Federal Acquisition Regulation: Small Business Subcontracting Improvements, 32909-32922 [2015-14055]
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(iv) Review and disposition of
informal complaints.
(A) Where it appears from the
NDBEDP certified program’s answer, or
from other communications with the
parties, that an informal complaint has
been satisfied, the Commission may, in
its discretion, consider the matter closed
without response to the complainant or
NDBEDP certified program. In all other
cases, the Commission shall inform the
parties of its review and disposition of
a complaint filed under this subpart.
Where practicable, this information
shall be transmitted to the complainant
and NDBEDP certified program in the
manner requested by the complainant.
(B) A complainant unsatisfied with
the NDBEDP certified program’s
response to the informal complaint and
the Commission’s disposition of the
informal complaint may file a formal
complaint with the Commission
pursuant to paragraph (i)(2) of this
section.
(2) Formal complaints. Formal
complaints against an NDBEDP certified
program may be filed in the form and
in the manner prescribed under §§ 1.720
through 1.736 of this chapter.
Commission staff may grant waivers of,
or exceptions to, particular
requirements under §§ 1.720 through
1.736 of this chapter for good cause
shown; provided, however, that such
waiver authority may not be exercised
in a manner that relieves, or has the
effect of relieving, a complainant of the
obligation under §§ 1.720 and 1.728 of
this chapter to allege facts which, if
true, are sufficient to constitute a
violation or violations of section 719 of
the Act or this subpart.
(3) Actions by the Commission on its
own motion. The Commission may on
its own motion conduct such inquiries
and hold such proceedings as it may
deem necessary to enforce the
requirements of this subpart and section
719 of the Communications Act. The
procedures to be followed by the
Commission shall, unless specifically
prescribed in the Act and the
Commission’s rules, be such as in the
opinion of the Commission will best
serve the purposes of such inquiries and
proceedings.
(j) Whistleblower protections.
(1) NDBEDP certified programs shall
permit, without reprisal in the form of
an adverse personnel action, purchase
or contract cancellation or
discontinuance, eligibility
disqualification, or otherwise, any
current or former employee, agent,
contractor, manufacturer, vendor,
applicant, or recipient, to disclose to a
designated official of the certified
program, the NDBEDP Administrator,
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the TRS Fund Administrator, the
Commission’s Office of Inspector
General and Enforcement Bureau, or to
any federal or state law enforcement
entity, any known or suspected
violations of the Act or Commission
rules, or any other activity that the
reporting person reasonably believes to
be unlawful, wasteful, fraudulent, or
abusive, or that otherwise could result
in the improper distribution of
equipment, provision of services, or
billing to the TRS Fund.
(2) NDBEDP certified programs shall
include these whistleblower protections
with the information they provide about
the program in any employee
handbooks or manuals, on their Web
sites, and in other appropriate
publications.
(k) Suspension or revocation of
certification.
(1) The Commission may suspend or
revoke NDBEDP certification if, after
notice and opportunity for hearing, the
Commission determines that such
certification is no longer warranted.
(2) In the event of suspension or
revocation, the Commission shall take
such steps as may be necessary,
consistent with this subpart, to ensure
continuity of the NDBEDP for the state
whose program has been suspended or
revoked.
(3) The Commission may, at its
discretion and on its own motion,
require a certified program to submit
documentation demonstrating ongoing
compliance with the Commission’s
rules.
[FR Doc. 2015–13718 Filed 6–9–15; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 2, 15, 19, and 52
[FAR Case 2014–003; Docket No. 2014–
0003, Sequence No. 1]
RIN 9000–AM91
Federal Acquisition Regulation: Small
Business Subcontracting
Improvements
Department of Defense (DoD),
General Services Administration (GSA),
and the National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCY:
DoD, GSA, and NASA are
proposing to amend the Federal
SUMMARY:
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Acquisition Regulation (FAR) to
implement regulatory changes made by
the Small Business Administration,
which provide for a Governmentwide
policy on small business subcontracting.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat Division at one of the
addresses shown below on or before
August 10, 2015 to be considered in the
formation of the final rule.
ADDRESSES: Submit comments in
response to FAR case 2014–003 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching ‘‘FAR Case 2014–003’’. Select
the link ‘‘Comment Now’’ that
corresponds with ‘‘FAR Case 2014–
003.’’ Follow the instructions provided
on the screen. Please include your
name, company name (if any), and
‘‘FAR Case 2014–003’’ on your attached
document.
• Mail: General Services
Administration, Regulatory Secretariat
Division (MVCB), ATTN: Ms. Flowers,
1800 F. Street NW., 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments
only and cite FAR Case 2014–003, in all
correspondence related to this case. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Mahruba Uddowla, Procurement
Analyst, at 703–605–2868 for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at 202–501–4755.
Please cite FAR Case 2014–003.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing
to revise the FAR to implement
regulatory changes made by the Small
Business Administration (SBA) in its
final rule at 78 FR 42391, dated July 16,
2013, concerning small business
subcontracting. Among other things,
SBA’s final rule implements the
statutory requirements set forth at
sections 1321 and 1322 of the Small
Business Jobs Act of 2010 (Jobs Act),
(Pub. L. 111–240).
• Section 1321 of the Jobs Act
requires promulgation of regulations on
subcontracting compliance relating to
small business concerns, including
assignment of compliance
responsibilities between contracting
offices, small business offices, and
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program offices and periodic oversight
and review activities.
• Section 1322 of the Jobs Act
amends the Small Business Act (15
U.S.C. 637(d)(6)) to require as part of a
subcontracting plan that a prime
contractor make a good faith effort to
utilize a small business subcontractor
during performance of a contract to the
same degree the prime contractor relied
on the small business in preparing and
submitting its bid or proposal. If a prime
contractor does not utilize a small
business subcontractor as described
above, the prime contractor is required
to explain, in writing, to the contracting
officer the reasons why it is unable to
do so.
SBA’s final rule revised 13 CFR 125.3,
and also implemented changes aimed at
improving subcontracting regulations to
increase small business opportunities.
These changes include:
• Authorizing contracting officers to
establish subcontracting goals in terms
of total contract dollars in addition to
the required goals in terms of total
subcontracted dollars, for individual
plans.
• Providing contracting officers
discretion to require a subcontracting
plan in instances where a prime
contractor’s size status changes from
small to other than small business as a
result of rerepresentation.
• Requiring subcontracting plans, to
the extent that subcontracting
opportunities exist, when a
modification causes the overall contract
value to exceed the subcontracting plan
threshold, even if the modification’s
value is less than the threshold.
• Requiring prime contractors to
assign North American Industry
Classification System (NAICS) codes to
subcontracts.
• Providing that prime contractors
cannot prohibit a subcontractor from
discussing payment or utilization
matters with the contracting officer.
• Requiring prime contractors to
resubmit a corrected subcontracting
report within 30 days of receiving the
contracting officer’s notice of report
rejection.
• Clarifying a requirement that prime
contractors notify unsuccessful offerors
for subcontracts in writing.
• Requiring prime contractors with
individual subcontracting plans to
report order level subcontracting
information.
• Clarifying that failure to comply in
good faith with the subcontracting plan
shall be a material breach of the contract
and may be considered in any past
performance evaluation of the prime
contractor.
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The proposed rule will implement a
change in the method that Federal
agencies will receive small business
subcontracting credit. Historically, the
agency that awards the contract also
receives the small business
subcontracting credit. The proposed
rule changes this model by allowing the
funding agency to receive the small
business credit. SBA implemented this
change of providing funding agency
credit in its final rule in deference to the
concerns expressed by the users of
multi-agency contracts (MACs) and
Government-wide acquisition contracts
(GWACs), who have long been of the
opinion that the agencies using these
vehicles, i.e., the funding agencies,
should receive the small business
subcontracting credit. For consistency,
this proposed FAR rule implements the
requirement for funding agencies
receiving small business subcontracting
credit for all contract vehicles, not just
MACs and GWACs.
This proposed FAR rule also changes
the requirement for a prime contractor
to submit Summary Subcontract Reports
(SSRs) for DoD and NASA contracts to
be annually rather than semi-annually,
and deletes the requirement for a prime
contractor to submit a separate report to
each DoD component for construction
and related maintenance and repair
contracts.
II. Discussion and Analysis
Amendments to FAR subparts 1.1,
2.1, 15.3, 19.3, 19.7, and 52.2 are
proposed by this rule. The proposed
changes are summarized in the
following paragraphs.
A. FAR Subpart 1.1, Purpose,
Authority, Issuance. Section 1.106
under this subpart is amended to reflect
the new Paperwork Burden OMB
clearance number associated with the
requirement of section 1322 of the Jobs
Act.
B. FAR Subpart 2.1, Definitions. This
subpart is amended to revise the
definitions of HUBZone contract and
HUBZone small business concern to
clarify that HUBZone status is not a selfcertification. The clarification is
necessary due to instances of some
small business concerns located in
HUBZones identifying themselves as
HUBZone small business concerns
without realizing that business concerns
may not self-certify as a HUBZone small
business concern. A certified HUBZone
small business concern is one on the
List of Qualified HUBZone Small
Business Concerns maintained by the
Small Business Administration. This
subpart is also amended to revise the
definition of ‘‘small business
subcontractor.’’
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C. FAR Subpart 15.3, Source
Selection.
• FAR 15.304, Evaluation factors and
significant subfactors. This section is
amended to make minor editorial
changes.
D. FAR Subpart 19.3, Determination
of Small Business Status for Small
Business Programs.
• FAR 19.301–2, Rerepresentation by
a contractor that represented itself as a
small business concern. This subsection
is amended to give contracting officers
the discretionary authority to require a
subcontracting plan in the event a prime
contractor’s size changes from small to
other than small as a result of a size
rerepresentation on a contract that
contains FAR clause 52.219–9, Small
Business Subcontracting Plan.
E. FAR Subpart 19.7, The Small
Business Subcontracting Program.
• FAR 19.701, Definitions. This
section is amended to reflect the
common usage name of ‘‘individual
subcontracting plans’’ instead of
‘‘individual contract plans’’ and clarify
that a ‘‘master plan’’ refers to a ‘‘master
subcontracting plan.’’ This section also
adds a definition for the term ‘‘total
contract dollars’’ which is introduced in
19.704 in this case.
• FAR 19.702, Statutory
requirements. This section is amended
to be more consistent with SBA’s
revised regulations on requiring
subcontracting plans when a
modification causes the value of a
contract without a subcontracting plan
to exceed the subcontracting threshold.
This section is also amended to remove
an outdated reference to clauses in
contracts awarded before 1978.
• FAR 19.703, Eligibility
requirements for participating in the
program. This section is amended to
implement SBA’s regulatory changes
regarding prime contractors’
responsibility in assigning NAICS codes
and corresponding size standards to
subcontracts. In addition, new guidance
is added regarding acceptable sources of
information a prime contractor may use
to determine a subcontractor’s size and
socioeconomic status and the old
language is removed. This section is
also amended to correct outdated
information and to move language
regarding protest of the disadvantaged
status of a proposed subcontractor to
new paragraph (e).
• FAR 19.704, Subcontracting plan
requirements. This section is amended
to implement various SBA regulatory
changes and clarifications including—
Æ Explicitly authorizing contracting
officers to establish additional
subcontract goals in terms of total
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contract dollars for individual
subcontracting plans;
Æ A requirement for prime
contractors to report order-level
subcontracting information for multipleaward contracts intended for use by
multiple agencies;
Æ A requirement for prime
contractors to resubmit a corrected
subcontracting report within 30 days of
receiving the contracting officer’s notice
of report rejection;
Æ Changing the requirement for semiannual submission of the SSR for DoD
and NASA to be annual;
Æ A requirement that prime
contractors make good faith efforts to
utilize the small business subcontractors
to the same or greater extent they were
used in preparing the bid or proposal;
Æ A requirement for the prime
contractor to provide the contracting
officer with a written explanation if it
does not use a small business
subcontractor to the same extent as
described in the prime contractor’s bid
or proposal; and
Æ Restricting prime contractors from
prohibiting a subcontractor from
discussing payment or utilization
matters with the contracting officer.
• FAR 19.705, Responsibilities of the
contracting officer under the
subcontracting assistance program.
Æ FAR 19.705–1, General support of
the program. This subsection is
amended to revise the title of the
subsection and to implement SBA’s
regulatory requirements regarding
subcontracting plans for indefinitedelivery, indefinite-quantity contracts
exceeding the subcontracting threshold
and discretion of ordering contracting
officers to establish subcontracting goals
for individual orders.
Æ FAR 19.705–2, Determining the
need for a subcontracting plan. This
subsection is amended to implement
SBA’s regulatory requirement to
establish a subcontracting plan when a
modification of any value causes the
contract to exceed the subcontracting
plan threshold, and there are potential
subcontracting opportunities. Language
is added to explicitly require the
rationale to be placed in the contract file
for determining that no subcontracting
opportunities exist. This subsection is
also amended to clarify that while
changes made to an existing
subcontracting plan do not apply
retroactively, the contractor’s
achievements prior to the modification
will be factored into its overall
achievement on the plan. This
subsection also adds language clarifying
that when a subcontracting plan is
required for a contract as a result of a
size rerepresentation or a modification
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which causes the value of the contract
to exceed the threshold for a
subcontracting plan, the goals in the
subcontracting plan apply from the date
of incorporation of the plan into the
contract and the contractor is to report
its subcontracting achievement from the
date the plan is incorporated into the
contract.
Æ FAR 19.705–4, Reviewing the
subcontracting plan. This subsection
makes conforming changes to
paragraphs (b) and (c).
Æ FAR 19.705–6, Postaward
responsibilities of the contracting
officer. This subsection implements the
SBA’s regulatory requirements for
contracting officers to ensure prime
contractors meet their obligations under
their subcontracting plan. This
subsection is amended as follows—
D New language is added clarifying
that upon receipt of the prime
contractor’s subcontracting reports into
eSRS, the contracting officer shall
review the submitted reports within 60
days of the report ending date and
ensure that an explanation is provided
in the event the contracting officer
rejects a submitted report; and
D New language is added to require
the contracting officer to evaluate a
prime contractor’s written explanation
concerning its failure to use a small
business concern in the performance of
a contract when that small business
concern was used to prepare the bid or
proposal.
• FAR 19.708, Contract Clauses. This
section is amended to add a prescription
for the newly-created Alternate IV to
clause 52.219–9 Small Business
Subcontracting Plan.
F. FAR Subpart 52.2, Text of
Provisions and Clauses.
• FAR 52.212–5, Contract Terms and
Conditions Required to Implement
Statutes or Executive OrdersCommercial Items. This clause is
amended to reflect the updated 52.219–
8 and 52.219–9.
• FAR 52.219–8, Utilization of Small
Business Concerns. This clause is
amended to make conforming changes
based on changes to FAR 2.101 and
19.703.
• FAR 52.219–9, Small Business
Subcontracting Plan. This clause is
amended to incorporate corresponding
guidance and policy changes made to
section 19.704 and SBA’s regulatory
guidance regarding inclusion of indirect
costs and awards made by affiliates in
ISRs and SSRs. This clause is also
amended to reflect the change of DoD’s
and NASA’s semi-annual submission
requirement for Summary Subcontract
Reports (SSR) and eliminate a unique
DoD requirement for a separate SSR for
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construction contracts. In addition, an
Alternate IV to the clause is created for
use in contracts where a subcontracting
plan will be required when a
modification causes the contract to
exceed the threshold for a
subcontracting plan and there are
subcontracting opportunities.
III. Applicability to Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule proposes to amend the
clauses at 52.219–8, Utilization of Small
Business Concerns, and 52.219–9, Small
Business Subcontracting Plan, in order
to implement sections 1321 and 1322 of
the Small Business Jobs Act of 2010.
The Federal Acquisition Regulatory
Council, pursuant to the authority
granted in 41 U.S.C. 1906 and the
Administrator, Office of Federal
Procurement Policy, pursuant to the
authority granted in 41 U.S.C. 1907,
have determined that the application of
these statutory provisions to contracts
for commercial items and commercially
available off-the-shelf items, is in the
best interests of the Federal
Government.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
proposed rule is not a major rule under
5 U.S.C. 804.
V. Regulatory Flexibility Act
The change may have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act 5 U.S.C. 601, et seq. The Initial
Regulatory Flexibility Analysis (IRFA) is
summarized as follows:
DoD, GSA, and NASA are proposing to
amend the FAR to provide uniform guidance
consistent with SBA’s final rule at 78 FR
42391, dated July 16, 2013, which
implements Sections 1321 and 1322 of the
Small Business Jobs Act of 2010 (Pub. L.
111–240). SBA’s final rule also implements
other changes intended to help small
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business subcontractors by explicitly
authorizing procuring agencies to consider
proposed small business participation when
evaluating offers from other than small
business concerns and to require other than
small prime contractors to report data on
small business subcontracting in connection
with orders.
The objectives of this proposed rule are to
implement statutory requirements as well as
make improvements to increase
subcontracting opportunities for small
businesses. The authorizing legislation for
this action are sections 1321 and 1322 of the
Small Business Jobs Act of 2010 (Pub. L.
111–240).
This rule may have a positive economic
impact on any small business entity that
wishes to participate in the Federal
procurement arena as a subcontractor.
Analysis of the System for Award
Management (SAM) database indicates there
are over 297,181 small business registrants. It
is unknown how many of these concerns
participate in small business subcontracting.
Firms do not need to register in the SAM
database to participate in subcontracting.
Thus, the number of firms participating in
subcontracting may be greater than or lower
than the number of firms registered in the
SAM database.
This rule does not impose any new
reporting, recordkeeping or other compliance
requirements for small businesses. This rule
does not duplicate, overlap, or conflict with
any other Federal rules.
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The Regulatory Secretariat Division
has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat Division. DoD,
GSA, and NASA invite comments from
small business concerns and other
interested parties on the expected
impact of this rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule consistent
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C. 610 (FAR Case
2014–003), in correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) applies. This
proposed rule contains information
collection requirements. Accordingly,
the Regulatory Secretariat Division has
submitted a request for approval of one
new and two revised information
collection requirements concerning FAR
Case 2014–003 Small Business
Subcontracting Improvements to the
Office of Management and Budget.
A1. Request for approval of new
information collection requirement
9000–00xx. Public reporting burden for
the collection of information regarding a
contractor’s utilization of small business
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subcontractors to the same degree the
prime contractor relied on the small
business in preparing and submitting its
bid or proposal is estimated to be
$202,464. FPDS for FY 2013 lists 5,327
actions with small business
subcontracting plans. However, it is
estimated that at most 50 percent of
these contracts with subcontracting
plans may have instances of the prime
contractor not using a small business
subcontractor to the same extent used in
preparing the bid or proposal. Using this
method provides the number of
respondents as 2,664. It is estimated that
the average time required to read and
prepare information for this collection is
two hours. It is also estimated that the
responses per respondent would be
once a year since prime contractors have
until 30 days of contract completion to
submit the written explanation.
