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  • Question

    Can ANC sole source awards (or any other type of Section 8(a) contracts) be issued for work to be performed outside the boundaries of the CONUS? In the instant case, the work is to be performed on Kwajalein Atoll, part of the Republic of the Marshall Islands. I cannot find any provision to allow use of this type of small business program exclusion from normal competition on work outside CONUS.


    Answer

    According to FAR 6.302-4 International Agreement, full and open competition need not be provided for when precluded by the terms of an international agreement or a treaty between the United and States and a foreign government…  FAR 6.302-4(b) (2) further states: "This authority may be used in circumstances such as.. when a contemplated acquisition is for services to be performed in the sovereign territory of another country and the terms of a treaty or agreement specify or limit the sources to be solicited.  However, the Compact of Free Association, the pact between the Republic of the Marshall Islands and the United States granting it the right to use defense sites in exchange for financial assistance and migration rights, is silent on this matter. "

    Since FAR Part 19 (except for Subpart 19.6) applies only in the United States or its outlying areas,  and the Compact of Free Association does not specify or limit the sources to be solicited, it does not appear that an 8(a) sole source procurement is appropriate for the work outside the boundaries of CONUS.


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