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.
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.
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.
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.
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.
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.
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.