How to protest against a Sole Source solicitation process?

Also know as: sole source solicitation protest letter, sole source protest, sole source protest letter, protest letter, sole supplier letter, sole source letters, sourcing protest, federal government sole source protest, sourcing protest letter, sole source award protest, government solicitation protest filing, sole source procurement protest, protesting sole source, sole sourcing protest, federal government sole source protest letter, or solicitation protest letter.

What is Sole Source?

Sole Source Definition

Sole source is a non-competitive purchase or procurement process accomplished through solicitation or acceptance of a proposal from one single provider, so-called sole source.

Sole Source is also know as: sole source procurement, sole sourcing, sole-sourced contract, direct sourcing, sole supplier, direct source, sole-supplier procurement, sole-source tender, FAR sole source, federal sole source, government sole source, sole source tendering, government sole source contract, federal government sole source, sole source bid, sole source solicitation, noncompetitive negotiation, negotiated sole source, sole source bidding, or sole source procurement.

What is the difference between Sole Source and Single Source?

Sole Source:
As defined above, a sole source is a source selected when there are no other viable and capable providers of requested goods or service.

Single Source:
A single source is a source specifically selected amongst others, if any, due to specific reasons, i.e. replacement parts, compatibility, price, quality, service, support, etc.

Sole Source Evaluation

Like for any purchase performed through procurement methods with Full and Open Competition (FOC), a sole source evaluation will take place, but in a significantly different manner because no comparison will be performed against other prospective providers.

Indeed, the sole source evaluation is limited to the compliance of acquired goods or services to requirements set forth in the solicitation document. Because there is no competition, not only the requester's margin of negotiation is thin, but the Total Cost of Ownership (TCO) of the project may be more expensive than if there would have been other competitors.

For these reasons, requesters should review carefully and thoroughly the cost section of the proposal, knowing that such an audit could expand their negotiation margin.

Benefits of Sole Sourcing

Benefits of Sole Source should have positive impacts of a shortened acquisition process, like:

  1. reducing the decision cycle, i.e. time required to award contracts;
  2. lowering administrative costs, i.e. procurement process reduced to a minimum;
  3. prices reflecting the best value;
  4. promoting small business participation; and
  5. improving delivery of products and services.

To gauge the intrinsic benefit of sole sourcing, the General Accounting Office (GAO) run a test and presented to the Congress the report of effectiveness of a shortened acquisition process (PDF file, 127Kb).

When to use Sole Source as a contracting method?

Sole Source Prescription

A sole source procurement process should only be used under specifically defined circumstances. Sole source solicitation is used only when other procurement methods, namely micro-purchases, small purchases, and competitive solicitation procedures like sealed bids, or competitive proposals, are not applicable or lead to an unrealistic process.

Sole Source Justification

The rationale of the decision to use sole source solicitation as a procurement process should be thoroughly documented. The burden of proof to justify sole source procurement falls to the requester who should prepare a document called Sole Source Justification and Approval (J&A). The main justification for adopting a sole source procurement process is when there is, by definition, only one supplier capable of satisfying the Statement of Work.

We've just said above that sole source can only be used when:

  • none of other procurement methods applies, and
  • there is at at least one reason or justification for relying solely on one provider or sole source (no competition, unsolicited proposal, etc.).

Such circumstances could be:

  • unicity, i.e. the item is only available from one single supplier, like for parts maintenance;
  • immediacy, i.e. delays resulting from competitive solicitation are not acceptable;
  • emergency, i.e. delays resulting from other methods of solicitation are not bearable;
  • legitimacy, i.e. specific contexts (geographic, contractual, political, legal, military, security, etc.) may allow such a non-competition of sources
  • inadequacy, all sources are qualified as inadequate (compatibility, compliance, price, quality, service, support, etc.)
  • exigency, i.e. any other specific reason dictating the choice of a given provider

 

Sole Source Justification is also known as: source justification, sole source justification, sole source justification letter, sole supplier justification, source justification letter, justification letter, sole source award justification, FAR source justification, justification for other than full and open competition (JOFOC), JOFOC form, JOFOC, justification and approval form, sole sourcing justification, other than full and open competition justification form, FAR sole source justification, FAR justification, Justification & Approval, J&A, J&A letter, Justification & Approval letter.

Inappropriate Sole Source Justification

Sole sourcing is not appropriately justified and justifiable when used as a method of selecting a preferred vendor. Notwithstanding the fact that they could be voided by potential sole source solicitation protests, purchases of this kind, when put under scrutiny, will surely attract auditors' interest in their quest for details suggesting a bit of favoritism, partiality, and other bias.

How to use Sole Source

In order for your Purchasing/Procurement department to validate the purchase of sole-sourced goods or services, you should:

  1. provide a recent (less than 30 days) quotation (RFQ) from the sole source provider;
  2. fill out a Sole Source Justification & Approval (J&A) form;
  3. get the approval and signature on the form of an appropriate authority for the acquisition; and
  4. request your Procurement/Purchasing service for a Purchase Order (PO) by joining your Sole Source J&A form.

How to protest against Sole Source solicitation?

How to subdue your enemy without fighting: Use your enemy's inertia, absorb it, and then return it against him.
-- Sun-Tzu,
   The Art of War

Use your enemy's weapon

What's very interesting is that the same reasons with which people can justify sole source as a procurement method can be used by a supplier to file a protest. Indeed, by getting through the sole source justification laid down by the requester, the protesting provider can challenge veracity, fairness, emergency, legitimacy, and adequacy of the sole source method.

