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Guest Vern Edwards

FAR 52.212-1 clearly does not apply to requests for quotations and should not be used in them. Read the damned thing. I believe in following FAR, but I do not believe in being stupid about it.

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I for one am not trying to be stupid about interpreting and applying the FAR. Common sense is very important. Maybe everyone who includes the provision at 52.212-1 in an RFQ is stupid... or ignorant.

Maybe everyone is just being lazy.

If you read the provision at 52.212-1, it is clearly geared toward the solicitation of offers, and in fact pulls many of its sections from the requirements of FAR Part 15 (i.e. debriefings, late submissions, discussions, etc). When I read the provision, common sense tells me this provision is not wholly appropriate for a RFQ using the combined procedures of Part 12 with Part 13/13.5. This is clearly a problem with the way the provisions are written and/or prescribed in the FAR.

But what about the FAR? It states clearly in the prescription at FAR 12.301(b ) to include 52.212-1 and 52.212-3 in solicitations for the acquisition of commercial items (the provision 52.212-2 is not required). The FAR also states in the instructions for synopsis and solicitation at 12.603(c )(2) that the CO shall include the following statements:

?(ii) The solicitation number and a statement that the solicitation is issued as an invitation to bid (IFB), request for quotation (RFQ) or request for proposal (RFP).?

and

?(viii) A statement that the provision at 52.212-1, Instructions to Offerors?Commercial, applies to this acquisition and a statement regarding any addenda to the provision.?

And the FAR definition of ?Deviation? at 1.401 includes as an action that requires a deviation: ?(b ) The omission of any solicitation provision or contract clause when its prescription requires its use.?

Even looking at it from a common sense approach, the provisions at 52.212-1 and 52.212-3 do contain important requirements and information that need to go in a solicitation, RFP or RFQ. An RFQ needs to specify the NAICS and size standard; quoters need to know they must be CCR registered and have a DUNS and TIN in order to receive an award; and quoters need to submit representations and certifications in order to receive an award. Yes, all this information (as well as all other ?instructions to quoters? information) might more properly be included as separate terms and conditions of the RFQ. But what's happening instead? A CO who knows that the provisions do contain some required information (like reps and certs and CCR/DUNS/TIN), AND sees that the provisions at 52.212-1 and -3 are prescribed by the FAR, AND doesn?t want to go against the FAR is likely to take the easy road and just include the provisions as they are.

Is it also possible that there isn?t a healthy understanding of the difference between ?quote? and ?offer?? Yes. Is it also possible that COs are using RFQs when their requirements have complexities that would make an RFP more appropriate? Yes. Is it also possible that many COs haven?t really read and don?t really know what is even stated in these commercial item provisions? Yes. Is it also possible that many RFQs under SAPs are being put together buy less experienced Contract Specialists and the CO is simply signing off on the awards? Yes.

Lazy, stupid, ignorant? take your pick.

All that said, I think it?s just as lazy to simply exclude a provision while knowing that it is prescribed in the FAR. I don?t think a memo to file cuts it. Common sense is important, but so are the regs. The FAR requires a deviation if you exclude a clause or provision that is prescribed. Omitting 52.212-1 from RFQs and replacing it with more appropriate ?home-grown? language may make more sense, but I don?t see how you do that without getting a deviation first. Especially since a CO may tailor 52.212-1 as needed.

I?d also be surprised if someone in the FAR Councils was not aware of this issue (well, maybe not that surprised). If these provisions and prescriptions haven?t been clarified to date, what does that say about the authors of the FAR? Lazy, stupid, ignorant? take your pick.

The Government clearly needs a set of appropriate provisions for commercial item RFQs using SAPs (including the Test Procedures of 13.5 up to $5.5). It would be nice if the FAR included such provisions. In lieu of that, perhaps a well tailored version of 52.212-1 should be created and circulated.

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Guest Vern Edwards

vbus:

I'm sorry to say it, but I think you're being a little thick about this.

If you read the provision at 52.212-1, it is clearly geared toward the solicitation of offers... .

K-Law Atty and I already said that. I'll go further: There are 12 main paragraphs in the provision, (a) through (l). Of those, only (a), (d), (i), (j), and (k) have any possible practical utility in an RFQ under FAR Part 13, and all of them refer to "offers" and would have to be tailored.

