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FAR 5.201(a) Requirement to Synopsize Does Not Apply to SAP


CMM

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Those of us who work primarily in simplified acquisition may have heard a few different interpretations about whether a synopsis is required for a solicitation over $25k but under the SAT. Based on the information below, I think it's clear that the requirement to synopsize found in FAR 5.201(a) does not apply to Simplified Acquisition Procedures. 

FAR Subpart 5.2 - Synopses of Proposed Contract Actions addresses requirements for synopsizing and begins with this statement:
5.201(a) As required by the Small Business Act ( 15 U.S.C.637(e) ) and the Office of Federal Procurement Policy Act ( 41 U.S.C. 1708), agencies must make notices of proposed contract actions available as specified in paragraph (b) of this section.

FAR 5.201(a) tells us that the requirement for synopsizing is found the Small Business Act ( 15 U.S.C.637(e) ) and the Office of Federal Procurement Policy Act ( 41 U.S.C. 1708), so what do those two acts say? 

The Small Business Act (15 U.S.C. 637(e)) states that: 
(1) Except as provided in subsection (g) of this section—
(A) an executive agency intending to—
(i) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or
(ii) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement, shall publish a notice described in subsection (f) of this section;

The Office of Federal Procurement Policy Act (41 U.S.C.1708):
(a) NOTICE REQUIREMENT.—Except as provided in subsection (b)—
(2) an executive agency shall publish a notice of solicitation described in subsection (c) if the agency intends to—
(A) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or
(B) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement;

These two acts clearly state that a synopsis is required whenever the government solicits bids or proposals for work that will exceed $25k.

FAR 2.1 defines bid and proposal this way: Offer means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called "bids" or "sealed bids"; responses to requests for proposals (negotiation) are offers called "proposals"; however, responses to requests for quotations (simplified acquisition) are "quotations," not offers.

If we issue a request for quotations using the Simplified Acquisition Procedures of FAR part 13, we solicit quotations. 

Neither the Small Business Act (15 U.S.C. 637(e)) nor the Office of Federal Procurement Policy Act (41 U.S.C.1708) requires a notice to be published when the government solicits quotations. 

The requirement for synopsizing in FAR 5.201(a) does not therefore apply when using Simplified Acquisition Procedures described in FAR Part 13. 
 

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@CMM Your argument appears to boil down to this:

Since the statutes refer to bids and proposals, and since FAR says quotations are not bids or proposals, a CO need not publish a synopsis if issuing an RFQ.

Have I interpreted your argument correctly?

Two thoughts:

First, the definitions of bid and proposal in FAR are not relevant. What matters are the definitions, if any, in the statutes. Have you checked for definitions in the statutes? What if there are no definitions of those terms in the statutes?

Second, FAR 5.101 and 5.201 say, "As required by 15 USC 637(e) and 41 USC 1708..." The phrase "As required by..." merely puts COs on notice that the FAR Councils have interpreted the statutes as requiring synopses for "contract actions," as defined in FAR 5.001, that are not covered by an exception in 5.202.  

FAR 5.001 defines a "contract action: as "an action resulting in a contract, as defined in subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract..."

An RFQ is clearly issued with the intent to award a contract, so it is a contract action. Therefore, it the RFQ is issued with the intent of awarding a contract in excess of $25,000, then the CO must publish a synopsis.

What do you think?

Why doesn't FAR 5.202 simply provide an exception for SAP acquisitions in excess of $25,000 and not in excess of the SAT?

BTW, I searched GAO and COFC protest decisions for a case "on point" and did not find one.

BTW, I wish your argument were true, but I don't think it is.

 

 

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CMM,

I am intrigued by your argument, but I would want to know how you reconcile your argument with FAR 13.106-1(c)(1)(iii) and 13.106-1(c)(2), which clearly deal with quotations but also which clearly point back to the synopsis requirements in Part 5.

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I looked in the Acquision.gov archives at an earlier version of the FAR.  At that time, 13.105 stated:

(a) The contracting officer must comply with the public display and synopsis requirements of 5.101 and 5.203 unless—

...  (ii) The GPE is used at or below the simplified acquisition threshold for providing widespread public notice of acquisition opportunities and offerors are provided a means of responding to the solicitation electronically

This language is quite similar to that currently found in 5.202(a)(13) and my interpretation is that the FAR Council contemplated that as long as the solicitation is posted on GPE and responses can be made electronically synopsis is not required. 

I'm of the opinion that email is an electronic means of responding.

It seems to me that over time the original intent has been lost and people are wasting a lot of time (15 day posting period) on what is intended to be a simplified process.

As I am also interested in what is actually happening in the field, I've posted a Poll on the topic and hope people will respond.

 

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Historically, a synopsis (brief description) of a procurement—a presolicitation notice—had to be sent to the Department of Commerce for publication in the Commerce Business Daily 15 days prior to release of a solicitation so that prospective competitors would have time to submit a written request for a copy in time to prepare a bid or proposal. Today, with the GPE and electronic response, the delay is no longer necessary in many cases, and you can base the bid or proposal due date on the date of publication at the GPE. In short, you still need an announcement of the procurement at the GPE. It's just not necessarily a presolicitation notice.

1 hour ago, ricroy said:

It seems to me that over time the original intent has been lost and people are wasting a lot of time (15 day posting period) on what is intended to be a simplified process.

That's probably true.

I think the term synopsis is confusing.

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