Vern Edwards

I can think of many instances in which it makes no sense to evaluate price (as opposed to estimated cost) in complex acquisitions. What we really need is a change to the requirement in FAR 15.304(c)(1)(i) to evaluate price in "every" source selection. We need freedom to use qualifications-based contractor selection, with one-on-one negotiation of contract terms, including price, with the prospective selectee. There are many kinds of acquisitions in which head-to-head price competition is absurd. The idea of seeking price competition in every competitive negotiated acquisition through solicitation of competitively-priced proposals is an outdated 19th Century holdover. Even the new FAR 15.304(c)(1)(ii) exception presumes such price competition for task orders. It is a needlessly costly procedure.

I do not think it's intrinsically ambiguous. It seems ambiguous only in light of what we know from extrinsic texts, i.e., the FAR. Look, the statute expressly says: The statute refers to "delivery order contracts" six times. In order to insist that under FAR the exception applies only to task order contracts (services) and not to delivery order contracts (supplies) you have to ignore part of the plain language of the statute, all on the basis of only one word. Good luck with that kind of argument, but feel free to insist.

@joel hoffmanHere is what I said: I did not say exclusively to contracts for services, but that is probably what I meant at the time, because I was quoting from FAR 15.304, and in FAR services are generally distinguished from supplies. But here is the statute, PL 114-328, Sec. 825, Why assume that "same or similar services" in the statute refers to services as used in the FAR? (FAR does not define "services," only "service contracts.") Congress does not always adhere to FAR terminology (e.g., "property" instead of "supplies"). What if, reading Sec. 825 as a whole pursuant to the Whole-Text Canon, and applying the Harmonious-Reading Canon, a court were to interpret "same or similar services" as including the "service" of delivering property (supplies) on order? This kind of thing is a matter for lawyers to argue and judges to decide in accordance with the canons of interpretation. A CO reading FAR 15.304(c)(1)(ii) and trying to decide whether it could be applied to acquisitions for delivery-order contracts should make an interpretation and justify it. If the CO thinks the FAR is ambiguous, and so cannot decide, they should ask for a legal opinion as to its proper interpretation. The CO should not say that the FAR is ambiguous or conflicting and then assert that FAR 1.102(d) grants them the discretion to decide as they see fit. Make sense?

@joel hoffmanIf by "Yes, it does" you mean that it becomes a matter of agency discretion pursuant to FAR 1.102(d), then I disagree with you, as should be apparent from my last post. The statute is not ambiguous about its application to delivery order contracts.

I don't. When FAR appears to be conflicted, I think the resolution is a matter of statutory and regulatory interpretation, subject to the canons of interpretation. See Scalia and Garner, Reading Law: The Interpretation of Legal Texts (2012), § 27, Harmonious-Reading Canon; § 28, General/Specific Canon; and § 29, Irreconcilability Canon. If an agency thinks the FAR is ambiguous or conflicted and decides to proceed based on FAR 1.102(d), treating the matter as one of discretion, and if the agency's action is challenged in court, the court will interpret the regulation in accordance with the canons. It will not treat the matter as one of discretion granted by FAR 1.102(d) or 1.102-4(e). BTW, the Court of Appeals for the Federal Circuit cited Reading Law in an opinion it issued this week, a link to which was posted on the Wifcon home page. It has been cited in 1,222 Federal court cases overall and in 618 appellate court cases.

What do you mean when you say you are negotiating a "change in scope"? If this "change" adds new work to the contract, then the cost of preparing a proposal is bid and proposal cost. Read the definition in FAR 31.205-18. If you when you say "change in scope," you're actually negotiating the cost of a within-scope change, then the cost of preparing and negotiating a request for equitable adjustment is an allowable part of the cost of the change. So which is it? Are you negotiating an out of scope addition of work to the contract or an equitable adjustment following a within-scope change?

@RetreadfedIR&D and B&P?

@here_2_helpYep. Saw it. You were right.

@C CulhamDon't be hung up. Do what I do. When a reg doesn't makes sense to me—there's no official explanation and no case law interpretation—I decide what I want it to mean, what works in my circumstances. Then I construct an argument that supports my interpretation and "ride, boldly ride" seeking for El Dorado. Would be likely = I think so, because they didn't give me any reason to think otherwise. Easy, peasy.

@C CulhamSee FAR 16.504(a). An IDIQ contract must include a minimum and a maximum quantity, which may be expressed as a dollar amount. The amounts of the minimum and the maximum may be established in any reasonable way, and need not be the product of quantity times price. Now see PL 114-328, Sec. 825 and 10 USC 2305(a)(3)(D). The statute and FAR 15.304(c)(1)(ii) eliminate the need to establish price reasonableness at the time of contract award. Price reasonableness is determined for each task order. But in order to declare that an offeror is a "qualifying offeror," the CO must first determine that there is no reason to believe that it would be likely to offer other than fair and reasonable pricing. See the statute, 10 U.S.C. 2305(a)(3)(D), and the definition of "qualifying offeror" in FAR 2.101. Note that FAR FAR 15.304(c)(1)(ii)(A)(2) applies the new rule to contracts for services. It makes sense to eliminate advance pricing for IIDIQ contracts for services under which each task order will specify a different effort. This also eliminates the need to establish hourly labor rates for future pricing purposes. If only the law and the FAR has been written to require award to a reasonable number of offerors, instead of to "each and all qualifying offerors."

There it is.

@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

@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.

@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.)

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."

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.

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.

@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'.

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.

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

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.

From Open FAR Cases as of 08/23/2021: See FAR Case 2018-003—

@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)?

@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.

Who is "us"?