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Guest Vern Edwards

RFPs for Sole Source

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Guest Vern Edwards

Is anyone out there preparing a full-up FAR Part 15 RFP for sole source acquisitions?

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I assume the RFP is rather brief? In a sole source you don't generally have evaluation criteria. What type of information are you asking for?

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We do a full RFP with all provisions, clauses, etc. The evaluation criteria typically states that it is expected to be awarded on a sole source basis to company X, however if any other offeror responds we will evaluate as follows and then it lists evaluation criteria. There are a few exceptions to this, but typically this is the way we do it.

In most cases, I don't agree with doing it this way as I believe if the J&A is accurate and proper market research has been completed, there should be no doubt about it being sole source. However, we have in the past wound up awarding Sole Source procurements to offerors other than who we were sure it would go to. It doesn't happen often, but it has happened.

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We routinely employ lengthy FAR Part 15 RFPs for the acquisition of sole source commercial services contracts at the VA. We even issue solicitation due date extensions (via formal solicitation amendments), if the offeror (who is an incumbent contractor) fails to provide a complete proposal by the initial due date.

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Another contributing factor to full RFPs is agency requirements for contract review boards and legal reviews. These don't make the disction between competitive and sole source. So COs have to comply the same way with their documentation for both.

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Mr. Edwards - I realize I am late to this thread, but out of curiosity, why did you ask the question? As a procurement analyst, I am a member of the peer review boards that assess solicitations prior to being released. When a sole source requirement is submitted for review, the solicitation usually does not have evaluation criteria. I understand that - no reason to distinguish amongst offerors (as they proposed to the evaluation criteria). But, if we have a sole source service requirement, how do we assess whether this contractor will meet our needs sufficiently? Do you believe that was done as part of a vetting process before we chose to go sole source? I guess what I am looking for is for some way to be sure that the contractor will deliver what we are expecting, if that makes sense. Perhaps we need this contractor to have certain certifications. Would we want to have them produce the certifications when submitting a proposal? Or do we need to have a clear understanding of the proposed training plan, so we need to have it submitted with a proposal. I hope this is clear, Monday being what it is. But I would be grateful for your thoughts.

Thank you.

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Guest Vern Edwards

To be honest, Maureen, I can't remember why I asked. I'm sure it came from some conversation that I had. I just can't remember.

Presumably, before you announce and issue an RFP for a sole source procurement, you will determine that the firm can do the job and is the only one that can do the job. You could do that by talking with the firm or even visiting with them and conducting tests to verify their capability and capacity. If the firm must have certifications, you could require that they submit them with their proposal or obtain them prior to award or shortly after award.

I would not announce and issue an RFP for a sole source procurement before I knew that the firm could do the work and that it is, in fact, the sole source.

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Mr. Edwards - I realize I am late to this thread, but out of curiosity, why did you ask the question? As a procurement analyst, I am a member of the peer review boards that assess solicitations prior to being released. When a sole source requirement is submitted for review, the solicitation usually does not have evaluation criteria. I understand that - no reason to distinguish amongst offerors (as they proposed to the evaluation criteria). But, if we have a sole source service requirement, how do we assess whether this contractor will meet our needs sufficiently? Do you believe that was done as part of a vetting process before we chose to go sole source? I guess what I am looking for is for some way to be sure that the contractor will deliver what we are expecting, if that makes sense. Perhaps we need this contractor to have certain certifications. Would we want to have them produce the certifications when submitting a proposal? Or do we need to have a clear understanding of the proposed training plan, so we need to have it submitted with a proposal. I hope this is clear, Monday being what it is. But I would be grateful for your thoughts.

Thank you.

Maureen,

Before awarding most contracts, even those that are awarded on a sole source basis, the contracting officer must determine that the prospective contractor is responsible (i.e. meets the standards at FAR 9.104-1). Why isn't that sufficient "to be sure that the contractor will deliver what we are expecting"?

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Thank you, Mr. Edwards, and Mr. Mansfield. I guess my competitive solicitation hat was on too tight and I could not let go of the need to do an "evaluation" by including some sort of criteria. Both of you provided good advice. I just want to take the opportunity to say how much I appreciate this website, and your involvement. I have been relying on you whenever I get stumped for a good fifteen years, if you can believe that. Again, thanks!

