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CharliD

Legal Impact of Solicitation Responses under IDIQ Contracts

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This is applicable to solicitation responses under IDIQ contracts. Most specifically MATOCs for construction services. I thought I knew this stuff until a supervisor wanted to issued RFQs under MATOCs because it was easier and more streamlined. I know that is the guidance, but how far does one take that? Maybe I am overthinking this, but I think a few factors need considered. Here is my thought process and rationale.

1. FAR Part 2 does not define Requests for Quotes (RFQ), specifically.
2. FAR Part 2 does define "solicitation." ""Solicitation" means any request to submit offers or quotations to the Government. Solicitations under sealed bid procedures are called "invitations for bids." Solicitations under negotiated procedures are called "requests for proposals. Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer.""
3. Simplified Acquisition Procedures are detailed in FAR Part 13. IAW FAR 13.004(a), a quotation is not an offer and cannot be accepted by the Government to form a binding contract (thus the order issued is an offer and the contractor accepts by commencing performance giving constructive acceptance).
4. Based on the definition of "solicitation" at FAR Part 2, can an RFP be issued under FAR Part 13 when an offer is desired rather than a quote? And can the Government accept the offer received to form a binding contract? Or is constructive acceptance required?
5. Does FAR Part 13 offer advice on when to use an RFQ vs. an RFP (I cannot find it)?
6. Since a certain amount of negotiation can happen under FAR Part 13, would use of an RFP only be appropriate when using evaluation factor other than price or price-related (FAR Part 15)?
7. Do thresholds play into the type of solicitation issued under an IDIQ contract?
8. Does the mere existence of an IDIQ contract automatically move the orders into the simplified acquisition arena?
9. FAR 16.505 paren b addresses placement procedures and does not address solicitation procedures, specifically. Is this semantics?
10. When an IDIQ contract is in place, can an RFQ be issued for projects exceeding the SAT (construction, non-commercial item)? And can the quote submitted be used for form a binding contract? Or is constructive acceptance required?

My opinion (prove me wrong via holes in my rationale/interpretation or regulation and case law):
1. Yes, an RFP can be issued under FAR Part 13, pulling in the applicable portions of FAR Part 15.
2. An RFP under FAR Part 13 should only be used if the Government wishes to incorporate evaluation factors other than price and price-related.
3. If the Government issues an RFP under FAR Part 13, then yes, the offer received can be used to form a binding contract and constructive acceptance is not required.
4. Yes, thresholds do have an impact on the type of solicitation issued under an IDIQ contract and the type of response received - legally binding or not (quote vs. bid/proposal) and negotiable or not (bid vs. quote/proposal).
5. The mere existence of an IDIQ contract does not automatically move the orders placed under it into the simplified acquisition arena.
6. An RFQ should not be used under an IDIQ contract if the Government wishes to receive legally binding responses (bids/proposals).
7. Just because the IDIQ includes a provision that required the contractors to provide a response (including "no bid" responses), that does not make the response binding of that response is a quote as requested by the solicitation (RFQ).

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CharliD:

Here are the questions you asked in your long post, along with my answers.

Based on the definition of "solicitation" at FAR Part 2, can an RFP be issued under FAR Part 13 when an offer is desired rather than a quote?

Yes.

And can the Government accept the offer received to form a binding contract?

Yes.

Or is constructive acceptance required?

No. Constructive acceptance is usually the result of a screw-up. Why would it ever be required?

When an IDIQ contract is in place, can an RFQ be issued for projects exceeding the SAT (construction, non-commercial item)?

Yes.

FAR 16.505 paren b addresses placement procedures and does not address solicitation procedures, specifically. Is this semantics?

I don't understand that question. Semantics is the study of meaning. Are you asking if the absence of any mention of solicitation procedures means something?

Does the mere existence of an IDIQ contract automatically move the orders into the simplified acquisition arena?

No.

Does FAR Part 13 offer advice on when to use an RFQ vs. an RFP?

