Over the last few years,

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1 36 Contract Management March 2010

2 Contract Management March

3 Over the last few years, the Government Accountability Office (GAO) has been active in making small business contracting policy through bid protest decisions. The latest of these decisions, Mission Critical Solutions, B (May 4, 2009), reaffirmed an earlier decision 1 holding that historically underutilized business zone (HUBZone) set-asides take precedence over other set-aside programs. GAO s Bid Protest Authority GAO s explicit authority to hear bid protests was granted by the Competition in Contracting Act. 2 In accordance with 31 U.S.C. 3552, GAO has jurisdiction over protests 3 concerning an alleged violation of a procurement statute or regulation. If GAO finds that an agency has committed such a violation, 31 U.S.C requires that the comptroller general shall recommend that the agency take the remedial action specified by GAO. Among the actions that GAO may recommend is for the agency to reimburse the protester its cost of filing and pursuing the protest, to include reasonable attorney fees and its proposal preparation costs. 4 However, GAO only has the power to recommend corrective action. In this regard, GAO has no direct mechanism, such as contempt of court, to enforce its recommendations. However, if an agency fails to comply with a GAO recommendation, the agency must notify GAO of this refusal 5 and GAO must report the failure to specified committees of Congress. 6 Additionally, GAO is required to transmit to the Congress a report containing a summary of each instance in which a federal agency did not fully implement a recommendation of the comptroller general. 7 The Small Business set-aside programs Each of the four set-aside programs described in the Federal Acquisition Regulation (FAR) is derived from the Small Business Act, as amended. Small Business Set-Asides The small business set-aside is covered in 15 U.S.C. 631(a), which reads: It is the declared policy of the Congress that the government should aid, counsel, assist, and protect, insofar as is possible, the interests of small business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the government... be placed with small business enterprises. This provision does not specifically mention set-asides or how the placement of a fair proportion of contracts with small businesses should be achieved. Thus, it was up to the writers of the procurement regulations to provide guidance on this point. The current guidance on small business set-asides can be found in FAR In this regard, FAR provides: The contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when 1. It is determined to be in the interest of maintaining or mobilizing the nation s full productive capacity, war or national defense programs; or 38 Contract Management March 2010

4 2. Assuring that a fair proportion of government contracts in each industry category is placed with small business concerns; and the circumstances described in or (a) exist. 9 Thus, there are two alternative circumstances in which a procurement is to be set aside for small businesses. The first is when the contracting officer determines that doing so would serve the interest of maintaining or mobilizing the nation s full productive capacity, war or national defense programs. The second is when the contracting officer determines such action is necessary to ensure that a fair proportion of contracts is awarded to small businesses and certain specified conditions are met. With regard to these conditions, FAR (a) mandates that procurements exceeding the micropurchase ceiling, but not exceeding the simplified acquisition threshold (SAT) are automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. For procurements that exceed the SAT, FAR (b) requires contracting officers to set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that 1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns and 2) award will be made at fair market prices. Clearly, the so-called Rule of Two enunciated in FAR (b) was not derived from the statute. Instead, it is a requirement of the procurement regulations. The 8(a) Program The statutory basis for the 8(a) program is 15 U.S.C. 637, which reads: In any case in which the administration certifies to any officer of the government having procurement powers that the administration is competent and responsible to perform any specific government procurement contract to be let by any such officer, such officer shall be authorized in his discretion to let such procurement contract to the administration upon such terms and conditions as may be agreed upon between the administration and the procurement officer. ( ) i. A contract opportunity offered for award pursuant to this subsection shall be awarded on the basis of competition restricted to eligible program participants if I. there is a reasonable expectation that at least two eligible program participants will submit offers and that award can be made at a fair market price, and II. the anticipated award price of the contract (including options) will exceed $5,000,000 in the case of a contract opportunity assigned a standard industrial classification code for manufacturing and $3,000,000 (including options) in the case of all other contract opportunities. 