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FAR Case 2008-032 (Small Business Size Rerepresentation), which was part of FAC 2005-31, contained the following general statement in the Q&A section (74 FR 11823):

Contracting officers under the Executive Branch are required to follow the FAR. In cases where there are inconsistencies between Title 13 (SBA regulations) and Title 48 (FAR) of the Code of Federal Regulations, contracting officers follow the FAR.

Is that accurate? What do you think?

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Don,

See C & G Excavating. The court held that where a FAR requirement and an SBA regulation directly conflict with regard to the standards set for SBA actions, the SBA provision will generally be preferred.

I was taught that if the plain language of a regulation contradicts the statute, the statute trumps; but if the statute leaves room for an agency to interpret it further, that the agency regulation will generally be ok.

I don't know what to think, now.

~jj

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Comments accompanying a rule in the Federal Register are not part of the rule. Such comments are, at best, a kind of legislative history. In this case, the comment is not even legislative history. It is merely an unsupported assertion. In any case, the councils write the FAR, but they have no enforcement authority.

Nothing in FAR directs COs to give FAR precedence over other rules in the CFR when there is a conflict. I am aware of no federal court decision that says FAR is to automatically be given precedence. FAR 1.602-1(B) tells contracting officers to ensure compliance with all laws and regulations. A court will certainly consider which agency head Congress has authorized to make policy and promulgate regulations about the matter. See C & G Excavating, Inc. v. U.S., 32 Fed. Cl. 231 (Fed. Cl. 1994), in which the Court of Federal Claims resolved a conflict between SBA regulations and the FAR concerning certificates of competency in favor of the SBA regulations, saying:

In general, the SBA regulations conflict with FAR ? 19.602-2(a)(2) because they do not contain any restrictions as to the meaning of the term ?responsibility.? For example, the SBA regulations define a COC as a ?written instrument ... certifying that a small concern ... possesses a responsibility.? 13 C.F.R. ? 125.5. Section 125.5(d) further provides that once the contracting officer notifies the SBA as to the basis of the referral, the SBA must ?investigate and certify as to the bidder's responsibility.? Finally, section 125.5(j) provides that ?the COC is conclusive as to responsibility....? In contrast, FAR ? 19.602-2(a)(2), restricts the definition of responsibility by limiting the scope of site investigations to the elements cited by the contracting officer as deficient. According to plaintiff's theory, this restriction translates into a restriction on the SBA's overall review authority. In addition to this general conflict, a direct conflict exists between FAR ? 19.602-2(a)(2) and 13 C.F.R. ? 125.5(e), in that the former limits the scope of the site investigation to the elements cited by the contracting officer as lacking, and the latter contains no such restriction. 13 C.F.R. ? 125.5(e) (stating ?SBA personnel may be sent to the firm to review the responsibility of the applicant....?).

Although plaintiff contends that the FAR restriction controls the extent of the SBA's review authority, plaintiff fails to recognize that ?considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.... [especially when the] ?decision as to the meaning or reach of a statute has involved reconciling conflicting policies....' ? Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted) (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961) (citations omitted)). Because Congress entrusted the SBA with administering the COC program as provided in section 8(B) of the Act, 15 U.S.C. ? 637(B)(7), the court must accord the SBA's interpretation of the program appropriate deference. The FAR, promulgated by DOD, GAO, and NASA, are designed to provide uniform acquisition procedures for federal government agencies. Once the contracting officer refers a matter to the SBA, as required by the FAR, the SBA's procedures generally should control, especially considering that the SBA is the agency charged with issuing COCs, not DOD, GAO, or NASA.

See too CSE Const. Co., Inc. v. U.S., 58 Fed. Cl. 230 (Fed. Cl. 2003), which speaks of the "well-established principle that ' "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer ...." ' Id. at 239 (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))."

Whoever on the DAR or CAA council wrote that response to the public comment did so without any legitimate basis that I know. I know what to think: Ignore it.

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Also see:

Adams Industrial Services, Inc., B-280186, August 28, 1998.

While FAR sec. 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA's regulations, which we view as controlling in this area, provide that "[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest." 13 C.F.R. sec. 121.1004©. Moreover, in the absence of countervailing reasons, we view it as inconsistent with the integrity of the competitive procurement system and the intent of the Small Business Act, 15 U.S.C. sec. 631-657a (1994), for an agency to permit a large business, which was ineligible under the terms of the RFQ, to continue to perform. Diagnostic Imaging Tech. Educ. Ctr., Inc., supra. (emphasis added)

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Also see:

Adams Industrial Services, Inc., B-280186, August 28, 1998.

While FAR sec. 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA's regulations, which we view as controlling in this area, provide that "[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest." 13 C.F.R. sec. 121.1004?. Moreover, in the absence of countervailing reasons, we view it as inconsistent with the integrity of the competitive procurement system and the intent of the Small Business Act, 15 U.S.C. sec. 631-657a (1994), for an agency to permit a large business, which was ineligible under the terms of the RFQ, to continue to perform. Diagnostic Imaging Tech. Educ. Ctr., Inc., supra. (emphasis added)

Also, see MCS Portable Restroom Service, B-299291, March 28, 2007, where the GAO upheld a protest when the agency applied a literal reading of a FAR provision that was inconsistent with statutory language and the SBA's regulations.

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