No. As far as I know the terms "RFP" and "request for proposal" do not appear in Part 13, "request for quotations" appears only twice, and "RFQ" not at all.

Since a certain amount of negotiation can happen under FAR Part 13, would use of an RFP only be appropriate when using evaluation factor other than price or price-related (FAR Part 15)?

No. Why would you think that? An RFP could also be appropriate even if there were no evaluation factors other than price and price-related.

Do thresholds play into the type of solicitation issued under an IDIQ contract?

I presume that you mean dollar thresholds. If so, the answer is no.

And can the quote submitted be used for form a binding contract?

A quote can be used as the basis for negotiations, which can lead to a binding contract. In that sense a quote can be "used" to form a binding contract. But a quote cannot be accepted to form a binding contract.

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CharliD,

Are you trying to determine whether a solicitation issued under a multiple-award IDIQ contract is an RFQ or an RFP? If so, why does it matter?

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CharliD,

You must not even trouble yourself by asking if a solicitation issued under FAR 16.505 falls under Part 13 or Part 15. A notice of intent to make a purchase issued under FAR 16.505 is not a FAR Part 13 RFQ, is not a FAR Part 14 IFB, and is not a FAR Part 15 RFP.

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16.505 Ordering.

. ( b ) Orders under multiple-award contracts-

. ( 1 ) Fair opportunity.

. ( iii ) Orders exceeding the simplified acquisition threshold.

. ( b ) The contracting officer shall-

. ( 1 ) Provide a fair notice of the intent to make a purchase . . . to all contractors offering the required supplies or services under the multiple-award contract….

. ( iv ) Orders exceeding $5 million. For task or delivery orders in excess of $5 million, the requirement to provide all awardees a fair opportunity to be considered for each order shall include, at a minimum-

. ( A ) A notice of the task or delivery order that includes a clear statement of the agency’s requirements….

FAR 16.505( b ) Orders under multiple-award contracts, never uses the word “solicitation” to describe the document we send to multiple-award IDIQ contract holders when we are trying to get an offer that might result in a task order. Rather, it uses the word “notice.”

The original poster errs in thinking of his or her notices as solicitations, and then, thinking of them as solicitations, feeling he must categorize and treat them as RFQs under FAR Part 13 or RFPs under FAR Part 15 (why not IFBs under FAR Part 14?). All of this effort is a waste, unless he or she learns something -- that something will be that it is unnecessary for him or her to make any categorizations at all and that anyone errs in trying to impose FAR Part 13 or FAR Part 15 rules and procedures on solicitations/notices to multiple-award IDIQ contract awardees in a task order acquisition.

By using the word “notice,” I stay true to FAR 16.505( b ) (stay in your lane) and I help others understand correct principles. And I avoid the trap the original poster has fallen into.

p.s. I am not a purist in this matter. I acknowledge that the word “solicitation” is used in at least one place in the FAR to describe what FAR 16.505( b ) calls a "notice." But for teaching fundamentals and helping others understand correct principles, I choose to use the word “notice.” The FAR drafters could have used the word “solicitation” in FAR 16.505( b ), but they didn’t – I would assert that their decision was a conscious and purposeful decision, and I support that decision.

p.p.s. I hope this is helpful to the original poster.

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Ji, I understand the point you made, but it is nigh the time to be reclassifying our FAR 16 acquisitions from "solicitations" (or RFQ or RFTOP, or whatever) to "notices of intent to make purchase." It is so much easier to type one word or a short acronym to describe our purchases. Your NIMP change would result in millions of dollars in lost productivity.

All kidding aside, if your statement that “[t]he FAR drafters could have used the word 'solicitation,' … but they didn’t,” is true, why is “solicitation” mentioned just centimeters away under FAR Section 16.505(b )(1)((ii)(D )? Did those FAR drafters envision both a “notice of intent to make purchase” and a “solicitation” for each acquisition? I know we rarely see this, but could it instead have been a sloppy FAR writing where “notice of intent to make purchase” and “solicitation” are one in the same?

