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Solicitiation Posting Requirements with Sole Source J&A

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I know this topic has been discussed in the past, but all of the forums are now closed. I wanted to reintroduce the topic, because it seems to me that several citations are being overlooked.

It seems the past consensus has been that a solicitation needs to be posted when one has an approved sole source J&A, but I'm not sure that I agree.

In this scenario, I have an approved sole source J&A IAW FAR 6.302-1. I agree that a Sources Sought had to be done and addressed in the J&A (DFARS requirement), and I agree that a synopsis of the proposed contract action must be submitted IAW FAR 5.201 (FAR 6.302-1 states that the requirements of FAR 5.201 must be met - note that it does not specifically say this about FAR 5.102, which is the "Availability of Solicitation" section). I also agree that we have to submit the notice of proposed contract action IAW FAR 5.203(a), which states:

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An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302...

Why differentiate solicitations and sole source actions if solicitations are required to be posted for all actions? Furthermore, under FAR Subpart 5.201 - Availability of Solicitations, FAR 5.201(e) specifically states:

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Provide copies of a solicitation issued under other than full and open competition to firms requesting copies that were not initially solicited, but only after advising the requester of the determination to limit the solicitation to a specified firm or firms as authorized under Part 6.

Again, if we are specifying that not all sources needed to be originally solicited, and must only be given a copy of the solicitation if requested, why is everyone assuming that the solicitation needs to be posted publically in the first place? This seems very contradictory.

It seems to me that sole source actions wouldn't be called out separately from solicitations in several FAR Part 5 locations if the requirements were the same for both.

Additionally, there are several cases of protests regarding sole source awards where the agencies only posted a sources sought and then a notice of intent to award sole source (no solicitation was posted), and these protests were dismissed. In DIGITALIS EDUCATION SOLUTIONS, INC. v UNITED STATES, the judge wrote:

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In a sole-source award such as this one, the notice of intent issued by the government is analogous to a request for a proposal. Interested parties are invited to submit statements of capability in order to convince the government that it should hold a full competition for the contract rather than sole-source the contract to the proposed contractor.

If the requirements of FAR 5.207(c) are followed for description when issuing a notice of intent to award sole source (which also requires us to state that "that all responsible sources may submit a capability statement, proposal, or quotation, which shall be considered by the agency" when using 6.302-1) , then this should be enough information for an interested party to provide a capability statement or other document showing its interest and capability.  The courts have not, to my knowledge, stated that there is an additional requirement to post a full solicitation.

And again, why would the court say that a notice of intent to award sole source "is analogous" to an RFP in a sole source situation if an actual RFP is always required to be posted anyway?

PROXTRONICS DOSIMETRY LLC v UNITED STATES is also a case in which a sole source award was protested after the contracting office posted a sources sought, a notice of intent to award sole source and then sent the solicitation only to the intended sole source after obtaining an approved J&A.

Any new thoughts on this topic taking into consideration the cited FAR references and cases? 

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I looked at the first link, and don't see the same consensus that you do that folks believe that a solicitation must be posted. Some say it, some disagree. A lot of the discussion is qualified. For example, in Vern's last post, he states that the solicitation is published "if anyone asks for it."

For what it's worth, I have only ever published the synopsis, and I don't think I ever witnessed firsthand a CO do otherwise. 

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Thanks for your response FrankJon. This is how I have done it in the past as well for sole source J&As. My reading is that if you are doing a competition (whether it's full and open, limited etc.) you issue a pre-solicitation notice and then the solicitation after the required time period, but if you have a sole source acquisition, you issue your intent to award sole source for the required time period and then move forward if there are no additional responses.

FAR 5.203(a) states, for synopses of proposed contract actions:

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The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302...

To me, this means a pre-solicitation notice if a solicitation will be issued and a notice of intent to award sole source in the event of a sole source action IAW FAR 6.302.

For the solicitation, 2.102(a) would then apply, and a solicitation would have to be posted because that section is applicable to "solicitations synopsized through the GPE"; whereas, 2.102(e) would apply to the notice of intent to award sole source, and the contracting officer would then be required to provide a solicitation only if it is requested by another firm during the allotted response period. 

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Vern wrote an article in the Nash & Cibinic Report on this topic--SOLE SOURCE ACQUISITIONS--What Are The Proper Procedures?, 26 N&CR ¶ 12, March 2012. Here's a relevant excerpt:

 
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 Making The Solicitation Available. FAR 5.102(a) requires that COs make solicitations available through the GPE unless (1) publication would compromise national security, (2) the nature of the file makes doing so impracticable, or (3) the agency's senior procurement executive decides that it is not in the public interest. If the solicitation will not be made available through the GPE the CO must make it available in some other way.
FAR 5.102(e) expressly requires COs to make sole-source solicitations available through the GPE or some other medium. See FAR 5.102(e):
(e) Provide copies of a solicitation issued under other than full and open competition to firms requesting copies that were not initially solicited, but only after advising the requester of the determination to limit the solicitation to a specified firm or firms as authorized under [FAR] Part 6.
See also FAR 6.301(d):
(d) When not providing for full and open competition, the contracting officer shall solicit offers from as many potential sources as is practicable under the circumstances.
But must an agency prepare a solicitation when contracting on a sole-source basis? This question comes up from time to time in contracting office discourse, because as a practical matter a solicitation may be unnecessary.
It is clear that the FAR contemplates the issuance of a solicitation in a sole-source acquisition. See, e.g., FAR 15.002(a):
(a) Sole source acquisitions. When contracting in a sole source environment, the request for proposals (RFP) should be tailored to remove unnecessary information and requirements; e.g., evaluation criteria and voluminous proposal preparation instructions.
[...]
And see FAR 6.302-1(d)(2):
(2) For contracts awarded using this authority, the notices required by [FAR] shall have been published and any bids, proposals, quotations, or capability statements must have been considered.
So when contracting on a sole-source basis a CO must (1) prepare some kind of solicitation that describes its requirements, (2) notify the public that it is available, (3) furnish it to others upon their request, and (4) consider any proposal or “capability statement” received.

 

 

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Yes, thank you for posting that Don.

This was my understanding as well - that we are required to post our notice of intent, let others know that they can submit a capability statement in response, and provide a copy of the solicitation if it is requested.

I think your post provides a good summary of these requirements:

1 hour ago, Don Mansfield said:

So when contracting on a sole-source basis a CO must (1) prepare some kind of solicitation that describes its requirements, (2) notify the public that it is available, (3) furnish it to others upon their request, and (4) consider any proposal or “capability statement” received.

 

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