Stephen Bacon Authors Bloomberg Law Insights Article on Small Business Administration’s Proposed Rule

Last month, the Small Business Administration released a proposed rule that would require federal agencies to apply the “rule of two” to task and delivery order procurements under multiple-award contracts. This rule change, intended to boost opportunities for small businesses in various sectors that compete in order to grow in federal contracting, requires agencies to set aside contracts for small businesses if at least two small businesses are expected to submit offers at fair market prices. 

The rule of two forces contracting officers to limit competition to only small businesses for many types of contracts. In the last several years, however, the Court of Federal Claims and the Government Accountability Office have issued conflicting opinions on whether the rule must be applied specifically to orders or only to contracts. The SBA’s rule resolves this uncertainty. 

Rogers Joseph O’Donnell PC shareholder Stephen L. Bacon authored a Bloomberg Law article on how the Small Business Administration’s proposed rule will impact agencies and boost government contract opportunities for small businesses. In his piece, “SBA’s Proposed Rule Opens Up Work and Resolves Legal Uncertainty,” Bacon discusses previous guidance from the Office of Federal Procurement Policy (OFPP) and analyzes the impact of the proposed rule if it is finalized. He also examines several exemptions to the rule. 

“The SBA’s recent proposed rule would essentially codify the change included in OFPP’s guidance, making it legally binding,” he wrote. “Unless an exception applies, the proposed rule specifies that agencies must document their decision not to use a set-aside order and must coordinate that determination with the agency’s small business specialist.” 

Bacon represents government contractors in bid protests, claims, investigations, and suspension and debarment proceedings. He frequently litigates cases at the Court of Federal Claims, the Government Accountability Office, the Boards of Contract Appeals, and the Small Business Administration’s Office of Hearings and Appeals. Bacon also provides advice and counsel to clients on a broad range of contractual and regulatory compliance issues that confront government contractors.