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1 hour ago, Don Mansfield said:

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

If clause language is the only thing holding one back, why not just get a deviation approved to modify the clause(s) to be consistent?  FAR 1.402 states (emphasis added):

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Unless precluded by law, executive order, or regulation, deviations from the FAR may be granted as specified in this subpart when necessary to meet the specific needs and requirements of each agency. The development and testing of new techniques and methods of acquisition should not be stifled simply because such action would require a FAR deviation. The fact that deviation authority is required should not, of itself, deter agencies in their development and testing of new techniques and acquisition methods.

 

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Guest Vern Edwards

Don:

Sorry, maybe I'm not being fair to you and ji. But in the positions that you and ji have taken I see what comes across to me as a striving for the most narrow interpretation that you can derive from vague regulatory language . I see no express prohibition in the regulation against what j_dude wants to do. Why look for one? Why argue for one?

Innovative proposals often encounter boilerplate that does not account for what the innovator wants to do. That does not mean that what the innovator wants to do is prohibited and wrong. That is the lesson to be learned from the GAO's Sevatec decision. The spirit of the new is reflected in the FAR guiding principles. I think professionals should read regulations in a way that gives innovation the benefit of the doubt.

I respect the regulations and consider myself to be a close reader of them, but I see no reason to read procedural rules in the most restrictive way possible in the absence of any indication of a specific intent to preclude the course of action that an innovator wants to pursue.

Contracting folk should be willing to try things knowing that the GAO or COFC might rule against them. Contracting office managers have to be willing to push when the limits are not explicit. Many of the procedures that we take for granted today were not authorized when first tried.

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7 hours ago, Vern Edwards said:

 

Contracting folk sould be willing to try things knowing that the GAO or COFC might rule against them. Contracting office managers have to be willing to push when the limits are not explicit. Many of the procedures that we take for granted today were not authorized when first tried.

Vern,

Oh that I were a sponge and could readily  soak up the history of those "procedures that we take for granted today [that] were not authorized when first tried"

...Instead I must be content to slake my thirst drop by drop. I'll do my own looking...but could you maybe prime the pump and mention a few of the procedures that you have in mind, in this or another setting? 

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Guest Vern Edwards
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Oh that I were a sponge and could readily  soak up the history of those "procedures that we take for granted today [that] were not authorized when first tried"

...Instead I must be content to slake my thirst drop by drop. I'll do my own looking...but could you maybe prime the pump and mention a few of the procedures that you have in mind, in this or another setting? 

FAR-flung 1102:

More often than not, innovation precedes regulation, and regulation follows practice. Almost everything that we do today by express authorization or mandate was done by someone in the field before there was a regulation or policy to cover it. Regulations are usually issued (a) to implement statutes, (b) to control application of field practices that were developed and are being used without express authorization, and (c) to require that all agencies use a field practice that is thought to be a good idea. Legislators and regulators rarely invent and develop new techniques.

The most recent example of an innovation is the “highest technically rated with a fair and reasonable price” method of source selection, which, as far as I know, was first used by GSA, in 2015. Persons within the agency and protesters argued that the method violated the Competition in Contracting Act and GAO decisions, but we now know--thanks to the Orca decision of the COFC and the Sevatec decision of the GAO--that the method is permissible under FAR 1.102 and 15.101. The contracting officers who first put the method to use told me that they met with heavy resistance from persons in their bureaucracy and representatives of the private sector.

Another example is cost and price realism analyses, which were done in source selections long before they were mentioned or authorized in any regulation.

Changes clauses authorizing COs to unilaterally modify contracts, which have been traced back to 1818, were in use long before they were authorized and regulated. They were eventually standardized by regulation. Changes were restricted to those within the "general scope of the contract" and the clauses were written to provide for "equitable adjustment."

All of the various incentive contracts were developed experimentally before the 1950s. The Navy is believed to have developed the fixed-price incentive pricing arrangement during WWII. It was not expressly mentioned or authorized by any agency procurement regulation until the early 1950s.

The fixed-price contract with award fee was in use for several years before it was finally regulated in the FAR in 1997 and coverage was provided in FAR Part 16.

The “award term” incentive has been in use for about 10 years and is still not mentioned and authorized in the FAR. The first formal regulation of it was by the EPA in 2007. NASA proposed to regulate its use in its FAR supplement in 2016.

