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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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.

GAO: “Rule of Two” Market Research Must Examine Capabilities

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.

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Buy Indian Act: Implementation Needs Improvement, Says GAO

The implementation of the Buy Indian Act set-aside program suffers from inconsistencies and uncertainties–including the fundamental question of whether Buy Indian Act set-asides are to be prioritized over other set-aside contracts.

In a recent report on the Buy Indian Act, the GAO uncovered a disturbing lack of effective oversight and implementation, and made several recommendations to enable the government to maximize the effectiveness of the Buy Indian Act.

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GAO: No Set-Aside Challenge After Proposal Due Date

A prospective contractor has the right to file a GAO bid protest challenging an agency’s refusal to set aside a solicitation for small businesses–but only if the protest is filed before the proposal deadline.

In a recent protest decision, the GAO applied the longstanding rule that “alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time,” and held that an agency’s failure to issue a set-aside is an “alleged impropriety” to which the timeliness rule applies.

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Task Order Size Status Based On Proposal Date, Not Award Date

A contractor was eligible for award of a small business set-aside task order because the contractor was “small” as of the date of its task order proposal–even though the contractor outgrew the size standard by the time the task order was awarded.

In a recent bid protest decision, the GAO held that a contractor may qualify for the award of a set-aside task order based on the date of its initial proposal, even in cases where the agency is prohibited from taking small business credit for the award.

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Task Orders: Small Business Set-Asides Not Required, Says GAO

When issuing task order solicitations under unrestricted multiple award contracts, procuring agencies are not required to apply the so-called “rule of two” and set aside task orders for small businesses.

In a recent bid protest decision, the GAO–over the objections of the SBA–held that agencies “may,” but need not, set aside task orders under multiple-award contracts.  The GAO’s decision essentially overturns a 2008 decision in which the GAO held that the rule of two does require agencies to set aside task orders.

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