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Vern Edwards

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  1. @ji20874I went through the thread and found that you mentioned only two protests (unless I missed something again😞 ), Patriot Defense Group, LLC, B-418720.3, August 5, 2020, and Strategic Services and Solutions, JV, B-215716.38, December 4, 2019. Both were about acquisitions conducted before FAC 2020-07 took effect. Neither involved a protest based on violation of FAR 15.304(c)(1)(ii) or PL 114-328, Sec. 825. I have found and downloaded the RFPs for both and scanned them. Both state that they were being conducted pursuant to P.L. 114-328, Sec. 825. (I wonder how many offerors looked that up to see what it said.) The Patriot case RFP mentions "qualifying offerors," but Strategic does not. The Patriot case RFP makes no mention of a limit on the number of awards. While the GAO says that the Strategic case RFP "contemplated the award of 40 multiple-award, indefinite-deliver indefinite-quantity (IDIQ) contracts," what the RFP actually said was this: That statement is not inconsistent with the statute. Neither RFP included 52.215-1 with either of its alternates. My conclusion is that neither of those acquisitions shed any light on the question of whether a CO could properly eliminate a "qualifying offeror" by excluding it from the competition range. I am still looking at the other decisions. ("Still collating," said Ash.) However, as I believe you have suggested, both decisions may shed some light on the agencies' evaluation methods and on certificate of competency issues. I have focused on Don's notion of avoiding awards to "each and all" via competitive range decisions. I have looked at those other matters only in passing. I still believe that you cannot eliminate a "qualifying offeror" by means of a competitive range determination. I also believe that a CO cannot "cap" the number of awards. Vern
  2. @Don MansfieldYeah, well, the Dalai Lama is in exile. @ji20874I have found 20 GAO protest decisions of acquisitions conducted pursuant to PL 114-328, Sec. 825, including the ones that you mentioned. All of the decisions concerned solicitations that were issued before FAC 2020-07, which changed FAR 15.304 and which took effect on August 3, 2020. Eighteen of the 20 decisions were published before FAC 2020-07 took effect. A preliminary Westlaw search indicates that none of the decisions mention "qualifying offeror" in the digest and none mention competitive range determinations or the conduct of discussions. Seventeen expressly state that award was made without discussions. I am still reading the decisions, but so far I see nothing indicating that any of them will shed any light on the permissibility of eliminating "qualifying offerors" by means of exclusion from the competitive range, which, I think, is what we are talking about.
  3. @ji20874There's not enough information in that post to enable us to understand its implication for this thread. Are you saying the Air Force conducted a 15.304(c)(1(ii) procurement and limited the number of qualifying offerors to 44? If so, did they announce their intention in the RFP? If so, did they get a protest? Was the procurement described in an earlier post. (This thread has gotten pretty long, so I might have missed it.)
  4. BTW, according to Garner's Dictionary of Legal Usage, 3d ed., "each" means "every one of the several or many things (or persons) comprised in a group." He includes "each and all" in his long list of "doublets" on pages 295-296, which are "amplification by synonym." He says that one of the explanations for doublets is "fondness that lawyers have for this stylistic quirk."
  5. I have reviewed both the proposed rule, 83 FR 48271, Sept. 24, 2018, and the final rule that changed FAR 15.304 to implement the statute, 85 FR 40068, July 2, 2020, FAC 2020-07. In both cases the FAR councils quote the statute, which says "each qualifying offeror" and then state the text of the proposed and final rules as saying, "each and all qualifying offerors." I say the addition of "all" was deliberate. The final rule responses to comments on the proposed rule make no mention of comments about the "all." I think the intention is clear. All means all. Based on what I have read, I do not believe that a CO may use FAR 15.306(c) to make a competitive range determination that would preclude any "qualifying offeror" from receiving a contract. I actually hope I'm wrong, because I think "each and all" is bad law and policy. But I don't think I am wrong. I think they meant it. All means all. As for timely protests, see 4 CFR 21.2(a)(1): Now see 4 CFR 21.2(c): This is not a guiding principles matter. See FAR 1.102(d): Emphasis added. See also FAR 1.102-4(e): Emphasis added. There is no "absence of direction." If there is any question about the use of competitive range decisions to eliminate qualifying offerors, it is a matter for proper statutory and regulatory interpretation, not acquisition team discretion. I blame the FAR councils for not completely integrating and reconciling the statute with FAR Subpart 15.3, and addressing the competitive range issue, which leaves the question open to manipulation by wily finaglers. Milo Minderbender lives.
