2024: The FAR, Federal Acquisition Regulations - Part 8

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2024 Webinar Series
THE FAR
THE FAR – PART 8

2024 Webinar Series
THE FAR
FAR PART #8:
Required Sources of Supplies and Services
SPEAKER: Adam Lasky
FIRM: Seyfarth Shaw
EMAIL: alasky@seyfarth.com

Agenda
⮚Subpart 8.0 – Priorities and Mandatory Sources
⮚Subpart 8.4 – Federal Supply Schedules
⮚Subpart 8.6 – Acquistion from Federal Prison Industries
⮚Subpart 8.7 – Acquistions from Nonprofit Agencies Employing People Who
Are Blind or Severely Disabled
⮚Subpart 8.8 – Acquisition of Printing and Related Supplies
⮚Subpart 8.11 - Leasing of Motor Vehicles

Subpart 8.0 – Priorities and Mandatory Sources
⮚ FAR 8.002 Priorities for use of mandatory Government sources.
⮚ Mandatory source priorities for Supplies
⮚ (i) Inventories of the requiring agency.
⮚ (ii) Excess from other agencies (see Subpart 8.1).
⮚ (iii) Federal Prison Industries, Inc. (see Subpart 8.6).
⮚ (iv) Supplies that are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or
Severely Disabled (see Subpart 8.7).
⮚ (v) Wholesale supply sources, such as stock programs of the General Services Administration (GSA) (see 41 CFR 101–
26.3), the Defense Logistics Agency (see 41 CFR 101–26.6), the Department of Veterans Affairs (see 41 CFR 101–
26.704), and military inventory control points.
⮚ Unusual & compelling urgency exception
⮚ Mandatory source priorities for Services
⮚ Services that are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or
Severely Disabled (see Subpart 8.7).

⮚FAR 8.003 Use of other mandatory sources
⮚Directives on mandatory sources for specific supply/service types
⮚(a) Public utility services (see part 41).
⮚(b) Printing and related supplies (see Subpart 8.8).
⮚(c) Leased motor vehicles (see Subpart 8.11).
⮚(d) Strategic and critical materials (e.g., metals and ores) from inventories exceeding
Defense National Stockpile requirements

⮚FAR 8.004 Use of other sources – suggestions if can’t satisfy through a mandatory source
⮚Supplies
⮚Federal Supply Schedules, Governmentwide acquisition contracts, multi-agency
contracts, and any other procurement instruments intended for use by multiple
agencies, including blanket purchase agreements (BPAs) under Federal Supply
Schedule contracts (e.g., Federal Strategic Sourcing Initiative (FSSI) agreements
accessible at http://www.gsa.gov/fssi (see also 5.601)).
⮚Services
⮚Same list as supplies, but also Federal Prison Industries, Inc.

Subpart 8.4 – Federal Supply Schedules
⮚Managed by GSA
⮚Provides simplified contracting process for obtaining common goods and services
⮚GSA consolidated 24 legacy schedules under a single MAS (Multiple Award Schedule) contract
⮚Contractor’s MAS contract contains price list
⮚GSA awards schedule contract, other agencies buy off schedule contract
⮚FAR 13, FAR 14, FAR 15 and FAR 19 competition policies do not specifically apply

⮚Ways to buy
⮚Direct order
⮚open competition amongst schedule holders
⮚set-asides amongst schedule holders
⮚sole source
⮚BPA
⮚single or multiple award IDIQ vehicle
⮚orders placed thereunder
⮚GSA CTAs

⮚Common procurement pitfalls with GSA schedules
⮚Awardee proposed something not on its schedule (Chicago Am. Mfg. LLC, B-420533, B-
420533.2 (May 23, 2022))
⮚Use of highest-technically rated, reasonably-priced source selection method to establish
BPAs – FAR 8.4 mandates consideration of lowest cost alternative as part of best value
selection (Noble Supply & Logistics, Inc., B-418141 (Jan. 16, 2020))

⮚ Special bid protest rules
⮚ Normally FASA task order bar applies to bid protests of Orders
⮚ $10m/$25m GAO protest thresholds
⮚ COFC extremely limited protest jdn
⮚ Federal Circuit has held that GSA MAS contract are not “contracts” under FASA
⮚ FASA task order bar doesn’t apply to Orders under GSA schedules
⮚ Same result if Order issued under a BPA under a GSA schedule
⮚ Special size protest rules
⮚ SBA does consider GSA schedules to be contracts
⮚ Can file size protest challenging GSA schedule award classified as small (super rare)
⮚ Can’t size protest a BPA/Order award unless specific recertification is requested by awarding agency

Subpart 8.7 – Nonprofit Agencies Employing People
Who Are Blind or Severely Disabled
⮚Javits Wagner O’Day Act (JWOD) – original version 1938
⮚Promotes federal contracting employment opportunities for blind and severely disabled
⮚Purchases exempt from CICA full and open competition

