Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Greetings, I am having a hard time trying to find a answer to a simple question. My dilema is I released a LPTA RFQ on GSA for 2 types of vehicles along with training. The problem is the vendor with the lowest quote submitted a proposal with Open Market pricing for one of the vehicles and the training now i unsure if i can award to this vendor or do i need to publish this RFQ on the open market ie FBO. Any answers would be welcomed.

Link to post
Share on other sites

I found this in the FAR:

Open Market Items

In accordance with FAR 8.402(f), for administrative convenience, an ordering activity Contracting Officer may add items not on the GSA Schedule contract – e.g., open market items – to a GSA Schedule BPA or an individual task or delivery order only if:

  • All applicable acquisition regulations pertaining to the purchase of the items not on the Schedule contract have been followed (e.g., publicizing (FAR Part 5), competition requirements (FAR Part 6), acquisition of commercial items (FAR Part 12), contracting methods (FAR Parts 13, 14, and 15), and small business programs (FAR Part 19)
  • The ordering activity Contracting Officer has determined the prices for the items not on the Schedule contract are fair and reasonable
  • The items are clearly labeled on the order as items not on the Schedule contract
  • All clauses applicable to items not on the Schedule contract are included in the order
  • The ordering Contracting Officer has determined that the items are within the scope of the Schedule contract

It is important to recognize that GSA has only negotiated prices or determined prices to be fair and reasonable for those supplies and services that are awarded to Schedule contracts.Therefore, the ordering activity must comply with the requirements for full and open competition, by following all applicable acquisition regulations and determining price reasonableness for open market items.

Now do I have to meet all of those thresholds or can i just meet one such determining the price to be fair and reasonable.

Link to post
Share on other sites
Guest Vern Edwards

duke38:

What the heck are you asking about? Are you asking about open market "pricing" or open market purchases of items?

I know what open market purchases of items means. That's what is discussed in FAR 8.402(f). But you asked about "Open Market pricing" and a determination of fairness and reasonableness. I don't know what open market pricing means.

Does the quote include an item that is not on schedule? If so, you have more to be concerned about than a determination of fairness and reasonableness.

Link to post
Share on other sites

duke38:

What the heck are you asking about? Are you asking about open market "pricing" or open market purchases of items?

I know what open market purchases of items means. That's what is discussed in FAR 8.402(f). But you asked about "Open Market pricing" and a determination of fairness and reasonableness. I don't know what open market pricing means.

Does the quote include an item that is not on schedule? If so, you have more to be concerned about than a determination of fairness and reasonableness.

To make it simple i ordered 2 types of vehicles, one vehicle was on their GSA schedule and the other was not. Since one of the vehicles was not on their schedule but they supplied me with an open market price for that vehicle am i required now to reopen this RFQ on FBO?

Link to post
Share on other sites

Can you just issue an order to the next vendor that provided a acceptable (compliant) GSA quote? If you want this to award quickly and your RFQ supports, it may be the way to go.

EDIT* When an agency announces its intention to order from an FSS vendor, all items quoted and ordered are required to be on the vendor's FSS contract at the time the order is issued. AINS, Inc., B-405902.3, May 31, 2012, 2012 CPD ¶ 180 at 8.

See also - http://www.wifcon.com/pd8402.htm

Link to post
Share on other sites

Can you just issue an order to the next vendor that provided a complaint GSA quote? If you want this to award quickly and your RFQ supports, it may be the way to go.

We did not list this as a factor in the solicitation so i'm not sure it would be wise to eliminate the lowest price just for convenience. If there is a cheaper way to acquire these supplies outside of GSA i am all for it. I have no problem listing it on FBO I am just trying to get a definitive answer.

Link to post
Share on other sites

duke38,

You won't get a definitive answer unless you ask a definitive question. You know all the facts -- we don't.

You have to decide if you are going to buy your vehicles using Federal Supply Schedules or open market -- you may take your choice. You make that decision before you issue your solicitation.

Since you chose the FSS route, then it seems to me you cannot buy the second vehicle on the schedule order -- this isn't a matter of administrative convenience under FAR 8.402( f ). If the lowest-price FSS vendor didn't provide two vehicles from its schedule, then go to the next-lowest-price vendor. If you don't want to buy from a schedule vendor, then you need to cancel your FAR Subpart 8.4 FSS solicitation and issue a new FAR Part 13 open market solicitation.

If you go the open market route, then I suppose you will be over the synopsis threshold of $25,000 so a synopsis would be appropriate.

If you follow Jamaal's advice, you would not be eliminating the lowest price just for convenience -- rather, you would be honoring your solicitation and rejecting a non-compliant non-awardable quotation. There's nothing wrong with that approach.

