A Slight Deviation: DoD Implements Temporary Verification Requirement while SAM Updates

On a daily basis, the Department of Defense (DoD) issues innumerable memorandums and orders, as one might expect when dealing with one of the largest institutions in human history. Most of these have little to no impact for most government contractors. However, a recent class deviation is an exception, as it should make things easier for the many contractors that use small business joint ventures in contracting with the DoD.

On October 26, 2022, the Department issued a memorandum mandating alternate procedures for verifying small business joint venture offeror eligibility:

“Effective October 28, 2022, contracting officers shall use the alternate procedures in this deviation to verify small business joint venture offeror eligibility in lieu of using the System for Award Management (SAM). Accordingly, in lieu of using the System for Award Management (SAM), contracting officers shall include the following statement in solicitations:

‘A small business joint venture offeror must submit, with its offer, the representation required in paragraph (c) of FAR solicitation provision 52.212-3, Offeror Representations and Certifications-Commercial Products and Commercial Services, and paragraph (c) of FAR solicitation provision 52.219-1, Small Business Program Representations, in accordance with 52.204-8(d) and 52.212-3(b) for the following categories: (A) Small business; (B) Service-disabled veteran-owned small business; (C) Women-owned small business (WOSB) under the WOSB Program; (D) Economically disadvantaged women-owned small business under the WOSB Program; or (E) Historically underutilized business zone small business.’”

To simplify, some time ago, a number of things changed regarding joint ventures that you are now probably already familiar with. For example, one allowed joint ventures to qualify as small where all parties to the joint venture qualified as small under the size standard associated with the NAICS code for the solicitation. However, there were certain FAR provisions that contradicted aspects of the SBA’s rules, and these simply sat on the books for a number of years.

Finally, in September 2022, DoD, GSA, and NASA got around to fixing this. These changes to the FAR add some required representations by joint venture offerors when submitting bids. Normally, this would just be reflected in SAM: The representations would simply be present on the offerors’ SAM page. However, there’s been a lag in updating SAM to account for this new rule, so contracting officers can’t rely on just looking at SAM to verify joint venture offeror eligibility.

So what does this mean for joint venture offerors? Well, now they have to submit the representations required in FAR 52.212-3(c) and 52.219-1(c) with their offer. A bit of a hassle admittedly, but something that can easily be overlooked when trying to get proposals out the door. It is a small thing, but it can have major implications if you do not abide by this. Likewise, there could be issues if contracting officers fail to include this requirement in a given solicitation, it may raise potential protest grounds.

As to how long this will last? Well, it’s indefinite. The memorandum states: “This class deviation remains in effect until rescinded.” It was issued because SAM needs updates to account for the new FAR rules, so, presumably, it will be rescinded when that is completed. No doubt DoD will issue another memorandum when this time comes. For now, remember this when submitting proposals.

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