The annual reporting burden is
estimated as follows:
Respondents: 2,664.
Responses per respondent: 1.
Total annual responses: 2,664.
Preparation hours per response: 2.
Total response burden hours: 5,328.
Cost per hour: $38.
Total annual burden: $202,464.
A2. Revision to existing OMB
Clearance 9000–0006. Based on the
proposed revisions to the FAR as well
as a more accurate basis for estimation,
an upward adjustment is being made to
the average burden hours for reporting
and recordkeeping per response but a
downward adjustment is being made to
the number of respondents (i.e.,
subcontracting plans and the individual
subcontracting reports associated with
them). As a result, a downward
adjustment is being made to the
estimated annual reporting burden since
the notice regarding an extension to this
clearance published in the Federal
Register at 78 FR 17668, on March 22,
2013.
Respondents: 59,336.
Responses per respondent: 3.
Total annual responses: 178,008.
Preparation hours per response: 13.5.
Total response burden hours:
2,403,108.
Cost per hour: $30.
Total annual burden: $72,093,240.
A3. Revision to existing OMB
Clearance 9000–0007. Based on the
proposed revisions to the FAR as well
as a more accurate basis for estimation,
a downward adjustment is being made
to the number of respondents (i.e.,
summary subcontracting reports). Since
the proposed revisions to the FAR do
not require additional information in
the Summary Subcontract Report, the
estimated preparation hours per
response remains unchanged. As a
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result, a downward adjustment is being
made to the estimated annual reporting
burden since the notice regarding an
extension to this clearance published in
the Federal Register at 78 FR 17668, on
March 22, 2013.
Respondents: 59,336.
Responses per respondent: 1.
Total annual responses: 59,336.
Preparation hours per response: 9.0.
Total response burden hours: 534,024.
Cost per hour: $30.
Total annual burden: $16,020,720.
B. Request for Comments Regarding
Paperwork Burden. Submit comments,
including suggestions for reducing this
burden, no later than August 10, 2015
to: FAR Desk Officer, OMB, Room
10102, NEOB, Washington, DC 20503,
and a copy to the General Services
Administration, Regulatory Secretariat
Division (MVCB), ATTN: Ms. Flowers,
1800 F. Street NW., 2nd Floor,
Washington, DC 20405.
Public comments are particularly
invited on: Whether these collections of
information are necessary for the proper
performance of functions of the FAR,
and will have practical utility; whether
our estimate of the public burden of
these collections of information is
accurate, and based on valid
assumptions and methodology; ways to
enhance the quality, utility, or clarity of
the information to be collected; and
ways in which we can minimize the
burden of the collection of information
on those who are to respond, through
the use of appropriate technological
collection techniques or other forms of
information technology.
Requesters may obtain a copy of the
supporting statements from the General
Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Ms.
Flowers, 1800 F. Street NW., 2nd Floor,
Washington, DC 20405. Please cite OMB
Control Number 9000–00XX, Utilization
of Small Business Subcontractors, 9000–
0006, Subcontracting Plans/Subcontract
Report For Individual Contracts, or
9000–0007, Summary Subcontract
Report, as applicable, in all
correspondence.
List of Subjects in 48 CFR Parts 1, 2, 15,
19, and 52
Government procurement.
Dated: June 3, 2015.
William Clark
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are
proposing to amend 48 CFR parts 1, 2,
15, 19, and 52, as set forth below:
■ 1. The authority citation for 48 CFR
parts 1, 2, 15, 19, and 52 continues to
read as follows:
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Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
section, shall be evaluated in all source
selections for negotiated competitive
acquisitions expected to exceed the
simplified acquisition threshold.
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PART 1—FEDERAL ACQUISITION
REGULATIONS SYSTEM
1.106
[Amended]
2. Amend section 1.106 by removing
from the table ‘‘19.7’’ and ‘‘52.219–9’’
and their corresponding OMB Control
Numbers ‘‘9000–0006 and 9000–0007’’
and adding, in numerical sequence,
‘‘19.7’’ and ‘‘52.219–9’’ with their
corresponding control numbers ‘‘9000–
00xx, 9000–0006, and 9000–0007’’,
respectively.
■
PART 2—DEFINITIONS OF WORDS
AND TERMS
3. Amend section 2.101 in paragraph
(b) by—
■ a. Revising the introductory paragraph
of the definition ‘‘HUBZone Contract’’;
■ b. Revising the definition ‘‘HUBZone
small business concern’’; and
■ c. Revising the definition ‘‘Small
business subcontractor’’.
The revised text reads as follows:
■
2.101
Definitions.
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*
*
HUBZone contract means a contract
awarded to a SBA certified ‘‘HUBZone
small business concern’’ through any of
the following procurement methods:
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*
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*
HUBZone small business concern
means a small business concern,
certified by the Small Business
Administration, that appears on the List
of Qualified HUBZone Small Business
Concerns maintained by the Small
Business Administration (13 CFR
126.103).
*
*
*
*
*
Small business subcontractor means a
concern that does not exceed the size
standard for the North American
Industry Classification Systems code
that the prime contractor determines
best describes the product or service
being acquired by the subcontract.
*
*
*
*
*
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PART 15—CONTRACTING BY
NEGOTIATION
4. Amend section 15.304 by—
a. Revising paragraph (c)(3)(i); and
b. Removing from paragraphs (c)(3)(ii)
and (c)(4) ‘‘must’’ and adding ‘‘shall’’ in
their places.
The revised text reads as follows:
■
■
■
15.304 Evaluation factors and significant
subfactors.
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(c) * * *
(3)(i) Past performance, except as set
forth in paragraph (c)(3)(iii) of this
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PART 19—THE SMALL BUSINESS
PROGRAMS
5. Amend section 19.301–2 by
revising paragraph (e) to read as follows:
■
19.301–2 Rerepresentation by a contractor
that represented itself as a small business
concern.
*
*
*
*
*
(e) A change in size status does not
change the terms and conditions of the
contract. However, the contracting
officer may require a subcontracting
plan for a contract containing 52.219–9,
Small Business Subcontracting Plan, if a
prime contractor’s size status changes
from small to other than small as a
result of a size rerepresentation.
19.305
[Amended]
6. Amend section 19.305 by removing
from paragraph (c) ‘‘19.703(a)(2)’’ and
‘‘19.703(b)’’ and adding ‘‘19.703(e)’’ and
‘‘19.703(c)’’ in their places, respectively.
■ 7. Amend section 19.701 by—
■ a. Revising the heading of the
definition ‘‘Individual contract plan’’ to
read ‘‘Individual subcontracting plan’’;
■ b. Revising the heading of ‘‘Master
plan’’ to read ‘‘Master subcontracting
plan’’; and revising the definition; and
■ c. Adding, in alphabetical order, the
definition ‘‘Total contract dollars’’.
The revised and added text reads as
follows:
■
19.701
Definitions.
*
*
*
*
*
Master subcontracting plan means a
subcontracting plan that contains all the
required elements of an individual
subcontracting contract plan, except
goals, and may be incorporated into
individual subcontracting contract
plans, provided the master plan has
been approved.
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Total contract dollars means the final
anticipated dollar value, including the
dollar value of all options.
■ 8. Amend section 19.702 by—
■ a. Removing from paragraph (a)
introductory text the word ‘‘Section’’
and adding ‘‘section’’ in its place;
■ b. Removing from paragraphs (a)(1)
and (a)(2) ‘‘a contract or contract
modification that individually is’’ and
adding ‘‘a contract is’’ in their places
wherever they appear;
■ c. Adding paragraph (a)(3); and
■ d. Revising paragraph (b)(4).
The revised and added text reads as
follows:
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19.702
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Statutory requirements.
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(a) * * *
(3) Each contract modification that
causes the value of a contract without a
subcontracting plan to exceed $650,000
($1.5 million for construction), shall
require the contractor to submit an
acceptable subcontracting plan for the
contract, if the contracting officer
determines that subcontracting
opportunities exist.
(b) * * *
(4) For modifications to contracts
within the general scope of the contract
that do not contain the clause at 52.219–
8, Utilization of Small Business
Concerns.
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■ 9. Amend section 19.703 by—
■ a. Adding a sentence to the end of
paragraph (a)(1);
■ b. Revising paragraphs (a)(2) and (b);
■ c. Removing from paragraph (d)(1)
‘‘System for Award Management’’ and
adding ‘‘SAM’’ in its place;
■ d. Removing from paragraph (d)(1)(i)
‘‘or https://www.sba.gov/hubzone’’;
■ e. Removing from paragraph (d)(1)(ii)
‘‘HUB’’ and adding ‘‘HUBZone
Program’’ in its place;
■ f. Removing from paragraph (d)(2) ‘‘13
CFR 121.411’’ and adding ‘‘13 CFR
126.801’’ in its place; and
■ g. Adding paragraph (e).
The added and revised text reads as
follows:
19.703 Eligibility requirements for
participating in the program.
*
*
*
*
*
(a) * * *
(1) * * * For subcontracting
purposes, a concern is small if it does
not exceed the size standard for the
NAICS code that the prime contractor
determines best describes the product or
service being acquired by the
subcontract.
(2)(i) The prime contractor may accept
a subcontractor’s representations of its
small business size and status as a small
disadvantaged business, veteran-owned
small business, service-disabled
veteran-owned small business, or a
woman-owned small business in the
System for Award Management (SAM)
if:
(A) The subcontractor is registered in
SAM; and
(B) The subcontractor represents that
the size and status representations made
in SAM (or any successor system) are
current, accurate and complete as of the
date of the offer for the subcontract.
(ii) The prime contractor may accept
a subcontractor’s written
representations of its small business size
and status as a small disadvantaged
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business, veteran-owned small business,
service-disabled veteran-owned small
business, or a woman-owned small
business if:
(A) The subcontractor is not registered
in SAM; and
(B) The subcontractor represents that
the size and status representations
provided with its offer are current,
accurate and complete as of the date of
the offer for the subcontract.
(b) The contractor, the contracting
officer, or any other interested party can
challenge a subcontractor’s size status
representation by filing a protest, in
accordance with 13 CFR 121.1001
through 121.1008.
*
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(e) The contracting officer or the SBA
may protest the disadvantaged status of
a proposed subcontractor. Protests
challenging a subcontractor’s small
disadvantaged business representation
must be filed in accordance with 13 CFR
124.1007 through 124.1014. Other
interested parties may submit
information to the contracting officer or
the SBA in an effort to persuade the
contracting officer or the SBA to initiate
a protest. Such protests, in order to be
considered timely, must be submitted to
the SBA prior to completion of
performance by the intended
subcontractor.
■ 10. Amend section 19.704 by—
■ a. Revising the introductory text of
paragraph (a);
■ b. Revising paragraphs (a)(2) and (3);
■ c. Redesignating paragraphs (a)(10)(iii)
through (vi) as paragraphs (a)(10)(iv)
through (vii), respectively;
■ d. Adding new paragraph (a)(10)(iii);
■ e. Removing from the newly
designated paragraph (a)(10)(iv) ‘‘eSRS;’’
and adding ‘‘eSRS.’’ in its place;
■ f. Adding a sentence to the end of the
newly designated paragraph
(a)(10)(iv)(A);
■ g. Revising the newly designated
paragraph (a)(10)(iv)(B);
■ h. Removing from the newly
designated paragraph (a)(10)(vii)
‘‘plans.’’ and adding ‘‘plans;’’ in its
place;
■ i. Removing from paragraph (a)(11)
‘‘them.’’ and adding ‘‘them;’’;
■ j. Adding paragraphs (a)(12) through
(14);
■ k. Removing from paragraph (b)
‘‘master’’ and ‘‘Master’’ adding ‘‘master
subcontracting’’ and ‘‘Master
subcontracting’’ in their places,
respectively, wherever they appear; and
■ l. Revising the last sentence of
paragraph (c).
The revised and added text reads as
follows:
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19.704
Subcontracting plan requirements.
(a) Each subcontracting plan required
under 19.301–2(e) and 19.702(a)(1), (2),
and (3) shall include—
(1) * * *
(2) A statement of the total dollars
planned to be subcontracted and a
statement of the total dollars planned to
be subcontracted to small business
(including ANCs and Indian tribes),
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business (including
ANCs and Indian tribes) and womenowned small business concerns, as a
percentage of total subcontract dollars.
For individual subcontracting plans, a
contracting officer may require the goals
referenced in paragraph (a)(1) of this
section to be established as a percentage
of total contract dollars, in addition to
the goals established as a percentage of
total subcontract dollars;
(3) The NAICS code and
corresponding size standard of each
subcontract that best describes the
principal purpose, including the
supplies and services to be
subcontracted, and an identification of
types of supplies or services planned for
subcontracting to small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business (including
ANCs and Indian tribes), and womenowned small business concerns;
*
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(10) * * *
(iii) Include subcontracting data for
each order when reporting
subcontracting achievements for
multiple-award contracts intended for
use by multiple agencies;
(iv) * * *
(A) * * * When a contracting officer
rejects an ISR due the report being
incomplete or incorrect, the contractor
is required to submit a revised ISR
within 30 days of receiving the notice of
the ISR rejection.
(B) The SSR shall be submitted
annually by October 30 for the twelvemonth period ending September 30.
When a contracting officer rejects an
SSR due to the report being incomplete
or incorrect, the contractor is required to
submit a revised SSR within 30 days of
receiving the notice of SSR rejection;
*
*
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*
(12) Assurances that the offeror will
make a good faith effort to acquire
articles, equipment, supplies, services,
or materials, or obtain the performance
of construction work from the small
business concerns that the offeror used
in preparing the bid or proposal, in the
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same or greater scope, amount, and
quality used in preparing and
submitting the bid or proposal.
Responding to a request for a quote does
not constitute use in preparing a bid or
proposal. An offeror used a small
business concern in preparing the bid or
proposal if—
(i) The offeror identifies the small
business concern as a subcontractor in
the bid or proposal or associated small
business subcontracting plan, to furnish
certain supplies or perform a portion of
the contract; or
(ii) The offeror used the small
business concern’s pricing or cost
information or technical expertise in
preparing the bid or proposal, where
there is written evidence of an intent or
understanding that the small business
concern will be awarded a subcontract
for the related work if the offeror is
awarded the contract;
(13) A requirement for the contractor
to provide the contracting officer with a
written explanation if the contractor
fails to acquire articles, equipment,
supplies, services or materials or obtain
the performance of construction work as
described in (a)(12) of this section. This
written explanation shall be submitted
to the contracting officer within 30 days
of contract completion; and
(14) Assurances that the contractor
will not prohibit a subcontractor from
discussing with the contracting officer
any material matter pertaining to
payment to or utilization of a
subcontractor.
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*
(c) * * * If a subcontracting plan is
necessary and the offeror is submitting
an individual subcontracting plan, the
individual subcontracting plan shall
contain all the elements required by
paragraph (a) of this section and shall
contain separate statements and goals
for the basic contract and for each
option.
*
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*
■ 11. Amend section 19.705–1 by—
■ a. Revising the heading;
■ b. Redesignating the introductory
paragraph as paragraph (a); and
■ c. Adding paragraph (b).
The revised and added text reads as
follows:
19.705–1
General.
(a) * * *
(b)(1) Except where a contractor has a
commercial plan, the contracting officer
shall require a subcontracting plan for
each indefinite-delivery, indefinitequantity contract (including task or
delivery order contracts, FSS, GWACs,
and MACs), when the estimated value of
the contract meets the subcontracting
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plan thresholds at 19.702(a)(1) and
small business subcontracting
opportunities exist.
(2) Contracting officers placing orders
may establish small business
subcontracting goals for each order.
■ 12. Amend section 19.705–2 by—
■ a. Removing from the introductory
text ‘‘must’’ and adding ‘‘shall’’ in its
place;
■ b. Revising paragraph (a);
■ c. Adding paragraph (b)(3);
■ d. Revising paragraphs (c) and (e); and
■ e. Adding paragraph (f).
The revised and added text reads as
follows:
19.705–2 Determining the need for a
subcontracting plan.
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(a)(1) Determine whether the
proposed total contract dollars will
exceed the subcontracting plan
threshold in 19.702(a).
(2) Determine whether a proposed
modification will cause the total
contract dollars to exceed the
subcontracting plan threshold (see
19.702(a)).
(b) * * *
(3) Whether the firm can acquire the
items to be furnished by contract with
minimal or no disruption of contract
performance (with consideration given
to the time remaining until contract
completion), and at fair market value,
when a determination is made in
accordance with paragraph (a)(2).
(c)(1) When adding a subcontracting
plan pursuant to 19.705–2(a)(2), the
subcontracting goals apply from the date
of incorporation of the subcontracting
plan into the contract.
(2) If it is determined that there are no
subcontracting possibilities, the
determination shall include a detailed
rationale, be approved at a level above
the contracting officer, and placed in the
contract file.
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*
(e) A contract may have no more than
one subcontracting plan. When a
contract modification exceeds the
subcontracting plan threshold (see
19.702(a)), or an option is exercised, the
goals of an existing subcontracting plan
shall be amended to reflect any new
subcontracting opportunities. These
goal changes do not apply retroactively.
(f) If a subcontracting plan has been
added to the contract due to a
modification (see 19.702(a)(3)) or a size
re-representation (see 19.301–2(e)), the
contractor’s achievements must be
reported on the ISR (or the SF–294, if
applicable) on a cumulative basis from
the date of incorporation of the
subcontracting plan into the contract.
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19.705–4
[Amended]
13. Amend section 19.705–4 by
removing from paragraph (b) ‘‘11
required’’ and adding ‘‘14 required’’ in
its place; and removing from paragraph
(c) ‘‘11 elements’’ and adding ‘‘14
elements’’ in its place.
■ 14. Amend section 19.705–6 by—
■ a. Revising the introductory
paragraph;
■ b. Removing from paragraph (a)
‘‘Notifying’’ and adding ‘‘Notify’’ in its
place;
■ c. Removing from paragraph (b)
‘‘Forwarding’’ and adding ‘‘Forward’’ in
its place;
■ d. Removing from the introductory
text of paragraph (c) ‘‘Giving’’ and
adding ‘‘Give’’ in its place;
■ e. Removing from paragraph (d)
‘‘Notifying’’ and adding ‘‘Notify’’ in its
place;
■ f. Removing from paragraph (e)
‘‘Forwarding’’ and adding ‘‘Forward’’ in
its place;
■ g. Redesignating paragraphs (f)
through (h) as paragraphs (h) through (j),
respectively;
■ h. Adding new paragraphs (f) and (g);
■ i. Removing from newly redesignated
paragraph (h) ‘‘Initiating’’ and adding
‘‘Initiate’’ in its place;
■ j. Removing from newly redesignated
paragraph (i) ‘‘Taking’’ and adding
‘‘Take’’ in its place; and
■ k. Removing from newly redesignated
paragraph (j) ‘‘Acknowledging receipt of
or rejecting’’ and adding ‘‘Acknowledge
receipt of or reject’’ in its place.
The revised and added text reads as
follows:
■
19.705–6 Postaward responsibilities of the
contracting officer.
