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Fair Opportunity vs. "Rule of Two"

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Scenario: Commercial services multiple award IDIQ for $5,000,000 awarded to 4 small business and 1 large business using FAR 13.5.

FAR 16.505(B)(1)(i) states that "The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding $3,000 issued under multiple-delivery order contracts or multiple task-order contracts, except as provided for in paragraph (B)(2) if this section." (paragraph (B)(2) doesn't apply in this situation)

FAR 19.502-2(B) states "The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is 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"

If I have a D.O. for more than $100,000 am I required to set it aside for the small businesses? If so, it seems that I would be going against FAR 16.505(B)(1)(i) by not providing EACH awardee a fair opportunity to be considered for each order exceeding $3,000.

Please advise.

Thanks

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Scenario: Commercial services multiple award IDIQ for $5,000,000 awarded to 4 small business and 1 large business using FAR 13.5.

* * *

If I have a D.O. for more than $100,000 am I required to set it aside for the small businesses? If so, it seems that I would be going against FAR 16.505(B)(1)(i) by not providing EACH awardee a fair opportunity to be considered for each order exceeding $3,000.

Please advise.

According to the GAO, the rule of two applies to the fair opportunity process under FAR 16.505. See Delex Systems, Inc., Comp. Gen. Dec. B-400403, October 8, 2002; http://www.gao.gov/decisions/bidpro/400403.htm.

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I believe Vern typed a wrong number. The year of the Delex decision is 2008, not 2002.

Yep. I typed in the wrong number. Thanks. (What took you so long?)

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Would it not have been unseemly for Alexander to have corrected Aristotle in haste?

P.S. "Aristotle had publicly supported Macedonian policies which were hateful to the subjugated Athenians. But he found continued support increasingly difficult as Alexander, flushed with conquest, became more arrogant and more capricious in cruelty. The political climate of Athens became dangerous for everyone, and especially for an independent philosopher. Aristotle broke with Alexander after he, Alexander, had Callisthenes, nephew of Aristotle, put to death for failing to reverence the ruler as a god. Aristotle went into exile, moving to Chalcis in Euboea in 323 B.C. He died this same year in Chalcis at age sixty-one."

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And now a general assembly of the Greeks was held at the Isthmus, where a vote was passed to make an expedition against Persia with Alexander, and he was proclaimed their leader. Thereupon many statesmen and philosophers came to him with their congratulations, and he expected that Diogenes of Sinope also, who was tarrying in Corinth, would do likewise. But since that philosopher took not the slightest notice of Alexander, and continued to enjoy his leisure in the suburb Craneion, Alexander went in person to see him; and he found him lying in the sun. Diogenes raised himself up a little when he saw so many persons coming towards him, and fixed his eyes upon Alexander. And when that monarch addressed him with greetings, and asked if he wanted anything, "Yes," said Diogenes, "stand a little out of my sun." It is said that Alexander was so struck by this, and admired so much the haughtiness and grandeur of the man who had nothing but scorn for him, that he said to his followers, who were laughing and jesting about the philosopher as they went away, "But verily, if I were not Alexander, I would be Diogenes."

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According to the GAO, the rule of two applies to the fair opportunity process under FAR 16.505. See Delex Systems, Inc., Comp. Gen. Dec. B-400403, October 8, 2002; http://www.gao.gov/decisions/bidpro/400403.htm.

It appears that, henceforth, we will be following a "rule of two light" when it comes to fair opportunity, to award of multiple award contracts and to the use of GSA Schedules pursuant to FAR Part 8, including the establishment of BPAs. Take a look at FAC 2005-54.

While the rule of two is not imposed on FAR 16.5 fair opportunity procurements, contracting officers now have the discretion to apply it to FAR 16.5 orders as well as to the award of multiple award contracts and to GSA actions under FAR Part 8.

