Legal Impact of Solicitation Responses under IDIQ Contracts

CharliD:

Here are the questions you asked in your long post, along with my answers.

Based on the definition of "solicitation" at FAR Part 2, can an RFP be issued under FAR Part 13 when an offer is desired rather than a quote?

Yes.

And can the Government accept the offer received to form a binding contract?

Yes.

Or is constructive acceptance required?

No. Constructive acceptance is usually the result of a screw-up. Why would it ever be required?

When an IDIQ contract is in place, can an RFQ be issued for projects exceeding the SAT (construction, non-commercial item)?

Yes.

FAR 16.505 paren b addresses placement procedures and does not address solicitation procedures, specifically. Is this semantics?

I don't understand that question. Semantics is the study of meaning. Are you asking if the absence of any mention of solicitation procedures means something?

Does the mere existence of an IDIQ contract automatically move the orders into the simplified acquisition arena?

No.

Does FAR Part 13 offer advice on when to use an RFQ vs. an RFP?

No. As far as I know the terms "RFP" and "request for proposal" do not appear in Part 13, "request for quotations" appears only twice, and "RFQ" not at all.

Since a certain amount of negotiation can happen under FAR Part 13, would use of an RFP only be appropriate when using evaluation factor other than price or price-related (FAR Part 15)?

No. Why would you think that? An RFP could also be appropriate even if there were no evaluation factors other than price and price-related.

Do thresholds play into the type of solicitation issued under an IDIQ contract?

I presume that you mean dollar thresholds. If so, the answer is no.

And can the quote submitted be used for form a binding contract?

A quote can be used as the basis for negotiations, which can lead to a binding contract. In that sense a quote can be "used" to form a binding contract. But a quote cannot be accepted to form a binding contract.

CharliD,

Are you trying to determine whether a solicitation issued under a multiple-award IDIQ contract is an RFQ or an RFP? If so, why does it matter?

CharliD,

You must not even trouble yourself by asking if a solicitation issued under FAR 16.505 falls under Part 13 or Part 15. A notice of intent to make a purchase issued under FAR 16.505 is not a FAR Part 13 RFQ, is not a FAR Part 14 IFB, and is not a FAR Part 15 RFP.

What's a "notice of intent to make a purchase"? Is that all it is -- a notice of intent?

16.505 Ordering.

. ( b ) Orders under multiple-award contracts-

. ( 1 ) Fair opportunity.

. ( iii ) Orders exceeding the simplified acquisition threshold.

. ( b ) The contracting officer shall-

. ( 1 ) Provide a fair notice of the intent to make a purchase . . . to all contractors offering the required supplies or services under the multiple-award contract….

. ( iv ) Orders exceeding $5 million. For task or delivery orders in excess of $5 million, the requirement to provide all awardees a fair opportunity to be considered for each order shall include, at a minimum-

. ( A ) A notice of the task or delivery order that includes a clear statement of the agency’s requirements….

FAR 16.505( b ) Orders under multiple-award contracts, never uses the word “solicitation” to describe the document we send to multiple-award IDIQ contract holders when we are trying to get an offer that might result in a task order. Rather, it uses the word “notice.”

The original poster errs in thinking of his or her notices as solicitations, and then, thinking of them as solicitations, feeling he must categorize and treat them as RFQs under FAR Part 13 or RFPs under FAR Part 15 (why not IFBs under FAR Part 14?). All of this effort is a waste, unless he or she learns something -- that something will be that it is unnecessary for him or her to make any categorizations at all and that anyone errs in trying to impose FAR Part 13 or FAR Part 15 rules and procedures on solicitations/notices to multiple-award IDIQ contract awardees in a task order acquisition.

By using the word “notice,” I stay true to FAR 16.505( b ) (stay in your lane) and I help others understand correct principles. And I avoid the trap the original poster has fallen into.

p.s. I am not a purist in this matter. I acknowledge that the word “solicitation” is used in at least one place in the FAR to describe what FAR 16.505( b ) calls a "notice." But for teaching fundamentals and helping others understand correct principles, I choose to use the word “notice.” The FAR drafters could have used the word “solicitation” in FAR 16.505( b ), but they didn’t – I would assert that their decision was a conscious and purposeful decision, and I support that decision.

p.p.s. I hope this is helpful to the original poster.

Ji, I understand the point you made, but it is nigh the time to be reclassifying our FAR 16 acquisitions from "solicitations" (or RFQ or RFTOP, or whatever) to "notices of intent to make purchase." It is so much easier to type one word or a short acronym to describe our purchases. Your NIMP change would result in millions of dollars in lost productivity.

