GSA Buys - Award Without Discussions

There is nothing I know of that precludes Contracting Officials from applying all or part of FAR Part 15 to GSA Buys; they're just not required to. The solicitation must set forth whatever procedures that will be followed, and then you must be careful to follow those procedures.

Yes, the intent of FAR Subpart 8.4 direction is to preclude the use of FAR Part 15. Remember the FSS/MAS establishes the ordering procedures and so FAR Part 15 does not apply unless the specific FSS/MAS contract says it does. I know of no FSS/MAS that provide that FAR Part 15 applies to the ordering procedures.

For ordering procedures GSA has set forth the general guidelines to use. They can be found here…http://www.gsa.gov/portal/category/100755 “Best value” type processes are encouraged to select contractors along with the suggestion that further price reductions from the schedule pricing should also be sought, where appropriate. This suggests to me that you would have “discussions” with contractors but they would again fall short of those as defined in the FAR as “exchanges”. Here are a couple of quotes from the above referenced website desk reference on FSS/MAS use …

“Use oral clarifications.”

And

“Limited communications with Schedule contractors to seek additional or clarifying information is allowed and is not considered formal “exchanges.””

To add to what others have said, do not use FAR Part 15 terminology (competitive range, clarifications, discussions, final proposal revisions) in the RFQ. If the acquisition is conducted like a FAR Part 15 action (and GAO takes terminology into account) the GAO will treat it as such in the event of a protest and apply their goofy case law when deciding the issue.

You can conduct it like FAR Part 15, but why would you want to?

C Culham,

I accessed the MOBIS Solicitation and it includes the language prescribed in FAR Part 52.212-1, "The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror's initial offer should contain the offeror's best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the CO to be necessary." I am assuming that it is okay for me to include this language into the RFQ solicitation to instruct offerors how proposals will be evaluated for a commercial buy.

I read the information contained in the MAS Desk Reference and the language you quoted, “Limited communications with Schedule contractors to seek additional or clarifying information is allowed and is not considered formal “exchanges”, pertains to the use of oral presentations. Do you recommend that this language be utilized for the RFQ solicitation?

Does the MOBIS solicitation apply that provision to competitions for task orders under a MOBIS contract, or only to competitions for award of a MOBIS contract under FAR Part 15?

Acq_4_Life – Vern has posed one question that would be applicable to your question regarding the language of FAR 52.212-1. By read of 52.212-1 is a provision that is applicable to the solicitation of the proposed MOBIS contract and as such this instruction provision is not carried forward as applicable to the RFQ process for resulting TO/DO’s issued against the awarded contract. I believe I am supported in this view in that the MOBIS Ordering Clause 52.216-18 makes reference only to “terms and conditions” from the MOBIS “contract” being applicable and not the terms and conditions of the “solicitation” to the orders. The “Table of Contents” for the MOBIS solicitation is also support in that it states “Part I” of the package is contract terms and conditions, while “Part II” containing the 52.212-1 clause is “Vendor Instructions”.

Also in a previous post by Vern his caution about how including language that mirrors FAR Part 15 could get you in a pickle with GAO is great advice.

While one of my quotes of the desk reference was taken from the oral presentations my read of that sentence with the rest of the desk reference leads me to believe it is simply support of the fact that limited communication with FSS/MAS contractors is okay whether in the context of oral presentations or in the context of paper presentations.

As you were reading the Oral Presentation discussion did you see the red NOTE box at the top of the page? It reinforces the responses you have received to date in that it is up to CO discretion on the procedures to use when ordering against a FSS/MAS but it is highly recommended by GSA to stay away from FAR Part 15 procedures.

So in direct response to your question if it were me I would not put anything in the RFQ regarding discussions, proceed following FAR Subpart 8.4 and the desk reference, and have limited communications with the contractors, or not, as the case may be as you wind through your selection process.

If you still have a question as to what you should or should not do I recommend you contact the GSA contract representative for the MOBIS and ask how you should proceed. I do suspect that the response you get will generally follow the comments of this entire thread.

PS – And just a little nit picking with regard to your last post where you say “for a commercial buy”. Every buy under the MOBIS made for a MOBIS item (as opposed to an open market item) is for a commercial item. FSS/MAS contracts by their very nature are contracts for commercial items.

Good Morning Vern,

This provision applies to the award of contracts that will result in Indefinite Delivery, Indefinite Quantity, and Fixed Price with Economic Price Adjustment type contracts.

