When competing a multiple-award contract, FAR 19.502-4(a) authorizes contracting officers to “ … reserve one or more contract awards for any of the small business concerns identified in 19.000(a)(3).”

This is a practice I used while I was in government. However, today I read an opinion from a law firm in Dec 16 that raises a number of questions in my mind for which I have been unable to find answers:

Quote

“The proposed rule provides separate guidance for reserving multiple-award contracts for small businesses, partial-side asides, and setting aside individual task/delivery orders. Under the proposed rule, contracting officers will first be required to conduct market research to determine if a total contract set-aside is appropriate under the Rule of Two. If two or more responsible small business concerns are not expected to submit an offer on the entire requirement at a fair price, then the contracting officer must consider whether the requirement can be divided into distinct portions for a partial set-aside, and whether the Rule of Two would be satisfied for those portions. The contracting officer can also reserve awards for small businesses if a total set aside would not be appropriate and a partial set-aside is not feasible.”

http://www.wileyrein.com/newsroom-articles-FAR-to-Include-New-Guidance-Regarding-Small-Business-Set-Asides-Under-Multiple-Award-Contracts.html

Question 1: How can one conclude that the Rule of Two is not met if “ … one or more contract awards …” are reserved for small businesses?

Questions 2, 3 and 4: How can GSA award an Alliant GWAC and an Alliant Small Business GWAC? Doesn’t the SB GWAC demonstrate that the Rule of Two is met? How can GSA issue the Alliant GWAC when it also issues an Alliant SB GWAC?

1. Reserves for more than one small business are for less than the whole requirement. A reserve for one small business is for the whole requirement. See the discussion of reserves here.

On 8/31/2017 at 11:54 AM, Don Mansfield said:

1. Reserves for more than one small business are for less than the whole requirement. A reserve for one small business is for the whole requirement. See the discussion of reserves here.

Thank you, Don. However, I looked at the Section Cs of the Alliant 2 and the Alliant 2 SB solicitations. With the exception of a few words, they are identical.

I also compared the lists of labor categories showing Max and Min rates. They are identical.

How can GSA present the same requirement to the LBs and the SBs? What happened to the Rule of Two?

Mb  

I don't know. GSA tends to do what they want. 

And get away with it.  And be chosen as Best in Class.  They might as well not trained me. 

I found a 25 minute video during which 3 GSA officials discuss the Alliant 2 and Alliant 2 SB solicitations: http://governmentcio.com/node/897.

If one goes to the 14:25 minute mark, one will hear the PCO state that the two contracts are "almost identical". The 2 differences are the subcontracts clause and some proposal evaluation thresholds.

I remain puzzled about the interpretation of the FAR and the SB regs that permits the issuance of a set aside and an unrestricted solicitation for the same work. I and Wiley Rein ESQ must not be reading the regs correctly.

http://www.wileyrein.com/newsroom-articles-FAR-to-Include-New-Guidance-Regarding-Small-Business-Set-Asides-Under-Multiple-Award-Contracts.html

I wonder if anyone reads the regs differently.

Napolik,

Back to your original question, it seems to me GSA did exactly that with Alliant.  They determined that a total set-aside is not feasible so they did a partial.  The partial is Alliant SB.

 

47 minutes ago, formerfed said:

Napolik,

Back to your original question, it seems to me GSA did exactly that with Alliant.  They determined that a total set-aside is not feasible so they did a partial.  The partial is Alliant SB.

 

The Section Cs are virtually identical. So are the labor categories.

Since GSA asks for the same work from the same labor categories and since GSA issued an Alliant 2 SB set aside, how can a set aside not be feasible?

Thanks

My thought is since both Alliant and Alliant SB are very large IDIQ contracts, the scope is relatively open.  Individual needs are met at the task order basis.  So ordering agencies decide which vehicle to use based on the specifics of their work.  The work is the same for both (same section c and labor categories); it's the magnitude of the jobs that differentiate. 

1 hour ago, formerfed said:

My thought is since both Alliant and Alliant SB are very large IDIQ contracts, the scope is relatively open.  Individual needs are met at the task order basis.  So ordering agencies decide which vehicle to use based on the specifics of their work.  The work is the same for both (same section c and labor categories); it's the magnitude of the jobs that differentiate. 

Yes, but FAR 19.502-2(b) says the Rule of Two applies to any acquisition over $150k. It doesn’t exempt MACs.

OK so I post my requirement to Alliant SB  and if I do not get two acceptable proposals, I repost it to Alliant LB.  

Agreed.  I would assume that by going to Alliant, the Rule of Two was applied and small firms couldn't meet my need.

1 hour ago, Boof said:

OK so I post my requirement to Alliant SB  and if I do not get two acceptable proposals, I repost it to Alliant LB.  

I am not speaking about orders under the MACs. I am speaking of the award of the MACs.

How could GSA award Alliant 2 without setting it aside given the close similarity of its Section C and labor categories to those seen in Alliant 2 SB?

What exception to the Rule of Two applies?

napolik,

Maybe the Alliant contracting officer didn't have a reasonable expectation that small businesses could fulfill the entire requirement.  I'm supposing, but that would be a valid reason.

I don't know if this is GSAs position but I would argue this.

I'm doing a multiple award IDIQ contract vehicle for IT needs.  It has extremely high order limitations so I know small business can't meet all the order requirements.  But I anticipate small firms can perform on some orders.  This meets the FAR 19.502-3 criteria for a partial set-aside.  So I award Alliant on a full and open basis and Alliant SB as a set-aside to cover all the potential order needs.  It complies with the rule of two and everything else.

 

No.  That is not a partial set-aside. Rather, that is reserving some awards for small businesses.  See FAR 19.502-4, where reserves are covered by para. (a) and set-asides are covered by para. (b).  I am supposing that Alliant WAS NOT a partial set--aside.