Nonmanufacturer Rule: Large Manufacturers OK’d For Certain Simplified Acquisitions

In a small business set-aside simplified acquisition of $25,000 or less, small business offerors may propose using large business manufacturers while still complying with the requirements of the nonmanufacturer rule.

In a recent decision, the SBA’s Office of Hearings and Appeals held that an apparent ambiguity contained in the nonmanufacturer regulation for certain simplified acquisitions should be resolved in favor of exempting offerors from the requirement that the manufacturer be a small business concern.

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Small Business Set-Aside Decisions May Include Restrictive “Capability” Requirements

The small business set-aside “rule of two” is not satisfied unless the procuring agency has a reasonable expectation of receiving proposals from at least two small businesses capable of performing the work.

Although this sounds like a commonsense interpretation of the rule of two, it may give agencies leeway to define “capability” in manner that eliminates small businesses from participation.  In a recent bid protest decision, the GAO held that an agency appropriately issued a solicitation as unrestricted based on the agency’s determination that there were not two or more small businesses with at least five years of relevant experience. Of concern, the GAO did not require the agency to prove that five years of relevant experience was necessary to render a firm “capable” of performing the contract.

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WOSB Sole Source Contracts Authorized As Of October 14, 2015

WOSB and EDWOSB sole source contracts will be authorized under the SBA’s regulations effective October 14, 2015.

In a final rule published today, the SBA implemented regulatory authority pursuant to which Contracting Officers may issue sole source contracts.  The question now is whether Contracting Officers will be willing to issue sole source contracts based on the SBA’s rule–or will wait until the FAR Council adopts similar authority.

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Kingdomware SDVOSB Case: Oral Argument Set For November 9

The U.S. Supreme Court will hear oral argument in the Kingdomware SDVOSB/VOSB case on November 9, 2015, according to the Supreme Court’s oral argument calendar.

I have filed an amicus brief on Kingdomware’s behalf, urging the Court to rule in favor of veteran-owned businesses.  I plan to attend the oral argument on the morning of the 9th and will describe my takeaways on SmallGovCon later that day.

SmallGovCon Week In Review: September 7-11, 2015

As we reflect on the tragic events of September 11, 2001 we are reminded to cherish every day and live every day to the fullest. Our thoughts are with all those who were affected by the events that took place that day.

While September 11 will never again be “just another day,” we post our weekly review of government contracting news and notes every Friday–even Fridays like this one.  Today’s roundup includes articles about increasing opportunities in the government sector, a look at a potential “game changer” in the 2016 National Defense Authorization Act, an overview of a looming potential government shutdown, and more.

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GAO: If Price Realism Will Be Evaluated, Offerors Must Be Notified

Agencies must notify offerors when price realism will be evaluated under a fixed price solicitation.

Recently, the GAO sustained a protest where a procuring agency rejected an offeror’s proposal because the offeror’s quoted prices were significantly lower than the government’s estimate–even though the solicitation did not notify offerors that price realism would be evaluated.

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