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Absent a specific statutory authority, a CONTRACT with a state university is subject to the normal FAR rules for competition. Set-asides are only for certain classes of small business concerns, and a state university cannot be a small business concern -- see the definition of "concern" in FAR 19.001. You may sole-source an acquisition to a state university using the normal rules for J&As and so forth.

If your agency has authority for GRANTS or AGREEMENTS, you might consider that approach.

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Guest Vern Edwards

In forming a contract with an educational institution such as state university should the normal competitive contracting process be followed or are there special set-asides or other acquisition approaches for a civilian federal agency?

The rules for competitive contract formation are the same as when dealing with other entities. Comply with FAR Part 6 and the appropriate solicitation, offer, and award rules (FAR Subpart 8.4, Part 13, Part 14, or Part 15). There are no special set-asides for educational institutions, but see FAR Subpart 26.3.

There are some special rules about other aspects of contracting, such as cost principles and data rights, but you asked about contract formation.

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Why should KON05012006 consider that approach?

Because sometimes agency objectives can be achieved through means other than procurement contracts.

You think that the decision whether to use a procurement contract or a grant/agreement turns on the type of contractor (or recipient)? It does not. It turns on what the principal purpose of the relationship is. The Federal Grant and Cooperative sets forth the criteria for the use of each at 31 U.S.C. 6303-6305:

An executive agency shall use a procurement contract as the legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when—
(1) the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government; or
(2) the agency decides in a specific instance that the use of a procurement contract is appropriate.
An executive agency shall use a grant agreement as the legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when—
(1) the principal purpose of the relationship is to transfer a thing of value to the State or local government or other recipient to carry out a public purpose of support or stimulation authorized by a law of the United States instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government; and
(2) substantial involvement is not expected between the executive agency and the State, local government, or other recipient when carrying out the activity contemplated in the agreement.
An executive agency shall use a cooperative agreement as the legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when—
(1) the principal purpose of the relationship is to transfer a thing of value to the State, local government, or other recipient to carry out a public purpose of support or stimulation authorized by a law of the United States instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government; and
(2) substantial involvement is expected between the executive agency and the State, local government, or other recipient when carrying out the activity contemplated in the agreement.
If the agency's objectives were to acquire property or services for the direct benefit of the government, using a grant or cooperative agreement would be improper (see Assisted Housing Services Corporation; North Tampa Housing Development Corporation; The Jefferson County Assisted Housing Corporation; National Housing Compliance; Southwest Housing Compliance Corporation; CMS Contract Management Services and the Housing Authority of the City of Bremerton; Massachusetts Housing Finance Agency, B-406738, B-406738.2, B-406738.3, B-406738.4, B-406738.5, B-406738.6, B-406738.7, B-406738.8, Aug 15, 2012).
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You think that the decision whether to use a procurement contract or a grant/agreement turns on the type of contractor (or recipient)?

Don errs and misrepresents the truth by suggesting that I think as above. There is nothing in my postings here that could possibly lead to his absurd conclusion. I already know everything he wrote in his dissertation above, but I'm glad he is learning it.

Sometimes agency objectives can be achieved through means other than procurement contracts (such as grants or agreements). That's a wholly true statement, and no one in our profession should be offended by it.

The original poster has not told us the reason he or she wants a business relationship with a state university. I don't presume that the purpose of the relationship is to acquire property or services for the direct benefit of the Government.

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ji20874,

I guess you're not capable of civil discussion without getting offended. Maybe you're still mad that you were taken to task for your incorrect assertions in the other thread.

In any case, this is what you wrote:

Absent a specific statutory authority, a CONTRACT with a state university is subject to the normal FAR rules for competition. Set-asides are only for certain classes of small business concerns, and a state university cannot be a small business concern -- see the definition of "concern" in FAR 19.001. You may sole-source an acquisition to a state university using the normal rules for J&As and so forth.

If your agency has authority for GRANTS or AGREEMENTS, you might consider that approach.

