Set-Asides for Small Businesses: Legal Requirements and Issues
Released: 2016-01-28T00:00:00

T his report provides an overview of set-asides for small businesses, key legal requirements governing agencies' use of set-asides, and recent litigation regarding agencies' use (or non-use) of set-asides when conducting particular procurements. The term "set-aside" is commonly used to refer to a competition in which only small businesses may compete. However, this usage can obscure the fact that some set-asides involve small purchases that may be made by means of simplified acquisition procedures that entail less than "full and open competition," as well as by the sealed bidding or contracting by negotiation that is more commonly associated with set-asides of larger contracts. In order to better distinguish between these two categories of procurements, this report refers to the former as "purchases reserved for small businesses," and the latter as "competitive set-asides." In addition, some, but not all, of the statutory provisions pertaining to competitive set-asides also authorize agencies to award contracts without competition—by negotiating directly with a small business—when contracts cannot be set aside for small businesses (e.g., because offers cannot reasonably be expected from two or more small businesses), or when certain other conditions are met. Such awards are here referred to as "sole-source awards."

Small business set-asides are of perennial interest to Congress because of their role in effectuating the long-standing

declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government (including but not limited to contracts or subcontracts for maintenance, repair, and construction) be placed with small business enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen the overall economy of the Nation.

In support of this policy, Congress has authorized agencies to conduct set-asides and make sole-source awards to small businesses, among other things. Specifically, with various provisions of the Small Business Act of 1958, as amended, Congress has permitted federal agencies to conduct competitive set-asides for small businesses, as well as for specific types of small businesses (i.e., small disadvantaged businesses (SDBs) participating in the "8(a) Program," Historically Underutilized Business Zone (HUBZone) small businesses, women-owned small businesses (WOSBs), and service-disabled veteran-owned small businesses (SDVOSBs)). The Small Business Act also authorizes federal agencies to make sole-source awards to 8(a) participants, HUBZone small businesses, SDVOSBs, and WOSBs in certain circumstances, as well as grant price evaluation adjustment preferences to HUBZone small businesses in unrestricted competitions. In addition, the Veterans Benefits, Health Care, and Information Technology Act of 2006, as amended, grants the Department of Veterans Affairs (VA) additional authority to conduct competitive set-asides for, and make sole-source awards to, SDVOSBs and other veteran-owned small businesses (VOSBs).

Congress has also sought to promote its "declared policy" of assistance to small businesses by requiring the establishment of governmentwide and agency-specific goals for the percentage of federal contract and/or subcontract dollars awarded to small businesses each year. The President is statutorily required to establish governmentwide goals, which must call for at least 23% of federal contract dollars to be awarded to small businesses (including 5% of federal contract and subcontract dollars to WOSBs; 5% to SDBs; 3% to HUBZone small businesses; and 3% to SDVOSBs). Individual agencies, after "consultation" with the Small Business Administration (SBA), are also statutorily required to set agency-specific goals. These goals must represent, "for that agency, the maximum practicable opportunity" for small businesses to participate in the contracts awarded by the agency, and the "cumulative annual prime contract goals for all agencies [must] meet or exceed the annual Governmentwide prime contract goal established by the President." Set-asides for small businesses constitute one of the primary means by which agencies may meet their goals for contracting and subcontracting with small businesses. However, these goals are not quotas, and the set-aside programs do not serve or seek to ensure that 23% of all federal contract dollars, for example, is awarded to small businesses.

The 112 th Congress enacted legislation that expands agencies' authority to conduct competitive set-asides for WOSBs, while the 113 th Congress enacted legislation that permits sole-source awards to such firms.

Interest in the set-aside programs seems likely to continue in the 114 th Congress, in part, because a case currently pending before the Supreme Court involves small business set-asides. Specifically, on February 22, 2016, the Court is scheduled to hear oral arguments in Kingdomware Technologies, Inc. v. United States , a case in which a SDVOSB challenges the Department of Veterans Affairs' procurement of certain supplies and services through the Federal Supply Schedules, rather than through a set-aside for SDVOSBs or VOSBs.

The report begins with an overview of the legal authorities governing set-asides and related contracting preferences for small businesses. Then, it turns to the legal issues, including (1) the implementation of the "Rule of Two," which permits or, in some cases, requires that agencies use set-asides when offers can reasonably be expected from at least two small businesses, and the award made at a fair price; (2) when agencies may be required to use set-asides for small businesses; (3) partial set-asides of contracts that cannot be totally set aside for small businesses; (4) set-asides under certain indefinite-delivery/indefinite-quantity (ID/IQ) contracts (i.e., contracts that call for the contractor to supply quantities of goods or services that are unknown at the time of contracting to the government upon the government's order); (5) priority of and among the set-aside programs; and (6) limitations on the use of small business set-asides.

Legal Authorities Governing Set-Asides

The Small Business Act of 1958, as amended, is the primary authority governing set-asides and related contracting preferences for small businesses. By its terms, or as implemented by SBA and the Federal Acquisition Regulatory Council (FAR Council), this act generally provides that "small purchases" are reserved for small businesses, and authorizes agencies to conduct competitive set-asides and, in some cases, grant other contracting preferences to small businesses. However, it is important to note that one of the primary regulations implementing, in part, the Small Business Act—the Federal Acquisition Regulation (FAR)—applies only to the acquisition of goods and services by executive branch agencies with appropriated funds. The FAR also excludes certain contracts (e.g., those performed overseas) from its requirements pertaining to small business contracting, as discussed below. The Small Business Act does not expressly contemplate such exclusions. However, agency regulations are generally entitled to deference so long as Congress has not directly spoken to the precise question at issue, and the agency's reasonable interpretation of the statute is consistent with the purposes of the statute. "[I]f the statute speaks clearly 'to the precise question at issue,'" the tribunal "must give effect to the unambiguously expressed intent of Congress," regardless of what the agency regulation provides. However, where "the statute is silent or ambiguous with respect to the specific issue," the tribunal "must sustain the [a]gency's interpretation if it is 'based on a permissible construction' of the Act."

