ji20874

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About ji20874

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  1. jb, Thanks for your clarification. Yes, my note that offended Vern was in response to your posting. I responded to you with a purpose of clarifying that all contracts exceeding $25,000 are synopsized, including sole source contracts, unless an exception in FAR 5,202 applies, whether or not the contracting officer intends the for the action to be competitive or non-competitive, and regardless of whatever the contracting officer discerns as public benefit and administrative costs. I wrote-- There is no connection between competition and FBO synopses -- all sole source contracts exceeding $25,000 are synopsized, unless an exception in FAR 5,202 applies. He objected to this statement because he dishonestly separated the text before the hyphen from the text after the hyphen. If one reads it as a whole, in its context, it is harmonious and precise and correct. Because of his further objection, I clarified-- Actually, I meant that there is no connection -- a contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive. A contracting officer should not think of synopsis as being only for competitive acquisitions. He objected again because he dishonestly separated the text before the hyphen from the text after the hyphen. Again, if one reads it as a whole, in its context, it is harmonious and precise and correct. He will likely object again, and he can have the last word. But I'm glad the exchange has been beneficial to you.
  2. Vern, Since you're done, I'll get the last word. I'll stand my ground. I wrote, "A contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive. A contracting officer should not think of synopsis as being only for competitive acquisitions." That is wholly true and perfectly precise. I don't understand your disagreement with that statement. And in that context -- the context in which I wrote -- there is no connection between competition and synopsis.
  3. Actually, I meant that there is no connection -- a contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive. A contracting officer should not think of synopsis as being only for competitive acquisitions. FAR 5.002 lists three public policy purposes for synopsis, of which competition is one.
  4. Navy, Asa I see it, if any performance occurs outside the United States (including delivery of a product otherwise wholly assembled in the United States), then that counts as performed outside the United States for purpose of the definition of micro-purchase -- for a supply contract, delivery is performance.
  5. jb, There is no connection between competition and FBO synopses -- all sole source contracts exceeding $25,000 are synopsized, unless an exception in FAR 5,202 applies. For example, the fact of a sole-source buy is good for reasons of public transparency, subcontracting possibilities, potential objections to the sole-source, and so forth.
  6. I wouldn't let the appearance of the word "services" in the NAICS code title become the dispositive answer that the acquisition in question is for services.
  7. jb, Your question was directed to Vern, but let me ask you a question to make sure I understand -- are you asking if FAR 13.203( a )( 2 )'s permission to award without soliciting competitive quotations can be used as an exception to synopsis in your overseas contingency environment between $25,000 and $30,000 and as an exception to display between $15,000 and $25,000? I have never considered that question, and am interested in your thoughts.
  8. Shouldn't the exception you note as FAR 5.202( f ) be FAR 5.202( a )( 12 )? You are correct that FAR 5.101( a )( 1 ) for synopsis in FBO applies to actions exceeding $25,000 while 5.101( a )( 2 )( i ), ( ii ), and ( iii ) for local display or posting apply only to actions between $15,000 and $25,000. The possible exceptions are listed in FAR 5.202. Use of an oral solicitation is not an exception to synopsis under FAR 5.101( a )( 1 ) -- however, use of an oral solicitation may be an exception to display or posting under FAR 5.101( a )( 2 ). Your interlocutors err by failing to understand that FAR 5.101( a )( 1 ) for FBO synopsis applies to actions exceeding $25,000 while 5.101( a )( 2 ) for local display or posting applies only to actions between $15,000 and $25,000. They also err by thinking that use of an oral solicitation is an exception to FBO synopsis -- it is not -- if they would read carefully and pay attention to the numbering and the actual text, as you seem to have done, they would see that FAR 5.101( a )( 2 )( ii ) provides an oral solicitation exception to local display or posting, but not to synopsis. FAR 13.106-1( c ) is irrrelevant to your argument. You should consider more aggressive use of the synopsis exception at FAR 5.202( a )( 2 ) -- this will provide an exception for synopsis and will allow for use of oral solicitations, which is where FAR 13.106-1( c ) comes into play. Your agency head could choose to invoke FAR 5.202( b ), and won't even know to think of it unless someone asks him or her. Your key points-- FAR 5.101( a )( 1 ) for FBO synopsis applies to actions exceeding $25,000. FAR 5.101( a )( 2 ) for local display applies to actions between $15,000 and $25,000. Anyone errs who applies ( a )( 1 ) to actions under $25,000. Anyone errs who applies ( a )( 2 )( i ), ( ii ), or ( iii ) to actions exceeding $25,000. The exceptions to FBO synopsis are in FAR 5.202( a ) and ( b ) -- use of oral solicitation is not an exception to synopsis. Use of oral solicitation is an exception to local display for actions between $15,000 and $25,000, not an exception to synopsis. And just for emphasis-- FAR 5.101( a )( 1 ) for FBO synopsis applies to actions exceeding $25,000. FAR 5.101( a )( 2 ) for local display applies to actions between $15,000 and $25,000.