After a contract or contract
modification containing a
subcontracting plan is awarded or an
existing subcontracting plan is
amended, the contracting officer shall
do the following:
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*
(f) Monitor the prime contractor’s
compliance with its subcontracting
plan, to include the following:
(1) Ensure that subcontracting reports
are submitted into the eSRS (or any
successor system) within 30 days after
the report ending date (e.g., by October
30th for the fiscal year ended September
30th).
(2) Review ISRs, and where
applicable, SSRs, in eSRS (or any
successor system) within 60 days of the
report ending date (e.g., by November
30th for a report submitted for the fiscal
year ended September 30th).
(3) Either acknowledge receipt of or
reject the reports in accordance with
subpart 19.7, 52.219–9, Small Business
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Subcontracting Plan, and the eSRS
instructions (www.esrs.gov).
(i) The authority to acknowledge or
reject SSRs for commercial plans resides
with the contracting officer who
approved the commercial plan.
(ii) If a report is rejected, the
contracting officer must provide an
explanation for the rejection to allow
the prime contractor the opportunity to
respond specifically to perceived
deficiencies.
(g) Evaluate the prime contractor’s
compliance with its subcontracting
plan, to include the following:
(1) Assess whether the prime
contractor made a good faith effort to
comply with its small business
subcontracting plan (see 13 CFR
125.3(d)(3)).
(2) Assess the prime contractor’s
written explanation concerning the
prime contractor’s failure to use a small
business concern in the performance of
the contract in the same scope, amount,
and quality used in preparing and
submitting the bid or proposal, if
applicable.
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■ 15. Amend section 19.708 by—
■ a. Removing from paragraph (b)(1)
‘‘facility),’’ and adding ‘‘facility)’’ in its
place;
■ b. Removing the period at the end of
paragraphs (b)(1)(i) and (ii) and adding
a semicolon in their places;
■ c. Removing from paragraph (b)(1)(iii)
‘‘Alternate III.’’ and adding ‘‘Alternate
III; or’’ in its place;
■ d. Adding a new paragraph (b)(1)(iv);
■ e. Removing from paragraph (b)(2)
‘‘Alternate I, II, or III.’’ and adding
‘‘Alternate I, II, III, or IV.’’ in its place.
The added text reads as follows:
19.708
Contract clauses.
*
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*
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*
(b)(1) * * *
(iv) Incorporating a subcontracting
plan due to a modification as provided
for in 19.702(a)(3), the contracting
officer shall use the clause with its
Alternate IV.
*
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PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
16. Amend section 52.212–5 by
revising the date of the clause; and
revising paragraphs (b) (16) and (17) to
read as follows:
■
52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
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Executive Orders—Commercial Items
(Date)
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(b) * * *
__(16) 52.219–8, Utilization of Small
Business Concerns (Date) (15 U.S.C. 637(d)(2)
and (3)).
__(17)(i) 52.219–9, Small Business
Subcontracting Plan (Date) (15 U.S.C.
637(d)(4)).
__(ii) Alternate I (Date) of 52.219–9.
__(iii) Alternate II (Date) of 52.219–9.
__(iv) Alternate III (Date) of 52.219–9.
__(v) Alternative IV (Date) of 52.219–9.
*
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17. Amend section 52.219–8 by—
a. Revising the date of the clause;
b. Revising the definition in paragraph
(a) of ‘‘HUBZone small business
concern’’;
■ c. Revising paragraph (d)(1);
■ d. Redesignating paragraph (d)(2) as
(d)(3); and
■ e. Adding a new paragraph (d)(2).
The revised and added text reads as
follows:
■
■
■
52.219–8 Utilization of Small Business
Concerns.
*
*
*
*
*
Utilization of Small Business Concerns
(Date)
(a) * * *
HUBZone small business concern means a
small business concern, certified by the
Small Business Administration, that appears
on the List of Qualified HUBZone Small
Business Concerns maintained by the Small
Business Administration.
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(d)(1) The prime Contractor may accept a
subcontractor’s representations of its small
business size and status as a small
disadvantaged business, veteran-owned small
business, service-disabled veteran-owned
small business, or a woman-owned small
business in the System for Award
Management (SAM) if:
(i) The subcontractor is registered in SAM;
and
(ii) The subcontractor represents that the
size and status representations made in SAM
(or any successor system) are current,
accurate and complete as of the date of the
offer for the subcontract.
(2) The prime Contractor may accept a
subcontractor’s written representations of its
small business size and status as a small
disadvantaged business, veteran-owned small
business, service-disabled veteran-owned
small business, or a woman-owned small
business if:
(i) The subcontractor is not registered in
SAM; and
(ii) The subcontractor represents that the
size and status representations provided with
its offer are current, accurate and complete as
of the date of the offer for the subcontract.
*
■
*
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*
18. Amend section 52.219–9 by—
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a. Revising the section heading;
b. Revising the date of the clause;
c. Revising paragraphs (b), (c), and (d);
d. Revising paragraphs (e)(4) and (6);
e. Revising paragraphs (f), (i), (k), and
(l);
■ f. Revising Alternates I, II, and III; and
■ g. Adding Alternate IV.
The revised and added text reads as
follows:
■
■
■
■
■
52.219–9
Plan.
*
*
Small Business Subcontracting
*
*
*
Small Business Subcontracting Plan
(Date)
*
*
*
*
*
(b) Definitions. As used in this clause—
Alaska Native Corporation (ANC) means
any Regional Corporation, Village
Corporation, Urban Corporation, or Group
Corporation organized under the laws of the
State of Alaska in accordance with the Alaska
Native Claims Settlement Act, as amended
(43 U.S.C. 1601, et seq.) and which is
considered a minority and economically
disadvantaged concern under the criteria at
43 U.S.C. 1626(e)(1). This definition also
includes ANC direct and indirect subsidiary
corporations, joint ventures, and partnerships
that meet the requirements of 43 U.S.C.
1626(e)(2).
Commercial item means a product or
service that satisfies the definition of
commercial item in section 2.101 of the
Federal Acquisition Regulation.
Commercial plan means a subcontracting
plan (including goals) that covers the
Offeror’s fiscal year and that applies to the
entire production of commercial items sold
by either the entire company or a portion
thereof (e.g., division, plant, or product line).
Electronic Subcontracting Reporting
System (eSRS) means the Governmentwide,
electronic, web-based system for small
business subcontracting program reporting.
The eSRS is located at https://www.esrs.gov.
Indian tribe means any Indian tribe, band,
group, pueblo, or community, including
native villages and native groups (including
corporations organized by Kenai, Juneau,
Sitka, and Kodiak) as defined in the Alaska
Native Claims Settlement Act (43 U.S.C. 1601
et seq.), that is recognized by the Federal
Government as eligible for services from the
Bureau of Indian Affairs in accordance with
25 U.S.C. 1452(c). This definition also
includes Indian-owned economic enterprises
that meet the requirements of 25 U.S.C.
1452(e).
Individual subcontracting plan means a
subcontracting plan that covers the entire
contract period (including option periods),
applies to a specific contract, and has goals
that are based on the Offeror’s planned
subcontracting in support of the specific
contract, except that indirect costs incurred
for common or joint purposes may be
allocated on a prorated basis to the contract.
Master subcontracting plan means a
subcontracting plan that contains all the
required elements of an individual
subcontracting plan, except goals, and may
be incorporated into individual
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subcontracting plans, provided the master
plan has been approved.
Subcontract means any agreement (other
than one involving an employer-employee
relationship) entered into by a Federal
Government prime Contractor or
subcontractor calling for supplies or services
required for performance of the contract or
subcontract.
Total contract dollars means the final
anticipated dollar value, including the dollar
value of all options.
(c)(1) The Offeror, upon request by the
Contracting Officer, shall submit and
negotiate a subcontracting plan, where
applicable, that separately addresses
subcontracting with small business, veteranowned small business, service-disabled
veteran-owned small business, HUBZone
small business, small disadvantaged
business, and women-owned small business
concerns. If the Offeror is submitting an
individual subcontracting plan, the plan
must separately address subcontracting with
small business, veteran-owned small
business, service-disabled veteran-owned
small business, HUBZone small business,
small disadvantaged business, and womenowned small business concerns, with a
separate part for the basic contract and
separate parts for each option (if any). The
subcontracting plan shall be included in and
made a part of the resultant contract. The
subcontracting plan shall be negotiated
within the time specified by the Contracting
Officer. Failure to submit and negotiate the
subcontracting plan shall make the Offeror
ineligible for award of a contract.
(2)(i) The prime Contractor may accept a
subcontractor’s representations of its small
business size and status as a small
disadvantaged business, veteran-owned small
business, service-disabled veteran-owned
small business, or a woman-owned small
business in the System for Award
Management (SAM) if:
(A) The subcontractor is registered in SAM;
and
(B) The subcontractor represents that the
size and status representations made in SAM
(or any successor system) are current,
accurate and complete as of the date of the
offer for the subcontract.
(ii) The prime Contractor may accept a
subcontractor’s written representations of its
small business size and status as a small
disadvantaged business, veteran-owned small
business, service-disabled veteran-owned
small business, or a woman-owned small
business if:
(A) The subcontractor is not registered in
SAM; and
(B) The subcontractor represents that the
size and status representations provided with
its offer are current, accurate and complete as
of the date of the offer for the subcontract.
(d) The Offeror’s subcontracting plan shall
include the following:
(1) Separate goals, expressed in terms of
total dollars subcontracted, and as a
percentage of total planned subcontracting
dollars, for the use of small business, veteranowned small business, service-disabled
veteran-owned small business, HUBZone
small business, small disadvantaged
business, and women-owned small business
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concerns as subcontractors. For individual
subcontracting plans, and if required by the
Contracting Officer, goals also be expressed
in terms of percentage of total contract
dollars, in addition to the goals expressed as
a percentage of total subcontract dollars. The
Offeror shall include all sub-contracts that
contribute to contract performance, and may
include a proportionate share of products
and services that are normally allocated as
indirect costs. In accordance with 43 U.S.C.
1626:
(i) Subcontracts awarded to an ANC or
Indian tribe shall be counted towards the
subcontracting goals for small business and
small disadvantaged business (SDB)
concerns, regardless of the size or Small
Business Administration certification status
of the ANC or Indian tribe.
(ii) Where one or more subcontractors are
in the subcontract tier between the
Contractor and the ANC or Indian tribe, the
ANC or Indian tribe shall designate the
appropriate Contractor(s) to count the
subcontract towards its small business and
small disadvantaged business subcontracting
goals.
(A) In most cases, the appropriate
Contractor is the Contractor that awarded the
subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates
more than one Contractor to count the
subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of
the total subcontract award to each
Contractor. The sum of the amounts
designated to various Contractors cannot
exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a
copy of the written designation to the
Contracting Officer, the prime Contractor,
and the subcontractors in between the prime
Contractor and the ANC or Indian tribe
within 30 days of the date of the subcontract
award.
(D) If the Contracting Officer does not
receive a copy of the ANC’s or the Indian
tribe’s written designation within 30 days of
the subcontract award, the Contractor that
awarded the subcontract to the ANC or
Indian tribe will be considered the
designated Contractor.
(2) A statement of—
(i) Total dollars planned to be
subcontracted for an individual contract
plan; or the Offeror’s total projected sales,
expressed in dollars, and the total value of
projected subcontracts to support the sales
for a commercial plan;
(ii) Total dollars planned to be
subcontracted to small business concerns
(including ANC and Indian tribes);
(iii) Total dollars planned to be
subcontracted to veteran-owned small
business concerns;
(iv) Total dollars planned to be
subcontracted to service-disabled veteranowned small business;
(v) Total dollars planned to be
subcontracted to HUBZone small business
concerns;
(vi) Total dollars planned to be
subcontracted to small disadvantaged
business concerns (including ANCs and
Indian tribes); and
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(vii) Total dollars planned to be
subcontracted to women-owned small
business concerns.
(3) The NAICS code and corresponding
size standard of each subcontract that best
describes the principal purpose, including
the types of supplies and services to be
subcontracted, and an identification of the
types planned for subcontracting to—
(i) Small business concerns;
(ii) Veteran-owned small business
concerns;
(iii) Service-disabled veteran-owned small
business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns;
and
(vi) Women-owned small business
concerns.
(4) A description of the method used to
develop the subcontracting goals in
paragraph (d)(1) of this clause.
(5) A description of the method used to
identify potential sources for solicitation
purposes (e.g., existing company source lists,
the System for Award Management (SAM),
veterans service organizations, the National
Minority Purchasing Council Vendor
Information Service, the Research and
Information Division of the Minority
Business Development Agency in the
Department of Commerce, or small,
HUBZone, small disadvantaged, and womenowned small business trade associations). A
firm may rely on the information contained
in SAM as an accurate representation of a
concern’s size and ownership characteristics
for the purposes of maintaining a small,
veteran-owned small, service-disabled
veteran-owned small, HUBZone small, small
disadvantaged, and women-owned small
business source list. Use of SAM as its source
list does not relieve a firm of its
responsibilities (e.g., outreach, assistance,
counseling, or publicizing subcontracting
opportunities) in this clause.
(6) A statement as to whether or not the
Offeror in included indirect costs in
establishing subcontracting goals, and a
description of the method used to determine
the proportionate share of indirect costs to be
incurred with—
(i) Small business concerns (including
ANC and Indian tribes);
(ii) Veteran-owned small business
concerns;
(iii) Service-disabled veteran-owned small
business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns
(including ANC and Indian tribes); and
(vi) Women-owned small business
concerns.
(7) The name of the individual employed
by the Offeror who will administer the
Offeror’s subcontracting program, and a
description of the duties of the individual.
(8) A description of the efforts the Offeror
will make to assure that small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, and women-owned
small business concerns have an equitable
opportunity to compete for subcontracts.
(9) Assurances that the Offeror will include
the clause of this contract entitled
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32917
‘‘Utilization of Small Business Concerns’’ in
all subcontracts that offer further
subcontracting opportunities, and that the
Offeror will require all subcontractors (except
small business concerns) that receive
subcontracts in excess of $650,000 ($1.5
million for construction of any public
facility) with further subcontracting
possibilities to adopt a subcontracting plan
that complies with the requirements of this
clause.
(10) Assurances that the Offeror will—
(i) Cooperate in any studies or surveys as
may be required;
(ii) Submit periodic reports so that the
Government can determine the extent of
compliance by the Offeror with the
subcontracting plan;
(iii) Include subcontracting data for each
order when reporting subcontracting
achievements for multiple-award contracts
intended for use by multiple agencies;
(iv) Submit the Individual Subcontract
Report (ISR) and/or the Summary
Subcontract Report (SSR), in accordance with
paragraph (l) of this clause using the
Electronic Subcontracting Reporting System
(eSRS) at https://www.esrs.gov. The reports
shall provide information on subcontract
awards to small business concerns (including
ANCs and Indian tribes that are not small
businesses), veteran-owned small business
concerns, service-disabled veteran-owned
small business concerns, HUBZone small
business concerns, small disadvantaged
business concerns (including ANCs and
Indian tribes that have not been certified by
SBA as small disadvantaged businesses),
women-owned small business concerns, and
for NASA only, Historically Black Colleges
and Universities and Minority Institutions.
Reporting shall be in accordance with this
clause, or as provided in agency regulations;
(v) Ensure that its subcontractors with
subcontracting plans agree to submit the ISR
and/or the SSR using eSRS;
(vi) Provide its prime contract number, its
DUNS number, and the email address of the
Offeror’s official responsible for
acknowledging receipt of or rejecting the
ISRs, to all first-tier subcontractors with
subcontracting plans so they can enter this
information into the eSRS when submitting
their ISRs; and
(vii) Require that each subcontractor with
a subcontracting plan provide the prime
contract number, its own DUNS number, and
the email address of the subcontractor’s
official responsible for acknowledging receipt
of or rejecting the ISRs, to its subcontractors
with subcontracting plans.
(11) A description of the types of records
that will be maintained concerning
procedures that have been adopted to comply
with the requirements and goals in the plan,
including establishing source lists; and a
description of the Offeror’s efforts to locate
small business, veteran-owned small
business, service-disabled veteran-owned
small business, HUBZone small business,
small disadvantaged business, and womenowned small business concerns and award
subcontracts to them. The records shall
include at least the following (on a plantwide or company-wide basis, unless
otherwise indicated):
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(i) Source lists (e.g., SAM), guides, and
other data that identify small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, and women-owned
small business concerns.
(ii) Organizations contacted in an attempt
to locate sources that are small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, or women-owned
small business concerns.
(iii) Records on each subcontract
solicitation resulting in an award of more
than $150,000, indicating—
(A) Whether small business concerns were
solicited and, if not, why not;
(B) Whether veteran-owned small business
concerns were solicited and, if not, why not;
(C) Whether service-disabled veteranowned small business concerns were
solicited and, if not, why not;
(D) Whether HUBZone small business
concerns were solicited and, if not, why not;
(E) Whether small disadvantaged business
concerns were solicited and, if not, why not;
(F) Whether women-owned small business
concerns were solicited and, if not, why not;
and
(G) If applicable, the reason award was not
made to a small business concern.
(iv) Records of any outreach efforts to
contact—
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate
small, HUBZone small, small disadvantaged,
and women-owned small business sources;
and
(D) Veterans service organizations.
(v) Records of internal guidance and
encouragement provided to buyers through—
(A) Workshops, seminars, training, etc.;
and
(B) Monitoring performance to evaluate
compliance with the program’s requirements.
(vi) On a contract-by-contract basis, records
to support award data submitted by the
Offeror to the Government, including the
name, address, and business size of each
subcontractor. Contractors having
commercial plans need not comply with this
requirement.
(12) Assurances that the Offeror will make
a good faith effort to acquire articles,
equipment, supplies, services, or materials,
or obtain the performance of construction
work from the small business concerns that
it used in preparing the bid or proposal, in
the same or greater scope, amount, and
quality used in preparing and submitting the
bid or proposal. Responding to a request for
a quote does not constitute use in preparing
a bid or proposal. The Offeror used a small
business concern in preparing the bid or
proposal if—
(i) The Offeror identifies the small business
concern as a subcontractor in the bid or
proposal or associated small business
subcontracting plan, to furnish certain
supplies or perform a portion of the
subcontract; or
(ii) The Offeror used the small business
concern’s pricing or cost information or
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technical expertise in preparing the bid or
proposal, where there is written evidence of
an intent or understanding that the small
business concern will be awarded a
subcontract for the related work if the Offeror
is awarded the contract.
(13) A requirement for the Contractor to
provide the Contracting Officer with a
written explanation if the Contractor fails to
acquire articles, equipment, supplies,
services or materials or obtain the
performance of construction work as
described in (d)(12) of this clause. This
written explanation must be submitted to the
Contracting Officer within 30 days of
contract completion.
(14) Assurances that the Contractor will
not prohibit a subcontractor from discussing
with the Contracting Officer any material
matter pertaining to payment to or utilization
of a subcontractor.