In addition, Congress has supplemented the provisions of the Small Business Act by enacting additional legislation requiring the Department of Veterans Affairs (VA) to set aside contracts for SDVOBs and other VOSBs in certain circumstances.

Small Purchases "Reserved" Under the Small Business Act

Congress amended the Small Business Act in 1978 to address agencies' use of small businesses when making "small purchases." Specifically, the act provides that

Each contract for the purchase of goods and services that has an anticipated value greater than [$3,500] but not greater than [$150,000] shall be reserved exclusively for small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and are competitive with regard to the quality and delivery of the goods or services being purchased.

This provision uses "shall," which has been construed as indicating mandatory agency action (see infra " Requirements to Use Small Business Set-Asides "), and is generally taken to mean that agencies must award contracts valued at between $3,500 and $150,000 to small businesses, so long as the contracting officer is able to obtain offers from at least two small businesses that are competitive as to price and other terms. However, certain regulations implementing this provision of the Small Business Act effectively narrow its scope. First, Part 19 of the FAR, which addresses "small business programs," generally "applies only in the United States or its outlying areas," which means that certain small contracts awarded and/or performed overseas are not necessarily set-aside for small businesses. Similarly, Subpart 8.4 of the FAR, which governs the use of the Federal Supply Schedules, generally provides that Part 19 of the FAR "does not apply to BPAs [blanket purchase agreements] or orders placed against Federal Supply Schedule contracts." (The Schedules are commonly used in purchasing commercial goods and services of the sort that small businesses could potentially supply. ) In addition, the FAR authorizes agencies to solicit small purchases on an unrestricted basis if they receive "no acceptable offers from responsible small business concerns."

Agencies may use several different methods in making "small purchases," which are treated differently from larger purchases under federal procurement law. With larger purchases, agencies must generally obtain "full and open competition through the use of competitive procedures," which generally means that all responsible sources are permitted to submit bids or offers. In contrast, with small purchases, agencies must generally "promote competition to the maximum extent practicable," and may rely upon "simplified acquisition procedures." These procedures include

governmentwide commercial purchase cards , or purchase cards "similar in nature to ... commercial credit card[s]" issued to authorized personnel for use in acquiring and/or paying for goods or services; purchase orders , or orders specifying the quantity of goods or services requested and a date of delivery, among other things; blanket purchase agreements , or "charge accounts" with qualified sources of supply that are used to fill anticipated repetitive needs for supplies or services; imprest funds (i.e., cash funds of fixed amounts established by an advance of funds for use periodically in making relatively small cash payments), and third-party drafts (i.e., agency bank drafts similar to checks); and Standard Form 44, Purchase Order-Invoice-Voucher, which is "designed primarily for on-the-spot, over-the-counter purchases of supplies and nonpersonal services while away from the purchasing office or at isolated [locations]."

Agencies could potentially use any of these simplified procedures when awarding a contract "exclusively reserved" for small businesses. Alternatively, they could use sealed bidding or contracting by negotiation of the sort generally associated with full and open competition. With sealed bidding , agencies open bids publicly at a specified time and place; evaluate them without discussions with bidders; and award the contract to the lowest-priced responsible bidder. With contracting by negotiation , in contrast, agencies generally conduct discussions or negotiations with at least those vendors whose offers fall within the "competitive range" and award the contract to the offeror whose proposal represents the "best value" for the government considering price and other factors included in the solicitation.

Competitive Set-Asides and Other Preferences Under the Small Business Act

When the value of a contract awarded under the authority of the Small Business Act exceeds the simplified acquisition threshold (generally $150,000), somewhat different rules apply. Larger contracts are like "small purchases" in that the small business requirements of the FAR generally do not apply to contracts awarded and/or performed outside the United States, and agencies are not required to set-aside orders issued under Federal Supply Schedule contracts for small businesses. However, larger purchases differ in that agencies may not use simplified acquisition procedures, but instead must use either sealed bidding or contracting by negotiation when conducting a competitive set-aside. In addition, the type of small business involved (e.g., WOSB, SDVOSB) matters significantly more with larger purchases than with "small" ones, since the circumstances in which agencies may set aside contracts for small businesses (or grant other preferences) can vary depending upon the type of small business involved.

Section 15(a) of the Small Business Act of 1958 arguably paved the way for small business set-asides by providing that

[t]o effectuate the purposes of this Act, small-business concerns within the meaning of this Act shall receive any award or contract or any part thereof, and be awarded any contract for the sale of Government property, as to which it is determined by the [Small Business] Administration and the contracting procurement or disposal agency (1) to be in the interest of maintaining or mobilizing the Nation's full productive capacity, (2) to be in the interest of war or national defense programs, (3) to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government are placed with small-business concerns, or (4) to be in the interest of assuring that a fair proportion of the total sales of Government property be made to small-business concerns.

By at least 1962 , regulations implementing Section 15(a) treated the existence of a certain number of offerors and pricing as tantamount to a determination that setting aside a procurement for small businesses is "in the interest of assuring" that small businesses receive a "fair proportion" of government contracts, among other things. Specifically, the 1962 regulations provided that an acquisition was to be set aside for small businesses when there was a "reasonable expectation" that offers would be obtained from a "sufficient number of small business concerns so that awards will be made at reasonable prices." However, other agencies subsequently developed similar language, which expressly called for contracts to be set aside for small businesses whenever the contracting officer reasonably expected offers from at least two small businesses, and the award could be made at fair market price. The latter provisions came to be known as the "Rule of Two" because of the focus on there being at least two small businesses.

The Rule of Two was incorporated in the FAR when the FAR was promulgated in 1983, and currently appears in both the FAR and SBA regulations. Specifically, Section 19.502-2(b) of the FAR provides that

[t]he contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) [o]ffers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ...; and (2) [a]ward will be made at fair market prices,

while SBA regulations similarly direct that agencies "shall" set aside any acquisition whose value exceeds the simplified acquisition threshold (generally $150,000) for small businesses when the Rule of Two is satisfied. This language—and particularly the use of "shall"—has generally been taken to mean that agencies must set aside acquisitions whenever the Rule of Two is satisfied, as discussed below. However, even if "shall" is construed to indicate mandatory agency action here, any set-aside for small businesses under the authority of Section 15(a) and its implementing regulations would appear to have lower "priority" than set-asides for specific types of small businesses, as is also discussed below.

