Is using Govt-wide Acquisitions Contract (GWAC) such as NITAAC considered limiting source competition?

[NewbieFed]

I'm doing a Brand Name Acquisition where I need a certain brand name product from one manufacturer. There are multiple vendors on the Open Market but only one vendor on the federal government's Govt-wide Acquisitions Contract (GWAC) in NITAAC. 

 

First, do I have to favor NITAAC/GWAC if the prices are comparable to Open Market sources?

Second, is using NITAAC/GWAC to get this acquisition considered limited source, sole source, etc (probably not full and open competition)? 

I have a preference towards Brand Name limited source on NITAAC-GWAC, but there is only a single vendor on this GWAC...so wouldn't that make it sole source?

 

Edit: For clarification, this is an NIH Acquisition and NITAAC is NIH's GWAC

[ji20874]

See FAR 16.505(a)(4).

Write your justification for the use of brand-name specifications as required by 16.505(a)(4)(ii) and share it as required by 16.505(a)(4)(iii)(A).  The justification for the use of brand-name specifications is not a JEFO.  Release the notice/solicitation to all awardees.  No JEFO is needed.  It is not a sole source procurement; rather, it is a brand-name procurement.  If any other NITAAC vendor can provide the brand-name product, you will see when your offers are due.

[NewbieFed]

  

1 hour ago, ji20874 said:

See FAR 16.505(a)(4).

Write your justification for the use of brand-name specifications as required by 16.505(a)(4)(ii) and share it as required by 16.505(a)(4)(iii)(A).  The justification for the use of brand-name specifications is not a JEFO.  Release the notice/solicitation to all awardees.  No JEFO is needed.  It is not a sole source procurement; rather, it is a brand-name procurement.  If any other NITAAC vendor can provide the brand-name product, you will see when your offers are due.

Thank you. Do I have to favor Open Market/Beta.SAM over IDIQs such as NITAAC if in my preliminary research of NTIAAC revealed there is only one NITAAC vendor? NITAAC is the better choice for our program, but it seems that based on the research, choosing NITAAC may be unfairly restricting competition.

Is there a part of the FAR that allows justification to choose an IDIQ-NITAAC-GWACs over open market competition in this situation?

[ji20874]

11 minutes ago, NewbieFed said:

Do I have to favor Open Market/Beta.SAM over IDIQs...?

Shouldn't the question be reversed? That is, do you have to favor IDIQs over open market?  Yes, sometimes you must favor IDIQs over open market -- maybe OMB policy, maybe your agency policy.  I don't know what you are buying so I don't know of any policy that applies.

15 minutes ago, NewbieFed said:

NITAAC is the better choice for our program

If you yourself are saying that "NITAAC is the better choice for our program,"  maybe you should go the NITAAC route.

14 minutes ago, NewbieFed said:

Is there a part of the FAR that allows justification to choose an IDIQ-NITAAC-GWACs over open market competition in this situation?

I am not aware of any requirement for justification of this decision.

[NewbieFed]

2 minutes ago, ji20874 said:

Shouldn't the question be reversed? That is, do you have to favor IDIQs over open market?  Yes, sometimes you must favor IDIQs over open market -- maybe OMB policy, maybe your agency policy.  I don't know what you are buying so I don't know of any policy that applies.

If you yourself are saying that "NITAAC is the better choice for our program,"  maybe you should go the NITAAC route.

I am not aware of any requirement for justification of this decision.

My main concern is if what we are required by the FAR conflicts with what our program wants. I don't think there is any specific agency policy requiring us to use IDIQs and GWACs such as NITAAC's agreements. 

I was informed that I have to consider the governmental interests of requiring fair and open competition as a primary consideration...so I was concerned if the FAR tells me that I have to use open market competition here instead of NITAAC because the Open Market has at least 3 or 4 vendors but NITAAC only has 1 suitable vendor.

[Vern Edwards]

Does FAR Subpart 17.5, Interagency Acquisitions, apply in this case? Should NewbieFed read it?

[NewbieFed]

6 minutes ago, Vern Edwards said:

Would FAR Subpart 17.5, Interagency Acquisitions, apply in this case?

I don't think interagency agreements apply because it's the agency using its own Government wide acquisition contract (being run by a subdepartment?). I'm with the NIH and the NITAAC program is the NIH's GWAC.

[Vern Edwards]

@NewbieFedAh, the fact that you're with NIH is a useful piece of information. I didn't see that in your previous posts. I must have read carelessly and missed it. Thanks for the info.

[C Culham]

7 hours ago, NewbieFed said:

 I'm with the NIH and the NITAAC program is the NIH's GWAC.

Hmmmm I wonder what NewbieFed is attempting to buy that is brand name.....

"But we’re not just a GWAC program anymore, NITAAC has expanded its support including its new full-service Assisted Acquisition program, and is one of three OMB mandatory sources for laptop and desktop buys through our Government-wide Strategic Solutions (GSS) program."

[NewbieFed]

On 2/5/2021 at 8:08 PM, C Culham said:

Hmmmm I wonder what NewbieFed is attempting to buy that is brand name.....