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As I read it, the word "solicitation" in FAR 16.505( b )( 1 )( ii )( D ) refers to the solicitation for the parent IDIQ contract, not the solicitation for the task order.

In all cases, FAR 16.505( b ) uses the word "notice" to refer to the solicitation for a task order -- it never uses the word "solicitation." RFTOP and TORP (and even RFQ and RFP) and all the other terms that are commonly in use are home-made by people who have made a choice not to use the word that the FAR uses. I prefer to use the FAR term rather than any of the home-made terms. How much lost productivity has already occurred and is still occurring by our inconsistent use of terms, and how much confusion (such as the original poster's confusion) is caused by using a word that the FAR doesn't use (such as "solicitation" for a fair opportunity consideration process) and then trying to categorize the "solicitation" as a RFQ or RFP? And then trying to bring FAR Part 13 or FAR Part 15 procedures into FAR 16.505( b )?

Clearly, as has been shown on other WIFCON threads, the 1102 community does not understand the fair opportunity process. The unwillingness of contracting officers, procurement analysts, and managers in contracting offices to read FAR 16.505( b ) and simply do what it says is part of the problem.

Initially, my own policy office objected to my using the word "Notice" in the header of my task order solicitations -- but they have stopped, because I'm doing exactly what the FAR says. They still don't like it, but I can cite scripture, so to speak (to the degree the FAR is our 1102 bible) for use of the word "notice" -- what scripture can be cited for RFTOP and TORP and all the other home-made terms?

Help me understand -- what is a NIMP change?

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jI20874:

Thanks for the references to "notice of intent to make a purchase." But your statement about the OP erring by calling a request for a task order quote or proposal a "solicitation" is a lot of hooey. Solicitation is common usage, well-established in practice, not prohibited by statute or regulation, not inconsistent with official terminology, and perfectly understandable. Both the GAO and the Court of Federal Claims have used the term "task order solicitation" on numerous occasions.

I didn't recognize "notice of intent to make a purchase" because it's too long and awkward to use and hardly anybody uses it but you. It is nothing more than a phrase. Unlike solicitation, it is not defined in FAR Part 2 or anywhere else in FAR. It appears in only two places in FAR, and is not used in any way that signifies that it rises to the level of official terminology. It's not the same as calling a supplemental agreement a change order or a statement of work a "scope" of work.

You're entitled to be persnickety. I'm persnickety mself. But I won't go along with saying that someone erred by not using your favorite terminology.

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ji20874,

While I appreciate and agree with your approach of distinguishing the words and terms used when using different contracting methods, I disagree that a "fair notice of the intent to make a purchase" is not a "solicitation". FAR 16.505( b )(1)(iii)( B ) implies that the purpose of the "fair notice" is to solicit offers:

The contracting officer shall—

(1) Provide a fair notice of the intent to make a purchase, including a clear description of the supplies to be delivered or the services to be performed and the basis upon which the selection will be made to all contractors offering the required supplies or services under the multiple-award contract; and

(2) Afford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.

FAR 2.101 defines "solicitation" as follows:

“Solicitation” means any request to submit offers or quotations to the Government. Solicitations under sealed bid procedures are called “invitations for bids.” Solicitations under negotiated procedures are called “requests for proposals.” Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer.

If you were to say that solicitations under the fair opportunity procedures at FAR 16.505 are called "fair notices of intent to make a purchase", I think that would be fine. However, you will have to come up with an acronym. Such an argument would also harmonize the use of "fair notice of intent to make a purchase" with the word "solicitation" at FAR 16.505( a )(4)(iii)( A ):

For an order in excess of $25,000, the contracting officer shall—

(1) Post the justification and supporting documentation on the agency Web site used (if any) to solicit offers for orders under the contract; or

(2) Provide the justification and supporting documentation along with the solicitation to all contract awardees.

If we go with your argument, we would have to conclude that this use of the word "solicitation" is a mistake.