All kidding aside, if your statement that “[t]he FAR drafters could have used the word 'solicitation,' … but they didn’t,” is true, why is “solicitation” mentioned just centimeters away under FAR Section 16.505(b )(1)((ii)(D )? Did those FAR drafters envision both a “notice of intent to make purchase” and a “solicitation” for each acquisition? I know we rarely see this, but could it instead have been a sloppy FAR writing where “notice of intent to make purchase” and “solicitation” are one in the same?

As I read it, the word "solicitation" in FAR 16.505( b )( 1 )( ii )( D ) refers to the solicitation for the parent IDIQ contract, not the solicitation for the task order.

In all cases, FAR 16.505( b ) uses the word "notice" to refer to the solicitation for a task order -- it never uses the word "solicitation." RFTOP and TORP (and even RFQ and RFP) and all the other terms that are commonly in use are home-made by people who have made a choice not to use the word that the FAR uses. I prefer to use the FAR term rather than any of the home-made terms. How much lost productivity has already occurred and is still occurring by our inconsistent use of terms, and how much confusion (such as the original poster's confusion) is caused by using a word that the FAR doesn't use (such as "solicitation" for a fair opportunity consideration process) and then trying to categorize the "solicitation" as a RFQ or RFP? And then trying to bring FAR Part 13 or FAR Part 15 procedures into FAR 16.505( b )?

Clearly, as has been shown on other WIFCON threads, the 1102 community does not understand the fair opportunity process. The unwillingness of contracting officers, procurement analysts, and managers in contracting offices to read FAR 16.505( b ) and simply do what it says is part of the problem.

Initially, my own policy office objected to my using the word "Notice" in the header of my task order solicitations -- but they have stopped, because I'm doing exactly what the FAR says. They still don't like it, but I can cite scripture, so to speak (to the degree the FAR is our 1102 bible) for use of the word "notice" -- what scripture can be cited for RFTOP and TORP and all the other home-made terms?

Help me understand -- what is a NIMP change?

Okay, I see it now -- NIMP is Notice of Intent to Make a Purchase. :-)

jI20874:

Thanks for the references to "notice of intent to make a purchase." But your statement about the OP erring by calling a request for a task order quote or proposal a "solicitation" is a lot of hooey. Solicitation is common usage, well-established in practice, not prohibited by statute or regulation, not inconsistent with official terminology, and perfectly understandable. Both the GAO and the Court of Federal Claims have used the term "task order solicitation" on numerous occasions.

I didn't recognize "notice of intent to make a purchase" because it's too long and awkward to use and hardly anybody uses it but you. It is nothing more than a phrase. Unlike solicitation, it is not defined in FAR Part 2 or anywhere else in FAR. It appears in only two places in FAR, and is not used in any way that signifies that it rises to the level of official terminology. It's not the same as calling a supplemental agreement a change order or a statement of work a "scope" of work.

You're entitled to be persnickety. I'm persnickety mself. But I won't go along with saying that someone erred by not using your favorite terminology.

ji20874,

While I appreciate and agree with your approach of distinguishing the words and terms used when using different contracting methods, I disagree that a "fair notice of the intent to make a purchase" is not a "solicitation". FAR 16.505( b )(1)(iii)( B ) implies that the purpose of the "fair notice" is to solicit offers:

The contracting officer shall—

(1) Provide a fair notice of the intent to make a purchase, including a clear description of the supplies to be delivered or the services to be performed and the basis upon which the selection will be made to all contractors offering the required supplies or services under the multiple-award contract; and

(2) Afford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.

FAR 2.101 defines "solicitation" as follows:

“Solicitation” means any request to submit offers or quotations to the Government. Solicitations under sealed bid procedures are called “invitations for bids.” Solicitations under negotiated procedures are called “requests for proposals.” Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer.

If you were to say that solicitations under the fair opportunity procedures at FAR 16.505 are called "fair notices of intent to make a purchase", I think that would be fine. However, you will have to come up with an acronym. Such an argument would also harmonize the use of "fair notice of intent to make a purchase" with the word "solicitation" at FAR 16.505( a )(4)(iii)( A ):

For an order in excess of $25,000, the contracting officer shall—

(1) Post the justification and supporting documentation on the agency Web site used (if any) to solicit offers for orders under the contract; or

(2) Provide the justification and supporting documentation along with the solicitation to all contract awardees.

If we go with your argument, we would have to conclude that this use of the word "solicitation" is a mistake.

The way I see it, all contract formation techniques (except for unsolicited proposals) in the FAR involve solicitation and response. We can use more specific words and terms to refer to each, depending on the contract formation technique used.

Great post, Don!

"fair notice of the intent to make a purchase" = FANOOINTOMAP.

It's still too long.

