FAR 13.501(a)(2)(iii) and (iv) Usage?

[Freyr]

I feel like I'm missing something very basic here but FAR 13.500(a) only allows us to go up to $15M however FAR 13.501(a)(2)(iii) and (iv) prescribe how to get approvals up to $75M or $100M for DoD/CG/NASA. If we're only allowed to use FAR 13.5 for up to $15M, why would we there be language on how to get approvals above that amount?

[Don Mansfield]

1 hour ago, Freyr said:

I feel like I'm missing something very basic here but FAR 13.500(a) only allows us to go up to $15M however FAR 13.501(a)(2)(iii) and (iv) prescribe how to get approvals up to $75M or $100M for DoD/CG/NASA. If we're only allowed to use FAR 13.5 for up to $15M, why would we there be language on how to get approvals above that amount?

Good question. I never thought of that.

[Jacques]

While I haven't researched it, maybe for a class justification?

[Jamaal Valentine]

For proposed contract actions that are not under SAP, but the sole source (including brand name) portion is under SAP?

[Vern Edwards]

Fun fact: I searched the Federal Register for the phrase "proposed contract exceeding $15 million" and got no result.

[C Culham]

On 5/10/2023 at 9:38 AM, Freyr said:

I feel like I'm missing something very basic here but FAR 13.500(a) only allows us to go up to $15M however FAR 13.501(a)(2)(iii) and (iv) prescribe how to get approvals up to $75M or $100M for DoD/CG/NASA. If we're only allowed to use FAR 13.5 for up to $15M, why would we there be language on how to get approvals above that amount?

My thoughts -

Statutory authority  with regard to DoD/CG/NASA regarding contingency operations.  FAR 18.2.

The thresholds have changed as a result of FAR allowance for inflation adjustment so exact wording as found in the FAR might be abbreviated in the adjustment.   https://www.acquisition.gov/tableofeffectivedatesforMPTandSAT#:~:text=Moved the definition from 13.101,as defined in 10 U.S.C.

 

[Don Mansfield]

8 hours ago, Jamaal Valentine said:

For proposed contract actions that are not under SAP, but the sole source (including brand name) portion is under SAP?

Wouldn't you just apply the dollar threshold to the brand name portion?

[Jamaal Valentine]

@Don Mansfield

That’s what we typically do, but we have to make some sense of the language to give it meaning. Carl offered something, but I didn’t see $75M or $100M in the link he provided.

Now, I didn’t put much thought into it, but I can see a scenario where someone has a proposed contract exceeding $15M with a portion of that $15M including up to $7.5M in sole source/brand name commercial products or services. In this scenario, the higher level approvals would apply. I presume such an action would receive greater scrutiny—by design—from above.

Is it thought to be a scrivener’s error?

[Don Mansfield]

11 minutes ago, Jamaal Valentine said:

Is it thought to be a scrivener’s error?

My guess is a thoughtless copy and paste.

[Jamaal Valentine]

Copypasta in FAR? Never. 😒 

[C Culham]

2 hours ago, Jamaal Valentine said:

Carl offered something, but I didn’t see $75M or $100M in the link he provided.

Honestly it seems it would be very time consuming to track and it also seems the devil is in the details.   By example this quote does mention $75M.  From the reference and link in the table for FAR Case 2004-033 where you need to read the whole of the Fed Reg in the link.

"13.501 [Amended] ■ 22. Amend section 13.501 by removing from paragraph (a)(2)(i) ‘‘$500,000’’ and adding ‘‘$550,000’’ in its place; removing from paragraph (a)(2)(ii) ‘‘$500,000’’ and ‘‘$10,000,000’’ and adding ‘‘$550,000’’ and ‘‘$11.5 million’’; respectively, in their place; removing from paragraph (a)(2)(iii) ‘‘10,000,000’’, ‘‘50,000,000’’, and ‘‘75,000,000’’ and adding ‘‘11.5 million’’, ‘‘57 million’’, and ‘‘78.5 million’’, respectively, in their place; and removing from paragraph (a)(2)(iv) ‘‘50,000,000’’ and ‘‘75,000,000’’ and adding ‘‘57 million’’, and ‘‘78.5 million’’, in its place."

All said I depart from the cut and paste as I think the amounts are with intent, have been adjusted by the allowance of regulation threshold adjustments due to inflation, possibly other legislation and approvals above the $15M are allowed for contingency ops because legislation and regs say so.  Seems too simple but that is why!  Yet it is confusing at the same time!

[Jamaal Valentine]

Thanks, Carl. You’re right…Whew! 😅 

[formerfed]

On 5/11/2023 at 1:56 PM, Jacques said:

While I haven't researched it, maybe for a class justification?

This is a possibility too.  Years ago a cabinet level agency did a class justification to buy Microsoft products through the department.  Funding wasn’t centralized yet and management wanted each office to buy their own licenses - way before enterprise licenses.  I don’t have any idea on the value but it’s an example.  So they prepared a J&A, synopsized, and got all the approvals for multiple individual buys.

[Jacques]

By way of a research aid, consider the following:

The test program for certain commercial items was originally implemented by FAC 90-45, Item VII (FAR Case 96-307), whose final rule appears at 62 Fed. Reg. 262 (Jan. 2, 1997).  While the test program coverage originally appeared in FAR Subpart 13.6, it was later moved to Subpart 13.5.  In its original form, FAR 13.602(a) provided in part, "[C]ontracting officers shall not conduct sole source acquisitions...unless the need to do so is justified...and approved at the levels specified in paragraphs (a)(1) and (a)(2) of this section."  FAR 13.602(a)(2) stated, "For a proposed contract exceeding $500,000, the approval shall be by the competition advocate for the procuring activity, designated pursuant to 6.501; or an official described in 6.304(a)(3) or (a)(4).  This authority is not delegable."  Under FAR 6.304(a)(2)-(4) at the time, the competition advocate could approve actions between $500K and $10M; a designee could approve actions between $10M and $50M; and the senior procurement executive (without power of delegation) could approve actions over $50M.

While I concede the above summary does not show that I'm right, I continue to believe the fact that a justification could have a value over the ceiling for an individual action under the (then) test program was to accommodate class justifications.

[C Culham]

2 hours ago, Jacques said:

While I concede the above summary does not show that I'm right, I continue to believe the fact that a justification could have a value over the ceiling for an individual action under the (then) test program was to accommodate class justifications.

Along with CICA?   Special simplified procedures for needs under the SAT (single source FAR 13.106-1(b)).  Intent of CICA was to have special simplified procedures for those needs not exceeding the stated limit ($5,000,000) for commercial items (41 USC 253(g)  but essentially in crept via regulation (FAR 13.5) the requirements similar to that of FAR part 6 .