Jump to content
The Wifcon Forums and Blogs

Sign in to follow this  
j_dude77

MATOC Small Business Set-Asides

Recommended Posts

This question is just for knowledge. I want to establish a multiple award IDIQ. I want to set it aside so that only 8(a), HUBZone, SDVOSB and EDWOSB can compete for awards. Is there anything preventing me from establishing this type of set-aside?

I had someone ask me if this is possible, and I believe it is. I could not find anything in the regulations that says you cannot. 

Share this post


Link to post
Share on other sites

j_dude77, 

FAR 6.101( a ) states:

Quote

10 U.S.C. 2304 and 41 U.S.C. 3301 require, with certain limited exceptions (see Subparts 6.2 and 6.3), that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.

What you are proposing is not full and open competition. Therefore, you must meet an exception. What exception would you cite?

Share this post


Link to post
Share on other sites

I agree with Vern as to the general exception one would cite for setting the acquisition aside for one or multiple socioeconomic categories; however, when setting up the 8(a) and EDWOSB set-asides be sure to comply with their more unique set-aside requirements.

I'd talk to your SBA representative regarding getting multiple 8(a)s onto the IDIQ contracts.

As for EDWOSB, see 19.1505...the more unique requirement is that the NAICS code(s) for your IDIQ must be underrepresented (for more information go to: https://www.sba.gov/contracting/government-contracting-programs/women-owned-small-businesses/what-you-need-know-if-you-are-federal-contracting-officer).

Share this post


Link to post
Share on other sites

Vern,

No one said I could not. I was just asked if it was possible. 

Matthew, I am aware of the EDWOSB NAICS requirements. 

I appreciate everyone's input.

 

Share this post


Link to post
Share on other sites

Another opinion for j_dude77's consideration...

You want to let 8(a), HUBZone, SDVOSB and EDWOSB firms compete, but not all small businesses?  Not regular SBs, not WOSBs?  If you did a simple set-aside for all small businesses, you would be covered by FAR 6.203.  But there is no authority for a mix-and-match approach.  Your authority for a set-aside has to be one of the options in FAR 6.203 (all small businesses), 6.204 (8(a)), 6.205 (HUBZone), 6.206 (service-disabled veteran-owned), 6.207 (EDWOSB or WOSB), or 6.208 (local firms during a disaster or emergency).  Take you pick.

11 hours ago, Vern Edwards said:

FAR 6.203. Set it aside for specific categories of small business. Who says you can't?

I generally agree with reading things as broadly as possible. But here, as Don already pointed out, we have regulation that requires full and open competition unless a limited exception applies (FAR 6.101(a)).  All of the above (FAR 6.203 (all small businesses), 6.204 (8(a)), 6.205 (HUBZone), 6.206 (service-disabled veteran-owned), 6.207 (EDWOSB or WOSB), or 6.208 (local firms during a disaster or emergency)) are authorized exceptions.  A mix-and-match approach is not one of the approved limited exceptions.

Best wishes.

Share this post


Link to post
Share on other sites

I suspect further discussion should be deferred to another thread noting the WIFCON basic rule "to be easy" on Beginner original posts.  I see the tip of the iceberg as to where this thread may get confusing..

I say this noting that while I get what ji and Don are trying to say I wonder how their positions balance with 13 CFR 125.2(e)(3) & (4)?

Conclusion -  my suggestion to the OP is to discuss their idea with the small business contact within his or her agency.

Share this post


Link to post
Share on other sites

Here is FAR 6.203:

Quote

6.203 Set-asides for small business concerns.

(a) To fulfill the statutory requirements relating to small business concerns, contracting officers may set aside solicitations to allow only such business concerns to compete. This includes contract actions conducted under the Small Business Innovation Research Program established under Pub. L. 97-219.

(b) No separate justification or determination and findings is required under this part to set aside a contract action for small business concerns.

(c) subpart 19.5 prescribes policies and procedures that shall be followed with respect to set-asides.

Now, where does that say that you must include all categories of small businesses in a set-aside? Where does it say that you cannot include only certain categories of small businesses? How can it be interpreted to prevent the OP from doing what he or she wants to do? I say that FAR 6.203 says nothing that prevents a set-aside that includes only certain categories of small businesses.

Now, what does FAR Subpart 19.5 say? Any prohibition there? 

Share this post


Link to post
Share on other sites

ji, there is a nuance to competitive small business set asides that you have missed.  Under CICA, such competition is considered full and open competition.  Thus, the so called "exceptions" you have identified are not exceptions to full and open competition, but are a form of full and open competition.

Share this post


Link to post
Share on other sites
2 minutes ago, Retreadfed said:

ji, there is a nuance to competitive small business set asides that you have missed.  Under CICA, such competition is considered full and open competition.  Thus, the so called "exceptions" you have identified are not exceptions to full and open competition, but are a form of full and open competition.

From FAR 6.101(a): 

16 hours ago, Don Mansfield said:

with certain limited exceptions (see Subparts 6.2 and 6.3)

 

Share this post


Link to post
Share on other sites

Don, see, FAR 6.200 (This subpart prescribes policy and procedures for providing for full and open competition after excluding one or more sources.)

