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Scenario recap: Two years ago, I received a multibillion dollar requirement for nationwide commercial services over a five-year period. The customer requested two contract awards. Workload would be assigned daily, and could vary significantly from day to day. The most appropriate delivery arrangement would be an indefinite-delivery contract or FSS BPA. The customer also had one unusual request: for national security purposes, the contractors would need to remain at workload parity. In other words, the Government would need the flexibility to give each contractor an approximately equal share of the work over the lives of the contracts so that at any moment one contractor would be able to stand in for the other and rapidly scale its workforce to take all or part of the other contractor’s workload. The FAR and DFARS applied.

Problem: The FAR doesn’t describe a way to award two IDCs for the same requirement and allocate work between them. It specifically precludes allocation in a multiple-award IDIQ scenario (FAR 16.505(b)(ii)(B)) and stipulates that a requirements contract is for “one contractor” to fulfill the Government’s requirements (FAR 15.503(a)). In addition, FAR 8.405-3 establishes a multiple-award BPA ordering process that basically mirrors the multiple-award IDIQ ordering process.

Proposed Solution: After researching the issue, I landed on the strategy of awarding “split” requirements contracts (which I referred to at the time as multiple-award requirements contracts). We had a robust discussion about the merits of this approach here:

Outcome: Despite legal concurrence, neither the customer nor SSA would agree to this strategy. The SSA was uncomfortable operating this far outside of the seemingly clear language of FAR 16.503. The customer believed our projected quantities were too speculative to meet the legal standard of a requirements contract (and did not want to be locked into a promise we couldn’t keep). After several briefings to advocate for this approach, the SSA told the acquisition team to start over.

We looked at multiple avenues. We considered a deviation to fair-opportunity procedures (blocked by statute), FAR part 13 BPAs (ordering threshold too low), and very high guaranteed minimums in a multiple-award scenario (too risky). We considered other methods, too, but struggled to come to consensus on anything.

We were basically at the end of our rope when legal counsel joked, “I wish we could just award two single-award IDIQs.” On a whim, I started to look at how that could conceivably be accomplished under the FAR, and landed on the following path:

  1. There would be no way to avoid fair-opportunity competition in a multiple-award scenario.
  2. Every definition of “multiple-award contract” at FAR 2.101 contemplates a “single solicitation.” So to avoid classification as a multiple-award contract, we could issue two, substantially identical solicitations simultaneously, with each cross-referencing the other and encouraging offerors to respond to both.
  3. Assuming each offeror responded to both solicitations with the same proposal, the question then became how to prevent one offeror from winning both awards. The answer was under FAR 6.202, which allows us to exclude a source from award in order to maintain another source. We would determine the awardee for one solicitation, then execute a D&F pursuant to FAR 6.202 excluding that source from consideration under the second award.

And this is exactly what we did. We called them “parallel” single-award IDIQs. Though nobody within my agency could articulate a strong reason why this approach would not work, we nevertheless faced a lot of skepticism and criticism. The SSA accused me of playing fast-and-loose with the rules (I responded that this is exactly what “acquisition innovation” looks like). Many said that this was all unnecessary because many agencies utilize allocation to place orders against their multiple-award IDIQs and BPAs (though no one could ever explain how this was allowable under the rules). Others said that having dual contract files would be administratively burdensome and that conducting the source selection under each solicitation would be too complicated (we considered the risks and didn’t agree; ultimately, ~95% of each contract file is composed of identical documents, including the proposals).

Luckily, a new SSA took over midway through this process and gave us the green light. We were careful to vet this with industry, too. We explained the delivery arrangement in a draft solicitation and gave contractors an opportunity to air concerns, but none did. We were also sure to explain within the solicitation the reason we needed to take this approach, the exact steps we would take to execute it, and the risks the contractors would be accepting if they received award. Nobody complained. Nobody questioned it. We’re presently scheduled to make award in December and thereafter will have total flexibility to utilize these IDIQs in a manner that best suits the Government, with virtually no concerns of protest mid-performance.

And that’s what happened. I’m proud of this one. It’s been a long time coming (too long), with many hard-fought and probably unnecessary battles along the way. It’s an important requirement with a troubled history and significant national security implications. The prices are good, the customer believes that these contracts give them exactly the flexibility they need to mitigate risk going forward, and I believe the contracts are defensible under the FAR. I’ve done contracting for 11 years now and can’t say I’ve derived much satisfaction from it in that time. But this one, in this moment, makes it all seem worth it.

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On 11/22/2022 at 12:46 PM, REA'n Maker said:

I did the same thing except there were three SA IDIQs segregated by geographic region.  We used one core evaluation team with regional SMEs to supplement each eval as needed.  

Did you allow offerors to submit a single proposal responsive to more than one region/solicitation? This is what we did to save paperwork on their end and avoid redundant evaluations on our end. 
 

We also tried to convince the customer to consider a regional workload model, as acquisition leadership was much more comfortable with a contract structure divided according to objective criteria instead of the discretion of the customer. But the customer wouldn’t agree to this. So in the end, apart from meeting the minimum guaranteed quantities (each a healthy sum), the government may use each contract entirely as it wishes.

 

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  • 2 weeks later...
On 11/27/2022 at 9:32 AM, FrankJon said:

Did you allow offerors to submit a single proposal responsive to more than one region/solicitation? This is what we did to save paperwork on their end and avoid redundant evaluations on our end.

Proposals were required for each zone regardless of submissions under other zones because it was an A-E procurement under which the required expertise varied based on geography.  For example, required coastal engineering expertise was different for the Great Lakes and the Atlantic and Pacific coasts.

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On 11/22/2022 at 9:46 AM, REA'n Maker said:

I did the same thing

 

10 hours ago, REA'n Maker said:

Proposals were required for each zone

 

10 hours ago, REA'n Maker said:

an A-E procurement

 Brooks Act was used?  And needs of technical expertise varied by zone.  So one could conclude easier that a single award by zone was a better fit than multiple award. Seems different to me.

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On 12/9/2022 at 7:45 PM, C Culham said:

 Brooks Act was used?  And needs of technical expertise varied by zone.  So one could conclude easier that a single award by zone was a better fit than multiple award. Seems different to me.

 

On 11/22/2022 at 12:46 PM, REA'n Maker said:

I did the same thing except there were three SA IDIQs segregated by geographic region. 

Emphasis added.

 

 

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