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jstuessy

A/E and 8(a) Sole Source?

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Joel:

First, the Vector decision deals with the legality of setting aside an A-E procurement for 8(a) firms. The GAO held that such set-asides were permissible. Technically, the SBA selects the 8(a) contractor, and the GAO held that the SBA Administrator, not the procuring agency, is bound by the A-E selection statute in 8(a) procurements, 40 U.S.C. § 543. Thus, the SBA, which awards the 8(a) subcontract (although it may delegate that process to the procuring agency) must select the 8(a) A-E contractor on the basis of demonstrated competence and qualifications. However, I don't think SBA must comply with FAR Subpart 36.6, but with its own 8(a) regulations, 13 CFR Part 124. (I'm not sure.) In short, I don't see Vector as stating that a procuring agency must conduct an A-E competition before awarding an 8(a) contract for A-E services. Such a contract would be sole source only in the sense that the procuring agency does not conduct a competition. If SBA considered the qualifications of various 8(a) firms, that might meet the Brooks Act standard. I could find no commentary on the Vector decision that supports a contention that it stands for the proposition that 8(a) sole source awards of A-E contracts are impermissible. I add that the Vector decision is 40+ years old, and the GAO's decisions are not binding.

Second, the GAO's Powerhouse decision addressed only the question of whether the SDVOSB set-asides requirement applies to A-E procurements. The GAO held that it does. What you quoted was the GAO's quote of a VA Commerce Business Daily announcement of its policy, which the VA cited in support of its defense against the protest. In that quote the VA argued that VOSB and SDVOSB sole source awards could not be made for A-E contracts. The GAO found the CBD comment to be inapposite to the protest issue and said that the VA's comments did not merit Chevron deference.

Neither of those decisions support a claim, explicitly or by implication, that 8(a) sole source awards of contracts for A-E or design-build services are impermissible. Until and unless I see something authoritative to that effect, I see no reason to believe it.

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