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  • Question

    Can we do a Determination & Finding that "that no subcontracting possibilities exist" IAW FAR 19-705-2(c), after proposals are evaluated (LPTA) and without discussions? Or must we make the determination that no subcontracting possibilities exist before proposals are submitted and not request them with their offer. Bottom Line: We want to encourage those with subcontracting possibilities to submit a plan, but also, want to be able to do a determination that there are no subcontracting possibilities for those vendor's whose proposal does not have subcontracting possibilities (due to burden).


    Answer

    FAR 19.705-2 Determining the need for a subcontracting plan identifies specific actions for determining whether a proposed contract requires a subcontracting plan.  FAR 19.705-2 (a) and (b) provides the dollar threshold in 19.702(a)(1) or (2) and determination of any existing subcontracting possibilities.  You state that Market Research has identified competition and that there are potential vendors that could participate in this acquisition, meeting such thresholds.  Market Research has also identified possibilities that subcontracting opportunities exist.  These two statements would not support a Determination and Finding (D&F) “that no subcontracting possibilities exist”.  FAR 19.705-2(c) states the inclusion of the D&F, if it is determined that there are no subcontracting possibilities.
     
    The Market Research Report, Acquisition Plan and any other contract documentation, as appropriate, should address the limited competition and subcontracting possibilities.  Since you have identified competition; however, in accordance with FAR Part 6, if the overall acquisition is not going to be Full and Open Competition, then you must provide the supporting rationale for limiting the competition for the acquisition. 
     
    Revisiting FAR 19.702(a) (1) – which states that any negotiated acquisition exceeding $650,000 and that has subcontracting possibilities, shall require the apparently successful offeror to submit an acceptable subcontracting plan.  FAR 19.705-2(d) states the contracting officer may require the submission of subcontracting plans with initial offers, or at any other time prior to award, with great consideration of the integrity of the competitive process and the goal for maximum opportunities from small business concerns and the burden placed on the offerors.  When the contracting officer has determined that such plan will be included, FAR 19.708(b)(1) states to include the clause, 52.219-9 Small Business Subcontracting Plan, in the solicitation and contract.  
     
    Further, FAR 15.304(c)(5) states when the solicitation involves bundling that offers a significant opportunity for subcontracting, the contracting officer must include proposed small business subcontracting participation in the subcontracting plan as an evaluation factor.  DFARS 215.304 Evaluation Factors and Significant Subfactors, paragraph (c)(i) states that in acquisitions that require use of the clause FAR 52.219-9, other than those based on the lowest price technically acceptable (LPTA) source selection process, the extent of participation of small business in the performance of the contract shall be addressed in source selection.  Therefore, if LPTA source selection process is being used as the evaluation, use of the clause FAR 52.219-9 is not required.
     
    DFARS 215.304(c)(i)(B) however, states proposals addressing the extent of small business performance shall be separate from subcontracting plans submitted under the clause at FAR 52.219-9 and should be structured to allow for consideration of offers from small business. 
     
    FAR 19.708(a) states to insert the clause FAR 52.219-8, Utilization of Small Business Concerns, in solicitations and contracts when the contract amount is expect to exceed the simplified acquisition threshold.  This clause encourages the use of small business concerns with the opportunity to participate in contract performance.  The use of this clause does not require a subcontracting plan.  If the contract is awarded to a small business, FAR 19.702(b) does not require a subcontracting plan from small business concerns. 
     
    In accordance with the DoD Source Selection Procedures - 2.3.1.2.3. Small Business:
     
    Where required by FAR 15.304(c), FAR 19.1202, and DFARS 215.304(c)(i), the Source Selection Team shall evaluate the extent of participation of small business concerns. This may be accomplished by one of the following:
     
    • Establishing a separate Small Business Participation evaluation factor,
    • Establishing a Small Business Participation subfactor under the technical
    factor, or
    • Considering Small Business Participation within the evaluation of one of
    the technical subfactors
     

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