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Posting of SAP sole source requirements

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I’m soliciting under FAR Part 13 for commercial services buy valued over $25,000 but under SAT.  It is a sole source requirement (not Brand Name). 

 

Issue 1:  Let's say I post the pre-solicitation notice to the GPE and wait for the required notice time to pass; do I then need to post a copy of the solicitation?  Or does the pre-solicitation notice count as the solicitation in the case of sole source SAP requirements? 

 

After the pre-sol synopsis period has ended, can I negotiate directly with the intended awardee, or do I need to post the actual solicitation to the GPE as well?  (Just to cover my bases, for this particular example, I do NOT wish to issue a combined synopsis/solicitation.)

 

Issue 2:   If both a pre-sol synopsis and a solicitation posting are required, can the timeframes for both the synopsis and RFQ posting be shortened?

 

FAR 5.203 (a) says, “[…]The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may— (1) Establish a shorter period for issuance of the solicitation; or (2) Use the combined synopsis and solicitation procedure (see 12.603).” 

 

Am I correct that this paragraph allows for shortening the period a pre-sol synopsis for commercial items needs to be on the street?

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1 hour ago, wifcon123 said:

Issue 1:  Let's say I post the pre-solicitation notice to the GPE and wait for the required notice time to pass; do I then need to post a copy of the solicitation?  Or does the pre-solicitation notice count as the solicitation in the case of sole source SAP requirements? 

You need to post a copy of the solicitation to the GPE IAW FAR 5.102(a).

1 hour ago, wifcon123 said:

After the pre-sol synopsis period has ended, can I negotiate directly with the intended awardee, or do I need to post the actual solicitation to the GPE as well?  (Just to cover my bases, for this particular example, I do NOT wish to issue a combined synopsis/solicitation.)

You need to post a copy of the solicitation to the GPE IAW FAR 5.102(a). There is no prohibition on negotiating with the intended source after the pre-solicitation period has ended.

1 hour ago, wifcon123 said:

Issue 2:   If both a pre-sol synopsis and a solicitation posting are required, can the timeframes for both the synopsis and RFQ posting be shortened?

Am I correct that this paragraph allows for shortening the period a pre-sol synopsis for commercial items needs to be on the street?

Yes, you are correct. The timeframes can be shortened.

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Don,

I knew you'd say that.  Have you read Digitalis Education Solutions, Inc. v US, CAFC 2011-5079, 01/04/2012?  In Digitalis, CAFC wrote:

Quote

In a sole-source award such as this one, the notice of intent issued by the government is analogous to a request for proposal.  Interested parties are invited to submit statements of capability in order to convince the government that it should hold a full competition for the contract rather than sole-source the contract to the proposed contractor.  We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period.  Failure to do so also means that a party does not have the requisite direct economic interest...

Say you have a rock-solid noncompetitive justification.  You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does.  You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says.  An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere.  What should you do?  

Edited by GeoJeff
Changed "COFC" to "CAFC" to correct typo

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No intent to derail the discussion regarding required notices regarding synopsis and solicitation but to keep this discussion clear it would appear that the procurement is with regard to a single source (FAR 13.106-1) and not a sole source.

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4 hours ago, C Culham said:

No intent to derail the discussion regarding required notices regarding synopsis and solicitation but to keep this discussion clear it would appear that the procurement is with regard to a single source (FAR 13.106-1) and not a sole source.

Agreed, but I'm not sure that's relevant to the instant discussion.  5.102(a)(1) says in relevant part: "Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE...", which would apply equally to a noncompetitive 13.106-1, $26K action and a sole-source 6.302-1, $26M action.  I agree with Don that the plain language is, well, quite plain...however Digitalis calls into question what the purpose of posting a noncompetitive/sole source solicitation would be.  

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On 4/11/2016 at 3:00 PM, GeoJeff said:

Say you have a rock-solid noncompetitive justification.  You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does.  You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says.  An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere.  What should you do?  

Assuming you're using SAP, wouldn't your synopsis have to contain the statement at FAR 5.207( c )(16)(i): "all responsible sources may submit a quotation which shall be considered by the agency." If so, how could a source submit a quotation without seeing the solicitation?

