FrankJon

Thanks for the enlightening discussion, all. I’ve yet to check all the references but it seems like I now have a few workable options to put forth.

Formerfed: Apology accepted, but I would respectfully disagree with your characterization of how I consider the information shared on here. For instance the idea of a pre-competed BPA raised by Don and Carl is new and very interesting to me. I don’t merely disagree to be contrarian; rather I try to provide reasonable interpretations of often ambiguously-written text (in this case, 13.305(b)). If that shows inexperience then I have a hard time imagining what experience in this business looks like. If that annoys you then perhaps another hobby is in order. All due respect to ji, but s/he takes a famously flexible view of FAR language (to the envy of many) and is not infallible. I recall earlier in this discussion revealing scholarly information about multiple award requirements contracts that was not known to many and that supported my initial ideas. I also found a former post by one of the “Old Guard” at Wifcon supporting my view that DOD may lack the authority to issue calls above the SAT. So it seems at least possible that my individual findings and interpretations bring some value to this forum, despite the views of more seasoned professionals. I think one should and can do both things at Wifcon: critically question ideas while recognizing the enhanced value of the “Old Guard’s” input. I do hope that your counterparts haven’t also found my posts to be dismissive. It certainly is never my intent here.

Wow formerfed! That came out of left field! My interpretation of FAR 13.305(b) is apparently different than yours. It’s a shame you’re so irked by that. I started this topic in a much different place and thought it was over more than once until other approaches were brought up. I enjoyed the open flow of alternate ideas but I didn’t come here asking for them. And I remain optimistic about the possibility of employing the multiple award requirements approach, which I learned a lot about. This is an utterly absurd statement by the way. I wonder how much thought you gave it before typing it.

I think I’d be limited to the SAT unfortunately. I have no supplementary regulation beyond the DFARS. That doesn’t offer a higher threshold in this case.

Formerfed is pursuing a different line than you.

I assume you're talking about establishing a BPA, although it wasn't stated. I don't see how the following could work: Since orders are over the SAT I'll need to comply with the competitive procedures at 8.405(c)(2)(iii). Otherwise, yes, there appears to be some potential.

Right....thanks.

I didn't "start out" my research by posting to Wifcon. An IDIQ was of course one of the first approaches I looked at. I went down the requirements path because the customer seeks multiple awards and providing fair opportunity every day may not be feasible. The factors would probably not be difficult. Past performance and price. But the contract would require a dedicated KO to compete and cut orders (literally) every day, and often more than once per day. My office may not be able to support that. (Now, if we could accumulate orders as with a BPA and cut one order per month to pay for them, that seems feasible. I haven't looked into that.) Redundancy. And coverage of excess requirements that one contractor cannot perform alone under a given order. Yes, we think so, but our contract type may not be appropriate (we'll likely need FP-EPA or FP-PPR). And the same ordering difficulties would exist as mentioned above.

That's interesting, Don. Do you have a reference for that text? I'll certainly add this to my list of approaches to research. But initially I'm not seeing the advantage of this over the "multiple/split award" requirements approach in terms of application.

1. Over the SAT, under $6M. 2. Yes, the CIG has deemed it commercial.

I am aware. The administrative burden would be significant, and possibly overwhelming. Happy to have a side discussion to share more.

That’s a potential outcome being discussed, possibly with prospective price redetermination. As I said earlier, one of the fundamental constraints is that the unpredictability, volume, and relentless occurrence of requirements doesn’t lend itself to the fair opportunity process, at least not in a way that I’ve seen and would feel comfortable with.

Agree. This is a DOD service contract that could be worth $10B over 10 years. I won’t be able to “just do” anything. This is only the first thorny issue in a long process. I genuinely appreciate the many reasoned perspectives I received on this topic.

Formation of Government Contracts (4th Ed.) also provides a wealth of information on this topic. Most pertinent, on pg. 1347 it states: I have to think about how "prescribing the mode of competition to be used" would work in this context.

These terms from The Government Contracts Reference Book (4th Ed.) were touched upon in a previous Wifcon post, but for posterity I'll flesh them out a bit more here and add emphasis and edits as appropriate to the topic. The second definition is particularly interesting, though most of the references date back at least 20 years so I don't know whether they'll be persuasive. Regardless I still plan to look into them.

Correct. We would like to have between two and four contractors performing a relatively even amount of work. No set-aside. I just ran to the office to grab my reference books. I’ll post some long-form quotes on this topic when I get home.

