SBA OHA Lacks Jurisdiction Over Set-Aside Decisions

The SBA Office of Hearings and Appeals does not have jurisdiction to review a contracting officer’s decision not to set aside a procurement for small business.

In a recent decision, SBA OHA dismissed a contractor’s contention that the procuring agency should have set aside a procurement for small business–and rejected the contractor’s underlying legal argument, as well.

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SBA OHA: No Automatic Size Recertifications For GSA Schedule Task Orders

Submitting a proposal for a GSA Schedule task order does not result in an automatic recertification of the offeror’s size.

In a recent size appeal decision, the SBA Office of Hearings and Appeals rejected the argument that an offeror recertifies its size merely by submitting a proposal for a GSA task order.  Instead, a firm’s size for purposes of a GSA Schedule task order competition is determined based on the underlying GSA Schedule contract, unless the procuring agency requires recertification for the task order.

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Small Business Set-Asides Not Required For Simplified Acquisitions Outside U.S., Says GAO

Small business set-asides are not required for simplified acquisitions conducted outside the United States and its outlying areas, according to a recent GAO bid protest decision.

In Latvian Connection General Trading and Construction LLC, B-408633 (Sept. 18, 2013), the GAO rejected the protester’s contention–which was backed by the SBA–that simplified acquisitions must be set-aside whenever the “rule of two” is satisfied, notwithstanding the fact that the procurement is outside the United States.

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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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