Foreign Military Sales Sole Source Exception: The Current USASAC Practice

摘要

This article describes the legal authorities associated with sole source FMS procurements. Although the article provides an explanation of current U.S. Army Security Assistance Command procedures in processing FMS customer requests for such procurements, the Air Force and the Navy are bound by the same legal authorities, and employ procedures similar to those of the Army. A foreign military sales (FMS) purchaser may lawfully request that a defense article or defense service be obtained from a particular source. The Competition in Contracting Act of 1984, which generally requires that federal agencies obtain full and open competition, exempts procurements in which the 'written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or service for such government, have the effect of requiring the use of procedures other than competitive procedures.' The Federal Acquisition Regulation (FAR) reiterates this exemption, and provides for its use in circumstances such as 'when a contemplated acquisition is to be reimbursed by a foreign country that requires that the product be obtained from a particular firm as specified in the official written direction such as a Letter of Offer and Acceptance.' Further, the Defense Federal Acquisition Regulation Supplement (DFARS) provides that FMS customers may request that a defense article or defense service be obtained from a particular contractor. In such cases, FAR Section 6.302-4 provides authority to contract without full-and-open competition. The FMS customer may also request that a subcontract be placed with a particular firm. The contracting officer shall honor such requests from the FMS customer only if the Letter of Agreement or other written direction sufficiently fulfills the requirements of FAR Subpart 6.3.3.