Don,

I have written nothing that you need to disagree with. I never asserted that it is WRONG to call a task order solicitation a solicitation. Indeed, I referred to the notice as a task order solicitation myself, but explained why I generally choose to use the word "notice" instead of "solicitation" while admitting that I am not a purist in this matter. You are proving points that are irrelevant to the discussion.

Throughout this thread, my comments have been three-fold:

First, a task order solicitation is neither a RFQ under FAR Part 13 nor a RFP under FAR Part 15.

Second, FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

Third, I choose to use the term "notice" to describe a task order solicitation because I want to stay true to the FAR and to teach correct principles.

I am right in all of this. There is nothing for you to disagree with.

Vern,

But your statement about the OP erring by calling a request for a task order quote or proposal a "solicitation" is a lot of hooey.

I wish you read what I actually wrote. I wrote,

The original poster errs in thinking of his or her notices as solicitations, and then, thinking of them as solicitations, feeling he must categorize and treat them as RFQs under FAR Part 13 or RFPs under FAR Part 15 (why not IFBs under FAR Part 14?).

Why did you stop reading at the conjunction "and"? I think you know what the "and" means, and I can find some quotes from other postings you have made about the importance of reading "and" correctly. You erred in your interpretation of what I wrote.

Why are Don and Vern so offended that I would use the word "notice" instead of "solicitation"?

Why are Don and Vern so offended that I would use the word "notice" instead of "solicitation"?

I don't know if Don was offended and, if so, why. Don can speak for himself. I was not offended. I was annoyed. There is a difference.

I was not annoyed because you use the word notice instead of solicitation. I was annoyed because you said that the OP erred.

I did not err in my interpretation what you wrote. Your sentence is properly interpreted to say: The OP erred in thinking of his notices as solicitations, and then errs in thinking that he must categorize them under Part 13 or 15. In other words: The errors (plural) are A and then B. That interpretation is justified because you put a comma in front of "and," which writers do to signify that what comes before and after the conjunction are independent clauses -- separate statements. Otherwise, you don't use a comma before a coordinating conjunction. If you had not put the comma in front of the conjunction you would have made a single statement: The error is jointly A and B. Which may be what you meant to say, but didn't. The A and then B interpretation of your sentence is further justified by the statements that preceded it, which provide context, and which imply that the use of the word solicitation in the connection with task orders is, in and of itself, inappropriate.

Since you mention the fact that you use notice instead of solicitation, I will point out that notify and notice and solicit and solicitation mean different things, and that solicit and solicitation are the appropriate words to use if you seek a response. A solicitation requests a response, which necessarily also puts the recipient on notice. But based on its common dictionary definition, a notice serves only to declare an intention, not to request anything. Legal procedure includes notices and of summonses. See Black's Law Dictionary, 9th. A summons gives notice and demands an appearance. A notice just gives notice.

ji20874,

I'm not offended by anything that you have written. However, I interpreted your statement like Vern did (i.e., you were saying that the OP was wrong to refer to the notice as a solicitation). I don't think you effectively expressed what you meant.

WOW! So my question stems from the practice of competing procurements (specifically construction) among multiple IDIQ contract holders and the instructions tell the contractors that the government will be following the solicitation procedures of FAR Part 13, 14 or 15. In my experience this has been typical. But if we do this, doesn't the type of solicitation procedures being followed and the response received affect whether or not that response is legally binding? And I just think (again, maybe over thinking) that the agency where I currently work is making the water very muddy by not being clear or consistent.

I do understand that the difference between a "notice of intent" to do something versus a solicitation for responses and the FAR 16.505 does not specifically require a solicitation, but I really do not know of any other viable way to receive responses that can be effectively evaluated for an award - in the construction world. Further, by issuing a solicitation we are not only obtaining competition, but are also satisfying fair opportunity.

Maybe the answer lies in even attempting to apply solicitation procedures of FAR Parts 13, 14 or 15 to the procedures of Part 16. Maybe I'm just borrowing trouble, but if there is an issue it will be FAR Parts 13, 14 or 15 that provide guidance.

CharliD,

So my question stems from the practice of competing procurements (specifically construction) among multiple IDIQ contract holders and the instructions tell the contractors that the government will be following the solicitation procedures of FAR Part 13, 14 or 15.

Stay in your lane. There is nothing in FAR 16.505( b ) that says your notice has to invoke the procedures of FAR Part 13, 14, or 15. You can if you want to, I recommend that you not make it a practice to include such language in your notices under FAR 16.505( b ), unless your parent IDIQ contracts require you to do so.

Or, there is nothing in FAR 16.505( b ) that says your notice solicitation has to invoke the procedures of FAR Part 13, 14, or 15. I recommend that you not include such language in your notices solicitations under FAR 16.505( b ).

You're asking good questions, and I hope someone reading all this is learning something. If all of this makes anyone go and read FAR 16.505( b ), that's a good step.