10 As this extract demonstrates, an 8(a) setaside is a two-step process. First, a procurement must be one that SBA certifies to an agency that SBA can perform through an 8(a) participant. 11 Accepting SBA s offer of Contract Management March

5 performance is left to the discretion of the agency. 12 However, if the agency agrees to the award of the contract for performance by an 8(a) participant, the contract must be awarded using competitive procedures limited to eligible 8(a) participants when the conditions described above are present. Although the statute seems to give SBA the responsibility for identifying procurements that are suitable for performance by participants, the FAR permits agencies to identify those procurements that the agency wishes to offer to SBA. In this regard, FAR (e) mandates that before using small business, service-disabled veteran owned small business, or HUBZone small business set-aside procedures, the contracting officer should review the acquisition for offering under the 8(a) program. 13 Thus, the FAR seems to suggest that there is a hierarchy of set-aside preferences, with 8(a) being the preferred set-aside, although the suggested order of preference is not mandatory due to the use of the word should. In this context, should merely denotes a desired outcome or expected course of conduct, not an absolute requirement. Service-Disabled Veteran Owned Small Business Set-Asides The statutory basis for service-disabled veteran owned small business (SDVOSB) set-asides is 15 U.S.C. 657f, which states: In accordance with this section, a contracting officer may award contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if the contracting officer has a reasonable expectation that not less than 2 small business concerns owned and controlled by service-disabled veterans will submit offers and that the award can be made at a fair market price. As indicated by this statute, the circumstances in which a procurement may be set aside for competition limited to SDVOSB concerns is identical to the circumstances listed in the FAR for a small business set-aside. There is no monetary threshold for when a competitive SDVOSB set-aside is permitted as there is for an 8(a) set-aside. Further, from this excerpt, it is clear that a SDVOSB set-aside is strictly a matter of discretion for the contracting officer. Finally, there is nothing in this statute that hints at a preference among the four set-aside procedures described in FAR Part The SBA rules for SDVOSB contracting are found in 13 C.F.R In this regard, 13 C.F.R states that if certain restrictions on SDVOSB contracting do not exist, the contracting officer should consider setting aside the requirement for 8(a), HUB- Zone, or [SDVOSB concern] participation before considering setting aside the requirement as a small business set-aside. Again, because of the use of the word should, this is only an expected action, not a mandatory action. However, the rules for contracting with SDVOSB concerns do not provide any guidance on what factors the contracting officer must or should consider in determining whether a procurement should be set-aside for 8(a), HUBZone, or SDVOSB participation before considering setting aside the requirement as a small business set-aside. It is clear from this language that SBA s SDVOSB rules do not establish any mandatory order of preference among the set-aside programs, although there is a suggested one. Similarly, the FAR does not provide any guidance on what factors a contracting officer should consider before setting a procurement aside for SDVOSBs. 15 Moreover, the FAR does not state that the contracting officer should consider setting aside the requirement for 8(a), HUBZone, or SDVOSB participation before considering setting aside the requirement as a small business set-aside. Instead, it merely states that a contracting officer may set aside acquisitions for procurements exceeding the micropurchase level 16 for competition restricted to SDVOSB concerns when the Rule of Two is met. HUBZone Set-Asides HUBZone set-asides are authorized by 15 U.S.C. 657a, which provides: Notwithstanding any other provision of law a contract opportunity shall be awarded pursuant to this section on the 40 Contract Management March 2010

