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fedcontract

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  1. Yes, thank you for posting that Don. This was my understanding as well - that we are required to post our notice of intent, let others know that they can submit a capability statement in response, and provide a copy of the solicitation if it is requested. I think your post provides a good summary of these requirements:
  2. Thanks for your response FrankJon. This is how I have done it in the past as well for sole source J&As. My reading is that if you are doing a competition (whether it's full and open, limited etc.) you issue a pre-solicitation notice and then the solicitation after the required time period, but if you have a sole source acquisition, you issue your intent to award sole source for the required time period and then move forward if there are no additional responses. FAR 5.203(a) states, for synopses of proposed contract actions: To me, this means a pre-solicitation notice if a solicitation will be issued and a notice of intent to award sole source in the event of a sole source action IAW FAR 6.302. For the solicitation, 2.102(a) would then apply, and a solicitation would have to be posted because that section is applicable to "solicitations synopsized through the GPE"; whereas, 2.102(e) would apply to the notice of intent to award sole source, and the contracting officer would then be required to provide a solicitation only if it is requested by another firm during the allotted response period.
  3. Here are couple of threads in which the topic was previously discussed: http://www.wifcon.com/discussion/index.php?/topic/1239-sole-source-rfp/&tab=comments#comment-25535 http://www.wifcon.com/discussion/index.php?/topic/3466-posting-of-sap-sole-source-requirements/&tab=comments#comment-30997
  4. I know this topic has been discussed in the past, but all of the forums are now closed. I wanted to reintroduce the topic, because it seems to me that several citations are being overlooked. It seems the past consensus has been that a solicitation needs to be posted when one has an approved sole source J&A, but I'm not sure that I agree. In this scenario, I have an approved sole source J&A IAW FAR 6.302-1. I agree that a Sources Sought had to be done and addressed in the J&A (DFARS requirement), and I agree that a synopsis of the proposed contract action must be submitted IAW FAR 5.201 (FAR 6.302-1 states that the requirements of FAR 5.201 must be met - note that it does not specifically say this about FAR 5.102, which is the "Availability of Solicitation" section). I also agree that we have to submit the notice of proposed contract action IAW FAR 5.203(a), which states: Why differentiate solicitations and sole source actions if solicitations are required to be posted for all actions? Furthermore, under FAR Subpart 5.201 - Availability of Solicitations, FAR 5.201(e) specifically states: Again, if we are specifying that not all sources needed to be originally solicited, and must only be given a copy of the solicitation if requested, why is everyone assuming that the solicitation needs to be posted publically in the first place? This seems very contradictory. It seems to me that sole source actions wouldn't be called out separately from solicitations in several FAR Part 5 locations if the requirements were the same for both. Additionally, there are several cases of protests regarding sole source awards where the agencies only posted a sources sought and then a notice of intent to award sole source (no solicitation was posted), and these protests were dismissed. In DIGITALIS EDUCATION SOLUTIONS, INC. v UNITED STATES, the judge wrote: If the requirements of FAR 5.207(c) are followed for description when issuing a notice of intent to award sole source (which also requires us to state that "that all responsible sources may submit a capability statement, proposal, or quotation, which shall be considered by the agency" when using 6.302-1) , then this should be enough information for an interested party to provide a capability statement or other document showing its interest and capability. The courts have not, to my knowledge, stated that there is an additional requirement to post a full solicitation. And again, why would the court say that a notice of intent to award sole source "is analogous" to an RFP in a sole source situation if an actual RFP is always required to be posted anyway? PROXTRONICS DOSIMETRY LLC v UNITED STATES is also a case in which a sole source award was protested after the contracting office posted a sources sought, a notice of intent to award sole source and then sent the solicitation only to the intended sole source after obtaining an approved J&A. Any new thoughts on this topic taking into consideration the cited FAR references and cases?
  5. fedcontract

    Missed Option but Have a J&A

    Vern - Our legal counsel's initial position was that once the current PoP ended our contract had "expired" and the only option was to issue a new contract; however, I think you have a great point that if we can modify for other reasons years later, then nothing should be specifically preventing us from bilaterally modifying to extend right now. (An update on my situation is at the end of this comment.) FrankJon - Yes, from a practical standpoint, some of this is what I was hoping to avoid by just modifying the original contract. While many of these, as Vern stated, would need to be done regardless of the approach (market research, FBO notice, updated Acq Plan, 2579 etc.), some of the other purely administrative aspects (such as adding clauses and actually generating a new contract in the system, as you mention) are quite time consuming...especially when the alternative is just writing a modification and turning the already-written contract back "on". To your point, something else that I was hoping to be able to avoid by issuing a modification was the "transfer" of GFP. In my scenario, there is quite a bit of GFP on contract, and it has very specific safety, security and accountability requirements. Even if it is just a transfer to account for the new contract number, it still has to go through the transfer approval process and has the potential to muddy things up. Vern - Thanks for sharing this. My situation (unfortunately) exactly resembles the third and "more problematic" scenario, and I appreciate everyone's discussion points and input on it. It would be interesting to delve into whether there is a "correct" way to remedy the situation after a J&A is obtained (or if both ways are equally correct). But this brings me to an update - After further discussion between policy and legal yesterday and today, legal has agreed to support a bilateral modification to extend. Despite the "technical correctness" (their words), they have stated that they see little risk in the proposed approach.
  6. fedcontract

    Missed Option but Have a J&A

    Exactly. I am not this person's supervisor, but the supervisor is fully aware of the situation, so I would expect it to be taken into account accordingly at appraisal time.
  7. fedcontract

    Missed Option but Have a J&A

    This is true. It has sparked a lot of conversation between contracting, policy and legal though. Policy is also of the mindset that we should be able to mod, but the bigger question this leads to is if we cannot mod in this situation, is there ever a situation when it is proper/legal to mod an expired contract? It appears our counsel would say there is not...although it's probably not a situation we run into often. We are currently going without support until we can get this interim/J&A action awarded; however, there is another project in the works to get long-term follow-on coverage.
  8. fedcontract

    Missed Option but Have a J&A

    Thank you for the response. The contract was awarded in 2013, and the PoP just ended on November 25. We intended to issue the final option to have one more year of support (through November 2018), but when our option exercise window was missed, we started the J&A immediately. Even though we have a J&A now, I believe our legal team thinks that we cannot modify the contract since the most recent PoP ended. Their thought is, "How can you modify a contract that no longer exists?" I don't necessarily agree with this, but I also haven't seen anything that would specifically support bilaterally modifying an expired contract to regain support.
  9. I have a question on a topic that has been discussed, but I don't believe it has been discussed with this nuance. We have buyer who notified the contractor of our intent to exercise an option, did the required reviews, and sent to the mod to the KO for review and signature. The KO did not get to signing the mod before the option expired (on a Saturday), and when this was realized two days later on Monday, it was legal's opinion that the contract was over at that point and that there was nothing that we could do to save it. At that point we wrote a J&A and it has been coordinated through legal and the Competition Advocate. They are both good with the J&A, and the contractor has agreed to hold its final option year pricing, terms and conditions; however, there is some disagreement about how to put this new action in place. We (the contracting office) would like to do a bilateral modification to the previous contract so we don't have to transfer GFP and re-write the entire contract, while our legal office is under the opinion that we need to issue an entirely new contract for this action. The GAO cases that address modifications to extend missed options appear to be silent on the issue of "how" to do it properly. They focus on the fact that these can be considered unjustified sole source actions (which ours will not be because we have a J&A), but they appear to remain silent on the issue of whether we can bilaterally extend a contract after the PoP has ended. Any thoughts on this?
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