When Must a Federal Contractor be Registered in SAM.gov?

On May 20, 2016, the Government issued a proposed rule in the Federal Register requiring contractors to be registered in its System for Award Management (SAM) database (www.sam.gov). Registration in SAM, including current representations and certifications, would be required prior to submission of an offer to the Government. The current regulations were viewed as being unclear as to whether a contractor must be registered in SAM before submitting an offer or before award.

The purpose of the rule was to clarify an inconsistency with offeror representations and certifications. Federal Acquisition Regulation (FAR) Clause 52.204-7, System for Award Management, says that an offeror is not ‘‘registered in the SAM database’’ unless the offeror has completed its online annual representations and certifications. FAR Clause 52.204-8(b) and (d), Annual Representations and Certifications, state that if FAR Clause 52.204-7 is included in the solicitation, the offeror verifies by submission of the offer that the representations and certifications in SAM are current and accurate. While the clauses instruct offerors to complete representations and certifications by registering in SAM prior to submitting offers, the policy at FAR 4.1102, System for Award Management, states that SAM registration (which includes online representations and certifications) must be completed by the time of award.

The proposed rule changes this language to “Prospective contractors shall be registered in the SAM database at the time an offer or quote is submitted in order to comply with the annual representations and certifications requirements (see FAR subpart 4.12).” The proposed rule further states that the Contracting Officer “Shall verify that the prospective contractor is registered in the SAM database…at the time of offer or quote submission.”

What the rule does not state is what will happen if the prospective contractor is either: 1) not registered in SAM, or 2) registered in SAM but does not have a current representations and certifications in SAM. Will the prospective contractor be eliminated from the solicitation process or will it be allowed to update or register in SAM to be compliant? The proposed rule does not say.

Two other issues surrounding SAM registration may also emerge. First, will the requirement of SAM registration prior to proposal submission become a new component of the Contracting Officer’s toolbox in disqualify offerors? And, second, will a Federal contractor’s competitors be able to use the SAM registration requirement as a basis of protest with the Government Accountability Office (GAO)?

How You Can Use This Information
Interested parties should submit written comments to the General Services Administration (GSA) Regulatory Secretariat Division on or before July 19, 2016 that may be considered in the formation of the final rule. Comments pertaining to FAR Case 2015-005 may be submitted online, or via mail, as follows:

  • http://www.regulations.gov: Submit comments via the Federal eRulemaking portal by searching ‘‘FAR Case 2015-005’’. Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2015-005.’’ Follow the instructions provided on the screen. Include your name, company name (if any), and ‘‘FAR Case 2015-005’’ on your attached document.
  • Comments via mail should be sent to:
    General Services Administration, Regulatory Secretariat
    Division (MVCB), ATTN: Ms. Flowers
    1800 F Street NW, 2nd Floor
    Washington, DC 20405

You should submit comments only and cite “FAR Case 2015-005” in all correspondence. Any comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

What Does CohnReznick Think?
CohnReznick appreciates the opportunity to help Government contractors identify potential changes to the Federal contracting process that may impact the way they do business with the Government.

Through www.govcon360.com and our monthly Lunch and Learn sessions, we can provide you with insight into what Government contractors need to know to stay compliant with the Government’s everchanging regulatory environment.

Visit www.govcon360.com for:

  • Resources, thought pieces, and quick links to tools and references
  • Lunch and Learn session presentations and classes offered through the CohnReznick GovCon360 Academy
  • GovCon360 News and Events

Please contact Rebecca Kehoe, Manager (rebecca.kehoe.fischer@cohnreznick.com or 703.847.4431), Roy Conley, Senior Manager (roy.conley@cohnreznick.com or 703.847.4435), or Kristen Soles, Partner (kristen.soles@cohnreznick.com or 703.847.4411).

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