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8(a) determination date

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What is the date used for determining whether an offeror is an 8(a) company?  Which, if any, of the Offeers below would be eligible for award under an 8(a) set-aside solicitation?

The situation:

December 27, 2018 a pre-solicitation notice is published on FBO.

January 2, 2019 Offeror #1 exits the 8(a) program

January 10, 2019 the solicitation is published on FBO.

January 20, 2019 the Offeror #2 exits the 8(a) program.

February 20, 2019 responses to the solicitation are due.

March 17, 2019 Offeror #3 exits the 8(a) program.

April 20, 2019 BAFO's are requested.

April 22, 2019 Offeror #4 exits the 8(a) program.

April 27, 2019 BAFO's are submitted.

May 17, 2019 Offeror #5 exits the 8(a) program.

May 20, 2019 award is made.

 

 

 

 

 

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At what point in the chronology did the offerors submit executed Section K Reps and Certs?

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In reviewing FAR 19.805-2 and the clause 52.219-18, the answer appears to be February 20, 2019, the date responses to the solicitation are due. Normally, the responses include Section K Reps and Certs.

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19.805 -- Competitive 8(a).

19.805-1 -- General.

19.805-2 -- Procedures.

(a) Offers shall be solicited from those sources identified in accordance with 19.804-3.

(b) The SBA will determine the eligibility of the participants for award of the contract. Eligibility will be determined by the SBA as of the time of submission of initial offers which include price. Eligibility is based on Section 8(a) program criteria. An 8(a) participant must represent that it is a small business in accordance with the size standard corresponding to the NAICS code assigned to the contract.

Since the procurement is being conducted as an 8(a) competition pursuant to FAR 19.805, the solicitation must include clause 52.219-18:

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52.219-18 -- Notification of Competition Limited to Eligible 8(a) Participants.

Notification of Competition Limited to Eligible 8(a) Participants (Jan 2017)

(a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in the SBA’s 8(a) Program and which meet the following criteria at the time of submission of offer --

(1) The Offeror is in conformance with the 8(a) support limitation set forth in its approved business plan; and

(2) The Offeror is in conformance with the Business Activity Targets set forth in its approved business plan or any remedial action directed by the SBA.

(b) By submission of its offer, the Offeror represents that it meets all of the criteria set forth in paragraph (a) of this clause.

 

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Additionally, see 13 CFR §124.507(b), for general guidance, and 124.507(d) specifically having to do with 8(a) firms whose program terms have expired:

(d) Award to firms whose program terms have expired. A concern that has completed its term of participation in the 8(a) BD program may be awarded a competitive 8(a) contract if it was a Participant eligible for award of the contract on the initial date specified for receipt of offers contained in the contract solicitation, and if it continues to meet all other applicable eligibility criteria.

(1) Amendments to the solicitation extending the date for submissions of offers will be disregarded.

Example to paragraph (d)(1). The program term for 8(a) Participant X is scheduled to expire on December 19. A solicitation for a competitive 8(a) procurement specifies that initial offers are due on December 15. The procuring activity amends the solicitation to extend the date for the receipt of offers to January 5. X submits its offer on January 5 and is selected as the apparent successful offeror. X is eligible for award because it was an eligible 8(a) Participant on the initial date set forth in the solicitation for the receipt of offers.

 

(2) For a negotiated procurement, a Participant may submit revised offers, including a best and final offer, and be awarded a competitive 8(a) contract if it was eligible as of the initial date specified for the receipt of offers in the solicitation, even though its program term may expire after that date.

 

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