Small Business Administration

Transcription

1 2014 SAME INDUSTRY DAY 8-ON-8 Most Recent Changes Small Business contracting rules June 26, 2014 Small Business Administration

2 Matthew Varilek, SBA Region VIII Administrator Area V, Government Contracting Division Colorado, Texas, New Mexico, Oklahoma, Louisiana, Arkansas Robert Taylor, AREA Director Tanika Pierce, Tanika Pierce PCR Southern Colorado (817) bb: (817) Jose L. L. Martinez, PCR Colorado District 8(a)/BD Program Edward Cadena, Colorado District Director Carolyn Terrell, Supervisor BOS - 8(a) Division ([email protected]) (303)

3 Procurement Center Representatives in other states

4 Procurement Center Representatives (PCR) Authority 13 CFR What are SBA's and the procuring agency's responsibilities when providing contracting assistance to small businesses? (A) SBA has PCRs who are generally located at Federal agencies and buying activities that have major contracting programs. At the SBA's discretion, PCRs will review all acquisitions that are not set-aside or reserved for small businesses above or below the Simplified Acquisition Threshold...

5 Full text of rules Code of Federal Regulations on small business programs Size regulations: 13 CFR 121 HUBZone regs: 13 CFR 126 Service-disabled Veteran: 13 CFR (a) and SDB regs: 13 CFR 124 WOSB/EDWOSB: 13 CFR 127 Certificate of Competency: 13 CFR125.5 SBA Office of Hearing and Appeals cases: GAO Decisions: Federal Acquisition Regulation plus other agency regulations:

6 Agenda Our lead attorney at SBA HQ on all the new rules The complex changes in the final rule require significant retraining of the government s acquisition workforce. I agree As Small Business wishing to Contract with the Federal Government --- Please read entire rules They will affect the way you do business Highlights!! of rules follow

7 Public Law Small Business Jobs Act of 2010 National Defense Appropriation Act of 2013 NEW CFRs most rules not yet in FAR FAR: Contracting With Women-Owned Small Business Concerns; ACTION: Final rule: Effective Date: June 24, to remove the dollar limitation for set-asides to economically disadvantaged women owned small business concerns and to women-owned small business concerns eligible under the Women-Owned Small Business Program.

8 Public Law Small Business Jobs Act of 2010 National Defense Appropriation Act of 2013 NEW CFRs most rules not yet in FAR 13 CFR Parts 121, 124, 125, et al. Acquisition Process: Task and Delivery Order Contracts, Bundling, Consolidation; Final Rule; effective on or before December 31, 2013

9 These regulations apply to all types of Federal Government contracts, including Multiple Award Contracts, and contracts for architectural and engineering services, research, development, test and evaluation. 13 CFR 125.2(a)

10 Total Set Aside Performance Requirements (limitations on subcontracting) apply to each period of the contract (i.e., the base period and then each subsequent contract period), CO may require LOS compliance on an order-byorder basis

11 Partial Set Aside Orders competed only among SBCs under set aside portion SBCs can also compete for orders under portion that is not set aside

12 Reserve Full and Open, but 2 or more awards to one type of SBC, set aside orders if rule of two is met 2 or more awards to different types of SBCs, set aside orders if rule of two is met 1 award to any type of SBC, direct awards to SBC

13 Set Aside Task and Delivery Orders LOS and NMR apply to order Order: Each order must have a NAICS code and size standard 8(a) SBA District Director may waive LOS for a period or order, provided firm will comply over the entire term of the contract

14 Public Law Small Business Jobs Act of 2010 National Defense Appropriation Act of 2013 NEW CFRs most rules not yet in FAR FAR: Prioritizing Sources of Supplies and Services for Use by the Government ; Final rule. Effective January 30, 2014