The “task order” contract containing “loaded” labor rates that could be used to price unique orders after contract award has been in use since at least the 1980s, a decade before their formal recognition under the Federal Acquisition Streamlining Act of 1994 and their subsequent regulation in FAR Part 16.

Performance-based contracting is a classic example of the issuance of a regulation to require that all agencies use what was thought to be a good field development. The procedure was developed by the Air Force in the 1970s and adopted government-wide in the 1990s. Another example is the inclusion of a statement of objectives in a solicitation instead of a statement of work, along with a requirement that offerors propose a statement of work. That procedure was first used by the Air Force in systems acquisitions (the F-22 fighter aircraft, I think) and is now recognized in FAR and used in all sorts of acquisitions.

I could go on, but I think that you get the idea. The field invents and develops new procedures. Regulation follows practice, not vice versa.

When a field procedure deviates from a clear regulation, the deviation must be approved before the procedure can be put to use. When someone proposes an innovation for which there is no express coverage in regulation, there is often someone within the bureaucracy or in the private sector who challenges its use, either because it was not expressly authorized by regulation or because they interpret an existing regulation to imply a prohibition of its use. There are two categories of prohibition--express prohibition and implied prohibition. In many cases someone in an office argues that while the regulation does not expressly prohibit the procedure, a prohibition is implied by some language therein. Sometimes the implication is clear and definite, but sometimes it is the product of what I call “tortured” interpretation.

In his last post, ji20874 indicated that "any," as used in FAR 19.502-4(b), means "any one."

Quote

Choose one, "any" one.

Now, where did he get the idea that "any" means one? Here is the entry on “any” in Garner’s Dictionary of Legal Usage, Third Edition:

Quote

any. A. Singular or Plural. Any may be either singular or plural. Here are examples of the (rarer) singular use:

  • "Accordingly, we do not reach the question of whether any of these statements is ‘of and concerning’ CSI.”
  • “We conclude that Weinberger has not demonstrated a prima facie case that any of the statements is false or was made with actual malice and that this factor weighs against the disclosure ordered.”

In those constructions, any is really elliptical for any one.

Now, FAR-flung, read FAR 19.502-4(b) and tell me if you think that any of the three uses of “any” is singular, meaning any one. Do you think the regulation says that a CO can set an award or awards aside for one and only one of the various categories of small business concerns? Does it mean that a CO cannot set aside one award for HUBZones and one for women-owned? Does that make sense to you? Would you read "any of the small business concerns" to mean any one of the categories of small business concerns? Would you read it as meaning that even though it does not say that?

Innovation is a lot harder than it used to be, because we have so many more pages of regulation and so many more passages to subject to tortuous interpretation.

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4 hours ago, FAR-flung 1102 said:

Vern,

...but could you maybe prime the pump and mention a few of the procedures that you have in mind, in this or another setting? 

Establishing the Competitive Range:  The Part 15, Source Selection procedures before the 1997 rewrite discouraged eliminating proposers in narrowing the range. The wording said to the effect that all offerors with a reasonable chance for award should be included -when there is doubt, keep them in the comp. range.

Most of our KO's were very conservative, fearing protests. I discovered that firms often did not really want to be dragged through an extended award process if they weren't a top contender for the award. Firms would ask me, the negotiator, if I could give them any indicator of where they stood because their bonding capacity was being tied up.

One  construction company on a large design-build competition said they were really interested in some big school system projects coming up in the Miami area near the Air Base where our project was located. Their project manager wanted to know if they were a top contender on our acquisition and wanted my advice on what to do. This was also before the 2 phase D-B short-listing process was added to FAR.

I simply told him that if it were me, I'd go after the other job.  They thanked me profusely - but I asked them not to mention why they were withdrawing...  

I was the first in our organization to aggressively pursue narrowing the competitive range. I was usually successful under one KO but could seldom convince the other KO to eliminate all but the most competitive proposers.  Even after the 1997 Part 15 Rewrite encouraged paring of all but the most highly rated proposals, it was like pulling teeth with the timid KO. Now, we know that industry usually welcomes being released as early as possible so they can pursue other work.  

Multi-Step Proposal Evaluation Processes: I think that multi-phased or multi-step proposal evaluation processes used in the past couple of years have pushed the envelope, too.  Vern can better fill in the details (plus I am on a plane with no Internet access) .   But there has been some reluctance by organizations to more efficiently pare down the field before evaluating all portions of the proposals, including price. A narrow reading of the FAR is a stumbling block for some organizations or individuals.

