RFPs for Sole Source

[Guest Vern Edwards]

How would the solicitation "become" sole source?

[Whynot]

I apologize for the delay in responding to your question, I was away from electronics for a while.

Perhaps my use of the word “becomes” is incorrect.

I was thinking along the lines of a HUBZone Sole Source (FAR 19.1306(a)) A contracting officer shall consider a contract award to a HUBZone small business concern on a sole source basis (see 6.302-5( b )( 5 )) before considering a small business set-aside or similarly FAR19.1406(a).

Here it is clear that you can have either a sole source as described above or a set aside. The clause assumes that you consider the sole source approach first. Perhaps in reality the CO incorrectly uses the same RFP/Contract form for either of the two approaches (sole source and set aside) or they happen concurrently. It seems from the forum’s responses to your original question under this thread that COs are using RFPs for making sole source awards. I find it very likely they are using competitive set aside RFP/Contract form when they do so.

I think I was trying to confirm that you have an “either/or” and not a “both/and” situation.

I was also trying to get traction with the view that a set aside needs to be competitive. See 41 U.S.C. § 3303( b )

( b ) EXCLUSION OF OTHER THAN SMALL BUSINESS CONCERNS.—An executive agency may provide for the procurement of property or services covered by section 3301 of this title using competitive procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638,644).

[joel hoffman]

Do the set aside clauses that are in the solicitation/contract self delete if the solicitation/contract becomes a sole source, such as the limitation on subcontracting (which is mandatory under a set aside only)?

Whynot, why did you say that the limitations on subcontracting are mandatory only under a set-aside (competitive)? Here, I assume that you were referring to HUBZone sole source/set-asides.

[Whynot]

Look at it's prescription 19.508(e) and 19.811-3(e). These are mandatory for set aside orders/contracts.

[joel hoffman]

FAR 19.508( e ) is the prescription for using clause 52.219-14 on set-asides for small business concerns - not for HUBZones.. I am not aware of any sole source authority for general small business concerns. At any rate, I don't believe that Clause 52.219-14 is applicable to HUBZone type awards or HUBZone price preferences.

19.811-3(e) is the prescription for using clause 52.219-14 for 8( a ) sole source, 8 ( a ) set-asides or for orders set-aside for 8( a ) on a MATOC. It is required for any contract resulting from Subpart 19.8 ("The 8( a ) Program").

Contract Clause 52.219-3 contains the limitations on subcontracting for HUB-Zone set-asides, for sole source HUBZone awards of for orders that are set-aside for HUBZones on MATOC's. See 19.309( a )

19.1309 – Contract clauses.

(a) The contracting officer shall insert the clause 52.219-3, Notice of HUBZone Set-Aside or Sole Source Award, in solicitations and contracts for acquisitions that are set aside, or reserved for, or awarded on a sole source basis to, HUBZone small business concerns under 19.1305 or 19.1306. This includes multiple-award contracts when orders may be set aside for HUBZone small business concerns as described in 8.405-5 and 16.505( b )(2)(i)(F).

(1) The contracting officer shall use the clause with its Alternate I to waive the 50 percent requirement if the conditions at 19.1308( b ) apply.

(2) If a waiver is granted, the HUBZone small business prime contractor must still meet the performance of work requirements set forth in 13 CFR 125.6( c )...

[Whynot]

I agree with you on the HUBZones and 8(a) prescriptions. There is no prescription for small business concerns - what I am more concerned about..

[joel hoffman]

FAR 19.1407 prescribes the use of Clause 52.219-27 -- "Notice of Service-Disabled Veteran-Owned Small Business Set-Aside" in sole source, competitive set-asides or orders set-aside for SDVOSB's. That clause contains the subcontracting restrictions.

You said above: "There is no prescription for small business concerns - what I am more concerned about.." Correct, there is no program under Subpart 19.5 for sole source awards to small business concerns that aren't considered to be economically disadvantaged.

Bottom line is that it appears that if there is a program for a particular class of economically disadvantaged small business that would provide for a competitive set-aside or award of a sole source contract/order or to provide a price preference for them, then there are restrictions on subcontracting.