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Hello all, first time poster.

I have a client that wants to state in a J&A that the purpose of awarding a contract is to build industry. It seems an obvious violation of some rule...my first thought was that it violates the DoD FMR's "Bona Fide Need" rule...but this is a timing of appropritions argument. The "bona fide need" seems akin to the "legitimate need" phrase used in FAR Part 10. I have looked through GAO decisions and the FAR Part 2 and 10, but cannot seem to get a clear definition on what a "Legitimate Need" is. Please advise.

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What is the purpose of the Justification and Approval?  For other than full and open competition 

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6.302-3 -- Industrial Mobilization; Engineering, Developmental, or Research Capability; or Expert Services

"Build industry" is very vague, is the above what they are referencing?

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The justification is to limit competition. Within the J&A, an argument is made that the rationale for providing contracts to a couple of vendors is that it will "build the industrial base". Providing this as rationale for these contracts raises all kinds of flags to me. I want to use another rationale for making these procurements...but I need to justify why this rationale raises flags. To me this purchasing rationale is not a "Legitimate Need" but I cannot get any kind of legal definition within the FA, DFARs, GAO, or FMR. I may be wrong btw...just looking for guidance.

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No one is going to be able to provide you adequate advice on whether or not FAR 6.302-3 applies without significantly more information/facts and your colleague’s rationale/argument.

Why does an exception to competition that is in statute raise all kinds of flags for you? It isn’t like your colleague made this exception up. Just because you haven’t seen or done it before doesn’t make it wrong...

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So the FAR 6 Justification is throwing off the issue. The issue is rather what is a "legitimate need." If a program office can state they are creating a contract in hopes that the experience will help with future competitions, is that a sufficient rationale for a legitimate need? 

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1 hour ago, Gordon Shumway said:

Why don't you seek advice from your competition advocate or someone more senior in your organization?

 

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I'm in the program office and not able to communicate with the Acquisition's Office. That being said, I could just go with the flow, but I bring this issue here for academic purposes. 

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Nah don't just go with the flow. Tell your client that they do not have a legitimate need, based on your opinion (supporting details not needed).

Report back and let us know how it goes.

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The term you are trying to define is completely subjective.

You haven't provided anything to support your opinion for us to analyze. The information you have provided for your client is also insufficient, as Matthew stated.

 

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What is your purpose in defining legitimate need? If you want to interpret its usage in FAR, follow the convention found at FAR 1.108(a):

Words and terms. Definitions in Part 2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning.

Other than that, what are the differences between bona fide need and legitimate need, in your judgment? (Relating to your application)

 

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Well the dictionary definition would be lawful or proper...which kind of brings back full circle. I think the rationale for the purchase is unlawful as stated "the purpose of awarding this contract is to build the industrial base" in the hopes that the awarded vendors will become sophisticated enough to compete with a vendor that has historically been awarded sole source contracts for this requirement. 

 

 

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That sure sounds like what the exception at FAR 6.302-3, Industrial Mobilization was meant for.  You sole source to the new firm and need the J&A to avoid having to offer it to the regular contractor.   Are you trying to say they want to buy the product or service but have no "legitimate" need for the item being bought?  

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14 minutes ago, dacaan said:

I think the rationale for the purchase is unlawful as stated "the purpose of awarding this contract is to build the industrial base" in the hopes that the awarded vendors will become sophisticated enough to compete with a vendor that has historically been awarded sole source contracts for this requirement. 

How is this unlawful?

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15 hours ago, dacaan said:

I think the rationale for the purchase is unlawful…

What is the basis for your thought? You will need more than personal incredulity if you want to be persuasive.

The mere existence of FAR 6.202, and 6.302-3 should ease your worries, unless I misunderstand your concern(s). Remember, FAR has the force and effect of law.

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Guest Vern Edwards
8 hours ago, dacaan said:

I have looked through GAO decisions and the FAR Part 2 and 10, but cannot seem to get a clear definition on what a "Legitimate Need" is. Please advise.

The term "legitimate need" has been discussed in 352 GAO decisions, the most recent dated March 6, 2018, and the oldest from 1957, and you can't figure out the meaning of legitimate need?

What don't you understand? What do you want, a one-size-fits-all airtight definition that applies in all circumstances? A one-sentence summation? A Dick and Jane answer? What kind of work do you think contracting is?

Do your homework, and do some thinking.

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8 hours ago, dacaan said:

Well the dictionary definition would be lawful or proper...which kind of brings back full circle. I think the rationale for the purchase is unlawful as stated "the purpose of awarding this contract is to build the industrial base" in the hopes that the awarded vendors will become sophisticated enough to compete with a vendor that has historically been awarded sole source contracts for this requirement. 

 

 

So, will this solicitation exclude the vendor that has been historically awarded sole source contracts from the competition? Are you planning to sole source with another firm or sole source multiple contracts with other firms? 

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8 hours ago, dacaan said:

Well the dictionary definition would be lawful or proper...which kind of brings back full circle. I think the rationale for the purchase is unlawful as stated "the purpose of awarding this contract is to build the industrial base" in the hopes that the awarded vendors will become sophisticated enough to compete with a vendor that has historically been awarded sole source contracts for this requirement. 

This is not uncommon (emphasis added below):

Quote

6.202 -- Establishing or Maintaining Alternative Sources.

(a) Agencies may exclude a particular source from a contract action in order to establish or maintain an alternative source or sources for the supplies or services being acquired if the agency head determines that to do so would --

  (1) Increase or maintain competition and likely result in reduced overall costs for the acquisition, or for any anticipated acquisition;

  (2) Be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the supplies or services in case of a national emergency or industrial mobilization;

  (3) Be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;

  (4) Ensure the continuous availability of a reliable source of supplies or services;

  (5) Satisfy projected needs based on a history of high demand; or

  (6) Satisfy a critical need for medical, safety, or emergency supplies.

(b)

  (1) Every proposed contract action under the authority of paragraph (a) of this section shall be supported by a determination and findings (D&F) (see Subpart 1.7) signed by the head of the agency or designee. This D&F shall not be made on a class basis.

  (2) Technical and requirements personnel are responsible for providing all necessary data to support their recommendation to exclude a particular source.

  (3) When the authority in subparagraph (a)(1) of this section is cited, the findings shall include a description of the estimated reduction in overall costs and how the estimate was derived.

Take a moment (or two) and think...assuming single points of failure are bad, why wouldn't an agency be permitted or have an interest in eliminating/reducing them?

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Thank you, Matthew.  That answers my basic question.  

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The sole source justification is a red herring. The rationale behind the purchase itself is the issue. I will go through with Vern's suggestion and find more GAO holding's regarding "legitimate need."

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It appears to me to be a little strange that someone in the “program office” would not know why the acquisition is being set up the way it is. I would think that the Acquisition office works with the program office in acquisition planning.  It Would also seem to me that the justification and approval for the exclusion from competition would be self-explanatory.  

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