1. May 2014 1

2.  Jobs Act - Overview  FAR Interim Final Rule  SBA Rule  Partial Set Aside  Reserves  Order Set Aside  Limitations on Subcontracting/Nonmanufacturer  Documentation, Targets, Ramps  8(a)  NAICS Codes  Size  Recertification - Changes  Bundling and Consolidation 2

3.  Defined Multiple Award Contract (JA §1311) multiple award IDIQ contract entered into under 41 USC 253h-253k any other multiple award IDIQ contract  Required guidance that addresses (JA § 1331): set aside of part or parts of a multiple award contract for small business; notwithstanding fair opportunity requirements, set aside of orders placed against multiple award contracts for small businesses; and reserve of one or more contract award(s) for small businesses under full and open competition multiple award procurements. 3

4.  Subpart 19.5 - agencies may: set aside part or parts of a multiple-award contract for SBCs, including set- asides for small business concerns under the 8(a), HUBZone, SDVOSB and the WOSB Programs; set-aside orders placed against multiple-award contracts for SBCs, including small businesses in the 8(a), HUBZone, SDVOSB, and WOSB Programs; and reserve one or more contract awards for SBCs, including small businesses in the 8(a), HUBZone, SDVOSB, and WOSB Programs, under full and open multiple-award procurements.  Subpart 8.4 – agencies may set-aside orders and BPAs under the GSA Schedule;  Subpart 16.5 - agencies may set-aside orders for SBCs in connection with multiple award contracts and no justification for this exception to fair opportunity required  Added 52.219-13 which states that the CO will give notice of which orders, if any, are to be set aside under a multiple award contract 4

5.  SBA issued a Proposed Rule on May 16, 2012 to implement JA provisions on Multiple Award Contracts and Bundling/Consolidation reorganize part 125 and clarify other SBA regulations  SBA issued Final Rule on October 2, 2013, effective December 31, 2013 Proposed rule 77 FR 29130 Final rule 78 FR 61114 5

6.  CO sets-aside a portion or portions of an acquisition for small businesses: Market research shows a total set aside is not appropriate - “rule of 2” can’t be met for entire contract; Requirement is severable into smaller, discrete portions or discrete categories (CLIN, SIN, Sector, FA, etc.); and “Rule of two” will be met on set-aside part or parts of the acquisition  This is different than how partial set asides are currently done in the FAR  Partial set aside for one or more of the various types of small business programs  The specific program eligibility requirements would apply to the set-aside portion. For example, for CLIN 3, the 8(a) program requirements would apply to that CLIN (e.g. offer and acceptance at contract level). If CLIN set aside for WOSBs or EDWOSBs, then must be eligible NAICS code. Can the contracting officer partially set-aside different portions or categories for one or more of the various types of small business programs? Yes. For example: CLIN 1: NAICS Code 541611, set-aside for HUBZone small businesses. Only those Contractors awarded contracts under CIN 1 would be eligible to receive a task order solicitation under this CLIN. CLIN 2: NAICS Code 541330, set-aside for Service-Disabled Veteran-Owned small businesses. Only those Contractors awarded contracts under CLIN 2 would be eligible to receive a task order solicitation under this CLIN. CLIN 3: NAICS Code 541712, set-aside for 8(a) Participants under the 8(a) Program. Only those Contractors awarded contracts under CLIN 3 would be eligible to receive a task order solicitation under this CLIN. The specific program eligibility requirements would apply to the set-aside portion. For example, for CLIN 1, the HUBZone program requirements would apply to that CLIN. Would a small business offeror have to submit more than one offer on a partial set-aside? It depends. The small business offeror must submit: one offer that addresses each part of the solicitation for which it wants to compete (partial set-aside, non set-aside); and may choose to submit an offer on the part or parts of the solicitation that have been set-aside and/or on the parts that have not been set-aside. Who can compete for the orders on the partial set-aside? Only awardees under the partial set-aside may compete for an order issued against that part or parts of the multiple award contract that are set-aside and for which they submitted an offer and received an award. Small business awardees may compete against other-than-small businesses for an order issued against the portion of the multiple award contract that has not been partially set-aside if the small business submitted an offer and received a contract award for the non-set-aside portion. EXAMPLE: CLIN 1: NAICS Code 541611, set-aside for HUBZone small businesses. Only those Contractors awarded contracts under CLIN 1 would be eligible to receive a task order solicitation under this CLIN. CLIN 2: NAICS Code 541330, set-aside for Service-Disabled Veteran-Owned small businesses. Only those Contractors awarded contracts under CLIN 2 would be eligible to receive a task order solicitation under this CLIN. CLIN 3: NAICS Code 541712, set-aside for 8(a) Participants under the 8(a) Program. Only those Contractors awarded contracts under CLIN 3 would be eligible to receive a task order solicitation under this CLIN. 6

