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Reps & Certs for Each IDC Order?

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So, are we all agreed on the following question and answer?

  • Q.  Must a contracting officer document reps and certs for each and every order under an indefinite-delivery contract?
  • A.  No.

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  • Q.  Must a contracting officer document reps and certs for each and every order under an indefinite-delivery contract?
  • A.  Not unless the CO has the urge to do it based upon his/her beliefs and or the "advice" of the small biz specialist.

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32 minutes ago, napolik said:

Q.  Must a contracting officer document reps and certs for each and every order under an indefinite-delivery contract?

A. No except in certain situations such as an exception to annual certs and reps, payment by government credit card and/or "in response to an FSS RFQ"*.

*@napolikYour application of the GAO decision is mis-placed in my view as it deals specifically with a FSS RFQ and a commercial item contract (52.212-3).   If the GAO has expanded the 2002 decision to other than commercial item contracts (52.204-7, 8, 13 and 19) and other than FSS contracts I would appreciate seeing it. 

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2 hours ago, C Culham said:

If the GAO has expanded the 2002 decision to other than commercial item contracts (52.204-7, 8, 13 and 19) and other than FSS contracts I would appreciate seeing it. 

The Oryza Group, LLC., B-416719,B-416719.2: Nov 26, 2018

https://www.gao.gov/products/B-416719,B-416719.2#mt=e-report

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BACKGROUND

On June 22, 2018, the Army issued the TOR to holders of Veterans Technology Services 2 (VETS 2) indefinite-delivery, indefinite-quantity (IDIQ) governmentwide acquisition contracts (GWACs) pursuant to the procedures of Federal Acquisition Regulation (FAR) subpart 16.5.  

_________________________________________________________________________________________________________________________________________________________

When a firm is awarded an IDIQ contract (including a multiple award contract like the VETS 2 GWAC) as an SDVOSB, the firm is generally considered an SDVOSB throughout the life of that contract, and is not required to recertify its size status for each order issued under the contract.[4]  13 C.F.R. § 125.18(e)(1); see Enterprise Info. Servs., Inc., B-403028, Sept. 10, 2010, 2010 CPD ¶ 213 at 3.  Agencies have the discretion, however, to request that offerors recertify their business status in response to a solicitation for an order.  13 C.F.R. § 125.18(e)(5);  see Technica Corp., B-413339, Sept. 19, 2016, 2016 CPD ¶ 264 at 3.  If a solicitation expressly requires a vendor to recertify its size status in response to a solicitation for an order, the size status of the vendor will be determined as of the date of the recertification.  13 C.F.R. § 125.18(e)(5).

 

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3 hours ago, C Culham said:

Your application of the GAO decision is mis-placed in my view as it deals specifically with a FSS RFQ and a commercial item contract (52.212-3).

Also, see Title 13, Chapter I, Part 121 of the Code of Federal Regulations.

Quote

§121.404   When is the size status of a business concern determined?

(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.

(1) With respect to Multiple Award Contracts and orders issued against a Multiple Award Contract:

(i) SBA determines size at the time of initial offer (or other formal response to a solicitation), which includes price, for a Multiple Award Contract based upon the size standard set forth in the solicitation for the Multiple Award Contract if a single NAICS codes is assigned as set forth in §121.402(c)(i)(A). If a business is small at the time of offer for the Multiple Award Contract, it is small for each order issued against the contract, unless a contracting officer requests a new size certification in connection with a specific order.

(ii) SBA determines size at the time of initial offer (or other formal response to a solicitation), which includes price, for a Multiple Award Contract based upon the size standard set forth for each discrete category (e.g., CLIN, SIN, Sector, FA or equivalent) for which a business concern submits an offer and represents it is small for the Multiple Award Contract as set forth in §121.402(c)(i)(B). If the business concern submits an offer for the entire Multiple Award Contract, SBA will determine whether it meets the size standard for each discrete category (CLIN, SIN, Sector, FA or equivalent). If a business is small at the time of offer for a discrete category on the Multiple Award Contract, it is small for each order issued against that category with the same NAICS code and corresponding size standard, unless a contracting officer requests a new size certification in connection with a specific order.

(iii) SBA will determine size at the time of initial offer (or other formal response to a solicitation), which includes price, for an order issued against a Multiple Award Contract if the contracting officer requests a new size certification for the order.

________________________________________________

(g) 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. ...

Quote

§ 125.1 What definitions are important to SBA's Government Contracting Programs?

