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"Full and open competition is only meant to help small businesses and we do not have socio-economic programs overseas."

"If I go to two (2) sources, I have full and open competition according to the FAR."

"Who are we hurting by only going to local sources? - in fact we are helping the local economies."

"If we use FBO, then we are held to the minimum publicizing and response time. If we don't use it, we aren't bound by them."

These comments are a little scary...

"Full and open competition is only meant to help small businesses and we do not have socio-economic programs overseas."

Full & Open Competition is required by law (Competition in Contracting Act) and helps all companies and the taxpayers by promoting transparency and getting the best value for the Govt. (which is not just the lowest price).

"If I go to two (2) sources, I have full and open competition according to the FAR."

If you go to 2 sources only, you have limited competition, not full & open competition.

"Who are we hurting by only going to local sources? - in fact we are helping the local economies."

You are hurting non-local sources who may have been wrongfully excluded from the opportunity to compete.

"If we use FBO, then we are held to the minimum publicizing and response time. If we don't use it, we aren't bound by them."

I don't follow that logic....if I ignore the FAR, then I'm not bound by the FAR ????

Add me to the list of many on this discussion trail that are verifying your sanity. Ultimately you are signing the contractual document, not the advising attorney. I have been in similar situations as a contracting officer. Glad to see you are trying to do the right thing and not just be a rubber-stamp. Not always easy being a contracting officer but that's part of what makes it rewarding.

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I have a question. Has anyone ever read that if we advertise in a local newspaper, this eliminates the need to use FBO?

No, advertising in newspapers does not satisfy the need. However advertising in local newspapers always is a good idea for overseas work. Very few overseas companies even know about FBO, much less read it. That's a good way to promote local competition.

There's a statutory requirement for a single Government Point of Entry (GPE) that FBO satisfies. This is from FAR 5.2:

"5.201 General.

(a) As required by the Small Business Act (15 U.S.C. 637(e)) and the Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies must make notices of proposed contract actions available as specified in paragraph (;) of this section.

(B)(1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202 and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each proposed—

(i) Contract action meeting the threshold in 5.101(a)(1);

(ii) Modification to an existing contract for additional supplies or services that meets the threshold in 5.101(a)(1); or

(iii) Contract action in any amount when advantageous to the Government.

(2) When transmitting notices using electronic commerce, contracting officers must ensure the notice is forwarded to the GPE.

© The primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities.

(d) The GPE may be accessed via the Internet at http://www.fedbizopps.gov. "

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For me, especially since the development of internet advertisement (FBO), to place a solicitation, pre-solicitation notice, synopsis or posting as compared with what we did in the mid-80's (anybody remember what we used to do??) requires little additional effort/cost and has actually been a great tool for those locations where physically providing documents is often difficult or delayed by the post. Locations without internet connection are the exception.

[emphasis added.]

What we used to do was to send a synopsis of the requirement to the Department of Commerce, who printed and published a daily tabloid, the "Commerce Business Daily." It was printed on newsprint, and mailed to subscribers each day. It used small print to save space. And as I recall, the "search" function didn't work very well, either.

What a godsend the Internet was.

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Guest Vern Edwards

Kathleen wrote:

Full and open competition is the goal of Federal Procurement because it has been determined that use of this method provides the best and most effective and hopefully efficient use of public funds.

Actually, that is a weak supposition, not a proven fact. There is not much evidence that full and open competition produces better outcomes than a well-negotiated sole source procurement or a procurement in which the government has limited the number of eligible offerors. In fact, there is good reason to think that full and open competition as practiced today (FAR Part 15 "best value" source selections) is inefficient, wasteful, and needlessly time consuming.

Tournament style full and open competition reduces opportunities for corruption and lets companies think they have a shot at winning a contract, but let's not praise it too much. It's anything but efficient. Do not confuse it with the market competition that you learn about in an economics course. If you're looking for efficiency and good outcomes, full and open competition is not the way to go.

That having been said, it's the law.

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I'd like to suggest that there is no regulation, law, or agreement that explicitly allows you to solicit only local sources. (but see Larry's good posting above). My question is, do you need one? See B-237383, AAA Engineering & Drafting, Inc., (January 22, 1990) http://archive.gao.gov/decisions/140438.pdf: "An aqency may restrict a procurement to offerors within a specified geographical area if the restriction is reasonably necessary for the agency to meet its minimum needs."

If you have a reasonable basis to solicit only local sources, you can.

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I'd like to suggest that there is no regulation, law, or agreement that explicitly allows you to solicit only local sources. (but see Larry's good posting above). My question is, do you need one? See B-237383, AAA Engineering & Drafting, Inc., (January 22, 1990) http://archive.gao.gov/decisions/140438.pdf: "An aqency may restrict a procurement to offerors within a specified geographical area if the restriction is reasonably necessary for the agency to meet its minimum needs."

If you have a reasonable basis to solicit only local sources, you can.

