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Why Timing is Everything in Small Business Recertification
Joseph Petrillo posted a blog entry in Patterns of Procurement
Congratulations: you’ve certified as small business for federal contracting purposes. In a typical contract setting, you keep your size status for the life of the contract. But in the instance of a merger or acquisition or if a contract lasts longer than 5 years, you must recertify to maintain your size status. For multiple-award contracts, the Contracting Officer is also given a good deal of latitude in terms of whether a small business must recertify for an individual order. In a recent case, Unissant, Inc. protested the size status of a competitor who’d recently earned a task order award. Read on to learn what small businesses contractors need to know about small business status in light of this case. Read the full article at Petrillo & Powell's Patterns of Procurement. -
In the case of Veterans Technology, LLC and MDW Associates, LLC (MDW), small business size status was endangered by a high level of subcontracting with a small business. The SBA’s Office of Hearings and Appeals (“OHA”) applied a rule of thumb to disqualify an awardee as a small business. The Court of Federal Claims (COFC) intervened and reversed the determination. This case illustrates two important issues: (1) Size determinations are subject to SBA rules, and sometimes principles not in those rules that are adopted by SBA’s OHA. (2) If an adverse size determination leads to loss of a contract award, the COFC can review the decision, and if warranted, overturn it. Read the full article at Petrillo & Powell's Patterns of Procurement.
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Hi All I was told my a upper management Contracting Officer that I must fill out and have the 2689 approved prior to synopsis. I have always used a Sources Sought and/or RFI to gauge interest, then synopsis per the requirements of the FAR. I have never considered that there was an order in which these needed to be completed. I can not find a reference to this in the FAR or GSAM. Is there a FAR regulation that covers this or is it just good contracting practice. I'm good either way, but am concerned I have been doing it incorrectly for some time.
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If you terminate a contract for Default and fail to notify the SBA offices in accordance with FAR 48 CFR 49.402-3 (e)(4), is this a big deal or not? Is it worse if this occurred 10 times over the course of two years? What are they supposed to do with this info, anyway?
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I'm interested in feedback... My Assertion No. 1: A size standard protest under FAR 19.302 is not a protest to the agency under FAR 33.103. It's not a protest to the agency because the agency cannot decide the protest. My Assertion No. 2: Accordingly, FAR 33.103( f ) (with its prohibition on awarding the not-yet-awarded contract or requirement to suspend performance of the already-awarded contract) does not apply to size standard protests. Rather, for size standard protests, FAR 19.302( h ) applies. This seems so simple and self-evident to me. But others tell me that FAR Subpart 33.1 applies simply because of the word "protest." Has anyone else faced this question?
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Our SBA just notified us that: "If the contract is modified and the dollar value goes up or down the subcontracting plan goals need to be renegotiate to reflect the dollar change and the percentages that may be effected do the change. This will also be reflected in the eSRS reports." This doesn't make sense to me. My interpretation of FAR 19.705-2 and 19.702 leads me to believe that it must meet a certain dollar threshold and subcontract opportunites must exist. That means we would be negotiating the SB goal dollars on a $3k mod. Background on our contract, $232M CPIF. Am I missing something or is the SBA right?
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I work for an 8(a) certified small business, primarily doing business with DoD, which is quickly growing and will soon exceed the size standards for remaining Small under the applicable NAICS codes in our industry. Many of our current contracts are 8(a) sole-source awards. The 8(a) sole source route will not be an option for us in the near future, however our existing customers are would still like us to have the opportunity to compete for the work on a full and open basis. I am researching the process for removing a contract from the 8(a) Business Development, and would appreciate any insights on the following: 1. I've reviewed 13 CFR 124.504, which provides a process for releasing a requirement from the 8(a) program; however, it seems to require that the incumbent nevertheless be eligible as a small business, and that the follow-on contract be procured as a small business set-aside, WOSB, HubZone, etc. but not Full and Open. 2. I came across a 2010 Court of Federal Claims case, K-LAK Corporation v. United States, that involved an Air Force contract which was an 8(a) sole-source. The Air Force declined to exercise the option on the 8(a) sole-source award, and subsequently procured the items through a Federal Supply Schedule (FSS). The SBA provided notice to the Air Force that the requirement could not be withdrawn from the 8(a) program, but Air Force did so anyway. The court held that the small business set-aside requirements under FAR part 19 do not apply to orders made through Federal Supply Schedules, and consequently, the Air Force was not required to comply with "the rule of Two or any of the other regulations applicable to small businesses that the plaintiff relies upon..." https://interact.gsa.gov/sites/default/files/cofc_-_ok_to_use_fss_when_procurement_is_currently_set_aside.pdf This case was recently (November 27, 2012) cited and reaffirmed in Kingdomware Technologies, Inc. v. United States, where the court stated that it is "well-settled that when placing an order against the FSS, the agency is exempt from the small business set-aside programs under FAR Part 19." http://www.uscfc.uscourts.gov/sites/default/files/FIRESTONE.KINGDOMWARE112712.pdf This is fascinating, as it seems to suggest that a contract may be removed freely from the 8(a) program as long as the Government procures the follow-on contract through an FSS. I'd like to make sure that I'm interpreting this correctly, and is there anything I'm missing here? 3. If a DOD agency wishes to procure a follow-on contract to an 8(a) sole-source through an FSS using Full and Open competition, is there a process in terms of notifying the SBA, completing a J&A or anything else? Are there any special forms that need to be completed? I appreciate your assistance very much! Thanks.
