Posting of SAP sole source requirements

wifcon123 said:

Issue 1:  Let's say I post the pre-solicitation notice to the GPE and wait for the required notice time to pass; do I then need to post a copy of the solicitation?  Or does the pre-solicitation notice count as the solicitation in the case of sole source SAP requirements?

You need to post a copy of the solicitation to the GPE IAW FAR 5.102(a).

wifcon123 said:

After the pre-sol synopsis period has ended, can I negotiate directly with the intended awardee, or do I need to post the actual solicitation to the GPE as well?  (Just to cover my bases, for this particular example, I do NOT wish to issue a combined synopsis/solicitation.)

You need to post a copy of the solicitation to the GPE IAW FAR 5.102(a). There is no prohibition on negotiating with the intended source after the pre-solicitation period has ended.

wifcon123 said:

Issue 2:   If both a pre-sol synopsis and a solicitation posting are required, can the timeframes for both the synopsis and RFQ posting be shortened?

Am I correct that this paragraph allows for shortening the period a pre-sol synopsis for commercial items needs to be on the street?

Yes, you are correct. The timeframes can be shortened.

Don,

I knew you'd say that.  Have you read Digitalis Education Solutions, Inc. v US, CAFC 2011-5079, 01/04/2012?  In Digitalis, CAFC wrote:

Quote

In a sole-source award such as this one, the notice of intent issued by the government is analogous to a request for proposal.  Interested parties are invited to submit statements of capability in order to convince the government that it should hold a full competition for the contract rather than sole-source the contract to the proposed contractor.  We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period.  Failure to do so also means that a party does not have the requisite direct economic interest...

Say you have a rock-solid noncompetitive justification.  You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does.  You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says.  An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere.  What should you do?

No intent to derail the discussion regarding required notices regarding synopsis and solicitation but to keep this discussion clear it would appear that the procurement is with regard to a single source (FAR 13.106-1) and not a sole source.

C Culham said:

No intent to derail the discussion regarding required notices regarding synopsis and solicitation but to keep this discussion clear it would appear that the procurement is with regard to a single source (FAR 13.106-1) and not a sole source.

Agreed, but I'm not sure that's relevant to the instant discussion.  5.102(a)(1) says in relevant part: "Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE...", which would apply equally to a noncompetitive 13.106-1, $26K action and a sole-source 6.302-1, $26M action.  I agree with Don that the plain language is, well, quite plain...however Digitalis calls into question what the purpose of posting a noncompetitive/sole source solicitation would be.

On 4/11/2016 at 3:00 PM, GeoJeff said:

Say you have a rock-solid noncompetitive justification.  You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does.  You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says.  An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere.  What should you do?

Assuming you're using SAP, wouldn't your synopsis have to contain the statement at FAR 5.207( c )(16)(i): "all responsible sources may submit a quotation which shall be considered by the agency." If so, how could a source submit a quotation without seeing the solicitation?

On ‎4‎/‎11‎/‎2016 at 5:00 PM, GeoJeff said:

Say you have a rock-solid noncompetitive justification.  You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does.  You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says.  An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere.  What should you do?

If this happened you would have to consider it.  If the interested party could provide what was required by the solicitation, the solicitation would have to be amended to include the evaluation criteria (basis upon which award would be made) in it.  Additional time should be provided for receipt of quotes (affords firms the opportunity to provide revised quotes if desired based on new evaluation criteria).  The firm with which you intend to contract with on a single source basis should respond to the quote just like anyone else.  If the price quoted can otherwise be determined to be fair and reasonable, there may not be a need to negotiate.

While a CO may think a justification is "rock-solid", the market may disagree and prove the CO and customer wrong.  I've seen some COs post an intent to negotiate with a single source, but not even post a solicitation.  Seems to me they are trying to avoid competition, which generally leads to higher costs for the Government.  If the justification is rock-solid, the CO should not expect to see interest from any other firms and should have no concern with posting the solicitation for a reasonable period of time.

If it were me, I would establish a date by which any quotes or capability statements would have to be received.  If I received none, I would proceed with negotiating a contract with the intended source, but only after the due date.  I would establish a shorter date if reasonable when otherwise permitted by the FAR.  If the requirement is not urgent or compelling, there shouldn't be a need to proceeding prior to the due date and potentially complicating matters.

So what is wrong with this?  

No consideration given to agency specific regulations.

Need is over $25,000 and under the SAT.  Not brand name.