But what about the FAR? It states clearly in the prescription at FAR 12.301(b ) to include 52.212-1 and 52.212-3 in solicitations for the acquisition of commercial items (the provision 52.212-2 is not required).

FAR 12.301(B)(1) says that 52.212-1 is "to be used when soliciting offers for commercial items... ." Offers, vbus, not quotes. You cannot read 12.603?(2) to require the use of 52.212-1 when soliciting quotes, since the provision includes rules that do not apply to quotes, such as the late bid rule, which speaks of offers and modifications, revisions, and withdrawals of offers, not quotes. The GAO has said that the FAR late bid rules do not apply to quotes, unless the CO makes a specific decision to apply one of them, and why would a CO do that?

Even looking at it from a common sense approach, the provisions at 52.212-1 and 52.212-3 do contain important requirements and information that need to go in a solicitation, RFP or RFQ. An RFQ needs to specify the NAICS and size standard; quoters need to know they must be CCR registered and have a DUNS and TIN in order to receive an award; and quoters need to submit representations and certifications in order to receive an award. Yes, all this information (as well as all other “instructions to quoters” information) might more properly be included as separate terms and conditions of the RFQ. But what's happening instead? A CO who knows that the provisions do contain some required information (like reps and certs and CCR/DUNS/TIN), AND sees that the provisions at 52.212-1 and -3 are prescribed by the FAR, AND doesn’t want to go against the FAR is likely to take the easy road and just include the provisions as they are.

What has any of that got to do with whether or not a CO is required to use 52.212-1 in an RFQ? I'll tell you: absolutely nothing. And, as a practical matter, if you are going to use 52.212-1 in an RFQ you will have to tailor it so extensively that you might as well write a provision of your own.

Is it also possible that there isn’t a healthy understanding of the difference between “quote” and “offer”? Yes. Is it also possible that COs are using RFQs when their requirements have complexities that would make an RFP more appropriate? Yes. Is it also possible that many COs haven’t really read and don’t really know what is even stated in these commercial item provisions? Yes. Is it also possible that many RFQs under SAPs are being put together buy less experienced Contract Specialists and the CO is simply signing off on the awards? Yes.

Again, what does that have to do with whether a CO is required to use 52.212-1 in an RFQ? Again--nothing. And what does requirement complexity have to do with whether an RFQ or an RFP is most appropriate?

All that said, I think it’s just as lazy to simply exclude a provision while knowing that it is prescribed in the FAR.

It is not prescribed by FAR for use in RFQs. FAR 12.301, of which you are so fond, clearly states that 52.212-1 is to be used to solicit offers. OFFERS!

I’d also be surprised if someone in the FAR Councils was not aware of this issue (well, maybe not that surprised). If these provisions and prescriptions haven’t been clarified to date, what does that say about the authors of the FAR? Lazy, stupid, ignorant… take your pick.

Yet again, what does any of that have to do with whether 52.212-1 must be used in an RFQ?

The Government clearly needs a set of appropriate provisions for commercial item RFQs using SAPs (including the Test Procedures of 13.5 up to $5.5). It would be nice if the FAR included such provisions. In lieu of that, perhaps a well tailored version of 52.212-1 should be created and circulated.

Perhaps, but, again, what does that have to do with whether FAR 52.212-1 must be used in an RFQ?

I know something about reading the FAR. Just a little. And I say you are off base in suggesting (or saying, I can't tell where you stand anymore) that FAR 52.212-1 must be used in an RFQ under FAR Parts 12 and 13. In my opinion, any CO who uses it in an RFQ is incompetent. Any CO who bothers tailoring it for use in an RFQ is wasting time.

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Guest Vern Edwards
Just to make this issue more confusing, I checked the clause matrix in part 52. The provision is listed with "A" for "as applicable" under Simplified Acquisition procedures!

How does that make the issue more confusing? Of course it's A for Applicable. You might be soliciting offers instead of quotes. If you're soliciting quotes it's not applicable.

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Guest Vern Edwards
Do you believe 52.212-3 is required for commercial item RFQs?

No. You don't need certs and reps in an RFQ. There is no prescribed procedure or format for requesting quotations. An RFQ is a solicitation of information. Based on the information a CO will decide either to issue a purchase order or an RFP or do something else. The CO will need certs prior to making an award, but he or she can obtain them at any time prior to award. You don't have to use SF1449, either.

