Knwebs

Couple of interesting things and glad I brought up this topic. First, to me, the SBA allows some to count towards the 50% but not woman/8a/small biz in the current FAR. Seems like this would fall under prejudice. Secondly, Subpart 19.803 Selecting Acquisition, there's three types the CO/SBA can use to select an 8(a) firm. Without going into the three, one of them is the SBA choosing one OR MORE firms to do the work. See (B The SBA identifies a specific requirement for a particular 8(a) firm or firms and asks the agency contracting activity to offer the acquisition to the 8(a) Program for the firm(s). I made a couple phone calls to COs that I have really good relationships with (not for this customer) that is very knowledgable and knows contracting well. He stated that the SBA is the prime under the 8(a) program and the company identified on the contract is actually a sub (an 8(a) participant). Under these guidelines the SBA can choose to "sub" to more than one firm 8(a) participant which is covered in 19.803 above. So back to my orginial question does the limitations in subcontracting preclude two 8(a) firms doing an 8(a) sole source no matter what the percentages are of prime/sub under the current law(s)?? Local district SBA has said "no" pointing to 52.219-14.

Our company has completed or currently ongoing 41 prime contracts with the Federal Gov't. We're an 8(a) company and some of these have been sole sourced. On a sole source contract something interested happened today and I wanted the expertise of this group to see if this is something that happens on every contract... A sole source was awarded last year to us and we've known about the LOE that was coming our way. In the past the LOE was sent from the CO to us with the modifications/additional workload outlined in the PWS and we respond accordingly. Our SBA rep calls and says she has this LOE and wanted to ask some questions before she "approved" it. So I answered her questions (subcontractor percentages). There's one FTE out of 27 that's on subcontract with another firm because it's specialized expertise. Question(s)... Does the SBA approve all LOEs on sole sourced contracts and just this one time decided to pick up the phone and call? Does the SBA montior subcontractor percentages? I, and the COTR, thought that was the contracting shop's responsibility. She was a little pissed that the SBA was asking.

Don, any specifics you can give me or references on how to go about that? I've been google'ing it but can't find anything about the procedures of how to do that.

