Size RecertificationPosted: March 27, 2019
We’re continuing our look at SBA’s changes to its small business regulations, as summarized by Sam Finnerty in this PilieroMazza post.
As he wrote:
SBA is also proposing language to clarify that recertification is required on full-and-open contracts when such contracts are awarded to SBCs. In addition, the Rule adds language to SBA’s 8(a) regulations to require recertification under 8(a) contracts. Similar language can be found in SBA’s SDVO, HUBZone, and WOSB/EDWOSB regulations, but had been missing from its 8(a) regulations.
As we know, there are sizing requirements associated with small business set-aside contracts. If a contract is issued as a full and open contract, but there are also small business set-asides that apply within that contract, recertification rules require that every time an option is granted, the small business winners have to recertify in order to establish that they are still that particular type of entity.
As Sam points out, this was really a kind of technical action in one sense, in that this rule already existed almost all of the other specially certified small businesses, except for 8(a) businesses. Now the language is there across the board.
One additional thing that arose at this time was that under the new rules, a prime contractor can now use a “similarly situated entity” (a company who meets the same size standards and set-aside qualifications) to meet the performance requirements.
For example, let’s suppose that I’m bidding on a contract as a service-disabled, veteran-owned small business. Under the rules and regulations as the prime I have to do 51% of the labor costing, however I could engage a fellow service-disabled, veteran-owned small business – one who meets the same size standards and set-aside qualifications as my own company – as a subcontractor, to perform a part of my 51% of the job’s labor.
This new rule states that the similarly situated entity – the subcontractor – must also recertify whenever the prime recertifies. From the perspective of the activity and action, this is no different from what we’ve come to expect, but now the rules are applied across the board.
One effect this will have is that having that similarly situated entity as a subcontractor will not be an open-ended commitment. That business can not, for example, graduate from the small business size standard, or change ownership to a non-member of the service-disabled or veteran-owned class.