[Federal Register: November 15, 2006 (Volume 71, Number 220)]
[Rules and Regulations]
[Page 66434-66444]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15no06-3]
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SMALL BUSINESS ADMINISTRATION
13 CFR Parts 121 and 124
RIN 3245-AF06
Small Business Size Regulations; Size for Purposes of Government-
Wide Acquisition Contracts, Multiple Award Schedule Contracts and Other
Long-Term Contracts; 8(a) Business Development/Small Disadvantaged
Business; Business Status Determinations
AGENCY: U.S. Small Business Administration.
ACTION: Final rule.
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SUMMARY: The U.S. Small Business Administration (SBA or Agency) is
amending its regulations to address the time at which size is
determined for the purposes of long-term federal contracts including
Government-Wide Acquisition Contracts (GWACs), the General Services
Administration (GSA) Multiple Award Schedule (MAS) contracts and multi-
agency contracts (MACs). SBA is also amending its 8(a) Business
Development regulations to address when a business concern may receive
orders as an 8(a) program participant under GSA's MAS Program and other
multiple award contracts. This final action is necessary to ensure that
small business size status is accurately represented and reported over
the life of these long-term Federal contracts.
DATES: Effective Date: This rule is effective June 30, 2007, and
applies to solicitations and contracts issued after the effective date,
as well as contracts and solicitations in existence at the time of the
effective date.
FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Administrator,
Office of Policy and Research, Office of Government Contracting, (202)
205-7322 or at dean.koppel@sba.gov.
SUPPLEMENTARY INFORMATION: On April 25, 2003, SBA published in the
Federal Register, 68 FR 20350, a proposed rule to address the time at
which size is determined for purposes of GSA's MAS Program, including
the Federal Supply Schedule (FSS), and MAS contracts awarded by other
agencies under the authority granted by GSA, and other long-term
contracts, including GWACs and multi-agency contracts. The contract
types mentioned above will hereinafter be referred to as ``long-term
contracts'' in this rule. With options, these contracts are longer than
5 years in duration--typically lasting 10 to 20 years. SBA also
proposed to amend its 8(a) BD regulations to make those regulations
consistent with the proposed rule. SBA established the Effective Date
of this final rule after consideration of the public comments and after
consultation with the General Services Administration (GSA), the
Department of Defense (DoD) and the Office of Federal Procurement
Policy (OFPP). SBA has been assured that this date reflects the amount
of time required to: (1) Modify the Government's contract award
database, the Federal Procurement Data System-NG (FPDS-NG), to capture
changes in small business size status ``going forward'' from the date
of re-certification; (2) permit agencies to revise their ``back
office'' contract reporting systems that feed into FPDS-NG; and (3)
implement the final rule in the Federal Acquisition Regulation (FAR).
In addition, the final rule clarifies that re-certification does not
affect the terms and conditions of the underlying contract.
Summary of Comments
SBA sought public comment on its proposed rule to amend Sec.
121.404 by adding paragraph (c) to provide that, for purposes of
multiple-award contracts, a concern must re-certify its size on an
annual basis. The intent of the proposed rule was to require re-
certification on long-term contracts. With options, these contracts are
greater than 5 years in duration, typically 10 to 20 years. SBA has
decided to limit applicability of the final rule to only long-term
contracts. For long-term contracts, concerns will now be required to
re-certify their small business size status prior to the sixth year of
performance, and every time an option is exercised thereafter.
On April 25, 2003, SBA proposed to require re-certification on
long-term contracts on an annual basis, but requested comments on
requiring re-certification on an order-by-order basis or at least once
every five years. 68 FR 20350. SBA received more than 600 comments both
supporting and criticizing all three proposals. Status as a small
business in the context of government contracting is primarily relevant
for two distinct reasons: (1) Eligibility for set-aside contracts and
(2) tracking whether Federal agencies meet their annual small business
prime contracting goals. SBA's regulations generally provide that size
is determined ``as of the date the concern submits a written self-
certification that it is small to the procuring activity as part of its
initial offer * * * which includes price.'' 13 CFR 121.404(a). A firm
that certifies itself as small as part of its offer for a contract is
generally considered small for the life of the contract, even if it
grows to be other than small during the life of the contract. 13 CFR
121.404(g). The Small Business Act requires procuring agencies to set
annual small business prime contracting goals and annually report the
``number and dollar value of contracts awarded'' to small business
concerns. 15 U.S.C. 644(h)(2)(D).
Over the past decade, Federal agencies have increasingly relied
upon multiple award task or delivery order contracts to procure goods
or services. Under these procurement vehicles, the quantity of goods or
services to be purchased is not set at the time of contract award.
Instead, goods or services are acquired by placing a task or delivery
order with a contractor, often as a result of a competition among
multiple contract holders. Task and delivery order contracts have been
called ``hunting licenses'' or ``club memberships'' because the real
competition, the actual purchase of goods or services, occurs at the
order level. Federal agencies have also increasingly utilized task or
delivery order contracts of other agencies to acquire goods or
services, typically for an administrative fee. Many of these multiple-
award contracts have potential durations that far exceed the typical
five-year government contract. Agencies are increasingly using these
vehicles to get credit towards their small business goals.
SBA has never had a specific rule in place to deal with these long-
term contracts. Application of SBA's existing rule to these vehicles
leads to unsatisfactory results, with contractors retaining their size
status for decades, well after they have outgrown the size standard or
merged with or been acquired by a large business concern. Thus, under
existing rules an order awarded to a concern that has outgrown
[[Page 66435]]
its small business status is counted as a prime contract award to a
small business. Moreover, these ``large businesses'' can compete for
and win orders that are reserved for small business concerns.
Although SBA proposed requiring re-certification on an annual
basis, it also specifically requested comments on requiring re-
certification on an order-by-order basis, and every five years. After
consideration of the comments and consulting with Federal agencies that
would be affected by the annual re-certification requirement and OFPP,
SBA has decided that re-certification will be required prior to the
beginning of the sixth contract year, and then prior to each option
thereafter. Moreover, SBA will give procuring agencies the discretion
to request size certifications in connection with competitions for
particular orders. When SBA proposed to require re-certification on an
annual basis, it did not discuss the fact that such a rule would be
contrary to the general rule, which allows a concern to retain its size
status for the life of the contract, which is typically five years
under traditional contracts with base terms of one-year with four one-
year options. Second, SBA had not fully consulted with the procuring
agencies that would be required to implement the proposed annual re-
certification. After consideration of the comments and consulting with
the various procuring agencies, including GSA and DoD, SBA has been
told that the agencies do not have the resources to request, receive
and process the expected influx of size certifications every year. In
addition, many small businesses submitted comments suggesting that an
annual re-certification requirement would not give them sufficient time
to recoup proposal costs or to conduct long-range strategic planning.
SBA also proposed to amend 13 CFR 121.404 to require that
contracting officers assign a North American Industry Classification
System (NAICS) code to each order under a long-term contract vehicle. A
concern's size is a function of the work to be performed. A concern may
qualify as a small business for one type of work, but be considered a
large business for a different type of work. In some cases, a contract
will only have one NAICS code and size standard, so a requirement to
assign a NAICS code and size standard to each order will not impose any
difficulty on the contracting officer. However, in cases where a
contract contains multiple NAICS codes and size standards, the
assignment of a NAICS code and size standard is required in order to
determine whether a concern is small for purposes of the work acquired
under the order. Otherwise, orders awarded to firms that have never
certified they are small for a particular type of work will be coded as
an award to a small business.
