including small disadvantaged
business concerns, women-owned small business concerns, veteran-owned
small business concerns, service-disabled veteran-owned small business
concerns, and HUBZone small business concerns. A prot[eacute]g[eacute]
must be either a current subcontractor or a newly selected
subcontractor for the prime contractor's GSA contract.
(b) Mentor firms may have more than one prot[eacute]g[eacute]. GSA
reserves the right to limit the number of prot[eacute]g[eacute]s
participating under each mentor firm.
(c) The selection of prot[eacute]g[eacute] firms by mentor firms is
not protestable, except for a protest regarding the size or eligibility
status of an entity selected by a mentor to be a prot[eacute]g[eacute].
Such protests shall be handled in accordance with FAR 19.703(b). The
contracting officer shall notify the Office of Small Business
Utilization (OSBU) of the protest.
519.7009 Application process.
(a) Prime contractors interested in becoming a mentor firm must
apply in writing by submitting the GSA Form 3695 to the GSA Mentor-
Prot[eacute]g[eacute] Program Manager, at GSA Office of Small Business
Utilization (E), Washington, DC 20405. The Application shall include
the Mentor-Prot[eacute]g[eacute] Agreement and will be evaluated for
approval based on the extent to which the company plans to provide
developmental assistance.
(b) The application must contain:
(1) A statement that the mentor firm is currently performing under
at least one active approved subcontracting plan (small business
exempted) and the firm is eligible, as of the date of Application, for
the award of Federal contracts;
(2) The number of proposed prot[eacute]g[eacute] arrangements;
(3) Data on all current GSA contracts, and subcontracts including
the contract/subcontract number(s), type of contract(s), period of
performance (including options), contract/subcontract value(s)
including options, technical program effort(s) (program title), name of
GSA Project Manager or Contracting Officer's Representative (including
contact information), name of contracting officer(s) and contact
information, and awarding GSA installation;
(4) Data on total number and dollar value of subcontracts awarded
under GSA prime contracts within the past 2 years and the number and
dollar value of such subcontracts awarded to entities who are proposed
prot[eacute]g[eacute]s;
(5) Information on the proposed types of developmental assistance.
For each proposed mentor-prot[eacute]g[eacute] relationship include
information on the company's ability to provide developmental
assistance to the identified prot[eacute]g[eacute] firm and how that
assistance will potentially increase subcontracting opportunities for
the prot[eacute]g[eacute] firm, including subcontracting opportunities
in industry categories where these entities are not dominant in the
company's current subcontractor base; and
(6) Agreement information as listed in 519.7010.
519.7010 Agreement contents.
The contents of the Agreement must contain:
(a) Names, addresses (including facsimile, e-mail, and homepage)
and telephone numbers of mentor and prot[eacute]g[eacute] firms and the
name, telephone number, and position title within both firms of the
person who will oversee the Agreement.
(b) An eligibility statement from the prot[eacute]g[eacute] stating
that it is a small business, its primary NAICS code, and when
applicable the type of small business (small disadvantaged business
concern, HUBZone small business concern, women-owned small business
concern, veteran-owned small business concern, or service-disabled
veteran-owned small business concern).
(c) A description of the type of developmental assistance that will
be provided by the mentor firm to the prot[eacute]g[eacute] firm (see
519.7012).
(d) Milestones for providing the identified developmental
assistance.
(e) Factors to assess the prot[eacute]g[eacute] firm's
developmental progress under the Program.
(f) The anticipated dollar value and type of subcontracts that may
be awarded to the prot[eacute]g[eacute] firm consistent with the extent
and nature of mentor firm's business, and the period of time over which
they may be awarded.
(g) Program participation term: State the period of time over which
the developmental assistance will be performed.
(h) Mentor termination procedures: Describe the procedures
applicable to the mentor firm when notifying the Prot[eacute]g[eacute]
firm, in writing and at least 30 days in advance, of the mentor firm's
intent to voluntarily withdraw its participation in the Program, or to
terminate the Agreement.
(i) Prot[eacute]g[eacute] termination procedures: Describe the
procedures applicable to the prot[eacute]g[eacute] firm when notifying
the mentor firm, in writing at least 30 days in advance, of the
prot[eacute]g[eacute] firm's intent to terminate the Mentor-
Prot[eacute]g[eacute] Agreement.
