Posting, Synopsis and Advertisement

Kathleen:

Presuming that you are overseas, then look at FAR 5.202(a)(12).

Linda,

Yes, I know FAR 5 very well and (12) is an exception.

My question may be going a bit into FAR 6, as well.

What gives us, the overseas KO, the authority to only solicit local sources - which is restricting competition -?

FAR 6.302-4 -- International Agreement? When we use 6.302-4 it must be supported with an agreement between the countries. What if it is not supported, I can not see where we just decide to use local sources?

Kathleen

(12) The proposed contract action is by a Defense agency and the proposed contract action will be made and performed outside the United States and its outlying areas, and only local sources will be solicited. This exception does not apply to proposed contract actions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see Subpart 25.4);

Are you using simplified acquisition procedures? If so, see FAR 13.104(.

Are you using simplified acquisition procedures? If so, see FAR 13.104(.

Mr. Edwards,

Thank you for the reference but we do not use SAP.

These are contruction contracts, for military installations overseas.

Ranging in value, IDIQ, from US$15 - US$30M for a period not to exceed three (3) years, base yr with two (2) option yrs

and contracts for discreet projects not in excess of US$500K.

We have international agreements with some of the countries with regard to restrictions.

Others we do not.

What gives us, the overseas KO, the authority to only solicit local sources - which is restricting competition -?

Regardless of who you solicit, are all responsible offerors permitted to compete?

You have a choice to solicit only local sources or not. If you solicit only local, there's no need to publicize. Apart from international agreement, there might be good reasons to only solicit local sources - needs for permits, licenses, setting up local offices, etc., that either can't feasibily be done or the delays are unaccpetable. Whatever the reasons, you need to decide if it's feasible for other than local sources to bid. If there aren't then you publicize.

When I was with the Army Corps of Engineers overseas (okay, it was 20 years ago), we had to advertise full and open, except where we had country to country agreements and where the host nation funded the FMS sales case. Then, I think we only had a preference for local firms, not reserved exclusively for locals.

When I was in Europe, it was our money and there was no exclusion that I was aware of.

You have a choice to solicit only local sources or not. If you solicit only local, there's no need to publicize. Apart from international agreement, there might be good reasons to only solicit local sources - needs for permits, licenses, setting up local offices, etc., that either can't feasibily be done or the delays are unaccpetable. Whatever the reasons, you need to decide if it's feasible for other than local sources to bid. If there aren't then you publicize.

You say I have a choice and a few people here are also of that belief but I do not read the FAR, DFARS, AFARS or EFARS to say that because I am overseas, I only need to use local sources.

In FAR 5.201, if I keep to local sources, I do not have to synopsize or advertise and apparently not even post.

The rest of the FAR emphasizes the need to ensure full and open competition, ensuring that as Don said all responsible offerors are permitted to compete.

The reasons as you state are valid for soliciting only local sources but again I am looking for something that tells me that because I am overseas, I only need to solicit local sources. I see nothing that in the FAR that does this, again it does say when I am only going local I need not post, synopsize or advertize.

There is a void. We use FEDBIZOPPS for almost everything, even when we have an International Agreement (here we just state the restriction the contractor must follow) but when we use local, there is nothing.

When I was with the Army Corps of Engineers overseas (okay, it was 20 years ago), we had to advertise full and open, except where we had country to country agreements and where the host nation funded the FMS sales case. Then, I think we only had a preference for local firms, not reserved exclusively for locals.

When I was in Europe, it was our money and there was no exclusion that I was aware of.

Where were you located?

I do not think the competition requirement has become more relaxed since then

I have searched the "books" - chapters 5, 6, 15, 25, Ad nausea.

Nothing that says overseas equates to local sources only.

Kathleen,

Have you asked your manager under what authority you are soliciting only local sources? Your attorney-advisor? What do they say?

Kathleen,

Have you asked your manager under what authority you are soliciting only local sources? Your attorney-advisor? What do they say?

My manager states that everything will be posted, synopsized and/or advertised using FEDBIZOPPS.

When a restriction applies, we state this retriction and the authority in the announcement.

We have been doing this the three and one half years I have been here and in the other overseas locations I have worked.

