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I'm a Contracting Officer tasked with soliciting for a construction project that involves a brand name specification under the CICA waiver authority under FAR 6.302-1 Only One Responsible Source. The item is a major component of the construction project, but the value of the item is expected NOT to exceed $700k (the total construction project will be much larger). My read of the regs has always been that a 6.302-1 CICA waiver justification must include evidence that a notice of intent was posted to the GPE and interested sources responding to that notice were considered in accordance with FAR 6.302-1(d)(2), FAR 5.201, and FAR 5.207. HOWEVER, we are planning to solicit the project as a task order RFP under a multiple award IDC, and so the question was raised, does CICA and FAR Part 6 even apply? FAR 5.202(a)(6) provides an exception to the FAR 5.201 synopsis requirement for IDC orders and refers to FAR 16.505(a)(4). FAR 16.505(a)(4) states that items peculiar to one manufacturer must be justified in accordance with FAR 16.505( b)(2) (aka Fair Opportunity Exception). BOTTOM LINE: I've nearly concluded that FAR Subpart 16.5 may be the applicable regulation and not FAR Subpart 6.3, and so a FAR 16.505(b )(2) Fair Opportunity Exception would be required instead of a FAR 6.303 Justification. But I have a nagging suspicion that that's not quite right. My hesitations with a FAR 16.505(b )(2) Fair Opportunity Exception are that #1 I can't quite see how this is would restrict competition among the IDC contractors, so I can't really see how the concept of "fair opportunity" is at play. And, #2 I'm surprised to find that there is no requirement at FAR 16.505( b)(2) to post a notice of intent to the GPE--since in our situation for a brand name component, it seems to me that would be compelling information to include in the justification if we get no acceptable response from industry. And I'm also surprised because FAR 16.505 ( b)(2)(d) DOES require that the final approved Fair Opportunity Exception be posted to the GPE within 14 days (for orders >SAT). Whereas under FAR Subpart 6.3, for brand name justifications, all that is required is to attach the final approved J&A with the solicitation. I suppose that's because Fair Opportunity Exceptions under 16.505( b)(2) would never be publicized if only distributed with the solicitation because the solicitation isn't made public--it's only sent the multiple IDC contractors. Anyone have any thoughts on this? Appreciate the feedback. -
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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