FR 2025-00616

The proposed rule amendment from the Department of Defense (DoD), General Services Administration (GSA), and NASA aims to modify the Federal Acquisition Regulation (FAR) to clarify the rights concerning protests over orders under certain multiple-award contracts. These changes focus on whether a contracting officer can decide whether an order should be set aside for small businesses and the extent to which such decisions can be protested. This proposed regulation is part of a broader initiative to increase small business participation in federal contracts.

General Summary

This document proposes a new rule to clarify that setting aside or not setting aside an order for small business under a multiple-award contract is a matter of agency discretion. The rule emphasizes that these decisions cannot serve as the sole basis for a protest. The agencies involved expect this clarification to help reduce unnecessary legal challenges, thus saving time and resources for both the government and contractors.

Significant Issues and Concerns

• Complex Legal References: The document references complex legal statutes and past legal decisions, such as 15 U.S.C. 644(r) and various court cases, making the content challenging for those without a legal background. The nuances of these references might be difficult for the average reader to comprehend fully.

• Discretionary Act Explanation: The proposed rule elaborates on the discretionary power granted to contracting officers, a concept that may be difficult for readers unfamiliar with legal jargon or government procurement processes to understand.

• Lack of Context: The document mentions other FAR cases, like FAR Case 2023-011, without fully explaining them, potentially creating confusion for those not already familiar with these references.

• Insufficient Impact Data: The potential consequences for small businesses are discussed in qualitative terms without quantitative backing. This lack of data makes it hard to accurately assess the regulation's impact.

• Speculative Benefits: While the rule anticipates saving time and resources, these potential benefits are speculative and not supported by specific evidence within the document.

Impact on the Public and Stakeholders

• Broad Public Impact: For the general public, this rule aims to streamline procurement processes and reduce legal bottlenecks related to small business set-asides in government contracts. Simplifying these processes could potentially lead to more efficient government operations.

• Impact on Small Businesses: Potentially positive, this rule could provide small businesses with clearer guidance on when set-aside decisions can be contested, possibly creating a more stable contracting environment. However, the lack of quantitative impact analysis leaves small business stakeholders without concrete evidence of potential benefits.

• Impact on Government and Contractors: The rule could reduce the number of protests, conserving resources and expediting the issuance of orders. This efficiency can be beneficial, driven by fewer delays in procuring needed goods and services.

In summary, while the proposed rule aims to enhance clarity and efficiency, its reliance on complex legal references and the absence of detailed impact assessments highlight areas needing careful consideration. Stakeholders, especially those from small businesses, might benefit from this rule but may require more complete information to fully understand its implications.