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EDWOSB Sole Source - FAR 5.202(a)(4) Synopsis exception applicable?

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Scenario: You're doing an EDWOSB Sole Source award via 10 United States Code 2304(c)(5), as implemented by FAR 6.302-5: Authorized or Required by Statute using EDWOSB Program,15 U.S.C. 637(m), as implemented by FAR 19.1506(a). Assume all requirements of 19.1506(a) are satisfied.

Are you required to post a synopsis required by FAR 5.201(b)?

Excpetion at FAR 5.202(a) "The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for the Purchase from the Blind and Other Severely Disabled;"

My thought is No, you don't need to post the synopsis because you are making an award authorized by statute from a specific source (an EDWOSB). But I feel the wording of 5.202(a)(4) isn't exactly clearly. Wanted to see what others thought of this sitaution. If my interpertation is accurate, then this would apply to EDWOSB, WOSB, SDVOSB, and HUBZone.

 

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EDWOSB is not through another government agency.  Does this fact change your thinking?

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And, an EDWOSB is not a specific source -- there are lots of EDWOSBs out there.

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C Culham; I read the sentence as 1) through another Government agency or 2) from a specific source. So it doesn't change my thinking.

ji20874; who says an EDWOSB isn't a specific source? Do you have a definition for the term?

 

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6 minutes ago, Confused1102 said:

C Culham; I read the sentence as 1) through another Government agency or 2) from a specific source. So it doesn't change my thinking.

ji20874; who says an EDWOSB isn't a specific source? Do you have a definition for the term?

Do you read FAR 8.004 -- "When satisfying requirements from non-mandatory sources, see 7.105(b) and part 19 regarding consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including 8(a) participants), and women-owned small business concerns."  -- to say that EDWOSB could be considered a source, just not a mandatory source?

 

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On 4/16/2019 at 4:57 PM, TechnicallyAcceptable said:

Do you read FAR 8.004 -- "When satisfying requirements from non-mandatory sources, see 7.105(b) and part 19 regarding consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including 8(a) participants), and women-owned small business concerns."  -- to say that EDWOSB could be considered a source, just not a mandatory source?

An EDWOSB is not a mandatory source for purposes of FAR part 8.  Indeed, 8.004 specifically uses the term "non-mandatory source" to refer to women-owned small businesses, and according to the definitions in FAR 2.101, EDWOSB is a subset of WOSB.

On 4/16/2019 at 4:51 PM, Confused1102 said:

C Culham; I read the sentence as 1) through another Government agency or 2) from a specific source. So it doesn't change my thinking.

ji20874; who says an EDWOSB isn't a specific source? Do you have a definition for the term?

I think you are desperately grasping for straws.  

FIRST POINT:  I don't think that an EDWOSB is reached by the "such as" statement in FAR 5.202(a)(4).  That's my opinion.  You asked for opinions of other practitioners, right?

SECOND POINT:  Let's look at the grammar.  I think 5.202(a)(4) is an exception for actions "made through another Government agency," and that the two "including" clauses provide examples of "made through another Government agency."

I interpret the text as follows--

The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including—

  •      [1] acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or
  •      [2] from a specific source such as a workshop for the blind under the rules of the Committee for Purchase from People Who Are Blind or Severely Disabled.

You seem to be trying to interpret the text as follows--

The proposed contract action is expressly authorized or required by a statute to be made

  •      [1] through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or
  •      [2] from a specific source such as a workshop for the blind under the rules of the Committee for Purchase from People Who Are Blind or Severely Disabled.

I think my interpretation better meets the reasonable and prudent person standard.  If the FAR drafters had intended your interpretation, I think they would have used a semi-colon -- instead of a comma -- before the "or," and I think they would have put some punctuation between "made" and "through."

I hope this is helpful in assuaging your confusion.

Edited by ji20874

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You are correct, I am looking for opinions and I think you characterized our different perceptions of the text correctly. Obviously, we both think 'my [our] interpretation better meets the reasonable and prudent person standard.' 

I appreciate your opinion. I look forward to hearing/seeing what others think as well.

