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Can agency require 8(a) direct sole-source to use a specific subcontractor?


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Can an agency require an 8(a) direct sole-source contractor -- such as an Alaska Native 8(a) -- to use a specific subcontractor (a "directed subcontract")?  I am aware that "directed subcontract" is a method that is generally allowed, but the examples I saw in GAO and court decisions seemed to all involve competition.  Here, this would be a sole-source, and further, the 8(a) direct award cannot be protested.  Are there any requirements or protocols the CO must follow to justify why the agency needs to force the awardee to use a specific subcontractor, such as how this meets the agency's minimum needs?  I don't see any such requirements in the FAR.

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It’s a non competitive prime contract acquisition. As such, a prime could decide to use a specific sub, as long as they analyze and negotiate the proposal. So why couldn’t the government direct a specific sub?

The agency should probably justify why they need the specific sub. The contractor and you (might) have to do cost analysis (if the exceptions don’t apply) in addition to the price analysis of the subcontract proposal and negotiate it, similar to the prime contract. 

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39 minutes ago, joel hoffman said:

It’s a non competitive prime contract acquisition. As such, a prime could decide to use a specific sub, as long as they analyze and negotiate the proposal. So why couldn’t the government direct a specific sub?

The agency should probably justify why they need the specific sub. The contractor and you (might) have to do cost analysis (if the exceptions don’t apply) in addition to the price analysis of the subcontract proposal and negotiate it, similar to the prime contract. 

In the two links above, this topic of "directed subcontract" came up before on Wifcon, in April 2015 and May 2010, respectively.  As mentioned in the former, it is strange that the FAR requires a brand-name justification but not a "directed subcontract" justification, and Nash & Cibinic recommends that the CO execute a justification anyways for a directed subcontract situation.  This is to prepare for a potential protest.  However, for 8(a) direct sole-source contract awards, those cannot be protested.  Therefore, while it would be nice for the CO to execute a justification, if the CO decides not to do that, what are the potential consequences?  If it can't be protested, it can't be protested, right?

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Maybe a complaint to your local Congressman, that your agency would respond to, explaining that it isn’t illegal and why the agency needed to direct the use of the subcontractor. I don’t know how big or important the subcontract is. Is it worth a commotion by other potential subs?  

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1 hour ago, govt2310 said:

Can an agency require an 8(a) direct sole-source contractor

Hmmm....been there done that.   Consider this.   

In a 8(a) sole source the 8(a) firm is actually a subcontractor to the Government (SBA).   So in a privity of contract matter it would seem logical that the Government could say to its subcontractor, hey for this part of the work we want you to use so and so to do this part of the work.

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24 minutes ago, joel hoffman said:

Maybe a complaint to your local Congressman, that your agency would respond to, explaining that it isn’t illegal and why the agency needed to direct the use of the subcontractor. I don’t know how big or important the subcontract is. Is it worth a commotion by other potential subs?  

Just heed the advice in the two referenced threads. There should be a reasonable, documented  justification for directing a subcontract. The prime contract should be genuine and not just a pass through for the subcontract. 

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That was a pretty good review of related WIFCON discussions on your part. I can’t even get the WIFCON search function to work. As soon as I try to type, it takes me to a WIFCON ad page (FAR Bootcamp today). 

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I won't argue the need to document a file as to why but just remember the world of 8(a) sole source is different....

4 CFR 21.5  Protest Issues Not For Consideration at (3)

"Procurements under sec. 8(a) of the Small Business Act. Under that section, since contracts are entered into with the SBA at the contracting officer's discretion and on such terms as are agreed upon by the procuring agency and the SBA, the decision to place or not to place a procurement under the 8(a) program is not subject to review absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 15 U.S.C. 637(a)."

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1 hour ago, joel hoffman said:

It’s a non competitive prime contract acquisition. As such, a prime could decide to use a specific sub, as long as they analyze and negotiate the proposal. So why couldn’t the government direct a specific sub?

The agency should probably justify why they need the specific sub. The contractor and you (might) have to do cost analysis (if the exceptions don’t apply) in addition to the price analysis of the subcontract proposal and negotiate it, similar to the prime contract. 

I wasn’t referencing a J&A here. Sorry if I gave that impression. I really meant that the  office requesting the directed subcontract should justify the need to Contracting, so the KO can document their decision for the file. 

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