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shinaku

Design/Build and Rule of Two

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Looking for comments on this issue that I got going.

Have a fairly large & complex two phase design build construction requirement on the radar.

I've done pretty thorough market research including many tailored-search iterations of the Dynamic Small Business database, FBO perusal, previous in house requirements, and a small business sources sought notice that when analyzed and considered in totality, have led me to recommend full and open competition.

Just taking the number of "capable" responses received from the small biz sources sought for example, which by the way, pretty much jives with my search iteration results on the DSB database, resulted in four capable firms. Had there been at least 8 or more, I probably would have less concern for going with a set aside.

Review of my findings by Small Business Specialists has them seeminglyy autmatically apply the rule of two, and hence since they see four that I deemed "capable", it's obvious to them it should be set aside. This is depsite carefull explanation of the two phased process to them where as I see it, I'd like a large enough number of offerors in the first phase in which to have a meaningfull qualifications competition for the three to five most highly qualified firms that go into the phase two.

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Perhaps your focus in incorrectly placed, or your choice of words could be improved.

The standard IS NOT the number of "capable" small business firms. The number of "capable" small business firms is irrelevant. Rather, the standard is the contracting officer's reasonable expectation of receiving two or more offers from responsible small businesses and so forth (see FAR 19.502-2( b )). That reasonable expectation may be based on some combination of acquisition history, market research, and the contracting officer's experience.

See also FAR 19.501( c ). You don't recommend full and open competition. Rather, you review all the facts carefully to determine if an acquisition can be set aside for small businesses. You document why a small business set-aside is inappropriate, rather than recommending full and open competition. This might seem pedantic, but words matter -- using the right words ("reasonable expectation" rather than "capable") can help frame your argument.

You will have to resolve any disagreement between the contracting officer and the small business specialist under your agency procedures.

If you start the acquisition early enough, you can honorably or under duress issue a solicitation as a set-aside and then see what the results are -- if it doesn't work, then the set-aside can be automatically dissolved under FAR 19.507 and you can immediately issue a replacement soliciation as full and open competition and maybe still get the requirement awarded on contract before the end of the fiscal year.

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Bottom line: If you found two or more "capable" firms, in the sense of "responsible prospective contractor" as defined in FAR 2.101, then there is no choice. You must set the acquisition aside for small businesses. See FAR 19.502-1 and 19.502-2(B).

Game over. End of story. It does not matter how "large & complex" the acquisition is or that the acquisition is a two-phased design-build.

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