Sources Sought - Justification to be Competitive vs Sole Source

Will the "opportunity" be synopsized?

Based on the information you provided, it sounds like the Government has been supporting their decision to sole source using the statutory authority codified at 41 U.S.C.3304(a)(1). To do that, the Government must document and post their justification and approval (J&A) as follows:

6.302-1(d)  Limitations.  (1) Contracts awarded using this authority shall be supported by the written justifications and approvals described in  6.303 and  6.304.

(2) For contracts awarded using this authority, the notices required by  5.201 shall have been published and any bids, proposals, quotations, or capability statements must have been considered.

An interested party could protest the Government’s award decision, but said interested party would need to fully support their ability to meet the Government’s requirements. Further, an interested party may need to demonstrate that the Government’s requirements are either too prescriptive or tailored to Company A’s specific product and/or service. No easy feat. 

In B-205273 APR 5, 1982, GAO found that the protester did not support their assertion that it could fulfill contract requirements and, consequently, no basis existed for questioning the agency's conclusion that only the awardee could satisfactorily perform the contract. 

In short, the Government has to support their decision to sole source but any interested party would need to demonstrate their ability  meet the requirements. GAO tends to defer to the agency’s judgement on how best to meet their mission. So the “burden of proof” tends to be higher for interested parties. 

I would focus on the specific schedule and performance aspects of the Government’s requirements. Can Company B deliver the required product and service within the specified timeframe? Can Company B’s product or service meet the Government’s requirements in terms of form, function, and capabilities? Would opening the requirement up for competition impede the Government’s mission? Would integrating Company B’s product or service result in unreasonable costs in terms of time and dollars? Are there any proprietary data, processes, etc at play?

Company B should make their case to the Government in this way. Should the Government proceed accordingly, Company B may then have grounds to protest the decision. Company B just needs to make sure their capabilities can meet or exceed the Government’s requirements.

I hope this helps. Be well.

Retreadfed said:

Will the "opportunity" be synopsized?

What exactly do you mean by this?

M.Capovilla said:

Based on the information you provided, it sounds like the Government has been supporting their decision to sole source using the statutory authority codified at 41 U.S.C.3304(a)(1). To do that, the Government must document and post their justification and approval (J&A) as follows:

6.302-1(d)  Limitations.  (1) Contracts awarded using this authority shall be supported by the written justifications and approvals described in  6.303 and  6.304.

(2) For contracts awarded using this authority, the notices required by  5.201 shall have been published and any bids, proposals, quotations, or capability statements must have been considered.

An interested party could protest the Government’s award decision, but said interested party would need to fully support their ability to meet the Government’s requirements. Further, an interested party may need to demonstrate that the Government’s requirements are either too prescriptive or tailored to Company A’s specific product and/or service. No easy feat. 

In B-205273 APR 5, 1982, GAO found that the protester did not support their assertion that it could fulfill contract requirements and, consequently, no basis existed for questioning the agency's conclusion that only the awardee could satisfactorily perform the contract. 

In short, the Government has to support their decision to sole source but any interested party would need to demonstrate their ability  meet the requirements. GAO tends to defer to the agency’s judgement on how best to meet their mission. So the “burden of proof” tends to be higher for interested parties. 

I would focus on the specific schedule and performance aspects of the Government’s requirements. Can Company B deliver the required product and service within the specified timeframe? Can Company B’s product or service meet the Government’s requirements in terms of form, function, and capabilities? Would opening the requirement up for competition impede the Government’s mission? Would integrating Company B’s product or service result in unreasonable costs in terms of time and dollars? Are there any proprietary data, processes, etc at play?

Company B should make their case to the Government in this way. Should the Government proceed accordingly, Company B may then have grounds to protest the decision. Company B just needs to make sure their capabilities can meet or exceed the Government’s requirements.

I hope this helps. Be well.

Government confirms they own the output and the data from Company A, Company B feels extremely confident they can perform the work based on industry recognition and past performance.  No IP is at stake.  Government will make statements such as "Company B does not have access to the data to perform the task", however, by stating the Government owns the data, it's reasonable to assume that the data would be furnished by the Government and any company, upon successful award of the program, would have access to the data.

Basically, the entire process IMO is extremely subjective.  It's always to the best interest of the Government to compete work, but if they are trying to avoid competition and opt to sole source for convenience, how can that be proven?  As a buyer, you can poke holes in anything to place doubt to compete...

