Limits of Market Research for FAR 8 Buys

[Marine_1]

We've had an ongoing internal debate that, as a DOD agency, we're bound to use only e-Buy for our GSA service requirements. I've contended that FAR 8.405 provides the PCO latitude to rely on market research (documented) to support rationale for limited distribution of an RFQ with the objective of receiving and evaluating three (minimum) viable offers. We've use the RFI process with the caveat that only respondents to the RFI would be issued any resulting RFQ. Typically, we've been able generate requirements such that ~50% of RFI responsdents receive the RFQ with a reasonable shot at award. This makes the response volume more competitively viable, as well as more manageable in the evaluation process. Again, it is my opinion that we have met the intent of both FAR and DFARS guidance, preserved the judgmental sanctity of the PCO in doing so, and stand a better shot at soliciting a quality product from the marketplace with this approach. While I see some value in the e-Buy medium itself, in my opinion simply broadcasting a requirement into the marketplace doesn't always ensure you will receive viable responses, unless you're metric is simply one of volume. Given the scenario, my question is two-part: 1) If we continue with our current method of leveraging market research as the basis for our RFQs, are we in violation of standing regulations, and 2) is there a DOD interpretation of FAR 8 that limits a PCO's judgment in selecting a business course of action?

[formerfed]

I agree with your approach providing you are consider a reasonable number of sources in your initial market research/RFI. As long as you receive competitive responses from a number of sources (ideally three or more) and the file is well documented with the market research results, it makes good sense. The PCO should have judgement in how they decide on a course of action.

[Don Mansfield]

What makes you think that you have to use e-Buy?

[Marine_1]

What makes you think that you have to use e-Buy?

The original guidance that came out with the 803 legislation codified at DFARS 208.405-70 c 1, which leaves that matter somewhat open-ended. Counsel has interpreted this to mean that all GSA requirements must be provided to the largest number of Schedule holders capable of submitting an offer, issuing advisory guidance to do so via eBuy. GSA has not helped matters in their marketing of eBuy as a panacea for ensuring maximum competition. Such is the chain of interpretation that ends at the contract specialist.

[Don Mansfield]

Marine_1,

Here is the rule:

( c ) An order exceeding $100,000 is placed on a competitive basis only if the contracting officer provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the contracting officer will make the selection, to--

(1) As many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that offers will be received from at least three contractors that can fulfill the requirements, and the contracting officer--

(i)(A) Receives offers from at least three contractors that can fulfill the requirements; or

( B ) Determines in writing that no additional contractors that can fulfill the requirements could be identified despite reasonable efforts to do so (documentation should clearly explain efforts made to obtain offers from at least three contractors); and

(ii) Ensures all offers received are fairly considered; or

(2) All contractors offering the required supplies or services under the applicable multiple award schedule, and affords all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.

Where does it say "that all GSA requirements must be provided to the largest number of Schedule holders capable of submitting an offer"?

[Marine_1]

Marine_1,

Here is the rule:

Where does it say "that all GSA requirements must be provided to the largest number of Schedule holders capable of submitting an offer"?

It doesn't - it comes down to interpretation and judgment. The operative aspects of the rule are 'practicable' and 'consistent with market research.' Some of our PCOs and in some instances Counsel, have conservatively embraced the latitude in the guidance and simply interpreted it to mean post it so everyone on eBuy can have a shot. I completely disagree with the interpretation and the business logic.

[Don Mansfield]

Given the scenario, my question is two-part: 1) If we continue with our current method of leveraging market research as the basis for our RFQs, are we in violation of standing regulations, and 2) is there a DOD interpretation of FAR 8 that limits a PCO's judgment in selecting a business course of action?

1) Not necessarily. As long as you comply with DFARS 208.405-70( c ) for orders exceeding $100,000, you will not be in violation of anything.

2) No.

Any attorney who reads DFARS 208.405-70( c ) and interprets it to mean "that all GSA requirements must be provided to the largest number of Schedule holders capable of submitting an offer" is a dumbass. No competent CO would follow that advice.

[jason_a]

Marine, I can tell you that other DOD organizations are not reading it that way. Also, another way to read that is you do market research to make sure you get at LEAST three, it doesn't say you need to place it on EBuy and get 30.

Lawyers are for advice, a good lawyers advice is invaulable, but not all are good. A CO shouldn't agree just because a lawyer says something.