C Culham/Vern,

I just received legal's reveiw on the RFP solicitation. See comments below:

"a. Award without discussions - As presented there is no clear indication that award will be made without discussions. According to FAR 15. 305(a)(3) if award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Award will be made without discussions if the solicitation states that the Govnt intends to evaluate proposals and make award without discussions. Please refer to the FAR part mentioned above."

"b. Past Performance - As presented the evaluation of Past Performance is against the rule established in FAR 15.305(a)(2)(iv). Accordingly, in the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorable on past performance. Please refer to FAR 15.305(a)(2)(iv).

C Cuham,

Thanks for providing the desk reference; it is very informative. If I have any additional questions, I will contact GSA's contract representative. Thanks again.

C Culham/Vern,

I just received legal's reveiw on the RFP solicitation. See comments below:

"a. Award without discussions - As presented there is no clear indication that award will be made without discussions. According to FAR 15. 305(a)(3) if award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Award will be made without discussions if the solicitation states that the Govnt intends to evaluate proposals and make award without discussions. Please refer to the FAR part mentioned above."

"b. Past Performance - As presented the evaluation of Past Performance is against the rule established in FAR 15.305(a)(2)(iv). Accordingly, in the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorable on past performance. Please refer to FAR 15.305(a)(2)(iv).

Acq_4_Life,

What do you think of the comments that you received from legal?

Acq_4_Life,

I don't mean to detract from Don's question because it is really important. But another question is why on you proceeding using FAR part 15? You can mix FAR 15 with FAR 8.4 for ordering but why do it? The guidance Vern gave makes perfect sense and the GSA MAS Desk Reference says follow FAR 8.4 - list your evaluation factors and a brief description of how you will conduct it for quoters and just go with it. I would pull back the solicitation your legal office looked at, revise it, and just issue it onmitting everything with FAR 15

Don Acquisition,

I do not agree with the recommendations that legal provided. My C/O agrees and requests that I revise the RFP and exclude any language that pertains to FAR Part 15.

formerfed,

I plan to revise the RFP solicitation and omit any language pertaining to FAR Part 15. Thanks for your response.

Since FAR 15 does not apply, how does this approach strike readers?

Quote

The agency will assess the résumés, experience, past performance, and the price of quotes in accordance with FAR Subpart 8.4. Non-price factors, when combined, are significantly more important than price. After this assessment, the contracting officer may award a contract to the contractor he or she determines to represent the best value, or may obtain additional information from and negotiate with that contractor to improve the terms of the deal reflected in its quote. If the contracting officer is unable to negotiate a favorable deal with the contractor, he or she reserves the right to negotiate and reach agreement with another firm submitting a quote that was not assessed initially to be the best. This process will continue until a contract has been reached or until all those firms submitting a quote have been considered. If agreement on a deal cannot be reached with any of the firms, negotiations may be reopened with all firms or the solicitation may be canceled.

Unquote

I like it.

napolik - On the right track but changing some of the wording so it does not "talk" like FAR Part 15 would work better for me.

Acq_4_Life - In your revision also get rid of "RFP" too please!!!!!!

napolik,

I like it too. Thanks.

C Culham,

I thought RFQ was used for dollar thresholds under $150K.

napolik,

I like it too. Thanks.

C Culham,

I thought RFQ was used for dollar thresholds under $150K.

The approach has yet to be tested at GAO, but I think it will fly.

You can use RFPs under 150K. See FAR 13.106. You can use RFQs over 150K. See FAR Part 8.4.

In all most all cases you can not and should use an RFP for procedures of competing/ordering a FSS/MAS need. I am sure there might be a few exceptions but reference FAR 8.405 and then the rest of FAR 8.4, you use a RFQ as defined in the context of the ordering procedures for a FSS/MAS not a RFP!

In all most all cases you can not and should use an RFP for procedures of competing/ordering a FSS/MAS need.

Huh?

Vern - ( I hope I got all the caps in the right places!)

FAR 8.405 Ordering procedures for Federal Supply Schedules.

Ordering activities shall use the ordering procedures of this section when placing an order or establishing a BPA for supplies or services. The procedures in this section apply to all schedules. For establishing BPAs and for orders under BPAs see 8.405-3.

FAR 8.405-1 Ordering procedures for supplies, and services not requiring a statement of work.

(a) Ordering activities shall use the procedures of this subsection.....

