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On October 16, 2020, the Small Business Administration (“SBA”) issued a final rule enacting a number of now-effective changes to SBA’s regulations, including changes to the rules governing size recertifications on unrestricted multiple award contracts (“MACs”).

The final rule requires contractors to certify their size and socioeconomic status at the time of initial offer for an order under unrestricted MACs, except for those under Federal Supply Schedule contracts or Blanket Purchase Agreements.  Previously, size certifications were not required at the order level on MACs unless the contracting officer requested a recertification in connection with a specific order.  Relatedly, the rule now also allows for size protests at the time of the award of individual orders, instead of at the time of the MAC award.

Further, contractors must recertify at the order level for all set-aside orders where the required socioeconomic status for the order differs from that of the underlying set aside MAC.  For example, if a MAC has a set-aside for women-owned small businesses, the MAC awardees must qualify for that status at the time of the offer made on that order, in addition to the size certification at the time of award for the set-aside MAC.  The rule does not require recertification if the agency issues the order under a MAC offeror pool which is already set aside in the same category as the order.

Additionally, the final rule requires contracting officers administering MACs to assign a NAICS code at the order level that is most accurate to the work that will be performed under that order.  The NAICS code must be among the ones listed on the MAC itself.

The bottom line is that while under the old rule contractors were generally considered small for each order issued against a MAC for the initial five years (unless a contracting officer requested recertification at the order level), under the new rule businesses will have to recertify in connection with each small business set-aside proposal under an unrestricted MAC.  Small businesses that have outgrown their small business status over the course of a MAC may find themselves on the outside looking in for subsequent task order competitions.

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Photo of Amy Laderberg O'Sullivan Amy Laderberg O'Sullivan

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and counseling for corporate clients of all sizes and levels of experience as government contractors. On the litigation side, she has represented corporate clients in bid protests (agency level, GAO, ODRA, Court of Federal Claims, Court of Appeals for the Federal Circuit, as well as state and local bid protests in numerous jurisdictions), size and status protests before the U.S. Small Business Administration, claims litigation before the various Boards of Contract Appeals, Defense Base Act claims litigation at the Administrative Law Judge and Benefits Review Board levels, civil and criminal investigations, and she has been involved in complex commercial litigation.

Photo of Olivia Lynch Olivia Lynch

Olivia L. Lynch is a partner in Crowell & Moring’s Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and…

Olivia L. Lynch is a partner in Crowell & Moring’s Government Contracts Group in the Washington, D.C. office.

General Government Contracts Counseling. Olivia advises government contractors on navigating the procurement process, compliance and ethics, commercial item contracting, accessibility, supply chain assurance, and various aspects of state and local procurement law.

Photo of Michael Samuels Michael Samuels

Michael Samuels is a counsel in Crowell & Moring’s Government Contracts Group. His practice involves counseling and representing government contractors on a wide range of issues.

Photo of Zachary Schroeder Zachary Schroeder

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office…

Zachary Schroeder is an associate in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group.

Zach represents contractors in both litigation and counseling matters. His practice focuses on representing contractors in bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA). His practice also includes federal regulatory and ethics compliance, as well as various aspects of state and local procurement law, including representing contractors in size protests and affiliation matters. In the transactional context, Zach has performed government contracts diligence for government contractors in a range of industries.