Does 8(a) sole source authority apply for single award IDIQ contracts?

[jdm843]

Does the multiple award preference at FAR 16.504 apply to sole source awards pursuant to FAR Subpart 19.8? My contracting office has been requested to issue a solicitation sole source to an 8(a) firm for a single award IDIQ services contract. I know that authority for sole source contracts is found at FAR 6.302-5(b )(4) and FAR Subpart 19.8. However, my reading is that for IDIQ contracts, FAR 16.504 still applies. Hence the multiple award preference described FAR 16.504( c) would still apply and as such, in order to pursue a single award IDIQ, the Contracting Officer would have to document the file with a determination that a single award is most appropriate, giving consideration to the content provided at FAR 16.504( c)(1)(ii). The requirements are not for manufacturing, will not exceed $4M total, and are not for advisory and assistance services. My inclination is to push for a competitive procurement, perhaps an 8(a) or other small business set-aside if the market research supports it.

[napolik]

Yes, FAR 16.504 (c ) applies. While FAR 16.500 (d) provides an exception for A/E contracts, it does not provide one for actions under FAR 19.

[Boof]

FAR 16.504© is a preference for multiple awards and you can justify going with one. I would do everything I could to justify a single award and sole source it. Why create a ton of work, task order competitions, protests of task order awards and all the other problems my office has had with multiple awards if you don't absolutely have to. One caveat is that the work has to be able to be priced up front via a menu of fixed unit prices. If it can't then the competitions may be a lesser evil than justifying the fair and reasonable price on a sole source award.

You actually have to justify to SBA why you want to compete a 8a for $4M. It is supposed to be accepted as a sole source.

[jdm843]

I agree it's a preference. But the key to me is that the listed considerations must be made. I see performance & cost risk inherently higher in single award IDIQs vs multiple award IDIQs. Consider also this: FAR 19.804-4 Repetitive acquisitions states that for repetitive acquisitions separate SBA offer & acceptances are required. Then see FAR 19.804-6 IDC’s that states those separate offers & acceptances aren’t required for orders under "multiple award, FSS, multi-agency contracts or GWACs”. So if an 8(a) sole source single award IDIQ is awarded are separate offers & acceptances be required? Because 19.804-6 doesn’t mention single award IDIQs—but it does mention multiple award IDIQs, which, in chorus with Subpart 16.5, makes me believe that multiple award IDIQ is, strongly, the preferred IDIQ, regardless of FAR Part 19. So in the end, my reading is that the preference at FAR 19.805-1 for sole source 8(a) acquisitions over competitive ones is inapplicable if an IDIQ is contemplated, by virtue of the multiple award preference at FAR 16.504... unless a business case can be made that a single award IDIQ is in order.

[airborne373]

If not advisory and assistance, what kind of services are they? What does your market research show? Why is an IDIQ contract appropriate? (or why does the customer want an IDIQ contract?

[jdm843]

Interestingly, I submitted this question to AAP, and got a flat out "No, the multiple award preference at FAR 16.504 does not apply. The rules at 19.805-1 apply." I guess I'm reading this all a little differently... or maybe this is a "chicken or the egg" type of thing, but I would expect that the decision to go multiple award or single award IDIQ would be made BEFORE you submit a DD2579 & before you pursue a SBA offer letter. So if you conduct an analysis pursuant to FAR 16.504( c)(1)(ii), and cross reference that with your market research, and THEN you go consult FAR 19.805-1, that will determine how you request your SBA offer letter. If you choose multiple award, seems to me sole source is out of the question. But if a determination is made to go single award, then a sole source is the preference.

https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=31&cgiQuestionID=116873

[Guest Vern Edwards]


Does the multiple award preference at FAR 16.504 apply to sole source awards pursuant to FAR Subpart 19.8?

The multiple award preference applies to all but A-E acquisitions, but that is not the issue in your case. The issue in your case is whether an agency must make multiple awards even when authorized by statute to award a contract on a sole source basis. The answer should be obvious: No. See FAR 16.500(. The multiple award preference applies to acquisitions in which multiple awards are feasible and appropriate. Multiple awards are not feasible when there is only one responsible source, and are not appropriate when the law authorizes a sole source procurement in furtherance of small business policy and an agency decides to proceed on that basis.

