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Posting of SAP sole source requirements


wifcon123

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Let's consider the following FAR excerpts:

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FAR 13.106-1( c ) Soliciting orally

  (1) The contracting officer shall solicit quotations orally to the maximum extent practicable, if--

    (i) The acquisition does not exceed the simplied acquisition threshold;

    (ii) Oral solicitation is more efficient than soliciting through available electronic commerce alternatives; and

    (iii) Notice is not required under 5.101. (emphasis added)

  (2) However, an oral solicitation may not be practicable for contract actions exceeding $25,000 unless covered by an exception in 5.202

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FAR 5.101(a)(2)(ii) The contracting officer need not comply with the display requirements of this section (emphasis added) when the exemptions at 5.202(a)(1), (a)(4) through (a)(9), or (a)(11) apply, when oral solicitations are used (emphasis added), or when providing access to a notice of proposed contract action and solicitation through the GPE and the notice permits the public to respond to the solicitation electronically.

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FAR 5.201(b)(1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202, and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each propose--(i) Contract action meeting the threshold in 5.101(a)(1)

The FAR defines section under 1.105-2(c)(ii) as "Section would be “FAR 9.106” outside the FAR and “9.106” within the FAR" so the above reference in 5.101(a)(2)(ii) seemingly exempts oral solicitations from the display requirements of section 5.101 (does that also exempt it from the threshold referenced in FAR 5.201(b)(1)?).  Then, FAR 13.106-1( c ) only permits oral solicitations when notice is not required under 5.101.  The result seems to be a wonderful "chicken or the egg" argument (or maybe there is clarity somewhere that I'm just missing)...thoughts?

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4 hours ago, Matthew Fleharty said:

so the above reference in 5.101(a)(2)(ii) seemingly exempts oral solicitations from the display requirements of section 5.101 (does that also exempt it from the threshold referenced in FAR 5.201(b)(1)?). 

5.101(a)(2) only deals with actions exceeding $15K, but not exceeding $25K.  The display (in a public place) requirement is different than the synopsis requirement at 5.101(a)(1), which is further covered at FAR 5.2.  The fact that (a)(1) and (a)(2) are discussed under the same section and same paragraph is not relevant.

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There were two positions in my previous post, one regarding the requirements at 5.101 and the other regarding whether an exception to 5.101 results in an exception to 5.201.  On the first point you state:

  1. 16 hours ago, Todd Davis said:

5.101(a)(2) only deals with actions exceeding $15K, but not exceeding $25K...The fact that (a)(1) and (a)(2) are discussed under the same section and same paragraph is not relevant.

I don't necessarily agree with this statement - it's dismissive and doesn't consider the content of the position I presented.  The statement at 5.101(a)(2)(ii) states "section."  According to the arrangement of the FAR, if the FAR wanted to exempt oral solicitations from only the requirements at 5.101(a)(2), would it not have said "paragraph" instead?  I still think this results in a "chicken or the egg" situation.

16 hours ago, Todd Davis said:

The display (in a public place) requirement is different than the synopsis requirement at 5.101(a)(1), which is further covered at FAR 5.2.  

Personally, I agree with this position.  The statement at 5.201 references the "threshold" not the "requirement" at 5.101 and, as a result, I'd argue we consider simply whether a requirement exceeds the dollar value regardless of further exemptions in that section - I was making the point for consideration to see if someone had a different take that they could explain (and maybe someone still does - we shall see).

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2 hours ago, Matthew Fleharty said:

don't necessarily agree with this statement - it's dismissive and doesn't consider the content of the position I presented.  The statement at 5.101(a)(2)(ii) states "section."  According to the arrangement of the FAR, if the FAR wanted to exempt oral solicitations from only the requirements at 5.101(a)(2), would it not have said "paragraph" instead?  I still think this results in a "chicken or the egg" situation.

We'll see what others have to say, but I'll give it another shot.  Section 5.101 includes paragraphs under it, two of them (a) and (b).  These paragraphs are part of the section, as they fall under it.  By using the words "display requirements of this section" the FAR is referring to any discussion of display requirements found anywhere in that section (5.101), regardless of what paragraph in that section that display requirements are discussed in.  Maybe they could have said "the display requirements of 5.101(a)(2), but they've accomplished the same thing by what is already stated.

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1 hour ago, Todd Davis said:

By using the words "display requirements of this section" the FAR is referring to any discussion of display requirements found anywhere in that section (5.101), regardless of what paragraph in that section that display requirements are discussed in.

If what you've stated is true, how does that not exempt oral solicitations from paragraph (a)(1) which is contained under section 5.101?

I understand the argument you're making that the FAR reads "For proposed contract actions expected to exceed $15,000, but not expected to exceed $25,000...the contracting officer need not comply with the display requirements of this section when...oral solicitations are used" and, as such, only applies to oral solicitations within that range; however, I also think it is rather sloppy that the FAR uses the word section because there are a number of display requirements under section 5.101 outside of those at paragraph 5.101(a)(2). 

