The President signed the Small Business Jobs and Credit Act of 2010 on September 27, 2010 which eliminated the preference HUBZone set-asides had over other small busines programs such as 8(a) and Service disabled veterans. Section 1347(b) of the Act merely stated that it struck "shall" and inserted "may" in the Small Business Act, 15 U.S.C. 657a(b)(2)(B). This small change had a great afffect on the government's acquisition ppolicy. This is the section relied upon by GAO and Federal courts in ruling that HUBZone set-asides were mandatory and held preference over the other small business set-asides.
Prior to the change the section read:
(B) a contract opportunity shall be awarded pursuant to this
section on the 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; and . . .
The "shall be awarded" language was held to give preference over the other set-asides
which declared that such contracts "may" be awarded using set-asides. Now that the
language has been changed most federal small business set-asides will give parity to the
several small business programs.
This change does not affect the Veterans Administration program giving preference on
VA awards to service disabled veterans and non service disabled veterans. the statute covering
VA acquisitions, 38 U.S.C. 8127, still contains the mandatory "shall" language.
