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Sole Source Acquisition under FAR Subpart 13.5


GOVCO

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General Scenario for FAR Subpart 13.5:

I have an aquisition to procure a particular commercial item supply or service. Through market research, I determine that the supply or service is only available from one source at a estimated cost of approximately $5 million. In reading Subpart 13.501(a)(1), I understand, to a point,

"Acquisitions conducted under simplified acquisition procedures are exempt from the requirements in Part 6."
Keeping that in mind, I also understand that I must:
"(i) Conduct sole source acquisitions, as defined in 2.101, (including brand name) under this subpart only if the need to do so is justified in writing and approved at the levels specified in paragraph (a)(2) of this section; and

(ii) Prepare sole source (including brand name) justifications using the format at 6.303-2, modified to reflect an acquisition under the authority of the test program for commercial items (section 4202 of the Clinger-Cohen Act of 1996) or the authority of the Services Acquisition Reform Act of 2003 (41 U.S.C. 428a)."

A few question:

1. If I am procuring a supply item using the scenario above, then regardless of whether the item is brand name or not, the "justification" shall be identified as a "Justification for other than full and open competition." Not Sole Source Justification right.... (See FAR Subpart 6.303-2(a)(1))

2. Same scenario above, what do I cite as the authority? I understand FAR Subpart 13.501(a)(1)(ii) tells me to modify my justification "to reflect an acquisition under the authority of the test program for commercial items ...." However, what is the actual authority I cite? Do I write something similar to "this acquisition is under the authority of the test program as outlined in FAR Subpart 13.5," then include whether it is "section 4202 of the Clinger-Cohen Act of 1996" or the "authority of the Services Acquisition Reform Act of 2003 (41 U.S.C. 428a)?" Would it be wrong to cite as the authority 41 U.S.C. 253( c)(1) - 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements?

3. [Not using the scenario above] What if I procured a brand name supply item under FAR Subpart 8.405-6. Would the justification then be called a Limited Source Justification?

Things that make me go hmmmmmm....

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Guest carl r culham

GOVCO - My thoughts

1. You really have a Justification and Approval (FAR 13.501(2)). Suggest you can call it what you want but you might want to consult your agency supplements to the FAR to see if they have provided a term of art for you.

2. Yes use the FAR 13.5 approach for the citation.

3. Nope still a justification and approval.

While it will not be helpful to your specific questions it is noted that FAR 13.5 spins off of FAR 13.106-1(B) wherein if you are not doing a commercial item procurement you would not need to follow nor cite FAR Part 6 specifically but your determination for a single source procurement uses similar conclusions as if you were doing the procurement under the authorities of FAR Part 6.

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I have to disagree with Carl's answer for number 3, based on FAR 8.405-6 (g)(2)(i). "Identification of the agency and the contracting activity, and specific identification of the document as a ?Limited Source Justification.?" Agree with the first two answers.

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Part 8 is dealing with FSS. What are you talking about?

I have to disagree with Carl's answer for number 3, based on FAR 8.405-6 (g)(2)(i). "Identification of the agency and the contracting activity, and specific identification of the document as a ?Limited Source Justification.?" Agree with the first two answers.
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Guest Vern Edwards

GOVCO:

1. Don't call it "Justification for Other Than Full and Open Competition," because the requirement for full and open competition does not apply to acquisitions under Subpart 13.5. See FAR 6.001(a). FAR 13.501 requires that you follow the "format" in 6.303-2, which does not prescribe a title for the document. "Sole Source Justification" or "Sole Source Justification and Approval" is proper, because that is what it is if you are soliciting and negotiating with only once source and that is how such acquisitions are referred to in FAR 13.106-1(B). "Justification and Approval" is inadequate. Justification and approval for what?

