Hi all! I have a question regarding BPAs and the Orders attached to them. Here is the scenario:

A single-award BPA has a period of performance of 1+ 4 years. The solicitation (BPA awarded) was set-aside for Small Business. The BPA did not use an underlying FSS, rather, the procurement was on SAM.gov and set-aside for small. The company that won the BPA no longer qualifies as small in the NAICS code attached to the Solicitation/Awarded BPA. The company updated their SAM record and Small Business search to reflect they are not small in the BPA NAICS anymore. The company is in the middle of it's 2nd Period of Performance/Order against the BPA, and have two more ordering periods left under the BPA; the next POP is 10/1/2026-09/30/2027.

1. Is the Contracting Officer "required" to check SAM/SBA small business search every year the "Contract/Order" is awarded under the BPA to confirm that they are still eligible to receive the award as a "Small"?

2. Where in the FAR does it say they are, or conversley are not, required to check SAM and confirm this?

3. If a small business does not qualify for the Order any longer, shouldn't any interested party be able to protest it to SBA as not meeting the size standard?

4. If a small business lost the BPA to this company three years ago, are they able to protest the Order to SBA as an interested party, knowing that the company no longer qualifies?

I believe the answer to your questions can be found either specifically or by interpretation of a full read of 13 CFR 121.404. I am providing the CFR reference as it will be the default regulation if the matter reaches SBA for a final determination.

So the rule states, 13 CFR 121.404 Agreements. With respect to agreements established under FAR part 13, size is determined as of the date the business concern submits its initial offer, which includes price, for the agreement. Because an agreement is not a contract, the concern must also qualify as small as of the date the concern submits its initial offer, which includes price, for each order issued pursuant to the agreement to be considered small for the order.

FAR 19.301.1(c) To be eligible for an award of an order under a basic ordering agreement or a BPA issued pursuant to part  13 as a small business concern identified in 19.000(a)(3), the offeror must be a small business concern identified in 19.000(a)(3) at the time of award of the order.

But nothing I can find says that a Contracting Officer "must" verify a small is still small every time an award is made under a BPA, prior to awarding - is that written anywhere?

1 hour ago, InquisitiveSDVOSBer said:

But nothing I can find says that a Contracting Officer "must" verify a small is still small every time an award is made under a BPA, prior to awarding - is that written anywhere?

In my view a CO would be remiss, and most likely is not following proper efforts to determine eligilbility for award, if they do not at each order confirm the the size certification provided by the firm. Likewise it is my view that a CO would not be following proper efforts at renewal of the BPA on an annual basis. (Reference - FAR 13.303-6 or RFO 12.201-1(e)(3)).

This said I could see where a CO might not do so for all kinds of reasons. One could be that they do not understand the regulation to do so.. If me and I were to believe that the there is reason the CO should question the certification for a BPA and/or order I would inform the CO of the matter. If the CO continues the BPA or an order with the contractor after being informed of the issue of small business eligiblity and there was conclusive evidence that the entity is not a small business a protest to the CO (not SBA) by an interested party could be made. (References - FAR 33.101 or RFO 33.102)

4 hours ago, InquisitiveSDVOSBer said:

But nothing I can find says that a Contracting Officer "must" verify a small is still small every time an award is made under a BPA, prior to awarding - is that written anywhere?

There is no requirement for the contracting officer to "verify" a small business representation. If the CO has reason to doubt the representation, they can protest to the SBA.

It’s the ol’ “ostrich” (bury your head in the sand and hope for the best) routine.

Don, if the BPA is an "Agreement" and each Order is a Contract, that is set-aside for Small under a NAICS code, shouldn't the Contracting Officer Verify at each "Award" that the Company is registered in SAM etc. since it is a new contract each time? Isn't that part of award criteria?

Joel, if the company isn't small, and the Contracting Officer makes the award to them without checking SAM, and then the Award against the BPA is protested.... then what ....

43 minutes ago, InquisitiveSDVOSBer said:

Don, if the BPA is an "Agreement" and each Order is a Contract, that is set-aside for Small under a NAICS code, shouldn't the Contracting Officer Verify at each "Award" that the Company is registered in SAM etc. since it is a new contract each time? Isn't that part of award criteria?

Yes, but the contracting officer can only verify how the offeror represented itself. The CO has no authority to determine whether the representation is true. Again, if they have reason to doubt the representation, they can protest to the SBA.

@InquisitiveSDVOSBer

See FAR 19.302 or RFO 19.201-2.

As to verification I have considered your original post as truth, that is the firm has updated their SAM.gov profile to reflect their "other than" status so a CO in fulfilling their verification obligation would clearly see the firm is not small. So again if the CO has errored you can call them out on it. If you qualify as an interested party call the CO out by protesting. If you are not an interested tell the CO anyways and hope they take heed. If the CO doesn't take heed call their IG, your congress person or use some other drastic action to get the COs attention.

Your facts suggest strongly the CO should doubt the status of the firm. Get the facts to CO!

Additional references FAR 4.1103 or RFO 4.304. Note the word "must". Any suggestion that a CO should not check SAM.gov at award of an order or extension of a BPA is lame.