Here is a summary extract from interim rule implemented by the FAC:

Quote

This interim rule amends--

FAR subpart 8.4 to make clear that order set-asides may be used in

connection with the placement of orders and blanket purchase agreements

under Federal Supply Schedules;

FAR subpart 12.2 to acknowledge that discretionary set- asides may be

used if placing an order under a multiple-award contract;

FAR subpart 16.5 to acknowledge that set-asides may be used in

connection with the placement of orders under multiple-award contracts,

notwithstanding the requirement to provide each contract holder a fair

opportunity to be considered;

FAR part 19 to add a new section authorizing agencies to

(1) use set-asides under multiple-award contracts--including set-asides for

small businesses participating in the small business programs identified in

FAR 19.000(a)(3); and (2) reserve one or more contract awards under

multiple-award contracts for small businesses, including any of the

socio-economic groups; and

FAR subpart 38.1 to add a reference to FAR 8.405-5 to make clear that

order set-asides may be used in connection with the placement of orders and

blanket purchase agreements under Federal Supply Schedules.

This interim rule also amends existing solicitation provisions and

contract clauses, including FAR 52.219-6 to provide notice of total

set-asides and partial set-asides under multiple-award contracts, and

revises existing contract clauses to address limitations on subcontracting

for small businesses under multiple award contracts.

Unquote

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Don't get too excited about the decision being discretionary. Discretion does not mean you can do what you want. Here is what the GAO said about the exercise of discretion in a 1986 letter to a U.S. senator:

When issues involving the exercise of discretion by a contracting agency are raised, we review the agency action to determine whether it lacks a reasonable basis, so as to be regarded as arbitrary and capricious. Wickman Spacecraft & Propulsion Co., B-219675, Dec. 20, 1985, 85-2 CPD ? 690. The same standard of review is used by the United States Claims Court and the federal district courts in considering lawsuits that are similar to bid protests in the sense that they are brought by disappointed bidders or offerors seeking declaratory and injunctive relief against agency contracting decisions. See Drexel Heritage Furnishings, Inc. v. United States, 7 Cl.Ct. 134, 142 (1984); Princeton Combustion Research Laboratories, Inc. v. McCarthy, 674 F.2d 1016, 1021-1022 (3d Cir.1982); M. Steinthal and Co. v. Seamans, 455 F.2d 1289, 1300-1302 (D.C.Cir.1971).

Now, here is what the FAR councils said in the background statement to the interim rule:

DoD, GSA, and NASA expect agencies to take advantage of set-asides under multiple-award contracts by: (1) Identifying existing or prospective multiple-award contracts with small business contract holders where order set-asides may be appropriate, and (2) maximizing opportunities for small business by utilizing order set-asides under the Federal Supply Schedule Program.

Given national policy toward small businesses, a CO who decides not to set a task or delivery order aside had better be able to justify his or her decision not to do so. I don't think he or she can get away with "It's within my discretion. That's why not."

Better think things through.

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Given national policy toward small businesses, a CO who decides not to set a task or delivery order aside had better be able to justify his or her decision not to do so. I don't think he or she can get away with "It's within my discretion. That's why not."

Better think things through.

I called it the "rule of two light" because 1) the FAR 19.502-2 rule of two and 2) the SBA specialist will be pressuring the CO to use the new discretionary authority.

FAR 19.502-2 says that "The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is 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 (but see paragraph © of this section);"

FAR 16.505(B)(2)(i)(F) says "In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644®), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply."

I cannot see how a CO can be forced by the words of the FAR to set aside a FAR 16.5 order when the words vary so much from the those in FAR 19.502-2.

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Discretion does not mean that you can do as you please. If the CO decides not to set aside, he or she had better be able to explain and make it sound reasonable. Let's just wait for the first protest decision and see what develops.

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Just curious if anyone has thoughts on this.

The 'rule of two' clearly applies for a small business set-aside. However, the ordering procedures stipulated under FAR 8.405 require a posting of requirements above the SAT to eBuy or alternately (and often preferably) providing the solicitation to a sufficient number of schedule holders to reasonably ensure that you will get quotes from at least three sources.

For a set aside under a GSA schedule, is there now a 'rule of three' in order to comply with FAR 8.405?

Thanks!

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I don't see how you could comply with FAR 8.405 if you set-aside a FSS order and only expected quotes from two small business concerns.

I believe the FAR gives you the discretion to set it aside so long as you anticipate receiving at least two quotes from qualified small businesses holding the schedule under which the competition will be held. I have not surveyed the Schedules and the business sizes of the holders, but I believe there are more than two small businesses holding each one.