2. The authority to be cited is the authority for sole source procurement. See FAR 6.303-2(a)(4), which says authority for other than full and open competition, which is not applicable under 13.5. However, there really is no express "authority" for sole source acquisitions under FAR Subpart 13.5, which merely recognizes that they happen and must be justified. Perhaps that's authorization by implication. You cannot use FAR 13.106-1(B)(1) as authority, because that authorizes sole source for acquisitions "not exceeding" the SAT. The test program does not raise the SAT to $6.5 million ($12 million); it authorizes the use of SAP in acquisitions of commercial items in amounts greater than the SAT up to $6.5 million ($12 million). See 13.500(a). There really is no specific and express authority for sole source acquisitions under 13.5. The requirement to cite authority is one of those things placed in the FAR that has not been thought through by the authors of the regulation. I think the best practical solution is to cite 13.501, but to recognize that while it acknowledges the reality of sole source, it does not expressly authorize it. I don't think FASA authorizes sole source, but maybe I missed it. I don't know about Clinger-Cohen.

3. If the acquisition is under FAR Subpart 8.4, the proper title for the justification would be "Limited Sources Justification," because that how it is referred to in 8.405-6.

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Guest carl r culham

GOVCO - I agree I misstated the answer to number 3 but I believe further comments you have received while in part are correct and not. By clarification....

In your No. 3 you did not specify if the if the need was under the micropurchase threshold and under the SAT, or over the SAT. If under the SAT you simply need to "document" and from this read of the FAR you can call that document what you want - ref: FAR 8.405-6(f). An appropriate title would be helpful but not required.

If over the SAT then use the term as noted by the V's as it is required.

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GOVCO:

1. Don't call it "Justification for Other Than Full and Open Competition," because the requirement for full and open competition does not apply to acquisitions under Subpart 13.5. See FAR 6.001(a). FAR 13.501 requires that you follow the "format" in 6.303-2, which does not prescribe a title for the document. "Sole Source Justification" or "Sole Source Justification and Approval" is proper, because that is what it is if you are soliciting and negotiating with only once source and that is how such acquisitions are referred to in FAR 13.106-1(B). "Justification and Approval" is inadequate. Justification and approval for what?

2. The authority to be cited is the authority for sole source procurement. See FAR 6.303-2(a)(4), which says authority for other than full and open competition, which is not applicable under 13.5. However, there really is no express "authority" for sole source acquisitions under FAR Subpart 13.5, which merely recognizes that they happen and must be justified. Perhaps that's authorization by implication. You cannot use FAR 13.106-1(B)(1) as authority, because that authorizes sole source for acquisitions "not exceeding" the SAT. The test program does not raise the SAT to $6.5 million ($12 million); it authorizes the use of SAP in acquisitions of commercial items in amounts greater than the SAT up to $6.5 million ($12 million). See 13.500(a). There really is no specific and express authority for sole source acquisitions under 13.5. The requirement to cite authority is one of those things placed in the FAR that has not been thought through by the authors of the regulation. I think the best practical solution is to cite 13.501, but to recognize that while it acknowledges the reality of sole source, it does not expressly authorize it. I don't think FASA authorizes sole source, but maybe I missed it. I don't know about Clinger-Cohen.

3. If the acquisition is under FAR Subpart 8.4, the proper title for the justification would be "Limited Sources Justification," because that how it is referred to in 8.405-6.

Vern - Regarding your response to my first question, if I am to follow the "format" in 6.303-2 as I understand it, then how do you explain 6.303-2(a)(1), which says "Identification of the agency and the contracting activity, and specific identification of the document as a ?Justification for other than full and open competition.? Emphasis added. I know it doesn't explicity call it a title. I understand there is a clear difference between sole source acquisitions and those where I am limiting the competition; and not necessarily to a single source. I also understand Part 6 doesn't apply to Part 13; even though there are numerous things I must do that reference areas of Part 6. Just curious because I can't say that I have seen a justification in my office for a commercial item with the title "Sole Source Justification" or "Sole Source Justification and Approval." And, our office primarily does commercial item acquisitions. I am not saying one is right and one is wrong, just trying to figure this out.

Regarding your response to my second question, I have only seen in my office justifications called "JOFOCs" that cite as the authority 6.302-1. I have only seen, and also prepared these justifications over the SAT, and when limiting the competition to a single source. Is calling it a JOFOC and citing 6.302-1 necessarily wrong? I much rather do something right, or fix something that I have done wrong, as early on in my career as possible, then continue down a path of, "well, that's how we have always done it."

