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Salb

QUESTION: Unusual and Compelling Urgency Strategy

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My office intends to award a contract on a limited sources basis using FAR 6.302 2 Unusual and Compelling Urgency. There is no question as to whether the requirement meets the Unusual and Compelling Urgency standard, which will allow us to limit sources. However, I am unsure as to how much latitude FAR 6.302 2 affords contracting officers in how we actually go about restricting sources and precluding firms from participating in acquisitions. We currently have a shortlist of ten companies that were identified as viable sources. Each of these sources was selected to compete based on our initial assessments of their capabilities and expertise. However, these assessments were anecdotal in their nature and based more on conjecture rather than substantive evidence. The assessments also presume that the ten firms possess the capabilities and expertise that are superior to that of the other precluded firms, which may or may not be true. We advertised a request for information, but we didn’t notify industry that we would potentially use the findings of that request to restrict competition based on capabilities. One could almost argue that we conducted a pseudo-technical evaluation that unfairly prejudiced contractors that did not respond to the request and or were unaware of the Government’s intentions.

However, we are also considering an alternative approach focused more on practicality with consideration to the urgent need for these services. In our market research, we have identified one firm that is uniquely situated to provide the services. However, that is questionable also. One could make a reasonable argument that other firms may also be uniquely suited to address the requirement in their own way. However, under this approach, we wouldn’t have actually precluded other sources under the presumption of not being qualified. Instead, this approach is based more on promoting the reasonable economy and efficiency warranted by the unusual and compelling urgency of the requirement. The need is of such compelling urgency that we could not justify competing the effort when we have a proven source that is postured to immediately engage the requirement. In this situation, one could also make the argument that our determination appears to be arbitrary or capricious in its nature.

(Bear in mind that there is minimal performance risk for the requirement and the price reasonableness/best value standard can easily be met for either approach.)

Question: How much latitude does the Government have in choosing either of these approaches? One perspective assumes that we are protected by the 6.302-2 standard and the manner in which we restrict competition is irrelevant as long as we promote competition to the maximum extent practicable (very subjective standard). This implies that either approach is viable. Is there any GAO case law or standard beyond those discussed in the FAR that might help bring some clarity to this situation?

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Why did you issue an RFI if your need is unusual and compelling?

You have some latitude, but how much depends on the facts. Rather than try to summarize a complex issue, I suggest that you do some research. There have been 23 GAO decisions in which "unusual and compelling" is mentioned in the decision digest. There have been 9 Court of Federal Claim decisions. Scan them all. Also check Government Contract Awards: Negotiation and Sealed Bidding, by Feldman, Chapter 3.

Everything is fact dependent. The fact that you're even considering going to more than one source suggests that your urgency is not all that compelling.

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Also please remember that the exception at 6.302-2 requires that you request offers from as many potential sources as practicable under the circumstances. See paragraph ( c ) (2 ). See also 6.303-2 ( 6) and (8 ) for documentation of efforts to solicit offers from as many sources as possible and the market research used. I believe that you'd have to justify why only contacting one source is necessary.

Your explanation that performance risk is minimal and the ability to determine price reasonableness and "best value standard" may be easily met under more than one approach is an indication that sole source may not be truthfully justifiable.

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Salb, Are you the CO/CS or in the program office? The program office must make the case in absolute terms that going to any other company other than the one most postured to meet the need will cause mission failure. They must explain on the J&A how taking extra time to compete the requirement will adversely affect the Government. If the J&A reads all wishy washy like your description above, I would disapprove the J&A immediately (as the competition advocate for my acquisitions office). My legal advisor also uses the same standard in thier review.

If you have to compete the requirement even amoung a few companies then you might as well compete it with all. It would be very hard to justify how evaluating 3 or more companies will save enough time to justify eliminating all others. Also don't bring me an urgent and compelling J&A that shows you have been studying the market for months already. It is obviously not urgent.

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