7. Offer Submission For Contract Order Competition The small business offeror: ◦ must submit one offer that addresses each part of the solicitation for which it wants to compete (partial set aside, non set aside) ◦ may choose to submit an offer on the part or parts of the solicitation that have been set-aside and/or on the parts that have not been set-aside. The small business awardee: o may compete for an order issued against that part or parts that are set-aside and for which they submitted an offer and received an award o may compete for an order against the portion that has not been partially set-aside if the small business submitted an offer and received a contract award for the non- set aside portion 7

8.  Agencies have been “reserving” awards for small businesses for many years - Congress provided specific authority and some framework for this.  A CO may reserve one or more contract awards for small business concerns in a full and openly competed multiple award contract when— ◦ the requirement is general in nature and cannot be broken into discrete categories at contract award but will be clearly defined when an order is placed; and  at least two small business concerns will be able to perform part of the requirement and will submit an offer at a fair market price; or  at least one of the small business concerns can perform the entire requirement and will submit an offer at a fair market price; or  on a bundled contract, one or more small business concerns with a Small Business Teaming Arrangement will submit an offer at a fair market price. 8

9.  Offer Submission for Contract: ◦ must submit one offer that addresses each part of the solicitation for which it wants to compete (reserve, non reserve); and ◦ may choose to submit an offer on the part or parts of the solicitation that have been reserved and/or on the parts that have not been reserved.  Order Competition ◦ If there are two or more reserved contracts awarded under one or more of SBA’s small business programs, the agency may set-aside orders for those small business concerns pursuant to those programs. ◦ If there are two or more contracts awarded under subpart 19.5 to different types of small businesses identified in 19.003(a), the agency may set-aside the orders for all small business awardees that received an award under the reserve.  If there is only one contract award to a small business concern, the agency may issue orders directly to that concern for work that it can perform. EXAMPLE: reserve for WOSB, then set aside orders for WOSB; reserve for HUBZone, then set aside orders for HUBZone EXAMPLE: reserve one award for 8(a), one for SDVOSB, one for SBCs, then set aside orders for small businesses – this would be considered a small business reserve 9

10. Partial Set AsideReserve a multiple award CONTRACT is unsuitable in its ENTIRETY for a small business set aside BUT it is determined that SOME requirements of that multiple award contract can be broken down into clearly defined requirements (segments, line items,…etc.) - suitable for a small business set aside AT THE CONTRACT Level those items are identified as a “partial set aside” in the solicitation and small businesses can submit proposals to be awarded a set aside contract small businesses can submit proposals for the unrestricted portion of that contract, the partial set aside portion or both. a partial small business set aside has the set aside requirements (orders to be competed) in place at time of contract award a multiple award CONTRACT is unsuitable in its ENTIRETY for a small business set aside used when contract requirements are NOT clearly defined, AND cannot be broken down individually at the contract level for order competition HOWEVER, CO has determined that the possibility exists to set-aside some orders once defined requirements are determined the contract is competed on an unrestricted basis (Large and Small businesses submit offers for the multiple award contract), the contracting officer notifies all potential offerors in the solicitation of the intent to do a “reserve” of some of the contract awards for small businesses awards are made to both large and small businesses and once a requirement (order) is identified that is suitable for small businesses, that “order” competition may be “set-aside” for small business participation 10

11.  Discretion to set aside orders against F&O competed multiple award contracts  Applies to GSA Schedule Contracts  Insert 52.219-13 in RFP and contract stating that agency “preserves” right to set-aside orders 11

