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Counsel Commentary: The Rule of Two Wrinkle

by Stephen L. Bacon

In his article for Contract Management magazine, Stephen Bacon discusses the ongoing debate surrounding the Rule of Two and its consequences for small businesses in federal contracting. He highlights the conflicting positions of the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) regarding the applicability of the Rule of Two to task or delivery order procurements under multiple-award contracts (MACs). While the GAO asserts that the Rule of Two is not mandatory in such cases, the COFC holds that agencies must conduct the Rule of Two analysis before using a MAC. The Small Business Administration (SBA) supports the COFC’s stance and is preparing changes to the Rule of Two to align with it. Contractors should stay informed about these developments as they could significantly impact their business opportunities.

You can read the full article by Stephen Bacon on the split regarding the Rule of Two and its potential impact on small businesses here.

This article appeared in the May 2023 issue of Contract Management magazine, published by the National Contract Management Association. Used with permission.

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