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FAR 19.1202-2, must agency evaluate for "extent of participation" in Partial Set-Asides?


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At FAR 19.1202-2(a), it states that agencies must evaluate "the extent of participation of SDB concerns in performance of the contract" in competitive, negotiated acquisitions that are expected to exceed $650,000. But then it lists several "exceptions" in subparagraph (B ) that include "Small business set-asides."

QUESTION:

What about partial small business set-asides? The FAR does not specify whether agencies must evaluate for this in partial small business set-asides. My gut instinct is, if it is partial, then only the portion that is "unrestricted" and open to large business must be evaluated for "the extent of participation of SDB concerns . . ." However, others disagree with me. They say, if it is partial, then the agency is NOT supposed to evaluate for this for ANY vendor, even the large businesses.

Thoughts?

Here is an excerpt of FAR 19.1202-2 set forth:

FAR 19.1202-2 Applicability.

(a) Except as provided in paragraph (B ) of this subsection, the extent of participation of SDB concerns in performance of the contract in the authorized NAICS Industry Subsector shall be evaluated in competitive, negotiated acquisitions expected to exceed $650,000 ($1.5 million for construction).

(B ) The extent of participation of SDB concerns in performance of the contract in the authorized NAICS Industry Subsector (see paragraph (a) of this subsection) shall not be evaluated in-

(1) Small business set-asides . . .

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Guest Vern Edwards

Don was referring to FAR Case 2009-016, which is based on the series of decisions by the U.S. Court of Appeals for the Federal Circuit and the U.S. District Court, Western District of Texas, in Rothe Development Corp. V. Department of Defense. The class deviation is number 2011-O0003, dated November 8, 2010. According to the most recent FAR case status report, a draft final rule was sent to the Office of Information and Regulatory Affairs within OMB on October 29, 2013, and is under review by that office. The final rule would eliminate portions FAR Subparts 19.11 and 19.12.

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Thanks. I found the DOD memo on the Class Deviation from 2010 online:

http://www.acq.osd.mil/dpap/policy/policyvault/Class%20Deviation%202011-O0003%20-%20Signed.pdf

I also looked at the Proposed Rule from September 2011 from FAR Case 2009-016 that Vern mentioned:

[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]

http://www.gpo.gov/fdsys/pkg/FR-2011-09-09/html/2011-22944.htm

It says that not everything is necessarily eliminated. It might be, but it's not sure:

"Paragraph A. FAR Revisions

...

With respect to FAR 19.1202, Evaluation factor or subfactor, FAR subpart 19.7 is currently silent on its use. Nothing in this rulemaking precludes an agency from using evaluation factors and subfactors for subcontracting during source selections. The [sBA] regulations (13 CFR 125.3(g0) allow the application of evaluation factors and subfactors to subcontracting with any of the small business programs, including, but not limited to, SDBs. The FAR Council will confer with SBA to evaluate the need for guidance in the FAR on the use of evaluation factors and subfactors for subcontracting."

So it looks like it is not mandatory to evaluate the "extent of participation" anymore, but it is not precluded either.

Also, I find it interesting that not all agencies issued Class Deviations after the Rothe decision. DOD did, and so did NASA. Here is NASA's Class Deviation from FAR 19.12 issued in 2011:

http://www.hq.nasa.gov/office/procurement/regs/pic11-01.html

I don't work for DHS, but just out of curiosity, I search to see if DHS had issued a Class Deviation. I couldn't find one.

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Guest Vern Edwards

Most of the civilian agencies do not resort to class deviations. That is very much (though not exclusively) a DOD thing, since they can't get the FAR councils to act quickly enough. DOD had to respond to a court order. The civilian agencies, if they are even aware of the issue, are perfectly willing to wait for the FAR change, if it ever comes. The case has been bumping around for five years.

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