SBA proposed a size protest process for multiple-award contracts
which required contracting officers to publish lists of recent size
representations in the Federal Register, and provided that a size
protest must be filed within 10 days of publication. Many procuring
agencies objected to this additional increase in their workload,
arguing that contracting personnel do not have the time or resources to
comply with this requirement. Consequently, SBA will adopt its five day
rule for size protests in connection with long-term contract awards,
options, or orders. Thus, a size protest must be filed within 5
business days of receipt of notice of the identity of a proposed
awardee or award of a contract or order, or within 5 business days of
receipt of notice of the size certification made by a concern in
connection with the exercise of an option. In the case of a negotiated
acquisition, procuring agencies are sometimes required by law to
provide unsuccessful offerors with written, pre-award notice of the
identity of the apparent successful offeror(s). In other situations,
such as where an order is being awarded or an option is being
exercised, written notice is not required by law. Consequently, the
protest ``clock'' with respect to long-term contracts, orders or
options will not begin to run until notice is received, whether it is
in writing, orally, or via electronic posting.
Size is a component of every small business program, i.e., in order
to be eligible for an 8(a), Historically Underutilized Business Zone
(HUBZone), Small Disadvantaged Business (SDB) or Service-Disabled
Veteran-Owned Small Business Concern (SDVOSBC) contract or benefit, a
concern must be small for the size standard applicable to the
particular contract. SBA's re-certification rule will apply to all
small business programs, including the 8(a) BD program, on long-term
contracts set aside for 8(a) concerns, concerns will have to re-certify
their size prior to the beginning of the sixth year and prior to each
option thereafter. In accordance with long-standing SBA policy,
procuring agencies generally cannot take 8(a) credit on contracts that
were not specifically set aside for exclusive competition among
eligible 8(a) concerns. A Memorandum of Understanding (MOU) between SBA
and GSA which allowed agencies to take 8(a) credit for orders awarded
under full and openly competed MAS contracts expired in 2003. At this
time procuring agencies should no longer be taking 8(a) credit for
orders awarded under full and open MAS contracts. Thus, SBA's 8(a) BD
program regulations will be amended to specifically delete language
regarding size in the context of the MAS program, since SBA's size re-
certification rule will apply uniformly across all small business
programs.
Discussion of Comments on the Proposed Rule
The comment period for the proposed rule closed on June 24, 2003.
SBA received 636 comments. Forty-six commenters requested a 90-day
extension to the comment period. The request was considered. However no
extension to the comment period was granted. Following is a synopsis of
the approximately 83 substantive comments.
Re-Certification
SBA proposed to require re-certification on an annual basis, but
also requested public comments on requiring re-certification every five
years, as well as on an order-by-order basis. Several commenters urged
SBA to explicitly limit applicability of the rule to long-term
contracts. As stated earlier, it was not the intent of this rulemaking
to affect contracts of less than five years in total duration. Most of
the complaints and concerns that prompted this rulemaking have arisen
in the context of long-term contracts. This rule applies to long-term
(durations, including options, of more than five years) contracts,
e.g., GWACs, MAS and FSS contracts and to all contracting actions where
an acquisition, merger or novation has taken place.
Several commenters also recommended that the proposed changes be
limited to multi-agency contracts, e.g., GWACs, MAS and FSS contracts.
SBA is aware of procuring agencies creating their own long-term
multiple award contracts with characteristics similar to contracts
awarded under the MAS program, e.g., open-ended solicitations with
rolling admissions. While the majority of complaints and concerns that
prompted this rule have arisen in the context of multi-agency
contracts, applying the re-certification requirement to all long-term
contracts will help avoid confusion among small business contractors as
to their size status for various long-term contracts. Moreover, a
different rule might create a disincentive for both agencies and
contractors to enter into
[[Page 66436]]
multi-agency contracts, which is not the intent of this rule.
GSA, the Department of Energy, DoD, and the Department of State
submitted comments arguing that an annual re-certification requirement
would place an excessive burden on contracting agencies and personnel.
GSA pointed out that there are approximately 12,000 MAS contracts, and
no system exists to track the anniversary dates of these awards. GSA
argued that the optimal and logical time to address re-certification
for long-term contracts is prior to exercising an option, a requirement
that GSA had already instituted for its contracts under GSA Acquisition
Letter MV-03-01, ``Federal Acquisition Regulation Class Deviation--Size
of Business Re-representation.'' The Departments of State and Energy
cited GSA's approach as their preferred method for addressing the
issue. OFPP also expressed its strong preference for requiring re-
certification at the time an option is exercised, but at least every
five years.
Many commenters pointed out that the SBA's Regulatory Flexibility
Act Analysis indicated that approximately 6 to 12 concerns with
multiple award contracts would grow from small to large on an annual
basis. These commenters essentially argued that imposing an annual re-
certification requirement on perhaps tens of thousands of concerns, to
correct such a small number of improper awards, was contrary to the
intent of the Regulatory Flexibility Act. Although we believe that the
number of concerns that grow from small to large in a given year may be
substantially higher, supra, we believe that our final approach is the
least costly and burdensome way to address the issue of size in
connection with long-term contracts.
Several commenters urged SBA to require re-certification when a
small business concern is acquired by a large business, and OFPP
expressed its support for such a requirement. SBA's rules currently
require re-certification when a contract is novated or a change-of-name
agreement is executed (13 CFR 121.404(i)). Thus, under the existing
rule, a concern that simply wants to change its name must re-certify
its size, but a firm that is acquired and operated as a subsidiary of a
large business need not re-certify its size. SBA intended to require
re-certification when a small business is acquired by a large business,
but not if a firm simply grows beyond the size standard during
performance and wants to change its name. Thus, this rule will require
re-certification when a small business concern becomes other than small
due to acquisition or merger, such as when the contractor is acquired
and operated as a subsidiary of a large business or is merged with a
large business. This particular rule will apply to all contracts, not
just long-term contracts.
Approximately 553 of the 636 comments we received in support of the
annual re-certification requirement were duplicative, and did not
discuss the impact of the rule on procuring agencies or small
businesses, or the general rule which provides that a concern that is
small at the time of its offer is considered small for the life of the
contract. On the other hand, numerous commenters, including
contractors, trade groups, Federal agencies and Congressional
responders, essentially argued that small businesses submitted their
proposals and established their business plans in reliance on the
continuation of their size status throughout the life of the contract.
They contend that these contract holders need a reasonable amount of
time to recoup their proposal costs and to plan their transition from
small to other than small status. Many commenters argued that one year
is not a reasonable amount of time.
Several commenters argued that the annual re-certification
requirement would make procuring agencies reluctant to set aside
larger, multi-year requirements because they would be unwilling to risk
that small business awardees will grow beyond the size standard and be
ineligible to service the contract within one year of award. Several
commenters argued that the annual re-certification requirement would
deter small businesses from pursuing long-term contracting
opportunities because firms would be unlikely to expend time and
resources creating a proposal for a long-term contract if there is a
possibility that they would lose the contract after only one-year. We
first note that contractors which had grown to be other than small
would not be ``ineligible'' to receive further orders. They could
continue to receive orders, but the procuring agency could not count
those orders towards the fulfillment of its small business goals. If a
procuring agency exercised an option with a concern that had grown to
be other than small, subsequent orders would not count towards the
procuring agencies small business prime contracting goals. On the other
hand, if a procuring agency declines to exercise the option of a
concern that had grown to be other than small, it would lead to a
dwindling pool of competition, which is contrary to the intent and
purpose of the statutory and regulatory multiple award contracting
provisions. SBA does not want to provide agencies and contractors with
a disincentive to enter into long-term contracts.
After considering all of the comments, SBA has determined that
requiring re-certification prior to the beginning of the sixth contract
year, and then prior to the exercise of each option thereafter, is the
least burdensome and fairest approach of the three we proposed. This
approach is consistent with the existing, long-standing general rule
with respect to traditional contracts (a base term of one-year with
four one-year options), where SBA considers a concern to be small
throughout the life of the contract. Moreover, our approach will not
penalize agencies and contractors that award, or are awarded, long-term
contracts with base terms of one-year with several one-year options. It
would be unfair to require re-certification after one year on
performance simply because the total duration of the contract exceeds
five years, when the same concern would be considered small for the
life of a contract with a total duration of five years or less.