Thanks for confirming my thoughts on question 3.

GOVCO - I agree I misstated the answer to number 3 but I believe further comments you have received while in part are correct and not. By clarification....

In your No. 3 you did not specify if the if the need was under the micropurchase threshold and under the SAT, or over the SAT. If under the SAT you simply need to "document" and from this read of the FAR you can call that document what you want - ref: FAR 8.405-6(f). An appropriate title would be helpful but not required.

If over the SAT then use the term as noted by the V's as it is required.

Carl - I did not specify simply because I took it to be implied that the scenario had to at least be over the MPT, as I would not have used Part 8.4 procedures had it been under. Either way, sorry for that. I have always titled the document as an LSJ whether above the SAT, or between the MPT and the SAT. Suppose that is another reason why I didn't specify dollar amount. I do agree with the between the MPT and the SAT, and over the SAT response. Thank you.

Side note: I did find a sample justification, which was called a JOFOC, that cited a few examples of the authority: http://www.psc.gov/directory/jofoctemplate.pdf. Reference Item #4. P.S. Sorry if anyone works here. Was the only sample I found that included references to my topic.

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Guest Vern Edwards
Vern - Regarding your response to my first question, if I am to follow the "format" in 6.303-2 as I understand it, then how do you explain 6.303-2(a)(1), which says "Identification of the agency and the contracting activity, and specific identification of the document as a "Justification for other than full and open competition." Emphasis added. I know it doesn't explicity call it a title. I understand there is a clear difference between sole source acquisitions and those where I am limiting the competition; and not necessarily to a single source. I also understand Part 6 doesn't apply to Part 13; even though there are numerous things I must do that reference areas of Part 6. Just curious because I can't say that I have seen a justification in my office for a commercial item with the title "Sole Source Justification" or "Sole Source Justification and Approval." And, our office primarily does commercial item acquisitions. I am not saying one is right and one is wrong, just trying to figure this out.

GOVCO:

Note the instruction at FAR 13.501(a)(1)(ii):

Prepare sole source (including brand name) justifications using the format at 6.303-2, modified to reflect an acquisition under the authority of the test program for commercial items (section 4202 of the Clinger-Cohen Act of 1996) or the authority of the Services Acquisition Reform Act of 2003 (41 U.S.C. 428a)... .

Emphasis added.

As I explained above, acquisitions under the test program are not subject to the requirement for full and open competition, thus you should modify the format to call it Sole Source Justification.

Regarding your response to my second question, I have only seen in my office justifications called "JOFOCs" that cite as the authority 6.302-1. I have only seen, and also prepared these justifications over the SAT, and when limiting the competition to a single source. Is calling it a JOFOC and citing 6.302-1 necessarily wrong? I much rather do something right, or fix something that I have done wrong, as early on in my career as possible, then continue down a path of, "well, that's how we have always done it."

Yes, calling it a JOFOC is wrong, because you don't have to justify other than full and open competition under the test program, for reasons I have explained. Why would you want to call it a JOFOC or think it would make sense to call it that? Why would you cite 6.302-1 when you don't need that authority?

I mean, call it what you want. The title of the memo will not affect its legal sufficiency. But if you worked in my office you would not call it a JOFOC or cite 6.302-1, because if I let you do that it would show that neither one of us knows what we're doing.

Vern

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GOVCO:

Note the instruction at FAR 13.501(a)(1)(ii):

Emphasis added.

As I explained above, acquisitions under the test program are not subject to the requirement for full and open competition, thus you should modify the format to call it Sole Source Justification.

Yes, calling it a JOFOC is wrong, because you don't have to justify other than full and open competition under the test program, for reasons I have explained. Why would you want to call it a JOFOC or think it would make sense to call it that? Why would you cite 6.302-1 when you don't need that authority?

I mean, call it what you want. The title of the memo will not affect its legal sufficiency. But if you worked in my office you would not call it a JOFOC or cite 6.302-1, because if I let you do that it would show that neither one of us knows what we're doing.

Vern

...and that is all I needed to know. Thanks Vern! And thanks everyone for commenting.

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