Where did I leave my FAR copy Posted July 1 Report Share Posted July 1 Is it permissible to award an 8(a) sole source single award AE IDIQ? FAR 36.101 appears to prevent such a contemplated award, as requirements exist within FAR Subpart 36.6 that may be challenging to meet under such an acquisition type. A Few Relevant References (Specific Areas of Interest Included as Blue Font): Subpart 36.1 - General 36.101 Applicability. (a) Construction and architect-engineer contracts are subject to the requirements in other parts of this regulation, which shall be followed when applicable. (b) When a requirement in this part is inconsistent with a requirement in another part of this regulation, this part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved. 36.602 Selection of firms for architect-engineer contracts. 36.602-1 Selection criteria. (c) Hold discussions with at least three of the most highly qualified firms regarding concepts, the relative utility of alternative methods and feasible ways to prescribe the use of recovered materials and achieve waste reduction and energy-efficiency in facility design (see part 23). 36.602-3 Evaluation board functions. (c) Hold discussions with at least three of the most highly qualified firms regarding concepts and the relative utility of alternative methods of furnishing the required services. Your thoughts are most appreciated! Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 2 Report Share Posted July 2 7 hours ago, Where did I leave my FAR copy said: Your thoughts are most appreciated! I think the Brooks Act, the FAR, 13 CFR 124 and agency partnership agreements with SBA with regard to 8(a) procurements do not prevent but accomodate an 8(a) sole source single award IDIQ for A-E services. It is complicated to unravel so rather than providing an essay that supports my thinking I offer the following references. https://www.sba.gov/document/support--sba-and-agencies-partnership-agreements 13 CFR 124.503(f) - https://www.ecfr.gov/current/title-13/chapter-I/part-124/subpart-A/subject-group-ECFRd1e9fd1d2f2a3ac FAR 16.504(c)(ii)(a) - https://www.acquisition.gov/far/part-16#FAR_Subpart_16_5 Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 2 Report Share Posted July 2 This is from the US Army Corps of Engineers Engineer Pamphlet 715-1-7 Architect - Engineer Contracting in USACE Appendix J “Procurements reserved for the 8(a) program must utilize the selection procedures outlined in the Brooks A-E Act including holding discussions with the three most highly qualified firms… “The Contracting Officer must have a reasonable expectation of receiving responses from a sufficient number of small businesses to proceed with an 8(a) procurement.” Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 2 Report Share Posted July 2 Set-asides for 8(a), A-E contracts are allowed but must use the Brooks Act, Quality Based selection procedures. This is also discussed in Appendix J of EP 715-1-7. And yes, this is an Agency document. If you want to discuss the legal basis for the policy, you could contact the USACE proponent at HQUSACE . https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_715-1-7.pdf See also: https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_715-1-4.pdf Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 2 Report Share Posted July 2 NASA apparently has another perspective: https://doingbusiness.msfc.nasa.gov/documents/3128625/3479668/Helton.pdf/ec3e3094-7f6e-a30b-8a1a-32dcc3dc847d?version=1.0&t=1556915942299&download=true Quote Link to comment Share on other sites More sharing options...
REA'n Maker Posted July 2 Report Share Posted July 2 22 hours ago, Where did I leave my FAR copy said: Is it permissible to award an 8(a) sole source single award AE IDIQ? FAR 36.101 appears to prevent such a contemplated award, as requirements exist within FAR Subpart 36.6 that may be challenging to meet under such an acquisition type. Subpart 36.6 leads you to negotiating price with the (sole) source deemed most qualified, same as the sole-source/JEFO process*. Why waste time and effort on the competition exemption process? (*assuming we're talking about 6.302-1 as the justification) Quote Link to comment Share on other sites More sharing options...
