Small Business Set Asides and DBE Usage Reporting

[vpowell]

We are a General Contractor bidding a small business set aside (size standard $33 million). The soliciation manual includes "clauses included by text" such as 52.219-4001 (Subcontracting Plan for Small Business Concerns) which says "...large businesses must submit a subcontracting plan..."; 52.219-8 (Utilization of Small Business Concerns May 2004) which says "...Contractor further agrees to cooperate in any studies or surveys as may be conducted by the US SBA...to determine Contractors compliance..."; 52.219-9 (Small Business Subcontracting Plan April 2008-Alternate Oct 2001-Deviation) which says "This clause does not apply to small business concerns."; 52.219-16 (Liquidated Damages-Subcontracting Plan-Jan 1999).

We do lots of bid work for different agencies requiring DBE (of differing kinds) participation. These agencies thus far (State DOT, FAA funded jobs) require reporting with the bid submission regarding DBE participation, good faith efforts, etc.

The USACE bid package I am working now differs in that I do not see any requirement for reporting at bid time of DBE participation/good faith efforts. What I see in the way of verifying compliance is the "Subcontracting Plan", which appears to be required after bid but prior to award. Is that correct?

It also appears that the wording in the applicable clauses state that Subcontracting Plans do not have to be submitted by Small Business Concerns. Is that correct? If so, why would they be present in a bid solication package that is 100% small business set-aside?

What requirements are there for small business concerns bidding and being awarded prime contracts on small business set-aside projects with regard to reporting DBE (of all kinds) participation, good faith efforts, compliance with requirements to provide maximum opportunity for DBEs (of all kinds) to perform subcontract work? I cannot find anything on the Form 1442 that says anything about submitting a Subcontracting Plan nor can I find any bid forms that require reporting of this type of data at bid time or any time thereafter.

[napolik]

We do lots of bid work for different agencies requiring DBE (of differing kinds) participation. These agencies thus far (State DOT, FAA funded jobs) require reporting with the bid submission regarding DBE participation, good faith efforts, etc.

What is a DBE?

[formerfed]

What is a DBE?

Disadvantaged Business Enterprise. It's a term used mostly by Department of Transportation with flow-down to states and locals and with grants.

[joel hoffman]

quote (vpowell @ Jul 29 2010, 11:24 AM)

"What requirements are there for small business concerns bidding and being awarded prime contracts on small business set-aside projects with regard to reporting DBE (of all kinds) participation, good faith efforts, compliance with requirements to provide maximum opportunity for DBEs (of all kinds) to perform subcontract work? I cannot find anything on the Form 1442 that says anything about submitting a Subcontracting Plan nor can I find any bid forms that require reporting of this type of data at bid time or any time thereafter."

Vpowell,

I dont think that there is any requirement for small business primes to report concerning their compliance with Clause on Small or SDB type set-asides. 52.219-8, unless there are agency or local procedures.

You mentioned that this is a USACE solicitation. I dont know of any procedures within USACE, although there may be some. I would expect that the Government would have a right to obtain certain information from a contractor if it appears that the contractor might not be making a good faith effort to hire the various small and SDB type firms for subcontracted work.

It is interesting that DFARS 215.305(a)(2) requires that we evaluate the past performance of all offerors during a source selection, whether large or small business, in complying with the clause 52.219-8, Utilization of Small, Small Disadvantaged, and Women-Owned Business concerns. However, there doesnt seem to be any DOD reporting requirement during contract performance other than for Large Business primes. It has been a big problem for small business offerors to provide meaningful documentation of their compliance with 52.219-8. I've been told that most Corps contracting offices might not often comply with the DOD requirement to evaluate past performance of small business offerors compliance with 52.219-8, because the firms cant provide the necessary information to meaningfully evaluate.

Based upon my experience, most USACE ACO (field) construction offices are more likely to focus on the amount of work proposed to be or actually self-performed by the prime on set-aside contracts in accordance with Clause 52.219-14 Limitations on Subcontracting than on small business prime compliance with 52.219-8 unless a problem arises.