Thanks so much for the info we're a couple months away from steering the customer one way or another as we have vehicles out there accessible. Just wanted to check the opinions. I also read (sigh) the 2013 National Defense Authorization Act and I KNOW it's not in the FAR and how long it "could" take to become part of it BUT here's something interesting signed into law (Jan 2013) around this discussion. Would this affect the SBA black/white issue or no? Important on this question is in bold/underlined as it took the highlighted sections out when I pasted. Had to change ("capital B" to smaller (b in order to not get the emodicon removed.. PART IV--TRANSPARENCY IN SUBCONTRACTING SEC. 1651. LIMITATIONS ON SUBCONTRACTING. The Small Business Act (15 U.S.C. 631 et seq.) is amended by inserting before section 47 (as redesignated by section 1641 of this subtitle) the following: ‘SEC. 46. LIMITATIONS ON SUBCONTRACTING. ‘(a) In General- If awarded a contract under section 8(a), 8(m), 15(a), 31, or 36, a covered small business concern-- ‘(1) 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; ‘(2) 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; ‘(3) in the case of a contract described in paragraphs (1) and (2)-- 1]‘(A) shall determine for which category, services (as described in paragraph (1)) or supplies (as described in paragraph (2)), the greatest percentage of the contract is awarded; 1]‘(b)shall determine the amount awarded under the contract for that category of services or supplies; and 1]‘© may not expend on subcontractors, with respect to the amount determined under subparagraph (b, more than 50 percent of that amount; and ‘(4) in the case of a contract for supplies from a regular dealer in such supplies, shall supply the product of a domestic small business manufacturer or processor, unless a waiver of such requirement is granted-- 1]‘(A) by the Administrator, after reviewing a determination by the applicable contracting officer that no small business manufacturer or processor can reasonably be expected to offer a product meeting the specifications (including period for performance) required by the contract; or 1]‘(b by the Administrator for a product (or class of products), after determining that no small business manufacturer or processor is available to participate in the Federal procurement market. ‘(b 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 for purposes of determining whether the covered small business concern has violated a requirement established under subsection (a) or (d). ‘© Modifications of Percentages- The Administrator may change, by rule (after providing notice and an opportunity for public comment), a percentage specified in paragraphs (1) through (4) of subsection (a) if the Administrator determines that such change is necessary to reflect conventional industry practices among business concerns that are below the numerical size standard for businesses in that industry category. ‘(d) Other Contracts- ‘(1) IN GENERAL- With respect to a category of contracts to which a requirement under subsection (a) does not apply, the Administrator is authorized to establish, by rule (after providing notice and an opportunity for public comment), a requirement that a covered small business concern may not expend on subcontractors more than a specified percentage of the amount paid to the concern under a contract in that category. ‘(2) UNIFORMITY- A requirement established under paragraph (1) shall apply to all covered small business concerns. ‘(3) CONSTRUCTION PROJECTS- The Administrator shall establish, through public rulemaking, requirements similar to those specified in paragraph (1) to be applicable to contracts for general and specialty construction and to contracts for any other industry category not otherwise subject to the requirements of such paragraph. The percentage applicable to any such requirement shall be determined in accordance with paragraph (1). ‘(e) Definitions- In this section, the following definitions apply: ‘(1) COVERED SMALL BUSINESS CONCERN- The term ‘covered small business concern’ means a business concern that-- 1]‘(A) with respect to a contract awarded under section 8(a), is a small business concern eligible to receive contracts under that section; 1]‘(b with respect to a contract awarded under section 8(m)-- 4]‘(i) is a small business concern owned and controlled by women (as defined in that section); or 4]‘(ii) is a small business concern owned and controlled by women (as defined in that section) that is not less than 51 percent owned by 1 or more women who are economically disadvantaged (and such ownership is determined without regard to any community property law); 1]‘© with respect to a contract awarded under section 15(a), is a small business concern; 1]‘(D) with respect to a contract awarded under section 31, is a qualified HUBZone small business concern; or 1]‘(E) with respect to a contract awarded under section 36, is a small business concern owned and controlled by service-disabled veterans. ‘(2) SIMILARLY SITUATED ENTITY- The term ‘similarly situated entity’ means a subcontractor that-- 1]‘(A) if a subcontractor for a small business concern, is a small business concern; 1] ‘(b if a subcontractor for a small business concern eligible to receive contracts under section 8(a), is such a concern; 1]‘© if a subcontractor for a small business concern owned and controlled by women (as defined in section 8(m)), is such a concern; 1]‘(D) if a subcontractor for a small business concern owned and controlled by women (as defined in section 8(m)) that is not less than 51 percent owned by 1 or more women who are economically disadvantaged (and such ownership is determined without regard to any community property law), is such a concern; 1]‘(E) if a subcontractor for a qualified HUBZone small business concern, is such a concern; or 1]‘(F) if a subcontractor for a small business concern owned and controlled by service-disabled veterans, is such a concern.’.

Thanks Brian, this workload had been sole sourced three times to my company. The prime now and us have turned in a mentor-protege package back in early 2012 before this was awarded. We still to this date have gotten zero response back from the sba on the status of it. I know this doesn't help in the argument but the truth is this workload would still be mine as the prime but I saw it as an opportunity to get our protege involved in all contracting biz processes (contract mgmt, wawf, acct, clearance, HR, line of credit, benefits, etc) Guess trying to assist others comes w/ loosing half the workload to them.

I've been a reader of these forums for a long time and have gotten great information (and benefit) from this group. I know there's been many questions posted on here about this clause but wanted to explain my situation in hopes of getting some good feedback from the group. My question is if a sole source is issued to an 8a and they sub to another 8a does the prime have to do 50% of the work under this lawfully? This is a services contract. Here's the part the SBA is citing: 1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern. My issue is "concern" is undefined here. When two small companies respond to the RFP it's stated in the response that two 8a's are teamed together here. Would this make the concern meaning the team or is concern defined as ONLY the prime contractor? I've looked high and low across the net for a detimination of this and haven't found it yet.. If anyone knows the answer here please let me know. Our lawyer says we don't have any issues as this FAR is protecting the social-economic group of the set aside the SBA has sent this up to their headquarters for "determination". The district office of the SBA sent up to hdqrs for action/determination.