Vern,

Since you mention the fact that you use notice instead of solicitation, I will point out that notify and notice and solicit and solicitation mean different things, and that solicit and solicitation are the appropriate words to use if you seek a response. A solicitation requests a response, which necessarily also puts the recipient on notice. But based on its common dictionary definition, a notice serves only to declare an intention, not to request anything. Legal procedure includes notices and of summonses. See Black's Law Dictionary, 9th. A summons gives notice and demands an appearance. A notice just gives notice.

Wrong. In the context of FAR 16.505( b ), a notice affords the multiple-award contract holders the opportunity to repond to the notice and submit an offer for consideration. FAR 16.505( b ) consistently tells contracting officers to provide notices, and never uses the word "solicitation" in this context. Stay in your lane -- in this thread, we're talking about FAR 16.505( b ), not jurisprudence. In the context of FAR 16.505( b ), the notice is a solicitation (but not a Part 13 RFQ, Part 14 IFB, or Part 15 RFP). FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

p_ick one:_ TRUE FALSE

1. FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

p_ick one:_ TRUE FALSE

2. The notices required by FAR 16.505( b )( 1 )( iii )( B )( 1 ) and FAR 16.505( b )( 1 )( iv )( A ) are not solicitations and are not intended to result in contractor submission of offers for the Government's consideration. See Black's Law Dictionary, 9th.

Wrong. In the context of FAR 16.505( b ), a notice affords the multiple-award contract holders the opportunity to repond to the notice and submit an offer for consideration. FAR 16.505( b ) consistently tells contracting officers to provide notices, and never uses the word "solicitation" in this context. Stay in your lane -- in this thread, we're talking about FAR 16.505( b ), not jurisprudence. In the context of FAR 16.505( b ), the notice is a solicitation(but not a Part 13 RFQ, Part 14 IFB, or Part 15 RFP). FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

"Wrong"? Which of my statements in the quote to which you were responding was "wrong"? I don't mind being told that I'm wrong, but I'd like to know what you think I'm wrong about.

What I said was what "notice" means according to a common dictionary and a dictionary of legal terms of art. "Notice" is not officially defined, and FAR 1.108(a) says that when a word is not officially defined you should use the common dictionary definition. Then I said that on the basis of those definitions "solicitation" is more appropriate than "notice" for labeling a request for task order proposals. That's a matter of opinion, not fact. (Don made a pretty good argument for that opinion in Post #11.) I didn't say you couldn't use notice, if you prefer that word. I didn't say that using "notice" is wrong. I didn't say anything about FAR 16.505( b )'s use of the term. Was I "wrong" about the dictionary definitions of notice? Or did you mean to say that you disagree with my assertion about which word is appropriate? Is that what you meant by "wrong" -- that you disagree with me?

I'm interested in communicating as clearly as possible. I'm not concerned, in this case, with using the exact phrasing that appears in FAR, which FAR does not officially define. I think that "solicitation" communicates the government's intent more clearly than "notice." That's my opinion. So what did I say that was factually erroneous?

Lately you've taken to telling people, "Stay in your lane." I think that's a new thing with you, a little newer than your now-frequent use of a red font. You write it as an imperative sentence. An obnoxious command. I don't remember you saying it in the past. In your last post you said it to me. Well, you don't get to designate my lane. I'll comment from whatever lane I choose. I'll drive off road if I want.

CharliD:

Read this: /legacy/reg/a5f88d4bdacf44e9.html.

It's a little out of date, but it might clarify some things for you.

Another reference....WIFCON thread entitled "what is fair opportunity" find it yourself if interested. Makes me wonder if "notice" allows a response by a contractor where it would seem "solicit" or derivatives thereof would? And of interest the OP did not say if the question involved an existing contract (s) and if so what did the contract (s) call it, define it, etc.

My conclusion is that of the archived thread I have referenced, folks are still being driven crazy.

Vern,

...based on its common dictionary definition, a notice serves only to declare an intention, not to request anything...

In the context of FAR 16.505( b ), you cannot rely on the common dictionary definition of notice. In the context of FAR 16.505( b ), the notice certainly is intended to provide an opportunity for multiple-award IDIQ contractors to submit an offer for the Government's consideration.

Don't you agree, in the4 context of FAR 16.505( b )?

I don't object to using the word "solicitation" to describe the notice required by FAR 16.505( b )( 2 )( iii )( B )( 1 ) or ( iv )( A ) -- my caution throughout has been not to take the next step and classify the solicitation as a Part 13 RFQ, Part 14 IFB, or Part 15 RFP.