6 basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price. This section gives contracting officers authority to award contracts on the basis of competition restricted to HUBZone small business concerns when the Rule of Two is met. There is no threshold for application of this set-aside authority as there is for 8(a) set-asides. Further, this provision does not give contracting officers discretion in regard to whether a HUBZone set-aside will be accomplished when the Rule of Two is met as is the case with 8(a) and SDVOSB set-asides. Finally, this provision has unique language stating that a HUBZone set-aside will be used [notwithstanding any other provision of law. 17 SBA has implemented the HUBZone statute in 13 C.F.R In regard to HUBZone setasides, 13 C.F.R mandates that unless certain limitations on HUBZone contracting 18 apply, the contracting officer shall set aside the requirement for HUBZone, 8(a), or SDVOSB contracting before setting aside the requirement as a small business set-aside. The SBA regulations do not provide any guidance on how a contracting officer is to decide which, if any, of the three set-asides will be used instead of a small business set-aside. Importantly, the SBA rules do not have any mention of the statutory notwithstanding requirement. In any event, the SBA HUBZone rules clearly indicate a preference for using HUBZone, 8(a), or SDVOSB contracting over small business set-asides. FAR coverage of HUBZone set-asides is provided in FAR , which reads: A participating agency contracting officer shall set aside acquisitions exceeding the simplified acquisition threshold for competition restricted to HUBZone small business concerns when the requirements of [the Rule of Two] can be satisfied. It goes on to state that contracting officers shall consider HUBZone set-asides before considering a small business set-aside. Thus, the FAR has a clear preference for use of HUBZone set-asides over small business set-asides. Further, the FAR does not contain a requirement for consideration to be given for the use of an 8(a) or SDVOSB set-aside before a HUBZone set-aside can be used. The GAO decisions International Program Group International Program Group (IPG) filed a protest concerning the issuance of a task order and a proposed task order award to Veteran Government Services (VGS), a SD- VOSB. Both the order and proposed award were for pre-deployment training services for the U.S. Marine Corps. IPG argued that in both instances it was improper to set the procurement aside for SDVOSBs and that each procurement should have been conducted as a HUBZone set-aside. Concerning the order, the contracting specialist who was assigned the procurement stated that because of the short time frame allotted for performance, he first considered a HUBZone sole-source award. This award would likely have gone to IPG because it was the only HUBZone concern to have submitted offers for previous requirements for the training services. However, because the specialist had concerns on unspecified limitations on sole-source HUBZone contracting, he decided to consider an award to a SDVOSB concern and did not conduct any research to determine if there were other HUBZone small business concerns that could satisfy the requirement. Since VGS was the only SDVOSB concern that had submitted offers on previous requirements, the specialist conducted further research on the availability of other SDVOSB concerns. In this regard, he identified 25 concerns and contacted 22 of them. However, only VGS expressed any interest in the order. Accordingly, VGS received the order. Concerning the proposed award, the contracting officer who made the final set-aside Contract Management March

7 decision stated that she considered the HUBZone, 8(a), and SDVOSB small business programs, and the agency s progress toward its small business contracting goals. In considering the agency s contracting goals, the contracting officer determined that the contracting activity had exceeded its goals, but that its parent activity was below its targets for both HUBZone and SDVOSB contracting, and was further from its goal with regard to SDVOSBs. On that basis, the contracting officer issued the solicitation for the order as a SDVOSB set-aside. In discussing the protests, GAO noted: [The] threshold issue in both of IPG s protests is the relationship between the HUBZone and [SDVOSB] programs, specifically, whether a contracting officer must proceed with a HUBZone set-aside provided the listed conditions are present a reasonable expectation that offers will be received from two or more HUBZone firms and that award will be made at a fair market price or whether the contracting officer retains the discretion to proceed instead with an [SDVOSB] set-aside. To resolve this issue, GAO noted that the starting point of any analysis of the meaning of a statutory provision is the statutory language used by Congress. Following this