(e) * * *
(4) Confirm that a subcontractor
representing itself as a HUBZone small
business concern is certified by SBA as a
HUBZone small business concern in
accordance with 52.219–8(d)(2).
*
*
*
*
*
(6) For all competitive subcontracts over
the simplified acquisition threshold in which
a small business concern received a small
business preference, upon determination of
the successful subcontract Offeror, the
Contractor must inform each unsuccessful
small business subcontract Offeror in writing
of the name and location of the apparent
successful Offeror and if the successful
subcontract Offeror is a small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, or women-owned
small business concern, prior to award of the
subcontract.
(f) A master subcontracting plan on a plant
or division-wide basis that contains all the
elements required by paragraph (d) of this
clause, except goals, may be incorporated by
reference as a part of the subcontracting plan
required of the Offeror by this clause;
provided—
(1) The master subcontracting plan has
been approved,
(2) The Offeror ensures that the master
subcontracting plan is updated as necessary
and provides copies of the approved master
plan, including evidence of its approval, to
the Contracting Officer, and
(3) Goals and any deviations from the
master subcontracting plan deemed
necessary by the Contracting Officer to satisfy
the requirements of this contract are set forth
in the individual subcontracting plan.
*
*
*
*
*
(i) A contract may have no more than one
subcontracting plan. When a contract
modification exceeds the subcontracting plan
threshold in 19.702(a), or an option is
exercised, the goals of the existing
subcontracting plan shall be amended to
reflect any new subcontracting opportunities.
When the goals in a subcontracting plan are
amended, these goal changes do not apply
retroactively.
*
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*
*
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*
Fmt 4702
*
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(k) The failure of the Contractor or
subcontractor to comply in good faith with—
(1) The clause of this contract entitled
‘‘Utilization Of Small Business Concerns’’; or
(2) An approved plan required by this
clause, shall be a material breach of the
contract and may be considered in any past
performance evaluation of the Contractor.
(l) The Contractor shall submit ISRs and
SSRs using the web-based eSRS at https://
www.esrs.gov. Purchases from a corporation,
company, or subdivision that is an affiliate of
the Contractor or subcontractor are not
included in these reports. Subcontract
awards by affiliates shall be treated as
subcontract awards by the Contractor.
Subcontract award data reported by the
Contractors and subcontractors shall be
limited to awards made to their immediate
next-tier subcontractors. Credit cannot be
taken for awards made to lower tier
subcontractors, unless the Contractor or
subcontractor has been designated to receive
a small business or small disadvantaged
business credit from an ANC or Indian tribe.
Only subcontracts involving performance in
the United States or its outlying areas should
be included in these reports with the
exception of subcontracts under a contract
awarded by the State Department or any
other agency that has statutory or regulatory
authority to require subcontracting plans for
subcontracts performed outside the United
States and its outlying areas.
(1) ISR. This report is not required for
commercial plans. The report is required for
each contract containing an individual
subcontract plan.
(i) The report shall be submitted semiannually during contract performance for the
periods ending March 31 and September 30.
A report is also required for each contract
within 30 days of contract completion.
Reports are due 30 days after the close of
each reporting period, unless otherwise
directed by the Contracting Officer. Reports
are required when due, regardless of whether
there has been any subcontracting activity
since the inception of the contract or the
previous reporting period. When the
Contracting Officer rejects an ISR, the
Contractor shall submit a corrected report
shall within 30 days of receiving the notice
of ISR rejection.
(ii)(A) When a subcontracting plan
contains separate goals for the basic contract
and each option, as prescribed by 19.704(c),
the dollar goal inserted on this report shall
be the sum of the base period through the
current option; for example, for a report
submitted after the second option is
exercised, the dollar goal would be the sum
of the goals for the basic contract, the first
option, and the second option.
(B) If a subcontracting plan has been added
to the contract pursuant to 19.705–2(c) or
19.301–2(e), the Contractor’s achievements
must be reported in the ISR on a cumulative
basis from the date of incorporation of the
subcontracting plan into the contract.
(iii) When a subcontracting plan includes
indirect costs in the goals, these costs must
be included in this report.
(iv) The authority to acknowledge receipt
or reject the ISR resides—
(A) In the case of the prime Contractor,
with the Contracting Officer; and
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(B) In the case of a subcontract with a
subcontracting plan, with the entity that
awarded the subcontract.
(2) SSR. (i) Reports submitted under
individual subcontracting plans.
(A) This report encompasses all
subcontracting under prime contracts and
subcontracts with an executive agency,
regardless of the dollar value of the
subcontracts. This report also includes
indirect costs on a prorated basis when the
indirect costs are excluded from the
subcontracting goals;
(B) The report may be submitted on a
corporate, company or subdivision (e.g. plant
or division operating as a separate profit
center) basis, unless otherwise directed by
the agency.
(C) If the Contractor or a subcontractor is
performing work for more than one executive
agency, a separate report shall be submitted
to each executive agency covering only that
agency’s contracts, provided at least one of
that agency’s contracts is over $650,000 (over
$1.5 million for construction of a public
facility) and contains a subcontracting plan.
For DoD, a consolidated report shall be
submitted for all contracts awarded by
military departments/agencies and/or
subcontracts awarded by DoD prime
Contractors.
(D) The report shall be submitted annually
by October 30 for the twelve month period
ending September 30. When a Contracting
Officer rejects an SSR, the Contractor shall
submit a revised report within 30 days of
receiving the notice of SSR rejection.
(F) The authority to acknowledge or reject
SSRs in eSRS, including SSRs submitted by
subcontractors with subcontracting plans,
resides with the Government agency
awarding the prime contracts unless stated
otherwise in the contract.
(ii) Reports submitted under a commercial
plan.
(A) The report shall include all subcontract
awards under the commercial plan in effect
during the Government’s fiscal year and all
indirect costs.
(B)The report shall be submitted annually,
within thirty days after the end of the
Government’s fiscal year.
(C) If a Contractor has a commercial plan
and is performing work for more than one
executive agency, the Contractor shall specify
the percentage of dollars attributable to each
agency.
(D) The authority to acknowledge or reject
SSRs for commercial plans resides with the
Contracting Officer who approved the
commercial plan.
(End of clause)
*
*
*
*
*
Alternate I (Date). As prescribed in
19.708(b)(1)(i), substitute the following
paragraph (c)(1) for paragraph (c)(1) of
the basic clause:
(c)(1) The apparent low bidder, upon
request by the Contracting Officer, shall
submit a subcontracting plan, where
applicable, that separately addresses
subcontracting with small business, veteranowned small business, service-disabled
veteran-owned small business, HUBZone
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small business, small disadvantaged
business, and women-owned small business
concerns. If the bidder is submitting an
individual subcontracting plan, the plan
must separately address subcontracting with
small business, veteran-owned small
business, service-disabled veteran-owned
small business, HUBZone small business,
small disadvantaged business, and womenowned small business concerns, with a
separate part for the basic contract and
separate parts for each option (if any). The
plan shall be included in and made a part of
the resultant contract. The subcontracting
plan shall be submitted within the time
specified by the Contracting Officer. Failure
to submit the subcontracting plan shall make
the bidder ineligible for the award of a
contract.
Alternate II (Date). As prescribed in
19.708(b)(1)(ii), substitute the following
paragraph (c)(1) for paragraph (c)(1) of the
basic clause:
(c)(1) Proposals submitted in response to
this solicitation shall include a
subcontracting plan that separately addresses
subcontracting with small business, veteranowned small business, service-disabled
veteran-owned small business, HUBZone
small business, small disadvantaged
business, and women-owned small business
concerns. If the Offeror is submitting an
individual subcontracting plan, the plan
must separately address subcontracting with
small business, veteran-owned small
business, service-disabled veteran-owned
small business, HUBZone small business,
small disadvantaged business, and womenowned small business concerns, with a
separate part for the basic contract and
separate parts for each option (if any). The
plan shall be included in and made a part of
the resultant contract. The subcontracting
plan shall be negotiated within the time
specified by the Contracting Officer. Failure
to submit and negotiate a subcontracting plan
shall make the Offeror ineligible for award of
a contract.
Alternate III (Date). As prescribed in
19.708(b)(1)(iii), substitute the following
paragraphs (d)(10) and (l) for paragraphs
(d)(10) and (l) in the basic clause;
(d)(10) Assurances that the Offeror will—
(i) Cooperate in any studies or surveys as
may be required;
(ii) Submit periodic reports so that the
Government can determine the extent of
compliance by the Offeror with the
subcontracting plan;
(iii) Submit Standard Form (SF) 294
Subcontracting Report for Individual
Contract in accordance with paragraph (l) of
this clause. Submit the Summary Subcontract
Report (SSR), in accordance with paragraph
(l) of this clause using the Electronic
Subcontracting Reporting System (eSRS) at
https://www.esrs.gov. The reports shall
provide information on subcontract awards
to small business concerns (including ANCs
and Indian tribes that are not small
businesses), veteran-owned small business
concerns, service-disabled veteran-owned
small business concerns, HUBZone small
business concerns, small disadvantaged
business concerns (including ANCs and
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32919
Indian tribes that have not been certified by
the Small Business Administration as small
disadvantaged businesses), women-owned
small business concerns, and for NASA only,
Historically Black Colleges and Universities
and Minority Institutions. Reporting shall be
in accordance with this clause, or as
provided in agency regulations; and
(iv) Ensure that its subcontractors with
subcontracting plans agree to submit the SF
294 in accordance with paragraph (l) of this
clause. Ensure that its subcontractors with
subcontracting plans agree to submit the SSR
in accordance with paragraph (l) of this
clause using the eSRS.
(l) The Contractor shall submit a SF 294.
The Contractor shall submit SSRs using the
web-based eSRS at https://www.esrs.gov.
Purchases from a corporation, company, or
subdivision that is an affiliate of the
Contractor or subcontractor are not included
in these reports. Subcontract awards by
affiliates shall be treated as subcontract
awards by the prime Contractor. Subcontract
award data reported by Contractors and
subcontractors shall be limited to awards
made to their immediate next-tier
subcontractors. Credit cannot be taken for
awards made to lower tier subcontractors,
unless the Contractor or subcontractor has
been designated to receive a small business
or small disadvantaged business credit from
an ANC or Indian tribe. Only subcontracts
involving performance in the U.S. or its
outlying areas should be included in these
reports with the exception of subcontracts
under a contract awarded by the State
Department or any other agency that has
statutory or regulatory authority to require
subcontracting plans for subcontracts
performed outside the United States and its
outlying areas.
(1) SF 294. This report is not required for
commercial plans. The report is required for
each contract containing an individual
subcontract plan. For Contractors the report
shall be submitted to the Contracting Officer,
or as specified elsewhere in this contract. In
the case of a subcontract with a
subcontracting plan, the report shall be
submitted to the entity that awarded the
subcontract.
(i) The report shall be submitted semiannually during contract performance for the
periods ending March 31 and September 30.
A report is also required for each contract
within 30 days of contract completion.
Reports are due 30 days after the close of
each reporting period, unless otherwise
directed by the Contracting Officer. Reports
are required when due, regardless of whether
there has been any subcontracting activity
since the inception of the contract or the
previous reporting period. When a
Contracting Officer rejects a report, the
Contractor shall submit a revised report
within 30 days of receiving the notice of
report rejection.
(ii) When a subcontracting plan contains
separate goals for the basic contract and each
option, as prescribed by 19.704(c), the dollar
goal inserted on this report shall be the sum
of the base period through the current option;
for example, for a report submitted after the
second option is exercised, the dollar goal
would be the sum of the goals for the basic
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contract, the first option, and the second
option.
(iii) When a subcontracting plan includes
indirect costs in the goals, these costs must
be included in this report.
(2) SSR. (i) Reports submitted under
individual subcontracting plans.
(A) This report encompasses all
subcontracting under prime contracts and
subcontracts with an executive agency,
regardless of the dollar value of the
subcontracts. This report also includes
indirect costs on a prorated basis when the
indirect costs are excluded from the
subcontracting goals.
(B) The report may be submitted on a
corporate, company or subdivision (e.g. plant
or division operating as a separate profit
center) basis, unless otherwise directed by
the agency.
(C) If the Contractor and/or subcontractor
is performing work for more than one
executive agency, a separate report shall be
submitted to each executive agency covering
only that agency’s contracts, provided at least
one of that agency’s contracts is over
$550,000 (over $1,000,000 for construction of
a public facility) and contains a
subcontracting plan. For DoD, a consolidated
report shall be submitted for all contracts
awarded by military departments/agencies
and/or subcontracts awarded by DoD prime
Contractors.
(D) The report shall be submitted annually
by October 30, for the twelve month period
ending September 30. When a Contracting
Officer rejects an SSR, the Contractor is
required to submit a revised SSR within 30
days of receiving the notice of report
rejection.
(E) Subcontract awards that are related to
work for more than one executive agency
shall be appropriately allocated.
(F) The authority to acknowledge or reject
SSRs in the eSRS, including SSRs submitted
by subcontractors with subcontracting plans,
resides with the Government agency
awarding the prime contracts unless stated
otherwise in the contract.
(ii) Reports submitted under a commercial
plan.
(A) The report shall include all subcontract
awards under the commercial plan in effect
during the Government’s fiscal year and all
indirect costs.
(B) The report shall be submitted annually,
within thirty days after the end of the
Government’s fiscal year.
(C) If a Contractor has a commercial plan
and is performing work for more than one
executive agency, the Contractor shall specify
the percentage of dollars attributable to each
agency.
(D) The authority to acknowledge or reject
SSRs for commercial plans resides with the
Contracting Officer who approved the
commercial plan.
Alternate IV (Date). As prescribed in
19.708(b)(1)(iv), substitute the following
paragraphs (c) and (d) for paragraphs (c) and
(d) of the basic clause:
(c)(1) The Contractor, upon request by the
Contracting Officer, shall submit and
negotiate a subcontracting plan, where
applicable, that separately addresses
subcontracting with small business, veteran-
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owned small business, service-disabled
veteran-owned small business, HUBZone
small business, small disadvantaged
business, and women-owned small business
concerns. If the Contractor is submitting an
individual subcontracting plan, the plan
shall separately address subcontracting with
small business, veteran-owned small
business, service-disabled veteran-owned
small business, HUBZone small business,
small disadvantaged business, and womenowned small business concerns, with a
separate part for the basic contract and
separate parts for each option (if any). The
subcontracting plan shall be incorporated
into the contract. The subcontracting plan
shall be negotiated within the time specified
by the Contracting Officer.
(2)(i) The prime Contractor may accept a
subcontractor’s representations of its small
business size and status as a small
disadvantaged business, veteran-owned small
business, service-disabled veteran-owned
small business, or a woman-owned small
business in the System for Award
Management (SAM) if:
(A) The subcontractor is registered in SAM;
and
(B) The subcontractor represents that the
size and status representations made in SAM
(or any successor system) are current,
accurate and complete as of the date of the
offer for the subcontract.
(ii) The prime Contractor may accept a
subcontractor’s written representations of its
small business size and status as a small
disadvantaged business, veteran-owned small
business, service-disabled veteran-owned
small business, or a woman-owned small
business if:
(A) The subcontractor is not registered in
SAM; and
(B) The subcontractor represents that the
size and status representations provided with
its offer are current, accurate and complete as
of the date of the offer for the subcontract.
(d) The Contractor’s subcontracting plan
shall include the following:
(1) Separate goals, expressed in terms of
total dollars subcontracted and as a
percentage of total planned subcontracting
dollars, for the use of small business, veteranowned small business, service-disabled
veteran-owned small business, HUBZone
small business, small disadvantaged
business, and women-owned small business
concerns as subcontractors. For individual
subcontracting plans, and if required by the
Contracting Officer, goals also be expressed
in terms of percentage of total contract
dollars, in addition to the goals expressed as
a percentage of total subcontract dollars. The
Contractor shall include all subcontracts that
contribute to contract performance, and may
include a proportionate share of products
and services that are normally allocated as
indirect costs. In accordance with 43 U.S.C.
1626—
(i) Subcontracts awarded to an ANC or
Indian tribe shall be counted towards the
subcontracting goals for small business and
small disadvantaged business concerns,
regardless of the size or Small Business
Administration certification status of the
ANC or Indian tribe; and
(ii) Where one or more subcontractors are
in the subcontract tier between the prime
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Fmt 4702
Sfmt 4702
Contractor and the ANC or Indian tribe, the
ANC or Indian tribe shall designate the
appropriate Contractor(s) to count the
subcontract towards its small business and
small disadvantaged business subcontracting
goals.
(A) In most cases, the appropriate
Contractor is the Contractor that awarded the
subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates
more than one Contractor to count the
subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of
the total subcontract award to each
Contractor. The sum of the amounts
designated to various Contractors cannot
exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a
copy of the written designation to the
Contracting Officer, the Contractor, and the
subcontractors in between the prime
Contractor and the ANC or Indian tribe
within 30 days of the date of the subcontract
award.
(D) If the Contracting Officer does not
receive a copy of the ANC’s or the Indian
tribe’s written designation within 30 days of
the subcontract award, the Contractor that
awarded the subcontract to the ANC or
Indian tribe will be considered the
designated Contractor.
(2) A statement of—
(i) Total dollars planned to be
subcontracted for an individual
subcontracting plan; or the Contractor’s total
projected sales, expressed in dollars, and the
total value of projected subcontracts to
support the sales for a commercial plan;
(ii) Total dollars planned to be
subcontracted to small business concerns
(including ANC and Indian tribes);
(iii) Total dollars planned to be
subcontracted to veteran-owned small
business concerns;
(iv) Total dollars planned to be
subcontracted to service-disabled veteranowned small business;
(v) Total dollars planned to be
subcontracted to HUBZone small business
concerns;
(vi) Total dollars planned to be
subcontracted to small disadvantaged
business concerns (including ANCs and
Indian tribes); and
(vii) Total dollars planned to be
subcontracted to women-owned small
business concerns.
(3) The NAICS code and corresponding
size standard of each subcontract that best
describes the principal purpose, including
the types of supplies and services to be
subcontracted, and an identification of the
types planned for subcontracting to—
(i) Small business concerns;
(ii) Veteran-owned small business
concerns;
(iii) Service-disabled veteran-owned small
business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns;
and
(vi) Women-owned small business
concerns.
(4) A description of the method used to
develop the subcontracting goals in
paragraph (d)(1) of this clause.
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(5) A description of the method used to
identify potential sources for solicitation
purposes (e.g., existing company source lists,
SAM, veterans service organizations, the
National Minority Purchasing Council
Vendor Information Service, the Research
and Information Division of the Minority
Business Development Agency in the
Department of Commerce, or small,
HUBZone, small disadvantaged, and womenowned small business trade associations).
The Contractor may rely on the information
contained in SAM as an accurate
representation of a concern’s size and
ownership characteristics for the purposes of
maintaining a small, veteran-owned small,
service-disabled veteran-owned small,
HUBZone small, small disadvantaged, and
women-owned small business source list.
