On November 15, 2016, DOD, GSA, and NASA issued a proposed rule to amend the Federal Acquisition Regulation (FAR) to clarify the guidance for sole-source 8(a) contract awards exceeding $22 million.
On October 28, 2009, the initial changes made to the FAR state that the head of an agency may not award a sole-source 8(a) contract for an amount exceeding $22 million unless—
(1) The contracting officer justifies the use of a sole-source contract in writing;
(2) The justification is approved by the official designated to approve contract awards for comparable dollar amounts; and
(3) The justification and related documentation are made available to the public.
The new proposed rule is designed to address GAO recommendations contained in their report titled “Slow Start to Implementation of Justifications for 8(a) Sole-Source Contracts (GAO-13-118).” The data gathered since the 2009 FAR change shows that this new requirement is not being applied consistently. The GAO report recommends that OFPP and the FAR Council create guidance to clarify the circumstances in which an 8(a) justification is required, to include:
(1) Clarify whether an 8(a) justification is required for 8(a) contracts that are subject to a pre-existing Competition in Contracting Act class justification.
(2) Provide additional information on actions contracting officers should take to comply with the justification requirement when the contract value rises above or falls below $22 million between the SBA’s acceptance of the contract and the contract award.
(3) Clarify whether and under what circumstances a separate sole-source justification is necessary for out-of-scope modifications to 8(a) sole-source contracts.
The intent of the proposed rule is to further clarify the processes and procedures in the FAR to ensure uniform, consistent, and coherent guidance regarding the use of sole-source 8(a) justifications.