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Agencies Issue Notice of Proposed Changes to FARs Impacting 8(a) Entities

December 20, 2022

Overview

On October 15, 2020, the U.S. Small Business Administration (SBA) issued a final rule making changes to the SBA’s 8(a) program regulations “to more clearly articulate SBA’s intent with regard to certain aspects of the 8(a) program to eliminate confusion and decrease burdens on procuring activities and 8(a) participants.” On December 15, 2022, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) issued a notice of proposed rules that would amend certain Federal Acquisition Regulation (FAR) provisions to implement those regulatory changes by the SBA. The deadline for comments on the changes proposed by the DOD, GSA, and NASA is February 13, 2023.

DOD, GSA, and NASA propose making the following changes:

Change Proposed By DOD, GSA, and NASA

Revised SBA Regulation Being Implemented

Modifies FAR 19.601(c) to clarify that the certificate of competency program is not applicable to 8(a) sole-source awards

What is the Certificate of Competency program, ‎13 CFR 125.5(a)(1)‎?

Modifies the heading at FAR 19.804-5 to add blanket purchase agreements (BPAs) and adds text to require that BPAs issued under part 13, including orders placed under part 13 BPAs, must be offered to, and accepted by, SBA

How does the SBA accept a procurement for award through the 8(a) Business Development program, 13 CFR 124.503‎(h)‎?

Modifies FAR 19.805-2 to clarify 8(a) participants’ eligibility criteria for two-step design-build competitive procurements

What procedures apply to competitive 8(a) procurements, 13 CFR 124.507‎(d)(3)‎?

Modifies FAR 19.808-1 to clarify eligibility criteria for 8(a) sole-source awards

What general provisions apply to the award of 8(a) contracts, 13 CFR 124.501‎(g)‎?

Revises FAR 19.808-2 to refer to “8(a) acquisitions, including follow-on 8(a) acquisitions” in regard to a contracting officer conducting negotiations directly with competing 8(a) participants

What circumstances limit SBA’s ability to accept a procurement for award as an 8(a) contract, and when can a requirement be released from the 8(a) BD program, 13 CFR 124.504?

New text is proposed at FAR 19.810(a) to specify that SBA may appeal a contracting officer’s decision that an acquisition previously procured under the 8(a) program is a new requirement not subject to the release requirements set forth in 13 CFR 124.504(d)

When will SBA appeal the terms or conditions of a particular 8(a) contract or a procuring activity decision not to use the 8(a) BD program, 13 CFR 124.505‎(a)‎?

Adds new text at FAR 19.815(d) and FAR 19.815(e) to address notification requirements when a contracting officer decides that a requirement, previously procured under the 8(a) program, is a new requirement and not a follow-on requirement to an 8(a) contract; and when the procuring activity intends to procure a follow-on requirement using an existing limited-competition contracting vehicle that is not available to all 8(a) participants, and the current or previous 8(a) contract was available to all 8(a) participants

What circumstances limit SBA’s ability to accept a procurement for award as an 8(a) contract, and when can a requirement be released from the 8(a) BD program, 13 CFR 124.504?

Adds new text at FAR 19.815(f) to address notification requirements when a mandatory source will be used for a follow-on requirement to an 8(a) contract

What circumstances limit SBA’s ability to accept a procurement for award as an 8(a) contract, and when can a requirement be released from the 8(a) BD program, 13 CFR 124.504‎(d)(4)(ii)‎?

Modifies FAR 19.816(c) to add a reference to SBA’s eligibility criteria

What procedures apply to competitive 8(a) procurements, 13 CFR 124.507‎(d)‎?

The new revisions included in this proposed rule do not appear to make material changes to the SBA’s 8(a) program and are instead described by the federal government as an effort to align DOD, GSA, and NASA procurement regulations with changes and updates adopted by the SBA in 2020.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for ‎your situation, you should contact an attorney.

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