Applicable FAR Pages

FAC 2005–27 OCTOBER 17, 2008
SUBPART 4.6—CONTRACT REPORTING

Subpart 4.6—Contract Reporting
4.600 Scope of subpart.
This subpart prescribes uniform reporting requirements for
the Federal Procurement Data System (FPDS).
4.601 Definitions.
As used in this subpart—
“Assisted acquisition” means a contract, delivery or task
order awarded by a servicing agency on behalf of a requesting
agency. The agency providing the assistance may also administer the contract action.
“Contract action” means any oral or written action that
results in the purchase, rent, or lease of supplies or equipment,
services, or construction using appropriated dollars over the
micro-purchase threshold, or modifications to these actions
regardless of dollar value. Contract action does not include
grants, cooperative agreements, other transactions, real property leases, requisitions from Federal stock, training authorizations, or other non-FAR based transactions.
“Contract action report (CAR)” means contract action
data required to be entered into the Federal Procurement Data
System (FPDS).
“Definitive contract” means any contract that must be
reported to FPDS other than an indefinite delivery vehicle.
This definition is only for FPDS, and is not intended to apply
to Part 16.
“Direct acquisition” means an order awarded directly by
the requesting agency against the servicing agency’s contract.
In a direct acquisition, the servicing agency awards and
administers the contract but does not participate in the placement of an order.
“Entitlement program” means a Federal program that
guarantees a certain level of benefits to persons or other entities who meet requirements set by law, such as Social Security, farm price supports, or unemployment benefits.
“Generic DUNS number” means a DUNS number
assigned to a category of vendors not specific to any individual or entity.
“Indefinite delivery vehicle (IDV)” means an indefinite
delivery contract that has one or more of the following
clauses:
(1) 52.216-18, Ordering.
(2) 52.216-19, Order Limitations.
(3) 52.216-20, Definite Quantity.
(4) 52.216-21, Requirements.
(5) 52.216-22, Indefinite Quantity.
(6) Any other clause allowing ordering.
“Requesting agency” means the agency that has the
requirement for an interagency acquisition.
“Servicing agency” means the agency that will conduct an
assisted acquisition on behalf of the requesting agency.

4.603
4.602 General.
(a) The FPDS provides a comprehensive web-based tool
for agencies to report contract actions. The resulting data provides—
(1) A basis for recurring and special reports to the President, the Congress, the Government Accountability Office,
Federal executive agencies, and the general public;
(2) A means of measuring and assessing the effect of
Federal contracting on the Nation’s economy and the extent to
which small, veteran-owned small, service-disabled veteranowned small, HUBZone small, small disadvantaged, womenowned small business concerns, and AbilityOne nonprofit
agencies operating under the Javits-Wagner-O’Day Act, are
sharing in Federal contracts; and
(3) A means of measuring and assessing the effect of
other policy and management initiatives (e.g., performance
based acquisitions and competition).
(b) FPDS does not provide reports for certain acquisition
information used in the award of a contract action (e.g., subcontracting data, funding data, or accounting data).
(c) The FPDS Web site, https://www.fpds.gov, provides
instructions for submitting data. It also provides—
(1) A complete list of departments, agencies, and other
entities that submit data to the FPDS;
(2) Technical and end-user guidance;
(3) A computer-based tutorial; and
(4) Information concerning reports not generated in
FPDS.
4.603 Policy.
(a) In accordance with the Federal Funding Accountability
and Transparency Act of 2006 (Pub. L. No. 109-282), all Federal award data must be publicly accessible.
(b) Except as provided in 4.606(a)(2), executive agencies
shall use FPDS to maintain publicly available information
about all contract actions exceeding the micro-purchase
threshold, and any modifications to those actions that change
previously reported contract action report data, regardless of
dollar value.
(c) Agencies awarding assisted acquisitions or direct
acquisitions must report these actions and identify the Funding Agency Code from the applicable agency codes maintained by the National Institute of Standards and Technology
(NIST) using NIST Special Publication 800-87, “Codes for
the Identification of Federal and Federally Assisted Organizations,” at http://csrc.nist.gov/publications/nistpubs/800-87/
sp800-87-Final.pdf.
(d) Agencies exempt from the FAR are encouraged to
report contract actions in FPDS.
(e) Agencies awarding contract actions with a mix of
appropriated and nonappropriated funding shall only report
the full appropriated portion of the contract action in FPDS.
4.6-1

FAC 2005–26 JUNE 12, 2008
SUBPART 4.12—REPRESENTATIONS AND CERTIFICATIONS

4.1202

Subpart 4.12—Representations and
Certifications
4.1200 Scope.
This subpart prescribes policies and procedures for requiring submission and maintenance of representations and certifications via the Online Representations and Certifications
Application (ORCA) to—
(a) Eliminate the administrative burden for contractors of
submitting the same information to various contracting
offices; and
(b) Establish a common source for this information to procurement offices across the Government.
4.1201 Policy.
(a) Prospective contractors shall complete electronic
annual representations and certifications at http://
orca.bpn.gov in conjunction with required registration in the
Central Contractor Registration (CCR) database (see
FAR 4.1102).
(b)(1) Prospective contractors shall update the representations and certifications submitted to ORCA as necessary, but
at least annually, to ensure they are kept current, accurate, and
complete. The representations and certifications are effective
until one year from date of submission or update to ORCA.
(2) When the conditions in paragraph (b) of the clause
at 52.219-28, Post-Award Small Business Program Rerepresentation, apply, contractors that represented they were small
businesses prior to award of a contract must update the representations and certifications in ORCA as directed by the
clause. Contractors that represented they were other than
small businesses prior to award of a contract may update the
representations and certifications in ORCA as directed by the
clause, if their size status has changed since contract award.
(c) Data in ORCA is archived and is electronically retrievable. Therefore, when a prospective contractor has completed
representations and certifications electronically via ORCA,
the contracting officer must reference the date of ORCA verification in the contract file, or include a paper copy of the
electronically-submitted representations and certifications in
the file. Either of these actions satisfies contract file documentation requirements of 4.803(a)(11). However, if an offeror
identifies changes to ORCA data pursuant to the FAR provisions at 52.204-8(c) or 52.212-3(b), the contracting officer
must include a copy of the changes in the contract file.
4.1202 Solicitation provision and contract clause.
Except for commercial item solicitations issued under
FAR Part 12, insert in solicitations the provision at 52.204-8,
Annual Representations and Certifications. When the clause
at 52.204-7, Central Contractor Registration, is included in
*

