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EDantes

Multiple sole source contract awards

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I work in a research and development contracting organization. I am trying to determine whether awarding two sole source contracts for essentially the same research subject/area of interest is an allowable practice. After reviewing 35.007, the text of the regulation suggests that when contracting for R&D, full and open competition need not be provided for:

(a) The submission and subsequent evaluation of an inordinate number of R&D proposals from sources lacking appropriate qualifications is costly and time-consuming to both industry and the Government. Therefore, contracting officers should initially distribute solicitations only to sources technically qualified to perform research or development in the specific field of science or technology involved. Cognizant technical personnel should recommend potential sources that appear qualified, as a result of --

(1) Present and past performance of similar work;

(2) Professional stature and reputation;

(3) Relative position in a particular field of endeavor;

(4) Ability to acquire and retain the professional and technical capability, including facilities, required to perform the work; and

(5) Other relevant factors.

(b) Proposals generally shall be solicited from technically qualified sources, including sources that become known as a result of synopses or other means of publicizing requirements. If it is not practicable to initially solicit all apparently qualified sources, only a reasonable number need be solicited. In the interest of competition, contracting officers shall furnish copies of the solicitation to other apparently qualified sources.

Our office recently conducted a sources sought/RFI, and of the 8 respondents, two were identified as having the technical expertise in our very specific research area. The Program Office would like to award two sole source contracts to these companies for studies on the topic. The text above seems to suggest a limited source competition of sorts in which the most technically qualified and promising proposals are awarded--similar to the BAA solicitation procedure discussed in 35.016. The text above discusses soliciting proposals from a "reasonable number" of sources, which suggests to me that one cannot, pursuant to the above, simply identify the two that were determined to have the technical expertise, solicit proposals from, and award a contract to each. Or can we?

I also referred to FAR 6.302-1(a)(2) which discusses the "one responsible source" exception to full and open competition. For DoD (we are DoD), the text also allows for contracting without providing for full and open competition in situations in which a "limited number of sources" can be identified. But to the guidance in FAR 35, need full and open competition even be provided for in the first place for R&D solicitations?

Bottom line: Is it possible, in an R&D environment, to solicit proposals from two companies (that were determined to be the only ones with the necessary technical expertise in the relevant research area) on a sole source basis and award each contracts for studies in the research area? Any guidance would be most appreciated.

 

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6 hours ago, EDantes said:

I work in a research and development contracting organization. I am trying to determine whether awarding two sole source contracts for essentially the same research subject/area of interest is an allowable practice. After reviewing 35.007, the text of the regulation suggests that when contracting for R&D, full and open competition need not be provided for....

Bottom line: Is it possible, in an R&D environment, to solicit proposals from two companies (that were determined to be the only ones with the necessary technical expertise in the relevant research area) on a sole source basis and award each contracts for studies in the research area? Any guidance would be most appreciated.

I think that you have misinterpreted FAR 35.007. There is no general CICA exception for R&D. Read the definition of full and open competition in FAR 2.101:

Quote

“Full and open competition,” when used with respect to a contract action, means that all responsible sources are permitted to compete.

Now read the definition of responsible prospective contractor in the same section:

Quote

“Responsible prospective contractor” means a contractor that meets the standards in 9.104.

Now read FAR 9.104-1(e):

Quote

To be determined responsible, a prospective contractor must...

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them....

Finally, read FAR 9.105-1(b)(1):

Quote

(b)(1) Generally, the contracting officer shall obtain information regarding the responsibility of prospective contractors, including requesting preaward surveys when necessary (see 9.106), promptly after a bid opening or receipt of offers. However, in negotiated contracting, especially when research and development is involved, the contracting officer may obtain this information before issuing the request for proposals.

You may not read FAR 35.007 as indicating or suggesting that you need not provide for full and open competition when contracting for R&D. FAR Part 6 requires that you do unless one of the statutory exceptions apply. Instead, you must read 35.007 only to mean that in the interests of saving time and money you should consider making preliminary determinations of responsibility before you issue an RFP. If, once you issue the RFP, you get requests for it from other sources you must provide it and you must evaluate any proposals received.

Now see FAR 6.302-1(a)(2) with regard to "a limited number of responsible sources."

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Hi EDantes,

You should understand that FAR is primarily mandates for the Government, not contractors. Contractors may choose to follow all or a portion of those. There are a small number of FAR provisions and clauses in which the word Contractor appears. Those control what contractors are required to do. Your organization should have written procedures guiding this area. Is you plan of action consistent with those procedures? Does your organization have an approved purchasing business system? In direct response to your question, I would say there is nothing inherently wrong with you plan assuming you send both the subcontractors an RFP, make it known that it is a competitive solicitation and request proposals. Awards like you are planning are sometimes made especially in R&D, to receive different ideas and or to protect schedule against one of them not providing the kind of response you were expecting or can use in executing your organization's prime contract requirements.   

Edited by Neil Roberts
typo

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If your organization is a government entity, which was not clear to me, you may disregard what I said. I was under the impression you work for a non-Government organization/firm.   

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Sir,

Thank you. I rushed too quickly to an erroneous interpretation of 35.007. I think I was equating "full and open competition" with posting the RFP to the GPE, thereby making it available to any offeror that chooses to submit a proposal in response to it. If I am understanding the definitions/guidance correctly, that is one approach to providing for full and open competition, but not the only one. Full and open competition also can be provided for when the CO distributes the RFP (I assume not via the GPE, but in a targeted way?) only to "all responsible offerors" and provides it to any prospective offerors who request it who were made aware of the existence of the RFP/contract action via synopsis on the GPE. Is this correct?

Regarding FAR 6.302-1(a)(2), it states: if "a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for." If these tests are met, does that mean that a CO could award contracts on a "limited source" basis to multiple contractors? Or does it simply mean that if a limited number of responsible sources" are identified, then a competition must be held between them, resulting on one being selected for award. In an R&D environment, we seem to run into many situations where the Program Office is interested in pursuing "parallel paths" and I am trying to determine the best way to meet their needs while staying in compliance with all the laws and regulations.

Thanks again for the input and guidance.

 

 

 

 

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1 hour ago, Neil Roberts said:

If your organization is a government entity, which was not clear to me, you may disregard what I said. I was under the impression you work for a non-Government organization/firm.   

Correct, I work in a government contracting office.

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