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Vendor Eligibility & Small Business Determination


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#1 jbardwell

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Posted 19 October 2011 - 02:33 PM

Two questions I'd like the expects to comment on if you please.....
1. If a vendor was classified as a small business when it submitted a proposal but turned large business before they were offered the award, are they eligible to still receive the award as a small business? Are they recognized as a small business for award purposes?
2. If the answer to 1 above is the large vendor may receive award because it's size status was small at the time it proposed, can the agency receive small business award credits given the vendor has now graduated to a large business at time of award?

#2 napolik

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Posted 19 October 2011 - 03:07 PM

Two questions I'd like the expects to comment on if you please.....
1. If a vendor was classified as a small business when it submitted a proposal but turned large business before they were offered the award, are they eligible to still receive the award as a small business? Are they recognized as a small business for award purposes?
2. If the answer to 1 above is the large vendor may receive award because it's size status was small at the time it proposed, can the agency receive small business award credits given the vendor has now graduated to a large business at time of award?

The answer to one is "Yes". Based upon 13CFR ? 121.404:

When does SBA determine the size status of a business concern?

(a) SBA determines the size status of a concern, including its affiliates, as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation) which includes price.


The answer to 2 is "Yes". The coding of the contractor's size in FPDS must be consistent with the SBA's size status determination. If SBA determines the firm to be small " ... as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer ...", then the FPDS coding must identify the contractor as small.

#3 C Culham

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Posted 19 October 2011 - 03:20 PM

jbardwell - I suggest a full read of 13 CFR 121.404 as it applies to your specific situation. While napolik's response would be generally applicable the time of determination of a firm's size status does change with regard to some specific procurement situations.

Here is the link to the CFR....

http://edocket.acces...3cfr121.404.htm

#4 Retreadfed

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Posted 19 October 2011 - 06:07 PM

jbardwell - I suggest a full read of 13 CFR 121.404 as it applies to your specific situation. While napolik's response would be generally applicable the time of determination of a firm's size status does change with regard to some specific procurement situations.

Here is the link to the CFR....

http://edocket.acces...3cfr121.404.htm


Also, don't forget to check the eligibility requirements for HUBZone SBs, SDVOSB, 8(a) and WOSB's. For example, a HUBZone concern must certify that it is small at both the time it submits its proposal and at the time of award.

#5 woops85

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Posted 20 October 2011 - 07:16 AM

And for offers under the GSA Schedules program, you need to pay close attention to the RFQ language on size certification, if any exists. If the RFQ is silent, the small business determination at time of Schedule contract award (or 5 year option renewal) is generally what is used. But a CO has the right to request current size determinations for a particular procurement. For example, a vendor who was 8(a) when they got their schedule in 2009 but graduated in 2010 could still get credit for being 8(a) under the size factor for a Schedule procurement with an 8(a) preference UNLESS the CO specifically requires a current size determination

#6 Retreadfed

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Posted 20 October 2011 - 11:49 AM

And for offers under the GSA Schedules program, you need to pay close attention to the RFQ language on size certification, if any exists. If the RFQ is silent, the small business determination at time of Schedule contract award (or 5 year option renewal) is generally what is used. But a CO has the right to request current size determinations for a particular procurement. For example, a vendor who was 8(a) when they got their schedule in 2009 but graduated in 2010 could still get credit for being 8(a) under the size factor for a Schedule procurement with an 8(a) preference UNLESS the CO specifically requires a current size determination


Just because a firm has graduated from the 8(a) program does not mean that it is not still small or an SDB. Tha ability of contracting officers to have a contractor recertify its size status is not limited to GSA contracts, but contracting officers can require a recertification before issuing an order under any indefinite delivery contract.

#7 woops85

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Posted 24 October 2011 - 08:14 AM

Retreadfed - didn't mean to imply that a CO couldn't always ask. Just wanted to point out that sometimes a vendor could qualify for a set-aside/preference even if they have outgrown/graduated.

#8 Retreadfed

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Posted 24 October 2011 - 09:33 AM

Retreadfed - didn't mean to imply that a CO couldn't always ask. Just wanted to point out that sometimes a vendor could qualify for a set-aside/preference even if they have outgrown/graduated.


How could a concern qualify for a set-aside if it has outgrown the size standard for the procurement?

#9 formerfed

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Posted 24 October 2011 - 11:59 AM

Retreadfed,

Read post 5 above. If an agency solicited responses and gave credit based on size/status at time of contract award, a small firm for example at time of contract award gets credit as small.

#10 woops85

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Posted 24 October 2011 - 12:33 PM

Retreadfed -
For example - the 8(a) STARS II contract. All vendors had to be 8(a) at time of contract award. Vendors must recertify to 8(a) status at time of option exercise ( believe it is a 3 year base period ) to continue on contract. Some of the vendors on the original 8(a) STARS contract also won the STARS II contract. STARS was 7 years - 3 year base plus 2 two year option periods. So they were 8(a) at least 7 years ago and have at most 2 years left in program at time of STARS II award. Vendor A is such a vendor and he actually graduates from the 8(a) program 60 days after award of STARS II. Unless the CO for a particular order asks for recertification at time of the order, Vendor A can compete and win orders up through the end of the base period with the clients getting 8(a) credit for the entire order, even though the POP of the entire order may occur after Vendor A has graduated the 8(a) program.

The order guide states "Graduation from the 8(a) program is not a triggering event for size re-representation promulgated by FAR 52.219-28, or by its associated SBA and FAR final rules, released at 71 FR 66434 and 74 FR 11821 & 14492, respectively. Such industry partners retain full use of their contract pursuant to the contract?s terms and conditions per 13 CFR 124.503(h)(1)(iii), most recently updated in a SBA Final Rule released in 2011, found in 76 FR 8222 (specifically on page 8259). This is also consistent with FAR 19.804-6( c )."

#11 Retreadfed

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Posted 24 October 2011 - 03:25 PM

Retreadfed -
For example - the 8(a) STARS II contract. All vendors had to be 8(a) at time of contract award. Vendors must recertify to 8(a) status at time of option exercise ( believe it is a 3 year base period ) to continue on contract. Some of the vendors on the original 8(a) STARS contract also won the STARS II contract. STARS was 7 years - 3 year base plus 2 two year option periods. So they were 8(a) at least 7 years ago and have at most 2 years left in program at time of STARS II award. Vendor A is such a vendor and he actually graduates from the 8(a) program 60 days after award of STARS II. Unless the CO for a particular order asks for recertification at time of the order, Vendor A can compete and win orders up through the end of the base period with the clients getting 8(a) credit for the entire order, even though the POP of the entire order may occur after Vendor A has graduated the 8(a) program.

The order guide states "Graduation from the 8(a) program is not a triggering event for size re-representation promulgated by FAR 52.219-28, or by its associated SBA and FAR final rules, released at 71 FR 66434 and 74 FR 11821 & 14492, respectively. Such industry partners retain full use of their contract pursuant to the contract?s terms and conditions per 13 CFR 124.503(h)(1)(iii), most recently updated in a SBA Final Rule released in 2011, found in 76 FR 8222 (specifically on page 8259). This is also consistent with FAR 19.804-6( c )."



Thanks for the clarification. The way you worded you Oct 24 reply to me, you appeared to be saying that a vendor could submit a proposal to receive a set-aside contract although it had outgrown the size standard for the procurement.




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