Solicitations for federal contracts performed in foreign countries may include definitive responsibility criteria mandating compliance with the laws and requirements of the host nation. Such criteria are considered objective standards, included in the solicitation to evaluate the offerors’ ability to perform the contract. Procuring agencies may restrict competition using such requirements if the definitive responsibility criteria are reasonably necessary to meet the government’s minimum needs. If an offeror fails to meet specifically included responsibility criteria mandating compliance with foreign laws, it is deemed non-responsible and considered ineligible for an award. Of course, offerors may challenge solicitation terms requiring compliance with foreign laws as unduly restrictive of competition. In such cases, the procuring agency must establish that the solicitation terms containing the responsibility criteria are reasonably necessary to meet its minimum needs. While the agency’s explanation must withstand logical scrutiny to be considered adequate, an offeror’s disagreement with the explanation alone does not demonstrate that the agency’s reasoning is unreasonable. Ultimately, when solicitations for contracts involving performance in foreign countries incorporate definitive responsibility criteria based on foreign laws, prospective offerors must either comply with the terms of the solicitation or demonstrate that the relevant requirements are clearly unreasonable.

The rule of two requires that all contracts above the micro-purchase threshold be set-aside for small businesses, provided there is a reasonable expectation that two or more responsible small business concerns would submit offers at fair market prices and those offers are competitive in terms of quality and delivery. Under the recent overhaul of the Federal Acquisition Regulation (FAR), the rule of two was retained for contracts above the simplified acquisition threshold (SAT), in addition to the statutory requirement that the rule apply to contracts between the micro-purchase and simplified acquisition thresholds. Notably, the revised FAR part 19 removes the requirement for the government to consider socioeconomic set-asides before small-business set-asides. Furthermore, the revised FAR 19.104, which was previously located at FAR 19.502-2, clarifies that, while small business set-asides are required at the master contract level under the rule of two, set-asides are encouraged but not mandatory at the order level for multiple-award contracts. It is also within the contracting officer’s (CO) discretion to follow the rule of two for orders issued under the Federal Supply Schedule (FSS).

Government agencies often establish Blanket Purchase Agreements (BPAs) with General Services Administration (GSA) Federal Supply Schedule (FSS) contractors to meet their repetitive procurement needs in a flexible and streamlined manner. Such BPAs may be single or multiple award and may be utilized by one or more agencies with a period of performance of up to five years. The Federal Acquisition Regulation (FAR) 8.405-3, which contains ordering procedures for BPAs established under FSS contracts, states that a single award BPA may not exceed one year, although it may have up to four one-year options. Contractors should be mindful that such BPAs are not contracts in and of themselves and are awarded against and tied to a contractor’s underlying GSA FSS contract. In this regard, FAR 8.405-3(d)(3) provides that schedule contractors may be awarded BPAs that extend beyond the term of their FSS contract only if there are option periods remaining in their FSS contract that, if exercised, will cover the BPA’s period of performance. Consequently, if an FSS contractor’s schedule contract, including its options, is set to expire before the end of the BPA’s period of performance, then that contractor is ineligible to receive a BPA award.