Government contracting

Small business set-asides for construction

A set-aside reserves a federal contract for small businesses, or for a group such as 8(a), HUBZone, service-disabled veteran-owned, or women-owned firms. To bid one, you must be small under the NAICS code in the solicitation, hold any required certification, and then self-perform enough of the work to meet the limitations on subcontracting.

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A small business set-aside is a federal contract that only small businesses can bid. In construction, that often means a renovation, a paving job, or a facility upgrade that large national firms cannot compete for. To qualify, your company must be small under the size standard for the NAICS code in the solicitation, and for special set-asides you must also hold the matching certification. After award, you must perform a set share of the work with your own forces or other similarly situated firms. For general construction, you cannot pay non-similarly situated subcontractors more than 85 percent of what the government pays you, excluding materials. For special trade contractors, the limit is 75 percent.

Set-asides are not charity. They are a regular part of federal construction buying, and the competition among small firms is real. They do, however, take the largest competitors off the table.

How a contract becomes a set-aside: the rule of two

FAR 19.502-2 sets the basic test. Acquisitions above the micro-purchase threshold and up to the simplified acquisition threshold are set aside for small business unless the contracting officer cannot reasonably expect offers from two or more responsible small businesses with competitive offers. Above the simplified acquisition threshold, the contracting officer sets aside the acquisition when there is a reasonable expectation of offers from at least two responsible small businesses and award at fair market prices. This is the "rule of two."

Under FAR 2.101, the simplified acquisition threshold is $350,000, and the micro-purchase threshold for construction subject to Davis-Bacon wage requirements is $2,000. That is why responding to sources sought notices matters: your response is part of how the agency decides whether two capable small firms exist.

Types of set-asides that apply to construction

Federal set-aside programs at a glance
ProgramWho qualifiesNotable feature
Total small businessAny firm small under the solicitation's NAICS codeMost common set-aside in construction
8(a)Certified 8(a) participantsSole-source awards possible up to $5.5 million for non-manufacturing acquisitions
HUBZoneCertified HUBZone firms10 percent price evaluation preference in full and open competition
Service-disabled veteran-owned (SDVOSB)Firms certified through the U.S. Small Business Administration's veteran certificationAt least 51 percent owned and controlled by service-disabled veterans
Women-owned (WOSB and EDWOSB)Certified women-owned firmsOnly in industries where women-owned businesses are underrepresented

The U.S. Small Business Administration lists the government-wide goals: at least 23 percent of federal contracting dollars to small businesses, with prime goals of 5 percent for women-owned, 5 percent for service-disabled veteran-owned, and 3 percent for HUBZone small businesses. Certification details are in how to get 8(a) certification for construction and HUBZone certification for contractors.

Step by step: positioning for construction set-asides

1. Confirm you are small for each NAICS code

Size is measured per code. In the U.S. Small Business Administration's table of size standards (effective March 17, 2023), most building and heavy civil construction codes carry a $45 million average annual receipts limit, and most specialty trade codes carry $19 million. Affiliates count. A $25 million electrical contractor may be small as a commercial builder but not as an electrical contractor.

2. Get the certifications you qualify for

Total small business set-asides need only your SAM.gov representation. 8(a), HUBZone, SDVOSB, and WOSB set-asides need certification through the U.S. Small Business Administration. Apply well before you need it.

3. Answer sources sought notices

Each response helps prove the rule of two. Keep a ready capability statement and a list of comparable jobs. See how to find federal construction bids.

4. Plan self-performance before you bid

FAR 52.219-14 (Oct 2022) limits what a set-aside prime may pay to subcontractors that are not similarly situated: no more than 85 percent of the amount paid by the government for general construction, and no more than 75 percent for construction by special trade contractors, in both cases excluding the cost of materials. Work that a similarly situated subcontractor passes on to others counts toward your cap. A general contractor that subs out nearly everything cannot meet this limit.

5. Build past performance at the right size

Start with set-asides inside your bonding and staffing capacity. Strong ratings on a $600,000 job lead to the $3 million job.

Worked example: checking the 85 percent limit

Say a small general contractor wins a $2,000,000 small business set-aside for a building renovation. Of that, $500,000 is materials. The limit applies to the amount paid by the government excluding materials, so in this example the base is $1,500,000.

Example: limitations on subcontracting check for general construction
LineAmount
Contract amount$2,000,000
Less materials$500,000
Base for the limit$1,500,000
Maximum to non-similarly situated subs (85%)$1,275,000
Planned subcontracts to large or non-small firms$1,180,000
Room left under the limit$95,000

The plan works, but with little margin. If a $150,000 mechanical change order goes to a large mechanical sub, the contractor could exceed the limit. Tracking this monthly, not at closeout, is the point. Subcontracts to other small businesses that are similarly situated count differently, so code each subcontract by status in your job cost report.

What if another bidder challenges your size?

On a set-aside, the losing bidders can protest the apparent winner's size or status, and the U.S. Small Business Administration decides the question. A protest can delay or cost you the award, so keep your size support ready before you bid: tax returns or financial statements for the averaging period, a list of affiliates and common owners, and any joint venture agreements. If your receipts are close to the limit for a code, have your CPA run the calculation the same way the regulation does instead of eyeballing last year's revenue.

Set-asides beyond federal contracts

Federal set-asides are only part of the picture. Many state and local agencies run their own small, minority, or disadvantaged business programs, and federally funded highway and transit jobs use the Disadvantaged Business Enterprise program, which works through participation goals on a project rather than set-aside contracts. Each has its own certification and rules. See how to get DBE certification and state and local public works bidding basics.

Mistakes to avoid

  • Assuming you are small without checking the NAICS code in the solicitation.
  • Forgetting affiliates when calculating size.
  • Bidding a set-aside as a pass-through prime and failing the subcontracting limit.
  • Letting a certification lapse while bidding as certified.
  • Ignoring sources sought notices, which is how set-asides get created.

Related guides, terms, and tools

Read the glossary entries for small business set-aside and set-aside contract, and the federal construction contract compliance checklist for after award.

Smart Business Automator tracks subcontractors, compliance documents, and job costs by job, which makes it easier to watch self-performance on set-aside work. See subcontractor compliance automation.

Frequently asked questions

What is the rule of two in federal contracting?

It is the test in FAR 19.502-2. A contracting officer sets aside an acquisition for small business when there is a reasonable expectation of offers from at least two responsible small businesses at fair market prices.

What is the size standard for construction set-asides?

It depends on the NAICS code in the solicitation. In the 2023 table, most building and heavy civil codes are $45 million in average annual receipts and most specialty trade codes are $19 million. Check the current table.

How much can I subcontract on a construction set-aside?

Under FAR 52.219-14, no more than 85 percent of the amount paid for general construction, or 75 percent for special trade construction, can go to subcontractors that are not similarly situated, excluding materials.

Do I need certification for a small business set-aside?

Not for a total small business set-aside. You represent your size in SAM.gov. The 8(a), HUBZone, SDVOSB, and WOSB programs require certification.

Sources

  1. Acquisition.gov: FAR 19.502-2, Total small business set-asides
  2. Acquisition.gov: FAR 2.101, Definitions
  3. Acquisition.gov: FAR 52.219-14, Limitations on Subcontracting
  4. U.S. Small Business Administration: Contracting assistance programs
  5. U.S. Small Business Administration: Veteran contracting assistance programs
  6. U.S. Small Business Administration: Table of small business size standards (effective March 17, 2023)
Written and edited by

Maurice Francois writes and edits construction operations guides for Smart Business Automator. More from Maurice on the Scaling Legends podcast.

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