The way I see it, all contract formation techniques (except for unsolicited proposals) in the FAR involve solicitation and response. We can use more specific words and terms to refer to each, depending on the contract formation technique used.

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Don,

I have written nothing that you need to disagree with. I never asserted that it is WRONG to call a task order solicitation a solicitation. Indeed, I referred to the notice as a task order solicitation myself, but explained why I generally choose to use the word "notice" instead of "solicitation" while admitting that I am not a purist in this matter. You are proving points that are irrelevant to the discussion.

Throughout this thread, my comments have been three-fold:

First, a task order solicitation is neither a RFQ under FAR Part 13 nor a RFP under FAR Part 15.

Second, FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

Third, I choose to use the term "notice" to describe a task order solicitation because I want to stay true to the FAR and to teach correct principles.

I am right in all of this. There is nothing for you to disagree with.

Vern,

But your statement about the OP erring by calling a request for a task order quote or proposal a "solicitation" is a lot of hooey.

I wish you read what I actually wrote. I wrote,

The original poster errs in thinking of his or her notices as solicitations, and then, thinking of them as solicitations, feeling he must categorize and treat them as RFQs under FAR Part 13 or RFPs under FAR Part 15 (why not IFBs under FAR Part 14?).

Why did you stop reading at the conjunction "and"? I think you know what the "and" means, and I can find some quotes from other postings you have made about the importance of reading "and" correctly. You erred in your interpretation of what I wrote.

Why are Don and Vern so offended that I would use the word "notice" instead of "solicitation"?

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Why are Don and Vern so offended that I would use the word "notice" instead of "solicitation"?

I don't know if Don was offended and, if so, why. Don can speak for himself. I was not offended. I was annoyed. There is a difference.

I was not annoyed because you use the word notice instead of solicitation. I was annoyed because you said that the OP erred.

I did not err in my interpretation what you wrote. Your sentence is properly interpreted to say: The OP erred in thinking of his notices as solicitations, and then errs in thinking that he must categorize them under Part 13 or 15. In other words: The errors (plural) are A and then B. That interpretation is justified because you put a comma in front of "and," which writers do to signify that what comes before and after the conjunction are independent clauses -- separate statements. Otherwise, you don't use a comma before a coordinating conjunction. If you had not put the comma in front of the conjunction you would have made a single statement: The error is jointly A and B. Which may be what you meant to say, but didn't. The A and then B interpretation of your sentence is further justified by the statements that preceded it, which provide context, and which imply that the use of the word solicitation in the connection with task orders is, in and of itself, inappropriate.

Since you mention the fact that you use notice instead of solicitation, I will point out that notify and notice and solicit and solicitation mean different things, and that solicit and solicitation are the appropriate words to use if you seek a response. A solicitation requests a response, which necessarily also puts the recipient on notice. But based on its common dictionary definition, a notice serves only to declare an intention, not to request anything. Legal procedure includes notices and of summonses. See Black's Law Dictionary, 9th. A summons gives notice and demands an appearance. A notice just gives notice.

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ji20874,

I'm not offended by anything that you have written. However, I interpreted your statement like Vern did (i.e., you were saying that the OP was wrong to refer to the notice as a solicitation). I don't think you effectively expressed what you meant.

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WOW! So my question stems from the practice of competing procurements (specifically construction) among multiple IDIQ contract holders and the instructions tell the contractors that the government will be following the solicitation procedures of FAR Part 13, 14 or 15. In my experience this has been typical. But if we do this, doesn't the type of solicitation procedures being followed and the response received affect whether or not that response is legally binding? And I just think (again, maybe over thinking) that the agency where I currently work is making the water very muddy by not being clear or consistent.

I do understand that the difference between a "notice of intent" to do something versus a solicitation for responses and the FAR 16.505 does not specifically require a solicitation, but I really do not know of any other viable way to receive responses that can be effectively evaluated for an award - in the construction world. Further, by issuing a solicitation we are not only obtaining competition, but are also satisfying fair opportunity.