But you seem to object to my use of the word "notice" in the context of FAR 16.505( b ), even though that is the exact word used in the FAR. The FAR calls it a notice, and I call it a notice.

ji20874:

Oh. So I wasn't "wrong" about anything. Glad to hear it. I guess you misspoke.

Please pay attention. The disagreement between you and me began when you said that the OP erred in thinking of his "notices" as "solicitations". See Post #10. (I know that you say that you didn't mean that, but I have already explained my interpretation of your statement. Don interpreted it as I did, but we arrived at our interpretations independently.) My points have been that "solicitation" is an entirely appropriate word to use in association with prospective task orders, that such usage is widely and well-established in practice and more common than "notice", and that in my opinion it communicates the government's intent more clearly than "notice".

I don't object to your use of the word "notice". In my opinion you are too doctrinaire (and somewhat idiosyncratic) in that regard, but do as you please. I did not say that you are wrong to do so. I don't care what you or anyone else calls the communication that agencies send out in order to solicit task order proposals. I never thought that it was an issue until you seemed to make it one. Like you said in your last post, I think CharliD's mistake was in believing the terms RFQ and RFP to be inextricably associated with the procedures in FAR Part 13 and FAR Part 15. What I objected to was you telling the OP that she made a mistake when she used a perfectly legitimate alternative to "notice". I also object to your obnoxious command to "Stay in your lane," whether directed at me or anyone else.

That's all.

This has been an interesting discussion. The most embarrassing part is that I'm not really new to this field, yet based on my previous experience I had become confused about this stuff. Annoying. Regardless, I hope that for truly novice contract types, this discussion has provided some useful insight, rationale and suggestions.

After referring her to this string, as well as Vern and C Culhams recommended readings, I am recommending the following to my boss.

We should seriously re-vamp our solicitation and response evaluation procedures in the MATOC. In fact, maybe we want to resolicit the base IDIQs and allow the current ones to expire.

We should get rid of all references to FAR Parts 13, 14 and 15 and all terminology such as RFQ, quote, quotation, sealed bid, bidder, IFB, RFP, etc.

We should use terms like solicitation (while I hear/understand ji20874's position, contractors understand the term solicitation much better), response and contractor. We should also state that responses will be evaluated to determine which ones are most advantageous to the Government. That negotiations, if held, will be at the sole discretion of the government and may or may not be held with all contractors that respond to the solicitation.

CharliD:

The key thing to do is this: Read FAR 16.505 thoroughly. ji20874 is correct in emphasizing that. Know it inside and out. Pay special attention to 16.505( b )(1). Note that it does not prescribe a detailed procedure for providing a fair opportunity, so develop a procedure or set of procedures that complies with specific direction but that is efficient, fast, and inexpensive for the contractors. As much as possible, avoid the FAR Part 15 process model and its attendant terminology (competitive range, clarifications, discussions, final proposal revisions, etc.).

I don't see anything wrong with using RFP in the context of requesting proposals for a new task order against a multiple award contract. If you had 2 or more small business you could send out a "notice" of a planned small business set-aside for a new task order, then based on the response send out the actual task order "solicitation" (RFP) accordingly once the acquisition strategy was determined.

Oh, TAP -- please, no -- don't tell me I have to do a notice and then a solicitation!

No, no , no. [I hope this isn't too doctrinaire :-) ]

The notice required by FAR 16.505( b )( 2 )( iii )( B )( 1 ) or ( iv )( A ) is all that is required -- you don't need a notice and then a separate solicitation. In this regard, the notice is the solicitation, whether you call it a notice or a solicitation or a TORP or a TORFP or whatever other term is being used.

Anyone involved in this business really needs to actually read FAR 16.505( b ). I also recommend that they follow it.

Chill. You're being silly. A notice could be an email:

To: All contractors

Fm: Contracting officer

Subject: Notice of fair opportunity

Hi all. This is a heads up notice pursuant to FAR 16.505( b ) that we're going to buy services under the contract by issuing a task order. We plan to email the TORFP for a firm-fixed-price order in about 10 days from today. The TORFP will include the statement of work. We expect the price to be no more than $,$$$,$$$.

We will give you 5 days to comment on the statement of work, which we will then finalize within 5 days. We plan to give you 10 days to email your proposals to me after we send you the final version of the SOW. The evaluation factors will be past performance and price, which will be equally important. We'll evaluate past performance based on what we already know. No need to submit anything but a price.

Please acknowledge this email and let me know tomorrow by the close of business whether you plan to submit a proposal, then get ready to rumble. We plan to keep this thing simple and get it done likety-split.

Call me if you've got worries that are going to keep you up at night.

