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Releasing Names of Evaluated A & E Firms

By Anonymous on Thursday, August 22, 2002 - 03:39 pm:

I looked through FAR 15.5 and 36.6 for information concerning releasing the names of A-E firms evaluated under A-E procedures. It seems to indicate that only name that can be released is the name of the firm (or firms) awarded a contract. Can the names of unsuccessful firms be released after award?


By Anonymous on Thursday, August 22, 2002 - 09:35 pm:

Identifyimg the competitors after award for an A-E contract is no different than in a Part 15 negotiated acquisition.


By Anonymous on Thursday, August 22, 2002 - 09:44 pm:

I'm not that familiar with Part 15, but it seems to say that you can only release the name of the successful offeror. Is that correct?


By Anonymous on Thursday, August 22, 2002 - 09:56 pm:

Generally, in the award notification, that is all we do. Why do you want to describe who was evaluated?


By Jerry Zaffos on Friday, August 23, 2002 - 09:12 am:

Refer to FAR 36.607 regarding release of information on firm selection.


By Anonymous on Friday, August 23, 2002 - 11:06 am:

Maybe my question should be...when, if ever, can you release the names of A-E firms who have submitted a SF-255's (or offers from offerors in general) in response to a solicitation? Everything I read in the FAR (36.607 and 15.503) seems to indicate you can only release the name of the successful offeror (or firm). At what time can release the names of firms submitting 255's (or offerors submitting offers)?

I ask due to a request from a SDB A-E firm who is looking for subcontracting opportunities.


By Vern Edwards on Friday, August 23, 2002 - 11:23 am:

Anonymous:

I do not know of any rule in FAR or in case law that either requires or prohibits the disclosure of the names of the firms that submited SF-255s in response to a solicitation.

In the absence of agency-specific guidance, do what you think best. Let me put it this way -- Why not release the names?


By Eric Ottinger on Friday, August 23, 2002 - 11:33 am:

Anon

I usually release the solictitation mailing list and the list of attendees for the bidders conference. This is specifically for the purpose of assisting firms who want to team up.

As for unsuccessful offerors, the Comp. Gen. does not reveal this information in protest decisions. That should be a pretty good indication of the correct approach to take.

Eric


By Kennedy How on Friday, August 23, 2002 - 12:12 pm:

Anon,

Are you saying that the SDB A-E contractor, the winner, is looking to subcontract with one of the losers? That is what it sounds like to me....

Kennedy


By Vern Edwards on Friday, August 23, 2002 - 12:21 pm:

The fact that the Comp. Gen. doesn't disclose the names of unsuccessful offerors in a protest decision in which those names are irrelevant has no bearing on the question of whether or not Anonymous should give a small business the names of firms that unsuccessfully sought a contract so that it can seek work from them. The GAO does what it does for its own reasons. I do not know of any regulation prohibiting such disclosure.

One simple solution: Anonymous can call the firms and ask if it's okay to give their names to the small business.


By Eric Ottinger on Friday, August 23, 2002 - 12:36 pm:

Jerry,

Thanks for providing the correct cite in the FAR.

FAR 36.607 Release of information on firm selection.

(a) "After final selection has taken place, the contracting officer may release
information identifying only the architect-engineer firm with which a contract
will be negotiated for certain work. ..."

Eric


By Vern Edwards on Friday, August 23, 2002 - 01:28 pm:

The objective of FAR 36.607(a) is to maintain confidentiality about the contract negotiations that will take place during the period between contractor selection and contract award. It should not be interpreted as prohibiting the release of the names of those firms who unsuccessfully sought the contract.

Requests for marketing information from small businesses looking for partners for other A-E jobs is common. They want to know who is going after government work. Don't make a federal case out of it. If you're worried about it, call the companies in question, tell them who wants their names and why, and ask them if it's okay to provide their names.

Criminy.


By Eric Ottinger on Friday, August 23, 2002 - 01:41 pm:

Vern,

We release only the name of the firm with which we are negotiating for the purpose of maintaining the confidentiality of contract negotiations.

You've got me Vern. Please clarify.

Eric


By Jerry Zaffos on Friday, August 23, 2002 - 01:54 pm:

FAR 36.607 also says that, after award, the CO can release information per FAR 5.401, which says that maximum information should be released unless the information falls into one of the criteria listed.

I don't know what the big deal is about releasing the names of unsuccessful offerors since their names would be released if they were successful.


By Eric Ottinger on Friday, August 23, 2002 - 02:17 pm:

FAR 5.303 Announcement of contract awards.

(b) Local announcement. Agencies may also release information on contract awards to the local press or other media. When local announcements are made for contract awards in excess of the simplified acquisition threshold, they shall include--

(1) "For awards after sealed bidding, a statement that the contract was awarded after competition by sealed bidding, the number of offers solicited and received, and the basis for selection (e.g., the lowest responsible bidder); or"

(2) "For awards after negotiation, the information prescribed by 15.503(b), and after competitive negotiation (either price or design competition), a statement to this effect, and in general terms the basis for selection."


