HoosierDaddy2002

Brooks Act selection procedures require the agency head to "conduct discussions with at least 3 firms to consider anticipated concepts and compare alternative methods for furnishing services" and that "the agency head shall select, in order of preference, at least 3 firms that the agency head considers most highly qualified to provide the services required." I work for the Corps of Engineers and follow EP 715-1-7 for Brooks Act procurements. Para 3-10(c) requires "At least three most highly qualified firms must be recommended if a single contract will be awarded." There is a footnote on this sentence that also reads "If the selection board cannot recommend at least three most highly qualified firms as required by the Brooks Act, then the scope of the contract should be revised to increase competition and again synopsize the contract." I have a procurement where we intend to issue one contract. Generally speaking, the scope for this project is climbing inspections and analysis of the navigation lock gates within our District. This requires very specialized skills and very specific training/qualifications. I only received one SF330 submission in response to the synopsis. The evaluation board determined the submission to be highly qualified - but obvioulsy - it is not possible to recommend 3 if you only receive one. I am not certain the team can revise the scope without degrading the project's technical and safety requirements - although I do have them working to see if revisions can be made. In the mean time, I am hoping any AE and/or USACE folks out there can share some insight. Suppose it is accurate that the government cannot revise the SOW without compromising project requirements. How do I overcome this requirement for 3 recommended firms? I am not seeing a waiver/D&F/J&A route within USACE's agency procedures. If there is no way to revise the scope and no apparent ability to 'waive' this requirement, does this mean the government has a requirement that it simply has no mechanism to fulfill given the circumstances? I'm hopeful that this would be an instance where broad discretion could be utilized to overcome -- where we can document the file to explain the project, confirm the scope represents the minimum requirements, and demonstrate how, despite only receiving one submission, that the firm is determined highly qualified and should be considered for negotiations. Was thinking approval from my Chief of Contracting with Counsel's review and concurrence would be appropriate. Thoughts?

I am going to piggy-back on this thread as it was the closest one I could find on the forum that speaks to the question I have. I work for the Corps of Engineers and am preparing to advertize/solicit/award a new IDIQ for survey and mapping. I have done many task orders off of existing AE IDIQs awarded via the Brooks Act However, this will be the first time I have been the Contract Specialist in awarding an new AE IDIQ pursuant to the Brooks Act. I have read and re-read both FAR 36.6 and EP 715-1-7. I have researched previous pre-solicitation notices issued by USACE on FBO and I still can't seem to answer my question: am I not required to provide a 15-day pre-solicitation notice IAW FAR 5.204 and 5.203(a) before I issue the synopsis? Reading the example provided in Appendix Q of EP 715-1-7, the heading states "Standard Synopis Format for A-E Services" and two lines down, under General Information, Document Type, it clearly says "Presolicitation Notice". When I see pre-solicitation notice, I am expecting the information to be the 15 day notification of the contract action, but it is not. The example provides the synopsis data, making me think that a separate pre-solicitation notice is not required. But FAR 5.204 clearly says "The contracting officer must synopsize a proposed contract action before issuing any resulting solicitation." I understand that for A-E, we don't issue a solicitation per se, rather we issue a synopsis requesting submission of SF330s. But is that not a form of a solicitation...which would require a pre-solicitation notice? When I search FBO, I see other Districts in USACE using various notice types (special notice, combined synopsis/solicitation, pre-solicitation) but all of them include the synopsis data. I have yet to find a pre-solicitation notice in advance of the synopsis. Can anyone clarify?

Yes, I believe I did. 6.302-1© (1)(ii)(A) states if only a portion of the acquisition is for a brand name product, the J&A is to cover only the portion of the acquisition which is brand name. My approval authority would be the KO since it is below $650K as per 6.304(a)(1) . Am I missing something? Should I be using 13.106-1( b ) instead? Sure appreciate the reply, ji20874.

Scenario: Construction contract with magnitude between $25m and $100m. Specifications include requirements for a brand name component with a value of $126K. I followed the justification and approval procedures at 6.302-1© and 6.304 to document the use of the brand name specifications. My KO said it was incorrect and I should be using the procedures at 13.106-1( since the brand name item component value is under the SAT. However, when I read 13.000 - "This part prescribes policies and procedures for the acquisition of supplies and services, including construction, research and development, and commerical items, the aggregate amount of which does not exceed the simplifed acquisition threshold" - I do not feel using 13.106-1© was proper since the aggregate amount of the acquisition is well above the SAT. Thoughts?

There are enough clauses and provisions in this particular requirement as it is - so I don't like the idea of attempting to further convolute it by restricting (if it is even possible) how many offers a firm may submit. Like Vern mentioned, an offer is an offer - we will evaluate all that offers that we get - even if there are a lot. It might stretch out the evaluation process for us - but it might also help us arrive at the best value. And Don also has a point - our evaluation criteria are inviting this kind of behavior. We actually started with many more technical sub-factors. Although I believe we have wittled them down to the most essential ones, there is obviously still room for this kind of strategy. I may have neglected to mention that this requirement is for construction, so 52.212-1 will not apply. And to clarify, I am not the PCO. I am the contract specialist ... at a conservative agency with a conservative KO ... so consulting counsel is something we do regularly, but that has served us well. I sure do appreciate all of the feedback.

My agency recently released a draft RFP for a large fixed priced construction contract utilizing a Best Value - Trade Off source selection process. The draft RFP also included the draft evaluation criteria - Technical Experience, Past Performance and Price. One of the (five) Technical Experience sub-factors will evaluate the experience of the prime's major subcontractors/suppliers/manufacturers. The draft also stated that, when combined, the Technical Experience sub-factors are of equal importance, and when combined - Technical Experience and Past Performance are significantly more important than Price. After issuing the draft RFP, we conducted a pre-solicitation conference to obtain industry feedback. It was well attended and based on further market research - we anticipate substantial competition once the official RFP is released. After the conference, an interested offeror contacted me and indicated that it intended to submit multiple offers so that it "will allow the review team to evaluate and select a preferred supplier over another supplier or manufacturer based on past experience as well as the best value proposal." The firm inquired if the multiple offer approach was acceptable to the government. I considered whether this was a question of alternate proposals - but the phrasing of the question makes me believe it is not as the offeror intends to present multiple offers that conform to stated requirements. Despite stating experience and past performance are significantly more important than price, I also think that this offeror believes it will boil down to a price-based decision - so it wants to submit multiple offers in hopes one of them will present the winning best value combination. It also makes me think that they interpret "major subcontractor/supplier experience" to mean my *agency's experience* with that subcontractor/supplier - which is not at all how that sub-factor is written. As I mentioned, we are anticipating healthy competition based on interest in the project so far - so the team is concerned that if we allow this approach, other offerors might follow suit which will further snarl and drag out the evaluation of initial proposals. My first instinct was not to definitively answer, but rather to refer them to the basic version of the provision FAR 52.215-1, which was listed in the draft RFP, and emphasize that they take into consideration presenting us with an offer (singular) with its best terms from both a cost and technical standpoint. I will be consulting counsel before formally responding, but am wondering if anyone had any thoughts? Can we disallow this multiple offer approach - and if so, is it really a good idea to do so? Might it be to our advantage to allow that approach? Or is my interpretation flawed - and this is actually an alternate proposal type situation? Any feedback will be appreciated.