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deloftin

Subk plan requirements for Rerepresentations

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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.]

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I don't know why GSA wouldn't always require this. It is true the authority is discretionary. Supposedly that was because SBA thought it would be unfair to ask a contractpr whose recertification came so late in a contract that there were no opportunities to subcontract to file a plan (presumably after having been acquired). See below.

A contract having its GSA schedule contract option exercised has five years to meet its subcontracting plan, so this doesn't apply. It doesn't seem right that a company that becomes large in the base period of its GSA subcontract can have another 15 years' exemption from filing a plan.

https://www.federalregister.gov/articles/2013/07/16/2013-16967/small-business-subcontracting

"SBA received several comments on proposed § 125.3(d)(10) (now § 125.3(d)(9)), which allows a contracting officer to require a subcontracting plan if a prime contractor's size status changes from small to other than small as a result of a size recertification. Some commenters recommended requiring the contracting officer to require a subcontracting plan rather than making it discretionary. SBA disagrees. This is not required by statute. Further, it may be impractical to require a subcontracting plan at or near the end of performance, or after all subcontracting opportunities have passed. Thus, SBA maintains that it should be left to the discretion of the contracting officer."

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