I also believe that Part 8 gives you the discretion to refuse to set it aside.

If you wish to set the competition, you use the authority of FAR 8.405-5(a). If you do so and you receive fewer than three quotes, then you prepare the justification required by FAR 8.405-1(d)(3)(ii) saying that there were more that 2 small businesses holding the schedule, that you posted the requirement on eBuy for all the SBs to see, but that you only received two quotes. This explanation satisfies the requirement to explain clearly efforts you made to obtain quotes from at least three schedule contractors.

If you decide not to set it aside, I believe you are justified in doing so given the non-mandatory nature of FAR 8.405-5 and the use of the verb ?may? in FAR 8,405-5(a)(1).

While the FAR gives you the ?discretion? to solicit all businesses and not to set aside FSS requirements for small business, your agency small business partisans may pressure you to do so. This is particularly true if agencies are not meeting their SB goals.

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In re: the exercise of discretion, see the recent bid protest decision of the U.S. Court of Federal Claims in MORI Assocs., Inc. v U.S., 2011 WL 6409124, December 15, 2011:

The ADRA [Administrative Dispute Resolution Act of 1996] amendments to the Tucker Act require our court to follow Administrative Procedure Act (?APA?) standards of review in bid protests. 28 U.S.C. ? 1491(B)(4). Those standards, incorporated by reference, provide that a:

"reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be?[?] (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law... ."

Under the ?arbitrary and capricious? standard, the Court considers ?whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment? by the agency. Overton Park, 401 U.S. at 416. Although ?searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.? Id. The Court will instead look to see if an agency has ?examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,? Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and ?may not supply a reasoned basis for the agency's action that the agency itself has not given.? Bowman Transp., Inc. v. Ark?Best Freight Sys., Inc., 419 U.S. 281, 285?86 (1974). The Court must determine whether ?the procurement official's decision lacked a rational basis,? Domenico Garufi, 238 F.3d at 1332 (adopting APA standards developed by the D.C. Circuit); see also Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204 (D.C.Cir.1984). A second ground for setting aside a procurement decision is when the protester can show that ?the procurement procedure involved a violation of regulation or procedure.? Domenico Garufi, 238 F.3d at 1332. This showing must be of a ?clear and prejudicial violation of applicable statutes or regulations.? Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973)).

Under the first, rational basis ground, the applicable test is ?whether ?the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.? ? Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int'l, Inc. v. United States Dep't of Navy, 19 F.3d 1342, 1356 (11th Cir.1994)). This entails determining whether the agency ? ?entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,? ? or made a decision that was ? ?so implausible that it could not be ascribed to a difference in view or the product of agency expertise.? ? Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.Cir.2009) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43).

Because of the deference courts give to discretionary procurement decisions, ?the ?disappointed bidder bears a heavy burden of showing that the [procurement] decision had no rational basis.? ? Domenico Garufi, 238 F.3d at 1333 (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C.Cir.1994)). ?The presence (by the government) or absence (by the protester) of any rational basis for the agency decision must be demonstrated by a preponderance of the evidence.? Gulf Group, 61 Fed. Cl. at 351; see Overstreet Elec. Co. v. United States, 59 Fed. Cl. 99, 117 (2003); Info. Tech. & Appl'ns Corp. v. United States, 51 Fed. Cl. 340, 346 (2001) (citing GraphicData, LLC v. United States, 37 Fed. Cl. 771, 779 (1997)), aff'd, 316 F.3d 1312 (Fed.Cir.2003). If arbitrary action is found as a matter of law, the Court will then decide the factual question of whether the action was prejudicial to the bid protester. See Bannum, 404 F.3d at 1351?54.

Bottom line: Go ahead, use your discretion, but you'd better be able to explain your decision.

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In re: the exercise of discretion, see the recent bid protest decision of the U.S. Court of Federal Claims in MORI Assocs., Inc. v U.S., 2011 WL 6409124, December 15, 2011:

Bottom line: Go ahead, use your discretion, but you'd better be able to explain your decision.

How about this?