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I can vouch for Vern's mention of the use of Fixed Price with Award Fee before it was mentioned in FAR. My office was using FFP with award Fee around the 1989-1990 timeframe. 

The various Design-Build Construction contract authorizations specifically mentioned in law and FAR, which are exceptions to the Brooks Act procedures for obtaining design services through Qualifications Based Selection, all describe single award contract actions.  Organizations have adapted the two-phase method in FAR 36.3 for awarding base Multiple Award Task Order contracts, using a seed task order in Phase 2.    This was challenged ten years ago or so in one of the Courts, which upheld its use.  

The practice of not establishIng fixed prices in the MATOC competition was also mentioned in several cases but was not objected to by the Courts.  In those instances, prices for each unique D-B task order are  established by task order competition.  

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23 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).

Point of order. The authorities at FAR 19.502-4 are only available when the "rule of two" cannot be met. 13 CFR 125.2(e)(1) states:

Quote

 

(1) General.

(i) The contracting officer must set-aside a Multiple Award Contract if the requirements for a set-aside are met. This includes set-asides for small businesses, 8(a) Participants, HUBZone SBCs, SDVO SBCs, WOSBs or EDWOSBs.

(ii) The contracting officer in his or her discretion may partially set-aside or reserve a Multiple Award Contract, or set aside, or preserve the right to set aside, orders against a Multiple Award Contract that was not itself set aside for small business. The ultimate decision of whether to use any of the above-mentioned tools in any given procurement action is a decision of the contracting agency.

 

Further, the OP didn't ask about setting aside a part or parts of a multiple-award contract. As such, FAR 19.502-4 is not relevant to the discussion.

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16 hours ago, Vern Edwards said:

Don:

Sorry, maybe I'm not being fair to you and ji. But in the positions that you and ji have taken I see what comes across to me as a striving for the most narrow interpretation that you can derive from vague regulatory language . I see no express prohibition in the regulation against what j_dude wants to do. Why look for one? Why argue for one?

Innovative proposals often encounter boilerplate that does not account for what the innovator wants to do. That does not mean that what the innovator wants to do is prohibited and wrong. That is the lesson to be learned from the GAO's Sevatec decision. The spirit of the new is reflected in the FAR guiding principles. I think professionals should read regulations in a way that gives innovation the benefit of the doubt.

I respect the regulations and consider myself to be a close reader of them, but I see no reason to read procedural rules in the most restrictive way possible in the absence of any indication of a specific intent to preclude the course of action that an innovator wants to pursue.

Contracting folk should be willing to try things knowing that the GAO or COFC might rule against them. Contracting office managers have to be willing to push when the limits are not explicit. Many of the procedures that we take for granted today were not authorized when first tried.

I think you may be attributing too much to my comments. I have no problem with innovation. I'm not trying to find the most restrictive interpretation possible. However, I find fault in your reasoning. 

FAR 1.102(d) tells us to assume that if something is not expressly prohibited, we can assume that is permissible.

jdude77 wants to use a procedure that does not provide for full and open competition, which is prohibited by FAR 6.101(a). This prohibition has "limited" exceptions that are covered in FAR subpart 6.2 and 6.3.

jdude77 wants to limit competition to offerors that are 8(a), HUBZone, SDVOSB, and EDWOSB small business concerns. This is not one of the "limited" exceptions in FAR subpart 6.2 and 6.3. Your position is that such a set-aside is a small business set-aside, which is permitted by FAR 6.203. That makes no sense to me because such a set-aside would exclude some small business concerns. Such an interpretation is inconsistent with the implementing clause for conducting small business set-asides. It would also be inconsistent with all other set-asides and their implementing provisions and clauses in the FAR, which don't provide for further limitations in the defined class of competitors.

I think that what jdude77 wants to do would be a deviation. However, that doesn't mean that it's wrong. FAR 1.402(a) states:

Quote

The development and testing of new techniques and methods of acquisition should not be stifled simply because such action would require a FAR deviation. The fact that deviation authority is required should not, of itself, deter agencies in their development and testing of new techniques and acquisition methods.

