Jump to content
The Wifcon Forums and Blogs
Sign in to follow this  
DCGOVLAW

2018 Amendment to 121.404(g) - retroactive?

Recommended Posts

Company A is small business who submitted proposal for IDIQ in late 2016 and was awarded contract on SB track in October 2018.  RFI issued for $100m task order in Sept. 2019 and company A certified as small in response so procurement set aside as there were 2 SBs.  Company A acquired by large business in December 2019. 

Quick question - is the May 2018 technical amendment to 121.404(g) that added the language "However, the following exceptions apply to this Paragraph (g):" applicable here?  In other words, is it applicable retroactively to an IDIQ proposal certifying Company A as small in 2016 such that they were required to recertify upon acquisition? 

There is nothing in the final rule at 83 FR 12849 that says it cannot be applied to certs made prior to May 2018.  If it is applicable, we don't have 2 SBs for this task order to be a set-aside as Company A would have to recertify as large.  Thanks in advance.   

Share this post


Link to post
Share on other sites

Yes, 2016 version does not have the words "to this Paragraph (g)".  The July 2013 52.219-28.  It is a 10 year contract (base plus options) so it is long-term. 

I am aware that the proposed rule from Nov. 2019 will eliminate this issue and require SBs to recertify on each new TO.  SBA 2018-0006  "SBA, believes, however, that there is a legitimate concern where a concern self-certifies as small for an unrestricted MAC and at some point later in time when the concern no longer qualifies as small the contracting officer seeks to award an order as a small business set-aside and the firm uses its self-certification as a small business for the underlying unrestricted MAC. …  To allow a firm's self-certification for the underlying MAC to control whether a firm is small at the time of an order years after the MAC was awarded does not make sense to SBA."

Our research indicates that for now Company A can still rely on their SB status at time of submission of the offer for the underlying MAC in 2016 unless the CO asks for a re-cert.  But when SBA 2018-0006 goes final that will no longer be the case.  Full section of new 121.404(a)(i)(A) posted below if you are interested. 

(A) Unrestricted Multiple Award Contracts. For an unrestricted Multiple Award Contract, if a business concern is small at the time of offer and contract-level recertification for the Multiple Award Contract, it is small for goaling purposes for each order issued against the contract, unless a contracting officer requests a size recertification for a specific order or Blanket Purchase Agreement. However, except for orders and Blanket Purchase Agreements issued under any Federal Supply Schedule contract, if an order or a Blanket Purchase Agreement under an unrestricted Multiple Award Contract is set-aside exclusively for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business), a concern must recertify its size status and qualify as a small business at the time it submits its initial offer, which includes price, for the particular order or Blanket Purchase Agreement.

Share this post


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

Our research indicates that for now Company A can still rely on their SB status at time of submission of the offer for the underlying MAC in 2016 unless the CO asks for a re-cert. 

I don't see how you get to this conclusion.  The 2013 version of 52.219-28 requires a recertification "(1) Within 30 days after execution of a novation agreement or within 30 days after modification of the contract to include this clause, if the novation agreement was executed prior to inclusion of this clause in the contract.(2) Within 30 days after a merger or acquisition that does not require a novation or within 30 days after modification of the contract to include this clause, if the merger or acquisition occurred prior to inclusion of this clause in the contract."  Thus, the contractor should have recertified its size after the December 2019 acquisition.  This is an automatic requirement and does not require the CO to ask for a re-cert.  Note that the re-cert is based on the size standard in effect when the re-cert takes place.

Share this post


Link to post
Share on other sites

Agreed they are required to recertify within 30 days.  Including unless the CO asks part in my sentence was in error.  Meant to say even if the CO asks. 

But, reading Analytic Strategies in conjunction with conservative reading of Enhanced Vision Sys., even if the recertify, they can still use the existing MAC status to bid the TOs but the agency can't count award against their SB goals. 

Share this post


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

if the recertify, they can still use the existing MAC status to bid the TOs but the agency can't count award against their SB goals. 

Agreed

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

×
×
  • Create New...