(a) It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns. Such concerns must also have the maximum practicable opportunity to participate as subcontractors in the contracts awarded by any executive agency, consistent with efficient contract performance. The Small Business Administration (SBA) counsels and assists small business concerns and assists contracting personnel to ensure that a fair proportion of contracts for supplies and services is placed with small business.
(b) The Department of Commerce will determine on an annual basis, by North American Industry Classification System (NAICS) Industry Subsector, and region, if any, the authorized small disadvantaged business (SDB) procurement mechanisms and applicable factors (percentages). The Department of Commerce determination shall only affect solicitations that are issued on or after the effective date of the determination. The effective date of the Department of Commerce determination shall be no less that 60 days after its publication date. The Department of Commerce determination shall not affect ongoing acquisitions. The SDB procurement mechanisms are a price evaluation adjustment for SDB concerns (see Subpart 19.11), an evaluation factor or subfactor for participation of SDB concerns (see 19.1202), and monetary subcontracting incentive clauses for SDB concerns (see 19.1203). The Department of Commerce determination shall also include the applicable factors, by NAICS Industry Subsector, to be used in the price evaluation adjustment for SDB concerns (see 19.1104). The General services Administration shall post the Department of commerce determination at http://www.arnet.gov/References/sdbadjustments.htm . The authorized procurement mechanisms shall be applied consistently with the policies and procedures in this subpart. The agencies shall apply the procurement mechanisms determined by the Department of Commerce. The Department of Commerce, in making its determination, is not limited to the SDB procurement mechanisms identified in this section where the Department of Commerce has found substantial and persuasive evidence of-
(1) A persistent and significant underutilization of minority firms in a particular industry, attributable to past or present discrimination; and
(2) A demonstrated incapacity to alleviate the problem by using those mechanisms.
(c) Heads of contracting activities are responsible for effectively implementing the small business programs within their activities, including achieving program goals. They are to ensure that contracting and technical personnel maintain knowledge of small business program requirements and take all reasonable action to increase participation in their activities’ contracting processes by these businesses.
(d) The Small Business Act requires each agency with contracting authority to establish an Office of Small and Disadvantaged Business Utilization (see section (k) of the Small Business Act). For the Department of Defense, in accordance with the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163), the office of Small and Disadvantaged Business Utilization has been redesignated as the Office of Small Business Programs. Management of the office shall be the responsibility of an officer or employee of the agency who shall, in carrying out the purposes of the Act-
(1) Be known as the Director of Small and Disadvantaged Business Utilization, or for the Department of Defense, the Director of Small Business Programs;
(2) Be appointed by the agency head;
(3) Be responsible to and report directly to the agency head or the deputy to the agency head;
(4) Be responsible for the agency carrying out the functions and duties in sections 8, 15, and 31 of the Small Business Act;
(5) Work with the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)) to-
(i) Identify proposed solicitations that involve bundling;
(ii) Facilitate small business participation as contractors including small business contract teams, where appropriate; and
(iii) Facilitate small business participation as subcontractors and suppliers where participation by small business concerns as contractors is unlikely;
(6) Assist small business concerns in obtaining payments under their contracts, late payment, interest penalties, or information on contractual payment provisions;
(7) Have supervisory authority over agency personnel to the extent that their functions and duties relate to sections 8, 15, and 31 of the Small Business Act;
(8) Assign a small business technical advisor to each contracting activity within the agency to which the SBA has assigned a representative (see 19.402) -
(i) Who shall be a full-time employee of the contracting activity, well qualified, technically trained, and familiar with the supplies or services contracted for by the activity; and
(ii) Whose principal duty is to assist the SBA’s assigned representative in performing functions and duties relating to sections 8, 15 and 31 of the Small Business Act;
(9) Cooperate and consult on a regular basis with the SBA in carrying out the agency’s functions and duties in sections 8, 15, and 31 of the Small Business Act;
(10) Make recommendations in accordance with agency procedures as to whether a particular acquisition should be awarded under Subpart 19.5 as a small business set-aside, under Subpart 19.8 as a Section 8(a) award, or under Subpart 19.13 as a HUBZone set-aside, or under Subpart 19.14 as a service-disabled veteran-owned small business set-aside;
(11) Conduct annual reviews to assess the-
(i) Extent to which small businesses are receiving a fair share of Federal procurements, including contract opportunities under the programs administered under the Small Business Act;
(ii) Adequacy of contract bundling documentation and justifications; and
(iii) Actions taken to mitigate the effects of necessary and justified contract bundling on small businesses.
(12) Provide a copy of the assessment made under paragraph (d)(11) of this section to the Agency Head and SBA Administrator.
(e) Small Business Specialists must be appointed and act in accordance with agency regulations.
(f)
(1) Each agency shall designate, at levels it determines appropriate, personnel responsible for determining whether, in order to achieve the contracting agency’ goal for SDB concerns, the use of the SDB mechanism in Subpart 19.11 has resulted in an undue burden on non-SDB firms in one of the Industry Subsectors and regions identified by Department of Commerce following paragraph (b) of this section, or is otherwise inappropriate. Determinations under this subpart are for the purpose of determining future acquisitions and shall not affect ongoing acquisition. Requests for a determination, including supporting rationale, may be submitted to the agency designee. If the agency designee makes an affirmative determination that the SDB mechanism has an undue burden or is otherwise inappropriate, the determination shall be forwarded through agency channels to the OFPP, which shall review the determination in consultation with the Department of Commerce and the Small Business Administration. At a minimum, the following information should be included in any submittal:
(i) A determination of undue burden or other inappropriate effect, including proposed corrective action.
(ii) The Industry Subsector affected.
(iii) Supporting information to justify the determination, including, but not limited to, dollars and percentages of contracts awarded by the contracting activity under the affected Industry Subsector for the previous two fiscal years and current fiscal year to date for-
(A) Total awards;
(B) Total awards to SDB concerns;
(C) Awards to SDB concerns awarded contracts under the SDB price evaluation adjustment where the SDB concerns would not otherwise have been the successful offeror;
(D) Number of successful and unsuccessful SDB offerors; and
(E) Number of successful and unsuccessful non-SDB offerors.
(iv) A discussion of the pertinent findings, including any peculiarities related to the industry, regions or demographics.
(v) A discussion of other efforts the agency has undertaken to ensure equal opportunity for SDBs in contracting with the agency.
(2) After consultation with OFPP, or if the agency does not receive a response from OFPP within 90 days after notice is provided to OFPP, the contracting agency may limit the use of the SDB mechanism in Subpart 19.11 until the Department of Commerce determines the updated price evaluation adjustment, as required by this section. This limitation shall not apply to solicitations that already have been synopsized.