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19 hours ago, Confused1102 said:

 

Excpetion at FAR 5.202(a) "The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for the Purchase from the Blind and Other Severely Disabled;"

Confused,

You aren’t interpreting this properly.  It says the Committee can designate a specific source from one of their associations for you to award.  The most common is use of a specific sheltered workshop to perform certain services.

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On 4/16/2019 at 2:33 PM, Confused1102 said:

Wanted to see what others thought of this sitaution. 

Do you really want to see what others think?  Or, do you want someone to argue with you and convince you?  Three regular posters here have suggested you’re not looking at this the right way, and you dismissed their inputs.  Perhaps you should go ahead and do what you already seem to be intent on doing — it doesn’t look like you will get an endorsement here.

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5 hours ago, Confused1102 said:

Thats not what it says, it says, 'such as' which imply it's an example of a specific source.

I did some research.  In addition to specific sources under Jacob Wagner O’Day Act including sheltered workshop, it can include other specific sources such as required by statue 

https://www.law.cornell.edu/uscode/text/41/1708  see b(2)(a) and

https://www.law.cornell.edu/uscode/text/10/2304#c  see (c)(5)

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After my posting above, I think confused has a case to not synopsis.  It’s sufficiently unclear to say differently.  I looked at the statutory language in addition to the FAR.  I’m going to ask a couple people that do lots more research than me and get their opinions.  

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It seems confused construes the FAR text as follows--

The proposed contract action is expressly authorized or required by a statute to be made

  • [1] through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)); or
  • [2] from a specific source such as a workshop for the blind under the rules of the Committee for Purchase from People Who Are Blind or Severely Disabled.

If confused doesn't synopsize, no one (another potential EDWOSB offeror?) will know the difference until after award when he or she makes the post-award synopsis and publicly posts the J&A required under FAR Part 6 for an EDWOSB set-aside.

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On 4/16/2019 at 11:33 AM, Confused1102 said:

Scenario: You're doing an EDWOSB Sole Source award via 10 United States Code 2304(c)(5), as implemented by FAR 6.302-5: Authorized or Required by Statute using EDWOSB Program,15 U.S.C. 637(m), as implemented by FAR 19.1506(a). Assume all requirements of 19.1506(a) are satisfied.

Are you required to post a synopsis required by FAR 5.201(b)?

Excpetion at FAR 5.202(a) "The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for the Purchase from the Blind and Other Severely Disabled;"

My thought is No, you don't need to post the synopsis because you are making an award authorized by statute from a specific source (an EDWOSB). But I feel the wording of 5.202(a)(4) isn't exactly clearly. Wanted to see what others thought of this sitaution. If my interpertation is accurate, then this would apply to EDWOSB, WOSB, SDVOSB, and HUBZone.

 

I agree with you. FAR 5.202(a)(4) is using the same language that is used at FAR 6.302-5. The only difference is the list of examples is shorter. Neither list is exhaustive.

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I tend to agree with ji as carrying  confused's thoughts further why would you advertise a EDWOSB that is not sole source and even further why would you not carry the ideal forward to other subsets of small business that allow sole source other than 8(a) where it is clear advertising is not required.  Essentially my simple conclusion is if you have to advertise the EDWOSB that is not sole source why would not have to advertise the EDWOSB that is sole source.

I say this noting that  a full read of 15 U.S. Code § 637 (consider (e)) must be considered but would agree that  (g) adds confusion. 

 

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8 hours ago, Don Mansfield said:

I agree with you. FAR 5.202(a)(4) is using the same language that is used at FAR 6.302-5. The only difference is the list of examples is shorter. Neither list is exhaustive.

I agree.  FAR 5.202(a)(4) is meant to be an exception to providing notice when awarding a sole source under the authority of FAR 6.302-5.

Similarly,

FAR 5.202(a)(1) provides an exception to providing notice when relying on FAR 6.302-6 -- National Security.

FAR 5.202(a)(2) provides an exception to providing notice when relying on FAR 6.302-2 -- Unusual and Compelling Urgency.

FAR 5.202(a)(3) provides an exception to providing notice when relying on FAR 6.302-4 -- International Agreement.

