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Greetings,

I was hoping someone could provide some information regarding DFARS 215.371-5 applicability to FAR Subpart 13.5. When the requirement for DFARS 215.371-5 came about (Federal Register, Volume 77 Issue 126 (Friday, June 29, 2012)) http://www.gpo.gov/fdsys/pkg/FR-2012-06-29/html/2012-15569.htm there was no mention to the ruling's applicability to the Test Program FAR Subpart 13.5 procurements. Further reading into the volume, it was stated, "It is simply not feasible to apply the rule to the huge volume of very low dollar value buy..." referring to SAP buys. My interpretation on this is that if DFARS 215.371-5 is not applicable for SAP to include procurements using FAR Subpart 13.5 -- this is just my interpretation and is not substantiated with narratives/references found on any other sources.

What has been the take for the Department of Defense on these actions? Is DFARS 215.371-5 applicable to FAR Subpart 13.5? If so, can you provide citations/references?

Happy Holidays!

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Guest Vern Edwards

Is DFARS 215.371-5 applicable to FAR Subpart 13.5?

That question turned out to be more interesting than I thought initially.

First keep in mind that FAR Subpart 13.5 applies to acquisitions of commercial items valued in excess of the simplified acquisition threshold up to $6.5 million or $12 million, depending on the circumstances.

DFARS 215.371 was added through a final rule published at 77 Fed. Reg. 39128 on June 29, 2012. That announcement said:

The FAR subpart 13.5 test program is no longer in effect. The final rule deletes all references to the FAR subpart 13.5 test program.

and

The rule no longer addresses acquisitions under FAR subpart 13.5, because that statutory authority has expired.

However, the proposed rule, which appeared at 76 Fed. Reg. 39126, July 25, 2011, would have applied DFARS 215.371 to FAR Subpart 13.5 by adding the following paragraph to DFARS 213.003:

(g)(2) For acquisitions that exceed the simplified acquisition threshold but are utilizing competitive simplified acquisition procedures under the Test Program for Certain Commercial Items, as described in FAR subpart 13.5, follow the procedures at 215.371 if only one offer is received.

The test program was reinstated after publication of the final rule. So does DFARS 215.371 now apply? I think the answer depends on the plain language of DFARS 215.371 and the method of contracting used.

Since FAR 13.5 applies only to commercial items, the part of DFARS 215.371 that requires certified cost or pricing data does not apply in any case, since that the requirement for certified cost or pricing data is statutorily inapplicable to acquisitions of commercial items. So, what's left? See also FAR 15.403-1( b )(3).

There are seven subsections to DFARS 215.371. DFARS 215.371-1 says:

It is DoD policy, if only one offer is received in response to a competitive solicitation--

(a) To take the required actions to promote competition (see 215.371–2); and

( b ) To ensure that the price is fair and reasonable (see 215.371–3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403–4).

I think that (a) applies to 13.5, but not ( b ), since you cannot obtain certified cost or pricing data in acquisitions of commercial items under any circumstances. See FAR 15.403-1( b )(3).

DFARS 215.371-2 says:

Except as provided in sections 215.371–4 and 215.371–5, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall--

(a) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502( b ) and 11.002); and

( b ) Resolicit, allowing an additional period of at least 30 days for receipt of proposals.

I think that those requirements do apply to FAR Subpart 13.5 acquisitions, the key being whether the CO allowed 30 days for proposal submission.

DFARS 215.371-3 says, in pertinent part:

( b ) Except as provided in section 215.371–4(a), if only one offer is received when competitive procedures were used and the solicitation allowed at least 30 days for receipt of proposals (unless the 30–day requirement is not applicable in accordance with 215.371–4(a)(3) or has been waived in accordance with section 215.371–5), the contracting officer shall--

(1) Determine through cost or price analysis that the offered price is fair and reasonable and that adequate price competition exists (with approval of the determination at a level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies (see FAR 15.403–1© and 15.403–4). In these circumstances, no further cost or pricing data is required; or

(2)(i) Obtain from the offeror cost or pricing data necessary to determine a fair and reasonable price and comply with the requirement for certified cost or pricing data at FAR 15.403–4. For acquisitions that exceed the cost or pricing data threshold, if no exception at FAR 15.403–1( b ) applies, the cost or pricing data shall be certified; and

(ii) Enter into negotiations with the offeror as necessary to establish a fair and reasonable price. The negotiated price should not exceed the offered price.

Note that ( b )(1) talks about "certified" cost or pricing data, but that ( b )(2) talks about cost or pricing data, without the word “certified.” See the definitions in FAR 2.101.

I think that ( b )(2) applies to FAR Subpart 13.5 acquisitions, except for the requirement in ( b )(2)(i) to obtain certified cost or pricing data, but not ( b )(1).

DFARS 215.371-4 provides exceptions and DFARS 215.371-5 provides for waivers, and I think that they apply. I think that DFARS 215.371-6, which prescribes the use of a solicitation provision, applies.