Share this post


Link to post
Share on other sites
17 hours ago, j_dude77 said:

I want to establish a multiple award IDIQ. I want to set it aside so that only 8(a), HUBZone, SDVOSB and EDWOSB can compete for awards. Is there anything preventing me from establishing this type of set-aside?

Does anybody see anything in FAR Part 6 or Subpart 19.5 or in 13 CFR that prevents the award of such a multiple award IDIQ. I haven't found anything.

The issue is not whether such an acquisition would be a good idea. The issue is whether it would violate statute, regulation, or policy. In the absence of an express restriction, I don't see any reason to go out of the way to interpret FAR 6.203 as restrictively as possible. If you can restrict set-asides to individual special categories, why not to a set of special categories? I presume that the CO will be able to document the file as to why each of the individual categories were included in the set. I don't see why reaching agency set-aside goals would not be an adequate reason.

Share this post


Link to post
Share on other sites
10 minutes ago, Retreadfed said:

Don, see, FAR 6.200 (This subpart prescribes policy and procedures for providing for full and open competition after excluding one or more sources.)

So what? FAR 6.101(a) clearly refers to subparts 6.2 & 6.3 for exceptions to the requirement for full and open competition. There's nothing wrong with ji referring to the procedures in subpart 6.2 as exceptions to the requirement for full and open competition.

A set-aside would not meet the definition of "full and open competition" at FAR 2.101, so I see no basis in your claim that a set-aside "is considered" full and open competition.

Share this post


Link to post
Share on other sites
15 minutes ago, Vern Edwards said:

Does anybody see anything in FAR Part 6 or Subpart 19.5 or in 13 CFR that prevents the award of such a multiple award IDIQ. I haven't found anything. In the absence of an express restriction, I don't see any reason to go out of the way to interpret FAR 6.203 as restrictively as possible.

Ok, what provisions and clauses are you going to use in your solicitation?

Share this post


Link to post
Share on other sites
2 hours ago, Vern Edwards said:

Here is FAR 6.203:

Now, where does that say that you must include all categories of small businesses in a set-aside? Where does it say that you cannot include only certain categories of small businesses? How can it be interpreted to prevent the OP from doing what he or she wants to do? I say that FAR 6.203 says nothing that prevents a set-aside that includes only certain categories of small businesses.

Now, what does FAR Subpart 19.5 say? Any prohibition there? 

FAR 6.203 permits the limitation of competition to the set of small business concerns. According to your interpretation of FAR 6.203, we can limit competition to the set of small business concerns and defined subsets. If that's the way to interpret this section, can I limit competition to small business concerns located in California? 

Share this post


Link to post
Share on other sites
29 minutes ago, Don Mansfield said:

Ok, what provisions and clauses are you going to use in your solicitation?

You want a list of all the solicitation provisions and clauses? Get lost. Now, if you've got something to say on the matter, say it.

Share this post


Link to post
Share on other sites

No, the ones you will use to notify offerors of the set-aside. For example:

52.219-3 Notice of HUBZone Set-Aside or Sole Source Award.

52.219-6 Notice of Total Small Business Set-Aside.

52.219-7 Notice of Partial Small Business Set-Aside.

52.219-18 Notification of Competition Limited to Eligible 8(a) Concerns.

52.219-27 Notice of Service-Disabled Veteran-Owned Small Business Set-Aside.

52.219-29 Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns.

Share this post


Link to post
Share on other sites
31 minutes ago, Don Mansfield said:

FAR 6.203 permits the limitation of competition to the set of small business concerns. According to your interpretation of FAR 6.203, we can limit competition to the set of small business concerns and defined subsets. If that's the way to interpret this section, can I limit competition to small business concerns located in California?

FAR 6.203(c) refers the reader to the policies and procedures in FAR Subpart 19.5. FAR 19.000, Scope of Part, paragraph (a)(3) says that part 19 covers:

Quote

Setting acquisitions aside for exclusive competitive participation by small business, 8(a) participants, HUBZone small business concerns, service-disabled veteran-owned small business concerns, and economically disadvantaged women-owned small business (EDWOSB) concerns and women-owned small business (WOSB) concerns eligible under the WOSB Program[.]

FAR 19.502-4 tells contracting officers that they may, at their discretion, set aside one or more contract awards for "any" of the small business concerns identified in 19.000(a)(3).

I would use only the subsets of small business expressly mentioned in FAR and in 13 CFR. Nothing in FAR or in 13 CFR identifies classes of small businesses located in particular cities, counties, states, or geographical regions (except HUBZones). They establish a class of 8(a) small businesses, but not 8(a) small businesses located in Los Angeles. So I wouldn't interpret FAR 6.203 that freely. Moreover, on practical grounds, I think any geographical restrictions would be very difficult to explain, justify, and defend in the event of a protest. I don't know of any small business goals based on geography.

 

 

Share this post


Link to post
Share on other sites
15 minutes ago, Don Mansfield said:

No, the ones you will use to notify offerors of the set-aside. For example:

52.219-3 Notice of HUBZone Set-Aside or Sole Source Award.