Many commenters requested that SBA address some of the
ramifications of the re-certification requirement. Many commenters were
concerned about whether options would be exercised on contracts that
were set aside for small business concerns if the concern had grown to
be large. The final rule does not prohibit a contracting officer from
exercising an option, even where a concern has outgrown the applicable
size standard on a small business set-aside contract, but it also does
not require a contracting officer to do so. If the contracting officer
chooses to exercise the option, the procuring agency would have to
amend FPDS-NG so that orders awarded during the option period would not
be counted towards the agency's small business prime contracting goals.
Although we recognize that a procuring agency may decline to exercise
an option with a firm that cannot re-certify that it is small because
the agency will not receive small business credit for the continued
performance of that firm, that is a decision that is best left to the
discretion of the contracting officer, after taking into account the
agency's small business contracting goals, the firm's past performance,
the existing competitive mix, and other factors that go into that
decision. To the extent some concerns will not be considered for orders
under full and open contracts because they are no longer small, other
small business concerns will benefit by being considered for, and
receiving, those orders.
[[Page 66437]]
Several commenters asked for clarification on how re-certification
would interact with the performance requirements applicable to set-
aside contracts. See 13 CFR 121.406 (manufacturing requirements) and
125.6 (limitations on subcontracting). The Small Business Act provides
that a concern ``may not be awarded a contract under subsection (a) as
a small business concern'' unless the concern agrees to comply with
specified performance requirements. 15 U.S.C. 644(o). The statute
focuses on ``award'' of a contract. A contractor that is awarded a
contract as a result of a small business set-aside must comply with the
applicable performance requirements throughout the life of the
contract, even if the concern grows to be large. Thus, on a long-term,
small business set-aside contract where a concern cannot certify that
it is small and the procuring agency exercises the option, the concern
will still have to comply with the performance requirements that are
applicable to all contract holders. In contrast, the performance
requirements mentioned above do not apply to full and open contracts.
Consequently, under current law a concern awarded an order under a full
and open contract need not perform any specific portion of the work,
even where competition for the order is limited to small business
concerns. SBA did not propose to impose a performance requirement on an
order-by-order basis, and thus has not imposed such a requirement as
part of this final rule. SBA may consider such a requirement in the
future as part of a separate rule-making.
Similarly, the statutory basis for the non-manufacturer rule (13
CFR 121.406) provides that a small business that complies with
``subparagraph (B) shall not be denied the opportunity to submit and
have considered its offer for any procurement contract for the supply
of a product'' under a small business or 8(a) set-aside. 15 U.S.C.
637(a)(17). The statute focuses on the time of offer and contract
award. A concern that grows to be large during performance of a set-
aside contract must still comply with the requirements of the non-
manufacturer rule throughout the life of the contract. Consequently,
where a concern cannot re-certify itself as small under a long-term,
small business set-aside contract, the concern still must comply with
the requirements of the non-manufacturer rule throughout the life of
the contract.
Several commenters asked SBA to clarify the effect of re-
certification on other small business programs, i.e., SDB, SDVOSBC,
HUBZone, and 8(a) BD. Commenters requested clarification on whether
firms would have to also re-certify their SDB, HUBZone, 8(a) BD,
SDVOSBC, or other status. Those issues are beyond the scope of this
rulemaking action. The proposed rule addressed size for the purposes of
specific contracts, including small business, HUBZone, 8(a), and
SDVOSBC set-aside contracts, but only addresses size certifications. In
general, firms receive small business program certifications based on
their size for their primary industry, but certified HUBZone/SDVOSBC/
SDB/8(a)BD firms must still meet the size standard applicable to a
given procurement in order to be eligible for award. Thus, a size re-
certification with respect to a particular contract will not affect a
firm's status under any small business certification program. Those
certification programs have rules that address when certified concerns
must provide that SBA program office with information that could affect
program eligibility. See 13 CFR 124.112, 124.1016(b), 126.501. However,
if a concern is no longer small, orders awarded to that concern cannot
be counted towards an agency's goals for any of the small business
subgroups, e.g., 8(a), SDB, HUBZone, SDVOSBC.
Several commenters asked for clarification on how re-certification
would affect subcontracting plan requirements. The Small Business Act
provides that the subcontracting plan requirements ``shall not apply to
offerors or bidders who are small business concerns.'' 15 U.S.C.
637(d)(7). Thus, the concern's size status at time of offer or bid
determines whether the subcontracting plan requirements are applicable
to a particular contractor. Even where the subcontracting plan
requirements are imposed as the result of a contract modification, it
is the concern's size status at time of contract award that determines
whether a subcontracting plan is required. Consequently, a concern's
change in size status as a result of a re-certification requirement
will have no effect on the subcontracting plan requirements that were
imposed, or not imposed, at the time of contract award.
Several commenters also requested clarification concerning how re-
certification would affect cost accounting standard requirements. The
Cost Accounting Standards Board is responsible for implementing cost
accounting standards. 41 U.S.C. 422. The Cost Accounting Board has
exempted contracts and subcontracts with small business concerns from
cost accounting standard requirements. FAR Sec. 30.000; 48 CFR
9903.201-1(b)(3). The Cost Accounting Standards Board will have to
determine what effect, if any, re-certification will have on the
applicability of the cost accounting standard requirements. In our
view, the re-certification requirement should have no effect on the
terms and conditions of a contract.
In sum, a change in size status for reporting purposes will not
affect in any way the terms and conditions of the initial contract. If
the performance of work requirements (Sec. 125.6) or non-manufacturer
rule (Sec. 121.406) apply to a contract because a firm was deemed to
qualify as small at the time of contract award, they will continue to
apply if the firm becomes other than small at some point during
contract performance. Similarly, if a firm was exempt from having a
subcontracting plan at the time of award because it qualified as a
small business, it will not be required to have a subcontracting plan
if it becomes other than small at some time during contract
performance.
Several commenters asked whether subcontractors would be required
to re-certify their size for purposes of subcontracting plans. That
issue is also beyond the scope of the proposed rule, and this rule does
not impose any re-certification requirement at the subcontractor level.
SBA may consider such a requirement in the future as part of a separate
rule-making.
Several commenters were concerned about the affect of re-
certification on ``teaming.'' If a team in the form of a joint venture
is awarded a contract, the joint venture as combined must meet the
applicable size standard. The same rules would apply to a joint venture
as would apply to a stand-alone entity. Thus, the joint venture, as
combined, would have to be small at the time of re-certification in
order to retain its small business size status. Likewise, under SBA's
8(a) BD mentor-protege program, an 8(a)protege can form a joint venture
with its large business mentor and qualify as a small business for a
particular contract, as long as the protege qualifies as small for the
particular procurement. If the protege is no longer small at the time
of re-certification, then the joint venture cannot certify itself as
small under either a set-aside or a full and open contract. Similarly,
if a joint venture qualifies as small based on other exclusions from
affiliation (13 CFR 121.103 (h)(3)), the joint venture would not be
considered small if at the time of re-certification the joint venture
does not meet the applicable requirements for the exclusion (e.g., a
joint venture between three firms that individually met the applicable
size standard and
[[Page 66438]]
qualified the joint venture as small under Sec. 121.103(h)(3)).
Several commenters requested that SBA clarify how the rules will
affect Blanket Purchase Agreements (BPA) or orders with options, and
multi-year orders. A BPA is not a contract. When a BPA is utilized,
goods and services are not actually purchased until an order is issued.
Consequently, a concern's size at the time a BPA is awarded is
irrelevant, and the regulations have been amended to make this clear.
