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Posted on Monday, November 19, 2018

Unclear Solicitation Language Did Not “Explicitly” Request Small Business Recertification

As more small businesses prosper and outgrow their small business status, a recurring issue is whether these no-longer-small business can compete for task orders under multiple-award contracts they won years ago when they qualified as a small business. Their right to compete generally depends on the ordering contracting officer who has the discretion to “explicitly” require task order competitors to recertify their small business status. Unless the solicitation contains an explicit recertification requirement, these formerly small business can win the competition. According to a recent decision of the SBA’s Office of Hearings and Appeals (OHA), ambiguous or less than clear requests for small business “certification” are not explicit requests for recertification. As a result, a company that was no longer a small business could win the work.

GSA issued a Task Order Request (TOR) for database services under the Alliant Small Business (ASB) Government-Wide Acquisition Contract (GWAC). The TOR made several references to small business “certifications” that offerors had to provide. Offerors had to submit as a Pass/Fail item “all small business certifications.” These certifications “will be considered as part of the Government’s best value determination. This acquisition will have a strong preference for” a small business that is Woman-Owned, 8(a), HUBZone, or SDVO. Finally, the TOR stated that the agency “will reject any proposal that does not provide evidence of the required small business certifications.” However, the TOR did not use language like requesting a “new” certification or a “recertification.”

Offerors, however, recognized that “recertification” was not clear and tried to get the government clearly on record as to whether the TOR “explicitly” required offerors to recertify their small business status. Unfortunately, the Q&A dealing with this issue did not clearly resolve the issue, was never incorporated into the TOR, and never said it was an amendment to the TOR. Also, the TOR did not contain the a sample “explicit” recertification request provision that the ordering guide for the GWAC provided if contracting officers wanted to make an explicit recertification request.

OHA concluded that this unclear situation the government had created was not an explicit request for recertification: “The TOR, by itself, simply is not clear as to whether it was seeking recertification at the task order level, or whether such language instead was requesting evidence of existing, contract-level certifications.” The certification the contracting officer wanted was not a recertification request but simply a way to let the agency to decide which, if any, offerors were eligible for the TOR’s evaluation preference for a Woman-Owned, 8(a), HUBZone, or SDVO small business.

For a growing small business, every “bid/no-bid” decision must be based initially on whether the government requires a recertification. No business wants to waste the time and money involved in winning a contract only to find out that it was not eligible to win in the first place. Berenzweig Leonard can help a small business review a solicitation and be confident that it has the right to bid.

Size Appeals of: DNT Solutions, LLC, and Alliant Solutions Partner LLC, SBA No. SIZ-5962, October 4, 2018.

Berenzweig Leonard  is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, events, and more. This post was published in the November 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here. 

Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson  lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.