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On ‎4‎/‎11‎/‎2016 at 5:00 PM, GeoJeff said:

Say you have a rock-solid noncompetitive justification.  You post a notice of intent for a reasonable period of time and there is a deadline for other potential sources to submit capabilities statements, and nobody does.  You prepare the solicitation without competitive evaluation criteria, email a copy to the intended awardee, and post a copy to FBO because of what FAR 5.102(a) says.  An hour before the quotation submission deadline, you receive a competitive quotation from another company out of nowhere.  What should you do?  

If this happened you would have to consider it.  If the interested party could provide what was required by the solicitation, the solicitation would have to be amended to include the evaluation criteria (basis upon which award would be made) in it.  Additional time should be provided for receipt of quotes (affords firms the opportunity to provide revised quotes if desired based on new evaluation criteria).  The firm with which you intend to contract with on a single source basis should respond to the quote just like anyone else.  If the price quoted can otherwise be determined to be fair and reasonable, there may not be a need to negotiate.

While a CO may think a justification is "rock-solid", the market may disagree and prove the CO and customer wrong.  I've seen some COs post an intent to negotiate with a single source, but not even post a solicitation.  Seems to me they are trying to avoid competition, which generally leads to higher costs for the Government.  If the justification is rock-solid, the CO should not expect to see interest from any other firms and should have no concern with posting the solicitation for a reasonable period of time.

If it were me, I would establish a date by which any quotes or capability statements would have to be received.  If I received none, I would proceed with negotiating a contract with the intended source, but only after the due date.  I would establish a shorter date if reasonable when otherwise permitted by the FAR.  If the requirement is not urgent or compelling, there shouldn't be a need to proceeding prior to the due date and potentially complicating matters.

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So what is wrong with this?  

No consideration given to agency specific regulations.

Need is over $25,000 and under the SAT.  Not brand name.

The needs notice inclusive of the fact that a single source (FAR 13.106-1)is being solicited for pricing  is posted in FBO.  Solicitation is posted and indicated as “for information only”.

I send the “solicitation” to the single source and no one else.  Again reference FAR 13.106-1 which says I can solicit from a single source along with FAR Part 2 definition of “solicitation”. 

Others might respond with an actual response to the solicitation or indicate that they want to respond to the solicitation yet , I react as I wish (and as supported by my documentation)  but there is no requirement to include the others that did respond.  In effect the posting was just complying with FAR Part 5 with nothing in FAR Part 5 saying I must consider their responses.   If I have made a good case through file documentation for my reasoning to “solicit” a single source, and it withstands what the posting in FBO might produce, then so be it.

Stated another way yes I post the need in FBO and the fact that it is a single source procurement but follow the FAR that says I can solicit from ”one source”.

http://www.wifcon.com/pd13_1061b.htm

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2 hours ago, Don Mansfield said:

Assuming you're using SAP, wouldn't your synopsis have to contain the statement at FAR 5.207( c )(16)(i): "all responsible sources may submit a quotation which shall be considered by the agency." If so, how could a source submit a quotation without seeing the solicitation?

Yup, that's what it says; the plain language is plain.  And if you're using 6.302-1, 5.207( c )(16)(ii) requires a statement "...all responsible sources may submit a capability statement, proposal, or quotation which shall be considered by the agency."  

Regardless, for the purposes of framing this question, I think the question regarding timelines and appropriate action is largely the same.  Assume the synopsis is posted 4/15/16, and says:

"Agency X intends to (negotiate on a sole source basis with/award a noncompetitive contract to) in accordance with FAR (whichever applies) company Y for service Z because (they are great.)  Any other interested party may submit a capability statement by the closing date of this announcement, which is 5/1/16, which shall be considered by the agency for the purposes of determining whether to hold a competition or proceed with a noncompetitive action."  

5/1/16 comes and goes and nobody responds.  

5/2/16 the agency releases the solicitation.  For the purposes of this question, it doesn't really matter whether it's posted or not.  5/5/16 some other company finds the solicitation, either on FBO if it was posted in accordance with 5.102(a), or via email from the CO if they just heard about it through the grapevine.  They review it and respond with the usual "hey, we can do that!"  The language in Digitalis would have me believe that it would be appropriate to tell this other company that they are too late and has missed its chance.  Digitalis:  "We therefore hold that in order to be an actual or prospective bidder, a party must submit a statement of capability during the prescribed period."

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GeoJeff,

I don't think your hypothetical synopsis complies with FAR 5.207(c)(16). If you're using SAP and soliciting a single source, you need to include a statement that "all responsible sources may submit a bid, proposal, or quotation which shall be considered by the agency." If you're using the sole source authority at FAR 6.302-1, then you need to include a statement that "all responsible sources may submit a capability statement, proposal, or quotation, which shall be considered by the agency." I don't see either of those statements in your notice.