The issue of size for purposes of options on orders and multi-year
orders is beyond the scope of this rule. We would like to see whether
this rule solves the issues that prompted this rulemaking before we
consider whether this issue needs to be addressed.
Several commenters requested that SBA clarify whether the rule
would apply to existing contracts, and some recommended that contracts
already awarded be ``grandfathered'' in under existing rules. We
disagree. The problems this rule addresses primarily arose when GSA
modified all of its existing MAS contracts to give them base terms of
five years with three five-year options, for a total duration of twenty
years. We are not aware of anything that would prevent GSA from
modifying all of its MAS contracts in the future to add additional
five-year option periods. Moreover, many GSA MAS solicitations are
open-ended, and admission to the MAS is done on a rolling basis. Thus,
if this rule applied only to solicitations issued after the effective
date, it would not apply to existing GSA MAS contracts or other long-
term contracts currently being performed. Thus, this rule must apply to
existing contracts, but, for the reasons stated above, will not cause
any firm to lose a long-term contract as a result of growing to be
other than small.
Several commenters asserted that current regulations adequately
protect small business interests and prevent awards from being issued
to large companies masquerading as small businesses. We strongly
disagree with the assertion that existing rules adequately prevent
orders awarded to large business concerns from being counted as awards
to small business concerns for goaling purposes. There are numerous
reports, studies, and articles documenting cases where order awards to
large businesses are counted as awards to small businesses (e.g., SBA
Advocacy, ``Analysis of Type of Business Coding for the Top 1,000
Contractors Receiving Small Business Awards in FY 2002'', December
2004; GAO, ``Contract Management: Reporting of Small Business Contract
Awards Does Not Reflect Current Business Size'' (Report GAO-
03-704T, May 7, 2003, http://www.gao.gov).
Several commenters asserted that problems in the current system can
be solved through better training. We disagree. Many of these practices
were legal under the current system. Several commenters argued that
criminal prosecution for false size certifications would solve the
apparent problems. Again, we disagree. The Small Business Act contains
criminal penalties for false size certifications (15 U.S.C. 645), but
many of the actions in question did not involve criminal conduct.
Instead, a number involved human error, and others involved taking
advantage of legal loopholes under the existing regulatory system,
which was created before the advent of long-term multiple award task
and delivery order contracts.
Some Congressional responders recommended allowing firms to retain
their size status if they are within a certain percentage of the
relevant size standard, arguing that this approach will allow a concern
to grow and benefit from the multi-year contracts they have been
successful in winning. The issue of changing or altering size standards
is beyond the scope of this rule. SBA has requested and received
comments concerning size standards, and may address this issue as part
of a separate rule-making.
Several commenters requested clarification on what would happen if
a concern that was large at the time of its initial offer for a
contract became small during the course of a contract. The vast
majority of cases that SBA is aware of involved companies that outgrew
their size, not the reverse. Nevertheless, we believe on a long-term
contract a concern should be able to change its size status from other
than small to small on an unrestricted procurement for statistical
purposes. The final rule amends the regulations to allow an other than
small firm to certify its small business size status in connection with
the exercise of an option.
Several commenters argued that if periodic re-certification is
adopted, SBA should specifically limit the authority of a contracting
officer to obtain a size certification for a particular order under a
multi-award contract. We disagree. First, a significant number of
commenters supported requiring size certifications on an order-by-order
basis. Agencies are increasingly conducting complex multi-year, multi-
million dollar procurements as competitions for orders under the MAS
program, where offerors submit ``quotes'' that exceed, in terms of
volume and complexity, proposals. Allowing procuring agencies to
request size certifications in connection with particular orders is
consistent with the purposes of the Small Business Act (procurements
meant for small businesses should be awarded to small businesses) and
has been upheld by the GAO and the Court of Federal Claims. See LB&B
Associates, Inc. v. U.S., 68 Fed. Cl. 765 (Fed. Cl. 2005); CMS
Information Services, Inc., B-290541, Aug 7, 2002, 2002 CPD ] 132. The
final rule gives contracting officers the discretion to request size
certifications for individual orders, but does not require them to do
so. One commenter asserted that under the 8(a) BD or the HUBZone
Program, eligibility must be met at the time of award of a task or
delivery order contract and for each order. We disagree. SBA's 8(a) BD
and HUBZone program regulations do not require concerns to meet HUBZone
or 8(a) eligibility requirements on an order-by-order basis.
One commenter recommended that SBA use the term ``representation''
instead of ``certification'' when referring to matters concerning size
status for contracts. SBA's regulations provide that size will be
determined as of the date a concern submits a written self-
certification of size, but the self-certification occurs when an
offeror represents that it is small as part of its offer or by
submitting an offer. FAR Clauses 52.219-1, 52.204-8. Thus, those terms
have been used interchangeably in the context of determining status as
a small business concern, and are used in that manner throughout this
rule.
One commenter recommended that SBA consider requiring firms to re-
certify their size status prior to contract award. We disagree. First,
the majority of the problems that prompted this rule did not involve
firms that grew large prior to award. Instead, many of the problems
revolved around firms that were small at contract award but
substantially exceeded the applicable size standard when orders were
awarded several years later. Second, the general rule provides finality
to concerns and procuring agencies and appears to be working well.
Several commenters argued for a three-year re-certification rule,
since a firm's size under an annual revenue size standard is calculated
by averaging annual revenue for the three most recently completed
fiscal years. While this approach has some merit, we believe five years
is more appropriate, because it is consistent with how long a firm
retains its size status under traditional five-year contracts.
Many comments concerning re-certification were beyond the scope of
the rule. These comments included
[[Page 66439]]
suggestions that procuring agencies should be prohibited from awarding
small businesses contracts with values that will far exceed the
applicable size standard, and requests that the re-certification rule
apply to the Small Business Innovative Research (SBIR) and financial
assistance programs.
NAICS Code
Several commenters asserted that a business could be small for a
particular order but not for its underlying contract. If a concern has
not submitted a written self-certification that it is small along with
its offer (including price) for the underlying contract, then the only
way such a concern could be considered small for the order is if the
ordering agency requests size certifications in connection with a
solicitation for the order. Otherwise, the concern is large and the
order will not count as an award to a small business.
GSA questioned the need for NAICS codes for all orders and
solicitations for orders, arguing that ordering agencies are interested
in acquiring total solutions which may be provided under different MAS
contracts, with different NAICS codes and size standards. However, for
MAS orders, the FAR currently provides that ``For purposes of reporting
an order placed with a small business schedule contractor, an ordering
agency may only take credit if the awardee meets a size standard that
corresponds to the work performed.'' FAR Sec. 8.405-5(a). The only way
to determine whether an awardee meets a size standard that corresponds
to the work to be performed is by assigning a specific size standard to
the order. As a result of the comments received, we have decided that a
NAICS code and corresponding size standard will be required for each
and every order. For contracts where there is only one NAICS code and
size standard, the order will contain the same NAICS code and size
standard. For contracts with multiple NAICS codes and size standards,
the order will contain the NAICS and size standard from the underlying
contract that best corresponds to the work to be performed, and only
concerns that have certified that they are small for that same or lower
size standard will be deemed to be small for that particular order.
One commenter stated that the proposed regulations should provide
guidance as to how to determine the appropriate NAICS code, and should
indicate if a small business can or should aggregate the size standards
of multiple NAICS codes when determining whether it qualifies for a
procurement. SBA's regulations already adequately address how NAICS
codes are assigned to procurements. 13 CFR 121.402. SBA's regulations
do not allow size standards to be aggregated. One commenter requested
clarification on how size standards based on number of employees are
distinguished from size standards based on average annual receipts,
which is also already adequately addressed in SBA's regulations. 13 CFR
121.104, 121.106, 121.201.
