Jump to content
The Wifcon Forums and Blogs
Sign in to follow this  
j_dude77

MATOC Small Business Set-Asides

Recommended Posts

1 hour ago, ji20874 said:

But restricting consideration for a task order to only one contract awardee, such as the single HUBZone contractor, requires an exception for fair opportunity -- does the exception in FAR 16.505(b)(2)(i)(F) allow for sole source awards?  Or, since that exception is for a set-aside, does it require having more than one eligible contractor eligible to participate?

Part 19 expressly provides for sole source awards under each of the four small business programs. I am going to state in the contract that the government reserves the right to issue orders on a sole source basis and describe criteria and procedures for doing so. Any prospective offeror can challenge that term of the model contract prior to the closing date for receipt of proposals for the MATOC. After award, challenges would be limited to orders valued in excess of $10 million. I'm not certain how to interpret FAR 16.505(b)(2)(i)(F), but it's not clear to me that my plan would be inconsistent with it.

In short, I'm not going to worry about it. When regulations are clear and explicit, on the basis of the their text or binding case law, I'll obey them to the letter. When regulations are vague or ambiguous, I'll argue for a reasonable interpretation that suits my goals. Otherwise, I'll leave the worrying to those who torture vague and ambiguous regulations in search of grounds to object to anything new.

Improvise. Adapt. Overcome.

Share this post


Link to post
Share on other sites

The authority for setting aside orders only applies to multiple award contracts that were awarded under full and open competition. 13 CFR 125.2(e)(6)(i):

Quote

Notwithstanding the fair opportunity requirements set forth in 10 U.S.C. 2304c and 41 U.S.C. 253j, the contracting officer has the authority to set-aside orders against Multiple Award Contracts that were competed on a full and open basis.

Wasn't much torture involved. I just looked up the reg and it confessed. 

Share this post


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

I'm not certain how to interpret FAR 16.505(b)(2)(i)(F), but it's not clear to me that my plan would be inconsistent with it.

Vern, I can help you with understanding FAR 16.505(b)(2)(i)(F), if you are interested.  

FAR 16.505(b)(2)(i)(F) provides an exception to fair opportunity for task orders under multiple-award IDIQ contracts.  It directly says, in pertinent part, "In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3)."

By its own words, it allows set-asides.  It does not provide for sole-source awards.  The GSA has offered an understanding to its employees as follows:

Section 1331 of the Small Business Jobs Act . . . only authorizes set-asides of orders under multiple award contracts, not sole source.

(https://www.gsa.gov/portal/content/113371#1)

Of course, this GSA interpretation is not dispositive -- but it is an indicator.

A proposed rule was released in December 2016, also based on Sec. 1331 (the Jobs Act).  It distinguishes between set-asides (always competitive) and sole source for task order awards.  It continues to allow competitive set-asides for task order awards for all the different categories, but changes the guidelines for sole source awards under 8(a), as follows:   "The proposed rule clarifies that under the 8(a) program, a contracting officer may issue a sole-source task or delivery order as long as the value of the order is equal to or less than the thresholds at FAR 19.805-1(a)(2), the contract was set aside for exclusive competition among 8(a) participants, and the agency goes through offer and acceptance for the order."  So there may be an allowance for sole-source 8(a) task orders under multiple-award IDIQ contracts, but there isn't for the other categories.

We see further suggestion that a set-aside differs sole-source in the titles of some FAR sections:

19.1305 HUBZone set-aside procedures.
19.1306 HUBZone sole source awards.

19.1405 Service-disabled veteran-owned small business set-aside procedures.
19.1406 Sole source awards to service-disabled veteran-owned small business concerns.

See?  Set-asides are different than sole-source.  And FAR 16.505(b)(2)(i)(F) only authorizes set-asides.

Even so, you declare that FAR Part 19 gives a contracting officer authority for sole-source task order awards under multiple-award contracts.  I disagree, again, based on the FAR.  FAR Subpart 19.13 covers the HUBZone program, but FAR 19.1304 says explicitly that the subpart does not apply to orders under indefinite-delivery contracts.  FAR Subpart 19.14 covers the Service-Disabled Veteran-Owned program, but 19.1404 says the subpart does not apply to orders under indefinite-delivery contracts.  So clearly, the authority for a sole-source task order awards (such as a HUBZone or SDVOSB award) does not come from FAR Part 19.  

