Hi. I am a GSA novice and need some guidance: What do I need to write or document to determine not to go GSA?

I searched GSA Advantage and have not found service contractors I believe can do what we need in our Performance Work Statement. Similar, but not what we are seeking. We (I and the client) agree we would like to go open market commercial, best value on this procurement.

How much documentation do I need to move ahead and bypass GSA? Is it whatever the contract signatory authority requests?

Is this determination protestable? Of course any one with a stamp can protest, but is there something that I need to concern myself with before I determine to move on and go open market?

Any advice would be appreciated. V/r--EB

Absent direction from your Agency, I do not believe you need to use the Schedule. Read this case:

Matter of: Murray-Benjamin Electric Company, LP

File: B-298481

Date: September 7, 2006

Here are extracts:

Quote

Agency is not required to order supplies under non-mandatory Federal Supply Schedule (FSS) contract, and where it is in agency?s best interests--including need to establish ?best value? among potential offerors--agency may compete its requirements among commercial sources of supply instead of under non-mandatory FSS.

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Quote

MBE?s assertions are without merit. Under a mandatory FSS contract, an agency generally must order its requirements under that FSS if its minimum needs will be met by the products or services listed in the schedule. Adams Magnetic Prods., Inc., B-256041, May 3, 1994, 94-1 CPD ? 293 at 3. However, as conceded by MBE, its FSS contract is not mandatory; thus, an agency?s use of that contract is voluntary.4 There is nothing else in the FAR, or elsewhere, that compelled the agency here to meet its requirements under MBE?s FSS contract. FAR ? 8.404 simply provides guidance on the use of the FSS--e.g., restricting competition to the FSS and eliminating the need for additional determinations of fair and reasonable pricing; it does not require agencies to use the FSS. Similarly, while the list of required sources found in FAR ? 8.002 places non-mandatory FSS contracts above commercial sources in priority, it does not require an agency to order from the FSS. Further, although an agency?s placement of an FSS order indicates that the agency has concluded that the order represents the best value (FAR ? 8.404(d)), the regulation does not establish a presumption that all FSS contractors represent the best value, such that the agency would be required to purchase from an FSS contractor.

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baierle - With regard to the "write or document" part of your question reference FAR Part 10 and any further agency direction regarding Market Research. Generally documentation required for a procurement under the SAT would not be required (See FAR 10.001(a)(2) (ii) & (iii)). If the procurement is over the SAT then the extent of market research would be based on the factors related to the procurement (FAR 10.002 (). Referencing in the market research the information supplied by napolik's post may be enough or you may have to dig a little deeper on your market research to support not using GSA nonmandatory FSS. Note that beyond non-mandatory GSA-FSS there are Government supply sources that should be viewed and considered in market research as they carry a higher demand for mandatory use. Example is mandatory GSA-FSS as noted in the protest decision or Ability One (Committee for Purchase From People Who Are Blind or Severely Disabled) when the product or service is on the Procurement List.

NapoliK,

Excellent post and I appreciate the info. My specific question concerns the Department of Defense's position on the use of GSA schedules.

DFARS 208.404-1 and 208.404-2 previously provided guidance on mandatory/optional use, but these parts were deleted via DFARS Change Notice 20060321.

As such, does anyone know when/if use of GSA schedules is optional/mandatory for DoD (specifically Navy)?

There doesn't appear to be specific DoD policy, the Navy/Marine Corps Acquisition Regulation Supplement (NMCARS) is silent as is the Naval Supply Systems Command (NAVSUP).

Am I missing something, or is it in the Public Law 107-107 National Defense Authorization Act for Fiscal Year 2002 somewhere (referenced in the aforementioned DFARS Change Notice)?

Appreciate any thoughts/assistance,

NavyKGuy

I do not know of any current DOD policy, but it appears that at least one schedule is mandatory for DOD. According to the GSA website, http://www.gsa.gov/Portal/gsa/ep/contentVi...=9672&noc=T, Schedule 48 is mandatory for DOD for domestic express delivery services. The website provides points of contact. Aside from that, I do not know when schedules are mandatory on DOD. Perhaps, as in the past, the schedules say.

In 1987, DOD announced in the Federal Register that it had cut a deal with GSA under which mandatory schedules would no longer apply to DOD, with one exception, Federal Supply Group 68, chemicals and gases, and services for maintenance, repair, rehabilitation, and reclamation of personal property. See 52 FR 33411 (Sept. 3 1987). DFARS 208.404-70 was amended accordingly. Section 208.404-70 was removed from DFARS effective March 21, 2006, without explanation. See 71 FR 14106 (Mar. 21, 2006). As I recall, the deal was done because DOD had shown that it could get better prices elsewhere, and Congress was grumbling about the prices that DOD was paying under the mandatory schedules. However, my memory could be wrong.

