FAR Council Establishes New Size and Status Rerepresentation Rules

The FAR Council recently published a final rule dealing with small business certification issues, effective on January 17, 2025. This final rule came about to ensure that certain parts of the FAR and SBA rules are consistent. The change? Adding additional circumstances that require an awardee to rerepresent its size and/or socioeconomic status for orders placed under a multiple-award contract (MAC) per FAR 52.219-28(c) Postaward Small Business Program Rerepresentation.

However, this FAR rule updates the regulation to match the SBA rule that had been issued in 2020, back when SBA consolidated its Mentor-Protégé Program. In the mean time, SBA had updated its recertification rules as discussed in this post outlining the new recertification rules. Under the recent regulation, SBA will be implementing its strategy to include new 13 C.F.R. § 125.12, which sets forth disqualifying size and status events, which would render a business “ineligible for future set-aside or reserved awards, including awards of set-aside or reserved orders against pre-existing unrestricted or set-aside multiple award contracts” if it causes the business to be other than small. In addition, “for a multiple award small business set-aside or reserve, a concern that recertified as other than small or other than the required small business program would be ineligible to receive options.

Unfortunately, the FAR rule will have to be updated again to deal with SBA’s January 2025 rule. Until then, below is what the FAR rule contains. Contractors must be aware of both rules to stay on top of their small business recertification requirements. And contractors may need to inform agencies about what the new SBA rules state.

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Why File: A Size Protest

We at SmallGovCon are excited to announce this first in a new line of blogs we call Why File. Our firm handles a wide variety of federal procurement and contract litigation matters–from SBA size and status protests to contract claims and appeals, and everything in between. One of the most common and important questions we get in that regard is, should I file? Of course, we can only directly answer that question for our current clients after reviewing the relevant facts giving rise to the potential filing. But through our new Why File series, we will cover some of the most common facts and circumstances that lead contractors to initiate litigation. So, without further adieu, here is the first blog in the series, covering some of the most common reasons contractors file size protests.

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UPDATE: Paycheck Protection Program Form Now Does not Disqualify Businesses for Foreign Ownership

UPDATE: The form this post references has been revised to ask whether the United States is the “principal place of residence for all employees of the Applicant included in the Applicant’s payroll calculation”.

Based on the text of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the fact that a company has foreign owners shouldn’t necessarily disqualify it from participating in the Paycheck Protection Program (PPP).

But the form used to apply says otherwise.

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