training on the revised partnership agreements

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U.S. Small Business Administration Your Small Business Resource

Training on theRevised Partnership Agreements

Delegation of SBA’s Contract Execution Authority to other

Federal Government AgenciesConducted by:

Francine Morris

The Washington Metropolitan Area District Office

Fiscal Year 2012

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8(a) BD Program Objective

To provide various forms of assistance to foster the business development and growth of small business concerns owned and controlled by socially and economically disadvantaged individuals to enable such concerns to compete in the mainstream of the American economy.

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Overview

The Small Business Act (the Act) (15 U.S.C. §§ 636 (j) and 637)a)) authorize the SBA to establish a business development program, known as the 8(a) Business Development Program. The specific sections of the Act are: 7(j) and 8(a), hence the 8(a) Business Development Program (8(a) BD program).

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Overview

SBA is authorized to enter into a variety of types of contracts with other Federal agencies and to subcontract the performance of these contracts to 8(a) Program participants.

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Overview

The Partnership Agreement represents the delegation of SBA’s contract execution authority to other federal agencies.

Currently, there are 40 executed Partnership Agreements in place.

The current Partnership Agreements are in effect until September 30, 2012.

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History

Without the Partnership Agreement, Federal agencies were required to involve SBA from start to finish in the 8(a) set-aside procurement process.

The procuring activity would enter into a contract with SBA and SBA would then subcontract the performance to qualified 8(a) firms, using a Tripartite Agreement.

This was time consuming and, at times, a burdensome process for both SBA and the procuring activity.

Although the tripartite relationship continues to exist, SBA’s contract execution authority is delegated to Federal agencies through the Partnership Agreement.

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Purpose

The purpose of the Partnership Agreement is to streamline the contract execution process between SBA and the participating Agencies so that 8(a) firms are afforded every possible opportunity to participate in Federal contracting.

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How The Process Works

The SBA and the partnering Federal agency share the responsibility of ensuring compliance with contracting functions as outlined in the Federal Acquisition Regulation (FAR), and the agencies’ internal regulations and Standard Operating Procedures (SOPs).

Although SBA is not signing the executed contract between the 8(a) firm and the procuring activity, SBA along with the Federal agency, is the prime contractor. SBA maintains responsibility for ensuring the integrity of the 8(a) BD Program.

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Objectives of the Partnership Agreement

To ensure that both SBA and the partner agency share the responsibilities of contract execution, oversight, monitoring and compliance with procurement laws and regulations governing 8(a) set-aside contracts.

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Objectives of the Partnership Agreement (cont.)

To reduce the time in which an agency’s contracting office sends an offering letter to SBA and the time that the agency receives SBA’s decision regarding the acquisition, to a maximum of five working days;

To delegate the authority (to the procuring agency) to sign contracts on SBA’s behalf;

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Objectives of the Partnership Agreement (cont.)

To establish uniform policies and procedures regarding the application of purchase orders utilizing 8(a) contracting procedures.

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Scope

The Partnership Agreement provides for the award of both contracts and purchase orders under the provisions of Section 8(a) of the Act as implemented by the FAR Subpart 19.8 and SBA’s 8(a) BD program regulations found at Title 13 of the Code of Federal Regulations (C.F.R.), Part 124.

The Partnership Agreement encompasses all competitive and non-competitive acquisitions offered by a partner Federal agency and accepted by SBA for the 8(a) BD program.

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Scope (cont.)

The delegation of authority to the partner agency permits re-delegation to all warranted contracting officers for that Federal agency to enter into 8(a) prime contracts. (See The Act, Section 8(a)(1)(A)); and,

Permits the warranted contracting officers to arrange for the performance of those contracts by eligible 8(a) participants.

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SBA’s Responsibilities

SBA remains the prime contractor on all 8(a) contracts and the 8(a) Participant is the subcontractor.

SBA shall review Partner Agency offering letters, issue acceptance or rejection letters, and make 8(a) eligibility determinations for award.

