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Mitch2015

Small Business NAICS certification in SAM

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Hello everyone, I have followed WIFCON.com for a while now, but never had the need to post anything until just recently. There is discussion going on within my office, and I wanted to get different opinions on the topic.

Scenario: An RFQ, using FAR Part 13 procedures, was issued for an LPTA supply requirement that totals less than $15,000. In the RFQ it was stated the appropriate NAICS and size standard. The RFQ closed, and 4 responses were received. The vendor who is the lowest priced technically acceptable is a Small Business but does not have the stated NAICS resident on their SAM profile. The vendor is also not the manufacturer of the item they are offering, and their offered item is not manufactured by a Small Business.

According to 13 CFR §121.406(d) a Small Business is exempt from providing a product manufactured by a Small Business when using Part 13 procedures, and when the acquisition is less than $25,000 as long as they meet the following requirements:

(i) Does not exceed 500 employees;

(ii) Is primarily engaged in the retail or wholesale trade and normally sells the type of item being supplied;

(iii) Takes ownership or possession of the item(s) with its personnel, equipment or facilities in a manner consistent with industry practice; and

(iv) Will supply the end item of a small business manufacturer, processor or producer made in the United States, or obtains a waiver of such requirement pursuant to paragraph (b(5) of this section.

The prospective awardee meets all of these requirements, but again does not have the solicitation’s NAICS resident on their SAM profile. The CO is stating that the award cannot be made to that vendor because the NAICS is not resident in SAM. Is this in fact the case?

On the SBA's website (https://www.sba.gov/content/guide-size-standards-0) it states: To bid on Federal contracts, the concern must self-certify in SAM that it is a small business under the appropriate size standard set forth in the solicitation.

This question was also posed to DAU’s Ask a Professor, and their response was that the NAICS did not have to resident in SAM as long as the vendor would still qualify as a Small Business under that NAICS. Our Small Business specialist is not co-located with our office, and the question has been asked to that individual but no response has been received as of yet.

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Please consider GAO Bid Protest decision B-409736.2, High Plains Computing, Dec. 22, 2014, http://www.gao.gov/assets/670/667803.pdf.

Extract--

Finally, HPC [the protester] argues that NCC [the awardee] was not eligible for award because at the time of award, the firm’s SAM record did not list the NAICS code listed in the solicitation. According to [the protester], by listing a NAICS code in the solicitation, the agency “affirmatively limited the competition only to those offerors with [that] NAICS Code [in their SAM records] as of the date of the proposal.”

* * * *

Our Office previously addressed this issue in S4, Inc., B-299817, B-299817.2, Aug. 23, 2007. There, the agency made award to a firm even though the firm’s Online Representations and Certifications Application (ORCA) entries did not include the NAICS code listed in the solicitation. We concluded that the award nevertheless was proper because there was no apparent statutory or regulatory requirement for the NAICS code in a solicitation to be listed in an offeror’s ORCA entries, and because the record showed that the contracting officer had a reasonable basis to conclude that the firm was eligible for award under the solicitation’s size standard.

The circumstances here are essentially identical to those in S4, Inc. In particular, [the protester] has failed to identify a statute or regulation requiring that the NAICS code in the solicitation be listed in an offeror’s SAM record, and the record shows that the contracting officer had a reasonable basis to believe that [the awardee] was eligible for award under the solicitation’s size standard. Accordingly, as in S4, Inc., we find the agency’s award here to be proper.

The protest is denied.

(internal citations omitted)

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"The CO is stating that the award cannot be made to that vendor because the NAICS is not resident in SAM."

How do they come up with these things? With this logic a contractor would have to list all possible NAICS codes in SAM they potentially might want to compete for or otherwise risk being excluded from award. There was a "Federal Contracting Myths" blog thread a while back, and it never ceases to amaze me all the "myth-information" that exists in the 1102 world. Here's another one:

"While it would be convenient to extend the contract performance period beyond one year, the only way to extend a performance period is by use of an option to extend the performance period. If that were possible to extend a contract beyond the performance period without the use of option periods, we would have "extended" the performance period on the IDIQ ______ contract, as we had a lot of capacity remaining, but it had no additional options. So the Government had to re-procure."

In this context we were discussing the possibility of extending an IDIQ contract that was awarded on sole-source basis under the SBA's 8(a) program. See if you can find all the myth-information.

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