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  • Question

    Does the bundling reporting process apply to FMS acquisitions and if so is there some sort of exemption when doing a UCA to meet the schedule provided by the foreign country?


    Answer

    Since we do not have all of the facts pertaining to your requirement, solicitation/contract or contractors, the following answer is based solely on the background and question provided.  As we do not have access to the particulars that apply to your situation, we highly advise you consult the Contracting Officer and possibly the Legal Office.
     
    You question contains two separate issues.  One concerns the bundling reporting process application to FMS acquisitions.  The other concerns an exemption when doing a UCA to meet the schedule provided by a foreign county.
     
    Per the FAR 2.101, “bundling” is the consolidation of two or more procurement requirements for goods or services previously provided or performed under separate smaller contracts into a solicitation of offers for a single contract that is likely to be unsuitable for award to a small business concern due to (1) the diversity, size, or specialized nature of the elements of the performance specified; (2) the aggregate dollar value of the anticipated award; (3) the geographical dispersion of the contract performance sites; or (4) any combination of the preceding three factors.  Per FAR 10.001(a)(3)(vi), agencies must use the results of market research to determine whether bundling is necessary and justified (see FAR 7.107)
     
    Concerning your question and dealing with the first issue on reporting bundling, we are unsure if you mean reporting on an Individual Contract Action Report or notification requirements to SBA or publishing notification requirements.  FAR 19.202 requires contracting officers to notify SBA when a bundling has been identified.  In accordance with FAR 19.202-1(e)(1)(iii), when applicable, the contracting officer shall provide a copy of the proposed acquisition package to the SBA procurement center representative at least 30 days prior to the issuance of the solicitation if the proposed acquisition is for a bundled requirement.  Once notified, an SBA representative performs a six part bundling analysis to ensure the bundling is warranted and includes reasonable participation for small businesses. An SBA representative who determines that a bundling is not warranted may appeal to the agency’s head if the CO rejects their recommendation to use an alternative contracting method that would increase small business contracting opportunities. 
     
    Your background to your question also states that “As we are progressing to issuing the UCA, we have discovered that there are a large amount of parts that have (been) procured by a small business.”  This may imply that there are incumbent small business concerns that were involved in previous contract actions that are going to be bundled under your requirement.  FAR 10.001(c)(2)(i) and (ii) provides for a mandatory 30-day notice requirement to incumbent small business concerns.  Further, the contracting officer shall provide all information relative to the justification of contracting bundling, including the acquisition plan or strategy, and if the acquisition involves substantial bundling, the information identified in FAR 7.107(e).  When the acquisition involves substantial bundling, the contracting officer shall also provide the same information to the agency Office of Small and Disadvantaged Business Utilization.
     
    This does not imply that you cannot bundle the requirement but you must provide proper notifications as well as documentation why it is necessary and justified as well as documentation if the contracting officer rejects the SBA representative’s recommendations made via notification in accordance with 19.505.
     
    In addition to the notification requirements at FAR 10.001(c)(2)(i) and (ii), DFARS 205.205-70, requires that when a proposed acquisition is funded entirely using DoD funds and potentially involved bundling, the contracting officer shall, at least 30 days prior to the release of a solicitation or 30 days prior to placing an order without a solicitation, publish in FedBizOpps.gov (or any successor site) a notification of the intent to bundle the requirement.  In addition, if the agency has determined that measurably substantial benefits are expected to be derived as a result of bundling, the notification shall include a brief description of those benefits (see FAR 7.107).  This publicizing requirement may not apply to your requirement because you mentioned in your background that your acquisition is fully funded by the foreign country via the LOA.  Once again publishing a notification of intent to bundle the requirement in FedBizOpps (or successor site) and the notification requirements at FAR 10.001(c)(2)(i) and (ii) are two separate notifications.  Further publishing a notification of intent to bundle the requirement and providing a copy of the proposed acquisition package to the SBA representative for a proposed acquisition for a bundled requirement are also two separate actions.
     
    Your question’s second issue deals with an exemption when doing a UCA to meet the schedule provided by a foreign county.  Bundling and providing for full and open competition or limiting competition are also two separate issues.  You can bundle a contract action yet provide for full and open competition.  On the other hand, you can bundle a contract action and provide for circumstances permitting other than full and open competition.  The background of your question states that your requirement is fully funded by the foreign country via LOA.  In accordance with DFARS 225.7304, FMS customers may request that a defense article or service be obtained from a particular contractor and FAR 6.302-4 International Agreement provides authority to contract without full and open competition only if the LOA or other written direction sufficiently fulfills the requirements of FAR Subpart 6.3.  If these conditions exist, this also applies to an FMS customer requesting a subcontract be placed with a particular firm.
     
    Even if your requirement is going to be solicited full and open competition or other than full and open competition, the notification requirements under FAR 19.202-1(e)(1)(iii), FAR 10.001(c)(2)(i) and (ii) and FAR 19.202-1(e)(1)(iii) still apply whereas the notification requirement under DFARS 205.205-70 may or may not apply depending on the source of funding and if the LOA or other written direction sufficiently fulfills the requirements of FAR Subpart 6.3.
     
    Finally, your also tied the issue of a UCA and foreign military sales.  In accordance with DFARS 217.7402, Undefinitized Contract Actions (UCAs) for foreign military sales are not subject to the prescribed policies and procedures implementing 10 U.S.C. 2326  Undefinitized Contractual Actions: Restrictions under DFARS Subpart 217.74.  Further, the background to your question mentions initial stand up of air bases for the arrival of new aircraft.  This may imply support for a contingency operation or humanitarian or peacekeeping operation.  If this is the case than in accordance with DFARS 217.7404-5, the head of an agency may also waive the limitations in DFARS 217.7404-2, DFARS 217.7404-3, and DFARS 217.7404-4 to support these operations.
     
     

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