Law and regulation authorize agencies to offer any acquisition to the SBA for 8(a) procurement on a sole source basis, unless the competitive 8(a) rule applies. See FAR 19.201, 19.804, and 19.805. Agencies don't have to have any particular reason for offering a procurement to the SBA other than to comply with the small business “maximum practicable opportunities” policy. If an agency decides to offer an acquisition to SBA for 8(a) procurement on a sole source basis and is authorized to do so, then multiple awards are not appropriate, even if they would be appropriate if the procurement were not offered to the SBA.

Sometimes the regulations do not address an issue directly and you have to use your head. I don't think the multiple award preference policy was designed to preclude 8(a) sole source awards of IDIQ contracts. Why read 16.504 first and then read 19.805, as you suggest? Why read 16.504 to preclude 8(a) sole source awards when the policy does not say that 8(a) sole source awards are precluded? What about 16.504( c)(1)(ii)((6) -- the best interests of the Government? Wouldn't small business policy fall within that exception?

I think you must read 16.504 and 19.804 together and strike a balance. The list of considerations in 16.504( c)(ii)(A) are only some of the things you may consider. I think that your reading of FAR 19.804-6 is strained and finds things in it that are not there. You strike me as going out of your way to find a reason to interpret FAR as precluding 8(a) sole source awards of IDIQ contracts, when the regulation does not expressly preclude them. Your reading of unequivocal direction in a regulation that does not directly address the issue strikes me as a kind of nay-saying. Whether it would be wise to award an IDIQ contract on an 8(a) sole source basis instead of making multiple awards depends on many factors, but why reduce the decision to a matter of regulatory preclusion?

Are you afraid that you would be criticized for offering an indefinite-delivery indefinite-quantity requirement to SBA for 8(a) sole source procurement when (1) you are authorized by statute to do so, (2) the requirement is valued at less than the competitive 8(a) threshold, (3) the acquisition is less than $103 million, and (4) the multiple award preference is to be applied only when "appropriate" [see FAR 16.504( c)(1)(ii)(A)]? (On the other hand, the multiple award requirement of 16.504©(2)(i) appears to be absolute.)

As for your file documentation, simply say that multiple awards are not appropriate because (1) you have offered the procurement to SBA for 8(a) contracting on a sole source basis in furtherance of FAR 19.201(a) and in accordance with FAR 19.804-2, (2) SBA has accepted it in accordance with FAR 19.804-3, (3) the requirement is valued at less than the $6.5 million competitive 8(a) dollar threshold, and (4) the CO thinks that this decision is in the bests interests of the Government for the following reasons… .

I do not know of any interpretation or policy implementation of FAR 16.504©((1) that would preclude an 8(a) sole source award.

[jdm843]

Maybe I mis-spoke--by no means am I interested in "nay-saying" nor attempting to "reduce the decision to regulatory preclusion". In any case, I appreciate your input. All I'm saying is that the decision to establish an IDIQ (and consider single vs multiple award) should involve the considerations at subpart 16.5. Are there conditions at 16.504 (or other circumstances similar to the conditions at 16.504) that compel the acquisition team to go single award...? Yes? Then perfect! Say it, document it, and move forward. I frequently find myself in a situation in which the requiring activity already has their mind made up on what they want (contractor, contract type, etc) before any of the acq planning has even begun. In the end, my core intent is to set up a smart business arrangement that is legally sound within the regulations.

I had, however, overlooked 16.500(b ) as it applies to my scenario, which certainly provides a KO significant latitude. I suppose, when it comes to 8(a) acquisitions <$20M, it lifts quite a lot from the acq strategy process by 1) circumventing the preference at 16.504 if you wish, and 2) expressly excusing the requirement from a J&A (which would involve an explanation of the business arrangement and why it's a good one).

[Don Mansfield]

jdm843,

Have you read FAR 19.805-1(d)? The decision to proceed with a competitive 8(a) under the competitive threshold is not yours. All you can do is request approval.

[jdm843]

Yes, I'm aware of that. Presumably the relevant components of the multiple award analysis wouild go in the SBA offer letter. On that note it seems there are a number of potential 8(a) offerors in this case, and my agency supports the 8(a) program on a noncompetitive basis quite a bit...