TO POP Extension, executed after base expires

Is FAR 52.216-22 in the contract?  It may give you the out or may constrain you depending on what you put in the blank in paragraph (d) and your view of whether going beyond the date in (d) is appropriate (some might consider it a scope issue).

The base (parent) contract did not expire — it is not dead.

Perhaps you meant to say that the parent contract’s ordering period has ended?

You may (must) administer the task order. If an adjustment in an order’s period of performance is called for by one of the contract’s clauses, the you may bilaterally agree on the equitable adjustment without regard to the end of the parent contract’s ordering period.  Indeed, the end of the parent contract’s ordering period is wholly irrelevant to the post-award administration of orders properly issued under the contract.

I am assuming that you are talking about extending the performance period of an order for reasons within the scope of the order, rather than adding new and out-of-scope work to the order.

A contract does not expire until both parties have completed all obligations under it.

On 11/17/2019 at 5:56 PM, ji20874 said:

The base (parent) contract did not expire — it is not dead.

Perhaps you meant to say that the parent contract’s ordering period has ended?

You may (must) administer the task order. If an adjustment in an order’s period of performance is called for by one of the contract’s clauses, the you may bilaterally agree on the equitable adjustment without regard to the end of the parent contract’s ordering period.  Indeed, the end of the parent contract’s ordering period is wholly irrelevant to the post-award administration of orders properly issued under the contract.

I am assuming that you are talking about extending the performance period of an order for reasons within the scope of the order, rather than adding new and out-of-scope work to the order.

A contract does not expire until both parties have completed all obligations under it.

Would your answer change if you needed to do an out-of-scope mod in this same scenario? That is the scenario I am currently facing.  Base IDIQ ordering period has ended, however an order's period of performance is still ongoing. A modification is desired to the order to add work to it, however that new work would necessitate an increase in the base award's IDIQ ceiling (as well as an extension of the ordering period). With a proper J&A, could we bilaterally amend the Base IDIQs ordering period to extend it, increase the base IDIQs ceiling, and add new work to the current order? The fact that you said the base contract is not dead, its ordering period is simply over, makes me thing that this means the base award is still available to be modified in any way it could have been modified when the ordering period was still active.

Why not issue a new contract to the favored firm instead of modifying an old but still alive task order?

My original answer opined that you can administer a task order even after the parent IDIQ contract's ordering period has passed, even if that means adding money such as for equitable adjustments.  But, since you asked, let's talk about adding new and out-of-scope work to an old but still alive task order.  Hopefully, you are talking about work that is reasonably related to the original task order and necessary for the accomplishment of the original task order but was not contemplated at the time, rather than entirely new work. 

PERIOD OF PERFORMANCE/ORDERING PERIOD:  If it is deemed proper to modify a task order by adding additional work and raising that task order's price, you may do so by bilateral agreement.  This action will be supported by a Justification for an Exception to Fair Opportunity (JEFO), right?  In my opinion, it is not necessary to also modify the parent IDIQ contract whose ordering period has ended because you are not issuing a new order but are working under the authority of a JEFO with an existing order.  Since the task order modification will be bilateral, you will have effectively dealt with any limitation driven by the contract clause at FAR 52.216-22.

CONTRACT MAXIMUM:  If the task order modification will cause you to exceed the contract maximum, well, you are going beyond the maximum that was envisioned when the contract was awarded.  Going beyond the contract maximum because of equitable adjustment, including an equitable adjustment for a change order, is fine because this is all within the scope.  But now, we're not talking about a change order or anything else contemplated by the original contract or task order.  A J&A is usually required to go beyond the scope of a contract.  Since the JEFO and J&A have the same approval thresholds and authorities, maybe you can combine these into one justification document and one approval signature.  Since you aren't issuing a new order, I am not certain that a modification to the parent IDIQ contract is needed, but if it is, it will have to be bilateral -- so you might as well address any limitation driven by the fill-in for the contract clause at FAR 52.216-22.

Or, why not issue a new contract to the favored firm instead of modifying an old but still alive task order?  That's my first recommendation for your out-of-scope and beyond-the-contract-maximum new work.  You could have had the new contract awarded by now.

Thanks for the quick response!

Awarding directly to the desired firm with a J&A on a new contract was our initial idea due to the ordering period having expired, but the COR requested we look into adding it to the current Order for administrative convenience, which I won't deny would definitely be more administratively convenient.  We are simply evaluating our options at this point and will go down the best path. I wanted to know if modifying the order was even a viable path to take.  

I had not considered that the additional work on the order may not require an extension of the ordering period. I thought that new work that is outside the scope of the order constitutes a "new procurement", and I thought it would be akin to a new order that just happens to be added as a mod to a previous order rather than its own separate order, and therefore would need an open ordering period on the base award (whereas an in-scope mod definitely would not need the ordering period extended). I suppose you could view it as a modification only and therefore would not need to extend the ordering period, however the point is somewhat moot since the base award needs modifying in any regard to increase the ceiling.

Your combination of J&A and Exception to Fair Opportunities is a good idea. Thank you.

I don't quite agree with your jestful statement that we could have had a standalone contract awarded by now. If we presume we found out about this additional requirement today, and we are deciding today if we can add it to the IDIQ or must award a standalone award with a J&A, I think we can mod the IDIQ quicker in my opinion. I still think its a fair question to ask for the administrative convenience of the whole thing (it being a multi-million dollar R&D cost-reimbursement contract that has a lot of manpower in monitoring and allocating costs to specific contracts and CLINS).

Thanks for you help!

Im of the opinion that If you’re going to add out of scope work to an IDIQ with an active task order, so what?

I don't want to highjack the thread, but I am curious about clause logic in a circumstance like this.

Forgive all the background:  The Ordering clause at FAR 52.216-18 provides in part, "All delivery orders or task orders are subject to the terms and conditions of this contract.  In the event of a conflict between delivery order or task order and this contract, the contract shall control."  I've always assumed that, even when an IDIQ basic contract is completely unpriced, the Government did not have to add an otherwise-prescribed clause to the new task order solicitation (and resulting task order) even if a new clause was added to the FAR after release of the solicitation for the basic and before release of the task order solicitation.  To the extent I've thought about it, I've "grounded" this assumption (on what may be a flawed reading of) the definition of a "solicitation" is FAR Part 2.  FAR 1.108(d)(1) provides in relevant part, "Unless otherwise specified...FAR changes apply to solicitations issued on or after the effective date of the change."  FAR Part 2 provides:

Quote

"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.

