Sole-Source Options for Agencies During the COVID-19 Pandemic

The current COVID-19 pandemic has prompted the federal government to take drastic measures. It has altered many aspects of federal contracting for contractors and agencies alike. During these trying times, agencies also have the authority to streamline some contracting procedures. Let’s take a look.

FAR part 18 provides “acquisition flexibilities” that are available to contracting officers for emergency acquisitions. What are acquisition flexibilities, you ask? They are “specific techniques or procedures that may be used to streamline the standard acquisition process” when certain conditions are met. And it’s not hard to imagine that during a global pandemic, agencies will find that the required conditions are met.

One such option is for unusual and compelling urgency. The FAR allows agencies to “limit the number of sources” and forgo “full and open competition . . . for contracting actions involving urgent requirements.” The first items that come to mind here are certainly medical supplies. But if you have been to a grocery store in the last few weeks, you are aware that urgent requirements are likely to extend far beyond what pharmacies and medical equipment suppliers commonly provide.

Additionally, FAR 6.302-3 provides an exception to the full and open competition requirements when it is necessary to award a contract on a sole-source basis in order, among other things, “[t]o maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization.”

The national emergency and industrial mobilization exception may be used for a number of different circumstances:

  • (i) to ensure “vital facilities or suppliers” stay in business;
  • (ii) to train suppliers in furnishing “critical supplies or services”;
  • (iii) to maintain balanced supply sources for industrial mobilization;
  • (iv) to establish or maintain the required domestic capability to produce critical supplies by limiting competition geographically;
  • (v) to continue the manufacturing of critical items; or
  • (vi) to “[d]ivide current production requirements among two or more contractors to provide for an adequate industrial mobilization base.”

These circumstances will result in additional sole-source opportunities for federal contractors to support our nation in its time of need. Now is a good time for contractors to remind agencies of the urgently needed supplies and services they can provide. But small businesses shouldn’t be ignored out of the mistaken belief that larger businesses can work faster or provide products sooner.

The FAR specifically enumerates sole-source options for agencies to contract with various socioeconomic set-asides during this time, just as they could at other times. These are options agencies should still be using to award contracts, despite the pandemic.

For instance, FAR 18.114 provides agencies with the authority to award contracts to 8(a) participants on either a sole source or competitive basis. FAR 18.115 allows sole-source awards to HUBZone concerns. FAR 18.116 provides the authority to sole-source contracts to service-disabled veteran-owned small businesses. And FAR 18.117 allows sole-source awards “to economically disadvantaged women-owned small business concerns and women-owned small business concerns eligible under the Women-Owned Small Business Program.”

These options, as well as other non-competitive procedures, are likely to become a common avenue for federal procurements in the weeks to come. Agencies should make a point to utilize these set-aside options to lean on the diverse capabilities of small businesses throughout the nation in these trying times.