The needs notice inclusive of the fact that a single source (FAR 13.106-1)is being solicited for pricing  is posted in FBO.  Solicitation is posted and indicated as “for information only”.

I send the “solicitation” to the single source and no one else.  Again reference FAR 13.106-1 which says I can solicit from a single source along with FAR Part 2 definition of “solicitation”. 

Others might respond with an actual response to the solicitation or indicate that they want to respond to the solicitation yet , I react as I wish (and as supported by my documentation)  but there is no requirement to include the others that did respond.  In effect the posting was just complying with FAR Part 5 with nothing in FAR Part 5 saying I must consider their responses.   If I have made a good case through file documentation for my reasoning to “solicit” a single source, and it withstands what the posting in FBO might produce, then so be it.

Stated another way yes I post the need in FBO and the fact that it is a single source procurement but follow the FAR that says I can solicit from ”one source”.

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Don Mansfield said:

Assuming you're using SAP, wouldn't your synopsis have to contain the statement at FAR 5.207( c )(16)(i): "all responsible sources may submit a quotation which shall be considered by the agency." If so, how could a source submit a quotation without seeing the solicitation?

Yup, that's what it says; the plain language is plain.  And if you're using 6.302-1, 5.207( c )(16)(ii) requires a statement "...all responsible sources may submit a capability statement, proposal, or quotation which shall be considered by the agency."  

Regardless, for the purposes of framing this question, I think the question regarding timelines and appropriate action is largely the same.  Assume the synopsis is posted 4/15/16, and says:

"Agency X intends to (negotiate on a sole source basis with/award a noncompetitive contract to) in accordance with FAR (whichever applies) company Y for service Z because (they are great.)  Any other interested party may submit a capability statement by the closing date of this announcement, which is 5/1/16, which shall be considered by the agency for the purposes of determining whether to hold a competition or proceed with a noncompetitive action."  

5/1/16 comes and goes and nobody responds.  

5/2/16 the agency releases the solicitation.  For the purposes of this question, it doesn't really matter whether it's posted or not.  5/5/16 some other company finds the solicitation, either on FBO if it was posted in accordance with 5.102(a), or via email from the CO if they just heard about it through the grapevine.  They review it and respond with the usual "hey, we can do that!"  The language in Digitalis would have me believe that it would be appropriate to tell this other company that they are too late and has missed its chance.  Digitalis:  "We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period."

GeoJeff,

I don't think your hypothetical synopsis complies with FAR 5.207(c)(16). If you're using SAP and soliciting a single source, you need to include a statement that "all responsible sources may submit a bid, proposal, or quotation which shall be considered by the agency." If you're using the sole source authority at FAR 6.302-1, then you need to include a statement that "all responsible sources may submit a capability statement, proposal, or quotation, which shall be considered by the agency." I don't see either of those statements in your notice.

GeoJeff said:

Yup, that's what it says; the plain language is plain.  And if you're using 6.302-1, 5.207( c )(16)(ii) requires a statement "...all responsible sources may submit a capability statement, proposal, or quotation which shall be considered by the agency."

Part 6 does not apply to SAP procurements (FAR 6.001(a)).  So that exception could not be cited for the example given.  Instead, the synopsis would need to include what is required by FAR 5.207(c)(16)(i) "Except when using the sole source authority at 6.302-1, insert a statement that all responsible sources may submit a bid, proposal, or quotation which shall be considered by the agency."  It doesn't say anything about a capability statement.  How can anyone submit a quote based on a pre-solicitation notice and not the solicitation (RFQ)?  I don't understand the aversion to posting the solicitation and considering quotes from other's that say "wait, we can do that too".

C Culham said:

In effect the posting was just complying with FAR Part 5 with nothing in FAR Part 5 saying I must consider their responses.

What about 5.207(c)(16)(I) quoted above?  Also, what about 13.105 which states "The contracting officer must comply with the public display and synopsis requirements of 5.101 and 5.203 unless an exception in 5.202 applies."  FAR 5.203 (Publicizing and response time) deals with not only the notice of the proposed action, but the solicitation of quotes as well.

Maybe I'm wrong on this, but I don't see how someone can quote without having a solicitation or where the CO can ignore timely responses to a synopsis and solicitation.

Todd Davis said:

Part 6 does not apply to SAP procurements (FAR 6.001(a)).  So that exception could not be cited for the example given.