I am setting aside for small businesses this competition under the Federal Supply Schedule program because 1) there are at least two responsible small business contractors holding the schedule contract who can offer the required product or service at fair market prices; and 2) FAR 8.405-5 let's me set it aside.

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napolik has skirted over some important points of FAR 8.4 and has misrepresented the process of considering preference program considerations like small business in doing so. I offer the following for clarification.

First, read FAR 8.405-5 closely which requires that one follow the ordering procedures of FAR 8.405-1, 2, and 3 which requires three small businesses (or other preference being used) be anticipated, not two, before proceeding with a MAS - FSS procurement on a small business preference basis.

Additionally there is no mention of FAR 8.405-5© and (d) by napolik that requires consideration of preference program contractors in specific instances. When reading © be mindful of the FAR's definition of "should".

The following website is a good reference on the subject - http://www.gsa.gov/portal/category/100755

Spinning back to the initial post of LindaK I agree one might call it the "rule of three" for MAS-FSS but in doing so I think there is too much confusion caused as it skirts the specifics of preference program considerations called for by FAR 8.4 just like the several most recent posts have.

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I believe the FAR gives you the discretion to set it aside so long as you anticipate receiving at least two quotes from qualified small businesses holding the schedule under which the competition will be held. I have not surveyed the Schedules and the business sizes of the holders, but I believe there are more than two small businesses holding each one.

I also believe that Part 8 gives you the discretion to refuse to set it aside.

If you wish to set the competition, you use the authority of FAR 8.405-5(a). If you do so and you receive fewer than three quotes, then you prepare the justification required by FAR 8.405-1(d)(3)(ii) saying that there were more that 2 small businesses holding the schedule, that you posted the requirement on eBuy for all the SBs to see, but that you only received two quotes. This explanation satisfies the requirement to explain clearly efforts you made to obtain quotes from at least three schedule contractors.

If you decide not to set it aside, I believe you are justified in doing so given the non-mandatory nature of FAR 8.405-5 and the use of the verb ?may? in FAR 8,405-5(a)(1).

While the FAR gives you the ?discretion? to solicit all businesses and not to set aside FSS requirements for small business, your agency small business partisans may pressure you to do so. This is particularly true if agencies are not meeting their SB goals.

napolik,

That's not how I read FAR 8.405-1(d)(3)(ii) or FAR 8.405-2( c )(3)(iii)(B), which state--

The ordering activity contracting officer shall?

Provide the RFQ to as many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that quotes will be received from at least three contractors that can fulfill the requirements. When fewer than three quotes are received from schedule contractors that can fulfill the requirements, the contracting officer shall prepare a written determination to explain that no additional contractors capable of fulfilling the requirements could be identified despite reasonable efforts to do so. The determination must clearly explain efforts made to obtain quotes from at least three schedule contractors.

If you expected quotes from two (and only two) small business concerns and you limited competition to small business concerns, then I don't think that you would be compliant with FAR 8.405. I see no reason to qualify the bolded sentence above with "unless setting the order aside for small business, in which case two is sufficient."

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napolik,

That's not how I read FAR 8.405-1(d)(3)(ii) or FAR 8.405-2( c )(3)(iii)(B), which state--

If you expected quotes from two (and only two) small business concerns and you limited competition to small business concerns, then I don't think that you would be compliant with FAR 8.405. I see no reason to qualify the bolded sentence above with "unless setting the order aside for small business, in which case two is sufficient."

Don, how about this then:

I am setting aside for small businesses this competition under the Federal Supply Schedule program because 1) there are at least three responsible small business contractors holding the schedule contract who can offer the required product or service at fair market prices; 2) I will use eBuy to reasonably ensure receipt of three quotes; and 3) FAR 8.405-5 let's me set it aside.

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So I sense that the opinion here (and thanks for the replies!) is that the rule of two under GSA schedules would become a rule of three.

My guess is that we will see the issue put to rest in a future bid protest decision. Too bad I didn't think to submit a comment to the proposed rule.

Happy Holidays to all!

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I would add to napollk's memo:

National policy, as expressed by the president and Congress, encourages agencies to improve business opportunities for small businesses. See e.g., the president's memorandum, "Presidential Memorandum on the Interagency Task Force on Federal Contracting Opportunities for Small Businesses," dated April 10, 2010.