Section 15(a) has historically not been construed as authorizing agencies to make sole-source awards to small businesses in circumstances when such an award could not otherwise be made (e.g., single source, urgent and compelling circumstances).

Small Disadvantaged Businesses Participating in the 8(a) Program

Following the authorization of set-asides for small businesses generally, Congress granted agencies additional authority to set aside contracts for, or grant other contracting preference to, specific types of small businesses (i.e., small businesses that meet other eligibility requirements beyond size). The earliest of the programs for a specific type of small businesses was that for certain "small businesses owned and controlled by socially and economically disadvantaged individuals" ("small disadvantaged businesses" (SDBs)). With amendments made to the Small Business Act in 1978, Congress required SBA to establish a "capital development ownership program" for SDBs, and authorized other agencies to award contracts to SBA for subcontracting to firms participating in this program (commonly known as the 8(a) Program). However, in practice, particularly recently, SBA has delegated its authority to subcontract to other agencies, which effectively enter contracts with 8(a) participants in the same way that they enter contracts with other small businesses.

The procedures for subcontracting/contracting with 8(a) participants depend upon the anticipated value of the contract, as well as who owns the 8(a) firm. Section 8(a) establishes a "competitive threshold"—$4 million ($7 million for manufacturing contracts)—and imposes different requirements upon contracts whose anticipated value is at or below the competitive threshold than upon those whose anticipated value exceeds the competitive threshold.

Contracts whose value is at or below the competitive threshold are typically awarded without competition, and may be competed among 8(a) firms only with the approval of the SBA's Office of Business Development. Contracts whose value exceeds the competitive threshold must generally be competed whenever the Rule of Two is satisfied (i.e., the contracting officer reasonably expects offers from at least two responsible 8(a) firms, and the award can be made at fair market price).

However, if the Rule of Two is not satisfied, or if SBA accepts the requirement on behalf of a firm owned by an Indian tribe, an Alaska Native Corporation, or, in the case of Department of Defense procurements, a Native Hawaiian Organization, the agency may make a sole-source award of a contract whose value exceeds the competitive threshold.

Section 8(a) does not authorize agencies to grant price evaluation preferences to the bids or offers of SDBs in unrestricted competitions (i.e., competitions in which all firms may compete). SDBs, including 8(a) firms, were once eligible for price evaluation preferences under other authorities. However, such authorities have expired or been found unconstitutional, and are no longer in effect.

HUBZone Small Businesses

The next set-aside program created was that for HUBZone small businesses. Commonly known as the "HUBZone Act," Title VI of the Small Business Reauthorization Act of 1997, as amended, provides that a contract opportunity may be set aside for HUBZone small businesses whenever the Rule of Two is satisfied (i.e., the contracting officer reas onably expects offers from at least two responsible HUBZone small businesses, and the award can be made at fair market price).

The act also authorizes sole-source awards to HUBZone small businesses whenever (1) the business is determined to be responsible with respect to the performance of the contract, and the contracting officer does not reasonably expect that two or more HUBZone businesses will submit offers; (2) the anticipated award will not exceed $4 million ($7 million for manufacturing contracts); and (3) the award can be made at a fair and reasonable price.

In addition, the HUBZone Act authorizes agencies to grant price evaluation preferences of up to 10% to the bids or offers of HUBZone small businesses in unrestricted competitions. This means that, when determining which offer has the lowest price or represents the "best value" for the government, agencies may add up to 10% to the price of all offers except those offers received from HUBZone or certain other small businesses.

Women-Owned Small Businesses

Although set-asides for women-owned small businesses (WOSBs) were not implemented until 2011, the set-aside program for such firms was the next one created. The Small Business

Reauthorization Act of 2000 amended Section 8(m) of the Small Business Act in a way that SBA has construed as authorizing agencies to set aside contracts for economically disadvantaged and other WOSBs in certain circumstances. Specifically, as implemented by SBA, Section 8(m) permits agencies to set aside contracts for economically disadvantaged WOSBs when (1) the "rule of two" is satisfied (i.e., the contracting officer reasonably expects offers from at least two

responsible WOSBs, and the award can be made at fair market price); and (2) the proposed procurement involves an industry in which WOSBs

are underrepresented . It also permits set-asides for other WOSBs (i.e., those that are not economically disadvantaged) when (1) the Rule of Two is satisfied, and (2) the proposed procurement involves an industry in which WOSBs are substantially underrepresented . Initially, agencies could only set aside contracts whose value was below $4 million ($6.5 million in the case of manufacturing contracts). However, the 112 th Congress enacted legislation that authorizes set-asides of contracts of any value for WOSBs. Subsequently, the 113 th Congress enacted legislation that also authorizes agencies to award sole-source contracts to WOSBs so long as the award can be made at a fair and reasonable price, and the anticipated value of the contract is below $4 million ($6.5 million for manufacturing contracts).

WOSBs are not eligible for price evaluation preferences in unrestricted competitions.

Service-Disabled Veteran-Owned Small Businesses

Finally, the Veterans Benefits Act of 2003 amended the Small Business Act to establish the set-aside program for service-disabled veteran-owned small businesses (SDVOSBs). The 2003 amendments authorize agencies to set aside procurements for SDVOSBs whenever the Rule of Two is satisfied (i.e., the contracting officer reasonably expects offers from at least two responsible SDVOSBs, and the award can be made at fair market price).

The 2003 amendments also authorize sole-source awards to SDVOSBs when (1) the contracting officer does not reasonably expect that two or more SDVOSBs will submit offers; (2) the anticipated award will not exceed $4 million ($6.5 million for manufacturing contracts); and (3) the award can be made at a fair and reasonable price.

SDVOSBs are not eligible for price evaluation preferences in unrestricted competitions.

Veterans Benefits, Health Care, and Information Technology Act

Enacted three years after the Veterans Benefits Act, discussed above, the Veterans Benefits, Health Care, and Information Technology Act of 2006 created another set-aside program for veteran-owned small businesses (VOSBs). However, unlike the program for SDVOSBs under the Small Business Act, which applies to procurements government wide, this program is limited to procurements of the Department of Veterans Affairs (VA), and veterans who are not disabled are eligible to participate. Additionally, under this program, VOSBs must have their eligibility verified by VA. They may not self-certify as to their eligibility as they can for the SDVOSB set-aside program under the Small Business Act.

