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ContractGuy

Small Business Multiple Award IDIQ - orders and rerepresentation

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Hello, 

I have a multiple award IDIQ that was solicited as a total small business set aside. Award was made to three small businesses to make up the multiple award “pool”. One of the vendors was bought out by a large business making them now other than small. I have seen similar wifcon discussions but none seem to answer my issue (particularly a thread from 2018, which came extremely close). Can the now large business still compete on the IDIQ orders? I'm aware of 13 CFR 121.404 but maybe unclear on its application.  Some particulars of note: 

-10 year IDIQ; 3 year base period, 3 year option period, 4 year option period

-no order, to date, has included 52.219-13, Notice of Set-Aside of Orders

-the IDIQ does not stipulate that all orders will be set-aside for small businesses

-all orders are issued via 16.505 (without any similarities to 15)

-If I were to choose to include 52.219-13 on a order solicitation, would that inhibit me from soliciting without it included for future orders?  I'd like to have the ability to choose to use it sometimes and choose to not use it in other circumstances with the intent of allowing the pool to remain with 3 businesses.

-If I were to choose to include that provision on an order solicitation, presumably the one now-large would at that point be required to rerepresent as a large...Would that force them to be a large for a future order even if i were to NOT include the 52.219-13 on a future order? 

-FAR 19.301-2 states that it does not change the terms and conditions of the contract, but i'm also wondering how that fits in with the term of the IDIQ being  a total set-aside for SBs at time of issuance of the IDIQ.  I guess the question on this point is, if they rerepresent as a large at any point in a total small business set-aside IDIQ, do I have to remove them from the vehicle or can they stay on the IDIQ with the catch that the agency can no longer get SB credit? does 13 CFR 121.404(g)(4) allow me to keep them in the pool?

-If I receive a recertification from the now-large prior to issuance of an order, and I choose to not include the 52.219-13 clause, can they still compete for the order? ref 13 CFR 121.404(g)(2). Or does the recertification as other than small immediately preclude them from future orders? 13 CFR 121.404(g)(4) seems to allow me to pick and choose when to utilize the 52.219-13 and set some orders aside and let other orders be for any one in the pool (including a potentially now-large).

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Contractguy, is FAR 52.219-28 in the contracts?  If so, why has the concern that was acquired provided the recertification required by that clause?

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the clause is in the IDIQ contracts. It has not been included in any of the orders. The firm has yet to provide notice of their acquisition, but I suspect I'll receive one within 30 days after the deal finalized. Doesn't 13 CFR 121.404(g)(2)(i) & (ii) force them to do so under an IDIQ?

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2 hours ago, ContractGuy said:

the clause is in the IDIQ contracts. It has not been included in any of the orders.

If 52.216-18 is in the IDIQ, the clause has been included in every order issued under the IDIQ.

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21 hours ago, ContractGuy said:

10 year IDIQ; 3 year base period, 3 year option period, 4 year option period

You have a 'Long-Term Contract' which means the company does not have to re-represent for a few years.  As I understand it, until they do re-represent, you carry on treating them like a small business for the purposes of ordering and reporting.  No my area of expertise though.

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2 hours ago, General.Zhukov said:

You have a 'Long-Term Contract' which means the company does not have to re-represent for a few years.  As I understand it, until they do re-represent, you carry on treating them like a small business for the purposes of ordering and reporting.  No my area of expertise though.

an acquistion of a small requires recertification within 30 days of the finalization of the deal per 13 CFR 121.404(g)(1) or (2) depending on the circumstances. Still seeking community input on the matter of whether they can remain in an IDIQ (as a large) that was initially set-aside as a Total SBSA and the minutia related to my questions/points.  The questions/points are intentionally pointed so as to get community feedback on my potential COAs.

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You may have two separate issues, eligibility to compete in a set-aside procurement and post-award compliance with the set-aside clause.

Key question:  Does the contract contain the clause at FAR 52.219-28?  

YES     NO

If YES, has the contractor complied with the re-certification requirement described in para. (b) of the clause?

YES     NO

If the answers are YES and YES, then the contractor may not qualify for small business set-asides and may be ineligible for consideration for future task order opportunities.  You will want to make sure.

If the answers are YES and NO, in that order, then the contractor may be in breach of its obligations under para. (b) of the clause at FAR 52.219-28.  You might want to consider a cure notice and possible termination for default or cause.

If the answer to the first question is NO, well, you might have a real problem — you may need to consider modifying the contract to include the clause at FAR 52.219-28.

Anyway, once you figure out whether the contractor is eligible to participate in a set-aside procurement, whomever is the winner will have to comply with the clause at FAR 52.219-6, right?  Since the original competition for the parent IDIQ contracts was a set-aside, the parent contracts likely include the clause at FAR 52.219-6 — this means the clause applies to the orders whether the orders say so or not.  You didn’t say whether the parent contracts are for supplies or services, so all of the clause may or may not apply, but certainly part of it does.

 

 

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On 3/12/2020 at 5:19 PM, ContractGuy said:

One of the vendors was bought out by a large business making them now other than small.

This triggers the need for a rerepresentation in accordance with FAR 52.219-28(b)(2) if a novation was not required or (b)(1) if a novation was required.

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On 3/14/2020 at 11:01 AM, ji20874 said:

You may have two separate issues, eligibility to compete in a set-aside procurement and post-award compliance with the set-aside clause.

Key question:  Does the contract contain the clause at FAR 52.219-28?  

YES     NO

If YES, has the contractor complied with the re-certification requirement described in para. (b) of the clause?

YES     NO

If the answers are YES and YES, then the contractor may not qualify for small business set-asides and may be ineligible for consideration for future task order opportunities.  You will want to make sure.

If the answers are YES and NO, in that order, then the contractor may be in breach of its obligations under para. (b) of the clause at FAR 52.219-28.  You might want to consider a cure notice and possible termination for default or cause.

If the answer to the first question is NO, well, you might have a real problem — you may need to consider modifying the contract to include the clause at FAR 52.219-28.

Anyway, once you figure out whether the contractor is eligible to participate in a set-aside procurement, whomever is the winner will have to comply with the clause at FAR 52.219-6, right?  Since the original competition for the parent IDIQ contracts was a set-aside, the parent contracts likely include the clause at FAR 52.219-6 — this means the clause applies to the orders whether the orders say so or not.  You didn’t say whether the parent contracts are for supplies or services, so all of the clause may or may not apply, but certainly part of it does.

 

 

it's a YES and YES, but 13 CFR 121.404(g)(4) (see below) seems to allude to their ability to remain in the pool but any awards going forward wouldn’t be allowed to count towards agency SB goals.  I'm not certain 52.219-6 would have trumping effect over orders issued in the pool where there's explicit CFR explaining circumstances related to a SBSA multiple award IDIQ that seem to counter 52.219-6. 

“…However, if the Multiple Award Contract was set-aside for small businesses, partially set-aside for small businesses, or reserved for small business, then in the case of a contract novation, or merger or acquisition where no novation is required, where the resulting contractor is now other than small, the agency cannot count any new orders issued pursuant to the contract, from that point forward, towards its small business goals.” – 13 CFR 121.404(g)(4)

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