Use of SAM as its source list does not relieve
a firm of its responsibilities (e.g., outreach,
assistance, counseling, or publicizing
subcontracting opportunities) in this clause.
(6) A statement as to whether or not the
Contractor included indirect costs in
establishing subcontracting goals, and a
description of the method used to determine
the proportionate share of indirect costs to be
incurred with—
(i) Small business concerns (including
ANC and Indian tribes);
(ii) Veteran-owned small business
concerns;
(iii) Service-disabled veteran-owned small
business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns
(including ANC and Indian tribes); and
(vi) Women-owned small business
concerns.
(7) The name of the individual employed
by the Contractor who will administer the
Contractor’s subcontracting program, and a
description of the duties of the individual.
(8) A description of the efforts the
Contractor will make to assure that small
business, veteran-owned small business,
service-disabled veteran-owned small
business, HUBZone small business, small
disadvantaged business, and women-owned
small business concerns have an equitable
opportunity to compete for subcontracts.
(9) Assurances that the Contractor will
include the clause of this contract entitled
‘‘Utilization of Small Business Concerns’’ in
all subcontracts that offer further
subcontracting opportunities, and that the
Contractor will require all subcontractors
(except small business concerns) that receive
subcontracts in excess of $650,000 ($1.5
million for construction of any public
facility) with further subcontracting
possibilities to adopt a subcontracting plan
that complies with the requirements of this
clause.
(10) Assurances that the Contractor will—
(i) Cooperate in any studies or surveys as
may be required;
(ii) Submit periodic reports so that the
Government can determine the extent of
compliance by the Contractor with the
subcontracting plan;
(iii) Include subcontracting data for each
order when reporting subcontracting
achievements for a multiple-award contract
intended for use by multiple agencies;
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(iv) Submit the Individual Subcontract
Report (ISR) and/or the Summary
Subcontract Report (SSR), in accordance with
paragraph (l) of this clause using the
Electronic Subcontracting Reporting System
(eSRS) at https://www.esrs.gov. The reports
shall provide information on subcontract
awards to small business concerns (including
ANCs and Indian tribes that are not small
businesses), veteran-owned small business
concerns, service-disabled veteran-owned
small business concerns, HUBZone small
business concerns, small disadvantaged
business concerns (including ANCs and
Indian tribes that have not been certified by
SBA as small disadvantaged businesses),
women-owned small business concerns, and
for NASA only, Historically Black Colleges
and Universities and Minority Institutions.
Reporting shall be in accordance with this
clause, or as provided in agency regulations;
(v) Ensure that its subcontractors with
subcontracting plans agree to submit the ISR
and/or the SSR using eSRS;
(vi) Provide its prime contract number, its
DUNS number, and the email address of the
Contractor’s official responsible for
acknowledging receipt of or rejecting the
ISRs, to all first-tier subcontractors with
subcontracting plans so they can enter this
information into the eSRS when submitting
their ISRs; and
(vii) Require that each subcontractor with
a subcontracting plan provide the prime
contract number, its own DUNS number, and
the email address of the subcontractor’s
official responsible for acknowledging receipt
of or rejecting the ISRs, to its subcontractors
with subcontracting plans.
(11) A description of the types of records
that will be maintained concerning
procedures that have been adopted to comply
with the requirements and goals in the plan,
including establishing source lists; and a
description of the Contractor’s efforts to
locate small business, veteran-owned small
business, service-disabled veteran-owned
small business, HUBZone small business,
small disadvantaged business, and womenowned small business concerns and award
subcontracts to them. The records shall
include at least the following (on a plantwide or company-wide basis, unless
otherwise indicated):
(i) Source lists (e.g., SAM), guides, and
other data that identify small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, and women-owned
small business concerns.
(ii) Organizations contacted in an attempt
to locate sources that are small business,
veteran-owned small business, servicedisabled veteran-owned small business,
HUBZone small business, small
disadvantaged business, or women-owned
small business concerns.
(iii) Records on each subcontract
solicitation resulting in an award of more
than $150,000, indicating—
(A) Whether small business concerns were
solicited and, if not, why not;
(B) Whether veteran-owned small business
concerns were solicited and, if not, why not;
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32921
(C) Whether service-disabled veteranowned small business concerns were
solicited and, if not, why not;
(D) Whether HUBZone small business
concerns were solicited and, if not, why not;
(E) Whether small disadvantaged business
concerns were solicited and, if not, why not;
(F) Whether women-owned small business
concerns were solicited and, if not, why not;
and
(G) If applicable, the reason award was not
made to a small business concern.
(iv) Records of any outreach efforts to
contact—
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate
small, HUBZone small, small disadvantaged,
service-disabled veteran-owned, and womenowned small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and
encouragement provided to buyers through—
(A) Workshops, seminars, training, etc.;
and
(B) Monitoring performance to evaluate
compliance with the program’s requirements.
(vi) On a contract-by-contract basis, records
to support award data submitted by the
Contractor to the Government, including the
name, address, and business size of each
subcontractor. Contractors having
commercial plans need not comply with this
requirement.
(12) Assurances that the Contractor will
make a good faith effort to acquire articles,
equipment, supplies, services, or materials,
or obtain the performance of construction
work from the small business concerns that
it used in preparing or proposal for the
modification, in the same or greater scope,
amount, and quality used in preparing and
submitting the modification proposal.
Responding to a request for a quote does not
constitute use in preparing a proposal. The
Contractor used a small business concern in
preparing the proposal for a modification if—
(i) The Contractor identifies the small
business concern as a subcontractor in the
proposal or associated small business
subcontracting plan, to furnish certain
supplies or perform a portion of the
subcontract; or
(ii) The Contractor used the small business
concern’s pricing or cost information or
technical expertise in preparing the proposal,
where there is written evidence of an intent
or understanding that the small business
concern will be awarded a subcontract for the
related work when the modification is
executed.
(13) A requirement for the Contractor to
provide the Contracting Officer with a
written explanation if the Contractor fails to
acquire articles, equipment, supplies,
services or materials or obtain the
performance of construction work as
described in paragraph (d)(12) of this clause.
This written explanation must be submitted
to the Contracting Officer within 30 days of
contract completion.
(14) Assurances that the Contractor will
not prohibit a subcontractor from discussing
with the contracting officer any material
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32922
Federal Register / Vol. 80, No. 111 / Wednesday, June 10, 2015 / Proposed Rules
matter pertaining to the payment to or
utilization of a subcontractor.
[FR Doc. 2015–14055 Filed 6–9–15; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R1–ES–2013–0003;
4500030113]
RIN 1018–AZ25
Endangered and Threatened Wildlife
and Plants; Designating Critical
Habitat on Molokai, Lanai, Maui, and
Kahoolawe for 135 Species
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the comment period on our
June 11, 2012 (77 FR 34464), proposal
to designate or revise critical habitat for
135 plant and animal species on the
Hawaiian Islands of Molokai, Lanai,
Maui, and Kahoolawe under the
Endangered Species Act of 1973, as
amended (Act). These 135 species
include 2 plant species for which we
reaffirmed their endangered listing
status on May 28, 2013 (78 FR 32014);
37 plant and animal species we
proposed for listing on June 11, 2012,
and subsequently listed as endangered
on May 28, 2013 (78 FR 32014); 11 plant
and animal species that are also already
listed as endangered but do not have
critical habitat designations; and 85
plant species that are already listed as
endangered or threatened and have
designated critical habitat, but for which
we proposed revisions to critical
habitat. We are reopening the comment
period to allow all interested parties
further opportunity to comment on
areas that we are considering for
exclusion in the final rule. Comments
previously submitted on the proposed
rule do not need to be resubmitted, as
they will be fully considered in
preparation of the final rule.
DATES: Written Comments: We will
consider comments received or
postmarked on or before June 25, 2015.
Please note comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES
section, below) must be received by
11:59 p.m. Eastern Time on the closing
date. If you are submitting your
comments by hard copy, please mail
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
SUMMARY:
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16:20 Jun 09, 2015
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them by June 25, 2015, to ensure that we
receive them in time to give them full
consideration.
ADDRESSES: Document Availability: You
may obtain copies of the June 11, 2012,
proposed rule, this document, and the
draft economic analysis of the proposed
designation of critical habitat at https://
www.regulations.gov at Docket Number
FWS–R1–ES–2013–0003, from the
Pacific Islands Fish and Wildlife
Office’s Web site (https://www.fws.gov/
pacificislands/), or by contacting the
Pacific Islands Fish and Wildlife Office
directly (see FOR FURTHER INFORMATION
CONTACT).
Written Comments: You may submit
written comments by one of the
following methods, or at the public
information meeting or public hearing:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. Search for Docket
No. FWS–R1–ES–2013–0003, which is
the docket number for this rulemaking,
and follow the directions for submitting
a comment.
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R1–ES–2013–
0003; Division of Policy, Performance,
and Management Programs; U.S. Fish
and Wildlife Service; MS: BPHC; 5275
Leesburg Pike; Falls Church, VA 22041–
3803.
We will post all comments we receive
on https://www.regulations.gov. This
generally means that we will post any
personal information you provide us
(see the Public Comments section,
below, for more information).
FOR FURTHER INFORMATION CONTACT:
Kristi Young, Acting Field Supervisor,
Pacific Islands Fish and Wildlife Office,
300 Ala Moana Boulevard, Room 3–122,
Honolulu, HI 96850; by telephone at
808–792–9400; or by facsimile at 808–
792–9581. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and
information during this reopened
comment period on our proposed
designation of critical habitat for 135
species on the Hawaiian Islands of
Molokai, Lanai, Maui, and Kahoolawe
(collectively, ‘‘Maui Nui’’) that was
published in the Federal Register on
June 11, 2012 (77 FR 34464). In that
proposed rule, we proposed to list 38
species as endangered, reaffirm the
listing of 2 endemic Hawaiian plants
currently listed as endangered, and
designate critical habitat for 39 of these
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Sfmt 4702
40 plant and animal species on the
Hawaiian Islands of Molokai, Lanai, and
Maui; and to designate critical habitat
for 11 plant and animal species that are
already listed as endangered, and revise
critical habitat for 85 plant species that
are already listed as endangered or
threatened on the Hawaiian Islands of
Molokai, Lanai, Maui, and Kahoolawe.
On May 28, 2013, we published a final
rule listing 38 Maui Nui species (35
plants and 3 tree snails) as endangered
and reaffirming the listing of 2 plant
species as endangered (78 FR 32014).
Critical habitat has not yet been
finalized. We have previously extended
or reopened the comment period on the
proposed critical habitat twice: once for
30 days, on August 9, 2012 (77 FR
47587), and again for 30 days on January
31, 2013 (78 FR 6785).
In particular we are seeking public
comment on the areas that we are
considering for exclusion from the final
designation of critical habitat. Although
we had previously indicated that we
were considering the possible exclusion
of non-Federal lands, especially areas in
private ownership, and asked for
comment on the broad public benefits of
encouraging collaborative conservation
efforts with local and private partners,
we are now offering an additional
opportunity for public comment on this
issue. We will consider information and
recommendations from all interested
parties.
We are particularly interested in
comments concerning whether the
benefits of excluding any particular area
from critical habitat outweigh the
benefits of including that area as critical
habitat under section 4(b)(2) of the Act
(16 U.S. C. 1531 et se.), after considering
the potential impacts and benefits of the
proposed critical habitat designation.
We are considering the possible
exclusion of non-Federal lands,
especially areas in private ownership,
and whether the benefits of exclusion
may outweigh the benefits of inclusion
of those areas. We, therefore, request
specific information on:
• The benefits of including any
specific areas in the final designation
and supporting rationale.
• The benefits of excluding any
specific areas from the final designation
and supporting rationale.
• Whether any specific exclusions
may result in the extinction of the
species and why.
For non-Federal lands in particular,
we are interested in information
regarding the potential benefits of
including such lands in critical habitat
versus the benefits of excluding such
lands from critical habitat. This
information does not need to include a
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Agencies
[Federal Register Volume 80, Number 111 (Wednesday, June 10, 2015)]
[Proposed Rules]
[Pages 32909-32922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14055]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 15, 19, and 52
[FAR Case 2014-003; Docket No. 2014-0003, Sequence No. 1]
RIN 9000-AM91
Federal Acquisition Regulation: Small Business Subcontracting
Improvements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and the National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement regulatory changes made by
the Small Business Administration, which provide for a Governmentwide
policy on small business subcontracting.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before August 10, 2015 to be considered in the formation of the
final rule.
ADDRESSES: Submit comments in response to FAR case 2014-003 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching ``FAR Case
2014-003''. Select the link ``Comment Now'' that corresponds with ``FAR
Case 2014-003.'' Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2014-003'' on
your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd
Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2014-
003, in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement
Analyst, at 703-605-2868 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAR Case 2014-003.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to revise the FAR to implement
regulatory changes made by the Small Business Administration (SBA) in
its final rule at 78 FR 42391, dated July 16, 2013, concerning small
business subcontracting. Among other things, SBA's final rule
implements the statutory requirements set forth at sections 1321 and
1322 of the Small Business Jobs Act of 2010 (Jobs Act), (Pub. L. 111-
240).
Section 1321 of the Jobs Act requires promulgation of
regulations on subcontracting compliance relating to small business
concerns, including assignment of compliance responsibilities between
contracting offices, small business offices, and
[[Page 32910]]
program offices and periodic oversight and review activities.
Section 1322 of the Jobs Act amends the Small Business Act
(15 U.S.C. 637(d)(6)) to require as part of a subcontracting plan that
a prime contractor make a good faith effort to utilize a small business
subcontractor during performance of a contract to the same degree the
prime contractor relied on the small business in preparing and
submitting its bid or proposal. If a prime contractor does not utilize
a small business subcontractor as described above, the prime contractor
is required to explain, in writing, to the contracting officer the
reasons why it is unable to do so.
SBA's final rule revised 13 CFR 125.3, and also implemented changes
aimed at improving subcontracting regulations to increase small
business opportunities. These changes include:
Authorizing contracting officers to establish
subcontracting goals in terms of total contract dollars in addition to
the required goals in terms of total subcontracted dollars, for
individual plans.
Providing contracting officers discretion to require a
subcontracting plan in instances where a prime contractor's size status
changes from small to other than small business as a result of
rerepresentation.
Requiring subcontracting plans, to the extent that
subcontracting opportunities exist, when a modification causes the
overall contract value to exceed the subcontracting plan threshold,
even if the modification's value is less than the threshold.
Requiring prime contractors to assign North American
Industry Classification System (NAICS) codes to subcontracts.
Providing that prime contractors cannot prohibit a
subcontractor from discussing payment or utilization matters with the
contracting officer.
Requiring prime contractors to resubmit a corrected
subcontracting report within 30 days of receiving the contracting
officer's notice of report rejection.
Clarifying a requirement that prime contractors notify
unsuccessful offerors for subcontracts in writing.
Requiring prime contractors with individual subcontracting
plans to report order level subcontracting information.
Clarifying that failure to comply in good faith with the
subcontracting plan shall be a material breach of the contract and may
be considered in any past performance evaluation of the prime
contractor.
The proposed rule will implement a change in the method that
Federal agencies will receive small business subcontracting credit.
Historically, the agency that awards the contract also receives the
small business subcontracting credit. The proposed rule changes this
model by allowing the funding agency to receive the small business
credit. SBA implemented this change of providing funding agency credit
in its final rule in deference to the concerns expressed by the users
of multi-agency contracts (MACs) and Government-wide acquisition
contracts (GWACs), who have long been of the opinion that the agencies
using these vehicles, i.e., the funding agencies, should receive the
small business subcontracting credit. For consistency, this proposed
FAR rule implements the requirement for funding agencies receiving
small business subcontracting credit for all contract vehicles, not
just MACs and GWACs.
This proposed FAR rule also changes the requirement for a prime
contractor to submit Summary Subcontract Reports (SSRs) for DoD and
NASA contracts to be annually rather than semi-annually, and deletes
the requirement for a prime contractor to submit a separate report to
each DoD component for construction and related maintenance and repair
contracts.
II. Discussion and Analysis
Amendments to FAR subparts 1.1, 2.1, 15.3, 19.3, 19.7, and 52.2 are
proposed by this rule. The proposed changes are summarized in the
following paragraphs.
A. FAR Subpart 1.1, Purpose, Authority, Issuance. Section 1.106
under this subpart is amended to reflect the new Paperwork Burden OMB
clearance number associated with the requirement of section 1322 of the
Jobs Act.
B. FAR Subpart 2.1, Definitions. This subpart is amended to revise
the definitions of HUBZone contract and HUBZone small business concern
to clarify that HUBZone status is not a self-certification. The
clarification is necessary due to instances of some small business
concerns located in HUBZones identifying themselves as HUBZone small
business concerns without realizing that business concerns may not
self-certify as a HUBZone small business concern. A certified HUBZone
small business concern is one on the List of Qualified HUBZone Small
Business Concerns maintained by the Small Business Administration. This
subpart is also amended to revise the definition of ``small business
subcontractor.''
C. FAR Subpart 15.3, Source Selection.
FAR 15.304, Evaluation factors and significant subfactors.
This section is amended to make minor editorial changes.
D. FAR Subpart 19.3, Determination of Small Business Status for
Small Business Programs.
FAR 19.301-2, Rerepresentation by a contractor that
represented itself as a small business concern. This subsection is
amended to give contracting officers the discretionary authority to
require a subcontracting plan in the event a prime contractor's size
changes from small to other than small as a result of a size
rerepresentation on a contract that contains FAR clause 52.219-9, Small
Business Subcontracting Plan.
E. FAR Subpart 19.7, The Small Business Subcontracting Program.
FAR 19.701, Definitions. This section is amended to
reflect the common usage name of ``individual subcontracting plans''
instead of ``individual contract plans'' and clarify that a ``master
plan'' refers to a ``master subcontracting plan.'' This section also
adds a definition for the term ``total contract dollars'' which is
introduced in 19.704 in this case.
FAR 19.702, Statutory requirements. This section is
amended to be more consistent with SBA's revised regulations on
requiring subcontracting plans when a modification causes the value of
a contract without a subcontracting plan to exceed the subcontracting
threshold. This section is also amended to remove an outdated reference
to clauses in contracts awarded before 1978.
FAR 19.703, Eligibility requirements for participating in
the program. This section is amended to implement SBA's regulatory
changes regarding prime contractors' responsibility in assigning NAICS
codes and corresponding size standards to subcontracts. In addition,
new guidance is added regarding acceptable sources of information a
prime contractor may use to determine a subcontractor's size and
socioeconomic status and the old language is removed. This section is
also amended to correct outdated information and to move language
regarding protest of the disadvantaged status of a proposed
subcontractor to new paragraph (e).
