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DOD Issues Final Rule on SBA Joint Venture Eligibility

November 28, 2022

Overview

On October 28, 2022, the Department of Defense’s amendments to FAR 52.212-3 and FAR 52.219-1 became effective. These changes amended the Federal Acquisition Regulations to be in line with prior changes by the SBA to its mentor-protégé program, and recognize that a mentor-protégé joint venture qualifies for a socioeconomic program (8(a), HUBZone, WOSB, etc.) if one of the parties to the joint venture meets the associated requirements of the socioeconomic program. The revised regulations require the joint venture to identify its size and socioeconomic status in SAM.gov, including entering the name and unique entity identifier of each party to the joint venture.

The DOD, however, also recognized that, as a result of continued issues with SAM.gov, joint ventures continue to have issues including the necessary representations in SAM.gov. Accordingly, on October 28, 2022, the DOD issued a new class deviation (Class Deviation 2023-O0001 – Verification of Eligibility of Small Business Joint Ventures) directing contracting officers to include the following provision in all 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:

  • Small business;
  • Service-disabled veteran-owned small business;
  • Women-owned small business (WOSB) under the WOSB Program;
  • Economically disadvantaged women-owned small business under the WOSB Program; or
  • Historically underutilized business zone small business.

Accordingly, joint ventures that have been unable to include the required representations in their SAM.gov profile can meet the requirements of FAR 52.212-3(c) and FAR 52.219-1 by including the required representations in their offer. This class deviation remains in effect until rescinded.

Small business joint ventures that are considering submitting a bid or proposal and are having issues with updating their representations in SAM.gov should consider whether this class deviation applies to their solicitation.  

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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