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Federal Market Intelligence for Small Business |
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FAR error?A DC-based government contracting attorney is calling attention to a “significant” and “inconsistent” change to small business size representation regulations in the FAR Council’s recent final rule. “The FAR Council made a critical change that not only deviates from SBA regulations, but also runs counter to everything we know about when the size status of a contractor is determined,” Samuel S. Finnerty, PilieroMazza attorney, wrote in a May 6 blog entry. Specifically, the FAR Council in a Feb. 27 final rule amended FAR 19.301–1(c) to provide that to be eligible for award of an order set aside for small business under a Basic Ordering Agreement or Blanket Purchase Agreement issued pursuant to FAR Part 13, the offeror must be a small business at the time of award of the order, Finnerty wrote. The rule is problematic, he added: “Size is generally determined as of the date a concern submits its initial offer, including price—and not at the time of award. In fact, apart from a few narrow exceptions that do not apply in the present context, size is never determined at the time of award,” Finnerty wrote. In addition, he says the rule does not align with existing regulations on BPAs with GSA under FAR Part 13. “Because GSA schedules are contracts, and offerors represent their size status at the time of offer for the same, SBA regulations expressly provide that such contractors are not required to rerepresent their size status in connection with orders under BPAs issued against GSA schedule contracts,” he wrote. By creating new and inconsistent requirements, the new rule could have “major consequences” for schedules contractors as a result, Finnerty wrote. GSA and SBA officials were not immediately available.
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