M.Capovilla said:

In B-205273 APR 5, 1982, GAO found that the protester did not support their assertion that it could fulfill contract requirements and, consequently, no basis existed for questioning the agency's conclusion that only the awardee could satisfactorily perform the contract.

That decision was issued before the enactment of the Competition in Contracting Act of 1984 (CICA), which is the basis for the rules in FAR Part 6. You shouldn't cite a pre-CICA GAO decision in response to what is now a CICA question and also subject to COFC jurisdiction.

For a current decision, see Ho-olaulima Government Solutions, LLC, B-421958, Dec. 9, 2023:

Quote

A contracting agency has the discretion to determine its needs and the best method to accommodate them. RCR Props., G.P., B–414590, July 21, 2017, 2017 CPD ¶231 at 5; General Electrodynamics Corp., B–298698, B–298698.2, Nov. 27, 2006, 2006 CPD ¶180 at 3. Section 6.302–1 of the FAR authorizes an agency to make a sole-source award if it reasonably determines that there is only one responsible source capable of meeting its needs. In this context, the agency must give meaningful opportunity to prospective alternative sources to demonstrate their ability to provide what the agency seeks to procure. See M.D. Thompson Consulting, LLC; PMTech, Inc., B–297616, B–297616.2, Feb. 14, 2006, 2006 CPD ¶41 at 4. A protester's disagreement with the agency's judgment concerning the agency's needs and how to best accommodate them, without more, does not show that the agency's judgment is unreasonable. See USA Fabrics, Inc., B–295737, B–295737.2, Apr. 19, 2005, 2005 CPD ¶82 at 5. Finally, only an “interested party” may file a protest. 4 C.F.R. 21.0(a)(1). That is, a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. Bid Protest Regulations, 4 C.F.R. 21.0(a)(1). A protester does not qualify as an interested party if the protester is not eligible for award. See, e.g., RELM Wireless Corp., B–405358, Oct. 7, 2011, 2011 CPD ¶211 at 2–3.

This was the OP's question: "Any thoughts on how to navigate this?"

"Navigate"???

The OP should rethink its problem and ask a respectable question.

What, specifically, do they want to know?

Vern Edwards said:

That decision was issued before the enactment of the Competition in Contracting Act of 1984 (CICA), which is the basis for the rules in FAR Part 6. You shouldn't cite a pre-CICA GAO decision in response to what is now a CICA question and also subject to COFC jurisdiction.

For a current decision, see Ho-olaulima Government Solutions, LLC, B-421958, Dec. 9, 2023:

This was the OP's question" "Any thoughts on how to navigate this?"

"Navigate"???

The OP should rethink its problem and ask a respectable question.

What, specifically, do they want to know?

Let me rephrase my question vs using the word "navigate".

Is there anything specific I can cite, or state, to the Government KO, that will encourage them to compete the effort, vs sole source, aside from the responses we continue to give in 1 on 1 Q&A sessions where they continue to ask further vetting questions.

CHILINVLN said:

Is there anything specific I can cite, or state, to the Government KO, that will encourage them to compete the effort, vs sole source, aside from the responses we continue to give in 1 on 1 Q&A sessions where they continue to ask further vetting questions.

Yes.

You can send a letter to the CO providing factual evidence that you can perform the service in question and want to compete. Don't just assert! Provide facts! Don't make a fool of yourself by sending unsupported assertions of your ability. Don't criticize. Put yourself across as a serious businessperson, not just a pest. Provide a list of your other customers with points of contact.

Send a copy of your letter to the head of the contracting office where the CO works. Send a copy to your congressional representatives, and make sure you indicate that you have done so on the letter to the CO and to the head of the contracting office.

Make sure to obtain proof of delivery. Follow up within 48 hours of delivery. Document all communications.

None of that will guarantee anything.

I agree with Vern's suggestion on a letter with the facts and I would add you should send a copy of the letter to the advocate for competition for the procuring activity (see FAR Subpart 6.5 - Advocates for Competition).

Vern Edwards said:

That decision was issued before the enactment of the Competition in Contracting Act of 1984 (CICA), which is the basis for the rules in FAR Part 6. You shouldn't cite a pre-CICA GAO decision in response to what is now a CICA question and also subject to COFC jurisdiction.

My apologies Mr. Edwards, I appreciate the feedback very much.

CHILINVLN said:

What exactly do you mean by this?

You used the term "opportunity" so I will let you define what you meant by that.  However, I take it to be some sort of solicitation. If that is correct, my question was will the solicitation be synopsized in accordance with FAR 5.2?