of the date of its receipt of any such protest and will advise the questioned bidder or offeror that his small business status is under review.

(2) A contracting officer may, any time prior to award, question the small business status of the apparently successful bidder or offeror by sending a written notice to the SBA regional office of the region in which the bidder or offeror has his principal place of business. Such notice shall contain a statement of the basis for the question together with available supporting facts. SBA will advise the bidder or offeror in question that his small business status is under review.

(3) The SBA Regional Director will determine the small business status of the questioned bidder or offeror and notify the contracting officer and the bidder or offeror of his determination, and award may be made on the basis of that determination. Such decision is final unless appeal in accordance with subparagraph (4) of this paragraph (b) and the procuring activity is notified of the appeal prior to award. If an award was made prior to the time the contracting officer receives notice of the appeal, the contract shall be presumed to be valid and any determination rendered shall be considered in future procurements. If the SBA Regional Director's determination is not received by the contracting officer within 10 working days after SBA's receipt of the protest or notice questioning small business status, it shall be presumed that the questioned bidder or offeror is a small business concern. This presumption will not be used as a basis for making an award to the questioned bidder or offeror without first ascertaining when a size determination can be expected from SBA, and where practicable, waiting for such determination, unless further delay in award would be disadvantageous to the Government. Pending SBA determination or expiration of the 10-day period, whichever is earlier, procurement action shall be suspended provided that such 10-day suspension period shall not apply to any urgent procurement action which, as determined by the contracting officer, must, in order to protect the public interest, be awarded without delay and as to which he inserts in the contract file a statement signed by him justifying this determination.

(4) An appeal from a size determination made by an SBA Regional Director

may be taken before the close of business on the 5th working day after the receipt of such decision. Unless such written notice of appeal is received by the SBA Size Appeals Board, Washington, D.C., within this time and the contracting officer has been notified of such appeal prior to award, the appellant will be deemed to have waived its rights of appeal insofar as the pending procurement is concerned.

(5) The determination of the appropriate classification of a product establishing the small business definition to be used in a specific procurement shall be made by the contracting officer and his determination shall be final unless appealed in accordance with subparagraph (6) of this paragraph (b).

(6) An appeal from product classification determination establishing the size definition used in a specific procurement made by a contracting officer may be taken not less than 10 days before bid opening date or closing date for submission of proposals wherein the bid opening or closing date is more than 30 days after the issuance of the IFB or RFP, or not less than 5 working days before the bid opening date or closing date for submission of proposals in cases wherein the bid opening date or closing date for submission of proposals is 30 days or less after the issuance of an IFB or an RFP. Such appeals shall be directed to the SBA Size Appeals Board, Washington, D.C.

gram and small business matters. The small business specialist shall also perform such other functions as he is specifically directed to perform by this Subpart 18-1.7 or which the Procurement Officer may prescribe for the purpose of implementing the small business program, including the assignment of responsibility for the Labor Surplus Area Program deF scribed in Subpart 18-1.8 of this chapter. When the Director of a field installation considers that the volume of procurement or the functions relating to procurement at the installation does not warrant a full-time small business specialist, he may assign such duties to procurement personnel on a part-time basis.

§ 18-1.704-3 Small business specialists. The Small Business Specialist appointed pursuant to § 18-1.704-2, shall - perform the following duties, as deterEs mined appropriate to the installation by the Procurement Officer:

(a) He shall maintain a program de:signed to locate capable small business sources for current and future procurements, through SBA or other methods.

(b) He shall coordinate inquiries and requests for advice from small business concerns on procurement matters.

(c) Prior to issuance of solicitations or contract modification for additional supplies or services in excess of $2,500, he shall determine that small business concerns will receive adequate consideration including initiation of set-asides (§ 181.706). This determination may be made jointly with the contracting officer or may be in the form of a recommendation to him.

(d) He shall review procurement programs for possible breakout of items suitable for procurement from small business concerns.

