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Post-Award Small Business Program Representation


CM1982

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52.219-28

"long term contract" - a contract more than five years in duration including options.

(B) If the Contractor represented that it was a small business concern prior to award of this contract, the Contractor shall rerepresent its size status according to paragraph (e) of this clause or, if applicable, paragraph (g) of this clause, upon the occurrence of any of the following:

(3) For long-term contracts?

(i) Within 60 to 120 days prior to the end of the fifth year of the contract; and

(ii) Within 60 to 120 days prior to the date specified in the contract for exercising any option thereafter.

There are many IDIQs that are 5 year base plus a 5 year option and the contract causes the small business to outgrow itself. I thought a saw a policy letter out that they were going to change this because it's really unfair for small businesses and pointless for the Government on large, engineering service type, IDIQs. For instance, the Government put a 5 plus 5 to provide continuity of programs and for customer convenience however if a small business gets one of the awards and is doing their job, they get bumped out of their size standard and the effort is re-competed.

Does anyone know anything about this?

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52.219-28

"long term contract" - a contract more than five years in duration including options.

(B) If the Contractor represented that it was a small business concern prior to award of this contract, the Contractor shall rerepresent its size status according to paragraph (e) of this clause or, if applicable, paragraph (g) of this clause, upon the occurrence of any of the following:

(3) For long-term contracts?

(i) Within 60 to 120 days prior to the end of the fifth year of the contract; and

(ii) Within 60 to 120 days prior to the date specified in the contract for exercising any option thereafter.

There are many IDIQs that are 5 year base plus a 5 year option and the contract causes the small business to outgrow itself. I thought a saw a policy letter out that they were going to change this because it's really unfair for small businesses and pointless for the Government on large, engineering service type, IDIQs. For instance, the Government put a 5 plus 5 to provide continuity of programs and for customer convenience however if a small business gets one of the awards and is doing their job, they get bumped out of their size standard and the effort is re-competed.

Does anyone know anything about this?

Is there something in the clause, or in the FAR, that requires you to recompete, instead of exercising the option? I thought this requirement for re-certification was merely to avoid reporting dollars to FPDS-NG as being awarded to small business, when in fact, the work is being performed by what is now a large business. If a contractor won a contract as a small business, then grew to be large before the first five year period was over, wouldn't the re-certification just cause you to report the option exercise action as being awarded to a large business?

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I thought a saw a policy letter out that they were going to change this because it's really unfair for small businesses and pointless for the Government on large, engineering service type, IDIQs.

Are you thinking of Small Business Fair Competition Act (H.R. 3558)?

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While CM1982 is quoting FAR 52.219-28 - Post Award Small Business Pregram representation (Apr 2009) and his statement is correct for long term contracts. As I understand it, the size determination of a company is made when the offered is tendered. If a company certifies as a small business and if during the contract operiod it out grows the small bsuiness size standard, it is still considered to be small business throughout the life of the instant contract and any options (see 13 CFR 121.404(g)).

However, should the company be bought or merge, it must within 30 days of the merger, recertify as to its meeting the size standard. If it cannot recertify that it meets the small business size standard, any future awards made will not be considered as awards to small businesses - 13 CFR 121.404(i).

So, the simple growth of a company would not affect its small business size for any options, but acquisition would.

Hope this helps.

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