My attorney-advisor is of the belief that we can go to local sources and not post, synoposize or advertise based on FAR 5.

If we post, synopsize or advertise, then we need an authority to restrict competition FAR 6; if we do not post, synopsize or advertise, then we can go only to local source. They are reading it as an exception.

Kathleen,

Do you mean that they take FAR 5.202(a)(12) to be an exception permitting solicitation of only local sources?

I don't believe FAR 5.202(a)(12) creates the authority to limit the solicitation for a requirement to local sources; it merely relieves the KO of the obligation to synopsize in those circumstances. Ms. Kern asks a valid question; if the KO in those circumstances makes a determination to limit to local sources, what is the authority to do so? I only found two GAO cases involving FAR 5-202(a)(12), and neither addresses this particular issue. One got close. Here are a couple of snippets out of Matter of: American Kleaner Mfg. Co., Inc., B-243901.2; B-243901.3 (1991):

The solicitation, as issued, required the delivery of the 1,000 pressure washers to the Port of Damman Railyard, Saudi Arabia. The RFP also provided for training in Saudi Arabia for Army personnel regarding the use and maintenance of the washers. Based upon the Army's determination that adequate competition existed in the area, the agency concluded that only local sources would be solicited for the requirement. A copy of the RFP was posted for public viewing at the issuing office in Saudi Arabia . . . The record shows that at the time the Army initiated the procurement in the war zone in Saudi Arabia, the contracting officer expected the competition to be limited to firms in that region and planned to solicit only local sources. Although delivery of the washers under the contract ultimately took place at Dover AFB (pursuant to the alternate delivery terms introduced for the first time in the Army's request for BAFOs), there is nothing in the record which shows that at the time the RFP was issued in Saudi Arabia the agency expected contract award and performance to take place anywhere other than in Saudi Arabia or that offers from other than local sources would be received. Thus, pursuant to the publication exception at FAR ? 5.202(a)(12), we have no reason to question the propriety of the agency's determination not to advertise the proposed contract action in the CBD.

Unfortunately, the protestor did not raise the specific issue of the KO's authority to make the initial determination to limit to local sources.

The requirement for full and open competition is satisfied if all responsible prospective sources are offered the opportunity to compete for a requirement (see FAR 2.101 - definition of "full and open competition"). It is possible that local sources, in an OCONUS setting, could be the only sources that are responsible under FAR Subpart 9.1 (for example, the host government's permitting or licensing requirements may make contemplating the use of anybody other than a local a moot point). But if the universe of responsible prospective sources includes non-locals, I am of the opinion that a decision to limit to local sources is an exception to full and open competition that must be justified under 10 USC 2304 and FAR Part 6. In either case, I would expect the contract file to be adequately documented to support the decision to stick with local sources.

Where were you located?

I do not think the competition requirement has become more relaxed since then

I have searched the "books" - chapters 5, 6, 15, 25, Ad nausea.

Nothing that says overseas equates to local sources only.

I was in Riyadh, Saudi Arabia from 83-87, Kaiserslautern, Germany from 87-89 and in Dhahran, Saudi Arabia (actually all over the Arabian Penninsula) during the Gulf War in 90-91. We never restricted sources to locals, although we gave preference to or required a Saudi partner in the late 80's, near the end of the Saudi program. My memory fails me concerning the specifics, but it was near the end, when we were specifically trying to develop the Saudi construction industry. The Saudi program was a huge FMS case, and they paid for everything. Being their money, I'm sure that our Agreement included some provisions to aid the local industry.

If your (our?) Counsel is citing FAR Part 5 as justification for less than full solicitation, it appears that there is no special program or exemption established in your Area of Operations.

I don't think that Part 5 establishes any exemption in Part 6 for excluding sources.

Kathleen,

Do you mean that they take FAR 5.202(a)(12) to be an exception permitting solicitation of only local sources?

In a way.

The "logic" is if we only go to local sources then we do not have to post, synposize or advertise using FBO - FAR5.202(a)(12).

If we use FBO to do any of the above, then we must go full & open or have an authority to restrict.

...

So, if you don't use FBO, you only need to use local sources.

