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.
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.
A procuring agency is not required to evaluate whether potential small business offerors possess the capabilities to meet all of the requirements of a solicitation before issuing the solicitation as a small business set-aside, according to a recent GAO bid protest decision.
In Swank Healthcare, B-407367 (Dec. 12, 2012), the GAO denied a large business’s bid protest, holding that the procuring agency had properly issued a small business set-aside without first considering whether the small businesses it had identified as likely offerors possessed the capabilities to meet all of the requirements of the solicitation.
A federal judge has denied a large business’s pre-award bid protest, which was based on the large company’s argument that small business set-asides do not constitute a type of competitive procurement.
Although the decision of the U.S. Court of Federal Claims in Res-Care, Inc. v. The United States, No. 12-251C (2012) involved a specific statute applicable to Job Corps Centers, the court’s affirmation of small business set-asides as “competitive” reinforces an important principle underlying FAR Part 19 and other programs benefiting small government contractors.
The U.S. Department of Veterans Affairs’ award of a contract to a small business under simplified acquisition procedures was improper because it appeared that a number of service-disabled veteran-owned small businesses could have filed the requirement, according to a recent GAO bid protest decision.
Unlike the ongoing Aldevra cases, in which the VA has purposefully continued making awards to non-SDVOSBs under the Federal Supply Schedule in the face of repeated GAO decisions stating that the practice is illegal, the GAO’s decision in Phoenix Environmental Design, Inc., B-407104 (Oct. 26, 2012), suggests that the VA simply did not understand how the agency’s own set-aside rules are supposed to work, at least in the context of a simplified acquisition.
One day back when I was in fourth grade, my teacher informed our class that Thomas Jefferson had never been a United States president. I marched to the back of the classroom, pulled out the Encyclopedia Britannica, and quickly proved that Mr. Jefferson had, in fact, served in our nation’s highest office, leading to a chorus of laughter among the fourth graders of Winship Elementary. After all, it’s rather amusing to find out that the person in charge got it wrong. (No wonder my teacher never liked me very much after that stunt).
In a recent GAO bid protest decision, both the procuring agency and the SBA initially got it wrong, too, by erroneously relying on outdated regulations to argue that the agency need not consider a SDVOSB set-aside before awarding a small business set-aside contract. Fortunately for SDVOSBs, the GAO set matters straight.