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Maybe the answer lies in even attempting to apply solicitation procedures of FAR Parts 13, 14 or 15 to the procedures of Part 16. Maybe I'm just borrowing trouble, but if there is an issue it will be FAR Parts 13, 14 or 15 that provide guidance.

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CharliD,

So my question stems from the practice of competing procurements (specifically construction) among multiple IDIQ contract holders and the instructions tell the contractors that the government will be following the solicitation procedures of FAR Part 13, 14 or 15.

Stay in your lane. There is nothing in FAR 16.505( b ) that says your notice has to invoke the procedures of FAR Part 13, 14, or 15. You can if you want to, I recommend that you not make it a practice to include such language in your notices under FAR 16.505( b ), unless your parent IDIQ contracts require you to do so.

Or, there is nothing in FAR 16.505( b ) that says your notice solicitation has to invoke the procedures of FAR Part 13, 14, or 15. I recommend that you not include such language in your notices solicitations under FAR 16.505( b ).

You're asking good questions, and I hope someone reading all this is learning something. If all of this makes anyone go and read FAR 16.505( b ), that's a good step.

Vern,

Since you mention the fact that you use notice instead of solicitation, I will point out that notify and notice and solicit and solicitation mean different things, and that solicit and solicitation are the appropriate words to use if you seek a response. A solicitation requests a response, which necessarily also puts the recipient on notice. But based on its common dictionary definition, a notice serves only to declare an intention, not to request anything. Legal procedure includes notices and of summonses. See Black's Law Dictionary, 9th. A summons gives notice and demands an appearance. A notice just gives notice.

Wrong. In the context of FAR 16.505( b ), a notice affords the multiple-award contract holders the opportunity to repond to the notice and submit an offer for consideration. FAR 16.505( b ) consistently tells contracting officers to provide notices, and never uses the word "solicitation" in this context. Stay in your lane -- in this thread, we're talking about FAR 16.505( b ), not jurisprudence. In the context of FAR 16.505( b ), the notice is a solicitation (but not a Part 13 RFQ, Part 14 IFB, or Part 15 RFP). FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

pick one: TRUE FALSE

1. FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

pick one: TRUE FALSE

2. The notices required by FAR 16.505( b )( 1 )( iii )( B )( 1 ) and FAR 16.505( b )( 1 )( iv )( A ) are not solicitations and are not intended to result in contractor submission of offers for the Government's consideration. See Black's Law Dictionary, 9th.

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Wrong. In the context of FAR 16.505( b ), a notice affords the multiple-award contract holders the opportunity to repond to the notice and submit an offer for consideration. FAR 16.505( b ) consistently tells contracting officers to provide notices, and never uses the word "solicitation" in this context. Stay in your lane -- in this thread, we're talking about FAR 16.505( b ), not jurisprudence. In the context of FAR 16.505( b ), the notice is a solicitation(but not a Part 13 RFQ, Part 14 IFB, or Part 15 RFP). FAR 16.505( b ) never refers to a task order solicitation as a solicitation but instead consistently calls it a notice.

"Wrong"? Which of my statements in the quote to which you were responding was "wrong"? I don't mind being told that I'm wrong, but I'd like to know what you think I'm wrong about.

What I said was what "notice" means according to a common dictionary and a dictionary of legal terms of art. "Notice" is not officially defined, and FAR 1.108(a) says that when a word is not officially defined you should use the common dictionary definition. Then I said that on the basis of those definitions "solicitation" is more appropriate than "notice" for labeling a request for task order proposals. That's a matter of opinion, not fact. (Don made a pretty good argument for that opinion in Post #11.) I didn't say you couldn't use notice, if you prefer that word. I didn't say that using "notice" is wrong. I didn't say anything about FAR 16.505( b )'s use of the term. Was I "wrong" about the dictionary definitions of notice? Or did you mean to say that you disagree with my assertion about which word is appropriate? Is that what you meant by "wrong" -- that you disagree with me?