"But we’re not just a GWAC program anymore, NITAAC has expanded its support including its new full-service Assisted Acquisition program, and is one of three OMB mandatory sources for laptop and desktop buys through our Government-wide Strategic Solutions (GSS) program."

Network equipment, so not laptop or desktops...so I guess it doesn't fall under OMB's mandatory sources.

My program prefers NITAAC, but there is only 1 vendor on there that sells what I need, so I am running into potential competition requirement hurdles. Is posting an RFQ on NITAAC exempt from traditional competition requirements, or does posting an RFQ on it automatically fulfill competition requirements like posting on beta.SAM?

 

[ji20874]

As I understand, posting the RFQ on NITAAC opens the competition to all NITAAC contractors.  And if you simultaneously post the brand-name justification (see FAR 16.504(a)(iii)), every NITAAC contractor can make a decision on whether to submit an offer, or not.

1 hour ago, NewbieFed said:

My program prefers NITAAC...

Good.  If NITAAC gives you a good price and other terms, use it.  

1 hour ago, NewbieFed said:

Is posting an RFQ on NITAAC exempt from traditional competition requirements...?

What "traditional competition requirements"?  FAR part 6, Competition Requirements, does not apply.  See FAR 6.001(f).

Write your justification for the use of brand-name specifications as required by 16.505(a)(4)(ii) and share it as required by 16.505(a)(4)(iii).  The justification for the use of brand-name specifications is not a JEFO.  Release the notice/solicitation to all awardees.  No JEFO is needed.  It is not a sole source procurement; rather, it is a competitive brand-name procurement.   

[NewbieFed]

On 2/8/2021 at 1:22 PM, ji20874 said:

As I understand, posting the RFQ on NITAAC opens the competition to all NITAAC contractors.  And if you simultaneously post the brand-name justification (see FAR 16.504(a)(iii)), every NITAAC contractor can make a decision on whether to submit an offer, or not.

Good.  If NITAAC gives you a good price and other terms, use it.  

What "traditional competition requirements"?  FAR part 6, Competition Requirements, does not apply.  See FAR 6.001(f).

Write your justification for the use of brand-name specifications as required by 16.505(a)(4)(ii) and share it as required by 16.505(a)(4)(iii).  The justification for the use of brand-name specifications is not a JEFO.  Release the notice/solicitation to all awardees.  No JEFO is needed.  It is not a sole source procurement; rather, it is a competitive brand-name procurement.   

Got it, thank you very much.

[NewbieFed]

On 2/8/2021 at 1:22 PM, ji20874 said:

As I understand, posting the RFQ on NITAAC opens the competition to all NITAAC contractors.  And if you simultaneously post the brand-name justification (see FAR 16.504(a)(iii)), every NITAAC contractor can make a decision on whether to submit an offer, or not.

Good.  If NITAAC gives you a good price and other terms, use it.  

What "traditional competition requirements"?  FAR part 6, Competition Requirements, does not apply.  See FAR 6.001(f).

Write your justification for the use of brand-name specifications as required by 16.505(a)(4)(ii) and share it as required by 16.505(a)(4)(iii).  The justification for the use of brand-name specifications is not a JEFO.  Release the notice/solicitation to all awardees.  No JEFO is needed.  It is not a sole source procurement; rather, it is a competitive brand-name procurement.   

 

I have a follow up question to this, as I was informed that my justification to use NITAAC over Open Market may be insufficent.

How would I justify using an IDIQ-NITAAC with only one vendor over Open Market with multiple vendors under CICA?

Even if an RFQ is posted on the NITAAC IDIQ - the fact that I know there is only a single vendor who offers the product means choosing NITAAC over Open Market is a limit to competition. And even if I am trying to limit competition via brand name, don't I still need to require as much competition as possible? Even if FAR 6.302's traditional competition requirements don't apply, it seems that CICA is still applicable to IDIQs of FAR 16.505.

CICA requires that contracts be entered into after “full and open competition through the use of competitive procedures” unless certain circumstances exist that would permit agencies to use noncompetitive procedures. The 7 exceptions being: (1) single source for goods or services; (2) unusual and compelling urgency; (3) maintenance of the industrial base; (4) requirements of international agreements; (5) statutory authorization or acquisition of brand-name items for resale; (6) national security; and (7) contracts necessary in the public interest.

Brand Name restriction falls under CICA's first exception. But how do I justify using an IDIQ-NITAAC that would further limit competition over Open Market-Beta SAM?

[Vern Edwards]

16 hours ago, NewbieFed said:

But how do I justify using an IDIQ-NITAAC that would further limit competition over Open Market-Beta SAM?

It seems to me that if your agency has awarded a contract that provides for the work that you want done, and if the work that you want done is within the scope of that contract, then you don't need any justification for using that contract instead of conducting a new competition.

Why don't you check with your supervisor, agency lawyer, and the CO for the IDIQ-NITAAC? Ask:

1. Does the IDIQ-NITAAC provide for performance of the work that you want done?

2. Is the work that you want done within the scope of that contract?

Somebody straighten me out if it's more complicated than that.

