19.301-1 Representation by the offeror
Source: FAR 19.301-1 on acquisition.gov
Offerors must accurately and in good faith represent their small business status in writing at the time of initial offer, with strict SBA oversight and significant penalties for misrepresentation.
Overview
FAR 19.301-1 outlines the requirements for offerors to represent their small business status when bidding on federal contracts. Offerors must certify in good faith that they meet the applicable small business size standard for the NAICS code(s) identified in the solicitation, including for multiple-award contracts with multiple NAICS codes. Joint ventures must also meet specific SBA requirements to qualify as small businesses. Representations must be made in writing at the time of initial offer, including for basic ordering agreements and blanket purchase agreements. The regulation clarifies that a business's small status at the time of initial offer generally applies to subsequent orders, but rerepresentation may be required under certain circumstances. The contracting officer must accept the offeror's representation unless challenged or questioned, in which case the SBA will make a binding determination. Misrepresentation of small business status can result in significant penalties under SBA regulations.
Key Rules
- Small Business Representation
- Offerors must certify they meet the size standard for the solicitation's NAICS code(s) and have not been found otherwise by the SBA.
- Joint Venture Eligibility
- Joint ventures must comply with SBA rules and all parties (or the protégé in a mentor-protégé JV) must qualify as small.
- Written Representation Requirement
- Size and socioeconomic status must be represented in writing at the time of initial offer, including for BOAs and BPAs.
- Order Eligibility
- Offerors must be small at the time of order award for BOAs/BPAs and at initial offer for HUBZone awards.
- Multiple-Award Contracts
- Small status at initial offer applies to all orders under the contract or relevant portion/category.
- Challenge and SBA Determination
- Representations are accepted unless challenged; SBA decisions are binding.
- Penalties for Misrepresentation
- SBA or the agency may impose penalties for misrepresentation, per specific CFR sections.
Responsibilities
- Contracting Officers: Must obtain and accept written representations unless challenged, refer disputes to SBA, and enforce SBA determinations.
- Contractors: Must accurately represent size and status in good faith, comply with SBA rules for joint ventures, and maintain eligibility throughout the process.
- Agencies: May initiate action if SBA declines to penalize misrepresentation; must follow SBA and FAR procedures for challenges.
Practical Implications
- Ensures only eligible small businesses receive set-aside awards and related benefits.
- Contractors must be diligent in understanding and certifying their size status, especially for joint ventures and multiple-award contracts.
- Misrepresentation can lead to severe penalties, including loss of contract and legal consequences.
(a)
(1)To be eligible for award as a small business concern identified in 19.000(a)(3), an offeror is required to represent in good faith—
(i)
(A)That it meets the small business size standard corresponding to the North American Industry Classification System (NAICS) code identified in the solicitation; or
(B)For a multiple-award contract where there is more than one NAICS code assigned, that it meets the small business size standard for each distinct portion or category ( e.g., line item numbers, Special Item Numbers (SINs), sectors, functional areas, or the equivalent) for which it submits an offer. If the small business concern submits an offer for the entire multiple-award contract, it must meet the size standard for each distinct portion or category ( e.g., line item number, SIN, sector, functional area, or equivalent); and
(ii)The Small Business Administration (SBA) has not issued a written determination stating otherwise pursuant to https://www.ecfr.gov/current/title-13/section-121.1009" target="_blank">13 CFR 121.1009.
(2)
(i)A joint venture may qualify as a small business concern if the joint venture complies with the requirements of https://www.ecfr.gov/current/title-13/section-121.103#p-121.103(h)" target="_blank">13 CFR 121.103(h) and https://www.ecfr.gov/current/title-13/section-125.8#p-125.8(a)" target="_blank">13 CFR 125.8(a) and https://www.ecfr.gov/current/title-13/section-125.8#p-125.8(b)" target="_blank">(b) and if—
(A)Each party to the joint venture qualifies as small under the size standard for the solicitation; or
(B)The protégé is small under the size standard for the solicitation in a joint venture comprised of a mentor and protégé with an approved mentor-protégé agreement under an SBA mentor-protégé program.
(ii)A joint venture may qualify for an award under the socioeconomic programs as described in subparts 19.8, 19.13, 19.14, and 19.15.
(b) An offeror is required to represent its size and socioeconomic status in writing to the contracting officer at the time of initial offer, (whether or not the offer includes price or the price is evaluated), including offers for—
(1) Basic ordering agreements (see 16.703); and
(2) Blanket purchase agreements (BPAs) issued pursuant to part 13.
(c) To be eligible for an award of an order under a basic ordering agreement or a BPA issued pursuant to part 13 as a small business concern identified in 19.000(a)(3), the offeror must be a small business concern identified in 19.000(a)(3) at the time of award of the order.
(d) To be eligible for an award under the HUBZone Program (see subpart 19.13), a HUBZone small business concern must be a HUBZone small business concern at the time of initial offer.
(e) Multiple-award contract representations:
(1) A business that represents as a small business concern at the time of its initial offer for the contract (whether or not the offer includes price or the price is evaluated (see https://www.ecfr.gov/current/title-13/section-121.404#p-121.404(a)(1)(iv)" target="_blank">13 CFR 121.404(a)(1)(iv)), is considered a small business concern for each order issued under the contract (but see 19.301-2 for rerepresentations).
(2) A business that represents as a small business concern at the time of its initial offer for a distinct portion or category as set forth in paragraph (a)(1)(ii) is considered a small business concern for each order issued under that distinct portion or category (but see 19.301-2 for rerepresentations).
(f) 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.
(g) 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.
(h) 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 128.600 for veteran or service-disabled veteran-owned small business, 13 CFR 126.900 for HUBZone small business, and 13 CFR 127.700 for economically disadvantaged women-owned small business concerns and women-owned small business (WOSB) concerns eligible under the WOSB Program.