Transcript Multiple Award Contracts - National 8(a) Association

May 2014
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Jobs Act - Overview
FAR Interim Final Rule
SBA Rule
Partial Set Aside
Reserves
Order Set Aside
Limitations on Subcontracting/Nonmanufacturer
Documentation, Targets, Ramps
8(a)
NAICS Codes
Size
Recertification - Changes
Bundling and Consolidation
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 Defined Multiple Award Contract (JA §1311)
• multiple award IDIQ contract entered into under 41 USC
253h-253k
• any other multiple award IDIQ contract
 Required guidance that addresses (JA § 1331):
• set aside of part or parts of a multiple award contract for
small business;
• notwithstanding fair opportunity requirements, set aside of
orders placed against multiple award contracts for small
businesses; and
• reserve of one or more contract award(s) for small
businesses under full and open competition multiple award
procurements.
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 Subpart 19.5 - agencies may:
• set aside part or parts of a multiple-award contract for SBCs, including setasides for small business concerns under the 8(a), HUBZone, SDVOSB
and the WOSB Programs;
• set-aside orders placed against multiple-award contracts for SBCs,
including small businesses in the 8(a), HUBZone, SDVOSB, and WOSB
Programs; and
• reserve one or more contract awards for SBCs, including small businesses
in the 8(a), HUBZone, SDVOSB, and WOSB Programs, under full and
open multiple-award procurements.
 Subpart 8.4 – agencies may set-aside orders and BPAs under the GSA
Schedule;
 Subpart 16.5 - agencies may set-aside orders for SBCs in connection
with multiple award contracts and no justification for this exception
to fair opportunity required
 Added 52.219-13 which states that the CO will give notice of which
orders, if any, are to be set aside under a multiple award contract
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 SBA issued
a Proposed Rule on May 16, 2012 to
• implement JA provisions on Multiple Award
Contracts and Bundling/Consolidation
• reorganize part 125 and clarify other SBA
Proposed rule
regulations
77 FR 29130
 SBA issued
Final Rule on October 2, 2013, effective
Final rule
December 31, 2013
78 FR 61114
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 CO sets-aside a portion or portions of an acquisition for small businesses:
• Market research shows a total set aside is not appropriate - “rule of 2” can’t be met for entire contract;
• Requirement is severable into smaller, discrete portions or discrete categories (CLIN, SIN, Sector, FA,
etc.); and
• “Rule of two” will be met on set-aside part or parts of the acquisition
 This is different than how partial set asides are currently done in the FAR
 Partial set aside for one or more of the various types of small business programs
EXAMPLE:
CLIN 1: NAICS Code 541611, set-aside for HUBZone small businesses. Only those
Contractors awarded contracts under CLIN 1 would be eligible to receive a task order
solicitation under this CLIN.
CLIN 2: NAICS Code 541330, set-aside for Service-Disabled Veteran-Owned small
businesses. Only those Contractors awarded contracts under CLIN 2 would be eligible
to receive a task order solicitation under this CLIN.
CLIN 3: NAICS Code 541712, set-aside for 8(a) Participants under the 8(a) Program.
Only those Contractors awarded contracts under CLIN 3 would be eligible to receive a
task order solicitation under this CLIN.
 The specific program eligibility requirements would apply to the set-aside portion. For
example, for CLIN 3, the 8(a) program requirements would apply to that CLIN (e.g. offer
and acceptance at contract level). If CLIN set aside for WOSBs or EDWOSBs, then
must be eligible NAICS code.
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Offer Submission
For Contract
The small business offeror:
◦ must submit one offer that
addresses each part of the
solicitation for which it
wants to compete (partial
set aside, non set aside)
◦ may choose to submit an
offer on the part or parts of
the solicitation that have
been set-aside and/or on
the parts that have not been
set-aside.
Order Competition
The small business awardee:
o may compete for an order
issued against that part or
parts that are set-aside and
for which they submitted an
offer and received an award
o may compete for an order
against the portion that has
not been partially set-aside if
the small business submitted
an offer and received a
contract award for the nonset aside portion
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 Agencies have been “reserving” awards for small businesses for many years Congress provided specific authority and some framework for this.
