There’s been speculation that a recent Supreme Court decision would have broader implications for small business set-aside requirements under General Services Administration (GSA) Federal Supply Schedules (FSS).
A recent article highlights the split between the Kingdomware Techs., Inc. v. United States decision and GSA’s longstanding position that orders under GSA FSS contracts are not required to be set aside for small businesses, even when the Rule of Two is satisfied (which occurs when the contracting officer reasonably expects that at least two eligible small businesses will submit offers and that the award can be made at a fair and reasonable price). The Kingdomware decision states that “orders” issued under FSS contracts are contracts and that, in some instances, the Rule of Two requirement therefore applies to FSS orders.
There have been worries that the Kingdomware decision would provoke conversations and, potentially, litigation regarding the applicability of the Rule of Two to certain orders under GSA FSS contracts. Instead of waiting for guidance, GSA has posted a blog entry unequivocally asserting that Kingdomware does not alter GSA’s longstanding position. According to GSA, unless agency-specific statutes or regulations require a contracting officer to set aside a procurement, “FAR 8.405-5(1) states ‘preference programs of [P]art 19 are not mandatory in this subpart,’ and ordering activity contracting officers are provided the discretionary authority to set aside FSS orders.” GSA also concludes that contractors can “jump into the fourth quarter buying season with confidence knowing there has been no change in procedures for using the Federal Supply Schedules.”
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=513318