I have a multiple award IDIQ that was solicited as a total small business set aside. Award was made to three small businesses to make up the multiple award “pool”. One of the vendors was bought out by a large business making them now other than small. I have seen similar wifcon discussions but none seem to answer my issue (particularly a thread from 2018, which came extremely close). Can the now large business still compete on the IDIQ orders? I'm aware of 13 CFR 121.404 but maybe unclear on its application. Some particulars of note:
-10 year IDIQ; 3 year base period, 3 year option period, 4 year option period
-no order, to date, has included 52.219-13, Notice of Set-Aside of Orders
-the IDIQ does not stipulate that all orders will be set-aside for small businesses
-all orders are issued via 16.505 (without any similarities to 15)
-If I were to choose to include 52.219-13 on a order solicitation, would that inhibit me from soliciting without it included for future orders? I'd like to have the ability to choose to use it sometimes and choose to not use it in other circumstances with the intent of allowing the pool to remain with 3 businesses.
-If I were to choose to include that provision on an order solicitation, presumably the one now-large would at that point be required to rerepresent as a large...Would that force them to be a large for a future order even if i were to NOT include the 52.219-13 on a future order?
-FAR 19.301-2 states that it does not change the terms and conditions of the contract, but i'm also wondering how that fits in with the term of the IDIQ being a total set-aside for SBs at time of issuance of the IDIQ. I guess the question on this point is, if they rerepresent as a large at any point in a total small business set-aside IDIQ, do I have to remove them from the vehicle or can they stay on the IDIQ with the catch that the agency can no longer get SB credit? does 13 CFR 121.404(g)(4) allow me to keep them in the pool?
-If I receive a recertification from the now-large prior to issuance of an order, and I choose to not include the 52.219-13 clause, can they still compete for the order? ref 13 CFR 121.404(g)(2). Or does the recertification as other than small immediately preclude them from future orders? 13 CFR 121.404(g)(4) seems to allow me to pick and choose when to utilize the 52.219-13 and set some orders aside and let other orders be for any one in the pool (including a potentially now-large).