United States: Small Biz Subcontracting Rules May Complicate Acquisitions

Originally published by Aerospace & Defense Law360, Government Contracts Law360, Mergers & Acquisitions Law360, Private Equity Law360, and Public Policy Law360, August 2016

On July 14, 2016, the Federal Acquisition Regulation Council issued a final rule implementing changes to the Federal Acquisition Regulation small business subcontracting regulations.[1] These changes — which will become effective on Nov. 1, 2016 — are consistent with the 2013 regulatory changes to small business subcontracting made by the U.S. Small Business Administration to implement the Small Business Jobs Act of 2010 (Pub. L. 111-240). In addition to existing recertification requirements for small businesses following a merger or acquisition, the new rules add requirements for new subcontracting plans, notification, and reporting; create new compliance obligations; and have implications for past performance evaluations in future procurements.

Acquirers of a company that identifies itself as a "small business" under the SBA regulations should consider the potential impact of the new regulations under the key FAR provisions amended by the Final Rule: FAR Subpart 19.7 (The Small Business Subcontracting Program) and the contract clauses at FAR 52.219-8 (Utilization of Small Business Concerns) and FAR 52.219-9 (Small Business Subcontracting Plan). Acquirers, including private equity firms and strategic buyers, should evaluate the impact that the acquisition and the new small business subcontracting rules may have on the sustainability of the target company's government business.

The Transaction May Limit the Target's Business Opportunities

A company bidding on a government procurement reserved for small businesses must certify in its proposal its qualification for small business status. Such companies may face additional certification requirements after contract award. Specifically, if a company is awarded a government contract based on its small business status, and if that company is later acquired by or merges with another entity, the contract awardee must recertify its size status within 30 days following the merger or acquisition.[2] The new SBA regulations impose additional recertification requirements on a small business concern if a merger or acquisition occurs after the small business concern submits its proposal but prior to contract award.[3]

To determine a government contractor's size status, the SBA looks at both the entity itself and the contractor's affiliates. Affiliates are entities under common control with the contractor, based on ownership, management, previous relationships, and contractual relationships.[4] In determining whether affiliation exists, the SBA considers the totality of the circumstances and may find affiliation even in circumstances where no single factor alone may be sufficient to constitute affiliation. If the SBA determines that affiliation does exist, it will count the receipts or number of employees of the contractor whose size is at issue, combined with the receipts or number of employees for all of the contractor's domestic and foreign affiliates to determine if the contractor still qualifies as a small business under the specified North America Industry Classification System code and corresponding size standard following the merger or acquisition.[5]

The acquirer may try to structure the transaction with the small business government contractor in a manner to avoid affiliation, such as by having the target retain majority ownership and management control of itself. Often, however, the target and the acquirer will be deemed to be affiliates, and the target will no longer qualify as a small business under the SBA's regulations.

Following a merger or acquisition resulting in a change in size status, the small business must notify all contracting officers for its outstanding bids and proposals and existing contracts and make updated representations regarding its size status. Generally, the target will retain its status as a small business for the life of its existing government contracts, and the change in size status will not change the terms and conditions of the contracts. The target will be permitted to complete its performance on its existing small business set-aside contracts. However, once the target recertifies that it is no longer a small business, the contracting agencies will no longer be permitted to count additional orders placed with, contract options exercised with, or modifications issued to that contractor towards the fulfillment of the agencies' small business procurement goals. In other words, the agencies will not be entitled to receive small business credit for such orders or contracts.

As a result, agencies may be less motivated to award future business — including exercising options or placing orders under existing contracts — to the contractor. The contractor also will no longer be eligible for participation in future procurements reserved for small businesses. Similarly, prime contractor customers will no longer be able to consider contract extensions or modifications of the target's subcontracts towards meeting their goals under their small business subcontracting plans, and may be less motivated to continue doing business with the target company following the loss of the target company's status as a small business. Thus, the value of a small business target and the overall sustainability of its government contracts business could decrease dramatically after size recertification and loss of small business size status.

The Transaction May Create a New Obligation to Submit Subcontracting Plans

The changes to the FAR small business subcontracting requirements under the final rule will, under certain circumstances, impose additional subcontracting obligations on acquirers.

