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Dark Horse

Only SB remaining on a MA IDIQ Contract

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We compete and won a place on a MA IDIQ. Awards were made to both large and small businesses using the same evaluation criteria. We received a small business award along with several other small businesses.

Over the course of time on this effort all of the small businesses were purchased, except for us, and were no longer eligible to compete because they were no longer small businesses.

Since this has happened, the Government no longer offers any small business set asides on this contracting vehicle. Instead they have chosen to go to another vehicle to compete small business procurements. We, unfortunately, do not have some of these chosen vehicles so we cannot compete for efforts.

We have invested time and energy to win a position on this contract and feel that we are not being offered a fair opportunity to compete for efforts that should have been sent through this vehicle and are not because we are the only small business left. We have discussed this with the Government Customer and they appear to be ambivalent about the problem. Are there any remedies we can pursue or is this just a case of "tough luck"?

"The only horse left in a multiple award race"

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If the government is violating a term of your contract then you may have a breach case, regardless of whether the minimum has been met.

H2H

Edited to add a quote from a 2012 ASBCA decision written by Judge Delman--

"A government contractor has every reason to expect, absent a lawful convenience termination of the contract, that it will have the opportunity to provide the services it has contracted for at the agreed upon contract price for the prescribed contract period."

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It looks like a case of tough luck. If you are the only small business remaining, the government can no longer do set-asides. In the absence of some mechanism to add new small businesses, your only remaining choice I see is compete with the large sources.

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"Since this has happened, the Government no longer offers any small business set asides on this contracting vehicle. Instead they have chosen to go to another vehicle to compete small business procurements. We, unfortunately, do not have some of these chosen vehicles so we cannot compete for efforts. "

I do not understand your problem. Is it that you are receiving no solicitations for task orders, or is it that none of the issued solicitations are set aside for small businesses?

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None are being set aside for small businesses. If they have a small business requirement that would have been for this procurement, it is moved to another contract vehicle.

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None are being set aside for small businesses. If they have a small business requirement that would have been for this procurement, it is moved to another contract vehicle.

Well, I think that formerfed's comments present for you the only solution.

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Talk to the contracting officer about the minimum order (met or not met). If met, ask to be off-ramped to save yourself time and money or compete with the large companies.

You still have a few options as a small business.

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For those interested, the ASBCA (Judge James) just denied a government motion to dismiss because the minimum award value had been met; similar circumstances to the original question.

See PAW & Associates, ASBCA No. 58534, decided this month.

"... this Board has CDA jurisdiction to decide the breach of contract claim for failure to comply with the 10 U.S.C. § 2304c( B) and FAR
16.505( B)(l) requirements to give all contractors awarded multiple award contracts a fair opportunity to be considered for task order awards."

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For those interested, the ASBCA (Judge James) just denied a government motion to dismiss because the minimum award value had been met; similar circumstances to the original question.

See PAW & Associates, ASBCA No. 58534, decided this month.

"... this Board has CDA jurisdiction to decide the breach of contract claim for failure to comply with the 10 U.S.C. § 2304c( B) and FAR
16.505( B)(l) requirements to give all contractors awarded multiple award contracts a fair opportunity to be considered for task order awards."

I do not think this case has anything to do with this particular stituation.

You left out some important info in your quote:

"Thus, this Board has CDA jurisdiction to decide the breach of contract claim for failure to comply with the 10 U.S.C. § 2304c(B) and FAR 16.505(B)(l) requirements to give all contractors awarded multiple award contracts a fair opportunity to

be considered for task order awards. Whether those statutory and regulatory requirements apply here pertains to the merits of PAW's claim, which are not before us to decide on the motion to dismiss."

All they did was say they have jurisdiction, the Government was arguing that they did not.

If I am understanding your question correctly:

1. You were placed in a MATOC pool with both large and small businesses.

2. You are stating that they you the only SB left in the MATOC pool.

3. You are complaining that when a SB requirement becomes available, the Government is using other MATOCs, and not yours, for set-aside orders.

