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Small Business and Subcontracting Plan


NOVA_CO2344

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Is there every a circumstance where a small business has to submit a subcontracting plan?  PIEE/CLS is asking questions in such a way that the requirement for a subcontracting plan (using dd254s, etc.)  clause is coming out even though the prime contractor is a small business. Where in the FAR does it require a small business to have a small business subcontracting plan? Am I missing something here?

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If DD-254s are required for security and classified information purposes will it be necessary for the a proposer and/or contractor to identify all subs in some kind of intended plan for subcontracting other than the one in 52.219-9? You didn’t say much about the intended contract. 

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On 8/14/2023 at 6:51 AM, NOVA_CO2344 said:

Is there every a circumstance where a small business has to submit a subcontracting plan?  PIEE/CLS is asking questions in such a way that the requirement for a subcontracting plan (using dd254s, etc.)  clause is coming out even though the prime contractor is a small business. Where in the FAR does it require a small business to have a small business subcontracting plan? Am I missing something here?

Perhaps you could ask for a clarification? I am not aware of any existing or planned FAR requirement that a small business prime contractor shall submit a small business subcontracting plan. However, it seems possible that if 52.219-9 is not required to be included in a prime contract (see 19.708), an Agency might come up with some general or security rationale requiring such a plan. I would think that the SBA should have some say so about that if it has security access.

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My experience with DD254 classified program contracts is they are treated by everyone on the program as if the classified security requirements override FAR requirements where compliance with the FAR requirements puts you in jeopardy of non-compliance with the security requirements. So, if FAR 52.219-9 was included in the prime contract, but the DD254 indicates you and/or your subcontractors are required to submit a small business subcontracting plan, compliance with the classified security requirement is what would be expected.

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Does the DD 254 specifically state “small business subcontracting plan” and refer to the clause or does it state “subcontracting plan”.

I’m no expert on it but it would seem to me that the government is gonna want to know who the planned subcontractors are for classified and security purposes.

That may or may not be the same as a “small business subcontracting plan” if the prime is a small business.

 

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Title 15, Chapter 15A, 637(d)( 8 ) states

"The provisions of paragraphs (4), (5), and (6) shall not apply to offerors or bidders who are small business concerns."  (4), (5), and (6) are the requirements of P. L 95-507's small business subcontracting program.

Let's see if this link works .  It works.  You just have to scroll down.

The purpose of a subcontracting plan is to get money into the pockets of small businesses.  Since a small business prime is small, why would anyone think that the small business needed a small business plan.  It's idiocy.

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1 hour ago, bob7947 said:

Title 15, Chapter 15A, 637(d)( 8 ) states

"The provisions of paragraphs (4), (5), and (6) shall not apply to offerors or bidders who are small business concerns."  (4), (5), and (6) are the requirements of P. L 95-507's small business subcontracting program.

Let's see if this link works .  It works.  You just have to scroll down.

The purpose of a subcontracting plan is to get money into the pockets of small businesses.  Since a small business prime is small, why would anyone think that the small business needed a small business plan.  It's idiocy.

The purpose of a “small business subcontracting plan” is to maximize subcontracting opportunities for various small businesses and “to get money into the pockets of small businesses.”

See 19.702 (a) (1) for one designation of the “subcontracting plan” as the “small business subcontracting plan.”

“a) (1) Except as stated in paragraph (b) of this section, section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans.

It is correct that small business subcontracting plans are not required of small business concerns per paragraph (b) (1).

Due to the nature of the contract (DD 254 is applicable), I'm asking the OP what type of subcontracting plan is being required.  Does it specifically refer to the contract clause 52.219-9 “Small business subcontracting plan”?

The OP hasn’t logged in to the Forum since the original post. In addition, it’s not clear to me whether the OP works for the government or a contractor. It appeared to me that he/she is a CO.

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11 hours ago, Neil Roberts said:

Perhaps you could ask for a clarification? I am not aware of any existing or planned FAR requirement that a small business prime contractor shall submit a small business subcontracting plan. However, it seems possible that if 52.219-9 is not required to be included in a prime contract (see 19.708), an Agency might come up with some general or security rationale requiring such a plan. I would think that the SBA should have some say so about that if it has security access.