(j) Plan for accomplishing contract work should the Mentor-
Prot[eacute]g[eacute] Agreement be terminated or a party excluded under
519.7014(b). The mentor's prime contract with GSA continues even if the
Mentor-Prot[eacute]g[eacute] Agreement or the Mentor-
Prot[eacute]g[eacute] Program is discontinued.
(k) The prot[eacute]g[eacute] must agree to provide input into the
mentor firm's semi-annual reports (see 519.7015). The
prot[eacute]g[eacute] must submit a ``Lessons Learned'' evaluation
along with the mentor firm at the conclusion of the Mentor-
Prot[eacute]g[eacute] agreement.
(l) Other terms and conditions as specified by the Mentor-
Prot[eacute]g[eacute] Manager on a case-by-case basis.
519.7011 Application review.
(a) The Mentor-Prot[eacute]g[eacute] Program Manager will review
the information specified in section 519.7009(b) and
[[Page 41066]]
519.7010 to establish the Mentor's and Prot[eacute]g[eacute]'s
eligibility and to ensure all necessary information is included. If the
application relates to a specific contract, then the Mentor-
Prot[eacute]g[eacute] Program Manager will consult with the applicable
contracting officer regarding the adequacy of the proposed Agreement,
as appropriate. The Mentor-Prot[eacute]g[eacute] Program Manager will
complete its review no later than 30 days after receipt of the
application. The contracting officer must provide feedback to the
Program Manager no later than 10 days after receipt of the application.
(b) After the Mentor-Prot[eacute]g[eacute] Program Manager
completes its review and provides written approval, the Mentor may
execute the Agreement and implement the developmental assistance as
provided under the Agreement. The Mentor-Prot[eacute]g[eacute] Program
Manager will provide a copy of the Mentor-Prot[eacute]g[eacute]
Agreement to the GSA contracting officer for any GSA contracts affected
by the Agreement.
(c) The Agreement defines the relationship between the Mentor and
the Prot[eacute]g[eacute] firms only. The Agreement itself does not
create any privity of contract or contractual relationship between the
Mentor and GSA nor the Prot[eacute]g[eacute] and GSA.
(d) If the Agreement is disapproved, the Mentor may provide
additional information for reconsideration. The Mentor-
Prot[eacute]g[eacute] Program Manager will complete the review of any
supplemental information no later than 30 days after its receipt. Upon
finding deficiencies that GSA considers correctable, the Mentor-
Prot[eacute]g[eacute] Program Manager will notify the Mentor and
Prot[eacute]g[eacute] and request correction of the deficiencies to be
provided within 15 days.
519.7012 Developmental assistance.
The forms of developmental assistance a mentor can provide to a
prot[eacute]g[eacute] include:
(a) Management guidance relating to--
(1) Financial management;
(2) Organizational management;
(3) Overall business management/planning; and
(4) Business development.
(b) Engineering and other technical assistance.
(c) Loans.
(d) Rent-free use of facilities and/or equipment.
(e) Temporary assignment of personnel to the prot[eacute]g[eacute]
for purpose of training.
(f) Any other types of developmental assistance approved by the GSA
Mentor-Prot[eacute]g[eacute] Program Manager.
519.7013 Obligation.
(a) The mentor or prot[eacute]g[eacute] may terminate the Agreement
in accordance with 519.7010. The mentor will notify the Mentor-
Prot[eacute]g[eacute] Program Manager and the contracting officer, in
writing, at least 30 days in advance of the mentor firm's intent to
voluntarily withdraw from the Program or to terminate the Agreement, or
upon receipt of a prot[eacute]g[eacute]'s notice to withdraw from the
Program.
(b) Mentor and prot[eacute]g[eacute] firms will submit a ``Lessons
Learned'' evaluation to the GSA Mentor-Prot[eacute]g[eacute] Program
Manager at the conclusion or termination of each Mentor-
Prot[eacute]g[eacute] Agreement or withdrawal from the Mentor-
Prot[eacute]g[eacute] program.