I'm interested in communicating as clearly as possible. I'm not concerned, in this case, with using the exact phrasing that appears in FAR, which FAR does not officially define. I think that "solicitation" communicates the government's intent more clearly than "notice." That's my opinion. So what did I say that was factually erroneous?

Lately you've taken to telling people, "Stay in your lane." I think that's a new thing with you, a little newer than your now-frequent use of a red font. You write it as an imperative sentence. An obnoxious command. I don't remember you saying it in the past. In your last post you said it to me. Well, you don't get to designate my lane. I'll comment from whatever lane I choose. I'll drive off road if I want.

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Another reference....WIFCON thread entitled "what is fair opportunity" find it yourself if interested. Makes me wonder if "notice" allows a response by a contractor where it would seem "solicit" or derivatives thereof would? And of interest the OP did not say if the question involved an existing contract (s) and if so what did the contract (s) call it, define it, etc.

My conclusion is that of the archived thread I have referenced, folks are still being driven crazy.

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Vern,

...based on its common dictionary definition, a notice serves only to declare an intention, not to request anything...

In the context of FAR 16.505( b ), you cannot rely on the common dictionary definition of notice. In the context of FAR 16.505( b ), the notice certainly is intended to provide an opportunity for multiple-award IDIQ contractors to submit an offer for the Government's consideration.

Don't you agree, in the4 context of FAR 16.505( b )?

I don't object to using the word "solicitation" to describe the notice required by FAR 16.505( b )( 2 )( iii )( B )( 1 ) or ( iv )( A ) -- my caution throughout has been not to take the next step and classify the solicitation as a Part 13 RFQ, Part 14 IFB, or Part 15 RFP.

But you seem to object to my use of the word "notice" in the context of FAR 16.505( b ), even though that is the exact word used in the FAR. The FAR calls it a notice, and I call it a notice.

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ji20874:

Oh. So I wasn't "wrong" about anything. Glad to hear it. I guess you misspoke.

Please pay attention. The disagreement between you and me began when you said that the OP erred in thinking of his "notices" as "solicitations". See Post #10. (I know that you say that you didn't mean that, but I have already explained my interpretation of your statement. Don interpreted it as I did, but we arrived at our interpretations independently.) My points have been that "solicitation" is an entirely appropriate word to use in association with prospective task orders, that such usage is widely and well-established in practice and more common than "notice", and that in my opinion it communicates the government's intent more clearly than "notice".

I don't object to your use of the word "notice". In my opinion you are too doctrinaire (and somewhat idiosyncratic) in that regard, but do as you please. I did not say that you are wrong to do so. I don't care what you or anyone else calls the communication that agencies send out in order to solicit task order proposals. I never thought that it was an issue until you seemed to make it one. Like you said in your last post, I think CharliD's mistake was in believing the terms RFQ and RFP to be inextricably associated with the procedures in FAR Part 13 and FAR Part 15. What I objected to was you telling the OP that she made a mistake when she used a perfectly legitimate alternative to "notice". I also object to your obnoxious command to "Stay in your lane," whether directed at me or anyone else.

That's all.

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This has been an interesting discussion. The most embarrassing part is that I'm not really new to this field, yet based on my previous experience I had become confused about this stuff. Annoying. Regardless, I hope that for truly novice contract types, this discussion has provided some useful insight, rationale and suggestions.

After referring her to this string, as well as Vern and C Culhams recommended readings, I am recommending the following to my boss.

We should seriously re-vamp our solicitation and response evaluation procedures in the MATOC. In fact, maybe we want to resolicit the base IDIQs and allow the current ones to expire.

We should get rid of all references to FAR Parts 13, 14 and 15 and all terminology such as RFQ, quote, quotation, sealed bid, bidder, IFB, RFP, etc.

We should use terms like solicitation (while I hear/understand ji20874's position, contractors understand the term solicitation much better), response and contractor. We should also state that responses will be evaluated to determine which ones are most advantageous to the Government. That negotiations, if held, will be at the sole discretion of the government and may or may not be held with all contractors that respond to the solicitation.

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