SBA shall review all proposed joint venture agreements involving 8(a) Participants before contract award.

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SBA’s Responsibilities (cont.)

Sole Source Procurements: Within five working days of receipt of an offering letter, SBA will

issue an acceptance letter or a rejection letter, unless the District Office requests and the procuring activity agrees to an extension of time.

If SBA does not respond within those five working days, the Agency may assume the offer has been accepted on the sixth working day.

Example: Your agency sends an offering letter on May 7, 2011 (a Monday) to SBA via facsimile. If SBA does not respond, then acceptance of the offer may be assumed on May 13, 2011, the sixth working day after the offering letter was provided and received by SBA.

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8(a) Sole Source Procurements (Cont.): Acceptance shall include a size verification

(where appropriate) and determinations with respect to all elements of eligibility (i.e., determinations of adverse impact, North American Industry Classification System (NAICS) code appropriateness and 8(a)program eligibility).

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8(a) Competitive Acquisitions:

SBA will issue an acceptance letter or rejection letter within five working days of receipt of an offering letter, unless the District Office requests and the procuring activity agrees to an extension of time.

Absent a notification of rejection, within five working days of receipt of the offer, acceptance may be assumed on the sixth working day. (See previous example)

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8(a) Competitive Acquisitions (cont.)

Within five working days upon receipt of a request from the contracting officer, SBA will issue an 8(a) eligibility determination for the apparent successful offeror, as prescribed by SBA’s regulations at

13 C.F.R. § 124.507(b).

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8(a) Competitive Acquisitions (cont.)

SBA will review and approve all proposed joint venture agreements involving 8(a) Participants before contract award.

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Acquisitions Valued at or Below the

Simplified Acquisition Threshold

No offering or acceptance letter is required for requirements processed under the threshold for simplified acquisitions valued at $150K.

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Simplified Acquisition Threshold (cont.)

SBA will review the program eligibility of the 8(a) Participant within two working days after a request from the contracting officer.

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Simplified Acquisition Threshold (cont.) Absent a notification that the selected 8(a) Participant is ineligible

for the award within two (2) working days, the procuring agency may assume the 8(a) Participant is eligible and proceed with award, as prescribed by SBA’s regulations at 13 C.F.R. 124.503(a)(4)(i).

The procuring agency must notify SBA (in writing) of these 8(a) awards under this authority. See 13 C.F.R. 124.503(a)(4)(ii).

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SBA will provide 8(a) Participants with contract negotiation assistance or direct them to appropriate resources (including SBA-sponsored training) where they can obtain management and technical assistance in contract negotiations when requested by either the 8(a) Participant or the partner agency’s contracting officer.

Shall retain its appeal authority in accordance with

FAR § 19.810.

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SBA has the right to perform on-site contract agency reviews to ensure compliance with contract requirements. Advanced notification will be provided.

May identify a requirement for an 8(a) Participant for a possible award. SBA will send Search Letters and capability statements to the appropriate procuring activities for the purpose of matching requirements consistent with the 8(a) Participant’s capabilities.

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Shall retain the responsibility for ensuring that 8(a) Participants comply with all applicable provisions relating to continuing eligibility for 8(a) BD Program participation.

Shall select an appropriate 8(a) Participant when the agency submits an open offering letter for a sole source procurement.

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Procuring Agency’s Responsibilities

The procuring agencies must inform all contracting officers and other warranted officials who award 8(a) contracts of their responsibilities concerning the Partnership Agreement.

The partner Federal agency is responsible for providing copies of all 8(a) contract awards, modifications, and options until such time as the executed Partnership Agreement expires or is terminated.

The partner Federal agency is required to adhere to all provisions of contractual assistance identified in 13 C.F.R..§§ 124.501 through 124.520; as well as the applicable provisions of the FAR Subpart 19.8.

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Procuring Agency’s Responsibilities (cont.)

