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Competitive ANC 8(a) Award Followed by Sole Source ANC 8(a) Modification


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Scenario: 

1. Agency is within DoD. 
2. Competitive 8(a) set-aside results in ~$100M award to an ANC. 

3. Later, a separate but similar requirement valued at ~$90M is identified. 
4. Agency seeks to procure additional work by modifying the original ANC contract on a sole source basis without a JOFOC pursuant to FAR 6.302-5 and DFARS 206.303-1(a).
 

I’ve found nothing explicit in law, regulation, or policy that prevents us from “stacking” the 8(a) Program into a single contract in this way. FAR 19.808-1(e) prevents another participant owned by an ANC from receiving a sole source follow-on contract under the 8(a) Program, but these circumstances don’t apply here. 
 

Is anyone aware of any showstoppers I’m missing?

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Your contractor must watch out for size standard protests.  You really need to involve the contractor and SBA right away in your acq planning, because you still have to do an Offering Letter and I don't know any NAICS Code that has a small business size standard that would keep your participant "small" after you add this additional work to their annual receipts.  See FAR 52.219-28 for your purposes as well.

Edited by Voyager
Deleted bad advice
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15 hours ago, Voyager said:

Deleted bad advice

Can you elaborate? I read what you’d written and was asking myself what the actual risk would be if someone incorrectly interpreted my action. I couldn’t come up with anything. Is that why you retracted your comment?

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16 hours ago, Voyager said:

You really need to involve the contractor and SBA right away

Best advice! 

51 minutes ago, FrankJon said:

Can you elaborate?

I played around a little in 13 CFR 121 & 124 and would offer that a lot of head scratching would need to be done to determine if your proposed approach has risks with regard to: process of offering the project to SBA,  size and the ANC's continued participation in the 8(a) program.   

Additionally, have you looked at the DOD SBA Partnership Agreement for the 8(a) Program to see how your proposed approach lines up with it?  https://www.sba.gov/document/support--sba-and-agencies-partnership-agreements

Related, and again I did not attempt to wrap my head around it fully,  I do wonder how the approach might be viewed with regard to "scope of the competition".  After all the value of the add on work would usually require a 8(a) competitive and otherwise it would seem 8(a) would want to follow the offer/acceptance process for putting the added work into the program appropriately.  

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20 hours ago, Voyager said:

Deleted bad advice

3 hours ago, C Culham said:

scope of the competition

@FrankJon My retracted paragraph included advice that, for fear of a regulatory threshold convention's interpretation, you write the pointless 8(a) JOFOC, get the approvals, and post it bureaucratically without critically thinking.  A good, critical thinking CO, however, must decide if the government is circumventing any statutory competition requirements.  If not, then your job per FAR 1.602-1(b) is to articulate through statutes and case law why it is not when challenged on such broad regulatory grounds by the bureaucrat.

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4 hours ago, C Culham said:

Additionally, have you looked at the DOD SBA Partnership Agreement for the 8(a) Program to see how your proposed approach lines up with it?

Yes, nothing there that I see. 

 

4 hours ago, C Culham said:

Related, and again I did not attempt to wrap my head around it fully,  I do wonder how the approach might be viewed with regard to "scope of the competition".  After all the value of the add on work would usually require a 8(a) competitive and otherwise it would seem 8(a) would want to follow the offer/acceptance process for putting the added work into the program appropriately.

I would have a valid exception to competition pursuant to FAR 6.302-5. Barring any express prohibitions to using the 8(a) Program in this way, scope of competition would not be an issue. 

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