FAR 5.207(c)(16)(i) does not say IAW Part 6, it says “using the sole source authority at 6.302-1”.  The authorities cited at 6.302-1 are 10/41 USC xxx which may be applicable to the Part 13 acquisition.

One can avoid all of this messiness by simply using an oral solicitation.

ji20874:

Wouldn't they need a 5.202 exception to solicit orally (without satisfying posting requirements)?

How would an oral solicitation help in this situation?

jwomack said:

FAR 5.207(c)(16)(i) does not say IAW Part 6, it says “using the sole source authority at 6.302-1”.  The authorities cited at 6.302-1 are 10/41 USC xxx which may be applicable to the Part 13 acquisition.

The authorities cited at 10 USC 2304(c) and 41 USC 3304(a) never apply to acquisitions using simplified acquisition procedures at Part 13.  Part 6 implements CICA (PL 98-369; see Sec 303 and 2723)  which requires "full and open competition", save authorized exceptions listed in the law.  Part 6 does not apply to actions using SAP.  Full and open competition is not required for acquisition using SAP.  Rather, competition to the maximum extent practicable is required (10 USC 2304(g) implemented by FAR 13.104).

Don Mansfield said:

GeoJeff,

I don't think your hypothetical synopsis complies with FAR 5.207(c)(16). If you're using SAP and soliciting a single source, you need to include a statement that "all responsible sources may submit a bid, proposal, or quotation which shall be considered by the agency." If you're using the sole source authority at FAR 6.302-1, then you need to include a statement that "all responsible sources may submit a capability statement, proposal, or quotation, which shall be considered by the agency." I don't see either of those statements in your notice.

OK, assume we're using SAP and soliciting a single source.  I shall amend my hypothetical synopsis to the following:

"(Agency X) intends to solicit a quotation on a single source basis IAW FAR 13.106-1(b)(1)(i) from (company Y) for (product/service Z.)  Company Y is the only source reasonably available to fulfill this requirement under the circumstances because (reasons).  IAW FAR 5.207(16)(i), all responsible sources may submit a quotation which shall be considered by (Agency X).  The request for quotation will be available on or after 01 May 2016."

You post that synopsis on 15 April 2016 and let it sit for 15 days.  Nobody responds.  You prepare your RFQ but don't include evaluation criteria or quotation submission instructions and post it to FBO IAW 5.102(a) on 02 May 2016.  Company Y has told you they need a week to put together a price quotation, so you leave the RFQ open for a week, closing 09 May 2016.  On 08 May, out of nowhere, company A emails you a quotation.  It may or may not (likely not) contain any meaningful information because you haven't included evaluation criteria or quotation submission instructions in the RFQ.  The synopsis advised that any quotation submitted "shall be considered by Agency X," and 13.106-2(a)(3) says "all quotations...shall be considered."  So the question is - on what basis and/or to what  extent are we "considering" this other quotation?  We have not provided evaluation criteria suitable for a competitive environment in the RFQ.  Must we amend the RFQ to include competitive evaluation criteria and re-release, as Todd Davis suggested yesterday?  I think that's certainly a safe way to proceed.  Or may this other quotation be "considered" by saying "no thanks?"  

I have practical reasons for this mental exercise that are systems related.  Our procurement system (PRISM) allows one to post the "notice of intent" we've been discussing above to FBO either as a "special notice" or as a "presolicitation notice."  As a practical matter, prospective contractors go looking for competitive opportunities by searching for presolicitation notices and combined synopsis/solicitations in FBO, not by reading special notices.  When something shows up as a presolicitation, they think it's competitive.  PRISM will not allow us to attach a solicitation to a special notice - a solicitation must first be announced via a presolicitation notice or it will not "release" to FBO.  So we're stuck between a rock and a hard place; when we use the special notice as we've been trained to do, and which seems more intuitive to vendors, we then can't post the solicitation IAW FAR 5.102(a).  If we use the presolicitation notice, prospective contractors often don't notice the presolicitation text and think they have a competitive opportunity, so we get junky quotes that aren't responsive and are then bound to "consider" them in some way.  This is compounded by the fact that PRISM uses a proprietary portal called FedConnect, and the FBO announcement directs prospective contractors to FedConnect "for more information about this opportunity."  When they get there, if they register with FedConnect, there is a "quote" button, where they can enter a price and hit submit.  And bless their hearts, some specialists at my agency try to comply with 5.102(a) by first posting a special notice that says "notice of intent to award...," then after that closes, they post essentially a blank presolicitation notice that references the previous special notice so they can get the RFQ in FBO.  If the vendor notices that, he's got to work really hard to find the referenced notice of intent, so he legitimately thinks there is a competitive RFQ available to him, and with no stated evaluation criteria, it looks like low price gets the job.  