The Government is under no obligation to use your specific MATOC to fill a requirement. If the Government issues an order as a set-aside under your MATOC, they are eliminating competion and entering the realm of sole sourcing it to your SB. As a set aside the large businesses cannot compete; which leaves your SB the sole contractor. I can tell you now, this agency's competition advocate should never let something like this happen, when there are other SB MATOCs available.

You are SOL.

Your options.

1. Suck-it-up and compete with the big boys.

2. Ask the KO to T4C your contract.

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j_dude77,

You may be correct that the SB is SOL. On the other hand, maybe not. The gist of my point was that the ASBCA has (at least twice) refused to dismiss a contractor's claim against the government -- a claim premised on a violation of the contractual promise to permit fair competition for orders -- simply because the minimum award value had been met. To me, that indicates more options than the two you presented.

Though I certainly acknowledge the contractor has the deck stacked against it in any litigation.

H2H

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j_dude77,

You may be correct that the SB is SOL. On the other hand, maybe not. The gist of my point was that the ASBCA has (at least twice) refused to dismiss a contractor's claim against the government -- a claim premised on a violation of the contractual promise to permit fair competition for orders -- simply because the minimum award value had been met. To me, that indicates more options than the two you presented.

Though I certainly acknowledge the contractor has the deck stacked against it in any litigation.

H2H

The OP stated "Since this has happened, the Government no longer offers any small business set asides on this contracting vehicle. Instead they have chosen to go to another vehicle to compete small business procurements. We, unfortunately, do not have some of these chosen vehicles so we cannot compete for efforts."

My interpretation of the OP's post, is they are pissed because the Government will not issue a set-aside under their MATOC, so now they have to compete with LBs on any orders. The agency is competing the order, just not under the OP's MATOC. There is no violation of fair competition in this case; since they are not allowed to compete on a MATOC task order that is competed under a MATOC they are not part of.

Again, the Government is under no obligation to use your specific MATOC to fill a requirement. I do not care about minimum gauratees; as that was not even mentioned in the OP.

So using your argument; I have 2 MATOCs A & B. A has a pool of large businesses and one Small Business. B has a pool of all Small Businesses. I have requirement 1, and the decision is made to solicit under MATOC B as a SB set aside. So you are telling me that the MATOC A SB contractor can file a protest due to "requirements to give all contractors awarded multiple award contracts a fair opportunity to be considered for task order awards".

I refer back to my original statement:

Your options.

1. Suck-it-up and compete with the big boys.

2. Ask the KO to T4C your contract.

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So you are telling me that the MATOC A SB contractor can file a protest due to "requirements to give all contractors awarded multiple award contracts a fair opportunity to be considered for task order awards".

Nope. Never said that. Never implied that.

A protest would be futile.

Suggest you read my posts again, and if you want to take issue with what I wrote, then take issue with what I wrote instead of a strawman that I didn't write.

H2H

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j_dude77,

You may be correct that the SB is SOL. On the other hand, maybe not. The gist of my point was that the ASBCA has (at least twice) refused to dismiss a contractor's claim against the government -- a claim premised on a violation of the contractual promise to permit fair competition for orders -- simply because the minimum award value had been met. To me, that indicates more options than the two you presented.

Though I certainly acknowledge the contractor has the deck stacked against it in any litigation.

H2H

I see what you are saying. In this instance it does not apply.

The OP stated "Since this has happened, the Government no longer offers any small business set asides on this contracting vehicle. Instead they have chosen to go to another vehicle to compete small business procurements. We, unfortunately, do not have some of these chosen vehicles so we cannot compete for efforts."

Again the Government is under no obligation to use their MATOC for a requirement. The contractor is mad because they are using other MATOCs not thiers. If this is the case they are SOL. They cannot compete for a MATOC task order if they are not on that MATOC.

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