Small Business Overseas

1. You should only check the box for a small business set-aside if you are limiting competition to small business concerns in accordance with FAR 19.502.

2. You can call it a set-aside, but that would not be true.

3. Which box are you referring to?

I am supposing your acquisition is covered by FAR Part 6 because you made mention of a J&A. First order of business is to validate whether your acquisition is or is not covered by FAR Part 6. See FAR 6.001. Everything below supposes your acquisition is covered by FAR Part 6.

An acquisition supported by a J&A is under FAR Subpart 6.3.

A set-aside is under FAR Subpart 6.2. By definition, a set-aside is competitive. Or, in other words, a set-aside is never sole-source.

The presence of a J&A tells me you have a sole-source action under FAR Subpart 6.3, not a set-aside under FAR Subpart 6.2.

So, for your first question -- No, your acquisition supported by a J&A should not have a check in the set-aside box on the SF-1449 -- it might be a sole-source to a small business, but it isn't a set-aside.

Don answered your second question. The question of a set-aside is settled up front, before the solicitation is released -- not after the awardee is selected.

For your third question, the FAR does have something to say about a U. S. presence for small businesses. A mom and pop shop in Portugal employing only them and their daughter and with only $500 a year in revenues is not a small business -- see FAR 19.001 -- to be a small business for the purpose of FAR Part 19 and set-asides and so forth, the concern must have a place of business in the U. S. and make a significant contribution in taxes and so forth.

I recommend you review FAR Subparts 6.1, 6.2, and 6.3 so you can differentiate among them -- you will see that small businesses can get contracts under any of these, but set-asides occur only in 6.2.

Andrea,

By receiving "credit for small business contracting" do you mean having it count towards your agency's small business goals accomplishments? Do you report your contract actions in FPDS-NG?

Andrea, can you provide a source for general US policy to provide special consideration to small business firms overseas that would not qualify as US small business (other than perhaps certain foreign military sales cases, other like programs, or programs that are funded by the host country that include such agreements)?

I have a problem when acquisition personnel extend US policy for set-asides and other preference programs overseas when funded by our tax dollars.

Thank you all for your responses. USAID doesn't provide set asides to small businesses, so I guess given all your answers, I understand why the answer is 'no,' I shouldn't be calling any of these things a set-aside. We do report in FPDS-NG and I was thinking about our agency's small business goals.

P.E. We don't set aside for small businesses, so we are not extending such preferences overseas. We do have US policy that allows us to set aside for local entities in the name of building sustainability of our international development programs. Section 7077 of Public Law 112-74, the Consolidated Appropriations Act, 2012 (P.L.112-74) titled “Local Competition Authority" is one authority we use. The other is FAR Part 6.302 (5) I believe, along with AIDAR 706.302-5.

We use that a lot, and so I was wondering about also adding that to our agencies small business goals, but given the FAR interpretation, that cannot be.

I am supposing your acquisition is covered by FAR Part 6 because you made mention of a J&A. First order of business is to validate whether your acquisition is or is not covered by FAR Part 6. See FAR 6.001. Everything below supposes your acquisition is covered by FAR Part 6.

An acquisition supported by a J&A is under FAR Subpart 6.3.

A set-aside is under FAR Subpart 6.2. By definition, a set-aside is competitive. Or, in other words, a set-aside is never sole-source.

The presence of a J&A tells me you have a sole-source action under FAR Subpart 6.3, not a set-aside under FAR Subpart 6.2.

Where in Part 6 is set-aside defined as competitive?

Also, Part 6 is not the only place where J&As are prescribed. For example, a J&A is also be prescribed by FAR 8.405-6, “…The documentation or justification must be completed and approved…If the justification and approval is to cover only the portion of the acquisition which is brand-name, then it should so state…” and FAR 13.501, “Justifications and approvals are required under this subpart…”.

JW - I believe that FAR 19.502-2(B )(1) states that for a total small business set-aside there must be the expectation that offers will be received by at least 2 responsible small business concerns (aka, the "rule of two") offering the products of different small business concerns. I know you question was "Where in Part 6...", but I think that Part 19 addresses this better.

