DWGerard1102

A BPA is not a contract so a company that becomes a large business right after the BPA is established would not be a small business because each BPA award is an independent contract/purchase order. If the BPA is from a 5 year or less contract where the contractor is considered a small business, then the BPA awards would only be to a SB until that contract ended or the KO required the contractor to recertify its SB status. It can get complicated when KO's decide they are the SB goal keeper, instead of just letting the regulations do their job. For an ID/IQ contract, each delivery/task order award would be a SB award if the contractor was a small business at the time it submitted its proposal with pricing unless the business lost its small business status between that time and the award IF the KO required a recertification at the time of award. A business that met the small size standard at either the submission of proposal with cost or time of award (if the KO required recertification), would be a small business for the contract PoP up to 5 years even if it became a large business the day after award, including ID/IQ contract DO/TOs. That is UNLESS the DO/TO Contracting Officer decided to demand that the contractor recertify its SB status for the DO/TOs. Which would not make any sense unless the KO wanted to take that right away from the contract holder.

contractor2589, If the contractor is a small business when they submit their proposal for the ID/IQ MAS contract, and subsequently grows outside of the size standard for the contract, the contractor retains its small business standard for that contract for the life of the contract EXCEPT for long term (greater than 5 year), contracts per 13 CFR 121.404(a)(1)(I). Two exceptions for that statement is 1. If the Delivery Order/Task Order KO requests that all competitors recertify their small business status in the solicitation for the order, then competitors size is determined at the time they submit their quote/proposal for that order per 13 CFR 121.404(a)(2)(g); and 2. In long term contracts, all small business participants in the contractor pool must recertify their status no more than 120 days prior to the end of the 5th year and any subsequent options per 13 CFR 121.404(a)(3).

I was a KO who worked without a CS staff to support my procurement work when I worked for DHS. It worked well for my office until one KO started hiding work from the supervisory KO who monitored about 5 KOs in the organization. That KO was fired and none of his appeals were successful. On the other hand, I was a CS earlier in my career and I found a KO and a PM not doing their jobs ethically and I, as a CS, was completely ignored by the entire organization when I tried to do something about that. I ended up resigning from that position, leaving the Civil Service completely, and later the chickens came home to roost in that office and some people went to jail and others were forced to retire.

I made the jump to the private sector Government contractor from a Federal Civil Service position some time ago and it was a pretty even shift. The job position I applied for and was hired for (Senior Procurement Administrator), was worded much like a USAJOBS announcement for an 1102 and specifically called out for experience with the FAR, DFARS and other Government related areas. My job was to sit on the other side of the table from Federal contract negotiators and later the same individuals in foreign governments for contract negotiations. It was different enough to open my eyes to serious negotiation procedures compared to what I had previously experienced in the Federal Government. It was the same in that the FAR, DFARS and eventually foreign government procurement regulations were the basis of many negotiations.

It was changed after this GAO ruling: https://www.gao.gov/products/D09410#mt=e-report I lost all my CFR bookmarks when my computer was reformatted about a year ago so I can't find where in the CFR the changes were made. It was prior to 2016 as that language is being used in the FAR case that Pepe linked in his message.

I agree, but I have had many cases where the KO and the Contracting office have refused to abide by the 13 CFR regulation and only go by what the FAR says. They send in a KO protest to the SBA because the FAR says one thing, then the SBA responds with the CFR regulation and then the SBA has to argue with the KO/Contracting Office on which regulation is applicable. One case where this really needs to be resolved is in the FAR 19.000(b) language. The FAR language is interpreted to mean if a procurement has the slightest OCONUS touch (Product: US; Contracting Office: US; Delivery location: OCONUS), then the procurement is exempt from FAR 19. The CFR has for years indicated that SB regulations apply to US procurements when the preponderance of the process (as above), is domestic and FAR 19 is only exempted when the preponderance of the procurement is OCONUS (Product: OCONUS; Contacting Office: US or OCONUS; Delivery location: OCONUS).

