As our SmallGovCon readers might know, the SBA’s 8(a) Business Development Program is often thought of as the golden goose of federal government contracting, at least for small businesses. And it’s true, in some respects. While it is the most difficult of the SBA’s socioeconomic programs to gain admittance to, if admitted, you stand to reap large benefits such as access to competitive and sole-source contracts. And another SBA rule limits the ability to move contracts away from 8(a) Program set-asides. In that scenario, a contract that had been restricted to 8(a) Program Participants is recompeted as a set-aside for small businesses generally or a different socioeconomic category (SDVOSB, WOSB, HUBZone). Less frequently, it might not set aside for small businesses at all. If that happens, what should you do? Well, you should be familiar with what is commonly referred to as the “once 8(a), always 8(a)” rule as well as when to protest a violation of that rule.
The Once 8(a), Always 8(a) Rule (as it’s often called) states that, “where a procurement is awarded as an 8(a) contract, its follow-on requirement must remain in the 8(a) BD program unless SBA agrees to release it for non–8(a) competition.” 13 C.F.R. § 124.504(d)(1). That means that once a procurement is awarded as an 8(a) set aside, any follow-on procurement must be solicited and awarded to an 8(a) Program participant from that point forward. Seems easy enough, right? Yes and no.
13 C.F.R. § 124.504(d) and FAR 19.815(e) convey that the Once 8(a), Always 8(a) Rule applies anytime a procurement contains work currently performed under one or more 8(a) contracts. This includes situations in which the procuring agency believes the requirement is new and that the contract should not be considered a follow-on requirement. In such a case, the procuring agency must still coordinate with the SBA District Office servicing the 8(a) incumbent firm and the SBA Procurement Center Representative assigned to the contract to ensure that removing the work from the 8(a) Program is appropriate. Such notification must be in writing, must identify the scope and dollar value of any work previously performed through another 8(a) contract, and must include the scope and dollar value of the contract determined to be new.
When determining whether to release a procurement from the 8(a) Program, the SBA will consider a number of factors, including “(i) Whether the agency has achieved its [small disadvantaged business] goal; (ii) Where the agency is achieving its HUBZone, SDVO, WOSB, or small business goal, as appropriate; and (iii) Whether the requirement is critical to the business development of the 8(a) Participant that is currently performing it.”
There are also limited situations in which the SBA may decline to keep a procurement in the 8(a) Program “to give a concern previously awarded the contract that is leaving or has left the 8(a) BD program the opportunity to compete for the requirement outside of the 8(a) BD program.” Though, in our experience, this is a rare occurrence. However, it is possible if the following criteria are met:
(A) The procurement awarded through the 8(a) BD program is being or was performed by either a Participant whose program term will expire prior to contract completion, or by a former Participant whose program term expired within one year of the date of the offering letter;
(B) The concern requests in writing that SBA decline to accept the offer prior to SBA’s acceptance of the requirement for award as an 8(a) contract; and
(C) The concern qualifies as a small business for the requirement now offered to the 8(a) BD program.
13 C.F.R. § 124.504(d)(2)(i).
If SBA receives a request to release a requirement to a soon-to-graduate participant or former participant, SBA will also weigh the participant’s business development needs against the business development needs of qualified current participants. Additionally, SBA will not release a requirement from the 8(a) Program unless the agency agrees to solicit the procurement as a small business, HUBZone, SDVOSB, “or WOSB set-aside or otherwise identifies a procurement strategy that would emphasize or target small business participation.” 13 C.F.R. § 124.504(d)(3).
Now, you may be thinking “I thought this blog was about the Once 8(a), Always 8(a) Rule.” And you would be right, it is! But it is important to understand what situations justify removing a requirement from the 8(a) Program to understand what situations potentially call for a protest. So, what can you do if a procurement is removed from the 8(a) Program without following the requirements of 13 C.F.R. § 124.504? You can protest a violation of the Once 8(a), Always 8(a) Rule, of course.
Protesting an agency’s violation of the Once 8(a), Always 8(a) Rule is considered a protest of solicitation terms, or pre-award protest. As discussed in more detail here, a pre-award protest is a challenge to the terms of a solicitation under 4 C.F.R. § 21.2(a)(1). Just like you would protest a violation of the VA’s Rule of Two, or a patent ambiguity in a solicitation, you must file a Once 8(a), Always 8(a) protest before the deadline for proposal submissions. Once proposals are submitted and that deadline passes, you are out of luck and can no longer file a Once 8(a), Always 8(a) protest.
If you are looking to protest, look closely at the definition of “Follow-on requirement or contract” in 13 CFR 124.3:
The determination of whether a particular requirement or contract is a follow-on, includes consideration of whether the scope has changed significantly, requiring meaningful different types of work or different capabilities; whether the magnitude or value of the requirement has changed by at least 25 percent for equivalent periods of performance; and whether the end user of the requirement has changed. As a general guide, if the procurement satisfies at least one of these three conditions, it may be considered a new requirement. However, meeting any one of these conditions is not dispositive that a requirement is new. In particular, the 25 percent rule cannot be applied rigidly in all cases. Conversely, if the requirement satisfies none of these conditions, it is considered a follow-on procurement.
Any such protest must allege that the contract is indeed a follow-on, based on these criteria.
If you notice that work, that was previously acquired through the 8(a) Program, is no longer being solicited through the 8(a) Program (rather it is being solicited to a different type of small business, or is other than small business) a pre-award protest of a violation of the Once 8(a), Always 8(a) Rule might be in order. It is important to act sooner rather than later, because the GAO will dismiss any protest that is untimely, which, in this situation, a timely protest is one that is filed prior to the deadline for proposal submissions.
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