Once 8(a) always 8(a) may not be the case if Panel 809’s recommendations are implemented. The panel seeks to impose hard deadlines on SBA for evaluating whether an 8(a) opportunity should stay in the program or be removed (shut-down concerns anyone?). If SBA does not or cannot comply, the contract may be removed without a like value being placed back in (read between the lines there). The report link is at the bottom of this page.
So what is the Section 809 Panel? Here is what the website says:
The Section 809 Panel was established by Congress in the FY 2016 NDAA to address issues with the way DoD buys what it needs to equip its warfighters. Since its inception, the panel has published an Interim Report and three-volume Final Report, containing a total of 98 recommendations aimed at changing the overall structure and operations of defense acquisition both strategically and tactically. Some changes hold potential for immediate effect, such as those that remove unnecessary layers of approval in the many steps contracting officers and program managers must take and remove unnecessary and redundant reporting requirements. Other changes require a large shift in how the system operates, such as buying readily available products and services in a manner similar to the private sector and managing capabilities from a portfolio, rather than program, perspective. Such an array of proposed improvements offers short-term gains that will help inspire enthusiasm, as well as a commitment to achieving the long-term systemic changes and supporting continuous improvement.
On page 283 of 586, the report proposes to amend the SBA’s CFR to make the SBA respond within 15 days. That section would read: (d) Within 15 working days of the request, the SBA will inform the awarding agency contracting officer of its decisions to concur or non-concur. If the SBA does not inform the awarding agency within that period, release from the 8(a) program shall be presumed and the awarding agency is authorized to proceed with soliciting and award outside the 8(a) program.
The full recommendation, beginning on page 214 reads as follows:
Subrecommendation 75d: Revise FAR 19.815 to allow for tacit release for non-8(a)
competition by the Small Business Administration (SBA) if concurrence or rejection has not been received by the Small Business Administration after 15 working days.
Background:
In the Small Business Act of July 30, 1953, Congress created the Small Business Administration (SBA), for which the function was to “aid, counsel, assist and protect, insofar as is possible, the interests of small business concerns.” The charter also stipulated that SBA would ensure small businesses a “fair proportion” of government contracts and sales of surplus property.63 Section 8 of the act allows the SBA to enter into contract with the government and subsequently “arrange for the performance of such procumbent contracts by negotiating or otherwise letting subcontracts to socially and economically
disadvantaged small business concerns.” This program is commonly referred to as the 8(a) program, deriving its name from the section of the act itself. The 8(a) program allows or, in some cases, requires the limitation of competition for certain contracts to businesses that participate in the 8(a) Business Development Program. The program helps the government achieve its socioeconomic goal to award at least 5 percent of federal contracting dollars to small disadvantaged businesses each year.
Discussion
The FAR implements section 8(a) of the Small Business Act in subpart 19.8. The FAR offers detail on the process of contracting with SBA, including how to select acquisitions and determine eligibility as a small business, the agency offering and SBA acceptance, and contract execution and administration processes. Unique to the 8(a) program and its requirements is the presumption of perpetual inclusion. The FAR indicates that “once a requirement has been accepted by SBA into the 8(a) program, any follow-on requirements shall remain in the 8(a) program unless there is a mandatory source… or SBA agrees to release the requirement from the 8(a) program.” The FAR briefly describes the process to release a procurement from the 8(a) program. Unlike the detailed process for determining whether to accept a requirement for the 8(a) program, which allows the SBA 10 working days to accept offers over the simplified acquisition threshold and 2 working days for those under the threshold, there is no prescribed timeframe when a request is made to release a requirement from the 8(a) program. This prevents contracting officers from soliciting performance outside the 8(a) program and causes unnecessary delays while waiting for the SBA’s response. One source indicated on several occasions his
office requested release of a requirement, or portion of a requirement, and waited between 3 and 90 days while the SBA processed the request for release. He said, “The lack of predictability of the SBA in the release process is very detrimental to acquisition planning and our ability to adhere to schedule constraints for critical programs within the DoD.”
Conclusions
SBA should be allowed 15 working days after receipt of the contracting officer’s written request, described at FAR 19.815(b), to respond with a determination whether to release a requirement from the 8(a) program. If SBA does not provide the requesting contracting officer with a determination within that period, release from the 8(a) program should be presumed and the contracting officer should be authorized to proceed with award outside the 8(a) program.
Here is a link to the volume 3: https://section809panel.org/wp-content/uploads/2019/01/Volume-3-Report-Part-2.pdf