 A CO may reserve one or more contract awards for small business concerns in
a full and openly competed multiple award contract when—
◦ the requirement is general in nature and cannot be broken into discrete
categories at contract award but will be clearly defined when an order is placed;
and
 at least two small business concerns will be able to perform part of the requirement and
will submit an offer at a fair market price; or
 at least one of the small business concerns can perform the entire requirement and will
submit an offer at a fair market price; or
 on a bundled contract, one or more small business concerns with a Small Business
Teaming Arrangement will submit an offer at a fair market price.
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 Offer Submission for Contract:
◦ must submit one offer that addresses each part of the solicitation for which it wants to compete
(reserve, non reserve); and
◦ may choose to submit an offer on the part or parts of the solicitation that have been reserved
and/or on the parts that have not been reserved.
 Order Competition
◦ If there are two or more reserved contracts awarded under one or more of SBA’s small business programs,
the agency may set-aside orders for those small business concerns pursuant to those programs.
EXAMPLE: reserve for WOSB, then set aside orders for WOSB; reserve for HUBZone,
then set aside orders for HUBZone
◦ If there are two or more contracts awarded under subpart 19.5 to different types of small businesses identified
in 19.003(a), the agency may set-aside the orders for all small business awardees that received an award
under the reserve.
EXAMPLE: reserve one award for 8(a), one for SDVOSB, one for SBCs, then set aside
orders for small businesses – this would be considered a small business reserve
 If there is only one contract award to a small business concern, the agency may issue orders directly to
that concern for work that it can perform.
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•
•
•
•
•
a multiple award CONTRACT is unsuitable in
its ENTIRETY for a small business set aside
BUT it is determined that SOME requirements
of that multiple award contract can be broken
down into clearly defined requirements
(segments, line items,…etc.) - suitable for a
small business set aside AT THE CONTRACT
Level
those items are identified as a “partial set aside”
in the solicitation and small businesses can
submit proposals to be awarded a set aside
contract
small businesses can submit proposals for the
unrestricted portion of that contract, the partial
set aside portion or both.
a partial small business set aside has the set
aside requirements (orders to be competed) in
place at time of contract award
Partial Set Aside
•
•
•
•
•
a multiple award CONTRACT is unsuitable in
its ENTIRETY for a small business set aside
used when contract requirements are NOT
clearly defined, AND cannot be broken down
individually at the contract level for order
competition
HOWEVER, CO has determined that the
possibility exists to set-aside some orders once
defined requirements are determined
the contract is competed on an unrestricted basis
(Large and Small businesses submit offers for
the multiple award contract), the contracting
officer notifies all potential offerors in the
solicitation of the intent to do a “reserve” of
some of the contract awards for small
businesses
awards are made to both large and small
businesses and once a requirement (order) is
identified that is suitable for small businesses,
that “order” competition may be “set-aside” for
small business participation
Reserve
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 Discretion
to set aside orders against
F&O competed multiple award contracts
 Applies
to GSA Schedule Contracts
 Insert
52.219-13 in RFP and contract
stating that agency “preserves” right to
set-aside orders
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Partial Set Aside
Market Research
“rule of two” will not
be met for the entire
contract
Acquisition Strategy
contract can be broken
into smaller, discrete
portions
Award/Orders
one or more awards made to SBCs, 8(a), HUBZone, SDVOSB, WOSB or
EDWOSB; orders competed amongst only SBCs awarded the partial set aside;
SBCs may be able to compete against other-than-small businesses for the non-set
aside portion if they also submitted an offer and received a contract on that portion
Reserve 1
at least two SBCs
contract cannot be
could perform part of broken into smaller,
contract, not all
discrete portions
because requirements
are not specific
two or more awards made to one or more types of SBCs (e.g., small business
reserve, 8(a) reserve, HUBZone reserve, SDVOSB reserve, WOSB or EDWOSB
reserve); orders competed amongst specified type of SBCs (e.g., SBCs, 8(a),
HUBZones, SDVOSBs, WOSBs or EDWOSBs); SBCs may be able to compete
against other-than-small businesses for the unreserved portion if they also