 

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Guest Vern Edwards
1 hour ago, Don Mansfield said:

jdude77 wants to limit competition to offerors that are 8(a), HUBZone, SDVOSB, and EDWOSB small business concerns. This is not one of the "limited" exceptions in FAR subpart 6.2 and 6.3. Your position is that such a set-aside is a small business set-aside, which is permitted by FAR 6.203. That makes no sense to me because such a set-aside would exclude some small business concerns. Such an interpretation is inconsistent with the implementing clause for conducting small business set-asides. It would also be inconsistent with all other set-asides and their implementing provisions and clauses in the FAR, which don't provide for further limitations in the defined class of competitors.

Don:

Here is FAR 6.203, which is the CICA exception for small business set-asides:

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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.

Emphasis added. Well, I guess we better read FAR Subpart 19.5. Let's begin at the beginning with FAR 19.501(a):

Quote

(a) The purpose of small business set-asides is to award certain acquisitions exclusively to small business concerns. A “set-aside for small business” is the reserving of an acquisition exclusively for participation by small business concerns. A small business set-aside may be open to all small businesses. A small business set-aside of a single acquisition or a class of acquisitions may be total or partial.

If a set-aside "may" be open to all small businesses--"may" denoting the permissive according to FAR 2.101, meaning that I can include them all, but I don't have to--would I be wrong in thinking that a set-aside may be closed to some small businesses and that I may exclude some small businesses from a set-aside for small businesses?

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Guest Vern Edwards
3 hours ago, Don Mansfield said:

Point of order. The authorities at FAR 19.502-4 are only available when the "rule of two" cannot be met. 13 CFR 125.2(e)(1) states:

(1) General.

(i) The contracting officer must set-aside a Multiple Award Contract if the requirements for a set-aside are met. This includes set-asides for small businesses, 8(a) Participants, HUBZone SBCs, SDVO SBCs, WOSBs or EDWOSBs.

(ii) The contracting officer in his or her discretion may partially set-aside or reserve a Multiple Award Contract, or set aside, or preserve the right to set aside, orders against a Multiple Award Contract that was not itself set aside for small business. The ultimate decision of whether to use any of the above-mentioned tools in any given procurement action is a decision of the contracting agency.

I don't understand your point. 

Why should a CO care what 13 CFR 125.2(e)(1) states? The CO is bound by law to comply with FAR. See FAR 1.104. FAR 19.000, Scope of Part, does not mention 13 CFR 125.2. FAR Subpart 19.5 makes no mention of 13 CFR 125.2(e)(1). Just to be sure, FAR 19.502-4 makes no mention of 13 CFR 125.2. In fact, a Westlaw search shows no mention of 13 CFR 125.2 anywhere in the FAR.

I interpret 13 CFR 125.2 as being merely descriptive, not legislative. It doesn't command, it just explains. FAR commands. But even if I assume that a CO must comply with 13 CFR 125.2(e)(1), subparagraph (i) says that the CO must set-aside a MATOC if the requirement for a set-aside is met. That's good. That's what j_dude wants to do. He wants to set it aside for the five special categories. Subparagraph (ii) says that he may partially set-aside a MATOC if it was not totally set-aside. Well, that's fine, but he plans to set it aside. So...

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6.204 Section 8(a) competition.

(a) To fulfill statutory requirements relating to section 8(a) of the Small Business Act, as amended by Public Law 100-656, contracting officers may limit competition to eligible 8(a) participants (see subpart 19.8).

(b) No separate justification or determination and findings is required under this part to limit competition to eligible 8(a) participants. (But see 6.302-5 and 6.303-1 for sole source 8(a) awards over $22 million.)

6.205 Set-asides for HUBZone small business concerns.

(a) To fulfill the statutory requirements relating to the HUBZone Act of 1997 (15 U.S.C. 631 note), contracting officers in participating agencies (see 19.1302) may set aside solicitations to allow only qualified HUBZone small business concerns to compete (see 19.1305).

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

6.206 Set-asides for service-disabled veteran-owned small business concerns.

(a) To fulfill the statutory requirements relating to the Veterans Benefits Act of 2003 (15 U.S.C. 657f), contracting officers may set-aside solicitations to allow only service-disabled veteran-owned small business concerns to compete (see 19.1405).

(b) No separate justification or determination and findings are required under this part to set aside a contract action for service-disabled veteran-owned small business concerns.

6.207 Set-asides for economically disadvantaged women-owned small business (EDWOSB) concerns or women-owned small business (WOSB) concerns eligible under the WOSB Program.

