Posted February 12, 201510 yr comment_25406 I have a question regarding a set aside RFP that is 8(a) but the NAICS code is 561110 (sm size standard 7.5mil) Our company is an 8(a) usually operating in the 54 NAICS series (sm size standard 15mil). It looks like with our 2014 revenues, our 3 year average will exceed the 7.5 mil. However, the solicitation is marked set aside for 8(a) not small business, even though the NAICS code is 561110. Can anyone advise if we can pursue this solicitation?
February 12, 201510 yr comment_25409 What authority is there to set aside a procurement for an 8(a) concern that is not small for the NAICS assigned that procurement?
February 12, 201510 yr comment_25411 I would be interested in knowing the answer to this post – as a matter of course without going to the CO. On an 8a set aside are the size standard eligibility limitations, if there are any, moot because the bidder is an 8a? In the absence of some specific limitation in the solicitation, I am not sure that the size standard makes an 8a bidder ineligible for award.
February 12, 201510 yr comment_25413 As I understand it, the NAICS code is CRUCIAL -- in a competitive 8(a), the SBA must determine the eligibility of the apparently successful offeror before award -- see FAR 19.805-2( b ). The apparently successful offeror must qualify as small for the NAICS code in the solicitation.
February 12, 201510 yr Author comment_25414 Thanks ji20874! Sounds like it might be up to SBA - Looking at the Eligibility based on Section 8(a) Program criteria it states, "Once approved, SBA continuously monitors the firm to ensure that the firm is still small in its primary industry." If our primary industry is 541990 - we are still small business and in the 8(a) program. With that logic we could receive an 8(a) contract with a NAICS code of 561110. Open to other interpretations....
February 12, 201510 yr comment_25415 Also, the small business representation of the 8(a) can be protested (see FAR 19.302(a)(2)).
February 13, 201510 yr comment_25417 js - Just some stuff from 13 CFR 124.501……… (h) A Participant must certify that it qualifies as a small business under the size standard corresponding to the NAICS code assigned to each 8(a) contract. 8(a) BD program personnel will verify size prior to award of an 8(a) contract. If the Participant is not verified as small, it may request a formal size determination from the appropriate General Contracting Area Office under part 121 of this title. (i) Any person or entity that misrepresents its status as a “small business concern owned and controlled by socially and economically disadvantaged individuals” in order to obtain any 8(a) contracting opportunity will be subject to possible criminal, civil and administrative penalties, including those imposed by section 16(d) of the Small Business Act, 15 U.S.C. 645(d). Additional reads would be 13 CFR 124.504 and 13 CFR 124.517. I would suggest that you talk to your SBA office about the particular solicitation because it sounds that it is based on an inappropriate conclusion that an 8(a) firm that does not qualify as small can compete for an 8(a) Set-aside contract.
February 13, 201510 yr comment_25419 And is FAR 52.219-18 in the solicitation? It states..... (a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in the SBA’s 8(a) Program and which meet the following criteria at the time of submission of offer— And its prescription at 19.811-3(d) states: (d) The contracting officer shall insert the clause at 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns, in competitive solicitations and contracts when the acquisition is accomplished using the procedures of 19.805. (1) The clause at 52.219-18 with its Alternate I will be used when competition is to be limited to 8(a) concerns within one or more specific SBA districts pursuant to 19.804-2. (2) The clause at 52.219-18 with its Alternate II will be used when the acquisition is for a product in a class for which the Small Business Administration has waived the nonmanufacturer rule (see 19.102(f)(4) and (5)). And 19.805 says in part… The SBA will determine the eligibility of the firms for award of the contract. Eligibility will be determined by the SBA as of the time of submission of initial offers which include price. Eligibility is based on Section 8(a) Program criteria.
February 13, 201510 yr Author comment_25426 Thanks C Culham! Exactly what I needed to know... SBA office has been unresponsive!
June 7, 201510 yr comment_26859 There is no "8(a) program." you may be thinking of the "8(a) small business development program." Under that program, if you are not small in the NAICS for the particular requirement, you are not eligible to compete. But if you do submit a bid, you are tacitly representing that you are small in that NAICS. That is enough to kick you out of the program. On the other hand, maybe nobody will notice.
June 7, 201510 yr comment_26862 There is no "8(a) program." you may be thinking of the "8(a) small business development program." If there's no "8(a) program," why is FAR Subpart 19.8 entitled, "Contracting with the Small Business Administration (The 8(a) Program)"? The phrases "the 8(a) Program" and "8(a) Program" occur in 117 places in the FAR System. SBA calls the program "8(a) Business Development Program," not "8(a) small business development program." See 13 CFR § 124, FAR 19.000(a)(6), and FAR 19.800(d). The phrase "8(a) small business development program" does not appear in the FAR System; the phrase "8(a) business development program" appears in only two places.