*

*

the solicitation, do not include the following representations
and certifications:
(a) 52.203-2, Certificate of Independent Price
Determination.
(b) 52.203-11, Certification and Disclosure Regarding
Payments to Influence Certain Federal Transactions.
(c) 52.204-3, Taxpayer Identification.
(d) 52.204-5, Women-Owned Business (Other Than Small
Business).
(e) 52.209-5, Certification Regarding Responsibility Matters.
(f) 52.214-14, Place of Performance—Sealed Bidding.
(g) 52.215-6, Place of Performance.
(h) 52.219-1, Small Business Program Representations
(Basic & Alternate I).
(i) 52.219-2, Equal Low Bids.
(j) 52.219-19, Small Business Concern Representation for
the Small Business Competitiveness Demonstration Program.
(k) 52.219-21, Small Business Size Representation for Targeted Industry Categories Under the Small Business Competitiveness Demonstration Program.
(l) 52.219-22, Small Disadvantaged Business Status (Basic
& Alternate I).
(m) 52.222-18, Certification Regarding Knowledge of
Child Labor for Listed End Products.
(n) 52.222-22, Previous Contracts and Compliance
Reports.
(o) 52.222-25, Affirmative Action Compliance.
(p) 52.222-38, Compliance with Veterans’ Employment
Reporting Requirements.
(q) 52.222-48, Exemption from Application of the Service
Contract Act to Contracts for Maintenance, Calibration, or
Repair of Certain Equipment Certification.
(r) 52.223-1, Biobased Product Certification.
(s) 52.223-4, Recovered Material Certification.
(t) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-Designated Items (Alternate I only).
(u) 52.223-13, Certification of Toxic Chemical Release
Reporting.
(v) 52.225-2, Buy American Act Certificate.
(w) 52.225-4, Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate (Basic, Alternate I & II).
(x) 52.225-6, Trade Agreements Certificate.
(y) 52.225-20, Prohibition on Conducting Restricted Business Operations in Sudan—Certification.
(z) 52.226-2, Historically Black College or University and
Minority Institution Representation.
(aa) 52.227-6, Royalty Information (Basic & Alternate I).
(bb) 52.227-15, Representation of Limited Rights Data and
Restricted Computer Software.
*

*

*
4.12-1

FAC 2005–18 JUNE 30, 2007
17.205
(c) The period shall be set so as to provide the contractor
adequate lead time to ensure continuous production.
(d) The period may extend beyond the contract completion
date for service contracts. This is necessary for situations
when exercise of the option would result in the obligation of
funds that are not available in the fiscal year in which the contract would otherwise be completed.
(e) Unless otherwise approved in accordance with agency
procedures, the total of the basic and option periods shall not
exceed 5 years in the case of services, and the total of the basic
and option quantities shall not exceed the requirement for
5 years in the case of supplies. These limitations do not apply
to information technology contracts. However, statutes applicable to various classes of contracts, for example, the Service
Contract Act (see 22.1002-1), may place additional restrictions on the length of contracts.
(f) Contracts may express options for increased quantities
of supplies or services in terms of—
(1) Percentage of specific line items,
(2) Increase in specific line items; or
(3) Additional numbered line items identified as the
option.
(g) Contracts may express extensions of the term of the
contract as an amended completion date or as additional time
for performance; e.g., days, weeks, or months.
17.205 Documentation.
(a) The contracting officer shall justify in writing the quantities or the term under option, the notification period for exercising the option, and any limitation on option price under
17.203(g); and shall include the justification document in the
contract file.
(b) Any justifications and approvals and any determination
and findings required by Part 6 shall specify both the basic
requirement and the increase permitted by the option.
17.206 Evaluation.
(a) In awarding the basic contract, the contracting officer
shall, except as provided in paragraph (b) of this section, evaluate offers for any option quantities or periods contained in a
solicitation when it has been determined prior to soliciting
offers that the Government is likely to exercise the options.
(See 17.208.)
(b) The contracting officer need not evaluate offers for any
option quantities when it is determined that evaluation would
not be in the best interests of the Government and this determination is approved at a level above the contracting officer.
An example of a circumstance that may support a determination not to evaluate offers for option quantities is when there
is a reasonable certainty that funds will be unavailable to permit exercise of the option.
17.2-2

FEDERAL ACQUISITION REGULATION
17.207 Exercise of options.
(a) When exercising an option, the contracting officer shall
provide written notice to the contractor within the time period
specified in the contract.
(b) When the contract provides for economic price adjustment and the contractor requests a revision of the price, the
contracting officer shall determine the effect of the adjustment
on prices under the option before the option is exercised.
(c) The contracting officer may exercise options only after
determining that—
(1) Funds are available;
(2) The requirement covered by the option fulfills an
existing Government need;
(3) The exercise of the option is the most advantageous
method of fulfilling the Government’s need, price and other
factors (see paragraphs (d) and (e) of this section) considered;
and
(4) The option was synopsized in accordance with
Part 5 unless exempted by 5.202(a)(11) or other appropriate
exemptions in 5.202.
(d) The contracting officer, after considering price and
other factors, shall make the determination on the basis of one
of the following:
(1) A new solicitation fails to produce a better price or
a more advantageous offer than that offered by the option. If
it is anticipated that the best price available is the option price
or that this is the more advantageous offer, the contracting
officer should not use this method of testing the market.
(2) An informal analysis of prices or an examination of
the market indicates that the option price is better than prices
available in the market or that the option is the more advantageous offer.
(3) The time between the award of the contract containing the option and the exercise of the option is so short that it
indicates the option price is the lowest price obtainable or the
more advantageous offer. The contracting officer shall take
into consideration such factors as market stability and comparison of the time since award with the usual duration of contracts for such supplies or services.
(e) The determination of other factors under paragraph
(c)(3) of this section—
(1) Should take into account the Government’s need for
continuity of operations and potential costs of disrupting operations; and
(2) May consider the effect on small business.
(f) Before exercising an option, the contracting officer
shall make a written determination for the contract file that
exercise is in accordance with the terms of the option, the
requirements of this section, and Part 6. To satisfy requirements of Part 6 regarding full and open competition, the
option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract, e.g.—
(1) A specific dollar amount;

SUBPART 17.2—OPTIONS
(2) An amount to be determined by applying provisions
(or a formula) provided in the basic contract, but not including
renegotiation of the price for work in a fixed-price type
contract;
(3) In the case of a cost-type contract, if—
(i) The option contains a fixed or maximum fee; or
(ii) The fixed or maximum fee amount is determinable by applying a formula contained in the basic contract (but
see 16.102(c));
(4) A specific price that is subject to an economic price
adjustment provision; or
(5) A specific price that is subject to change as the result
of changes to prevailing labor rates provided by the Secretary
of Labor.
(g) The contract modification or other written document
which notifies the contractor of the exercise of the option shall
cite the option clause as authority.
17.208 Solicitation provisions and contract clauses.
(a) Insert a provision substantially the same as the provision at 52.217-3, Evaluation Exclusive of Options, in solicitations when the solicitation includes an option clause and
does not include one of the provisions prescribed in
paragraph (b) or (c) of this section.
(b) Insert a provision substantially the same as the provision at 52.217-4, Evaluation of Options Exercised at Time of
Contract Award, in solicitations when the solicitation includes
an option clause, the contracting officer has determined that
there is a reasonable likelihood that the option will be exercised, and the option may be exercised at the time of contract
award.
(c) Insert a provision substantially the same as the provision at 52.217-5, Evaluation of Options, in solicitations
when—
(1) The solicitation contains an option clause;
(2) An option is not to be exercised at the time of contract award;

17.208
(3) A firm-fixed-price contract, a fixed-price contract
with economic price adjustment, or other type of contract
approved under agency procedures is contemplated; and
(4) The contracting officer has determined that there is
a reasonable likelihood that the option will be exercised. For
sealed bids, the determination shall be in writing.
(d) Insert a clause substantially the same as the clause at
52.217-6, Option for Increased Quantity, in solicitations and
contracts, other than those for services, when the inclusion of
an option is appropriate (see 17.200 and 17.202) and the
option quantity is expressed as a percentage of the basic contract quantity or as an additional quantity of a specific line
item.
(e) Insert a clause substantially the same as the clause at
52.217-7, Option for Increased Quantity—Separately Priced
Line Item, in solicitations and contracts, other than those for
services, when the inclusion of an option is appropriate (see
17.200 and 17.202) and the option quantity is identified as a
separately priced line item having the same nomenclature as
a corresponding basic contract line item.
(f) Insert a clause substantially the same as the clause at
52.217-8, Option to Extend Services, in solicitations and contracts for services when the inclusion of an option is appropriate. (See 17.200, 17.202, and 37.111.)
(g) Insert a clause substantially the same as the clause at
52.217-9, Option to Extend the Term of the Contract, in solicitations and contracts when the inclusion of an option is appropriate (see 17.200 and 17.202) and it is necessary to include
in the contract any or all of the following:
(1) A requirement that the Government must give the
contractor a preliminary written notice of its intent to extend
the contract.
(2) A statement that an extension of the contract
includes an extension of the option.
(3) A specified limitation on the total duration of the
contract.