FAR 19.704, Subcontracting plan requirements. This section
is amended to implement various SBA regulatory changes and
clarifications including--
[cir] Explicitly authorizing contracting officers to establish
additional subcontract goals in terms of total
[[Page 32911]]
contract dollars for individual subcontracting plans;
[cir] A requirement for prime contractors to report order-level
subcontracting information for multiple-award contracts intended for
use by multiple agencies;
[cir] A requirement for prime contractors to resubmit a corrected
subcontracting report within 30 days of receiving the contracting
officer's notice of report rejection;
[cir] Changing the requirement for semi-annual submission of the
SSR for DoD and NASA to be annual;
[cir] A requirement that prime contractors make good faith efforts
to utilize the small business subcontractors to the same or greater
extent they were used in preparing the bid or proposal;
[cir] A requirement for the prime contractor to provide the
contracting officer with a written explanation if it does not use a
small business subcontractor to the same extent as described in the
prime contractor's bid or proposal; and
[cir] Restricting prime contractors from prohibiting a
subcontractor from discussing payment or utilization matters with the
contracting officer.
FAR 19.705, Responsibilities of the contracting officer
under the subcontracting assistance program.
[cir] FAR 19.705-1, General support of the program. This subsection
is amended to revise the title of the subsection and to implement SBA's
regulatory requirements regarding subcontracting plans for indefinite-
delivery, indefinite-quantity contracts exceeding the subcontracting
threshold and discretion of ordering contracting officers to establish
subcontracting goals for individual orders.
[cir] FAR 19.705-2, Determining the need for a subcontracting plan.
This subsection is amended to implement SBA's regulatory requirement to
establish a subcontracting plan when a modification of any value causes
the contract to exceed the subcontracting plan threshold, and there are
potential subcontracting opportunities. Language is added to explicitly
require the rationale to be placed in the contract file for determining
that no subcontracting opportunities exist. This subsection is also
amended to clarify that while changes made to an existing
subcontracting plan do not apply retroactively, the contractor's
achievements prior to the modification will be factored into its
overall achievement on the plan. This subsection also adds language
clarifying that when a subcontracting plan is required for a contract
as a result of a size rerepresentation or a modification which causes
the value of the contract to exceed the threshold for a subcontracting
plan, the goals in the subcontracting plan apply from the date of
incorporation of the plan into the contract and the contractor is to
report its subcontracting achievement from the date the plan is
incorporated into the contract.
[cir] FAR 19.705-4, Reviewing the subcontracting plan. This
subsection makes conforming changes to paragraphs (b) and (c).
[cir] FAR 19.705-6, Postaward responsibilities of the contracting
officer. This subsection implements the SBA's regulatory requirements
for contracting officers to ensure prime contractors meet their
obligations under their subcontracting plan. This subsection is amended
as follows--
[ssquf] New language is added clarifying that upon receipt of the
prime contractor's subcontracting reports into eSRS, the contracting
officer shall review the submitted reports within 60 days of the report
ending date and ensure that an explanation is provided in the event the
contracting officer rejects a submitted report; and
[ssquf] New language is added to require the contracting officer to
evaluate a prime contractor's written explanation concerning its
failure to use a small business concern in the performance of a
contract when that small business concern was used to prepare the bid
or proposal.
FAR 19.708, Contract Clauses. This section is amended to
add a prescription for the newly-created Alternate IV to clause 52.219-
9 Small Business Subcontracting Plan.
F. FAR Subpart 52.2, Text of Provisions and Clauses.
FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders-Commercial Items. This clause is
amended to reflect the updated 52.219-8 and 52.219-9.
FAR 52.219-8, Utilization of Small Business Concerns. This
clause is amended to make conforming changes based on changes to FAR
2.101 and 19.703.
FAR 52.219-9, Small Business Subcontracting Plan. This
clause is amended to incorporate corresponding guidance and policy
changes made to section 19.704 and SBA's regulatory guidance regarding
inclusion of indirect costs and awards made by affiliates in ISRs and
SSRs. This clause is also amended to reflect the change of DoD's and
NASA's semi-annual submission requirement for Summary Subcontract
Reports (SSR) and eliminate a unique DoD requirement for a separate SSR
for construction contracts. In addition, an Alternate IV to the clause
is created for use in contracts where a subcontracting plan will be
required when a modification causes the contract to exceed the
threshold for a subcontracting plan and there are subcontracting
opportunities.
III. Applicability to Commercial Items, Including Commercially
Available Off-the-Shelf Items
This rule proposes to amend the clauses at 52.219-8, Utilization of
Small Business Concerns, and 52.219-9, Small Business Subcontracting
Plan, in order to implement sections 1321 and 1322 of the Small
Business Jobs Act of 2010. The Federal Acquisition Regulatory Council,
pursuant to the authority granted in 41 U.S.C. 1906 and the
Administrator, Office of Federal Procurement Policy, pursuant to the
authority granted in 41 U.S.C. 1907, have determined that the
application of these statutory provisions to contracts for commercial
items and commercially available off-the-shelf items, is in the best
interests of the Federal Government.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This proposed rule is not a major
rule under 5 U.S.C. 804.
V. Regulatory Flexibility Act
The change may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act 5 U.S.C. 601, et seq. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
DoD, GSA, and NASA are proposing to amend the FAR to provide
uniform guidance consistent with SBA's final rule at 78 FR 42391,
dated July 16, 2013, which implements Sections 1321 and 1322 of the
Small Business Jobs Act of 2010 (Pub. L. 111-240). SBA's final rule
also implements other changes intended to help small
[[Page 32912]]
business subcontractors by explicitly authorizing procuring agencies
to consider proposed small business participation when evaluating
offers from other than small business concerns and to require other
than small prime contractors to report data on small business
subcontracting in connection with orders.
The objectives of this proposed rule are to implement statutory
requirements as well as make improvements to increase subcontracting
opportunities for small businesses. The authorizing legislation for
this action are sections 1321 and 1322 of the Small Business Jobs
Act of 2010 (Pub. L. 111-240).
This rule may have a positive economic impact on any small
business entity that wishes to participate in the Federal
procurement arena as a subcontractor. Analysis of the System for
Award Management (SAM) database indicates there are over 297,181
small business registrants. It is unknown how many of these concerns
participate in small business subcontracting. Firms do not need to
register in the SAM database to participate in subcontracting. Thus,
the number of firms participating in subcontracting may be greater
than or lower than the number of firms registered in the SAM
database.
This rule does not impose any new reporting, recordkeeping or
other compliance requirements for small businesses. This rule does
not duplicate, overlap, or conflict with any other Federal rules.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA, and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule
consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-003),
in correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. This
proposed rule contains information collection requirements.
Accordingly, the Regulatory Secretariat Division has submitted a
request for approval of one new and two revised information collection
requirements concerning FAR Case 2014-003 Small Business Subcontracting
Improvements to the Office of Management and Budget.
A1. Request for approval of new information collection requirement
9000-00xx. Public reporting burden for the collection of information
regarding a contractor's utilization of small business subcontractors
to the same degree the prime contractor relied on the small business in
preparing and submitting its bid or proposal is estimated to be
$202,464. FPDS for FY 2013 lists 5,327 actions with small business
subcontracting plans. However, it is estimated that at most 50 percent
of these contracts with subcontracting plans may have instances of the
prime contractor not using a small business subcontractor to the same
extent used in preparing the bid or proposal. Using this method
provides the number of respondents as 2,664. It is estimated that the
average time required to read and prepare information for this
collection is two hours. It is also estimated that the responses per
respondent would be once a year since prime contractors have until 30
days of contract completion to submit the written explanation.
The annual reporting burden is estimated as follows:
Respondents: 2,664.
Responses per respondent: 1.
Total annual responses: 2,664.
Preparation hours per response: 2.
Total response burden hours: 5,328.
Cost per hour: $38.
Total annual burden: $202,464.
A2. Revision to existing OMB Clearance 9000-0006. Based on the
proposed revisions to the FAR as well as a more accurate basis for
estimation, an upward adjustment is being made to the average burden
hours for reporting and recordkeeping per response but a downward
adjustment is being made to the number of respondents (i.e.,
subcontracting plans and the individual subcontracting reports
associated with them). As a result, a downward adjustment is being made
to the estimated annual reporting burden since the notice regarding an
extension to this clearance published in the Federal Register at 78 FR
17668, on March 22, 2013.
Respondents: 59,336.
Responses per respondent: 3.
Total annual responses: 178,008.
Preparation hours per response: 13.5.
Total response burden hours: 2,403,108.
Cost per hour: $30.
Total annual burden: $72,093,240.
A3. Revision to existing OMB Clearance 9000-0007. Based on the
proposed revisions to the FAR as well as a more accurate basis for
estimation, a downward adjustment is being made to the number of
respondents (i.e., summary subcontracting reports). Since the proposed
revisions to the FAR do not require additional information in the
Summary Subcontract Report, the estimated preparation hours per
response remains unchanged. As a result, a downward adjustment is being
made to the estimated annual reporting burden since the notice
regarding an extension to this clearance published in the Federal
Register at 78 FR 17668, on March 22, 2013.
Respondents: 59,336.
Responses per respondent: 1.
Total annual responses: 59,336.
Preparation hours per response: 9.0.
Total response burden hours: 534,024.
Cost per hour: $30.
Total annual burden: $16,020,720.
B. Request for Comments Regarding Paperwork Burden. Submit
comments, including suggestions for reducing this burden, no later than
August 10, 2015 to: FAR Desk Officer, OMB, Room 10102, NEOB,
Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms.
Flowers, 1800 F. Street NW., 2nd Floor, Washington, DC 20405.
Public comments are particularly invited on: Whether these
collections of information are necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of these collections of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, or clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requesters may obtain a copy of the supporting statements from the
General Services Administration, Regulatory Secretariat Division
(MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd Floor, Washington,
DC 20405. Please cite OMB Control Number 9000-00XX, Utilization of
Small Business Subcontractors, 9000-0006, Subcontracting Plans/
Subcontract Report For Individual Contracts, or 9000-0007, Summary
Subcontract Report, as applicable, in all correspondence.
List of Subjects in 48 CFR Parts 1, 2, 15, 19, and 52
Government procurement.
Dated: June 3, 2015.
William Clark
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts
1, 2, 15, 19, and 52, as set forth below:
0
1. The authority citation for 48 CFR parts 1, 2, 15, 19, and 52
continues to read as follows:
[[Page 32913]]
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106 by removing from the table ``19.7'' and
``52.219-9'' and their corresponding OMB Control Numbers ``9000-0006
and 9000-0007'' and adding, in numerical sequence, ``19.7'' and
``52.219-9'' with their corresponding control numbers ``9000-00xx,
9000-0006, and 9000-0007'', respectively.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 2.101 in paragraph (b) by--
0
a. Revising the introductory paragraph of the definition ``HUBZone
Contract'';
0
b. Revising the definition ``HUBZone small business concern''; and
0
c. Revising the definition ``Small business subcontractor''.
The revised text reads as follows:
2.101 Definitions.
* * * * *
HUBZone contract means a contract awarded to a SBA certified
``HUBZone small business concern'' through any of the following
procurement methods:
* * * * *
HUBZone small business concern means a small business concern,
certified by the Small Business Administration, that appears on the
List of Qualified HUBZone Small Business Concerns maintained by the
Small Business Administration (13 CFR 126.103).
* * * * *
Small business subcontractor means a concern that does not exceed
the size standard for the North American Industry Classification
Systems code that the prime contractor determines best describes the
product or service being acquired by the subcontract.
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
0
4. Amend section 15.304 by--
0
a. Revising paragraph (c)(3)(i); and
0
b. Removing from paragraphs (c)(3)(ii) and (c)(4) ``must'' and adding
``shall'' in their places.
The revised text reads as follows:
15.304 Evaluation factors and significant subfactors.
* * * * *
(c) * * *
(3)(i) Past performance, except as set forth in paragraph
(c)(3)(iii) of this section, shall be evaluated in all source
selections for negotiated competitive acquisitions expected to exceed
the simplified acquisition threshold.
* * * * *
PART 19--THE SMALL BUSINESS PROGRAMS
0
5. Amend section 19.301-2 by revising paragraph (e) to read as follows:
19.301-2 Rerepresentation by a contractor that represented itself as a
small business concern.
* * * * *
(e) A change in size status does not change the terms and
conditions of the contract. However, the contracting officer may
require a subcontracting plan for a contract containing 52.219-9, Small
Business Subcontracting Plan, if a prime contractor's size status
changes from small to other than small as a result of a size
rerepresentation.
19.305 [Amended]
0
6. Amend section 19.305 by removing from paragraph (c) ``19.703(a)(2)''
and ``19.703(b)'' and adding ``19.703(e)'' and ``19.703(c)'' in their
places, respectively.
0
7. Amend section 19.701 by--
0
a. Revising the heading of the definition ``Individual contract plan''
to read ``Individual subcontracting plan'';
0
b. Revising the heading of ``Master plan'' to read ``Master
subcontracting plan''; and revising the definition; and
0
c. Adding, in alphabetical order, the definition ``Total contract
dollars''.
The revised and added text reads as follows:
19.701 Definitions.
* * * * *
Master subcontracting plan means a subcontracting plan that
contains all the required elements of an individual subcontracting
contract plan, except goals, and may be incorporated into individual
subcontracting contract plans, provided the master plan has been
approved.
* * * * *
Total contract dollars means the final anticipated dollar value,
including the dollar value of all options.
0
8. Amend section 19.702 by--
0
a. Removing from paragraph (a) introductory text the word ``Section''
and adding ``section'' in its place;
0
b. Removing from paragraphs (a)(1) and (a)(2) ``a contract or contract
modification that individually is'' and adding ``a contract is'' in
their places wherever they appear;
0
c. Adding paragraph (a)(3); and
0
d. Revising paragraph (b)(4).
The revised and added text reads as follows:
19.702 Statutory requirements.
* * * * *
(a) * * *
(3) Each contract modification that causes the value of a contract
without a subcontracting plan to exceed $650,000 ($1.5 million for
construction), shall require the contractor to submit an acceptable
subcontracting plan for the contract, if the contracting officer
determines that subcontracting opportunities exist.
(b) * * *
(4) For modifications to contracts within the general scope of the
contract that do not contain the clause at 52.219-8, Utilization of
Small Business Concerns.
* * * * *
0
9. Amend section 19.703 by--
0
a. Adding a sentence to the end of paragraph (a)(1);
0
b. Revising paragraphs (a)(2) and (b);
0
c. Removing from paragraph (d)(1) ``System for Award Management'' and
adding ``SAM'' in its place;
0
d. Removing from paragraph (d)(1)(i) ``or https://www.sba.gov/hubzone'';
0
e. Removing from paragraph (d)(1)(ii) ``HUB'' and adding ``HUBZone
Program'' in its place;
0
f. Removing from paragraph (d)(2) ``13 CFR 121.411'' and adding ``13
CFR 126.801'' in its place; and
0
g. Adding paragraph (e).
The added and revised text reads as follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(a) * * *
(1) * * * For subcontracting purposes, a concern is small if it
does not exceed the size standard for the NAICS code that the prime
contractor determines best describes the product or service being
acquired by the subcontract.
(2)(i) The prime contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-disabled
veteran-owned small business, or a woman-owned small business in the
System for Award Management (SAM) if:
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the subcontract.
(ii) The prime contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged
[[Page 32914]]
business, veteran-owned small business, service-disabled veteran-owned
small business, or a woman-owned small business if:
(A) The subcontractor is not registered in SAM; and
(B) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
(b) The contractor, the contracting officer, or any other
interested party can challenge a subcontractor's size status
representation by filing a protest, in accordance with 13 CFR 121.1001
through 121.1008.
* * * * *
(e) The contracting officer or the SBA may protest the
disadvantaged status of a proposed subcontractor. Protests challenging
a subcontractor's small disadvantaged business representation must be
filed in accordance with 13 CFR 124.1007 through 124.1014. Other
interested parties may submit information to the contracting officer or
the SBA in an effort to persuade the contracting officer or the SBA to
initiate a protest. Such protests, in order to be considered timely,
must be submitted to the SBA prior to completion of performance by the
intended subcontractor.
0
10. Amend section 19.704 by--
0
a. Revising the introductory text of paragraph (a);
0
b. Revising paragraphs (a)(2) and (3);
0
c. Redesignating paragraphs (a)(10)(iii) through (vi) as paragraphs
(a)(10)(iv) through (vii), respectively;
0
d. Adding new paragraph (a)(10)(iii);
0
e. Removing from the newly designated paragraph (a)(10)(iv) ``eSRS;''
and adding ``eSRS.'' in its place;
0
f. Adding a sentence to the end of the newly designated paragraph
(a)(10)(iv)(A);
0
g. Revising the newly designated paragraph (a)(10)(iv)(B);
0
h. Removing from the newly designated paragraph (a)(10)(vii) ``plans.''
and adding ``plans;'' in its place;
0
i. Removing from paragraph (a)(11) ``them.'' and adding ``them;'';
0
j. Adding paragraphs (a)(12) through (14);
0
k. Removing from paragraph (b) ``master'' and ``Master'' adding
``master subcontracting'' and ``Master subcontracting'' in their
places, respectively, wherever they appear; and
0
l. Revising the last sentence of paragraph (c).
The revised and added text reads as follows:
19.704 Subcontracting plan requirements.
(a) Each subcontracting plan required under 19.301-2(e) and
19.702(a)(1), (2), and (3) shall include--
(1) * * *
(2) A statement of the total dollars planned to be subcontracted
and a statement of the total dollars planned to be subcontracted to
small business (including ANCs and Indian tribes), veteran-owned small
business, service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business (including ANCs and Indian
tribes) and women-owned small business concerns, as a percentage of
total subcontract dollars. For individual subcontracting plans, a
contracting officer may require the goals referenced in paragraph
(a)(1) of this section to be established as a percentage of total
contract dollars, in addition to the goals established as a percentage
of total subcontract dollars;
(3) The NAICS code and corresponding size standard of each
subcontract that best describes the principal purpose, including the
supplies and services to be subcontracted, and an identification of
types of supplies or services planned for subcontracting to small
business, veteran-owned small business, service-disabled veteran-owned
small business, HUBZone small business, small disadvantaged business
(including ANCs and Indian tribes), and women-owned small business
concerns;
* * * * *
(10) * * *
(iii) Include subcontracting data for each order when reporting
subcontracting achievements for multiple-award contracts intended for
use by multiple agencies;
(iv) * * *
(A) * * * When a contracting officer rejects an ISR due the report
being incomplete or incorrect, the contractor is required to submit a
revised ISR within 30 days of receiving the notice of the ISR
rejection.
