FAC 2005-56 Impact on SB Set Asides
Posted 06 March 2012 - 08:58 AM
19.203 Relationship among small business programs.
© 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 the SBA agrees to its release in accordance with 13 CFR parts 124, 125, and 126.
Does this mean one must "justify" use of a small business set aside if one is not setting aside a procurement for the small business socioeconomic contracting programs?
Posted 06 March 2012 - 10:03 AM
G. Definition of Term ‘‘Shall First Consider’’
A few respondents commented that the interim rule requires that contracting officers ‘‘shall first consider’’ socioeconomic programs;
however, the rule does not define what constitutes consideration.
Response: FAR 19.203(d) was added to include language consistent with 13CFR 125.2(f)(2)(ii) regarding the minimum elements a contracting officer
should examine when choosing a socioeconomic program: The results of market research and progress in fulfilling agency small business goals.
The referenced section of 13CFR provides the answer as follows:
(2) Acquisitions Valued Above the Simplified Acquisition Threshold. (i) The contracting officer shall set aside any acquisition with an anticipated dollar value exceeding the Simplified Acquisition Threshold (defined in the FAR at 48 CFR 2.101) for small business concerns when there is a reasonable expectation that offers will be obtained from at least two small business concerns that are competitive in terms of quality and delivery and award will be made at fair market prices. However, after conducting market research, the contracting officer shall first consider a set-aside or sole source award (if the sole source award is permitted by statute or regulation) under the 8(a) BD, HUBZone, SDVO SBC or WOSB programs before setting aside the requirement as a small business set-aside. There is no order of precedence among the 8(a) BD, HUBZone, SDVO SBC or WOSB programs. The contracting officer must document the contract file with the rationale used to support the specific set-aside, including the type and extent of market research conducted. In addition, the contracting officer must document the contract file showing that the apparent successful offeror's ORCA certifications and associated representations were reviewed.
Posted 06 March 2012 - 01:18 PM
Posted 06 March 2012 - 04:23 PM
The text of the FAC seems to create a preference for the socioeconomic programs vice the old fashoned small business set asides.
Posted 06 March 2012 - 04:52 PM
FAR 19.203( c ) is still unclear and I think that the FAR Council wants it that way. I say this because I submitted several comments that they addressed in the final rule and made the necessary changes. The one comment that they completely side-stepped was that FAR 19.203( c ) was not clear as to the discretion of the contracting officer to proceed with a small business set-aside if a requirement could be met using the 8(a), HUBZone, SDVOSB, or WOSB programs. Their response is in JTAYLOR's post above.
I interpret FAR 19.203( c ) as requiring the use of the 8(a), HUBZone, SDVOSB, or WOSB programs if the requirement can be met under the program--I don't think the CO has discretion. I've asked several students how their offices interpret FAR 19.203( c ) and many say that documentation that you considered the programs is sufficient--a CO can still proceed with a small business set-aside regardless. Unfortunately, I think that we are going to have to wait for a protest to find out what FAR 19.203( c ) means.
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