The 2006 act authorizes the VA to set aside procurements for VOSBs, as well as make sole-source awards to them, in order to reach VA's goals for contracting and subcontracting with VOSBs. Specifically, c ontracts whose value is less than $150,000 may be awarded on a set-aside or sole-source basis at the contracting officer's discretion. Contracts valued in excess of $150,000 must generally be awarded via a set-aside if the contracting officer has a reasonable expectation that at least two VOSBs will submit offers, and the award can be made at a fair and reasonable price "that offers best value to the United States." However, sole-source awards of contracts valued in excess of $150,000 can be made if (1) the contracting officer determines that the business is a responsible source with respect to the performance of the contract; (2) the anticipated price of the contract (including options) does not exceed $5 million; and (3) the award can be made at a fair and reasonable price "that offers best value to the United States."

Under the 2006 act, awards to SDVOSBs have "priority" over awards to VOSBs, which, in turn, have precedence over awards to other small businesses, as discussed below.

The 2006 act does not authorize price evaluation preferences for the bids or offers of SDVOSBs or VOSBs.

Legal Issues

Legal questions about small business set-asides have arguably become more common in recent years, particularly since the Government Accountability Office (GAO) issued its 2008 decision in International Program Group, Inc ., recommending that set-asides for HUBZone small businesses be given "precedence" over set-asides for SDVOSBs because the statute and regulations governing set-asides for HUBZone small businesses, at that time, used "shall," and "shall" indicates mandatory action. Prior to International Program Group , GAO had issued decisions indicating that agencies should have considered set-asides in certain circumstances, and GAO and the federal courts had even found that HUBZone set-asides were mandatory when the Rule of Two was satisfied. Nonetheless, notwithstanding such decisions, at least some agencies viewed themselves as retaining discretion to select which set-aside program to use (e.g., so as to maximize their performance vis-à-vis particular small business contracting goals). In particular, prior to GAO's 2008 decision, SBA had taken the position that agencies could determine whether to use HUBZone set-asides in specific procurements, and the FAR Council had proposed amending the FAR expressly to provide that "[t]here is no order of precedence among the 8(a), HUBZone, and SDVOSB programs."

By rejecting the view that agencies retained discretion to determine whether to use a HUBZone set-aside when the Rule of Two was satisfied, GAO's decision in International Program Group and related decisions in 2008-2010 appear to have prompted greater scrutiny of the statutory and regulatory language pertaining to small business set-asides and, specifically, provisions that could potentially be construed as requiring agencies to use—or not use—set-asides in particular procurements. There has also been increased interest in implementation of the Rule of Two since any requirement that agencies set aside contracts for small businesses is generally contingent upon the contracting officer reasonably expecting offers from at least two small businesses, and the award being made at fair market price.

Implementation of the Rule of Two

As discussed above, under the Rule of Two, contracting officers are generally only authorized (or, in some cases, required) to set aside an acquisition for small businesses if they reasonably expect that offers will be received from at least two responsible small businesses, and the contract can be awarded at fair market price. In making these determinations (i.e., whether offers may be expected from at least two small businesses, fair market price), contracting officers engage in market research , or the process of "collecting and analyzing information about capabilities within the market to satisfy agency needs." However, the FAR's guidance on conducting market research is arguably limited, and agencies are generally permitted to use any "reasonable method" to determine the availability of small businesses. Permissible measures include considering prior procurement history, market surveys, and advice from the agencies' small business specialists and technical personnel. On the other hand, agency market research efforts have been found to have been insufficient when the set-aside determination was based on outdated or incomplete information, or on an unreasonably limited search of the potential small business market.

In determining the availability of potential small business offerors, the question is not just the existence of the requisite number of firms (i.e., at least two), but also their ability to perform, which can depend, in part, upon firms' current obligations under other contracts. In addition, the receipt of multiple responses from small businesses during the course of market research does not necessarily mean that a small business set-aside must be used.

"Responsible" Small Businesses

Contracting officers would appear to have some discretion in determining, based upon their market research, whether at least two responsible businesses are capable of performing. The word responsible is generally a term of art when used in reference to federal contractors, indicating that the contractor: (1) has adequate financial resources to perform, or the ability to obtain them; (2) is able to comply with the required or proposed delivery or performance schedule; (3) has a satisfactory performance record; (4) has a satisfactory record of integrity and business ethics; (5) has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them; (6) has the necessary production, construction, and technical equipment and facilities, or the ability to obtain them; and (7) is otherwise qualified and eligible to receive an award under applicable laws and regulations. However, agencies do not have to make an actual determination of responsibility with respect to prospective small business offerors when determining whether the Rule of Two is satisfied. Rather, they must make an "informed business judgment" that there are at least two small businesses expected to submit offers which are capable of performing.

Fair Market Price

Contracting officers appear to have similar discretion in determining whether they can reasonably expect an award at fair market price. The FAR defines fair market price , for purposes of the small business programs, as "a price based on reasonable costs under normal competitive conditions and not on lowest possible cost," and prescribes two methods of assessing it. One method is used when considering a set-aside for 8(a) firms; the other, when considering set-asides for non-8(a) firms.

With set-asides under the 8(a) program , fair market price is generally estimated using cost or price analysis and considering commercial prices for similar products and services, available in-house cost estimates, data submitted by SBA or the contractor, and data obtained from other agencies. With set-asides for WOSBs, SDVOSBs, HUBZone small businesses, and other small businesses, fair market price is determined using the price analysis techniques articulated in FAR Section 15.404-1(b). These generally provide for the contracting officer to obtain uncertified data on the prices at which the same or similar items were sold, and then determine whether that data is adequate for evaluating the price's reasonableness. Permitted price analysis techniques for determining a reasonable price include comparing the offerors' proposed prices, or comparing the prices to historical prices paid for the same or similar items.