As noted, a contractor must recertify its size status after a merger or acquisition. Under FAR 19.301-2(e) as revised by the Final Rule, contracting officers may require a contractor -- and its new parent entity -- to submit a subcontracting plan for each contract, if the contractor no longer certifies as a small business. While recognizing that the contractor's change in size status does not change the terms and conditions of the contract, revised FAR 19.301-2(e) will provide that "the contracting officer may require a subcontracting plan for a contract containing 52.219-9, Small Business Subcontracting Plan, if a prime contractor's size status changes from small to other than small as a result of a size rerepresentation (see 19.705-2(b)(3))." The final rule also supplements the existing guidance to determine if a subcontracting plan is necessary. It revises FAR 19.705-2 to direct contracting officers to consider — in addition to the factors already included in the FAR — the total contract dollars, and whether the contractor may acquire any portion of work from potential subcontractors with minimal or no disruption to performance and at a fair market value.

As revised, FAR 19.702(a)(3) will mandate that contracting officers require subcontracting plans under certain circumstances (unlike with recertification, where contracting officers have discretion regarding whether or not to require subcontracting plans, see FAR 19.301-2(e)). If a contract modification causes the value of a contract without an existing subcontracting plan to exceed $700,000 — or $1.5 million for a construction contract — the contracting officer must require the contractor to submit a subcontracting plan for the contract, if the contracting officer determines that subcontracting opportunities exist. In addition, FAR 19.705-1(b)(1) as revised will require that, unless the contractor has a commercial plan,[6] the contracting officer must require a subcontracting plan for each indefinite-delivery, indefinite-quantity contract — including task order delivery order contracts, Federal Supply Schedules, governmentwide acquisition contracts, and multiple award contracts — if the estimated value of the contract meets the subcontracting plan thresholds at FAR 19.702(a)(1), and the contracting officer determines that small business subcontracting opportunities exist.

Under the final rule, a subcontracting plan must include fourteen different types of information and assurances. Among other requirements, a subcontracting plan must include:

  1. Separate goals, expressed in terms of total dollars subcontracted, and as a percentage of total planned subcontracting dollars, for the use of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns as subcontractors;
  2. A statement of total dollars that the contractor plans to subcontract for an individual subcontracting plan; or the contractor's total projected sales, expressed in dollars, and the total value of projected subcontracts to support the sales for a commercial plan;
  3. A description of the principal types of supplies and services that the contractor will subcontract, and an identification of the types planned for subcontracting;
  4. An assurance that the contractor will cooperate with certain studies or surveys and will submit certain periodic reports;
  5. Assurances that the contractor will make a good faith effort to acquire supplies, services, or construction work from the small business concerns listed;
  6. Assurances that the contractor will provide the contracting officer with a written explanation if the contractor fails to meet its described subcontracting goals; and
  7. Assurances that the contractor will not prohibit any of its subcontractors from discussing with the contracting officer any material matter pertaining to payment to or utilization of a subcontractor.[7]

The final rule specifies that, if the contractor adds a subcontracting plan as a result of a size reclassification — or a modification to the dollar value of the contract — then the subcontracting goals will apply from the date of incorporation of the subcontracting plan into the contract.[8] The contractor's subcontract reporting obligations, including submission of an individual subcontracting report, will be triggered on a cumulative basis from the date that the subcontracting plan is incorporated into the contract.[9]

The New Rule Attempts to Reduce Instances of "Bait and Switch" Involving Proposed Subcontractors

In addition to creating new small business subcontracting obligations, the final rule will revise the FAR to make it more difficult for contractors to propose the use of small business subcontractors for a government contract and then fail to follow through with those proposed subcontractors during contract performance. Specifically, the final rule will add paragraph (a)(12) to FAR 19.704 to require that each offeror's subcontracting plan include assurances that the offeror will make a "good faith effort" to acquire supplies, services, or construction work from the small business concerns that the offeror included in its bid or proposal, and in the same or greater scope, amount, and quality as used in preparing and submitting the bid or proposal.[10] The final rule will also add paragraph (a)(13) to FAR 19.704 to require a prime contractor to submit a written explanation to the contracting officer within 30 days of contract completion if the contractor fails to utilize its small business subcontractors in the manner proposed in its bid or proposal.

Under the final rule, contractors may be subject to additional consequences for failing to implement their subcontracting plans. Under the current FAR provisions, if a contractor does not comply in good faith with its approved subcontracting plan, the contractor may be found to have materially breached its contract.[11] Beginning Nov. 1, 2016, a contractor's failure to comply in good faith with its small business subcontracting plan also "may be considered in any past performance evaluation of the contractor."[12]

On a related point, the FAR as revised will require a prime contractor to allow its subcontractors to communicate directly with the contracting officer concerning "any material matter pertaining to payment to or utilization of a subcontractor."[13] While this change will not create privity between the subcontractor and the government, it could alert a contracting officer to instances where a prime contractor may not be utilizing proposed small business subcontractors post-award or is otherwise failing to abide by its small business subcontracting plan.

