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#1 bob7947

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Posted 02 April 2012 - 07:13 AM

Posted for MFK:

New topic: HUBzone firm receives MATOC contract while HUBZone certified. 8(a) firm receives MATOC while 8(a) certified. HUBZone firm then voluntarily decertifies due to new HUBZone map. 8(a) firm then graduates from 8(a) program. Can firms still quote work and perform Task Orders under each MATOC contract?

#2 dcarver

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Posted 02 April 2012 - 07:26 AM

FAR 19.804-6(a) states:

Separate offers and acceptances must not be made for individual orders under multiple award, Federal Supply Schedule (FSS), multi-agency contracts or Governmentwide acquisition contracts. SBA’s acceptance of the original contract is valid for the term of the contract.


So yes, as long as the firm was accepted originally into the program, the acceptance should be valid for the term of the contract. I've ran into this situation before, where the particular company was going to graduate the 8(a) program in the near future. We consulted with our small business specialist and the SBA, who came to the conclusion that as long as the firm is still in the program when you submit the agency offering to the SBA in accordance with 19.804-2, the firm can still perform work for the life of that contract if the SBA accepts the requirement for work (after all, you're technically contracting with the SBA and they sub the work to the contractor).

#3 C Culham

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Posted 02 April 2012 - 10:46 AM

WAIT! Please read 13 CFR 121.404(g)(3).

#4 dcarver

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Posted 02 April 2012 - 11:03 AM

WAIT! Please read 13 CFR 121.404(g)(3).


Good catch, so my answer only applies under a contract with a period of performance (including options) of 5 years or less. Good to know that they at least limited it somewhat.

#5 Retreadfed

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Posted 02 April 2012 - 01:27 PM

WAIT! Please read 13 CFR 121.404(g)(3).


This doesn't say that the contractor cannot receive an order. Only that the agency cannot count the order toward its small business subcontracting goals. Further, this section only addresses size, not socio-economic status. It has no bearing on the question asked.

#6 C Culham

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Posted 02 April 2012 - 04:16 PM

Retreadfed - Are you sure? Remember the new allowance for setting aside, how GSA is managing this for FSS contracts and it is unknown whether the MATOC's in question have the new allowance in them (originally or by modification). So what if "TO's are set aside for HUBZone? What if the TO is set aside for SB? In either of these cases would the CFR have any bearing? Simply I was calling attention to 13 CFR 121.404(g) because it could be important to the question in my view. The details beyond the questions posed will determine if the firm(s) can still quote a TO based on the specific details of the MATOC, the order and the firm.

#7 Retreadfed

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Posted 02 April 2012 - 07:04 PM

Retreadfed - Are you sure? Remember the new allowance for setting aside, how GSA is managing this for FSS contracts and it is unknown whether the MATOC's in question have the new allowance in them (originally or by modification). So what if "TO's are set aside for HUBZone? What if the TO is set aside for SB? In either of these cases would the CFR have any bearing? Simply I was calling attention to 13 CFR 121.404(g) because it could be important to the question in my view. The details beyond the questions posed will determine if the firm(s) can still quote a TO based on the specific details of the MATOC, the order and the firm.


Carl, I have no idea what you are trying to say. In any event, the question asked about no longer being a qualfied HUBZone concern or graduating from the 8(a) program. Nothing was said about no longer being small. The provison you cited could only have relevance if there was a question concerning the size of the concerns, not socio-economic status.

#8 C Culham

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Posted 03 April 2012 - 09:48 AM

Retreadfed – Sorry I was not clear let me try again.

First I read the initial post as asking this question “Can firms still quote work and perform Task Orders under each MATOC contract?”

I did interpret the question to be the many hidden issues regarding quoting and performing under a MATOC type contract inclusive of their SB status (a socio-economic status if I not mistaken) and the mentioned 8(a) and HUBZone status. So again, especially in light of dcaver’s post it would seem that 13 CFR 121.404(g) does address possible situations raised by the question in the initial post per the following possible examples.

Whether a firm, once certified as HUBZone, and now not, that was awarded a MATOC as a HUBZone can still compete for and receive a current or future HUBZone set aside TO under the MATOC it was awarded as HUBZone? I say NO noting the allowance of 13 CFR 121(g)(v) where recertification can be requested and 13 CFR 126.601© where the HUBZone firm must be so certified at award. 13 CFR 126.601( B) could come into play as well.