FAR 15.503 Notifications to unsuccessful offerors.

(b) Postaward notices. (1) "Within 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award
(10 U.S.C. 2305(b)(5) and 41 U.S.C. 253b(c)) or had not been previously notified under paragraph (a) of this section. The notice shall include--

(i) The number of offerors solicited;

(ii) The number of proposals received;

(iii) The name and address of each offeror receiving an award; ..."

Eric


By Vern Edwards on Friday, August 23, 2002 - 02:17 pm:

Eric:

Okay, I'll clarify: Tell people who you selected, but don't tell them anything about the contents of that firm's SF 254 or 255, the rationale for the selection, or, if there was a design competition [see FAR 36.602-1(b)], the features of the selectee's design concept.

Take a look at the Corps of Engineers FAR supp. (the EFARS); the Corps not only reveals the name of the selected firm, but it tells each firm it's standing after the selection process:

"36.607 Release of information on firm selection.

(a) The selection board chairperson shall notify, in writing or electronically, all firms of their selection status within 10 days after approval of the selection. Notifications shall not be made after a preselection board. The notification shall indicate to the firm that it is: (i) The highest rated, (ii) Among the most highly qualified firms but not the highest rated, or (iii) Not among the most highly qualified firms. The notification shall also inform each firm that it may request a debriefing in accordance with paragraph (b) below. Within 10 days after contract award, all remaining most highly qualified firms shall be so notified."

Clearly the Corps, who is second to none in the conduct of A-E selections, doesn't read FAR 36.607(a) literally. The A-E statute, 40 U.S.C. 541-544, is silent on notifications.

A-E selection is like the old DOD and NASA "four-step" source selection process. Selection is not the same as contract award; there must be negotiations first, and you should be careful what you disclose publicly until those negotiations have been completed. The names of the unsuccessful firms do not affect negotiations.

Moreover, Anonymous asked if he could release the names "after award." The last sentence in FAR 36.607(a) says: "When an award has been made, the contracting officer may release award information (see 5.401)." FAR 5.401(b) says, in part: "Contracting officers may make available maximum information to the public...." Italics added. None of the four stated exceptions to that policy involve the names of the unsuccessful firms.

If I announced a selection IAW FAR 36.607(a) and a small business called to ask the names of the other firms who applied for the contract, I would release the names without a second thought, unless my agency-specific regulation said not to do so. I wouldn't ask a government lawyer first and I wouldn't tell the small business to wait for a debriefing.

That's what I would do. You do what you would do.


By Vern Edwards on Friday, August 23, 2002 - 02:29 pm:

Eric:

I don't know why you quoted what you just did, because it only describes what must be released.

Take a look at the EFARS 36.607(a). The Corps of Engineers releases not only the name of the selectee, but tells each offeror its standing before the award of the contract. The Corps clearly doesn't read FAR the same way you do and I'm pretty sure they know what they're doing.

The objective of FAR 36.607(a) is to prevent the disclosure of information that might bear on upcoming negotiations. I wouldn't hesitate to release the names of the unsuccessful firms after award, and I wouldn't ask a lawyer first. I would release the names before award. I did it when I was a contracting officer and I would do it now.

That's what I would do. You do what you would do.


By Eric Ottinger on Friday, August 23, 2002 - 02:48 pm:

Vern,

Common sense would suggest that if the FAR intended that we should release the identity of the unsuccessful offerors it would say so.

Actually, the FAR says that we should release the number of unsuccessful offerors.

You can do what you want. Working 1102's should talk to their supervisors and their lawyers before they embarrass themselves.

Eric


By K.C. on Friday, August 23, 2002 - 03:54 pm:

In re. to post at 2:48p on Friday "Common sense would suggest that if the FAR intended ... it would say so."

Common sense, as well as documented policy, tells me that if the FAR (and other policy) doesn't say that I cannot ... I can! Specifically, see FAR 1.102 (d), which provides that "...In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority."

The original poster notes that the small business would like to increase its business base. Is affording that opportunity to a small business inconsistent with the job of "working" 1102s? Is affording maximum opportunities to small businesses a stated goal of Federal acquisition, and therefore by definition in the interest of the Government?

There are a couple of common sense ways that "working 1102s" can accommodate this request -- 1) Ask the unsuccessful offerors if they would provide a POC for the small business to contact, 2) Alternatively, provide the small business POC information to the unsuccessful offerors and allow them to release information

If working 1102s have to play "Mother, may I" with their supervisors and lawyers on simple issues, seems to me that they could become outsourced 1102s.


By Eric Ottinger on Friday, August 23, 2002 - 04:38 pm:

K.C.

Neverless-- I would be curious to know what your supervisor and your lawyer think. Let me know.

Eric


By Vern Edwards on Friday, August 23, 2002 - 06:19 pm:

If common sense was going to suggest something, it would say so.

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