Hi. I am a GSA novice and need some guidance: What do I need to write or document to determine not to go GSA?

I searched GSA Advantage and have not found service contractors I believe can do what we need in our Performance Work Statement. Similar, but not what we are seeking. We (I and the client) agree we would like to go open market commercial, best value on this procurement.

How much documentation do I need to move ahead and bypass GSA? Is it whatever the contract signatory authority requests?

Is this determination protestable? Of course any one with a stamp can protest, but is there something that I need to concern myself with before I determine to move on and go open market?

Any advice would be appreciated. V/r--EB

Bairele

Historically GSA employees are mandated to use GSA schedules and are requried to obtain a waiver from the Commissioner before going open market. However, the FAS Commissioner issued a memorandum dated July 31, 2006, titled: Pre-Award Reviews for Assisted Services and Special Order Program that removed the requirement to obtain a waiver; instead, the Contracting Officer now has to prepare a meomo for record that provides the background on efforts undertaken to locate existing and provides the rationale and decision to use open market, which should be consisted with the acquisition plan.

I believe Mr. Edwards reply was unnecessary, acerbic and arguably in violation of the Wifcon Terms of use, specifically Rule #1 and Rule #10. Error, this comment was in reference to the GSA BPA Competition Requirements discussion.

In any event, the holding in the above GAO case states:

Agency is not required to order supplies under non-mandatory Federal Supply Schedule (FSS) contract, and where it is in agency?s best interests--including need to establish ?best value? among potential offerors--agency may compete its requirements among commercial sources of supply instead of under non-mandatory FSS.

I recommend that contracting personnel do not follow this advisory GAO opinion because the holding contradicts the clear language set out in FAR 8.002, in the main, ?agencies shall satisfy requirements for supplies and services from or through the sources? in descending order of preference? (emphasis added).

Shall means the imperative.

There exists no ?agency?s best interests? exception in FAR 8.002. There are two exceptions ? except as required by 8.002 or provided by law.

Therefore, the agency is required to satisfy the requirements by conducting market research sequentially in accordance with the applicable priorities list and if the requirement can be met under GSA schedules, the agency is required to order the supplies/services off GSA schedule and may not simply choose to go open market.

Dear Physiocrat:

Do you mean the one in which I asked if there was anyone in the office who could answer the question? This one:

Isn't there anyone at your office who can answer this question? This is really very, very elementary. Isn't there anyone? Who runs your office? Do you have a boss? Can't the boss answer this question? Isn't there an old timer around who can answer?

Is that the one?

As for your recommendation to contracting personnel that they ignore the Murray-Benjamin Electric Co. decision, did you see Footnote 4 of the decision? That's the footnote in which GSA concurred with GAO that if the schedule is not mandatory an agency's use is voluntary?

Tell me: Have you read any of the Physiocrats?

Yes, I recommend that all contracting personnel ignore the Murray-Benjamin Electric Co. Decision as contrary to the plain language set forth in the regulation and based on your knowledge I would have expected that you would concur with my remarks, otherwise, there is no such thing as required sources and the regulation is ubiquitous.

Let us know your opinion on the matter, i.e. what is your definition of shall?

I did see Footnote 4 and GSA's concurrence, certainly not relevant as a legal authority or interpretation, as you are aware.

Yes, I enjoy reading the physiocrats and the history, libertarian at heart and I really enjoy reading the Federal Farmer among other Anti-Federalist writings.

Yes, I recommend that all contracting personnel ignore the Murray-Benjamin Electric Co. Decision as contrary to the plain language set forth in the regulation and based on your knowledge I would have expected that you would concur with my remarks, otherwise, there is no such thing as required sources and the regulation is ubiquitous.

Let us know your opinion on the matter, i.e. what is your definition of shall?

I did see Footnote 4 and GSA's concurrence, certainly not relevant as a legal authority or interpretation, as you are aware.

Yes, I enjoy reading the physiocrats and the history, libertarian at heart and I really enjoy reading the Federal Farmer among other Anti-Federalist writings.

Did you really mean "ubiquitous"?

