Whynot Posted June 13, 2014 Report Share Posted June 13, 2014 Is it acceptable for a prospective contractor for a prospective sole source contract to provide direct assistance to the program office in the preparation of the sole source justification, or would this assistance rise to the level of a conflict of interest for the prospective contractor and should be avoided or minimized? Link to comment Share on other sites More sharing options...
ji20874 Posted June 13, 2014 Report Share Posted June 13, 2014 If the sole source reason is legitimate, I don't see a problem with asking the contractor for some insights to explain the facts of the marketplace for the Government's understanding and use in the justification. But for me, asking for some insights might be different from direct assistance in preparing. Are you talking about a sole source justification that will be shared on e-Buy (see FAR 8.405-6( b )( 3 )( i )) or on FedBizOpps (see FAR 6.305 and 16.505( b )( 2 )(( ii )( D ))? If so, the public posting will provide some transparency to the process. If you do use the contractor for direct assistance in preparing the justification, will you say so in the justification? Something like, "ACME INC. assisted in preparing sections X and Y of this justification"? Link to comment Share on other sites More sharing options...
Whynot Posted June 16, 2014 Author Report Share Posted June 16, 2014 Thank you. You hit on something else that I am curious about. I am not sure that by simply disclosing something makes that something proper. If I wanted to commit a crime would I be exempt from prosecution if I disclose my intentions ahead of time or admit and publish it after the fact? I come across that advice “just disclose what you are doing” frequently with the understanding that I am somehow thus covered legally and contractually. I guess by disclosing, that if someone has a problem with it, they will challenge it. If no one challenges the disclosure then there is no issue. I kind of think that some things maybe incorrect or wrong on their own account, regardless if they are disclosed. With all due respect… Link to comment Share on other sites More sharing options...
ji20874 Posted June 16, 2014 Report Share Posted June 16, 2014 The sole source justification (or J&A or JEFO or LSJ) is supposed to be the Government's document explaining the Government's reasons for a sole source acquisition. I'm okay with talking to the prospective contactor for insights regarding the facts of the marketplace for the Government's benefit and use in the justification -- I'm somewhat uncomfortable with the phraseology "to provide direct assistance . . . in the preparation of the sole source justification" -- I think my first posting shared my discomfort -- but if you are going to do it, I wondered, will you give credit where credit is due? I certainly did not endorse using the "prospective contractor for a prospective sole source contract to provide direct assistance to the program office in the preparation of the sole source justification" -- and I did not say with a wink-wink that disclosing would make it okay. You see, I know that even if the program office did use the "prospective contractor for a prospective sole source contract to provide direct assistance to the program office in the preparation of the sole source justification" it would almost certainly never in a million years give attributional credit (something like, "ACME INC. assisted in preparing sections X and Y of this justification"). After all, the sole source justification (or J&A or JEFO or LSJ) is supposed to be the Government's document explaining the Government's reasons for a sole source acquisition. All that being said, If the sole source reason is legitimate, I don't see a problem with asking the contractor for some insights to explain the facts of the marketplace for the Government's understanding and use in the justification. But for me, asking for some insights might be different from direct assistance in preparing. Link to comment Share on other sites More sharing options...
VA1102 Posted June 19, 2014 Report Share Posted June 19, 2014 So long as the prospective offeror is only providing the unique characteristics of the commodity/service the government wants it to supply ( e.g. proprietary features, unique capabilities, etc.), I don't think there is a problem. However, the program office must take care not to let the contractor define the government's requirement. As the CO, I would want to know that the program office defined the agency's need based on its own analysis, and not on what the prospective offeror told the agency its need was (or should be). Link to comment Share on other sites More sharing options...
C Culham Posted June 19, 2014 Report Share Posted June 19, 2014 So far this thread has not mentioned "appearance of" as a possible consideration. All said you may want to visit with the appropriate agency ethics official with regard to the facts of the matter. Link to comment Share on other sites More sharing options...
Whynot Posted June 25, 2014 Author Report Share Posted June 25, 2014 I was originally looking at this as being similar to a conflict of interest in the source selection for a competitive procurement. If a contractor were involved in their selection under a competition then this would clearly be a conflict of interest. However, in a sole source procurement there is no source selection, but there is a sole source justification. Could this sole source justification essentially be considered equivalent to a source selection? Both result in the award of a contract to a particular contractor. If they function essentially the same and the results are the same, does the prohibition on conflict of interest apply to both? Link to comment Share on other sites More sharing options...
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