In my experience, Contracting offices rarely if ever go beyond the FAR, and in the DoD offices they are specifically prohibited from using non-FAR regulations without specific approval from well above the KO level. It is frustrating to see CFR regulation changes that allow KO's to do something but the FAR lags years behind the change to the point where people forget that the change has even been contemplated.

Rae, I am a stranger, but I am also someone who has worked as a PCR and size specialist for the SBA for more than 5 years. The fact that company B receives 70 percent of its work may indicate that it is affiliated with company A but that would be viewed by the size specialist under 13 CFR§ 121.103(g). In this case I would look at the trend of other work and determine if the percentage going up, down or remaining stable. More than likely I would lean toward affiliation in this circumstance but could be dissuaded with more information. The mutually employed individual might or might not add to that, depending upon his or her role in the company. If the employee" was more than the usual employee for hire (described in the CFR: "officers, directors, principal stockholders, managing members, or key employees, and the one concern is furnishing or will furnish the new concern with contracts, financial or technical assistance, indemnification on bid or performance bonds, and/or other facilities, whether for a fee or otherwise "), and could control (positive or negative) both companies or could determine what business one or both companies could do, then that would be an added affiliation factor. The prospective Mentor Protégé agreement would not protect the companies from being found to be affiliated, the MP program only protects companies from affiliation from the MP itself or any joint venture established by the MP partners. A MP will not protect companies from affiliation outside of the MP relationship, which is described in this case. I cannot say for certain that your scenario WILL be considered affiliation, only a full size determination could do that. I have been responsible for about 6-10 determinations a year for the last 5 years so I have dealt with scenarios like this; and each case is unique so I would find an attorney who is familiar with the SBA regulations (or a friendly Procurement Technical Assistance Center), and have a complete analysis completed for your case.

Retreadfed, Well, the FAR is part of the CFR so it is the same body of regulations. Its just easier to say "the FAR and nothing but the FAR!" but if there is a law, statute or regulations that is newer, or better defines the intent of the source law, why should Contracting ignore that law, statute or regulation? Cite the regulation and move on smartly would make sense to me, but the current atmosphere in contracting is to wear FAR (and only FAR) blinders and ignore updated CFR regulations that would improve the contracting process. I am not talking about regulations from left field, what DOL or internal SBA regulations say that are not related to contracting for the Government, I am talking about the source regulations that the FAR is built upon. FAR 19 is full of links to SBA regulations that apply to every contracting organization except those exempt from the FAR. It's not that hard (I believe), for Contracting professionals to understand which regulations apply and which are inappropriate and only apply to the SBA itself.

Retread, the CFR has changed many of the regulations dealing with FAR 19 on topic such as the Non-Manufacturer Rule, the Simplified Acquisition threshold, etc. but many organizations will not allow KOs to use those changes until they are added to the FAR. An example: the CFR changed the NMR last year (FY 17) to eliminate the need for a waiver for any procurement valued at or below the SAP (13 CFR § 121.406(d) . The FAR currently states that a waiver is required for all procurements exceeding $25K (19.502-2(c)). Another change is for procurements that are not totally outside the continental US (OCONUS) but have one aspect that is OCONUS such as the delivery location or minor labor costs for set up or assembly. Even when that labor will be the responsibility of US contractors, some procurement offices refuse to deviate from FAR 19.000(b) (applies only in the United States or its outlying areas), despite the CFR change that removed the restriction for all but requirements that were performed totally OCONUS. Currently a requirement can be awarded in the US, with products manufactured in the US, from US contractors, delivered and set up by US contractors (sometimes using foreign subcontractors and sometimes using US prime contractor personnel), to be delivered to a foreign location and the KO will use FAR 19.000(b) to reject a SB set aside despite the ONLY foreign aspect will be the spot where the US product will be placed.

Add to that problem, most Contracting offices are told by their leadership and legal team that if its not in the FAR, then it doesn't apply to their jobs. Things like changes to the CFR, new laws enacted, etc. are not even looked at or if known, are prohibited per those offices. I deal with that all the time when KOs refuse to use the new CFR regulations because the FAR still has the old information.