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You know what really rips my contract? When I see in an FBO solicitation where the Contracting Officer stated in Addendum E, Evaluation Factors, "This is a Sole-Source Procurement."

From a negotiation perspective, it makes sense to include an evaluation language in the sole source procurement as if the requirement was a competitive solicitation. Further, it also makes sense to wait until after completion of negotiations before submitting a sole source notice in FBO. There are exceptions to this (i.e. pressed for time or the requirement must specifically mention the Offeror's brand for technical reasons).

Once the Offeror knows that they are the only firm you are soliciting to do the work, the agency's negotiating power drops significantly. For some requirements, particularly for services, while there is an obvious reason to do a sole source (either the Offeror has specialized experience or exclusive access to certain information), it would be possible that another business could try to do the work. For example, you have a computer system developed by one company that has years of experience modifying that system, and you want to create a follow-on change to the system. It would be possible (but not smart) to try to get another company without that experience to work on the system and make the programming changes.

However, you do not want to negotiate in bad faith with the Offeror. You should not lie to the Offeror, but there are ways that you can avoid letting that sole source cat out of the bag. For example, if the Offeror asks if this is a sole source, you could respond with "we are considering all firms that have a capability to meet these requirements, including those we identified in our market research." I have even established a competitive range in a sole source procurement, and was successful in receiving a substantial price reduction as part of the Offeror's FPRs. The key was that the Offeror did not know it was a sole source until after they signed the offer. If you create even a little bit of doubt in the Offeror's mind about the requirement being a sole source, you have substantially improved the agency's negotiating position.

Stating "this is a sole source procurement" or taking other actions to remove any doubt for whether you are issuing a sole source is akin to walking into a car dealership and saying that you will only buy a specific car from them. Three words: Piranha Feeding Frenzy.

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metteec,

You said you wait until negotiations are done before issuing the FBO announcement. How long do you wait to award after the FBO announcement?

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Hi Don,

Per FAR Section 5.203©, for a non-commercial item I would wait 30 days after posting the notice prior to award. For a commercial item, per FAR Section 5.203(a), I would wait 15 days after posting the notice.

I have had other Contracting Officers argue with me that for a commercial item sole source contract action, that they can issue the notice for a "reasonable time" shorter than the 15-days. I'd like to point out that the previously mentioned FAR citation makes a distinction between "solicitations" and "a proposed contract action the Government intends to solicit and negotiate with only one source." The exception at (a)(1) applies only to solicitations. Based upon my interpretation of the changes in FAC 2005-24, I do not think the exception at (a)(1) applies for a proposed sole source action for commercial items.

Source:

"(a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may—

(1) Establish a shorter period for issuance of the solicitation; or

(2) Use the combined synopsis and solicitation procedure (see 12.603)."

Edit: I feel it is important to also point out the many agencies completely ignore the synopsis timeframes for sole source actions. However, the business community is partially culpable because they rarely challenge agencies for using shorter timeframes than allowable.

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Is there such a thing as a sole source set aside?

It seems to me that a sole source and a set aside are mutually exclusive. If you have a sole source justification there would be no reason to set aside. The sole source justification does not seem to based whatsoever on size of the contractor. Just wondering.

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metteec,

Some more questions--

1. For sole source actions that require a J&A, do you get the J&A approved before beginning negotiations?

2. Do you create a solicitation with proposal instructions and evaluation criteria, then send it to the prospective contractor to begin negotiations?

3. Using your procedure, wouldn't the prospective contractor be able to figure out that the action was not competitive, given the fact that you haven't synopsized it or (I assume) made the solicitation available through FBO?

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Don,

In response to your questions:

1) In all of the agencies I have supported, the approved J&As are included with the Purchase Requests. Yes, I would have the J&A approved prior to conducting my negotiations. Otherwise, if the J&A for some reason the J&A is not approved, you have provided the prospective contractor with an unfair competitive advantage.