Procuring Agencies determine which requirements are suitable for offering to the 8(a) BD program in accordance with FAR Part 19, and Subpart 19.8, and, work with the appropriate SBA district office, to identify 8(a) Participants capable of performing these requirements.

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Shall retain responsibility for compliance with the Limitations on Subcontracting requirements and all applicable provisions of FAR § 52.219-14.

Shall include provisions in all contract awards, modifications, options and purchase orders awarded or issued under the 8(a) BD Program that require 8(a) Participants to comply with the Limitations on Subcontracting provisions.

Shall provide a copy of any signed contract, as defined inFAR § 2.101, including modifications, options and purchase orders to the SBA servicing district office within 15 working days of the date of award.

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Shall request an eligibility determination from SBA’s district office responsible for servicing the selected 8(a) Participant when an 8(a) Participant has been identified on all acquisitions valued at or below the simplified acquisition threshold prior to issuance of the purchase order.

For sole source requirements exceeding the simplified acquisition threshold of $150K, the contracting officer or other warranted official shall submit the offering letter to the SBA district office responsible for servicing the selected 8(a) Participant, when an 8(a) Participant has been identified.

For sole source requirements (when the partner agency has not identified a specific 8(a) Participant for a requirement), the contracting officer or other warranted official shall submit an open offering letter to the SBA district office that services the geographical area where the partner Federal agency’s contracting activity is located.

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For competitive 8(a) requirements, the contracting officer, or other warranted official shall submit the offering letter to the SBA district office that services the geographical area where the partner Federal agency’s contracting activity is located.

The offering letters for construction work will be sent to the SBA district office located in the geographical area where the work will be performed, or, in the case of construction contracts to be performed overseas, the offering letter shall be submitted to SBA’s Headquarters.

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The contracting officer or other warranted official shall request an eligibility determination from SBA's district office responsible for servicing the selected 8(a) Participant, when an 8(a) Participant has been identified on all acquisitions valued at or below the simplified acquisition threshold prior to issuance of the purchase order;

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Each agency shall ensure that all contracts awarded pursuant to the Partnership Agreement contain provisions that:

1. require SBA’s approval of novation agreements submitted by the 8(a) Participant; and

2. require advance notice to SBA (as the prime contractor) prior to issuance of a final notice terminating the contract in whole or in part.

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Each agency shall ensure that all NAICS codes for all 8(a) contracts are consistent with the Statement of Work and are applied in accordance with FAR §19.102.

Each agency shall add language to every contract stating that SBA (as well as the cognizant Federal agency) is the prime contractor on the contract.

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Each agency shall ensure that any joint venture bid and/ or proposal submissions to solicitations that involve 8(a) Participants have SBA’s approval prior to contract award.

Each agency’s contracting officer is responsible for monitoring the 8(a) Participant’s compliance with the provisions of the Federal Acquisition Regulation 52.219-14 and the regulations as contained in 13 C.F.R. §§ 124.510 and 125.6 regarding “Limitations on Subcontracting.”

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Contract Execution

The agency’s contracting officer may make direct award of a contract to the 8(a) Participant, but only after the requirement has been offered to and accepted by SBA. Contract execution shall be on the appropriate form specified in FAR Part 19, Subpart 19.8.

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Conditions of the Partnership Agreement

Contracts that have not been offered to and accepted by SBA into the 8(a) BD program cannot be used towards an agency’s negotiated goals.

SBA reserves the option to suspend or rescind the authority of the Partnership Agreement with an agency for failure to submit copies of award and modification documents to SBA within 15 working days of award.

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Conditions of the Partnership Agreement (cont.)

SBA has the right to conduct periodic compliance reviews of the files of all contracts awarded pursuant to Section 8(a) authority and this Agreement. The delegated authority may be rescinded when audit findings indicate a pattern of failure to comply with 8(a) program regulations that govern award and administration of such contracts.

