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Does an agency have a duty to notify an offeror that it is excluded from the competitive range if this is a FAR 16.505 task order competition?  There appear to be no instructions in FAR 16.505 itself for notification requirements for exclusion from the competitive range.  FAR 16.505(b)(6) addresses the CO's duties concerning post-award notifications and debriefings, and it even says that the agency must follow FAR Part 15 on this, but I don't see any requirements or guidance on pre-award notices and debriefings.  

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Guest PepeTheFrog

Competitive range is a concept from a different lane: FAR Part 15, Contracting by Negotiation.

Be careful about adopting concepts, procedures, and terminology from FAR Part 15 when using other procurement methods like FAR 16.505.

You might wish only to dip your webbed toes in the pond of FAR Part 15, but the GAO or CFC might consider you a fully submerged, FAR Part 15 frog. In that case, you might not meet the more rigorous standards of FAR Part 15 under a protest because you "thought this was a FAR 16.505 procurement."

Is there a compelling reason why you want to use competitive range/FAR Part 15 procedures for a FAR 16.505 task order competition?

PepeTheFrog wonders if some contracting professionals are just gluttons for punishment: If you already jumped through the FAR Part 15 hoops to establish the IDIQ, why not just relax and follow FAR 16.505 and fair opportunity for the task orders? Why trudge through FAR Part 15 and full and open competition (again)?

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Thanks, Pepe!

Absolutely right -- the fair opportunity consideration procedures in FAR 16.505(b) only contemplate post-award notices -- there is no requirement for any pre-award notice, period.

If you decide to open discussions under a fair opportunity consideration, you are not obligated to follow all the FAR Subpart 15.3 procedures -- see the pentultimate sentence in FAR 16.505( b )( 1 )( ii ).  The GAO tells us clearly that the FAR Subpart 15.3 procedures are not needed, only that the discussions should be fair and not misleading.  Even forming a competitive range is a FAR Subpart 15.3 process, and is not required before holding discussions under fair opportunity consideration procedures.  The GAO has repeatedly ruled that FAR Subpart 15.3 procedures don't apply -- only that the discussions must be fair and not misleading.  [repition for emphasis]

All that said, you may do a pre-award notice if you want to.  However, if your solicitation said you would give notices, then you have to follow your solicitation.

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govt2310, I agree with the others. What do your base contract ordering procedures, if any,  and task order procedures say about the competitive range, discussions, etc.?

 

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1 hour ago, ji20874 said:

If you decide to open discussions under a fair opportunity consideration, you are not obligated to follow all the FAR Subpart 15.3 procedures -- see the pentultimate sentence in FAR 16.505( b )( 1 )( ii ).  The GAO tells us clearly that the FAR Subpart 15.3 procedures are not needed, only that the discussions should be fair and not misleading.  Even forming a competitive range is a FAR Subpart 15.3 process, and is not required before holding discussions under fair opportunity consideration procedures.  The GAO has repeatedly ruled that FAR Subpart 15.3 procedures don't apply -- only that the discussions must be fair and not misleading.  [repition for emphasis]

With one exception: if the office decided to use a process identical or similar to the FAR Subpart 15.3 process when they wrote their ordering procedures, the office would be required to follow those procedures in spite of the rulings you allude to.

govt2310, what do your IDIQ's ordering procedures state?  FAR 16.505 provides a framework for those procedures...just because it is silent on an issue does not mean your ordering procedures are as well.

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Guest Vern Edwards
Quote

The GAO has repeatedly ruled that FAR Subpart 15.3 procedures don't apply

Quote

 

 if the office decided to use a process identical or similar to the FAR Subpart 15.3 process when they wrote their ordering procedures, the office would be required to follow those procedures in spite of the rulings you allude to.

 

ji20874: In what 16.505 protest has the GAO ruled that an agency need not comply with 15.306(c) if it decides to determine a competitive range?