As to "offer," Part 2 provides:

Quote

"Offer" means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.  Responses to invitations for bids (sealed bidding) are offers called "bids" or "sealed bids"; responses to requests for proposals (negotiation) are offers called "proposals"; however, responses to requests for quotations (simplified acquisition) are "quotations," not offers.  For unsolicited proposals, see subpart 15.6.

Bottom-line:  For good or for ill, I normally treat task order solicitations as not a "solicitation" as that word is used in FAR 1.108(d)(1).  If the new effort is not within the scope of the basic contract, though, technically isn't inevitably there going to be a "solicitation" for purposes of FAR 1.108(d)(1) that may drive the need to add any new (or updated) clauses?

That's an interesting thought and i'm not sure I have an answer for you. I agree that although a solicitation for an order may meet the definition of a "solicitation", it is within the confines of an awarded contract with set terms and conditions, so the addition of newly released clauses would not be necessary.  If adding new work to the IDIQ, then yes perhaps new clause additions must be added.

ji20874 said:

Or, why not issue a new contract to the favored firm instead of modifying an old but still alive task order?  That's my first recommendation for your out-of-scope and beyond-the-contract-maximum new work.  You could have had the new contract awarded by now.

There are strategic reasons. 

People: That's the only contract available for that particular contractor.

Time: A bilateral mod on an existing TO may take a few days, while a new TO might have a lead time of months.

Avoiding protest / legal strategy.  In some situations,  an out-of-scope mod to a TO (or other type of contract action) can't be protested, but a new contract/order could be.  If you are in a contentious litigation with a company who has declared their intent to expand their protest further (possibly to pressure the Government to take corrective action rather than wait for a decision), then this may be a good idea.  Particularly if the stop-work(s) is (are) becoming very painful.

General.Zhukov said:

In some situations,  an out-of-scope mod to a TO (or other type of contract action) can't be protested, but a new contract/order could be.

I'm not sure I'm following this.  Can you expand on when this would be?  I thought the GAO always has jurisdiction for protest allegations that a task order is out of scope.  See, e.g., Anteon Corp., B-293523, B-293523.2, Mar. 29, 2004, 2004 CPD ¶ 51.

Quote

I normally treat task order solicitations as not a "solicitation"

Me, too.  FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

Jacques said:

'm not sure I'm following this.  Can you expand on when this would be?

Ah, you are correct.  I was thinking of a new TO issued against something like an agency IDIQ, which for small $ isn't protestable; while an out of scope mod would be. This is not an area I am very familiar with.  My mistake.

The general point was that an otherwise inexplicable method of procurement sometimes makes sense if understood as a method of avoiding a protest-happy contractor.

On ‎1‎/‎10‎/‎2020 at 8:16 AM, ji20874 said:

A fair opportunity notice is not a solicitation within the construct of the FAR,

Is a fair opportunity notice a request to submit offers or quotations to the Government?

Is the Socratic Method overrated?  As a laxative, no; as a birth control method, yes.  As a constructive way to participate in a discussion board, maybe.

Don Mansfield said:

Is a fair opportunity notice a request to submit offers or quotations to the Government?

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”

EXAMPLE:  FAR 42.903 says, “The contracting officer shall insert the clause at 52.242-13, Bankruptcy, in all solicitations and contracts exceeding the simplified acquisition threshold.”

I do not insert the Bankruptcy clause in fair opportunity notices, because a fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

You're dodging the question.

@Don Mansfield, do you believe all of the language in the FAR Part 2 entry for "solicitation" forms a part of its definition?  Same question for "offer."  Alternatively, do you believe the FAR defines a "solicitation" as "any request to submit offers or quotations to the Government," and the rest of the language is surplusage?

Relatedly, can you explain to me why FAR 4.2105(a) reads the way it does?  It states:

Quote

(a) The contracting officer shall insert the provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment–

(1) In all solicitations for contracts; and

(2) Under indefinite delivery contracts, in all notices of intent to place an order, or solicitations for an order ( e.g. , subpart 8.4 and 16.505).

Don Mansfield said:

You're dodging the question.

No, I'm trying to be intellectual honest. 

Do I err by not including the bankruptcy clauses in fair opportunity notices over the SAT?

ji20874 said:

No, I'm trying to be intellectual honest.

Then you should just answer the question. Your claim was:

Don Mansfield said:

A fair opportunity notice is not a solicitation within the construct of the FAR

Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community

On ‎1‎/‎10‎/‎2020 at 8:16 AM, ji20874 said:

A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

Intervener....

In  the "construct" of the FAR it would seem that there is more to the matter of a notice/solicitation than just FAR 16.505(b)(1) and the definitions at FAR part 2  with specific reference to FAR 2.101(a).  FAR part 5 and 5.001 and 5.202 quickly come to mind.  Agency supplements that might apply to the construct of the FAR quickly follow.

A general statement as noted always leads to the "depends" in the world of contracting.

ji20874 said:

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community

Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO

I am interested in meaningful and professional dialogue in this forum.  I have no interest in pedantry.  I have heard colleagues say that they wished there was more meaningful and professional dialogue here, and I understand -- more of them would participate here is we could move in that direction.

Here's a better formulation:

T     F     The FAR uses the word "notice" (instead of "solicitation") in the context of fair opportunity in FAR 16.505(b)(1).

I believe the answer is TRUE. 

If you disagree with me, Don, please explain why -- I might learn something.  And I'm still wondering from an earlier question you haven't answered:  Do I err by not including the bankruptcy clause in fair opportunity notices over the SAT?

Ibn Battuta said:

Thus, the notice informs contractors that they may submit offers.

Because 16.505(b)(1)(iii) (A) requires it to be a "competitive basis."   the FAR states at "(A) Each order exceeding the simplified acquisition threshold shall be placed on a competitive basis in accordance with paragraph (b)(1)(iii)(B) of this section..."  (emphasis added)  

Could be that it is not a chance but an actual offering for competition?

ji20874 said:

If you disagree with me, Don, please explain why -- I might learn something.  And I'm still wondering from an earlier question you haven't answered:  Do I err by not including the bankruptcy clause in fair opportunity notices over the SAT?

Let me get this straight. You make the following claim:

Quote

A fair opportunity notice is not a solicitation within the construct of the FAR

Wondering how you reached that conclusion, I ask a simple question:

Quote

Is a fair opportunity notice a request to submit offers or quotations to the Government?