17.2-3

FAC 2005–10 JULY 28, 2006
SUBPART 19.2—POLICIES
(i) The proposed acquisition is for supplies or services currently being provided by a small business and the
proposed acquisition is of a quantity or estimated dollar value,
the magnitude of which makes it unlikely that small businesses can compete for the prime contract;
(ii) The proposed acquisition is for construction and
seeks to package or consolidate discrete construction projects
and the magnitude of this consolidation makes it unlikely that
small businesses can compete for the prime contract; or
(iii) The proposed acquisition is for a bundled
requirement. (See 10.001(c)(2)(i) for mandatory 30-day
notice requirement to incumbent small business concerns.)
The contracting officer shall provide all information relative
to the justification of contract bundling, including the acquisition plan or strategy, and if the acquisition involves substantial bundling, the information identified in 7.107(e). When the
acquisition involves substantial bundling, the contracting
officer shall also provide the same information to the agency
Office of Small and Disadvantaged Business Utilization.
(2) The contracting officer also must provide a statement explaining why the—
(i) Proposed acquisition cannot be divided into reasonably small lots (not less than economic production runs) to
permit offers on quantities less than the total requirement;
(ii) Delivery schedules cannot be established on a
realistic basis that will encourage small business participation
to the extent consistent with the actual requirements of the
Government;
(iii) Proposed acquisition cannot be structured so as
to make it likely that small businesses can compete for the
prime contract;
(iv) Consolidated construction project cannot be
acquired as separate discrete projects; or
(v) Bundling is necessary and justified.
(3) The 30-day notification process shall occur concurrently with other processing steps required prior to the issuance of the solicitation.
(4) If the contracting officer rejects the SBA representative's recommendation made in accordance with
19.402(c)(2), the contracting officer shall document the basis
for the rejection and notify the SBA representative in accordance with 19.505.
19.202-2 Locating small business sources.
The contracting officer must, to the extent practicable,
encourage maximum participation by small business, veteranowned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged
business, and women-owned small business concerns in
acquisitions by taking the following actions:
(a) Before issuing solicitations, make every reasonable
effort to find additional small business concerns, unless lists

19.202-5
are already excessively long and only some of the concerns on
the list will be solicited. This effort should include contacting
the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)).
(b) Publicize solicitations and contract awards through the
Governmentwide point of entry (see Subparts 5.2 and 5.3).
19.202-3 Equal low bids.
In the event of equal low bids (see 14.408-6), awards shall
be made first to small business concerns which are also labor
surplus area concerns, and second to small business concerns
which are not also labor surplus area concerns.
19.202-4 Solicitation.
The contracting officer must encourage maximum
response to solicitations by small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns by taking
the following actions:
(a) Allow the maximum amount of time practicable for the
submission of offers.
(b) Furnish specifications, plans, and drawings with solicitations, or furnish information as to where they may be
obtained or examined.
(c) Provide to any small business concern, upon its request,
a copy of bid sets and specifications with respect to any contract to be let, the name and telephone number of an agency
contact to answer questions related to such prospective contract and adequate citations to each major Federal law or
agency rule with which such business concern must comply
in performing such contract other than laws or agency rules
with which the small business must comply when doing business with other than the Government.
19.202-5 Data collection and reporting requirements.
Agencies must measure the extent of small business participation in their acquisition programs by taking the following actions:
(a) Require each prospective contractor to represent
whether it is a small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, or womenowned small business concern (see the provision at 52.219-1,
Small Business Program Representations).
(b) Accurately measure the extent of participation by small
business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business
concerns in Government acquisitions in terms of the total
value of contracts placed during each fiscal year, and report
data to the SBA at the end of each fiscal year (see Subpart 4.6).
19.2-3

FAC 2005–18 JUNE 30, 2007
19.202-6
(c) When the contract includes the clause at 52.219-28,
Post Award Small Business Program Rerepresentation, and
the conditions in paragraph (b) of the clause are met—
(1) Require a contractor that represented itself as a small
business prior to award of the contract to rerepresent its size
status; and
(2) Permit a contractor that represented itself as other
than a small business prior to award to rerepresent its size status.
19.202-6 Determination of fair market price.
(a) The fair market price shall be the price achieved in
accordance with the reasonable price guidelines in
15.404-1(b) for—

19.2-4

FEDERAL ACQUISITION REGULATION
(1) Total and partial small business set-asides (see
Subpart 19.5);
(2) HUBZone set-asides (see Subpart 19.13);
(3) Contracts utilizing the price evaluation adjustment
for small disadvantaged business concerns (see
Subpart 19.11);
(4) Contracts utilizing the price evaluation preference
for HUBZone small business concerns (see Subpart 19.13);
and
(5) Service-disabled veteran-owned small business setasides (see Subpart 19.14).
(b) For 8(a) contracts, both with respect to meeting the
requirement at 19.806(b) and in order to accurately estimate
the current fair market price, contracting officers shall follow
the procedures at 19.807.

FAC 2005–18 JUNE 30, 2007
SUBPART 19.3—DETERMINATION OF SMALL BUSINESS STATUS FOR SMALL BUSINESS PROGRAMS

Subpart 19.3—Determination of Small
Business Status for Small Business Programs
19.301 Representations and rerepresentations.
19.301-1 Representation by the offeror.
(a) To be eligible for award as a small business, an offeror
must represent in good faith that it is a small business at the
time of its written representation. An offeror may represent
that it is a small business concern in connection with a specific
solicitation if it meets the definition of a small business concern applicable to the solicitation and has not been determined
by the Small Business Administration (SBA) to be other than
a small business.
(b) The contracting officer shall accept an offeror’s representation in a specific bid or proposal that it is a small business
unless (1) another offeror or interested party challenges the
concern’s small business representation or (2) the contracting
officer has a reason to question the representation. Challenges
of and questions concerning a specific representation shall be
referred to the SBA in accordance with 19.302.
(c) An offeror’s representation that it is a small business is
not binding on the SBA. If an offeror’s small business status
is challenged, the SBA will evaluate the status of the concern
and make a determination, which will be binding on the contracting officer, as to whether the offeror is a small business.
A concern cannot become eligible for a specific award by taking action to meet the definition of a small business concern
after the SBA has determined that it is not a small business.
(d) If the SBA determines that the status of a concern as a
small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, or women-owned small
business has been misrepresented in order to obtain a set-aside
contract, an 8(a) subcontract, a subcontract that is to be
included as part or all of a goal contained in a subcontracting
plan, or a prime or subcontract to be awarded as a result, or in
furtherance of any other provision of Federal law that specifically references Section 8(d) of the Small Business Act for a
definition of program eligibility, the SBA may take action as
specified in Sections 16(a) or 16(d) of the Act. If the SBA
declines to take action, the agency may initiate the process.
The SBA’s regulations on penalties for misrepresentations and
false statements are contained in 13 CFR 121.108 for small
business, 13 CFR 124.501 for 8(a) small business,
13 CFR 124.1011 for small disadvantaged business,
13 CFR 125.29 for veteran or service-disabled veteranowned small business, and 13 CFR 126.900 for HUBZone
small business.
19.301-2 Rerepresentation by a contractor that
represented itself as a small business.
(a) Definition. As used in this subsection—