However, regardless of whether the contemplated set-aside is for 8(a) firms or other small businesses, the focus is upon whether there is a reasonable expectation of an award at a fair market price, not upon whether the contracting officer is actually assured of such a price. Moreover, in making this determination, a contracting officer may reasonably rely upon such things as information concerning prior procurements, and the expectation that there will be adequate price competition. For example, GAO has found that it was reasonable for an agency to expect an award at fair market price when it had considered information on prior procurements which showed that small businesses had successfully performed at reasonable prices; conducted market research that indicated two incumbent small businesses and a third firm, at a minimum, intended to compete for the requirement; and received expressions of interest from other small businesses.

Requirements to Use Small Business Set-Asides

When a statute or regulation authorizing set-asides for small businesses uses the word "shall," it could potentially be construed as requiring agencies to set aside particular procurements for small businesses if the Rule of Two is satisfied, or other conditions are met. "Shall" has long been viewed as indicating "mandatory intent," unless its context indicates otherwise, and courts and commentators have historically applied this principle to the three statutory and regulatory provisions which use "shall" when referring to small business set-asides. These provisions include (1) Section 15(a) of the Small Business Act, which authorizes set-asides for small businesses generally; (2) Section 19.502-2 of the FAR, which implements, in part, Section 15(a) of the Small Business Act; and (3) the Veterans Benefits, Health Care, and Information Technology Act of 2006, in its provisions authorizing competitive set-asides for SDVOSBs and VOSBs. However, in practice, the extent of the preference for small businesses under these authorities may not be as broad as one might expect on the view that "shall" indicates mandatory agency action. As discussed below, the FAR exempts certain procurements conducted through the programs for various types of small businesses (e.g., WOSBs, SDVOSBs) from the requirements pertaining to set-asides for small businesses generally, and a federal court recently suggested that the Veterans Benefits Act uses "shall" within a context which leaves the VA with at least some discretion as to whether to use set-asides in particular procurements.

The provisions of the Small Business Act authorizing set-asides for 8(a) firms, WOSBs, and SDVOSBs and their implementing regulations, in contrast, all use "may," and have not been construed as indicating mandatory agency action. Those authorizing set-asides for HUBZone small businesses previously used "shall" and were construed to mean that agencies were required to use a HUBZone set-aside whenever the Rule of Two was satisfied. However, the 111 th Congress amended the HUBZone Act by removing, in part, the language that GAO and the Court of Federal Claims relied upon in reaching this conclusion in a series of decisions issued in 2008-2010.

Section 15(a) and Its Implementing Regulations

Section 15(a) of the Small Business Act and its implementing regulations, including Section 19.502-2 of the FAR, all use "shall," and the regulations, in particular, have been viewed by many tribunals and commentators as requiring set-asides for small businesses whenever the Rule of Two is satisfied. For example, GAO has repeatedly opined that contracting officers are "required" to set aside procurements whose value exceeds the simplified acquisition threshold when the Rule of Two is satisfied, or that such procurements "must" be set-aside. The rationale for such assertions is not always articulated, but would appear to be the use of "shall" in Section 19.502-2 of the FAR. However, GAO, in particular, often follows any statement that set-asides are "required" or "must" be used with a further statement that the determination that there is a reasonable expectation that offers will be received from two or more responsible small business concerns, and that award will be made at a fair market price, is a "matter of business judgment within the contracting officer's discretion, and we will not sustain a protest challenging the determination absent a showing that it was unreasonable." In short, this means that, while set-asides for small businesses under Section 15(a) may be seen as "mandatory" in certain circumstances, this requirement is contingent upon a determination (i.e., that the Rule of Two is satisfied) that contracting officers are seen as having discretion in making.

In addition, the FAR provisions implementing Section 15(a) have effectively created certain exceptions to this requirement. Specifically, Subsection 19.203(c) of the FAR states that

For acquisitions of supplies or services that have an anticipated dollar value exceeding the simplified acquisition threshold ..., the contracting officer shall first consider an acquisition for the small business socioeconomic contracting programs (i.e., 8(a), HUBZone, SDVOSB, or WOSB programs) before considering a small business set-aside.

In other words, the "requirement" to set aside acquisitions for small businesses generally does not preclude setting aside acquisitions for 8(a) firms, WOSBs, SDVOSBS, or HUBZone small businesses. Similarly, the FAR expressly provides that agencies must generally "consider" sole-source awards to 8(a) firms, WOSBs, SDVOSBs, and HUBZone small businesses prior to setting aside an acquisition for small businesses generally.

These "exceptions" are not expressly provided for in the Small Business Act, although an argument could be made that they are within the FAR Council's authority since the FAR Council established the requirement that contracts be set aside for small businesses when the Rule of Two is satisfied. They could also perhaps be said to be consistent with the act in that Congress intended there to be set-asides for specific types of small businesses, and this intent would be difficult to realize if agencies had to use set-asides in which any small businesses could participate whenever they reasonably expected offers from at least two small businesses. Nonetheless, the existence of such "exceptions" highlights the differences between Section 15(a) and its implementing regulations. Specifically, Section 15(a) requires that small businesses receive any contract, or part thereof, which SBA and the procuring agency determine is in the interest of assuring that a fair proportion of federal contracts are awarded to small businesses, among other things; it does not require that agencies conduct competitions in which only small businesses may compete in every procurement where the Rule of Two is satisfied.

2006 Amendments to the Veterans Benefit Act

The Veterans Benefits, Health Care, and Information Technology Act of 2006 amended the Veterans Benefits Act to provide that the VA "shall" set aside contracts whose value exceeds the simplified acquisition threshold (generally $150,000) for SDVOSBs or VOSBs whenever the Rule of Two is satisfied. The VA has generally interpreted the 2006 amendments to mean that it is required to use set-asides for SDVOSBs or VOSBs in such circumstances, amending its regulations in 2009 to provide that

the contracting officer shall set-aside an acquisition for competition restricted to SDVOSB concerns [or VOSBs, in certain circumstances] upon a reasonable expectation that

(1) [o]ffers will be received from two or more eligible SDVOSB [or VOSB] concerns; and

(2) [a]ward will be made at a fair and reasonable price.

