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I am trying to determine whether my 8(a) sole source requirement under $2 million for commercial services using a T&M contract type is permitted under FAR 12.207(B) (1)(i)(B).

My 8(a) sole source requirement for $2 million is covered as exception to full and open competition under 6.302-5 (B)(4) authorized or required by statute for an 8(a) sole source award. Further, per 6.302-5 ( c) (2)(iii) since the 8(a) requirement is under $20 million I don't even need a written justification for the 8(a) sole source award.

However, in determining whether I can use a T&M contract type for this commercial service requirement, 16.601(d)(2) refers me to 12.207(B) for limitations on T&M for commercial services. FAR 12.207(B)(1)(i)(B) indicates that T&M is permitted for a commercial services requirement under 6.3 (such as my 8(a) sole award) "providing the agency receives offers....from two or more responsible offerors."...By definition my 8(a) sole source does not have 2 or more offerors.

So...1) How to explain this seeming non sequitor in 12.207(B)(1)(i)(B) ...."Other than full and open competition vs 2 or more responsible offerors". What am I missing?

2) is an 8(a) sole source award for commercial services using a T&M contract type permitted under 12.207(B)(1)(i)(B)?

Appreciate your thoughts. Thank you.

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FAR 6.3 covers exceptions to full and open competition. This is a broader concept than sole source. A competitive 8(a) award under FAR 19.805, would amount to other than full and open competition. See FAR 6.204. For another example, see FAR 6.302-2, unusual and compelling urgency. (In other words, FAR 12.207(B)(1)(i)(B) is not internally inconsistent in requiring multiple offers in response to a solicitation conducted under FAR 6.3 procedures, though obviously these are a small minority of awards under the Subpart.)

A sole source 8(a) award would not meet any of the three alternatives in FAR 12.207(B)(1)(i).

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I am trying to determine whether my 8(a) sole source requirement under $2 million for commercial services using a T&M contract type is permitted under FAR 12.207(B) (1)(i)(B).

My 8(a) sole source requirement for $2 million is covered as exception to full and open competition under 6.302-5 (B)(4) authorized or required by statute for an 8(a) sole source award. Further, per 6.302-5 ( c) (2)(iii) since the 8(a) requirement is under $20 million I don't even need a written justification for the 8(a) sole source award.

However, in determining whether I can use a T&M contract type for this commercial service requirement, 16.601(d)(2) refers me to 12.207(B) for limitations on T&M for commercial services. FAR 12.207(B)(1)(i)(B) indicates that T&M is permitted for a commercial services requirement under 6.3 (such as my 8(a) sole award) "providing the agency receives offers....from two or more responsible offerors."...By definition my 8(a) sole source does not have 2 or more offerors.

So...1) How to explain this seeming non sequitor in 12.207(B)(1)(i)(B) ...."Other than full and open competition vs 2 or more responsible offerors". What am I missing?

2) is an 8(a) sole source award for commercial services using a T&M contract type permitted under 12.207(B)(1)(i)(B)?

Appreciate your thoughts. Thank you.

When congress permitted the use of T&M/LH contracts for the acquisition of commercial services, it explicitly restricted the use of such contract types to competitive procurements. As Jaques indicated, set aside contracts are considered competitive procurements, but sole source awards obviously are not.

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FWIW FAR 19.800(a) states:

Section 8(a) of the Small Business Act (15 U.S.C. 637(a)) established a program that authorizes the Small Business Administration (SBA) to enter into all types of contracts with other agencies and let subcontracts for performing those contracts to firms eligible for program participation. The SBA?s subcontractors are referred to as ?8(a) contr

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FWIW FAR 19.800(a) states:

Section 8(a) of the Small Business Act (15 U.S.C. 637(a)) established a program that authorizes the Small Business Administration (SBA) to enter into all types of contracts with other agencies and let subcontracts for performing those contracts to firms eligible for program participation. The SBA?s subcontractors are referred to as ?8(a) contr

Lean, do you think that FAR 19.800 literally means "all types" of contracts, including those prohibited or excluded by other statutes?