Nothing in FAR 5.202 authorizes solicitation of only local sources. It's about exceptions to synopsis, not solicitation of quotes or offers. If your attorney-advisor thinks otherwise, you need a new lawyer.

Off hand, I can think of only FAR 6.302-4 and, perhaps, 6.302-7, and FAR 13.104( as bases for soliciting only local sources. (I have not checked agency FAR supplements.)

No one who has responded to you as yet has cited anything in the regulations, though we may have missed it. So the only way that I can think of for you to get to the bottom of this is to force the issue with your management by asking for the specific regulatory authority and then arguing if they cite something stupid, like FAR 5.202(a)(12). If I were a contracting officer expected to sign contracts for multi-million dollar construction projects awarded after soliciting only local sources, I would insist on knowing the authority for limiting solicitation in that way.

Wifcon member Napolik, who has not responded to this because he's traveling and without a laptop, is one of the most knowledgeable people around when it comes to overseas contracting. If there is such authority, he should know it. I'll ask him to respond to you when he gets home.

It has been over 10 years since I dealt with this issue regularly in Europe. I?ll confine my remarks to military construction because supplies and services have their own issues. Your authority to use local sources is in FAR 6.302-4 ((2): ?When a contemplated acquisition is for services to be performed, or supplies to be used, in the sovereign territory of another country and the terms of a treaty or agreement specify or limit the sources to be solicited.? Note that DOD, NASA, and the Coast Guard don?t have to do a formal J&A although DOD at least has its own procedures on documentation which I will get to.

Sovereignty is an important consideration when dealing with construction overseas. Unless we have invaded the country by force and established a base, we operate a base with the consent of the host country. What that means is that there will be an agreement to use that facility with terms and conditions on what we may do. Since it is on foreign soil we technically do not own that property and there are going to be constraints on what we can build there. Generally the host country will at least review and approve what is built there and may even insist on awarding any contracts themselves using their terms. The terms of agreement I have seen have at least a preference for local firms and generally a requirement to use them. Even if only a preference is stated, requirements for a work permit, visa, and customs issues may effectively limit the requirement to a local firm. This may be enough to invoke the International Agreement authority since DOD allows flexibility.

Here is the DFARS on this:

206.302-4 International agreement.

© Limitations. Pursuant to 10 U.S.C. 2304(f)(2)(E), the justifications and approvals described in FAR 6.303 and 6.304 are not required if the head of the contracting activity prepares a document that describes the terms of an agreement or treaty or the written directions, such as a Letter of Offer and Acceptance, that have the effect of requiring the use of other than competitive procedures for the acquisition.

The Air Force AFFARS modifies this as follows:

5306.302-4 International agreement.

© Limitations. The document referred to in DFARS 206.302-4© should be titled, ?International Agreement Competitive Restrictions (IACR).? The authority to prepare IACRs is delegated from the HCA to the contracting officer. The contracting officer shall include the IACR and a copy of the associated Letter of Offer and Acceptance in the contract file.

Note also DFARS PGI:

PGI 236.273 Construction in foreign countries.

( When a technical working agreement with a foreign government is required for a construction contract?

(i) Consider inviting the Army Office of the Chief of Engineers, or the Naval Facilities Engineering Command, to participate in the negotiations.

(ii) The agreement should, as feasible and where not otherwise provided for in other agreements, cover all elements necessary for the construction that are required by laws, regulations, and customs of the United States and the foreign government, including?

(A) Acquisition of all necessary rights;

( Expeditious, duty-free importation of labor, material, and equipment;

© Payment of taxes applicable to contractors, personnel, materials, and equipment;

(D) Applicability of workers' compensation and other labor laws to citizens of the United States, the host country, and other countries;

(E) Provision of utility services;

(F) Disposition of surplus materials and equipment;

(G) Handling of claims and litigation; and

(H) Resolution of any other foreseeable problems that can be appropriately included in the agreement.

FEDBIZOPPS is something I did not have to deal with then. I would not think it a good source if you are going to use only local contractors because I do not think many local nationals would follow it.

What regulation, law, agreement allows me to only solicit local sources?