 Multiple Award Contract means a contract that is:

(1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g.,Department of Veterans Affairs) as described in FAR part 38 and subpart 8.4;

(2) A multiple award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Governmentwide acquisition contracts; or

(3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation.

 

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napolik,

Right -- requiring recertification of small business status is allowable [for orders under multiple-award IDIQ contracts] -- but that is different than documenting complete reps and certs for each and every order under an indefinite-delivery contract -- small business certification is just one of the reps and certs, and the original posting asked about documenting the complete reps and certs for each and every order.  So I still say "No" to the question of requiring re-documentation of reps and certs for each and every order, even though I am okay with recertification of small business status.

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1 hour ago, ji20874 said:

So I still say "No" to the question of requiring re-documentation of reps and certs for each and every order, even though I am okay with recertification of small business status.

You are correct. My focus has been narrowly on what I consider to be the most important cert - small business status.

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13 hours ago, C Culham said:

 

Introduction -  I am providing a concise response as there has been appeal to common sense and principles however as I have noted already in this thread I believe the FAR provides the answer.  Here is my extended effort that includes FAR citations to support that the FAR provides the answer.  As you will see it is not matter of feeling, options, or opinions.

Response - There is no need to document the certs and reps in each instance of proposal evaluation pursuant to both FAR subpart 4.11 and FAR subpart 4.12 and the clauses each requires in contracts that provide that a contractor shall complete its representations and certifications via the System for Award Management (SAM).

FAR subpart 4.1102, and its associated required clauses,  requires all contractors to be registered in SAM at contract award unless an exception applies.  Further as provided by FAR subpart 4.1103 the CO, unless an exception applies, shall verify SAM registration of the contractor at time of offer or quotation.  However at 4.1103 it is provided that the CO need not verify the contractors registration for orders or calls if FAR Clause 52.204-7 is in the contract.

FAR subpart 4.1105 requires both 52.204-7 and 52.204-13 in all solicitation and contracts unless the aforementioned exception applies.

Pursuant to FAR subpart 4.12 SAM registration includes representations and certifications and incorporates a contractor’s representations and certifications into a contract (reference FAR4.1200(c)) via the aforementioned clauses.  Further pursuant to 4.1201 the contractors annual reps and certs are to be updated as necessary but at least annually and again the aforementioned clauses that are in a contract require the contractor to update its SAM registration.   4.1202 provides that 52.204-19 is simply method of incorporating by reference the reps and certs that the contractor has already completed via its SAM registration.  Exact wording of 52.204-19 (emphasis added) is “The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

Conclusion – Unless an exception applies the representations and certifications for an ID contract are carried in the contractors SAM registration and included in the contract via various clauses such as 52.204-7, 52,204-8, 52.204-13 and  52.219-28* all of which provide for the SAM registration and its updates as required or at least annually.  FAR 52.204-19 is simply a reference to these certifications the contractor has made via SAM.

Further as provided by FAR 4.1103(a)(3) when representations and certifications are incorporated into the ID contract pursuant to the contractors SAM registration as provided by the clauses that so incorporate the registration the contractor need not verify its SAM registration again, unless the ID contract provides for payment by the Governments credit card.

*52.219-28 provides when a  business must update its size certification in SAM.

Appreciate both the style and substance of your post. So many ways to prove that Reps & Certs are, in these instances, just not required. Didn't need the Reps & Certs to issue your order anyway. And oh, by the way, here's how the Reps & Certs, to include annual updates, "flows" down to the proposal resulting in your order.

 

11 hours ago, napolik said:

While the CO is not required to get a recertification, if the CO wants a recertification at the time of issuance of an RFQ under the IDC, the CO can do so.

Recently started to think there may be an ironic corollary to FAR 1.102(d). If I believe doing things the way I just do things as a CO is in the best interest Government, I am not prohibited to do what I want! Sarcasm very much intended.

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@napolik

Thanks napolik for providing further reference. 

@napolik and @ji20874

15 hours ago, ji20874 said:

napolik,

Right -- requiring recertification of small business status is allowable -- but that is different than documenting complete reps and certs for each and every order under an indefinite-delivery contract -- small business certification is just one of the reps and certs, and the original posting asked about documenting the complete reps and certs for each and every order.  So I still say "No" to the question of requiring re-documentation of reps and certs for each and every order, even though I am okay with recertification of small business status. 