519.7014 Internal controls.
(a) The GSA Mentor-Prot[eacute]g[eacute] Program Manager will
manage the Program. Internal controls will be established by the
Mentor-Prot[eacute]g[eacute] Program Manager to achieve the stated
Program objectives (by serving as checks and balances against undesired
actions or consequences) such as:
(1) Reviewing and evaluating mentor Applications for realism,
validity and accuracy of provided information;
(2) Monitoring each Mentor-Prot[eacute]g[eacute] Agreement by
reviewing semi-annual progress reports submitted by mentors and
prot[eacute]g[eacute]s on prot[eacute]g[eacute] development to measure
prot[eacute]g[eacute] progress against the master plan contained in the
approved Agreement;
(3) Monitoring milestones in the Agreement (see 519.7010); and
(4) Evaluating ``Lessons Learned'' submitted by the Mentor and the
Prot[eacute]g[eacute] as required by section 519.7013 to improve the
GSA Mentor-Prot[eacute]g[eacute] Program.
(b)(1) GSA has the authority to exclude mentor or
prot[eacute]g[eacute] firms from participating in the GSA Program.
(2) GSA may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] Agreement if it determines that such action is in
GSA's best interest. The rescission shall be in writing and sent to the
Mentor and prot[eacute]g[eacute] after approval by the Director of
OSBU. Rescission of an Agreement does not change the terms of any
subcontract between the Mentor and the Prot[eacute]g[eacute].
(3) Exclusion from the Program does not constitute a termination of
the subcontract between the mentor and the prot[eacute]g[eacute].
519.7015 Reports.
(a) Semi-annual reports shall be submitted by the mentor to the GSA
Mentor-Prot[eacute]g[eacute] Program manager to include information as
outlined in section 552.219-76(c).
(b) Prot[eacute]g[eacute]s must agree to provide input into the
mentor firm's semi-annual reports detailing the assistance provided and
goals achieved since agreement inception. However, for cost
reimbursable contracts, costs associated with the preparation of these
reports are unallowable costs under these Government contracts and will
not be reimbursed by the Government.
(c) The GSA contracting officer, or if applicable the technical
program manager, shall include an assessment of the prime contractor's
(mentor's) performance in the Mentor-Prot[eacute]g[eacute] Program in a
quarterly ``Strengths and Weaknesses'' evaluation report. A copy of
this assessment will be provided to the Mentor-Prot[eacute]g[eacute]
Program Manager and to the mentor and prot[eacute]g[eacute].
519.7016 Program review.
At the conclusion of each year in the Mentor-Prot[eacute]g[eacute]
Program (anniversary date of the Mentor-Prot[eacute]g[eacute] Program),
the prime contractor and prot[eacute]g[eacute], as appropriate, will
formally brief the GSA Mentor-Prot[eacute]g[eacute] Program Manager,
the technical program manager, and the contracting officer regarding
Mentor-Prot[eacute]g[eacute] Program accomplishments pertaining to the
approved Agreement.
519.7017 Contract clauses.
(a) The contracting officer shall insert the clause at 552.219-75,
GSA Mentor-Prot[eacute]g[eacute] Program, in all unrestricted
solicitations (not set aside) and contracts that exceed the simplified
acquisition threshold that offer subcontracting opportunities or in the
case of a small business, that can offer developmental assistance to a
small business prot[eacute]g[eacute].
(b) The contracting officer shall insert the clause at 552.219-76,
Mentor Requirements and Evaluation, in contracts anticipated to exceed
the simplified acquisition threshold where the prime contractor has
signed a Mentor-Prot[eacute]g[eacute] Agreement with GSA.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add sections 552.219-75 and 552.219-76 to read as follows:
552.219-75 GSA Mentor-Prot[eacute]g[eacute] Program.
As prescribed in 519.7017(a), insert the following clause:
GSA MENTOR-PROT[Eacute]G[Eacute] PROGRAM ([SEP 2009])
(a) Prime contractors, including small businesses, are
encouraged to participate in the GSA Mentor-Prot[eacute]g[eacute]
Program for the purpose of providing developmental assistance to
eligible prot[eacute]g[eacute] entities to
[[Page 41067]]
enhance their capabilities and increase their participation in GSA
contracts.
(b) The Program consists of:
(1) Mentor firms are large prime contractors with at least one
active subcontracting plan, or that are eligible small businesses;
(2) Prot[eacute]g[eacute]s are subcontractors to the prime
contractor, and include small business concerns, small disadvantaged
business concerns, veteran-owned small business concerns, service-
disabled veteran-owned small business concerns, HUBZone small
business concerns, and women-owned small business concerns meeting
the qualifications specified in Subpart 519.70; and
(3) Mentor-prot[eacute]g[eacute] Applications and Agreements,
approved by the Mentor-Prot[eacute]g[eacute] Program Manager in the
GSA Office of Small Business Utilization (OSBU).
