Should the 1449, block 10,  on an RFP check the box for "unrestricted" or "setaside," when the evaluation is going to be a VA tiered evaluation, with the tiers being SDVOSB, VOSB, small (HUBzone preference), then finally large?  The award will be set aside, subject to limitations on subcontracting etc., if any firm in the first three categories ends up winning, right?

The form doesn't contemplate the tiered evaluation approach, so I would just do what I think makes sense. I think I would mark "unrestricted" since the competition isn't limited, it's just that there's no guarantee an offer will be evaluated. I assume the solicitation will contain a provision that explains how the VA will evaluate offers using the tiered approach.

It's confusing, because the limitations clauses etc are going to apply if it is awarded to an SDVOSB right? It will in fact be a setaside if an SDVOSB is awarded.

I don't view it as a set-aside because you're not limiting the opportunity to compete. I see it more like status being a go/no-go factor at each tier of evaluation.

I think selecting UNRESTRICTED on the SF-1449 for the solicitation is a good approach.  As Don said, everyone is invited to submit an offer.

But then, your solicitation should have text explaining the order of consideration of offers, and explaining that if a selection is made in any of the earlier tiers, the award will be considered as a set-aside for that tier and the appropriate clauses (included in the solicitation for reference) will be included in the resulting contract.  The SF-1449 for the contract award can show the appropriate set-aside.

14 hours ago, Don Mansfield said:

I don't view it as a set-aside because you're not limiting the opportunity to compete. I see it more like status being a go/no-go factor at each tier of evaluation.

 

Just now, ji20874 said:

I think selecting UNRESTRICTED on the SF-1449 for the solicitation is a good approach.

This intrigues me.  I might agree it is not set aside.  So going to the OP's thoughts why would the limitations clause ever apply in a strict read of the FAR?  Acknowledging that VA policy may state that it is to be included.  Carrying the thought forward....

The FAR prescription says this emphasis added - "The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed the simplified acquisition threshold." 

Likewise 13 CFR 125.6 states (emphasis added)  "In order to be awarded a full or partial small business set-aside contract ..."

So again would the limitations clause apply?

You raise good questions.  I am not a fan of tiered evaluations (not an implacable foe, but just not a fan).  

To me, there is another fundamental question, one of fairness -- if we reach the last tier (unrestricted), the offers on the table will not be equal if some (those from small businesses of whatever persuasion) include limitations on subcontracting and domestic product requirements while others (large businesses) do not.  Does that mean a small business should submit multiple offers, perhaps a different offer for each tier for which it qualifies?

Tiered evaluations are messy.

But, if a contracting officer includes text in the solicitation explaining the order of consideration of offers, and explaining that if a selection is made in any of the earlier tiers, the award will be considered as a set-aside for that tier and the appropriate clauses (included in the solicitation for reference) will be included in the resulting contract, and allows for multiple offers from small business concerns, then the approach is disclosed up-front -- anyone thinking it is unfair can protest.  

23 hours ago, ji20874 said:

But, if a contracting officer includes text in the solicitation explaining the order of consideration of offers, and explaining that if a selection is made in any of the earlier tiers, the award will be considered as a set-aside for that tier and the appropriate clauses (included in the solicitation for reference) will be included in the resulting contract, and allows for multiple offers from small business concerns, then the approach is disclosed up-front -- anyone thinking it is unfair can protest.  

Well from my chair such notification flies in the face of FAR 19.502-2 and other similar FAR citations with regard to SDVOSB, VOSB, and HUBZone set-aside determinations.  For me it is a crazy way to do market research on which set-aside determinations are to be predicated.   Especially when there are other tools available to make the set-aside determination upfront as required (it is the imperative of "shall" after all).

Carl,

I understand where you are coming from -- a tiered or cascading evaluation approach may indicate laziness or poor market research.  I am not advocating for tiered or cascading set-asides.

However, if a contracting officer is going to use such an approach (and it appears to be okay with the GAO), then the solicitation should include appropriate text.