 

Really?  Remember we are talking about a specific situation here and in my view both of you have confused the facts and application of the FAR and CFR.

FACT - As provided by the OP the contract is single award ID contract.  To a large business as well.

FACT - Recertification allowed by 13 CFR 121 is only applicable to multiple award contracts.

@Sunstrider

10 hours ago, Sunstrider said:

Recently started to think there may be an ironic corollary to FAR 1.102(d). If I believe doing things the way I just do things as a CO is in the best interest Government, I am not prohibited to do what I want! Sarcasm very much intended.

Sarcasm aside I am going to disagree with napolik and ji as noted and even the application of FAR1.102(d).    Why?  

What we are talking about is an awarded contract here.   FAR has noting to do with it now that it is an awarded contract .   Also as has tried to be provided neither does 13 CFR 121 as you do not have a multiple award contract.  What applies are the clauses in the contract that would require the contractor to update their reps and certs (aka SAM), inclusive of their size status at certain bench marks.   We have not been provided what clauses beyond 52.204-19 are in the contract  but I would offer that if FAR 52.204-7 and 13 and 52.219-28 are in the contract and I was the contractor I would tell you to go pound sand if you asked me to give you certs and reps and most especially if you asked me to recertify my size status.  Now maybe napolik and ji can find case law where I could not tell you such but I do not think so.

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No one has asserted asking for re-certification of small business status for a single-award IDIQ contract.  Let me re-formulate to avoid any confusion...

  • I still say "No" to the question of requiring re-documentation of reps and certs for each and every order [under a multiple-award IDIQ contract], even though I am okay with recertification of small business status.
  • I still say "No" to the question of requiring re-documentation of reps and certs for each and every order [under a single-award indefinite-delivery contract]

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20 minutes ago, ji20874 said:

I still say "No" to the question of requiring re-documentation of reps and certs for each and every order [under a multiple-award IDIQ contract], even though I am okay with recertification of small business status.

In your organization, are/were you required to get the SBA specialist's concurrence before taking a contract action?

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57 minutes ago, ji20874 said:

No one has asserted asking for re-certification of small business status for a single-award IDIQ contract. 

 

On ‎5‎/‎28‎/‎2019 at 1:42 PM, ji20874 said:

Pepe,

Right -- requiring recertification of small business status is allowable -- but that is different than documenting complete reps and certs for each and every order under an indefinite-delivery contract -- small business certification is just one of the reps and certs, and the original posting asked about documenting the complete reps and certs for each and every order.  So I still say "No" to the question of requiring re-documentation of reps and certs for each and every order, even though I am okay with recertification of small business status.

@ji20874

You did not assert to "asking" but you definitely stated that it is "allowable" and that you are "okay" with it.   I will accept your re-clarification and assert that your hastily prepared responses  confused the OP's situation and confused an appropriate response to the OP's question.

You and napolik can carry on.

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2 hours ago, C Culham said:

Also as has tried to be provided neither does 13 CFR 121 as you do not have a multiple award contract.

Carl, are you saying that the recertification requirements in 13 CFR 121.404 only apply to multiple award IDIQ contracts?

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I am okay with it, when it is allowed.

You should let the original poster speak for him- or herself regarding any confusion.

I still think my first posting was correct, albeit succinct.  To the question of whether a contracting officer must document complete reps and certs for each and every order under an indefinite-delivery contract, the answer was, is, and always will be "No."

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22 hours ago, Retreadfed said:

Carl, are you saying that the recertification requirements in 13 CFR 121.404 only apply to multiple award IDIQ contracts?

After reconsideration I have edited this post.

I may have implied Yes in my posts but agree it applies to all contracts and further agree 52.219-28 so states the same.

Edited by C Culham
To change response

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46 minutes ago, ji20874 said:

I am okay with it, when it is allowed.

You should let the original poster speak for him- or herself regarding any confusion.

I still think my first posting was correct, albeit succinct.  To the question of whether a contracting officer must document complete reps and certs for each and every order under an indefinite-delivery contract, the answer was, is, and always will be "No."

Good Lord.  It is not always No...payment via government credit card by example...but I will let you be okay with it. Sunsriders boss will surely appreciate you!

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1 hour ago, C Culham said:

Yes.  More than willing to consider otherwise with authoritative reference

A follow up question:  Do you believe that the recertification requirements in FAR 52.219-28 apply only to multiple award IDIQ contracts?

