Interim Rule:  Small Business Jobs Act of 2010, Section 1331 - Set-Asides of Orders and Blanket Purchase Agreements (BPAs) conducted under Federal Supply Schedule (FSS) Contracts

Purpose:  To inform the acquisition workforce about the new FSS set-aside authority, and provide guidance on how this authority relates to the Veterans First program.

Dated:  December 16, 2011

Effective Date:  Immediately

Background:  On November 2, 2011, an interim rule was issued that amended the Federal Acquisition Regulation (FAR) in order to implement section 1331 of the Small Business Jobs Act of 2010.  More specifically, section 1331 provides agencies the ability to set-aside orders and Blanket Purchase Agreements (BPAs) issued against FSS contracts, at their discretion.  Therefore, this is not a mandatory small business set-aside program.  Prior to this rule, ordering activities were prohibited from setting aside orders and BPAs under FSS contracts.

Guidance:

1. The Veterans First program requirements are not applicable to set-aside orders and BPAs issued against FSS contracts.
   
   
2. Contracting Officers (COs), at their discretion, may set-aside orders and BPAs for small business or for one of the small business categories listed in 19.000(a)(3).
   
   Before making a determination to set-aside an order or BPA under FSS market research must be performed to determine whether there are a sufficient number of small businesses capable of providing the product or performing the desired work.  The specific small business program eligibility requirements identified in FAR part 19 apply, including limitations on subcontracting and the non-manufacturing rule (i.e. non-manufacturers must furnish only end items manufactured or produced by small business concerns in the U.S.).
   
   
3. When limiting consideration to one of the small business categories the same competition rules provided in FAR 8.405 apply.  Use the following competition strategies for set-aside orders and BPAs under this authority:
   
   

   Order/BPA Value	Strategy
   At or Below the Micro-Purchase Threshold	Distribute orders among contractors that meet the needs of the agency
   Over the Micro-Purchase Threshold, but at or under the Simplified Acquisition Threshold	The agency posts a Request for Quote (RFQ) on e-Buy or considers reasonable available information about products and services by surveying at least 3 small businesses
   Exceeds SAT	The agency posts a RFQ to e-Buy or sends quote out to multiple small businesses to receive quotes from at least 3 small businesses

   
   
   
4. COs shall Insert the following clauses, as applicable, into set-aside orders and BPAs under this authority:
   • 52.219-13 Notice of Set-Aside of Orders (NOV 2011);
   • 52.219-3 Notice of HUBZone Set-Aside Award (NOV 2011);
   • 52.219-6 Notice of Total Small Business Set-Aside (NOV 2011);
   • 52.219-14 Limitations on Subcontracting (NOV 2011);
   • 52.219-27 Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (DEC 2011) (This clause should only be used for FSS procurements set-aside under the Section 1331 Authority.);
   • 52.219-29 Notice of Set-Aside for Economically Disadvantaged Women-Owned Small Business (EDWOSB) Concerns (NOV 2011); and/or
   • 52.219-30 Notice of Set-Aside for Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (NOV 2011).

Additional Information:  For questions or concerns regarding this Acquisition Policy Flash, please contact Ms. Eyvonne Mallett, Senior Procurement Analyst at (202) 461-5101 send your questions to the policy mailbox at VA.Procurement.Policy@va.gov.