principle, GAO concluded that, given the unambiguous language of the HUBZone and SDVOSB statutes, a HUBZone setaside is mandatory where the enumerated conditions are met, and that the discretion granted the contracting officer under the SDVOSB set-aside program does not supersede the mandatory nature of the HUBZone set-aside program. To interpret the statutes otherwise, would, as noted by GAO, in effect create parity between the programs, which would fail to give effect to the clear language of the HUBZone statute, which uses the mandatory term shall. Further, GAO concluded that FAR properly implemented the HUBZone statute. This latter comment was a clear rebuke to SBA, whose views on the protests had been sought by GAO. In this regard, SBA had informed GAO that SBA interpreted the statutes and regulations to provide for parity among the HUBZone, SDVOSB, and other small business programs, so that after identifying qualified participants, the contracting officer has the discretion to choose among the set-aside programs based on consideration of the contracting activity s progress in fulfilling its small business contracting goals, as well as other relevant factors. 19 Based upon its determination that the agency was required to use a HUBZone set-aside if the conditions for such set-aside were present, GAO relied upon previous decisions holding that an agency must make reasonable efforts to determine whether it will receive offers from at least two HUBZone small business concerns to sustain the protest. In this regard, GAO concluded that the Marine Corps did not make such reasonable efforts. 42 Contract Management March 2010

8 It is apparent from this decision that GAO did not directly challenge any SBA rules when deciding the International Program Group protests. Mission Critical Solutions Mission Critical Solutions (MCS) was both an 8(a) participant and a qualified HUBZone small business. MCS protested the U.S. Army s award of a sole-source contract for IT services to an Alaska Native Corporation (ANC). MCS argued that rather than awarding to the ANC on a sole-source basis, the Army should have competed the requirement among HUBZone small businesses. Prior to January 2008, a large business provided the services. In December 2007, the Army notified SBA that the effort was appropriate for set-aside under SBA s 8(a) program and that it intended to award a sole-source contract to MCS. SBA accepted the requirement into the 8(a) program and authorized the Army to negotiate directly with MCS. On January 31, 2008, the Army awarded MCS a one-year contract. Near the conclusion of the one-year period of performance, the Army determined that it would structure the follow-on contract for the services to include a base and two option years. Because this raised the anticipated value of the contract to an amount in excess of $3.5 million, a sole-source award to MCS was precluded by FAR FAR provides that, unless SBA accepts the requirement on behalf of a concern owned by an Indian tribe or an ANC, an acquisition under the 8(a) program must be awarded on the basis of competition limited to eligible 8(a) firms if: There is a reasonable expectation that at least two eligible and responsible 8(a) firms will submit offers and that award can be made at a fair market price; and The anticipated total value of the contract, including options, will exceed $3.5 million (for nonmanufacturing acquisitions). The Army then determined that the ANC was capable of performing the requirement and awarded the contract to the ANC. MCS then protested the award arguing that the HUBZone statute required the procurement to be set aside for competition among HUB- Zone small businesses. As it had done in International Program Group with regard to the relationship between the HUBZone and SDVOSB statute, GAO examined the relationship between the HUBZone statute and the law authorizing the 8(a) program. In this case, GAO noted that the 8(a) provision confers discretion upon contracting agencies whether to offer a procurement into the 8(a) program. Flowing from this analysis, GAO concluded that, because of the mandatory nature of the language in the HUBZone statute, and the discretionary nature of the statutory language authorizing the 8(a) program, 20 it was improper for the Army to proceed with a sole-source award to the ANC without considering whether a set-aside for HUBZone concerns was required. Contract Management March

