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Constricting Officer

Sole-Source Authority Cited Correctly

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All, 

When consulting FAR part 6, we find at 6.301 (b), "Each contract awarded without providing for full and open competition shall contain a reference to the specific authority under which it was so awarded. Contracting officers shall use the U.S. Code citation applicable to their agency. (See 6.302.)."

We know that the authority for agencies outside of DOD, CG and NASA is located at 41 U.S.C. 3304. For example, FAR part 6.302-2 (unusual and compelling urgency) is cited as 41 U.S.C. 3304 (a) (2).

My question concerns SAP. When using FAR part 13 procedures, at 13.106-1 (b) (1) (i) FAR states, "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)."

This citation is for below SAT, once we reach 13.5 (above SAT), we are referred back to FAR part 6 for guidance. 

I have been looking through U.S.C. and cannot find authority for the text at 13.106-1 (b) (1) (i) added through the passing of FASA in 94.

Question. Did FASA create a SS authority under SAT, that doesn't have to be referenced back to U.S.C. or am I just not finding it?

 

 

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FAR Part 6 does not generally apply to contracts awarded using the simplified acquisition procedures of Part 13.  See FAR 6.001(a).  Therefore, FAR 6.301(b) also does not directly apply.  For acquisitions below SAT conducted under Part 13, look to agency supplementation of FAR 13.106-1(b)(1) for any content requirements associated with the contracting officer's determination that only one source is reasonably available.

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Caveat: Not an expert, so not the definitive answer: 

 

1 hour ago, Constricting Officer said:

Question. Did FASA create a SS authority under SAT, that doesn't have to be referenced back to U.S.C.

Yes. A FAR 13 'Sole Source; (FAR 13.106-1 (b) ) does not have any specific authority in U.S.C.   

In addition, the same is true for FAR 13.5.  Under FAR 13.5, you use the 1) format, 2) notice and 3) approval from FAR 6.  That is all.  You do NOT cite any FAR 6.3 sole-source authority.  The authority for (almost) all source-sources under FAR 13 is FAR 13 itself - ''CO determines only one source is reasonably available'.  

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2 hours ago, Constricting Officer said:

once we reach 13.5 (above SAT), we are referred back to FAR part 6 for guidance

Not really -- we are pointed to 6.3 only for the format of the sole source justification (not J&A) -- the authority for sole source under FAR part 13 (including subpart 13.5) is FAR 13.106-1(b), not anything in 6.3, and the SSJ is written in the J&A format modified to show simplified acquisition authority.

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On 10/8/2019 at 1:18 PM, Constricting Officer said:

Question. Did FASA create a SS authority under SAT, that doesn't have to be referenced back to U.S.C. or am I just not finding it?

Near as I can tell, the FAR does not require that a contract awarded using SAP being awarded on a sole-source basis cite statutory authority.  As noted above, FAR 6.301(b) doesn't apply.  That said, FASA didn't CREATE the small purchase threshold, it increased it from $25,000 to $100,000 (at the time) and renamed it the "simplified acquisition threshold."  For civilian agencies, see present-day 41 USC 3304(g), which is referenced in 41 USC 3304(a)(1).

If your citation to FAR 6.301(b) wasn’t what you meant, and you meant FAR 6.303-2(b)(4), consider the following:  FAR 6.303-2(b)(4) calls for listing in the justification “the statutory authority permitting other than full and open competition.”  The same subparagraph of the FAR (i.e., 13.501(a)(1)(ii)) that requires the justification be prepared “using the format at 6.303-2” also identifies the two statutory authorities one could cite in a justification under FAR Subpart 13.5--41 U.S.C. 1901 and 41 U.S.C. 1903.

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A Note About Terms:

FAR Part 13 does not use the term "Sole Source" to refer to single source acquisitions at or below the Simplified Acqusition Threshold (SAT). 

FAR Subpart 13.5 does use the term "Sole Source" to refer to single source acquisitions  using Simplified Acquisition Procedures above the SAT.

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1 hour ago, FAR-flung 1102 said:

A Note About Terms:

1) Justification for Other Than Full and Open Competition (FAR 15)

2) Justification for Exception to Fair Opportunity (FAR 16.5)

3) Sole Source Justification (FAR 13.5?)

4) Limited Source Justification (FAR 8.4)

5) Brand Name Justification (scattered throughout the FAR)

6) Determination and Finding?

7) Probably other ones too? (Maybe FAR 14 has its own?)

 

How's this for acquisition streamlining, just  use option #1 for everything.  Over SAT = Use FAR 6/15 Rules.  Under SAT = Use FAR 13 Rules.  The end.

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18 minutes ago, General.Zhukov said:

How's this for acquisition streamlining, just  use option #1 for everything.  Over SAT = Use FAR 6/15 Rules.  Under SAT = Use FAR 13 Rules.  The end.

I don't believe that kind of thinking is allowed . . . 

Example: Plain Writing Act of 2010 = nothing in USC/FAR/Agency Supplements being re-written.

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3 hours ago, C Culham said:

Think CICA and not FASA.  CICA is not applicable to procurements under the SAT.  

In addition, CICA is not applicable to procurements under FAR Subpart 13.5.

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