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SBA is issuing partial COCs (partial financial capability).  For example, they will provide a range (e.g., $1M - $1.5M) for the partial financing.  SBA will issue the partial COC on behalf of the contractor and cites FAR 19.604-2(b); CO shall award the K to the concern in question if the SBA issues a COC. 

Has anyone had a procurement that SBA issued a partial COC?

 

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I have never heard of a partial as well. 

I am confused by the FAR citation as no such section of the FAR exists.   

Reaching further into the proposition of a partial that you have expressed it seems the whole matter of SBA's issuance of a COC is in question.   Just a reminder that if the agency has strong differences with SBA on the issuance of a COC the matter can be raised to higher levels.  I am noting this because an SBA Area Office may be attempting to roll their own on how a COC is to or not to be issued.  One might consider a challenge to see what the basis for a partial issuance is and in the end possibly even appeal.

A starting point for considering what you should do is move away from the FAR and take a look at 13 CFR 125.5.

 

 

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Correct cite is FAR 19.602-4(b).

13 C.F.R. 125.5(h) and (i) are applicable due to the value of the award.  I can accept the decision (h)(1), ask SBA to suspend the case (h)(2), or appeal the area director's decision to issue the COC (i).  

Just wanted to know if I'm missing something.  I'll ask SBA for an explanation and the process on how to monitor a partial COC, etc.

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Maybe you should push back on your SBA office first.  A COC is all or nothing -- either the contractor IS or IS NOT (SBA selects one) responsible for that particular contract.

Is the partial an attempt at a blanket COC, valid for any COC submissions within that range?  That might be unacceptable to me as a contracting officer.  If I submit a COC to SBA, I will want an unambiguous and unqualified statement of responsibility of that prospective contractor for that contract.  But that's me.

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Just now, ji20874 said:

Maybe you should push back on your SBA office first.  A COC is all or nothing -- either the contractor IS or IS NOT (SBA selects one) responsible for that particular contract.

Is the partial an attempt at a blanket COC, valid for any COC submissions within that range?  That might be unacceptable to me as a contracting officer.  If I submit a COC to SBA, I will want an unambiguous and unqualified statement of responsibility of that prospective contractor for that contract.  But that's me.

I was typing essentially the same response.  I would really push back at the Area Office that issued the COC as the first step.   Guessing here but I suspect some new influencer that really does not have a grasp on the COC process.

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I checked with the COC Specialist in my Area and here is what he said:

   Chapter 4 of the COC SOP allows a partial award if the contract allows for award less than the full amount.

    9. Can the COC Specialist or FS Recommend a Partial Award of a Contract?

   a. Yes, both the COC Specialist and FS can recommend a partial award provided:

       (1) The solicitation has a provision which allows for the contract award method; and

       (2) The SB has the capability to perform at the anticipated reduced level.

    12 CFR125.5(f)(3) states

   (3) Where a contracting officer finds a concern to be non-responsible for reasons of financial capacity on an indefinite delivery or indefinite quantity task or delivery order        contract, the Area Director will consider the firm's maximum financial capacity. If the Area Director issues a COC, it will be for a specific amount that is the limit of the firm's      financial capacity for that contract. The contracting officer may subsequently determine to exceed the amount, but cannot deny the firm award of an order or contract on        financial grounds if the firm has not reached the financial maximum the Area Director identified in the COC letter.

He said he never ran into this particular situation but that it was most likely to occur in ID/IQ contracts where the potential financial ability of a small business contractor might limit the number of awards the company could handle at a time.  It might also affect Multiple Award Task Order (MATOC) contracts where a small business contractor might be found to be capable up to a specific dollar amount and that the contractor is not certified by the COC for DO/TOs above that amount.  

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Thank you, DWGerald1102.

The SBA Area deputy director's response was basically the same as yours.  

It's an ID/IQ K, so the limit's applicable at the task order level.  According to the deputy director, if the limit was $1M, the yearly limit for task orders is $1M. 

Thanks for all who weighed in on this issue.

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@Weno2and @DWGerard1102

A minor distraction to help me and of course may extend the discussion.   

First noting that the FAR does not contain the 13 CFR 125.5(f) language one could argue  that SBA's position has no standing with regard to the determination of the a partial COC?  I say this noting the discussion thread in the Polls area of the Forum regarding FAR versus SBA regulation.