I'd like to suggest that there is no regulation, law, or agreement that explicitly allows you to solicit only local sources. (but see Larry's good posting above). My question is, do you need one? See B-237383, AAA Engineering & Drafting, Inc., (January 22, 1990) http://archive.gao.gov/decisions/140438.pdf: "An aqency may restrict a procurement to offerors within a specified geographical area if the restriction is reasonably necessary for the agency to meet its minimum needs."

If you have a reasonable basis to solicit only local sources, you can.

Agree, concerning country to country agreements. However, Kathleen's chief counsel isn't referring to any such agreement to justify using only local sources. Hence my conclusion that there isn't one.

I agree that Part 5 is meant to refer to local solicitations under the presumption that the necessary exemption from full and open competition has been obtained

My post #115 was in response to Larry Edwards' post #1, above

I'd like to suggest that there is no regulation, law, or agreement that explicitly allows you to solicit only local sources. (but see Larry's good posting above). My question is, do you need one? See B-237383, AAA Engineering & Drafting, Inc., (January 22, 1990) http://archive.gao.gov/decisions/140438.pdf: "An aqency may restrict a procurement to offerors within a specified geographical area if the restriction is reasonably necessary for the agency to meet its minimum needs."

If you have a reasonable basis to solicit only local sources, you can.

The AAA case involved what the protestor regarded as an unduly restrictive specification, in that it required the services to be performed within a geographic area. It did not limit response to the solicition to only offerors within that area.

The AAA case involved what the protestor regarded as an unduly restrictive specification, in that it required the services to be performed within a geographic area. It did not limit response to the solicition to only offerors within that area.

I'm arguing that there is no express statutory authority described in acquisition regulation that permits other than full and open competition solely on the basis of locality, and that if you have a requirement that can only be fulfilled by contractors in a certain geographic area, include that geographic limitation in your requirements/SOW and solicit as a full and open competition. If Kathleen has an International Agreement with a host country that her office will only contract with local sources, then as Larry describes, the authority at 10 USC 2304( c)(4) or 41 USC (253( c)(4) may apply. But absent that agreement, she should be soliciting on a full and open basis and describing the requirement for a local source in her solicitation.

Government contracts include plenty of requirements that "limit" competition that don't require statutory authority to include in a solicitation. You may require a contractor's facility to have a Secret clearance, which you know will eliminate some firms from being able to compete for that contract. Does that mean you need to justify contracting without providing full and open competition?

My point in citing AAA was that if you include a geographic limitation in your solicitation and it is challenged as being unduly restrictive, GAO will look only to see if there is a reasonable basis for the requirement. Like any contract requirement, if the geographic limitation is legitimate, then it will withstand a protest.

Vbus,

You make some good points and I agree with you. I assume this may be the view of Kathleen's lawyer as well.

My limited experience with overseas construction is just what Larry Edwards said with comments:

"Sovereignty is an important consideration when dealing with construction overseas. Unless we have invaded the country by force and established a base, we operate a base with the consent of the host country. What that means is that there will be an agreement to use that facility with terms and conditions on what we may do. Since it is on foreign soil we technically do not own that property and there are going to be constraints on what we can build there. Generally the host country will at least review and approve what is built there and may even insist on awarding any contracts themselves using their terms. The terms of agreement I have seen have at least a preference for local firms and generally a requirement to use them. Even if only a preference is stated, requirements for a work permit, visa, and customs issues may effectively limit the requirement to a local firm."

In addition, often there is licensing and other agreements that can take alot of time to complete that effectively rules out offerors. For example, one one project I was involved with, the country rules said any non-national source had to enter into a partnership with a local company. That process took seberal months.

In any event, if the nature of these issues are valid, they are are requirments that any offeror must meet. They may effectively restrict competition to only local sources. In that case, the action doesn't need posted in FBO. But I don't see that as requiring a D&F or JOFOC.

General comment to all:

I appreciate the input you have provided concerning this topic and welcome additional discussions, please.

Your information has given me areas to further research and re-read, as we all know the FAR, et al are not always the easiest to interpret.

My position remains this:

Full and open competition is the goal of Federal Procurement because it has been determined that use of this method provides the best and most effective and hopefully efficient use of public funds.