However, the VA also construed the 2006 amendments as permitting it to purchase goods and services through the Federal Supply Schedules, instead of through a set-aside for SDVOSBs and VOSBs, even though the Rule of Two is satisfied. The VA did so, in part, because of the long-standing exemption of orders placed through the Schedules from the FAR's small business requirements, previously discussed.

Beginning in 2011, protesters challenged certain purchases that the VA proposed to make through the Schedules, arguing that the 2006 amendments and the VA regulations implementing them removed VA's discretion to purchase goods and services through the Schedules when the Rule of Two was satisfied. Key to the protesters' argument was the use of "shall" in the 2006 amendments and VA regulations. The protesters also likened the 2006 amendments to the HUBZone Act, which, prior to its amendment in 2010, GAO and the Court of Federal Claims had construed as requiring set-asides for HUBZone small businesses whenever the Rule of Two was satisfied.

GAO sided with the protesters in a series of 35 bid protest decisions issued in FY2012-FY2013. GAO did so, in large part, because it construed the 2006 amendments to the Veterans Benefits Act as unambiguously requiring the VA to set aside contracts for SDVOSBs and VOSBs whenever the Rule of Two was satisfied since they used the word "shall." Thus, GAO found that VA's interpretation to the contrary was not entitled to deference, and that the VA could not rely upon Section 8.404(a) of the FAR as a justification for purchasing items from the Federal Supply Schedules. As previously noted, Section 8.404(a) of the FAR expressly provides that the provisions in Part 19 of the FAR regarding small business set-asides are generally inapplicable to purchases made through the Schedules. However, in GAO's view, the FAR applies only to procurements conducted under the Small Business Act, not to procurements conducted under the 2006 amendments to the Veterans Benefits Act.

Then, on November 27, 2012, the Court of Federal Claims issued its decision in Kingdomware Technologies, Inc. v. United States , wherein the court "respectfully disagree[d] with the GAO's interpretation" of the 2006 amendments. The court found that, notwithstanding the use of "shall," the 2006 amendments did not unambiguously require the VA to employ set-asides for VOSBs instead of the Federal Supply Schedules whenever the Rule of Two is satisfied. Rather, the court viewed the 2006 amendments as essentially "goal-setting" provisions, which left the VA with at least some discretion in determining when it will use set-asides to meet its goals for contracting with VOSBs. The court also found that the VA had permissibly exercised this discretion by providing that the VA may purchase goods or services that could be obtained from VOSBs through the Federal Supply Schedules. In particular, the court noted that the Schedules have long been exempt from the small business set-aside requirements of Part 19 of the FAR, and "Congress can be presumed to be ... knowledgeable about existing law pertaining to legislation it enacts."

Subsequently, in a decision issued on June 3, 2014, the majority of a three-judge panel of the U.S. Court of Appeals for the Federal Circuit affirmed the lower court's decision in Kingdomware , albeit on different grounds than those relied upon by the lower court. According to the majority of the Federal Circuit, the VA is "required" to set aside contracts for VOSBs only "for purposes of meeting the [annual] goals" for contracting with VOSBs which the Veterans Benefits Act requires the VA to establish. The majority reached this conclusion, in part, because it viewed the set-asides as a "tool" for meeting VA's goals, and reasoned that a mandatory "tool" for achieving the goals would be inconsistent with the discretion that Congress expressly granted the agency in setting the goals. One judge dissented, however, because he viewed the Veterans Benefits Act as unambiguously requiring VA to set aside contracts for small businesses when the Rule of Two is satisfied. The Supreme Court granted Kingdomware's petition for review of this case, and is scheduled to hear oral arguments on February 22, 2016.

Partial Set-Asides

Set-asides can generally be total , involving the reservation of the entire contract for small businesses, or partial , involving the reservation of certain requirements (i.e., the goods and/or services needed by the agency) under the contract. Partial set-asides have historically been seen as "mandatory" when a total set-aside cannot be used because the statute and regulations authorizing them state that a partial set-aside "shall" be used under certain conditions. These conditions are, however, arguably somewhat stringent, particularly when coupled with the general limitations on the applicability of Part 19 of the FAR, discussed previously (i.e., generally not applicable to contracts awarded and/or performed outside the United States, or orders under the Federal Supply Schedules). First, contracts for construction are not subject to partial set-asides. Second, such set-asides may generally only be used when (1) a total set-aside is inappropriate; (2) the requirement is "severable" into two or more economic production runs or reasonable lots; (3) at least one small business is expected to have the technical competence and productive capacity to satisfy the set-aside portion of the requirements at fair market price; (4) the acquisition is not subject to the simplified acquisition procedures, discussed above; and (5) it is not reasonably expected that only two concerns—one large and one small—with the capability to perform will tender offers.

In particular, the requirement that the goods and/or services being procured be "severable" could potentially preclude the use of a partial set-aside when these goods and/or services are "so integrally related that only a single source can reasonably perform the work." Decisions not to partially set aside acquisitions have also been upheld when an agency determined that having multiple vendors performing the work could increase the risks of performance, e.g., by making efforts to standardize computer systems more complicated, or less likely to succeed; by increasing costs to the users; or by leading to inconsistent results. The fact that an agency makes multiple awards of a contract, or issues multiple orders under a contract, does not, in itself, prove that requirements are severable, and there is no requirement that a partial set-aside include a certain portion of the agency's requirements. On the other hand, a partial set-aside may be found to be improper where the set-aside portion is not of a sufficient quantity to be economically feasible.

Set-Asides Under ID/IQ Contracts

Congress amended the Small Business Act in 2010 to expressly authorize set-asides of orders under multiple-award indefinite-delivery/indefinite-quantity (ID/IQ) contracts, among other things. Sometimes also known as task order/delivery order (TO/DO) contracts, ID/IQ contracts are contracts for services or goods that do not "procure or specify a firm quantity of supplies (other than a minimum or maximum quantity)," but rather "provide[] for the issuance of orders for the delivery of supplies during the period of the contract." A multiple-award ID/IQ contract is one awarded to multiple vendors, each of whom is generally eligible to compete for task or delivery orders issued under the contract.

