Rule Of Two: Small Business’s Notification Of Interest Was Too Late

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.

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SDVOSBs Take It On The Chin: Federal Circuit Denies Kingdomware Appeal

In a crushing blow to SDVOSBs, the U.S. Court of Appeals for the Federal Circuit has denied the appeal of a lower court decision allowing the VA to procure goods and services using the Federal Supply Schedule without first considering whether SDVOSBs can satisfy the requirement.

Rejecting well-stated objections by a dissenting judge, a two-judge majority held that the purpose of the “Veterans First” rule is to ensure that the VA meets its SDVOSB goals, and that so long as the VA meets its SDVOS goals, it is free to procure services and supplies from the Federal Supply Schedule without first considering a SDVOSB procurement.

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VA SDVOSB Set-Asides Not Required For Prosthetics, Says GAO

The VA is not required to prioritize SDVOSB set-asides when it obtains prosthetic appliances and related services, according to the GAO.

In a recent bid protest decision, the GAO held that a specific statutory exemption allows the VA to procure prosthetic appliances and related services in whatever manner the VA deems best, without regard to the ordinary requirement that the VA prioritize SDVOSB acquisitions.

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Strange But True: Small Business Protests Small Business Set-Aside

Recently, I brought you the story of a contractor protesting its own award.

Now, in the same “strange but true” category comes a GAO bid protest decision in which a small business argued that the procuring agency should not have set aside the procurement for small businesses.

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Federal Court: Small Business Set-Aside Threshold “Purposefully Low”

The FAR’s threshold for meeting the so-called “Rule of Two” for small business set-asides is “purposefully low,” according to a recent decision of the U.S. Court of Federal Claims.

In Adams & Associates, Inc. v. The United States, No. 12-731C (2013), the Court rejected a challenge to a small business set-aside, holding in part that a contracting officer need not conduct a thorough responsibility evaluation of prospective small business offerors before issuing a set-aside.

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VA Refuses To Issue Set-Aside Based On Prospective Offerors’ Experience, Resources

In a troubling case, the VA recently refused to issue a small business set-aside because responses to a Request for Information indicated that prospective small business offerors lacked similar experience with the VA, and did not currently have available the personnel, equipment and facilities necessary to perform the contract.

The GAO, ignoring the recommendation of the SBA, affirmed the VA’s decision to forego a small business set-aside.

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GAO: Ostensible Subcontractor Rule Not Part of Set-Aside Decision

When deciding whether to set aside a solicitation for small businesses, procuring agencies need not consider whether prospective small business offerors can perform the contract without violating the SBA’s ostensible subcontractor rule.

This was the ruling of the GAO in a recent bid protest decision, in which the GAO held that a procuring agency had properly set aside a contract for small businesses without prior consideration of the ostensible subcontractor rule.  The GAO’s decision aligns with the one discussed in yesterday’s post, in which the GAO held that an a procuring agency need not consider the individual capabilities of potential small business offerors to meet all solicitation requirements before setting aside a solicitation.

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