B-133681, OCT. 2, 1957

B-133681: Oct 2, 1957

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WE HAVE REVIEWED THE DRAFT REGULATION AND MAKE THE FOLLOWING SUGGESTIONS: THE SECOND PARAGRAPH OF 7B (1) (C) ON PAGE 5 OF THE DRAFT REGULATION SHOULD BE CLARIFIED BY ADDING THE FOLLOWING CLAUSE AFTER THE WORD "NEGOTIATION.' . "BUT IN NO EVENT WILL AN AWARD UNDER SUCH ADVERTISED OR NEGOTIATED PROCUREMENT EXCEED THE MAXIMUM UNIT PRICE AT WHICH THE UNRESERVED PORTION WAS AWARDED.'. IS FOUND TO BE DEFICIENT IN CAPACITY OR CREDIT BY THE CONTRACTING PROCUREMENT AGENCY INVOLVED IN CONNECTION WITH A PROPOSED PROCUREMENT SUBSEQUENT TO AWARD OF ANY PRIOR SET-ASIDE CONTRACT.

B-133681, OCT. 2, 1957

THE THE HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

YOUR LETTER OF AUGUST 28, 1957, REQUESTED OUR REVIEW OF A PROPOSED GENERAL SERVICES ADMINISTRATION GENERAL REGULATION PRESCRIBING UNIFORM POLICIES AND PROCEDURES FOR MAKING SET-ASIDES TO SMALL BUSINESS CONCERNS THROUGH JOINT COOPERATIVE ACTIONS ENTERED INTO BY THE SMALL BUSINESS ADMINISTRATION AND THE CONTRACTING PROCUREMENT AGENCY INVOLVED.

WE HAVE REVIEWED THE DRAFT REGULATION AND MAKE THE FOLLOWING SUGGESTIONS:

THE SECOND PARAGRAPH OF 7B (1) (C) ON PAGE 5 OF THE DRAFT REGULATION SHOULD BE CLARIFIED BY ADDING THE FOLLOWING CLAUSE AFTER THE WORD "NEGOTIATION.'

,"BUT IN NO EVENT WILL AN AWARD UNDER SUCH ADVERTISED OR NEGOTIATED PROCUREMENT EXCEED THE MAXIMUM UNIT PRICE AT WHICH THE UNRESERVED PORTION WAS AWARDED.'

SUBPARAGRAPH 10A, PAGE 7, OF THE DRAFT REGULATION REQUIRES REVIEW PRIOR TO AWARD IN A CASE OF GRAVE DOUBT ON THE PART OF THE CONTRACTING OFFICER AS TO THE FIRM'S COMPETENCY OR ABILITY TO PERFORM. THE DEPARTMENT OF DEFENSE APPARENTLY ANTICIPATED THAT A MORE EFFICIENT PROCUREMENT ACTION WOULD RESULT FROM THE USE OF THE TERM "SUBSTANTIAL DOUBTS" AS USED IN ASPR 1-705-6 (A). WE BELIEVE THE GOVERNMENT'S INTEREST WOULD BE BETTER SERVED BY SUBSTITUTING THE WORD "REASONABLE" FOR "GRAVE.'

WE ALSO BELIEVE THAT MORE EFFECTIVE PROCUREMENT ACTION WOULD RESULT FOR INCLUSION OF THE FOLLOWING ON PAGE 8 AS AN ADDITIONAL PARAGRAPH UNDER SUBPARAGRAPH 10B.

"IN THE EVENT THAT A SMALL BUSINESS CONCERN, HAVING RECEIVED AN AWARD UNDER A CERTIFICATE OF COMPETENCY FROM SBA, IS FOUND TO BE DEFICIENT IN CAPACITY OR CREDIT BY THE CONTRACTING PROCUREMENT AGENCY INVOLVED IN CONNECTION WITH A PROPOSED PROCUREMENT SUBSEQUENT TO AWARD OF ANY PRIOR SET-ASIDE CONTRACT, SUCH AGENCY MAY REQUEST SBA TO REVIEW THE PROPOSED CONTRACTOR'S CAPACITY OR CREDIT. FOR THIS PURPOSE THE CONTRACTING PROCUREMENT AGENCY SHALL FURNISH SBA WITH ALL PERTINENT INFORMATION AND AN INDICATION AS TO THE DEGREE OF URGENCY.'