(c) Mentor participation in the Program means providing
technical, managerial and financial assistance to aid
prot[eacute]g[eacute]s in developing requisite high-tech expertise
and business systems to compete for and successfully perform GSA
contracts and subcontracts.
(d) Contractors interested in participating in the Program are
encouraged to read FAR Subpart 19.7 and to contact the GSA Office of
Small Business Utilization (E), Washington, DC 20405, (202) 501-
1021, for further information.
(End of clause)
552.219-76 Mentor Requirements and Evaluation.
As prescribed in 519.7017(b), insert the following clause:
MENTOR REQUIREMENTS AND EVALUATION ([SEP 2009])
(a) The purpose of the GSA Mentor-Prot[eacute]g[eacute] Program
is for a GSA prime contractor to provide developmental assistance to
certain subcontractors qualifying as prot[eacute]g[eacute]s.
Eligible prot[eacute]g[eacute]s include small business concerns,
small disadvantaged business concerns, veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, and women-owned small business
concerns meeting the qualifications specified in section 519.7007.
The Program requires an Application process and an Agreement between
the mentor and the prot[eacute]g[eacute]. See GSAR Subpart 519.70
for more information.
(b) GSA will evaluate a GSA mentor's performance on the
following factors:
(1) Specific actions taken by the contractor, during the
evaluation period, to increase the participation of its
prot[eacute]g[eacute] as a subcontractor and supplier;
(2) Specific actions taken by the contractor during this
evaluation period to develop the technical and corporate
administrative expertise of its prot[eacute]g[eacute] as defined in
the Agreement;
(3) To what extent the prot[eacute]g[eacute] has met the
developmental objectives in the Agreement; and
(4) To what extent the firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute]
receiving competitive contract(s) and subcontract(s) from private
firms other than the mentor, and from agencies.
(c) Semi-annual reports shall be submitted by a GSA mentor to
the GSA Mentor-Prot[eacute]g[eacute] Program Manager, GSA Office of
Small Business Utilization (E), Washington, DC 20405. The reports
must include information as outlined in paragraph (b) of this
section. The semi-annual report may include a narrative describing
the forms of developmental assistance a mentor provides to a
prot[eacute]g[eacute] and any other types of permissible, mutually
beneficial assistance.
(d) A GSA mentor will notify the GSA Mentor-
Prot[eacute]g[eacute] Program Manager and the contracting officer,
in writing, at least 30 days in advance of the mentor firm's intent
to voluntarily withdraw from the GSA Program or terminate the
Agreement, or upon receipt of a prot[eacute]g[eacute]'s notice to
withdraw from the Program.
(e) GSA mentor and prot[eacute]g[eacute] firms will submit a
``Lessons Learned'' evaluation to the GSA Mentor-
Prot[eacute]g[eacute] Program Manager at the conclusion of the
Mentor-Prot[eacute]g[eacute] Agreement. At the end of each year in
the Mentor-Prot[eacute]g[eacute] Program, the mentor and
prot[eacute]g[eacute], as appropriate, will formally brief the GSA
Mentor-Prot[eacute]g[eacute] Program manager, the technical program
manager, and the contracting officer during a formal Program review
regarding Program accomplishments as they pertain to the approved
Agreement.
(f) GSA has the authority to exclude mentor or
prot[eacute]g[eacute] firms from participating in the GSA Program.
If GSA excludes a mentor or a prot[eacute]g[eacute] from the
Program, the GSA Office of Small Business Utilization will deliver
to the contractor a Notice specifying the reason for Program
exclusion and the effective date. The exclusion from the Program
does not constitute a termination of the subcontract between the
mentor and the prot[eacute]g[eacute]. A plan for accomplishing the
subcontract effort should the Agreement be terminated shall be
submitted with the Agreement as required in section 519.7011(j).
(g) Subcontracts awarded to GSA prot[eacute]g[eacute] firms
under this Program are exempt from competition requirements,
notwithstanding FAR 52.244-5. However, price reasonableness should
still be determined.
(End of clause)
[FR Doc. E9-19482 Filed 8-13-09; 8:45 am]
BILLING CODE 6820-61-S