9 Along this same line, GAO recognized that its conclusion that an agency must make reasonable efforts to determine whether it will receive offers from two or more HUBZone small businesses, and if so, set the acquisition aside for HUBZone firms, even where a prior contract for the requirement has previously been performed by an 8(a) contractor, was inconsistent with the views of SBA, as stated in its comments on the protest and as implemented through its regulations. GAO stated that the SBA regulations essentially provide that HUBZone set-asides are not required, even where the criteria specified in the HUBZone statute are satisfied, if the requirement has previously been performed by an 8(a) contractor or the contracting officer has chosen to offer the requirement to the 8(a) program. 21 In this regard, GAO observed that while an agency s interpretation of a statute that it is responsible for implementing is entitled to substantial deference, and, if reasonable, should be upheld, an interpretation that is unreasonable is not entitled to deference. In this case, GAO did not think that SBA s regulations implementing the HUBZone and 8(a) statutes were reasonable since they failed to give effect to the mandatory language of the HUBZone statute. Implications of the GAO decisions In contrast to its decision in International Program Group, GAO directly considered in Mission Critical Solutions whether certain SBA regulations were consistent with the statutes they were implementing. This has raised concerns as to whether GAO overstepped its authority by doing so. These concerns center around the notion that GAO has invalidated SBA regulations or that addressing the SBA regulations was not necessary for GAO to dispose of the protests. The first concern does not seem valid for two reasons. First, GAO s bid protest authority gives GAO the power to decide protests alleging that an agency has violated a procurement statute or regulation. There should be no doubt that SBA regulations concerning set-asides are procurement regulations. Accordingly, it was appropriate for GAO to examine SBA regulations and the FAR in deciding the protests under discussion here. Moreover, this was consistent with the prior GAO practice of examining small business contracting statutes, SBA regulations, and FAR provisions. In MCS Portable Restroom Service, 22 MCS, a SDVOSB, protested the Air Force s decision not to set aside a requirement for SDVOSBs or, alternatively, to make a sole-source award to an SDVOSB, for portable chemical toilet services at the Air Force Academy, and to instead obtain these services as a small business set-aside. Regarding the latter allegation, the agency asserted that FAR (a) precluded a sole-source award to an SDVOSB when more than one SDVOSB existed that could satisfy the requirement. FAR (a) states 44 Contract Management March 2010

10 that a contracting officer may award contracts to [SDVOSBs] on a sole source basis provided [o]nly one [SDVOSB] can satisfy the requirement. The Air Force s essential argument was that FAR (a) precluded making a sole source award to an SDVOSB if more than one SDVOSB existed that could potentially perform the work. In other words, although an offer was expected from only one offeror, other firms existed that were capable of performing the work. Therefore, the Air Force believed the FAR provision did not authorize the award of a sole-source contract. MCS and SBA asserted that the Air Force misinterpreted FAR (a). In resolving this issue, GAO began its analysis with the language of the Veterans Benefit Act of 2003, which states: a contracting officer may award a sole-source contract to any [SDVOSB] if such concern is determined to be a responsible contractor with respect to performance of such contract opportunity and the contracting officer does not have a reasonable expectation that 2 or more [SDVOSBs] will submit offers for the contracting opportunity 23 GAO observed that both the act and the implementing SBA regulations provided contracting officers with the discretion to make sole-source awards to SDVOSBs where the prerequisites that would allow for an SDVOSB set aside had not been met (i.e., offers will not be received from two SDVOSBs and award will be made at a fair market price). Neither the act nor the SBA regulations made a sole-source award dependent upon the number of firms capable of performing the work, only the number of bids or offers expected. While the Air Force s position would seem to have been consistent with a literal reading of FAR (a), GAO reiterated that a regulation must be interpreted so as to harmonize with and further and not conflict with the objective of the statute it implements. In this regard, the plain meaning and intent of the Veterans Benefit Act of 2003 is that a sole-source award to a SD- VOSB is permitted if the contracting officer does not have a reasonable expectation that two or more SDVOSBs would submit bids. Therefore, GAO held that the FAR should be read consistent with the statutory and SBA regulatory language. Thus, when protests involve the propriety of small business preferences, GAO s practice has been to begin its analysis with the language of the statute authorizing the set-aside or preference. It then