Further it seems to me that SBA's view creates a further conflict between what the FAR allows and what SBA is doing for a specific contract action that is not easily solved.  By example I have a solicitation for a proposed IDIQ contract (standalone or multiple award you choose) that carries a ceiling maximum of $5million, order maximum of $1.5 million and a minimum guarantee of $25K.  A SB is in line for award but the SBA issues a "partial" COC for $1million.  Noting that the mission has specifically called for setting of the order maximum and contract maximum based on historic needs and that under a IDIQ a contractor is required through the governments unilateral right to order up to the maximum order and/or the maximum ceiling  it would seem the government would not award to the SB in good conscience as they have no capability to perform the contract.  Further it would seem that the government could not change the order maximum and contract maximum without amending the solicitation but in doing so would hamstring the program area on their needs.

Bottomline - SBA's intent in their regulation is understood but is it really enforceable and to an extent does not make sense in the context of an IDIQ.   What do you think?

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If I were trying to award a single-award IDIQ contract with a $5 Million ceiling and order maximum of $1.5 Million, and the SBA issued a "partial" COC for $1 Million for the apparently successful offeror, I would say that SBA did not affirmatively determine the offeror to be responsible for my contract, and I would not award to that offeror.

Same for multiple-award contracts.

If the offeror is not responsible for the proposed contract that is on the table, and the solicitation did not contemplate awards for lesser quantities/amounts, then award cannot be made to that offeror.

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Just now, ji20874 said:

If I were trying to award a single-award IDIQ contract with a $5 Million ceiling and order maximum of $1.5 Million, and the SBA issued a "partial" COC for $1 Million for the apparently successful offeror, I would say that SBA did not affirmatively determine the offeror to be responsible for my contract, and I would not award to that offeror.

Same for multiple-award contracts.

If the offeror is not responsible for the proposed contract that is on the table, and the solicitation did not contemplate awards for lesser quantities/amounts, then award cannot be made to that offeror.

I agree

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My opinion is SBA shouldn't have used the words "Partial COC".

SBA determined the contractor has adequate financial resources for annual task order(s) not to exceed $1M.  

SBA stated: "Based on these facts the firm had adequate financial resources for annual task order(s) not to exceed $1.0 million.  However, a contracting officer is always free to exceed the financial ceiling established by SBA. 13 CFR 125.5(f)(3e).  Of course, there is more financial risk beyond what was stated by SBA.   Given SBA's determination, the firm cannot be denied the instant contract based on financial condition."

Options are to have SBA to suspend the case according to 13 CFR § 125.5(h)(2) or appeal their determination according to 13 CFR § 125.5(i). 

 

 

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C Culham  the SBA does not care if the FAR does or does not support its rules, the COC process is theirs and they use 13 CFR and not the FAR for their regulations.  I have brought up that problem (Agencies use the FAR and the SBA ignores the FAR most of the time), but have not had a lot of success.  At least once I have had a FAR regulation in hand but the SBA leadership would not even look at that cite, and relied purely on an attorneys opinion to make a rule (not a regulation, and not even written down at the time), that was contrary to the FAR regulation.

In this case the Contracting Officer should work with their legal and leadership staff and decide what to do; award or not award to the SB concern.  The SB affected by the partial COC should either live with that ruling or appeal it on the grounds that it prevents them from fully participating in the contracted work.  Not sure how that would turn out; it appears that the ruling is pretty much anti-small business, but the SBA has taken that position before on other rulings.

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41 minutes ago, DWGerard1102 said:

In this case the Contracting Officer should work with their legal and leadership staff and decide what to do; award or not award to the SB concern. 

Right.

It appears the SBA is making a mockery of its own COC process.  In this case, it seems the SBA is saying the firm is not responsible for the contract, but is responsible for an order under $1 Million up to a cumulative amount of $1 Million in task orders in a year.  Here is SBA's error:  Responsibility is determined at the contract level, not at the order level.

The original poster hasn't said whether this is a single-award or multiple-award situation.

I support not making the award because SBA did not issue a Certificate of Competency stating that the offeror "is responsible (with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting) for the purpose of receiving and performing a specific Government contract" (FAR 19.601(a)).  If the alleged COC failed in this, then I don't care about any other text in the alleged COC letter.  To me, SBA has not issued a COC as contemplated by FAR 19.601(a).  To me, there is nothing to appeal.  But as I said, that's me. 

If this is a multiple-award situation, and there are plenty of other contractors to carry the load over this firm's limit, I might consider including the company in the award pool, but my initial inclination would be not to -- I would not want future arguments about FAR 16.505 fair opportunity requirement regarding "each awardee" and "all contractors" and "all awardees" and "every awardee" except for this one.  Nothing in FAR 16.505(b)(2), Exceptions to the Fair Opportunity Process, allows me to skip over a a contractor in a case such as this.

So this contracting officer and his or her management have to make a decision.

Weno2, come back and let us know your office's decision.

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