Section 3-124-74 - Procedures and Clauses(a) In implementing the program and applying such procedures and criteria as the Council may direct, Chief Procurement Officers shall use solicitation provisions substantially as follows: (1) A Notice to Offerors shall be included in all solicitations set-aside for award to small businesses by the Chief Procurement Officer. NOTICE OF SMALL BUSINESS SET-ASIDE
(a) Definition. "Small business concern," as used in this clause, means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the size standards in this solicitation.(b) General. (1) Offers are solicited only from small business concerns. Offers received from concerns that are not small business concerns shall be rejected.(2) Any award resulting from this solicitation will be made only to a small business concern. (End of Solicitation Provision)
(2) The solicitation shall include the following provision informing all Offerors of the requirement for good faith representation of size status, the meaning of the representation, and the procurement officer's enforcement authority. MEANING OF REPRESENTATION BY OFFEROR & PROTEST AGAINST STATUS.
(a) To be eligible for award of this contract as a small business, Offeror must represent in good faith that it is a small business at the time of its written representation. The representation must reflect that Offeror meets the definition of a small business concern as stated in the solicitation.(b) The procurement officer shall accept an Offeror's representation that it is a small business unless another Offeror challenges Offeror's small business representation to the contracting officer through applicable protest procedures under HAR Chapter 126.(c) Upon receipt of a protest, the Chief Procurement Officer shall require the Offeror to provide proof of its status as an eligible small business Offeror.(d) If the Chief Procurement Officer determines that the Offeror has misrepresented its status as an eligible small business, the Chief Procurement Officer may disqualify the Offeror from the competition.(e) If the Chief Procurement Officer concludes the misrepresentation was not inadvertent and was intended to unfairly enable the Offeror to compete in a solicitation when it knew or should have known it was not eligible, the Chief Procurement Officer shall initiate debarment action under HAR Chapter 126.(f) Any time after contract award, the procurement officer may question the small business representation of any Offeror and require the Offeror to confirm its represented size status and eligibility for award. If the procurement officer determines the Offeror misrepresented its size status, the procurement officer may terminate the contract for cause and resolicit unless the Chief Procurement Officer determines in writing that contract termination would be detrimental to the interests of the state. The Chief Procurement Officer shall also determine whether to initiate debarment proceedings under HAR Chapter 126 based upon the Offeror's misrepresentation of size status and eligibility.(End of Solicitation Provision)
(3) The solicitation shall include a provision as follows that states the small business eligibility criteria and requiring each Offeror to state affirmatively that it is eligible for award under the applicable criteria. The provisions shall further require the Offeror to disclose its number of employees and gross revenues. SMALL BUSINESS PROGRAM REPRESENTATIONS
(a) The small business eligibility criteria for this is ____ [The procurement officer shall insert size standard, geographic location of headquarters or other criteria as published in Board directives].(b) Offeror hereby affirmatively represents that it is a qualified small business concern eligible for award of the contract under the eligibility criteria above.(c) Offeror further represents that Offeror's average number of employees for the past 12 months and Offeror's annual gross revenue for the preceding fiscal year was as reflected below (Offeror must check and initial one block in each column): | Number of Employees | Average Annual Gross Revenues |
| __ 15 or fewer | __ $500,000 or less |
| __ 16-50 | __ $500,001 -- 1 million |
| __ 51 - 100 | __ $1,000,001 -- $2 million |
| __ 101 - 250 | __ $2,000,001 -- $3.5 million |
| __ 251 - 500 | __ $3,500,001 -- $5 million |
| __ 501 - 750 | __ $5,000,001 -- $10 million |
| __ 751 -- 1,000 | __ $10,000,001 -- $17 million |
| __ Over 1,000 | __ Over $17 million |
(Signed by Offeror)
(End of Solicitation Provision)
(4) If the Council recommends and the Board establishes set-aside criteria for very small businesses of less than 15 employees, revenues of less than a specified amount, or a targeted geographic area, the solicitation shall include a provision that states the applicable small business eligibility criteria without further representation requirements. VERY SMALL BUSINESS SET-ASIDE
