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bob7947

Parity Is Almost Here

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It's amazing how Congress works. It took such a long time after everyone realized the issue.

As I went down the bill looking for page 43, I noticed this interesting part:

SEC. 1331. RESERVATION OF PRIME CONTRACT AWARDS FOR SMALL

BUSINESSES.

Section 15 of the Small Business Act (15 U.S.C. 644), as

amended by this Act, is amended by adding at the end the following:

??® MULTIPLE AWARD CONTRACTS.?Not later than 1 year after

the date of enactment of this subsection, the Administrator for

Federal Procurement Policy and the Administrator, in consultation

with the Administrator of General Services, shall, by regulation,

establish guidance under which Federal agencies may, at their

discretion?

??(1) set aside part or parts of a multiple award contract

for small business concerns, including the subcategories of small

business concerns identified in subsection (g)(2);

??(2) notwithstanding the fair opportunity requirements

under section 2304c(B) of title 10, United States Code, and

section 303J(B) of the Federal Property and Administrative

Services Act of 1949 (41 U.S.C. 253j(B)), set aside orders placed

against multiple award contracts for small business concerns,

including the subcategories of small business concerns identified

in subsection (g)(2); and

??(3) reserve 1 or more contract awards for small business

concerns under full and open multiple award procurements,

including the subcategories of small business concerns identified

in subsection (g)(2).??.

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This one caught me by surprise. I am still searching for when the small business contracting subtitle was added but I believe it was done in the Senate during the last 10 days--in a hurry. Without looking at it closely, I assume it was a wishlist of items.

Because of politics, this bill was moving quickly and was sure to pass. As a result, it was decorated with various items. The defense authorization bill, where it would normally end up, has been delayed and/or endangered because of politics.

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This one caught me by surprise. I am still searching for when the small business contracting subtitle was added but I believe it was done in the Senate during the last 10 days--in a hurry. Without looking at it closely, I assume it was a wishlist of items.

Because of politics, this bill was moving quickly and was sure to pass. As a result, it was decorated with various items. The defense authorization bill, where it would normally end up, has been delayed and/or endangered because of politics.

What's next - reversing the Delex decision?

k

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I don't think GAO's interpretation of the rule of two in Delex will fly anymore based on the language of Sec. 1331 (see formerfed's post), because it would render Sec. 1331 meaningless.

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I don't think GAO's interpretation of the rule of two in Delex will fly anymore based on the language of Sec. 1331 (see formerfed's post), because it would render Sec. 1331 meaningless.

Sec. 1331 opens the door for OFPP and SBA to change the Rule of Two as GAO has applied it to delivery and task order contracts. However, as long as the Rule of Two as expressed in FAR remains as it is, I'm not sure that the statute overrules Delex.

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It will be interesting to see how OFPP and SBA deals with the Rule of Two. Sec. 1331 authorizes setasides for parts of multiple award contracts. So an agency will have a mix of small and large businesses as contractors. I can't imagine SBA wanting to give up or change the Rule of Two for task orders so COs will have added pressure to set aside requirements.

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Sec. 1331 opens the door for OFPP and SBA to change the Rule of Two as GAO has applied it to delivery and task order contracts. However, as long as the Rule of Two as expressed in FAR remains as it is, I'm not sure that the statute overrules Delex.

It appears to me that the statute doesn't overrule the Delex decision by itself, but rather it provides statutory authority for OFPP and the SBA to implement regulations that would replace the application of FAR 19.502-2(:) to task orders. GAO in the Delex opinion stated, in part, as follows:

"The Navy also argues that Congress has never indicated that the small business set‑aside requirements apply to the placement of task and delivery orders, despite numerous opportunities to do so in the years since the passage of FASA. Navy Memorandum of Law at 24-25 (July 24, 2008). In our view, this logic provides no basis for concluding that Congress intended that the small business set-aside requirements do not apply to FASA?s authorization of the use of task and delivery order contracts. In fact, we think the Navy?s argument is not supported by the facts."

In light of the SBJA of 2010, GAO could no longer make this type of argument. Rather, in the SBJA of 2010, Congress spoke directly to this issue and told SBA and OFPP to promulgate regulations within one year.

The question is whether the resultant regulations will (1) leave the Rule of Two unchanged; (2) Loosen the requirements and provide agencies with more discreton in making the set aside decision; or (3) create a more onerous rule ... perhaps the "Rule of One" [Gasp].

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I don't think GAO's interpretation of the rule of two in Delex will fly anymore based on the language of Sec. 1331 (see formerfed's post), because it would render Sec. 1331 meaningless.

Two years ago,I heard DoD VIPS say that Delex must be overturned. Recently, I heard a DoD Procurement VIP say that he supports the idea of applying the rule of two to IDQ contracts. I am no longer sure that Delex is going to be history - at least in DoD.

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The Small Business Jobs and Credit Act provides a level field for all agencies except Veterans Affairs, where veteran small businesses have a unique mandatory statutory preference.

Both types of veteran-owned small businesses have had mandatory preference over any other small business programs for Department of Veterans Affairs contracting opportunities since June 20, 2007, when 38 USC 8127(i) became effective:

(i) Priority for Contracting Preferences.? Preferences for awarding contracts to small business concerns shall be applied in the following order of priority:

(1) Contracts awarded pursuant to subsection (B), ( c), or (d) to small business concerns owned and controlled by veterans with service-connected disabilities.

(2) Contracts awarded pursuant to subsection (B), ( c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1).

(3) Contracts awarded pursuant to?

(A) section 8(a) of the Small Business Act (15 U.S.C. 637 (a)); or (B) section 31 of such Act (15 U.S.C. 657a) (HUBZone);

(4) Contracts awarded pursuant to any other small business contracting preference.

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