Size and Affiliation First Wednesday Virtual Learning Series 2018 - PowerPoint PPT Presentation

Size and Affiliation First Wednesday Virtual Learning Series 2018 www.sba.gov 1

Hosts Christopher Eischen, Procurement Center Representative SBA Office of Government Contracting, Area IV, Kansas City, MO Deborah Crumity, Procurement Center Representative SBA Office of Government Contracting, Area IV, Rock Island Arsenal 2

Welcome to “SBA Virtual Learning 2018” 1. Questions answered during the final 10 minutes. 2. Technical problems: Contact the moderator with a note or call AT&T Support Desk at 1-888-796-6118. 3. Page numbers stated for those working off hard copies of the program. We cover the “SBA Quick Reference” as time allows. 4. 5. For more SBA training visit the SBA Learning Center website https://www.sba.gov/tools/sba-learning-center/search/training 3

Association of Procurement Technical Assistance Centers (APTAC) Procurement Technical Assistance Centers are a vital resource partner. • APTAC posts past “First Wednesday” programing at this link: http://www.aptac-us.org/for-contracting-officers-sba-webinar-library/ • Contracting officer resources: “How PTACs partner with federal agencies”: http://www.aptac-us.org/federal-partners/ • Find your nearest Procurement Technical Assistance Center at http://www.aptac-us.org 4

1st WEDNESDAY VIRTUAL LEARNING SERIES 2018 SCHEDULE 1:00 to 2:00 Central Time FY 2018 Date Topic 1 October 4, 2017 Non-Manufacturer Rule 2 November 1, 2017 About SBA SBA Programs You May Not Know About 3 December 6, 2017 Natural Resources Assistance/Disaster Assistance 4 January 10, 2018 Historically Underutilized Business Zones 5 February 7, 2018 Certificate of Competency Program 6 March 7, 2018 Woman Owned Small Business (WOSB) Program 7 April 4, 2018 Size and Affiliation 8 May 2, 2018 Subcontracting Tools 9 June 6, 2018 SDVOSB 10 July 11, 2018 SBA Legislative Update 11 August 1, 2018 Mentor/ Protégé Program The program schedule above is for information only and is subject to change. 5

One Continuous Learning Point  Self-service: Using the PowerPoint that was sent with your invitation for this training event, fill in your name on the certificate slide and save. Download the certificate and print for your records. You submit your request for training credit IAW your agency policy, i.e. FAITAS.  Phoning in only: If you listen in groups and you want all attendees to be included on the future mailing list, send email addresses of participants in an excel document to sbalearning@sba.gov. 6

Today’s Speaker David Gordon Size Program Manager Office of Government Contracting 7

Understanding SBA Size Regulations First Wednesday Virtual Learning Series 8

What is a small business? • Organized “for profit.” (FP subs of NFPs are okay) • Together with its affiliates, must meet the size standard for the relevant NAICS Code. • Foreign-owned concerns can be considered small businesses if they have a place of business located in the US, and either  operate primarily in the US or  make a “significant contribution” to the US economy by paying US taxes or using American products or materials or labor. 13 CFR § 121.105 DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 9

SBC self-certification • FAR requires that CO “shall accept” SBC’s representation unless CO has reason to believe otherwise. FAR § 19.301-1(b) • CO can protest but must have specific reason(s) to believe self- certification is wrong. Cannot protest simply to vet offerors. FAR § 19.302(c)(2) • Company not required to list NAICS assigned to procurement in SAM unless solicitation requires it — usually only necessary before formal award. In the Matter of S4, Inc. , B-299817 (August 23, 2007); affirmed in Veterans Electric, LLC , B- 413198 (August 26, 2016). See also Size Appeal of Ipkeys Technologies, LLC , SBA No. SIZ-5353 (2012). DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 10

NAICS and supply procurements • Wholesale/retail NAICS codes may not be assigned to procurements of supplies. Must use manufacturing codes. 13 CFR § 121.402(b)(2) • SBA’s non -manufacturer rule is designed to let wholesalers, retailers, brokers, distributors, etc. bid in such cases. 13 CFR § 121.406(b)(3) • The size standard for all federal procurements of supplies (NAICS sectors 42, 44, 45) is 500 employees. 13 CFR §121.201 and FAR §52.204-8(a)(3) and 52.212-1(a) DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 11