You were obviously suggesting that the OP pursue a grant/cooperative agreement because they were dealing with a state university. That's the only reasonable conclusion that can be drawn from your post. Nothing absurd about it. The OP wrote nothing that would suggest that his agency's objective would make a grant or cooperative agreement suitable. You gave poor advice, because the determination to use a grant/cooperative agreement does not turn on the type of entity you're dealing with. Ironically, now you claim to have known better.

Get a grip, ji20874. You are acting childish.

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By the time a contracting office or contracting officer is involved, hopefully the agency's acquisition process has worked through a strategy where the need is met by a contract. Suddenly deciding a requirement gets done through a grant or cooperative agreement sounds strange like the agency doesn't know what they are doing.

In order words the program need is X. The acquisition process should decide upfront what method is best to satisfy X - is it a grant, a cooperative agreement, another agency, in-house, a contract, etc.?

I think Don is bringing up the right points.

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KON05012006,

Absent a specific statutory authority, a CONTRACT with a state university is subject to the normal FAR rules for competition. Set-asides are only for certain classes of small business concerns, and a state university cannot be a small business concern -- see the definition of "concern" in FAR 19.001. You may sole-source an acquisition to a state university using the normal rules for J&As and so forth.

If your agency has authority for GRANTS or AGREEMENTS, you might consider that approach.

I haven't recommended a grants or agreements approach for your particular situation because I don't know your need or the purpose of your proposed business arrangement -- but I have done contracts, grants, and agreements with state universities, and I know that each has its purpose, and people in federal circles are often confused about this matter, so I earlier suggested you might consider a grants or agreements approach. Depending on your need or the purpose of your proposed business arrangement with a state university, you might find a grant or agreement to be a better approach than a contract -- it makes sense to consider all the possibilities.

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Guest Vern Edwards

Absent a specific statutory authority, a CONTRACT with a state university is subject to the normal FAR rules for competition. Set-asides are only for certain classes of small business concerns, and a state university cannot be a small business concern -- see the definition of "concern" in FAR 19.001. You may sole-source an acquisition to a state university using the normal rules for J&As and so forth.

If your agency has authority for GRANTS or AGREEMENTS, you might consider that approach.

I don't think there is anything wrong with ji20874's suggestion "to consider" a grant. The O.P. asked about "other acquisition approaches," and while the award of a grant is not an acquisition, it's not poor advice to suggest consideration of something that isn't obviously illegal. I have no idea whether the notion is viable. On the other hand, while I don't think that Don got it right about what ji20874 said, I don't think he was lying about it.

As for the O.P.s question, it suggests to me that s/he's looking for a way to avoid full and open competition and doesn't want to be up front about it. Since s/he's posting under a genderless pseudonym, why not just straightup ask?

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If you are adamant about having a particular university contribute to your project, but don't have a sufficient justification to limit competition for a sole source, you may want to consider an 8(a) small business to partner with the university using the authority at FAR Subpart 19.8. There are dollar limitations ($6 million for manufacturing and $4 million for all other services) and the small business must perform the majority of the work, but it can be a good option if you are looking to make an award quickly and ensure you have a certain set of expertise. There are some great 8(a) small businesses out there with research backgrounds that routinely provide an added value to a resource-limited university's research department. You could even contact the university to see if they have a particular 8(a) partner.

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KON05012006,

Absent a specific statutory authority, a CONTRACT with a state university is subject to the normal FAR rules for competition. Set-asides are only for certain classes of small business concerns, and a state university cannot be a small business concern -- see the definition of "concern" in FAR 19.001. You may sole-source an acquisition to a state university using the normal rules for J&As and so forth.

If your agency has authority for GRANTS or AGREEMENTS, you might consider that approach.

I haven't recommended a grants or agreements approach for your particular situation because I don't know your need or the purpose of your proposed business arrangement -- but I have done contracts, grants, and agreements with state universities, and I know that each has its purpose, and people in federal circles are often confused about this matter, so I earlier suggested you might consider a grants or agreements approach. Depending on your need or the purpose of your proposed business arrangement with a state university, you might find a grant or agreement to be a better approach than a contract -- it makes sense to consider all the possibilities.

That's better.

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