You dodge the question multiple times, then wonder why I haven't responded to you?

Is this you being intellectually honest? By "meaningful and professional dialogue", do you mean we can make whatever claims we want without having to bear the burden of proof? And this is the direction we should move in?

Ibn Battuta said:

Question: "Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO[?]"

Answer: No, not if we take the word "request" literally. Here is FAR 16.505(b)(1)(iii)(B):

Thus, the notice informs contractors that they may submit offers. Based on the plain language of the FAR, a notice does not request anything. Now look at the definition of solicitation in FAR 2.101:

According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

So, based on plain English, my answer to the question is no, a FAR 16.505(b) notice is not a request to submit offers or quotes. It is an announcement that offers or quotes may be submitted. It is not a solicitation.

Thank you for doing what @ji20874 was incapable of doing.

Ibn Battuta said:

Question: "Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO[?]"

Answer: No, not if we take the word "request" literally. Here is FAR 16.505(b)(1)(iii)(B):

Thus, the notice informs contractors that they may submit offers. Based on the plain language of the FAR, a notice does not request anything. Now look at the definition of solicitation in FAR 2.101:

According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

So, based on plain English, my answer to the question is no, a FAR 16.505(b) notice is not a request to submit offers or quotes. It is an announcement that offers or quotes may be submitted. It is not a solicitation.

Ibn Battuta - I think you have a great answer here. I like your thought process.

Don - I really respect you and your knowledge, and often look to you for guidance on these forums. But I can't shake the feeling that your comments can sometimes have the flavor of smugness rather than charity. Whether ji20874 responded to you as you desired or not, his posts felt earnest in trying to provide info to solve the problem, rather than being tight-lipped and inquisitory for effect. Just my two cents. I appreciate you both nonetheless.

aordway said:

Don - I really respect you and your knowledge, and often look to you for guidance on these forums. But I can't shake the feeling that your comments can sometimes have the flavor of smugness rather than charity. Whether ji20874 responded to you as you desired or not, his posts felt earnest in trying to provide info to solve the problem, rather than being tight-lipped and inquisitory for effect. Just my two cents. I appreciate you both nonetheless.

Thanks for the feedback, @aordway.

Don Mansfield said:

Wondering how you reached that conclusion...

Just in case this is true, I'll try again... 

FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.

And because of this, as an example in my own practice, I do not insert the Bankruptcy clause in fair opportunity notices over the SAT, notwithstanding the clear text to include the clause in all solicitations over the SAT.  I'm still wondering, Don -- do you really think I err in this?  If so, please tell me why.

@ji20874,

That doesn't answer the question of whether a fair opportunity notice is a request to submit offers or quotations to the Government, does it? 

You passed on answering that question, so Ibn Batutta helped you out. You should thank him.

The FAR at 16.505 (b) concerns ordering procedures for MATOCs. Ordering procedures are not “solicitations”, per se.

See 16.505 (b)(iii)(B):

”(B) 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.“

The only mention of ”solicitation” in 16.505 is at (b)(2)(B), with regard to establishing and including ordering procedures in the solicitation for the ID/IQ CONTRACT: 

”D) Include the procedures in the solicitation and the contract; and...”

ji20874 said:

I do not insert the Bankruptcy clause in fair opportunity notices over the SAT

@ji20874 Apologies for continuing the thread but this is interesting to me because we get back other discussion threads in the Forum specifically with regard to FAR 52.216-18.   52.242-13 in a TO/DO actually depends on more than the prescription.

Attempting to not to go back into other positions offered regarding notice versus solicitation using the clause to substantiate a notice is not a solicitation seems off base.  After all definition of the FAR that has stood its ground in case law is that a task/delivery order is a contract therefore a TO/DO over the SAT shall include 52.242-13, right?  

52.242-13 is in the IDIQ parent no worries pursuant to 52-216-18(b) which is hopefully in the parent.   Neither clause in the parent, maybe because folks did not think a TO/DO would be over the SAT, and they don't like the FAR Ordering clause, yet a TO/DO comes along that is over the SAT, the clause needs to be in that specific TO/DO, right?   Pursuant to 52.216-18 it can be added or if -18 is not in the parent it still can be added, right?   And if so then it seems not having 52.242-13 in the notice would be inconsistent with the direction of the FAR to give a fair opportunist the ability to decide if they want to provide a response to the notice accepting that 52.242-13 will be in the TO/DO.

Carl,

- If an IDIQ contract’s maximum amount exceeds the SAT, that contract will include the Bankruptcy clause and that clause will be applicable to all orders against that contract.

- If an IDIQ contract’s maximum amount is under the SAT, the Bankruptcy clause is not prescribed. By definition, all orders will be under the SAT and an order over the SAT is impossible.

In my practice, a delivery or task order over the SAT will not include the Bankruptcy clause. That clause is already in the parent contract and need not be repeated in either the fair opportunity notice or the resulting order.  It is not necessary and is poor practice IMHO to repeat every clause from the parent contract in the notice and the order.

Ibn Battuta said:

Emphasis added. 

Might be confusing to some.

Not confusing at all. The clause is already (supposed to be ) in the contract.  In the event of a conflict between a task order and the contract, the contract requirement prevails.  Quit trying to over complicate this. Common sense.

Ibn Battuta said:

@joel hoffman I think you have come late to the party and missed the notice vs solicitation kerfluffle.

I didn’t miss any of it. Task ordering procedures are not contract solicitations

Ibn Battuta said:

According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

Isn't this the same as publication in SAM?  Put another way, isn't publication in SAM an announcement of the opportunity to offer something?

Ibn Battuta said:

A CO might invoke the Christian Doctrine to read a clause into an IDIQ contract or a TO/DO in accordance with government contracting case law, but it cannot be done pursuant to any FAR clause of which I am aware.

To clarify, if a clause can be read into a contract in accordance with the Christian Doctrine, can a CO physically add that clause to a contract without contractor agreement?

ji20874 said:

If an IDIQ contract’s maximum amount exceeds the SAT, that contract will include the Bankruptcy clause and that clause will be applicable to all orders against that contract.

This brings up an interesting point.  Many clauses have limitations on their applicability such as dollar amount, contractor size status and place of performance.  If a clause with such limitations is included in an indefinite delivery contract, will that clause apply to all orders issued under the contract or only those orders where the limitations placed on the use of that clause do not apply?  For example, if a contract includes the SCA clauses but an order is issued to a foreign firm for performance outside the US. would the SCA clauses apply to that order?

