Jump to content

FAR part 8 - Limiting Sources


WC79

Recommended Posts

FAR 8.405-6(a)(1)(c) - Justification for limiting sources states "In the interest of economy and efficiency, the new work is a logical follow-on to an original Federal Supply Schedule order provided that the original order was placed in accordance with the applicable Federal Supply Schedule ordering procedures. The original order or BPA must not have been previously issued under sole-source or limited-sources procedures."

I need help on the interpretation of the statement "in the interest of economy and efficiency" .  Does anyone know how this portion is being defined? 

Link to comment
Share on other sites

I don't think there is a definition for the words used on FAR 8.405-6(a)(1)(i)(C) -- at least, I hope there isn't a definition.  The facts supporting the justification will be explained in the justification document (LSJ).  The people preparing, reviewing, and approving the LSJ will decide whether the proposed action is "[i]n the interest of economy and efficiency."

Link to comment
Share on other sites

33 minutes ago, WC79 said:

I need help on the interpretation of the statement "in the interest of economy and efficiency" .  Does anyone know how this portion is being defined? 

I do not disagree with ji20874 but I would add that other parties might decide the appropriateness of the the proposed action as it moves through what I will call the process to award - other interested parties and GAO and possibly even a court.   I offer this additional thought as you might find a read of say GAO protests as helpful in preparing a "justification document (LSJ)".   GAO protests will of course deal with the specifics of an instant procurement but you might pick up some nuggets that will help see what seems reasonable or not.

I quickly found this protest decision and no doubt there are more.  Sharing as a possible helpful reference to your question.

 

https://www.gao.gov/assets/b-417269.pdf 

Link to comment
Share on other sites

55 minutes ago, WC79 said:

I need help on the interpretation of the statement "in the interest of economy and efficiency" .  Does anyone know how this portion is being defined? 

 

15 minutes ago, ji20874 said:

I don't think there is a definition for the words used on FAR 8.405-6(a)(1)(i)(C) -- at least, I hope there isn't a definition. 

Oh, for Pete's sake:

"in the interest of economy and efficiency"

Translation: in order to save the time and money that would have to be spent bringing a new contractor up to speed. See Harmonia Holdings Group LLC, GAO B-417465, 2019 CPD ¶ 257, July 18, 2019:

Quote

Protest challenging the issuance of a noncompetitive logical follow-on order under a Federal Supply Schedule contract is denied where the order was reasonably issued to the incumbent in the interest of economy and efficiency pursuant to the authority of Federal Acquisition Regulation §8.405–6(a)(1)(i)(C).

*     *     *

With respect to the regulatory requirement that the order be issued “in the interest of economy and efficiency,” the agency's justification echoed the concerns expressed in the market research report and in its evaluation of Harmonia's capabilities statement-namely, that the transition of a time-sensitive, in-progress development project, involving extremely complex and heavily customized applications that are totally unique to the agency, to a new contractor will result in schedule delays and a duplication of effort and costs.

Now, how hard was that to answer?

Link to comment
Share on other sites

Here is WC79’s question. “ I need help on the interpretation of the statement "in the interest of economy and efficiency" .  Does anyone know how this portion is being defined? “

One can readily look up the definitions of economy and efficiency as well as logical follow-on contracts. A better question might be “is there a standard or bar level for determining and justifying a sole source or limited sources follow-on acquisition? “

The examples cited in the responses provide some context to that based upon specific circumstances.

Here is a Holland Knight Blog article discussing this GSA sole source authority at 8.405-6 and the Harmonia Holdings Group LLC GAO decision that Vern cited.

https://www.hklaw.com/en/insights/publications/2019/11/court-rules-sole-source-fss-task-order-extension-permissible

If one needs other contexts or examples of how the exception was applied, they can research other Protest decisions.

I’m guessing here that if WC79 “needs help”, then he or she has a scenario that needs to be examined.

Back to the Basics: Acquisition teams** contemplating applying this exception should have access to a legal office or representative who should be able to perform the legal research. It seems to me that this is appropriate area for legal research and legal advice during the acquisition planning phase (FAR 7.102) on whether your specific circumstances might fit the exception and be defensible, if challenged.

But you can start with definitions of the terms you are asking about. 

** See: FAR 1.102 Statement of guiding principles for the Federal Acquisition System.

                 … 1.102-3 Acquisition Team.

                 1.102-4 Role of the Acquisition Team.

Edited by joel hoffman
Added FAR basic reference to the acquisition team
Link to comment
Share on other sites

@WC79 you will also find that language in FAR 15, 16 and 22. Think about it this way:

NASA contracted with SpaceX to build them a spaceship. Ship built, accepted, went to space, and came back (warranty period ended). Now prepping for another flight, they have a system error. Would NASA be better off going to SpaceX to fix a problem or should they ask Blue Origin first?

Link to comment
Share on other sites

Do you know how many GAO protest decisions there have been about the GSA FSS "logical follow-on" exception?

Five, since 1998.

Do you know how many have been sustained?

None.

Do you how many protests against the exception have been filed with the Court of Federal Claims?

One.

Do you know the result?

The court ruled for the government.

The standard for the GSA FSS logical follow-on exception is not much of a problem. You don't need a lawyer.

Link to comment
Share on other sites

With respect to my comments concerning some basics of acquisition planning and “acquisition teams”, the FAR states at 7.102 that “[a]gencies shall perform acquisition planning and conduct market research  (see  part  10) for all acquisitions”.

My USACE Organizations routinely performed acquisition planning with key stakeholders and personnel assigned to a proposed contract or project. The KO would seek input, expertise and advice where ever necessary - particularly when the KO “needs help” considering various courses of action or possibilities. 

Link to comment
Share on other sites

WC79,

1.  Are you wanting to use this authority for an upcoming procurement?  Or, are you trying to stop someone from using this authority for an upcoming procurement?

2.  What is your role?  (such as contracting officer, program manager, attorney, reviewer, approving official)  Sometimes where you stand depends on where you sit (Miles' Law).

Link to comment
Share on other sites

8 hours ago, Vern Edwards said:

The standard for the GSA FSS logical follow-on exception is not much of a problem. You don't need a lawyer.

Agree.  Government COs are paid well to think and take actions in the best interest of the government.  The follow-on except isn’t a problem as you say Vern and not difficult to,understand.  The CO just needs to exercise the authority and judgment expected of them.

A big problem in this field is 1102s expect to see everything spelled out in detail, have examples to copy from, and have such a track record of poor judgements everything has to be reviewed by lawyers and higher management.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...