Specifically, pursuant to the 2010 amendments, agencies may:

(1) set aside part or parts of a multiple award contract for small business concerns, including the subcategories of small business concerns …;

(2) notwithstanding the fair opportunity requirements under section 2304c(b) of title 10, United States Code, and section 303J(b) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(b)), set aside orders placed against multiple award contracts for small business concerns, including the subcategories of small business concerns …; and

(3) reserve 1 or more contract awards for small business concerns under full and open multiple award procurements, including the subcategories of small business concerns.

The authority to set aside orders "[n]otwithstanding the fair opportunity requirements" is arguably particularly important, since federal law otherwise generally requires agencies to give all vendors holding a multiple-award contract a "fair opportunity to be considered" for orders valued in excess of $3,500, and an agency could potentially be found to have breached its contract with the vendor by failing to provide such an opportunity.

It is important to note, though, that the statutory and regulatory provisions governing set-asides of orders under ID/IQ contracts use "may," not "shall," and GAO recently construed them to mean that agencies are not required to set aside such orders for small businesses (or apply the Rule of Two in determining whether to use a set-aside). Prior to the 2010 amendments, GAO had issued an earlier decision which had found that orders issued under at least some ID/IQ contracts were subject to "mandatory" set-asides pursuant to Section 19.502-2 of the FAR on the grounds that Section 19.502-2 purports to apply to "any acquisition over $150,000," and orders constitute acquisitions. However, the FAR has been amended since the earlier GAO decision and, as amended, clearly states that "contracting officers may, at their discretion," set aside orders under multiple-award ID/IQ contracts. Thus, GAO's earlier decision is generally seen to have been "overturned" by the 2010 legislation and its implementing regulations, although some commentators have questioned whether this was Congress's intent.

Priority of and Among the Set-Aside Programs

The question of whether there is "precedence" or "priority" among the set-aside programs has been raised periodically. For example, it factored in GAO's and the court's consideration of whether HUBZone set-asides are mandatory when the Rule of Two is satisfied, as discussed previously. It has also been raised in other contexts, including in discussions of what priority small business set-asides generally have as compared to other procurement preferences.

Set-Asides Under the Small Business Act

The FAR, in particular, currently has several provisions that address the priority of small business set-aside programs implemented under the authority of the Small Business Act vis-à-vis other procurement vehicles and as between themselves. Perhaps foremost among these is Subpart 8.002 of the FAR, which provides that agencies "shall satisfy requirements for supplies and services from or through the sources ... listed [in Table 1 ] in descending order of priority."

Many, if not all, of these priorities are expressly incorporated into Part 19 of the FAR (e.g., AbilityOne having priority over small business set-asides). However, the priority afforded to Federal Prison Industries (FPI) in the purchase of goods is particularly noteworthy because, while FPI has priority over "commercial sources," including small businesses, agencies are also required to use "competitive procedures" whenever FPI has a "significant market share" (i.e., more than 5%). "Competitive procedures" include small business set-asides, and agencies must allow FPI to participate whenever competitive procedures are used. Thus, agencies could conduct set-asides for small businesses in which FPI may compete, and bids or offers from FPI would not necessarily be subject to the same requirements (e.g., compliance with the limitations on subcontracting) as those from small businesses.

The FAR further provides that, although there is no priority among the set-asides for various types of small businesses, set-asides for particular types of small businesses take precedence over those for small businesses generally. In other words, agencies can elect whether to use a set-aside for 8(a) firms, WOSBs, SDVOSBs, or HUBZone small businesses in particular circumstances. (An agency could, for example, opt to set aside a particular acquisition for WOSBs because its performance on the goals for contracting and subcontracting with WOSBs was lower than its performance vis-à-vis its other goals.) In contrast, agencies must at least "consider" set-asides for 8(a) firms, WOSBs, SDVOSBs, or HUBZOne small businesses before using a set-aside for small businesses generally. Similarly, the FAR also provides that agencies must generally "consider" sole-source awards to 8(a) firms, SDVOSBs, and HUBZone small businesses prior to setting aside an acquisition for small businesses generally.

Set-Asides Under the Veterans Benefits Act

The relationship between set-asides for SDVOSBs and VOSBs under the authority of the Veterans Benefits Act and certain "priority sources" listed in Table 1 (e.g., AbilityOne) has arguably been seen as largely within VA's discretion. For example, GAO upheld a challenged VA procurement of items currently listed on the AbilityOne procurement list through AbilityOne, instead of a set-aside for SDVOSBs or VOSBs. GAO did so, in part, because it found that the Veterans Benefits Act and the statute requiring agencies to purchase services from AbilityOne "can be read so as not to conflict" because the 2006 act does not expressly address the preference for AbilityOne:

[t]hat is, the VA Act neither expressly overrides the [AbilityOne] preference nor provides that the preference for [veteran-owned] concerns is subordinate to that of the AbilityOne program.

Thus, because it found that Congress had left a gap for the VA to fill in determining how set-asides for VOSBs were to be reconciled with the AbilityOne program, GAO found that VA's interpretation of the 2006 act—which provided for the VA to purchase items currently on the AbilityOne list from AbilityOne—was entitled to certain deference. The Court of Federal Claims similarly found that VA guidelines requiring contracting officers to research whether VOSBs could supply requirements that are not currently on the AbilityOne list before adding them to the list warranted deference, in part, because the guidelines provide detailed instruction to "fill[] a space between the [2006 act], the Javits-Wagner-O'Day Act [which requires that certain purchases be made from AbilityOne], and their accompanying regulations."

In contrast, the 2006 act is explicit as to the priority among set-asides for SDVOSBs, VOSBs, and other small businesses. Under the act, contracts awarded on a set-aside or sole-source basis to SDVOSBs have "priority" over those awarded to VOSBs. Contracts awarded to VOSBs, in turn, have precedence over those awarded through the 8(a) or HUBZone programs, and contracts awarded through the 8(a) or HUBZone programs have priority over those awarded "pursuant to any other small business contracting preference" (e.g., set-asides for WOSBs).