examines the SBA regulations and FAR provisions that implement the statute. If one of the regulatory implementations is inconsistent with the statutory language, GAO gives effect to the regulation that is consistent with the statute. In our view, this comports with GAO s statutory authority to rule on protests that allege a violation of a procurement law or regulation. GAO did not act outside its authority. Unlike the courts, which have the authority to direct action and the ability to enforce their orders through contempt of court proceedings, GAO only has the power to recommend certain actions. Thus, GAO cannot direct agencies to do anything, although failure to follow previous GAO bid protests decisions can certainly result in a subsequent protest being sustained. 24 Moreover, nowhere in either decision did GAO state that it was invalidating any regulation. 25 Accordingly, the SBA regulations remain in full force and effect, and the Office of Management and Budget has directed agencies to continue to follow the SBA regulations. 26 As to the concern that addressing SBA policy was not necessary to either decision, we disagree. In these decisions, GAO faced an issue of the relationship between the HUB- Zone and SDVOSB statutes and the HUB- Zone and 8(a) statutory provisions. Because SBA, not the FAR Councils, has the statutory responsibility for implementing these statutes, it was eminently reasonable for GAO to seek SBA s views of these statutes. Generally, as indicated in MCS, SBA s views on statutes it implements are given great deference if they are consistent with the underlying statutes. That principle would have particular significance here because of the inconsistency between FAR and SBA views in regard to the relationship between the HUBZone and other set-asides. However, in these instances, GAO determined that SBA s regulations were not consistent with the statutes, but the FAR properly implemented the HUBZone statute. Thus, for a full explanation of its reasoning in sustaining the protests, it was necessary for GAO to comment on SBA s position. 27 Another issue raised by these decisions is their impact on small business set-asides. As discussed above, they are merely regulatory requirements to ensure that a fair proportion of contracts are awarded to small business concerns. In this regard, FAR makes small business set-asides mandatory when the requirements identified there are met. Thus, the FAR contains two mandatory set-aside requirements: HUBZone and small business. Based on this, and the reasoning in IPG, Mission Critical, and MCS, it can be anticipated that GAO would hold that small business set-asides take precedence over 8(a) and SDVOSB set-asides. However, a HUBZone set-aside would take precedence over a small business set-aside. Finally, these decisions raise the broader issue of what a contracting officer is to do when there is a potential conflict between the FAR and regulations that another agency is given the authority to promulgate. In addition to FAR Part 19, there are several other FAR provisions that import regulations that other agencies have promulgated pursuant to powers granted to them by the statutes being implemented. Some examples include: The coverage of the Service Contract Act and Davis-Bacon Act found in FAR Part 22 implementing regulation promulgated by the Department of Labor, FAR Part 30 implementing the Cost Accounting Standards and related rules promulgated by the Cost Accounting Standards Board, Contract Management March

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12 FAR 32.9 addressing Prompt Payment Act regulations of the Treasury, and FAR 33.1 implementing GAO bid protest procedures. In addition, there are other agency regulations, such as the Randolph-Sheppard Act regulations promulgated by the Department of Education, which must be considered for conflicts with the FAR. 28 As MCS demonstrates, agency compliance with the literal terms of the FAR does not always mean that a protest will not be sustained if the FAR provision in question is not consistent with a statute or another agency s implementation of that statute. On the other hand, compliance with the regulations of the nonprocuring agency would not ensure that a protest would be denied. Contracting officers have a difficult decision to make in this regard, particularly in light of FAR (b), which states: No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met. If there is a conflict between the FAR and another agency s regulations, contracting officers would be better served not to comply with the FAR unless the agency can determine that the other agency s regulations are clearly an impermissible implementation of law. CM About the Author JOHN N. FORD, JD, is a senior government contracting consultant with Cherry, Bekaert & Holland, LLP. He can be reached at