12. Market ResearchAcquisition StrategyAward/Orders Partial Set Aside “rule of two” will not be met for the entire contract contract can be broken into smaller, discrete portions one or more awards made to SBCs, 8(a), HUBZone, SDVOSB, WOSB or EDWOSB; orders competed amongst only SBCs awarded the partial set aside; SBCs may be able to compete against other-than-small businesses for the non-set aside portion if they also submitted an offer and received a contract on that portion Reserve 1 at least two SBCs could perform part of contract, not all contract cannot be broken into smaller, discrete portions because requirements are not specific two or more awards made to one or more types of SBCs (e.g., small business reserve, 8(a) reserve, HUBZone reserve, SDVOSB reserve, WOSB or EDWOSB reserve); orders competed amongst specified type of SBCs (e.g., SBCs, 8(a), HUBZones, SDVOSBs, WOSBs or EDWOSBs); SBCs may be able to compete against other-than-small businesses for the unreserved portion if they also submitted an offer and received a contract on that portion Reserve 2 at least two SBCs could perform part of contract, not all contract cannot be broken into smaller, discrete portions because requirements are not specific two or more awards made to several different types of SBCs under a small business reserve (e.g., one to 8(a), one to HUBZone, one to SDVOSB, one to WOSB or EDWOSB); orders competed amongst all SBCs awarded on the reserve and small business rules apply, not specific program rules; SBCs may be able to compete against other-than-small businesses for the unreserved portion if they also submitted an offer and received a contract on that portion Reserve 3 at least one SBC can perform all of the contract contract cannot be broken into smaller, discrete portions because requirements are not specific one award made to a SBC (e.g., one small business, one 8(a), one HUBZone, one SDVOSB, or one WOSB or EDWOSB); orders can be issued directly to the SBC awardee on the reserve; SBCs may be able to compete against other-than-small businesses for the unreserved portion if they also submitted an offer and received a contract on that portion Reserve 4 no SBC can perform because it is a justified bundle contract cannot be broken into smaller, discrete portions because requirements are not specific award made to a Small Business Teaming Arrangement on a bundled contract; orders competed against all awardees Set-aside of orders“rule of two” will be met for the requirement for orders goods/services can be acquired using an already established F&O multiple award contract order competed amongst specified type of small business (e.g., SBCs, 8(a), HUBZone, SDVOSB, WOSB or EDWOSB) Comparing Partial Set Asides, Reserves and Order Set Asides 12

13.  LOS and NMR apply Full or partial set aside, reserve or set aside of orders  Compliance Period Full or partial set aside: base term and each subsequent option period  HOWEVER, CO may require concern to perform the LOS or NMR for each order Reserve or order set aside under F&O: term of order  Exceptions to NMR Order is set aside against F&O contract and value is ≤$25,000, offeror does not have to provide product of SB but product must be manufactured or produced in US and offeror must meet size requirements 13

14.  Although partial set aside, reserves and set aside of orders on F&O contract are discretionary, CO must document why he/she did not use these authorities  CO may set targets in contract with a reserve that estimate $ value or % of total contract to be awarded to small businesses  CO may use on ramps and off ramps to ensure sufficient SBs on contract Discretion of CO to move a business from one portion of contract to another (e.g., move from set aside to non set aside) 14

15.  Offer and acceptance at contract level Except for orders set aside or issued sole source against a F&O competed contract  May sole source an order to an 8(a) against a multiple award contract that has been set aside, partially set aside or reserved for 8(a) IF the $ thresholds are met on the order offer and acceptance to 8(a) program on order  Offer and acceptance not required on reserve contract where orders will be competed amongst all SBC awardees 15

16.  Every solicitation, contract and order must contain at least one NAICS code and corresponding size standard.  Solicitations and contracts that will result in multiple awards of contracts may contain +1 NAICS code and size standard: acquisition requires more than one item and allows offers to be submitted on any or all of the items GSA Schedule Contract with multiple SINs and multiple NAICS codes EXAMPLE: CLIN 1: NAICS Code 541611. Only those Contractors awarded contracts under CLIN 1 would be eligible to receive a task order solicitation under this CLIN. CLIN 2: NAICS Code 541330. Only those Contractors awarded contracts under CLIN 2 would be eligible to receive a task order solicitation under this CLIN. CLIN 3: NAICS Code 541712. Only those Contractors awarded contracts under CLIN 3 would be eligible to receive a task order solicitation under this CLIN. 16

