A proposed rule was published in October 2024 by the Small Business Administration (SBA) for comment in the Federal Register on use of small businesses under multiple award contracts. This would implement the Tolliver case decision and require the ordering officer to create set-aside orders when there is a “ reasonable expectation of obtaining offers from two or more small business contract holders under the multiple award contract that are competitive in terms of market price, quality and delivery.”
on. These procedures are found at DFARS Procedures, Guidance and Information (PGI) 216.505(b)(2). In essence, they require the ordering of- ficer to provide a copy of the previous justification to support the approval of the present (follow-on) justifica- tion. Approvals also are required at one level above the prior action if any actions to remove barriers to compe- tition cited in the prior justification were not accomplished. If, however, it was done by the senior procure- ment executive (SPE) of the agency, it would remain at the SPE level. Protests One way these MATOCs stream- line contracting is by limiting the con- tractors’ ability to protest an award decision per FAR 16.505(a)(10). Pro- tests may be made only if an order is beyond the scope or maximum value of the contract or if an order for DoD, NASA, or the Coast Guard is placed for more than $25 million. And these later orders may only be protested to the GAO, not the U.S. Court of Federal Claims. Perhaps to mitigate this restriction, agencies are required to designate an ombudsman to review contract com- plaints and ensure fair opportunity is given per FAR 16.505(b)(8). Future Changes A proposed rule was published in October 2024 by the Small Business
Administration (SBA) for comment in the Federal Register on use of small businesses under multiple award contracts. This would implement the Tolliver case decision and require the ordering officer to create set-aside orders when there is a “reasonable expectation of obtaining offers from two or more small business contract holders under the multiple award con- tract that are competitive in terms of market price, quality and delivery.” If the ordering officer decides not to set aside the order, documentation will be required. This proposed change to the SBA rules would then have to be implemented in the FAR. On Jan. 15, 2025, two new FAR cases were issued with proposed rules to change the FAR on this topic. FAR Case 2023-011 proposes policy to update market research, acquisition planning, small business specialist co- ordination, and the use of set-asides during the award of, and placement of, orders against certain multiple-award contracts. FAR Case 2024-007 clarifies that the contracting officer’s decision about whether or not to set aside an order on a MATOC is not an addi-
tional ground for protest. Comments on both cases are due in March 2025, so final rules may be published later this year. JONES is an intermittent professor of contract management at DAU South Region. She has worked in the defense contracting field for 45 years and holds a B.S. from the College of William and Mary. The author may be contacted at: jennifer.jones@dau.edu . The views expressed in this article are those of the author alone and not the Department of Defense. Reproduction or reposting of articles from Defense Acquisition magazine should credit the authors and the magazine.
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May-June 2025 | DEFENSE ACQUISITION | 41
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