Jump to content
The Wifcon Forums and Blogs

Recommended Posts

My company is an SBA-registered small business. Would someone please help me understand the applicability of SBA Final Rule RIN 3245-AG94? The U.S. Army Network Enterprise Technology Command (NETCOM) has issued solicitation #W91RUS-21-R-0001 a.k.a. Information Management Communications Services (IMCS IV). Section L of the amended solicitation states: “A Joint Venture MUST have the required facility clearance in the name in which it is formed and in the Cage Code in which it is registered. The Facility Clearance is a material requirement of this solicitation.” This requirement is in direct contradiction to SBA Final Rule RIN 3245-AG94, which reads 13 CFR 121.103(h)(4) has been modified to read "A joint venture may be awarded a contract requiring a facility security clearance where either the joint venture itself or the individual partner(s) to the joint venture… has (have) a facility security clearance." The Government has answered a question concerning this point as follows: “This procurement is following 32 CFR Part 2004 and DoD implementation guidance, to the extent it differs from the SBA regulations at 13 CFR 121.103 referenced in this question.” The referenced DoD implementation guidance is DODM 5105.21.

The IMCS IV solicitation is not a 8(a) set aside solicitation. My company is not an 8a SBA Mentor Protege program member. However, based on the Q&A, several of our competitors clearly are 8(a). Understanding how this will be resolved is important to understanding whether our small business should invest the time and money to bid IMCS IV.

I have two questions that apparently have not been adjudicated elsewhere:

  1. Does SBA Final Rule RIN 3245-AG94 have an effect on solicitations that are not 8(a) set asides?
  2. Does 32 CFR Part 2004 supersede 13 CFR 121.103 in this case?
Link to comment
Share on other sites

Have you called the Defense Security Service?

See https://www.afdw.af.mil/Portals/31/documents/Small-Business/SB_Guide_Facility_Clearance_Process_FINAL_LINKS.PDF?ver=2018-08-24-145011-637

Quote

Call the DSS Knowledge Center at 888-282- 7682 and select option #3 for all FCL-related questions or status updates on your submission.

Do yourself a favor and write a list of short and carefully worded questions before you call. Think about what information you want and be clear and direct in asking for it. 

Link to comment
Share on other sites

16 hours ago, Bill Elliott said:

Understanding how this will be resolved is important to understanding whether our small business should invest the time and money to bid IMCS IV.

Offers are due on March 26.  If you haven't already made the decision to bid, and aren't already fervently working to that end, well, maybe it is too late?

Regardless, the solicitation says what it says.  Are you planning to bid alone, or as part of a joint venture?  

If you object to the solicitation's terms, you may protest before the date set for receipt of offers.

Link to comment
Share on other sites

21 hours ago, Vern Edwards said:

Have you called the Defense Security Service?

See https://www.afdw.af.mil/Portals/31/documents/Small-Business/SB_Guide_Facility_Clearance_Process_FINAL_LINKS.PDF?ver=2018-08-24-145011-637

Do yourself a favor and write a list of short and carefully worded questions before you call. Think about what information you want and be clear and direct in asking for it. 

Thank you, will do.

Link to comment
Share on other sites

5 hours ago, ji20874 said:

Offers are due on March 26.  If you haven't already made the decision to bid, and aren't already fervently working to that end, well, maybe it is too late?

Regardless, the solicitation says what it says.  Are you planning to bid alone, or as part of a joint venture?  

If you object to the solicitation's terms, you may protest before the date set for receipt of offers.

That was cut and paste for the SBA rep, who is now seeking a legal opinion on this point. Would be nice to know what type of entity we'll (probably) bid as, hence the question.

Link to comment
Share on other sites

@Bill Elliott Bill, just some thoughts.

First, the best reference to the SBA Final Rule is 85 FR 66146, 66180, October 16, 2020, amending 13 CFR 121.103(h)(4), "Facility Security Clearances."

Second, here is what I suspect:

SBA changed its own rules with respect to facility clearances for joint ventures, but that might not cut any ice with DOD, which has its own rules. (I doubt that SBA can dictate to DOD when it comes to industrial security.) Even assuming that DOD is open to changing, it would first go through the Federal Register process of changing the rules in 32 CFR § 117.9, "Entity eligibility determination for access to classified information," paragraph (k), "Joint ventures."

It may be that since the SBA change happened just last October, DOD has not gotten around to considering whether to change its own rules. The Defense Security Service and the contracting officer will be bound by the existing DOD rules and couldn't care less about SBA's rules. In other words, the SBA change may not do anything for you.

This is all speculation on my part.

Link to comment
Share on other sites

On 3/12/2021 at 2:59 PM, Vern Edwards said:

@Bill Elliott Bill, just some thoughts.

First, the best reference to the SBA Final Rule is 85 FR 66146, 66180, October 16, 2020, amending 13 CFR 121.103(h)(4), "Facility Security Clearances."

Second, here is what I suspect:

SBA changed its own rules with respect to facility clearances for joint ventures, but that might not cut any ice with DOD, which has its own rules. (I doubt that SBA can dictate to DOD when it comes to industrial security.) Even assuming that DOD is open to changing, it would first go through the Federal Register process of changing the rules in 32 CFR § 117.9, "Entity eligibility determination for access to classified information," paragraph (k), "Joint ventures."

It may be that since the SBA change happened just last October, DOD has not gotten around to considering whether to change its own rules. The Defense Security Service and the contracting officer will be bound by the existing DOD rules and couldn't care less about SBA's rules. In other words, the SBA change may not do anything for you.

This is all speculation on my part.

While it is true that the DoD will ignore the SBA regulations, in a protest the GAO folks often will go to the SBA regulations if they are from recent laws that have been enacted and use that to make their ruling.  That happen the most in regulations that are related to FAR 19 but I have seen it in the past where they ruled on other FAR chapters that the CFR regulations were based on newer laws and should have been used in lieu of the older regulation which no longer reflected the law.  

Basically, the DoD position is not ironclad in a protest and can be overruled by GAO or another court.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...