Do you believe 52.212-1 is required for RFPs when using Simplified Acquisition Procedures?

Not without extensive tailoring. For example, paragraphs (f), (g), and (l) are not ordinarily applicable in simplified acquisitions.

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Vern,

Do you believe 52.212-3 is required for commercial item RFQs?

Do you believe 52.212-1 is required for RFPs when using Simplified Acquisition Procedures?

As I read FAR 12.302, "Tailor of provisions and clauses for the acquisition of commercial items," the ONLY provisions that are required to be included, unchanged, are those specifically called out from 52.212-4: Assignments, Disputes, Payments, Invoice, and compaliance with other laws unique to gov't contracts. 12.302(a) allows tailoring to adapt to each acquisition. In a situation where all we really need is to include things like the NAICS Code, DUNS #, CCR, etc., we find it easier to simply include JUST the language we want rather than starting with 52.212-1 and trying to modify it to fit. I guess in a sense that is including a tailored version of 52.212-1; we just don't call it that.

I also go back to 12.301, which requires us, to the maximum extent practicable, to only include clauses that are required to implement the law or EOs or are consistent with commercial practice.

While I strongly believe that very few acquisition professionals are stupid, lazy or ignorant, I do think that we too often see a reliance on matrices, automated contract writing systems, etc. For example, I continue to see the clause providing for a price evaluation adjustment for Small Disadvantaged Business included in DoD solicitations, even though DoD has suspended that provision for years and issues a new memo to that effect every spring.

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Guest Vern Edwards

I might add that I think FAR 12.301 uses the word "solicitation" in the sense of only RFP, not RFQ. Why do I say that? Because when you make an integrated reading of FAR Part 12.301 and 52.212-1, it is clear that they address the solicitation of offers, not quotes.

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Vern,

Sorry for being thick, but bear with me. You?re battling against a lot of training, internal policy, and examples of what is required. And not just with me.

FAR 12.301(b )(1) says that 52.212-1 is "to be used when soliciting offers for commercial items... ." Offers, vbus, not quotes.

I can accept this as an extension of the prescription, especially since the reference in the provision text reads: "As prescribed in 12.301(b )(1), insert the following provision." Though why was the same language was not used at 12.301(b )(2) to extend the prescription of 52.212-3? You said that 52.212-3 was also not required for RFQs but that a CO would need to obtain reps and certs before making an award. Do you believe it was the intent that every CO would draft their own language in RFQs stating that reps and certs would need to be completed by the quoter before receiving an award?

You cannot read 12.603(c )(2) to require the use of 52.212-1 when soliciting quotes...

I had included the language at 12.603(c )(2) in the discussion not as a requirement to include the provision, but as evidence that the intent was that COs would include the provision in RFQs as well. 12.603(c )(2)(viii) states that a contracting officer shall include a statement that 52.212-1 applies to the acquisition, regardless of whether the CO stated the solicitation type was RFP or RFQ.

...the provision includes rules that do not apply to quotes, such as the late bid rule, which speaks of offers and modifications, revisions, and withdrawals of offers, not quotes.

I agree. Using the provision for RFQs would require significant tailoring of those sections.

While I'm at it, please note that FAR 12.301(b ) does not say "shall" or "must."

Do you believe that to be deliberate? Does the lack of ?shall? or ?must? imply that it it should be read to mean ?should? or ?may??

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Guest Vern Edwards
Do you believe it was the intent that every CO would draft their own language in RFQs stating that reps and certs would need to be completed by the quoter before receiving an award?
Do you believe that to be deliberate? Does the lack of “shall” or “must” imply that it it should be read to mean “should” or “may”?

vbus: I have no beliefs in those regards. I don't know about the intent. The person/people who wrote that language may not have had any specific intent. They simply may not have thought it through or thought about it at all. Based on the use of the word "offer" in 12.301(B), I would say that they probably didn't think about RFQs at all.