(a) To fulfill the statutory requirements relating to 15 U.S.C. 637(m), contracting officers may set aside solicitations for only EDWOSB concerns or WOSB concerns eligible under the WOSB Program (see 19.1505).

(b) No separate justification or determination and findings is required under this part to set aside a contract action for EDWOSB concerns or WOSB concerns eligible under the WOSB Program.

I have a question.  I hate to quote the FAR in a quote box but could someone explain the meaning of the phrases in 6.205 -- to allow only, 6.206 -- to allow only, 6.207 --  for only.  If a regulation uses the word only as it does in the areas I quoted, how does an only allow for consideration of another?

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1 hour ago, Don Mansfield said:

I think that what jdude77 wants to do would be a deviation. However, that doesn't mean that it's wrong.

Ultimately j_dude77 is going to run into one of two situations:

  • His agency is going to interpret the FAR as allowing him to set the MATOC aside for multiple small business socioeconomic categories; or
  • His agency is going to interpret the FAR as not allowing the multiple small business socioeconomic categories and tell him "no."

If the latter situation occurs, please don't let that be the end of your pursuit j_dude77.  If it makes good business sense for your agency to have a MATOC with those multiple small business socioeconomic categories, make the best argument you can as to why that's the best course of action, support it, and pursue the deviation.  I think everyone here could, at least, agree on that.

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8 hours ago, Vern Edwards said:

FAR-flung 1102:

In his last post, ji20874 indicated that "any," as used in FAR 19.502-4(b), means "any one."

Now, where did he get the idea that "any" means one? Here is the entry on “any” in Garner’s Dictionary of Legal Usage, Third Edition:

Now, FAR-flung, read FAR 19.502-4(b) and tell me if you think that any of the three uses of “any” is singular, meaning any one. Do you think the regulation says that a CO can set an award or awards aside for one and only one of the various categories of small business concerns? Does it mean that a CO cannot set aside one award for HUBZones and one for women-owned? Does that make sense to you? Would you read "any of the small business concerns" to mean any one of the categories of small business concerns? Would you read it as meaning that even though it does not say that?

 

Vern,

Thank you for the overview. 

I do see your point about "any" not always meaning "any one"...and specially in FAR 15.502-4.  I  think we should often consider flipping our assumptions mid-argument as a means of detecting error or obstinance.  I for one, like learning new tricks. 

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Guest Vern Edwards

There is one way to do what j_dude wants to do that ought to be entirely noncontroversial.

Issue a MATOC RFP and say that you are going to make four separate awards based on four separate set-asides--one for 8(a), one for HUBZone, one for SDVOSB, and one for EDWOSB. Instead of citing FAR 6.203, cite FAR 6.204, 6.205. 6.206, and 6.207 as the CICA exceptions applicable to each of the four awards. Conduct four source selections in accordance with applicable and appropriate procedures. Insert FAR 52.219-3, -18, -27, and -29 and apply them as appropriate. Say that task orders will be competed or awarded based on the various small business sole source authorities.

Easy peasy.

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Vern, what impact, if any, does FAR 1.602-1(b) have on the issue of whether a contracting officer needs to comply with SBA rules as well as the FAR when awarding contracts?

Bob, to answer your question concerning "only," go back to the statutory bases for the various sections in FAR Subpart 6.2.  FAR 6.203 is derived directly from CICA.  For example, 10 U.S.C. 2304(b)(2) states in part "The head of an agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act."   Section 15 of the SB Act is 15 U.S.C. 644 which states government wide contracting goals and requires the establishment of agency specific contracting goals for specific categories of small businesses.  Under 644, agencies are to establish plans to meet those contracting goals.  Nothing in 644, limits contracting to meet those goals to either one category or all categories of eligible small business concerns.  The way I read the statute, it permits mixing and matching of categories.  Because 6.203 is derived from 644, it also must permit mixing and matching.

If we look at FAR 6.204-207, each of those sections is based upon a specific section of the SB Act that permits set asides limited to the specific small business category.  None of those other sections of the SB Act are mentioned in CICA.  Moreover, each of the sections in 6.203-207 is merely a tool available to agencies to assist them in meeting the objectives of 644.Thus, because we have different FAR sections that are based on different statutes, but are intended to facilitate a common goal, i.e., the goal of 644, I see no conflict between them and nothing that would prohibit the approach Vern has advised.