On a side note, in FAR 19.102(f)(1) it states "

"Except as provided in subparagraphs (f)(4) through (f)(7) of this section, in the case of Government acquisitions set-aside for small businesses, furnishes in the performance of the contract, the product of a small business manufacturer or producer. The end product furnished must be manufactured or produced in the United States or its outlying areas. The term “nonmanufacturer” includes a concern that can, but elects not to, manufacture or produce the end product for the specific acquisition. For size determination purposes, there can be only one manufacturer of the end product being acquired. The manufacturer of the end product being acquired is the concern that, with its own forces, transforms inorganic or organic substances including raw materials and/or miscellaneous parts or components into the end product. However, see the limitations on subcontracting at 52.219-14 that apply to any small business offeror other than a nonmanufacturer for purposes of set-asides and 8(a) awards."

So, based on what I can find, a set-aside must be competitive and must offer the products of US companies.

FAR 19.501(a ) “The purpose of small business set-asides is to award certain acquisitions exclusively to small business concerns. A “set-aside for small business” is the reserving of an acquisition exclusively for participation by small business concerns. A small business set-aside may be open to all small businesses”. This means (1) only SBs will be considered for award, and (2) the set-aside may or may not be open to all SBs.

19.502-2(a ) “is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns”. This does not mean two or more SBs are required for a set-aside; it only means that a set-aside would not be automatic when the KO makes a certain determination.

19.203(b ) “the requirement at 19.502-2(a ) to exclusively reserve acquisitions for small business concerns does not preclude the contracting officer from awarding a contract to a small business under the 8(a) Program, HUBZone Program, SDVOSB Program, or WOSB Program.” This means that you can set the acquisition aside for SBs and doing so does not prevent you from making a sole source award under the 8(a ) Program, HUBZone Program, etc.

jwomack, how do you square your interpretation of 19.203 with the fact that there is no sole source authority for ESWOSB/WOSB concerns?

Where in Part 6 is set-aside defined as competitive?

6.203 -- Set-Asides for Small Business Concerns.

(a) To fulfill the statutory requirements relating to small business concerns, contracting officers may set aside solicitations to allow only such business concerns to compete. This includes contract actions conducted under the Small Business Innovation Research Program established under Pub. L. 97-219.

I’ll expand my 19.203(b ) interpretation. It means the set aside may be more specifically reserved for award to a small business under the 8(a ) Program, HUBZone Program, SDVOSB Program, or WOSB Program. As with all set asides, awards may be made competitively or noncompetitively as authorized/directed by various statutes. Otherwise you would not be able to square the FAR Part 19 requirement to set aside with the ability to make sole source awards as allowable under some of these Programs.

6.203 does not forbid setting aside noncompetitive actions.

6.203 does not forbid setting aside noncompetitive actions.

So what? FAR 6.101( a ) states:

10 U.S.C. 2304 and 41 U.S.C. 3301 require, with certain limited exceptions (see Subparts 6.2 and 6.3), that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.

There is no exception to this policy for a sole source action on the basis of a firm's status as a small business concern.

Merriam-Webster defines “set-aside” as “something that is saved and used for a particular purpose; especially : a program that requires jobs, money, etc., to be saved for people who have not been given as much as others in the past”.

No mention of competition in the definition.

Merriam-Webster defines “set-aside” as “something that is saved and used for a particular purpose; especially : a program that requires jobs, money, etc., to be saved for people who have not been given as much as others in the past”.

No mention of competition in the definition.

Again, so what? There is no exception to the policy stated at FAR 6.101( a ) for a sole source action on the basis of a firm's status as a small business concern. Period.

Never said competition requirements of the FAR didn’t have to be satisfied. Only that a “set-aside”, by definition, means the acquisition was restricted. Exclamation point.

So do you concede that, for acquisitions subject to FAR part 6, a small business set-aside must be competitive?

Again, so what? There is no exception to the policy stated at FAR 6.101( a ) for a sole source action on the basis of a firm's status as a small business concern. Period.

