SAM Registration Delays Affecting Federal Contractors: US DoD Issues Class Deviation To Address – Government Contracts, Procurement & PPP

On September 8, 2022, the Department of Defense
(“DoD”) issued a class deviation, DARS
2022-O0009, to “mitigate delays” encountered by
federal contractors in their registration in the System for Award
Management (“SAM”). These delays have occurred “due
to changes in entity validation processes and a significant
increase in entities requesting a unique entity identifier at
SAM.” Importantly, this deviation, if applied by the
contracting officer, will allow contractors “to not be
actively registered in SAM until 30 days after award or the date of
its first invoice, whichever comes first.”

Generally, under Federal Acquisition Regulation
(“FAR”) Part 4.1102(a), “offerors and quoters are
required to be registered in SAM at the time an offer or quotation
is submitted in order to comply with the annual representations and
certifications requirements.” (An exception to this
requirement includes “contracts awarded without providing for
full and open competition due to unusual or compelling
urgency” (FAR 4.1102(a)(5)).)

This deviation allows contracting officers to characterize
procurements under this exception and apply the procedures in FAR
4.1103(b), which requires the contractor “to be registered in
SAM within 30 days after contract award, or at least three days
prior to submission of the first invoice, whichever occurs
first.” However, if the invoice event occurs before the 30
days after the contract award event, the deviation seems to grant
offerors an extra three days to be SAM-registered because the
deviation requires registration by “the date of its first
invoice” and not “three days prior to submission of the
first invoice,” as provided in FAR 4.1103(b).

Contracting officers can only apply this deviation if “an
offeror can prove it has initiated or attempted to start the SAM
registration process.” Moreover, contracting officers may only
apply this deviation in “new solicitations when award is
expected by October 31, 2022,” and, for existing
solicitations, contracting officers may amend the solicitation.
Contracting officers will implement this deviation by including FAR provision 52.204-7, Alternate I.

The deviation also requires the contracting officer, when using
this deviation, to:

• Use a copy of the ticket (with ticket number and date) the
  offeror has submitted to SAM’s Federal Service Desk (FSD) as
  the offeror’s proof of its initiation or attempt to start the
  SAM registration process;




• Provide the FSD ticket number to their Service/Agency SAM lead
  in accordance with established SAM ticket escalation procedures so
  that Defense Pricing and Contracting (Contracting eBusiness) may
  prioritize the ticket for action with the SAM Program Office;




• Ensure the offeror has provided responses for the required FAR
  and DFARS provisions for the solicitation that would normally be
  captured in the annual representations and certifications section
  of a SAM registration (see FAR 4.1202 and DFARS 204.1202, or FAR
  12.301(b)(2) if using commercial procedures);




• If using the Procurement Integrated Enterprise Environment
  (PIEE) solicitation module to receive offers, ensure an alternate
  method is provided for offerors to submit their proposals or quotes
  (e.g., an email address), as the PIEE solicitation module requires
  the offeror be actively registered in SAM in order to submit a
  proposal or quote through the module;




• Monitor the contractor’s completion of registration as soon
  as possible after award to ensure contract performance,
  administration, receipt, and invoicing processes are not impacted;
  and




• Delay reporting the award to the Federal Procurement Data
  System until the contractor is actively registered in SAM so the
  contract action report will not fail processing.

Although this deviation exists, the contracting officer has the
discretion whether to apply it, and the deviation advises
contracting officers “to apply this deviation thoughtfully on
a case-by-case basis as the acquisition strategy and internal
contracting business processes allow.”

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