I'm looking for a practical solution to these problems.

Jamaal Valentine said:

ji20874:

Wouldn't they need a 5.202 exception to solicit orally (without satisfying posting requirements)?

How would an oral solicitation help in this situation?

I see the FAR 5.202 exceptions as applying to synopsis, not solicitation posting.  An oral solicitation under FAR Part 13 might still need a pre-solicitation synopsis (unless one of the FAR 5.202 exceptions apply).  Under FAR Part 13, the contracting officer shall solicit quotations orally to the maximum extent practicable all the way up to the simplified acquisition threshold -- see FAR 13.106-1( c )( 1 ).  A written solicitation under FAR Part 13 under the simplified acquisition threshold is only needed if obtaining electronic or oral quotations is uneconomical or impracticable, or for construction over $2,000 -- see FAR 13.106-1( d ).  If a written solicitation exists, FAR 5.102( a ) will suggest that the solicitation should be posted to FedBizOpps, but FAR 5.102( a ) does not require the creation of a written solicitation.

GeoJeff said:

Must we amend the RFQ to include competitive evaluation criteria and re-release, as Todd Davis suggested yesterday?  I think that's certainly a safe way to proceed.  Or may this other quotation be "considered" by saying "no thanks?"

First, I think the RFQ should contain instructions on what to include in a quotation. That way, you won't get crap.

If I ended up getting a quote that I didn't expect, I would re-evaluate my determination that "the circumstances of the contract action deem only one source reasonably available." If, based on my consideration of the quote, that were no longer true, then I would amend the RFQ to include evaluation criteria. Alternatively, I could have included the evaluation criteria in the RFQ--it's SAP so it shouldn't be that big a deal. If my re-evaluation of the quote didn't change my original determination, then I would say "no thanks".

As far as the problem with your system, I don't think you should be using a special notice for posting the intent to negotiate with a sole source. According to FAR 5.205( c ), the special notice is for publicizing "business fairs, long-range procurement estimates, prebid or preproposal conferences, meetings, and the availability of draft solicitations or draft specifications for review." I think you need to issue the presolicitation notice required by FAR 5.207.

A synopsis is not just a pre-solicitation notice only.  It also includes the solicitation itself.  Of course, when the combined synopsis/solicitation procedure is used they are done at the same time.

5.102 Availability of solicitations. (a)(1) Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE, including specifications, technical data, and other pertinent information determined necessary by the contracting officer.

Also, see 5.207(c) regarding the content of a synopsis.

(12) For a proposed contract action in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold, enter—

     (i) A description of the procedures to be used in awarding the contract (e.g., request for oral or written quotation or solicitation); and

     (ii) The anticipated award date.

(17) If solicitations synopsized through the GPE will not be made available through the GPE, provide information on how to obtain the solicitation.

(19) If the technical data required to respond to the solicitation will not be furnished as part of such solicitation, identify the source in the Government, such as http://www.fedbizopps.gov/, from which the technical data may be obtained.

Todd,

A synopsis under FAR 5.203( a ) does not and cannot include the solicitation -- that paragraph itself says the notice (synopsis) occurs at least 15 days before solicitation issuance.

The posting of the solicitation under FAR 5.102( a )( 1 ) must necessarily occur at least 15 days after the pre-solicitation notice under FAR 5.203( a ).  The 15 day period can be shortened for commercial items.

ji20874 said:

Todd,

A synopsis under FAR 5.203( a ) does not and cannot include the solicitation -- that paragraph itself says the notice (synopsis) occurs at least 15 days before solicitation issuance.

I re-read FAR 5.2 and agree with you. 

The bottom line is when a written solicitation is used, it must be posted to the notice or instructions provided on how to obtain it 5.102(c)(17).  My whole point has been that it is not enough to just post a notice and not a solicitation to which potential quoters can respond.  Much of this discussion seem to have been how to get around that.