FAR 5.202(a)(5) provides an exception to providing notice when relying on FAR 6.302-1(b)(3) -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements. (Utility Services).

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2 hours ago, C Culham said:

Essentially my simple conclusion is if you have to advertise the EDWOSB that is not sole source why would not have to advertise the EDWOSB that is sole source.

FAR 5.202(a)(4) reads "from a specific source" which means it only applies to sole source actions, not competitive ones - they don't have to follow the same rules/procedures. 

I agree w/ Confused1102 and Don and have nothing new to add to either of their explanations.

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So far I heard back from one very knowledgeable source.  Going back to confused’s first post where 10 USC 2304(c)(5) was quoted and that says:

Quote

(5)

subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency’s need is for a brand-name commercial item for authorized resale;

The basis of “a specified source” is such items as the Committees Procurement List or designation of their source from the FAR cited example or when Congress specifies a source in legislation including appropriations.  A specified source isn’t one an agency decides on their own.  He added this language has been in existence before set-asides were established for the various categories other than small business. 

He added in all honesty, he doesn’t believe the FAR committee has even thought about this subject.  He also noted while sole source 8(a) below the dollar threshold isn’t synopsized, that has specific language allowing that.  Women owned don’t.  It may be the same as a small business sole source.  He also said he doesn’t remember seeing or hearing about women owned and veteran owned small business sole source contracts being synopsized so he’s assuming agencies are not doing it.  Based on that he feels the consensus is no need to synopsized. 

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4 hours ago, formerfed said:

He also said he doesn’t remember seeing or hearing about women owned and veteran owned small business sole source contracts being synopsized so he’s assuming agencies are not doing it.  Based on that he feels the consensus is no need to synopsized. 

We don't.  A cursory glance at FBO suggests nobody does.

 

EDWOSB is a sub-set of WOSB.  See FAR 19.15

FAR 6.302-5 -- Authorized or Required by Statute (b) (7) therefore includes EDWOSB.

FAR 5.202 (a)(4) - Synopsis Exceptions -  The proposed contract action is expressly authorized or required by a statute therefore includes EDWOSB.

EDWOSB is exempt from synopsis.

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34 minutes ago, General.Zhukov said:

We don't.  A cursory glance at FBO suggests nobody does.

 

EDWOSB is a sub-set of WOSB.  See FAR 19.15

FAR 6.302-5 -- Authorized or Required by Statute (b) (7) therefore includes EDWOSB.

FAR 5.202 (a)(4) - Synopsis Exceptions -  The proposed contract action is expressly authorized or required by a statute therefore includes EDWOSB.

EDWOSB is exempt from synopsis.

Look at Carl’s second post at the start of this thread.  EDWOSB is not through another government agency.  The full exception language

Quote

4) The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of the Committee for the Purchase from the Blind and Other Severely Disabled;

 

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19 hours ago, formerfed said:

Look at Carl’s second post at the start of this thread.  EDWOSB is not through another government agency.  The full exception language

Have you considered that the word "or" is disjunctive so that the "through another government agency" qualifier does not apply to the "from a specific source" language?

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6 hours ago, Matthew Fleharty said:

Have you considered that the word "or" is disjunctive so that the "through another government agency" qualifier does not apply to the "from a specific source" language?

Matthew,

I don’t disagree with you.  It’s just I don’t think the answer is clear cut.  If you look at the quote from USC 2304(c)(5) above and the legislative history, it appears the main intent of specific source language is when Congress tells an agency to use some source.  It also applies to sources like GPO, FPI, and nonprofit organizations under the Committee such as sheltered workshops.  The question is can that language apply to an agency sole sourcing an EDWOSB?

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A former member of this forum was kind enough to give me some sage advice once: when the answer isn’t clear cut, interpret the regulation in a manner that gives you the most latitude/power.

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Actually I have come around that the answer is clear cut.    EDWOSB, HUBZone and SDVOSB's sole source (and single source) procurements need not be synopsized based on the fact that FAR 19.13, .14 and .15 provide this language when referring to sole source - "(see 6.302-5(b)(7))".

 

 

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