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26 minutes ago, GeoJeff said:

Yup, that's what it says; the plain language is plain.  And if you're using 6.302-1, 5.207( c )(16)(ii) requires a statement "...all responsible sources may submit a capability statement, proposal, or quotation which shall be considered by the agency."  

Part 6 does not apply to SAP procurements (FAR 6.001(a)).  So that exception could not be cited for the example given.  Instead, the synopsis would need to include what is required by FAR 5.207(c)(16)(i) "Except when using the sole source authority at 6.302-1, insert a statement that all responsible sources may submit a bid, proposal, or quotation which shall be considered by the agency."  It doesn't say anything about a capability statement.  How can anyone submit a quote based on a pre-solicitation notice and not the solicitation (RFQ)?  I don't understand the aversion to posting the solicitation and considering quotes from other's that say "wait, we can do that too".

 

30 minutes ago, C Culham said:

In effect the posting was just complying with FAR Part 5 with nothing in FAR Part 5 saying I must consider their responses. 

What about 5.207(c)(16)(I) quoted above?  Also, what about 13.105 which states "The contracting officer must comply with the public display and synopsis requirements of 5.101 and 5.203 unless an exception in 5.202 applies."  FAR 5.203 (Publicizing and response time) deals with not only the notice of the proposed action, but the solicitation of quotes as well.

 

Maybe I'm wrong on this, but I don't see how someone can quote without having a solicitation or where the CO can ignore timely responses to a synopsis and solicitation.

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14 hours ago, Todd Davis said:

Part 6 does not apply to SAP procurements (FAR 6.001(a)).  So that exception could not be cited for the example given. 

FAR 5.207(c)(16)(i) does not say IAW Part 6, it says “using the sole source authority at 6.302-1”.  The authorities cited at 6.302-1 are 10/41 USC xxx which may be applicable to the Part 13 acquisition.

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ji20874:

Wouldn't they need a 5.202 exception to solicit orally (without satisfying posting requirements)?

How would an oral solicitation help in this situation?

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24 minutes ago, jwomack said:

FAR 5.207(c)(16)(i) does not say IAW Part 6, it says “using the sole source authority at 6.302-1”.  The authorities cited at 6.302-1 are 10/41 USC xxx which may be applicable to the Part 13 acquisition.

The authorities cited at 10 USC 2304(c) and 41 USC 3304(a) never apply to acquisitions using simplified acquisition procedures at Part 13.  Part 6 implements CICA (PL 98-369; see Sec 303 and 2723)  which requires "full and open competition", save authorized exceptions listed in the law.  Part 6 does not apply to actions using SAP.  Full and open competition is not required for acquisition using SAP.  Rather, competition to the maximum extent practicable is required (10 USC 2304(g) implemented by FAR 13.104). 

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17 hours ago, Don Mansfield said:

GeoJeff,

I don't think your hypothetical synopsis complies with FAR 5.207(c)(16). If you're using SAP and soliciting a single source, you need to include a statement that "all responsible sources may submit a bid, proposal, or quotation which shall be considered by the agency." If you're using the sole source authority at FAR 6.302-1, then you need to include a statement that "all responsible sources may submit a capability statement, proposal, or quotation, which shall be considered by the agency." I don't see either of those statements in your notice.

OK, assume we're using SAP and soliciting a single source.  I shall amend my hypothetical synopsis to the following:

"(Agency X) intends to solicit a quotation on a single source basis IAW FAR 13.106-1(b)(1)(i) from (company Y) for (product/service Z.)  Company Y is the only source reasonably available to fulfill this requirement under the circumstances because (reasons).  IAW FAR 5.207(16)(i), all responsible sources may submit a quotation which shall be considered by (Agency X).  The request for quotation will be available on or after 01 May 2016."