Carl - My plan here, if I were to use the "alternating order" approach, would be to borrow the 52.216-21 Alt. III language, tailor it accordingly, and put it somewhere in the PWS. So it wouldn't be a clause per se, but it would be a defined ordering procedure that contract awardees agree to. I don't understand this. There is no risk of a bait-and-switch on the part of the Government because we would have a contract defining how orders are distributed. If the Government doesn't follow that, it's in breach. When we talk about the allowability of the "alternating order" requirements contracts, we're really talking about whether that's sufficient consideration, right? There's no mandate that I see in the FAR that would prevent me from doing this. To the contrary, there seem to be specific loopholes carved out, despite the intent stated at 16.503(a). So this seems to be a case of "the FAR doesn't say I can't." Now, I'm not extremely well versed in the concept of illusory promises, but logically if the FAR is providing a specific means of splitting orders under Alt. III, the drafters must think this arrangement passes muster. This looks like a clear illusory promise to Contractor 2. There is no promise that any work will go to them, even if requirements arise.

I don’t think so. BOAs wouldn’t address my efficiency issue, as I’d still need to follow competition and posting requirements. Based on my reading of 16.5 trying to award two or more single award IDIQs to share the work would be an even more tenuous argument than awarding two or more requirements contracts. I’m going to have a battle either way. I think there’s a clearer argument for setting up this arrangement with requirements contracts.

Thanks all.

Can you clarify, Don? It sounds like you're saying ji's "regional" approach is a split award, and to your mind acceptable. I agree. This seems clear based on case law. But how would you describe the situation described by 52.216-21 (Alternate III)? Surely that must be multiple award, right? I'm not trying to be pedantic here. I would love to find a way to apply the flexibility of that clause to the large businesses in my situation and I'm looking for any plausible explanation to account for the apparent glaring contradiction that the clause creates.

I would expect nothing less from Wifcon’s resident rebel, ji!

In my case, because the customer seeks redundancy to mitigate against performance risk should one contractor fail or default. And the reason for a requirements contract rather than an IDIQ is because we need to place many orders every day with little ability to know what the requirement will be next week. Competing orders (which exceed the SAT) would create delay and waste. I can think of no other way to marry their need for redundancy with their need for rapid-fire ordering as unpredictable requirements arise.

Jeez. What an absolute mess of a section!! Two comments in response: 1. The drafters still haven’t “dispelled the implication” because there is a clause (52.216-21 (Alternate III)) that expressly provides permission to award two requirements contracts for the SAME work. (I suppose their counterargument would be that small business interests outweigh the interest in having a single requirement contract. To what end, who knows?) 2. I would still feel comfortable awarding multiple requirements contracts under a scenario such as the one ji mentioned, which is supported by the holding in JRS Management, B-401524.2.

At the heart of this issue is the question: “what constitutes sufficient consideration?” If indeed a promise to give part of a job to one contractor and a part to another is sufficient, then it’s hard to imagine that there would be any limitation based on the quantity of contractors you’re giving the work to (unless you’ve divided it to such an extent that it’s deemed token consideration, I suppose). It seems that how the distribution of work is described and executed will be key to determining the sufficiency of consideration. (For example, will a work distribution plan actually result in the apportionment promised?)

Is it possible legally to award two requirements contracts for the same requirement, promising each contractor approximately 50% of the work? In JRS Management, B-401524.2, GAO held that: A requirements contract is formed when the seller has the exclusive right and legal obligation to fill all of the buyer's needs for the goods or services described in the contract. The promise by the buyer to purchase the subject matter of the contract exclusively from the seller is an essential element of a requirements contract. A solicitation will not result in the award of an enforceable requirements contract where a solicitation provision disclaims the government's obligation to order its requirements from the contractor and therefore renders illusory the consideration necessary to enforce the contract. “All of the buyer’s needs.” ”Exclusively from the seller.” This language seems unambiguous: to be legally enforceable, ALL of the work associated with a specific requirement must be promised to a single contractor. And yet FAR 52.216-21 (Alternate III) allows for the work to be split 50/50 between a large and small business: (c) The Government’s requirements for each item or subitem of supplies or services described in the Schedule are being purchased through one non-set-aside contract and one set-aside contract. Therefore, the Government shall order from each Contractor approximately one-half of the total supplies or services specified in the Schedule that are required to be purchased by the specified Government activity or activities. The Government may choose between the set-aside Contractor and the non-set-aside Contractor in placing any particular order. However, the Government shall allocate successive orders, in accordance with its delivery requirements, to maintain as close a ratio as is reasonably practicable between the total quantities ordered from the two Contractors. Since business size has nothing to do with the concept of illusory promises, I see no reason why the same construct stated in 52.216-21 (Alternate III) couldn’t apply to any two businesses if the proper verbiage is included in the contract. I found two other Wifcon discussions that address this topic that don’t come to any strong conclusions. But to me it seems pretty clear that a promise to equitably divide the same work between two requirements contracts must be enforceable.