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.
The VA’s decision not to issue a SDVOSB set-aside was improper because the VA adopted an unreasonably narrow approach to determining whether two or more SDVOSBs were likely to submit proposals.
In a recent bid protest decision, the GAO held that the VA’s narrow market research did not support its set-aside determination. And in so holding, the GAO reaffirmed its position that the VA must put “veterans first” in federal procurements.
When conducting market research to determine whether a small business set-aside is appropriate under the “rule of two,” a procuring agency must do more than determine whether multiple small businesses are likely to submit proposals–it must also make reasonable efforts to ascertain whether those small businesses are capable of performing the work.
In a recent bid protest decision, the GAO held that an agency had improperly issued a solicitation as a small business set-aside because the agency’s market research did not reasonably consider whether the identified small businesses were capable of performing the contract requirements.
Agencies are not required to investigate the availability of small business offerors when ordering goods and services off the Federal Supply Schedule, even if multiple small business concerns would be able to compete for the contract.
As the GAO recently held in Walker Development & Trading Group, B-411357 (July 8, 2015), the small business preferences found in the Small Business Act do not apply when an agency uses the FSS.
A small business’s expression of interest in a solicitation came too late to affect the agency’s set-aside decision under the so-called “rule of two,” even though there was no indication that the small business knew about the requirement early enough to affect the set-aside decision.
In a recent bid protest decision, the GAO held that an agency was not required to consider a small business’s expression of interest when that expression of interest occurred after the RFQ was released. Although the GAO may have been correct as a matter of law, the result is still discouraging, because nothing in the GAO’s decision indicated that the small business knew (or should have known) of the requirement before the agency issued the RFQ.
The U.S. Department of Veterans Affairs properly limited its SDVOSB market research to firms located in the geographic area where the contract would be performed, according to a recent GAO bid protest decision.
In an era in which many contractors bid on procurements nationally, the GAO’s rationale is debatable–but should serve as a reminder that SDVOSBs cannot take VA set-asides for granted, even when the VA does not use the Federal Supply Schedule.
One day back when I was in fourth grade, my teacher informed our class that Thomas Jefferson had never been a United States president. I marched to the back of the classroom, pulled out the Encyclopedia Britannica, and quickly proved that Mr. Jefferson had, in fact, served in our nation’s highest office, leading to a chorus of laughter among the fourth graders of Winship Elementary. After all, it’s rather amusing to find out that the person in charge got it wrong. (No wonder my teacher never liked me very much after that stunt).
In a recent GAO bid protest decision, both the procuring agency and the SBA initially got it wrong, too, by erroneously relying on outdated regulations to argue that the agency need not consider a SDVOSB set-aside before awarding a small business set-aside contract. Fortunately for SDVOSBs, the GAO set matters straight.