Ibn Battuta said:

No! Nothing in FAR 52.216-18 gives a CO the power to add a clause to a TO/DO that is not in the base contract.

I assume  this comment is intended for me.  Let me clarify that my post is based on this....."It seems to me that para. (b) of the contract clause at FAR 52.216-18, Ordering, clearly allows for orders with terms and conditions in addition to those in the parent contract." As quoted by ji20874 found here so be shocked beyond me please!

Ibn Battuta said:

Yet a conspiracy comprised of FASA, widespread multiple-award contracting, and modern contracting "innovative" practice have corrupted (yes, corrupted) the IDIQ concept to the point at which it is no longer recognizable and no longer understood by most contracting people. Much the same has happened with the concept of the blanket purchase agreement.

I agree completely.  In this thread I am reminded about my brother who's health issues cause him to take excemption to doctors who have a "practice".   He opines for that they "practice" on him all the time rather than finding something to actually fix him! 

ji20874 said:

If an IDIQ contract’s maximum amount is under the SAT, the Bankruptcy clause is not prescribed. By definition, all orders will be under the SAT and an order over the SAT is impossible.

That is not what I posted.  I purposely posted this "maybe because folks did not think a TO/DO would be over the SAT" with no mention of the "maximum amount" of the IDIQ.   The use of 52.216-18 is discretionary and if I have an IDIQ whose minimum order guarantee is say $10,000 and I anticipate that no single TO/DO will not be over $250,000 I could reason that there is no need to put the 52.242-13 clause in the parent contract.   I dang will better put it in a TO/DO if my anticipation was wrong and I have one for $250,001, based on the prescription.  

ji20874 said:

That clause is already in the parent contract and need not be repeated in either the fair opportunity notice or the resulting order.

I accept the clarification but honestly you should have clarified that a long time ago.

Ibn Battuta said:

Thus, FAR dollar thresholds are applied on the basis of an IDIQ contract's maximum value.

How do you get to this conclusion in regard to a multiple award IDIQ contract?  In some instances, an agency issues hundreds of contracts in response to a single solicitation.  It is logically inconsistent to say that the anticipated value of each of those hundreds of contracts is the total value of all orders that may be issued against all contracts, particularly since each contract has a minimum order quantity that needs to be subtracted from the total amount that can be ordered.  This is complicated even more by the fair opportunity requirement that we have been discussing here because you cannot say that the government can anticipate issuing orders to any one contractor that exceed the minimum order quantity.  Finally, I have an issue with the use of the word "anticipated."  Anticipated by whom?  Because the government is only obligated to order the minimum stated in the contract, that is all the contractor can anticipate receiving.

Retreadfed said:

How do you get to this conclusion in regard to a multiple award IDIQ contract?  In some instances, an agency issues hundreds of contracts in response to a single solicitation.  It is logically inconsistent to say that the anticipated value of each of those hundreds of contracts is the total value of all orders that may be issued against all contracts, particularly since each contract has a minimum order quantity that needs to be subtracted from the total amount that can be ordered.  This is complicated even more by the fair opportunity requirement that we have been discussing here because you cannot say that the government can anticipate issuing orders to any one contractor that exceed the minimum order quantity.  Finally, I have an issue with the use of the word "anticipated."  Anticipated by whom?  Because the government is only obligated to order the minimum stated in the contract, that is all the contractor can anticipate receiving.

FYI, it's the DCAA's position on calculating the value of an ID/IQ contract for purposes of determining CAS applicability. I don't like it and many others have suggested that CAS be applied on a TO/DO basis rather than on the maximum ceiling value of the parent contract (similar to how TINA and LOC/LOF requirements are implemented) … but here we are. DCAA uses the max ceiling value, regardless of our view of the logic of it.

Just because my mind works like it does......old blog by Don with the final conclusion still applicable today!

Ibn Battuta said:

What else can they do given FAR 1.108(c)?

Well, back in the 14th century (as you know from your world travels), CAS was not part of the FAR. If I recall correctly it was in Title 4 of the Code of Federal Regulations not Title 48. My memory is hazy regarding exactly when, but at some point it was decided to move CAS out of Title 4 and into Title 48, creating a "FAR Appendix" in the process called Title 48, Chapter 99. A consequence of that decision -- perhaps unintended but who knows? -- was the application of FAR conventions to CAS issues. In the former arrangement, I would consider it a stretch to apply a convention of Title 48 to Title 4 issues; but apparently that's what is done in these modern times.

From a purist's point of view, the determination of "contract value" for CAS purposes would be a matter for the CAS Board, charged by statute with interpreting CAS rules and Standards, and not for the FAR Council. I realize that position is contradicted by facts and reality, but I can't help wishing the CAS Board were more proactive and would issue interpretations (as it once did) rather than let the FAR Council and DCAA take the lead.

here_2_help said:

Well, back in the 14th century (as you know from your world travels), CAS was not part of the FAR. If I recall correctly it was in Title 4 of the Code of Federal Regulations not Title 48. My memory is hazy regarding exactly when, but at some point it was decided to move CAS out of Title 4 and into Title 48, creating a "FAR Appendix" in the process called Title 48, Chapter 99. A consequence of that decision -- perhaps unintended but who knows? -- was the application of FAR conventions to CAS issues. In the former arrangement, I would consider it a stretch to apply a convention of Title 48 to Title 4 issues; but apparently that's what is done in these modern times.

From a purist's point of view, the determination of "contract value" for CAS purposes would be a matter for the CAS Board, charged by statute with interpreting CAS rules and Standards, and not for the FAR Council. I realize that position is contradicted by facts and reality, but I can't help wishing the CAS Board were more proactive and would issue interpretations (as it once did) rather than let the FAR Council and DCAA take the lead.

It is when reading posts like this when I wish the WIFCON had "Like" buttons.

here_2_help said:

From a purist's point of view, the determination of "contract value" for CAS purposes would be a matter for the CAS Board, charged by statute with interpreting CAS rules and Standards, and not for the FAR Council.

I agree totally.   However, I do not think you have to be a purist to believe this.  It is simply a matter of statutory authority.  By law, the CASB has sole authority to make and interpret the CAS.  This authority is not subordinate to the FAR Council's authority to issue procurement regulations.  We got a hint of this difference some time ago when the ASBCA ruled on the authority of the DoD CAS Working Group to  issue interpretations of the CAS stating that such interpretations were not binding.  Further, in that case, the interpretation at issue was wrong.