Thanks, Contracting Officer

How about using the notice as the solicitation, as contemplated by FAR 16.505( b )? Something like,

To: All Contractors

Fm: Contracting Officer

Subject: Notice of Fair Opportunity

Hi all. This is a notice pursuant to FAR 16.505( b ) that we're going to buy services under the contract by issuing a task order. The statement of work is attached. We expect the price to be no more than $,$$$,$$$.

You are afforded an opportunity to respond to this notice by submitting an offer for the Government's consideration. Your response is due to me by reply e-mail by [date]. The evaluation factors will be based on past performance and price, which will be equally important. We'll evaluate past performance based on what we already know. No need to submit anything but a price, in the following format:

. Item Description Qty Unit Unit Price Amount

. 001 Services As Described 12 MO $_____ $_____

. in SOW

Call me if you've got worries that are going to keep you up at night.

Thanks, Contracting Officer

I didn't say you had to do a notice and then a solicitation. I would probably only do so if I had 2 or more small business, as well as other than small businesses, and I planned on soliciting as a small business set-aside. If 2 small business didn't respond I'd then go unrestricted.

ji20874:

I'd buy that. However, in my original formulation the contractors get five days to comment on a draft SOW before they have to submit a proposal. I like that feature. That's why the heads up notice before the solicitation.

Remember, there are virtually no rules under FAR 16.505( b ). I would keep it informal, simple, and fast, but I want a chance to get feedback from offerors and maybe even to discuss it with them before I ask them to commit.

A notice of intent may (or may not) be presented as a solicitation:

Notice of intent that is a solicitation: The Government intends to place an order for XYZ on 9/2/15. The purchase will be made based on price alone and will be awarded to the contract holder offering the lowest price. Please submit your best pricing for XYZ by COB 9/1/15.

Notice of intent that is not a solicitation: The Government intends to place an order for XYZ on 9/2/15. The purchase will be made based on price alone and will be awarded to the contract holder offering the lowest price. The Government will consider IDIQ established prices and all subsequent pricing offers submitted to the Government by COB 9/1/15.

In the first example the notice is requesting an offer “please submit…”. In the second example the notice does not request anything. It only states what the Government intends to do.

FAR 2.101 "Contract" appears to define a Task Order as a contract that becomes effective by written acceptance or performance.

If a RFP is issued under a multiple award task order contract, would the government's acceptance of the offer/proposal and resultant issuance of a Task Order create a binding contract or would the contractor need to sign or perform in order to establish a contract?

How about if a RFQ is issued under a multiple award task order contract, would the government's resultant issuance of a Task Order create a binding contract or would the contractor need to sign or perform in order to establish a contract?

How do you navigate clauses such as 52.216-22 that seem to indicate that once the government issues an order in accordance with the ordering clause that a contractor is bound to furnish the services?

In an effort to harmonize everything (definitions, forms DD 1155/SF 26, clauses, law, etc.), does it make more sense to issue solicitations, under IDIQs, without labeling them RFQ, RFP, etc.? Interesting enough, FAR 16.505 only uses the term quote for ordering instructions under the SAT. It uses the term offer for ordering instructions under and over the SAT.

If a RFP is issued under a multiple award task order contract...

Why would you issue a RFP under a multiple award task order contract? FAR 16.505( b ) says nothing about an RFP. Since the FAR doesn't use that term, I don't use that term. Rather, FAR 16.505( b )( 1 )( iii )( B )( 1 ) (for proposed actions exceeding the SAT) and 16.505( b )( 1 )( iv ) (for proposed actions over $5.5 Million) uses the term "notice." I recommend you use the term "notice" for your solicitation instead of RFQ or RFP. The notice is supposed to include all the essential information so a contract holder can respond and be considered.

FAR 2.101 "Contract" appears to define a Task Order as a contract that becomes effective by written acceptance or performance.

No, it doesn't. You might be conflating purchase order and task order. FAR 2.101 defines contract as including purchase orders, not task orders, that become effective by written acceptance or performance.

With those two notions knocked down, then the clauses at FAR 52.216-18 and -22 are left by themselves, and the correct principle is undisturbed -- a task order is effective and binding upon issuance. If you don't label your notices (or solicitations) as RFPs or RFQs, you can help avoid the problems that others create when they try to impose FAR Part 13 or 15 procedures onto fair opportunity considerations under FAR 16.505( b ).

ji20874:

The terms quote and offer appear to be strategically placed in FAR 16.505. It seems logical that RFQs net quotes, and IFBs and RFPs net offers. This is supported in 2.101 under "solicitation".

How do you reconcile language in 2.101, which states "Contract means...orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance..."?

See also - /blogs/don-mansfields-blog/dar-council-interprets-contract-to-include-task-and-delivery-orders

Note, I don't favor this interpretation. Furthermore, I believe I understand what you are getting at with identifying the solicitation as a notice, but that doesn't address the fact that 16.505 uses the terms quote or offer explicitly.

