Kathleen A. Kern

I have also been reminded that the FAR may be talking to a competitive situation. Mine is not. Thank you for the input!

Yes, it is all about the cost savings, I understand this point. My question, better stated (I hope) is: Why can I ONLY give authorization in the cost reimbursement environment and not in the FFP, for example?

I have a FFP BPA, 8(a). The use of a GSA schedule by my prime (use of Government sources by Contractors) appears to be the only way to obtain the material required at the best price. (The GSA firm WILL NOT provide GSA pricing to my Prime without a letter of authorization from me, the KO) Does anyone have an idea why FAR would only permit authorization to use sources in the performance of cost reimbursement contracts or other types when the a substantial portin of the contractor's contracts are cost reimbursement? I am just re-entering the world of using GSA contracts - bear with me on this one. FAR 51 states " 51.101 -- Policy. (a) If it is in the Government’s interest, and if supplies or services required in the performance of a Government contract are available from Government supply sources, contracting officers may authorize contractors to use these sources in performing -- (1) Government cost-reimbursement contracts; (2) Other types of negotiated contracts when the agency determines that a substantial dollar portion of the contractor’s contracts are of a Government cost-reimbursement nature; or..."

Not Vern but: I think that your training officer needs to stick to training and leave the contracting to the trained contract specialist.

Hutch_05 These items may ?not apply? to construction in accordance with FAR 17 but documentation as to why you are proceeding with a contracting method is always smart. If you provide this documentation during the process ? for the inclusion while you are developing your solicitation and at the time of option issuance when you exercise, for example ? you are at the very least supporting the rationale for what you are doing and more importantly, you are providing the words for the next person, be they another contract specialist researching a current requirement or a contract management reviewer performing a procurement management review, telling them what it was you actually did and why. Making it a part of the contract record in a timely manner allows you to remember why it is you did what you did... Using the FAR as a guide (in situations where it says "does not apply" or where it is perhaps silent on an issue) together with common (ethical) business practice usually produces sound contracting results. Kathleen

Jess, A few questions: You say that for the past 15 years market research indicates (or indicated?) only one source can provide the service. What did market research show prior to this current solicitation? What type of market research was performed? What contract type was used previously? Was soliciting the requirement your market research? You say you had no communication with the incumbent prior to proposal submission; was there any communication with industry prior to solicitation issuance? You reference FAR 16.103 with regard to selection of contract type and it being a matter of negotiation but did not include the part (d)(1), which states: Each contract file shall include documentation to show why the particular contract type was selected. This shall be documented in the acquisition plan, or if a written acquisition plan is not required in the contract file... Was this documentation completed for the use of FFP and why was FFP selected? I am inclined to agree with your leadership ? FAR 15.206 -- Amending the Solicitation. (a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation? (e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition. Changing from a FFP changes the terms and conditions and the shift of the risk from the vendor to the government could encourage others to submit. You could also review the periods of performance and perhaps use a base plus one or two years to decrease the contractor concern of "being asked to define deliverables several years into the future based on today's projections." Kathleen