Whether a firm that is no longer considered small (example a graduated 8(a) firm) for a specific NAICS code that was identified in the MATOC can compete for and receive a TO for that specific NAICS code that is set aside for small business participation only under a MATOC? I say NO again with reference to 13 CFR 121.404(g) as the firm could not recertify itself as small.

Hope this clears up my posts for you in why I believe 13 CFR 121.404(g) does relate to the initial question in this thread. If not so be it as I do believe the CFR does apply even if you do not.

#9 Retreadfed

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Posted 03 April 2012 - 01:05 PM

Retreadfed – Sorry I was not clear let me try again.

First I read the initial post as asking this question “Can firms still quote work and perform Task Orders under each MATOC contract?”

I did interpret the question to be the many hidden issues regarding quoting and performing under a MATOC type contract inclusive of their SB status (a socio-economic status if I not mistaken) and the mentioned 8(a) and HUBZone status. So again, especially in light of dcaver’s post it would seem that 13 CFR 121.404(g) does address possible situations raised by the question in the initial post per the following possible examples.

Whether a firm, once certified as HUBZone, and now not, that was awarded a MATOC as a HUBZone can still compete for and receive a current or future HUBZone set aside TO under the MATOC it was awarded as HUBZone? I say NO noting the allowance of 13 CFR 121(g)(v) where recertification can be requested and 13 CFR 126.601© where the HUBZone firm must be so certified at award. 13 CFR 126.601( B) could come into play as well.

Whether a firm that is no longer considered small (example a graduated 8(a) firm) for a specific NAICS code that was identified in the MATOC can compete for and receive a TO for that specific NAICS code that is set aside for small business participation only under a MATOC? I say NO again with reference to 13 CFR 121.404(g) as the firm could not recertify itself as small.

Hope this clears up my posts for you in why I believe 13 CFR 121.404(g) does relate to the initial question in this thread. If not so be it as I do believe the CFR does apply even if you do not.


Graduation from the 8(a) program does not mean that a firm is not small. There is a nine year limit on participation in the program for most 8(a)s. Also, firms can be graduated early for several reasons. Thus, a firm can still be small although it has graduated from the 8(a) program.
The specific question initially posed regarding issuing task orders to 8(a) firms that have graduated points up a gap in the regulatory coverage for 8(a) contracting. 13 CFR 124.514 provides guidance on exercising options or modifying contracts, but does not address whether TOs may be issued to an 8(a) graduate.
Similarly, 13 CFR 126.601 does not specificaly address the question asked as it does not mention task orders. To get to the conclusion you have reached, you have to believe that the SBA has adopted the definition of contract found in FAR 2.101. If you have evidence of that adoption, please share it with us.

#10 C Culham

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Posted 03 April 2012 - 04:06 PM

Retreadfed –

So are you saying that you are firm in your opinion that 13 CFR 121.404(g) has no bearing on a HUBZone or a 8(a) firm who was once certified under either or both programs and is now not certified and the ability of the firm(s) to compete and be awarded task orders under a MATOC that they were awarded as either or a then certitified HUBZone or 8(a) firm under which they want to continue to seek TO’s either set aside for either program or that are for a NAICS that they are no longer small for?

With regard to your last post I understand and agree “graduation” does not mean the 8(a) is large but is does not mean it remains small either. I will simply point to the fact that you are making assumptions with regard the initial question. I did not I simply said “Please read 13 CFR 121.404(g).” as again it is my view that it has bearing on the question asked.

With regard to your reference of a gap I am not sure there is one. See 13 CFR 124.503(h). If the CO asks pursuant to 13 CFR 121.404(g) for the firm to recertify as to its status it seems to me the gap is covered. This in light of 13 CFR 121.401 as well and further suggest that 13 CFR 121.401 suggests strongly that absent a definition either in the CFR or in FAR Part 19 of “contract” that then the FAR Part 2 definition does apply to the situation.

#11 Vern Edwards

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Posted 03 April 2012 - 06:10 PM

Posted for MFK:

New topic: HUBzone firm receives MATOC contract while HUBZone certified. 8(a) firm receives MATOC while 8(a) certified. HUBZone firm then voluntarily decertifies due to new HUBZone map. 8(a) firm then graduates from 8(a) program. Can firms still quote work and perform Task Orders under each MATOC contract?