submitted an offer and received a contract on that portion
Reserve 2
at least two SBCs
contract cannot be
could perform part of broken into smaller,
contract, not all
discrete portions
because requirements
are not specific
Reserve 3
at least one SBC can contract cannot be
perform all of the
broken into smaller,
contract
discrete portions
because requirements
are not specific
two or more awards made to several different types of SBCs under a small business
reserve (e.g., one to 8(a), one to HUBZone, one to SDVOSB, one to WOSB or
EDWOSB); orders competed amongst all SBCs awarded on the reserve and small
business rules apply, not specific program rules; SBCs may be able to compete
against other-than-small businesses for the unreserved portion if they also
submitted an offer and received a contract on that portion
one award made to a SBC (e.g., one small business, one 8(a), one HUBZone, one
SDVOSB, or one WOSB or EDWOSB); orders can be issued directly to the SBC
awardee on the reserve; SBCs may be able to compete against other-than-small
businesses for the unreserved portion if they also submitted an offer and received a
contract on that portion
Reserve 4
no SBC can perform contract cannot be
because it is a
broken into smaller,
justified bundle
discrete portions
because requirements
are not specific
Set-aside of orders
“rule of two” will be
met for the
requirement for
orders
award made to a Small Business Teaming Arrangement on a bundled contract;
orders competed against all awardees
goods/services can be order competed amongst specified type of small business (e.g., SBCs, 8(a),
acquired using an
HUBZone, SDVOSB, WOSB or EDWOSB)
already established
F&O multiple award
contract
Comparing Partial Set Asides, Reserves and Order Set Asides
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 LOS and NMR apply
• Full or partial set aside, reserve or set aside of orders
 Compliance Period
• Full or partial set aside: base term and each subsequent option
period
 HOWEVER, CO may require concern to perform the LOS or
NMR for each order
• Reserve or order set aside under F&O: term of order
Exceptions to NMR
• Order is set aside against F&O contract and value is ≤$25,000,
offeror does not have to provide product of SB but product must
be manufactured or produced in US and offeror must meet size
requirements
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Although partial set aside, reserves and set aside of
orders on F&O contract are discretionary, CO must
document why he/she did not use these authorities
CO may set targets in contract with a reserve that
estimate $ value or % of total contract to be awarded
to small businesses
CO may use on ramps and off ramps to ensure
sufficient SBs on contract
• Discretion of CO to move a business from one portion of
contract to another (e.g., move from set aside to non set
aside)
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Offer and acceptance at contract level
• Except for orders set aside or issued sole source against
a F&O competed contract
 May sole source an order to an 8(a) against a multiple
award contract that has been set aside, partially set aside
or reserved for 8(a) IF
• the $ thresholds are met on the order
• offer and acceptance to 8(a) program on order
 Offer and acceptance not required on reserve contract
where orders will be competed amongst all SBC
awardees

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 Every solicitation, contract and order must contain at least one NAICS code and
corresponding size standard.
 Solicitations and contracts that will result in multiple awards of contracts may contain +1
NAICS code and size standard:
• acquisition requires more than one item and allows offers to be submitted on any or all of the
items
EXAMPLE:
CLIN 1: NAICS Code 541611. Only those Contractors awarded contracts under
CLIN 1 would be eligible to receive a task order solicitation under this CLIN.
CLIN 2: NAICS Code 541330. Only those Contractors awarded contracts under
CLIN 2 would be eligible to receive a task order solicitation under this CLIN.
CLIN 3: NAICS Code 541712. Only those Contractors awarded contracts under
CLIN 3 would be eligible to receive a task order solicitation under this CLIN.
• GSA Schedule Contract with multiple SINs and multiple NAICS codes
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CO must assign a single NAICS code and corresponding size
standard for each order issued under a multiple award contract
If single award contract, or multiple award contract with one
NAICS and size standard, then all orders will have that NAICS
and size standard.
If Multiple Award Contract with multiple NAICS codes, the CO
must select the NAICS code and corresponding size standard from
the contract that best describes the principle purpose of each order.
If order is issued against the GSA Schedule with multiple SINs,
CO must select the single NAICS code within the SIN that best
represents the acquisition for the order.