Certification by SBA • SBA does not certify businesses as small unless they are admitted to participate in the 8(a) or HUBZone programs. • All other types of small businesses self-certify:  SBCs  Woman-owned SBCs (WOSB/EDWOSB) (may also use private third-party certifiers approved by SBA) 13 CFR part 127  Veteran-owned (and SDVO) SBCs 13 CFR part 125 DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 12

When will SBA conduct a formal size determination? • REQUESTS: primarily for internal SBA compliance matters (with certain exceptions, such as for the Patent and Trademark Office). 13 CFR § 121.1001(b) • PROTESTS: parties eligible to file a protest depends on the category. Example: for SB set-asides, they are:  offerors who have not rejected because of size;  the CO;  SBA  other “interested parties” (a very small category). 13 CFR § 121.1001(a) DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 13

Which size protests must be sent to SBA? ALL OF THEM • The FAR requires that size protests be referred to SBA: send to the Area ( NOT District) Office with jurisdiction over state where the protested concern is located. • If uncertain, consult SBA to decide whether it’s a size protest. • COs do not have the legal authority to: (i) decide the protest; (ii) ignore the protest; or (iii) advise the protester to modify, change, or resubmit the protest. 13 CFR §121.1006(a); FAR § 19.302(c)(1) DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 14

How long does a determination take? • Most cases take 15 business days. Dismissals usually take less (and complex cases more) than that. • Requests for extensions are not uncommon. May come from protested concern or from SBA; please consider them carefully and respond promptly. • CO can award after 15 business days if there is a formal finding “in writing that there is an immediate need to award the contract and that waiting…will be disadvantageous to the Government. 13 CFR §121.1009(a)(3); FAR §19.302(g)(2) DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 15

Premature protests and “particular contract” requirement • Size protests cannot be used to narrow the field of offerors, “finalists,” or potential awardees. • Protests must be in connection with a particular (i.e., pending) procurement; cannot come “off the street.” • There is no “secret” SBA database listing every business in the United States and its current size. We use SAM. • Premature protests (i.e., before bid opening or notification to offerors) will be dismissed, even if filed by CO. DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 16

Timeliness, specificity, standing • A protest must be received by the CO five business days after (i) notification to unsuccessful offerors (RFPs/RFQs) or (ii) bid opening (IFBs). 13 CFR § 121.1004; FAR § 19.302(d) • Protest must contain specific allegations. “Some basis for the belief or allegation stated in the protest must be given. A protest merely alleging that the protested concern is not small…does not specify adequate grounds for the protest.” 13 CFR §121.1007 • Protester must be legally authorized to file a protest. (See slide 14) 13 CFR § 121.1001 DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 17

What happens after SBA receives a size protest? • If timely and specific, SBA (not CO) will notify the protested concern; firm has three business days to respond. • SBA cannot expedite determinations. • Useful “updates” are impossible to provide. • Copies of the final determination will be sent to all parties to the case: the protester, the protested concern(s), and the CO. DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 18

As of what moment is size determined? “…as of the date the concern submits a written self - certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation) which includes price.” 13 CFR §121.404(a) A small business may become large after written self- certification and still be eligible for award (keeping in mind the rule giving present effect to merger negotiations). 13 CFR §121.404(g) DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 19

What if size changes during performance? GENERAL RULE: if the concern is small at the beginning, it is small for the life of the contract. EXCEPTION : … unless there is a: i. novation or ii. merger or acquisition without a novation or iii. “long - term contract” (over 5 years including options). 13 CFR § 121.404(g)(1)-(3); FAR § 19.301-2 If company is no longer small under exceptions i or ii, CO cannot count contract toward agency’s SBC goals but there is no requirement to terminate. If exception iii applies, the CO must require recertification. 13 CFR §121.404(g) DO NOT COPY OR DISTRIBUTE UPDATE ALL CITATIONS! 20