It's Time to Protest: Challenging Sole Source Justification

The Sole Source Bible:
If there would be only one document a protester should study: the Federal Acquisition Regulation (FAR). The Federal Acquisition Regulation (FAR) is the document that sets forth basic policies and procedures for proper acquisition by all U.S. federal agencies.

Although allowed to use sole source by such a regulation (FAR SubPart 6.3, Other Than Full and Open Competition (OFOC)), requesters must prior:

  1. first, try their best to encourage competition as much as possible,
  2. if not reasonable, feasible, or possible, document circumstances under which the only available option is to rely on a sole provider,
  3. then, get a management approval, and
  4. finally, publicize their decision.

FAR Sole Source Requirements:
FAR 8.405-6(b) (Limited sources justification and approval) stipulates that a contracting officer who wants to use sole source as procurement method must prepare a sole source justification using the information specified in FAR 6.303-2 (Content of Justifications for Other Than Full and Open Competition (JOFOC)), which delineates the content of sole source justifications, and particularly the efforts made to ensure that the contracting officer did as much as he or she could to get competition, "including whether a notice was or will be publicized as required by Subpart 5.2 and, if not, which exception under 5.202 applies." Note that FAR 6.303-2 does not require a contracting officer to publish a notice, it merely says to state whether a notice was published in accordance with FAR Subpart 5.2 and, if not, what exception applies.

The sole statement constitutes a fruitless protest against sole-source solicitation. Indeed, faulting to give substance to your protest by a preponderance of evidences, your claim will be considered as a mere groundless allegation, and your protest letter will be thusly dismissed.

So, to provide such receivable evidences supporting your protest about the non-legitimacy of sole source solicitation, your protest letter should demonstrate that:

  1. another procurement or solicitation method may apply; and
  2. no reason can justify relying solely on one provider because none of the following reasons that may have been provided as a justification to such a solicitation can apply:
    1. unicity,
    2. immediacy,
    3. emergency,
    4. legitimacy,
    5. inadequacy, or
    6. exigency.

For instance, should the reason provided for using sole source solicitation be that the illegitimately-awarded contractor was the only one to provide the requested goods or services at a reasonable price, and should your organization be a legitimate, but apparently ignored, provider of the same, requested goods or services at a reasonable price, your protest letter would be able to void not only the awarded contract, but the solicitation process itself.

Writing your Sole Source Justification Protest Letter

So, to properly and successfully file a protest against a solicitation process or procurement method based only on sole source, you should write a sole source solicitation protest letter articulating your claim as follows:

  1. Use templates and samples provided in your FREE RFP Letters Toolkit with your organization's formal letterhead to create your own sole source protest letter.
     
  2. specify the action or decision you protest, namely sole source, and describe how you, as a prospective provider, have been or would be affected by or aggrieved with this action or decision.
     
  3. prove and clearly state in your sole-source solicitation protest letter that the solicitation process is obviously erroneous, arbitrary, or contrary to the basic, generally accepted procurement policies, defined for instance in the Federal Acquisition Regulation (FAR) document setting forth basic policies and procedures for proper acquisition by all federal agencies.

FREE Sole Source Protest Letter Template

Use the templates and samples provided in your FREE RFP Letters Toolkit to create your own sole source protest letter.

Sole Source Solicitation Web References

Federal Acquisition Regulation (FAR)
Sole Source Solicitation (SubPart 15, except SubPart 15.3)

This part prescribes solicitation policies and procedures governing competitive and noncompetitive negotiated acquisitions like:

  1. Sole source acquisitions. When contracting in a sole source environment, the request for proposals (RFP) should be tailored to remove unnecessary information and requirements; e.g., evaluation criteria and voluminous proposal preparation instructions.
  2. Competitive acquisitions. When contracting in a competitive environment, the procedures of this part are intended to minimize the complexity of the solicitation, the evaluation, and the source selection decision, while maintaining a process designed to foster an impartial and comprehensive evaluation of offerors’ proposals, leading to selection of the proposal representing the best value to the Government (see FAR 2.101).

Competition in Contracting Act (CICA)
Public Law 98-369, sec. 2701, embedded into FAR Part 6

In 1984, the Competition in Contracting Act (CICA), established "full and open competition" (FOC) as the standard in federal contracting. CICA’s enactment marked a culmination of concerns that competition had become the exception, rather than the rule, in acquiring goods and services. CICA’s competition requirements are implemented in the Federal Acquisition Regulation (FAR), Part 6.

Organizational Conflict of Interest (OCI)
Embedded into FAR §9.5

The Organizational Conflict of Interest (OCI) prescribes responsibilities, general rules, and procedures for identifying, evaluating, and resolving organizational conflicts of interest. OCI also provides examples to assist contracting officers in applying these rules and procedures to individual contracting situations; and implements section 8141 of the 1989 Department of Defense Appropriation Act, Pub. L. 100-463, 102 Stat. 2270-47 (1988). 9.501.

Bid Protest decisions listed by Federal Acquisition Regulation
Federal Acquisition Regulation (FAR) §6.303

Agency's justification for sole-source procurement is inadequate where the documentation does not reasonably show that only this exact product will satisfy the agency's needs, and does not show that the agency's need for the item is of unusual and compelling urgency that was not created by a lack of advance planning.

Listing and key excerpts of court decisions related to bid protest cases whether in favor of the Government or the Protester.

Board of Contract Appeals (BCA) (prior July 1st, 2012)
Government Printing Office (GPO)

Board of Contract Appeals (BCA) (since July 1st, 2012)
Department of Veterans Affairs Board of Contract Appeals (VABCA)

Tips, templates, and samples of a professional protest letter

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