Yes, many of you have mentioned situations where competition will be limited by other than an authority, whether it be security issues or a country requirement (e.g. all firms in Kuwait must be Kuwaiti owned - been there ) or so remote that the possibility of non-locals proposing would be slim and there are many others. I have been in contracting a long time and if I have learned anything from former bosses, mentors, co-workers is that transparency is not an option - it is mandatory. There is nothing that says you cannot state the difficulties that contractor may face when attempting to propose on a requirement, such as geography, security, country specific business conditions, in the announcement. You are not limiting competition; you are just letting the firms know the situations they may encounter and to me FBO is required (exceptions noted).

We all have been in situations where a customer has needs and wants that we try to fulfill and when we see areas in the FAR that do not say "you shall not do", we do. We cannot forget, above all this, to think about what we are doing. I have a very difficult time reading the FAR to allow actions contrary to whole sections that cite U.S.C.'s as a requirement, e.g. "10 U.S.C. 2304 and 41 U.S.C. 253 require, with certain limited exceptions (see Subpart 6.2 and 6.3), that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts."

For me, especially since the development of internet advertisement (FBO), to place a solicitation, pre-solicitation notice, synopsis or posting as compared with what we did in the mid-80's (anybody remember what we used to do??) requires little additional effort/cost and has actually been a great tool for those locations where physically providing documents is often difficult or delayed by the post. Locations without internet connection are the exception. It just takes a little bit of educating your contractor.

I will close with a few statements made to me by 1102's and legal advisors concerning this topic:

"Full and open competition is only meant to help small businesses and we do not have socio-economic programs overseas."

"If I go to two (2) sources, I have full and open competition according to the FAR."

"Who are we hurting by only going to local sources? - in fact we are helping the local economies."

"If we use FBO, then we are held to the minimum publicizing and response time. If we don't use it, we aren't bound by them."

I have a question. Has anyone ever read that if we advertise in a local newspaper, this eliminates the need to use FBO?

"Full and open competition is only meant to help small businesses and we do not have socio-economic programs overseas."

"If I go to two (2) sources, I have full and open competition according to the FAR."

"Who are we hurting by only going to local sources? - in fact we are helping the local economies."

"If we use FBO, then we are held to the minimum publicizing and response time. If we don't use it, we aren't bound by them."

These comments are a little scary...

"Full and open competition is only meant to help small businesses and we do not have socio-economic programs overseas."

Full & Open Competition is required by law (Competition in Contracting Act) and helps all companies and the taxpayers by promoting transparency and getting the best value for the Govt. (which is not just the lowest price).

"If I go to two (2) sources, I have full and open competition according to the FAR."

If you go to 2 sources only, you have limited competition, not full & open competition.

"Who are we hurting by only going to local sources? - in fact we are helping the local economies."

You are hurting non-local sources who may have been wrongfully excluded from the opportunity to compete.

"If we use FBO, then we are held to the minimum publicizing and response time. If we don't use it, we aren't bound by them."

I don't follow that logic....if I ignore the FAR, then I'm not bound by the FAR ????

Add me to the list of many on this discussion trail that are verifying your sanity. Ultimately you are signing the contractual document, not the advising attorney. I have been in similar situations as a contracting officer. Glad to see you are trying to do the right thing and not just be a rubber-stamp. Not always easy being a contracting officer but that's part of what makes it rewarding.

I have a question. Has anyone ever read that if we advertise in a local newspaper, this eliminates the need to use FBO?

No, advertising in newspapers does not satisfy the need. However advertising in local newspapers always is a good idea for overseas work. Very few overseas companies even know about FBO, much less read it. That's a good way to promote local competition.

There's a statutory requirement for a single Government Point of Entry (GPE) that FBO satisfies. This is from FAR 5.2:

"5.201 General.

(a) As required by the Small Business Act (15 U.S.C. 637(e)) and the Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies must make notices of proposed contract actions available as specified in paragraph ( of this section.

((1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202 and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each proposed—

(i) Contract action meeting the threshold in 5.101(a)(1);

(ii) Modification to an existing contract for additional supplies or services that meets the threshold in 5.101(a)(1); or

(iii) Contract action in any amount when advantageous to the Government.

(2) When transmitting notices using electronic commerce, contracting officers must ensure the notice is forwarded to the GPE.

