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FAR 19.702(a) says "(a) Except as stated in paragraph (b)of this section, Section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans: (1) In negotiated acquisitions, each solicitation of offers to perform a contract or contract modification, that individually is expected to exceed $650,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award. 15USC637(d)(4) states "(b)Before the award of any contract to be let, or any amendment or modification to any contract let, by any Federal agency which— (i) is to be awarded, or was let, pursuant to the negotiated method of procurement, (ii) is required to include the clause stated in paragraph (3), (iii) may exceed $1,000,000 in the case of a contract for the construction of any public facility, or $500,000 [NOTE: FDS does not have latest threshold version] in the case of all other contracts, and (iv) which offers subcontracting possibilities, the apparent successful offeror shall negotiate with the procurement authority a subcontracting plan which incorporates the information prescribed in paragraph (6). The subcontractingplan shall be included in and made a material part of the contract." In the case of a representation of a firm from small to large/"other than small" when exercising an option for a GSA schedule contract exceeding $650K in value, it would seem clear, at least to me, that feds would be responsible for requiring a subk plan in order to execute the modification. However, this does not appear to be the case according to GSA's policy office and the FPDS FAQ and answer below: "If I have a rerepresentation that means I should ask the vendor to submit a new subcontracting plan and should be able to change my answer to subcontracting plan in FPDS correct?No. The terms and conditions of the contract have not changed as a result of the rerepresentation." I'm not surprised that FPDS mirrors GSA policy since GSA administers the FPDS website. But, in my opinion, GSA's policy is contrary to FAR and the statutory requirements. Any thoughts? [Note: The contracts do include the FAR 52.219-8 clause, are negotiated, and are to be performed in U.S.]
FAR 19.301-2(d) prohibits agencies from taking small business credit on a contract once a contractor rerepresents itself as small. However, there doesn’t appear to be a solid linkage between the taking “credit” and the “eligibility” criteria for set-aside procurements. FAR 52.219-1 refers back to 13 CFR Part 121, which doesn’t seem to address a scenario where an offeror was awarded a set-aside IDIQ contract, then rerepresented itself as large, and then, though novation or declining revenues/payroll, was able to subsequently rereperesent itself as small for a task order set-aside requesting a task-order-level representation. Am I missing something in 13CFR121 that makes offerors ineligible for task orders containing FAR 52.219-6 after the rerepresent their size on an IDIQ contract? Should a task order contain a representation similar to FAR 52.219-1 and the contractor has represented itself as large on the contract, may a contractor still represent itself a small for that task order if its trailing revenues/employee count are below the applicable NAICs code threshold and other SB criteria in 13CFR121 are met?