Subpart 8.7 – Nonprofit Agencies Employing People
Who Are Blind or Severely Disabled
⮚U.S. AbilityOne Commission maintains the “Procurement List”
⮚Official list of all requirements currently in the AbilityOne Program  commodities and
services the Commission has determined suitable to be furnished to the Government by
nonprofit agencies for the blind or nonprofit agencies employing persons with significant
disabilities pursuant to the JWOD Act and associated regulations
⮚Services: Identifies Federal Agency, Line of Business and Address (location)
⮚Products: Identifies name and National Stock Number (NSN) or commercial name for
each product

Subpart 8.7 – Nonprofit Agencies Employing People Who
Are Blind or Severely Disabled
⮚Once product/service is added to PL, federal customer must buy
from the qualified NPA on the list “unless the Commission
“determines that none of the nonprofit agencies participating in the
AbilityOne Program are capable and desirous of furnishing the
commodity or service to the Government, or if [AbilityOne] decides
that the commodity or service is no longer suitable for procurement
from nonprofit agencies employing people who are blind or have
severe disabilities.” Melwood Horticultural Training Center, Inc. v.
United States, 153 Fed. Cl. 723 (2021)

Subpart 8.7 – Nonprofit Agencies Employing People Who Are Blind or Severely Disabled
⮚SEKRI, Inc. v. United States, 165 Fed.Cl. 21 (2023) (court granted NPA’s pre-award protest on basis
that DLA and AbilityOne violated JWOD by proposing to award 50% of solicitation for advanced tactical
assault panels (ATAP) competitively to commercial supplier rather than 100% to nonprofit agency that
AbilityOne had designated as mandatory source of supply for ATAP for US Army)
⮚Goodwill Industries of South Florida, Inc. v. United States, 162 Fed.Cl. 160 (2022) (court granted NPA’s
post-award protest; procurement of certain hot-weather pants for use by Army from any source other
than protestor violated procurement statutes and regulations governing non-competitive procurement
from qualified NPA; government was required to purchase the pants from a JWOD Act qualified
nonprofit; government failed to comply with the procedures set forth in the JWOD Act for obtaining an
exception to the purchase requirement)
⮚Melwood Horticultural Training Center, Inc. v. United States, 153 Fed. Cl. 723 (2021) (incumbent NPA
protested pilot program that added a price competition component to the AbilityOne procurement
process to recompete Army base operations support services contract; court held price-centric pilot
program violated JWOD and AbilityOne Commision’s procurement regulations)

Subpart 8.7 – process
⮚Federal agency conducts identified need and
conducts market research, suitability of AbilityOne
⮚CNA conducts incumbent adverse impact review ---
advises whether suitable for AbilityOne
⮚Federal agency negotiates contract terms and fair
market price with NPA (contractor) through CAN
⮚CNA sends proposal to Commission to add
service/product to Procurement List
⮚Commission considers, publishes in Federal
Regiser
⮚Commission publishes addition of service/product
to Procurement List
⮚six to twelve month process

Subpart 8.8 - Printing and Related Supplies
⮚Covers:
⮚“printing, binding, and blankbook work for the use of an executive department, independent
agency, or establishment of the Government.”
⮚“supplies that are used and equipment that is usable in printing and binding operations”
⮚Agencies must use Govt Publishing Office (GPO) for covered services unless an 8.802(a) exception
applies
⮚Congress (Joint Committee on Printing) may authorize GPO to contract-out printing work or
individual agencies to do same
⮚Veterans4You LLC v. United States, 985 F.3d 850 (Fed. Cir. 2021) (in appeal of pre-bid protest, Fed.
Cir. narrowly construed meaning of term “printing” in order to avoid issue of whether statutory mandate
that all printing, binding and blank-book work for most government entities, other than Supreme Court,
be done at GPO violated constitutional separation of powers principles)

Subpart 8.11 - Leasing of Motor Vehicles
⮚ Before procuring, agency must certify:
⮚ vehicles requested are of maximum fuel efficiency and minimum body size, engine size, and equipment (if any)
necessary to fulfill operational needs, and meet prescribed fuel economy standards, are “essential to the agency's
mission,” and are essential to the agency's mission;
⮚ GSA has advised that it cannot furnish the vehicles
⮚ Contract must specify
⮚ Method of computing payments.
⮚ number and type of vehicles required, and the equipment and accessories to be provided with each vehicle
⮚ Responsibilities of the contractor or the Government for furnishing gasoline, motor oil, antifreeze, and similar items,
and emergency repairs and services.
⮚ Unless it is determined that it will be more economical for the Government to perform the work, a statement that the
contractor shall perform all maintenance on the vehicles.
⮚ In re Butler Ford, AGBCA No. 98-188-1, 01-2 BCA ¶ 31485 (June 27, 2001) (contract was so ambiguous that it was
enforceable by contractor beyond payment for actual vehicles leased during period of use)

2024 Webinar Series
THE FAR
THANK YOU FOR ATTENDING!
FAR PART #8:
Required Sources of Supplies and Services
SPEAKER: Adam Lasky
FIRM: Seyfarth Shaw
EMAIL: alasky@seyfarth.com

2024 Webinar Series
The FAR:
Federal Acquisition Regulations
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2024: The FAR, Federal Acquisition Regulations - Part 8

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2024: The FAR, Federal Acquisition Regulations - Part 8