Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Correct. With 6.302-5 identifying a number of authorized noncompetitive set-asides.

Some set-asides could be noncompetitive. See 6.302-5 in conjunction with 19.501(a ) and 19.203(b ) (quoted in post #9, above).

jw, I agree with Don that set-asides refer to competitive acquisitions not sole source actions. Part 19 separates the discussion of set-asides for small business and for various classes of SDB's from sole source awards to the various classes of SDB's.

For example:

19.1309 – Contract clauses.

(a) The contracting officer shall insert the clause 52.219-3, Notice of HUBZone Set-Aside or Sole Source Award, in solicitations and contracts for acquisitions that are set aside, or reserved for, or awarded on a sole source basis to, HUBZone small business concerns under 19.1305 or 19.1306.

19.1305 – HUBZone Set-Aside Procedures.
19.1306 – HUBZone Sole Source Awards.
52.219-3 – Notice of HUBZone Set-Aside or Sole Source Award.

(a) Definition. See 13 CFR 125.6(e) for definitions of terms used in paragraph ©.

( B) Applicability. This clause applies only to--

(1) Contracts that have been set aside or reserved for, or awarded on a sole source basis to, HUBZone small business concerns;

(2) Part or parts of a multiple-award contract that have been set aside for HUBZone small business concerns; and

(3) Orders set-aside for HUBZone small business concerns under multiple-award contracts as described in 8.405-5 and 16.505( B)(2)(i)(F).

See also 19.203 ( b ) that you cited. I didn't read the term "set-aside":

...the requirement at 19.502-2(a) to exclusively reserve acquisitions for small business concerns does not preclude the contracting officer from awarding a contract to a small business under the 8(a) Program, HUBZone Program, SDVOSB Program, or WOSB Program.

Note that Subpart 19.5 deals with competitive set-asides for small business concerns, not sole source awards, which are under separate paragraphs.

Sole source awards are under separate paragraphs from set-asisdes in Part 19, except where they are discussed together as separate types of awards. See, for example: under 19.8 ( e ):

(e) The contracting officer shall comply with 19.203 before deciding to offer an acquisition to a small business concern under the 8(a) Program. For acquisitions above the simplified acquisition threshold, the contracting officer shall consider 8(a) set-asides or sole source awards before considering small business set-asides.

Share this post


Link to post
Share on other sites

The term "set-aside" is not used in FAR 6.302-5. The only mention of anything related to small business programs in the subsection is in paragraph ( b ):

(4) Sole source awards under the 8(a) Program (15 U.S.C. 637), but see 6.303 for requirements for justification and approval of sole-source 8(a) awards over $20 million. (See Subpart 19.8.)

(5) Sole source awards under the HUBZone Act of 1997—15 U.S.C. 657a (see 19.1306).

(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. 657f).

The FAR distinguishes "set-asides" from each of the sole source awards mentioned above. First, as joel pointed out, at FAR 19.800( e ):

For acquisitions above the simplified acquisition threshold, the contracting officer shall consider 8(a) set-asides or sole source awards before considering small business set-asides.

Then, at FAR 19.1305( a )(3):

Shall consider HUBZone set-asides before considering HUBZone sole source awards (see19.1306) or small business set-asides (see Subpart 19.5).

Then, at FAR 19.1405( a )(3):

Shall consider SDVOSB set-asides before considering SDVOSB sole source awards (see 19.1406) or small business set-asides (see Subpart 19.5).

In the context of the FAR, it makes no sense to refer to any of the sole source awards listed at FAR 6.302-5( b ) as "set-asides."

Share this post


Link to post
Share on other sites

The term "set-aside" is not used in FAR 6.302-5. The only mention of anything related to small business programs in the subsection is in paragraph ( b )...

...The FAR distinguishes "set-asides" from each of the sole source awards mentioned above.

...In the context of the FAR, it makes no sense to refer to any of the sole source awards listed at FAR 6.302-5( b ) as "set-asides."

"Yeah - what he said!" By the way, I just learned this yesterday and confirmed it today. :unsure:

Share this post


Link to post
Share on other sites

I still say a set-aside is always competitive.

F&OC acquisitions are covered by FAR Subpart 6.1.

F&OC after exclusion of sources acquisitions are covered by FAR Subpart 6.2. This includes set-asides for small businesses (competitive) (6.203), set-asides for 8( a ) (competitive) (6.204), set-asides for HUBZones (competitive) (6.205), set-asides for SDVOSBs (competitive) (6.206), and set-asides for EDWOSB and WOSBs (competitive) (6.207).

Other than full and open competition acquisitions are covered by FAR Subpart 6.3. This includes sole-source for FPI (6.302-5( b )( 1 )), NIB/NISH (6.302-5( b )( 2 )), GPO (6.302-5( b )( 3 )), 8( a ) (6.302-5( b )( 4 )), HUBZone (6.302-5( b )( 5 ), and SDVOSBs (6.302-5( b )( 6 )).

So, for example, a sole-source award to a HUBZone small business concern under FAR 6.302-5( b )( 5 ) is not a HUBZone set-aside, which is under FAR 6.205. Look at the FAR 6.205 and see. We are professionally sloppy when we refer to all of these as set-asides.

A J&A is always under FAR Subpart 6.3. Always. A similar document under FAR 16.505( b )( 2 ) is called a JEFO (Justification for an Exception to Fair Opportunity). A similar document under FAR Subpart 8.4 is called a LSJ (Limited Sources Justification). A similar document under FAR Part 13 is called a SSJ (Sole Source Justification). We are professionally sloppy when we refer to all of these as J&As.

Share this post


Link to post
Share on other sites

It appears that the use of FAR 19 abroad is a matter of agency preference. So do. So don't. Some agencies are not consistent in how they approach this. SBA chimes in on it being applicable i think.

Share this post


Link to post
Share on other sites

See previous discussion on page 1 plus see FAR 19.000 ( b ):

"( b ) This part, except for Subpart 19.6, applies only in the United States or its outlying areas. Subpart 19.6 applies worldwide."

I did not check the SBA CFR.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×