(a) Definition. Very Small Business Concern, as used in this clause, means a concern whose headquarters is located within the geographical area of __________[state the geographic region for the set-aside] which, together with its affiliates, has no more than 15 employees and has average annual revenues that do not exceed $ ________ [state applicable amount of revenues].(b) Eligibility. Offers or quotations under this acquisition are solicited from very small business concerns only. Offers that are from other than an eligible very small business concern shall not be considered and shall be rejected.(c) The Offeror affirmatively represents that it is an eligible very small business concern eligible for contract award under the criteria above. (Signed by Offeror)
(End of Solicitation Provision)
(5) If the Chief Procurement Officer determines the requirement solicited is not susceptible of performance by small businesses, the Chief Procurement Officer shall establish evaluation criteria to encourage subcontracting with small businesses. The Chief Procurement Officer shall also include clauses in the solicitation and contract to enforce the policy in favor of subcontracting to small businesses. UTILIZATION OF SMALL BUSINESS CONCERNS
(a) It is the policy of the State of Hawaii that small business concerns shall have the maximum practicable opportunity to participate in performing contracts let by any state agency, including contracts and subcontracts for subsystems, assemblies, components, and related services. It is further the policy of the State of Hawaii that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns(b) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may be conducted by agencies of the State of Hawaii as may be necessary to determine the extent of the Contractor's compliance with this clause.(c) Definitions. As used in this contract, a small business concern is a firm which _____________[state small business eligibility criteria as published in Board directives].(d) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as a small business concern.(End of clause)
SMALL BUSINESS SUBCONTRACTING PLAN (JUL 2005)
(a) Definitions. As used in this clause a subcontracting plan means a plan that covers the entire contract period (including option periods), applies specifically to this contract, and has goals that are based on the Offeror's planned subcontracting in support of the contract, except that indirect(b) costs incurred for common or joint purposes may be allocated on a prorated basis to the contract.(c) Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by the prime Contractor or its lower-tier subcontractors calling for supplies or services required for performance of the contract or subcontract.(d) The Offeror, upon request by the procurement officer, shall submit and negotiate a subcontracting plan, where applicable, that separately addresses subcontracting with small business concerns. The plan shall be included in and made a part of the resultant contract. The subcontracting plan shall be negotiated within the time specified by the procurement officer. Failure to submit and negotiate the subcontracting plan shall make the Offeror ineligible for award of a contract.(e) The Offeror's subcontracting plan shall include the following: (1) Goals, expressed in terms of percentages of total planned subcontracting dollars, for the use of small business concerns as subcontractors. The Offeror shall include all subcontracts that contribute to contract performance, and may include a proportionate share of products and services that are normally allocated as indirect costs.(2) A statement of total dollars planned to be subcontracted to small business concerns.(3) A description of the principal types of supplies and services to be subcontracted, and an identification of the types planned for subcontracting to small business concerns.(4) A description of the method used to develop the subcontracting goals in paragraph (d)(1) of this clause.(5) A description of the method used to identify potential sources for solicitation purposes (e.g., existing company source lists, the Department of Defense Central Contract Registration data base ("CCR") "Dynamic Small Business Search" function at http://www.ccr.gov/ [File Link Not Available], veterans service organizations, the National Minority Purchasing Council Vendor Information Service, the Research and Information Division of the Minority Business Development Agency in the Department of Commerce, HUBZone, small disadvantaged, and women-owned small business trade associations). A firm may rely on the information contained in the CCR "Dynamic Small Business Search" function as an accurate representation of a concern's size and ownership characteristics for the purposes of maintaining a small, veteran-owned small, service-disabled veteran-owned small, HUBZone small, small disadvantaged, and women-owned small business source list. Use of the CCR as its source list does not relieve a firm of its responsibilities (e.g., outreach, assistance, counseling, or publicizing subcontracting opportunities) in this clause.(6) The name of the individual employed by the Offeror who will administer the Offeror's subcontracting program, and a description of the duties of the individual.(7) A description of the efforts the Offeror will make to assure that small business concerns have an equitable opportunity to compete for subcontracts.(8) Assurances that the Offeror will require all subcontractors that receive subcontracts in excess of $500,000 ($1,000,000 for construction of any public work) to adopt a subcontracting plan that complies with the requirements of this clause.(9) Assurances that the Offeror will cooperate in any studies or surveys as may be required and provide requested information so that the Government can determine the extent of complianc e by the Offeror with the subcontracting plan.(End of clause)