  6. Actually, the statute, Pub. L. 114-328, Sec. 825, says, "each qualifying offeror." It does not say "all." The FAR councils added the "all" to FAR 15.304(c)(1)(ii). Not that that makes a difference. Sec. 825 originated in the Senate.
  7. @here_2_helpHere's the opening post: That doesn't say that the government ordered the wrong thing. That could mean that the contractor shipped the wrong thing. Just sayin'.
  8. You've already surpassed it, even if they are a small business. The contract doesn't require you to help them, does it? If not, then a reasonable amount of advice and assistance is one thing, but they are ulitmately responsible for looking out for themselves. Advise them to hire an accountant or consultant to help them.
  9. Today, Bob posted a link to a new decision by the Court of Appeals for the Federal Circuit: Dyncorp International, LLC v. U.S. et al., 2020-2041, Aug. 25, 2021, before Judges Prost, Schall, and O'Malley, written by Judge Prost. The case involves interpretation of the requirements of FAR 15.404-1, Proposal analysis techniques. The decision is a treatise on FAR interpretation and application. As such, it is must-reading for all contracting officers and prospective contracting officers. Background is in pages 1 -10; discussion of the issues in in pages 10 -26. Great professional reading. http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-2041.OPINION.8-25-2021_1824519.pdf
  10. I think that in a 15.304(c)(1)(ii) acquisition there is no competition and no competitive range. I thin you have to award to "each and all." Good discussion. Let's keep our eyes open for the first protest.
  11. @Don MansfieldYes, as a matter of law, I agree, despite the fact that there really wouldn't be any competition among offerors. So, what, if any, are the possible implications with respect to FAR 15.306(c), especially 15.306(c)(2)?
  12. @anparkerIf your question is about how to work this in conjunction with ECAT, have you contacted the ECAT Help Desk, via email: dscpecathelp@dla.mil or phone: 800-290-8201 (7 a.m. to 5 p.m.), or the Customer Interaction Center, 1-877-352-2255, https://www.dla.mil/CustomerSupport/ ? If your question is merely about how to make the purchase without competition, a real contracting officer should know the answer. If not, the CO should read FAR Part 13. If I were buying the stretchers, I would write a memo to file explaining the situation and then just make the buy. But maybe there is more to this than you have communicated. All: anparker appears to be associated in some way with Defense Logistics Agency, Troop Support Medical. https://www.dla.mil/TroopSupport/Medical/ "ECAT" is their electronic catalog system. https://www.dla.mil/TroopSupport/Medical/ECAT/ If you know anything about the ECAT system and know how to help anparker, please do. @anparkerYou're new here, and your post seems urgent, so I understand. But if you ever post again, try communicating clearly. Do you think everybody knows what MDG and ECAT mean, how ECAT works, and who "us" is? Is this an ECAT issue or just a competition issue? Were you seeking help only from DLA personnel who understand the ECAT system and know DLA's rules? If so, you should have said so up front. If this is not an ECAT issue, just a competition issue, or maybe a funding issue, then why even mention ECAT? It was confusing.
  13. @Fara FasatYou must show them that a plan is not required by leading them through the FAR, step-by-step. It's no use citing what you've read here at Wifcon.
  14. @General.ZhukovGeorgy, I think you're spot-on. (Have you heard about the new book by Dimbleby, Operation Barbarossa: The History of a Cataclysm (June 2021)? Also, I just watched part of a 1985 Russian film by Elem Klimov about Russian partisans during the Nazi invasion entitled, "Come and See." 97%/95% at Rotten Tomatoes: https://www.rottentomatoes.com/m/1036052-come_and_see . Not available for streaming yet. Realistic. Grim. Very grim.)
