Right of Way: Sole Sourcing to a State who sole sources to private companies, ethical doubts

[Pakman86]

Good day Contracting Titian's,

I'm a newer level one and I have I small buy that just rubs me wrong. I have what should be a simple sign purchase and install outside our host installation. However, the state department of transportation claims since its on their land they are the only ones allowed to both manufacture and install signs. So its a sole source, but they themselves don't do the installation. They often sole source the work to private business(es) in the local area. So of my understanding of this buy, I am supposed to sole source and give money to the state for they to in-turn sole source to a private company or no sign. What do I site in my SSJL or AWD doc to support this lack of competition? "Is it acceptable to just say the state said only they can do it and its their real property?". Am I overthinking this? What FAR referencing should I use in these two documents? 

To me in law when a court cases are presented to a federal institution, that federal entity treats the state like its basically a private citizen/corporation filling. So from my perspective  Collins v. Virginia might as well be Smith Vs. Thomas. So with this frame of mind when I see essentially a non-federal entity dictating how we procure or insure fair competition, while at the same time sole sourcing, it bothers me. If we had to put a Government Weather vane on a private house in our negotiations we don't allow the home owner to dictate that we award to his cousin Ted. So why are state agencies different? Its under 15k, so should I post the intent to sole source to a state agency on FBO? I looked on FBO for other instances of dealing with my state, but I was hard pressed to find any. 

Any help is much appreciated. Thanks! 

[joel hoffman]

See 13.106-1 Soliciting Competition

Quote

“...(b) Soliciting from a single source— (1) For purchases not exceeding the simplified acquisition threshold. (i) Contracting officers may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand-name or industrial mobilization).”

Note that  “e.g.” means "for example". It’s not all inclusive.  

I don’t think that you must post notice of the solicitation at the FBO  for a simplified acquisition under $15k per FAR 15.101 (a)(2) do you? Since you can't directly purchase or install the signage, is there any federal business opportunity? It's the State DOT's responsibility to provide the signage. It's probably covered in the US DOT CFR's. The Federal Highway Administration's "Manual on Uniform Traffic Control Devices" provides the design and installation standards for roadway signage and markings, etc.

Beyond all that, it is perfectly logical and reasonable to me that the State DOT should and does retain the responsibility for manufacturing and installing traffic and informational signage within State highway rights of way.  This is for uniformity and adherence to highway signage regulations. You apparently don’t have the right to install such signs within State Highway rights of way. 

Traffic signage might remain the property of the State DOT. 

Sorry for all the edits...

[joel hoffman]

Moreover, it it were a large overhead sign for a federal installation, exceeding the simplified acquisition limits, I doubt if that federal government agency would be allowed to directly purchase and install it in the R.O.W. either.  The State DOT would still likely install it. Think of the safety, standard design and engineering requirements and the potential for damage or injury to the public if  an accident, wind damage, maintenance issues, etc. were to occur.

But the State DOT would likely acquire and/or manufacture and install or have signs within the R.O.W. installed. That much seems entirely reasonable to me.

As for ethics - State agencies have their own regulatory and statutory procurement requirements plus is covered in:

2 CFR 200 - UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS

https://www.gpo.gov/fdsys/pkg/CFR-2014-title2-vol1/xml/CFR-2014-title2-vol1-part200.xml#seqnum200.201

It, in part, covers grants, agreements or contracts with State governments. 

Sorry for all the edits...