19.302

Long-term contract means a contract of more than five
years in duration, including options. However, the term does
not include contracts that exceed five years in duration
because the period of performance has been extended for a
cumulative period not to exceed six months under the clause
at 52.217-8, Option to Extend Services, or other appropriate
authority.
(b) A contractor that represented itself as a small business
before contract award must rerepresent its size status for the
North American Industry Classification System (NAICS)
code in the contract upon the occurrence of any of the following:
(1) Within 30 days after execution of a novation agreement or within 30 days after modification of the contract to
include the clause at 52.219-28, Post-Award Small Business
Program Rerepresentation, if the novation agreement was
executed prior to inclusion of this clause in the contract.
(2) Within 30 days after a merger or acquisition of the
contractor that does not require novation or within 30 days
after modification of the contract to include the clause at
52.219-28, Post-Award Small Business Program Rerepresentation, if the merger or acquisition occurred prior to inclusion
of this clause in the contract.
(3) For long-term contracts—
(i) Within 60 to 120 days prior to the end of the fifth
year of the contract; and
(ii) Within 60 to 120 days prior to the date specified
in the contract for exercising any option thereafter.
(c) A contractor must rerepresent its size status in accordance with the size standard in effect at the time of its rerepresentation that corresponds to the NAICS code that was
initially assigned to the contract.
(d) If the contractor rerepresents that it is other than small,
from that point forward, the agency may no longer include the
value of options exercised or orders issued against the contract
in its small business prime contracting goal achievements.
(e) A change in size status does not change the terms and
conditions of the contract.
19.301-3 Rerepresentation by a contractor that
represented itself as other than a small business.
A contractor that represented itself as other than small
before contract award may, but is not required to, rerepresent
its size status when—
(a) The conditions in 19.301-2(b) apply; and
(b) The contractor qualifies as a small business under the
applicable size standard in effect at the time of its rerepresentation.
19.302 Protesting a small business representation or
rerepresentation.
(a) An offeror, the SBA, or another interested party may
protest the small business representation of an offeror in a spe19.3-1

FAC 2005–18 JUNE 30, 2007
19.302
cific offer. However, for competitive 8(a) contracts, the filing
of a protest is limited to an offeror, the contracting officer, or
the SBA.
(b) Any time after offers are opened, the contracting officer
may question the small business representation of any offeror
in a specific offer by filing a contracting officer’s protest (see
paragraph (c) of this section).
(c)(1) Any contracting officer who receives a protest,
whether timely or not, or who, as the contracting officer,
wishes to protest the small business representation of an offeror, or rerepresentation of a contractor, shall promptly forward the protest to the SBA Government Contracting Area
Office for the geographical area where the principal office of
the concern in question is located.
(2) The protest, or confirmation if the protest was initiated orally, shall be in writing and shall contain the basis for
the protest with specific, detailed evidence to support the allegation that the offeror is not small. The SBA will dismiss any
protest that does not contain specific grounds for the protest.
(d) In order to affect a specific solicitation, a protest must
be timely. SBA’s regulations on timeliness are contained in
13 CFR 121.1004. SBA’s regulations on timeliness related to
protests of disadvantaged status are contained in 13 CFR 124,
Subpart B.
(1) To be timely, a protest by any concern or other interested party must be received by the contracting officer (see
paragraphs (d)(1)(i) and (ii) of this section) by the close of
business of the 5th business day after bid opening (in sealed
bid acquisitions) or receipt of the special notification from the
contracting officer that identifies the apparently successful
offeror (in negotiated acquisitions) (see 15.503(a)(2)).
(i) A protest may be made orally if it is confirmed in
writing either within the 5-day period or by letter postmarked
no later than 1 business day after the oral protest.
(ii) A protest may be made in writing if it is delivered
to the contracting officer by hand, telegram, or letter postmarked within the 5-day period.
(2) A contracting officer’s protest is always considered
timely whether filed before or after award.
(3) A protest under a Multiple Award Schedule will be
timely if received by SBA at any time prior to the expiration
of the contract period, including renewals.
(e) Upon receipt of a protest from or forwarded by the Contracting Office, the SBA will—
(1) Notify the contracting officer and the protester of the
date it was received, and that the size of the concern being
challenged is under consideration by the SBA; and
(2) Furnish to the concern whose representation is being
protested a copy of the protest and a blank SBA Form 355,
Application for Small Business Determination, by certified
mail, return receipt requested.
(f) Within 3 business days after receiving a copy of the protest and the form, the challenged concern must file with the
19.3-2

FEDERAL ACQUISITION REGULATION
SBA a completed SBA Form 355 and a statement answering
the allegations in the protest, and furnish evidence to support
its position. If the concern does not submit the required material within the 3 business days or another period of time
granted by the SBA, the SBA may assume that the disclosure
would be contrary to the concern’s interests.
(g)(1) Within 10 business days after receiving a protest, the
challenged concern’s response, and other pertinent information, the SBA will determine the size status of the challenged
concern and notify the contracting officer, the protester, and
the challenged concern of its decision by certified mail, return
receipt requested.
(2) The SBA Government Contracting Area Director, or
designee, will determine the small business status of the questioned concern and notify the contracting officer and the concern of the determination. Award may be made on the basis of
that determination. This determination is final unless it is
appealed in accordance with paragraph (i) of this section, and
the contracting officer is notified of the appeal before award.
If an award was made before the time the contracting officer
received notice of the appeal, the contract shall be presumed
to be valid.
(h)(1) After receiving a protest involving an offeror being
considered for award, the contracting officer shall not award
the contract until (i) the SBA has made a size determination
or (ii) 10 business days have expired since SBA’s receipt of a
protest, whichever occurs first; however, award shall not be
withheld when the contracting officer determines in writing
that an award must be made to protect the public interest.
(2) After the 10-day period has expired, the contracting
officer may, when practical, continue to withhold award until
the SBA’s determination is received, unless further delay
would be disadvantageous to the Government.
(3) Whenever an award is made before the receipt of
SBA’s size determination, the contracting officer shall notify
SBA that the award has been made.
(4) If a protest is received that challenges the small business status of an offeror not being considered for award, the
contracting officer is not required to suspend contract action.
The contracting officer shall forward the protest to the SBA
(see paragraph (c)(1) of this section) with a notation that the
concern is not being considered for award, and shall notify the
protester of this action.
(i) An appeal from an SBA size determination may be filed
by any concern or other interested party whose protest of the
small business representation of another concern has been
denied by an SBA Government Contracting Area Director,
any concern or other interested party that has been adversely
affected by a Government Contracting Area Director’s decision, or the SBA Associate Administrator for the SBA program involved. The appeal must be filed with the—
Office of Hearings and Appeals
Small Business Administration