I don't like the idea of a "rule of three". There is no such rule and we don't need it. We should simply follow what FAR plainly says.

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The chances of locating two small businesses that can fulfill a need and then receiving only two quotes on a small business set-aside, especially after posting on eBuy, are very slim.

One approach a CO could use when they feel they won't receive at least three quotes from a set-aside is issue the RFQ on an unrestricted basis and make socio-economic status one of the evaluation criteria. That might allow for more quotes and give the CO the latitude to award to a small source using the trade-off process.

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Delex was the first earthquake for those who believed they stood on solid ground when saying that the fair opportunity requirements found in FASA and implemented in FAR Part 16.505 meant they could not set-aside requirements on task orders on multiple-award contracts. Mori v. US was the big one that not only affirmed the GAOs finding that the rule-of-two applied to task orders issued under multiple-award contracts, but found the obvious to some, that the rule-of-two analysis must be performed before selecting a contract vehicle to satisfy the requirement.

The COFC said in Mori that selecting an IDIQ contract with no small business contract holders to fill a requirement that should be set-aside under the rule-of-two, made the rule-of-two analysis an "empty gesture." The COFC said many other intriguing things in that decision, including that the IDIQ contract solicitation was not a requirement as contemplated in the FAR Part 19 rule-of-two language, but that the task order requirement fit that bill.

This seeming conflict between fair opportunity and rule-of-two language has been going on since the passage of FASA and intensified with section 803 in the 2002 NDAA and subsequently section 863 in the 2009 NDAA.

Meanwhile back at the ranch...

The Acquisition Advisory Panel said in its 2007 final report to OMB and Congress that agencies were engaged in various practices on this issue: some setting aside part of all of multiple-award IDIQ contracts for SB, some reserving one or more awards for SBs in full and open competitions for multiple-award IDIQs and many setting aside task orders for SB under multiple-award IDIQ contracts. The AAP felt there was no express authority to do any of these things and especially felt that reserving one or more awards for SB in full and open competition for multiple-award IDIQ contracts might be a violation of CICA, since CICA only contemplated unrestricted competition or SB set-asides. It recommended that Congress enact legislation to provide agencies the "discretion" to do all of these very things as it found all of these practices to help agencies meet their SB goals and helped ensure more opportunities for SBs. Voila, in Section 1331 of the 2010 SB Jobs act, Congress used that very language, the president signed the Bill, and the discretionary authority was implemented in the FAR.

In Mori, the COFC, in a footnote supporting its conclusion that the Rule-of-Two applied to task orders, cited that very legislation and stated it was presumably to supplement or implement the Rule-of-Two. The COFC was not being asked in Mori to decide what the word "discretion" meant, but is very likely to be asked to do that in the near future. The precise language of the Congress, even though recommended by the AAP, now presents a conundrum. As GAO pointed out in Delex, the rule-of-two was adopted through the rule making process as the agreed process for implementing the intent of the Small Business act to place a fair share of Government procurements with Small Business. Now there is a statute that gives agencies the discretion on whether to follow that regulatory procedure in the case of task orders on multiple-award contracts. That makes the presumption footnoted by the COFC in the Mori decision curious. Why would Congress feel the need to add legislation to supplement or implement a regulatory procedure? Wouldn't the properly established regulation be adequate to force compliance on its own? The COFC will likely realize that its footnoted presumption was a little off the cuff and will have to backtrack. If the Rule-of-Two is mandatory in every situation, then not only do we not need discretion under another law to follow the mandatory regulatory process, we do need discretion granted by law to supplement the mandatory regulation.

If asked at some point to decide whether the "discretion" language really means mandatory, the COFC will have to deal with the precise language of PL 111-240 that amends the SB Act, and provides discretion regarding applying the regulation based rule-of-two in situations regarding multiple-award contracts and task orders issued against them. So what was Congress' intent? After all, it's not likely that any agency/CO would use this discretion to set-aside a task order that was not within Small Business capabilities. That would be such a poor business decision it would assault ones sensibilities. Surely, Congress must have been addressing task orders that are otherwise within Small Business capabilities and appropriate for performance by Small Business, and otherwise subject to the rule-of-two analysis. Clearly, agencies/COs are given the discretion to choose between applying fair opportunity procedures that do not involve one of the exceptions to fair opportunity and applying the rule-of-two procedures.