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Aegis,

"Other than full and open competition" is not synonymous with "noncompetitive." FAR 6.301(d) requires competition as follows: "When not providing for full and open competition, the contracting officer shall solicit offers from as many potential sources as is practicable under the circumstances." FAR 12.207(B)(1)(i)(B) makes sense.

A competitive 8(a) award under FAR 19.805, would amount to other than full and open competition. See FAR 6.204. For another example, see FAR 6.302-2, unusual and compelling urgency.

Correction: A competitive 8(a) is full and open competition after exclusion of sources. 8(a) sole source is other than full and open competition.

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Lean, do you think that FAR 19.800 literally means "all types" of contracts, including those prohibited or excluded by other statutes?

No I simply stated what it says. It doesn't say all types of contracts except T&M and LH. Maybe they should rewrite it to state "some types of contracts"

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Guest carl r culham

I have removed subsequent posts that I made. While I am not in agreement with the the impact of FAC 2005-15 on 8(a) and use of commercial item T&M/LH sole source contracts it is clear what that while the wording of the FAR could be read otherwise it is clear that the FAR Council's approach to Aegis's question is much in line with Jacques Post #252. I apologize for any confusion my subsequent removed posts cause with the other posts where folks responded to me.

My action in this post is based on the following reference I just found in reviewing the history of the FAR Subpart in question.

So the answer to Aegis is - do what is practicable.

[Federal Register: December 12, 2006 (Volume 71, Number 238)

Page 74670]]

Comment: Clarify whether competitive procedures means ``full and

open competition'' or ``limited competition'' when the competition is

conducted with as many sources as practicable under one of the

authorities listed in FAR 6.302.

Response: Sole source commercial T&M/LH contracts are not

authorized. Commercial T&M/LH contracts may be awarded under the

statutory authorities that permit contracting without providing for

full and open competition. When these authorities are used, contracting

officers are required to solicit offers from as many potential sources

as is practicable under the circumstances. Nothing in this rule

requires ``full and open'' competition.

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Are you all sure of your responses?

FAR Part 12.102(e)(5) - States FAR Part 12 "shall not apply" to the acquisitions of commerical items "Directly from another Fedeal Agency".

FAR Part 19.800(a) as provided for in Section 8(a) of the Small Business Act allows the SBA to "enter into all types of contracts with other federal agencies" and let subcontracts for the performance of these contracts to eligilble 8(a) firms.

Conclusion - FAR Part 12 does not apply to 8(a).

Carl, it is your position that an agency can write a sole source 8(a) T&M contract for commercial items despite the statutory requirement that T&M contracts can only be used to award contracts for commercial services on a competitive basis?

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Are you all sure of your responses?

FAR Part 12.102(e)(5) - States FAR Part 12 "shall not apply" to the acquisitions of commerical items "Directly from another Fedeal Agency".

FAR Part 19.800(a) as provided for in Section 8(a) of the Small Business Act allows the SBA to "enter into all types of contracts with other federal agencies" and let subcontracts for the performance of these contracts to eligilble 8(a) firms.

Conclusion - FAR Part 12 does not apply to 8(a).

Carl,

What do you make of block 10 on the SF 1449? There's a check box for 8(a). Also, the DoD Commercial Item Handbook states on p. 22:

The Section 8(a) Program rules apply to acquisitions of commercial items, whether the contract is placed with the Small Business Administration or directly with the 8(a) contractor (see FAR Subpart 19.8). If commercial items will be procured under the 8(a) Program, FAR Part 12 terms and conditions apply.
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I don't know definitely the answer to Carl's question, but one kernel of information that might be relevant to the debate is section 8304 of FASA (Pub. L. 103-355), which states in part, "Nothing in this title shall be contrued as modifying or superseding, or as intended to impair or restrict, authorities or responsibilities under--..(4) subsections (a) and (d) of section 8 of the Small Business Act (15 U.S.C. 637(a) and (d)...." It is FASA section 8002(d)--included in the same Title of the Act as 8304--that originally called for limited contract types for commercial item acquisitions. This suggests to me that there might be something to Carl's argument, though I haven't had a chance to give it much thought.