FAC 2005–18 JUNE 30, 2007
SUBPART 19.3—DETERMINATION OF SMALL BUSINESS STATUS FOR SMALL BUSINESS PROGRAMS
Suite 5900, 409 3rd Street, SW
Washington, DC 20416

within the time limits and in strict accordance with the procedures contained in Subpart C of 13 CFR 134. It is within the
discretion of the SBA Judge whether to accept an appeal from
a size determination. If the Judge decides not to consider such
an appeal, the Judge will issue an order denying review and
specifying the reasons for the decision. The SBA will inform
the contracting officer of its ruling on the appeal. The SBA
decision, if received before award, will apply to the pending
acquisition. SBA rulings received after award shall not apply
to that acquisition.
(j) A protest that is not timely, even though received before
award, shall be forwarded to the SBA Government Contracting Area Office (see paragraph (c)(1) of this section), with a
notation on it that the protest is not timely. The protester shall
be notified that the protest cannot be considered on the instant
acquisition but has been referred to SBA for its consideration
in any future actions. A protest received by a contracting
officer after award of a contract shall be forwarded to the SBA
Government Contracting Area Office with a notation that
award has been made. The protester shall be notified that the
award has been made and that the protest has been forwarded
to SBA for its consideration in future actions.
(k) When a concern is found to be other than small under
a protest concerning a size status rerepresentation made in
accordance with the clause at 52.219-28, Post-Award Small
Business Program Rerepresentation, a contracting officer may
permit contract performance to continue, issue orders, or exercise option(s), because the contract remains a valid contract.
19.303 Determining North American Industry
Classification System (NAICS) codes and size
standards.
(a) The contracting officer shall determine the appropriate
NAICS code and related small business size standard and
include them in solicitations above the micro-purchase
threshold.
(b) If different products or services are required in the same
solicitation, the solicitation shall identify the appropriate
small business size standard for each product or service.
(c) The contracting officer’s determination is final unless
appealed as follows:
(1) An appeal from a contracting officer’s NAICS code
designation and the applicable size standard must be served
and filed within 10 calendar days after the issuance of the initial solicitation. SBA’s Office of Hearings and Appeals (OHA)
will dismiss summarily an untimely NAICS code appeal.
(2)(i) The appeal petition must be in writing and must
be addressed to the—
Office of Hearings and Appeals
Small Business Administration

19.304

Suite 5900, 409 3rd Street, SW
Washington, DC 20416

(ii) There is no required format for the appeal; however, the appeal must include—
(A) The solicitation or contract number and the
name, address, and telephone number of the contracting
officer;
(B) A full and specific statement as to why the
size determination or NAICS code designation is allegedly
erroneous and argument supporting the allegation; and
(C) The name, address, telephone number, and
signature of the appellant or its attorney.
(3) The appellant must serve the appeal petition upon—
(i) The SBA official who issued the size
determination;
(ii) The contracting officer who assigned the NAICS
code to the acquisition;
(iii) The business concern whose size status is at
issue;
(iv) All persons who filed protests; and
(v) SBA’s Office of General Counsel.
(4) Upon receipt of a NAICS code appeal, OHA will
notify the contracting officer by a notice and order of the date
OHA received the appeal, the docket number, and Judge
assigned to the case. The contracting officer’s response to the
appeal, if any, must include argument and evidence (see
13 CFR Part 134), and must be received by OHA within
10 calendar days from the date of the docketing notice and
order, unless otherwise specified by the Administrative Judge.
Upon receipt of OHA’s docketing notice and order, the contracting officer must immediately send to OHA a copy of the
solicitation relating to the NAICS code appeal.
(5) After close of record, OHA will issue a decision and
inform the contracting officer. If OHA’s decision is received
by the contracting officer before the date the offers are due, the
decision shall be final and the solicitation must be amended to
reflect the decision, if appropriate. OHA’s decision received
after the due date of the initial offers shall not apply to the
pending solicitation but shall apply to future solicitations of
the same products or services.
19.304 Disadvantaged business status.
(a) To be eligible to receive a benefit as a prime contractor
based on its disadvantaged status, a concern, at the time of its
offer, must either be certified as a small disadvantaged business (SDB) concern or have a completed SDB application
pending at the SBA or a Private Certifier (see 19.001).
(b) The contracting officer may accept an offeror’s representation that it is an SDB concern for general statistical purposes. The provision at 52.219-1, Small Business Program
Representations, or 52.212-3(c)(4), Offeror Representations
and Certifications-Commercial Items, is used to collect SDB
data for general statistical purposes.
19.3-3

FAC 2005–18 JUNE 30, 2007
SUBPART 19.3—DETERMINATION OF SMALL BUSINESS STATUS FOR SMALL BUSINESS PROGRAMS
manent and severe disability status, the SBA will rely upon
determinations made by the Department of Veteran’s Affairs,
Department of Defense determinations, or such determinations identified by documents provided by the U.S. National
Archives and Records Administration. SBA will determine
the service-disabled veteran-owned small business status of
the protested concern within 15 business days after receipt of
a protest. If SBA does not contact the contracting officer
within 15 business days, the contracting officer may award
the contract to the apparently successful offeror, unless the
contracting officer has granted SBA an extension. The contracting officer may award the contract after receipt of a protest if the contracting officer determines in writing that an
award must be made to protect the public interest.
(i) SBA will notify the contracting officer, the protester,
and the protested concern of its determination. The determination is effective immediately and is final unless overturned
on appeal by SBA’s Office of Hearings and Appeals (OHA)
pursuant to 13 CFR part 134.

19.308

purchase threshold when the contract will be performed in the
United States or its outlying areas.
(2) Use the provision with its Alternate I in solicitations
issued by DoD, NASA, or the Coast Guard.
(b) Insert the provision at 52.219-22, Small Disadvantaged
Business Status, in solicitations that include the clause at
52.219-23, Notice of Price Evaluation Adjustment for Small
Disadvantaged Business Concerns, or 52.219-25, Small Disadvantaged Business Participation Program—Disadvantaged
Status and Reporting. Use the provision with its Alternate I in
solicitations for acquisitions for which a price evaluation
adjustment for small disadvantaged business concerns is
authorized on a regional basis.
(c) When contracting by sealed bidding, insert the provision at 52.219-2, Equal Low Bids, in solicitations when the
contract will be performed in the United States or its
outlying areas.
(d) Insert the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, in solicitations and contracts
exceeding the micro-purchase threshold when the contract
will be performed in the United States or its outlying areas.

19.308 Solicitation provisions and contract clauses.
(a)(1) Insert the provision at 52.219-1, Small Business Program Representations, in solicitations exceeding the micro-