Where did I leave my FAR copy Posted July 2 Author Report Share Posted July 2 Hi Everyone, Thanks so much for the quick feedback related to this question! To clarify, this is for a contemplated National Park Service acquisition under DOI and NPS guidance. The guidance therefrom seems lacking compared to USACE or NASA. The idea of pursuing a sole source single award AE IDIQ was in part motivated by potentially minimizing the acquisition steps that would require communications with multiple industry parties and documentation of those communications. The USACE EP 715-1-7 provided by Joel notes on page 3-14: c. Contracting with the Small Business Administration (FAR 19.8). A-E services may be procured through the SBA's 8(a) Business Development Program. USACE may request the names of 8(a) firms from SBA or recommend qualified 8(a) firms to SBA for approval. A sufficient number of qualified 8(a) firms must be considered such that at least three firms are deemed most highly qualified to provide the required services in order to comply with the Brooks A-E Act. Firms present their qualifications using SF 330. The qualifications of 8(a) firms will be reviewed and documented by USACE in accordance with FAR 36.602. EP 715-1-7 also notes on page J-3: A-E procurements reserved for the 8(a) program must utilize the selection procedures outlined in the Brooks A-E Act, including public announcement, technical evaluations, ranking of firms, and holding discussions with the three most highly qualified firms. The Contracting Officer must have a reasonable expectation of receiving a sufficient number of responses from 8(a) firms to proceed with an 8(a) procurement. Slide 6 of the NASA presentation found via link above suggests a particular firm can be selected but does not offer references permitting this path: b) The SBA identifies a specific requirement for a particular 8(a) firm or firms and asks the agency contracting activity to offer the acquisition to the 8(a) Program for the firm(s). (c) Agencies may also review other proposed acquisitions for the purpose of identifying requirements which may be offered to the SBA. Where agencies independently, or through the self-marketing efforts of an 8(a) firm, identify a requirement for the 8(a) Program, they may offer on behalf of a specific 8(a) firm, for the 8(a) Program in general, or for 8(a) competition I'm not really seeing a straightforward path to utilize the approach described by my original prompt without tailoring some steps we were hoping to bypass. Thanks again all! Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 2 Report Share Posted July 2 19 minutes ago, Where did I leave my FAR copy said: approach described by my original prompt without tailoring some steps we were hoping to bypass. What steps exactly did you want bypass? Your posts do not make it clear. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 2 Report Share Posted July 2 (edited) 5 hours ago, C Culham said: What steps exactly did you want bypass? Your posts do not make it clear. FAR 19.804-2 Agency offering, (a)(10) allows the agency to identify a specific source for a sole source 8(a) contract. This conflicts with the A-E selection procedures prescribed in 36.6 if the Agency skips the qualifications based competition selection procedures in 36.6 **edit- add: (to identify an 8(a) candidate for an ID/IQ to the SBA.) 36.101( b) “When a requirement in this part is inconsistent with a requirement in another part of this regulation, this part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved.” The Brooks Act A-E selection procedures in 36.6 are statutorily mandatory. Edited July 2 by joel hoffman Added “ (to identify an 8(a) candidate for an ID/IQ to the SBA.) ” Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 3 Report Share Posted July 3 18 hours ago, joel hoffman said: FAR 19.804-2 Agency offering, I am guessing the OP has moved on. Yet, I am compelled to respond for the good of the order. As an aside to anyone reading this thread I urge a read of the Forum discussion thread I linked from 2014 entitled “A/E and 8(a) Sole Source?” As it was then and is today, while the USACE has an agency policy regarding 8(a) sole source for A-E services, there is no authoritative reference that provides that 8(a) sole source for A-E services is otherwise not permitted. A reference to FAR 19.804-2(a)(10) is a reach as it is provided out of context. In my view “for consideration” is not an imperative that the contractor so designated “shall” be the awardee. A full read of FAR 19.8 (and 13 CFR 124) will support that SBA (as the prime contractor by the way) has full discretion to determine (and agree to) the selection of a firm for a sole source need. I think that for an A-E SBA will assist in selecting an 8(a) A-E (sub)contractor in a manner that is not in conflict with the Brooks Act. I think this is true as the SBA process has not be found to be in conflict with the Brooks Act through any authoritative decision to my knowledge. In support of my view USASpending.gov provides in excess of 3,500 actions related to A-E 8(a) sole source have occurred since FY2014 for NAICS codes 541310, 541330, 541360, & 541370. To @Where did I leave my FAR copy my question still stands. A response would help assist in providing direct comment on what processes you would like to bypass or you otherwise find as a road block to using 8(a) for the need. Quote Link to comment Share on other sites More sharing options...