Limitations on the Use of Small Business Set-Asides

While set-asides may sometimes be required and sometimes permitted, there could also be circumstances where set-asides are prohibited. Such a situation would arguably be most likely to arise because of statutory conditions imposed on the procurement of particular goods or services by particular agencies or, in the case of set-asides for 8(a) firms, because of court orders. For example, until it was repealed in 2010, the Small Business Competitiveness Demonstration Program Act of 1988 required the Department of Defense (DOD) to "solicit[] on an unrestricted basis" contracts valued in excess of $25,000 for the procurement of services in industries where DOD had met an annual goal of awarding at least 40% of its contract dollars to small businesses. Solicitation on an "unrestricted basis" precluded the use of small business set-asides, since small business set-asides entail the "restriction of [a] solicitation to small business concerns." Similarly, in several cases, agencies have been barred from setting aside particular procurements for 8(a) small businesses as a result of challenges brought by nonminority contractors alleging that this program impermissibly discriminates against them. Because eligibility for the 8(a) Program is based, in part, on race, in responding to such challenges, the government must show that the program is narrowly tailored to meet a compelling government interest. An alleged government interest, in turn, qualifies as a compelling one, for due process or equal protection purposes, only when the government entity creating the racial classification (1) identified public or private discrimination with some specificity before resorting to race-conscious remedies and (2) had a "strong basis in evidence" to conclude that race-conscious remedies were necessary before enacting or implementing these remedies. In a few cases, the government has been found to have lacked adequate evidence of discrimination and, thus, been barred from using 8(a) set-asides in particular industries or geographic areas. For example, in its 2012 decision in DynaLantic Corporation v. U.S. Department of Defense , the U.S. District Court for the District of Columbia found that the 8(a) Program was unconstitutional as applied in the military simulation and training industry because the Department of Defense (DOD) conceded it had "no evidence of discrimination, either in the public or private sector, in the simulation and training industry." The court thus enjoined SBA and DOD from "awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so."

Situations could also potentially arise where an agency—which is required to set aside certain acquisitions for small businesses—is also required to use other procurement vehicles and, thus, is seen as having discretion in giving the other procurement vehicle(s) priority over small business set-asides. This recently happened with the VA, as discussed previously. The VA is generally required, pursuant to the 2006 amendments to the Veterans Benefits Act, to use set-asides for SDVOSBs or other VOSBs whenever the Rule of Two is satisfied. However, other provisions of law also require the VA (and other federal agencies) to procure certain services through AbilityOne, a program that promotes the employment of persons with handicaps and disabilities. Faced with these dual mandates, VA issued guidance that directed VA contracting officers to procure all items currently listed on the AbilityOne procurement list from AbilityOne, rather through a set-aside for VOSBs. This guidance was challenged on the grounds that the 2006 amendments to the Veterans Benefit Act require the VA to use set-asides for VOSBs whenever the Rule of Two is satisfied. However, GAO found that the issuance of this guidance was within VA's authority because the 2006 amendments did not indicate how VA's obligations under the Veterans Benefits Act were to be reconciled with its obligations as to AbilityOne. Thus, GAO viewed the VA as having the discretion to preclude the use of set-asides for items currently on the AbilityOne list.

A requirement that an agency select vendors for particular goods or services on a "competitive basis," in contrast, would probably not be construed to preclude the use of small business set-asides, as evidenced by the courts' rejection of several challenges to the Department of Labor's (DOL's) determination to set aside certain contracts for the operation of Job Corps centers for small businesses. The incumbent contractors—who did not qualify as "small" under the federal government's size standards—challenged DOL's determination, in part, on the grounds that set-asides do not constitute selections on a "competitive basis," as is generally required under the Workforce Investment Act. They also noted that set-asides are not among the exceptions to selection on a "competitive basis" expressly provided for in the act. The court, however, rejected these arguments, finding that use of "competitive procedures" constitutes "select[ion] on a competitive basis" for purposes of the Workforce Investment Act (WIA). In so doing, the court expressed its view that the Federal Property and Administrative Services Act, as amended by the Competition in Contracting Act, contemplates various degrees of competition, from "full and open competition" through noncompetitive; and that procedures that do not constitute full and open competition are not necessarily noncompetitive. In particular, the court found that "small business set-asides are, by definition, not 'noncompetitive,'" a holding which could have resonance beyond Workforce Investment Act. It should be noted, however, that in reauthorizing WIA in 2014, Congress required DOL to permit firms that are operators of "high-performing centers" to participate in any "competitive selection process" for Center operators, regardless of the firm's size.

Conclusions

As the foregoing discussion suggests, determining whether and when particular requirements pertaining to small business set-asides apply can be complicated. Multiple statutes—some of which apply only to specific agencies—govern set-asides for small businesses, and authorize different actions as to different types of small businesses. These statutes were enacted over time, between 1958 and 2006, and arguably have not always been consistent in their treatment of particular things (e.g., the circumstances in which sole-source awards may be made to 8(a) firms, as opposed to other types of small businesses). Further, these statutes have been implemented by SBA regulations and the FAR over a number of years, and the bases for certain regulatory interpretations are not always clear, even if they are arguably within the agency's discretion (e.g., the exclusion of contracts awarded and/or performed outside the United States from the small business requirements of the FAR). In addition, the statutes and regulations have been construed and applied by various judicial and administrative tribunals, which have, at times, had differing interpretations of the same provision (e.g., GAO viewing the VA as required to use set-asides for VOSBs instead of the Federal Supply Schedules, while the federal courts do not).

On top of all this, the stakes of these interpretations are arguably high, as small businesses and other vendors compete for a limited—and potentially dwindling—pool of federal contract dollars. This can lead some to attempt to place significant weight on particular words (e.g., "shall," "competitive basis") in the hopes of narrowing—or broadening—the competition for particular procurements. Questions could, however, potentially be raised as to whether the existing statutory and regulatory provisions were drafted with such potential arguments in mind, or whether they are based, in part, on long-standing practices in the procurement field (e.g., the exclusion of orders placed through the Federal Supply Schedules from small business set-asides under the Veterans Benefits Act). Congress could potentially respond to any interpretations with which it disagrees by amending the relevant statutes; directing SBA or the FAR Council to promulgate or amend regulations; or requiring agencies to abide by particular interpretations of statutes or regulations.