Yes -- if a written solicitation exists (FAR 13.106-1( d )), and if a FedBizOpps pre-solicitation synopsis occurs (FAR 5.203( a )), then the written solicitation generally should be released in FedBizOpps (FAR 5.102( a )( 1 )).

ji20874 said:

Yes -- if a written solicitation exists (FAR 13.106-1( d )), and if a FedBizOpps pre-solicitation synopsis occurs (FAR 5.203( a )), then the written solicitation generally should be released in FedBizOpps (FAR 5.102( a )( 1 )).

Agreed, that is what the regulation says.  My original question stems from CAFC's ruling in Digitalis, which seems to imply that if a prospective contractor misses the boat during the synopsis period, he is no longer an "actual or prospective bidder."  This seems contrary to the plain language at 5.207( c )(16).  Perhaps there is a different answer when using SAP?  

What about a synopsis that says: "Other prospective contractors may submit a capabilities statement by the closing date of this announcement.  All submissions will be evaluated for the sole purpose of determining whether competitive opportunities exist, and the prospective contractor will be advised of the results of the government's evaluation.  Late submissions will not be considered.  If no submissions are received, the government will proceed with the intended noncompetitive action.  An informational copy of the noncompetitive solicitation will be made publicly available IAW FAR 5.102(a) on or after (date), but competitive (quotations/bids/proposals) will not be considered."

I'm sure there will be several objections to this.  I'm used to rejection.

I don't think the notice in the Digitalis decision complied with FAR 5.207( c )(16). Here's what the notice said:

Quote

This notice is not a request for competitive proposals. However, any party that believes it is capable of meeting this requirement as stated herein must submit a written capability statement that clearly supports and demonstrates their ability to provide the items by 22 September 2010, 1200 a.m., Eastern Standard Time.

The propriety of the notice itself wasn't an issue in the case, and it doesn't seem that the protester argued that it wasn't compliant with FAR. In any case, I wouldn't conclude from Digitalis that you don't have to include the statements at FAR 5.207( c )(16), that you don't have to post a solicitation for a sole source requirement, or that you don't have to consider a quote in response to the posted solicitation.

ji20874:

Outside of any exceptions, if FAR 5.201 makes synopsizing, contract actions, through GPE a requirement, and FAR 5.102 makes posting solicitations synopsized in GPE a requirement, I believe for practical purposes that a written solicitation is required. I don't see how you can solicit orally without posting a synopsis (pre-solicitation notice) and the solicitation in an uploadable format (e.g. written).

Seems by FAR 5.201 requiring "contract actions" to be synopsized through GPE at certain thresholds necessitates the posting of written solicitations.

Contract action as used in Part 5 includes solicitations.

If there truly is a way, I'd like to know it. We could speed up SAP purchases.

Let's consider the following FAR excerpts:

Quote

FAR 13.106-1( c ) Soliciting orally

  (1) The contracting officer shall solicit quotations orally to the maximum extent practicable, if--

    (i) The acquisition does not exceed the simplied acquisition threshold;

    (ii) Oral solicitation is more efficient than soliciting through available electronic commerce alternatives; and

    (iii) Notice is not required under 5.101. (emphasis added)

  (2) However, an oral solicitation may not be practicable for contract actions exceeding $25,000 unless covered by an exception in 5.202

Quote

FAR 5.101(a)(2)(ii) The contracting officer need not comply with the display requirements of this section (emphasis added) when the exemptions at 5.202(a)(1), (a)(4) through (a)(9), or (a)(11) apply, when oral solicitations are used (emphasis added), or when providing access to a notice of proposed contract action and solicitation through the GPE and the notice permits the public to respond to the solicitation electronically.

Quote

FAR 5.201(b)(1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202, and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each propose--(i) Contract action meeting the threshold in 5.101(a)(1)

The FAR defines section under 1.105-2(c)(ii) as "Section would be “FAR 9.106” outside the FAR and “9.106” within the FAR" so the above reference in 5.101(a)(2)(ii) seemingly exempts oral solicitations from the display requirements of section 5.101 (does that also exempt it from the threshold referenced in FAR 5.201(b)(1)?).  Then, FAR 13.106-1( c ) only permits oral solicitations when notice is not required under 5.101.  The result seems to be a wonderful "chicken or the egg" argument (or maybe there is clarity somewhere that I'm just missing)...thoughts?

Matthew Fleharty said:

so the above reference in 5.101(a)(2)(ii) seemingly exempts oral solicitations from the display requirements of section 5.101 (does that also exempt it from the threshold referenced in FAR 5.201(b)(1)?).

