FAR Council and GSA Fix Timing of Required SAM Registration

The System for Award Management (SAM) is the exclusive, government-wide, registration system for all companies seeking to do business with the Federal Government. All offerors must be registered in SAM before being awarded a federal contract. SAM is also available to grantees and others, including foreign companies. Companies are well advised to begin a new registration, or complete their annual updates, well in advance of deadlines to avoid potential system issues or preclusion from being awarded work.

Since 2018, the FAR[i] has requires that a vendor be registered at the time of submission of an offer “and shall continue to be registered until time of award, during performance, and through final payment of any contract,” unless an exception applies.  Recent Court of Federal Claims and Government Accounting Office (GAO) decisions have strictly interpreted the FAR provision regarding continuous registration in SAM, which has resulted in several companies being disqualified from pursuing federal contract opportunities because of a lapse of their SAM registration. I addressed this issue in my November 9, 2023, blog post.[ii]

FAR Interim Rule

To its credit, on November 12, 2024, the FAR Council issued an interim FAR rule, effective immediately, to clarify the requirements for pre-award registration by vendors in SAM to correct inconsistencies in how the (seemingly straightforward) 2018 amendment requiring “continuous” registration pre-award has been interpreted.[iii] Under this new interim rule, offerors must be registered at the time of offer submission and at the time of contract award but would NOT be required to be registered at every moment in between these two points. The rule thus makes it clear that a lapse in registration that occurs after offer submission and is corrected before contract award will not render an offeror ineligible for award. Congratulations, FAR Council, for recognizing the confusion that has been created by inconsistent GAO and court decisions and adopting a common-sense pre-award solution for agencies and contractors.

But be careful not to overapply this interim rule to post-award registration requirements. As noted above, the 2018 rule covered three phases during which “continuous registration” was required. The first phase, addressed in the 2024 interim rule, covers the period from submission of an offer until contract award. The second phase covers “during performance” of the award. The third phase covers “through final payment of any contract.” The 2024 interim rule now includes a parenthetical phrase covering the second and third phases by referring agencies and contractors to the provisions in FAR 52.207-13,[iv] titled “System for Award Management Maintenance,” that requires contractors to “maintain registration in SAM during contract performance and through final payment,” the equivalent of “continuous registration” during these post-award phases.

Effect on pending solicitations?

What is the effect of this rule on on-going solicitations that still retain the existing FAR rule? The FAR Council is silent on this point and the conventional application of FAR rules is that changes go into effect prospectively only as of the effective date of the rule change.

But if you are in the middle of an on-going solicitation that includes the 2018 clause and have a concern that your SAM registration may have lapsed, make a request to the Contracting Officer to modify the solicitation to replace the 2018 version of the FAR with the November 2024 version.

Modification Applicable to GSA Leasing Actions

Interestingly, in a related action, on November 15, 2024, GSA issued a final rule,[v] effective December 16, 2024, amending the GSAR to remove the requirement for lease offerors to have an active SAM registration when submitting offers, and instead allows the apparent successful awardee to obtain an active SAM registration up until the time of award. While leasing of real property is not subject to the FAR, GSA has included FAR clause 52.204–7 in solicitations for the lease of real property. With this November 2024 revision, GSA has determined that adopting the final GSAR amendment would have a significant beneficial effect on prospective GSA lessors. I’m not an expert in GSA real estate leasing rules or the leasing market, but maybe this 2024 final GSAR rule is an even easier FAR-based pre-award SAM registration rule for agencies and contractors to comply with.

Conclusion

Congratulations to the FAR Council for recognizing the adverse impact on agencies and contractors arising from the wide variety of interpretations of the 2018 SAM registration rule and taking timely and effective action to correct it.  Regrettably, not everyone will get the message promptly about this beneficial pre-award change. Be proactive but it is still the best practice for companies to be “continuously registered” once you obtain your initial registration and through the contract award lifecycle to avoid any risk of pre-award ineligibility determinations, protests, or contract administration problems.

At Centre Law, we help our clients register and stay current with the SAM requirements. If you have any questions, please contact the author or the Centre Law Group attorney with whom you normally work.

[i]. FAR 52.204-7(b)(1)(Oct 2018)

[ii]. See “Fixing the Risk of a Lapsed SAM Registration, Centre Law & Consulting blog, November 9, 2023, available at https://centrelawgroup.com/blog/fixing-the-risk-of-a-lapsed-sam-registration/ (last viewed 11/17/24)

[iii]. Interim FAR Rule “Clarification of System for Award Management Preaward Registration Requirements,” November 12, 2024, available at  https://www.govinfo.gov/content/pkg/FR-2024-11-12/pdf/2024-26062.pdf

[iv]. FAR 52.207-13(c) (Oct 2018)

[v].  Final General Services Administration Acquisition Regulation “SAM Representation for Leases,” November 15, 2024, available at https://www.govinfo.gov/content/pkg/FR-2024-11-15/pdf/2024-25967.pdf.

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