The Rule of Two to Transform Small Businesses
The SBA proposed a rule on October 25, 2024, aiming to transform small business contracting by requiring agencies to apply the “Rule of Two” to task and delivery orders under multiple-award contracts (MACs). The Rule of Two ensures contracts go to small businesses when at least two qualified small firms can meet price, quality, and delivery standards. This rule will apply to orders exceeding the micro-purchase threshold, with exemptions for orders placed under the General Services Administration’s Federal Supply Schedule or in cases where there are supply chain risks or national security concerns. (HSToday.US November 7, 2024)
Driven by concerns over declining small business participation, the SBA estimates this rule could increase small business contracts by $6.1 billion annually. It supports the Biden administration’s goal of 15% federal contract spending with small disadvantaged businesses (SDBs) by 2025. In fiscal 2023, 28.4% of federal contract dollars went to small businesses, yet new entrants to federal contracting have dropped nearly 60% since 2010. (ibid)
The SBA proposal requires agencies to document their decision when they choose not to set aside a contract under the Rule of Two. Agencies must conduct market research, justify their rationale, and coordinate with small business specialists. For orders under MACs with fewer than two small business contract holders, agencies must explain their decision, with exceptions for contracts under the Federal Supply Schedule and other specific exemptions. (ibid)
This proposal builds on a January 2024 memorandum from the Office of Federal Procurement Policy, which directed agencies to document such decisions. The SBA aims to address inconsistencies in applying the Rule of Two, which arose from differing interpretations by the Court of Federal Claims and the GAO regarding its use in MACs.aiming to improve compliance and Public comments are open until December 24, 2024, with the SBA encouraging input from stakeholders. If adopted, the rule promises to level the playing field, boost small business participation, and diversify the federal supply chain. (ibid)
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