52.219-6 Notice of Total Small Business Set-Aside.

52.219-7 Notice of Partial Small Business Set-Aside.

52.219-18 Notification of Competition Limited to Eligible 8(a) Concerns.

52.219-27 Notice of Service-Disabled Veteran-Owned Small Business Set-Aside.

52.219-29 Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns.

Why not use them all, with a supplemental provision to explain?

Share this post


Link to post
Share on other sites

Don asked, can I limit competition to small business concerns located in California?  Yes, if the nature of the acquisition requires a specific geographic location.  For example, if the requirement is for catering of meals to fire fighters combating forest and wild fires in California, the agency may be able to justify a small business set aside restricted to small businesses that have a business presence in California.

Share this post


Link to post
Share on other sites

If by "requirement" you mean some operational requirement, such as a nearby operating facility or a state operator's license, then the proper way to do that is to establish a special responsibility standard that an offeror must meet by the time of award. I would not try to set the procurement aside for small business concerns located in the state. That would almost certainly be unduly restrictive.

Share this post


Link to post
Share on other sites

19.203 -- Relationship Among Small Business Programs.

(a) There is no order of precedence among the 8(a) Program (subpart 19.8), HUBZone Program (subpart 19.13), Service-Disabled Veteran-Owned Small Business (SDVOSB) Procurement Program (subpart 19.14), or the Women-Owned Small Business (WOSB) Program (subpart 19.15).

(b) At or below the simplified acquisition threshold. For acquisitions of supplies or services that have an anticipated dollar value exceeding $3,500 ($20,000 for acquisitions as described in 13.201(g)(1)), but not exceeding $150,000 ($750,000 for acquisitions described in paragraph (1)(i) of the simplified acquisition threshold definition at 2.101), the requirement at 19.502-2(a) to exclusively reserve acquisitions for small business concerns does not preclude the contracting officer from awarding a contract to a small business under the 8(a) Program, HUBZone Program, SDVOSB Program, or WOSB Program.

(c) Above the simplified acquisition threshold. For acquisitions of supplies or services that have an anticipated dollar value exceeding the simplified acquisition threshold definition at 2.101, the contracting officer shall first consider an acquisition for the small business socioeconomic contracting programs (i.e., 8(a), HUBZone, SDVOSB, or WOSB programs) before considering a small business set-aside (see 19.502-2(b)). However, if a requirement has been accepted by the SBA under the 8(a) Program, it must remain in the 8(a) Program unless SBA agrees to its release in accordance with 13 CFR parts 124, 125 and 126.

(d) In determining which socioeconomic program to use for an acquisition, the contracting officer should consider, at a minimum—

(1) Results of market research that was done to determine if there are socioeconomic firms capable of satisfying the agency’s requirement; and

(2) Agency progress in fulfilling its small business goals.

(e) Small business set-asides have priority over acquisitions using full and open competition. See requirements for establishing a small business set-aside at subpart 19.5.

Share this post


Link to post
Share on other sites

I don't believe that FAR 6.203 provides the CO authority to set aside an acquisition for a subset of small business concerns. FAR 6.203( c ) states that I must follow FAR subpart 19.5 if I'm going to conduct a small business set-aside. FAR 19.508( c ) requires the CO to insert FAR 52.219-6 in solicitations that are totally set aside for small business. That clause defines "small business concerns" to include the entire set of small business concerns and solicits offers from small business concerns without qualification. Changing the definition in the clause to exclude certain classes of small business or adding qualifications to the type of small business concerns being solicited would be a deviation as defined at FAR 1.401 (c).

While FAR 6.203 may be open to interpretation, I don't think the implementing clause would be consistent with Vern's interpretation.

Share this post


Link to post
Share on other sites
7 hours ago, Retreadfed said:

ji, there is a nuance to competitive small business set asides that you have missed.  Under CICA, such competition is considered full and open competition.  Thus, the so called "exceptions" you have identified are not exceptions to full and open competition, but are a form of full and open competition.

Wrong.

A set-aside is not Full and Open Competition (FAR Subpart 6.1).

Rather, a set-aside is Full and Open Competition After Exclusion of Sources (FAR Subpart 6.2).

Don already refuted your statement that set-asides are not exceptions, so I won't re-make that argument.

5 hours ago, Vern Edwards said:

FAR 19.502-4 tells contracting officers that they may, at their discretion, set aside one or more contract awards for "any" of the small business concerns identified in 19.000(a)(3).

I agree.  That's why I said take your pick.  Choose one, "any" one.

I wouldn't support a mix-and-match approach.

But if j_dude77's chain is comfortable with a mix-and-match approach, more power to him.  My only request would be to let us know if it works.

Share this post


Link to post
Share on other sites

I have never read such weak posts in opposition to something I've written as:

"While FAR 6.203 may be open to interpretation, I don't think the implementing clause would be consistent with Vern's interpretation."

and

"Choose one, 'any' one. I wouldn't support a mix-and-match approach."

No wonder so many people think that contracting folk are obstacles to innovation. So much for "Contracting officers should take the lead..." FAR 1.102-4(e).

I see no reason why j_dude shouldn't proceed with what he wants to do.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this  

×