Size Recertification and OtherMultiple-Award Contract IssuesNITAAC Small Business Round TableTuesday, December 6th 2016Presented by Sam Le, Attorney Advisor, SBA OGC
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SBA’s Recertification Rule, 13 C.F.R.§121.404(g)
A business concern that was small at the time of its initial offer will be considered small for each order…Provided the NAICS codes matchUnless the contracting officer requests a new size certification in connection with a specific orderUnless required to recertify due to:Approved contract novationMerger, sale, or acquisition (not requiring novation)End of 5 years and every option thereafter
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NAICS code assignments for MAC orders, (g)(3)(iv)
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Size Recertification at the Order Level
A contracting officer may explicitly require concerns to recertify their size status in response to a solicitation for an orderSBA will determine size as of the date the concern submits its self-representation as part of its response to the solicitation for the order
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Size Recertification at the Order Level (cont.)
Example 1:Size Appeal ofMettersIndustries, SIZ-5456 (2013)“Please be advised that the quotation contents require you to provide the socioeconomic status for yourself and each subcontractor/team member utilized in this quotation. Your submission of this information serves as confirmation that the status shown is thesame as that identified in the applicable GSA schedule, subject to the [North American Industry Classification System (NAICS)] applicability defined in the BPA and thecurrent associated size standardsestablished by [SBA], as of the date of your task order quotation submission. Further, should you be selected as the successful offeror, your signature on the task order award serves as confirmation that thesocio-economic status provided in the quotation is the same as that identified in the applicable GSA schedule, subject to the NAICS applicability defined in the BPA and the current associated size standards established by [SBA],as of the date of your signature on the task order award.”
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Size Recertification at the Order Level (cont.)
Example 2:Size Appeal ofCodeLynx, LLC, SBA No. SIZ-5720 (2016)GSA Schedule RFQ:“Submission of written quotes must be in accordance with [Federal Acquisition Regulation (FAR)] 52.212-1, Instructions to Offerors, Commercial Items. Verbal quotes will not be accepted.”Amendment 1: “[A]llofferors shall certify in writing that their proposed solution falls within the scope of the referenced GSA Schedule contract(s).”
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Contract Novation Recertification, (g)(1)
Within 30 days of an approved contract novation, a contractor must recertify its small business size status to the procuring agency, or inform the procuring agency that it is other than smallIf the contractor is other than small, the agency can no longer count the options or orders issued pursuant to the contract, from that point forward, towards itssmall business goals
Merger, Sale, or Acquisition Recertification, (g)(2)
In the case of a merger, sale, or acquisition,where contract novation is not required, the contractor must,within 30 days of the transaction becoming final, recertify its small business size status to the procuring agency, or inform the procuring agency that it is other than smallIf OTS, agency can no longer count the options or orders issued pursuant to the contract towards goalsIf OTS, agency and contractor must immediately revise Federal contract databases to reflect new size status
Merger, Sale, or Acquisition Recertification (cont.)
Recertification is requiredWhen a concern, or an affiliate of the concern, acquires or is acquired by another concernFrom both the acquired concern and the acquiring concern if each has been awarded a contract as a small businessFrom a joint venture when an acquired concern, acquiring concern, or merged concern is a participant in a joint venture that has been awarded a contract or order as a small business.
Merger, Sale, or Acquisition Recertification (cont.)
If the merger, sale or acquisition occurs after offer but prior to award, the offeror must recertify its size to the contracting officer prior to award.
Long-Term Contract Recertification, (g)(3)
For the purposes of contracts (including Multiple Award Contracts) with durations of more than five years (including options):CO requests that a business concern recertify its sizeno more than 120 days prior to the end of the fifth year of the contract, andno more than 120 days prior to exercising any option thereafterRecertification request shall include size standard in effect at that time for contract’s initial NAICS code
Long-Term Contract Recertification (cont.)
If contractor certifies as OTS, agency can no longer count the options or orders issued pursuant to the contract towards its small business prime contracting goalsAgency and contractor must immediately revise all applicable Federal contract databases to reflect new size status
Long-Term Contract Recertification (cont.)
A concern that certified as OTS (either initially or prior to an option being exercised) may recertify itself as small for a subsequent option period if it meets the applicable size standardRecertification does not change terms and conditions. The following remain in effect:Limitations on subcontractingNon-manufacturer ruleAgency may require a subcontracting plan if now OTS.
Long-Term Contract Size Protests, 121.1004(a)(3)
Must be filed within 5 days after receipt of notice of awardFor an option period must filed within 5 days after receipt of notice of the size certification made by the protested concernAgency is not required to terminate a contract where a concern is found OTS pursuant to a size protest on an optionFor a size certification made in response to a request for recertification on an individual order, must be filed within 5 days after award notice
Long-Term Contract Recertification Example
Size Appeal of TISTA Science and Technology Corporation, SIZ-5529 (2014)Addxcertified as small on March 19, 2008 at first optionOption period ended April 16, 2013VA issued SDVOSB set-aside task order RFQ on December 12, 2012Addxsubmitted task order quotation on January 18, 2013No longer listed in SAM as a small business for applicable NAICS (but certified as SDVOSB)
Long-Term Contract Recertification Example (Cont.)
Question Presented:Does the deemed certification requirement of the Small Business Act (15 USC 632(w)) apply to individual task orders, where the CO does not request recertification at the task-order level?Held: Even if deemed certification applies to orders, it does not specifywhenrecertification is deemed to occur.Addxwas an eligible small business for this order.
Limitations on Subcontracting for Long-term contracts, 125.6(e)
Time periods for compliance on set-aside contract are:Base termEach subsequent option periodOn order set aside under F&O contract, use POP for each orderCO has discretion to require LOS and NMR compliance for each order under a set-aside contract
Sam LeAttorney [email protected]
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