This is not related to the legislation, but 17,000 FBI employees are moving to my neck of the woods, a LONG way from DC, over the next few years. If Congress doesn't do it, the simple cost of doing business in DC will eventually do it for them. It seems the old FBI building is practically falling down and would renovating it would cost more than moving 17,000 employees to the hinterlands.

To me, its a shortcut that is of dubious value. First, it relieves the CS/KO from anything close to market research. If market research is actually completed that finds a better way, better price, faster delivery, well, too bad. The agency's "strategic sourcing" contract vehicle trumps all of those. Second, it creates another barrier for small businesses. I have seen so many "strategic sourcing" contract vehicles that had one or no small businesses, and those vehicles have a life that may be exceed 5 years. A small business wants to fulfill your requirement? Too bad, you have to wait for another 4-7 years until the next solicitation is release and HOPE that the CS/KO does their market research and finds that small business and its cohort. Otherwise its another "no small businesses found that can meet this requirement" market research document once again. Remember, the CS/KO for that program may not have done any market research since that last re-compete, so those skills might just be a bit rusty. Strategic sourcing is an insult to the buying ability of the Government. It says the whole procurement team cannot find the best pricing in the market, is not consistent in sourcing those products and services, and they take too long. Whether or not those accusations are true is up for debate, but the system itself is not without blame; its hard to be fast and efficient when the procurement system has so many anchors attached to it.

I love the "she comes prepared with fact" part of the admiral's quote! I remember a negotiation I led in 2010 for a defense contractor with Australia's military where being prepared with the facts was absolutely the key. The Aussie's KO threatened to terminate their contract for an aircraft assembly that had not been built since the 1970s where the contractor had delivered a portion of the contract on time but later articles were delayed as the quality of the later parts was being questioned by the contractor QA team. The fly in her (the KO), ointment was that I had actually read the Australian version of the FAR, and I knew she could not terminate the contract as none of the precursors (show cause, etc.), had been issued and the Aussie PM had authorized the delays due to the added security of the QA checks (without the KO being aware of the authorization). The Aussie technical team bought me beers that night, they had never seen the Aussie KO so angry! She left the negotiation in seconds after it concluded and did not come back for the reception afterwards! Knowing the facts (and the associated procurement regulations), is vital for a negotiator. Oh, and the contractor delivered all of the articles in the agreed upon time plus Australia got a couple extra assemblies for free, so they were a happy customer! Being prepared with the facts is absolutely necessary for Contracting professionals, whether assigned as a negotiator or not!

Sorry this is so late, I have been away for cancer treatments and just returned to my office this week. 13 CFR § 121.404(d) states :"Size status for purposes of compliance with the nonmanufacturer rule set forth in § 121.406(b)(1) and the ostensible subcontractor rule set forth in § 121.103(h)(4) is determined as of the date of the final proposal revision for negotiated acquisitions and final bid for sealed bidding."

There is one exception to the rule that the initial proposal including price is when size is established. That exception is when a violation of the Ostensible Subcontractor rule is alleged in the size protest. In those cases the size is established at the time of the final proposal. The reason for that exception is that the contractor may have changed its proposed personnel from its initial proposal when submitting its final proposal which could affect whether or not it was a violation of the Ostensible Subcontractor Rule.

There are more than a dozen different forms that are the equivalent of the DD 2579, and I see a few of them every day in my role as a PCR. NASA has its Form 1787, the CDC has a computer based system without a form number associated with it, GSA uses its Form 2689, plus there are two different versions of the DD 2579 that are being used at this time. The purpose of those documents is to inform the Small Business Specialists at the various organizations what the acquisition plan is in a nutshell so that they can concur with or dispute the chosen plan of action. After that the forms are sent to the appropriate SBA PCR for concurrence. When I receive the forms, I check whether or not the plan is to set the procurement aside or not, along with a check of the selected NAICS code. I frequently send the documents back for incorrect NAICS codes, and I have non-concurred with the acquisition plan to not set the procurement aside on a number of occasions. After that, it becomes a negotiation, in which I show them how they can set the procurement aside, show how their market research was not complete, and how their organization is not meeting a specific goal. If I truly believe that the procurement should be set aside and the KO still refuses, I non-concur with the Small Business Coordination form. After that I can issue a SBA Form 70 which appeals the issue first the local HCA of the organization and if no agreement is reached, it ramps up to the senior HCA at the organization's HQ and the SBA Office of Government Contracting executives.

