Jump to content
The Wifcon Forums and Blogs
Don Mansfield

What's Your Interpretation?

Recommended Posts

How about that "or" in the middle of 15.503 (B) (1)? I think it is probably the source of most of the confusion. :)

There ought to be a clearer way to tell KO's to send the post award notice to those unsuccessful offerors in the competitive range as well as any other offeror who wasn't provided any required pre-award notice under 15.503 (a).

Share this post


Link to post
Share on other sites
Guest Vern Edwards

Joel:

Let's not beat this topic to death anymore than we already have. OK? Don posed his question as an academic exercise. As I pointed out to him, this is not an important issue. But if you and ji20874 want to keep at it, be my guests.

Share this post


Link to post
Share on other sites
Joel:

Let's not beat this topic to death anymore than we already have. OK? Don posed his question as an academic exercise. But if you and ji20874 want to keep at it, be my guests.

My point was that there is evidently a problem within the wording of 15.503 (B)(1) that seems to be the root cause of confusion within at least two WIFCON threads as well as Don's DAU class and even with Don. It has resulted in numerous hours of people's time to discuss in these WIFCON threads. Apparently at least one contracting official uses an incorrect notification procedure as a result. Does this represent a sampling of a bigger universe of misunderstanding? Or is it a dead horse issue, "solved" in WIFCON? I don't know.

I doubt it but if Amy Williams or anyone else on the FAR committees reads this thread (ha ha, RIGHT!), please include an editorial correction to 15.503 (B) (1) by removing the "or" and reword to indicate that a post award notice goes to those unsuccessful offerors in the competitive range and to any other offeror who wasn't given all required pre-award notices under 15.503 (a).

The use of "or" here is ambiguous. It can indicate mutually exclusive choices. If one was thinking along the lines of programming logic (from my 40 and 30 year old programming memory), similar logic is something like "IF 'A' OR 'B' is present, then DO 'C'." It is improper logic to say "DO 'A' to 'B' OR to 'C'.", if you want the action to apply to both B and C.

Pie in the sky request, I know. But it could be easily included in a FAR case for editorial corrections and clarifications.

Have a good day!

Share this post


Link to post
Share on other sites
Don,

Did you ask for interpretations? I thought you did, so I presumed interpretations of others would be welcome. And did you write that FAR 15.503(B)(1) should perhaps read "or had not been previously notified under paragraph (a)(1) of this section" instead of "or had not been previously notified under paragraph (a) of this section"? I thought you did.

Vern is right in saying that "paragraph (a)" in FAR 15.503(B)(1) means either one of the notices required by paragraph (a), either (a)(1) or (a)(2). He is also right in saying that what matters is what the regulation actually says -- it actually says "paragraph (a)" -- it does not say "paragraph (a)(1)". In this matter, I "act in strict accordance with what the regulation says."

I'm not saying there is anything wrong with sending out the (B) notice to firms who have already received an (a) notice -- more power to you, if you want to do so -- but Don asked for interpretations of whether the (B) notice is required for firms who have already received the (a)(2) notice, and I gave my interpretation based on the plain language of the FAR text. Vern is intent on proving me wrong, but that doesn't achieve anything. The best answer might be to re-write the sentence to read (a)(1) instead of (a).

Joel, I customarily send the (a)(2) notice to the successful offeror also. The FAR doesn't require it, but I choose to do it because it makes sense to me. I do get requests for debriefings based on the (a)(2) notices, and I honor them.

Hi, ji20874,

To clarify, I started out the thread reading FAR 15.503(B) just like you read it. I suspected that my interpretation was wrong, which is why I started the thread. I now see how I misread FAR 15.503(B). FAR 15.503(B) requires that a postaward notification be sent to each offeror in offeror whose proposal was in the competitive range but was not selected for award. Period. The "or had not been previously notified under paragraph (a) of this section" does not qualify "the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award." The "or had not been previously notified under paragraph (a) of this section" increases the population of offerors that will receive a postaward notification.

Share this post


Link to post
Share on other sites

Duplicate

Share this post


Link to post
Share on other sites
Hi, ji20874,

To clarify, I started out the thread reading FAR 15.503(B) just like you read it. I suspected that my interpretation was wrong, which is why I started the thread. I now see how I misread FAR 15.503(B). FAR 15.503(B) requires that a postaward notification be sent to each offeror in offeror whose proposal was in the competitive range but was not selected for award. Period. The "or had not been previously notified under paragraph (a) of this section" does not qualify "the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award." The "or had not been previously notified under paragraph (a) of this section" increases the population of offerors that will receive a postaward notification.

I think that Don confirmed that the "or" is misleading (denoting mutually exclusive choices) and appears to have been meant to express "and" or "and in addition", as discussed above.

