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An award is being contemplated to a vendor on a service contract who has otherwise been determined as responsive and responsible. A competitor advised the C/O the selected awardee does not have the RFP assigned NAICS code as part of their CCR and SBA (Dynamic Small Business Search) records.

Can an award be made to the selected vendor? I checked FAR but cannot find a reference that will answer this question. Any help is appreciated.

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Guest carl r culham

buddyandme - I do not believe the issue is with regard to CCR or DUNS registration. It is more related to ORCA and reps and certs, annual or otherwise. See FAR 52.204-8 Annual Representations and Certifications and FAR Part 4.12. Of course one might want to refer to agency specific regulation or policy but again I believe it still goes to ORCA.

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I suspect we need more info: You mention small business. Is this competitive 8(a)? Sole source 8(a)? Full and open?

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I suspect we need more info: You mention small business. Is this competitive 8(a)? Sole source 8(a)? Full and open?

This is a competitive SB Set-aside. I'm fairly certain this falls under the preview of SBA and is not addressed in FAR. It may fall under the Reps and Certs, Section K area. I don't believe that a contractor who does not have a NAICS codes listed on their CCR is a valid reason for not making an award but wanted to ask the question anyway.

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Doesn't the vendor self-certify as to which NAICS codes they are doing business under (or want to)? And couldn't they just update their CCR to reflect the new NAICS code?

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Yes, and I'm sure Contractors are changing their NAICS codes all the time to fit the requirements they are bidding on. I suppose this is not a reason for not awarding a contract. That is unless another contractor challenges their size standard as it applies to the NAICS they used and, this of course could delay the award.

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One problem with CCR is contractors must try and figure out all the NAICS codes that might be applicable to them. That is difficult especially since the government buying agencies assign them to the procurement. Often agencies literally make a "stretch" in assigning the NAICS codes trying to get a greater pool of responders than the most logical NAICS might produce.

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This is very true; assigning the most correct NAICS is not always a simple process especially when the acquisition is a service. As an observation, I have also noted CO's that assign NAICS codes, not in an attempt to get a greater pool of responders, but to the contrary, to zero in on a small pool of responders in order to limit competition to a select few contractors.

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Please see FAR 4.1202 as it talks about Reps and Certs. Also, you may want to read up on the recent memorandum that came out regarding - Correctly Identifying Size Status of Contractors, July 21, 2010. ORCA is the official authoritative source for the vendor's certifications regarding size at contract award.

The issue of awarding a contract to a contractor who does not have the propper NAICS code assigned is a very sensitive subject amongst contractors - which leads to a substantiated protest from agencies/ other contractors. Go through the GAO ruling regarding proper identification of business size standards upon contract award -- you will see a lot of protest that were sustained due to discrediting this pertinent information.

Remember: the purpose of the NAICS code is to identify businesses whether they are small or large, among other factors, and the FAR states that "Reps and Certs MUST be completed before award of contract" - KEY WORDS BEFORE AWARD OF CONTACT. So even though the contractor has submitted their proposal, there is still time for them to make due and ensure they have the proper size representations before the award.

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The referenced Memo is a very good resource, thanks!

I attempted to locate GAO rulings on this subject as stated in your reply, "proper identification of business size standards upon contract award" but did find a ruling for the referenced subject. Would you please provide me with the syntax you used for the GAO search?

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The referenced Memo is a very good resource, thanks!

I attempted to locate GAO rulings on this subject as stated in your reply, "proper identification of business size standards upon contract award" but did find a ruling for the referenced subject. Would you please provide me with the syntax you used for the GAO search?

Here are some links to issues relating to NAICS code:

http://www.gao.gov/decisions/bidpro/298730.pdf

http://www.gao.gov/new.items/d03704t.pdf

http://www.gao.gov/decisions/bidpro/402387.htm

http://www.sba.gov/aboutsba/sbaprograms/oh...es/SIZ-5131.pdf

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ipod 24 bascially makes the point...if its a small business the NAICS code must be in the solicitation , my experience thats if not stated inthe soliciation (if its a setasise) that may be grounds for protest... I recently experienced this situation... not a protest but I was informed the NAICS must be in the soliciation from my small business office if its a setaside or awarded to a small business in general...

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ipod 24 bascially makes the point...if its a small business the NAICS code must be in the solicitation , my experience thats if not stated inthe soliciation (if its a setasise) that may be grounds for protest... I recently experienced this situation... not a protest but I was informed the NAICS must be in the soliciation from my small business office if its a setaside or awarded to a small business in general...

I'm not sure that NAICS codes are limited to set-aside solicitations. See particularly FAR 19.303(a) - "The contracting officer shall determine the appropriate NAICS code and related small business size standard and include them in solicitations above the micro-purchase threshold."

Don't you read this to require the NAICS code to be included in all solicitations?

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I'm not sure that NAICS codes are limited to set-aside solicitations. See particularly FAR 19.303(a) - "The contracting officer shall determine the appropriate NAICS code and related small business size standard and include them in solicitations above the micro-purchase threshold."