(B) The SSR shall be submitted annually by October 30 for the
twelve-month period ending September 30. When a contracting officer
rejects an SSR due to the report being incomplete or incorrect, the
contractor is required to submit a revised SSR within 30 days of
receiving the notice of SSR rejection;
* * * * *
(12) Assurances that the offeror will make a good faith effort to
acquire articles, equipment, supplies, services, or materials, or
obtain the performance of construction work from the small business
concerns that the offeror used in preparing the bid or proposal, in the
same or greater scope, amount, and quality used in preparing and
submitting the bid or proposal. Responding to a request for a quote
does not constitute use in preparing a bid or proposal. An offeror used
a small business concern in preparing the bid or proposal if--
(i) The offeror identifies the small business concern as a
subcontractor in the bid or proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a portion
of the contract; or
(ii) The offeror used the small business concern's pricing or cost
information or technical expertise in preparing the bid or proposal,
where there is written evidence of an intent or understanding that the
small business concern will be awarded a subcontract for the related
work if the offeror is awarded the contract;
(13) A requirement for the contractor to provide the contracting
officer with a written explanation if the contractor fails to acquire
articles, equipment, supplies, services or materials or obtain the
performance of construction work as described in (a)(12) of this
section. This written explanation shall be submitted to the contracting
officer within 30 days of contract completion; and
(14) Assurances that the contractor will not prohibit a
subcontractor from discussing with the contracting officer any material
matter pertaining to payment to or utilization of a subcontractor.
* * * * *
(c) * * * If a subcontracting plan is necessary and the offeror is
submitting an individual subcontracting plan, the individual
subcontracting plan shall contain all the elements required by
paragraph (a) of this section and shall contain separate statements and
goals for the basic contract and for each option.
* * * * *
0
11. Amend section 19.705-1 by--
0
a. Revising the heading;
0
b. Redesignating the introductory paragraph as paragraph (a); and
0
c. Adding paragraph (b).
The revised and added text reads as follows:
19.705-1 General.
(a) * * *
(b)(1) Except where a contractor has a commercial plan, the
contracting officer shall require a subcontracting plan for each
indefinite-delivery, indefinite-quantity contract (including task or
delivery order contracts, FSS, GWACs, and MACs), when the estimated
value of the contract meets the subcontracting
[[Page 32915]]
plan thresholds at 19.702(a)(1) and small business subcontracting
opportunities exist.
(2) Contracting officers placing orders may establish small
business subcontracting goals for each order.
0
12. Amend section 19.705-2 by--
0
a. Removing from the introductory text ``must'' and adding ``shall'' in
its place;
0
b. Revising paragraph (a);
0
c. Adding paragraph (b)(3);
0
d. Revising paragraphs (c) and (e); and
0
e. Adding paragraph (f).
The revised and added text reads as follows:
19.705-2 Determining the need for a subcontracting plan.
* * * * *
(a)(1) Determine whether the proposed total contract dollars will
exceed the subcontracting plan threshold in 19.702(a).
(2) Determine whether a proposed modification will cause the total
contract dollars to exceed the subcontracting plan threshold (see
19.702(a)).
(b) * * *
(3) Whether the firm can acquire the items to be furnished by
contract with minimal or no disruption of contract performance (with
consideration given to the time remaining until contract completion),
and at fair market value, when a determination is made in accordance
with paragraph (a)(2).
(c)(1) When adding a subcontracting plan pursuant to 19.705-
2(a)(2), the subcontracting goals apply from the date of incorporation
of the subcontracting plan into the contract.
(2) If it is determined that there are no subcontracting
possibilities, the determination shall include a detailed rationale, be
approved at a level above the contracting officer, and placed in the
contract file.
* * * * *
(e) A contract may have no more than one subcontracting plan. When
a contract modification exceeds the subcontracting plan threshold (see
19.702(a)), or an option is exercised, the goals of an existing
subcontracting plan shall be amended to reflect any new subcontracting
opportunities. These goal changes do not apply retroactively.
(f) If a subcontracting plan has been added to the contract due to
a modification (see 19.702(a)(3)) or a size re-representation (see
19.301-2(e)), the contractor's achievements must be reported on the ISR
(or the SF-294, if applicable) on a cumulative basis from the date of
incorporation of the subcontracting plan into the contract.
19.705-4 [Amended]
0
13. Amend section 19.705-4 by removing from paragraph (b) ``11
required'' and adding ``14 required'' in its place; and removing from
paragraph (c) ``11 elements'' and adding ``14 elements'' in its place.
0
14. Amend section 19.705-6 by--
0
a. Revising the introductory paragraph;
0
b. Removing from paragraph (a) ``Notifying'' and adding ``Notify'' in
its place;
0
c. Removing from paragraph (b) ``Forwarding'' and adding ``Forward'' in
its place;
0
d. Removing from the introductory text of paragraph (c) ``Giving'' and
adding ``Give'' in its place;
0
e. Removing from paragraph (d) ``Notifying'' and adding ``Notify'' in
its place;
0
f. Removing from paragraph (e) ``Forwarding'' and adding ``Forward'' in
its place;
0
g. Redesignating paragraphs (f) through (h) as paragraphs (h) through
(j), respectively;
0
h. Adding new paragraphs (f) and (g);
0
i. Removing from newly redesignated paragraph (h) ``Initiating'' and
adding ``Initiate'' in its place;
0
j. Removing from newly redesignated paragraph (i) ``Taking'' and adding
``Take'' in its place; and
0
k. Removing from newly redesignated paragraph (j) ``Acknowledging
receipt of or rejecting'' and adding ``Acknowledge receipt of or
reject'' in its place.
The revised and added text reads as follows:
19.705-6 Postaward responsibilities of the contracting officer.
After a contract or contract modification containing a
subcontracting plan is awarded or an existing subcontracting plan is
amended, the contracting officer shall do the following:
* * * * *
(f) Monitor the prime contractor's compliance with its
subcontracting plan, to include the following:
(1) Ensure that subcontracting reports are submitted into the eSRS
(or any successor system) within 30 days after the report ending date
(e.g., by October 30th for the fiscal year ended September 30th).
(2) Review ISRs, and where applicable, SSRs, in eSRS (or any
successor system) within 60 days of the report ending date (e.g., by
November 30th for a report submitted for the fiscal year ended
September 30th).
(3) Either acknowledge receipt of or reject the reports in
accordance with subpart 19.7, 52.219-9, Small Business Subcontracting
Plan, and the eSRS instructions (www.esrs.gov).
(i) The authority to acknowledge or reject SSRs for commercial
plans resides with the contracting officer who approved the commercial
plan.
(ii) If a report is rejected, the contracting officer must provide
an explanation for the rejection to allow the prime contractor the
opportunity to respond specifically to perceived deficiencies.
(g) Evaluate the prime contractor's compliance with its
subcontracting plan, to include the following:
(1) Assess whether the prime contractor made a good faith effort to
comply with its small business subcontracting plan (see 13 CFR
125.3(d)(3)).
(2) Assess the prime contractor's written explanation concerning
the prime contractor's failure to use a small business concern in the
performance of the contract in the same scope, amount, and quality used
in preparing and submitting the bid or proposal, if applicable.
* * * * *
0
15. Amend section 19.708 by--
0
a. Removing from paragraph (b)(1) ``facility),'' and adding
``facility)'' in its place;
0
b. Removing the period at the end of paragraphs (b)(1)(i) and (ii) and
adding a semicolon in their places;
0
c. Removing from paragraph (b)(1)(iii) ``Alternate III.'' and adding
``Alternate III; or'' in its place;
0
d. Adding a new paragraph (b)(1)(iv);
0
e. Removing from paragraph (b)(2) ``Alternate I, II, or III.'' and
adding ``Alternate I, II, III, or IV.'' in its place.
The added text reads as follows:
19.708 Contract clauses.
* * * * *
(b)(1) * * *
(iv) Incorporating a subcontracting plan due to a modification as
provided for in 19.702(a)(3), the contracting officer shall use the
clause with its Alternate IV.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
16. Amend section 52.212-5 by revising the date of the clause; and
revising paragraphs (b) (16) and (17) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
[[Page 32916]]
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Date)
* * * * *
(b) * * *
__(16) 52.219-8, Utilization of Small Business Concerns (Date)
(15 U.S.C. 637(d)(2) and (3)).
__(17)(i) 52.219-9, Small Business Subcontracting Plan (Date)
(15 U.S.C. 637(d)(4)).
__(ii) Alternate I (Date) of 52.219-9.
__(iii) Alternate II (Date) of 52.219-9.
__(iv) Alternate III (Date) of 52.219-9.
__(v) Alternative IV (Date) of 52.219-9.
* * * * *
0
17. Amend section 52.219-8 by--
0
a. Revising the date of the clause;
0
b. Revising the definition in paragraph (a) of ``HUBZone small business
concern'';
0
c. Revising paragraph (d)(1);
0
d. Redesignating paragraph (d)(2) as (d)(3); and
0
e. Adding a new paragraph (d)(2).
The revised and added text reads as follows:
52.219-8 Utilization of Small Business Concerns.
* * * * *
Utilization of Small Business Concerns (Date)
(a) * * *
HUBZone small business concern means a small business concern,
certified by the Small Business Administration, that appears on the
List of Qualified HUBZone Small Business Concerns maintained by the
Small Business Administration.
* * * * *
(d)(1) The prime Contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business in the System for Award Management (SAM) if:
(i) The subcontractor is registered in SAM; and
(ii) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the
subcontract.
(2) The prime Contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business if:
(i) The subcontractor is not registered in SAM; and
(ii) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
* * * * *
0
18. Amend section 52.219-9 by--
0
a. Revising the section heading;
0
b. Revising the date of the clause;
0
c. Revising paragraphs (b), (c), and (d);
0
d. Revising paragraphs (e)(4) and (6);
0
e. Revising paragraphs (f), (i), (k), and (l);
0
f. Revising Alternates I, II, and III; and
0
g. Adding Alternate IV.
The revised and added text reads as follows:
52.219-9 Small Business Subcontracting Plan.
* * * * *
Small Business Subcontracting Plan (Date)
* * * * *
(b) Definitions. As used in this clause--
Alaska Native Corporation (ANC) means any Regional Corporation,
Village Corporation, Urban Corporation, or Group Corporation
organized under the laws of the State of Alaska in accordance with
the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601,
et seq.) and which is considered a minority and economically
disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1).
This definition also includes ANC direct and indirect subsidiary
corporations, joint ventures, and partnerships that meet the
requirements of 43 U.S.C. 1626(e)(2).
Commercial item means a product or service that satisfies the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation.
Commercial plan means a subcontracting plan (including goals)
that covers the Offeror's fiscal year and that applies to the entire
production of commercial items sold by either the entire company or
a portion thereof (e.g., division, plant, or product line).
Electronic Subcontracting Reporting System (eSRS) means the
Governmentwide, electronic, web-based system for small business
subcontracting program reporting. The eSRS is located at https://www.esrs.gov.
Indian tribe means any Indian tribe, band, group, pueblo, or
community, including native villages and native groups (including
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as
defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1601
et seq.), that is recognized by the Federal Government as eligible
for services from the Bureau of Indian Affairs in accordance with 25
U.S.C. 1452(c). This definition also includes Indian-owned economic
enterprises that meet the requirements of 25 U.S.C. 1452(e).
Individual subcontracting plan means a subcontracting plan that
covers the entire contract period (including option periods),
applies to a specific contract, and has goals that are based on the
Offeror's planned subcontracting in support of the specific
contract, except that indirect costs incurred for common or joint
purposes may be allocated on a prorated basis to the contract.
Master subcontracting plan means a subcontracting plan that
contains all the required elements of an individual subcontracting
plan, except goals, and may be incorporated into individual
subcontracting plans, provided the master plan has been approved.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Federal Government
prime Contractor or subcontractor calling for supplies or services
required for performance of the contract or subcontract.
Total contract dollars means the final anticipated dollar value,
including the dollar value of all options.
(c)(1) The Offeror, upon request by the Contracting Officer,
shall submit and negotiate a subcontracting plan, where applicable,
that separately addresses subcontracting with small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns. If the Offeror is submitting an
individual subcontracting plan, the plan must separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The subcontracting plan
shall be included in and made a part of the resultant contract. The
subcontracting plan shall be negotiated within the time specified by
the Contracting Officer. Failure to submit and negotiate the
subcontracting plan shall make the Offeror ineligible for award of a
contract.
(2)(i) The prime Contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business in the System for Award Management (SAM) if:
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the
subcontract.
(ii) The prime Contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business if:
(A) The subcontractor is not registered in SAM; and
(B) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
(d) The Offeror's subcontracting plan shall include the
following:
(1) Separate goals, expressed in terms of total dollars
subcontracted, and as a percentage of total planned subcontracting
dollars, for the use of small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business
[[Page 32917]]
concerns as subcontractors. For individual subcontracting plans, and
if required by the Contracting Officer, goals also be expressed in
terms of percentage of total contract dollars, in addition to the
goals expressed as a percentage of total subcontract dollars. The
Offeror shall include all sub-contracts that contribute to contract
performance, and may include a proportionate share of products and
services that are normally allocated as indirect costs. In
accordance with 43 U.S.C. 1626:
(i) Subcontracts awarded to an ANC or Indian tribe shall be
counted towards the subcontracting goals for small business and
small disadvantaged business (SDB) concerns, regardless of the size
or Small Business Administration certification status of the ANC or
Indian tribe.
(ii) Where one or more subcontractors are in the subcontract
tier between the Contractor and the ANC or Indian tribe, the ANC or
Indian tribe shall designate the appropriate Contractor(s) to count
the subcontract towards its small business and small disadvantaged
business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor
that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one
Contractor to count the subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of the total subcontract
award to each Contractor. The sum of the amounts designated to
various Contractors cannot exceed the total value of the
subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the prime Contractor, and
the subcontractors in between the prime Contractor and the ANC or
Indian tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the
ANC's or the Indian tribe's written designation within 30 days of
the subcontract award, the Contractor that awarded the subcontract
to the ANC or Indian tribe will be considered the designated
Contractor.
(2) A statement of--
(i) Total dollars planned to be subcontracted for an individual
contract plan; or the Offeror's total projected sales, expressed in
dollars, and the total value of projected subcontracts to support
the sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-
disabled veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes);
and
(vii) Total dollars planned to be subcontracted to women-owned
small business concerns.
(3) The NAICS code and corresponding size standard of each
subcontract that best describes the principal purpose, including the
types of supplies and services to be subcontracted, and an
identification of the types planned for subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the
subcontracting goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential
sources for solicitation purposes (e.g., existing company source
lists, the System for Award Management (SAM), veterans service
organizations, the National Minority Purchasing Council Vendor
Information Service, the Research and Information Division of the
Minority Business Development Agency in the Department of Commerce,
or small, HUBZone, small disadvantaged, and women-owned small
business trade associations). A firm may rely on the information
contained in SAM as an accurate representation of a concern's size
and ownership characteristics for the purposes of maintaining a
small, veteran-owned small, service-disabled veteran-owned small,
HUBZone small, small disadvantaged, and women-owned small business
source list. Use of SAM as its source list does not relieve a firm
of its responsibilities (e.g., outreach, assistance, counseling, or
publicizing subcontracting opportunities) in this clause.
(6) A statement as to whether or not the Offeror in included
indirect costs in establishing subcontracting goals, and a
description of the method used to determine the proportionate share
of indirect costs to be incurred with--
(i) Small business concerns (including ANC and Indian tribes);
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and
Indian tribes); and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the Offeror who will
administer the Offeror's subcontracting program, and a description
of the duties of the individual.
(8) A description of the efforts the Offeror will make to assure
that small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have
an equitable opportunity to compete for subcontracts.
(9) Assurances that the Offeror will include the clause of this
contract entitled ``Utilization of Small Business Concerns'' in all
subcontracts that offer further subcontracting opportunities, and
that the Offeror will require all subcontractors (except small
business concerns) that receive subcontracts in excess of $650,000
($1.5 million for construction of any public facility) with further
subcontracting possibilities to adopt a subcontracting plan that
complies with the requirements of this clause.
(10) Assurances that the Offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the Offeror with the
subcontracting plan;
(iii) Include subcontracting data for each order when reporting
subcontracting achievements for multiple-award contracts intended
for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l)
of this clause using the Electronic Subcontracting Reporting System
(eSRS) at https://www.esrs.gov. The reports shall provide information
on subcontract awards to small business concerns (including ANCs and
Indian tribes that are not small businesses), veteran-owned small
business concerns, service-disabled veteran-owned small business
concerns, HUBZone small business concerns, small disadvantaged
business concerns (including ANCs and Indian tribes that have not
been certified by SBA as small disadvantaged businesses), women-
owned small business concerns, and for NASA only, Historically Black
Colleges and Universities and Minority Institutions. Reporting shall
be in accordance with this clause, or as provided in agency
regulations;
(v) Ensure that its subcontractors with subcontracting plans
agree to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its DUNS number, and the
email address of the Offeror's official responsible for
acknowledging receipt of or rejecting the ISRs, to all first-tier
subcontractors with subcontracting plans so they can enter this
information into the eSRS when submitting their ISRs; and
(vii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the
email address of the subcontractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to its
subcontractors with subcontracting plans.
(11) A description of the types of records that will be
maintained concerning procedures that have been adopted to comply
with the requirements and goals in the plan, including establishing
source lists; and a description of the Offeror's efforts to locate
small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns and
award subcontracts to them. The records shall include at least the
following (on a plant-wide or company-wide basis, unless otherwise
indicated):
[[Page 32918]]
(i) Source lists (e.g., SAM), guides, and other data that
identify small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources
that are small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an
award of more than $150,000, indicating--
(A) Whether small business concerns were solicited and, if not,
why not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business
concerns were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and,
if not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited
and, if not, why not; and
(G) If applicable, the reason award was not made to a small
business concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, and women-owned small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the
program's requirements.
(vi) On a contract-by-contract basis, records to support award
data submitted by the Offeror to the Government, including the name,
address, and business size of each subcontractor. Contractors having
commercial plans need not comply with this requirement.
(12) Assurances that the Offeror will make a good faith effort
to acquire articles, equipment, supplies, services, or materials, or
obtain the performance of construction work from the small business
concerns that it used in preparing the bid or proposal, in the same
or greater scope, amount, and quality used in preparing and
submitting the bid or proposal. Responding to a request for a quote
does not constitute use in preparing a bid or proposal. The Offeror
used a small business concern in preparing the bid or proposal if--
(i) The Offeror identifies the small business concern as a
subcontractor in the bid or proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a
portion of the subcontract; or
(ii) The Offeror used the small business concern's pricing or
cost information or technical expertise in preparing the bid or
proposal, where there is written evidence of an intent or
understanding that the small business concern will be awarded a
subcontract for the related work if the Offeror is awarded the
contract.
(13) A requirement for the Contractor to provide the Contracting
Officer with a written explanation if the Contractor fails to
acquire articles, equipment, supplies, services or materials or
obtain the performance of construction work as described in (d)(12)
of this clause. This written explanation must be submitted to the
Contracting Officer within 30 days of contract completion.
(14) Assurances that the Contractor will not prohibit a
subcontractor from discussing with the Contracting Officer any
material matter pertaining to payment to or utilization of a
subcontractor.
(e) * * *
(4) Confirm that a subcontractor representing itself as a
HUBZone small business concern is certified by SBA as a HUBZone
small business concern in accordance with 52.219-8(d)(2).
