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    My question is - Is a Acquisition Strategy required under FMS - if it is not can you provide the reference and if it is - why would it not be required under the RSCA but still required under AS and AP's. The RSCA is the Approval to pursue a service contract. I would think that these requirements (RSCA, AS and AP) are very related in their purpose. Thank you.


    Answer

    Your logic makes sense, however, I caution a logical jump from a definition on a form vice the definition and requirements of the FAR and, in this case, the DFARS. I would propose that you start your search with the DFARS, which stated: 

    225.7301  General.  (a)  The U.S. Government sells defense articles and services to foreign governments or international organizations through FMS agreements. The agreement is documented in a Letter of Offer and Acceptance (LOA) (see the Defense Security Cooperation Agency (DSCA) Security Assistance Management Manual (DSCA 5105.38-M)).  (b)  Conduct FMS acquisitions under the same acquisition and contract management procedures used for other defense acquisitions.  (c)  Follow the additional procedures at PGI 225.7301(c) (DFARS/PGI view)for preparation of solicitations and contracts that include FMS requirements.  (d)  See 229.170 for policy on contracts financed under U.S. assistance programs that involve payment of foreign country value added taxes or customs duties.

    Generally, the types of contracts that have been used for FMS are firmfixed-price contracts—where the government pays the contractor a set amount regardless of the contractor’s costs—and fixed-price-incentive contracts—where the government and contractor share in cost savings and risks and the contractor’s ability to earn a profit is tied to performance.

    Acquisition is the third of a five step process in the FMS arena. According to GAO (https://www.gao.gov/assets/690/687543.pdf), "in this phase, the responsible military departments fulfill the FMS request from existing supply or procure defense items and services. Once the letter of offer and acceptance has been signed and funding has been received, DOD contracting officers may solicit requests for proposals from industry and negotiate prices, as necessary, to award contracts. During this phase contracting officers make a determination about the best acquisition strategy, including the appropriate contracting vehicle to fulfill the FMS requirement, as articulated in the agreement. For example, the contracting officer may determine the best approach is to combine FMS and U.S. requirements on a single contract or to place them on separate contracts depending on which approach is deemed to be more cost effective and best meets production schedules that align with the foreign customer’s timeframes."

    Again, the stress is on documenting the file in the same manner as other acquisitions. Unless your organization has internal rules that differ, the FAR procedures for "the same acquisition and contract management procedures used for other defense acquisition" is FAR Part 7 Acquisition Planning. Whether or not you use the format outlined in the FAR for your FMS procurement, you will want to document your strategy and that documentation should become a part of your official FMS contract file. A guide for FMS for JST contracts is located at https://www.dau.mil/guidebooks/Shared%20Documents/JST-05%20FMS.pdf. 

    Additionally, the FY17 NDAA  added, undefinitized contractual actions for FMS acquisitions will now be subject to the same definitization timeframe and obligation requirements as other procurements.

    As always, I strongly encourage you to consult with your policy department and legal to ensure you are following your organizations proper procedures as many organizations have internal guides and templates that may assist in preparing your documentation. 

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