They're not limited to set-asides. FAR 52.219-1 is required in solicitations exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas. Paragraph (a) of the provision states:

(a)(1) The North American Industry Classification System (NAICS) code for this acquisition is ________________ [insert NAICS code].

(2) The small business size standard is _____________ [insert size standard].

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They're not limited to set-asides. FAR 52.219-1 is required in solicitations exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas. Paragraph (a) of the provision states:

(a)(1) The North American Industry Classification System (NAICS) code for this acquisition is ________________ [insert NAICS code].

(2) The small business size standard is _____________ [insert size standard].

Yes. Otherwise how do you know whether the award is with a small or large business since the standards varies by NAICS?

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An award is being contemplated to a vendor on a service contract who has otherwise been determined as responsive and responsible. A competitor advised the C/O the selected awardee does not have the RFP assigned NAICS code as part of their CCR and SBA (Dynamic Small Business Search) records.

Can an award be made to the selected vendor? I checked FAR but cannot find a reference that will answer this question. Any help is appreciated.

MAN!

Most folks in this community (WIFCON) work in Government. Most of the replies above indicate that the responders didn't even understand the question.

Just to learn more about the Socio-economic programs in the FAR, I recommend that everyone who works for the Government in contracting get their own personal DUNS number, register in CCR, register in WAWF, and complete Reps & Certs in ORCA.

The simple answer to your question is ABSOLUTELY YES, the Agency can award a contract to this bidder. Why the heck not ?

This is not addressed in the FAR because it doesn't belong in the FAR. Any good CO ought to hang up on a competitor who calls to complain that the successful bidder hasn't joined the local Chamber of Commerce, or hasn't put an ad in the yellow pages, or hasn't included in his CCR profile the fact that he might perform services in that particular NAICS Code. Those details are immaterial.

I've seen a couple of Solicitations that say the bidder must have the NAICS Code for that acquisition in their CCR profile, or they are not eligible for award. Do you know why the Agency wants to require that the specific NAICS code for their acquisition be listed in their CCR profile ?

Of course you do. It's so that when the Government CS looks at the bidder's ORCA page, it will state explicitly if the bidder is small or not for that particular NAICS.

I look forward with relish the first time I find such a requirement in something I want to bid on. I have this federal agency that works for me, for all contractors, and for the general public, to rein in the excesses of federal contracting personnel. Headed up by Gene Dodaro, this organization lives for the chance to chasten contracting officers who abuse their authority and discretion. When I find that requirement in something I want to bid on, I will ask Gene and his Procurement Law Control Group to spank that CO, and instruct all other federal CO's to knock it off. That's called a GAO Decision.

That is a specious reason for finding a bidder not to be responsible.

An Agency proposes to exclude a bidder because they don't list a particular NAICS code in their CCR profile. What does that have to do with technical capability, past performance, price, anything relevant ?

Such a move would be unnecessarily restrictive of competition. It doesn't pertain to the Government's actual needs; this is strictly a matter of lazy folks in the contracting office. Whining that "I'm too lazy to do my job" is not a very solid basis for anything, and sure wouldn't withstand examination by the GAO.

Where does the problem arise ?

CCR only lets a company list a small number of codes (I think the limit is 15.)

But if the company has listed a NAICS code with the exact same size standard as the standard for the NAICS code of the instant acquisition, how hard is it to check ?

And whatever is or isn't listed in DSBS is apropos to absolutely nothing. That is strictly a networking tool, so that folks can find out what SB's have what capabilities.

.

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Brian,

Subject to your "fluffy" words. Are you stating that (1) a requirement can be AWARDED to a contractor that does not have the appropriate NAICS code - again AWARDED to a contractor? (2) That the size standard is immaterial to the overall acquisition requirement as it is stated in a solicitation?

Please address!

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Brian,

... Are you stating that

(1) a requirement can be AWARDED to a contractor that does not have the appropriate NAICS code - again AWARDED to a contractor?

(2) That the size standard is immaterial to the overall acquisition requirement as it is stated in a solicitation?

Please address!

Sometimes I get so full of myself I ramble on too long, and even I can't sort out what I wrote. Good questions.

(1) yes.

NAICS Codes in ORCA are pulled automatically from DSBS. ORCA also pulls data that SB's entered in DSBS for # of employees and average receipts. ORCA then calculates if a business is small in a particular NAICS segment based on this self-reported data. ** SEE NOTE BELOW FOR ESB's.

Having a particular NAICS code in my DSBS profile has nothing to do with my qualifications, experience or past performance in that particular industry niche. It really just means that I'm interested in seeing what work is getting solicited in that field.

Maybe a buyer wants to make sure she doesn't get no bids to something she is thinking about setting aside, so she goes to DSBS to see what small businesses might submit a bid, and searches by NAICS Code. C.f., FAR 19.202-2.

Maybe her market research consists of calling the SB's returned by such a search to assess whether or not the requirements of 19.502-2(a) or (B) are met.

Any SB contractor can list any NAICS code they want in their DSBS profile. It proves NOTHING.

(2) no.

If a requirement is set-aside, SBSA, SDVOSB, HUBZone, WOSB, GLBTOSB, whatever, the size standard is how contractors and the government know if the contractors qualify as small for that particular acquisition.