5.101(a)(2) only deals with actions exceeding $15K, but not exceeding $25K.  The display (in a public place) requirement is different than the synopsis requirement at 5.101(a)(1), which is further covered at FAR 5.2.  The fact that (a)(1) and (a)(2) are discussed under the same section and same paragraph is not relevant.

There were two positions in my previous post, one regarding the requirements at 5.101 and the other regarding whether an exception to 5.101 results in an exception to 5.201.  On the first point you state:

Todd Davis said:

5.101(a)(2) only deals with actions exceeding $15K, but not exceeding $25K...The fact that (a)(1) and (a)(2) are discussed under the same section and same paragraph is not relevant.

I don't necessarily agree with this statement - it's dismissive and doesn't consider the content of the position I presented.  The statement at 5.101(a)(2)(ii) states "section."  According to the arrangement of the FAR, if the FAR wanted to exempt oral solicitations from only the requirements at 5.101(a)(2), would it not have said "paragraph" instead?  I still think this results in a "chicken or the egg" situation.

Todd Davis said:

The display (in a public place) requirement is different than the synopsis requirement at 5.101(a)(1), which is further covered at FAR 5.2.

Personally, I agree with this position.  The statement at 5.201 references the "threshold" not the "requirement" at 5.101 and, as a result, I'd argue we consider simply whether a requirement exceeds the dollar value regardless of further exemptions in that section - I was making the point for consideration to see if someone had a different take that they could explain (and maybe someone still does - we shall see).

Matthew Fleharty said:

don't necessarily agree with this statement - it's dismissive and doesn't consider the content of the position I presented.  The statement at 5.101(a)(2)(ii) states "section."  According to the arrangement of the FAR, if the FAR wanted to exempt oral solicitations from only the requirements at 5.101(a)(2), would it not have said "paragraph" instead?  I still think this results in a "chicken or the egg" situation.

We'll see what others have to say, but I'll give it another shot.  Section 5.101 includes paragraphs under it, two of them (a) and (b).  These paragraphs are part of the section, as they fall under it.  By using the words "display requirements of this section" the FAR is referring to any discussion of display requirements found anywhere in that section (5.101), regardless of what paragraph in that section that display requirements are discussed in.  Maybe they could have said "the display requirements of 5.101(a)(2), but they've accomplished the same thing by what is already stated.

I agree with Todd.

Todd Davis said:

By using the words "display requirements of this section" the FAR is referring to any discussion of display requirements found anywhere in that section (5.101), regardless of what paragraph in that section that display requirements are discussed in.

If what you've stated is true, how does that not exempt oral solicitations from paragraph (a)(1) which is contained under section 5.101?

I understand the argument you're making that the FAR reads "For proposed contract actions expected to exceed $15,000, but not expected to exceed $25,000...the contracting officer need not comply with the display requirements of this section when...oral solicitations are used" and, as such, only applies to oral solicitations within that range; however, I also think it is rather sloppy that the FAR uses the word section because there are a number of display requirements under section 5.101 outside of those at paragraph 5.101(a)(2). 

Also another argument (on your side Todd) might be that display requirements are different from or a specific subset for disseminating information on proposed contract actions, and since 5.101(a)(1) does not use the term display requirements (it is unique to paragraph 5.101(a)(2)) oral solicitations over $25,000 must still be synopsized in the GPE unless otherwise excepted.  Apologies for thinking out loud on both sides of the issue, but I certainly appreciate you engaging in the discussion.

It is physically impossible to post an oral solicitation to FedBizOpps.  Nothing in FAR Part 5 requires the creation of a written solicitation.  However, if one exists, it may be posted.

All this debate about SAP.  Goes to show that SAP is no longer simple and straight forward.  When I first started in 1998, I was told to just get three bids.  That worked great and I never had an issue through 2011.  Maybe I got lucky.  Anyway, I moved out of awarding SAP and I was really surprised when I read FAR 13.104(b) about two years ago.  Its discussion of synopsis pursuant to 5.101 basically overrode the rest of that section concerning getting 3 bids in the local trade area.  It would seem the 3 bid process can only be used for orders under $15K and we don't get many of those since so many use PCards now.