Now, a person could argue that any part of the proposed rule concerning FAR Subpart 13.5 that did not appear in the final rule is inapplicable, and that since nothing about FAR Subpart 13.5 appears in the final rule, DFARS 215.371 does not apply. I will not say that is “wrong.” It’s a reasonable position. Do what makes sense. Sometimes it's wise to go along, even if you don't think you have to.

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  • 4 weeks later...

Vern Edwards stated above on 10 Dec 2014 in Post #3:

However, the proposed rule, which appeared at 76 Fed. Reg. 39126, July 25, 2011, would have applied DFARS 215.371 to FAR Subpart 13.5 by adding the following paragraph to DFARS 213.003:

Quote

(g)(2) For acquisitions that exceed the simplified acquisition threshold but are utilizing competitive simplified acquisition procedures under the Test Program for Certain Commercial Items, as described in FAR subpart 13.5, follow the procedures at 215.371 if only one offer is received.

Section 815 of the 2015 National Defense Authorization Act has removed the sunset provisions, providing permanent authority fo use of the Simplified Acquisition procedures for Certain Commercial Items. The DoD has issued a Class Waiver, dated 24 Dec 2014, which essentially directs DoD agencies to delete the corresponding sunset provisions in FAR paragraph 13.500 ( d ), until the FAR has been updated.

If DPAP wants to clearly apply the policy at DFARS 15.371 to the (Permanent) "Test Program" at FAR 13.5, I would hope that they would reinstate the language at 215.003 ( g ) that was deleted in the final rule earlier. I didnt see an open DFARS Case addressing this...

I also wonder if somebody will rename FAR 13.5 and related references to it or will it remain a permanent "Test Program", including reporting requirements concenring its usage.*

As an aside, the Civilian Agency Acquisition Council issued CAAC letter 2015-01 on 29 Dec 2014, authorizing those agencies to issue class deviations pending revision to FAR. http://www.acquisition.gov/comp/caac/caacletters/CAAC%20letter%202015-01.pdf

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  • 4 weeks later...
  • 1 month later...

Update: After discussions with a POC at OUSD (AT&L) DPAP/DARS, the following was pointed out:

Reference to DFARS 215.371-4 - Exceptions, specifically DFARS 215.371-4(a)(1) states "Acquisitions at or below the simplified acquisition THRESHOLD (emphasis given);" for a Waiver per DFARS 215.371-5.

The Simplified Acquisition PROCEDURES (emphasis given) is authorized under FAR Subpart 13.5.

FAR Subpart 13.5, specifically, FAR 13.500(a) states "This subpart authorizes, as a test program, use of simplified procedures for the acquisition of supplies and services in amounts greater than the simplified acquisition threshold but not exceeding $6.5 million ($12 million for acquisitions as described in 13.500(e)),

DFARS 215.371-4 provides an exception for acquisitions at or below the Simplified Acquisition THRESHOLD.

Reference to DFARS 215.371 – Policy it states “It is DoD Policy, IF only one offer is received in response to a competitive solicitation -

(a) To take the required actions to promote completion (see DFARS 215.371-2); and

(B ) To ensure that the price is fair and reasonable (see DFARS 215.371-3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4).”

DFARS 215.371-2 – Promote completion states “Except as provided in sections 215.371-4 and 215.371-5, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals (emphasis given), the contracting officer shall—“

Based on my understanding on the DFARS cited, the following conclusions are drawn:

1) IF a FAR Subpart 13.5 acquisition was competed > 30-days and only one offeror is received under an anticipated competitive solicitation you do not need to follow the guidance stated in DFARS 215.371. You still have a responsibility to ensure that the price is fair and reasonable.

2) IF a FAR Subpart 13.5 acquisitions was solicited < 30-days and only one offeror is received under an anticipated competitive solicitation you need to follow the guidance stated in DFARS 215.371.

3) Similarly to # 2, if the contracting agency decides to waive the requirement based on the situation stated in DFARS 215.371-2 – Promote completion (only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals). Then IAW DFARS 215.375(a) “The head of the contracting activity is authorized to waive the requirement at 215.371-2 to resolicit for an additional period of at least 30 days.”

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  • 3 weeks later...

DFARS 213.500-70 was just added by technical amendment. It reads:

213.500-70 Only one offer.

If only one offer is received in response to a competitive solicitation issued using simplified acquisition procedures authorized under FAR subpart 13.5, follow the procedures at PGI 215.371-2.

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  • 2 weeks later...

Thanks Don.

I reached out to someone at DPAP/DARS on the matter and they've acknowledge my concerns on the mater. The result is the update which you point out. It is good to know that DPAP/DARS actually responds to inquiries like mine :).

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Am I just being overly sensitive, or does the revision of the DFARS that Don noted on 21 April via technical amendment violate the requirement to obtain public input?