You are unkind in charging that anyone who disagrees with you is an enemy to innovation.  That is not true.  I disagree with you in this matter because I am able to read the very clear words of the FAR.

5 hours ago, Vern Edwards said:

When regulations are clear and explicit, on the basis of the their text or binding case law, I'll obey them to the letter.

Were you unaware of FAR 19.1304(b) and 19.1404(b)?  Are they unclear?

 

Share this post


Link to post
Share on other sites

Don and ji20874:

Glad to see that I've brought you two together in your eagerness to keep me from innovating.

Okay, you've convinced me that I cannot make set-asides or sole source awards under the authorities you have cited. So I will give all contractors a fair opportunity to be considered for every task order. What I will do, however, is put a term in the contract to the effect that when providing a fair opportunity one of the factors that I might consider will be our agency's small business goals and the need for additional awards to one category or another in order to to achieve our goals. I will tradeoff our need against technical and price considerations. That procedure considers an "other aspect[ ] of the contracting environment." FAR 16.505(b)(1)(ii)(A).

What do you think? Put your minds together. What regulation (or combination of regulations) am I violating now? ;)

(I must confess that I don't know whether there are separate goals for the various special categories of small businesses. If there aren't any, let me know and I'll try something else.)

Share this post


Link to post
Share on other sites
1 hour ago, ji20874 said:

You are unkind in charging that anyone who disagrees with you is an enemy to innovation.

That's not what I'm charging. I don't mind that you disagree. I mind that you do things like basing your disagreement on interpreting "any"to mean any one even when it doesn't.

Share this post


Link to post
Share on other sites

Vern,

That's similar to what agencies used to do before set-asides were expressly authorized for FSS orders. I don't think it violates any regulation, but it makes someone like me nervous and scared. It was innovation and progress that doomed humanity in The Planet of the Apes.

Share this post


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

Vern,

That's similar to what agencies used to do before set-asides were expressly authorized for FSS orders. I don't think it violates any regulation, but it makes someone like me nervous and scared. It was innovation and progress that doomed humanity in The Planet of the Apes.

No. That was ideology and stupidity. The kind of thing that sent me to Vietnam. See Lessons in Disaster: McGeorge Bundy and the Path to War in Vietnam, by Gordon M. Goldstein (2008). Have you read Straw Dogs by John Gray?

Share this post


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

(I must confess that I don't know whether there are separate goals for the various special categories of small businesses. If there aren't any, let me know and I'll try something else.)

I can confirm for you that agencies do receive goals down to the socioeconomic category level.

Share this post


Link to post
Share on other sites

Thanks, Matthew and Todd. Based on that and Don's last post it looks like I'm good to go. Unless ji20874 can cook up something to block it.

Improvise. Adapt. Overcome. Wahoo.

Share this post


Link to post
Share on other sites

I believe that the view expressed in this thread to implement the innovative idea of the OP has missed a very important step that must be taken before implementation.  

It was expressed in this thread that a CO should take the lead in pursing innovation (FAR 1.102-4(e)).  There is no disagreement but within the same guiding principles it is expressed that  an acquisition is to be the product of a “team”.  

With regard to the proposed approach the primary debate has been the appropriate application of the Small Business Act to the idea.  Many have their opinions with regard to such application, inclusive of myself.   In the context of the FAR the discussion has been made in a vacuum that is absent the obligation to the guiding principle that an acquisition should be made as a team approach that includes members of the team that are empowered to make decisions within the area of their responsibility (FAR 1.102(a)) and that team participants are to include all from the procurement communities (FAR 1.102(a)).

FAR 19.201 provides that SBA is to assist agencies in accomplishing the intent of the Small Business Act and outlines the specific procedures that an agency is required to establish with regard to implementation of the act inclusive of recommendations regarding set aside programs. 