Finally, we have decided that for purposes of a size re-
certification in connection with an option period, the appropriate size
standard to use is the size standard in effect at the time the size re-
certification is requested, and not the size standard that was in
effect when the contract was originally solicited. The final rule will
enable the Government to get more accurate small business government
contracting statistics and allow concerns to take advantage of
increases in size standards that occur due to inflation adjustments or
other periodic reviews.
Size Protests
Several comments were received concerning the size protest process,
and SBA has modified the final rule in response to these comments. Many
government agencies objected to the proposed public notice requirement,
which would have required contracting agencies to post on a website or
publish in the Federal Register a list of concerns that had submitted
size re-certifications. We have essentially adopted the existing five
business day rule for size protests in connection with long-term
contract awards, options, and orders. Because written notice is not
required in many instances, e.g., in connection with an order
competition or when an option is exercised, unsuccessful offerors will
be required to file protests within five days of receipt of notice,
whether the notice is received in writing, orally or via electronic
posting.
The effect of a negative protest decision will depend on the type
of contract and the certification that is being protested. Under
existing rules, if a firm is found to be other than small with respect
to a full and open contract, the procuring agency will change the
concern's status from ``small'' to ``other than small,'' but the
concern does not lose its contract. If a size protest is filed with
respect to an initial size certification for a small business set-aside
contract and the firm is found to be other than small, the contract
should not be awarded, or if it was awarded, the contract would have to
be terminated, since eligibility for award was based on the initial
size certification. For size protests concerning representations made
for options under a contract, if a firm is found to be other than
small, a contracting officer will have to alter the firm's status in
FPDS-NG. Whether the procuring agency exercises the option, or
continues to place orders under the contract, is at the discretion of
the contracting officer. SBA's regulations do not prohibit a
contracting officer from exercising an option in such a case. With
respect to size protests in connection with a size certification for a
particular order, if a concern is found to be other than small the
concern is not eligible for award of the order.
One commenter stated that SBA does not have jurisdiction to permit
size protests with respect to orders under multiple award contracts,
citing 41 U.S.C. 253j(d). We disagree. The statutory provision cited
above applies to protests concerning the procurement process. The
statute does not specifically reference size status protests, and there
is no evidence in the legislative history to support the proposition
that Congress intended to bar size status protests with respect to
particular orders. GAO and the Federal Courts have upheld a procuring
agency's authority to request size certifications with respect to
particular orders. See LB&B Associates, Inc. v. U.S., 68 Fed. Cl. 765
(Fed. Cl. 2005); CMS Information Services, Inc., B-290541, Aug 7, 2002,
2002 CPD ] 132.
Several commenters requested that SBA clarify whether there are any
consequences if a party files a size protest and the protest is found
to be without merit. Penalizing parties for filing protests would have
a devastating impact on the integrity of the procurement system, which
is based on self-policing by the procurement community. Moreover,
unsubstantiated, non-specific protests are routinely dismissed without
requiring any action by the protested concern.
Several commenters questioned whether SBA has any process in place
to verify business size other than the protest procedures. SBA does
review questionable size representations that are made by firms in the
Government's Central Contractor Registration (CCR) system which
contains small business data in the Dynamic Small Business Search
(DSBS) engine. CCR is also linked to the Government's On-line
Representations and Certifications Application (ORCA) which contains
small business size status data relating to offers submitted for
Federal contracting opportunities. However, size status for procurement
purposes is a function of the work to be performed. A
[[Page 66440]]
concern can be small for one type of work and large for another type of
work. The size protest process is the only feasible and practicable way
to resolve issues in reference to a concern's size with respect to a
specific contract or order.
One commenter recommended that SBA conduct on-site visits. We
disagree. The size protest process as it exists now has worked well for
decades. The problems and complaints that prompted this rule did not
involve any failure within the size protest process.
8(a) BD Program
Several commenters argued that the proposed rule would harm
concerns that are transitioning out of the 8(a) BD program. However,
SBA's rule does not prohibit procuring agencies from exercising options
on 8(a) contracts where 8(a) concerns have grown to be large. Moreover,
concerns begin transitioning out of the 8(a) BD program in their fifth
year of program participation, and are supposed to be able to compete
in the open marketplace when their term of participation in the program
ends, not several years after they leave the program. The size rules
should apply uniformly across small business programs.
Several commenters asked whether the final rule supercedes the 8(a)
BD MOU between SBA and GSA concerning the MAS program. The MOU between
SBA and GSA with respect to the MAS program expired in 2003.
Traditionally, procuring agencies have only been allowed to take credit
towards their 8(a) contracting goals for sole source contract awards
and contracts awarded pursuant to competition limited exclusively to
8(a) concerns. Orders issued under full and openly competed MAS
contracts, where an 8(a) firm competes with non-8(a) small firms and
large firms, does not satisfy the 8(a) statutory requirement that
competition for an 8(a) award must be limited to eligible 8(a) firms.
Thus, procuring agencies can no longer take 8(a) credit for orders
awarded to 8(a) firms under full and open MAS contracts.
One commenter argued that a firm that is no longer in the 8(a) BD
program should no longer receive orders as an 8(a) small business. The
Small Business Act provides that a concern that is an eligible 8(a)
concern at the time specified in the solicitation for the receipt of
initial offers may be awarded a competitive 8(a) contract, even if the
concern exits the program prior to award. 15 U.S.C. Sec. 637(a)(1)(B).
Consequently, task or delivery orders issued under such a contract
would be counted as orders to an 8(a) concern. On a long-term 8(a)
contract, if a firm is no longer small at the time an option is
exercised, a procuring agency can exercise the option, but orders
issued during that option period will not count as 8(a) awards.
Compliance With Executive Orders 13132, 12988, and 12866, the
Regulatory Flexibility Act (5 U.S.C. 601-612), and the Paperwork
Reduction Act (44 U.S.C. Ch. 35)
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
final rule constitutes a significant regulatory action under Executive
Order 12866.
Paperwork Reduction Act
For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA
determined that the rule imposes a new reporting requirement. Small
business concerns are required by this rule to re-certify their size
status prior to the end of the fifth year, and at the time each option
is exercised thereafter. Specifically small businesses are required to
recertify their size status for the NAICS code and size standard
contained in the applicable contract. SBA has submitted this
information collection to OMB for review.
Three comments raised concerns regarding additional paperwork
associated with a re-certification on long-term contracts and the
possible costs. In particular, these commenters identified a new
requirement to provide additional reporting of their small business
status as time consuming and costly. In addition, they expressed
concern that they may have to provide information in response to
protests of their small business status.
SBA does not agree that this rule will impose any significant
burden on small businesses. Businesses must prepare and keep
information on their size in the course of business with the Federal
Government as both prime contractors and as subcontractors to other
prime Federal contractors. Businesses rely on that information to self-
certify that they are a small business but do not need to provide the
information for the Government's review unless a size protest
challenging that self-certification is filed with the contracting
officer. Since the publication of the proposed rule, the Federal
Government has implemented ORCA to collect data in reference to offers
placed against specific solicitations. Small business size status for
the NAICS code contained in the specific solicitation is one data
element collected. Small businesses are required to verify and update
that data in ORCA on an annual basis. The information used to re-
certify small business status is the same as that already being
provided on a regular basis and is no different from the information
used for self-certifications currently provided in ORCA by businesses
during the solicitation period.
Executive Order 12988
This final rule meets applicable standards set forth in section
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to
minimize litigation, eliminate ambiguity and reduce burden to the
extent practicable.
Executive Order 13132
This final rule will not have substantial direct effect on the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, for purposes of Executive
Order 13132, SBA has determined that this final rule has no federalism
implications warranting the preparation of a federalism assessment.
Regulatory Flexibility Act
SBA has determined that this rule could have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. Therefore, SBA
has prepared a Final Regulatory Flexibility Act (FRFA) analysis
addressing the proposed regulation.