General comment to all: I appreciate the input you have provided concerning this topic and welcome additional discussions, please. Your information has given me areas to further research and re-read, as we all know the FAR, et al are not always the easiest to interpret. My position remains this: Full and open competition is the goal of Federal Procurement because it has been determined that use of this method provides the best and most effective and hopefully efficient use of public funds. Yes, many of you have mentioned situations where competition will be limited by other than an authority, whether it be security issues or a country requirement (e.g. all firms in Kuwait must be Kuwaiti owned - been there ) or so remote that the possibility of non-locals proposing would be slim and there are many others. I have been in contracting a long time and if I have learned anything from former bosses, mentors, co-workers is that transparency is not an option - it is mandatory. There is nothing that says you cannot state the difficulties that contractor may face when attempting to propose on a requirement, such as geography, security, country specific business conditions, in the announcement. You are not limiting competition; you are just letting the firms know the situations they may encounter and to me FBO is required (exceptions noted). We all have been in situations where a customer has needs and wants that we try to fulfill and when we see areas in the FAR that do not say "you shall not do", we do. We cannot forget, above all this, to think about what we are doing. I have a very difficult time reading the FAR to allow actions contrary to whole sections that cite U.S.C.'s as a requirement, e.g. "10 U.S.C. 2304 and 41 U.S.C. 253 require, with certain limited exceptions (see Subpart 6.2 and 6.3), that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts." For me, especially since the development of internet advertisement (FBO), to place a solicitation, pre-solicitation notice, synopsis or posting as compared with what we did in the mid-80's (anybody remember what we used to do??) requires little additional effort/cost and has actually been a great tool for those locations where physically providing documents is often difficult or delayed by the post. Locations without internet connection are the exception. It just takes a little bit of educating your contractor. I will close with a few statements made to me by 1102's and legal advisors concerning this topic: "Full and open competition is only meant to help small businesses and we do not have socio-economic programs overseas." "If I go to two (2) sources, I have full and open competition according to the FAR." "Who are we hurting by only going to local sources? - in fact we are helping the local economies." "If we use FBO, then we are held to the minimum publicizing and response time. If we don't use it, we aren't bound by them." I have a question. Has anyone ever read that if we advertise in a local newspaper, this eliminates the need to use FBO?

In a way. The "logic" is if we only go to local sources then we do not have to post, synposize or advertise using FBO - FAR5.202(a)(12). If we use FBO to do any of the above, then we must go full & open or have an authority to restrict. ... So, if you don't use FBO, you only need to use local sources.

My manager states that everything will be posted, synopsized and/or advertised using FEDBIZOPPS. When a restriction applies, we state this retriction and the authority in the announcement. We have been doing this the three and one half years I have been here and in the other overseas locations I have worked. My attorney-advisor is of the belief that we can go to local sources and not post, synoposize or advertise based on FAR 5. If we post, synopsize or advertise, then we need an authority to restrict competition FAR 6; if we do not post, synopsize or advertise, then we can go only to local source. They are reading it as an exception.

Where were you located? I do not think the competition requirement has become more relaxed since then I have searched the "books" - chapters 5, 6, 15, 25, Ad nausea. Nothing that says overseas equates to local sources only.

You say I have a choice and a few people here are also of that belief but I do not read the FAR, DFARS, AFARS or EFARS to say that because I am overseas, I only need to use local sources. In FAR 5.201, if I keep to local sources, I do not have to synopsize or advertise and apparently not even post. The rest of the FAR emphasizes the need to ensure full and open competition, ensuring that as Don said all responsible offerors are permitted to compete. The reasons as you state are valid for soliciting only local sources but again I am looking for something that tells me that because I am overseas, I only need to solicit local sources. I see nothing that in the FAR that does this, again it does say when I am only going local I need not post, synopsize or advertize. There is a void. We use FEDBIZOPPS for almost everything, even when we have an International Agreement (here we just state the restriction the contractor must follow) but when we use local, there is nothing.

Mr. Edwards, Thank you for the reference but we do not use SAP. These are contruction contracts, for military installations overseas. Ranging in value, IDIQ, from US$15 - US$30M for a period not to exceed three (3) years, base yr with two (2) option yrs and contracts for discreet projects not in excess of US$500K. We have international agreements with some of the countries with regard to restrictions. Others we do not.

Linda, Yes, I know FAR 5 very well and (12) is an exception. My question may be going a bit into FAR 6, as well. What gives us, the overseas KO, the authority to only solicit local sources - which is restricting competition -? FAR 6.302-4 -- International Agreement? When we use 6.302-4 it must be supported with an agreement between the countries. What if it is not supported, I can not see where we just decide to use local sources? Kathleen (12) The proposed contract action is by a Defense agency and the proposed contract action will be made and performed outside the United States and its outlying areas, and only local sources will be solicited. This exception does not apply to proposed contract actions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see Subpart 25.4);

FAR Part 5. If I am soliciting only local sources to obtain services for Military locations overseas I do not need to post, synopsize or advertise. Is this true? What regulation, law, agreement allows me to only solicit local sources?