I do not know of any rule that says a postaward change in a firm's status automatically ends its continued eligibility to participate in task order competitions. However, if an agency sets a particular task order competition aside for HUBZone or 8(a) contractors, I presume that all competitors for that order must qualify under the rules established by the agency and that a firm that is no longer HUBZone or 8(a) will not be eligible for the award.

#12 Retreadfed

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Posted 03 April 2012 - 06:36 PM

Retreadfed – Sorry I was not clear let me try again.

First I read the initial post as asking this question “Can firms still quote work and perform Task Orders under each MATOC contract?”

I did interpret the question to be the many hidden issues regarding quoting and performing under a MATOC type contract inclusive of their SB status (a socio-economic status if I not mistaken) and the mentioned 8(a) and HUBZone status. So again, especially in light of dcaver’s post it would seem that 13 CFR 121.404(g) does address possible situations raised by the question in the initial post per the following possible examples.

Whether a firm, once certified as HUBZone, and now not, that was awarded a MATOC as a HUBZone can still compete for and receive a current or future HUBZone set aside TO under the MATOC it was awarded as HUBZone? I say NO noting the allowance of 13 CFR 121(g)(v) where recertification can be requested and 13 CFR 126.601© where the HUBZone firm must be so certified at award. 13 CFR 126.601( B) could come into play as well.

Whether a firm that is no longer considered small (example a graduated 8(a) firm) for a specific NAICS code that was identified in the MATOC can compete for and receive a TO for that specific NAICS code that is set aside for small business participation only under a MATOC? I say NO again with reference to 13 CFR 121.404(g) as the firm could not recertify itself as small.

Hope this clears up my posts for you in why I believe 13 CFR 121.404(g) does relate to the initial question in this thread. If not so be it as I do believe the CFR does apply even if you do not.


You have to put the question in context. Bob laid out the assumptions for the question and no longer being small was not one of the assumptions. That being the case, size is not an issue in answering the question posed. Therefore,

Retreadfed –

So are you saying that you are firm in your opinion that 13 CFR 121.404(g) has no bearing on a HUBZone or a 8(a) firm who was once certified under either or both programs and is now not certified and the ability of the firm(s) to compete and be awarded task orders under a MATOC that they were awarded as either or a then certitified HUBZone or 8(a) firm under which they want to continue to seek TO’s either set aside for either program or that are for a NAICS that they are no longer small for?

With regard to your last post I understand and agree “graduation” does not mean the 8(a) is large but is does not mean it remains small either. I will simply point to the fact that you are making assumptions with regard the initial question. I did not I simply said “Please read 13 CFR 121.404(g).” as again it is my view that it has bearing on the question asked.

With regard to your reference of a gap I am not sure there is one. See 13 CFR 124.503(h). If the CO asks pursuant to 13 CFR 121.404(g) for the firm to recertify as to its status it seems to me the gap is covered. This in light of 13 CFR 121.401 as well and further suggest that 13 CFR 121.401 suggests strongly that absent a definition either in the CFR or in FAR Part 19 of “contract” that then the FAR Part 2 definition does apply to the situation.


Carl, recertification is only to size not HUBZone or 8(a) status. Further, you need to put the question asked in the context of the assumptions posed to set up the question. A change in size was not one of those assumptions. Thus, your initial response was non-responsive to the question asked. As for FAR definitions being used by the SBA, remember, the SBA is the agency with primary jurisdiction in regard to implementing the Small Business Act. FAR coverage of small business matters is derived from SBA regulations. Nothing in the SBA regulations indicates that the SBA has relied upon FAR provisions to define what is a contract.

#13 C Culham

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Posted 03 April 2012 - 07:31 PM

Retreadfed - So what is your view of this statement in the 13 CFR 121.401? Does it not mean that the rule at 13 CFR 121.404(g)requires to recertify its size status with regard to all the programs named?

"13 CFR 121.401 What procurement programs are subject to size determinations?
The rules set forth in §§121.401 through 121.413 apply to all Federal procurement programs for which status as a small business is required or advantageous, including the small business set-aside program, SBA's Certificate of Competency program, SBA's 8(a) Business Development program, SBA's HUBZone program, the Women Owned Small Business (WOSB) Federal Contract Program, SBA's Service-Disabled Veteran-Owned Small Business program, the Small Business Subcontracting program, and the Federal Small Disadvantaged Business (SDB) program."

#14 Vern Edwards

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Posted 03 April 2012 - 08:37 PM

Carl:

I think you have caused confusion and needless controversy. I don't see what the SBA regulations have to do with the question asked.