I think the GAO decision is wrong, but I would not recommend that people ignore it. FAR 8.002 has no basis in statute. It was written before the modern era of GSA Federal Supply Contracts, before their massive extension to services, and it is bad policy. Not even the GSA supports it. The GAO decision provides a basis for getting around a bad policy, and I say that agencies should take advantage of it when it's to their advantage to do so.

In any case, I doubt that more than one or two percent of COs are aware of the Murray-Benjamin decision and take FAR at face value.

It could be argued that adherence to FAR 8.002 gives agencies a way to avoid the Competition in Contracting Act (CICA). GSA is not getting real price competition in the award of all those schedule contracts. See CONTRACT MANAGEMENT: Opportunities to Improve Pricing of GSA Multiple Award Schedules Contracts, GAO-05-229 (2005):

Between fiscal years 1992 and 2004, MAS program sales have increased more than eightfold, from $4.0 billion to about $32.5 billion. Despite this dramatic increase, GSA and GSA’s Inspector General have reported that MAS contract negotiators had not consistently negotiated for most favored customer pricing, in part because price negotiation tools were not being used effectively and management controls had been reduced.

Thus, it seems to me that by advocating adherence to a minor policy, FAR 8.002, you are, in effect, advocating avoidance of a major policy -- CICA. If an agency does not buy from a schedule contract, it must comply with CICA and FAR Part 15.

Who is your favorite Physiocrat?

physiocrat: any of a school of economists founded in 18th-century France and characterized chiefly by a belief that government policy should not interfere with the operation of natural economic laws and that land is the source of all wealth. It is generally regarded as the first scientific school of economics.

physiocrat. (2009). In Encyclop?dia Britannica. Retrieved October 13, 2009, from Encyclop?dia Britannica Online: http://www.britannica.com/EBchecked/topic/458805/physiocrat

Is there truly anyone who believes in that economic philosophy anymore? I do somewhat believe that government policy should not interfere with economic laws, but not totally.

I do see a role for government involvement in an economy as a sort of engine governor. The government can use economic policy to keep the economy from reving up too high in the boom times, storing up fiscal reserves for when the economy falters as it is today. Of course our government does not perform that way, so I am as pollyanna-ish as the physiocrats in that belief. If our government DID work that way, we could have a stimulus package that did not borrow from the future.

I apologize for derailing the thread, but I had to respond to the part that brought back my undergraduate economic history classes!

When I worked for the VA, they took 8.002 very seriously. I had to document in my Market Research memorandum what FSS research I did before I could purchase Open Market. It didn't have to be verbose, but it did have to detail what schedules I reviewed and then I had to make a "determination" that no FSS schedules applied before I could initiate an Open Market purchase.

To directly answer your question. If your agency views 8.002 as a literal policy, you probably just need to document your market research and then drive on.

FAR Case 2009-024, Priorities for the Use of Government Supply Sources, would modify FAR 8.002:

The SBA proposes amending FAR Part 8 to revise the order of priority as prescribed under the required sources of supplies and services. FAR 8.002 prescribes the apparent order of priority for agencies to follow when acquiring goods and services. The use of non-mandatory Federal Supply Schedules (FSS) is listed before the use of commercial sources and has led to misinterpretation by agencies when to use these two vehicles.

10/15/2009Acquisition Strategy Team met to discuss revised FAR text, FRN, and Team Report. Dean Koppel, SBA, will draft minority report (will provide proposed completion date ASAP). Agreed-to revision to FRN to be provided by Michael Jackson, GSA. Team approved additions to Team Report drafted by Bill Clark, GSA. Report due date is 10/21/09, for DAR Council discussion 11/04/09.

Vern - It will be nice when a re-write comes out. Since the current version specifically states, "... listed below in descending order of priority" many people interpret that as written... Even with the recent GAO decisions, my old boss interpreted it to be "Yes, you don't HAVE to buy from a non-mandatory source", but you have to consider it before you can go open market and justify why you're not using it." so the re-write needs to be done.

Vern - It will be nice when a re-write comes out. Since the current version specifically states, "... listed below in descending order of priority" many people interpret that as written... Even with the recent GAO decisions, my old boss interpreted it to be "Yes, you don't HAVE to buy from a non-mandatory source", but you have to consider it before you can go open market and justify why you're not using it." so the re-write needs to be done.

A final rule implementing FAR case 2009-024 has been issued. It is effective January 30, 2014:

https://www.federalregister.gov/articles/2013/12/31/2013-31149/federal-acquisition-regulation-prioritizing-sources-of-supplies-and-services-for-use-by-the.