19.3-7

FAC 2005–18 JUNE 30, 2007
SUBPART 19.8—CONTRACTING WITH THE SMALL BUSINESS ADMINISTRATION (THE 8(A) PROGRAM)
located. All requirements for 8(a) construction competition
should be forwarded to the district office servicing the geographical area in which all or the major portion of the construction is to be performed. All requirements, including
construction, must be synopsized through the GPE. For construction, the synopsis must include the geographical area of
the competition set forth in the SBA’s acceptance letter.
19.804-3 SBA acceptance.
(a) Upon receipt of the contracting agency’s offer, the SBA
will determine whether to accept the requirement for the 8(a)
Program. The SBA’s decision whether to accept the requirement will be transmitted to the contracting agency in writing
within 10 working days of receipt of the offer if the contract
is likely to exceed the simplified acquisition threshold and
within 2 days of receipt if the contract is at or below the simplified acquisition threshold. The contracting agency may
grant an extension of these time periods. If SBA does not
respond to an offering letter within 10 days, the contracting
activity may seek SBA’s acceptance through the Associate
Administrator (AA)/8(a)BD.
(b) If the acquisition is accepted as a sole source, the SBA
will advise the contracting activity of the 8(a) firm selected for
negotiation. Generally, the SBA will accept a contracting
activity’s recommended source.
(c) For acquisitions not exceeding the simplified acquisition threshold, when the contracting activity makes an offer to
the 8(a) Program on behalf of a specific 8(a) firm and does not
receive a reply to its offer within 2 days, the contracting activity may assume the offer is accepted and proceed with award
of an 8(a) contract.
(d) As part of the acceptance process, SBA will review the
appropriateness of the NAICS code designation assigned to
the requirement by the contracting activity.
(1) SBA will not challenge the NAICS code assigned to
the requirement by the contracting activity if it is reasonable,
even though other NAICS codes may also be reasonable.
(2) If SBA and the contracting activity are unable to
agree on a NAICS code designation for the requirement, SBA
may refuse to accept the requirement for the 8(a) Program,
appeal the contracting officer’s determination to the head of
the agency pursuant to 19.810, or appeal the NAICS code designation to the SBA Office of Hearings and Appeals under
Subpart C of 13 CFR Part 134.
19.804-4 Repetitive acquisitions.
In order for repetitive acquisitions to be awarded through
the 8(a) Program, there must be separate offers and acceptances. This allows the SBA to determine—
(a) Whether the requirement should be a competitive 8(a)
award;
(b) A nominated firm’s eligibility, whether or not it is the
same firm that performed the previous contract;

19.805-1

(c) The effect that contract award would have on the equitable distribution of 8(a) contracts; and
(d) Whether the requirement should continue under the
8(a) Program.
19.804-5 Basic ordering agreements.
(a) The contracting activity must offer, and SBA must
accept, each order under a basic ordering agreement (BOA) in
addition to offering and accepting the BOA itself.
(b) SBA will not accept for award on a sole-source basis
any order that would cause the total dollar amount of orders
issued under a specific BOA to exceed the competitive threshold amount in 19.805-1.
(c) Once an 8(a) concern’s program term expires, the concern otherwise exits the 8(a) Program, or becomes other than
small for the NAICS code assigned under the BOA, SBA will
not accept new orders for the concern.
19.804-6 Indefinite delivery contracts.
(a) Separate offers and acceptances must not be made for
individual orders under multiple award, Federal Supply
Schedule (FSS), multi-agency contracts or Governmentwide
acquisition contracts. SBA’s acceptance of the original contract is valid for the term of the contract.
(b) The requirements of 19.805-1 of this part do not apply
to individual orders that exceed the competitive threshold as
long as the original contract was competed.
(c) An 8(a) concern may continue to accept new orders
under a multiple award, Federal Supply Schedule (FSS),
multi-agency contract or Governmentwide acquisition contract even after a concern’s program term expires, the concern
otherwise exits the 8(a) Program, or the concern becomes
other than small for the NAICS code assigned under the contract.
19.805 Competitive 8(a).
19.805-1 General.
(a) Except as provided in paragraph (b) of this subsection,
an acquisition offered to the SBA under the 8(a) Program shall
be awarded on the basis of competition limited to eligible 8(a)
firms if—
(1) There is a reasonable expectation that at least two
eligible and responsible 8(a) firms will submit offers and that
award can be made at a fair market price; and
(2) The anticipated total value of the contract, including
options, will exceed $5.5 million for acquisitions assigned
manufacturing North American Industry Classification System (NAICS) codes and $3.5 million for all other acquisitions.
(b) Where an acquisition exceeds the competitive threshold, the SBA may accept the requirement for a sole source 8(a)
award if—
19.8-3

FAC 2005–27 OCTOBER 17, 2008
SUBPART 52.2—TEXT OF PROVISIONS AND CLAUSES
pose. This paragraph does not give the Government any right to
audit the Contractor’s records. The Contractor shall not be paid
for any work performed or costs incurred that reasonably could
have been avoided.

52.212-5 Contract Terms and Conditions Required to
Implement Statutes or Executive Orders—
Commercial Items.
As prescribed in 12.301(b)(4), insert the following clause:
CONTRACT TERMS AND CONDITIONS REQUIRED TO
IMPLEMENT STATUTES OR EXECUTIVE ORDERS—
COMMERCIAL ITEMS (OCT 2008)
(a) The Contractor shall comply with the following Federal
Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of
law or Executive orders applicable to acquisitions of commercial items:
(1) 52.233-3, Protest After Award (AUG 1996)
(31 U.S.C. 3553).
(2) 52.233-4, Applicable Law for Breach of Contract
Claim (OCT 2004) (Pub. L. 108-77, 108-78)
(b) The Contractor shall comply with the FAR clauses in
this paragraph (b) that the Contracting Officer has indicated as
being incorporated in this contract by reference to implement
provisions of law or Executive orders applicable to acquisitions of commercial items:
[Contracting Officer check as appropriate.]
__ (1) 52.203-6, Restrictions on Subcontractor Sales to
the Government (Sept 2006), with Alternate I (Oct 1995)
(41 U.S.C. 253g and 10 U.S.C. 2402).
__ (2) 52.219-3, Notice of Total HUBZone Set-Aside
(JAN 1999) (15 U.S.C. 657a).
__ (3) 52.219-4, Notice of Price Evaluation Preference
for HUBZone Small Business Concerns (JULY 2005) (if the
offeror elects to waive the preference, it shall so indicate in its
offer) (15 U.S.C. 657a).
__ (4) [Reserved]
__ (5)(i) 52.219-6, Notice of Total Small Business SetAside (JUNE 2003) (15 U.S.C. 644).
__ (ii) Alternate I (OCT 1995) of 52.219-6.
__ (iii) Alternate II (MAR 2004) of 52.219-6.
__ (6)(i) 52.219-7, Notice of Partial Small Business
Set-Aside (JUNE 2003) (15 U.S.C. 644).
__ (ii) Alternate I (OCT 1995) of 52.219-7.
__ (iii) Alternate II (MAR 2004) of 52.219-7.
__ (7) 52.219-8, Utilization of Small Business
Concerns (MAY 2004) (15 U.S.C. 637(d)(2) and (3)).
__ (8)(i) 52.219-9, Small Business Subcontracting
Plan (APR 2008) (15 U.S.C. 637(d)(4)).
__ (ii) Alternate I (OCT 2001) of 52.219-9.
__ (iii) Alternate II (OCT 2001) of 52.219-9.