Yes but what would be a reasonable basis? From experience I cannot think of any.

I am a CO for Department of State doing overseas construction. My office is located overseas. We have a DOSAR waiver from FEDBIZOPPs for under $5M. However, we are expected to use full and open on all construction not restricted by law or treaty (I haven't seen one yet). We use our own web site for advertising and expect the Post Facility managers to do market research and provide suggested firms for us to mail solicitations. On any given project we will have local companies, companies from neighboring countries and U.S. firms all competing even down to projects as small as $300K. We do not get involved in permits and licensing issues. The solication says the offeror must have permission to work in the country by the time of award. If he can't produce the proof that is his problem and we go to the next best offer (and yes that comes up often and we even had to T4D one mistake we made). We have the post discuss the permitting at the site visit/prepropsal conferences so they are all on notice.

If we do any restrictions it must be supported by J&A IAW FAR part 6. Some of our Bureaus have authority from Congress to restrict for polictical and other considerations. This is also supported by documentation on a case by case basis. This authority is used infrequently, is used for good reasons and is not abused in my opinion.

So, I do not think there is a blanket authority to limit competition to local companies but should be supported by J&A on a case by case basis.

P.S. It appears our webite is becoming so well known by U.S. companies that we might as well advertise on FEDBIZOPPs. Being overseas we do not have to consider small business and get no credit if we did so the competition is truely full and open and the firms as well as our customers really like that.

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Yes but what would be a reasonable basis? From experience I cannot think of any.

I can find no official guidance on what constitutes a ?reasonable? basis for imposing a geographical limitation. I can only advise that if a CO has a reasonable basis for imposing a geographical limitation in a solicitation, then it may be included. Determining if that basis is reasonable up to the CO.

Besides the AAA case cited before, GAO has ruled on many protests where the protester challenged the reasonableness of a geographic limitation... some denied, some sustained. For a good list, try a simple google search: site:gao.gov "geographic limitation" ?protest?.

Again, the lesson is, if your geographic limitation is reasonable it will survive protest.

So, I do not think there is a blanket authority to limit competition to local companies but should be supported by J&A on a case by case basis.

You're right, there is not a blanket authority to limit competition to local companies, but there is certainly no requirement for a FAR Part 6 Justification for Other than Full and Open Competition when using a geographic limitation (unless it is required by your agency/office).

GAO has recognized that yes, including a geographic limitation DOES restrict competition, but that it perfectly reasonable to do so if it is a legitimate requirement. See B-183713, Paul R. Jackson Construction Company, Inc. (October 9, 1975) http://redbook.gao.gov/1/fl0000312.php :

Counsel for J/SD recognizes, and we agree, that geographic restrictions may constitute a legitimate restriction on competition where the contracting agency has properly determined, after careful consideration of the relevant factors involved, that a particular restriction is required. See Descomp, Inc., 53 Comp.Gen. 522 (1974), 74-1 CPD 44, Plattsburgh Laundry and Dry Cleaning Corp., 54 Comp.Gen. 29 (1974), 74-2 CPD 27.

If Kathleen has reason to question the validity of the geographic limitation that restricts the competition to only local sources, she should consider the requirement carefully before making her determination. But, if after considering the requirement and making the determination that the restriction to only local sources is reasonable, she shouldn't hesitate to include it in her solicitation and should not worry that doing so is in contradiction to the FAR.

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Boof, I remember many years ago that the US construction industry was up in arms over restrictions on bidding State Department work overseas - they insisted that US firms be allowed to bid on US Embassy work anywhere, if it were US funded. Other countries were restricting bidding to their own national companies, even in the US... I am not surprised that anyone can bid on State Department work.

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I have not done contracting overseas for the US Government, but one thing I do know: the host country CAN make the rules on just about everything with a very few exceptions. If they decide only local businesses can work on your contract, your choices are either to comply with that country or take the ride of your life in a foreign courtroom.

I saw this from a layman's viewpoint in the Philippines in the 1980's, and from a contractor's view point a few years ago in Asia.

The moral of the story: Know the rules, abide by the rules, and document, document, document. CON 101 stuff. If the local government does not care who works on the contract, then the FAR rules. If they local government does care about who works on a contract in their country, see how far the FAR flies in their courtrooms. In my experience, foreign governments could give a rip about US laws and regulations, unless it suited their purposes to to do so.

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  • 2 weeks later...
.

at some point this thread ought to mention Section 886 of PL 110-181, which created 100% set-asides for Iraqi and Afghan businesses.

.

That is interesting. Then the agency lawyers ought to cite that as the justification for local set-asides, not cite Part 5 as the justification. However, it is entirely possible that someone has taken the Chief Counsel's email advice out of context. The Counsel may have been responding to a question about publicizing, assuming that the acquisitions were excepted from full and open competition. This is not uncommon.

Kathleen said in an earlier post:

[The following was taken from a recent Chief Counsel e-mail.