Quote and offer is used below the SAT suggesting we can solicit either, but offer is used exclusively over the SAT. Does that suggest we should only solicit offers over the SAT? If it's not expressly prohibited by rule, it should be allowable to request quotes over the SAT.

Despite what the solicitation was called, the contractors submission seemingly has to be considered as a quote or an offer. If that's true, we know the legal effects of quotes and offers, which may lead to the inconsistencies I originally stated.

With those two notions knocked down, then the clauses at FAR 52.216-18 and -22 are left by themselves, and the correct principle is undisturbed -- a task order is effective and binding upon issuance. If you don't label your notices (or solicitations) as RFPs or RFQs, you can help avoid the problems that others create when they try to impose FAR Part 13 or 15 procedures onto fair opportunity considerations under FAR 16.505( b ).

Emphasis added.

Not necessarily.

The ordering clause, FAR 52.216-18, is dated 1995. It was written before the emergence of the modern task order contract. It was written with the expectation that the items in IDIQ contracts would be fully priced, and so an "order" would be just that -- a command -- that could be issued once the Government unilaterally determined the quantity to be acquired. But today's task order contracts commonly do not stipulate specific tasks or task prices. They stipulate only labor rates, and the Government may be not be contractually empowered to dictate either the kinds or hours of labor that are to be consumed in performance. In such a case, and absent a contract term to the contrary, an order cannot be priced without mutual assent. Under some task order contracts, contractors are not even required to submit quotes or offers for prospective task orders.

If an order cannot be priced without mutual assent, then it follows that it is not binding upon issuance without mutual assent. The question thus becomes: How will the parties manifest mutual assent? Is the order an acceptance of an offer by the Government? Is it an offer from the Government that is to be accepted by the contractor, either by signature or performance? You cannot dodge those issues though your choice of name: notice vs. RFP or RFQ. You must read and interpret a contract as a whole and consider all the facts. You cannot rely on the ordering clause without considering the rest of the contract and integrating all terms.

If a RFP is issued under a multiple award task order contract, would the government's acceptance of the offer/proposal and resultant issuance of a Task Order create a binding contract or would the contractor need to sign or perform in order to establish a contract?

The FAR definition of contract has no bearing on the answer to that question. Read the contract. Read the contractor's response to the notice/solicitation. Read the order. Was mutual assent required? If so, how was it to be manifested? Was it manifested in accordance with the terms of the contract or the agreement of the parties?

What you call things may not be decisive. What is more likely to be decisive is what those things are in fact and law.

Jamaal, I think you are looking for a simple answer to a complex question.

I think you're making it too hard.

FAR 16.505( b ) doesn't require either RFQs or RFPs. It doesn't require solicitations, either. Since FAR 16.505( b ) doesn't require solicitations for fair opportunity considerations, your reliance on the definition of solicitation in FAR 2.101 is misplaced. You may forget everything you ever learned about RFQs and RFPs and simply stay within FAR 16.505( b ). Under the SAT, FAR 16.505( b ) doesn't provide any terms at all, so if you choose to use "RFQ" and "quotation" that is your own choice. Over the SAT, FAR 16.505( b ) only requires notices which afford contract holders an opportunity to submit offers for the Government's consideration. Call those solicitations if you choose to, but don't read the FAR 2.101 definition of solicitation into it. To me, it is clear that the definition of solicitation in FAR 2.101 does not reach to the notices required by FAR 16.505( b ).

What difference does it make? If you send a notice to the IDIQ contract holders, and they respond with offers for you to consider, what difference does it make whether you style them as quotes or offers? You simply consider them, select the winner, and issue the task order. The task order is binding on the contractor; provided, the task order is within the bounds of the contract clauses at FAR 52.216-18 and -22. I wonder if this is your real question: are you wondering if a task order is binding on the contractor?

If you send a notice to the IDIQ contract holders, and they respond with offers for you to consider, what difference does it make whether you style them as quotes or offers? You simply consider them, select the winner, and issue the task order. The task order is binding on the contractor; provided, the task order is within the bounds of the contract clauses at FAR 52.216-18 and -22.

That passage reveals a profound lack of understanding of the variety of task order contracts issued today and of contract law.

Over the SAT, there will always be an offer from the successful multiple-award IDIQ contractor that forms the basis for the task order -- the FAR requires the contracting officer to issue notices to all contract holders so that they can submit offers for the Government's consideration. Mutual assent is achieved if the process is followed.

