November 15, 2007

Department of the Interior Acquisition Guidance (DOIAG) 2008-01

SUBJECT: Small Business Representation

Reference: Federal Acquisition Regulation (FAR) Subpart 4.12, "Representations and Certifications", Subpart 17, "Special Contracting Methods", and, Part 19, "Small Business Programs"

1. Purpose:

This acquisition guidance release is issued to inform procurement staff of the small business rerepresentation process.

2. Effective Date:

Effective immediately upon issuance.

3. Background and Explanation:

Federal Acquisition Circular (F AC 2005-18) amended the FAR to implement the Small Business Administration's final rule regarding small business rerepresentation. The purpose of this change is to improve accuracy ofsmall business size status reporting, at the prime contract level, over the life of certain contracts (long-term contracts, contracts involving novations, acquisitions, and mergers). Rerepresentation is intended to address situations where a concern was small at the time of award but, over the course of the contract, has become other than small.

It is important to note that a change in the size status does not change the terms and conditions of the contract.

4. Applicability:

The small business re-representation rule applies to all solicitations issued and contracts awarded on or after June 30, 2007, over the micro-purchase threshold. The rule also applies to long-term contracts awarded prior to June 30, 2007. Long-term contracts are defined by FAR 19.301-2 as contracts with a period of performance of more than five years, including options. It does not, however, include contracts that exceed five years in duration because the period of performance has been extended for a cumulative period not to exceed six months under clause 52.217-8, Option to Extend Services, or other appropriate authority. Long-term contracts awarded prior to June 30, 2007, must be modified to include the clause at 52.219-28, "Post-Award Small Business Program Re-representation". Contracts that are not long-term but were awarded to small business concerns prior to June 30, 2007, should be modified to include the clause 52.219-28 at the time an option is exercised.

5. What happens and when?

Any vendor that represented it was a small business prior to award of a contract must rerepresent its size status upon the occurrence of any of the following:

a. Within 30 days after execution of a novation agreement; or within 30 days after modification of the contract to include the clause at 52.219-28, if a novation agreement was executed prior to inclusion of that clause in the contract.

b. Within 30 days after a merger or acquisition that does not require a novation or within 30 days after modification of the contract to include the clause at 52.219-28, if the merger or acquisition occurred prior to inclusion of that clause in the contract.

c. For long-term contracts:

(i) Within 60 to 120 days prior to the end of the fifth year of the contract; and

(ii) Within 60 to 120 days prior to the exercise date specified in the contract for any option thereafter.

6. What happens after a vendor re-representation?

If a vendor, as a result of a rerepresentation, is now considered other than small, then the Contracting Officer (CO) must modify the contract. The modification must then be entered into the Federal Procurement Data System (FPDS) using the following steps:

o Three selections dealing with rerepresentation will be available under the 'Reason for Modification' field:

o Novation (If selected the vendor field will be activated and the CO can select the appropriate vendor using the search functionality.)

o Rerepresentation (If selected, the vendor's socio-economic information will be refreshed, the vendor field will not be activated.)

o Non-Novated Acquisition or Merger (If selected, the vendor's socio-economic information will be refreshed, the vendor field will not be activated.)

o The 'Contracting Officer's Size Determination' field will be activated and the CO must select 'Other than Small'.

The CO should document in the contract file the date the contractor verified its representations in the Government's Online Representations and Certifications Application (ORCA) or at least include a paper copy of those representations in the contract file.

7. What happens to small business goaling credit after re-representation?

Once a vendor represents that its status is other than small, goaling credit will no longer be given for any future money obligated. All actions reported prior to the representation will still receive credit in the goaling report. Example:

Contract 12345 was awarded to the John Doe Company as a small business set-aside for $100. Modification 1 to the contract added $50. Modification 2 to the contract was a rerepresentation due to a novation. The John Doe Company is now other than small. Modification 3 adds $200 to the contract.

In the above example small business goaling credit would be given for the initial award of the contract ($100) and modification 1 ($50). Modification 3 ($200) occurred after the rerepresentation and is not counted toward the agency's goaling credit.

8. How will orders and Blanket Purchase Agreement (BPA) calls be handled?

Re-representation does not apply to individual orders and BPA calls. A re-representation executed on a Federal Supply Schedule, Government Wide Acquisition Contract (GWAC), BPA, or Indefinite Delivery Contract would trickle down to the individual orders and BPA calls. Example:

Contract #/ Mod #
Date Socio-Economic Information
CO Size Determination
BPA 789
01/01/2007 Small Business
BPA 7 call 1
10/05/2007 Small Business
BPA 789/Mod 1
11/01/2007 None Other than Small
BPA call 2
11/02/2007 None Other than Small
BPA call 1/Mod 1
11/03/2007 None Other than Small

In the above example BPA 789 and BPA call 1 would receive goaling credit. The re-representation modification is reported against the BPA only (shown in italics above) and the vendor's socio-economic information and size determination are refreshed. If a modification to add money to BPA call 1 or a new BPA call 2 is created then it would contain the new vendor information carried forward from the BPA. A rerepresentation modification for the BPA calls would not need to be created.

A BPA referencing a Federal Supply Schedule would be treated the same as an individual order or BPA call. The rerepresentation information would come from the Federal Supply Schedule.

9. Protesting a small business representation or re-representation.

Any CO who receives protest, timely or not, or who, as the CO, wishes to protest the representation or re-representation shall forward the protest to the Small Business Administration's Government Contracting Area Office for the geographical area where the principal office of the concern in question is located.

10. Additional Information:

If you have questions about this matter, please contact your bureau small business representative, or Gary Wade, Office of Small Disadvantaged Business Utilization, at 202/208-3270, or Kate Oliver, Office of Acquisition and Property Management at (202) 208-3345.

/ signed Debra E. Sonderman, Director

Office of Acquisition and Property Management