52.212-5
__ (9) 52.219-14, Limitations on Subcontracting
(DEC 1996) (15 U.S.C. 637(a)(14)).
__ (10) 52.219-16, Liquidated Damages—Subcontracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).
__ (11)(i) 52.219-23, Notice of Price Evaluation
Adjustment for Small Disadvantaged Business Concerns
(OCT 2008) (10 U.S.C. 2323) (if the offeror elects to waive
the adjustment, it shall so indicate in its offer).
__ (ii) Alternate I (JUNE 2003) of 52.219-23.
__ (12) 52.219-25, Small Disadvantaged Business
Participation Program—Disadvantaged Status and Reporting
(APR 2008)
(Pub. L. 103-355,
section 7102,
and
10 U.S.C. 2323).
__ (13) 52.219-26, Small Disadvantaged Business
Participation
Program—
Incentive Subcontracting
(OCT 2000)
(Pub. L. 103-355,
section 7102,
and
10 U.S.C. 2323).
__ (14) 52.219-27, Notice of Total Service-Disabled
Veteran-Owned Small Business Set-Aside (MAY 2004)
(15 U.S.C. 657 f).
__ (15) 52.219-28, Post Award Small Business
Program
Rerepresentation
(JUNE 2007)
(15 U.S.C.
632(a)(2)).
__ (16) 52.222-3, Convict Labor (JUNE 2003)
(E.O. 11755).
__ (17) 52.222-19, Child Labor—Cooperation with
Authorities and Remedies (FEB 2008) (E.O. 13126).
__ (18) 52.222-21, Prohibition of Segregated Facilities
(FEB 1999).
__ (19) 52.222-26, Equal Opportunity (MAR 2007)
(E.O. 11246).
__ (20) 52.222-35, Equal Opportunity for Special
Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans (SEPT 2006) (38 U.S.C. 4212).
__ (21) 52.222-36, Affirmative Action for Workers with
Disabilities (JUN 1998) (29 U.S.C. 793).
__ (22) 52.222-37, Employment Reports on Special
Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans (SEPT 2006) (38 U.S.C. 4212).
__ (23) 52.222-39, Notification of Employee Rights
Concerning Payment of Union Dues or Fees (DEC 2004)
(E.O. 13201).
__ (24)(i)52.222-50, Combating Trafficking in Persons
(AUG 2007) (Applies to all contracts).
__ (ii) Alternate I (AUG 2007) of 52.222-50.
__ (25)(i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-Designated Items
(MAY 2008) (42 U.S.C. 6962(c)(3)(A)(ii)).
__ (ii) Alternate I (MAY 2008) of 52.223-9
(42 U.S.C. 6962(i)(2)(C)).
__ (26) 52.223-15, Energy Efficiency in EnergyConsuming Products (DEC 2007) (42 U.S.C. 8259b).
52.2-39

52.212-5

FEDERAL ACQUISITION REGULATION

__ (27)(i) 52.223-16, IEEE 1680 Standard for the
Environmental Assessment of Personal Computer Products
(DEC 2007) (E.O. 13423).
__ (ii) Alternate I (DEC 2007) of 52.223-16.
__ (28) 52.225-1, Buy American Act—Supplies
(JUNE 2003) (41 U.S.C. 10a-10d).
__ (29)(i)52.225-3, Buy American Act—Free Trade
Agreements—Israeli Trade Act (AUG 2007) (41 U.S.C. 10a10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, Pub. L 10877, 108-78, 108-286, 109-53 and 109-169).
__ (ii) Alternate I (JAN 2004) of 52.225-3.
__ (iii) Alternate II (JAN 2004) of 52.225-3.
__ (30) 52.225-5, Trade Agreements (NOV 2007)
(19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).
__ (31) 52.225-13, Restrictions on Certain Foreign
Purchases (JUNE 2008) (E.O.’s, proclamations, and statutes
administered by the Office of Foreign Assets Control of the
Department of the Treasury).
__ (32) 52.226-4, Notice of Disaster or Emergency Area
Set-Aside (NOV 2007) (42 U.S.C. 5150).
__ (33) 52.226-5, Restrictions on Subcontracting
Outside Disaster or Emergency Area (NOV 2007) (42 U.S.C.
5150).
__ (34) 52.232-29, Terms for Financing of Purchases of
Commercial
Items
(FEB 2002)
(41 U.S.C. 255(f),
10 U.S.C. 2307(f)).
__ (35) 52.232-30, Installment Payments for
Commercial
Items
(OCT 1995)
(41 U.S.C. 255(f),
10 U.S.C. 2307(f)).
__ (36) 52.232-33, Payment by Electronic Funds
Transfer—Central Contractor Registration (OCT 2003)
(31 U.S.C. 3332).
__ (37) 52.232-34, Payment by Electronic Funds
Transfer—Other than Central Contractor Registration
(MAY 1999) (31 U.S.C. 3332).
__ (38) 52.232-36, Payment by Third Party
(MAY 1999) (31 U.S.C. 3332).
__ (39) 52.239-1, Privacy or Security Safeguards
(AUG 1996) (5 U.S.C. 552a).
__ (40)(i) 52.247-64, Preference for Privately Owned
U.S.-Flag
Commercial
Vessels
(FEB 2006)
(46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).
__ (ii) Alternate I (Apr 2003) of 52.247-64.
(c) The Contractor shall comply with the FAR clauses in
this paragraph (c), applicable to commercial services, that the
Contracting Officer has indicated as being incorporated in this
contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:
[Contracting Officer check as appropriate.]
__ (1) 52.222-41, Service Contract Act of 1965
(Nov 2007) (41 U.S.C. 351, et seq.).
__ (2) 52.222-42, Statement of Equivalent Rates for
Federal
Hires
(MAY 1989)
(29 U.S.C. 206
and
41 U.S.C. 351, et seq.).
52.2-40

(FAC 2005–27)

__ (3) 52.222-43, Fair Labor Standards Act and Service
Contract Act—Price Adjustment (Multiple Year and Option
Contracts) (NOV 2006) (29 U.S.C. 206 and 41 U.S.C. 351,
et seq.).
__ (4) 52.222-44, Fair Labor Standards Act and Service
Contract Act—Price Adjustment (FEB 2002) (29 U.S.C. 206
and 41 U.S.C. 351, et seq.).
__ (5) 52.222-51, Exemption from Application of the
Service Contract Act to Contracts for Maintenance,
Calibration, or Repair of Certain Equipment—Requirements
(NOV 2007) (41 U.S.C. 351, et seq.).
__ (6) 52.222-53, Exemption from Application of the
Service Contract Act to Contracts for Certain Services—
Requirements (NOV 2007) (41 U.S.C. 351, et seq.).
__ (7) 52.237-11, Accepting and Dispensing of $1 Coin
(SEPT 2008) (31 U.S.C. 5112(p)(1)).
(d) Comptroller General Examination of Record. The
Contractor shall comply with the provisions of this
paragraph (d) if this contract was awarded using other than
sealed bid, is in excess of the simplified acquisition threshold,
and does not contain the clause at 52.215-2, Audit and
Records—Negotiation.
(1) The Comptroller General of the United States, or an
authorized representative of the Comptroller General, shall
have access to and right to examine any of the Contractor’s
directly pertinent records involving transactions related to this
contract.
(2) The Contractor shall make available at its offices at
all reasonable times the records, materials, and other evidence
for examination, audit, or reproduction, until 3 years after
final payment under this contract or for any shorter period
specified in FAR Subpart 4.7, Contractor Records Retention,
of the other clauses of this contract. If this contract is
completely or partially terminated, the records relating to the
work terminated shall be made available for 3 years after any
resulting final termination settelement. Records relating to
appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall
be made available until such appeals, litigation, or claims are
finally resolved.
(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data,
regardless of type and regardless of form. This does not
require the Contractor to create or maintain any record that the
Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.
(e)(1) Notwithstanding the requirements of the clauses in
paragraphs (a), (b), (c), and (d) of this clause, the Contractor
is not required to flow down any FAR clause, other than those
in paragraphs (i) through (vii) of this paragraph in a subcontract for commercial items. Unless otherwise indicated below,
the extent of the flow down shall be as required by the
clause—