Contract with one NAICS
Order:
NAICS 561110
NAICS 561110
Office Administrative Services
Contact with multiple NAICS
NAICS 541511
Customer Computer Programming
NAICS 541430
Graphic Design Services
Order:
541430
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 Determining size for a contract
• Date the concern submits its initial offer (or other formal response to a
solicitation), which includes price
• If multiple award contract
• date the concern submits its offer for each discrete category (e.g., CLIN, SIN,
Sector, FA or equivalent) for which it represents it is small
• date the concern submits its offer for entire contract (and will determine
whether they meet the size standard for every discrete category (CLIN, SIN,
Sector, FA or equivalent))
 Determining size for an order
• Date the concern submits its offer for the contract (see above)
• If business was small for the underlying contract for the same NAICS code
and size standard as that assigned to the order, it is small for the order
• If business was small for a discrete category on the underlying contract, it
is small for each order issued against that category with the same NAICS
code and corresponding size standard
• Or date of recertification if requested or required by CO for the order
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


Recert required from
• both the acquired and acquiring business
• JV when one or more parties to JV has been acquired, merged
or is acquiring business
If set aside, partial set aside or reserve of a multiple award
contract and business recertifies as other than small, new
orders are not considered awards to SBs
Size recert rule now applies to HUBZone, SDVOSB and
WOSB programs for status purposes
Example:
SDVOSB at time of offer for contract, then SDVOSB for
life of contract and orders, unless recertification
(novation, merger, acquisition, +5 years (and then
options) or at contracting officer’s discretion for orders).
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Definition
Unsuitability
Reasons
Bundling
Combining two or more requirements for goods or services
previously provided or could have been performed under separate
smaller contracts into a solicitation for a single or multiple award
contract that is likely to be unsuitable for award to a small business
Award cannot be made to a SBC due to:
diversity, size or specialized nature of the performance; aggregate
dollar value of the award; geographical dispersion of the contract
performance sites; any combination of above
One or more small businesses performed or could have performed
the smaller contracts that were combined into the larger requirement
Consolidation
Combining two or more requirements for goods or services that have been provided to
or performed for the agency under two or more separate contracts each of which was
lower in cost than the total cost of the combined requirement; or
Combining two or more construction projects to be performed at two or more discrete
sites.
Award can still be made to SBC
Prior
performance
requirements
Estimated
Bundling: Any dollar value
contract amount, Substantial bundling (DoD): $8 M
including options Substantial bundling (GSA, NASA, DOE): $6 M
Substantial bundling (all other): $2.5 M
Justification
-the benefits of strategy substantially exceed benefits of each
Requirements
alternative contracting approach
-benefits include cost savings and/or price reduction, quality
improvements to save time or enhance performance, reduction in
acquisition cycles, better terms and conditions
-other benefits that equal 10% of contract or order value if contract or
order is $94M or less; or 5% of contract or order value or $9.4M,
whichever is greater, if contact or order exceeds $94M
-substantial savings in administrative or personnel costs occur when
cost savings is at least 10% of contract value
-there are separate justification requirements for substantial bundling
Justification
SPE or Under Secretary of Defense for Acquisition and Technology
Approval
and Deputy Secretary in civilian agencies may determine a bundle is
necessary and justified when it doesn’t meet the justification
requirements if:
-in the aggregate, the benefits are critical to the mission’s success
-the strategy provides maximum practicable participation by SBs
Notification
-Provide notification 30 days prior to issuing RFP to each SBC which
is performing on a contract that it intends to bundle
-Provide the SBs the name, phone number of the SBA PCR
-Publish on agency website the rationale for bundling
-Notify SBA of re-competition
One or more small or large businesses performed the smaller contracts that were
combined into the larger requirement
Follow-up
Evaluate savings and benefits achieved for contracts that are re-competed
Evaluate savings and benefits achieved for contracts that are recompeted
$2 M
Any value for construction contract
-the benefits of strategy substantially exceed benefits of each alternative contracting
approach (see bundling for definition of benefits)
-must conduct market research, identify alternative contracting approaches, make a
determination that consolidation is necessary and justified, identifies any negative
impact on SBs, and ensures steps taken to include SBs in acquisition strategy
SPE or CAO
Notify SBA of re-competition
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Questions?
Thank you!
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