© The primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities.

(d) The GPE may be accessed via the Internet at http://www.fedbizopps.gov. "

For me, especially since the development of internet advertisement (FBO), to place a solicitation, pre-solicitation notice, synopsis or posting as compared with what we did in the mid-80's (anybody remember what we used to do??) requires little additional effort/cost and has actually been a great tool for those locations where physically providing documents is often difficult or delayed by the post. Locations without internet connection are the exception.

[emphasis added.]

What we used to do was to send a synopsis of the requirement to the Department of Commerce, who printed and published a daily tabloid, the "Commerce Business Daily." It was printed on newsprint, and mailed to subscribers each day. It used small print to save space. And as I recall, the "search" function didn't work very well, either.

What a godsend the Internet was.

Kathleen wrote:

Full and open competition is the goal of Federal Procurement because it has been determined that use of this method provides the best and most effective and hopefully efficient use of public funds.

Actually, that is a weak supposition, not a proven fact. There is not much evidence that full and open competition produces better outcomes than a well-negotiated sole source procurement or a procurement in which the government has limited the number of eligible offerors. In fact, there is good reason to think that full and open competition as practiced today (FAR Part 15 "best value" source selections) is inefficient, wasteful, and needlessly time consuming.

Tournament style full and open competition reduces opportunities for corruption and lets companies think they have a shot at winning a contract, but let's not praise it too much. It's anything but efficient. Do not confuse it with the market competition that you learn about in an economics course. If you're looking for efficiency and good outcomes, full and open competition is not the way to go.

That having been said, it's the law.

I'd like to suggest that there is no regulation, law, or agreement that explicitly allows you to solicit only local sources. (but see Larry's good posting above). My question is, do you need one? See B-237383, AAA Engineering & Drafting, Inc., (January 22, 1990) http://archive.gao.gov/decisions/140438.pdf: "An aqency may restrict a procurement to offerors within a specified geographical area if the restriction is reasonably necessary for the agency to meet its minimum needs."

If you have a reasonable basis to solicit only local sources, you can.

I'd like to suggest that there is no regulation, law, or agreement that explicitly allows you to solicit only local sources. (but see Larry's good posting above). My question is, do you need one? See B-237383, AAA Engineering & Drafting, Inc., (January 22, 1990) http://archive.gao.gov/decisions/140438.pdf: "An aqency may restrict a procurement to offerors within a specified geographical area if the restriction is reasonably necessary for the agency to meet its minimum needs."

If you have a reasonable basis to solicit only local sources, you can.

Yes but what would be a reasonable basis? From experience I cannot think of any.

I am a CO for Department of State doing overseas construction. My office is located overseas. We have a DOSAR waiver from FEDBIZOPPs for under $5M. However, we are expected to use full and open on all construction not restricted by law or treaty (I haven't seen one yet). We use our own web site for advertising and expect the Post Facility managers to do market research and provide suggested firms for us to mail solicitations. On any given project we will have local companies, companies from neighboring countries and U.S. firms all competing even down to projects as small as $300K. We do not get involved in permits and licensing issues. The solication says the offeror must have permission to work in the country by the time of award. If he can't produce the proof that is his problem and we go to the next best offer (and yes that comes up often and we even had to T4D one mistake we made). We have the post discuss the permitting at the site visit/prepropsal conferences so they are all on notice.

If we do any restrictions it must be supported by J&A IAW FAR part 6. Some of our Bureaus have authority from Congress to restrict for polictical and other considerations. This is also supported by documentation on a case by case basis. This authority is used infrequently, is used for good reasons and is not abused in my opinion.

So, I do not think there is a blanket authority to limit competition to local companies but should be supported by J&A on a case by case basis.

P.S. It appears our webite is becoming so well known by U.S. companies that we might as well advertise on FEDBIZOPPs. Being overseas we do not have to consider small business and get no credit if we did so the competition is truely full and open and the firms as well as our customers really like that.

Yes but what would be a reasonable basis? From experience I cannot think of any.

I can find no official guidance on what constitutes a ?reasonable? basis for imposing a geographical limitation. I can only advise that if a CO has a reasonable basis for imposing a geographical limitation in a solicitation, then it may be included. Determining if that basis is reasonable up to the CO.