2) I issue the complete solicitation package to the prospective contractor and provide them with a reasonable time to respond to the solicitation and ask questions. After my technical team reviews their proposal, and I review their cost/price information, I begin negotiations.

3) It is possible that they could suspect that the action was not competitive by the absence of the synopsis. I'd think most prospective contractors would be too busy figuring out what to do to respond to the solicitation, rather than checking to make sure I synopsized properly. However, there are also multiple exceptions to the synopsis requirement. If the prospective contractor were to ask me why I did not synopsis, I would respond that "We made a determination that a synopsis would not be appropriate for this acquisition at this time." Further, I would not send the solicitation directly to the prospective contractor. I would create an e-mail that appeared to be addressed to multiple parties and BCC the prospective contractor (which I do anyways in correspondence for a competitive solicitation).

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At offices I've worked at for both the VA and the Army, we used a RFP (or RFQ if simplified) for sole-source for a couple of reasons. The primary reason is that it communicated the SOW/PWS, the clauses, and all other T&Cs that would be in the resultant contract. This way everything is communicated up-front and there are no surprises when the contractor is presented with an award document to sign.

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metteec,

You wrote:

"Further, it also makes sense to wait until after completion of negotiations before submitting a sole source notice in FBO."

FAR 5.207( c )(16) requires you to insert a statement in your FBO notice allowing responsible alternate sources to submit something "which shall be considered by the agency."

How would you comply with that requirement ("...shall be considered...") if you've already completed negotiations with someone else?

Note: Edited to fix the "c" in parens.

Edited by GeoJeff

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It seems that 41 U.S.C. § 3303(B ) requires agencies conducting set-asides to use competitive procedures. As such, it seems as though you can either have an unrestricted sole source procurement or a competitive set aside procurement.

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In case anyone is interested. The citation is:

41 U.S.C. § 3303( b )

(B ) EXCLUSION OF OTHER THAN SMALL BUSINESS CONCERNS.—An executive agency may provide for the procurement of property or services covered by section 3301 of this title using competitive

procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638,644).

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There seems to be only two sole source set aside types - HUBZone (19.1306) and SDVOSB (19.14.06). Technically not a set aside but a sole source before making a set aside. This also seems to follow the tracking and reporting in FPDS of set asides - there is no sole source set aside. How come then do you see so many sole source set asides in FBO that do not fall into these two categories?

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There seems to be only two sole source set aside types - HUBZone (19.1306) and SDVOSB (19.14.06). Technically not a set aside but a sole source before making a set aside. This also seems to follow the tracking and reporting in FPDS of set asides - there is no sole source set aside. How come then do you see so many sole source set asides in FBO that do not fall into these two categories?

Whynot, why are you using the term "sole source set aside"? Neither of the references you cited identifies a sole source award as a "set-aside". See your 20 AUG 2014 post number 14 above:

"Is there such a thing as a sole source set aside?

It seems to me that a sole source and a set aside are mutually exclusive. If you have a sole source justification there would be no reason to set aside. The sole source justification does not seem to based whatsoever on size of the contractor. Just wondering."

On 15 SEP 2104 you said in your post #19:

"It seems that 41 U.S.C. § 3303(B ) requires agencies conducting set-asides to use competitive procedures. As such, it seems as though you can either have an unrestricted sole source procurement or a competitive set aside procurement."

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Joel,

Thanks for jumping in. The FPDS uses that designation (HUBZone Sole Source and SDVOSB Sole Source) for set aside types. I don't care what you call it that is what it is. If you go to FBO and do a routine search in last 90 days (search partial and total small business set asides, search award notices, search on all the J&A authorities) - what do you get?

https://www.fpds.gov/help/Type_of_Set_Aside.htm

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Whynot,

Interesting. Well there is also a designation for 8(a) sole source award under that screen:

"8AN 8(a) Sole Source : Report this code for actions with the Small Business Administration pursuant to FAR 19.8, or directly with an 8(a) contractor pursuant to a memorandum of understanding between the SBA and the reporting agency per 219.811."

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Do the set aside clauses that are in the solicitation/contract self delete if the solicitation/contract becomes a sole source, such as the limitation on subcontracting (which is mandatory under a set aside only)?

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