Matthew: Who would require that an agency comply with Part 15 in a 16.505 acquisition? How do you know that they would require it?

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58 minutes ago, Vern Edwards said:

Matthew: Who would require that an agency comply with Part 15 in a 16.505 acquisition? How do you know that they would require it?

To know whether or not compliance is required, I'd read the IDIQ's ordering procedures.  The ordering procedures may refer to FAR Part 15 or it may simply use the same (or similar) language/procedures from FAR Part 15.  I'm not advocating anyone establish an IDIQ that does so, just that it isn't outside the realm of possibility.

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Guest Vern Edwards

Matthew:

11 hours ago, Matthew Fleharty said:

To know whether or not compliance is required, I'd read the IDIQ's ordering procedures.  The ordering procedures may refer to FAR Part 15 or it may simply use the same (or similar) language/procedures from FAR Part 15. 

So an ordering agency must comply with FAR 15.3 procedures and provide a notice of elimination from the competitive range if, and only if, their contract stipulates the use of such procedures. Is that correct? So compliance would be a matter of contract performance. Right? FAR Subpart 15.3 otherwise does not apply to task order competitions. Correct?

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14 hours ago, joel hoffman said:

govt2310, I agree with the others. What do your base contract ordering procedures, if any,  and task order procedures say about the competitive range, discussions, etc.?

 

Answer: The base contract ordering procedures say nothing about competitive range, discussions, etc.

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GAO stated in footnote 6 of its decision on Kellogg Brown & Root Services, Inc., B-400614.3, Feb. 10, 2009, that since the agency (the Army) in that case indicated in the FAR 16.505 task order solicitation that it would follow FAR Part 15 for a particular part of the contract formation process, and the agency relied upon decisions interpreting FAR Part 15 in defending its protest, that GAO then looked to FAR Part 15 and the cases interpreting FAR Part 15 in analyzing the issues in KBR’s protest.  The KBR protest concerned the protocol for clarifications.  It didn’t concern pre-award notice of exclusion from the competitive range.  Hmm.

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Extract from

Sapient Government Services, B-412163.2, Jan. 4, 2016

FAR subpart 16.5, however, expressly provides that the policies in FAR subpart 15.3 do not apply to the ordering process under multiple award, ID/IQ contracts. FAR § 16.505(b)(1)(ii). As stated above, the competition here was conducted using FAR subpart 16.5 procedures, and among firms holding contracts under the EAGLE II multiple award, ID/IQ contract vehicle. See RFP at 1. Additionally, and as noted above, the solicitation expressly advised that the policies of FAR subpart 15.3 would not apply to the competition. Id. at 21. Thus, while Sapient asserts that the agency failed to follow certain procedures under FAR subpart 15.3, both the FAR and the solicitation provide that those policies do not govern the task order competition here. FAR § 16.505(b)(1)(ii), RFP at 21; see also Bay Area Travel, Inc. et al., Nov. 5, 2008, B-400442 et al., 2009 CPD ¶ 65 at 9 n.13.

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Guest Vern Edwards

ji20874:

I presume that your last post was in response to my request. If so, it is non responsive. I asked:

14 hours ago, Vern Edwards said:

ji20874: In what 16.505 protest has the GAO ruled that an agency need not comply with 15.306(c) if it decides to determine a competitive range?

The agencies in the cases you cited did not determine a competitive range, and in Sapient the agency expressly stated that 15.3 did not apply. So my question to you still stands. I'm not trying to trap you. I'm trying to find out the truth of the matter.

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I'm not aware of all the GAO case law, and I don't know if the GAO has decided exactly that question.  There have been cases where the GAO has said that FAR Subpart 15.3 procedures do not apply to discussions under fair oipportunity considerations, but that the discussions must be fair and not misleading.  I firmly believe that if I received four offers under a fair opportunity consideration (FAR 16.505( b )), and if I used language such as I used in the solicitation described in the Sapient protest, and if I felt a need to hold discussions with two of the four offerors, I could do so without first declaring a competitive range under the authority of FAR 15.306( c ) -- I believe would be fine as long as whatever discussions I held were fair and not misleading.  I think the Sapient decision is a good decision to help contracting officers understand that FAR Subpart 15.3 procedures need not apply to fair opportunity considerations -- and clearly, comnpetitive range exists only in 15.3.

