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rerepresentation & set-aside eligibility on task orders


FedContractor

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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?

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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?

Shouldn't your first sentence be "FAR 19.301-2(d) prohibits agencies from taking small business credit on a contract once a contractor rerepresents itself as other than small"? [emphasis added]

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Yes, sorry. Thanks.

FAR 19.301-2(d) prohibits agencies from taking small business credit on a contract once a contractor rerepresents itself as other than 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?

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It seems to me that if a task order proposal request contains a representation similar to FAR 52.219-1, and the contractor has represented itself as large on the contract, but at the time of proposal submission, meets the definition of small business in the FAR, then the contractor should represent itself as small. Wouldn't it be false to do otherwise?

Of course, if there was a novation involved, then a rerepresentation would have been required anyway, so there shouldn't be an issue, but if the contractor grew such that it had to re-represent after 5 years and then shrank, without any intervening event requiring rerepresentation, there could be a question whether the CO could report amounts awarded to that company as small business dollars, but I don't think there's anything in the rerepresentation coverage of the CFR that would affect the contractor's eligibility for award of task orders.

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FedContractor, you say you have looked at 13 CFR 121. Have you looked at 13 CFR 121.404(g)? This seems to address your question as I understand it, however, I have to say that your scenario is not clear.

Thanks for your responses; please let me restate. The exception 13 CFR 121.404(g)(3) was triggered and the firm rerepresented itself as other than small at the 5th year. It then, either through a novation or declining revenues/staff, becomes small. Then, a task order solicitation requires firms to represent their size using criteria similar to 52.219-1 at the time of task order submission, and does not question the offeror's status on the IDIQ contract. Is the offeror eligable for task order set-aside even though the Government should not be taking small business credit per FAR 19.301-2(d)?

Navy_Contracting_4, I only question your "wouldn't it be false" question because the Government shouldn't be taking credit per FAR 19.301-2(d)? Same issue with the novation, if I certify as small then large them small, 19.301-2(d) still doesn't allow the Government credit based on my literal interpretation of this sentence.

BTW, I don't think FAR 19.301-3 applies because the its limited to "before contract award", though I've always found this to be unclear as to when and how the Goernment could take credit for the small busienss award.

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Navy_Contracting_4, I only question your "wouldn't it be false" question because the Government shouldn't be taking credit per FAR 19.301-2(d)? Same issue with the novation, if I certify as small then large them small, 19.301-2(d) still doesn't allow the Government credit based on my literal interpretation of this sentence.

My comment, "Wouldn't it be false..." was related to the contractor's representation, and had nothing to do with the Government taking credit. Likewise with the novation comment. As a contractor, I assumed you were interested in contractor rights and obligations, and so I didn't focus on the government taking credit aspect.

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My comment, "Wouldn't it be false..." was related to the contractor's representation, and had nothing to do with the Government taking credit. Likewise with the novation comment. As a contractor, I assumed you were interested in contractor rights and obligations, and so I didn't focus on the government taking credit aspect.

thanks makes sense. thanks.

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