As for the more general interpretation of FAR 1.108(c), we can all come up with our version of what the text means.  However, I learned long ago that statutes, regulations and contracts mean what the courts say they mean.  Thus, until there is some precedential interpretation of 1.108(c), we can all voice our opinions realizing they are just that.

here_2_help said:

FYI, it's the DCAA's position on calculating the value of an ID/IQ contract for purposes of determining CAS applicability. I don't like it and many others have suggested that CAS be applied on a TO/DO basis rather than on the maximum ceiling value of the parent contract (similar to how TINA and LOC/LOF requirements are implemented) … but here we are. DCAA uses the max ceiling value, regardless of our view of the logic of it.

I think that an argument can be made that the CAS clause in the parent IDIQ contract should only apply to orders that would otherwise be CAS-covered. By operation of FAR 52.216-18, the terms and conditions of the IDIQ apply to orders issued under the IDIQ. If a contractor receives an order under a parent IDIQ contract that contains FAR 52.230-2, then that clause applies to the order. However, the requirements of the clause are premised on whether or not the contract is exempt. The clause begins with:

Quote

Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2...

We know from the Kingdomware decision that a task or delivery is a "contract" as defined at FAR 2.101. Thus we can reasonably interpret the above use of "contract" to mean the task or delivery order.

Retreadfed said:

I agree totally.   However, I do not think you have to be a purist to believe this.  It is simply a matter of statutory authority.  By law, the CASB has sole authority to make and interpret the CAS.  This authority is not subordinate to the FAR Council's authority to issue procurement regulations.  We got a hint of this difference some time ago when the ASBCA ruled on the authority of the DoD CAS Working Group to  issue interpretations of the CAS stating that such interpretations were not binding.  Further, in that case, the interpretation at issue was wrong.

As for the more general interpretation of FAR 1.108(c), we can all come up with our version of what the text means.  However, I learned long ago that statutes, regulations and contracts mean what the courts say they mean.  Thus, until there is some precedential interpretation of 1.108(c), we can all voice our opinions realizing they are just that.

Was it Raytheon or Boeing that challenged the FAR Council's authority to interpret CAS, and subsequently had the Judge tell them that since the CAS Board didn't object that meant the CAS Board agreed with the FAR Council's interpretation and was just fine with it? My memory is (once again) hazy but I know that happened in the past couple of years. I suppose I could research it but I'm sure anybody who cares enough can go find the case.

Don Mansfield said:

I think that an argument can be made that the CAS clause in the parent IDIQ contract should only apply to orders that would otherwise be CAS-covered. By operation of FAR 52.216-18, the terms and conditions of the IDIQ apply to orders issued under the IDIQ. If a contractor receives an order under a parent IDIQ contract that contains FAR 52.230-2, then that clause applies to the order. However, the requirements of the clause are premised on whether or not the contract is exempt. The clause begins with:

We know from the Kingdomware decision that a task or delivery is a "contract" as defined at FAR 2.101. Thus we can reasonably interpret the above use of "contract" to mean the task or delivery order.

I'm right there with you but it's not yet been litigated so ….

Ibn Battuta said:

That suggests to me that the language is clear and unambiguous and not subject to various interpretations.

I disagree.  It only indicates that the issue has not been litigated, just as the issue of what is a contract for the acquisition of commercial items has not been litigated in regard to CAS coverage.  The passage of time does without litigation does not indicate that the language of a regulation, or statute is clear.  For example, the second amendment to the constitution had been in existence for over 200 years before the Supreme Court held that it conveyed an individual right to own firearms.

Disregard.  I misread the post.

Ibn Battuta said:

What are some of your versions of what it means?

A couple of definitional issues are what does "anticipated" mean in this context?  We also don't know whose anticipation is to be considered.  Also, 1.108(c) refers to supplies or services "to be acquired."  In an IDIQ contract we know the minimum amount that is to be acquired, but we do not know the maximum amount to be acquired.  Instead, we know the maximum that may be required.  Further, although we have been talking about IDIQ contracts, this section would also apply to requirements contracts.  There we have estimates with no promise of the government buying anything.

Ibn Battuta said:

That's 20 years without commentary or litigation, and I think it's reasonable to assume that in a litigious field like contracting the fact there were no questions about it when it was a proposed rule, no commentary in law reviews or newsletters, and no litigation about it in the 20 years since it took effect, it has not posed many if any interpretational issues.

Those may be indicators to you.  However, I know that in informal presentations, experienced government contract attorneys in private practice have raised concerns over the application of 1.108(c).  Thus, I am not alone.

here_2_help said:

Was it Raytheon or Boeing that challenged the FAR Council's authority to interpret CAS, and subsequently had the Judge tell them that since the CAS Board didn't object that meant the CAS Board agreed with the FAR Council's interpretation and was just fine with it?

I'm not sure on the point you raised, but I do think it was Boeing that raised an issue concerning something similar with the court holding that the FAR Councils could adopt rules that they had not promulgated such as the CAS.

Ibn Battuta said:

I have searched the GAO, BCA, and COFC databases and cannot find such a case. I have searched Karen Manos's book and the Government Contract Cost and Pricing newsletter. I have searched Briefing Papers. I cannot find such a case.

Any clues?

Raytheon Company, Space & Airborne Systems, ASBCA Nos. 57801, 57803, 58068, decided 7 May 2015. See Discussion beginning on Page 14 -- "The CAS Board's Authority to Regulate"

http://www.asbca.mil/Decisions/2015/57801, 57803, 58068 Raytheon Company, Space & Airborne Systems 5.7.15.pdf

Hope this helps ….

Reference - https://www.federalregister.gov/documents/2008/11/12/E8-26953/federal-acquisition-regulation-far-case-2007-006-contractor-business-ethics-compliance-program-and

“Response: According to FAR 1.108(c), unless otherwise specified, if the action establishes a maximum quantity of supplies or services to be acquired, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options. That is, if it is anticipated that the dollar value of orders on an FSS contract will exceed $5 million, then this clause is included in the basic contract against which orders are placed.”

Ibn Battuta said:

But I thought our issue was the clarity of the regulation, not the effect of its application. So which is it?

To properly apply a regulation to a set of facts, you need to understand what it means.  Once you understand what it means, you can determine if it applies to the facts at hand.  Thus, the issue is what does 1.108(c) mean and how is it to be applied, e.g., to IDIQ contracts, multiple award IDIQ contracts, requirements contracts, contingent contracts.

here_2_help said:

Raytheon Company, Space & Airborne Systems, ASBCA Nos. 57801, 57803, 58068, decided 7 May 2015. See Discussion beginning on Page 14 -- "The CAS Board's Authority to Regulate

Interesting.  It seems like the CASB took the position that the issue is too hard for it to figure out so it punted to the FAR Councils.

