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Part 13 or 15 procedures


dtes

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Suppose that an office has a: (1) requirement for a non-commercial item(s); (2) solid estimate of $90K prior to publishing it; (3) publishes the requirement utilizing Part 13 procedures. In the event that the responses that are received exceed the SAT ($100K in this case) is there authoritative guidance directing the office to either: (i) amend the Solicitation to make it an RFP, et cetera; or (ii) award a purchase order (still) utilizing SAP?

Thus far, my search hasn't produced a definite conclusion. FAR 13.003(a) suggests a hard-line "Yes/No" regarding SAP (path i); however, 13.003(B) & © suggest an ex ante standard is appropriate where it utilized the "anticipated" language (path ii). GAO has sustained two protests (see B-400746, B-400747, B-400750, B-400751, B-400752, B-400785 and B-299044) where the record indicated that the agencies didn't have a (reasonable) basis to conclude that the (ex ante) estimates were below the SAT; however, I haven't discovered a decision where GAO has sustained a protest where the (ex ante) estimate was reasonable. I'll also note that DAU's Ask a Professor contemplates the reverse (solicit using RFP then awarding using SAP) (here) and reasons that it's acceptable:

Rationale: The FAR doesn?t state that you cannot. The whole idea of using simplified acquisition procedures (SAP) is that it saves time for both sides. You have already spent the time using an RFP and industry has spent their time creating proposals in response. As long as you didn?t tie your hands by some clause in your RFP, you could award a purchase order and be done with it.

I think a procurement official could conclude that either path i, or ii is reasonable. Is a member aware of an authoritative decision regarding the issue? Or, in the alternative, an irrefutable argument for i, or ii?

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