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Guest Vern Edwards

Well, I think that any contracting officer is foolish to adopt Subpart 15.3 terms and procedures, expressly or impliedly, for use in 16.505 competitions. Any CO who is earning his or her salary will not use the FAR Part 15 process model to award task orders. That having been said, I wonder whether GAO would apply 15.3 in a protest in which a CO did expressly adopt such language and procedures and then fail to follow the rules in 15.3. We've seen GAO do that in simplified acquisitions. See e.g. Finlen Complex, B-288280, Oct. 10, 2001, 2001 CPD ¶ 167.

If, by words and conduct, a CO leads competitors to believe that 15.3 applies, GAO might apply 15.3, or not.

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I tend to think that if a solicitation expressly adopted 15.3 language, then the GAO would expect the contracting officer to follow the solicitation.

Here is some solicitation text that might be helpful in ( a ) avoiding these problems; and ( b ) gaining the protection the GAO is willing to offer such as in the Sapient case above:

NOTICES AND DEBRIEFINGS
The Government will provide post-award notices to unsuccessful awardees in accordance with FAR 16.505( b )( 6 ).  Pre-award notices will not be given.

PROCEDURES
This is a fair opportunity ordering process under FAR 16.505( b )( 1 ).  The procedures of FAR Subpart 15.3 do not apply to this acquisition.

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Guest Vern Edwards

I would word it a little differently.

Procedures. This is a fair opportunity ordering process under FAR 16.505(b)(1). This is not a source selection under FAR Part 15. The source selection rules and procedures set forth in FAR Subparts 15.1, 15.2, and 15.3 do not apply. We will not make preaward notifications, but we will make postaward notifications and provide debriefings in accordance with FAR 16.505(b)(6).

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4 hours ago, Vern Edwards said:

Matthew:

So an ordering agency must comply with FAR 15.3 procedures and provide a notice of elimination from the competitive range if, and only if, their contract stipulates the use of such procedures. Is that correct? So compliance would be a matter of contract performance. Right? FAR Subpart 15.3 otherwise does not apply to task order competitions. Correct?

Correct.

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Guest Vern Edwards

Matthew:

So if an agency included FAR Subpart 15.3 type procedures in its task or delivery order contract, including notice of elimination, and if the agency did not follow those procedures, then the contractor would have a basis for demanding a remedy for breach of contract. Right?

Would the contractor have a basis for demanding a remedy for breach of contract and a basis for a bid protest if the order were for more than the protest dollar threshold?

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56 minutes ago, Vern Edwards said:

Matthew:

So if an agency included FAR Subpart 15.3 type procedures in its task or delivery order contract, including notice of elimination, and if the agency did not follow those procedures, then the contractor would have a basis for demanding a remedy for breach of contract. Right?

Would the contractor have a basis for demanding a remedy for breach of contract and a basis for a bid protest if the order were for more than the protest dollar threshold?

I believe so - at the moment, I cannot see why that would not be the case.

Just to reiterate my previous "disclaimer," by no means am I advocating that it is a sound approach to incorporate FAR Subpart 15.3 procedures (or procedures that are substantially the same) as the ordering procedures for multiple award IDIQs - I'm just stating that it is possible that could be the case as the framework established by FAR 16.505(b) does not prohibit doing so (FAR Subpart 15.3 does not violate any of the criteria at FAR 16.505(b)(1)(ii) (A) through (E) or FAR 16.505(b)(1)(v))...FAR 16.505(b)(1)(ii) just states that FAR Subpart 15.3 does not apply by default to the ordering process.

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