October 6, 2022 – On Sept. 23, 2022, the Civilian Firm Acquisition Council and the Safety Acquisition Legal guidelines Council (Councils) printed three final tips updating the procurement legal guidelines to implement regulatory modifications made by the Small Enterprise Administration (SBA).
These final tips ship welcome updates to the Federal Acquisition Regulation (FAR) that take away confusion due to the battle between SBA and FAR tips governing the mentor/protégé program, small enterprise joint ventures, along with Historically Underutilized Enterprise Zone (HUBZone) and women -owned small firms.
Three approach partnership updates
The final word rule that is seemingly of curiosity to the broadest viewers, along with every big and small firms, implements statutory and regulatory modifications to the legal guidelines governing small enterprise joint ventures (JVs). (67 Fed. Reg. 58129). The modifications mirror an elevated willingness on the part of Congress and the SBA to allow big firms to study from the small enterprise program in change for providing assist and steering to small firms.
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The rule implements the expanded mentor/protégé program, which extended this very important program to all courses of small firms (it beforehand solely utilized to small firms inside the 8(a) program). In addition to, it clarifies that JVs competing for 8(a) awards not should be licensed by the SBA.
It moreover clarifies {{that a}} JV might qualify as a small enterprise if (1) each social gathering to the JV is small beneath the related dimension commonplace or (2) the JV is formed between a mentor and a protégé beneath an SBA-approved mentor/protégé settlement. In addition to, the substitute implements the SBA rule {{that a}} JV might qualify beneath set-asides for particular socio-economic small enterprise courses as long as one social gathering to the JV is in that class and the JV in another case qualifies as small.
Most importantly, the rule explains {{that a}} contracting officer ought to ponder the earlier effectivity of a JV offeror, however when a JV has no earlier effectivity the contracting officer “shall ponder the earlier effectivity of each social gathering to the three approach partnership.”
Given the importance of earlier effectivity in award alternatives this generally is a most likely large revenue to small firms that sort JVs with big firms beneath the mentor/protégé program as they may now rely upon the earlier effectivity of the large enterprise mentor, one factor that was already clear inside the SBA legal guidelines. Nevertheless, until now, not all contracting officers have been clear that they’ve been required to consider the earlier effectivity of JV members, big and small.
Clarification regarding women-owned small firms certification
In October 2021, the Councils printed a proposed rule implementing a final rule printed by the SBA in 2020 that, in flip, utilized a statutory change to the women-owned small enterprise certification tips inside the FY 2015 Nationwide Safety Authorization Act.
That change requires that, in accordance with the statute, women-owned small firms (WOSB) and Economically Disadvantaged WOSBs (EDWOSB) be licensed by the SBA or an SBA-approved third-party certifier, information that shall be mirrored inside the SBA’s Dynamic Small Enterprise Search (DSBS) and on the System for Award Administration (SAM). The Sept. 23, 2022, final rule at 87 Fed. Reg. 58237 adopts the proposed rule with out vital change.
Importantly, this certification requirement applies solely to WOSB or EDWOSB competing for set-asides or in quest of sole-source awards beneath the WOSB Program. For these two sorts of awards, the small enterprise ought to be licensed or have a pending software program for certification on the time of proposal submission. The contracting officer ought to affirm an offeror’s eligibility in DSBS or SAM earlier to evaluation of a proposal in a WOSB or EDWOSB set-aside or award beneath a sole-source contract.
If the apparent worthwhile offeror’s certification is pending, the contracting officer is required to tell the SBA and request a standing willpower, which ought to be provided inside 15 calendar days. WOSB entities not competing for set-asides or in quest of sole-source awards might proceed to self-represent their dimension standing.
The Councils determined that this rule will apply to acquisitions below the Simplified Acquisition Threshold (SAT), along with to industrial merchandise/service procurements, thereby permitting contracting officers to set-aside or sole-source contracts in these courses to WOSBs and EDWOSBs.
Growing options for HUBZone small firms
Lastly, the SBA updated its legal guidelines governing the HUBZone small enterprise program in November 2019, streaming its tips and clarifying ambiguous phrases. The final word HUBZone rule printed on Sept. 23, 87 Fed. Reg. 58232, follows a proposed FAR substitute printed inside the Federal Register in June 2021.
For HUBZone small firms, perhaps essential change is that they are now licensed yearly by the SBA, a certification recorded inside the DSBS and mirrored in SAM, meaning they not should characterize their dimension standing with each present. They will, nonetheless, proceed to should level at FAR 52.212-3 and 52.219-1 whether or not or not their HUBZone standing has been determined by the SBA and certify that they’re going to protect the requirement that 35% of staff are HUBZone residents.
One different welcome change is that the FAR legal guidelines implementing the HUBZone Program now apply to contracts at or below the SAT. Beforehand, the HUBZone Act was included inside the itemizing of authorized tips inside the FAR that are inapplicable below the SAT, prohibiting firms from issuing set-asides below that prohibit, which is commonly $250,000.
This revision will improve options for HUBZone small firms given that for the last few years there have been a median of over 100,000 awards below the SAT set-aside or sole-sourced for small firms, none of which have been obtainable to people inside the HUBZone Program .
The revisions moreover clarify that on sole-source awards solely, the SBA or the contracting officer might protest a HUBZone small enterprise’ standing and that on all completely different procurements an apparently worthwhile offeror’s HUBZone standing could also be challenged by an social gathering. The procedures for submitting a HUBZone standing protest, which the contracting officers ought to talk to the Director of SBA’s Office of HUBZone Program, have been moreover updated, and it was made clear that the SBA will take away a enterprise’ certification from DSBS if the SBA determines on account of the protest that the enterprise would not meet the HUBZone Program requirements.
These, and completely different, modifications to the HUBZone Program will ease the manager burden to participate and create new options for HUBZone small enterprise, rising the value of this certification.
Conclusion
The incorporation into the FAR of prior modifications to the SBA’s legal guidelines will hopefully take away quite a lot of the confusion surrounding these useful, nevertheless significantly refined, functions. The revisions, considerably regarding mentor/protégé JVs, present massive options for every big and small firms. Nevertheless contractors ought to pay cautious consideration to the ideas to guarantee that they, or their JVs, meet the eligibility requirements for presidency contract options.
Richard Arnholt is an on a regular basis contributing columnist on authorities contracting for Reuters Approved Data and Westlaw Within the current day.
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