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Is it true, “Once an 8(a), always an 8(a)”?

 

Have you ever heard the saying, “Once an 8(a), always an 8(a)”, or even, “once a set-aside, always a set- aside?  I have, on multiple occasions! Do you have a burning desire to know if this is true?

Well, before going any further, let me make it very clear that GSA and I are pro small business, and that a majority of GSA Schedule Contractors are small businesses.

Did you know that the Small Business Administration (SBA) does not have any regulations authorizing withdrawal of a requirement from the 8(a) program based on a Contracting Officers (CO) decision to use the Federal Supply Schedules (FSS)?  Well they don’t. They do have a rule that addresses withdrawal when an incumbent 8(a) contractor no longer fits the 8(a) definitions.  That regulation provides:

“Release for non-8(a) competition. In limited instances, SBA may decline to accept the offer of a follow-on or renewal 8(a) acquisition to give a concern previously awarded the contract that is leaving or has left the 8(a) BD program the opportunity to recompete for the  requirement outside the 8(a) BD program.

(1) SBA will consider the release only where:

(i) the procurement awarded through the 8(a)BD program is being or was performed by either a Participant whose program term will expire prior to contract completion, or, by a former Participant whose program term expired within one year of the date of the offering letter;

(ii) The concern requests in writing that SBA decline to accept the offer prior to SBAs acceptance of the requirement for award as an 8(a) contract, and

(iii) The concern qualifies as a small business for the requirement now offered to the 8(a) BD program.

(2) In considering release, SBA will balance the importance of the requirement to the concern’s business development needs against the requirement. This determination will include considerations of whether rejection of the requirement would seriously reduce the pool of similar types of contracts available for award as 8(a) contracts. SBA will seek the views of the procuring activity.

(3) If SBA declines to accept the offer and releases the requirement, it will recommend to the procuring activity that the requirement be procured as a small business or, if authorized, [a Small Disadvantage Business] set-aside.”

13 C.F.R. 124.504(e)

So why I am I considering this topic? Well, the reason I decided to tackle this issue as my next blog is that I have been receiving quite a few calls on this subject.  Last year, the Court of Federal Claims (COFC) had a very interesting protest.  The Air Force (AF) had awarded a direct (sole source) award to an 8(a) contactor for a 1 yr base period and 4, 1 yr options.  After the first year, the contracting officer made a determination IAW FAR 17.207(c)(3) and d(2), that it was more cost effective to use the FSS program instead of exercising the option.  The AF informed the SBA that they were not going to exercise the option.  The 8(a) contractor that had been awarded the contract made the decision to protest the Air Force award to an FSS contract holder. Many key points were made in the opinion but here is the one that I found most applicable in referencing the FSS.  The protest decision pointed out that, “The SBA does not have regulations authorizing withdrawal from the 8(a) program based on a decision to use the FSS”.  Well, I don’t know about you, but that is pretty clear to me!  With the precedent set by this protest decision and IAW the Federal Acquisition Regulation (FAR), it becomes the decision of the CO as part of their acquisition strategy and market research.

Now, some of you may say, “but wait a minute, don’t I still have to get the Small Business Coordination form (DD Form 2579 for our DOD customers and multiple other forms for our civilian agency customers) signed by the Small Business Program office”?

Wait for it…….it depends! Actually, not really unless your agency has set up additional policies or requirements in your agency supplements to the FAR that go above and beyond the FAR requirements. Keep in mind that I am writing this blog with the applicability to the GSA schedule program in mind.  FAR Part 19 is not applicable to the GSA schedule program IAW FAR subPart 8.404(a).  That means that the actual requirement for reviewing the small business coordination form at the task/delivery level is not required at the FAR level for a schedule acquisition. In fact, GSA has taken care of that at the schedule contract level.  This was in part the basis of the decision by the COFC.  Don’t forget that it is discretionary if an agency decides to do a set-aside IAW FAR subPart 8.405-5(a)(1). For more information. Click here.

Now, the DOD (ignore this Civilian agencies) does do things a little differently.  Per DFAR 219.201(d)(10), the Contracting activity small business specialists performs a review function by, “Reviewing and making recommendations for all acquisitions (including orders placed against Federal Supply Schedule contracts) over $10,000, except those under the simplified acquisition threshold that are totally set aside for small business concerns in accordance with FAR 19.502-2….”

Now, DOD has required that a review take place.  In no way is there a requirement that the small business specialist concur with the COs decision.  Instead, IAW DFAR subPart 219.201(d)(10)(B) and (C), requires the review of the DD2579 and for the small business specialist to refer their recommendations that are rejected by the CO to the SBA.  It does not require the CO to delay the acquisition. 

In fact, some DOD agencies also have informal internal procedures that let their COs move on with the acquisition if they do not have a reply from the small business specialist within a specified amount of time.  We did when I was a CO with the Navy.

Keep in mind that it is the DOD COs job to send the small business coordination form for review. It may be irrelevant what happens after that. Now, I am not suggesting that we have an antagonistic relationship with the small business specialist. They are in the position to assist our agencies in reaching our socioeconomic goals.

Instead, I am reminding COs that the ultimate authority for awarding any given contract is yours. We are the experts on our acquisitions. We sometimes cede our authority to others. It is not up to the small business program specialists, but instead, those of us that have warrants hanging on our wall by our desks.

Here is a link to the decision. Click Here.

I would be glad to hear your thoughts on the decision as well as this blog.

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