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bob7947

Justification Requirements Under COFC Savantage Decision

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Is the court saying that a transaction for interagency reimbursable work under FAR 17.500( c )( 1 ) is subject to CICA, and that one agency cannot obtain interagency reimbursable work from another agency without first complying with the J&A requirement of CICA?

That's how I read it. That's scary.

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I looks like they are reaching all over the file for bits of the JOFOC and piecing them together. Also the bolded requirement now sounds non-protestable?

First, some of the information omitted from the A-127 Justification is found elsewhere in the administrative record. . . Second, requiring the Coast Guard, TSA, and DNDO to add a statement regarding how they might be able to conduct a full and open competition in a future procurement would not affect whether plaintiff had a chance of being awarded a contract in the present procurement. Finally, although the A-127 Justification lacks any contracting officer certifications, its conclusion was endorsed by the Chief Financial Officers, Chief Information Officers, and Chief Acquisition Officers of the Coast Guard, TSA, and DNDO, all of which are higher-level officials than a contracting officer. In sum, the Coast Guard s failure to include all of the information in the A-127 Justification that is required by 41 U.S.C. § 3304(e) and FAR 6.303-2( B ) amounts to nothing more than harmless error. As such, plaintiff was not prejudiced by the omissions. Consequently, plaintiff cannot prevail on its claim that the Coast Guard, TSA, and DNDO violated the Competition in Contracting Act of 1984 and its implementing regulations.

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I don't see how FAR part 6 applies. According to FAR 6.001, the part applies to "acquisitions". An "acquisition" as defined in FAR 2.101 is made "by contract". The agency did not use a "contract" as defined in FAR 2.101. Further, the Court states:

Although executive agencies are normally required to obtain property and services through full and open competition, they may use noncompetitive procedures in certain circumstances. 41 U.S.C. §§ 3301(a), 3304(a).

The statute doesn't say "obtain". From 41 U.S.C. 3301(a):

Except as provided in sections 3303, 3304(a), and 3305 of this title and except in the case of procurement procedures otherwise expressly authorized by statute, an executive agency in conducting a procurement for property or services shall—

(1)obtain full and open competition through the use of competitive procedures in accordance with the requirements of this division and the Federal Acquisition Regulation; and

(2)use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.

("Procurement" is not defined in the statute, but it is defined as a synonym of "acquisition" at FAR 2.101). An agency can "obtain" property and services in a number of ways--conducting a procurement is one way, but not the only way. For example, an agency can "obtain" excess personal property from another agency (see FAR subpart 8.1), but that would not be conducting a procurement.

I view an agency obtaining services from another agency using an interagency reimbursable work agreement (where the work is done by federal employees) as analogous to an agency requisitioning an item of supply from the stock of another agency (like GSA, DLA, VA, military inventory control points) using FEDSTRIP or MILSTRIP. Would the Court say that CICA applied to those transactions?

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Does the court's action effectively rename CICA to CIOA?

Competition in Contracting Act to

Competition in Obtaining Act?

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I looked at the decision, it says that A-127 (with which I am not familiar) drags FAR Part 6 into the issue:

For example, in the then-effective version of Circular No. A-127, pertaining to

financial management systems, OMB required executive agencies to consider the use of a federal

shared service provider (“FSSP”) when upgrading or modernizing their financial management

software systems:

7. Service Provider Requirements

. . . .

D. Competition Exemption

Agencies may be allowed to conduct a non-competitive migration or a

competitive migration involving only commercial providers (if authorized

by law) or OMB designated providers if they prepare a full justification,

generally including the type of information called for by section 6.303-2 of

the Federal Acquisition Regulation [(“FAR”)]. The justification shall be

approved by the agency’s Chief Financial Officer, Chief Information

Officer, and Chief Acquisition [O]fficer. Agencies shall confer with OMB

prior to proceeding with a migration that is noncompetitive or is otherwise

limited in accordance with this paragraph. . . . The justification shall be

documented in the same general manner prescribed in Part 6 of the FAR

for the use of other than full and open competition.

Don't know if this clarifies anything, or just muddies the waters even further. I don't know if a KO could point to this decision and say "well, I don't have a JOFOC but all of the information is in the file!" Perhaps the word "generally" makes this concept not applicable to the work we do.

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I looked at the decision, it says that A-127 (with which I am not familiar) drags FAR Part 6 into the issue:

Don't know if this clarifies anything, or just muddies the waters even further. I don't know if a KO could point to this decision and say "well, I don't have a JOFOC but all of the information is in the file!" Perhaps the word "generally" makes this concept not applicable to the work we do.

I don't interpret that as meaning that FAR part 6 applies. It's just a requirement to include the same type of information in the "Competition Exemption" as would be included in a FAR part 6 J&A. The requirement for this justification comes from OMB Circular A-127, not FAR part 6.

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