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8a sole source construction solicitation under SAT.


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I am a contracting officer working a construction requirement for a project with an estimate value under SAT.  We've selected an 8(a) contractor to solicit to and have received positive determination of eligibility from the SBA.  Last week the customer sent me the roll up of the draft solicitation and the draft plans and specifications and asked us to forward the drafts to the contractor to arrange a site visit. I responded that we would need the finalized copy of the plans and specs to send with the final and approved solicitation first.  You would think I has asked for something completely unreasonable from the response I got.  I have next to no experience with 8(a) sole source acquisitions. My previous agency frowned upon 8(a) sole source acquisitions. When I reached out to the other contracting officers in my office they stated it was their usual process to send the draft of the specs and solicitation to the contractor to get their inputs on the project.  This seems completely backwards to me but I could be wrong.  My supervisor will support whatever direction I want to take this but before I choose to battle my way up this hill I wanted to get some unbiased opinions. There are lot of things this agency is doing just because that's the way it's always been done .

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4 hours ago, Andrea S said:

When I reached out to the other contracting officers in my office they stated it was their usual process to send the draft of the specs and solicitation to the contractor to get their inputs on the project.  This seems completely backwards to me but I could be wrong. 

Why does this seem backwards?  Does something prohibit such an action?

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The authority would be FAR 19.808-1.   After going back and looking at the contract files for previous 8(a) sole source actions, the contract files include the final released solicitation (not the draft version) and the final specifications (also not the draft version) and sometimes negotiation documentation if applicable, but none of them document this initial interaction with the 8(a) firm. Several of them were done at the end of the fiscal year, when there were time constraints. Despite the statement regarding it being the usual process, I only found a half dozen of these done for construction over the last 5 years. In addition, based on the conversations I've had with the customers, and our small business specialist, they expect, or use, the contractor to further develop the specifications from the draft.  Honestly, I question the intention in sending the contractor a draft of the specification. I don't see the purpose of it, when we are in a sole source environment, other than to have the contractor do the customer's job of writing the requirement and to circumvent the acquisition process.   This should be just as easy to accomplish by sending them the solicitation and the specifications and then negotiating changes from there.  If the customer is that unsure of how to frame the requirement then there are other methods to address this. 

8(a) sole source acquisitions are new territory to me. It is also new territory for the contract specialist working this requirement and several of the contract specialists that work for me.  I'm new to this agency, and their business processes are significantly different than the processes and policies of my previous agency even though they both fall under the AFARS. If I'm wrong and there are no reasons to be concerned with "the usual" then that would certainly be the path of least resistance.

Perhaps I should clarify, just in case. They want to send the solicitation and specifications in draft form, as in labeled draft, then making changes before sending the solicitation and specifications to request a proposal. 

Also, I spent 10 years as an internal auditor before I transitioned to contracting.  I have some biases because of previous experience but I try to be cognizant of that and take it into consideration when I'm on the fence. Hence the need for a second opinion   I have no problem being told I'm worrying too much.... 

Edited by Andrea S
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My opinion broken down as best I can.

 

3 hours ago, Andrea S said:

The authority would be FAR 19.808-1. 

Along with FAR 6.204, FAR 6.302-5 and the DoD Partnership Agreement SBA on the 8(a) Program is still applicable.

3 hours ago, Andrea S said:

but none of them document this initial interaction with the 8(a) firm.

I would agree that IF the process you have questioned was a part of the process not documenting is not prudent.  But that does not mean the process was not prudent.

4 hours ago, Andrea S said:

Several of them were done at the end of the fiscal year, when there were time constraints.

In part why the 8(a) program is a valuable tool in the tool box.

 

4 hours ago, Andrea S said:

Honestly, I question the intention in sending the contractor a draft of the specification.

Is there a prohibition stated in the FAR references you have provided along with those I have that prevents this specifically for 8(a)?  An agency in a what I will call a competitive atmosphere can post a draft solicitation in SAM.gov where comments are solicited can not the same be done with a draft solicitation in a sole source atmosphere?   References to consider FAR 1.102(d) and https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2021-07/SOP Publicizing Notices July 2021 (2) (4).pdf  And in the end does the government have to accept any changes to "draft" based on comments received or just leave everything as is?

IN my opinion I see nothing "wrong" the process you describe nor any specific regulation that prevents it.  Probably not even policy.  8(a) sole source affords wide latitude.   In providing my comments I could for see telling the 8(a) that  if negotiations fall through and requirement is removed from the 8(a) program and converted to a competitive process that they cannot compete for it but I have no specific reference to support this view.   It just seems to make good business sense.

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7 hours ago, Andrea S said:

Perhaps I should clarify, just in case. They want to send the solicitation and specifications in draft form, as in labeled draft, then making changes before sending the solicitation and specifications to request a proposal. 

12 hours ago, Andrea S said:

Last week the customer sent me the roll up of the draft solicitation and the draft plans and specifications and asked us to forward the drafts to the contractor to arrange a site visit.

What reaction to the draft solicitation and draft plans and specifications does the customer expect from the proposed contractor?

Is it simply in order to provide general information during the site visit?

In the mid 2000’s, for the last two of nine DoD Chemical Weapons Demilitarization Plants*,  the government shared draft solicitations with the very limited universe of interested contracting teams and sought their feedback. Then we  conducted one on one meetings with each of them before finalizing the RFP’s.

There were no plans and specs for those draft solicitations or for the final RFP.

The Program Executive Office and partnering government agency teams considered the industry input when finalizing the RFP’s. The Systems Contracts at those two sites were for design, construction, systemization, pilot operations, final operations and closure, using task orders. Both Systems contracts were in the order of $2-3 billion.

*These last two plants are under the Assembled Chemical Weapons Alternatives (ACWA) Program Executive Office.

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I really need to understand the intent and purpose for providing draft plans and specifications to the proposed contractor and what if any response you are asking for.

Asking a prospective contractor to perform a design review or provide design review comments would not be appropriate in my view.

 

 

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