Tuesday, July 9, 2013

Once Section 8(a), Always Section 8(a)

Section 8(a) of the Small Business Act (15 USC Sec 637(a)), authorizes the SBA to enter into contracts with Government agencies and to arrange for performance through subcontracts with socially and economically disadvantaged small business concerns. The Act affords the SBA and contracting agencies broad discretion in selecting procurements for the 8(a) program.

In a recent appeal, a contractor argues that a particular solicitation was improperly set aside as an 8(a) competition because the SBA failed to perform an adverse impact analysis as required by 13 CFR Section 124.504(c). The contractor claimed that it was adversely impacted by the decision to set aside the solicitation as an 8(a) award, given that it is a small business, but no longer a certified 8(a) contractor.

The SBA contended that no adverse analysis was required because the work solicited was a follow-on shuttle bus service contract performed by the appellant when it was still an 8(a) contractor. The SBA further contended that the requirement is, therefore subject to the "once 8(a), always 8(a)" rule set forth at 13 CFR 124.504(d), which precludes removing follow-on requirements from the 8(a) program unless they are specifically released by the SBA from the program for non-8(a) competition.

The Comptroller General sided with SBA. It concluded:
Under the circumstances, and, given the deference we accord the SBA’s interpretation of its regulations, we find the SBA’s determination--i.e., that the current solicitation is a follow-on to the previous contracts to obtain these services under the 8(a) program, and, is thus subject to the “once 8(a), always 8(a)” rule--is not inconsistent with applicable SBA regulations. In this regard, the pertinent regulation provides, “where a procurement is awarded as an 8(a) contract, its follow-on or renewable acquisition must remain in the 8(a) . . . program unless the SBA agrees to release it for non-8(a) competition.” 13 C.F.R. § 124.504(d)(1). For procurements covered by this regulation, no adverse impact analysis is required. We cannot find the SBA’s position in this regard to be inconsistent with applicable regulations.

You can read the entire decision here.

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