Perhaps the discretion given in this law is Congress' way of 'harmonizing' FASA with CICA and the SB Act, as the GAO suggested it was meant to be in Delex. In any event, the COFC will have to start from a presumption that Congress acted with intent and did not pass a law that has no meaning. What will complicate things is that the FAR implementation says no written justification is required when using the new exception (F) to fair opportunity to set-aside a task order for Small Business or one of the Small Business categories found in 19.000(a)(3). The word discretion implies the authority to take a decision for one course of action out of several possible, in this case to set a task order aside, or not. Yes, agency and SBA reps will continue to be a cog in the process and advocate for every possible opportunity for SB, but ultimately the CO now has discretion to set a task order for requirements that othewise meet the rule-of-two aside, or not. Despite written justifications not being required, some CO may at some point be asked to testify to the basis for his or her discretionary decision. There is the conundrum.

If case law were to at some later point render the discretion to set aside a task order for SB as mandatory through constant judicial finding that arbitrary and capricious bases were used for decisions to not set a requirement aside, it will effectively nullify specific law that presumably expresses the will of Congress. There is another conundrum.

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Sorry to raise an old topic that was debated at length 3 years ago, but a recent procurement seems to raise this issue again, perhaps with a twist. Here are the facts:

[US agency] awarded Indefinite Quantity Contracts (IQCs) to multiple awardees, two of which are small businesses. The IQCs contain “Fair Opportunity” provisions, including a clause on exceptions to Fair Opportunity, which includes a small business set aside exception (excerpted and set forth below). After a competitive bidding process, US agency awarded a task order to a big business.

My Qs:

1. As I understand Delex, the Rule of Two applies to task and delivery orders even when an IDIQ contains a “Fair Opportunity” clause. This IQC (awarded post-Delex) allows for small business set aside (see below), but this particular task order was not set aside for small businesses, even though there are two small business IQC holders. Why not? Does the IQC language (below) exempt the CO from the rule of two?

2. If the TO should be set aside under rule of two, but the task order is less than $10 million, where/how can a small business protest? To get to GAO, the TO must be more than $10 million. COFC has no jurisdiction to hear task order protests. IQC permits awardees to complain to the IQC ombudsman, which has little authority.

3. Here is the posible twist: would it be possible to bring a breach of contract claim similar to DTI, and allege that IQC incorporates the Rule of Two by implication and that US agency breached the IQC by failing to set aside under Rule of Two?

Here is the excerpted language:

5.1.2 Fair Opportunity Exceptions

All Contractors will be given a fair opportunity to be considered for task orders over $3,000, unless the TOCO determines that one of the following statutory exceptions applies:

. . .

“e. Small business set aside. In accordance with the authority granted in the Appropriations Act used to fund the award of this basic contract, [uS agency] may directly place task orders with any category of small or small disadvantaged business that received a prime contract award from the same solicitation that resulted in the award of this contract.

(i) Multiple small business awards. All small business contractors are required to have up to date corporate capability statements. The contractor may opt to: a) keep an updated capability statement on their website, and provide an email notification of the update and website link to their IQC COTR, or B ) provide the capability statement directly to the IQC COTR if a website is not available. The IQC COTR will be responsible for reviewing the corporate capability information. Corporate capability at a minimum should include: past performance reports (NIH or PPIRS reports), past experience (if not evaluated through NIH or PPIRS) and expertise of employees.

The following is the process for using the small business exception:

(a) If required, the TOCOTR submits the scope of work to the IQC COTR for review to determine if their requirement falls within the IQC scope of work.

( B ) The IQC COTR provides corporate capability information for the small businesses to the TOCOTR.

© The TOCOTR reviews the corporate capability information and provide a brief, written recommendation (not a justification) to the TOCO on which contractor he/she recommends for an award. No need to go to the next steps below.

(d) If corporate capability is equal, the TOCOTR will need to follow the established RFTOP procedures below regardless of dollar value.“

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