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Fara Fasat

Rule of Two

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Scenario: DoD agency has set aside a solicitation as a total small business set-aside. There are 13 line items for different products. For some of them, there is only one known small business manufacturer.

FAR 19.502-2( b ) says there must be a reasonable expectation that: "(1) Offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns." The agency has said that even though there is only one manufacturer for some products, they meet the Rule of Two because two small distributors could offer these products, or there could be two small business teaming arrangements offering these products.

In either case, the agency reads "the products of different small business concerns" as meaning two offerors, even if they offer products made by the same small manufacturer.

This doesn't seem right. Not only does the plain meaning of the words seem to require the products to be made by two different concerns, but allowing products to come from only one manufacturer seems to be a sole source acquisition.

Thoughts on the agency interpretation?

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