Senate Stimulus Bill (Section 1608) - "Prohibition on 'no-bid' contracts"?
Started by Thomas Warren · Feb 11, 2009 · 8 replies
- TOriginal post
Thomas Warren
Feb 11, 2009 · 17y ago
I don't know if those out there in the wifcon world have been keeping close tabs on this Stimulus Bill, but I would be interested in the reaction to Section 1608 in the Senate Bill. The text is outlined below, but my brief take is this: the title of the section indicates that it was written by an amateur who doesn't know what he is talking about (I'm looking at you, Senator Coburn), but I don't think the language as written gets him where he wants to go. Take a look, but section (a) says you must use "competitive procedures in accordance with . . . section 2304 . . . and the Federal Acquisition Regulation." Looking at the title, the intent appears to be to restrict an agency's ability to use other than full and open competition (eliminating the use of those loathsome 'no-bid' contracts), but the language is ambiguous enough where it essentially says that agencies should comply with Sec 2304 and the FAR..........which is what they already do. So??
Any alternative readings?
Other thoughts?
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PROHIBITION ON NO-BID CONTRACTS AND EARMARKS
SEC. 1608.
(a) Notwithstanding any other provision
of this Act, none of the funds appropriated or otherwise
made available by this Act may be used to make any payment
in connection with a contract unless the contract is
awarded using competitive procedures in accordance with
the requirements of section 303 of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 253),
section 2304 of title 10, United States Code, and the Federal
Acquisition Regulation.
(
Notwithstanding any other provision of this Act,none of the funds appropriated or otherwise made available
by this Act may be awarded by grant or cooperative
agreement unless the process used to award such grant
or cooperative agreement uses competitive procedures to
select the grantee or award recipient.
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Don Mansfield
Feb 11, 2009 · 17y ago
I think that the bill specifically precludes the use of funds to pay for contracts awarded on a sole-source basis, not restrict funds for contracts awarded using other than full and open competition. Use of other than full and open competition does not necessarily mean that a contract cannot be awarded using competitive procedures.
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Thomas Warren
Feb 11, 2009 · 17y ago
I think that the bill specifically precludes the use of funds to pay for contracts awarded on a sole-source basis, not restrict funds for contracts awarded using other than full and open competition. Use of other than full and open competition does not necessarily mean that a contract cannot be awarded using competitive procedures.
Doesn't FAR 6.301(d) already require that? So you're saying that the bill would allow the use of the one responsible exception, for example, but only if the agency also complies with FAR 6.301(d), something that it is already required to do?
I guess that is my point, then: what does this provision do? What real restriction does it impose?
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Don Mansfield
Feb 11, 2009 · 17y ago
No, I don't think the bill would allow for the use of FAR 6.302-1 at all. As written, the bill wouldn't allow for HUBZone or SDVOSB sole source awards, either.
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Desparado
Feb 11, 2009 · 17y ago
No, I don't think the bill would allow for the use of FAR 6.302-1 at all. As written, the bill wouldn't allow for HUBZone or SDVOSB sole source awards, either.
Or 8(a) sole-source contracts either. I do not see that it has to be "full and open", so things could be set-aside for competetive procurements using Small Business, HUBZone, etc.. At least that's how I see it...
What will be interesting is that once this is passed, how long will it take the different agencies to read it, interpret it, and issue their guidance. Out here in the field, I won't know if this was Stimulus Money or normal annual appropriations... so I could inadvertantly violate the law.
Woo-hoo!!
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Thomas Warren
Feb 11, 2009 · 17y ago
No, I don't think the bill would allow for the use of FAR 6.302-1 at all. As written, the bill wouldn't allow for HUBZone or SDVOSB sole source awards, either.
The language of the bill says agencies must use "competitive procedures in accordance with . . . section 2304 . . . and the Federal Acquisition Regulation." Section 2304 and the FAR obviously includes FAR 6.302-1. You said "the bill specifically precludes the use of funds to pay for contracts awarded on a sole-source basis, not restrict funds for contracts awarded using other than full and open competition." On what basis, then, do you say that the bill would not allow for the use of FAR 6.302-1?
Since the text of the bill says that agencies must use competitive procedures in accordance with 10 USC 2304 and the FAR, how does that restrict the use of any of the exceptions to full and open competition under 10 USC 2304© and FAR 6.302?
I understand your point about HUBZones and SDVOSB (and I would assume anything under the micro-purchase threshold?), but your interepretation on the use of FAR 6.302-1 seems off. What am I missing?
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Don Mansfield
Feb 11, 2009 · 17y ago
Normally, you can award contracts using either competitive or noncompetitive procedures in accordance with 10 USC 2304 and FAR Part 6. This bill would only allow the use of competitive procedures.
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Retreadfed
Feb 12, 2009 · 17y ago
Normally, you can award contracts using either competitive or noncompetitive procedures in accordance with 10 USC 2304 and FAR Part 6. This bill would only allow the use of competitive procedures.
I think it will be interesting to see how this provision would be applied in regard to orders under FSS contracts or other existing multiple award contracts.
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contractor100
Feb 18, 2009 · 17y ago
They took the language out, here's final:
SEC. 1610. (a) None of the funds appropriated or
othenvise made available by this Act, for projects initiated
after the effective date of this Act, may be used by an
executive agency to enter into any Federal contract unless
such contract is entered into in accordance with the J1'ederal
Property and Administrative Services Act (41 U.S.C.
- or chapter 137 of title 10, United States Code, and
the J1'ederal Acquisition Regulation, unless such contract
is otheI'\vise authorized by statute to be entered into with-?
out regard to the above referenced statutes.