ARMY AL&T
Typically, the “only one responsible source” authority at Section 6.302-1 of the Federal Acquisition Regulation (FAR) may apply to pseudo FMS cases. Te justification and approval prepared to support the procurement under the pseudo LOA must identify the implementing agency and the type of appropriated funds applied to the procurement as well as the authority, such as the Building Partner Capacity program, by which the pseudo LOA was created. Te official approving the justification and approval should obtain a copy of the pseudo LOA to confirm that the requirements, terms, conditions and articles or services recorded in the pseudo LOA align with those documented in the justifi- cation and approval.
Application (generally): When a government-to-government agreement between the purchaser foreign government and the U.S. government occurs, and the international agreement directs the sole-source procure- ment, FAR 6.302-4 applies and a formal justification and approval is not required. In this case, the head of the contracting activ- ity prepares a document describing the sole-source procurement for the partner nation. Te Army Federal Acquisition Regula- tion Supplement titles this document “International Agreement Competitive Restrictions.”
When an implementing agency, such as the State Department, executes a pseudo (or simulated) LOA to provide defense articles or services on a sole-source basis to another government depart- ment or agency, and that department or agency will then deliver the articles or services to the partner nation, FAR 6.302-1 gener- ally applies and a formal justification and approval is required.
BASIC CONSIDERATIONS
• Is the procurement funded by U.S appropriated funds or from the FMS country Trust Fund?
• Who initiated the procurement, a foreign country or the U.S. government?
• Are we delivering the item or service to a foreign country or the U.S. government?
For more information on international agreements and their impact on competition in contracting, go to
https://go.usa.gov/xAzuu.
DENNIS P. LONGO is advocate for competition, task and delivery order ombudsman and senior procurement analyst at the Army Contracting Command at Aberdeen Proving Ground, Maryland.
A member of the Army Acquisition Corps, he holds a bachelor's degree from the University of Baltimore and is Level III certified in contracting and acquisition. His assignments include acquisition specialist at the Program Manager for Chemical Demilitarization and procurement analyst at the U.S. Army Legal Services Agency. He served in the military from 1971 to 1973 at
the Southern
European Task Force – Italy and deployed to Iraq as a civilian in 2003. He authored the Defense Acquisition University (DAU) Continuous Learning DOD Purchase Card Tutorial in 2002, the DASA(P) Competition in Army Contracting course in 2019 and the DAU CON 0160 Competition in Contracting course in 2020. He has been teaching courses on competition in contracting since 2004. Te first of the author's On Contracting articles appeared in the Winter 2020 edition of Army AL&T.
STRATEGIC LOCATION
Airmen from the 436th Aerial Port Squadron move cargo onto a Kuwait air force C-17 Globemaster III at Dover Air Force Base Jan. 22. Dover supports approximately $3.5 billion worth of foreign military sales operations annually. (Photo by Senior Airman Christopher Quail, U.S. Air Force)
https://asc.ar my.mil
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