"?The Contracting Officer need not submit the notice required by 5.201 when ? only local sources will be solicited.? "FAR Part 5.202 and 5.202(a)(12)) This means that we are permitted to directly send the solicitations, without making announcements of the requirement, to the local contractors working in the area that we have previously identified."]

Reading closely, I could see where this email was in the context of advising how to publicize locally, not in justifying why the acquisition(s) is exempt from full and open competition.

I haven't read the above cited Section 886, but if it is applicable, it would seem that that is what would be cited as the exception to full and open competition, under the appropriate Part 6 exception category.

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I am sure I will be chastised for my comments and my apparent attempt to stifle free and open discourse, but I have to make them anyway. First, Kathleen appears to have concerns over advice she was given by her legal counsel. Has she asked that same counsel for clarification, explanation or a sanity check from a higher-level legal office? As an attorney, I don't expect my clients to blindly accept everything I tell them. I do, however, hope that if they don't agree, don't understand or even just don't like my answer, they will do me the professional courtesy of giving me a chance to explain myself and/or to take a second look.

Secondly, as a government attorney, I have some concerns about the sharing of specific, detailed advice given to an agency customer by the agency counsel. When I advise my clients, I am doing so as an attorney representing the AGENCY. The individual contracting officer, program manager, etc., is ALSO representing the AGENCY. There is no attorney-client relationship between the two of us as INDIVIDUALS. Within the bounds of that relationship, what I tell my client is privileged and confidential, meaning I cannot be forced to reveal it to anyone not a part of that attorney-client relationship. However, when it is shared in a public form such as this, that attorney-client privilege is breached and the advice is no longer privileged and confidential and could be disclosed in a forum such as a bid protest (filed by a contractor unhappy over the outcome of Kathleen's acquisition). Don't think unsuccessful offerors don't scour the Internet for comments such as these. I know they do. Finally, it's important to remember that the privilege belongs to the agency, not to the individual. Thus, neither Kathleen nor any other individual below the HCA or similar official has the legal right to reveal specific advice they receive from counsel.

Having said all that, I respect and appreciate the value that WIFCON provides as a sounding board. However, as a gov't lawyer, I get paid to be anal-retentive, paranoid and otherwise a wet blanket. So please bear with me.

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K-Law, I don't disagree with you. I have a feeling that I know what agency and what legal office is involved. I think that someone took the Chief Counsel's remarks out of context, which is exactly what my attornies alway hated. In a discussion concerning how to advertise, someone assumed that the discussion referred to an exemption that allows restricting competition to local firms. Upon re-reading that advice. I can see how easily it can be read several ways. Ah, the danger of taking legal advice and trying to put it into broad context.

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In accordance with Rule 11, issues are to be couched in a hypothetical manner. As a result of your post, I reviewed this thread and edited the post that provided "specific" legal advice so that it is no longer specific.

In posting, it is important to remember that this is a public forum that can be viewed by anyone that happens by. As I menioned before, if a poster is a contracting officer, he/she may be discussing an issue with his/her contractor without knowing it. Likewise, a contractor could be discussing an issue with his/her contracting officer without knowing it. For these and other reasons, please remember Rule 11 when posting.

Secondly, as a government attorney, I have some concerns about the sharing of specific, detailed advice given to an agency customer by the agency counsel. When I advise my clients, I am doing so as an attorney representing the AGENCY. The individual contracting officer, program manager, etc., is ALSO representing the AGENCY. There is no attorney-client relationship between the two of us as INDIVIDUALS. Within the bounds of that relationship, what I tell my client is privileged and confidential, meaning I cannot be forced to reveal it to anyone not a part of that attorney-client relationship. However, when it is shared in a public form such as this, that attorney-client privilege is breached and the advice is no longer privileged and confidential and could be disclosed in a forum such as a bid protest (filed by a contractor unhappy over the outcome of Kathleen's acquisition). Don't think unsuccessful offerors don't scour the Internet for comments such as these. I know they do. Finally, it's important to remember that the privilege belongs to the agency, not to the individual. Thus, neither Kathleen nor any other individual below the HCA or similar official has the legal right to reveal specific advice they receive from counsel.

Having said all that, I respect and appreciate the value that WIFCON provides as a sounding board. However, as a gov't lawyer, I get paid to be anal-retentive, paranoid and otherwise a wet blanket. So please bear with me.

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In accordance with Rule 11, issues are to be couched in a hypothetical manner. As a result of your post, I reviewed this thread and edited the post that provided "specific" legal advice so that it is no longer specific.

In posting, it is important to remember that this is a public forum that can be viewed by anyone that happens by. As I menioned before, if a poster is a contracting officer, he/she may be discussing an issue with his/her contractor without knowing it. Likewise, a contractor could be discussing an issue with his/her contracting officer without knowing it. For these and other reasons, please remember Rule 11 when posting.

Bob, please review and fix, if necessary, my 21 July post, in which I quoted part of Kathleen's earlier post. Thanks.

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