RFQs are in a kind of twilight zone. They are used mainly in simplified acquisition, where there really are very few rules. Although FAR Part 2 includes RFQs among "solicitations," neither FAR Part 14 or 15 make any mention of them, and FAR Part 12 mentions them only once, and in passing, in 12.603. Unlike RFPs, see FAR 15.203 and 15.204, FAR does not prescribe a standard format or boilerplate content for RFQs. FAR Part 13 mentions RFQs twice, in FAR 13.101(B)(1), which tells contracting officers to incorporate provisions and clauses by reference in contracts and "in awards under requests for quotations," but not in RFQs themselves, and in FAR 13.307, which says that either the SF1449 or SF18 "may" be used.

In short, except for what may be in agency FAR supplements, there are not many rules for the preparation of RFQs or for RFQ procedures. The content of FAR is sometimes internally incongruous. When that is the case, we have to make as much sense of it as we can. It makes no sense to use FAR 52.212-1 in RFQs.

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vbus: I have no beliefs in those regards. I don't know about the intent. The person/people who wrote that language may not have had any specific intent. They simply may not have thought it through or thought about it at all. Based on the use of the word "offer" in 12.301(B), I would say that they probably didn't think about RFQs at all.

RFQs are in a kind of twilight zone. They are used mainly in simplified acquisition, where there really are very few rules. Although FAR Part 2 includes RFQs among "solicitations," neither FAR Part 14 or 15 make any mention of them, and FAR Part 12 mentions them only once, and in passing, in 12.603. Unlike RFPs, see FAR 15.203 and 15.204, FAR does not prescribe a standard format or boilerplate content for RFQs. FAR Part 13 mentions RFQs twice, in FAR 13.101(B)(1), which tells contracting officers to incorporate provisions and clauses by reference in contracts and "in awards under requests for quotations," but not in RFQs themselves, and in FAR 13.307, which says that either the SF1449 or SF18 "may" be used.

In short, except for what may be in agency FAR supplements, there are not many rules for the preparation of RFQs or for RFQ procedures. The content of FAR is sometimes internally incongruous. When that is the case, we have to make as much sense of it as we can. It makes no sense to use FAR 52.212-1 in RFQs.

VERN-

I agree with your first and third paragraphs, but in your second paragraph, you opine incorrectly on FAR 13.101(B). First, I think you have a typo in your citation, referring to 13.101(B)(1). I think you mean 13.101(B)(2). Secondly, 13.101(B)(2) doesn't tell contracting officers to incorporate provisions and clauses by reference in contracts, it tells contracting officers to incorporate provisions and clauses by reference in solicitations. As you note, FAR Part 2 includes RFQs among "solicitations." FAR 13.101(B) does say "should," though, not "shall."

Nevertheless, it makes no sense to use 52.212-1 in RFQs.

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.

I scan through a couple of RFQ's from the Army's asfi site a week, on average.

Usually, the only indication that something is an RFQ, and not an RFP, is the check mark in Block 14 of the SF 1449. The RFQ's that I see usually have all the Part 12 clauses, with no tailoring, including an explanation of the evaluation scheme. They mostly require technical proposals and certifications.

When I worked in a federal contracting office last, management explained the difference between an RFQ and an RFP as being how much the Government had to tell any prospective or actual quoters or offerors about the selection process.

Consequently, almost everything under the "Test" SAT for Part 13.5, $5.5 Million, was an RFQ, but had all the clauses and provisions of an RFP. If a quoter simply quoted a price, they would be nonresponsive.

It seems to me that someone who quotes on an RFQ that includes the untailored Part 12 clauses is entitled to a debriefing, and protection against post hoc extensions (read: compliance with the "late-is-late" rule) if the RFQ says they are.

.

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Can anybody find an RFQ for a commercial item issued on a SF 1449 that does not incorporate FAR 52.212-1 (either by reference or in full text)?

Note that box #27a on the SF1449 does not let you include the clause 52.212-4 without also including the provision 52.212-1. Designed that way?

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Guest Vern Edwards

Navy,

I did say 13.101(B)(1) when I meant (B)(2). Thanks. My bad.

And I typed "contracts" when I should have typed "solicitations." Thanks again. To me, (B)(2) appears to make a distinction between solicitations and requests for quotations because of the wording "in solicitations and in awards under under requests for quotations." Why say in solicitations and in awards under RFQs? Why not say in solicitations and in awards? I don't argue that RFQs are not solicitations, but I do not change my opinion in light of my mistakes. Think of my second paragraph as dicta.