SAP still provides agility and flexibility in the acquisition process (though you're probably right Boof that the procedures have become more complex since 1998 - that just seems to be the general trend concerning rules and regulations).  When commercial and utilizing SAP, contracting officers can still quickly contract to meet their customers' needs by utilizing the following (to name a few efficiencies):

• FAR 12.603 allows contracting officers to combine the synopsis and solicitation (saves 15 days)
• FAR 5.203(b) allows contracting officers to utilize their business judgment to establish any response time (as long as it affords offerors a reasonable opportunity to respond) for all SAT & commercial buys (saves any number of days chosen < 30)
• FAR 13.106-2 allows a range of efficiencies when it comes to evaluations including the "broad discretion in fashioning suitable evaluation procedures" (FAR 13.106-2(b)(1)) and the ability to "conduct comparative evaluations of offers" (FAR 13.106-2(b)(3)).

On a side note, I also think agencies don't do themselves any favors in regards to keeping acquisitions simple and straight forward.  I've seen many a commercial requirement that could have utilized SAP pursuant to FAR 13.5 (commercial actions above $150k but less than $6.5M), yet the Government conducted a FAR Part 15 Source Selection instead.  While at grad-school, a class-mate and I did some research on the utilization rate based on a data pull from FPDS that spanned approximately 15 months.  Of the number of actions that were eligible for 13.5 Procedures only between 27% and 51% actually utilized them (I can only list a range because there were some anomalies and inconsistencies in the FPDS-NG data that could not be reconciled without pulling each individual file).  I never understood (and still can't) why a contracting officer would needlessly subject him/herself, the customer, and industry needlessly to the more complex, burdensome process of FAR Part 15 rather than utilize FAR Part 13 (when eligible).

On ‎4‎/‎14‎/‎2016 at 8:47 AM, Todd Davis said:

The authorities cited at 10 USC 2304(c) and 41 USC 3304(a) never apply to acquisitions using simplified acquisition procedures at Part 13.

Why not?  Stating that Part 13 actions are not subject to Part 6 does not explain why the authorities of 10 USC 2304 and 41 USC 3304 cannot be applied to Part 13 acquisitions.  Please explain further why these citations can only be used, and are only applicable to, CICA actions.

jwomack

jwomack said:

Why not?  Stating that Part 13 actions are not subject to Part 6 does not explain why the authorities of 10 USC 2304 and 41 USC 3304 cannot be applied to Part 13 acquisitions.  Please explain further why these citations can only be used, and are only applicable to, CICA actions.

You ask me "why not" and I've answered that below, but you did not explain why they could be cited, if that is what you believe?

I said 10 USC 2304(c) and 41 USC 3304(a) specifically and not the sections generally.  FAR 6.001(a) is what states that that Part 6 is not applicable to actions using the simplified acquisition procedures of Part 13.  The authorities to not compete certain actions under SAP is at FAR 13.106-1(b).  These would be cited in a document explaining the absence of competition (13.106-3(b)(3)(i) and the document would not be referred to as a J&A since a J&A and its associated requirements from FAR 6.303 do not apply (except for actions conducted pursuant to the authority at FAR 13.5 (13.501(a)).  Full and open competition is not required for SAP actions, only competition to the maximum extent practicable.  Below are excerpts from 10 USC 2304.  I did not include the text at 41 USC 3304(a) below but it provides the same exceptions to full an open competition as 10 USC 2304(c). 

§2304. Contracts: competition requirements

(a)(1) Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services-

(A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation; and

(B) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.

(c) The head of an agency may use procedures other than competitive procedures only when-

(1) the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;

(2) the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals;

(3) it is necessary to award the contract to a particular source or sources in order (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization, (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, or (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;

(4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures;

(5) subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency's need is for a brand-name commercial item for authorized resale;

(6) the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or

(7) the head of the agency-

(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and

(B) notifies the Congress in writing of such determination not less than 30 days before the award of the contract.

(g)(1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for-

(A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and

(B) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items.

(2) A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1).

(3) In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.

(4) The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.

On April 11, 2016 at 11:35 AM, wifcon123 said:

I’m soliciting under FAR Part 13 for commercial services buy valued over $25,000 but under SAT.  It is a sole source requirement (not Brand Name).

Issue 1:  Let's say I post the pre-solicitation notice to the GPE and wait for the required notice time to pass; do I then need to post a copy of the solicitation?  Or does the pre-solicitation notice count as the solicitation in the case of sole source SAP requirements?

Does everyone agree that if there is a written solicitation in this case the CO must make it available through the GPE in accordance with FAR 5.102(a)?

If so, then it seems the question is whether a written solicitation is required. Right?