REA'n Maker Posted July 9 Report Share Posted July 9 On 7/2/2024 at 3:32 PM, joel hoffman said: This conflicts with the A-E selection procedures prescribed in 36.6 if the Agency skips the qualifications based competition selection procedures in 36.6 **edit- add: (to identify an 8(a) candidate for an ID/IQ to the SBA.) Yet another reason to just follow 36.6. Put out your public notice regarding submission of SF-330's restricted to 8(a), evaluate them, rank them, negotiate price with the top ranked guy, and award. The first 3 steps are essentially what you should do (informally) to properly support a sole-source J&A anyway. Both processes lead to the same result, but only one constitutes competitive procedures. Neither procurement involves competitive pricing, so C or P data requirements are a wash. Sole-source Bad; Competition Good! Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 9 Report Share Posted July 9 4 hours ago, REA'n Maker said: Yet another reason to just follow 36.6. Put out your public notice regarding submission of SF-330's restricted to 8(a), evaluate them, rank them, negotiate price with the top ranked guy, and award. The first 3 steps are essentially what you should do (informally) to properly support a sole-source J&A anyway. Both processes lead to the same result, but only one constitutes competitive procedures. Neither procurement involves competitive pricing, so C or P data requirements are a wash. Sole-source Bad; Competition Good! NO! Why? You are confusing statutory allowance and authority with regulatory bureacracy that you alone are creating. There is no regulation to support what you have suggested. What one should do is consult with SBA and their agency experts to do it. While the USACE believes there is a conflict and that view is adopted by some there is no case law to support the premise. In fact, as I have already provided, I can not find nor have I seen in this and other discussions on the matter of 8(a) sole source A-E where GAO opined on the matter. It seems quite the opposite to me. Case in point is the following is taken from the referenced GAO document. I added the emphasis. DOD awarded 105 sole-source 8(a) contracts on or after March 17, 2020—the date that the increased threshold was implemented—which reflected an increase over prior years. These contracts were all over $22 million and up to $100 million, and thus did not require the justification. Additionally: • Half (50 percent) of the 105 sole-source 8(a) contracts were awarded to firms owned by Alaska Native Corporations; 32 percent were awarded to firms owned by Indian Tribes; and 18 percent to firms owned by Native Hawaiian Organizations. • The top five products and services under contract were engineering services; other computer related services; commercial and institutional building construction; administrative management and general management consulting services; and computer system design. https://www.gao.gov/assets/gao-22-105567.pdf Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 9 Report Share Posted July 9 What kind of “ engineering services”. There are all kinds of “engineering services”… Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 10 Report Share Posted July 10 14 hours ago, joel hoffman said: What kind of “ engineering services”. There are all kinds of “engineering services”… Now I have not seen the full audit, just the report but I think this seems reasonable? First this quote from the report - "To identify what DOD procured with 8(a) contracts over the stated threshold, we used the North American Industry Classification System codes." With footnote 9. Then footnote 9 - "9This system assigns codes to all economic activity within 20 broad sectors, and the codes reflect the industry in which the firm operates, e.g., wireless telecommunication carriers or industrial building construction." Then this quote again from the report (as already noted) - "The top five products and services under contract were engineering services; other computer related services; commercial and institutional building construction; administrative management and general management consulting services; and computer system design." If you look up each of those 5 specific catagories, each is the title of a specific NAICS code with "engineering services" being 541330. 541330 states this - "541330 Engineering Services This industry comprises establishments primarily engaged in applying physical laws and principles of engineering in the design, development, and utilization of machines, materials, instruments, structures, processes, and systems. The assignments undertaken by these establishments may involve any of the following activities: provision of advice, preparation of feasibility studies, preparation of preliminary and final plans and designs, provision of technical services during the construction or installation phase, inspection and evaluation of engineering projects, and related services." Reference - https://www.census.gov/naics/?input=541330&year=2022&details=541330 I think my post is right on becasue of the 105 contracts I got to bet that not only were 541330 Engineering Services procured but that some if not all of the engineering services met the guiding principles of FAR 36.601-4 otherwise they would have been classified with other than 541330. Quote Link to comment Share on other sites More sharing options...
