Jump to content
The Wifcon Forums and Blogs

Sign in to follow this  
napolik

Determinative Date of SB Size Status

Recommended Posts

For purposes of determining size status against a solicitation for a new contract – not a task order under a MAC, is the determinative date the date of the initial offer in response to the solicitation?

13 CFR 121.404 (g):

Quote

A concern that represents itself as a small business and qualifies as small at the time of its initial offer (or other formal response to a solicitation), which includes price, is considered to be a small business throughout the life of that contract. This means that if a business concern is small at the time of initial offer for a Multiple Award Contract (see § 121.1042(c) for designation of NAICS codes on a Multiple Award Contract), then it will be considered small for each order issued against the contract with the same NAICS code and size standard, unless a contracting officer requests a new size certification in connection with a specific order. Where a concern grows to be other than small, the procuring agency may exercise options and still count the award as an award to a small business.

 

Share this post


Link to post
Share on other sites

Is there a reason this paragraph of 13 CFR 121.404 was not quoted?  

121.404 (a) SBA determines the size status of a concern, including its affiliates, as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation), which includes price.

 

Determination is not only based on date of initial offer, that includes price, but the fact that the offeror has provided a written self certification as well.

Share this post


Link to post
Share on other sites

There may be some matters where the FAR and the SBA's regulations don't match precisely.  However, for this matter, the FAR and the SBA's regulations agree -- see FAR 19.301-1(a).  It seems to me that the date of representation and the date of the offer will usually be the same, because the representation occurs as part of the offer -- for example, see FAR 52.219-1(c)(1).

Share this post


Link to post
Share on other sites
1 hour ago, C Culham said:

Determination is not only based on date of initial offer, that includes price, but the fact that the offeror has provided a written self certification as well.

So, if the contractor has certified as small in SAM, the key date is the offer date, not the certification date?

Share this post


Link to post
Share on other sites
4 hours ago, napolik said:

So, if the contractor has certified as small in SAM, the key date is the offer date, not the certification date?

Right. See also FAR 52.204-8( d ) or 52.212-3( b )(2).

Share this post


Link to post
Share on other sites
1 hour ago, Don Mansfield said:

Right. See also FAR 52.204-8( d ) or 52.212-3( b )(2).

Merci beaucoup!

Share this post


Link to post
Share on other sites
4 minutes ago, Don Mansfield said:

De nada.

Since you were so kind to respond to my response, let me pick your brain some more.

The contractor makes its certs in March of 2016, submits an offer in January of 2017 against a FAR 15 small business set aside, and updates the SAM certs in March of 2017. The new SAM certs make the contractor an LB for the size standard identified in the set aside solicitation that closed in January 2017.

The CO conducts discussions, requests and receives FPRs on 10 April prepares to make award on 15 April to the contractor who was a small biz in January 2017 but who is a LB in April 2017.

The CO sends the preaward notice required by FAR 15.503. After checking SAM for the proposed awardee's SB status, an unsuccessful offeror challenges the offeror's size status.

Could things get a bit confusing? 

Share this post


Link to post
Share on other sites

The contracting officer doesn't have to make any decision -- he or she simply sends the timely size protest to the SBA.

I think the answer is going to be the date of the original offer, not the date of the final proposal revision.

Share this post


Link to post
Share on other sites
1 hour ago, ji20874 said:

The contracting officer doesn't have to make any decision -- he or she simply sends the timely size protest to the SBA.

I think the answer is going to be the date of the original offer, not the date of the final proposal revision.

It appears that you are correct. See SIZE APPEAL OF: Ramcor Services Group, Inc., SBA No. SIZ-5510 (2013).

http://stanhinton.com/OHA_Decisions/SIZ-5510.pdf.

Quote

On August 23, 2013, Appellant filed the instant appeal. Appellant argues that, under 13 C.F.R. § 121.404(a), the Area Office should have determined Appellant's size as of March 18, 2013, the date of Appellant's revised final proposal, because the revised final proposal is a “formal response” to the solicitation.

__________________

 Appellant's argument would mean that any formal response to the solicitation should establish a date to determine size. The problem with Appellant's position is that it sets no definite date for determining size for a procurement. Every procurement has an initial offer, but many will have final proposal revisions and some will have several rounds of offers submitted. All of these are formal responses to the proposal. Appellant's argument provides no basis for determining which of these formal responses to the solicitation should be used as the date for determining size. Appellant's argument would leave area offices with no clear basis for selecting a date on which to determine size. By contrast, the rule that an initial offer including price must be used, except in certain definite cases enumerated in the regulation or where the initial response did not include price provides the area office with a clear rule to apply in selecting the date to determine size. Appellant's argument, if adopted would leave too much uncertainty in the size determination process.

Accordingly, I conclude that the Area Office did not err when it used the date of Appellant's initial offer, including price, to determine Appellant's size status. I therefore affirm the size determination and deny the appeal.

Also, the GAO buys into this SBA OHA decision. See Software Engineering Services Corporation, B-411739, Oct. 8, 2015.

http://www.gao.gov/products/D12073#_ftnref6

Quote

Furthermore, an offeror’s size status is determined at the time that it submitted its proposal, not at the time that it is issued a task order.  See Research & Dev. Solutions, Inc., B-410581, B410581.2, Jan. 14, 2015, 2015 CPD ¶ 38 at 6.[6]  While OBXtek’s size status changed after it submitted its initial proposal, the record shows--and SES does not disagree--that OBXtek was listed as small on the date that its proposal was submitted.

[6] See also Size Appeal of Ramcor Services Group, Inc., SBA No. SIZ-5510, Nov. 1, 2013, at 4 (small business size status determined as of date of initial proposal submission, not date of final proposal revision).

Share this post


Link to post
Share on other sites

Napolik - Sorry for the no response on my part.  I am busy during the day and it prevented me from responding.   Thanks Don for carrying the torch.

Share this post


Link to post
Share on other sites

There is one exception to the rule that the initial proposal including price is when size is established.  That exception is when a violation of the Ostensible Subcontractor rule is alleged in the size protest.  In those cases the size is established at the time of the final proposal.  The reason for that exception is that the contractor may have changed its proposed personnel from its initial proposal when submitting its final proposal which could affect whether or not it was a violation of the Ostensible Subcontractor Rule. 

Share this post


Link to post
Share on other sites
1 hour ago, DWGerard1102 said:

There is one exception to the rule that the initial proposal including price is when size is established.  That exception is when a violation of the Ostensible Subcontractor rule is alleged in the size protest.  In those cases the size is established at the time of the final proposal.  The reason for that exception is that the contractor may have changed its proposed personnel from its initial proposal when submitting its final proposal which could affect whether or not it was a violation of the Ostensible Subcontractor Rule. 

DW, please cite something authoritative in support of that assertion--a regulation or an SBA decision.

Share this post


Link to post
Share on other sites

When I worked for the VA I had a situation where we awarded 5 IDIQ’s to SDVOSB’s. One of the SDVOSB’s lost their status (survivorship rights ended). An attorney told me we couldn’t use that contract anymore regardless of the language at 13 CFR as a result of the Kindomware decision. I didn’t look into it any further or verify that the reasoning was correct however.  

If the attorneys reasoning was correct, that's the only exception I could think of. 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

×