[ji20874]

It has to be simple as that.  I cannot believe that an HHS organization requires a justification document to use NITAAC to buy something that is available on NITAAC.

Newbie, can you share the chapter and verse prescription for this justification you are talking about?  I am unaware of any such requirement.  I think you are receiving bad direction, but you have to do the best you can.

[ji20874]

And forget CICA -- CICA doesn't reach to ordering under IDIQ contracts.  Forget it.  Drop it.  Shake it off.  

[Jamaal Valentine]

On 2/5/2021 at 9:46 AM, NewbieFed said:

My main concern is if what we are required by the FAR conflicts with what our program wants.

Have you read FAR 8.004?

On 2/5/2021 at 9:46 AM, NewbieFed said:

I was informed that I have to consider the governmental interests of requiring fair and open competition as a primary consideration...so I was concerned if the FAR tells me that I have to use open market competition here instead of NITAAC because the Open Market has at least 3 or 4 vendors but NITAAC only has 1 suitable vendor.

Informed by who? Did they tell you or suggest FAR requires the use of open market commercial sources? Did you ask them for a reference to a rule?

[NewbieFed]

On 2/17/2021 at 4:57 PM, ji20874 said:

It has to be simple as that.  I cannot believe that an HHS organization requires a justification document to use NITAAC to buy something that is available on NITAAC.

Newbie, can you share the chapter and verse prescription for this justification you are talking about?  I am unaware of any such requirement.  I think you are receiving bad direction, but you have to do the best you can.

 

On 2/17/2021 at 5:02 PM, ji20874 said:

And forget CICA -- CICA doesn't reach to ordering under IDIQ contracts.  Forget it.  Drop it.  Shake it off.  

I wasn't told there was any specific part of the FAR that needed this justification. I was told that we had to promote competition to the maximum extent practical, and that CICA may cause some issues if I decided to limit competition to 1 NITAAC vendor rather than allowing competition via multiple vendors in the open market. 

I found some GSA blogs that stated CICA doesn't apply to Multiple Award Schedules (MAS). But MAS is the term for the GSA's GWAC-IDIQ and not the NIH's NITAAC-GWAC-IDIQ, so I had to find if NITAAC's GWAC fell under the category of a MAS.

 

On 2/18/2021 at 7:00 AM, Jamaal Valentine said:

Have you read FAR 8.004?

Informed by who? Did they tell you or suggest FAR requires the use of open market commercial sources? Did you ask them for a reference to a rule?

Yes, FAR 8.004 said GWACs are preferred. Informed by more experienced CS/sup. I was told to find a justification to use NITAAC-GWAC-IDIQ as there is only 1 vendor and that limits competition. And I am trying to find a specific provision that exempts NITAAC from CICA's requirement to promote competition or something that says NITAAC falls under statutory-authorized contracting procedures such as Multiple-Award Schedules (MAS) that are exempt from CICA.

 

 

In any case, this issue was ultimately resolved/made irrelevant because a second vendor appeared and was able to provide products on NITAAC as well...so we now have more than 1 vendor and there is no CICA/competition/etc issue anymore.

[ji20874]

2 hours ago, NewbieFed said:

I was told that we had to promote competition to the maximum extent practical, and that CICA may cause some issues if I decided to limit competition to 1 NITAAC vendor rather than allowing competition via multiple vendors in the open market. 

I respectfully disagree.  As I understand, CICA is not applicable to ordering under multiple-award IDIQ contracts.  Or, in other words, CICA is irrelevant to this discussion.

 

2 hours ago, NewbieFed said:

MAS is the term for the GSA's GWAC-IDIQ

A GWAC is not a MAS.  Orders under GWACs fall under FAR subpart 16.5 (not subject to CICA).  Orders under MAS fall under FAR subpart 8.4 (allowable under CICA as a competitive procedure).

2 hours ago, NewbieFed said:

I was told to find a justification to use NITAAC-GWAC-IDIQ as there is only 1 vendor and that limits competition.

Did that person cite chapter and verse for this direction?  You should ask.  I think he or she misunderstands.

2 hours ago, NewbieFed said:

so we now have more than 1 vendor and there is no CICA/competition/etc issue anymore.

There never was a CICA issue to begin with, was there?

2 hours ago, NewbieFed said:

I am trying to find a specific provision that exempts NITAAC from CICA's requirement to promote competition

"Issuance of orders under task order and delivery order (TO/DO) contracts is not subject to CICA..." Congressional Research Service Report, Competition in Federal Contracting: An Overview of the Legal Requirements, June 30, 2011 (https://digital.library.unt.edu/ark:/67531/metadc31464/).  

I appreciate your engagement in this forum, and hope this discussion is helpful.

[Vern Edwards]

3 hours ago, NewbieFed said:

And I am trying to find a specific provision that exempts NITAAC from CICA's requirement to promote competition...

FAR 6.001(e)(1).