REA'n Maker Posted July 10 Report Share Posted July 10 23 hours ago, C Culham said: NO! Why? You are confusing statutory allowance and authority with regulatory bureacracy that you alone are creating. There is no regulation to support what you have suggested. I was saying both business processes lead to the same result, never suggested sole-source wasn't allowable (I asked "why do it" if it's not necessary), and deliberately didn't cite regulations and statutes because that wasn't my point. I'm also not following the "regulatory bureaucracy I am creating" comment - there's no bureaucracy created by following 36.6 without exception. If your point is regarding the SBA aspect, that's a wash either way, correct? It would be cleaner if we were not involving SBA, but that's the same for everything else in Federal contracting so why should this be any different...? Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 10 Report Share Posted July 10 So, you don’t know if they were professional Architect/Engineer services, as generally defined in FAR 2.101 and 36.6 for such activities as the planning, mapping, design and engineering services for real property, also including soils engineering, roads, airports, dams, levees, etc. that are required to be performed or approved by a person licensed, registered, or certified to provide those services. That is versus engineering services for machines, materials, instruments, processes, aeronautics, astronautics non-building (or e.g., non-flood control) systems, software and hardware, etc. Quote Link to comment Share on other sites More sharing options...
formerfed Posted July 10 Report Share Posted July 10 Really nothing new in this thread was introduced from the previous 10 year old thread. There’s no conclusive answer. I assume if a conflict existed, the FAR would recognize it and state what’s proper (of course, that’s assuming the FAR committee is aware of it). Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 11 Report Share Posted July 11 9 hours ago, REA'n Maker said: I was saying both business processes lead to the same result, never suggested sole-source wasn't allowable (I asked "why do it" if it's not necessary), and deliberately didn't cite regulations and statutes because that wasn't my point. I'm also not following the "regulatory bureaucracy I am creating" comment - there's no bureaucracy created by following 36.6 without exception. If your point is regarding the SBA aspect, that's a wash either way, correct? It would be cleaner if we were not involving SBA, but that's the same for everything else in Federal contracting so why should this be any different...? What I was saying is you are mixing business processes. FAR 5.202 8(a) sole source is an exception to public announcement. Further per SBA policy a 8(a) is not to be "competed" within certain thresholds. So just following FAR 36.6 is not the same as following FAR 19.8 for a sole source. Quote Link to comment Share on other sites More sharing options...
Where did I leave my FAR copy Posted July 25 Author Report Share Posted July 25 On 7/3/2024 at 4:14 AM, C Culham said: I am guessing the OP has moved on. Yet, I am compelled to respond for the good of the order. As an aside to anyone reading this thread I urge a read of the Forum discussion thread I linked from 2014 entitled “A/E and 8(a) Sole Source?” As it was then and is today, while the USACE has an agency policy regarding 8(a) sole source for A-E services, there is no authoritative reference that provides that 8(a) sole source for A-E services is otherwise not permitted. A reference to FAR 19.804-2(a)(10) is a reach as it is provided out of context. In my view “for consideration” is not an imperative that the contractor so designated “shall” be the awardee. A full read of FAR 19.8 (and 13 CFR 124) will support that SBA (as the prime contractor by the way) has full discretion to determine (and agree to) the selection of a firm for a sole source need. I think that for an A-E SBA will assist in selecting an 8(a) A-E (sub)contractor in a manner that is not in conflict with the Brooks Act. I think this is true as the SBA process has not be found to be in conflict with the Brooks Act through any authoritative decision to my knowledge. In support of my view USASpending.gov provides in excess of 3,500 actions related to A-E 8(a) sole source have occurred since FY2014 for NAICS codes 541310, 541330, 541360, & 541370. To @Where did I leave my FAR copy my question still stands. A response would help assist in providing direct comment on what processes you would like to bypass or you otherwise find as a road block to using 8(a) for the need. Hi All, Thanks for the added information related to this post and sorry for the delayed response. EOFY...you know how it goes... The primary steps our team were considering bypassing were those steps required by FAR 36.602-1 and 36.602-3 