The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.
The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that the plaintiff, The Tolliver Group, Inc. (Tolliver), did not hold.
In its protest, Tolliver argued, in part, that the Army’s actions violated the Rule of Two because the agency was required to determine whether two or more small businesses were capable of performing the requirement prior to choosing to put the procurement on the MAIDIQ contract.
The COFC’s decision confirms that the Rule of Two analysis applies before an agency elects to procure a requirement from a multiple-award contract (MAC) vehicle under FAR Part 16.5.
The Rule of Two requires contracting officers to set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns and (2) the award will be made at fair market prices.
In Tolliver, the Army argued that a Rule of Two analysis was not required because—according the Small Business Jobs Act, as implemented in 15 U.S.C. § 644(r)—federal agencies have the discretion to issue MACs without first conducting a Rule of Two analysis to determine whether it should be set aside for small businesses.
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It’s one of the most well-known acquisition programs in the country with a reach across more than 100 agencies, state and local governments and the private sector companies. If a company wants to play in the federal market, usually their first step is to get on the schedule.
In less than one month, contract holders on the General Services Administration’s Multiple Award Schedule will be able to sign offers and contract modifications digitally using DocuSign. The move will come ahead of more changes that will bring additional security to two contract management portals.
Ronnie Simpkins of Maryland pled guilty to the charge in December of last year.
Simpkins admitted that, for approximately six years between 2011 and 2017, he accepted cash, meals, and furniture from two Company A officials to use his position to help Company A maintain its GSA Schedule contract. Simpkins admitted to meeting the Company A officials over a dozen times at various restaurants in Northern Virginia, the Company A officials’ residences, and other places, often outside of normal GSA business hours and on weekends. At these meetings, the Company A officials treated Simpkins to meals and gave him cash totaling “thousands of dollars into the teens.” In July 2016, Simpkins accepted more than $2,000 worth of furniture paid for by the officials. Simpkins admitted to taking more than $12,000 in cash and furniture from the Company A officials.
