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FAR 8.405-6 Limited sources justification - only one source?

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Orders placed under the GSA FSS/ GSA Schedule are considered to satisfy the full and open competition requirements of FAR Part 6. FAR 6.102(d)(3). and FAR 8.404.

If an agency's market research finds that there is only one vendor on FSS that is capable of providing a particular product or service that has ALL of the requirements the agency needs, can the agency still use the FSS to obtain this product or service? Assume that a SOW is included in the solicitation and the dollar value exceeds the simplified acquisition threshold.

FAR 8.405-2 requires the ordering activity to provide the RFQ to at least THREE schedule contractors, OR document the circumstances for restricting consideration to fewer than three schedule contractors "based on one of hte reasons at 8.405-6(a)."

FAR 8.405-6(a) only lists three reasons:

-Urgent and compelling,

-only one source capable,

- in the interest of economy and efficiency/logical follow-on

Can the agency justify awarding the order to this one vendor on the basis that it is the "only one source capable" in that it is the only vendor on the FSS that can meet all the agency's requirements?

Or would you interpret FAR 8.405-6(a) as intending to mean, the vendor must be the only one source capable in the entire world, whether on the FSS or off the FSS?

I believe the latter, but we are having a debate about this in my office. Can anyone help us sort this out?

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You do not need to consider sources outside the FSS as FAR Subpart 8.4 applies only to orders placed against the Federal Supply Schedule contracts. See paragraph (a ) of FAR 8.403 -- Applicability:

Procedures in this subpart apply to--

(1) Individual orders placed for supplies or services placed against Federal Supply Schedules contracts; and

(2) BPAs established against Federal Supply Schedule contracts.

Thus, you would consider only GSA Schedule holders.

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napolik:

I see now. Thanks! I further researched FAR 8.405-6 Limiting sources, and I found that it states at FAR 8.405-6©(2)(vi) that the content of the justification must include "[A] description of the market research conducted among schedule holders . . . " Emphasis added. So if the agency is only required to do market research "among schedule holders," then it does not matter if another vendor who is not on the FSS can provide the requirement, the comparison/research is only amongst FSS schedule holders. Thanks again.

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Also, although a contracting officer must still comply with FAR 8.404© (". . . orders placed under a FSS contract are not exempt from the development of acquisition plans"), and although FAR 7.102(a)(2) says agencies shall perform acquisition planning "to promote and provide for . . . full and open competition," I believe this requirement can be considered met by the statement at FAR 8.404(a), which says that orders against the MAS (the MAS means the FSS) "are considered issued as full and open competition." FAR 8.401 defines "MAS" as the FSS.

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Keep in mind, however, that you shouldn’t order via FSS unless it represents the best value to the Government.

FAR 8.404(d ) – placing an order against a schedule contract using the procedures in 8.405, the ordering activity has concluded that the order represents the best value (as defined in FAR 2.101) and results in the lowest overall cost alternative (considering price, special features, administrative costs, etc.) to meet the Government's needs.”

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The GAO protest of FITNET Purchasing Alliance, Nov. 2, 2007, B-309911, the GAO dismissed a protest challenging an agency’s decision not to set aside for small businesses an order under the FSS program valued at approx.. $12K, where the protester did not hold an FSS contract, and therefore was not an interested party to pursue this matter,

The GAO decision stated that, since the "FSS meets the statutory requirements for using full and open competition," unless a protester is actually ON the FSS, they cannot be an interested party to protest the “terms of the solicitation."

If a vendor is the only vendor on the FSS that can provide a particular supply or service, and then a non-FSS vendor wants to protest the agency's use of the FSS and sole-source only to that one vendor on the FSS, I believe such a protest would be dismissed by GAO. As the decision said, use of the FSS is considered "full and open competition."

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Make a best value decision on using the FSS over going open market and then post the requirement on GSA EBuy to ensure that only one Schedule holder can fulfill the requirement. The open market vendor has never had standing with GAO in the past but change thier minds sometimes and hear the case anyway.

Here is a twist. At my Agency a FSS order is considered an Interagency Agreement and a formal "Determination of Best Procurement Approach" must be approved by the HCA if the order is over $500K.

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Here is a twist. At my Agency a FSS order is considered an Interagency Agreement and a formal "Determination of Best Procurement Approach" must be approved by the HCA if the order is over $500K.

FAR 8.404(b )(2) “For orders over $500,000, see subpart 17.5 for additional requirements for interagency acquisitions.”

FAR 17.501(a ) “Interagency acquisitions are commonly conducted through indefinite-delivery contracts, such as task- and delivery-order contracts. The indefinite-delivery contracts used most frequently to support interagency acquisitions are Federal Supply Schedules (FSS)…”

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