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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. -
Scenario: A multiple award IDIQ contract for R&D servcies was awarded sometime near the end of FY'09. The vehicle consisted of 37 base contracts with 37 different contractors. All base contracts were funded with the established minimum ordering amount. I have recently taken over this contract and the time has come to exercise an option period on all of the contracts. To date there are 15 to 20 contractors that have not been awarded task orders. My reasoning tells me that upon exercising the option on these base contracts, I should be required to obligate funds in an amount equal to the minimum ordering amount and ensure that those funds remain present throughout all periods of performance until that time when a task order is awarded and the minimum ordering amount has been satisfied. I don't think this has taken place to date. I believe the contracts were modified to exercise the options, but the amount required to satisfy the minimum ordering amount was never carried through to the new period of performance. What would be the effect had the funds that were obligated upon award been no-year funds? Also, the specific language that was used in the contract seems to suggest that the minimum ordering amount is payable only at the end of the contract period, inclusive of options. Does that make a difference as regards the amount that should have been funded on the contract at time of award? The exact language from the contract follows: Fulfilling Minimum Ordering Requirements The Government has no obligation to issue task orders to any contractor beyond the minimum amount specified above. For each successful contractor, there will be a one time "minimum guarantee award amount" during the life of the contract, which includes all option years, if exercised. This amount can only be claimed at the end of the contract period if the contractor takes advantage of fair opportunity by proposing on at least one Task Order, within the Technical Areas for which the Contractor received award, offered to the contractor during the years for which the contractor is eligible.