The ANC Sole Source Advantage

By federal law, the award of a sole source contract to an ANC entity such as SAM is non protestable.  Also by federal law, there is no dollar limit on the award of a sole source contract to an Alaska Native 8(a) entity provided an appropriate Justification and Approval (“J&A”) is made for the award to the ANC.  By contrast, to make a sole source award to a non-ANC vendor in the typical situation, the J&A would have to demonstrate that a sole source award must be made because of “urgent and compelling” circumstances.  Protests have sometimes successfully challenged the assertion of “urgent and compelling” circumstances, particularly where the protestor has alleged the Government has created or contributed to the “urgent and compelling” circumstances by delay, inaction, etc.  Whether those arguments would or should be successful on a given procurement is largely beside the point, which is that use of SAM’s ANC status to make a sole source award removes the possibility that  an assertion of “urgent and compelling” circumstances will be successfully challenged.