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I have a services requirement for a lab study that is under tight time constraints. The lab study requires collection of soil samples prior to winter conditions. Before soil samples can be collected, there is various work that must be conducted in sequence. If we can set aside exclusively for small business we would prefer to do so, however, we anticipate it will take vendors 20-30 days to prepare a quote and we have not yet located any small business sources. We do not have enough time for a sources sought notice followed by a 30 day solicitation. We only have time for the 30 day solicitation.

My thought is to issue two solicitations for the same requirement, one set aside for small business and the other full and open. In the FBO posting I would disclose that it is being solicited under both and I would indicate that if we receive adequate competition to justify the small business set-aside, the full and open would be cancelled. If we don't have enough small business sources, any offers from small business would be considered in response to the full and open solicitation.

I've read through FAR parts 5,6,7 and 10 but haven't found anything regarding multiple solicitations, specifically whether it is permitted or not. My alternative is to dissolve the small business set-aside under 6.302-2 Unusual and Compelling Urgency but I would like to keep a set-aside on the table if possible.

Pertinent information: Commercial, contract value with options anticipated to be over the SAT, would be issued as a RFQ, under $250K. Requirement cannot be delayed due to EPA requirements. Any quick answers would be greatly appreciated as I only have a couple days to make the decision. My supervisor says he would back the decision unless he is able to find verbiage that forbids it.

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Just do what FAR 19.502-2( b ) tells you to do.  

For reasons you explained above, it seems that you do not have a reasonable expectation of obtaining offers from at least two responsible small businesses, right?  Then stop right there -- stop agonizing -- just do a single unrestricted acquisition.  Just do it!  

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Another issue with going unrestricted is our small business competition advocate has to sign off when we go full and open. They typically require a 30 day sources sought notice before they will green light full and open. Can you think of a reason the two solicitations violates any regs? Also, needed to mention I'm non-DOD so we're really just talking FAR rules. 

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Guest Vern Edwards

Why not issue an RFP based on a cascading set-aside scheme? Say in the RFP that if you get at least two small business offers you will award to a small business if you can get a fair and reasonable price, otherwise you will bypass the set-aside and award without restriction.

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Well, you are beholden to your own agency rules, however unreasonable. Your agency small business competition advocate is supposed to be a help to the agency meeting its mission.

I recommend a cascading approach in a single solicitation -- this is an approach where a single solicitation says first consideration will be given to small business offers, and other offers will only be considered if an award is not made in the first consideration.  The GAO seems to have allowed this approach.  You can do an internet search for cascading small business solicitation or something like that, and you'll find many hits.

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Perfect! That's exactly what I will do. I hadn't heard of such an approach before. Do I get points for partially inventing it in my own world? Thanks to you both for your quick responses on this!

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Doesn't sound like it applies to your requirement, but for reference regarding cascading. 13 CFR 125.2(e)(7)

(7) Tiered evaluation of offers, or cascading. An agency cannot create a tiered evaluation of offers or “cascade” unless it has specific statutory authority to do so. This is a procedure used in negotiated acquisitions when the contracting officer establishes a tiered or cascading order of precedence for evaluating offers that is specified in the solicitation, which states that if no award can be made at the first tier, it will evaluate offers at the next lower tier, until award can be made. For example, unless the agency has specific statutory authority to do so, an agency is not permitted to state an intention to award one contract to an 8(a) BD Participant and one to a HUBZone SBC, but only if no awards are made to 8(a) BD Participants.

 

http://www.ecfr.gov/cgi-bin/text-idx?SID=4bff17cb475a159d9ccdb8ae8ecd395d&node=se13.1.125_12&rgn=div8

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I think the seminal GAO bid protest decision on this topic is B-299054, Continental Staffing Inc., Jan. 29, 2007.  http://www.gao.gov/decisions/bidpro/299054.htm

I think if 13 CFR 125.2( e )( 7 ) applies to the original poster's agency, it only applies to multiple-award contracts.  I don't like it when the SBA makes "the contracting officer must..." statements in its 13 CFR -- we pay attention to the FAR at 48 CFR -- it is sloppy and confusing for the SBA to levy demands on contracting officers in 13 CFR after it has failed to convince the FAR councils to include the demand in the FAR.

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Guest Vern Edwards

The SBA gets to promulgate rules to implement the Small Business Act as they interpret it. The FAR councils do no get to promulgate such rules unless given an express Congressional mandate, just like they do not get to promulgate rules to implement labor laws and environmental laws, and so forth. All the FAR councils can do is promulgate rules about how COs will comply with the rules that the SBA and other agencies are empowered to promulgate. See FAR 1.602-1(b):

Quote

No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.

