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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.
An agency issues a task order solicitation off of a Multiple Award IDIQ Master Contract. It is a competitive 8(a) award off of the 8(a) STARS II GWAC. The Master Contract requires the task order solicitations to contain the Limitation on Subcontracting clause. Somehow, the ordering agency forgot to include this clause. In evaluating the proposals, the agency realized this particular FAR clause is missing. For very good reasons which I will not go into here, the agency believes it is best NOT to amend the solicitation. That would require allowing for revised proposals and starting the evaluation process all over from the beginning. Is there any authority which the agency can use to say that the missing FAR clause is "included by reference" or something like that? We looked at the Christian Doctrine, but it turns out it only applies to contracts, not solicitations. We looked at FAR 52.216-18, which says that, in the event of any conflict between the Master IDIQ K and the task order, the Master Contract takes precedence. But again, it sounds to us like that clause only applies/addresses the contract administration stage, not the solicitation and evaluation of proposals stage. If we have to amend the solicitation, then it would be good to have GAO or COFC decisions to support this course of action so as to more easily convince the end user program office client of why it needs to be done. So we looked at whether this could be framed as a "scope" issue. FAR 16.505(a)(2) requires the orders to be "within the scope . . . of the contract." Could the task order, which was missing the FAR clause on Limitation on Subcontracting, be considered beyond the "scope" of the Master Contract, because it was missing that clause? But that seems like a dead end b/c there is a GAO decision which stated that the "scope of work" in these scope determinations refers only to the real "work" in the solicitation, meaning "Section C" stuff, not anything else. See Colette, Inc.--Request for Reconsideration, B-407561.2, Jan. 3, 2013 ("In entertaining protests related to the issuance of task orders, we have consistently understood "scope" to refer to the scope of work authorized in the underlying contract." GAO rejected the protester's argument that non-compliance with the Master Contract's instructions on how to conduct task order competitions increased the scope of work). Any ideas?