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crwhitley

GSA Awards - Notification to Unsuccessful Offerors

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For an award following Far Part 8 procedures, but where a competitive range was established, and notices eliminating offerors from the competitive range were sent out, do I then have to send award notices to those offerors who were already elminated? FAR Part 8 states and timely notification should be sent to unsuccessful offerors. However, the previously sent notices could be considered this notification.

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According to FAR 8.405-3( b )( 3 ), notices to unsuccessful offerors are made post-award, but you made pre-award notices to those not in your competitive range. You didn't need to, and probably shouldn't have. Since you didn't follow the FAR, there is no FAR rule to give you now.

My thought (take it for what it's worth -- I haven't read your solicitation or your previous pre-award notices): You erred in giving the pre-award notices. But FAR 8.405-3( b )( 3 ) says to give notice post-award, so you should do it. Only a notice, mind you -- not an explanation of the basis for the award decision -- an unsuccessful offeror only gets the explanation if it asks for it. That's what the FAR says.

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crwhitley,

My advice is to seek legal counsel. You introduced Part 15 procedures when you established a competitive range and provided competitive range exclusion letters. GAO has ruled that if you introduce FAR 15 procedures to a Part 8 acquisiton, then GAO will hold you to those more stringent part 15 procedures in the event of a protest. Thus, you would have to follow the procedures in FAR 15.506 for post award debriefings.

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Blitz,

This is an interesting topic. The Court of Federal Claims thinks otherwise, opining that an agency can use some FAR Part 15 procedures and not others in a FAR Subpart 8.4 acquisition. See USCOFC Bid Protest No. 12-274 C, Distributed Solutions, Inc.

As an initial matter, FAR 8.404 expressly provides that FAR Part 15 does not apply to orders placed against FSS contracts. FAR Part 15, therefore, is explicitly made inapplicable to FSS contracts. Plaintiff contends that because DOL engaged in discussions, it was required to follow FAR Part 15 procedures. This misconstrues case law. This court consistently has held that procurements conducted under Subpart 8.4 are different from those conducted under Part 15, even if some procedures also present in Part 15 are utilized. Therefore, that DOL conducted discussions did not mean it had to comply with the strict procedures of FAR Part 15. Where a solicitation governed by FAR Subpart 8.4 used procedures found in FAR Part 15, the procurement official need not comply with the more formal and rigorous procedures for negotiated procurements. While the agency can elect to use procedures from FAR Part 15, they are not presumptively applicable. This court has held that FSS acquisitions are not transformed into negotiated procurements simply because an agency chooses to utilize in its evaluation process more formal elements typlically used in a negotiated procurement.

[internal quotation marks and case citations omitted]

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