(e) He shall advise small business concerns with respect to the financial assistance available under existing law and regulations and assist such concerns in applying for financial assistance. He shall also assure that requests by small business concerns for proper assistance are not treated as a handicap in securing -the award of contracts.

(f) He shall participate in determinations concerning responsibility of a prospective contractor (see § 18-1.904) whenever small business concerns are involved.

(g) He shall participate in the evaluation of a prime contractor's small busi

ness subcontracting program (see § 181.707-4).

(h) He shall assure that participation of small business concerns is accurately reported.

(i) He shall make available to SBA copies of solicitations when so requested.

(j) He shall act as liaison between the contracting officer and SBA Regional Offices and representatives in connection. with set-asides, certificates of competency and any other matters in which the Small Business Program may be involved. Procurements estimated to cost $100,000, or more, in which certificates of competency are requested, shall be reported to the Office of Procurement, Attention: Small Business Advisor. The report should contain a description of the requirement, a list of the bidders or proposers. and the contract prices specified in the bids or proposals as submitted and the reason for the proposed rejection of an otherwise acceptable small business bid or proposal. Pertinent dates such as the required date for the completion of the procurement, the date of the request for the certificate of competency, etc., should also be furnished.

(k) He shall, in cooperation with the contracting officer and technical personnel, seek and develop information on the technical competence of small business concerns for research and development contracts. He shall regularly bring to the attention of the contracting officers and technical personnel descriptive data, brochures, and other information as to small business concerns that are apparently competent to perform research and development work in fields in which NASA is interested.

§ 18-1.705 Cooperation with the Small Business Administration. General.

§ 18-1.705-1

All NASA procurement offices are responsible for consulting and cooperating with the SBA in carrying out the purposes of the Small Business Act.

§ 18-1.705-2 Small Business Administration representatives.

The SBA may assign one or more representatives on full or part-time basis to any NASA procurement office to act in its behalf in carrying out SBA responsibilities under the Small Business Act, as amended.

(a) The SBA has statutory authority to certify the competency of any small business concern as to capacity and credit. "Capacity" means the overall ability of a prospective small business contractor to meet quality, quantity, and time requirements of a proposed contract and includes ability to perform, organization, experience, technical knowledge, skills, "know-how," technical equipment, and facilities or the ability to obtain them. Contracting officers shall accept SBA certificates of competency as conclusive of a prospective contractor's capacity (see § 18-1.903-1(d)) and credit (see § 18-1.903-1(b)), unless the contracting officer has substantial doubts as to the firm's ability to perform, in which case he shall, prior to award, promptly refer the matter through normal channels to the Director of Procurement, including all supporting facts and an indication of the degree of urgency of the proposed award. In such cases, the SBA may be requested to consider the withdrawal of the certificate, and, in any event, the contracting officer will be informed by the Director of Procurement of the final decision.

(b) (1) If a bid or proposal of a small business concern is to be rejected solely because the contracting officer has found the concern to be nonresponsible as to capacity or credit, SBA shall be notified of the circumstances. If a partial setaside is involved and the bid of a small business concern on the unreserved portion is to be rejected for lack of capacity or credit and the same small business concern is entitled to consideration on the reserved portion of the set-aside if a certificate of competency is issued by the SBA, the entire quantity of the procurement (reserved and unreserved) for

which that small business concern may be entitled, if competent, shall be referred to SBA and the referral papers so noted, in which event SBA may certify the small business concern for the maximum quantity for which it is eligible under the procurement. The award shall be withheld until SBA action concerning issuance of a certificate of competency or until 15 working days after SBA is so notified, whichever is earlier, subject to the following:

(i) This procedure is not mandatory where the contracting officer certifies in writing that award must be made without delay and promptly advises the SBA representative thereof, and includes in the contract file a statement signed by him which justifies the certificate. A copy of the statement shall be furnished to the SBA representative.

(ii) This procedure does not apply to proposed awards of not more than $2,500.

(iii) This procedure is optional, within the discretion of the contracting officer, as to proposed awards of more than $2,500, but less than $10,000.