Under the SAT, it seems pretty obvious that for any complex service, an IDIQ contract will not have sufficient information for a contracting officer to issue a task order without first contacting the contract holders. Those contacts will result in information being provided which will serve as the basis for the task order -- mutual assent is achieved. If the contracting officer styles the contact as a RFQ and the contractor styles its response as a quotation, well, everyone knows that it wasn't a FAR Part 13 quotation -- rather, it is more like a FAR Subpart 8.4 quotation, which the Government can accept by issuance of a binding order. A schedule contractor cannot weasel out of a schedule order by saying that its response to the Government was only a quotation and therefore was not susceptible to being accepted by the Government.

If a contracting officer does issue a task order without mutual assent, the contractor can reject the order under the Disputes clause of the contract. But I am supposing that 99.9%* of all task orders for complex services under FAR 16.505( b ) are issued with mutual assent -- and it isn't worth stopping the whole process for the 0.1% anomaly, and the Disputes clause can take care of the anomaly situations.

*No, I do not have empirical evidence to support this figure.

Vern,

Are you saying that if a contracting officer obtains "quotes" or "quotations" from multiple award IDIQ contract holders, then the resulting task order is not binding but is merely an offer which the contract holder can accept or reject? And that because of the word "quotes" or "quotations"?

I submit that a "quote" or "quotation" submitted under a FAR 16.505( b ) situation may be relied upon to form a binding task order.

Over the SAT, there will always be an offer from the successful multiple-award IDIQ contractor that forms the basis for the task order -- the FAR requires the contracting officer to issue notices to all contract holders so that they can submit offers for the Government's consideration. Mutual assent is achieved if the process is followed.

Under the SAT, it seems pretty obvious that for any complex service, an IDIQ contract will not have sufficient information for a contracting officer to issue a task order without first contacting the contract holders. Those contacts will result in information being provided which will serve as the basis for the task order -- mutual assent is achieved. If the contracting officer styles the contact as a RFQ and the contractor styles its response as a quotation, well, everyone knows that it wasn't a FAR Part 13 quotation -- rather, it is more like a FAR Subpart 8.4 quotation, which the Government can accept by issuance of a binding order. A schedule contractor cannot weasel out of a schedule order by saying that its response to the Government was only a quotation and therefore was not susceptible to being accepted by the Government.

If a contracting officer does issue a task order without mutual assent, the contractor can reject the order under the Disputes clause of the contract. But I am supposing that 99.9%* of all task orders for complex services under FAR 16.505( b ) are issued with mutual assent -- and it isn't worth stopping the whole process for the 0.1% anomaly, and the Disputes clause can take care of the anomaly situations.

*No, I do not have empirical evidence to support this figure.

First, the SAT has no bearing on the issue at hand. None whatsoever.

Second, you said: "Mutual assent is achieved if the process is followed."

What process? Is the process sound? Have you any idea how many times agencies have followed a process for contract formation without achieving mutual assent? Do you understand the concept of mutual assent?

Third, you said: "Under the SAT, it seems pretty obvious that for any complex service, an IDIQ contract will not have sufficient information for a contracting officer to issue a task order without first contacting the contract holders. Those contacts will result in information being provided which will serve as the basis for the task order -- mutual assent is achieved."

Nonsense. That proves to me that you don't understand mutual assent.

You wrote: "t is more like a FAR Subpart 8.4 quotation, which the Government can accept by issuance of a binding order."

Where in 8.4 does it say that you can "accept' a "quotation"? I can't even find the word "accept" in 8.4. Where is it?

You wrote: _"_A schedule contractor cannot weasel out of a schedule order by saying that its response to the Government was only a quotation and therefore was not susceptible to being accepted by the Government."

That's interesting. Please cite a BCA or COFC decision in support in a matter involving a complex task order.

You wrote: _"_If a contracting officer does issue a task order without mutual assent, the contractor can reject the order under the Disputes clause of the contract."

The contractor wouldn't need the Disputes clause to reject the order. It would need the Disputes clause if the Government tried to enforce the order, say, by terminating for default.

And I won't ask you for empirical data to support your 99.9% figure, because even if it's true it's irrelevant to the matter at hand.

Vern,

Are you saying that if a contracting officer obtains "quotes" or "quotations" from multiple award IDIQ contract holders, then the resulting task order is not binding but is merely an offer which the contract holder can accept or reject? And that because of the word "quotes" or "quotations"?

I submit that a "quote" or "quotation" submitted under a FAR 16.505( b ) situation may be relied upon to form a binding task order.

I'm saying no such thing. What I'm saying is (1) that what is binding or not binding depends on the terms of the contract, the language in the contractor's submission, any other communications between the parties, and any order that the CO might issue and (2) that you've been saying a lot of nonsense.

I am not as quick as you to assert. It's contract law we have to talk about ji20874, not the bleeping regulations. I think you know better than this. I think you popped off without thinking things through. As for your last assertion, it's just more nonsense.

You ain't thinkin' bro. Go think.