requiring discussions be had with 3 firms. Going the sole source single award 8(a) IDIQ seemed to put us in a position where we could not meet the requirements of FAR 36.101(b), which states: "When a requirement in this part is inconsistent with a requirement in another part of this regulation, this part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved." I am of the opinion the contemplated path forward is permissible, as statutory requirements and flexibilities related to SBA 8(a) program and the Brooks Act would be met, these requirements and flexibilities would take priority over the above noted regulatory references, and the action could be harmoniously completed under both the Small Business Act 15 U.S. Code § 637 and Selections of Architects and Engineers (Brooks Act) 40 U.S.C. Chapter 11. In reviewing the FAR, I was treating the (FAR 36) regulations as equivalent to statute. I appreciate your assistance in gathering more information to help support our team's decision making, as this project will require buy-off from other parties and the validity of this path needs to be documented. Thanks again all for your thoughts! Best, OP Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 26 Report Share Posted July 26 22 hours ago, Where did I leave my FAR copy said: I am of the opinion the contemplated path forward is permissible, as statutory requirements and flexibilities related to SBA 8(a) program and the Brooks Act would be met, these requirements and flexibilities would take priority over the above noted regulatory references, and the action could be harmoniously completed under both the Small Business Act 15 U.S. Code § 637 and Selections of Architects and Engineers (Brooks Act) 40 U.S.C. Chapter 11. In reviewing the FAR, I was treating the (FAR 36) regulations as equivalent to statute. Did you see that the requirement to discuss with at least three A/E firms after reviewing their qualifications is a specific statutory requirement of the Brooks Architectural Engineering Act? Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 27 Report Share Posted July 27 With no apology for the long read I provide the following. My thoughts do not need to be debated further here. Feel free to use them in the future to formulate your own view. I just hope I have clarified mine. Is an 8(a) Sole Source Architect and Engineer contract allowed? Yes, I think within the context of Federal Acquisition Regulation (FAR) subpart 19.8 and 36.6, Title 13 Code of Federal Regulations Part 124 (13 CFR 124) and the statutes that form the basis for these regulations an 8(a) Sole Source Architect and Engineer contract is allowed and is rightfully defined as such. The basis for my thinking is as follows. The question has been debated in the WIFCON Forum for two decades. In the Forum discussions no authoritative reference has been provided that states that an 8(a) sole source is not allowed. While Forum is not authoritative in and of itself it is a valuable resource in uncovering questioned Federal acquisition processes. For the question itself the disagreement of Yes or No revolves in my view around how one interprets the term “sole source” and whether the process of selecting an Architect and Engineer (A-E Contractor) via the 8(a) sole source process is in conflict with the Selection of Architect and Engineer statute (40 USC Chapter 11), commonly referred to as the Brooks Act. With regard to Sole Source. In the context of the Federal Acquisition Regulations (FAR) the term “sole source” for the Small Business Administration 8(a) Program has a different meaning than that of the term’s common use in the FAR. In a search of the Federal Acquisition Regulations (FAR) not including its supplements, there are 150 references to “sole source”. The predominate use of the term extends or otherwise relate to FAR subparts regarding guiding principles linked to small business programs. FAR subpart 2.1 Definitions states at 2.101 that a “Sole source acquisition means a contract for the purchase of supplies or services that is entered into or proposed to be entered into by an agency after soliciting and negotiating with only one source.” However, FAR subpart 2.101 also provides in the subpart’s first paragraph that “A word or a term, defined in this section, has the same meaning throughout this chapter (the Federal Acquisition Regulation (FAR)) unless the context in which the word or term is used clearly requires a different meaning or another FAR part, subpart, or section provides a different definition for the particular part or portion of the part.” Emphasis added. FAR Subpart 19.8 Contracting with the Small Business Program (The 8(a) Program) the term “sole source acquisition” occurs once and “sole source” occurs 22 times. With regard to the latter the use of the term is specific to the processes of setting aside an acquisition for 8(a) and whether in