The New Rule Adds Additional Obligations Vis-a-Vis Subcontractors

The final rule will amend the FAR to impose an additional notification requirement on prime contractors for competitive subcontracts over the simplified acquisition threshold in which a small business concern received a small business preference. In such instances, the prime contractor must, prior to award of the subcontract, inform each unsuccessful small business subcontract offeror, in writing, of the name and location of the apparent successful offeror and if the successful subcontract offeror is a small business, veteran-owned small business, SDVOSB, HUBZone small business, small disadvantaged business, or women-owned small business concern.[14]

Under the revised FAR, prime contractors also will need to assign to each subcontract the NAICS code and corresponding size standard that the prime contractor determines best describes the principal type of supplies or services to be subcontracted.[15] Prime contractors will no longer be permitted to simply flow down the NAICS code selected by the contracting officer for the prime contract.

The New Rule Adds Liability Protection for the Prime Contractor

The final rule includes one change that prime contractors may welcome. Under FAR 19.703, as revised by the final rule, prime contractors will not be held liable for a subcontractor's misrepresentation about its size or socioeconomic status, assuming the prime contractor acted in good faith.[16] The final rule further provides that a prime contractor may accept size and socioeconomic representations from a potential subcontractor either from the subcontractor's self-certifications included in its System for Award Management registration or by direct written representation. There is no order of preference for either method of representation by a small business subcontractor, but SBA regulations require that, for subcontracting purposes, a concern must qualify as small as of the date that it certifies its size status for the subcontract.[17]


Acquirers and their advisers should be mindful of the revisions to the FAR small business subcontracting regulations during the due diligence process, particularly where the acquisition involves a target company identifying itself as a "small business." The transaction may expose the target company and its parent company to new subcontracting plan requirements, along with additional notification, reporting and compliance obligations. More broadly, the new FAR small business subcontracting rules may impact the value and sustainability of the target company's government business.

[1] See 81 Fed. Reg. 45833 (July 14, 2016) (the "Final Rule").

[2] See FAR 19.301-2(b)(2) (rerepresentation by a contractor that represented itself as a small business concern) and FAR 52.219-28(b)(2) (Post-Award Small Business Program Rerepresentation).

[3] See 13 C.F.R. § 121.404(g)(2)(ii)(D); 81 Fed. Reg. 34243 (May 31, 2016) (implementing provisions of the National Defense Authorization Act of 2013; final rule effective June 30, 2016). The new recertification requirements under SBA's regulations require that if a merger or acquisition occurs after a small business concern submits its proposal, but prior to contract award, the offeror must recertify its size to the contracting officer before award. According to the SBA, "[i]f recertification is required for an existing contract, it should be required for a pending contract. An agency's receipt of small business credit should not depend on whether an acquisition or merger occurs the day before award of contract." 81 Fed. Reg. 34243 at 34253.

[4] See 13 C.F.R. § 121.103(a) and (b).

[5] See 13 C.F.R. § 121.104(d)(1) and 13 C.F.R. § 121.106(b)(1).

[6] The FAR defines a "commercial plan" as "a subcontracting plan (including goals) that covers the offeror's fiscal year and that applies to the entire production of commercial items sold by either the entire company or a portion thereof (e.g., division, plant, or product line)." FAR 19.701.

[7] See FAR 52.219-9(d) as revised by the Final Rule.

[8] See FAR19.705-2(f) as added by the Final Rule.

[9] See id.

[10] See also FAR 52.219-16, Liquidated Damages - Subcontracting Plan (defining the terms "failure to make a good faith effort to comply with the subcontracting plan" and providing for potential assessment of liquidated damages for a contractor's failure to meet its subcontracting goals and if the contracting officer determines that the contractor failed to make a good faith effort to comply with its small business subcontracting plan).

[11] See current FAR 52.219-9(k).

[12] See FAR 52.219-9(k) as revised by the Final Rule.

[13] See FAR 19.704(a) as added by the Final Rule; FAR 52.219-9(d)(14) as added by the Final Rule.

[14] See FAR 52.219-9(e)(6) as revised by the Final Rule.

[15] See FAR 52.219-9(e)(7) as added by the Final Rule.

[16] See FAR 19.703(a)(2)(iv) as revised by the Final Rule.

[17] See 13 C.F.R. § 121.404(e).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.