Neil, I think that the OP is a CO or other government employee. 

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1 hour ago, bob7947 said:

Joel:

Why do you respond with a citation to a federal regulation?  I stated the Public Law and where it is in the U. S. Code?

 

Bob, I’m not disagreeing with you, although I added an additional purpose of a small business subcontracting plan.

I’m asking the original poster (who I think is writing the solicitation or acquisition) how the specific requirement for a “subcontracting plan” is described in the output of the contract writing system.

Everyone seems to agree that a small business subcontracting plan isn’t required of a small business concern- both by law and implementing Regulations.

I didn’t research the “DD 254” topic too deeply and am not familiar with what PIEE contracting software system says about it. NOVA_CO says that the system is “asking questions in such a way that a subcontracting plan clause is coming out…” 

Although NOVA did mention “clause”, the phrase “small business” wasn’t mentioned.

I wondered if some other subcontracting plan, which actually identifies proposed subcontractors on a classified project, as distinguished from a small business subcontracting plan, is “coming out” (the output of the program) as a requirement.

If it is referring to a small business subcontracting plan and that clause requirement, can Nova_CO edit it out or is the tail wagging the dog and it can’t be edited. I’m assuming from the OP that NOVA_CO has punched in a data element identifying the contract as reserved or intended for a small business prime.

A small business subcontracting plan generally isn’t limited to specific, known proposed subcontractors at the time of award. If the government wants to know who the actual subs are going to be for security purposes, a small business subcontracting plan wouldn’t necessarily address thst. 

Edited by joel hoffman
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I’m guessing that NOVA_CO is using the software writing system for this type of small acquisition with a given that the prime will be a small business concern for the first time?? Maybe I’m way off base? 
Edit:

Shoot, maybe Nova is just trying to assemble the clauses for a small vusiness acquisition .

Edited by joel hoffman
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Below is Rule 16.

16.  Abbreviations are to be kept to a minimum--preferably none at all--so that others can interpret a post and respond to it intelligently.

Quote

The Procurement Integrated Enterprise Environment (PIEE) is the primary enterprise procure-to-pay (P2P) application for the Department of Defense and its supporting agencies and is trusted by companies reporting over $7.1 billion in spending.

Quote

Clause Logic Service (CLS)

CLS is a web-based service that maintains a centralized repository of all FAR and DFARS provisions and clauses that is able to interface with any contract writing system (CWS) or be directly accessed by a user via PIEE. The use of CLS simplifies the contracting officer’s and contract specialist’s clause selection process through a series of questions and answers with hyperlinks to all the related prescriptions.

I've read the Original Post again and it may be that the Procurement Integrated Enterprise Environment (PIEE) and/or the Clause Logic System (CLS) might have a glitch in it.

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@joel hoffman @bob7947 @Neil Roberts @Don Mansfield @NOVA_CO2344

I wonder if NOVA is creating a solicitation for full and open competition and the reference to a small business subcontracting plan is dumped in as Don initially noted?  See FAR 19.708 (a)(2).  FAR Clause 52.219-9 in the solicitation, yet awarded to a small business, no plan after award.   Maybe that is why the OP has never returned?  

The DD 254 could be an unintentional red herring.  To my knowledge there is only one FAR clause/provision (inclusive of DFARS) that requires a DD 254, FAR 52.204-16.   I do not see mention of a subcontracting plan in the provision.

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At any rate, the clause at 52.219-9 is self-operating to not apply to small business concerns in paragraph (a). Doesn’t matter if it is in the resulting contract, unless a red herring to the contrary is also in the contract or whatever Nova_CO is preparing.

 

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On 8/14/2023 at 9:51 AM, NOVA_CO2344 said:

PIEE/CLS is asking questions in such a way that the requirement for a subcontracting plan (using dd254s, etc.)  clause is coming out even though the prime contractor is a small business.

FAR 19.708(b) states in relevant part:  Insert the clause at 52.219-9, Small Business Subcontracting Plan, in solicitations and contracts that offer subcontracting possibilities, are expected to exceed $750,000 ($1.5 million for construction of any public facility), and are required to include the clause at 52.219-8, Utilization of Small Business Concerns, unless the acquisition is set aside or is to be accomplished under the 8(a) program."  Note that the clause goes in most contracts with small businesses.  Although the clause goes into contracts with small businesses, per the express language of the clause, small businesses are not required to submit a small business subcontracting plan.  Thus, CLS can be correct in wanting to include the clause in a contract with a small business if the conditions in 19.708(b) are present.