Ibn Battuta said:

But if you want to keep asserting that the clause is, arguably, unclear or ambiguous, then you have convinced me and let's let it go at that

I accept.  Like a lot of the FAR, this is clear as mud but it covers the ground.

On 1/14/2020 at 10:51 PM, Ibn Battuta said:

Emphasis added. 

Might be confusing to some.

I think your post is unfair. The author's two posts were made eight hours apart.

On 1/14/2020 at 2:06 PM, joel hoffman said:

The FAR at 16.505 (b) concerns ordering procedures for MATOCs. Ordering procedures are not “solicitations”, per se.

See 16.505 (b)(iii)(B):

”(B) 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.“

The only mention of ”solicitation” in 16.505 is at (b)(2)(B), with regard to establishing and including ordering procedures in the solicitation for the ID/IQ CONTRACT: 

”D) Include the procedures in the solicitation and the contract; and...”

Not sure if there is still a argument about whether the fair opportunity notice is or isn’t what is used in MATOC ordering procedures instead of a “solicitation”  to request a task order proposal.

Per ji and according to the above, contract holders would respond to a “notice” . There is no need to use a “solicitation” in addition to or  instead of the “notice”.

When introducing the term “solicitation” in task ordering procedures, we start getting into questions concerning what FAR says must be included in a ”solicitation.” I suspect that using notice,  not solicitation was deliberate for reasons such as that. 

That is supposed to be done  in the original solicitation for the Base Multiple Award IDIQ contract . Dont repeat the same provisions and clauses during the task ordering procedures. You might refer to  a clause in the contract but don’t repeat inclusion of the clause.

I thought ji’s explanation concerning the bankruptcy clause was pretty straightforward and clear too.

“Carl,

- If an IDIQ contract’s maximum amount exceeds the SAT, that contract will include the Bankruptcy clause and that clause will be applicable to all orders against that contract.

- If an IDIQ contract’s maximum amount is under the SAT, the Bankruptcy clause is not prescribed. By definition, all orders will be under the SAT and an order over the SAT is impossible.

In my practice, a delivery or task order over the SAT will not include the Bankruptcy clause. That clause is already in the parent contract and need not be repeated in either the fair opportunity notice or the resulting order.  It is not necessary and is poor practice IMHO to repeat every clause from the parent contract in the notice and the order.”

I don’t have access to my pre-FARA/FASA FAR books today . I’m curious what the ordering process said prior to the introduction of the terms “fair opportunity” and “notice”

Will do some further study.

Ibn Battuta said:

Quote

Insert clause 1352.216–74, Task Orders, or a substantially similar clause in task order solicitations and contracts, making changes, as appropriate. Contracting officers are encouraged to make appropriate modifications to the time requirements and procedures to meet the Government's needs.

Ibn, This Prescription appears to refer to a clause,  describing general  ordering procedures that would go in the IDIQ (“task order”) Contract as well as in the solicitation for the ID/IQ (“Task Order”)  contract..

The clause doesn’t contain any task order specific information or requirements.  Therefore, why would it be repeated for every task order? Just reference it if necessary in the request for a task order proposal.  

“1316.501-2-70 Task orders.

Insert clause 1352.216-74, Task Orders, or a substantially similar clause in task order solicitations and contracts, making changes, as appropriate. Contracting officers are encouraged to make appropriate modifications to the time requirements and procedures to meet the Government's needs.”

“1352.216-74 Task orders.

As prescribed in 48 CFR 1316.501-2-70, insert the following clause:

“Task Orders (APR 2010)

(a) In task order contracts, all work shall be initiated only by issuance of fully executed task orders issued by the Contracting Officer. The work to be performed under these orders must be within the scope of the contract. The Government is only liable for labor hours and costs expended under the terms and conditions of this contract to the extent that a fully executed task order has been issued and covers the required work and costs. Charges for any work not authorized shall be disallowed.

“(b) For each task order under the contract, the Contracting Office shall send a request for proposal to the contractor(s). The request will contain a detailed description of the tasks to be achieved, a schedule for completion of the task order, and deliverables to be provided by the contractor.

“(c) The contractor shall submit a proposal defining the technical approach to be taken to complete the task order, work schedule and proposed cost/price.

“(d) After any necessary negotiations, the contractor shall submit a final proposal.

“(e) Task orders will be considered fully executed upon signature of the Contracting Officer. The contractor shall begin work on the task order in accordance with the effective date of the order.

“(f) The contractor shall notify the Contracting Officer of any instructions or guidance given that may impact the cost, schedule or deliverables of the task order. A formal modification to the task order must be issued by the Contracting Officer before any changes can be made.

“(g) Task orders may be placed during the period of performance of the contract. Labor rates applicable to hours expended in performance of an order will be the contract rates that are in effect at the time the task order is issued.

“(h) If multiple awards are made by the Government, the CO shall provide each awardee a fair opportunity to be considered for each task order over the micro-purchase threshold unless one of the exceptions at FAR 16.505(b)applies.”

Ibn, I agree that, if a task order is incrementally funded, then you’d include the Limitation of Funds Clause in the task order - it would be task order specific.

As for agencies referring to a task order solicitation, so they can call it what they want to. But the FAR ordering procedures don’t refer to it as a “solicitation”.

Ibn Battuta said:

You're right about that clause. I included the wrong one in my post. But I provided plenty of other examples that show that agencies, including your Corps of Engineers, issue task order solicitations. I found many more examples that I posted.

Okay, As I said you found agencies referring to it as a “solicitation”.

They can call it what they want to. But the FAR ordering procedures don’t refer to it as a “solicitation”. 

I said it tends to confuse people- even you - as you admitted above. I’m sure that you are very experienced and well qualified.

But the poorly written prescription for that clause tends to prove my point.

I believe that the definition in FAR 2.101 doesn’t apply if another section defines/describes the process for seeking proposals differently.  The FAR committee appears to differentiate between the solicitation for the ID/IQ CONTRACT and the fair opportunity task order process under the ID/IQ.