* * * * *
(6) For all competitive subcontracts over the simplified
acquisition threshold in which a small business concern received a
small business preference, upon determination of the successful
subcontract Offeror, the Contractor must inform each unsuccessful
small business subcontract Offeror in writing of the name and
location of the apparent successful Offeror and if the successful
subcontract Offeror is a small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, or women-owned small
business concern, prior to award of the subcontract.
(f) A master subcontracting plan on a plant or division-wide
basis that contains all the elements required by paragraph (d) of
this clause, except goals, may be incorporated by reference as a
part of the subcontracting plan required of the Offeror by this
clause; provided--
(1) The master subcontracting plan has been approved,
(2) The Offeror ensures that the master subcontracting plan is
updated as necessary and provides copies of the approved master
plan, including evidence of its approval, to the Contracting
Officer, and
(3) Goals and any deviations from the master subcontracting plan
deemed necessary by the Contracting Officer to satisfy the
requirements of this contract are set forth in the individual
subcontracting plan.
* * * * *
(i) A contract may have no more than one subcontracting plan.
When a contract modification exceeds the subcontracting plan
threshold in 19.702(a), or an option is exercised, the goals of the
existing subcontracting plan shall be amended to reflect any new
subcontracting opportunities. When the goals in a subcontracting
plan are amended, these goal changes do not apply retroactively.
* * * * *
(k) The failure of the Contractor or subcontractor to comply in
good faith with--
(1) The clause of this contract entitled ``Utilization Of Small
Business Concerns''; or
(2) An approved plan required by this clause, shall be a
material breach of the contract and may be considered in any past
performance evaluation of the Contractor.
(l) The Contractor shall submit ISRs and SSRs using the web-
based eSRS at https://www.esrs.gov. Purchases from a corporation,
company, or subdivision that is an affiliate of the Contractor or
subcontractor are not included in these reports. Subcontract awards
by affiliates shall be treated as subcontract awards by the
Contractor. Subcontract award data reported by the Contractors and
subcontractors shall be limited to awards made to their immediate
next-tier subcontractors. Credit cannot be taken for awards made to
lower tier subcontractors, unless the Contractor or subcontractor
has been designated to receive a small business or small
disadvantaged business credit from an ANC or Indian tribe. Only
subcontracts involving performance in the United States or its
outlying areas should be included in these reports with the
exception of subcontracts under a contract awarded by the State
Department or any other agency that has statutory or regulatory
authority to require subcontracting plans for subcontracts performed
outside the United States and its outlying areas.
(1) ISR. This report is not required for commercial plans. The
report is required for each contract containing an individual
subcontract plan.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A
report is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each
reporting period, unless otherwise directed by the Contracting
Officer. Reports are required when due, regardless of whether there
has been any subcontracting activity since the inception of the
contract or the previous reporting period. When the Contracting
Officer rejects an ISR, the Contractor shall submit a corrected
report shall within 30 days of receiving the notice of ISR
rejection.
(ii)(A) When a subcontracting plan contains separate goals for
the basic contract and each option, as prescribed by 19.704(c), the
dollar goal inserted on this report shall be the sum of the base
period through the current option; for example, for a report
submitted after the second option is exercised, the dollar goal
would be the sum of the goals for the basic contract, the first
option, and the second option.
(B) If a subcontracting plan has been added to the contract
pursuant to 19.705-2(c) or 19.301-2(e), the Contractor's
achievements must be reported in the ISR on a cumulative basis from
the date of incorporation of the subcontracting plan into the
contract.
(iii) When a subcontracting plan includes indirect costs in the
goals, these costs must be included in this report.
(iv) The authority to acknowledge receipt or reject the ISR
resides--
(A) In the case of the prime Contractor, with the Contracting
Officer; and
[[Page 32919]]
(B) In the case of a subcontract with a subcontracting plan,
with the entity that awarded the subcontract.
(2) SSR. (i) Reports submitted under individual subcontracting
plans.
(A) This report encompasses all subcontracting under prime
contracts and subcontracts with an executive agency, regardless of
the dollar value of the subcontracts. This report also includes
indirect costs on a prorated basis when the indirect costs are
excluded from the subcontracting goals;
(B) The report may be submitted on a corporate, company or
subdivision (e.g. plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If the Contractor or a subcontractor is performing work for
more than one executive agency, a separate report shall be submitted
to each executive agency covering only that agency's contracts,
provided at least one of that agency's contracts is over $650,000
(over $1.5 million for construction of a public facility) and
contains a subcontracting plan. For DoD, a consolidated report shall
be submitted for all contracts awarded by military departments/
agencies and/or subcontracts awarded by DoD prime Contractors.
(D) The report shall be submitted annually by October 30 for the
twelve month period ending September 30. When a Contracting Officer
rejects an SSR, the Contractor shall submit a revised report within
30 days of receiving the notice of SSR rejection.
(F) The authority to acknowledge or reject SSRs in eSRS,
including SSRs submitted by subcontractors with subcontracting
plans, resides with the Government agency awarding the prime
contracts unless stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year and
all indirect costs.
(B)The report shall be submitted annually, within thirty days
after the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work
for more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial
plans resides with the Contracting Officer who approved the
commercial plan.
(End of clause)
* * * * *
Alternate I (Date). As prescribed in 19.708(b)(1)(i), substitute
the following paragraph (c)(1) for paragraph (c)(1) of the basic
clause:
(c)(1) The apparent low bidder, upon request by the Contracting
Officer, shall submit a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-
owned small business, service-disabled veteran-owned small business,
HUBZone small business, small disadvantaged business, and women-
owned small business concerns. If the bidder is submitting an
individual subcontracting plan, the plan must separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The plan shall be included
in and made a part of the resultant contract. The subcontracting
plan shall be submitted within the time specified by the Contracting
Officer. Failure to submit the subcontracting plan shall make the
bidder ineligible for the award of a contract.
Alternate II (Date). As prescribed in 19.708(b)(1)(ii),
substitute the following paragraph (c)(1) for paragraph (c)(1) of
the basic clause:
(c)(1) Proposals submitted in response to this solicitation
shall include a subcontracting plan that separately addresses
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns. If the Offeror is submitting an individual
subcontracting plan, the plan must separately address subcontracting
with small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns,
with a separate part for the basic contract and separate parts for
each option (if any). The plan shall be included in and made a part
of the resultant contract. The subcontracting plan shall be
negotiated within the time specified by the Contracting Officer.
Failure to submit and negotiate a subcontracting plan shall make the
Offeror ineligible for award of a contract.
Alternate III (Date). As prescribed in 19.708(b)(1)(iii),
substitute the following paragraphs (d)(10) and (l) for paragraphs
(d)(10) and (l) in the basic clause;
(d)(10) Assurances that the Offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the Offeror with the
subcontracting plan;
(iii) Submit Standard Form (SF) 294 Subcontracting Report for
Individual Contract in accordance with paragraph (l) of this clause.
Submit the Summary Subcontract Report (SSR), in accordance with
paragraph (l) of this clause using the Electronic Subcontracting
Reporting System (eSRS) at https://www.esrs.gov. The reports shall
provide information on subcontract awards to small business concerns
(including ANCs and Indian tribes that are not small businesses),
veteran-owned small business concerns, service-disabled veteran-
owned small business concerns, HUBZone small business concerns,
small disadvantaged business concerns (including ANCs and Indian
tribes that have not been certified by the Small Business
Administration as small disadvantaged businesses), women-owned small
business concerns, and for NASA only, Historically Black Colleges
and Universities and Minority Institutions. Reporting shall be in
accordance with this clause, or as provided in agency regulations;
and
(iv) Ensure that its subcontractors with subcontracting plans
agree to submit the SF 294 in accordance with paragraph (l) of this
clause. Ensure that its subcontractors with subcontracting plans
agree to submit the SSR in accordance with paragraph (l) of this
clause using the eSRS.
(l) The Contractor shall submit a SF 294. The Contractor shall
submit SSRs using the web-based eSRS at https://www.esrs.gov.
Purchases from a corporation, company, or subdivision that is an
affiliate of the Contractor or subcontractor are not included in
these reports. Subcontract awards by affiliates shall be treated as
subcontract awards by the prime Contractor. Subcontract award data
reported by Contractors and subcontractors shall be limited to
awards made to their immediate next-tier subcontractors. Credit
cannot be taken for awards made to lower tier subcontractors, unless
the Contractor or subcontractor has been designated to receive a
small business or small disadvantaged business credit from an ANC or
Indian tribe. Only subcontracts involving performance in the U.S. or
its outlying areas should be included in these reports with the
exception of subcontracts under a contract awarded by the State
Department or any other agency that has statutory or regulatory
authority to require subcontracting plans for subcontracts performed
outside the United States and its outlying areas.
(1) SF 294. This report is not required for commercial plans.
The report is required for each contract containing an individual
subcontract plan. For Contractors the report shall be submitted to
the Contracting Officer, or as specified elsewhere in this contract.
In the case of a subcontract with a subcontracting plan, the report
shall be submitted to the entity that awarded the subcontract.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A
report is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each
reporting period, unless otherwise directed by the Contracting
Officer. Reports are required when due, regardless of whether there
has been any subcontracting activity since the inception of the
contract or the previous reporting period. When a Contracting
Officer rejects a report, the Contractor shall submit a revised
report within 30 days of receiving the notice of report rejection.
(ii) When a subcontracting plan contains separate goals for the
basic contract and each option, as prescribed by 19.704(c), the
dollar goal inserted on this report shall be the sum of the base
period through the current option; for example, for a report
submitted after the second option is exercised, the dollar goal
would be the sum of the goals for the basic
[[Page 32920]]
contract, the first option, and the second option.
(iii) When a subcontracting plan includes indirect costs in the
goals, these costs must be included in this report.
(2) SSR. (i) Reports submitted under individual subcontracting
plans.
(A) This report encompasses all subcontracting under prime
contracts and subcontracts with an executive agency, regardless of
the dollar value of the subcontracts. This report also includes
indirect costs on a prorated basis when the indirect costs are
excluded from the subcontracting goals.
(B) The report may be submitted on a corporate, company or
subdivision (e.g. plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If the Contractor and/or subcontractor is performing work
for more than one executive agency, a separate report shall be
submitted to each executive agency covering only that agency's
contracts, provided at least one of that agency's contracts is over
$550,000 (over $1,000,000 for construction of a public facility) and
contains a subcontracting plan. For DoD, a consolidated report shall
be submitted for all contracts awarded by military departments/
agencies and/or subcontracts awarded by DoD prime Contractors.
(D) The report shall be submitted annually by October 30, for
the twelve month period ending September 30. When a Contracting
Officer rejects an SSR, the Contractor is required to submit a
revised SSR within 30 days of receiving the notice of report
rejection.
(E) Subcontract awards that are related to work for more than
one executive agency shall be appropriately allocated.
(F) The authority to acknowledge or reject SSRs in the eSRS,
including SSRs submitted by subcontractors with subcontracting
plans, resides with the Government agency awarding the prime
contracts unless stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year and
all indirect costs.
(B) The report shall be submitted annually, within thirty days
after the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work
for more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial
plans resides with the Contracting Officer who approved the
commercial plan.
Alternate IV (Date). As prescribed in 19.708(b)(1)(iv),
substitute the following paragraphs (c) and (d) for paragraphs (c)
and (d) of the basic clause:
(c)(1) The Contractor, upon request by the Contracting Officer,
shall submit and negotiate a subcontracting plan, where applicable,
that separately addresses subcontracting with small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns. If the Contractor is submitting
an individual subcontracting plan, the plan shall separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The subcontracting plan
shall be incorporated into the contract. The subcontracting plan
shall be negotiated within the time specified by the Contracting
Officer.
(2)(i) The prime Contractor may accept a subcontractor's
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business in the System for Award Management (SAM) if:
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and status
representations made in SAM (or any successor system) are current,
accurate and complete as of the date of the offer for the
subcontract.
(ii) The prime Contractor may accept a subcontractor's written
representations of its small business size and status as a small
disadvantaged business, veteran-owned small business, service-
disabled veteran-owned small business, or a woman-owned small
business if:
(A) The subcontractor is not registered in SAM; and
(B) The subcontractor represents that the size and status
representations provided with its offer are current, accurate and
complete as of the date of the offer for the subcontract.
(d) The Contractor's subcontracting plan shall include the
following:
(1) Separate goals, expressed in terms of total dollars
subcontracted and as a percentage of total planned subcontracting
dollars, for the use of small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns as subcontractors. For individual subcontracting
plans, and if required by the Contracting Officer, goals also be
expressed in terms of percentage of total contract dollars, in
addition to the goals expressed as a percentage of total subcontract
dollars. The Contractor shall include all subcontracts that
contribute to contract performance, and may include a proportionate
share of products and services that are normally allocated as
indirect costs. In accordance with 43 U.S.C. 1626--
(i) Subcontracts awarded to an ANC or Indian tribe shall be
counted towards the subcontracting goals for small business and
small disadvantaged business concerns, regardless of the size or
Small Business Administration certification status of the ANC or
Indian tribe; and
(ii) Where one or more subcontractors are in the subcontract
tier between the prime Contractor and the ANC or Indian tribe, the
ANC or Indian tribe shall designate the appropriate Contractor(s) to
count the subcontract towards its small business and small
disadvantaged business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor
that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one
Contractor to count the subcontract toward its goals, the ANC or
Indian tribe shall designate only a portion of the total subcontract
award to each Contractor. The sum of the amounts designated to
various Contractors cannot exceed the total value of the
subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the Contractor, and the
subcontractors in between the prime Contractor and the ANC or Indian
tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the
ANC's or the Indian tribe's written designation within 30 days of
the subcontract award, the Contractor that awarded the subcontract
to the ANC or Indian tribe will be considered the designated
Contractor.
(2) A statement of--
(i) Total dollars planned to be subcontracted for an individual
subcontracting plan; or the Contractor's total projected sales,
expressed in dollars, and the total value of projected subcontracts
to support the sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-
disabled veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes);
and
(vii) Total dollars planned to be subcontracted to women-owned
small business concerns.
(3) The NAICS code and corresponding size standard of each
subcontract that best describes the principal purpose, including the
types of supplies and services to be subcontracted, and an
identification of the types planned for subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the
subcontracting goals in paragraph (d)(1) of this clause.
[[Page 32921]]
(5) A description of the method used to identify potential
sources for solicitation purposes (e.g., existing company source
lists, SAM, veterans service organizations, the National Minority
Purchasing Council Vendor Information Service, the Research and
Information Division of the Minority Business Development Agency in
the Department of Commerce, or small, HUBZone, small disadvantaged,
and women-owned small business trade associations). The Contractor
may rely on the information contained in SAM as an accurate
representation of a concern's size and ownership characteristics for
the purposes of maintaining a small, veteran-owned small, service-
disabled veteran-owned small, HUBZone small, small disadvantaged,
and women-owned small business source list. Use of SAM as its source
list does not relieve a firm of its responsibilities (e.g.,
outreach, assistance, counseling, or publicizing subcontracting
opportunities) in this clause.
(6) A statement as to whether or not the Contractor included
indirect costs in establishing subcontracting goals, and a
description of the method used to determine the proportionate share
of indirect costs to be incurred with--
(i) Small business concerns (including ANC and Indian tribes);
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and
Indian tribes); and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the Contractor who
will administer the Contractor's subcontracting program, and a
description of the duties of the individual.
(8) A description of the efforts the Contractor will make to
assure that small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have
an equitable opportunity to compete for subcontracts.
(9) Assurances that the Contractor will include the clause of
this contract entitled ``Utilization of Small Business Concerns'' in
all subcontracts that offer further subcontracting opportunities,
and that the Contractor will require all subcontractors (except
small business concerns) that receive subcontracts in excess of
$650,000 ($1.5 million for construction of any public facility) with
further subcontracting possibilities to adopt a subcontracting plan
that complies with the requirements of this clause.
(10) Assurances that the Contractor will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the Contractor with the
subcontracting plan;
(iii) Include subcontracting data for each order when reporting
subcontracting achievements for a multiple-award contract intended
for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l)
of this clause using the Electronic Subcontracting Reporting System
(eSRS) at https://www.esrs.gov. The reports shall provide information
on subcontract awards to small business concerns (including ANCs and
Indian tribes that are not small businesses), veteran-owned small
business concerns, service-disabled veteran-owned small business
concerns, HUBZone small business concerns, small disadvantaged
business concerns (including ANCs and Indian tribes that have not
been certified by SBA as small disadvantaged businesses), women-
owned small business concerns, and for NASA only, Historically Black
Colleges and Universities and Minority Institutions. Reporting shall
be in accordance with this clause, or as provided in agency
regulations;
(v) Ensure that its subcontractors with subcontracting plans
agree to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its DUNS number, and the
email address of the Contractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to all first-tier
subcontractors with subcontracting plans so they can enter this
information into the eSRS when submitting their ISRs; and
(vii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the
email address of the subcontractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to its
subcontractors with subcontracting plans.
(11) A description of the types of records that will be
maintained concerning procedures that have been adopted to comply
with the requirements and goals in the plan, including establishing
source lists; and a description of the Contractor's efforts to
locate small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns and
award subcontracts to them. The records shall include at least the
following (on a plant-wide or company-wide basis, unless otherwise
indicated):
(i) Source lists (e.g., SAM), guides, and other data that
identify small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources
that are small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an
award of more than $150,000, indicating--
(A) Whether small business concerns were solicited and, if not,
why not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business
concerns were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and,
if not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited
and, if not, why not; and
(G) If applicable, the reason award was not made to a small
business concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, service-disabled veteran-owned, and women-owned
small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the
program's requirements.
(vi) On a contract-by-contract basis, records to support award
data submitted by the Contractor to the Government, including the
name, address, and business size of each subcontractor. Contractors
having commercial plans need not comply with this requirement.
(12) Assurances that the Contractor will make a good faith
effort to acquire articles, equipment, supplies, services, or
materials, or obtain the performance of construction work from the
small business concerns that it used in preparing or proposal for
the modification, in the same or greater scope, amount, and quality
used in preparing and submitting the modification proposal.
Responding to a request for a quote does not constitute use in
preparing a proposal. The Contractor used a small business concern
in preparing the proposal for a modification if--
(i) The Contractor identifies the small business concern as a
subcontractor in the proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a
portion of the subcontract; or
(ii) The Contractor used the small business concern's pricing or
cost information or technical expertise in preparing the proposal,
where there is written evidence of an intent or understanding that
the small business concern will be awarded a subcontract for the
related work when the modification is executed.
(13) A requirement for the Contractor to provide the Contracting
Officer with a written explanation if the Contractor fails to
acquire articles, equipment, supplies, services or materials or
obtain the performance of construction work as described in
paragraph (d)(12) of this clause. This written explanation must be
submitted to the Contracting Officer within 30 days of contract
completion.
(14) Assurances that the Contractor will not prohibit a
subcontractor from discussing with the contracting officer any
material
[[Page 32922]]
matter pertaining to the payment to or utilization of a
subcontractor.
[FR Doc. 2015-14055 Filed 6-9-15; 8:45 am]
BILLING CODE 6820-EP-P