SBA’s OHA Holds that Size Recertification Not Required by Incorporation of FAR Clauses

The Small Business Administration’s Office of Hearings and Appeals denied a size protest that challenged a task order awarded under a General Services Administration contract for small businesses, finding that the task order did not expressly require companies to recertify their size status before bidding on the task order.

RX Joint Venture protested the Air Force’s award of a task order to Agile Defense, Inc. for network control and livelink/sharepoint services under GSA’s Alliant Small Business GWAC.  RX Joint Venture argued that the task order’s inclusion of several FAR clauses, including FAR 52.212-3, 52.219-1, and 52.219-6, and SF 1494 meant that offerors were required to certify their size before submitting task order bids.  For example, FAR 52.219-1 (Small Business Program Representations) requires offerors to certify whether or not they are a small business concern and eligible under various small business programs (e.g., WOSB or 8(a)).  The task order, however, did not otherwise expressly require recertification and the contacting officer submitted a statement indicating that recertification was not intended in order to be eligible for award.

OHA stated that size recertification on long term contracts are only required “(1) when the long-term contract is initially awarded; (2) when an option is exercised; or (3) if a CO requests recertification in conjunction with an individual order.”  OHA stated that recertification is not required “simply because mandatory FAR clauses [a]re incorporated” and noted that it had specifically held in the past that a task order’s incorporation of FAR 52.212-3 and 52.219-6 did not require recertification.  OHA did not directly address the incorporation of FAR 52.219-1 (Small Business Program Representations), but nevertheless dismissed the protest.  As such, unless a task order solicitation expressly requires recertification, the incorporation of these FAR clauses does not operate to require recertification.