I think that the “fair opportunity”  competition requirement is  fairly “recent”  (within 25 years or so. time flies when you’ve been around a long time). I can remember when our agency was “spreading the wealth” for task orders for various reasons. I’m at my hunting camp. My older hard copies of FAR are at home. I’d like to check out a 1997 or, preferably old version of the ordering process. Darned hard to do on an iPhone with two bars for signal strength.   

“2.101   Definitions.

(a) A word or a term, defined in this section, has the same meaning throughout this regulation (48 CFR chapter 1), unless— 

(1) The context in which the word or term is used clearly requires a different meaning; or 

(2) Another FAR part, subpart, or section provides a different definition for the particular part or portion of the part.“

Ibn Battuta said:

...it was ji20874's post which confused me...

My apologies for confusing -- I try to be clear.  I thought I had been consistent and clear, but I will re-state to erase any confusion.

1. FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement;
2. I believe this is purposeful;
3. I use the word “notice” in my own practice, not “solicitation";
4. To me, a fair opportunity notice is not a solicitation within the construct of the FAR (see 1. and 2. above), even though it may be commonly referred to as such within our community; and
5. As an example, when the FAR's prescribing text for the Bankruptcy clause calls for insertion of that clause in all solicitations exceeding the SAT, I don't insert that clause in my fair opportunity notices (because they aren't solicitations) (the clause is already included in parent IDIQ contracts exceeding the SAT and is applicable to the resulting orders, so it isn't needed in my notices).

In short, the FAR doesn't call it a solicitation, so I don't.  The FAR calls it a notice, so I do, too.

ji's argument only holds water if a notice of fair opportunity, by definition, does not request quotations or offers from the Government. He presents no basis for that other than he would not put the Bankruptcy clause in a notice of fair opportunity. A "solicitation" is defined as:

Quote

“Solicitation” means any request to submit offers or quotations to the Government.

Why can't a notice of fair opportunity request quotations or offers? Maybe some do and some don't.

ji has avoided answering the question of whether a notice of fair opportunity requests quotations or offers from the Government because a "yes" answer would undermine the distinction he's trying to make. A "no" answer would require him to explain why that is necessarily so, which he cannot. 

Further, ji believes that the FAR Councils came up with "notice of fair opportunity" to distinguish it from "solicitation" when developing FAR 16.505 procedures. The evidence presented is that "solicitation" does not appear in FAR 16.505. That's an interesting theory, but there's not enough evidence for a reasonable person to draw such a strong conclusion. Certainly not enough to claim "A fair opportunity notice is not a solicitation within the construct of the FAR" as a matter of fact. Or to accuse others of being sloppy. Some of what has been posted in agency supplements seems to contradict that theory.

Don,

Of my numbered statements 1. through 5. reflecting my thought process, which do you judge as untrue?

Earlier in this thread, I asked you a question and you haven’t answered it yet.  Will you answer it now?

T   F   FAR 16.505(b)(1) repeatedly uses the word “notice” and never uses the word “solicitation” to describe a fair opportunity announcement.

And one more?  It also has been asked, but you haven’t answered it yet.

Y     N     In your own practice, do you insert the Bankruptcy clause in every fair opportunity notice exceeding the SAT (even though the clause is already included in the parent contract and will be applicable to the order regardless of whether or not you insert the clause in the notice)?

You err in providing the reason that I will have not answered your question.  You really shouldn’t put words in my mouth.  Your question has a flawed premise, and answering your question with a simple yes or no (as you demanded) would not provide for an honest discussion.  

But please answer my questions above — that actually will help us have an honest discussion.

If you tell me which of the five statements is offending you, and why, I am hopeful that I can resolve your concern and assuage your animus.

If you answer TRUE to the FAR text question, I am hopeful we will have found common ground.  If you answer FALSE to that question, we will be miles apart.

If you answer YES to the bankruptcy clause question, we will have a difference of opinion — you do what you need to do in your practice, and me in mine.  If you answer NO, I will be glad you aren’t wasting ink and paper but it will seem inconsistent with your insistence that a notice is a solicitation.

@ji20874,

If you truly want to continue this discussion, intellectual honesty demands that you defend your initial claim:

Quote

A fair opportunity notice is not a solicitation within the construct of the FAR

Whether or not something is a "solicitation" depends on the whether it meets the definition of "solicitation" at FAR 2.101.

Quote

“Solicitation” means any request to submit offers or quotations to the Government.

To bear the burden of proof you must provide evidence that a notice of fair opportunity does not, by definition, request quotations or offers. If you cannot do that, then your claim can be dismissed by operation of Hitchen's Razor.

quod grātīs asseritur, grātīs negātur ("What is asserted gratuitously may be denied gratuitously")

Just because someone questions your claim does not necessarily mean they oppose it.

In a minor aside, I find that FAR 1.108-c is the subject of yet another disagreement in meaning. It has led me to question whether most folks accept the plain meaning of "all options" in  FAR 1.108(c.). 

Who here is sure to include the value ascribed to the FAR 52.217-8 Option to Extend Services, when present, in determining the threshold value? If that's not what you do in practice, then why not?

ji20874 said:

FAR 16.505(b)(1) repeatedly uses the word “notice” and never uses the word “solicitation” to describe a fair opportunity announcement.

ji, I am not taking sides in this, but what is the significance of 16.505(b)(1) not using the term "solicitation" if a notice requests offers or quotes?  It seems like such a notice would meet the definition of "solicitation" regardless of what label is placed on it in the FAR.

On 1/17/2020 at 3:12 PM, Ibn Battuta said:

I disagree with your analysis. But what you "believe" about FAR 2.101 doesn't interest me.

The fair opportunity requirement dates to FAC 90-33, 60 Fed. Reg. 49723, September 26, 1995, effective October 1, 1995. It has been amended several times since then.

Yes, there is no mention of the “notice” in the January 1997 version of 16.505.

There is mention of the word “solicit” at (b)(3) where “The contracting officer solicits offers from two or more awardees for order placement when the price for the supplies or services is not established in the contract at the time of contract award.”

The July 1, 2006 edition at (b)(3) instructs the KO to “establish prices for each order using the policies and procedures in subpart 15.4.” The word “”solicit” is gone. 

There is no distinction between size of the MATOC order in the July 2006 FAR, nor is the term “notice” used.

So, as of July 2006, the term “solicit” was removed, but Part 15.4 processes were added Where there aren’t contract prices established. . No mention of “notice”.  There is no name for the ordering process.