Share this post


Link to post
Share on other sites

For the good of the order a read of 41 USC 253b© and 41 USC 23059b)(5) suggest strongly that the Postaward notice does go to all regardless of the communication with them prior to award. The FAR wording could be clarified.

Links to the respective USC's.

http://frwebgate.access.gpo.gov/cgi-bin/us...1&TYPE=TEXT

http://frwebgate.access.gpo.gov/cgi-bin/us...7&TYPE=TEXT

Share this post


Link to post
Share on other sites

Joel, Don,

So, to make sure I am understanding what is being said, the sentence in 15.503(B)(1) which reads--

Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award . . . or had not been previously notified under paragraph (a) of this section.

should be read as--

Within 3 days after date after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award
. . . or had not been previously notified under paragraph (a) of this section
.

The "or" phrase may be disregarded entirely because any offeror who is not in the competitive range will already have received the (a)(1) pre-award notice.

Or, the "or" phrase only has meaning in those cases where the contracting officer eliminated an offeror from the competitive range but failed to send the (a)(1) pre-award notice.

-----

I still hold that a notice under (a)(2) is a notice under paragraph (a), and assert that one can do an (a)(2) notice without doing an (a)(1) notice. I further agree that if the reading as above is intended, an editorial FAR change would be nice. Carl, you're right about the 41 USC 253b language and intent.

-----

Joel kindly called the original posting a test. But is trap a better word?

Share this post


Link to post
Share on other sites

I think the questions have been answered.

Look, it isn't that complicated.

Failure to notify a firm under 15.503 (a)(1) should rarely be encountered. A contracting team would have to be...let's say...less than competent... as well as extremely rude - not to tell somebody who submitted a proposal that they are not in the competitive range - which means there is going to be discussions with somebody else. Once in discussions, the KO has to ask everyone STILL in that group for final proposal revisions at some point. If they drop someone, they won't ask for a final proposal revision and they need to be competent enough to let that firm(s) know that they are out of it. If somebody is actually left in the dark, waiting for that request for final proposal revisions that never comes - provide them a post award notice. Its kind a like those Japanese soldiers found hiding in a cave 20 or more years after WWII. Somebody forgot to tell them the war was over.

Under a small business program, provide a pre-award notice to everybody under (a)(2), including the apparently successful firm and those offerors mentioned above that you dropped. If you don't do it or if you miss somebody, send them the post award notice.

Send every unsuccessful firm still in the competitive range till that final request for final proposal revisions a post award notice.

Oh yeah, send the winner a notice of award.

Share this post


Link to post
Share on other sites
Guest Vern Edwards

Joel:

The OR in paragraph (B)(1) is not misleading. Anyone with more than a rudimentary knowledge of the English language knows that OR can be inclusive (either or both) or exclusive (either, but not both), the proper interpretation being clear only by context.

Inclusive: I need two horses. You can bring me mares or geldings, but not stallions. In that use, the person is willing to accept two mares, two geldings, or a mare and a gelding.

Exclusive: We need to fasten these two boards together. Bring me a hammer or a screwdriver. In that use, the person wants either a hammer or a screwdriver, but not both.

Here is 15.503(a):

(a) Preaward notices?

(1) Preaward notices of exclusion from competitive range. The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered.

(2) Preaward notices for small business programs. (i) In addition to the notice in paragraph (a)(1) of this section, the contracting officer shall notify each offeror in writing prior to award, upon completion of negotiations, determinations of responsibility, and, if necessary, the process in 19.304(d)... .

And here is 15.503(B)(1):

(B) Postaward notices. (1) Within 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award (10 U.S.C. 2305(B)(5) and 41 U.S.C. 253b( c)) or had not been previously notified under paragraph (a) of this section.

Now suppose we have a small business set-aside in which we received ten offers. We eliminated three offerors from the competitive range and gave them the (a)(1) notification. When we were ready to make an award, we gave the six prospective losers the (a)(2) notification, but we did not notify the three whom we eliminated from the competitive range we should have. Then we made an award. We must notify the six losers who were in the competitive range. But how about the three whom we eliminated from the competitive range. I maintain that we must notify them also, because we did not fulfill all of our obligations under paragraph (a). If you agree, then why would you think that we must notify either the set of six losers who were in the competitive range or the set of three losers who were not in the competitive range, but not both sets?

Share this post


Link to post
Share on other sites

Vern, I didn't read 15.605 (B)(1) as being exclusive but mainly because of the overall context. The earlier WIFCON thread became confusing enough that I apparently got mixed up back then.

Others have been and/or still apparently are reading it differently. As evidence, one can read this thread and the earlier WIFCON threads I referred to.

At any rate, I wouldnt want mares or geldings - I'd want mares and geldings. But I'd prefer mares and stallions (I can sell the foals).

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×
×
  • Create New...