TforC and Set-asides

[buddyandme]

Procurement situation:

Government issued a T for C on a SB set-aside procurement with 6 month remaining on the POP. Reason given for the T for C is:

1. "in the best interest of the government", and

2. The T for C contract was originally a Navy contract but due to "Joint Basing" will now be absorbed by the Air Force under an existing 8(a) contract.

Question:

1. By this action is the government dissolving the original SB set-aside by placing it under the 8(a) program and if so, is this a breech of contract?

2. Does this action fall under the FAR 19.506 (a)?

FAR 19.506 (a) Withdrawing or modifying small business set-asides states:

(a) If, before award of a contract involving a small business set-aside, the contracting officer considers that award would be detrimental to the public interest (e.g., payment of more than a fair market price), the contracting officer may withdraw the small business set-aside determination whether it was unilateral or joint. The contracting officer shall initiate a withdrawal of an individual small business set-aside by giving written notice to the agency small business specialist and the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)) stating the reasons. In a similar manner, the contracting officer may modify a unilateral or joint class small business set-aside to withdraw one or more individual acquisitions.

Comments are appreciated.

[Cajuncharlie]

Quick answers:

1. The first part of this question uses language that seems to be a stretch, i.e. "...dissolving... the set-aside....' IMHO a set-aside is a pre-award situation, similar to the difference between a solicitation provision and a contract clause. For the second part of the question, a T4C that is completed in strict conformance to the terms of the applicable Termination clause in a contract is not a breach.

2. 19.506(a) seems to be limited to pre-award. Haven't seen anything in 19.5 about post-award.

[joel hoffman]

Procurement situation:

Government issued a T for C on a SB set-aside procurement with 6 month remaining on the POP. Reason given for the T for C is:

1. "in the best interest of the government", and

2. The T for C contract was originally a Navy contract but due to "Joint Basing" will now be absorbed by the Air Force under an existing 8(a) contract.

Question:

1. By this action is the government dissolving the original SB set-aside by placing it under the 8(a) program and if so, is this a breech of contract?

2. Does this action fall under the FAR 19.506 (a)?

Based upon the information provided:

1. There is no breach of contract. It appears that the Navy is no longer responsible for providing the service. The government has the right to TFC under the terms of the contract.

2. FAR 19.506 (a) refers to a pre-award action.