17.  CO must assign a single NAICS code and corresponding size standard for each order issued under a multiple award contract  If single award contract, or multiple award contract with one NAICS and size standard, then all orders will have that NAICS and size standard.  If Multiple Award Contract with multiple NAICS codes, the CO must select the NAICS code and corresponding size standard from the contract that best describes the principle purpose of each order.  If order is issued against the GSA Schedule with multiple SINs, CO must select the single NAICS code within the SIN that best represents the acquisition for the order. Contract with one NAICS NAICS 561110 Office Administrative Services Order: NAICS 561110 Contact with multiple NAICS NAICS 541511 Customer Computer Programming NAICS 541430 Graphic Design Services Order: 541430 17

18.  Determining size for a contract Date the concern submits its initial offer (or other formal response to a solicitation), which includes price If multiple award contract d ate the concern submits its offer for each discrete category (e.g., CLIN, SIN, Sector, FA or equivalent) for which it represents it is small date the concern submits its offer for entire contract (and will determine whether they meet the size standard for every discrete category (CLIN, SIN, Sector, FA or equivalent))  Determining size for an order Date the concern submits its offer for the contract (see above) If business was small for the underlying contract for the same NAICS code and size standard as that assigned to the order, it is small for the order If business was small for a discrete category on the underlying contract, it is small for each order issued against that category with the same NAICS code and corresponding size standard Or date of recertification if requested or required by CO for the order 18

19.  Recert required from both the acquired and acquiring business JV when one or more parties to JV has been acquired, merged or is acquiring business  If set aside, partial set aside or reserve of a multiple award contract and business recertifies as other than small, new orders are not considered awards to SBs  Size recert rule now applies to HUBZone, SDVOSB and WOSB programs for status purposes Example: SDVOSB at time of offer for contract, then SDVOSB for life of contract and orders, unless recertification (novation, merger, acquisition, +5 years (and then options) or at contracting officer’s discretion for orders). 19

20. BundlingConsolidation DefinitionCombining two or more requirements for goods or services previously provided or could have been performed under separate smaller contracts into a solicitation for a single or multiple award contract that is likely to be unsuitable for award to a small business Combining two or more requirements for goods or services that have been provided to or performed for the agency under two or more separate contracts each of which was lower in cost than the total cost of the combined requirement; or Combining two or more construction projects to be performed at two or more discrete sites. Unsuitability Reasons Award cannot be made to a SBC due to: diversity, size or specialized nature of the performance; aggregate dollar value of the award; geographical dispersion of the contract performance sites; any combination of above Award can still be made to SBC Prior performance requirements One or more small businesses performed or could have performed the smaller contracts that were combined into the larger requirement One or more small or large businesses performed the smaller contracts that were combined into the larger requirement Estimated contract amount, including options Bundling: Any dollar value Substantial bundling (DoD): $8 M Substantial bundling (GSA, NASA, DOE): $6 M Substantial bundling (all other): $2.5 M $2 M Any value for construction contract Justification Requirements -the benefits of strategy substantially exceed benefits of each alternative contracting approach -benefits include cost savings and/or price reduction, quality improvements to save time or enhance performance, reduction in acquisition cycles, better terms and conditions -other benefits that equal 10% of contract or order value if contract or order is $94M or less; or 5% of contract or order value or $9.4M, whichever is greater, if contact or order exceeds $94M -substantial savings in administrative or personnel costs occur when cost savings is at least 10% of contract value -there are separate justification requirements for substantial bundling -the benefits of strategy substantially exceed benefits of each alternative contracting approach (see bundling for definition of benefits) -must conduct market research, identify alternative contracting approaches, make a determination that consolidation is necessary and justified, identifies any negative impact on SBs, and ensures steps taken to include SBs in acquisition strategy Justification Approval SPE or Under Secretary of Defense for Acquisition and Technology and Deputy Secretary in civilian agencies may determine a bundle is necessary and justified when it doesn’t meet the justification requirements if: -in the aggregate, the benefits are critical to the mission’s success -the strategy provides maximum practicable participation by SBs SPE or CAO Notification-Provide notification 30 days prior to issuing RFP to each SBC which is performing on a contract that it intends to bundle -Provide the SBs the name, phone number of the SBA PCR -Publish on agency website the rationale for bundling -Notify SBA of re-competition Notify SBA of re-competition Follow-upEvaluate savings and benefits achieved for contracts that are re- competed 20

21. Questions? Thank you! 21