SUBPART 52.2—TEXT OF PROVISIONS AND CLAUSES
(i) 52.219-8, Utilization of Small Business Concerns
(MAY 2004) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts
that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds
$550,000 ($1,000,000 for construction of any public facility),
the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.
(ii) 52.222-26, Equal Opportunity (MAR 2007)
(E.O. 11246).
(iii) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (SEPT 2006) (38 U.S.C. 4212).
(iv) 52.222-36, Affirmative Action for Workers with
Disabilities (JUNE 1998) (29 U.S.C. 793).
(v) 52.222-39, Notification of Employee Rights
Concerning Payment of Union Dues or Fees (DEC 2004)
(E.O. 13201).
(vi) 52.222-41, Service Contract Act of 1965
(NOV 2007) (41 U.S.C. 351, et seq.).
(vii) 52.222-50, Combating Trafficking in Persons
(AUG 2007) (22 U.S.C. 7104(g)). Flow down required in
accordance with paragraph (f) of FAR clause 52.222-50.
(viii) 52.222-51, Exemption from Application of the
Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements
(NOV 2007) (41 U.S.C. 351, et seq.).
(ix) 52.222-53, Exemption from Application of the
Service Contract Act to Contracts for Certain ServicesRequirements (NOV 2007) (41 U.S.C. 351, et seq.).
(x) 52.247-64, Preference for Privately Owned U.S.Flag Commercial Vessels (FEB 2006) (46 U.S.C.
Appx. 1241(b) and 10 U.S.C. 2631). Flow down required in
accordance with paragraph (d) of FAR clause 52.247-64.
(2) While not required, the contractor may include in its
subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.
(End of clause)
Alternate I (Feb 2000). As prescribed in 12.301(b)(4),
delete paragraph (d) from the basic clause, redesignate
paragraph (e) as paragraph (d), and revise the reference to
“paragraphs (a), (b), (c), or (d) of this clause” in the redesignated paragraph (d) to read “paragraphs (a), (b), and (c) of this
clause.”
52.213-1 Fast Payment Procedure.
As prescribed in 13.404, insert the following clause:
FAST PAYMENT PROCEDURE (MAY 2006)
(a) General. The Government will pay invoices based on
the Contractor’s delivery to a post office or common carrier
(or, if shipped by other means, to the point of first receipt by
the Government).

52.213-1
(b) Responsibility for supplies.(1) Title to the supplies
passes to the Government upon delivery to—
(i) A post office or common carrier for shipment to
the specific destination; or
(ii) The point of first receipt by the Government, if
shipment is by means other than Postal Service or common
carrier.
(2) Notwithstanding any other provision of the contract,
order, or blanket purchase agreement, the Contractor shall—
(i) Assume all responsibility and risk of loss for supplies not received at destination, damaged in transit, or not
conforming to purchase requirements; and
(ii) Replace, repair, or correct those supplies
promptly at the Contractor’s expense, if instructed to do so by
the Contracting Officer within 180 days from the date title to
the supplies vests in the Government.
(c) Preparation of invoice. (1) Upon delivery to a post
office or common carrier (or, if shipped by other means, the
point of first receipt by the Government), the Contractor
shall—
(i) Prepare an invoice as provided in this contract,
order, or blanket purchase agreement; and
(ii) Display prominently on the invoice “FAST
PAY.” Invoices not prominently marked “FAST PAY” via
manual or electronic means may be accepted by the payment
office for fast payment. If the payment office declines to make
fast payment, the Contractor shall be paid in accordance with
procedures applicable to invoices to which the Fast Payment
clause does not apply.
(2) If the purchase price excludes the cost of transportation, the Contractor shall enter the prepaid shipping cost on
the invoice as a separate item. The Contractor shall not
include the cost of parcel post insurance. If transportation
charges are stated separately on the invoice, the Contractor
shall retain related paid freight bills or other transportation
billings paid separately for a period of 3 years and shall furnish the bills to the Government upon request.
(3) If this contract, order, or blanket purchase agreement
requires the preparation of a receiving report, the Contractor
shall either—
(i) Submit the receiving report on the prescribed
form with the invoice; or
(ii) Include the following information on the invoice:
(A) Shipment number.
(B) Mode of shipment.
(C) At line item level—
(1) National stock number and/or manufacturer’s part number;
(2) Unit of measure;
(3) Ship-To Point;
(4) Mark-For Point, if in the contract; and
(5) FEDSTRIP/MILSTRIP document number, if in the contract.
(FAC 2005–27)

52.2-41

FAC 2005–18 JUNE 30, 2007
52.219-28

FEDERAL ACQUISITION REGULATION

19.102(f) of the Federal Acquisition Regulation to receive a
benefit under this program.
(End of clause)
52.219-28 Post-Award Small Business Program
Rerepresentation.
As prescribed in 19.308(d), insert the following clause:
POST-AWARD SMALL BUSINESS PROGRAM
REREPRESENTATION (JUNE 2007)
(a) Definitions. As used in this clause—
Long-term contract means a contract of more than five
years in duration, including options. However, the term does
not include contracts that exceed five years in duration
because the period of performance has been extended for a
cumulative period not to exceed six months under the clause
at 52.217-8, Option to Extend Services, or other appropriate
authority.
Small business concern means a concern, including its
affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the
criteria in 13 CFR part 121 and the size standard in paragraph
(c) of this clause.
(b) If the Contractor represented that it was a small business concern prior to award of this contract, the Contractor
shall rerepresent its size status according to paragraph (e) of
this clause or, if applicable, paragraph (g) of this clause, upon
the occurrence of any of the following:
(1) Within 30 days after execution of a novation agreement or within 30 days after modification of the contract to
include this clause, if the novation agreement was executed
prior to inclusion of this clause in the contract.
(2) Within 30 days after a merger or acquisition that
does not require a novation or within 30 days after modification of the contract to include this clause, if the merger or
acquisition occurred prior to inclusion of this clause in the
contract.
(3) For long-term contracts—
(i) Within 60 to 120 days prior to the end of the fifth
year of the contract; and
(ii) Within 60 to 120 days prior to the exercise date
specified in the contract for any option thereafter.

52.2-104

(c) The Contractor shall rerepresent its size status in accordance with the size standard in effect at the time of this rerepresentation that corresponds to the North American Industry
Classification System (NAICS) code assigned to this contract.
The small business size standard corresponding to this NAICS
code can be found at http://www.sba.gov/services/
contractingopportunities/sizestandardstopics/.
(d) The small business size standard for a Contractor providing a product which it does not manufacture itself, for a
contract other than a construction or service contract, is 500
employees.
(e) Except as provided in paragraph (g) of this clause, the
Contractor shall make the rerepresentation required by paragraph (b) of this clause by validating or updating all its representations in the Online Representations and Certifications
Application and its data in the Central Contractor Registration, as necessary, to ensure they reflect current status. The
Contractor shall notify the contracting office by e-mail, or otherwise in writing, that the data have been validated or updated,
and provide the date of the validation or update.
(f) If the Contractor represented that it was other than a
small business concern prior to award of this contract, the
Contractor may, but is not required to, take the actions
required by paragraphs (e) or (g) of this clause.
(g) If the Contractor does not have representations and certifications in ORCA, or does not have a representation in
ORCA for the NAICS code applicable to this contract, the
Contractor is required to complete the following rerepresentation and submit it to the contracting office, along with the
contract number and the date on which the rerepresentation
was completed:
The Contractor represents that it ❏ is, ❏ is not a small
business concern under NAICS Code ______________
assigned to contract number ______________.
[Contractor to sign and date and insert authorized signer’s
name and title].
(End of clause)
52.220 [Reserved]
52.221 [Reserved]