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Jacque - Suggest it may be worthwhile to give my conclusion some thought before offering further advice to Aegis.

I'll keep it in mind. Looks like I've inadvertently stepped into an old debate.

Carl, I'm not sure what you are advocating a contracting officer do. Isn't the commercial item determination and contract type decision typically made before the small business market research is conducted (to determine whether set aside under 8(a) is appropriate)? How much of the acquisition strategy should be in flux in deciding to set aside? In your opinion, when, in the face of resistance over contract type, should a CO dispense with commercial item procedures in order to award to an 8(a) participant?

(Of interest to those who work for DoD) you might not agree with DoD's "implementation," but do you believe it is beyond its authority?

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Don - Form SF-1449 is not authorized for 8(a) contracts by the FAR. See FAR 19.811. As to the DoD Commerical Item Handbook I conclude that it is poorly written.

Sorry, Carl, but I'm not buying. The SF 1449, which is also part of the FAR, clearly contemplates the use of the form for 8(a) acquisitions. Further, I don't agree that the DoD Commercial Item Handbook is poorly written or poorly worded. I think it clearly communicates what it's trying to communicate--FAR Part 12 applies to 8(a) acquisitions for commercial items.

Having said that, I am not saying that you are wrong. I think that all we can conclude is that there is a lack of clarity on the issue.

FYI, to further support your argument, one could point to the lack of 8(a) clauses in FAR 52.212-5. But again, this doesn't clarify anything--it just further muddies the waters.

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Heck I would put commercial item terms and conditions in my 8(a) T&M/LH contract if the need fit the definition, what would prevent me from doing so? But clearly I do not have to get competition as FAR Part 12 does not apply.

If I'm understanding him, Carl believes that FAR 12.102(e)(5) gives a CO carte blanche to simultaneously cite Part 12 as authority for what the CO is doing while ignoring anything in Part 12 that the CO doesn't like. I hope I'm misunderstanding. My going in position would be, based on the language in FAR 12.102(e)(5), either Part 12 applies or it does not. If it applies, both the authorities and the restrictions alike apply. If it does not, neither its authorities nor its restrictions apply. (For instance, if you wanted to use T&M for a sole source 8(a) for what are putatively commercial items, what termination clause would you use? If you used other than the one prescribed in Part 49, wouldn't you need a deviation? See FAR 49.503(a)(4).)

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Maybe the key word here is "[d]irectly" -- "This part [FAR Part 12] shall not apply to the acquisition of commercial items . . . [d]irectly from another federal agency" (FAR 12.102 ( e ) ( 5 )). So maybe an agency can acquire commercial items by contract directly from another federal agency, such as travel management services from the VA's franchise fund Financial Services Center (http://www.fsc.va.gov/), without invoking FAR Part 12, but an 8(a) acquisition from the Small Business Administration might be seen as indirect for the purposes of FAR 12.102 ( e ) ( 5 ). I don't know, I'm just supposing...

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Carl,

Block 10 on the SF 1449 is filled out before issuing the solicitation--not after contract award.

I understand your argument and I can't say that you are wrong. However, until I can verify that the 8(a) designation on the SF 1449 and the statement in the handbook are erroneous, I'm not going to say that you are right, either.

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Don - You are right on the form use my bad. I am just amazed that you think authority is granted because the form says so. I guess the SB Act, FASA and a close read of the FAR count for nothing and you depend on the form as the ultimate authority.

C'mon, Carl, I never said the form was the ultimate authority. I think you have a good argument, but I need a better explanation for the block on the form and the statement in the guidebook before I can go along. Until then I'm content to say that the issue is not clear.

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Retread - My position is as I stated so the answer to your question is Yes.

I'm still trying to understand your position. As a point of reference, the prohibition on awarding T&M contracts for commercial services on other than a competitive basis is not contained in FASA. It is in the 2004 NDAA. I am curious as to your position on whether that would act as a limitation on the SBA's ability to "subcontract" for commercial services. In other words, would the SBA have to use competitive procedures to award a T&M "subcontract" for commercial services? Finally, what impact does FAR 19.800(f) have on your position?

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