The RFA provides that when preparing a FRFA, an agency shall
address all of the following: a statement of the need for, and
objectives of, the rule; a summary of the significant issues raised by
the public in response to the initial regulatory flexibility analysis
(IFRA); a description of the estimate of the number of small entities
to which the rule will apply; a description of the projected reporting,
recordkeeping and other compliance requirements; and a description of
the steps taken to minimize the significant economic impact on small
entities. This FRFA considers these points and the potential impact of
the proposed regulation concerning multiple award or schedule contracts
on small entities.
(a) Need for, and Objectives of, the Rule
Under the Small Business Act, SBA is authorized to specify detailed
definitions and size standards by which an entity may be determined to
be a small business concern. 15 U.S.C. 632(a)(2). SBA's definitions and
size standards relating to SBCs are set forth in 13 CFR part 121.
Pursuant to SBA's
[[Page 66441]]
current regulations (13 CFR 121.404(g)), a concern's size status for a
particular contract is determined as of the date that it submits its
initial offer, including price, for the contract. This includes GWACs,
FSS and MAS contracts. If a concern is small as of that date, it is
generally considered small for the life of the contract and for all
orders issued pursuant to that contract. With options, these long-term
contracts have durations of 10-20 years or longer. Under current
policy, a concern that certified itself as small to receive a long-term
contract, could still be considered small for subsequent orders issued
pursuant to the contract even if the business concern is no longer
small. Agencies are then able to count, for small business goaling
purposes, an order as an award to a small business even though the
concern may have grown to be other than small or may have merged with
or been acquired by a large business. Unfortunately, this means that
Federal agencies that meet their SBC goals by counting awards to former
SBCs do so at the expense of SBCs that currently meet SBA's small
business criteria, because those agencies may not seek other
procurement opportunities with the present universe of SBCs, believing
that they have met their SBC goal through orders to concerns that are
no longer small. As a result of the increasing use of these long-term
contracts, SBA believes it is necessary to amend its regulations and
address these size eligibility issues for orders issued pursuant to
long-term contracts.
(b) Summary of Significant Issues Raised by the Public in Response to
the Initial RFA
SBA received 17 comments on the IRFA. These comments focused on
several issues that are discussed below.
One issue concerned the impact and significance of the proposed
rule considering the small number of small businesses affected.
According to two commenters, SBA indicated that it expected that an
annual re-certification would result in only 6-12 businesses each year
reporting a change in size status. If all 12 companies are assumed to
receive average annual orders in line with the average value of orders
received by individual small businesses ($1.5 million), then the total
impact of this ``erroneous'' classification equates to only .13% of
total FSS dollars. Even if the average value of dollars obligated
annually ($50 million) by the four companies that grew to be large is
considered to be representative of the problem, then the impact
increases to only .98% of total FSS dollars. In their view, it is not
practicable or reasonable to institute an annual re-certification
requirement for all small businesses to correct a problem that appears
to involve only a very few companies.
One commenter also stated that the SBA calculation that led to its
conclusion is based on data that is in some cases 6 to 10 years old,
and includes figures for all small businesses in the U.S., not just
those that actually participate in the Federal Government contracting
that would be covered by this proposed rule. The commenter stated that
from this generic data, SBA concludes: (i) only 6 to 12 businesses a
year will be affected by the proposed rule; and (ii) that the actual
number will be greater than this estimate, although this figure is also
unknown to the Agency. According to the commenter, this unknown impact
on the small business economy warrants that additional time be given to
properly analyze how many small businesses will be affected. The
commenter recommends that a formal survey of the estimated 6,000
contract holders should be taken in order to get a realistic estimate
of the number of concerns affected, and the number of jobs that will be
lost by this proposed rule.
SBA has re-estimated the potential impact of the re-certification
policy based on current data from the DSBS database contained in the
CCR and FPDS. The next section of this FRFA discusses the new analysis,
which estimates a larger number of small businesses, initially 2,300
concerns and approximately 250 annually thereafter, will be affected by
this rule. While the actual impact is difficult to ascertain, SBA
believes the updated analysis in this rule more realistically describes
the potential impact on small businesses. SBA also believes that the
accuracy of reporting Federal small business awards in determining the
achievement of Federal agencies in meeting their small business goals
and the subsequent implications on potential contracting opportunities
for small businesses unquestionably supports the need to address the
issue of small business certification on long-term contracts.
Two commenters expressed concern about the extent of SBA's
consideration of minimizing burdens on small businesses. One commenter
stated that SBA had performed an analysis in accordance with the RFA,
but there remains a question as to whether the law was, in fact,
followed. The commenter believed that the SBA violated the spirit of
the RFA which attempts to minimize costly and burdensome regulation on
small businesses, while rejecting other, less burdensome, choices.
Another commenter stated that this change will require every small
business owner to fill out additional paperwork each year on each
contract they hold. This information will then have to be collected,
analyzed, verified and then stored in a new information system for use.
This information would likely be subject to an increased number of FOIA
requests from competitors, requiring further paperwork and Government
resources.
In the proposed rule, SBA did consider the paperwork burden on
small businesses of an additional requirement to re-certify small
business status. Because businesses must maintain up-to-date
information on their size, the burden to re-certify on a more frequent
basis should be minimal. Furthermore, since the publication of the
proposed rule, the Federal Government has implemented ORCA, which
requires small businesses placing offers on Federal contracts to
electronically certify their small business size status for the
specific NAICS code contained in the solicitation. In addition, the
small business must review and update the data, at the minimum, on an
annual basis. Thus, although SBA has adopted a five year re-
certification requirement for long-term contracts, small businesses are
not being asked to provide information that is not otherwise being
provided on at least an annual basis.
Several commenters raised issues concerning the implications of an
annual re-certification on small businesses opportunities. According to
one commenter, the proposed rule is overly broad and would make it
financially infeasible for small businesses to bid on multiple award
contracts or the agencies to issue them. If SBA's proposal were
enacted, argue these commenters, small businesses could invest in the
upfront establishment of its office and personnel only to become
ineligible after a year because it exceeded the size standard. They
contend that it would be impossible to recoup the costs expended
upfront to get the work. Overall, these commenters took the position
that the proposed rule ignored the reality of pursuing business,
pointing out that there is an upfront investment that can only be
recouped over time.
More specifically, one commenter stated that annual re-
certification would have a negative impact on their progress payment
reimbursement rate, from 90 percent to 75 percent. One commenter stated
that small businesses, particularly in the services industry, which are
trying to maintain a prescribed size standard to insure continued
performance on existing contracts, will
[[Page 66442]]
be unable to develop a long-term marketing strategy under the proposal.
This commenter also noted that they will also be confronted with
significant employee issues, as their ability to hire and retain
qualified employees will be diminished given the limited growth
opportunities for employees.
One commenter stated that the proposed regulation discourages
businesses from taking on new projects or hiring additional workers in
order to avoid losing eligibility under the annual re-certification
process. In the view of this commenter, a small concern must therefore
choose whether to turn down work from other sources so it will be small
when called upon to fulfill a task order, or to risk being unable to
re-certify the next year.
One commenter stated that most small businesses require several
years to adequately adjust in the marketplace to compete with large
businesses, adding that crossing a dollar threshold does not make a
company well positioned to realistically compete with multi-billion
dollar a year full and open competitors.
Another commenter stated that the proposed rule will have two
results: (1) A company considering acquiring an emerging small business
will lower the price tag of the business, and (2) sources of capital
(banks and venture capitalist), because of the increased risk on their
investment, will increase the cost of capital. A five-year Federal
contract has a predictable rate of return as opposed to a Federal
contract that could lose its preferential status as a result of its
success. According to the commenter, this proposed rule increases
``risk'' and this ``risk'' will have to be considered by owners and
investors in making investment decisions. In the end, stated the
commenter, emerging small businesses will be unable to develop a long-
term marketing and growth strategy.