jford@cbh.com. Send comments about this article to cm@ncmahq.org. To discuss this article with your peers online, go to and click on Join Discussion. Endnotes 1. International Program Group, Inc., B and B (September 19, 2008) U.S.C et. seq. 3. For these purposes, 31 U.S.C defines a protest as a written objection by an interested party to a solicitation or other request by a federal agency for offers for a contract for the procurement of property or services, the cancellation of such a solicitation or other request, an award or proposed award of such a contract, or a termination or cancellation of an award of such a contract (if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract) U.S.C. 3554(c)(1) U.S.C. 3554(b)(3) and (c)(3) U.S.C. 3554(e)(1) U.S.C. 3554(e)(2). 8. SBA has not promulgated regulations stating when a small business set-aside is required. 9. FAR addresses partial small business set-asides. In this article, only total set-asides will be discussed. 10. These statutory thresholds have been raised in FAR to account for inflation. A recomputation of the thresholds is scheduled to occur this year. However, it should be noted that the SBA rules still contain the statutory thresholds. See 13 C.F.R The process for doing this is described in FAR The process for notifying SBA of a potential offering is described in SBA s rules at 13 C.F.R and FAR Some agencies, such as the Department of Defense, have entered into partnership agreements with SBA under which the agency can negotiate directly with 8(a) participants on a sole source or competitive basis. Under these arrangements, SBA remains the prime contractor, but the 8(a) participant has been delegated authority to sign the contract on behalf of SBA. See Defense FAR Supplement Section (e) goes on to state: If the acquisition is offered to SBA, SBA regulations (13 C.F.R (b)) give first priority to HUB- Zone 8(a) concerns. However, the cited SBA regulation was amended in 2005 to eliminate the HUBZone preference identified in the FAR. 14. SDVOSB set-asides are addressed at FAR See FAR See FAR For a recent Court of Federal Claims decision interpreting the work notwithstanding, see Catherine Jones, et al. v. U.S., COFC No C (September 14, 2009). In this regard, the Court noted that, in legal parlance, notwithstanding is equated with despite. Parsing 15 U.S.C. 657a using this interpretation, that statute would read, despite any other provision of law. 18. See 13 C.F.R What these other factors might be was not further identified. 20. In this regard, in its comments on the protest, SBA contended that the only discretion contracting agencies have in regard to the 8(a) program is whether they will accept the participant selected by SBA to perform the contract. GAO rejected this contention. 21. See 13 C.F.R , , and B (March 28, 2007) U.S.C. 657f. 24. As seen above, even if GAO sustains a protest, the agency is not bound to abide by that decision. 25. The GAO decisions should be contrasted to the Court of Appeals for the Federal Circuit s decision in Rothe Development Corp. v. DoD and Department of the Air Force, No p (November 8, 2008), where the Court declared the price adjustment factor for small disadvantaged businesses and HUBZone small businesses found in 10 U.S.C unconstitutional. 26. This was accomplished in a July 10, 2009 memorandum in which OMB stated: Pending the completion of the legal review of the GAO s decisions by the Executive Branch, the SBA s parity regulations should not be disregarded by contracting officers, and federal agencies should not, as a result of the GAO s decisions, be compelled to prioritize HUB- Zone small businesses over 8(a) BD or SDVOSBs. Instead, until the legal review is completed, Federal agencies should continue to give active consideration to each small business program pursuant to their pre-existing contracting practices and parity policies. The legal review mentioned in this quote was completed by the Department of Justice on August 21, In a memo to SBA on that date, DOJ concluded that the SBA regulations were a permissible implementation of the Small Business Act. Interestingly, neither OMB nor DOJ addressed the inconsistencies between the SBA regulations and the FAR noted above. 27. If we assume that GAO had agreed with SBA, GAO would have had to state that FAR was inconsistent with the statutes and SBA policy. In so doing, GAO would have had to explain its reasoning as it did in MCS. Likely, this would have necessitated a discussion of SBA s views. 28. See Intermark, Inc., B (October 23, 2002) where GAO upheld a protest in which the protester asserted a procurement conducted under the Randolph-Sheppard Act should have been conducted as a small business set-aside, although a state licensing agency offering for the blind vendor would not qualify as a small business. Contract Management March