In my case it would have been simply to act on the information that was provided, do the right thing and inspire confidence that when malfeasance is discovered, leadership will do something about it rather than punish the one who found the evidence. I was not looking for a promotion, I simply respected the concept of integrity, honesty and ethical work, and when I found something that did not match those ideals to the point of criminal behavior, I reported it. The real failure was how my leadership handled it, I was ridiculed, told to shut up and go back to work and that my evidence was "weak" despite it being well documented with photos of non-existent lay down area, no work being conducted despite more than 50% of invoices approved by the PM, and evidence of earlier fraudulent work being signed off on.

Joel, Karma played out in the end for the KO, he died less than 6 months after retiring when he had a heart attack while gardening in his back yard. He wasn't a bad guy to work for but he was a coward when it came to standing up to the bully that was committing the crime. I think it weighed heavily on his heart and spirit what he had failed to handle properly, which is a heavy burden for sure.

Here is the case that I brought up to my leadership and was ignored so I resigned my the civil service position for a position in industry: https://www.justice.gov/archive/usao/ma/news/2010/July/THROWERverdictPR.html After I left the Army HQ CID folks found the CD with all the needed information for their case in a blank envelope stapled to the contract file. The person who took over my desk when I resigned told me that the KO pulled all the paper documents out of the file and shredded them. The amount that was defrauded by the perps was somewhere north of the amount in the story. I was told by the investigator who called me more than a year after I resigned the amount stolen was closer to $50M than it was to $4 mil but they had enough to put him away so they stopped investigating. The contract I was working on was $1.5M and the perp had more than 3 fraudulent contracts in place with similar award amounts at that time alone.

The SBA Mentor-Protégé program is not a joint venture so it does not have a minimum percentage of work for either party. The MP program is where a mentor trains the protégé in specific area and is supervised by the SBA on at least an annual basis. The SBA MP program allows (but does not mandate) JVs and eliminates the affiliation between the JV partners so long as the SBA MP program is in place and no other factors are present. The JVs formed must follow the JV rules and the overall project manager must come from the protégé firm. The MP regulations to not specify the percentages of work for the associated JV. With that, when the SBA reviews and approves the JV as part of the MP program, it expects to see the percentage of work done by the protégé company grow over the life of any contracts awarded to the JV to at least 51% if not more, depending upon what is agreed upon between the MP participants and the SBA.

The SBA can perform the evaluation and provide the KO with the information he or she needs to know in relation to the LOS regulation. The authority to enforce remains with the KO, but the information and evaluation process is difficult and time consuming for a KO (I know that some KOs would disagree, but I have been told it was too hard to do many times by KOs), so I as a PCR will perform the evaluation for the KO if there is a serious concern regarding a contractor's adherence with the LOS regulation

I have been advising KOs to refer any suspected violations of the Limitations on Subcontracting to the SBA Area Office for their action. If its a CFR issue, then its up to the SBA to resolve the problem. The LOS scenario is similar to the Ostensible Subcontractor evaluation and the SBA is authorized to obtain employment records and financial documents so it can perform the analysis with all the needed data, and the SBA office is set up for that work so it is not contrary to the other functions like a contracting office would face. I can say that because I work for the SBA now as a PCR (Procurement Center Representative), and I am one of the people who would receive those cases to work.

One thing that might impact this scenario is 13 CFR §125.6(1) where similarly situated entities (small businesses) can assume part of the 50% requirement. If the HR firm is a small business under the appropriate NAICS code, their employees are added to the prime employees towards the 50% requirement. The Ostensible Subcontractor rule does not apply to all of the employees, it only applies to managers, key personnel and contract executives responsible for primary and vital requirements of the contract.

No, I don't work for either of those two agencies.