Readers might be interested to learn that the definition of solicitation in FAR 2.101 was added to FAR in 2002 by FAC 2001-06 as one of the changes made to clarify 'definitions that are used in the FAR for sealed bid and negotiated procurements." See 67 FR 13954, March 20, 2002. Prior to that, there was no generally applicable definition of solicitation in FAR. The language of FAR 13.101(B)(2) predates the definition of solicitation.

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Guest Vern Edwards

Criminy, I'm losing it! Thanks, Navy. And thanks, Don, for telling me it was Navy. I went back and edited the post to give credit to Navy.

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Guest Vern Edwards
Note that box #27a on the SF1449 does not let you include the clause 52.212-4 without also including the provision 52.212-1. Designed that way?

I think we can presume so.

In light of all the interesting things to talk about in acquisition--see, for example, OMB's new memoranda about acquisition--why are we still talking about whether or not to use a particular solicitation provision in an RFQ when everyone seems to have conceded that the provision is not suitable for RFQs?

We're into the third page of this discussion. Aren't we smarter and more interesting than this?

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Navy,

I did say 13.101(B)(1) when I meant (B)(2). Thanks. My bad.

And I typed "contracts" when I should have typed "solicitations." Thanks again. To me, (B)(2) appears to make a distinction between solicitations and requests for quotations because of the wording "in solicitations and in awards under under requests for quotations." Why say in solicitations and in awards under RFQs? Why not say in solicitations and in awards? I don't argue that RFQs are not solicitations, but I do not change my opinion in light of my mistakes. Think of my second paragraph as dicta.

Readers might be interested to learn that the definition of solicitation in FAR 2.101 was added to FAR in 2002 by FAC 2001-06 as one of the changes made to clarify 'definitions that are used in the FAR for sealed bid and negotiated procurements." See 67 FR 13954, March 20, 2002. Prior to that, there was no generally applicable definition of solicitation in FAR. The language of FAR 13.101(B)(2) predates the definition of solicitation.

A bit off topic but I noticed OFPP made the distiction between solicitation and request for quotation in their July 29, 2009 memo on "Improving Government Acquisition". This is from their memo:

' .... Using FY 2008 achievements as a baseline, agencies should aim to reduce by at least 10 percent the combined share of dollars obligated through new contracts in FY 2010 that are: (1) awarded noncompetitively and/or receive only one bid in response to a solicitation or a request for quote, (2) cost-reimbursement contracts or (3) T&M/LH contracts.

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In light of all the interesting things to talk about in acquisition--see, for example, OMB's new memoranda about acquisition--why are we still talking about whether or not to use a particular solicitation provision in an RFQ when everyone seems to have conceded that the provision is not suitable for RFQs?

We're into the third page of this discussion. Aren't we smarter and more interesting than this?

Vern,

If everyone who issues an RFQ on a SF 1449 is incorporating an unsuitable solicitation provision, then I would say that is interesting.

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  • 1 month later...

I use the generic term 'vendor' to describe all companies/businesses in general --- however, I use the term 'contractor' to refer specifically to vendors that actually have (or have held) a Government contract.

To my way of thinking... an 'offeror' is a vendor who submits a proposal/bid/"offer" in response to a Solicitation. But, when an offeror is selected (and upon award of a Government contract), said offeror is then re-designated as a 'contractor'.

Further, ANY company that actually performs on a Government contract is considered a 'contractor' (IMHO). Those without a Government contract are simply referred to as vendors/companies/businesses/firms/etc.

...just my 2 cents...

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Guest Vern Edwards
I use the generic term 'vendor' to describe all companies/businesses in general --- however, I use the term 'contractor' to refer specifically to vendors that actually have (or have held) a Government contract.

To my way of thinking... an 'offeror' is a vendor who submits a proposal/bid/"offer" in response to a Solicitation. But, when an offeror is selected (and upon award of a Government contract), said offeror is then re-designated as a 'contractor'.

Further, ANY company that actually performs on a Government contract is considered a 'contractor' (IMHO). Those without a Government contract are simply referred to as vendors/companies/businesses/firms/etc.

...just my 2 cents...

You can't buy a piece of bubblegum with 2 cents.

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