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Question:  When setting aside an order for SB under FAR 8.405-5 can a large business schedule contractor who submitted a proposal be considered for award?

Since the preference programs of FAR part 19 are not mandatory under 8.405-5 and fair opportunity applies to FSS contracting I have not found any prohibition from considering an otherwise responsive and responsible contractor for award. 

Since I cannot find any reason not to consider the large business contractor and should they be found the "best value" I would award the order to them but would not take the SB credit.

Comments are appreciated.

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Did you do a set-aside under FAR 8.405-5?

YES or NO

Once you answer that question, then the answer to your question will follow naturally.  Your "logic" as you described in the original posting is irrelevant.

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If you did a set-aside under FAR 8.405-5, then you cannot consider a large business quotation.

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Yes I understand that we cannot consider a large business when setting-aside a procurement for small business.  But for FAR part 8 procurements where FAR part 8.405-5 states "preference programs of part 19 are not mandatory", we are not sure if I can reject the large businesses proposal from consideration.  I have been looking for a FAR reference that will allow us to reject his proposal but have not found one.

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Buddy, two questions:  what FAR provision do you use to support your statement that the fair opportunity requirements from FAR 16.5 apply to orders under FSS contracts?  Second, where does FAR 8.405-5(a)(2)(ii) play in your analysis?

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I never stated that FAR 16.5 applied only that fair opportunity applies to FSS orders. 

So after rereading FAR 8.405-5(a)(2)(ii) the statement that "specific small business program eligibility requirements identified in part 19 apply".  Should I rely on those "specific program eligibility requirements to mean we can reject the large business proposal from consideration because the contractor is a large business?

Just a bit confusing since 8.405-5 (a) says preference programs of part 19 are not mandatory and part 8.405-5(a)(2)(ii) speaks of specific eligibility requirements that do apply under part 19. 

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buddyandme,

You are correct that the preference programs of FAR part 19 are not mandatory--they are discretionary. If a CO exercises their discretion to set aside an order for small business, then the competition is limited to small business concerns. If the CO accepts offers from other than small business concerns, then they would be violating the terms of the solicitation.

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Buddy, my earlier question was focused on fair opportunity.  The only place in the FAR Part 8 that fair opportunity is mentioned is in FAR 8.405-3 which deals with issuing orders under BPAs.  I see no requirement anywhere that FSS contractors need to be afforded a fair opportunity to be considered when an agency is issuing an order against such a contract.

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You don't need a FAR citation to reject the large business offer.  Just do it.  You made the acquisition a set-aside, and that's all the authority you need.  

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Thanks and I appreciate the advice, its just that I always want to use a FAR citation when sending notices to contractors we are not considering.

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As the OP's question seems resolved, may I take a tangent.....?

Does "rule of two" apply to FSS SB Set-Asides?
Part 8 parrots several passages from 19, but skips this one.  Does it apply?

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illzoni - No, the "rule of two", meaning that if two or more responsible small businesses can complete the requirement then you must set it aside, does not apply to GSA MAS (aka FSS) purchases. Setting an acquisition aside is discretionary. 

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On 6/14/2016 at 4:06 PM, buddyandme said:

Thanks and I appreciate the advice, its just that I always want to use a FAR citation when sending notices to contractors we are not considering.

buddyandme,

PepeTheFrog does not recommend you send this to the losers, but FYI: The FAR citation you want comes from a statute. See 15 U.S.C. 644(r).

That statute was implemented at FAR 8.405-5(a) for GSA Schedule orders. It was implemented at FAR 16.505(b)(2)(i)(F) for orders under multiple-award, IDIQ contracts. Notice both FAR subsections have similar language and refer to 15 U.S.C. 644(r).

It's unlikely this will need to be explained to the losers, but again, FYI:

On 6/14/2016 at 0:13 PM, buddyandme said:

Just a bit confusing since 8.405-5 (a) says preference programs of part 19 are not mandatory and part 8.405-5(a)(2)(ii) speaks of specific eligibility requirements that do apply under part 19. 

FAR 8.405-5(a)(2)(ii) means that if you choose to conduct a set-aside, you discriminate using the eligibility requirements of FAR Part 19. It's effectively saying you can't just make up your own small business/socioeconomic categories and eligibility requirements-- use those from FAR Part 19.

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" Setting an acquisition aside is discretionary"  True but tell that to my small business office (haha). 

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Boof -- You're right.  Likely, your small business office staff hasn't read the FAR, or they simply don't care what the FAR says (you're not alone in this, by the way).  But if they did read, they would understand that they only play under FAR Part 19 -- they don't play in schedule orders under FAR Subpart 8.4 (see 8.404( a ) and 8.405-5( a )( 1 )) and they don't play in fair opportunity considerations under FAR 16.505 (see 16.505( b )( 2 )(( i )( F )) -- in both of those cases,  it is expressly the contracting officer who has the discretion and decision-making authority.  But contrary to the intent and text of the FAR, I suppose that your own agency rules (mine, too) require you to coordinate these acquisitions with your small business office -- and too often, "coordinate" means "to yield decsion-making authority to."

I wish we could read the FAR.  I wish we could follow the FAR.  Our own agency regulations and procedures are stabbing us in the back.

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