Note that FAR says "all requirements of... regulations," not just all requirements of FAR.

COs must understand that they need to know about and comply with regulations other than just the FAR. As for it being confusing, I agree that it often is, but that's why we have COs--to figure it out.

 

 

 

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20 minutes ago, ji20874 said:

I don't like it when the SBA makes "the contracting officer must..." statements in its 13 CFR -- we pay attention to the FAR at 48 CFR -- it is sloppy and confusing for the SBA to levy demands on contracting officers in 13 CFR after it has failed to convince the FAR councils to include the demand in the FAR.

Yes, it is. However, both the GAO and the COFC have deferred to the SBA regulations when they conflict with the FAR. See C&G Excavating,Inc.v.U.S., 32 Fed.Cl.231 (1994):

Quote

With regard to the direct confliict between 13 C.F.R § 125.5(e) and FAR § 19.602–2(a)(2), the court finds that the restrictive language in the FAR concerning the scope of SBA’s site investigation cannot be interpreted to limit the scope of SBA’s general review authority. The clear intendment of 13 C.F.R. §  125.5(e) is that the SBA may perform a site investigation examining all elements of responsibility. This interpretation is consistent with the [Small Business Act] and shall be given deference.

...and Adams Industrial Services, Inc., Comp. Gen. Dec. B-280186, 98-2 CPD ¶ 56:

Quote

While FAR Sec. 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA’s regulations, which we view as controlling in this area, provide that “[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest.”

Having said that, the GAO is currently deciding a protest of an overseas Air Force solicitation that was not set aside for small business. The protester says the SBA regulations require a set-aside. The Air Force, citing FAR 19.000(b), says FAR part 19 does not apply outside the U.S. and a set-aside is not required. The Air Force argues that, pursuant to 41 U.S.C. 1121(c)(3), the SBA cannot issue procurement regulations that contradict the FAR's small business acquisition provisions. 41 U.S.C. 1121(c)(3) states:

Quote

 

Application of other laws.—

The authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement is subject to the authority conferred in this section and sections 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title.
 

 

 

 

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Don,

You make my point very well -- a contracting officer shouldn't be trapped between the FAR 48 CFR and the SBA regulations 13 CFR.  In a matter where the SBA's opinion is dispositive, then the FAR councils should write the FAR text in a ministerial manner to faithfully implement the SBA opinion.  In a matter where the FAR councils' opinion is dispositive, then SBA should defer.  Where there is uncertainty, let them resolve it between themselves or let OMB play as the referee.  But one executive branch agency should not knowingly write regulations that conflict with another executive branch agency's regulations.

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Guest Vern Edwards
42 minutes ago, ji20874 said:

In a matter where the SBA's opinion is dispositive, then the FAR councils should write the FAR text in a ministerial manner to faithfully implement the SBA opinion.

I couldn't agree less. A bureaucratic prescription. SBA should write the rules to implement the statutes that Congress has assigned it administer, and the FAR councils should restrict their writing to prescribing procedures for the COs to use in order to comply with the SBA's rules.

In several titles of the CFR, agencies other than DOD, NASA, and GSA mandate that COs "shall" or "will" do this or that. See, e.g., in addition to Title 13, Titles 29, 40, 49. The FAR councils do not have the expertise to write implementing regulations for the vast array of  laws that apply to contracting. Moreover, some of those rules affect powerful political constituencies with which OFPP and the FAR councils are not equipped to deal. It's a question whether the councils have the expertise to write contracting rules.

The way to avoid trapping COs between Title 48 and other titles is for FAR councils to stop duplicating other regulations and not try to usurp authority. Instead, they should insert hyperlinks in FAR to the titles written by the regulatory agencies to which Congress has assigned administrative responsibility. For instance, there should be no Part 22, Application of Labor Laws to Government Contracts, except to instruct COs about the internal procedures they must use to comply with the DoL's rules. Throughout Part 22 the councils refer the reader to Title 29. Why not just include hyperlinks and eliminate the duplication that can lead to conflict and confusion? Do you really think that the FAR councils are prepared to deal with the labor constituencies in this country? Were any of you around in the late 1970s when OFPP tried to overrule DoL on the matter of applicability of the Service Contract Act to computer technicians? The OFPP Administrator, Les Fettig, got stomped.

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I think ji's point was that the FAR councils shouldn't be exercising personal judgment or discretion when implementing SBA rules in cases where the "SBA's opinion is dispositive." I agree with that. As far as the method used to implement other agency regulations, I think the hyperlink idea is good. I don't see any benefit to the current method of rewriting another agency's regulations in the FAR a year or so after they were codified in the CFR. A clear case of simple sabotage.

