Federal Acquisition Regulation: Rerepresentation of Size and Socioeconomic Status

<RULE> DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION <CFR>48 CFR Parts 4, 8, 16, 19, and 52</CFR> <DEPDOC>[FAC 2025-03; FAR Case 2020-016, Item II; Docket No. FAR-2020-0016; Sequence No. 1]</DEPDOC> <RIN>RIN 9000-AO18</RIN> <SUBJECT>Federal Acquisition Regulation: Rerepresentation of Size and Socioeconomic Status</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration to order-level size and socioeconomic status rerepresentation requirements. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective January 17, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For clarification of content, contact Ms. Dana Bowman, Procurement Analyst, at 202-803-3188 or by email at <E T="03">Dana.Bowman@gsa.gov.</E> For information pertaining to status, publication schedules contact the Regulatory Secretariat Division at 202-501-4755 or <E T="03">GSARegSec@gsa.gov.</E> Please cite FAC 2025-03, FAR Case 2020-016. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> DoD, GSA, and NASA published a proposed rule at 88 FR 67189 on September 29, 2023, to implement regulatory changes made by the Small Business Administration (SBA) in its final rule published on October 16, 2020, at 85 FR 66146. For further details please see the proposed rule. Eight respondents submitted comments on the proposed rule. <HD SOURCE="HD1">II. Discussion and Analysis</HD> The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: <HD SOURCE="HD2">A. Summary of Significant Changes</HD> There are no significant changes from the proposed rule. <HD SOURCE="HD2">B. Analysis of Public Comments</HD> <HD SOURCE="HD3">1. Exceptions to the Rule</HD> <E T="03">Comment:</E> A respondent expressed concerns that the rule requires too much work. <E T="03">Response:</E> FAR subpart 4.11, System for Award Management (SAM), establishes policies and procedures for requiring registration in SAM. FAR subpart 4.12, Representations and Certifications, establishes policies and procedures for requiring submission and maintenance of representations and certifications in SAM. Offerors and contractors are required to be registered in SAM in accordance with FAR 52.204-7, System for Award Management, and to complete electronic annual representations and certifications in SAM, as part of required registration in accordance with FAR 52.204-13, System for Award Management Maintenance. All registrants are required to review and update the representations and certifications in SAM as necessary, but at least annually, to ensure they are current, accurate, and complete. This rule modifies the clause at FAR 52.219-28, Post-award Small Business Program Rerepresentation, to require offerors to rerepresent their status for orders issued under multiple-award contracts under certain circumstances. Although this rule requires offerors to rerepresent, contractors are already required to ensure that their representations and certifications in SAM are current, accurate, and complete. Therefore, this rule only imposes an additional burden for orders requiring rerepresentation in accordance with paragraphs (c)(1) through (3) of the FAR clause at 52.219-28. <E T="03">Comment:</E> A respondent recommended that SBA create a database for small business certifications, which would allow for a check and balance of a contractor's self-certification and protect contracting officers in the event they are unable to verify a concern's status. <E T="03">Response:</E> SBA already maintains a database of certified small business concerns. Specifically, the Dynamic Small Business Search (DSBS) database is SBA's small business certification repository. Certifications in DSBS also appear in SAM, which is the Government's repository for prospective and current Federal awardee information, including representations and certifications. The FAR requires contracting officers to review SAM to verify the contractor's current size and socioeconomic status. If a concern's certification status is not reflected in SAM, contracting officers can verify a concern's status by checking DSBS at <E T="03">https://dsbs.sba.gov.</E> <E T="03">Comment:</E> A respondent recommended that recertification for size or socioeconomic status for orders should not be required. <E T="03">Response:</E> This rule implements regulatory changes made by SBA in its final rule published on October 16, 2020, which requires rerepresentation for orders placed against multiple-award contracts under certain circumstances. The FAR currently requires contractors to rerepresent their status under certain circumstances. This rule expands the requirement for rerepresentation to verify orders that are set aside for small businesses under certain multiple-award contracts are awarded to qualified small businesses. <E T="03">Comment:</E> Some respondents indicated that the proposed rule does not consider the time it takes to award a task order. The respondents stated that the period of time from proposal submission to order award often takes 12 to 36 months. Due to the time it takes to award an order, some respondents expressed concerns that this may impact the Government's ability to award the order as the awardee's small business status could change during this period of time. A respondent stated that small businesses compete for and are awarded contracts for which they qualify at that time, and they should be afforded the opportunity to be awarded task orders under those contracts. The respondent indicated that a company's size can change periodically and that a business that was small at the time of proposal submission may be large at order award. The respondents also questioned if the selected awardee would be eligible for award if its size or socioeconomic status changed between proposal submission and order award. <E T="03">Response:</E> In accordance with SBA's final rule, size and socioeconomic status are determined at the time of initial offer (or other formal response to a solicitation), which includes price, for an order issued against a multiple-award contract if the contracting officer requests rerepresentation for the order. Therefore, the offeror will remain qualified for the order if its status changes between offer submittal and award of the order. <E T="03">Comment:</E> A respondent asked how an offeror's eligibility would be affected if rerepresentation is required for an order that is set aside under a multiple-award contract and the offeror is no longer small for the North American Industry Classification System (NAICS) code associated with the contract or no longer qualifies under the socioeconomic category for which it initially qualified. The respondent also asked if a woman-owned small business would lose its small business status that it had at initial award if it rerepresented as large at a later date. Lastly, the respondent asked if the goal of this proposed rule is to require small businesses to certify their size and socioeconomic status for the life of the contract. <E T="03">Response:</E> A small business concern awarded a multiple-award contract that was set aside for small businesses may continue to perform under such a contract as a small business concern throughout for the life of those contracts ( <E T="03">e.g.,</E> for the base period and up to four additional option years). However, if a contracting officer requires rerepresentation of size and/or socioeconomic status for a particular order, size and socioeconomic status is determined at the time of offer submission for the order. To clarify for the respondent, a woman-owned small business that represents as large for a particular order, under a multiple-award contract affected by this rule, would be considered large for that order. <E T="03">Comment:</E> One respondent recommended that implementation of this policy be applicable to new multiple-award contracts or, alternatively, apply the policy to orders issued under multiple-award contracts after January 1, 2025. <E T="03">Response:</E> In accordance with FAR 1.108(d), this policy applies to solicitations for contracts issued on or after the effective date of the final rule. The contracting officer also has the discretion to include the changes made in this final rule in solicitations for contracts issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date of the final rule. In addition, contracting officers may, at their discretion, include the changes made in this final rule in any existing contract with appropriate consideration. The final rule does not require that existing contracts be modified to add the updated version of FAR clause 52.219-28. <E T="03">Comment:</E> A respondent recommended the rule be amended to clearly define the criteria and timelines for contracting officers requesting rerepresentation of size under existing multiple-award contracts. <E T="03">Response:</E> The final rule text at FAR 19.301-2(b)(2) specifies the new requirements for a contractor to rerepresent its status for orders placed against multiple-award contracts under certain circumstances in accordance with FAR clause 52 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 40k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━