The question poses a situation in which a HUBZone or 8(a) firm loses its status after properly winning a MATOC award. Loss of status is a given. The issue is not status or recertification, but the effect of the given loss of status on the firm's continued participation under the contract. 13 CFR Part 121 has nothing to say about that, and there is nothing for the SBA to decide pursuant to its regulation. If the contract makes continued status a prerequisite for continued participation, then the firm can no longer participate. If not, then the firm can continue to participate even after the loss of status.

Poor MFK. Came here for help and got led down the primrose path.

#15 C Culham

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Posted 03 April 2012 - 11:37 PM

Vern - So are you saying you agree with dcarver?

#16 Vern Edwards

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Posted 04 April 2012 - 04:32 AM

Carl:

Don't ask me about dcarver! What's up with that? In my two posts, # 11 and # 14, I clearly stated my answer to the question that started this thread. Do you disagree with my answer? If so, deal with that. If you disagree tell me why.

The opening question asked whether a HUBZone or 8(a) firm that has lost its status can continue to participate in a MATOC. It asks about the consequences of loss of status. I don't know why you ever brought 13 CFR Part 121 into this. 13 CFR 121.404(g)(3), which you cited in Post #3 and cling to like a Titanic survivor hanging on to a deckchair, addresses re-certification and agency credit toward small business contracting goals, not the consequences of re-certification with respect to contract participation. Re-certification is beside the point, because we already know that the firm has lost its status. It's a given. The question is not about whether and when a firm must re-certify. The question is about what happens if a firm cannot re-certify that it is still HUBZone or 8(a). How about let's answer the question before going off on tangents.

The terms of the contract and of agency task order set-aside decisions, not SBA regulations, are what determine whether or not a firm can continue to participate in a MATOC after it has lost its status. (Can SBA even make a rule about that? Under what statutory authority?) If the contract requires continued status as a condition of continued participation, or if the CO sets an order aside, then loss of status will prevent the firm from participating, otherwise, it won't. If I'm wrong, tell me why.

#17 dcarver

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Posted 04 April 2012 - 07:20 AM

My point was that FAR 19.804-6(a) states that the SBA decision to accept the proposed contractor as a valid concern to be utilized on the contract is valid for the life of the contract, so loss of status would not affect how they participate in a MATOC as far as the FAR regulates. It specifically states that the SBA does not need to continually accept the offeror for individual orders under a MATOC. Past that, without seeing the base contract, I would rely on what Vern has stated.

#18 C Culham

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Posted 04 April 2012 - 08:41 AM

Vern – A simple yes or no would have worked but thanks anyway. Since you decided to expand your answer in your last post which I read several times you might indulge me as well and read this response to your last post. If you elect to take your normal high brow approach and state that you will not then so be it.

The history of the thread in my view is clear. A question was posted. A response was then posted. I then posted a response to that response that was intended to be succinct as I disagreed with the response. After my post another on the thread began to question my intent and application of a CFR citation which I attempted to explain. At no point did I make a statement to the original post to lead the original poster down the primrose lane. Each time I was actually was responding direct to Retreadfed until you entered the fray to brow beat without asking a direct question of me until your last post. To which I now responding. I might add that by my count I asked Retreadfed 11 questions none of which were ever responded to.

Now with the nitpicking behind us I offer this reference as a response to your last foray and the questions contained in it –
http://www.gao.gov/d...dpro/403028.htm


#19 Vern Edwards

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Posted 04 April 2012 - 09:17 AM

I didn't want to answer your question, which is why I didn't give you a simple yes or no. I thought the question inappropriate. As for your link to the GAO decision, I don't see how it responds to my last foray. But I don't need a response from you. I don't want to be accused of encouraging you.

#20 C Culham

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Posted 04 April 2012 - 09:44 AM

Vern – No encouragement necessary I am my own best man at that.

You asked “The question is about what happens if a firm cannot re-certify that it is still HUBZone or 8(a).” and “The terms of the contract and of agency task order set-aside decisions, not SBA regulations, are what determine whether or not a firm can continue to participate in a MATOC after it has lost its status. (Can SBA even make a rule about that? Under what statutory authority?)” GAO states in the decision with regard to 13 CFR 121.404(g)(3) and recertification whether required for a long term contract or at the discretion of the CO “if a firm cannot certify that it is a small business concern in response to such a request, the firm is ineligible for award”. Does not this statement of GAO answer your two quoted questions?




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