  15. Yes, I agree, such acquisitions are legally categorized as "competitive." Legally, an acquisition is categorized as "competitive" when the government solicits proposals and gives all responsible companies a chance to submit a proposal, which is considered "competing." This legality can give rise to a paradox—a "competitive" acquisition in which there is no competition in the ordinary sense of that word. That was the paradox that underlay Shay Assad's November 24, 2010 and April 27, 2011 memos, "Improving Competition in Defense Procurements," https://www.acq.osd.mil/dpap/policy/policyvault/USA002080-11-DPAP.pdf, in which he told COs not to use the adequate price competition standard when they receive only one offer. Sometimes, what is legally true is a "legal fiction," which Black's Law Dictionary, 11th ed., defines as: "a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object." Offerors in a FAR 15.304(c)(1)(ii) acquisition do not compete against each other. Thus, I have argued that Don's proposed scheme for getting around the requirement to make an award to "each and all qualifying offerors" by limiting the competitive range to three offerors for purposes of "competitive efficiency" fails a logical (and maybe a legal) sniff test, and thus might not pass muster in a protest to the GAO and the COFC. If offerors are not competing, and if awards are to be made "to each and all" qualifying offerors, why would a CO establish a competitive range other than for the purpose of conducting discussions to allow a non-qualifying offeror become qualified? In what sense are some of the offerors "most highly" rated? What does "most highly" rated even mean in such an acquisition? Would non-qualifying offerors be among the most highly rated? In response to Joel's inquiry and my argument, Don and ji20874 respond with a legality. Fair enough, but would it pass muster in a protest? I don't know. It strikes me as a transparent work-around, a kind of legal fiction/ It's the kind of work-around that if used too often eventually results in more rules. (Exceptions to rules seem to prompt work-arounds to expand their application, which often result in more rules.) I think Don has showed us another instance in which the FAR does not always make sense. In this case, FAR 15.304(c)(1)(ii)(A)(3) and FAR 15.306(c)(2) do not seem compatible. Should FAR address that issue, or should the councils wait for the protests to address it, if ever? The FAR councils implemented a statute simply by inserting it into the FAR without thinking things through, which is their job. It's already started. Here is the question which started this part of this thread:
  16. It would be if the FAR councils had added it to the list in FAR 6.102. But they didn't, which I think was a case of oversight. But forget about that. Do you agree that the procedure described in FAR 15.304(c)(1)(ii) does not involve "competition" as defined pursuant to FAR 1.108(a)? (See the definitions of "compete" and "competition" in The American Heritage Dictionary, 5th ed.) If you do not agree, why not? If you do agree, then do you understand my point about the illogic of establishing a "competitive range" in an acquisition that does not involve competition? And if "full and open competition" is about allowing all responsible offerors a chance to "compete," how does a FAR 15.304(c)(1)(ii) acquisition do that?
  17. The FSS solicitation process is considered a "competitive procedure," but it does not provide for full and open competition as defined in FAR. See: "The Competition in Contracting Act" at https://interact.gsa.gov/blog/competition-contracting-act-cica
  18. @Don MansfieldBah! Get your head out of the FAR, which is a sinkhole! If offerors are not contending against one another for a prize that they cannot all win, then what kind of "competition" is there? And what kind of "competitive range" would you have? And why limit the competitive range for competitive efficiency if there is no real competition? You get it or you don't.
  19. @Don MansfieldThe FSS program is expressly authorized by law as an "other competitive procedure," even though offerors don't really compete with one another. See FAR 6.102(d) and 41 USC 152(3). Same for broad agency announcements. Those procedures were grandfathered in when CICA was passed.
  20. @joel hoffman@Don Mansfield It doesn't. See FAR 15.306(c)(2): Now see FAR 15.304(c)(1)(ii): Now think about it. If a CO chooses to invoke FAR 15.304(c)(1)(ii), then there is no competition. The only purpose of the "source selection" would be to invite companies to quality for an award, which, according to FAR, must be made to "each and all" qualifying offerors. Anyone using that method is not seeking efficient competition. In fact, they are not seeking competition of any kind. To invoke FAR 15.306(c)(2) in such an acquisition makes no sense to me. Indeed, one can argue that the very idea of a "competitive range" in a 15.304(c)(1)(ii) "competition" is paradoxical. What Don has shown is that when the FAR councils added 15.304(c)(1)(ii) to the FAR they either did not see or or chose not to address the apparent disconnect between that new rule and FAR 15.306(c)(2). I just checked both the proposed rule, 83 FR 48271, Sept. 24, 2018, and the final rule, 85 FR 40068, July 2, 2020, and found no mention of the fact that a 15.304(c)(1)(ii) acquisition is not competitive. Not only did the FAR councils miss the disconnect between FAR 15.304(c)(1)(ii) and 15.306(c)(2), but they apparently missed the disconnect between 15.304(c)(1)(ii) and FAR 6.101. A FAR 15.304(c)(1)(ii) acquisition cannot result in full and open or any other degree of competition unless the agency announces its intention to limit the number of awards. There is no mention of "each and all" in the FAR 2.101 definition of full and open competition, and I don't think there is any provision for it in FAR Part 6, yet it is clearly permitted. So if I wanted to apply 15.304(c)(1)(ii) and limit the number of awards I would say so in the RFP and say that a limit is necessary in order to obtain full and open competition as required by CICA and FAR 6.101. Arguably, you would be integrating and reconciling the requirement to award "to each and all" and the requirement to seek full and open competition. Prospective offerors would have to protest before the solicitation closing date or risk having a protest filed afterward ruled untimely. (It would be an interesting protest.) Just brainstorming. Do I misunderstand FAR 15.304(c)(1(ii)? Have I missed something?
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