context with the set aside acquisition should be offered to a specific firm(s) or competed among all 8(a) firms. The Brooks Act. In the FAR the acquisition of A-E services is covered in FAR subpart 36.6 Architect-Engineer Services. The subpart provides no prohibition of setting aside an A-E contract for the 8(a) Program. Commensurate with FAR 36.6 there is no prohibition of doing an 8(a) A-E contract via the 8(a) Program contained in the whole of the FAR. Further the FAR supports at subpart 19.8 that like any acquisition need for an 8(a) set aside A-E can either be done as an 8(a) sole source or as 8(a) competitive. The view that an A-E need can be set aside for the 8(a) Program was in 1979 and continues to be supported by case law of the General Accounting Office Comptroller General (GAO) in the matter of Vector Engineering Inc. B-193874, OCTOBER 11, 1979, 59 COMP.GEN. 20. It is important to note that in the matter of Vector the GAO also provided in my thinking that the Brooks Act and 8(a) could work harmoniously by stating that an 8(a) procurement while it must “BE GOVERNED BY THE POLICY EXPRESSED IN THE BROOKS BILL EVEN THOUGH THE ZONE OF COMPETITION ELIGIBLE FOR THE AWARD MAY BE LEGALLY LIMITED BY OTHER CONSIDERATIONS.” While there is no specific reference in FAR subpart 19.8 regarding a process for offer, negotiation and award of an A-E sole source contract via the 8(a) program the FAR 19.8 processes apply across the broad spectrum of contract needs. Further FAR subpart 19.8 does provide reference to Title 13 part 124 of Code of Federal Regulations (13 CFR 124) which is that portion of the CFR that governs the implementation of the 8(a) Program. As has been discussed in Forum reference to SBA's regulations is sometimes necessary to clarify the sometimes lacking guiding principles of the FAR. At 13 CFR 124.503(f) it provides that “Except for requirements for architectural and engineering services, SBA will not authorize formal technical evaluations for sole source 8(a) requirements.” This caveat supports that the Small Business Administration 8(a) regulations support that in context an 8(a) A-E sole source is governed by the Brooks Act yet can be completed under the constraint and context of an 8(a) sole source. Sole Source 8(a) and the Brooks Act. Utilizing references FAR 19.8 and FAR 36.6 there is ability to weave the 8(a) and Brooks Act together to address the primary statutory requirements of the Brooks Act to discuss with “at least 3 firms” the concepts and methods of meeting the needs of the specific anticipated contract and from the discussions establish order of preference to select “at least 3 firms” most highly qualified to perform the contract and on which to apply the order of negotiation for a satisfactory contract and maintain, in context, that award is an 8(a) Program sole source contract. This is accomplished is through these steps. 1. The Contracting Officer (CO) offers the proposed project for 8(a) set aside as a sole source based on the context and parameters of FAR 19.8. In the CO’s offering, the CO can identify any 8(a) firm they believe have the qualifications to perform the services. 2. Upon acceptance of the offering SBA approves (or not) of the firms proposed by the CO and can provide additional named firms in sufficient number that the agency has at least 3 8(a) A-E firms to discuss and base its selection of the highly qualified firms. The full list of 8(a) firms that SBA has determined to be eligible for consideration for the sole source need is provided to the agency. 3. Upon receipt of the list the CO determines that the list provides a sufficient number of firms to then hold discussions, evaluate and establish a list of at least 3 highly qualified firms to then proceed to the order of negotiations. The CO then proceeds under the general guiding principles of FAR 36.6 to accomplish contract award. If there is question about a sufficient number the CO and SBA have further discussion to mitigate. In following this process, it is noted that pursuant to FAR 5.202(a)(4) there is express exception to public announcement of any 8(a) sole source procurement inclusive of A-E services. Reference Website Links – I have purposely not provided any reference links to the FAR as I concluded most could find them easily https://www.wifcon.com/arc/forum50.htm https://www.gao.gov/products/b-193874 https://uscode.house.gov/view.xhtml?path=/prelim@title40/subtitle1/chapter11&edition=prelim https://www.ecfr.gov/current/title-13/chapter-I/part-124 https://www.swd.usace.army.mil/Portals/42/docs/business/smallbusiness/AE%20Contracting%20(EP%20715-1-7)%20%2029%20Feb%202012.pdf Quote Link to comment Share on other sites More sharing options...
formerfed Posted July 27 Report Share Posted July 27 @C Culham Very well laid out and convincing discussion. Quote Link to comment Share on other sites More sharing options...