(iv) This procedure does not apply where the contracting officer has found a small business concern nonresponsible for a reason other than lack of capacity of credit. Thus, it does not apply where a concern does not satisfy the criteria of responsibility in § 18-1.903-1 (a), (f). (g), and (h). Where the contracting officer determines that a concern does not meet the requirements of § 18-1.903-11e as to a satisfactory record of performance, the procedure is mandatory only if the unsatisfactory record of performance was due solely to inadequate capacity of credit. However, if the contracting offcer has any doubt as to whether the unsatisfactory record of performance can reasonably be attributed solely to lack of capacity or credit, the matter shall be discussed with the local SBA representative. If the local SBA representative is of the opinion that the unsatisfactory record of performance is attributable solely to a lack of capacity or credit, and the contracting officer disagrees, the contracting officer shall forward the matter to the Director of Procurement for resolution and final decision. The contracting officer will be informed of the fina decision by the Director of Procuremen: To assist the SBA in determining the capacity and credit of small busines con cerns involved in a particular procurement, the procurement office shall make

available to the SBA all pertinent techE nical and financial information with respect to the small business concern involved, including but not limited to copies of the invitation for bids or request for proposals, drawings, specifications, preaward surveys, and abstracts of bids.

(c) In procurements where the highest competence obtainable or the best scientific approach is needed, such as in certain negotiated procurements of research and development, highly complex equipment, or personal or professional services, the certificate of competency procedure is not applicable to the selection of the source offering the Chighest competence obtainable or the best scientific approach. However, if a small business concern has been selected on the basis of the highest competence obtainable or best scientific approach and, prior to award, the contracting officer determines that the concern is not responsible because of lack of capacity or credit, the certificate of competency procedure in paragraph (b) of this section is applicable.

§ 18-1.705-5 Performance of contract by Small Business Administration.

In accordance with section 8a of the Small Business Act (15 U.S.C. 637(a)), in any case in which the Administrator, SBA. certifies to the Administrator, NASA, that the SBA is competent to perform any specific contract, the contracting officer is authorized, in his discretion, to award the contract to the SBA upon such terms and conditions, consistent with these regulations, as may be agreed upon between the SBA and the contracting officer.

§ 18-1.706-1 General.

(a) Subject to any applicable preference for labor surplus area set-asides and the following criteria, any individual procurement or class of procurements or an appropriate part thereof, shall be set aside for the exclusive participation of small business concerns when such action is determined by the Small Business Specialist and the contracting officer (upon the initiation of either) to be in the interest of maintaining or mobilizing the Nation's full productive capacity, or assuring that a fair proportion of Government procurement is placed with small business concerns. If the Small Business Specialist is not available, the

foregoing determination may be made by the contracting officer.

(b) The Small Business Specialist shall be afforded an opportunity to make recommendations that current and future procurements, or portions thereof, of selected items or services, or groups of like items or services, shall be set aside for exclusive small business participation. Such set-asides, when approved by the contracting officer, shall be known as class set-asides. Concurrence in a class set-aside shall not be dependent upon the existence of a current procurement if future procurements can be clearly foreseen. Class set-asides shall apply only to the installation making the set-aside determination, and shall not apply to an individual procurement for which small purchase procedures are to be used. A class set-aside agreement should specifically identify the items or services subject thereto, and provide for annual joint review by the Small Business Specialist and the contracting officer, to determine whether it should be withdrawn (see § 18-1.706-3). Any class of procurements proposed to be partially set aside shall specify that it does not apply to any individual procurement not severable into two or more economic production runs or reasonable lots. Records of individual procurements under each class set-aside shall be maintained by individual purchasing activities and shall include the solicitation number and date, item or service, estimated dollar amount of the procurement, and estimated dollar amount of the set-aside. Such record shall be made available to the Small Business Specialist.

§ 18-1.706-2 Review,

withdrawal,

or

modification of set-asides or set-aside proposals.

