Overview of SBA Size Recertification Regulation

Overview of SBA Size Recertification Regulation

Overview SBA Size Recertification Regulation Objective: Review Requirements of SBA Size Recertification Regulation and its implementation in the Federal Acquisition Regulations Prior to Acquisition Reform Contracts had durations of five years (one year plus four one-year options) Size was determined at time of initial offer

Gave contracting officer and offerors finality Procurement process can take months or years to complete Thus, under the basic rule awardee could be acquired by large business or grow to be large, and the award was still counted as an award to an SBC Mid-90s - Procurement reforms authorized contracts with durations greater than 5 years Promoted the use of multiple award task and delivery order contracts IDIQ contracts are licenses to hunt contract award only entitles concern to a guaranteed minimum

Contractors are supposed to compete for each order Prior to Acquisition Reform Agencies started limiting competition for orders to SBCs Bid protests were filed concerning agencies authority to limit competition to SBCs Size protests were filed concerning the size status of particular concerns in relation to orders Concerns that had grown or been acquired by large businesses were arguing that the basic rule applied, i.e., size should be determined at

time of offer, and that they should be considered small for the life of the contract, which in some cases would mean for 20 years Procurement Reform and Small Business Status Ultimately, both GAO and the Court of Federal Claims determined that competition for orders could be limited to SBCs SBAs OHA determined that if competition for the order was limited to SBCs, concerns had to be small at the time of their quote or offer for the

order GAO Report on procurement data - large concerns were coded as SBCs in the Federal Procurement Data System Proposed Rule In 2003 SBA issued a proposed rule to require re-certification on an annual basis, BUT requested comments on requiring re-certification on an order-by-order basis or every five-years Proposed rule applied to all multiple award contracts (MACs, GWACs, MAS), not just longterm contracts

SBA received several hundreds of comments SBA had extensive consultations with DoD, GSA, and OFPP Size Re-Certification Rule Published: November 15, 2006 (71 Fed. Reg. 66434) Effective Date: June 30, 2007 Delay Implementation to November 2007 Necessary to: Enable FAR provisions and clauses to be drafted and inserted into solicitations and contracts Mod FPDS to allow size status to be changed on a goingforward basis (without altering past data)

Rule is retroactive for ALL contracts where there is an acquisition, merger or novation Short term contract will be modified to collect data at contract option Size Re-Certification Rule Rule applies to contracts with durations greater than five (5) years to collect size changes for growth Re-certification required prior to the beginning of 6th year, and prior to the exercise of EACH option thereafter agencies use size standard in effect at time of option No requirement to terminate contracts, or prohibition on exercising options where size status changes

No requirement to change terms and conditions of contract, i.e., limitations on subcontracting, subcontracting plan, etc. Applies to existing contracts and solicitations Size Re-Certification Rule Re-certification required in case of novation, acquisition or merger - APPLIES TO ALL CONTRACTS Currently, re-certification is required for novation and change-ofname agreements Acquisition/merger not defined will rely on affiliation rules NAICS code/size standard for CONTRACT required for

all orders & solicitations for orders Contracting officers have discretion to request size certifications in connection with solicitations for orders No requirement to re-certify for subcontracting purposes Size Re-Certification Rule Change in size will change other socio-economic classifications for the contract in question, i.e., if a concern is not small for contract, concern is also not SDB, HUBZone, 8(a), SDVO, WOSB, etc. for that contract No requirement to re-certify for long-term orders

Protests SBA and the contracting officer can file at any time Notice for an option not usually required or given whether a protest is timely will be fact-specific FAR Revision Parity Federal Acquisition Regulation (FAR)Proposed Rule Socioeconomic Program Parity Federal Register: March 10, 2008 (Volume 73, Number 47) Pages 12699-12701 Comment period closed May 9, 2008

FAR Revision Parity Why is the FAR being revised? SBA revised its regulations in 2005, to address equal consideration for each of its set-aside programs. The result: 8(a), Historically Underutilized Business Zone (HUBZone) and the Service-Disabled Veteran Owned Small Business Concerns are given the same consideration when a acquisition is exclusively reserved for participation of each program. Prior to that time, there was some question within the acquisition community as to how these 3 programs related to one another, and to a small business set

aside. FAR Revision Parity The 2005 revision to SBA's regulations required that these programs be considered before an acquisition is set-aside for small businesses. The SBA's regulations provided that while no one program takes priority over the other, the acquisition agency's small business goals may be one factor of consideration when determining which program to utilize. However, where market research indicates that all other

factors are equal, and the selection decision is between a HUBZone or Small Business set-aside, HUBZone statute requires that a HUBZone set-aside be utilized. FAR Revision Parity The proposed FAR revision will now align SBAs regulations with the Federal procurement regulations because. The acquisition community uses the FAR to conduct acquisitions government-wide Consequently changes in SBA's regulations also require a corresponding revision to the FAR.

FAR Revision Parity These changes will enhance participation for small businesses eligible to participate in each of the set-aside programs. It will also give agencies the discretion to select a program that will enable them to better meet their federally mandated small business goals.

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