In the case of the proposed implementation of the innovative OP idea the suggested course has not included the clear demands of the guiding principles and FAR Part 19 that the appropriate agency officer or employee (team member) be consulted as to implementing the OP approach. 

The Small Business Act as implemented by FAR part 19 is clear that Small Business Administration in concert with the required agency Office of Small and Disadvantaged Business Utilization, or the extension thereof, within the agency’s  organization must be part and parcel to the implementation of the OP’s idea as it is also clear the innovation proposed needs clear interpretation of the Small Business Act and its implementing regulations that are inclusive of not only FAR part 19 but that of 13 CFR Chapter 1. 

So yes go for it, but go for it with complete deference to guiding principles and requirements of the FAR.   Doing so will make it a success! 

 

Share this post


Link to post
Share on other sites

Not that it makes any difference but if you can establish a pool with different Small business classifications and allow them to compete on some equal basis after award, I like the idea.  I agree with Carl that a PCO should use the team approach to investigate and implement the acquisition approach. 

Share this post


Link to post
Share on other sites

I once worked with a gal who attended one teaming seminar too many and had a baseball cap printed with the slogan "Travel in Herds. (Promote Inefficiency)"

Got a lot of laughs in the office. She became a vice president.

Share this post


Link to post
Share on other sites

"A committee is a life form with six or more legs and no brain."

-- Robert Heinlein

Share this post


Link to post
Share on other sites

- Well, it seemed that there was a lot of different input and interaction, including asking others' opinions in this very thread. Hmmm. 

Share this post


Link to post
Share on other sites

...checks and balances.  See Vern's thread concerning Glen Defense. Of course it didn't seem to work there...

Share this post


Link to post
Share on other sites

Seeker and here - Are you saying that it is inconsistent with FAR and if you were an agency CO you would not reach out to the small business specialist within your agency and/or SBA to discuss the idea?   

Share this post


Link to post
Share on other sites

Vern,

You insist on characterizing me as an enemy of innovation, but we should be able to engage based on the merits and facts -- that's where I'm working from.

I'm glad I have been able to be helpful to you in this thread.  The FAR does indeed prohibit sole-source task or delivery order awards to HUBZone small business concerns (FAR 19.304(b)), SDVOSBs (FAR 19.1404(b)), and WOSBs/EDWOSBs (FAR 19.1504(c)) under multiple-award IDIQ contracts.  I don't opine on whether it should or should not, but it is what it is.  You seem to be offended that I was right and you were wrong regarding your assertion that FAR Part 19 gives a contracting officer the authority for sole-source task or delivery order awards to HUBZone small business concerns, SDVOSBs, and WOSBs/EDWOSBs under multiple-award IDIQ contracts, but the result of this thread is that you have now arrived at a new idea, and a workable idea -- that's good, right?  WIFCON readers benefit from the professional exchange of ideas.

You will be happy to know that contracting officers are already using your proposed innovation by using small business achievements and contribution towards agency HUBZone, SDVOSB, and WOSB/EDWOSB goals as part of the fair opportunity process -- but these are fair opportunity (competitive) task order awards, not sole-source awards.  

Share this post


Link to post
Share on other sites

ji20874:

I haven't characterized you as an enemy of innovation. However, I admit that I was annoyed by your tortured interpretation of "any." (Feb. 14 at 10:58am.) It struck me that you were reaching. (And you were so self-assured in your error.) But I now understand that it was simple ignorance. And I suspect that by pointing out your mistake I prompted you to read FAR 19.502-4 more closely.

I am not offended that you were right about the point that you made concerning sole source awards and that I was wrong. In fact, I acknowledged that you and Don persuaded me. I generally don't read FAR Part 19 closely--a grievous error on my part in this case that you can bet I won't repeat.

So I do appreciate your input, and I thank you for it. It makes up for your misinterpretation of "any." And I'm glad that I was able to sort you out about that and turn you on to Bryan Garner's book about legal usage. He has a longer entry on "any" in his book Modern English Usage, 4th. I urge you (and others) to buy a copy and study it.

Share this post


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

×