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Guest Vern Edwards

Don:

ji said:

1 hour ago, ji20874 said:

In a matter where the SBA's opinion is dispositive, then the FAR councils should write the FAR text in a ministerial manner to faithfully implement the SBA opinion. 

He wants the councils to write rule based on the administrative agencies' wishes. But the FAR councils would have to exercise personal judgment every time they choose a word and write a sentence in a rule, unless the administering agency writes the rule for them, word for word.

Would it be nice if all the rules applicable to acquisition were in one place? You bet, but that's not how our government works. It never has. It never will.

To me, that's part of what makes the work of contracting officers so demanding. But I'd rather it be demanding for that reason than because it's hard to figure out the automated contract writing systems.

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Vern,

ji probably hadn't considered your hyperlink idea when he wrote that. He's thinking about it now. I predict that he will like it, too.

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Guest Vern Edwards

I proposed that idea a long time ago. Never got a response. And yet they say they want critical thinking and innovation.

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2 hours ago, Vern Edwards said:

The way to avoid trapping COs between Title 48 and other titles is for FAR councils to stop duplicating other regulations and not try to usurp authority. Instead, they should insert hyperlinks in FAR to the titles written by the regulatory agencies to which Congress has assigned administrative responsibility. .

That approach would be fine with me.

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Guest Vern Edwards

To understand why the FAR councils could not handle the task of writing rules to implement statutes and assigned to other agencies, consider Executive Order 13658, establishing a minimum wage for contractors. The EO, issued February 20, 2014, was four pages long. Section 4 directed the Secretary of Labor to issue implementing regulations by October 1, 2014, and gave the FAR Council (capital "C") 60 days after the publication of the DoL's final rule to get regulations into the FAR providing for the use of a contract clause in contracts to which the EO is applicable.

DoL issued a 54-page proposed rule on June 17, 2014. It then issued a 101-page final rule on October 7. DoL wrote the 1,736 word contract clause to be used to implement the new regulations.

The FAR councils published a 10-page interim rule based on the EO and the DoL's final rule on December 15, 2014. It published a four-page final rule on December 4, 2015.

There is no way that the FAR councils could have produced a proposed and final rule about such a complex and politically sensitive matter and complied with the Paperwork Reduction Act, etc., in less than a year, as was done by DoL. The councils lacked the expertise to do the background work. it took them a year just to finalize their own short interim rule, after most of the work had been done by DoL.

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Bob:  If you happen to work for DoD, use of "tiered evaluations" (same thing as cascading evaluations) was covered in the FY06 Defense Authorization Act and shows up in the DFARS under 210.001(a)(i)(B).

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Samples of Agency statutory authority authorizing tiered set-asides are DFARS 215.203-70 and DLAD 19.590.  

Little ranting: FAR Subpart 1.1 is about working together to make the system work more efficiently.  During the last five years I've asked the small business specialists of several agencies if it was possible to have several set-asides in one solicitation and the answer was always no, period, end of discussion. I am now working with my agency's regulatory and small business teams to add it to our FAR supplement.  Thanks to the WIFCON team, specially Vern Edwards, for bringing the concept of tiered set-asides up in the discussion!

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Guest PepeTheFrog
On 6/22/2016 at 10:22 AM, Vern Edwards said:

RFP based on a cascading set-aside scheme? Say in the RFP that if you get at least two small business offers you will award to a small business if you can get a fair and reasonable price, otherwise you will bypass the set-aside

 

20 hours ago, LindaK said:

Bob:  If you happen to work for DoD, use of "tiered evaluations" (same thing as cascading evaluations) was covered in the FY06 Defense Authorization Act and shows up in the DFARS under 210.001(a)(i)(B).

 

On 6/21/2016 at 8:18 PM, BobZeglin said:

I would like to keep a set-aside on the table if possible.

See also DFARS 215.203-70, Requests for proposals - tiered evaluations of offers; DFARS 213.106-1-70, Soliciting competition - tiered evaluation of offers; and DFARS 202.101:

"“Tiered evaluation of offers,” also known as “cascading evaluation of offers,” means a procedure used in negotiated acquisitions, when market research is inconclusive for justifying limiting competition to small business concerns, whereby the contracting officer—

(1) Solicits and receives offers from both small and other than small business concerns;

(2) Establishes a tiered or cascading order of precedence for evaluating offers that is specified in the solicitation; and

(3) If no award can be made at the first tier, evaluates offers at the next lower tier, until award can be made."

 

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