The Small Business Administration (SBA) has a longstanding rule that a business that represents itself as small at the time of contract award remains small for the life of that contract, unless the contracting officer (CO) expressly requests recertification. This rule also applies to long-term multiple award contracts (MACs) against which orders may be issued. Thus, it is typically at the CO’s discretion whether to require businesses to recertify their size status for individual orders under long-term MACs. The determination regarding whether the CO required recertification for an individual order is primarily made based on the plain language of the task order solicitation and relevant clauses included in the overarching long-term MAC. A size status recertification is required if the task order solicitation plainly includes language requiring recertification or otherwise asks offerors to verify, in writing, that they are a small business under the applicable North American Industry Classification System (NAICS) code at the time of submitting their task order proposals. Notably, the fact that an order is set aside for small businesses does not, by itself, mean that a size recertification is requested. However, the task order solicitation need not expressly use terms such as “certify” or “recertify” when requesting a recertification when it is clear to the offerors that a representation regarding their size status at the time of task order proposal submission or award is necessary. Similarly, the small business set-aside solicitation need not explicitly state the size standard if it identifies an applicable NAICS code that adequately conveys the required size standard information to offerors.
In SBA No. SIZ-6122, a decision issued on September 21, 2021, the SBA Office of Hearings and Appeals (OHA) denied the Appellant concern’s size appeal after determining that the relevant task order solicitation issued against a long-term MAC required offerors to recertify their size status. In March 2015, the Army issued the overarching Responsive Strategic Sourcing for Services (RS3) MAC, the solicitation for which contained a section requiring all proposals for task orders restricted to small businesses to include a representation regarding the offeror’s size status under NAICS 541712. In December 2020, the relevant task order solicitation was issued under the RS3 MAC to acquire near-real-time identity operations services for the U.S. Central Command. The first page of the order solicitation stated that the task order was restricted to small businesses and that only contractors eligible to compete as a small business may submit a proposal. Significantly, consistent with the terms of the RS3 MAC, the task order solicitation instructed each offeror to include a representation in its proposal stating that it was a small business concern under NAICS 541715, which was one of the codes that had replaced NAICS 541712. The task order solicitation did not expressly include a size standard. The Appellant concern represented itself as a small business under NAICS 541712 on the cover page of its task order proposal submission. It later confirmed its small-business status as relevant to the task order in response to an inquiry from the CO. The Army awarded the task order to the Appellant concern, and two businesses filed timely size protests. The SBA Area Office determined that the Appellant concern was other than small, leading to a size appeal at the OHA.
Among its other arguments at the OHA, the Appellant concern contended that the task order solicitation was not a small business set-aside because it did not identify a size standard, while conceding the inclusion of the designated NAICS code 541715. In addition, the Appellant concern argued that the CO did not request a size recertification because the task order solicitation failed to use terms such as “recertify,” “re-represent,” “new certification,” or “as of the date of the order” when describing the small business representation. The OHA disagreed, concluding first that the task order was restricted to RS3 MAC small businesses because the solicitation explicitly stated as much. Moreover, it was immaterial that the solicitation did not expressly mention a size standard, as it specified the NAICS code 541715, which has only one size standard, thus making it abundantly clear to offerors which size standard applied. In any event, the Appellant concern had unmistakably certified its own small business status as of the date of submission of its task order proposal. Next, the OHA reminded the Appellant concern of the applicable precedent concerning task order solicitation language requiring recertification. A task order solicitation that asked an offeror to verify, in writing, that it was a small business at the time of the task order proposal submission or at the time of task order award was essentially requiring a size status recertification even if it failed to expressly use words such as “certify” or “recertify.” Consequently, the OHA denied the appeal, ruling that the task order solicitation required a recertification.
Contractors that represent themselves as small at the time of award of a long-term MAC remain small for the life of the contract, including for its task orders, unless a recertification is required at the order level. Per SBA regulations, a protester may file a size protest in relation to a long-term MAC on only three occasions. First, a size certification may be protested within five business days after the initial award of the long-term contract. Second, within five business days of the exercise of an option. Third, when a size certification is made in response to a CO’s request for a size recertification in connection with an individual order. To determine whether a task order requires a size recertification, plain language of the solicitation is reviewed along with any relevant clauses of the long-term MAC. It is not necessary for the solicitation to use particular words to request a size status recertification if it requires offerors to verify, in writing, their small business status for the task order under the applicable NAICS code at the time of task order proposal submission or award. Similarly, the task order solicitation need not expressly state the size standard if it includes the applicable NAICS code and that code conveys the size standard information to offerors. At the same time, just because a task order is set aside for small businesses does not automatically mean that a recertification is required. Contractors should be mindful that although not dispositive, weight is attached to the CO’s opinion regarding whether a recertification was requested. Ultimately, the unique provisions and circumstances surrounding each long-term MAC and the task order solicitation at issue may be relevant in determining whether contractors are required to recertify their size status at the order level.
This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
