Do Amendments to a Solicitation Require a Re-Certification of Size Status?
As most government contractors know, government customers frequently amend solicitations—often multiple times and sometimes after proposals have already been submitted. These multiple amendments can extend the solicitation period by months or even years. So what happens when the solicitation is a small business set-aside and the offeror could certify as small at the time the solicitation was originally issued but has grown to be large during the intervening time when multiple rounds of amendments have extended the solicitation process? Is the offeror still eligible for a small business set-aside?
Size is determined as of the date that a contractor submits its initial offer, which includes price. 13 C.F.R. § 121.404. SBA’s Office of Hearing and Appeals (“OHA”) has generally found that post-proposal amendments to a solicitation have no impact on the size certification made at the time of the initial offer. See, e.g., Stellar Innovations & Sols., Inc., SBA No. SIZ-5851 (Sept. 13, 2017). Even where the government amends the solicitation and requests final proposal revisions, the operative date is the date of the initial proposal, not the date of any revised proposals. Id. Thus, even where months or years have passed since the initial offer, and the offeror has grown to be other than small in that time, the size certification made with initial offer still counts and the company is eligible for a small business set-aside.
However, there are cases in which OHA has found that where the amendment(s) to the solicitation render the initial offers non-responsive or where the amendments are so substantial that they are tantamount to a new procurement, then the size certification made with the initial offer is no longer valid and if the offeror has grown to be other than small it is not eligible for a small business set-aside. See, e.g., Evolver, Inc., SBA No. SIZ-5555 (May 8, 2014).
OHA’s Evolver decision may not be the best word on the matter though. As the decision recognizes, it was decided under and older version of 13 C.F.R. § 121.404 which included a sentence that read: “Where an agency modifies a solicitation so that initial offers are no longer responsive to the solicitation, a concern must recertify that it is a small business at the time it submits a responsive offer, which includes price, to the modified solicitation.” That sentence was eliminated from §121.404 in 2011. The final rule that enacted this change does not give much insight into the SBA’s thinking behind removing this sentence. That is, it is unclear whether SBA removed the sentence in order to eliminate the possibility that an agency could modify a solicitation in such a way that initial offers are no longer responsive thereby requiring the offeror to re-certify its size.
All that said, a contracting officer has the discretion to request a size-recertification at any point. See Energy & Envtl. Servs., Corp., SBA No. SIZ-4043 (May 31, 1995); Expertware, Inc., SBA No. SIZ-2933 (Aug. 5, 1988).
So the key takeaway here is that if the government is operating under the original solicitation (i.e., it does not cancel the original solicitation and re-procure under a different solicitation or does not drastically revise the solicitation) the offeror does not have to re-certify their size, regardless of how many times the solicitation has been amended or much time has passed (unless the contracting officer requests a re-certification, which practically-speaking rarely happens). Id.
If you have any questions regarding your size status or whether you are eligible for a small business set-aside, please contact Ward & Berry.