REA'n Maker Posted July 29 Report Share Posted July 29 On 7/27/2024 at 11:57 AM, C Culham said: Upon acceptance of the offering SBA approves (or not) of the firms proposed by the CO and can provide additional named firms in sufficient number that the agency has at least 3 8(a) A-E firms to discuss and base its selection of the highly qualified firms. The full list of 8(a) firms that SBA has determined to be eligible for consideration for the sole source need is provided to the agency. Selecting "at least 3 8(a) A-E firms to discuss and base its selection of the highly qualified firms" sounds exactly like Part 36.6 to me. Where does "sole source" come into it? Isn't a J&A required somewhere in there? (If your argument turns on the vagaries of the 8(a) program, that is a rabbit hole I shall not follow you down. 8(a) awards are administration of a socio-economic program, not "acquisition". I'm focused on the sole-source/36.6 aspect and will gladly defer to your 8(a) expertise). On 7/27/2024 at 11:57 AM, C Culham said: In the CO’s offering, the CO can identify any 8(a) firm they believe have the qualifications to perform the services. The FAR states that "Agencies shall evaluate each potential contractor..." using specific selection criteria detailed under 36.602-1, that "[t]o be considered for architect-engineer contracts, a firm must file with the appropriate office or board the Standard Form 330" (36.603), and that agencies shall conduct the A-E tech eval using specific people (36.602-2) following specific procedures (36.602-3). Also note that per 36.602-4, the CO is not the source selection authority and that all 3 ranked-order firms are considered "selected" in the SSA decision. Saying the CO can restrict the pool of qualified vendors based on [insert unknown criteria here] does not make sense in this scenario. I'm speaking from experience. Our program attorney was of the (wrong...) opinion that Subpart 36.6 prohibits sole source, so rather than fight that battle we followed Brooks Act procedures using qualification criteria that were previously used to justify the sole source strategy. The process led to the same result - solicitation of a non-competitive price proposal, C or P Data cert, negotiations, F&R cost determination, and award to the single most qualified firm. Why is it worth so much time and effort to force-feed any procurement into the sole-source lane when you can achieve the same result using Brooks Act procedures? Quote Link to comment Share on other sites More sharing options...
C Culham Posted July 29 Report Share Posted July 29 6 minutes ago, REA'n Maker said: Selecting "at least 3 8(a) A-E firms to discuss and base its selection of the highly qualified firms" sounds exactly like Part 36.6 to me. Sorry my thinking is not clear, let me see if I can help. It is FAR subpart 36.6 to the extent that the "at least" is satisfied. 7 minutes ago, REA'n Maker said: Where does "sole source" come into it? By the contextual use of "sole source" in FAR subpart 19.8. "Sole Source" in 19.8 means not openning the need up to all 8(a) firms. So as provided by my example the SBA and CO work together to select those firms to be considered for the work based on technical merit and meet the "at least" requirement. 11 minutes ago, REA'n Maker said: Isn't a J&A required somewhere in there? No by authority of FAR subpart 6.302-5(4). 14 minutes ago, REA'n Maker said: The FAR states that "Agencies shall evaluate each potential contractor..." using specific selection criteria detailed under 36.602-1, that "[t]o be considered for architect-engineer contracts, a firm must file with the appropriate office or board the Standard Form 330" (36.603), and that agencies shall conduct the eval using specific people (36.602-2) following specific procedures (36.602-3). Also note that per 36.602-4, the CO is not the source selection authority and that all 3 ranked-order firms are considered "selected" in the SSA decision. Saying the CO can restrict the pool of qualified vendors based on [insert unknown criteria here] does not make sense in this scenario. As part of the process I cited as example, in 2. and 3., I was unclear. I apologize. The list includes providing the firms 330's. I will add a thought I did not mention. Remember by a full read of 19.8 award of an 8(a) is made to the SBA by the agency, SBA then awards a subcontract to the 8(a). So if you wanted to be literal I would suggest that SBA is the final decider on award of the contract. 20 minutes ago, REA'n Maker said: question: why is it worth so much time and effort to force-feed any procurement into the sole-source lane when you can achieve the same result using Brooks Act procedures? The magic question regarding any socio-economic program. Heck for that matter any sole source under FAR subpart 6.302 if you wanted look at it from the big picture. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted July 29 Report Share Posted July 29 The GAO decision that Carl cited was a protest of a competitive 8(A) “set-aside” for A/E services where competition was limited to eligible 8(a) firms (consistent with FAR 19.805), not a sole source 8(a) acquisition. The selection was evidently made of the most qualified firm, not a single, pre-selected, sole source firm. https://www.gao.gov/products/b-193874 Thus the procedure was in harmony with both the 8(a) program and the “Brooks Bill” Quote Link to comment Share on other sites More sharing options...
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