Still another commenter stated that the proposed annual re-
certification requirement will impose substantial uncertainty and new
costs on small business. In particular, argues the commenter, the
requirement threatens to penalize those small business companies that
successfully compete and obtain long-term contracts. Such companies may
achieve a short-term temporary increase in receipts and growth in
business, but this would be quickly followed by loss of small business
status and disqualification from those types of contracts. This, in
turn, would lead to loss of MAS contracts, resulting in lost receipts,
employee layoffs and other cutbacks. While the company might as a
result regain small business status, states the commenter, this would
not be until after a delay of at least a few years, when MAS contracts
would not be included in the years used to calculate annual receipts.
As explained above, SBA took into consideration these and other
comments to the proposed rule and has revised the final rule to require
re-certification prior to the sixth year and prior to each option
thereafter. SBA believes that the longer time period allowed on these
contracts before re-certification alleviates many of the valid concerns
raised by these comments.
Five commenters stated that size protests are an expensive and
disruptive process. The commenters suggested small businesses will be
forced to expend limited financial capital defending themselves against
a protest, many of which are likely to be frivolous, which they
consider an especially onerous change. The proposed requirement would
cause small business to regard long-term contracts as an unreliable
source of temporary business only, which would put a company at great
risk or cause uncontrollable and unplanned business disruption. One
commenter stated that for those companies already awarded GSA MAS
contracts, the proposed change would drastically affect contract terms
since companies would be required to put extra time into reporting
their small business size status. This extra reporting requirement to
GSA and SBA does have pricing implications. One commenter stated that
protests will bring contracting to a halt and the Administration's
budget for construction will not be obligated and projects will not be
finished on time.
Issues related to size protests were discussed in the supplemental
information section and modifications to the proposed rule have been
adopted. Size protests on long-term, multi-agency contracts are needed
to preserve the integrity of the procurement system and small business
reporting. SBA's size protest procedures do not unduly burden
contractors or procuring agencies. Furthermore, frivolous protests that
provide no basis for an allegation are routinely dismissed by SBA. Size
protests accepted by SBA are usually processed within 10 business days
and do not delay the contracting process. Moreover, for full and open
long-term contracts, a size determination by SBA with respect to a
concern's certification for its contract or option period would not
prevent that business from obtaining an order, and would only affect
how the Federal Government reports the size status of the business for
statistical purposes.
(c) Estimate of the Number of Small Entities to Which the Rule May
Apply
The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rule. The RFA defines ``small entity'' to include
``small businesses'', ``small organizations'', and ``small governmental
jurisdictions.'' SBA's programs do not apply to ``small organizations''
or ``small governmental jurisdictions'' because they are non-profit or
governmental entities and do not qualify as ``business concerns''
within the meaning of SBA's regulations. SBA's programs generally apply
only to for-profit business concerns. Therefore, the regulation (like
the regulation currently in effect) will not impact small organizations
or small governmental jurisdictions.
Small businesses that participate in Federal Government contracting
are the specific group of small entities affected most by this rule.
While there is no precise estimate for the number of SBCs that will be
affected by this rule, there are approximately 368,000 SBCs registered
in the CCR's DSBS database (formerly known as PRO-Net). The DSBS
contains profiles of SBCs that includes information from SBA's files
and CCR. Second, SBA notes that this rule would likely affect those
small businesses having long-term contracts that were small at the time
of the initial contract award, are no longer small, and those SBCs that
become large over time as a result of business growth. The number of
SBCs awarded long-term contracts are much less than the DSBS figure,
and those that have grown to be, or later become, other than small from
the time of the award of their long-term contract is even smaller.
Therefore, this rule will not impact all of the SBCs with long-term
contracts, but, as described below, would impact approximately 250
businesses each year.
According to the FPDS, in fiscal year (FY) 2003, 13,981 concerns
held long-term contracts, of which 8,740 were reported as SBCs. To
estimate the number of SBCs that could lose small business status as a
result of recertifying their status, SBA estimated the proportion of
SBCs that could exceed the small business category if they received the
average amount of long-term contracts and applied that proportion to
the number of SBCs currently holding those contracts. For FY 2003, FPDS
reported 243,462 actions issued for $42.6 billion pursuant to long-term
contracts of $25,000 or more. Of these actions, 8,740 SBCs received
100,646 actions valued at $14.2 billion.
[[Page 66443]]
On average, an SBC obtained 11.5 actions (100,646/8,740 = 11.5) valued
at $1.6 million (($14,174,943,960/8740 = $1,621,847). Based on the
DSBS, SBA estimates that approximately 11,200 SBCs could exceed the
applicable size standard if they received the average size long-term
contract. This estimate was derived by identifying the number of small
businesses in the DSBS that are below the most widely used size
standards by $1.6 million. That is, SBA examined SBCs between the size
range of $4.9 million to $6.5 million, 475 to 500 employees, and $21.4
million to $23 million (limited to the information technology services
industries). These SBCs represent 3.0% of all SBCs in the DSBS (11,200/
368,000 = 0.0304). Assuming that the size distribution of SBCs on the
DSBS is the same as the distribution of SBCs with these contracts, 266
SBCs could outgrow their small business status as a result of receiving
orders under multiple award contracts (8,740 x 0.0304 = 265.7).
This estimate of the number of SBCs may be higher or lower
depending on two factors. First, orders may be concentrated among a
limited number of SBCs, resulting in awards for those businesses much
higher in value than the average long-term contract. Second, revenues
from other business activities may cause a SBC to exceed its size
standard. The estimate calculated above provides a picture of the
relative impact that could occur if orders were equally distributed to
all SBCs. Although it is impossible to estimate the actual impact of
the rule with any degree of certainty, it serves to illustrate the
point that a relatively small proportion of SBCs would likely
experience a change in small business status.
Based on the number of potential SBCs outgrowing small business
status and the $1.6 million average SBC award, $431 million of long-
term contracts could be held by concerns changing status from an SBC to
a large business ($1,621847 x 266 = $431.4 million). The net impact of
SBCs changing size status is unpredictable. One of two outcomes may
result. First, future orders would be made to the former SBCs and
reported as large business awards. Second, contracting officers could
decide to place orders with currently defined SBCs, resulting in a
redistribution of orders away from the former SBCs. Only a limited
number of orders placed against long-term contracts are reserved for
SBCs. However, SBA believes that in many instances contracting officers
have sought out SBCs to help fulfill their agency's small business
goals. SBA has no way of knowing to what extent contacting officers
would continue to utilize the former SBCs because they fulfill the
requirements being sought or would decide to seek out other SBCs.
SBA estimates that the number of concerns affected in the first
year of this final rule to be 2,300 businesses. SBA examined FY 2003
orders issued under Federal schedule contracts and multiple award
contracts to SBCs. The small business status of 8,600 contractors was
compared to the information contained in the DSBS to identify which
contractors are currently small and which are currently not listed as
small. The comparison showed that approximately 6,300 contractors are
listed in the DSBS as SBCs and almost 2,300 contractors are not.
Most businesses holding multiple award contracts affected by this
rule have not had to certify their size status since their award
contract, which could be as long as 8 years ago in a few cases. Over
time, some SBCs have grown beyond the small business size standards
criteria or were merged or acquired by large businesses. In some
instances, data input on a task order or contract was incorrectly
reported as an award to an SBC or the contractor did not accurately
report its small business status.
SBA also examined the value of contracts received by small
businesses and those contractors currently identified as not small. Of
$14.2 billion in multiple award contracts reported to SBCs in FY 2003,
approximately $3.78 billion, or 26.6%, were in the name of one of the
2,300 contractors not listed as small in the DSBS. As discussed above,
it is impossible to predict how this final rule will affect the future
distribution of contracts. In many cases, SBA expects that contracting
officers will seek out and make award orders to currently defined SBCs.