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24 minutes ago, Retreadfed said:

Note that the clause goes in most contracts with small businesses. 

Are you sure? 

  "Insert the clause at 52.219-9, Small Business Subcontracting Plan, in solicitations and contracts....UNLESS the acquisition is set aside or is to be accomplished under the 8(a) program."  FAR clause edited and emphasized by me to reflect that for all the set-aside solicitations, unless the solicitation is amended to be a full and open, 52.219-9 would not/should not be  in the solicitation and therefore would not be in the resulting contract.   Without research it would be my professional opinion "most" contracts with small businesses are a result of set-asides.

 

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15 hours ago, joel hoffman said:

Neil, I think that the OP is a CO or other government employee. 

I was just trying to answer the question, "is there ever[y] (sic) a circumstance where a small business has to submit a subcontracting plan." It didn't matter to me whether it was government or contractor asking the question.

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2 hours ago, Retreadfed said:

Carl, reread 19.708.  The exception only applies to 8(a) set asides.  The clause goes in other set asides.  To make you feel better, the better language I should have used is the clause goes in set aside contracts with small businesses except 8(a) set asides.

So your view is the "or" as stated here "the acquisition is set aside OR is to be accomplished under the 8(a) program." (my emphasis added) means only 8(a)?  I am quite honestly surprised!

I encourage you to read FAR subpart 6.203 and 6.204 along with 19.5 to understand that the 8(a) Program is what I will call an offering program that is separate and distinct from "set aside".

I suggest you reread 19.708, please!

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3 hours ago, Retreadfed said:

Carl, reread 19.708.  The exception only applies to 8(a) set asides.  The clause goes in other set asides.  To make you feel better, the better language I should have used is the clause goes in set aside contracts with small businesses except 8(a) set asides..

I'm with Carl on this. That interpretation makes no sense. Why would you include a clause that expressly states it does not apply to small businesses when you are only soliciting responses from small businesses?

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18 hours ago, C Culham said:

So your view is the "or" as stated here "the acquisition is set aside OR is to be accomplished under the 8(a) program." (my emphasis added) means only 8(a)?  I am quite honestly surprised!

You are correct, I read the section too fast.  My bad.  However, it is still possible for the clause to be included in a contract awarded to a small business if the contract is not a set aside or an 8(a).  In this case, although the clause is in the contract, in accordance with the specific terms of the clause, it is ineffective for that contract.  Therefore, unless there is another clause in the contract requiring a small business subcontracting plan, the small business would not be required to submit a plan although the clause is in the contract.

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16 minutes ago, Retreadfed said:

However, it is still possible

Thank you and agree. 

As I followed and thought about it I took a look at the FAR and DFARS Smart Matrix.   No help but then I thought why do not each have a check box for set aside or not.  I would have to do extensive research to figure out if this would be a great add to the matrix or not...........

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32 minutes ago, Retreadfed said:

You are correct, I read the section too fast.  My bad.  However, it is still possible for the clause to be included in a contract awarded to a small business if the contract is not a set aside or an 8(a).  In this case, although the clause is in the contract, in accordance with the specific terms of the clause, it is ineffective for that contract.  Therefore, unless there is another clause in the contract requiring a small business subcontracting plan, the small business would not be required to submit a plan although the clause is in the contract.

As in unrestricted solicitation. The clause is included but self operates to not apply to a small business concern.

In my opinion the original post is cryptic and obscure, perhaps due the the apparent nature of the project (DD-254).

Not clear what activity NOVA_CO was referring to, at what point in the acquisition (pre-solicitation, post selection or post award), if a contractor has been selected or not,  etc. 

NOVA_CO might just be selecting clauses…or just asking a simple question.

That certainly has spawned a great deal of discussion, speculation, and time spent researching and posting by several people. SHEESH…

The actual question was answered early on. 

NOVA_CO hasn’t logged in to the Forum since posting the original question 

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