What about 6.302-5? I'm missing your point.

joel,

FAR 6.302-5 permits sole source actions on the basis of a firm's status as 1) an 8(a) concern, 2) a HUBZone small business concern, or 3) SDVO small business concern. It does not permit a sole source action on the basis of a firm's status as (solely) a small business concern.

joel,

FAR 6.302-5 permits sole source actions on the basis of a firm's status as 1) an 8(a) concern, 2) a HUBZone small business concern, or 3) SDVO small business concern. It does not permit a sole source action on the basis of a firm's status as (solely) a small business concern.

O.K.. Yes, I agree with you.

Nothing to concede. I never claimed that setting aside an acquisition was grounds for foregoing any competition requirements of Part 6.

I’ll expand my 19.203(b ) interpretation. It means the set aside may be more specifically reserved for award to a small business under the 8(a ) Program, HUBZone Program, SDVOSB Program, or WOSB Program. As with all set asides, awards may be made competitively or noncompetitively as authorized/directed by various statutes. Otherwise you would not be able to square the FAR Part 19 requirement to set aside with the ability to make sole source awards as allowable under some of these Programs.

I think that Don's point is to the effect that 'set-asides are competitive actions and don't include sole source (non-competitive) actions'. I think that JW gave the impression he believes that non-competitive/sole-source actions are within the universe of "set-asides" under Part 6 and or 19.

Nothing to concede. I never claimed that setting aside an acquisition was grounds for foregoing any competition requirements of Part 6.

Here is what you wrote:

FAR 19.501(a ) “The purpose of small business set-asides is to award certain acquisitions exclusively to small business concerns. A “set-aside for small business” is the reserving of an acquisition exclusively for participation by small business concerns. A small business set-aside may be open to all small businesses”. This means (1) only SBs will be considered for award, and (2) the set-aside may or may not be open to all SBs.

You also wrote:

6.203 does not forbid setting aside noncompetitive actions.

If your point was not that a small business set-aside could be noncompetitive, then what was your point?

JW gave the impression he believes that non-competitive/sole-source actions are within the universe of "set-asides" under Part 6 and or 19.

Correct. With 6.302-5 identifying a number of authorized noncompetitive set-asides.

If your point was not that a small business set-aside could be noncompetitive, then what was your point?

Some set-asides could be noncompetitive. See 6.302-5 in conjunction with 19.501(a ) and 19.203(b ) (quoted in post #9, above).

Correct. With 6.302-5 identifying a number of authorized noncompetitive set-asides.

Some set-asides could be noncompetitive. See 6.302-5 in conjunction with 19.501(a ) and 19.203(b ) (quoted in post #9, above).

jw, I agree with Don that set-asides refer to competitive acquisitions not sole source actions. Part 19 separates the discussion of set-asides for small business and for various classes of SDB's from sole source awards to the various classes of SDB's.

For example:

19.1309 – Contract clauses.

(a) The contracting officer shall insert the clause 52.219-3, Notice of HUBZone Set-Aside or Sole Source Award, in solicitations and contracts for acquisitions that are set aside, or reserved for, or awarded on a sole source basis to, HUBZone small business concerns under 19.1305 or 19.1306.

19.1305 – HUBZone Set-Aside Procedures.

19.1306 – HUBZone Sole Source Awards.

52.219-3 – Notice of HUBZone Set-Aside or Sole Source Award.

(a) Definition. See 13 CFR 125.6(e) for definitions of terms used in paragraph ©.

( Applicability. This clause applies only to--

(1) Contracts that have been set aside or reserved for, or awarded on a sole source basis to, HUBZone small business concerns;

(2) Part or parts of a multiple-award contract that have been set aside for HUBZone small business concerns; and

(3) Orders set-aside for HUBZone small business concerns under multiple-award contracts as described in 8.405-5 and 16.505( (2)(i)(F).

See also 19.203 ( b ) that you cited. I didn't read the term "set-aside":

...the requirement at 19.502-2(a) to exclusively reserve acquisitions for small business concerns does not preclude the contracting officer from awarding a contract to a small business under the 8(a) Program, HUBZone Program, SDVOSB Program, or WOSB Program.

Note that Subpart 19.5 deals with competitive set-asides for small business concerns, not sole source awards, which are under separate paragraphs.