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8(a) Joint Venture Entities

The Dynamic Small Business Search (DSBS) System has been modified to identify 8(a) joint venture awards.

This effort will allow procuring agencies to receive 8(a) credit for awards made to 8(a) joint venture entities.

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TASK AND DELIVERY ORDER CONTRACTS

Agencies can receive credit for orders placed with 8(a) concerns under contracts not reserved for 8(a) as long as:

1.) the order is offered and accepted for 8(a) set- aside contracting and competition is amongst eligible 8(a) concerns ONLY;

2.) the Limitations on Subcontracting provisions apply to the individual order

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FOLLOW-ON CONTRACTS

Follow-on or repetitive 8(a) procurements will remain in the 8(a) program

8(a) procurements may be released under certain conditions (ref: 13 CFR124.504)

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Thresholds for 8(a) Sole Source and 8(a) Competitive Requirements

8(a) Competitive Threshold:

• Changed from $5.5M to $6.5M

8(a) Sole Source Threshold:

• Changed from $3.5M to $4.0M (refer to: 124.506)

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Alaska Native Corporations (ANCs)

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Alaska Native Corporations refers to 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.

Indian tribe refers to any Indian tribe, band, nation, or other organized group or community or Indians, including any ANC, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, or is recognized as such by the State in which the tribe, band, nation, group or community resides. (Reference 13 CFR 124.3)

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ANC Eligibility

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To qualify as an Alaska Native Corporation (ANC) owned and controlled concern for participation in the 8(a) BD program, the ANC must have been formed under the Alaska Native Claims Settlement Act under 13 CFR 124.109 (b)(2).

However, each ANC-owned concern seeking to be certified for 8(a) BD Program participation must comply with the provisions of 13 CFR 124.109 and 124.112 (to the extent that the criteria are not inconsistent with 109).

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Criteria Comparison

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Criteria ANC Tribal Individual

Social Dvd Presumed Presumed Must demonstrate

Economic Dvd Presumed Must demonstrate

Must demonstrate

Size Small based on primary NAICS

Small based on primary NAICS

Small based on primary NAICS

Ownership At least 51% At least 51% At least 51%

Control At least 51% Must demonstrate

Must demonstrate

Management No dvd. Requirement

Must demonstrate

Must demonstrate

2 yr./Potential for Success

Yes/Must demonstrate



Good Character Must demonstrate

Must demonstrate

Must demonstrate

Number of 8(a) Firms

Multiple w/conditions

Multiple w/conditions

Once

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Size Standards as it relates to ANCs

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An ANC-owned firm must be small based upon its primary NAICS code.

An ANC-owned Participant must certify to SBA that it is a small business pursuant to the provisions of 13 CFR 121 for the purpose of performing each individual contract which it is awarded.

When the size of a concern owned by an ANC is determined for either 8(a) BD program entry or contract award, the firm's size is determined independently without regard to its affiliation with the ANC, or any other business enterprise owned by the ANC, unless the Administrator of the SBA determines that one or more such ANC-owned business concerns have obtained, or are likely to obtain, a substantial unfair competitive advantage within an industry category.

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Affiliation

Business concerns owned and controlled by ANCs, or wholly-owned entities of ANCs, are not considered affiliates of such entities. (reference121.103(b)(2)(i))

Business concerns owned and controlled by ANCs, or wholly-owned entities of ANCs, are not considered to be affiliated with other concerns owned by these entities because of their common ownership or common management. In addition, affiliation will not be found based upon the performance of common administrative services, such as bookkeeping and payroll, so long as adequate payment is provided for those services. Affiliation may be found for other reasons. (reference 121.103(b)(2)(ii))

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SBA’s Point of Contact

Francine H. Morris

Business Development Specialist

8(a) BD Programs

U.S. Small Business Administration

740 15th Street, NW

Washington, DC 20005

(202) 272-0358

[email protected]

training on the revised partnership agreements

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