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I had always thought that the solicitation response times stated at FAR 5.203 did not apply to sole source acquisitions. However, a recent decision of the CAFC suggests that they do. In that case, an agency published a FedBizOpps notice stating their intent to negotiate on a sole source basis and gave potential offerors five days to submit a capability statement. Although they didn't decide the issue, the court referred to FAR 5.203(B) for guidance on determining solicitation response times (the acquisition was for a commercial item), which requires the Government to "establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond . . . .? This was a nonissue because the protester had waited 20 days to submit a capability statement.

Read the decision here.

So let's say I intend to enter into negotiations on a sole source basis (under the authority of FAR 6.302-1) for a noncommercial item exceeding the SAT. Must I give potential offerors at least 30 days to submit capability statements from the date of the synopsis IAW FAR 5.203( c )?

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Well, if there was some unusual and compelling urgency that demanded a 5-day period, I suppose FAR 6.302-2 would have been used instead of 6.302-1.

My general pattern has been to do the FBO posting 30 days before anticipated award date for a 6.302-1 buy.

The requirements of FAR Subpart 5.2 apply to 6.302-1 buys, and the exceptions in 5.201(a)(1) and 5.203© don't reach to exempt a 6.302-1 buy.

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I believe 5.203? applies to non-commercial sole source procurements, and always allow the contractor 30-days to respond to our request for proposal. But I often get the proposal in less time than 30 days, and I proceed with negotiations and award as soon as I receive the proposal.

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I believe 5.203? applies to non-commercial sole source procurements, and always allow the contractor 30-days to respond to our request for proposal. But I often get the proposal in less time than 30 days, and I proceed with negotiations and award as soon as I receive the proposal.

Do you wait to award until at least 30 days after the FedBizOpps announcement? If not, then I think that you would have a problem if you received a timely capability statement from a potential offeror after you awarded the contract.

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Guest Vern Edwards

The simple fact is that many agencies do not comply with FAR Parts 5 and 6 properly when conducting sole source acquisitions. They get away with it because no one challenges them in court. Sole source acquisitions are not, per se, exempt from the requirements of FAR 5.203. COs just act as if they are, with no legal justification whatsoever. If you read both Parts 5 and 6, then it appears that a CO should not commence negotiations with a sole source until he or she has complied with 5.203.

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Guest Vern Edwards

An added note: FAC 2005-24, Item II, 73 FR 10960, February 28, 2008, made changes in FAR 5.203(a) for the express purpose of addressing sole source acquisitions. The new rule, which took effect on March 31, 2008, eliminated synopsis Numbered Note 22, which had been about sole source acquisitions and notices of intent, and replaced it with the new language in FAR 5.203(a). See comments B(4) and C in the background statement about Note 22.

The old numbered Note 22 had read as follows:

22. The proposed contract action is for supplies or services for which the Government intends to solicit and negoti-ate with only one source under the authority of FAR 6.302. Interested persons may identify their interest and capa-bility to respond to the requirement or submit proposals. This notice of intent is not a request for competitive pro-posals. However, all proposals received within forty-five days (thirty days if award is issued under an existing basic ordering agreement) after date of publication of this synopsis will be considered by the Government. A determina-tion by the Government not to compete with this proposed contract based upon responses to this notice is solely within the discretion of the Government. Information received will normally be considered solely for the purpose of determining whether to conduct a competitive procurement.

The proposed rule to eliminate the numbered notes, which was published in the Federal Register at 72 FR 10964, March 12, 2007, included the following statement about Note 22:

Since there is no prescription for the Note in the FAR, contracting officers might be prescribing different time periods when responses will be considered. To ensure a uniform timeframe, the requirement should be maintained in the FAR.

Before FAC 2005-24, FAR 5.203(a) had read as follows:

(a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation except that, for acquisitions of commercial items, the contracting officer may?

(1) Establish a shorter period for issuance of the solicitation; or

(2) Use the combined synopsis and solicitation procedure (see 12.603).

The FAC changed the second sentence to read as follows, with emphasis on the new language:

The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may?

(1) Establish a shorter period for issuance of the solicitation; or

(2) Use the combined synopsis and solicitation procedure (see 12.603).

Thus, FAC 2005-24 confirmed that the minimum time periods in FAR 5.203 apply to both competitive and sole source procurements.

A CO cannot award a sole source contract before the expiration of the 30 day time period and consideration of any capability statements, quotes, or proposals. Can the CO commence negotiations with the sole source before then. Well, it depends on how you interpret FAR 6.303-1(a):

(a) A contracting officer shall not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any other contract without providing for full and open competition unless the contracting officer--

(1) Justifies, if required in 6.302, the use of such actions in writing;

(2) Certifies the accuracy and completeness of the justification; and

(3) Obtains the approval required by 6.304.

Should an approving official sign off on a J&A before he or she knows whether there have been responses to the public notice and, if there were, whether they were properly considered and what the results were?

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But for commercial items, I often do use less than 30 days as allowed by FAR 5.203?.

In my office (which does 99% commercial purchases), if we do a sole source, we typically post it for 10 days. Although I have seen our office post for a little as 5 days but those usually involved an emergency.

As for the OP's question, it seems to me that you would have to allow 30 days for vendors to respond unless there was some sort of emergency. And that is after the 15 day notice issuance.

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  • 2 weeks later...

Then you get into the issue about what do you select from the dropdown menu in FBO if you intend to go sole source... IMHO, the only viable selection would be 'Presolicitation Notice,' with the caviat you state in the synopsis you intend to negotiate on a sole source basis, unless someone else can provide a capability statement and justification as to how they can meet your requirement.

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  • 1 year later...

I posted a sole source notification to fbo.gov in early July 2013 for 30 days (commercial item, over SAT). For reasons not relevant to this question an award was not made before the end of the fiscal year. The program recently contacted me and would like to continue with the procurement.

How long is a sole source notification valid? I’d have been comfortable awarding up until September 30th (nearly 60 days since closing) without reservation but was unwilling to use the existing justification to make an award in November 2013. Evidently 120 days is too long for my personal comfort level.

I’ve been looking for case law or GAO decisions to see if I could find how long a sole source notification is “valid” if an award isn’t made but haven’t found anything yet.

Thoughts?

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Are you talking about the notice contemplated by FAR 6.302-1( d )( 2 )?

The justification contained the information in 6.303-2 (using the authority of 6.302-1) and was posted in accordance with 5.201.

As a general policy we make a sole source notification on fbo.gov prior to award for all actions over $25,000.00.

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