FAR 8.405(1)©(1) Orders exceeding the micro-purchase threshold but not exceeding the simplified acquisition threshold. Ordering activities shall place orders with the schedule contractor that can provide the supply or service that represents the best value. Before placing an order, an ordering activity shall:

(1) Consider reasonably available information about the supply or service offered under MAS contracts by surveying at least three schedule contractors through the GSA Advantage! on-line shopping service, by reviewing the catalogs or pricelists of at least three schedule contractors, or by requesting quotations from at least three schedule contractors (see 8.405-5); or

FAR 8.405-1(d)(2)The ordering activity contracting officer shall provide an RFQ....

I will stop here as the FAR (and the MAS Desk Reference) can be read for what it is.

I'm not questioning your statements about RFQs. I just don't understand the phrase "you can not and should" use an RFP. Did you mean you cannot and should not use an RFP?

I never call my request a RFP, even if it is for a multi-million dollar task order.

FAR 8.405-2( c )( 2 ) calls them RFQ under the simplified acquisition threshold, and 8.405-2( c )( 3 ) calls them RFQs above the simplified acquisition threshold.

So I always use RFQ, never RFP, when ordering services under Federal Supply Schedules. I don't want to introduce any Part 15 wording.

Vern - My mis-read of your quick question, sorry. Yes to your question in your last post, my post was in error and your read is correct. Bluntly restated on my part, do not use an RFP for a FSS/MAS.

I found this at a GSA website: http://interact.gsa....chedules-far-84

It's "RFQ-Quote" Rather Than "RFP-Offer" When Talking About Orders Against Schedules (FAR 8.4)

FAR SubPart 8.4 gives us the only terminology appropriate for Schedule ordering.

The Request for Quotation (RFQ) is the document issued by the ordering activity to firms holding Schedule contracts. Schedule contractors respond to the RFQ with quotations. FAR 8.402(d) describes eBuy as GSA’s electronic RFQ system. FAR 8.405-2 defines the only ordering procedures for services requiring a statement of work. Those are specifically called “Request for Quotation procedures” in the title of FAR 8.405-2©. “The ordering activity shall provide the RFQ(including the statement of work and evaluation criteria) to at least three schedule contractors…” FAR 8.405-2©(2)(ii). Above the maximum order threshold or when establishing a BPA, ordering activities shall “provide the RFQ (including the statement of work and evaluation criteria) to additional schedule contractors that offer services that will meet the needs of the ordering activity.” FAR 8.405-2©(3)(i).

Calling the document used to request quotes from Schedule contractors an “RFQ” has absolutely nothing to do with an ordering activity’s ability to use the full range of best value evaluation, trading off price factors against non-price factors. (Notice in the preceding paragraph that whenever “RFQ” was used in the FAR’s Schedule RFQ procedures, “evaluation criteria” was also mentioned.) The FAR’s “RFQ procedures” say: “Place the order, or establish the BPA, with the schedule contractor that represents the best value (see 8.404(d)).” FAR 8.405-2(d). The ordering activity is to document “the evaluation methodology used” and the “rationale for any tradeoffs in making the selection.” FAR 8.405-2(e).

The only significant difference between “RFP” and “RFQ” is not in the evaluation method and types available, but in the differing points at which offer and acceptance occur. Both an “RFP” and an “RFQ” can trade off price against non-price factors.

A Request for Proposal (RFP) is a solicitation document used in negotiated procurements to communicate government requirements to prospective contractors and to solicit proposals (offers) from them.

A Request for Quotations (RFQ) is also used to communicate government requirements, but quotations submitted in response to it are not offers, and consequently may not be accepted by the government to form a binding contract. The Schedule order (and not the quote) is actually the offer. The contractor accepts the offer (the Schedule order) by either signing it or by doing something that shows acceptance (like ordering supplies or contacting subcontractors). As opposed to an RFP, an RFQ does not solicit binding offers. When the contractor accepts the order (actually or constructively), then acceptance has occurred. The Government Contracts Reference Book (3rd Ed., page 488) notes that the term “RFQ” is certainly not limited to FAR Part 13 simplified acquisitions: “An RFQ is also used when procuring services that require a statement of work from Federal Supply Schedule contractors. FAR 8.504-2( c).”

It is inappropriate and contrary to FAR SubPart 8.4 to call a Schedule order request for quotation an "RFP." The FAR never recognizes “RFP” as a suitable substitute for a Schedule order's “RFQ.” As the FAR (as well as the Government Contracts Reference Book and other sources) point out, “RFP” and “RFQ” are not interchangeable. They differ in when offer and acceptance occurs. When talking about Schedule orders, only "RFQ" is recognized by the FAR.