Besides the AAA case cited before, GAO has ruled on many protests where the protester challenged the reasonableness of a geographic limitation... some denied, some sustained. For a good list, try a simple google search: site:gao.gov "geographic limitation" ?protest?.

Again, the lesson is, if your geographic limitation is reasonable it will survive protest.

So, I do not think there is a blanket authority to limit competition to local companies but should be supported by J&A on a case by case basis.

You're right, there is not a blanket authority to limit competition to local companies, but there is certainly no requirement for a FAR Part 6 Justification for Other than Full and Open Competition when using a geographic limitation (unless it is required by your agency/office).

GAO has recognized that yes, including a geographic limitation DOES restrict competition, but that it perfectly reasonable to do so if it is a legitimate requirement. See B-183713, Paul R. Jackson Construction Company, Inc. (October 9, 1975) http://redbook.gao.gov/1/fl0000312.php :

Counsel for J/SD recognizes, and we agree, that geographic restrictions may constitute a legitimate restriction on competition where the contracting agency has properly determined, after careful consideration of the relevant factors involved, that a particular restriction is required. See Descomp, Inc., 53 Comp.Gen. 522 (1974), 74-1 CPD 44, Plattsburgh Laundry and Dry Cleaning Corp., 54 Comp.Gen. 29 (1974), 74-2 CPD 27.

If Kathleen has reason to question the validity of the geographic limitation that restricts the competition to only local sources, she should consider the requirement carefully before making her determination. But, if after considering the requirement and making the determination that the restriction to only local sources is reasonable, she shouldn't hesitate to include it in her solicitation and should not worry that doing so is in contradiction to the FAR.

Boof, I remember many years ago that the US construction industry was up in arms over restrictions on bidding State Department work overseas - they insisted that US firms be allowed to bid on US Embassy work anywhere, if it were US funded. Other countries were restricting bidding to their own national companies, even in the US... I am not surprised that anyone can bid on State Department work.

I have not done contracting overseas for the US Government, but one thing I do know: the host country CAN make the rules on just about everything with a very few exceptions. If they decide only local businesses can work on your contract, your choices are either to comply with that country or take the ride of your life in a foreign courtroom.

I saw this from a layman's viewpoint in the Philippines in the 1980's, and from a contractor's view point a few years ago in Asia.

The moral of the story: Know the rules, abide by the rules, and document, document, document. CON 101 stuff. If the local government does not care who works on the contract, then the FAR rules. If they local government does care about who works on a contract in their country, see how far the FAR flies in their courtrooms. In my experience, foreign governments could give a rip about US laws and regulations, unless it suited their purposes to to do so.

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at some point this thread ought to mention Section 886 of PL 110-181, which created 100% set-asides for Iraqi and Afghan businesses.

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at some point this thread ought to mention Section 886 of PL 110-181, which created 100% set-asides for Iraqi and Afghan businesses.

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That is interesting. Then the agency lawyers ought to cite that as the justification for local set-asides, not cite Part 5 as the justification. However, it is entirely possible that someone has taken the Chief Counsel's email advice out of context. The Counsel may have been responding to a question about publicizing, assuming that the acquisitions were excepted from full and open competition. This is not uncommon.

Kathleen said in an earlier post:

[The following was taken from a recent Chief Counsel e-mail.

"?The Contracting Officer need not submit the notice required by 5.201 when ? only local sources will be solicited.? "FAR Part 5.202 and 5.202(a)(12)) This means that we are permitted to directly send the solicitations, without making announcements of the requirement, to the local contractors working in the area that we have previously identified."]

Reading closely, I could see where this email was in the context of advising how to publicize locally, not in justifying why the acquisition(s) is exempt from full and open competition.

I haven't read the above cited Section 886, but if it is applicable, it would seem that that is what would be cited as the exception to full and open competition, under the appropriate Part 6 exception category.

