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Set-Aside Decision Doesn't Require Responsibility Determination

Jan.30.2014

In Adams & Assocs., Inc. v. U.S. (Jan. 27, 2014), the Federal Circuit affirmed that, when applying the "Rule of Two" in a small business set-aside determination, the contracting officer needs only a "reasonable expectation" that at least two responsible small businesses would submit offers and is not required to undertake a responsibility determination pursuant to FAR 9.104-1. This establishes a relatively low threshold of market research under the "Rule of Two" and confirms that a contracting officer need not collect information on factors such as capability, capacity, and past performance on small businesses at the acquisition planning phase of a procurement.

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Amy Laderberg O'Sullivan
Partner – Washington, D.C.
Phone: +1 202.624.2563
Email: aosullivan@crowell.com
Rachel Raphael
Associate – Washington, D.C.
Phone: +1 202.624.2521
Email: rraphael@crowell.com