Government Contracts Monitor

Agencies Rush to Obligate Federal Dollars Before September 30th - Sole Sources Abound

September 26, 2011

By: Lindsay Simmons

In a rush to obligate federal dollars before the end of the fiscal year, there have been a rash of solicitations issued using the simplified acquisition procedures brand name, sole or limited source authority.  FAR 13.106-1(b).

  Contractors following opportunities on sites like www.fbo.govshould be careful to spot these procurements and to determine, as quickly as possible, whether or not the agency has a reasonable basis for limiting competition to a brand name – single source – or whether the agency has (i) misstated or overstated its actual needs in specifying a particular brand or (ii) overlooked other suppliers available for the goods or services.  The former is considered unduly restrictive of competition.  As set forth in U.S.C. 2305(a)(1)(B) ``[e]ach solicitation * * * shall include specifications which include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.”  The latter may render the solicitation invalid unless the agency has shown, in its justification documentation, an urgent need or some other criteria that would allow it to proceed in a sole source environment.

When a protestor challenges an agency’s justification, the test is whether that justification is reasonable.  “Reasonableness” is determined by the adequacy of the rationale and conclusions.  Pegasus Global Strategic Solutions, B-400422.3, 2009 CPD ¶ 73 (Comp. Gen. Mar. 24, 2009).   In other words, the test is whether the agency’s justification can withstand logical scrutiny.  See General Electrodynamics Corp., B-298698, 2006 CPD ¶ 180 (Comp. Gen. Nov. 27, 2006). 

One important point:  As often is the case when time is short, many of these solicitations are issued with extraordinarily short turn-around times, sometimes as little as 24 hours.  Since any defect apparent on the face of a solicitation must be protested prior to the due date for proposals or bids, contractors must identify and move quickly to protest these buys before it is too late.