You post that synopsis on 15 April 2016 and let it sit for 15 days.  Nobody responds.  You prepare your RFQ but don't include evaluation criteria or quotation submission instructions and post it to FBO IAW 5.102(a) on 02 May 2016.  Company Y has told you they need a week to put together a price quotation, so you leave the RFQ open for a week, closing 09 May 2016.  On 08 May, out of nowhere, company A emails you a quotation.  It may or may not (likely not) contain any meaningful information because you haven't included evaluation criteria or quotation submission instructions in the RFQ.  The synopsis advised that any quotation submitted "shall be considered by Agency X," and 13.106-2(a)(3) says "all quotations...shall be considered."  So the question is - on what basis and/or to what  extent are we "considering" this other quotation?  We have not provided evaluation criteria suitable for a competitive environment in the RFQ.  Must we amend the RFQ to include competitive evaluation criteria and re-release, as Todd Davis suggested yesterday?  I think that's certainly a safe way to proceed.  Or may this other quotation be "considered" by saying "no thanks?"  

I have practical reasons for this mental exercise that are systems related.  Our procurement system (PRISM) allows one to post the "notice of intent" we've been discussing above to FBO either as a "special notice" or as a "presolicitation notice."  As a practical matter, prospective contractors go looking for competitive opportunities by searching for presolicitation notices and combined synopsis/solicitations in FBO, not by reading special notices.  When something shows up as a presolicitation, they think it's competitive.  PRISM will not allow us to attach a solicitation to a special notice - a solicitation must first be announced via a presolicitation notice or it will not "release" to FBO.  So we're stuck between a rock and a hard place; when we use the special notice as we've been trained to do, and which seems more intuitive to vendors, we then can't post the solicitation IAW FAR 5.102(a).  If we use the presolicitation notice, prospective contractors often don't notice the presolicitation text and think they have a competitive opportunity, so we get junky quotes that aren't responsive and are then bound to "consider" them in some way.  This is compounded by the fact that PRISM uses a proprietary portal called FedConnect, and the FBO announcement directs prospective contractors to FedConnect "for more information about this opportunity."  When they get there, if they register with FedConnect, there is a "quote" button, where they can enter a price and hit submit.  And bless their hearts, some specialists at my agency try to comply with 5.102(a) by first posting a special notice that says "notice of intent to award...," then after that closes, they post essentially a blank presolicitation notice that references the previous special notice so they can get the RFQ in FBO.  If the vendor notices that, he's got to work really hard to find the referenced notice of intent, so he legitimately thinks there is a competitive RFQ available to him, and with no stated evaluation criteria, it looks like low price gets the job.  

I'm looking for a practical solution to these problems.  

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4 hours ago, Jamaal Valentine said:

ji20874:

Wouldn't they need a 5.202 exception to solicit orally (without satisfying posting requirements)?

How would an oral solicitation help in this situation?

I see the FAR 5.202 exceptions as applying to synopsis, not solicitation posting.  An oral solicitation under FAR Part 13 might still need a pre-solicitation synopsis (unless one of the FAR 5.202 exceptions apply).  Under FAR Part 13, the contracting officer shall solicit quotations orally to the maximum extent practicable all the way up to the simplified acquisition threshold -- see FAR 13.106-1( c )( 1 ).  A written solicitation under FAR Part 13 under the simplified acquisition threshold is only needed if obtaining electronic or oral quotations is uneconomical or impracticable, or for construction over $2,000 -- see FAR 13.106-1( d ).  If a written solicitation exists, FAR 5.102( a ) will suggest that the solicitation should be posted to FedBizOpps, but FAR 5.102( a ) does not require the creation of a written solicitation.

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30 minutes ago, GeoJeff said:

Must we amend the RFQ to include competitive evaluation criteria and re-release, as Todd Davis suggested yesterday?  I think that's certainly a safe way to proceed.  Or may this other quotation be "considered" by saying "no thanks?"

First, I think the RFQ should contain instructions on what to include in a quotation. That way, you won't get crap.

If I ended up getting a quote that I didn't expect, I would re-evaluate my determination that "the circumstances of the contract action deem only one source reasonably available." If, based on my consideration of the quote, that were no longer true, then I would amend the RFQ to include evaluation criteria. Alternatively, I could have included the evaluation criteria in the RFQ--it's SAP so it shouldn't be that big a deal. If my re-evaluation of the quote didn't change my original determination, then I would say "no thanks".

As far as the problem with your system, I don't think you should be using a special notice for posting the intent to negotiate with a sole source. According to FAR 5.205( c ), the special notice is for publicizing "business fairs, long-range procurement estimates, prebid or preproposal conferences, meetings, and the availability of draft solicitations or draft specifications for review." I think you need to issue the presolicitation notice required by FAR 5.207.

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A synopsis is not just a pre-solicitation notice only.  It also includes the solicitation itself.  Of course, when the combined synopsis/solicitation procedure is used they are done at the same time.