Sole source awards are under separate paragraphs from set-asisdes in Part 19, except where they are discussed together as separate types of awards. See, for example: under 19.8 ( e ):

(e) The contracting officer shall comply with 19.203 before deciding to offer an acquisition to a small business concern under the 8(a) Program. For acquisitions above the simplified acquisition threshold, the contracting officer shall consider 8(a) set-asides or sole source awards before considering small business set-asides.

The term "set-aside" is not used in FAR 6.302-5. The only mention of anything related to small business programs in the subsection is in paragraph ( b ):

(4) Sole source awards under the 8(a) Program (15 U.S.C. 637), but see 6.303 for requirements for justification and approval of sole-source 8(a) awards over $20 million. (See Subpart 19.8.)

(5) Sole source awards under the HUBZone Act of 1997—15 U.S.C. 657a (see 19.1306).

(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. 657f).

The FAR distinguishes "set-asides" from each of the sole source awards mentioned above. First, as joel pointed out, at FAR 19.800( e ):

For acquisitions above the simplified acquisition threshold, the contracting officer shall consider 8(a) set-asides or sole source awards before considering small business set-asides.

Then, at FAR 19.1305( a )(3):

Shall consider HUBZone set-asides before considering HUBZone sole source awards (see19.1306) or small business set-asides (see Subpart 19.5).

Then, at FAR 19.1405( a )(3):

Shall consider SDVOSB set-asides before considering SDVOSB sole source awards (see 19.1406) or small business set-asides (see Subpart 19.5).

In the context of the FAR, it makes no sense to refer to any of the sole source awards listed at FAR 6.302-5( b ) as "set-asides."

The term "set-aside" is not used in FAR 6.302-5. The only mention of anything related to small business programs in the subsection is in paragraph ( b )...

...The FAR distinguishes "set-asides" from each of the sole source awards mentioned above.

...In the context of the FAR, it makes no sense to refer to any of the sole source awards listed at FAR 6.302-5( b ) as "set-asides."

"Yeah - what he said!" By the way, I just learned this yesterday and confirmed it today.

I still say a set-aside is always competitive.

F&OC acquisitions are covered by FAR Subpart 6.1.

F&OC after exclusion of sources acquisitions are covered by FAR Subpart 6.2. This includes set-asides for small businesses (competitive) (6.203), set-asides for 8( a ) (competitive) (6.204), set-asides for HUBZones (competitive) (6.205), set-asides for SDVOSBs (competitive) (6.206), and set-asides for EDWOSB and WOSBs (competitive) (6.207).

Other than full and open competition acquisitions are covered by FAR Subpart 6.3. This includes sole-source for FPI (6.302-5( b )( 1 )), NIB/NISH (6.302-5( b )( 2 )), GPO (6.302-5( b )( 3 )), 8( a ) (6.302-5( b )( 4 )), HUBZone (6.302-5( b )( 5 ), and SDVOSBs (6.302-5( b )( 6 )).

So, for example, a sole-source award to a HUBZone small business concern under FAR 6._3_02-5( b )( 5 ) is not a HUBZone set-aside, which is under FAR 6.205. Look at the FAR 6.205 and see. We are professionally sloppy when we refer to all of these as set-asides.

A J&A is always under FAR Subpart 6.3. Always. A similar document under FAR 16.505( b )( 2 ) is called a JEFO (Justification for an Exception to Fair Opportunity). A similar document under FAR Subpart 8.4 is called a LSJ (Limited Sources Justification). A similar document under FAR Part 13 is called a SSJ (Sole Source Justification). We are professionally sloppy when we refer to all of these as J&As.

It appears that the use of FAR 19 abroad is a matter of agency preference. So do. So don't. Some agencies are not consistent in how they approach this. SBA chimes in on it being applicable i think.

See previous discussion on page 1 plus see FAR 19.000 ( b ):

"( b ) This part, except for Subpart 19.6, applies only in the United States or its outlying areas. Subpart 19.6 applies worldwide."

I did not check the SBA CFR.

It appears that the use of FAR 19 abroad is a matter of agency preference. So do. So don't. Some agencies are not consistent in how they approach this. SBA chimes in on it being applicable i think.

See http://www.gao.gov/assets/660/657944.pdf.