Question re. retroactive contract dating vs Unauthorized commitment, and a small business set aside for 1 vendor

NewbieFed said:

I have two questions

My thoughts that might generate others to respond.

NewbieFed said:

Can contracts be retroactively dated in the past to cover the lapsed period of time when vendor continued to provide service without an agreement if the vendor is ok with it? (eg. one agreement covering the new period + previous lapsed period)

Or is the only option to pay the vendor for the service during the lapsed timeperiod is to get our PM to submit an unauthorized commitment request?

From my point of view, and based on the information provided,  if it was only the PM that was involved and no interaction with the CO by the PM on the matter  I think the unauthorized commitment it the route.  The basic tenants of FAR part 1.6 is my reference. 

NewbieFed said:

I understand the rule is that acquisitions under the SAT is " automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery."

Is dissolving the small business set aside an optional ability of the CO...or is it mandatory if the CS/CO finds out there is only 1 small business? Can we keep a small business set aside if we know there is only 1 single source source small business vendor that can provide a unique product?

Optional. 

A CO might continue on the setaside approach even in light of knowing of only one small business vendor (via substantiated market research?) exists.  Why?   Just in case there is the outside possibility of another small business firm that actually can provide the unique product.  Not just an exercise but just one more way of substantiating market research especially if there is need for the product in the future.   Of course, there is another route and that is "Sources Sought" or even an RFI that seeks any and all firms capabilities.   One might argue that it seems like a lot of work but worth it to either uncover additional small busienss vendors of the product that are small businesses or further substantiate your market research.   In the end if you are confident in your market research then then bringing in large businesses (full and open) in to competition could be justified.   

In providing my thoughts the unknown for me is that you have not said what your market research has found about the availability of the unique product in the marketplace is as a whole.   Are there lots of large businesses that have it and only one small business?

C Culham said:

My thoughts that might generate others to respond.

From my point of view, and based on the information provided,  if it was only the PM that was involved and no interaction with the CO by the PM on the matter  I think the unauthorized commitment it the route.  The basic tenants of FAR part 1.6 is my reference. 

Optional. 

A CO might continue on the setaside approach even in light of knowing of only one small business vendor (via substantiated market research?) exists.  Why?   Just in case there is the outside possibility of another small business firm that actually can provide the unique product.  Not just an exercise but just one more way of substantiating market research especially if there is need for the product in the future.   Of course, there is another route and that is "Sources Sought" or even an RFI that seeks any and all firms capabilities.   One might argue that it seems like a lot of work but worth it to either uncover additional small busienss vendors of the product that are small businesses or further substantiate your market research.   In the end if you are confident in your market research then then bringing in large businesses (full and open) in to competition could be justified.   

In providing my thoughts the unknown for me is that you have not said what your market research has found about the availability of the unique product in the marketplace is as a whole.   Are there lots of large businesses that have it and only one small business?

Thank you for your response. Yeh, the PM only sent in the initial purchase request through the purchasing system to the CS/CO team (with incorrect information) and otherwise did not interact with the CS/CO Team because the PM basically went on extended leave for half a year immediately after sending the request.

In regards to your question for #2, the requirement is essentially a sole source requirement where there is only 1 business (a small business) that can provide the items/services. We needed to sole source it because they provided similar item/services in the past and we need the same exact thing they created to ensure consistency, compatibility, etc.

In this case (but there are other similar cases):

1. It was a a software licenses from a small business source that we got before, are currently using in our systems, and require more licenses.

2. The manufacturer had a sole source distribution agreement with them so there is only 1 distributor in the USA.

I’m not sure I understand.  Let me phrase the situation differently and you can tell me if that’s correct.

The subject item is a software license from a small business.  The vendor doesn’t really do anything other that provide the software through the license agreement.  There was a lapse in coverage because the PM was late in sending a renewal requisition which initially also had some incorrect information.  So the question is whether submission of a tardy requisition for continued use of software constitutes an unauthorized commitment?