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Payment of an order under an indefinite-delivery contract by Government purchase card does not require documenting complete reps and certs for that order -- it simply requires verification that the contractor is registered in SAM.  See FAR 4.1103(a)(3).

There is a difference between (1) verifying that a contractor is registered in SAM; and (2) documenting reps and certs for each and every order under an indefinite-delivery contract. 

In this thread, we're only talking (2) documenting reps and certs for each and every order under an indefinite-delivery contract.

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5 hours ago, napolik said:

In your organization, are/were you required to get the SBA specialist's concurrence before taking a contract action?

No.  We sometimes have to involve our agency SADBUS, but our SADBUS manages any desired or needed interactions with SBA specialists.  I know our SADBUS sometimes seeks SBA interaction on some parent contract acquisitions, but I have never heard of SBA interaction on an order.  Even so, for an order, the extent of SADBUS participation was only to help guide whether the order opportunity could be set-aside within the multiple-award IDIQ contracts -- it never has been to re-document the complete reps and certs.

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3 hours ago, Retreadfed said:

Carl, are you saying that the recertification requirements in 13 CFR 121.404 only apply to multiple award IDIQ contracts?

Carl is the 13 CFR expert, and I won't argue what 13 CFR does or does not say.

However, the FAR (48 CFR) does not limit re-certification of small business status to multiple-award contracts.  The prescribing language for FAR 52.219-28, Post-Award Small Business Program Representation, is found at FAR 19.309(c).  This text requires the -28 clause in all "contracts exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas."  And it seems to me that GAO case law allows for contracting officers to require re-certification in connection with orders even though the -28 clause does not. 

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47 minutes ago, Retreadfed said:

A follow up question:  Do you believe that the recertification requirements in FAR 52.219-28 apply only to multiple award IDIQ contracts?

Why are you going here?  I have already expressed my view on this clause within the context of this thread.  

 

So let's get back to 13 CFR 121.

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35 minutes ago, ji20874 said:

Payment of an order under an indefinite-delivery contract by Government purchase card does not require documenting complete reps and certs for that order -- it simply requires verification that the contractor is registered in SAM.  See FAR 4.1103(a)(3).

There is a difference between (1) verifying that a contractor is registered in SAM; and (2) documenting reps and certs for each and every order under an indefinite-delivery contract. 

In this thread, we're only talking (2) documenting reps and certs for each and every order under an indefinite-delivery contract.

So in the context of what I will term good CO practice you are okay with a CO for a ID contract where credit card is used for payment not documenting their verification that SAM data is current and trust that they did verify?

I am only okay with verify and document.

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16 minutes ago, C Culham said:

Why are you going here?  I have already expressed my view on this clause within the context of this thread. 

Because 52.219-28 is the FAR implementation of 13 CFR 121.404(g).  As ji, noted this clause is not limited to multiple award contracts.  Further, its scope is intended to be as extensive as the SBA rules.

In regard to 13 CFR 121.404(g), note that it requires recertification when an SB concern is acquired or merged with another concern.  The Federal Register notice on the promulgation of this rule stated "this rule will require re-certification when a small business concern becomes other than small due to acquisition or merger, such as when the contractor is acquired and operated as a subsidiary of a large business or is merged with a large business. This particular rule will apply to all contracts, not just long-term contracts."  Thus, recertification in these circumstances is not limited to multiple award IDIQ contracts.

The SBA rules also require recertification of size status for long term contracts.  Specifically, it states "For the purposes of contracts (including Multiple Award Contracts) with durations of more than five years (including options), a contracting officer must request that a business concern recertify its small business size status."  Thus, it is clear that this requirement goes beyond multiple award contracts.

 

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1 hour ago, C Culham said:

So in the context of what I will term good CO practice you are okay with a CO for a ID contract where credit card is used for payment not documenting their verification that SAM data is current and trust that they did verify?

I am only okay with verify and document. 

I agree with FAR 4.1103(a)(3) that the order contracting officer should verify that the contractor is registered in SAM when payment will be made by Government purchase card for an order under an indefinite-delivery contract -- that's good CO practice -- the purpose of this is to make sure the GPC payment goes through.

However, it is not necessary for the order contracting officer to examine the complete reps and certs documentation, or to include the complete reps and certs documentation in file, for an order under an indefinite-delivery contract -- that's unnecessary CO practice.  Besides, the contractor only has to update the reps and certs once a year, not with every order -- and if there's any enforcement to be done, that's a matter for the parent contract contracting officer, not the order contracting officer.

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