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    Does the government have an authorized statute in the NDAA or similar regulation that forces or encourages the government to take advantage of partnership agreements with local city governments (as long as its being done at a fair and reasonable price)? Is FAR 6.302-5 the correct exemption to be utilizing or would FAR 6.302-1 be more appropriate?


    Answer

    This response is based on the information provided.  We suggest you discuss with your comptroller/contracting officer and/or legal department as appropriate.  The Army may have additional guidance and could possibly be more restrictive so check with your command FM/comptroller for service guidance.
     
    "FAR 6.302-5 -- Authorized or Required by Statute.
    ...
      (2) Full and open competition need not be provided for when
      (i) A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source, or
      (ii) The agency’s need is for a brand name commercial item for authorized resale.
    (b) Application. This authority may be used when statutes, such as the following, expressly authorize or require that acquisition be made from a specified source or through another agency:
    ...
    (c) Limitations.
      (1) This authority shall not be used when a provision of law requires an agency to award a new contract to a specified non-Federal Government entity unless the provision of law specifically --
      (i) Identifies the entity involved;
      (ii) Refers to 10 U.S.C. 2304(k) for armed services acquisitions or section 41 U.S.C. 3105 for civilian agency acquisitions; and
      (iii) States that award to that entity shall be made in contravention of the merit-based selection procedures in 10 U.S.C. 2304(k) or 41 U.S.C. 3105, as appropriate. However, this limitation does not apply --
      (A) When the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract; or
      (B) To any contract requiring the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an executive agency and to report on those matters to the Congress or any agency of the Federal Government.
      (2) Contracts awarded using this authority shall be supported by the written justifications and approvals described in 6.303 and 6.304, except for--
      (i) Contracts awarded under (a)(2)(ii) or (b)(2) of this subsection;
      (ii) Contracts awarded under (a)(2)(i) of this subsection when the statute expressly requires that the procurement be made from a specified source. (Justification and approval requirements apply when the statute authorizes, but does not require, that the procurement be made from a specified source); or
      (iii) Contracts less than or equal to $22 million awarded under (b)(4) of this subsection.
      (3) The authority in (a)(2)(ii) of this subsection may be used only for purchases of brand-name commercial items for resale through commissaries or other similar facilities. Ordinarily, these purchases will involve articles desired or preferred by customers of the selling activities (but see 6.301(d))." 
     
    DFARS does not address this issue. 
     
    Your scenario does not appear to meet the requirements of FAR 6.302-5 as justification.  If a partnership agreement that has been reviewed as legally sufficient has been developed and implemented, it should be adequate for the follow-on work, but should be again reviewed for applicability to the new acquisition.  The effect of this arrangement is to have the city contract for refuse and recycle pick-up on the Air Force's behalf.  It is not statutory as the vast majority of refuse contracts are awarded in the open marketplace.  
     
    FAR 6.302-1 would be an appropriate basis, if in fact there are no other refuse and recycle pick-up companies willing to compete for this requirement.  Well documented market research is needed to support this exception.

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