(6) The Chief Procurement Officer may, in his or her discretion, include clauses in the solicitation and contract to create incentives or impose liquidated damages to enforce the policy in favor of subcontracting to small businesses. INCENTIVE SUBCONTRACTING PROGRAM
(a) Of the total dollars it plans to spend under subcontracts, the Contractor has committed itself in its subcontracting plan to try to award certain percentages to small business concerns.(b) If the Contractor exceeds its subcontracting goals for small business concerns in performing this contract, it will receive .......... [Chief Procurement Officer to insert the appropriate number between 0 and 5] percent of the dollars in excess of each goal in the plan not to exceed ....... (formula), unless the procurement officer determines that the excess was not due to the Contractor's efforts (e.g., a subcontractor cost overrun caused the actual subcontract amount to exceed that estimated in the subcontracting plan, or the award of subcontracts that had been planned but had not been disclosed in the subcontracting plan during contract negotiations). Determinations under this paragraph are unilateral decisions made solely at the discretion of the Government.(End of clause)
LIQUIDATED DAMAGES --SUBCONTRACTING PLAN
(a) "Failure to make a good faith effort to comply with the subcontracting plan," as used in this clause, means a willful or intentional failure to perform in accordance with the requirements of the subcontracting plan approved under the clause in this contract entitled "Small Business Subcontracting Plan," or willful or intentional action to frustrate the plan.(b) Performance shall be measured by applying the percentage goals to the total actual subcontracting dollars. If, at contract completion, the Contractor has failed to meet its subcontracting goals and the Contracting Officer decides in accordance with paragraph (c) of this clause that the Contractor failed to make a good faith effort to comply with its subcontracting plan, established in accordance with the clause in this contract entitled "Small Business Subcontracting Plan," the Contractor shall pay the Government liquidated damages in an amount equal to the actual dollar amount by which the Contractor failed to achieve its subcontract goal.(c) Before the procurement officer makes a final decision that the Contractor has failed to make such good faith effort, the procurement officer shall give the Contractor written notice specifying the failure and permitting the Contractor to demonstrate what good faith efforts have been made and to discuss the matter. Failure to respond to the notice may be taken as an admission that no valid explanation exists. If, after consideration of all the pertinent data, the procurement officer finds that the Contractor failed to make a good faith effort to comply with the subcontracting plan, the procurement officer shall issue a final decision to that effect and require that the Contractor pay the Government liquidated damages as provided in paragraph (b) of this clause.(d) The Contractor shall have the right of appeal, under the clause in this contract entitled Disputes, from any final decision of the procurement officer.(e) Liquidated damages shall be in addition to any other remedies that the Government may have including debarment.(End of clause)
(7) In all small business set-asides, the Chief Procurement Officer shall include a clause in the solicitation and contract to prevent the small business concern receiving award from passing the work to other contractors through subcontracts. LIMITATIONS ON SUBCONTRACTING
By submission of its offer, the Contractor agrees that in performance of the contract in the case of a contract for:
(1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.(2) Supplies (other than procurement from a non-manufacturer of such supplies). The concern shall perform work for at least 50 percent of the cost of manufacturing the supplies, not including the cost of materials.(3) General construct ion. The concern will perform at least 15 percent of the cost of the contract, not including the cost of materials, with its own employees.(4) Construction by special trade contractors. The concern will perform at least 25 percent of the cost of the contract, not including the cost of materials, with its own employees.(End of clause)
[Eff 1/6/07; comp 3/3/08; am and comp AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-902) (Imp: HRS § 103D-902)