Link to post
Share on other sites
Guest Vern Edwards
To make it simple i ordered 2 types of vehicles, one vehicle was on their GSA schedule and the other was not. Since one of the vehicles was not on their schedule but they supplied me with an open market price for that vehicle am i required now to reopen this RFQ on FBO?

The answer is no. You issued a solicitation to GSA schedule contractors for schedule items. You did not solicit quotes for open market items. Therefore, you cannot make an award for the open market item.

But you do not have to resolicit just because you received a quote for something that you did not ask for. How did that idea ever enter your head?

Is there anything in your RFQ that would prevent you from splitting the award, buying one vehicle from one quoter and the other from another?

Link to post
Share on other sites

To make it simple i ordered 2 types of vehicles, one vehicle was on their GSA schedule and the other was not. Since one of the vehicles was not on their schedule but they supplied me with an open market price for that vehicle am i required now to reopen this RFQ on FBO?

The answer is no. You issued a solicitation to GSA schedule contractors for schedule items. You did not solicit quotes for open market items. Therefore, you cannot make an award for the open market item.

But you do not have to re-solicit just because you received a quote for something that you did not ask for. How did that idea ever enter your head?

Is there anything in your RFQ that would prevent you from splitting the award, buying one vehicle from one quoter and the other from another?

I just automatically assumed i had to go open market as that's how this agency normally reacts to this particular situation. I did not put any language in my solicitation that discussed splitting this requirement, I have never seen such a thing done in the past. Would this be a viable option? Will i have to do a SOW to attach with each contract?

Edited by duke38
Link to post
Share on other sites
Guest Vern Edwards

I'm not sure if it would be a viable option in your case. When contracting under FAR Part 15, FAR 52.215-1 puts offerors on notice of the possibility of split awards. In your case a quoter might argue that had it known of that possibility it would have priced its quote differently.

Each order would have to include a specification.

Link to post
Share on other sites

You can only accept a Quote that is compliant with your solicitation. If your RFQ requested a product or service on the vendor's schedule contract, then if the vendor does not offer it on schedule you can not accept the Quote. The Quote is simply non-compliant. You go on to the next in line for selection.

Did you address whether you reserved the right to communicate with respondents prior to making a selection in your RFQ? Depending on the answer to that question, then you may be able to clarify with the vendor offering "open market pricing" whether their product or service is awarded on the schedule contract from which you solicited quotes. If they say no, you just go on to the next in line for selection. If no other Quotes are acceptable according to the selection criteria in your RFQ, you can request that each vendor revise their Quote and explain why you are asking the vendor to do so.

If the product or service is awarded on the vendor's schedule contract, then the question becomes, what does open market pricing mean? Does it mean I am offering you this at a price at or below what I am awarded on schedule, but I am quoting this as a non-schedule item? If that is the case, then I would suspect the vendor just didn't want to report the schedule sale, or comply with the terms and conditions that would bind them under their schedule contract. Does it mean my prices are higher than my prices on Schedule? If that is the case, then they lose, they are non-compliant.

The prices quoted in response to a schedule solicitation just have to be awarded on schedule and at or below awarded schedule prices. The important issue here is you can't accept a Quote that deviates from your solicitation.

Link to post
Share on other sites

Everyone that has previously posted is correct, but I can see where you might be confused. Let me attempt to simplify.

Can you just buy the open market item based on the response submitted?: No. Since it is a "vehicle", I am going to make the assumption it is greater than $25k, and per 8.402(f), you would have you to meet the solicitation and publicizing requirements for an open market item above $25k.

Can you just buy the one that is on Schedule and buy the other one from another offeror?: In my opinion, yes. As this is a Schedule buy, 52.212-1 was included in their original GSA solicitation and therefore is applicable to orders under it.

Can you just bypass the non-conforming offer and go to the second lowest?: In my opinion, yes. You do not have to accept an offer that includes open market items.

Nothing is "automatic". You have to make an assessment of the situation and the offers received, and make the best business decision for your organization.

Link to post
Share on other sites
  • 3 weeks later...
Guest Vern Edwards

It depends on the terms of your RFQ and what you mean by "GS schedule quote." If by "GS schedule quote" you mean a quote that is conditioned upon the terms of a GSA FSS/MAS contract, and if those terms are inconsistent with the terms of your RFQ, then the quote would be nonconforming to the terms of your RFQ. Don't you think that's obvious?

If it's nonconforming to the terms of your RFQ, and if you consider it and maybe make an award to that firm, don't you think the quoters whose quotes conformed to the terms of your RFQ would have grounds to protest?

Link to post
Share on other sites
Guest
This topic is now closed to further replies.
×
×
  • Create New...