NOTICE: The table originally posted contained an error in Step 4 of the HUBZone Program Decision Table. The entries for "Yes" and "No" were reversed, which implied that a HUBZone sole source was only permitted below the simplified acquisition threshold. In fact, the opposite is true. This has been corrected.
I created a Small Business Decision Table to help navigate the new small business rules contained in the FAR. Note that there is a lack of clarity on some issues in the interim rule on Socioeconomic Parity (implemented at FAR 19.203) and, as a result, I had to make some assumptions until these issues are clarified (hopefully) in the final rule. Specifically, I assumed that when the FAR says that the contracting officer "shall consider" course of action A before proceeding with course of action B, that means that course of action A would be required if the conditions permitting both course of action A and B were present. For example, FAR 19.203( c ) states:
Above the simplified acquisition threshold. The contracting officer shall first consider an acquisition for the 8(a), HUBZone, SDVOSB, or WOSB programs before using a small business set-aside (see 19.502-2( b )).
I interpret that to mean that if a contracting officer can satisfy a requirement using the 8(a), HUBZone, SDVOSB, or WOSB Programs, then she must do so?she has no discretion to bypass these programs and proceed with a small business set-aside because she thinks doing so would be in the best interests of the Government.
In public comments submitted to the FAR Councils, the Professional Service Council criticized the use of "shall first consider" at FAR 19.203( c ) as follows:
Section 19.203( c ) mandates that contracting officers "shall first consider" socioeconomic programs, in effect creating a disparity within the small business set-aside programs. However, the regulation fails to define what constitutes adequate consideration, or how the contracting officer is to demonstrate it?
...In the absence of a clear standard for "consideration," it is possible for contracting officers to construe this coverage as a mandate to use socioeconomic program acquisition programs ahead of and to the exclusion of other business categories. By removing the statutory preference for HUBZone awards, we do not believe that Congress intended to create another set of preferences through regulation.
I would prefer that the FAR Councils not attempt to define "adequate consideration," but instead cut to the chase. If the intent is to require use of the 8(a), HUBZone, SDVOSB, and WOSB Programs if possible, then state the rule using unambiguous language. For example, FAR 19.203(d) states:
Small business set-asides have priority over acquisitions using full and open competition.
Nobody is going to argue over what that means.
Lastly, there is an error in FAR 19.203 in that it implies that the SBA rule that once a requirement is in the 8(a) Program it must stay in the 8(a) Program only applies over the simplified acquisition threshold. That's wrong?it applies regardless of dollar value. The SBA regulations make no such distinction regarding dollar value. I'm told that this will be corrected in the final rule.