Small Business Set-Asides: When The “Rule Of Two” Becomes The “Rule Of One”

An agency isn’t required to cancel a small business set-aside solicitation if the agency learns that one of the small businesses upon whom the set-aside decision rested is no longer small.

In a recent bid protest decision, the GAO confirmed that an agency need not redo its “rule of two” determination when a potential small business competitor outgrows its size standard–even if it could effectively convert a particular solicitation into a “rule of one.”

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SBA Size Protests: Investigation Not Required Outside Of Protest Allegations

When the SBA evaluates a size protest, it is not required to investigate issues outside of those raised in the size protest itself.

A recent decision of the SBA Office of Hearings and Appeals demonstrates the importance of submitting a thorough initial size protest–and confirms that the SBA need not investigate issues outside of the allegations raised in the protest.

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Small Business Status And Task Orders: GAO Provides Some Clarity

According to the GAO, a business qualifies as small for purposes of a task order competition under a Governmentwide Acquisition Contract so long as the business was small for purposes of the underlying GWAC, and the Contracting Officer does not request size recertification in connection with the task order.  And even if recertification is required for the task order, the operative date to determine small business status is the date of the task order offer–not the date the task order is awarded.

In a recent bid protest decision, the GAO and SBA both weighed in on the question of small business size status for task order competitions, providing some helpful clarity on this often-confusing topic.

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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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GSA Schedule BPA Awards: Size Status Ordinarily Is Based On Underlying GSA Schedule Contract

When a small business submits an offer for a Blanket Purchase Agreement issued against a GSA Schedule contract, the offeror does not automatically recertify its size.  Rather, a new regulation effective December 31, 2013 provides that an offeror’s size status for a BPA issued against a GSA Schedule ordinarily is determined by looking to the offeror’s self-certification for the underlying GSA Schedule contract.

In a recent size appeal decision, the SBA Office of Hearings and Appeals relied, in part, on the new regulation to find that an offeror had not recertified its small business status by submitting a quotation for a BPA to be issued against the offeror’s GSA Schedule contract.

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8(a) Task Orders: No Automatic Size Recertifications

Submitting a proposal for a task order under an 8(a) Government Wide Acquisition Contract does not result in automatic recertification of the offeror’s small business size status.

In a recent decision, the SBA Office of Hearings and Appeals held that unless the Contracting Officer expressly requires recertification, an offeror’s size for an 8(a) set-aside task order is governed by that offeror’s size status for the underlying GWAC.

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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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