  9. I think we need to wait for the FAR Case to be published.
  10. I tend to think that if a solicitation expressly adopted 15.3 language, then the GAO would expect the contracting officer to follow the solicitation. Here is some solicitation text that might be helpful in ( a ) avoiding these problems; and ( b ) gaining the protection the GAO is willing to offer such as in the Sapient case above: NOTICES AND DEBRIEFINGS The Government will provide post-award notices to unsuccessful awardees in accordance with FAR 16.505( b )( 6 ). Pre-award notices will not be given. PROCEDURES This is a fair opportunity ordering process under FAR 16.505( b )( 1 ). The procedures of FAR Subpart 15.3 do not apply to this acquisition.
  11. boricua, 8(a) is different. An agency cannot award an 8(a) contract without the SBA's permission, and the SBA grants admission to its Business Development program based on NAICS codes. Thus, a company can be enrolled in the SBA Business Development program (and thus be eligible for an 8(a) contract) for one one NAICS code but not another -- it might be small for both, but 8(a) only for one. But this only applies to 8(a). For a general small business set-aside, there is no requirement that a company's SAM listing include a solicitation's NAICS code, as the GAO reminded us -- same for HUBZone and SDVOSB, where eligibility is not driven by NAICS code.
  12. I'm not aware of all the GAO case law, and I don't know if the GAO has decided exactly that question. There have been cases where the GAO has said that FAR Subpart 15.3 procedures do not apply to discussions under fair oipportunity considerations, but that the discussions must be fair and not misleading. I firmly believe that if I received four offers under a fair opportunity consideration (FAR 16.505( b )), and if I used language such as I used in the solicitation described in the Sapient protest, and if I felt a need to hold discussions with two of the four offerors, I could do so without first declaring a competitive range under the authority of FAR 15.306( c ) -- I believe would be fine as long as whatever discussions I held were fair and not misleading. I think the Sapient decision is a good decision to help contracting officers understand that FAR Subpart 15.3 procedures need not apply to fair opportunity considerations -- and clearly, comnpetitive range exists only in 15.3.
  13. Extract from Sapient Government Services, B-412163.2, Jan. 4, 2016 FAR subpart 16.5, however, expressly provides that the policies in FAR subpart 15.3 do not apply to the ordering process under multiple award, ID/IQ contracts. FAR § 16.505(b)(1)(ii). As stated above, the competition here was conducted using FAR subpart 16.5 procedures, and among firms holding contracts under the EAGLE II multiple award, ID/IQ contract vehicle. See RFP at 1. Additionally, and as noted above, the solicitation expressly advised that the policies of FAR subpart 15.3 would not apply to the competition. Id. at 21. Thus, while Sapient asserts that the agency failed to follow certain procedures under FAR subpart 15.3, both the FAR and the solicitation provide that those policies do not govern the task order competition here. FAR § 16.505(b)(1)(ii), RFP at 21; see also Bay Area Travel, Inc. et al., Nov. 5, 2008, B-400442 et al., 2009 CPD ¶ 65 at 9 n.13.
  14. Don, Isn't there an open FAR case that might someday give direction to contracting officers on this matter? In the meantime, shouldn't contracting officers follow the FAR and their own agency regulations, rather than SBA regulations?
  15. Thanks, Pepe! Absolutely right -- the fair opportunity consideration procedures in FAR 16.505(b) only contemplate post-award notices -- there is no requirement for any pre-award notice, period. If you decide to open discussions under a fair opportunity consideration, you are not obligated to follow all the FAR Subpart 15.3 procedures -- see the pentultimate sentence in FAR 16.505( b )( 1 )( ii ). The GAO tells us clearly that the FAR Subpart 15.3 procedures are not needed, only that the discussions should be fair and not misleading. Even forming a competitive range is a FAR Subpart 15.3 process, and is not required before holding discussions under fair opportunity consideration procedures. The GAO has repeatedly ruled that FAR Subpart 15.3 procedures don't apply -- only that the discussions must be fair and not misleading. [repition for emphasis] All that said, you may do a pre-award notice if you want to. However, if your solicitation said you would give notices, then you have to follow your solicitation.