Late Sole Source Justification

perhaps nothing. 

6.305 Availability of the justification.

      (a) The agency shall make publicly available the justification required by 6.303-1 as required by 10 U. S.C. 2304(l) and 41 U.S.C. 3304(f). Except for the circumstances in paragraphs (b) and (c) of this section, the justification shall be made publicly available within 14 days after contract award.

      (b) In the case of a contract award permitted under 6.302-2, the justification shall be posted within 30 days after contract award.

      (c) In the case of a brand name justification under 6.302-1(c), the justification shall be posted with the solicitation (see 5.102(a)(6)).

      (d) The justifications shall be made publicly available-

           (1) At the Government Point of Entry (GPE) https://www.sam.gov.

           (2) On the website of the agency, which may provide access to the justifications by linking to the GPE; and

           (3) Must remain posted for a minimum of 30 days.

WC79 said:

If an acquisition office provides a sole source justification after the award of a contract, what exactly is this in violation of? The approval to sole source was never received prior to issue of the solicitation. If the approval comes after the award of the contract, what type of violation is this?

See FAR 6.303-1(a).

The contract is already awarded?  If FAR Part 6 even applies, see if you're covered by FAR 6.303-1(e).  But FAR Part 6 does not apply to simplified acquisitions, most orders under indefinite-delivery contracts, and many other contracts.

The far more important question is whether the sole source procurement is justified by the administratively delayed justification.  If YES, maybe there isn't too much to make a stink about at this point.

WC79 said:

If an acquisition office provides a sole source justification after the award of a contract, what exactly is this in violation of? The approval to sole source was never received prior to issue of the solicitation. If the approval comes after the award of the contract, what type of violation is this?

The 30,000 foot view.  Possibly not even regulation but the statutes that are catalyst to the regulation.   If all other thoughts researched lead to a view of violation of regulation and therefore the statute take a look at FAR 6.101 for the references to US Code.

But remember that FAR Part 6 does not apply to simplified acquisitions, most orders under indefinite-delivery contracts, and many other contracts.

WC79 said:

If an acquisition office provides a sole source justification after the award of a contract, what exactly is this in violation of? The approval to sole source was never received prior to issue of the solicitation. If the approval comes after the award of the contract, what type of violation is this?

WC, if you want folks to answer, please stay engaged and provide clarifications related to the discussions to minimize speculations.

What is the sole source justification for?

You said that the acquisition office provided a sole source justification after award of a contract. Provided to whom?

Is the “acquisition office” the one awarding the contract? And was the sole source justification approved by the appropriate authority or just submitted?

And ji mentioned some acquisitions which may not be applicable.

Thanks

FAR Part 6 applies to this requirement

Let me add clarity to this.  The acquisition office (making the award) went about making an award without getting the necessary approvals (sole source justification). After the award was made the sole source justification was submitted for approval (submitted to Head of Contracting Activity).

A screw up or a bad decision. Put an explanation in the file and move on. Unless someone wants to call the IG. Do you?

I suppose I should add that if the contract is found to have been entered into in violation of a statute or a regulation with the force and effect of law it could be declared "void ab initio."

See Cibinic et al., Formation of Government Contracts, 4th ed., pp. 72 - 75.

WC79 said:

FAR Part 6 applies to this requirement

Let me add clarity to this.  The acquisition office (making the award) went about making an award without getting the necessary approvals (sole source justification). After the award was made the sole source justification was submitted for approval (submitted to Head of Contracting Activity).

These facts raise another possible issue - unauthorized commitment. 

My quick view is I wonder if the HCA would direct that the commitment be cancelled or seek agency head approval of the justification from the Head of Agency.   I had a similar experience back in the day where the HCA lacked the authority for approval and whole matter landed on the desk of the Head of Agency for ratification.

An agency head or HCA cannot ratify an unauthorized commitment that was made in violation of a statute or a regulation with the force and effect of law.

Vern Edwards said:

An agency head or HCA cannot ratify an unauthorized commitment that was made in violation of a statute or a regulation with the force and effect of law.

Agreed.  With more facts it might be an option.   It just depends.

On 8/26/2022 at 9:52 AM, C Culham said:

These facts raise another possible issue - unauthorized commitment. 

My quick view is I wonder if the HCA would direct that the commitment be cancelled or seek agency head approval of the justification from the Head of Agency.   I had a similar experience back in the day where the HCA lacked the authority for approval and whole matter landed on the desk of the Head of Agency for ratification.

Are you saying that this is an unauthorized commitment because the CO lacks the authority to move forward with a sole source requirement?

WC79 said:

Are you saying that this is an unauthorized commitment because the CO lacks the authority to move forward with a sole source requirement?

Depends.   

On 8/26/2022 at 7:04 AM, Vern Edwards said:

An agency head or HCA cannot ratify an unauthorized commitment that was made in violation of a statute or a regulation with the force and effect of law.

I agree with Vern but the actual facts will dictate.   Reference FAR 1.603-2.   And this...

On 8/26/2022 at 5:06 AM, Vern Edwards said:

I suppose I should add that if the contract is found to have been entered into in violation of a statute or a regulation with the force and effect of law it could be declared "void ab initio."

See Cibinic et al., Formation of Government Contracts, 4th ed., pp. 72 - 75.