Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Terms of the Solicitation; Re-Certification of Size Status
General Counsel P.C. Highlight: A contracting officer has the discretion to require small business concerns to re-certify their size status in response to a solicitation for any new task order under a long-term contract.
Enterprise Information Services, Inc. (EIS) protests the terms of a task order request for proposals (RFP), issued by the Department of the Air Force for network services in furtherance of the agency’s enterprise network services acquisition procurement.
The solicitation contemplates the issuance of a task order under the successful offeror’s General Services Administration (GSA) 8(a) streamlined technology acquisition resources (STARS) contract. The 8(a) STARS contract is a multiple-award, indefinite-delivery/indefinite-quantity (ID/IQ) government-wide acquisition contract set aside for 8(a) small business concerns. The STARS contract was originally awarded in 2004, with a three-year base period and two two-year options. At the time of contract award, all contract holders were required to certify their size eligibility. In 2009, GSA exercised the second option and required contract holders to re-certify their size status as part of the exercise of the contract option.
EIS asserts that the Air Force lacks a reasonable basis to require firms to re-certify their small business size status as of the time they submit task order proposals. EIS states that it certified its size status when submitting its initial proposal to GSA for award of its 8(a) STARS contract, and re-certified its size status in 2009 prior to exercise of the current contract option.
GAO states that the purpose of the 8(a) business development program as it relates to government acquisitions is to ensure that a fair proportion of all government contracts be placed with eligible small disadvantaged business concerns. The size re-certification requirement here is consistent with these purposes. The agency’s decision to require re-certification also is consistent with the regulatory scheme applicable.
As a general rule, an 8(a) contractor’s eligibility is determined as of the date that the concern submits its initial offer. Also, the determination of a business’s size status also occurs as of the date the concern submits a written self-certification that it is small to the contracting activity as part of its initial offer. For purposes of contracts with durations of more than five years, a contracting officer must require that a concern re-certify its small business size status no more than 120 days prior to the end of the fifth year of the contract, and no more than 120 days prior to exercising any option thereafter. A contracting officer has the discretion to require concerns to re-certify their size status in response to a solicitation for any new task order under a long-term contract.
Here, the 8(a) STARS contract has a total duration, including options, of seven years. It therefore meets the definition of a long-term contract and GAO concludes that the Air Force contacting officer has the discretion under the applicable regulations to request a size re-certification in connection with the submission of task order proposals. Requesting recertification under these circumstances is presumptively proper and reasonable, given that doing so furthers the statutory goals of the 8(a) program and is permitted by applicable regulations.