Also another argument (on your side Todd) might be that display requirements are different from or a specific subset for disseminating information on proposed contract actions, and since 5.101(a)(1) does not use the term display requirements (it is unique to paragraph 5.101(a)(2)) oral solicitations over $25,000 must still be synopsized in the GPE unless otherwise excepted.  Apologies for thinking out loud on both sides of the issue, but I certainly appreciate you engaging in the discussion.

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All this debate about SAP.  Goes to show that SAP is no longer simple and straight forward.  When I first started in 1998, I was told to just get three bids.  That worked great and I never had an issue through 2011.  Maybe I got lucky.  Anyway, I moved out of awarding SAP and I was really surprised when I read FAR 13.104(b) about two years ago.  Its discussion of synopsis pursuant to 5.101 basically overrode the rest of that section concerning getting 3 bids in the local trade area.  It would seem the 3 bid process can only be used for orders under $15K and we don't get many of those since so many use PCards now. 

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SAP still provides agility and flexibility in the acquisition process (though you're probably right Boof that the procedures have become more complex since 1998 - that just seems to be the general trend concerning rules and regulations).  When commercial and utilizing SAP, contracting officers can still quickly contract to meet their customers' needs by utilizing the following (to name a few efficiencies):

  • FAR 12.603 allows contracting officers to combine the synopsis and solicitation (saves 15 days)
  • FAR 5.203(b) allows contracting officers to utilize their business judgment to establish any response time (as long as it affords offerors a reasonable opportunity to respond) for all SAT & commercial buys (saves any number of days chosen < 30)
  • FAR 13.106-2 allows a range of efficiencies when it comes to evaluations including the "broad discretion in fashioning suitable evaluation procedures" (FAR 13.106-2(b)(1)) and the ability to "conduct comparative evaluations of offers" (FAR 13.106-2(b)(3)).

On a side note, I also think agencies don't do themselves any favors in regards to keeping acquisitions simple and straight forward.  I've seen many a commercial requirement that could have utilized SAP pursuant to FAR 13.5 (commercial actions above $150k but less than $6.5M), yet the Government conducted a FAR Part 15 Source Selection instead.  While at grad-school, a class-mate and I did some research on the utilization rate based on a data pull from FPDS that spanned approximately 15 months.  Of the number of actions that were eligible for 13.5 Procedures only between 27% and 51% actually utilized them (I can only list a range because there were some anomalies and inconsistencies in the FPDS-NG data that could not be reconciled without pulling each individual file).  I never understood (and still can't) why a contracting officer would needlessly subject him/herself, the customer, and industry needlessly to the more complex, burdensome process of FAR Part 15 rather than utilize FAR Part 13 (when eligible).

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On ‎4‎/‎14‎/‎2016 at 8:47 AM, Todd Davis said:

The authorities cited at 10 USC 2304(c) and 41 USC 3304(a) never apply to acquisitions using simplified acquisition procedures at Part 13.

Why not?  Stating that Part 13 actions are not subject to Part 6 does not explain why the authorities of 10 USC 2304 and 41 USC 3304 cannot be applied to Part 13 acquisitions.  Please explain further why these citations can only be used, and are only applicable to, CICA actions.

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jwomack

26 minutes ago, jwomack said:

Why not?  Stating that Part 13 actions are not subject to Part 6 does not explain why the authorities of 10 USC 2304 and 41 USC 3304 cannot be applied to Part 13 acquisitions.  Please explain further why these citations can only be used, and are only applicable to, CICA actions.

You ask me "why not" and I've answered that below, but you did not explain why they could be cited, if that is what you believe?

I said 10 USC 2304(c) and 41 USC 3304(a) specifically and not the sections generally.  FAR 6.001(a) is what states that that Part 6 is not applicable to actions using the simplified acquisition procedures of Part 13.  The authorities to not compete certain actions under SAP is at FAR 13.106-1(b).  These would be cited in a document explaining the absence of competition (13.106-3(b)(3)(i) and the document would not be referred to as a J&A since a J&A and its associated requirements from FAR 6.303 do not apply (except for actions conducted pursuant to the authority at FAR 13.5 (13.501(a)).  Full and open competition is not required for SAP actions, only competition to the maximum extent practicable.  Below are excerpts from 10 USC 2304.  I did not include the text at 41 USC 3304(a) below but it provides the same exceptions to full an open competition as 10 USC 2304(c). 

§2304. Contracts: competition requirements

(a)(1) Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services-

(A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation; and

(B) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.

 

(c) The head of an agency may use procedures other than competitive procedures only when-

(1) the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;

(2) the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals;

(3) it is necessary to award the contract to a particular source or sources in order (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization, (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, or (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;

(4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures;

(5) subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency's need is for a brand-name commercial item for authorized resale;

(6) the disclosure of the agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or

(7) the head of the agency-

(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and

(B) notifies the Congress in writing of such determination not less than 30 days before the award of the contract.

 

(g)(1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for-

(A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and

(B) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items.

(2) A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1).

(3) In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.

(4) The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.

 

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Guest Vern Edwards
On April 11, 2016 at 11:35 AM, wifcon123 said:

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? 

Does everyone agree that if there is a written solicitation in this case the CO must make it available through the GPE in accordance with FAR 5.102(a)?

If so, then it seems the question is whether a written solicitation is required. Right?

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