rmeman2k Posted August 25, 2009 Report Share Posted August 25, 2009 Issue: My organization has awarded two 5 year Firm Fixed Price (FFP) Indefinite Delivery Indefinite Quantity (IDIQ) production contracts in accordance with FAR 16.5. Awardees are provided a fair opportunity to be considered for each order. Problem: One contractor submits a response to the notice of fair opportunity to compete that is significantly superior to the other but the government wants to issue some quantity to both offerors to: a) Maintain properly balanced sources of supply Maintain competition c) Maintain multiple sources in case of industrial mobilization Possible solution: a) Use a D&F in accordance with FAR 6.202 Use a J&A in accordance with FAR 6.302-3 This issue occurs often, I would like some thoughts on this matter. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted August 25, 2009 Report Share Posted August 25, 2009 You won't need either a D&F or a J&A pursuant to anything in FAR Part 6, because Part 6 does not apply to the issuance of orders under an IDIQ contract. Did you notify the contractors of the possibility of a split award before they prepared their proposals? If not, you might have a problem. The contractors may have priced based on the entire quantity and might not be willing to stick with their prices if the award will be for less than that. There should be no problem with split awards if you notify the contractors of that possibility in advance. Link to comment Share on other sites More sharing options...
Guest carl r culham Posted August 25, 2009 Report Share Posted August 25, 2009 Vern - Is your reference to "proposals" with regard to task/delivery orders or the IDIQ contracts? Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted August 25, 2009 Report Share Posted August 25, 2009 Vern - Is your reference to "proposals" with regard to task/delivery orders or the IDIQ contracts? The orders. But it is also true in the case of contracts, in which case the notice is provided in a standard FAR provision. See, e.g., FAR 52.215-1(f)(5) and (6). Link to comment Share on other sites More sharing options...
rmeman2k Posted August 25, 2009 Author Report Share Posted August 25, 2009 The orders. But it is also true in the case of contracts, in which case the notice is provided in a standard FAR provision. See, e.g., FAR 52.215-1(f)(5) and (6). Vern, To follow-up, the initial thought was to use the provisions of FAR 6.202 or 6.302-3 as justification for awarding to both contractors but since Part 6 does not apply in making a split award delivery order the problems are ? a) How does one rationalize the quantity split (i.e. 60/40, 70/30, 75/25) of the split awards? How does one justify buying from the higher priced offeror? Link to comment Share on other sites More sharing options...
Guest carl r culham Posted August 26, 2009 Report Share Posted August 26, 2009 Vern - You might be saying what I understand to be appropriate but I am confused by your response "the orders". Specifically, I would offer that it would only be appropriate for orders to be split as long as the IDIQ contract stated allowance for such a selection process. If the fair opportunity order placement procedure clause of a set of multiple award IDIQ's does not allow for split selection of awardees for a single order it seems to me that then enlisting a split award process for a specific delivery/task order need is in conflict with the IDIQ contract terms and conditions. So are we holding the same opinion that if the IDIQ contracts say it is okay, it is okay? Or, are you saying that even it the IDIQs do not say split awards of a task/delivery order may be made a split award can be made on a specific order and if so how do you get there if the IDIQ terms and conditions does not state that split awards may be made? Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted August 26, 2009 Report Share Posted August 26, 2009 Vern - You might be saying what I understand to be appropriate but I am confused by your response "the orders". Specifically, I would offer that it would only be appropriate for orders to be split as long as the IDIQ contract stated allowance for such a selection process. If the fair opportunity order placement procedure clause of a set of multiple award IDIQ's does not allow for split selection of awardees for a single order it seems to me that then enlisting a split award process for a specific delivery/task order need is in conflict with the IDIQ contract terms and conditions. So are we holding the same opinion that if the IDIQ contracts say it is okay, it is okay? Or, are you saying that even it the IDIQs do not say split awards of a task/delivery order may be made a split award can be made on a specific order and if so how do you get there if the IDIQ terms and conditions does not state that split awards may be made? We definitely agree that if the IDIQ contract says it's okay to split awards, then it's okay. But I do not think that if the IDIQ contract is silent, then it's not okay. What I would say is this: Whether or not it's okay depends on what the contract says. I would not construe silence in the contract to be a prohibition. I do not think that an IDIQ contract must include a positive statement permitting split awards in order for a CO to split awards. All a CO would have to say is that the agency plans to buy a quantity of units and will issue two orders to make the buy. A single competition will be held, and the agency will select two contractors and issue one order to each. Any challenge by a contractor would have to assert that such an action is a breach. I read nothing in FAR 16.505 that prohibits such an approach. Link to comment Share on other sites More sharing options...
Guest carl r culham Posted August 26, 2009 Report Share Posted August 26, 2009 Vern - Thanks your clarification helps. Link to comment Share on other sites More sharing options...
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