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Award T&M 8(a) Sole Source Comercial Contract Using 13.5 Procedures


HE_1102

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metteec,

I don't know about other agencies, but under the DoD-SBA Partnership Agreement the SBA remains the prime contractor when a direct award is made. The fact that agencies can make a direct award has no effect on the contractual relationship. See DFARS 219.800(a).

Don, you are correct. I dug out my agency's PA from the basement and it reads:

"SBA delegates to the agency for re-delegation to all warranted agency contracting officers, its authority under section 8(a)(1)(A) of the Act to enter into 8(a) prime contracts, and its authority under section 8(a)(1)(B) of the Act to arrange for the performance of such procurement contracts by 8(a) participants. In accordance with 13 C.F.R 124.501(a), SBA delegates its 8(a) contract execution function."

At that point I stopped reading (whoops). After your post, I read a a few pages further and found:

"SBA remains the prime contractor on all 8(a) contracts and the 8(a) Participant remains the SBA's subcontractor."

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Well I disappeared from this discussion due to some other commitments and have some thoughts about the continuing discussion.

Minor thing but noting FAR 12.102(e)(5) and FAR 52.212-5 clause does have some merit as Don points out when considered with the fact that the SF-1449 was amended in 2012 to include a box for “8(a)” Block 10, “This Acquisition is”.

FAC 2005-15 (noted in Blitz’s post and the previous WIFCON discussion link that I provided) is important. It bears repeating and states “Commercial T&M/LH contracts may be awarded under the statutory authorities that permit contracting without providing for full and open competition.” Or stated another way FAR 12.207(B)(1)(i)(A) does not say “full and open competition” it says “competitive procedures” . “Competitive procedures” is not defined in FAR Part 2 nor any where else in the FAR by my read. FAR Subpart 6.2 defines “competition after exclusion of sources” or per FAR 6.2, 8(a), and HUBZone, SDVOSB, EDWOSB and set asides for local business during a major disaster or emergency for that matter, is a type of "competitive procedure".

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parsing FAR 12.102(e )(5 ), it says to me that Part 12 shall not apply to the acquisition of commercial items directly from another Federal agency.



To me, an 8(a ) kt is not the same as acquiring items directly from another Federal agency.


As they are the Prime, and pass every aspect of performance through to the 8(a) sub, whatever is acquired through an 8(a) kt is only indirectly acquired from SBA.


in my view.


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Don has posed an interesting question that if posed to me I would answer as follows.

An example of a commercial item bought by one Federal agency from another is product(s) found in the GSA Global Supply Catalog and there are others (ref: FAR 8.002(a)(1)(v)). However while the item(s) might meet the FAR definition of commercial item the products from the referenced Catalog are not purchased using FAR Part 12 procedures, nor FAR Part 8 for that matter, by the Federal agency procuring them, but a procedures developed pursuant to other regulations.

In answering it does bring me back full circle to the full discussion of this thread regarding 8(a) and I suggest the FAR wording is conflicted. On this note I would only refer to Vern’s post #10 in this thread which seems to make the most sense.

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