SBA’s recently proposed rule seeks to officially broaden the reach of its “Rule of Two”–a government contracting requirement fundamental to supporting our nation’s small business infrastructure, policies, and goals. I emphasize “officially” because, even though this is technically a proposed change to SBA’s rules, it is really more of a “regulatory implementation” of judicial law than anything (don’t worry, we will go into more detail on this point later). Specially, SBA’s proposed rule would require the Rule of Two’s application to task orders and delivery orders under most standard multiple award contracts (MAC). This Part I blog will briefly explain what the Rule of Two is and detail SBA’s proposed update to it. But keep your eyes out for the soon-to-follow Part II blog on this topic. There, we will dig in deeper to the relevant history of (including the court case linked above), the sources and policies behind, and the potential implications for SBA’s proposed Rule of Two update.
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Agency Discretion Recertified: GAO Affirms Agency Discretion to Request Size Recertification for Task Orders
When it comes to meeting the size standards, the normal rule for a set-aside contract is simple: If you’re small at the time you submitted your initial offer for the contract, you’re small for the life of the contract. So says 13 C.F.R. § 121.404–although this could be changing in the future based on a proposed SBA rule. Furthermore, this is the general rule with set-aside IDIQs as well: If you’re small at the time of initial offer for the IDIQ, you’re small for all orders under that IDIQ. (Not so with set-aside task orders under otherwise unrestricted IDIQs, there it very much is time of offer for the task order rather than the IDIQ for the date to determine size). However, there are a couple of exceptions. The biggest one is where the contracting officer explicitly requests size recertification for the given task order. In that case, an offeror must show it is still a small business as of when it submits its offer for that task order. One contractor recently protested when the contracting officer did just that. Here, we’ll explore that GAO decision.
Continue readingSBA Confirms GSA Schedule-Holders Who Outgrow Size Standard Can Still Get Awarded Set-Aside TOs and Options
Many contractors utilize a GSA schedule contract to provide the Government with their products and/or services. After all the effort it takes to get on a GSA schedule contract, a contractor would certainly not want to lose its chance at a small business task orders issued under it, just because it’s circumstances have changed since it first got the schedule contract as a small business. In a recent decision, the SBA’s Office of Hearings and Appeals (“OHA”) confirmed that even if a business changes size after being awarded a GSA schedule contract, it can still compete for small business task orders from a Blanket Purchase Agreement (“BPA”) awarded under it.
Continue readingException to the Rule: Evaluating Price at IDIQ Versus Order Level Is a Limited Exception
A recent COFC decision yielded some important insights about government contracting. We already wrote about some joint venture aspects of the decision. But the decision also touched on whether GSA’s solicitation violated federal procurement law by excluding price as an evaluation factor at the indefinite delivery indefinite quantity (IDIQ) level for a procurement.
Continue readingGovCon Basics: Common Procurement Methods and Terminology
The acronyms and terminology used in federal government contracting can be a labyrinth–one sadly devoid of David Bowie. In this post, we’ll clarify some of the common methods used for government procurements, the regulations defining them, and the terminology associated with them.
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