In addition. GSA’s 2010 Multiple Award Schedules Desk Reference uses the correct and FAR-based “RFQ” (not “RFP”) terminology. See the _Desk Reference's_Section 8 (“Request for Quote (RFQ) and Statement of Work (SOW)”) of the Desk Reference for more information on the Schedule order RFQ process.

Of course, if you are talking about what GSA does at the Schedule contract level in awarding a Schedule or about what agencies do in their non-Schedule FAR Part 15 acquisitions, then it is certainly appropriate to use terms like “RFP, offer, proposal, and contract.”

Note that DFARS subpart 208.4, which contains special rules for orders exceeding $150,000, contemplates the receipt of offers, not quotations, when soliciting FSS contractors. When the new DFARS rule titled "Only One Offer" (DFARS Case 2011-D013) was out for comment, I submitted a comment asking if the rule applied to quotations because, pursuant to FAR supbart 8.4, agencies solicit quotations when ordering under Federal Supply Schedules. I also pointed out the inconsistency between FAR subpart 8.4's use of "quotations" and DFARS 208.4's use of "offers" and suggested that DFARS subpart 208.4 be revised for consistency with the FAR. The response that I got, which I honestly don't understand after reading and re-reading several times, is shown below:

Comment: One respondent questioned whether this rule is applicable to the solicitation of quotations. The respondent noted that quotations are solicited routinely when using the procedures of FAR subpart 8.4.

Response: This rule is applicable to quotes as well as offers. Quotes should be treated the same as offers, for the purposes of this rule. The term ``offer'' used in the provision is comprehensive enough to apply to all competitive acquisitions subject to the final rule. Specifically, the term ``offer'' appropriately applies to acquisitions exceeding the simplified acquisition threshold conducted under FAR parts 8, 12, 14, 15, and 16. FAR defines ``offer'' to include responses to invitations for bids (sealed bidding) and responses to requests for proposals (negotiation), but to exclude responses to requests for quotations (RFQs). However, DFARS parts 208 and 216 already use the term ``offer'' in reference to orders awarded under those subparts. Finally, the final rule does not apply to acquisitions below the simplified acquisition threshold awarded based on quotations received. Therefore, the provisions in the final rule, because they use the term ``offer,'' can be used appropriately for competitions under FAR parts 8, 12, 14, 15, and 16 exceeding the simplified acquisition threshold.

I think this means the DAR Council believes that agencies solicit offers when using FSS procedures for orders over $150,000.

Don,

No, I thnk it means the DAR Council doesn't have the disciplined understanding that the FAR 8.405-2 writers have, or that the writers of the GSA webpage Vern provided have. The DAR Council's undestanding seems undisciplined and sloppy.

I don't believe the DFARS sloppy use of offer changes anything. I still recommend always using RFQ, never RFP, when asking for responses from Schedule contractors.

They're GSA's contracts. GSA has the exclusive right to say what procedures to use when placing orders against them.

I believe the DAR Council response is a result of both ji20874 and Vern's thoughts. There is slim chance that in writing what they did the DAR Council did understand that a CO has wide latitude in seeking FSS/MAS pricing and that if a CO decided to be crazy enough to use a RFP or a IFB that the DFAR wording would cover these instances.

Referring to Vern's great find regarding GSA's position on a RFQ is why I had concerns with napolik's proposed paragraph for the RFQ that was offered in a previous post. I was concerned that the wording was slipping towards walking and talking like FAR Part 15. Keeping in mind that GSA's self proclaimed definition of "best value" as it applies to FSS/MAS is the definition found in FAR Part 2 (Ref. FAR 8.404(d)) and that it is clearly stated that FAR Part 15 does not apply in many references (FAR 8.4, desk guide, the blog, etc. ) it is my view that the terminology and requirements of FAR Part 15 regarding "best value" do not apply. I would agree that GSA does confuse the matter slightly in their MAS Desk Reference by talking about LPTA and trade off but in the end I still believe there is wide latitude for a CO to set their own evaluation method which includes not needing to state the relative importance of the non-price factors as compared to price. This is a rule of FAR Part 15 and not the FSS/MAS ordering instructions, at least by my read.

So using napolik's proposed paragraph I played with it a little and came up with this.....