I am sure I will be chastised for my comments and my apparent attempt to stifle free and open discourse, but I have to make them anyway. First, Kathleen appears to have concerns over advice she was given by her legal counsel. Has she asked that same counsel for clarification, explanation or a sanity check from a higher-level legal office? As an attorney, I don't expect my clients to blindly accept everything I tell them. I do, however, hope that if they don't agree, don't understand or even just don't like my answer, they will do me the professional courtesy of giving me a chance to explain myself and/or to take a second look.

Secondly, as a government attorney, I have some concerns about the sharing of specific, detailed advice given to an agency customer by the agency counsel. When I advise my clients, I am doing so as an attorney representing the AGENCY. The individual contracting officer, program manager, etc., is ALSO representing the AGENCY. There is no attorney-client relationship between the two of us as INDIVIDUALS. Within the bounds of that relationship, what I tell my client is privileged and confidential, meaning I cannot be forced to reveal it to anyone not a part of that attorney-client relationship. However, when it is shared in a public form such as this, that attorney-client privilege is breached and the advice is no longer privileged and confidential and could be disclosed in a forum such as a bid protest (filed by a contractor unhappy over the outcome of Kathleen's acquisition). Don't think unsuccessful offerors don't scour the Internet for comments such as these. I know they do. Finally, it's important to remember that the privilege belongs to the agency, not to the individual. Thus, neither Kathleen nor any other individual below the HCA or similar official has the legal right to reveal specific advice they receive from counsel.

Having said all that, I respect and appreciate the value that WIFCON provides as a sounding board. However, as a gov't lawyer, I get paid to be anal-retentive, paranoid and otherwise a wet blanket. So please bear with me.

K-Law, I don't disagree with you. I have a feeling that I know what agency and what legal office is involved. I think that someone took the Chief Counsel's remarks out of context, which is exactly what my attornies alway hated. In a discussion concerning how to advertise, someone assumed that the discussion referred to an exemption that allows restricting competition to local firms. Upon re-reading that advice. I can see how easily it can be read several ways. Ah, the danger of taking legal advice and trying to put it into broad context.

In accordance with Rule 11, issues are to be couched in a hypothetical manner. As a result of your post, I reviewed this thread and edited the post that provided "specific" legal advice so that it is no longer specific.

In posting, it is important to remember that this is a public forum that can be viewed by anyone that happens by. As I menioned before, if a poster is a contracting officer, he/she may be discussing an issue with his/her contractor without knowing it. Likewise, a contractor could be discussing an issue with his/her contracting officer without knowing it. For these and other reasons, please remember Rule 11 when posting.

Secondly, as a government attorney, I have some concerns about the sharing of specific, detailed advice given to an agency customer by the agency counsel. When I advise my clients, I am doing so as an attorney representing the AGENCY. The individual contracting officer, program manager, etc., is ALSO representing the AGENCY. There is no attorney-client relationship between the two of us as INDIVIDUALS. Within the bounds of that relationship, what I tell my client is privileged and confidential, meaning I cannot be forced to reveal it to anyone not a part of that attorney-client relationship. However, when it is shared in a public form such as this, that attorney-client privilege is breached and the advice is no longer privileged and confidential and could be disclosed in a forum such as a bid protest (filed by a contractor unhappy over the outcome of Kathleen's acquisition). Don't think unsuccessful offerors don't scour the Internet for comments such as these. I know they do. Finally, it's important to remember that the privilege belongs to the agency, not to the individual. Thus, neither Kathleen nor any other individual below the HCA or similar official has the legal right to reveal specific advice they receive from counsel.

Having said all that, I respect and appreciate the value that WIFCON provides as a sounding board. However, as a gov't lawyer, I get paid to be anal-retentive, paranoid and otherwise a wet blanket. So please bear with me.

In accordance with Rule 11, issues are to be couched in a hypothetical manner. As a result of your post, I reviewed this thread and edited the post that provided "specific" legal advice so that it is no longer specific.

In posting, it is important to remember that this is a public forum that can be viewed by anyone that happens by. As I menioned before, if a poster is a contracting officer, he/she may be discussing an issue with his/her contractor without knowing it. Likewise, a contractor could be discussing an issue with his/her contracting officer without knowing it. For these and other reasons, please remember Rule 11 when posting.

Bob, please review and fix, if necessary, my 21 July post, in which I quoted part of Kathleen's earlier post. Thanks.