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    If these parts are assembled into a "system", can this be considered for Sole Source based on price and very technically easy to use? Thank you.


    Answer

    The central focus of this question relates to the intended sole source determination for procurement of a video server for broadcasting purposes given the targeted vendor has created a unique system to meet the needs.
     
    Before delving into the issue of whether there is a justifiable basis for such sole source determination, the rudimentary aspects of FAR Subpart 6.1 must be reviewed.

    Part 6 of the FAR references 10 U.S.C. 2304 as requiring that, with certain limited exceptions, contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts. In other words, contracting without providing full and open competition, or full and open competition after exclusion of sources (see FAR Subpart 6.2), is a violation of statute.
     
    The “certain limited exceptions” that permit contracting without providing for full and open competition is set forth at FAR Subpart 6.3.  Of the seven (7) exceptions set forth at FAR 6.302, the only exceptions that could justify not using full and open competition under the given facts are FAR 6.302-1 and FAR 6.302-7; “Only one responsible source. . . will satisfy agency requirements”, and “Public Interest”, respectively. 

    The exception at
    FAR 6.302-1 states that full and open competition need not be provided for when the supplies or services are available from “only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements.” [Italics added]
     
    The written justification that is required at FAR 6.302-1(d) (1) should address both of the foregoing elements. Further, the supporting data, which forms the basis for the justification, must be certified as complete and accurate by the technical or requirements personnel (FAR 6.303-2(b)). 
     
    Reflecting back on the question as submitted, the premise of “best value” predicated on cost, ease of use, and capability cannot be the basis for using the exception to full and open competition without the detailed information that only one or a limited number of vendors are available, and that only they can meet the requirements.  In other words, while you may have a vendor that has cobbled together hardware and software which has been deemed to be the “best value” to the Government, the driving issue will be the requirements and the substantiating record that only this vendor can meet them. 
     
    If the decision has been made and justified to proceed under the exceptions, it is best to remember that the policy at FAR 6.301 mandates the contracting officer “shall solicit offers from as many potential sources as is practicable under the circumstances”. This is wise counsel to be followed.  It would give the Contracting Officer the data needed for the J&A, or to argue to the contrary. It would also reduce the likelihood of protest that frequently arises when requirements are developed with an intended vendor in mind.  Further, as is often the case, the Government may actually find a better solution that is readily available in the commercial market.
     
    As to the exception of “Public Interest” (FAR 6.302-7), this is a harder one to justify.  This exception may be used “when none of the other authorities in 6.302 apply” and when the agency head can support the use thereof. Eventually, Congress must also be notified 30 days before award of the contract.  Hence, the justification will have been vetted extensively.
     
    Having dissected FAR Part 6 above, it should be noted that even if the acquisition is conducted under simplified acquisition procedures exceeding the threshold with an eye toward the provision that “acquisitions conducted under simplified acquisition procedures are exempt from the requirements of Part 6” (FAR 13.501 (a)(1) as referenced by FAR 13.106-1(b)(2)) , a careful reading still dictates the Contracting Officer provide the justification and approvals, as well as make publicly available the justification required by FAR 6.305(a). 
     
     

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