In other cases, the same contractor would receive the order because of
the nature of the requirement or how the order is competed.
(d) Projected Reporting, Recordkeeping and Other Compliance
Requirements
This final rule imposes a new reporting requirement on small
businesses. Specifically, small business concerns are now required to
recertify their size status prior to the end of the fifth year of a
contract, and thereafter, prior to exercising any options. However, SBA
does not believe that this provision imposes any new recordkeeping
requirements. SBCs have always been required to keep records pertaining
to their size and to certify as to their size status to receive Federal
benefits. The information needed to recertify under this rule is the
same information small business concerns currently submit for
Government contracts to receive a preference or for an agency to count
the award as one to a small business. In addition, the information is
based on records that are generally kept in the ordinary course of
business, such as Federal income tax returns. Finally, as noted above,
the Federal Government's implementation of ORCA in January 2005
requires businesses with Federal contracts to update on an annual basis
the information that they submitted at solicitation, including
information on their small business status. Thus, small businesses are
not being asked to provide information that they do not already need to
maintain.
(e) Steps Taken To Minimize the Significant Economic Impact on Small
Entities
SBA has decided to require re-certification prior to the beginning
of the sixth year and prior to each option thereafter. As discussed in
the preamble, SBA believes this policy minimizes the impact on small
businesses for long-term contracts.
List of Subjects
13 CFR Part 121
Administrative practice and procedure, Government procurement,
Government property, Grant programs--business, Loan programs--business,
Individuals with disabilities, Reporting and recordkeeping
requirements, Small businesses.
13 CFR Part 124
Administrative practice and procedure, Minority businesses,
Reporting and recordkeeping requirements, Technical assistance.
0
For the reasons stated in the preamble, the Small Business
Administration amends parts 121 and 124 of title 13 of the Code of
Federal Regulations as follows:
PART 121--SMALL BUSINESS SIZE REGULATIONS
Subpart A--Size Eligibility Provisions and Standards
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1. The authority citation for part 121 continues to read as follows:
Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 637(a), 644 and
662(5); and, Pub. L. 105-135, sec. 401 et seq., 111 Stat. 2592.
0
2. Amend Sec. 121.404 as follows:
0
a. Add a sentence at the end of paragraph (g).
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b. Add new paragraphs (g)(1), (2) and (3).
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c. Remove paragraph (i).
[[Page 66444]]
Sec. 121.404 When does SBA determine the size status of a business
concern?
* * * * *
(g) * * * However, the following exceptions apply:
(1) Within 30 days of an approved contract novation, a contractor
must recertify its small business size status to the procuring agency,
or inform the procuring agency that it is other than small. If the
contractor is other than small, the agency can no longer count the
options or orders issued pursuant to the contract, from that point
forward, towards its small business goals.
(2) In the case of a merger or acquisition, where contract novation
is not required, the contractor must, within 30 days of the transaction
becoming final, recertify its small business size status to the
procuring agency, or inform the procuring agency that it is other than
small. If the contractor is other than small, the agency can no longer
count the options or orders issued pursuant to the contract, from that
point forward, towards its small business goals. The agency and the
contractor must immediately revise all applicable Federal contract
databases to reflect the new size status.
(3) For the purposes of contracts with durations of more than five
years (including options), including Multiple Award Schedule (MAS)
Contracts, Multiple Agency Contracts (MACs) and Government-wide
Acquisition Contracts (GWACs), a contracting officer must request that
a business concern re-certify its small business size status no more
than 120 days prior to the end of the fifth year of the contract, and
no more than 120 days prior to exercising any option thereafter. If the
contractor certifies that it is other than small, the agency can no
longer count the options or orders issued pursuant to the contract
towards its small business prime contracting goals. The agency and the
contractor must immediately revise all applicable Federal contract
databases to reflect the new size status.
(i) A business concern that certified itself as other than small,
either initially or prior to an option being exercised, may recertify
itself as small for a subsequent option period if it meets the
applicable size standard.
(ii) Re-certification does not change the terms and conditions of
the contract. The limitations on subcontracting, non-manufacturer and
subcontracting plan requirements in effect at the time of contract
award remain in effect throughout the life of the contract.
(iii) A request for a size re-certification shall include the size
standard in effect at the time of re-certification that corresponds to
the NAICS code that that was initially assigned to the contract.
(iv) A contracting officer must assign a NAICS code and size
standard to each order under a long-term contract. The NAICS code and
size standard assigned to an order must correspond to a NAICS code and
size standard assigned to the underlying long-term contract. A concern
will be considered small for that order only if it certified itself as
small under the same or lower size standard.
(v) Where the contracting officer explicitly requires concerns to
recertify their size status in response to a solicitation for an order,
SBA will determine size as of the date the concern submits its self-
representation as part of its response to the solicitation for the
order.
(vi) A Blanket Purchase Agreement (BPA) is not a contract. Goods
and services are acquired under a BPA when an order is issued. Thus, a
concern's size may not be determined based on its size at the time of a
response to a solicitation for a BPA.
* * * * *
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3. Amend Sec. 121.1004 by revising paragraph (a)(3) to read as
follows:
Sec. 121.1004 What time limits apply to size protests?
(a) * * *
(3) Long-Term Contracts. For contracts with durations greater than
five years (including options), including all existing long-term
contracts, Multiple Award Schedule (MAS) Contracts, Multiple Agency
Contracts (MACs), and Government-wide Acquisition Contracts (GWACs):
(i) Protests regarding size certifications made for contracts must
be received by the contracting officer prior to the close of business
on the 5th day, exclusive of Saturdays, Sundays, and legal holidays,
after receipt of notice (including notice received in writing, orally,
or via electronic posting) of the identity of the prospective awardee
or award.
(ii) Protests regarding size certifications made for an option
period must be received by the contracting officer prior to the close
of business on the 5th day, exclusive of Saturdays, Sundays, and legal
holidays, after receipt of notice (including notice received in
writing, orally, or via electronic posting) of the size certification
made by the protested concern.
(A) A contracting officer is not required to terminate a contract
where a concern is found to be other than small pursuant to a size
protest concerning a size certification made for an option period.
(B) [Reserved]
(iii) Protests relating to size certifications made in response to
a contracting officer's request for size certifications in connection
with an individual order must be received by the contracting officer
prior to the close of business on the 5th day, exclusive of Saturdays,
Sundays, and legal holidays, after receipt of notice (including notice
received in writing, orally, or via electronic posting) of the identity
of the prospective awardee or award.
* * * * *
PART 124--8(A) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS
STATUS DETERMINATIONS
Subpart A--8(a) Business Development
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4. The authority citation for part 124 continues to read:
Authority: 15 U.S.C. 634(b)(6), 636(j), 637(a), 637(d) and Pub.
L. 99-661, Pub. L. 100-656, sec. 1207, Pub. L. 101-37, Pub. L. 101-
574, and 42 U.S.C. 9815.
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5. Amend Sec. 124.503 to revise paragraph (h) to read as follows:
Sec. 124.503 How does SBA accept a procurement for award through the
8(a) BD program?
* * * * *
(h) Task and Delivery Order Contracts. If a task or delivery order
contract was previously offered to and accepted into the 8(a) BD
program, task and delivery orders under the contract are not to be
offered to or accepted into the 8(a) BD program. See Sec.
121.404(g)(3) for rules concerning size re-certifications in connection
with long-term contracts.
* * * * *
Dated: November 7, 2006.
Steven C. Preston,
Administrator.
[FR Doc. E6-19253 Filed 11-14-06; 8:45 am]
BILLING CODE 8025-01-P