5.102 Availability of solicitations. (a)(1) Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE, including specifications, technical data, and other pertinent information determined necessary by the contracting officer.

Also, see 5.207(c) regarding the content of a synopsis.

(12) For a proposed contract action in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold, enter—

     (i) A description of the procedures to be used in awarding the contract (e.g., request for oral or written quotation or solicitation); and

     (ii) The anticipated award date.

(17) If solicitations synopsized through the GPE will not be made available through the GPE, provide information on how to obtain the solicitation.

(19) If the technical data required to respond to the solicitation will not be furnished as part of such solicitation, identify the source in the Government, such as http://www.fedbizopps.gov/, from which the technical data may be obtained.

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Todd,

A synopsis under FAR 5.203( a ) does not and cannot include the solicitation -- that paragraph itself says the notice (synopsis) occurs at least 15 days before solicitation issuance.

The posting of the solicitation under FAR 5.102( a )( 1 ) must necessarily occur at least 15 days after the pre-solicitation notice under FAR 5.203( a ).  The 15 day period can be shortened for commercial items.

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5 minutes ago, ji20874 said:

Todd,

A synopsis under FAR 5.203( a ) does not and cannot include the solicitation -- that paragraph itself says the notice (synopsis) occurs at least 15 days before solicitation issuance.

I re-read FAR 5.2 and agree with you. 

The bottom line is when a written solicitation is used, it must be posted to the notice or instructions provided on how to obtain it 5.102(c)(17).  My whole point has been that it is not enough to just post a notice and not a solicitation to which potential quoters can respond.  Much of this discussion seem to have been how to get around that.

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Yes -- if a written solicitation exists (FAR 13.106-1( d )), and if a FedBizOpps pre-solicitation synopsis occurs (FAR 5.203( a )), then the written solicitation generally should be released in FedBizOpps (FAR 5.102( a )( 1 )).

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46 minutes ago, ji20874 said:

Yes -- if a written solicitation exists (FAR 13.106-1( d )), and if a FedBizOpps pre-solicitation synopsis occurs (FAR 5.203( a )), then the written solicitation generally should be released in FedBizOpps (FAR 5.102( a )( 1 )).

Agreed, that is what the regulation says.  My original question stems from CAFC's ruling in Digitalis, which seems to imply that if a prospective contractor misses the boat during the synopsis period, he is no longer an "actual or prospective bidder."  This seems contrary to the plain language at 5.207( c )(16).  Perhaps there is a different answer when using SAP?  

What about a synopsis that says: "Other prospective contractors may submit a capabilities statement by the closing date of this announcement.  All submissions will be evaluated for the sole purpose of determining whether competitive opportunities exist, and the prospective contractor will be advised of the results of the government's evaluation.  Late submissions will not be considered.  If no submissions are received, the government will proceed with the intended noncompetitive action.  An informational copy of the noncompetitive solicitation will be made publicly available IAW FAR 5.102(a) on or after (date), but competitive (quotations/bids/proposals) will not be considered."

I'm sure there will be several objections to this.  I'm used to rejection.

 

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I don't think the notice in the Digitalis decision complied with FAR 5.207( c )(16). Here's what the notice said:

Quote

This notice is not a request for competitive proposals. However, any party that believes it is capable of meeting this requirement as stated herein must submit a written capability statement that clearly supports and demonstrates their ability to provide the items by 22 September 2010, 1200 a.m., Eastern Standard Time.

The propriety of the notice itself wasn't an issue in the case, and it doesn't seem that the protester argued that it wasn't compliant with FAR. In any case, I wouldn't conclude from Digitalis that you don't have to include the statements at FAR 5.207( c )(16), that you don't have to post a solicitation for a sole source requirement, or that you don't have to consider a quote in response to the posted solicitation.

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ji20874:

Outside of any exceptions, if FAR 5.201 makes synopsizing, contract actions, through GPE a requirement, and FAR 5.102 makes posting solicitations synopsized in GPE a requirement, I believe for practical purposes that a written solicitation is required. I don't see how you can solicit orally without posting a synopsis (pre-solicitation notice) and the solicitation in an uploadable format (e.g. written).

Seems by FAR 5.201 requiring "contract actions" to be synopsized through GPE at certain thresholds necessitates the posting of written solicitations.

Contract action as used in Part 5 includes solicitations.

If there truly is a way, I'd like to know it. We could speed up SAP purchases.

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