"Evaluation for this Request for Quote will be based on the résumés, experience, past performance, and the price of quotes and will be evaluated on a comparative basis in accordance with FAR Subpart 8.4 and FSS/MAS instructions. After quote assessment, the contracting officer may award a contract to the contractor he or she determines to represent the best value, or may obtain additional information from and negotiate with that contractor to improve the terms of the deal reflected in its quote. If the contracting officer is unable to negotiate a favorable deal with the contractor, the CO reserves the right to negotiate and reach agreement with another firm submitting a quote that was not assessed initially to be the best value. This process will continue until an order has been reached or until all those firms submitting a quote have been considered. If agreement on a deal cannot be reached with any of the firms, further contractors holding the specific Federal Supply Schedule will be included in the Request for Quote process or at the election of the CO a solicitation will be issued outside the Federal Supply Schedule program (full and open competition or full and open competition after exclusion of sources)."

Just to clarify, that post on Interact is just a forum post and not an offical GSA position. Anyone can post there witn their opinion - that's all. Neverless it is a valid statement that I don't see how anyone could disagree with.

GSA throughout thier training materials and desk guide uses the terms RFQ and RFP interchangably.

FAR 37.602 "A Performance Work Statement (PWS) may…result from a Statement of Objectives (SOO) prepared by the Government where the offeror proposes the PWS.”

So does this mean that a SOO cannot be used for GSA orders?

According to FAR 8.405-2( c ):

Request for Quotation procedures. The ordering activity must provide the Request for Quotation (RFQ), which includes the statement of work and evaluation criteria (e.g., experience and past performance), to schedule contractors that offer services that will meet the agency’s needs. The RFQ may be posted to GSA’s electronic RFQ system, e-Buy (see 8.402(d)).

According to FAR 8.405-2( b ):

Statements of Work (SOWs). All Statements of Work shall include a description of work to be performed; location of work; period of performance; deliverable schedule; applicable performance standards; and any special requirements (e.g., security clearances, travel, special knowledge). To the maximum extent practicable, agency requirements shall be performance-based statements (see Subpart 37.6).

The FAR doesn't define the term "statement of work", so I don't know if it includes a SOO. My understanding is that a SOO is not a statement of work, but I can't prove it using the FAR. As such, I think if your SOO includes the information required by FAR 8.405-2( b ), then you can use a SOO.

That's a technical reading of the FAR. If you ask GSA, they would probably say sure, go ahead, no problem.

Is any of this of any importance? Does it make a difference? Does it matter?

We're talking about GSA FSS -- TIGWAR, The Incredible Game Without Any Rules.

I really appreciate all the responses received on this discussion thread. It helped me a lot! Thanks again!

Some additional info I find useful: http://interact.gsa.gov/wiki/far-part-15-doesn%E2%80%99t-apply-so-don%E2%80%99t-use-it.

This was just added to the WIFCON Protest page, I have not read the entire case but it it appears that it fits nicely here.

FAR 8.4 order, meaningful discussions. See Distributed Solutions, Inc., v. U. S. and Compusearch Software Systems, Inc. No. 12-274C, August 10, 2012 (August 20, 2012. (August 20, 2012)

This COFC decision really contrasts with some of the GAO decisions. GAO is quick to apply FAR 15 rules to GSA FAR 8.4 procedues when there's even a hint the ordering agency used parts of FAR 15.

Here the COFC made several important statements in their decision that runs counter to GAO:

"This court consistently has held that procurements conducted under Subpart 8.4 are different from those conducted under Part 15, even if some procedures also presnet in Part 15 are utilized."

"Therefore, that DOL (the ordering agency) conducted discussions did not mean it had to comply with the strict procedures of FAR Part 15"

"This Court has held that FSS acquisitions are not transformed into negotiated procurements simply because an agency chooses to utilize in its evaluation process more formal elements typically used in a negotiated procurement..."

If I go with an LPTA approach under FAR 8.4 and I need to go out for a round with the vendors, what is the best approach to do that?

If I were going out for a round with the vendors, I would not use LPTA.

If I were going out for a round with the vendors, I would not use LPTA.

If one is using LPTA, I presume that price is the prime consideration after technical compliance. Why box oneself in by not providing for the possibility of some type of negotiations with one or more of the FSS respondents? It would appear that kointhemaking would be acting prudently and he would probably expect a price reduction from the schedule prices. If he doesn't initially reach meet his price objective or has a question concerning technical acceptability of one or more firm's product/service then it may be wise for him to bargain with or otherwise discuss with some firm ir firms whatever is pertinent.

If I go with an LPTA approach under FAR 8.4 and I need to go out for a round with the vendors, what is the best approach to do that?

Hey, kointhemaking. Check out InNeedofWisdoms's "dream" on his profile page. "I have a dream of buyers that just love negotiating...savings that grow in size..." If you want to be a buyer then I hope that you also like to negotiate. That's what buyers that I've known who work outside of the federal government do. Why not you, too - right? Good luck.