(a) Prior to issuing solicitations, each individual procurement governed by a class set-aside shall be carefully reviewed to ensure that any changes in the magnitude of anticipated requirements, specifications, delivery requirements, or competitive market conditions, since the initial approval of the class set-aside is not of such material nature as to result in the probable payment of an unreasonable price by the Government or in a change in small business capability. If, prior to award of a contract involving an individual or class set-aside, the contracting officer considers that procurement of the set-aside from a small business concern would be detrimental to the public in

terest (e.g., because of unreasonable price), he may request the withdrawal of the set-aside determination in writing addressed to the Procurement Officer of the installation with a copy to the Small Business Specialist stating the reasons for requesting the withdrawal. The Small Business Specialist will review the class set-aside and the procedure set forth in § 18-1.706-2(c) shall be followed. Similarly, a class set-aside may be modifled with the concurrence of the Small Business Specialist to withdraw one or more individual procurements.

(b) Upon a recommendation of the Small Business Specialist that an individual procurement or class of procurements, or portion thereof, be set aside, the contracting officer shall promptly either (1) concur in the recommendation, or (2) disapprove the recommendation, stating in writing his reasons for disapproval.

(c) If the contracting officer disagrees with the recommendation of the Small Business Specialist regarding a small business set-aside for an individual procurement or class of procurements or a portion thereof he shall forward the file to the Procurement Officer with a written statement setting forth his reasons for disagreement with a copy to the Small Business Specialist, or if the Small Business Specialist disagrees with the contracting officer regarding a withdrawal or modification of a set-aside determination, the Small Business Specialist may appeal in writing to the Procurement Officer at the installation within two days for decision. The decision by the Procurement Officer shall be final and a memorandum thereof placed in the contract file. In the event the decision by the Procurement Officer sustains the action of the contracting officer, the Procurement Officer shall forward, for information and management purposes, complete documentation of the case to the Director of Procurement, NASA Headquarters. Documentation of the case transmitted to the Director of Procurement shall include, as a minimum, a copy of the IFB or RFP, a list of those solicited, indicating if the invitee is small or large business by SBA definition, copies of the reasons, in writing, for or against set-aside or withdrawal or modification of a set-aside submitted by the Small Business Specialist and the contracting officer, a copy of the Procurement Officer's decision and a complete abstract of all bids or proposals received indicating

the successful bidder together with any other material considered by the Procurement Officer in arriving at his decision. The Procurement Officer's transmittal letter or memorandum will contain an affirmative statement that the enclosures constitute the complete file reviewed and considered by him in making his decision. § 18-1.706-3

Small business class setaside for construction, repair, and alteration work.

A class set-aside for small business is considered to have been made for each proposed procurement for construction, repair, and alteration work in an estimated amount ranging from $2,500 to $500,000. Accordingly, the contracting officer shall set aside for small business each such proposed procurement. If, in his judgment, the particular procurement falling within the dollar limits specified in this § 18-1.706-3 is unsuitable for a set-aside for exclusive small business participation, the procedure set forth in § 18-1.706-2 above shall apply. Proposed procurements for construction, repair, and alteration work in an estimated amount of more than $500,000 shall be processed on a case-by-case basis pursuant to § 18-1.706-1(a).

§ 18-1.706-4 Reporting for Department of Commerce procurement syn. opsis.

See § 18-1.1003-4.

§ 18-1.706-5 Total set-asides.

(a) Subject to any applicable preference for labor surplus area set-asides the entire amount of an individual procurement or class of procurements (including but not limited to contracts for maintenance, repair, and construction) shall be set aside for exclusive small business participation (see § 18-1.706-1) where there is a reasonable expectation that bids or proposals will be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices. Total setasides shall not be made unless such a reasonable expectation exists; however, see § 18-1.706-6 as to partial set-asides. While the past procurement history of the item or similar items is important, it is not the only controlling factor which should be considered in determining whether a reasonable expectation exists.

(b) Contracts for total small business set-asides may be entered into by conventional negotiation or by a special