But even if the acquisition is unrestricted, the size standard helps folks on both sides understand what informed the Agency's acquisition strategy. It ensures the Government folks are reminded of how restrictive (or not) a set-aside would be, and it reminds SB's where to target their marketing outreach.

.

** NOTE: ORCS data on Emerging Small Businesses - I don't know what is wrong with them, but I show up as not ESB on NAICS codes where I think I should be considered ESB. But since I never see anything ESB set-aside (I think that only applies to the Comp Demo Program, if that even exists anymore.) My advice: if doing an ESB-reserved acquisition, don't trust what OECA says. Call some SB's.

.

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.

IPOD,

suppose you have an LPTA acquisition, and your Best Value offeror/quoter doesn't have the NAICS Code on the SF-1449 listed on their ORCA page. What should you do ?

There are only about 20 different size standards in total, about 7-8 for # of employees, about 10 for average receipts $. Identify the size standard for your requirement. Look at a current table of size standards

http://www.sba.gov/idc/groups/public/docum...td_tablepdf.pdf

and find a couple of other NAICS Codes with the same standard.

Then go back to ORCA and see if that bidder in line for award is small for one of those codes.

If that takes you more than 10 minutes, go to my profile, get my email address, and ask me to look it up. Since I say its so simple, make me put up or shut up.

.

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Guest Vern Edwards

The original question:

A competitor advised the C/O the selected awardee does not have the RFP assigned NAICS code as part of their CCR and SBA (Dynamic Small Business Search) records.

Can an award be made to the selected vendor? I checked FAR but cannot find a reference that will answer this question. Any help is appreciated.

Read the provision/clause at FAR 52.204-7, Central Contractor Registration (APR 2008) and FAR 4.11. Where does either require that a firm be registered under a specific NAICS code in order to be eligible for a contract award? As I read it, the provision/clause requires only that a firm be registered in CCR, not that it be registered under the same NAICS code that applies to the acquisition.

I searched for GAO decisions in which both NAICS and CCR are mentioned and found only 3, none of which said anything about the effect of NAICS codes in a CCR registration on eligibility.

And what does the SBA Dynamic Small Business Search have to do with a contractor's eligibility?

Of course, in order to be a small business for a procurement a firm must be small under the applicable size standard, which is NAICS related. But a firm can be small under the applicable NAICS code without being registered under that NAICS in CCR. If you think this is wrong, prove it. Show us something.

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Guest carl r culham

While many of the posts are trying to say the same thing I might as well chime in and add a little more detail to my earlier post in this thread because while other posts are close to providing the right answer they are by my read misleading as a firm must certify to a specific NAICS code. I do agree that CCR and SBA Small Dynamic Search have nothing to do with it as I have already noted.

So here are the details by my read?.

First either FAR 52.219-1 or FAR 52.204-8 is in the solicitation.

If FAR 52.219-1 is in the solicitation and not 52.204-8 then the NAICS and size standard is stated and the firm certifies to it. There is no issue with regard to their CCR, Small Dynamic profiles or ORCA as the solicitation response carries the appropriate certification.

If FAR 52.204-8 is the solicitation and the firm does not have the NAICS code in CCR or Small Dynamic Search profile again it is not an issue but the NAICS must be in the firm?s ORCA profile. If it is not then pursuant to FAR 52.204-8 and the firms ORCA profile (which includes FAR 52.219-1) the firm must submit a separate reps and certs or update its ORCA profile with the NAICS. Not doing so would suggest that the firm is not responsive to the solicitation.

Could the oversight of the firm in not providing a appropriate update to ORCA or individual cert and rep be corrected prior to award, yes, but again without doing the so the firm might be determined as not responsible under a COC as it has not certified to the appropriate NAICS code.

Applicable wording of FAR 52.204-8 is in paragraph b(2) and (d). Applicable wording in a ORCA profile is found in the ORCA profile provision 52.219-1 and states at ?See Note*?

?*If you are responding to a Government solicitation for supplies or services under a NAICS code not listed in paragraph (B) of this certification, you must provide this certification directly to the Contracting Officer.?

A note here is that a firm when completing a ORCA profile can list as many NAICS codes as they wish but converse to brian?s thoughts just plugging in a bunch of codes to cover the 37 (by my count) different size standards does not cut it because again the firm must certify to the specific NAICS.

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Well, Carl, I guess there's always that option: read the regulation.

Thanks for doing my homework.

.

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All of this is good, but the question still comes up. There is somewhere a specific GAO ruling on this matter and i cannot find it, back from CCR days. But i did find this SBA ruling. Size Appeal of SoftConcept, Inc., SBA No. SIZ-5197 (2011). This does the job.

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What I've done in practice is when a situation arises where I have placed a NAICS and size standard in a solicitation and the potential awardee does not possess that NAICS in their ORCA, I first try to see if they have any NAICS in their ORCA that has the same size standard. If so, and they are showing as Small in that NAICS, then I properly assume they will be Small in my NAICS. If they don't have a NAICS in ORCA with the same size standard, I clarify with them what their appropriate revenue/employees are so that I can verify whether or not they are small.

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