FAR 15.503 Preaward Notices - Notice to unsuccessful offerors

[govt2310]

Is the CO required to "promptly" send Preaward Notices to offerors whose proposals were deemed "non-conforming" if no Competitive Range will be established?

And what does "promptly" mean?

SCENARIO: The CO received a bunch of proposals. Say 30 proposals. 10 of the proposals violate say, the page limitations from the solicitation. The solicitation specifically warned, hey, if you submit a proposal that does not conform to ALL of the Section L instructions, then it "may" be kicked out. Say the CO here believes these non-conforming proposals should be kicked out. Now, does the CO have to send the Preaward Notices to these 10 offerors immediately, or can the CO wait until the evaluations are totally done, and just notify the offerors then?

FAR 15.503 Notifications to unsuccessful offerors.

(a) Preaward notices—

(1) Preaward notices of exclusion from competitive range. The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered.

(2) Preaward notices for small business programs.

(i) In addition to the notice in paragraph (a)(1) of this section, the contracting officer shall notify each offeror in writing prior to award, upon completion of negotiations, determinations of responsibility, and, if necessary, the process in 19.304(d)—

(A) When using a small business set-aside (see Subpart 19.5);

(B ) When a small disadvantaged business concern receives a benefit based on its disadvantaged status (see Subpart 19.11 and 19.1202) and is the apparently successful offeror;

(C ) When using the HUBZone procedures in 19.1305 or 19.1307;

(D) When using the service-disabled veteran-owned small business procedures in 19.1405; or

(E) When using the Woman-Owned Small Business Program procedures in 19.1505.

(ii) The notice shall state—

(A) The name and address of the apparently successful offeror;

(B ) That the Government will not consider subsequent revisions of the offeror’s proposal; and

(C ) That no response is required unless a basis exists to challenge the size status or small business status of the apparently successful offeror (e.g., small business concern, small disadvantaged business concern, HUBZone small business concern, service-disabled veteran-owned small business concern, economically disadvantaged women-owned small business concern, or women-owned small business concern eligible under the Women-Owned Small Business Program).

(iii) The notice is not required when the contracting officer determines in writing that the urgency of the requirement necessitates award without delay or when the contract is entered into under the 8(a) program (see 19.805-2).

[ji20874]

First, make sure your acquisition is covered by FAR Part 15.

If it is, then yes, you need to comply with FAR 15.503( a )( 1 ). If your award decision will happen soon after receipt of proposals, it will seem reasonable to notify all the unsuccessful offerors at the same time. But if your award decision will happen long afterwards, it will seem reasonable to send the notice soon after receipt of proposals.

Will your evaluation of the other 20 proposals be competed within a few days or a week? And a selection decision made? That might count as soon enough after receipt of proposals to still be prompt.

Will your evaluation of the other 20 proposals take a month or more? It's hard to see any promptness in waiting that long.

If you do wait, and if there is a protest, and if the GAO surmises that you purposefully delayed sending the notices for nefarious purposes, well, that won't be good. But I think the GAO would understand a five- or ten-day period from receipt of offers to sending the notice to be reasonably prompt.

You might be best served by sending the notices sooner rather than later. If you send them sooner, you only have to say the proposal was rejected because it violated the page limit established by the solicitation -- maybe you get a protest, maybe not, but you'll likely win the protest (if the solicitation really imposes a firm page limit*) -- but if you send it later, and especially if there is a debriefing, the offeror will learn at the same time that its proposal was rejected for the page limits but you didn't send a notice AND its price was lower than the winning offeror -- in such a case, the odds of protest might be higher and your odds of prevailing might be lower.

*Does your solicitation really impose a firm page limit? Ten offerors mis-read or ignored the limit? Ten? Maybe there is some ambiguity in the solicitation? Maybe the page limit isn't really enforceable?

[Don Mansfield]

promptly: with little or no delay; immediately.

If you have eliminated those ten offerors from the competition, you must notify them, in writing, immediately.

[govt2310]

The Nash and Cibinic Formation of Government Contracts book states on p. 958 (I have a really old edition, so newer editions may have a different starting page number):

SELECTION, AWARD, NOTICES AND DEBRIEFINGS

SECTION E. NOTICES AND DEBRIEFINGS

"Although the procurement statutes do not specifically state that Preaward Notices of exclusion from the competition is to be given, the requirement for such notice is implicit in the offeror's right to request a Preaward Debriefing . . ."

[C Culham]

In support of Don's post....

FAR 1.108 FAR conventions.

The following conventions provide guidance for interpreting the FAR:

(a) Words and terms. Definitions in Part 2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning.

[ohnoudidnt14]

Disregarding the dictionary definitions for a minute, as a contractor we would like to know as soon as possible, especially as we are approaching the end of the FY. Such information may free up some bonding capacity (if construction) or may impact our go/no-go decisions on possibly bidding other contracts.

I know your example may have been a hypothetical and not your "real" situation, but exceeding page count is not a reason to throw a proposal out. The proposal should be evaluated up to the number of pages permitted and the excess disregarded. The proposal will likely end up deficient on some ground, but I would think that you would have to go through the process just the same.

[Guest Vern Edwards]

The Nash and Cibinic Formation of Government Contracts book states on p. 958 (I have a really old edition, so newer editions may have a different starting page number):

SELECTION, AWARD, NOTICES AND DEBRIEFINGS

SECTION E. NOTICES AND DEBRIEFINGS

"Although the procurement statutes do not specifically state that Preaward Notices of exclusion from the competition is to be given, the requirement for such notice is implicit in the offeror's right to request a Preaward Debriefing . . ."

The current edition, Formation of Government Contracts, 4th ed., says, on page 986:

Although the procurement statutes do not specifically state that preaward notice of exclusion from competition is to be given. the requirement for such notice is implicit in the offeror's [statutory] right to request a preaward debriefing. thus, FAR 15.503(a) requires preaward notices of exclusion....