 

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4 minutes ago, Vern Edwards said:

There is one way to do what j_dude wants to do that ought to be entirely noncontroversial.

Issue a MATOC RFP and say that you are going to make four separate awards based on four separate set-asides--one for 8(a), one for HUBZone, one for SDVOSB, and one for EDWOSB. Instead of citing FAR 6.203, cite FAR 6.204, 6.205. 6.206, and 6.207 as the CICA exceptions applicable to each of the four awards. Conduct four source selections in accordance with applicable and appropriate procedures. Insert FAR 52.219-3, -18, -27, and -29 and apply them as appropriate. Say that task orders will be competed or awarded based on the various small business sole source authorities.

Easy peasy.

Vern:

That is a solution to what I posted.

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57 minutes ago, Retreadfed said:

Vern, what impact, if any, does FAR 1.602-1(b) have on the issue of whether a contracting officer needs to comply with SBA rules as well as the FAR when awarding contracts?

That's not entirely clear to me. FAR tells COs what they must do and what they must refrain from doing. I think that SBA rules such as 13 CFR 125.2 merely explain what COs are legally obligated to do under the statutes. It's up to the FAR councils to tell them to do it, which is why the FAR councils wait for SBA to issue an interpretive regulation and then publish a Federal Acquisition Circular telling COs what is required of them.

Mainly what the SBA rules in 13 CFR 125 do is interpret statute. Does 13 CFR 125.2 have the force and effect of law? I don't know. I don't think so. Must COs comply with an SBA regulation like 13 CFR 125.2 before the FAR councils issue a Federal Acquisition Circular? I don't know. I don't think so. I don't see how SBA can enforce their rules against COs except through management channels. Can SBA sue a CO? I don't know. I don't think so. Remember that according to statute, the FAR is the government's only procurement regulation.

I plan to do some research on this.

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Guest Vern Edwards
52 minutes ago, bob7947 said:

Vern:

That is a solution to what I posted.

Don and I actually talked about that solution by phone a day or so ago and then again today, but we were having fun with the argument so we kept it to ourselves.

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FAR 19.000 “This part implements the acquisition-related sections of the Small Business Act (15 U.S.C. 631, et seq.),” therefore one would think the associated regulations of 13 CFR 125 which were also codified on the basis of the Small Business Act would have some bearing on interpretation of the guidance offered in the FAR.   I am not quite clear why 13 CFR 125 is dismissed so easily?

This being said could the more appropriate approach be that you are doing the procurement under FAR 6.203 as a SB set aside and that you are “reserving” awards for the categories (subsets of small businesses) that the OP has identified? 

 I question that you would do a  competition as suggested by the OP and “set aside” for an 8(a).   I reason in a full read of FAR subpart 19.805, with FAR 6.203, that a competitive reach to 8(a)s would be as a reservation as an award or awards for 8(a).   A “set aside” is in conflict with the applicable thresholds that allow for competitive 8(a).   To “reserve” might be a different matter, reference 19.502-4?

Hope these thoughts help repair some additional chinks in the armor to allow the innovation to occur.

 

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11 hours ago, Vern Edwards said:

Why should a CO care what 13 CFR 125.2(e)(1) states? The CO is bound by law to comply with FAR. See FAR 1.104.

I was waiting for the original posters to respond, but I never seen FAR 1.602-1[ b ] - or 1.602-2[a] referenced. Maybe I just missed it but, here is the relevant part:

"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."

*Edited to acknowledge Retreadfed's post highlighting the same

Edited by Jamaal Valentine
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13 hours ago, Vern Edwards said:

There is one way to do what j_dude wants to do that ought to be entirely noncontroversial.

Issue a MATOC RFP and say that you are going to make four separate awards based on four separate set-asides--one for 8(a), one for HUBZone, one for SDVOSB, and one for EDWOSB. Instead of citing FAR 6.203, cite FAR 6.204, 6.205. 6.206, and 6.207 as the CICA exceptions applicable to each of the four awards. Conduct four source selections in accordance with applicable and appropriate procedures. Insert FAR 52.219-3, -18, -27, and -29 and apply them as appropriate. 

Works for me -- each awarded contract is based on one set-aside approach.

13 hours ago, Vern Edwards said:

Say that task orders will be competed or awarded based on the various small business sole source authorities.

Doing a fair opportunity consideration for a task order among all the contract awardees:  easy.

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?

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