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FAR 13.106-1(b):  Soliciting from a single source

Comptroller General - Key Excerpts

New The agency awarded purchase order No. VA241-15-P-0353 to IFOG on November 26, 2014, as an emergency order for delivery of fuel oil to the West Haven VA Medical Center utilizing procedures set forth in Federal Acquisition Regulation (FAR) §13.106‑1(b)(1)(i). Those procedures permit agencies to solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available, such as for urgency reasons. Agency Report (AR), exh. C, Purchase Order, at 1; exh. F, Contracting Officer’s Statement, at 1; see also AeroSage LLC, B‑410648.2, B‑410648.3, Mar. 20, 2015, 2015 CPD ¶ 111 at 2 (describing procedures utilized by agency for emergency procurement).

(paragraph deleted)

SageCare’s only argument is that the agency’s decision to not consider it for award of the emergency order was unreasonable. Protest at 2. The protester argues that the contracting officer’s hearing testimony shows that SageCare was unreasonably excluded from consideration for the emergency award even though it had allegedly submitted a lower price for the fuel oil delivery under the solicitation that was cancelled. Id. However, our review of the record does not provide a basis to question the agency’s decision to award the emergency order to IFOG.

When conducting a procurement utilizing simplified acquisition procedures, contracting officers must promote competition to the maximum extent practicable to obtain supplies and services from the source whose offer is the most advantageous to the government. 41 U.S.C. § 3305(d); FAR § 13.104; Info. Ventures, Inc., B‑293541, Apr. 9, 2004, 2004 CPD ¶ 81 at 3. As an exception to this general competition requirement, a contracting officer may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source was reasonably available, such as under urgent circumstances. FAR § 13.106-1(b)(1)(i). We review an agency’s decision to limit competition under such circumstances for reasonableness. Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009, 2009 CPD ¶ 25 at 3.

As discussed in AeroSage LLC, supra, we found the VA’s decision to award the emergency order to IFOG to be reasonable under the circumstances. AeroSage LLC, supra, at 4-5. This includes the contacting officer’s decision to limit his consideration to the three vendors made known to him as he researched vendors for the requirement, as described above. With respect to SageCare’s specific allegation, the record shows that the contracting officer was not aware of the protested procurement until after he selected IFOG for award. Tr. at 257:19-258:2. He also testified that he did not know the particulars of the solicitation for which both AeroSage and SageCare had submitted proposals. Id. at 255:22-256:5. Finally, there is no evidence in the record to suggest that the contracting officer knew that SageCare had submitted a proposal for that procurement, or that he had any knowledge of the particulars of SageCare’s proposal.

Thus, the record shows that at the time the contracting officer made the decision to award the emergency order to IFOG, he had no reason to consider SageCare for that award. In addition, when the contracting officer was later asked by another contracting official to confirm that the award was not going to be made to AeroSage or SageCare, the decision to award the emergency order to IFOG had already been made. As a result, there is no evidence that SageCare was improperly barred from consideration for this emergency order.

The protest is denied.  (SageCare, Inc. B-411260: Jun 23, 2015)  (pdf)


Desktop Alert, which has created and supports its own emergency mass notification software system, challenges the agency’s limitation of sources on a brand name basis to AtHoc resellers. In this regard, the protester argues that the solicitation is unduly restrictive of competition since it does not permit other potentially qualified vendors of similar software systems to compete.

The simplified procedures established under FAR Part 13 are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors, where, in cases like this, the value of the acquisition is less than $150,000. See FAR § 2.101; see also 10 U.S.C. § 2304(g)(1). When using simplified acquisition procedures, agencies are only required to obtain competition to the “maximum extent practicable.” 10 U.S.C. § 2304(g)(3); FAR § 13.104; B&S Transport, Inc., B‑407589, Dec. 27, 2012, 2012 CPD ¶ 354 at 2. In a simplified acquisition, an agency can limit a solicitation to a brand-name item when “the basis for not providing maximum practicable competition is documented in the file [in accordance with FAR § 13.106-1(b)] or justified when the acquisition is awarded using simplified acquisition procedures.” FAR § 11.105(a)(2)(ii).

Under FAR § 13.106-1(b), 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).” FAR § 13.106-1(b)(1). In such cases, we review the decision to limit the procurement to a brand-name for reasonableness. See Critical Process Filtration, Inc., B-400746 et al., January 22, 2009, 2009 CPD ¶ 25 at 3.

Here, the agency’s J&A, issued in accordance with FAR § 13.106-1(b) and posted on FedBizOpps, explains that the contemplated one month contract will “provide uninterrupted software maintenance from a previous contract” and will “follow-on to the existing contract.” Id. According to the J&A, the agency is experiencing delays related to the on-going effort intended to competitively award a contract consolidating all of the major command emergency mass notification systems, and that “it would be extremely difficult and costly to transition to a new product” while waiting for the completion of the consolidated effort. Id. In this regard, the J&A further explains that if the agency were to change to different software, it “would have to retrain the field on the use of a different product and possibly change the configurations of the servers supporting this application.” Id.

Based on the agency’s J&A, the RFQ was intended to serve simply as a short‑term bridge contract to allow the agency to maintain the status quo while working toward the competitive award of a longer term consolidated emergency notification system solution. In light of the anticipated competitive award and the associated delays in the award of that contract, the short duration of the requirement contemplated by the RFQ, and the potential disruption and costs associated with shifting to an entirely new software platform, we have no basis to conclude that the agency acted unreasonably in limiting the solicitation to the AtHoc brand-name software system.  (Desktop Alert, Inc., B-408707: Nov 15, 2013)  (pdf)
 


Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified acquisitions--used to purchase supplies and services, including construction, research and development, and commercial items, the aggregate amount of which does not exceed certain dollar thresholds (FAR sections 2.101, 13.000, 13.003(a))--are excepted from the general requirement that agencies obtain full and open competition through the use of competitive procedures when conducting procurements. See 41 U.S.C. sections 253(a)(1)(A), (g)(1), and (g)(4) (2000). Part 13 of the FAR establishes procedures for simplified acquisitions, which are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors. To facilitate these objectives, FASA only requires that agencies obtain competition to the maximum extent practicable. 41 U.S.C. sect. 427(c); FAR sect. 13.104; Information Ventures, Inc., B-293541, Apr. 9, 2004, 2004 CPD para. 81 at 3. Under the maximum-extent-practicable standard, an agency “may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source is reasonably available (e.g., urgency, exclusive licensing agreements, or industrial mobilization).” FAR sect. 13.106-1(b)(1). We review protests of sole-source determinations made in these procurements for reasonableness. Information Ventures, Inc., supra. The agency has not demonstrated that it had a reasonable basis to make a sole‑source award here. Essentially, the agency states that it acted in “good faith” based on the best information available at the time. This is not a legitimate defense to this protest. Our review is based on whether the agency’s sole-source decision was reasonable based on the information reasonably available to the agency at the time of the sole-source decision, not whether the agency acted in good faith. See Ultraviolet Purification Sys. Inc., B-226941, Sept. 10, 1987, 87-2 CPD para. 229 at 3-4. (Europe Displays, Inc., B-297099, December 5, 2005) (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
New SageCare, Inc. B-411260: Jun 23, 2015  (pdf) Europe Displays, Inc., B-297099, December 5, 2005 (pdf)
Desktop Alert, Inc., B-408707: Nov 15, 2013  (pdf)  
Information Ventures, Inc., B-290785, August 26, 2002  
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