The July 2011 FAR Edition distinguishes between orders exceeding the simplified acquisition threshold, and orders exceeding $5 million. It includes the “notice” requirement

For orders exceeding the simplified acquisition threshold the contracting officer shall “[p]rovide a fair notice of the intent to make a purchase“, etc. etc. The KO must “afford all contractors responding to the notice a fair opportunity to submit an offer and have an offer fairly considered”.

For orders exceeding $5 million the contracting officer must provide “a notice of the task or delivery order that includes a clear statement of the agencies requirements” etc. etc.

For what it’s worth, both the 2011 and current versions include requirements for orders exceeding $5 million ($5.5 million) to disclose the significant factors and sub factors, including cost or price, that the agency expects to consider when evaluating proposals, and their relative importance” .  Both editions require, when using “best value basis” for award, a written statement documenting the basis for award and the relative importance of quality and price or cost factors.

The 2006 edition was less specific and simply required rationale for placement and price of the order including The basis for award and the rationale for any trade-offs among cost or price and non-cost considerations in making the award decision.

At any rate, as of July 2006, there was no mention of “solicitation” or “notice” or “ fair notice”.  No wonder many agencies use the term “solicitation”.

It’s a “Johnny come lately” term.

The term “fair opportunity notice” or “notice” first appeared in the order placement procedures  in 16.505 sometime after 2006.

It is in the 2011 FAR version that I have. I didn’t have time to track down what year it was incorporated into the ordering procedures between 2006 and 2011.

The term “solicitation”  hasn’t ever been used in the FAR procedures for fair opportunity competitive order placement to my knowledge, other than a requirement in the 1997 FAR edition to solicit price proposals when the IDIQ contracts don’t  have prices for the intended efforts. That word was removed sometime between  the 1997 and 2006 versions.

It appears that the FAR Council decided to adopt a name/term other than the standard “solicitation” to use with the fair opportunity order placement process sometime between 2006 and 2011.

However, since “notices” is a relatively recent addition to 16.505(b), it’s no wonder that many agencies call their task order proposal request procedures  “solicitations”, not “notices.”

There are some references elsewhere in the FAR to solicitations for task orders but that isn’t surprising. The FAR isn’t always coordinated across the various Parts and not all task orders are issued under fair opportunity procedures.

On 1/17/2020 at 11:01 AM, Ibn Battuta said:

And I found one in which an office of the Army Corps of Engineers issued a "Delivery Order Proposal Request" DOPR. See GAO B-401017.4. (Please check the definition of solicitation in FAR 2.101.)

BTW, I have found a form, ENG Form 6141, "A-E Task Order Solicitation Compliance Checklist (JUN 2019," issued by, let's see, the Army Corps of Engineers. "The TORP was issued on May 28, 2013, to firms who held contracts under a multiple-award task order contracts awarded by the Corps."

The Corps doesnt use solicitations for the Brooks Act selection phase of a single award A/E contract, an A/E IDIQ contract or for A/E task order competitions.

Any “solicitation” would be associated with the request for a price proposal to the firm or firms selected to negotiate the single or multiple award A/E contract(s) or the firm selected to negotiate the A/E task order terms and prices.

The RFP includes the detailed Statement of Work

For new A-E contract competitions, the Corps uses a “synopsis”, which specifically states that it isn’t an RFP and that no solicitation will be provided.

The ENG Form Checklist that you referred to is prepared after negotiations with the selected firm(s) as part of the A/E task order award documentation.

EDIT: Please remember the FAR Part 2 definition of “solicitation (also taking into account the definitions of “offer” and “quotations”): 

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“.

”Offer means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called “bids” or “sealed bids”;  responses to requests for proposals (negotiation) are offers called “proposals”: however responses to requests for quotations (simplified acquisition) Are “quotations”, not offers. For unsolicited proposals, see subpart 15.6”

Thus, it is only a solicitation when the Corps requests (solicits) the price proposal for the A/E task order. That may be a hold over from before updates to  FAR 16.505 introduced the term “notice” and dropped the term “solicit price proposals”.

I suspect that the “tail wagging the dog” DoD contracting software may require a solicitation number for all task orders but I don’t know for sure. Perhaps a DoD employee reader here can explain one way or another (thanks).

Ibn Battuta said:

The word "notice" in connection with a fair opportunity made its first regulatory appearance in the DFARS, when Section 216.505-70 was added as required by Public Law 107-107, NDAA for FY2002, Section 803, 67 Fed. Reg. 65505, October 25, 2002. The new DFARS section stated, in pertinent part:

The word "notice" was inserted in FAR 16.505(b) by interim rule, FAC 2005-27, 73 Fed. Reg. 54008, September 17, 2008, as required by the 2008 NDAA, Public Law 110-181, Section 843. There was another interim rule in 2011, FAC 2005-50, 76 Fed. Reg. 14548, March 16, 2011. A final rule was published in FAC 2005-56, 77 Fed. Reg. 12927, March 2, 2012.

Thanks, Ibn!

After reading the definition of “solicitation”, I notice that the first phase of a Two phase Design-Build construction acquisition (FAR 36.3)  is called a “solicitation” and requires a solicitation number.  However, Phase One, technically doesn’t involve an “offer”, as defined in the definition of solicitation  (“a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract”).

The responses to Phase One are “Qualifications Proposals“, with no pricing. The government cannot “accept” such a proposal and bind the offeror to perform the resultant contract. If selected in phase One, a firm would be asked in Phase Two for a price and technical proposal (Offer).

The design-build industry calls Phase One a “Request for Qualifications” (“RFQ”), not an RFP. The owner “shortlists” a few, most highly qualified teams for Phase 2. Only Phase 2 is an RFP, issued to the shortlisted Phase One firms.

But since the government already had an “RFQ” (Request for Quotations), to avoid confusion, the government didn’t adopt that terminology for Phase One in 1997, when the Two-Phase D-B method was incorporated into the FAR.

For those who insist on the sanctity of FAR Part 2 definitions throughout the FAR, this is another example of an exception and probably due to lack of coordination within various areas of the FAR.  

Quoting 36.303:

“ 36.303   Procedures.

One solicitation may be issued covering both phases, or two solicitations may be issued in sequence. Proposals will be evaluated in Phase One to determine which offerors will submit proposals for Phase Two. One contract will be awarded using competitive negotiation.”

The problem here is that the same solicitation can cover both Phases.

However, if you use a separate solicitation for phase 2, technically the first phase isn’t a “solicitation” by the definition of solicitation”. You aren’t  soliciting an offer in phase one . It can’t be used to award a contract. It can’t bind anyone to perform anything.