15 FAR Use of other sources. If an agency is unable to satisfy requirements for supplies and services from the mandatory sources listed in and 8.003, agencies are encouraged to consider satisfying requirements from or through the non-mandatory sources listed in paragraph (a) of this section (not listed in any order of priority) before considering the nonmandatory source listed in paragraph (b) of this section. When satisfying requirements from non-mandatory sources, see 7.105(b) and Part 19 regarding consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including 8(a) participants), and women-owned small business concerns. (a)(1) Supplies. Federal Supply Schedules, Governmentwide acquisition contracts, multiagency contracts, and any other procurement instruments intended for use by multiple agencies, including blanket purchase agreements (BPAs) under Federal Supply Schedule contracts (e.g., Federal Strategic Sourcing Initiative (FSSI) agreements accessible at (see also 5.601)). (2) Services. Agencies are encouraged to consider Federal Prison Industries, Inc., as well as the sources listed in paragraph (a)(1) of this section (see Subpart 8.6). (b) Commercial sources (including educational and non-profit institutions) in the open market.

16 Public Law Small Business Jobs Act of 2010 National Defense Appropriation Act of 2013 NEW CFRs most rules not yet in FAR 13 CFR Parts 121 and 125 Small Business Subcontracting; Final rule; effective August 15, FAR Final rule effective November 25, 2013

17 Prime must notify CO when it fails to pay sub within 90 days, where sub has completed performance and prime has been paid Prime must notify CO when prime used sub to prepare offer, but not in performance...

18 The contractor may not prohibit a subcontractor from discussing any material matter pertaining to payment or utilization with the contracting officer CFR 125.3(c)(1)(iii)

19 An offeror must represent to the contracting officer that it 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 scope, amount, and quality used in preparing and submitting the bid or proposal CFR 125.3(c)(3)

20 A prime contractor shall notify the contracting officer in writing if upon completion of the responsibilities of the small business subcontractor (i.e., the subcontractor is entitled to payment under the terms of the subcontract), the prime contractor pays a reduced price to a small business subcontractor for goods and services provided for the contract or the payment to a small business subcontractor is more than 90 days past due under the terms of the subcontract for goods and services provided for the contract and for which the Federal agency has paid the prime contractor. "Reduced price" means a price that is less than the price agreed upon in a written, binding contractual document. The prime contractor shall include the reason for the reduction in payment to or failure to pay a small business subcontractor in any written notice. 13 CFR 125.3(c)(5)

21 An offeror for a covered contract that intends to identify a small business concern as a potential subcontractor in a bid or proposal for the contract, or in a plan submitted pursuant to this subsection in connection with the contract, shall notify the small business concern prior to making such identification. 15 USC 637(d)(14)

22 78 Fed. Reg (June 28, 2013) Presumption of loss equal to the total amount expended on the contract where the firm willfully sought small or socioeconomic award by misrepresentation Deemed certifications by submission of offer Limitations on liability for unintentional errors, technical malfunctions Penalties for misrepresentation include debarment and suspension, civil penalties, criminal penalties

23 Public Law Small Business Jobs Act of 2010 National Defense Appropriation Act of 2013 NEW CFRs most rules not yet in FAR 13 CFR Parts 121, 124, 125, 126, and 127 Small Business Size and Status Integrity; Final rule; effective August 27, 2013

24 Compliance is the responsibility of the KO

25 Current Regulation: SDVO and HUBZone Set Asides allow similarly situated subcontractors to count towards the performance requirement

26 National Defense Authorization Act of 2013 when rules implemented will change to percent of amount paid (except construction TBD) In the case of a contract for services, may not expend on subcontractors more than 50 percent of the amount paid to the concern under the contract In the case of a contract for supplies (other than from a regular dealer in such supplies), may not expend on subcontractors more than 50 percent of the amount, less the cost of materials, paid to the concern under the contract Similarly Situated Entities - Contract amounts expended by a covered small business concern on a subcontractor that is a similarly situated entity shall not be considered subcontracted Sealift, Inc., B , Jan. 6, 2014 allows for similarly situated before regulation because it is law firms should clearly demonstrate how they will perform percentage

27 Questions? 8(a) Business Development Division Carolyn Terrell:

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29 Pecos Wilderness, Santa Fe National Forest at 12,000 ft. looking south towards Hermits Peak, New Mexico