H2H

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  • 3 weeks later...

The DFARS coverage of “Only One Offer” has been confusing since the DAR Council implemented the Assad 2011 memo. It remains confusing despite, or because, of the 20 April “Technical Amendment” to DFARS 213.500.

The DFARS expresses the “Only One Offer” policy at 208.404 (a)(i), 213.500-70, 214.404-1, 215.371, and 216.505-70.

DFARS 213.500-70 appears not to require the issuance of a new solicitation if one receives only one offer after leaving a FAR 13.5 solicitation on the street for less than 30 days.

213.500-70 Only one offer.

If only one offer is received in response to a competitive solicitation issued using simplified acquisition procedures authorized under FAR subpart 13.5, follow the procedures at PGI 215.371-2.

The DFARS cite refers only to PGI 215.371, Only one offer. It does not refer to DFARS 215.371, Only one offer.

Here is the text of the PGI reference.

PGI 215.371 Only one offer.

PGI 215.371-2 Promote competition.

(a) For competitive solicitations in which more than one potential offeror expressed an interest in an acquisition, but only one offer was ultimately received, the Contracting Officer shall—

(1) Seek feedback (e.g., issue an RFI) after award from potential offerors expected to submit an offer; and

(2) Document any feedback received in the contract file.

(b ) Agencies shall use any feedback received when considering how to overcome barriers to competition for future requirements.

There is no requirement to resolicit expressed in the PGI 215.371. And, the DFARS 213.500-70 does not refer to DFARS 215.371.

However, DFARS 215.371 includes 6 paragraphs. One of them is paragraph 215.371-2:

215.371-2 Promote competition.

Except as provided in sections 215.371-4 and 215.371-5—

(a) If only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall—

(1) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b ) and 11.002); and

(2) Resolicit, allowing an additional period of at least 30 days for receipt of proposals; and

(b ) For competitive solicitations in which more than one potential offeror expressed an interest in an acquisition, but only one offer was ultimately received, follow the procedures at PGI 215.371-2 (DFARS/PGI view).

Another paragraph in DFARS 215.371 is paragraph (4), Exceptions. Paragraph (a)(1) says:

215.371-4 Exceptions.

(a) The requirements at sections 215.371-2 do not apply to—

(1) Acquisitions at or below the simplified acquisition threshold;

(2) Acquisitions in support of contingency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack;

(3) Small business set-asides under FAR subpart 19.5, set asides offered and accepted into the 8(a) Program under FAR subpart 19.8, or set-asides under the HUBZone Program (see FAR 19.1305©), the Service-Disabled Veteran-Owned Small Business Procurement Program (see FAR 19.1405©), or the Women-Owned Small Business Program (see FAR 19.1505(d));

(4) Acquisitions of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement; or

(5) Acquisitions of architect-engineer services (see FAR 36.601-2).

(b ) The applicability of an exception in paragraph (a) of this section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable.

2 questions.

Is the 20 April 2015 change to the DFARS designed to eliminate only for FAR 13.5 buys the requirement to resolicit when one receives a single offer after leaving a solicitation open for less than 30 days?

Or, is the 20 April “Technical Amendment” designed to add a requirement to FAR 13.5 procurements to get feedback and to document the file with the feedback?

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2 questions.

1. Is the 20 April 2015 change to the DFARS designed to eliminate only for FAR 13.5 buys the requirement to resolicit when one receives a single offer after leaving a solicitation open for less than 30 days?

2. Or, is the 20 April “Technical Amendment” designed to add a requirement to FAR 13.5 procurements to get feedback and to document the file with the feedback?

1. I don't think that it was clear before or after the technical amendment that the procedures at DFARS 215.371 applied to FAR subpart 13.5 acquisitions. Given the express reference to DFARS 215.371 at 208.404 (a)(i), 214.404-1, and 216.505-70, and the lack of an express reference at DFARS 213.500-70, one could argue that they do not.

2. Not sure what the technical amendment was designed to do, but it clearly did add the requirement to FAR subpart 13.5 acquisitions to get feedback and document the file with the feedback.

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If DoD wants the "Only One Offer" resolicitation policy to apply to FAR 13.5, one would think that the DAR Council would put the same kind of explicit statement in DFARS 13.5 as appears in DFARS 8.4, 214.404-1 and 216.505-70.

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I still think the rule needs to be clarified. If you look at the language from the proposed rule in Vern's post #3, it's clear they intended to apply the rule to FAR subpart 13.5 acquisitions. The only reason they didn't was because the test program had expired prior to the final rule being issued. Now that the authority in FAR subpart 13.5 is permanent, they should insert the explicit reference to DFARS 215.371 in DFARS subpart 213.5. If they do nothing, they should not be surprised when the GAO or the IG find that contracting activities aren't following the procedures at DFARS 215.371 for FAR subpart 13.5 acquisitions.

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