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I'm a contracting officer currently working overseas in support of a declared contingency for the Department of Defense.  We're having a spirited discussion in our office on synopsizing requirements.  The most hotly debated topic is the requirement to synopsize through the GPE for requirements >$30k (micro-purchase threshold) when soliciting competition in the United States.

FAR 13.106-1( c ) states that oral solicitations can be used when notice is not required under FAR 5.101 and the acquisition does not exceed the SAT ($1M for overseas declared contingency).  But FAR 13.106-1( c ) also cautions that oral solicitations may not be practicable unless an exception under FAR 5.202 applies.

An exception under FAR 5.202 does apply, but it's FAR 5.202( f ), which states synopsizing is not required when the proposed contract action is by the DoD, and only local sources will be solicited.  This is the only exception that applies, and a U.S. based company cannot reasonably be considered a local source.

FAR 5.101( a )( 1 ) states that synopsizing is required for actions expected to exceed $25k.  FAR 5.101( a )( 2 ) outlines public display requirements for actions between $15k and $25k, but excepts display requirements for actions solicited using oral solicitations (FAR 5.101( a )( 2 )( ii )).

The premise of the argument I'm hearing is that  FAR 5.101( a )( 2 )( ii ) allows us to solicit companies in the U.S., provided the action is under the SAT, without the need to synopsize.  I wholly disagree with this argument due to the fact that our synopsizing requirement falls under FAR 5.101( a )( 1 ) and not FAR 5.101( a )( 2 ).  Therefore, any requirement greater than our micro-purchase threshold of $30k where non-local sources are being solicited must be synopsized to the GPE.

On a similar note, we also had a spirited discussion on the applicable micro-purchase threshold in our environment.  At one point, an argument was being made that the applicable micro-purchase depended on whether or not the acquisition was being awarded to a company inside or outside the U.S. ($20k inside the U.S. and $30k outside the U.S.).  However, we all now generally agree that the applicable threshold is $30k, regardless of where the company is located because the purchase is "being made outside of the United States". 

Thoughts on the synopsizing requirements and feedback on the applicable micro-purchase threshold?

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Shouldn't the exception you note as FAR 5.202( f ) be FAR 5.202( a )( 12 )?

You are correct that FAR 5.101( a )( 1 ) for synopsis in FBO applies to actions exceeding $25,000 while 5.101( a )( 2 )( i ), ( ii ), and ( iii ) for local display or posting apply only to actions between $15,000 and $25,000.

The possible exceptions are listed in FAR 5.202.  Use of an oral solicitation is not an exception to synopsis under FAR 5.101( a )( 1 ) -- however, use of an oral solicitation may be an exception to display or posting under FAR 5.101( a )( 2 ).

Your interlocutors err by failing to understand that FAR 5.101( a )( 1 ) for FBO synopsis applies to actions exceeding $25,000 while 5.101( a )( 2 ) for local display or posting applies only to actions between $15,000 and $25,000.

They also err by thinking that use of an oral solicitation is an exception to FBO synopsis -- it is not -- if they would read carefully and pay attention to the numbering and the actual text, as you seem to have done, they would see that FAR 5.101( a )( 2 )( ii ) provides an oral solicitation exception to local display or posting, but not to synopsis.

FAR 13.106-1( c ) is irrrelevant to your argument.

You should consider more aggressive use of the synopsis exception at FAR 5.202( a )( 2 ) -- this will provide an exception for synopsis and will allow for use of oral solicitations, which is where FAR 13.106-1( c ) comes into play.  Your agency head could choose to invoke FAR 5.202( b ), and won't even know to think of it unless someone asks him or her.

Your key points--

  • FAR 5.101( a )( 1 ) for FBO synopsis applies to actions exceeding $25,000.
  • FAR 5.101( a )( 2 ) for local display applies to actions between $15,000 and $25,000.
  • Anyone errs who applies ( a )( 1 ) to actions under $25,000.
  • Anyone errs who applies ( a )( 2 )( i ), ( ii ), or ( iii ) to actions exceeding $25,000.
  • The exceptions to FBO synopsis are in FAR 5.202( a ) and ( b ) -- use of oral solicitation is not an exception to synopsis.
  • Use of oral solicitation is an exception to local display for actions between $15,000 and $25,000, not an exception to synopsis.

And just for emphasis--

  • FAR 5.101( a )( 1 ) for FBO synopsis applies to actions exceeding $25,000.
  • FAR 5.101( a )( 2 ) for local display applies to actions between $15,000 and $25,000.
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Guest Vern Edwards
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The premise of the argument I'm hearing is that  FAR 5.101( a )( 2 )( ii ) allows us to solicit companies in the U.S., provided the action is under the SAT, without the need to synopsize.

FAR 5.101 prescribes two methods of "disseminating" information about prospective acquisitions: (1) "synopsizing" and (2) "displaying." Synopsizing and displaying are different methods. FAR 5.101(a)(1) is about synopsizing, and it applies to acquisitions of more than $25K. FAR 5.101(a)(2) is about displaying, and it applies only to acquisitions of $25K or less.

The argument that 5.101(a)(2)(ii) applies to an acquisition of more than $25K and allows you to solicit without synopsizing is being made by people who either cannot read or think that words don't matter. If an acquisition will be for more than $25K, then you have to synopsize at the GPE unless one of the exceptions applies.

As for the micro-purchase threshold, what don't you understand about the definition in FAR 2.101? It seems clear. Is it actually obscure in some way?

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ji20874,

Thanks for your response.  You are right that the exception is FAR 5.202( a )( 12 ) and not FAR 5.202( a )( f ).  I didn't double check my reference before I typed it in.  The main issue with the exception at FAR 5.202( a )( 2 ) is that we're in the sustainment phase of the contingency, and most of the items we're purchasing can't reasonably be justified as being required under unusual and compelling urgency.

Mr. Edwards,

I always appreciate your direct responses.  Regarding the $25k requirement to synopsize, wouldn't FAR 13.203( a )( 2 ) take precedence if the applicable micro-purchase threshold is $30k?  I really see no point in synopsizing if there is no requirement to solicit competitive quotations. Unless our interpretation of the applicability of FAR 13.201( g )( 1 ) is off and the micro-purchase threshold for overseas contingency varies depending on whether we're buying from a contractor outside the U.S. versus inside the U.S.?

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jb,

Your question was directed to Vern, but let me ask you a question to make sure I understand -- are you asking if FAR 13.203( a )( 2 )'s permission to award without soliciting competitive quotations can be used as an exception to synopsis in your overseas contingency environment between $25,000 and $30,000 and as an exception to display between $15,000 and $25,000?  I have never considered that question, and am interested in your thoughts.

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ji,

To shine some light on our micro-purchase issue, FAR 13.201( g )( 1 ) provides two thresholds for declared contingencies:

(i) $20,000 in the case of any contract to be awarded and performed, or purchase to be made, inside the United States; and

(ii) $30,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the United States.

So with our office being outside the U.S., where is the purchase actually being made when we buy from a U.S. based company?  Is it being made overseas, or where the company is located?  I've tried to look at this from what I would describe as a common law perspective by looking at sales taxes.  If you buy an item online from a seller out of state, that seller does not have the authority to collect sales tax in your state, and I tend to infer the reason why is because the sale took place at the buyer's location.

Following this logic, we are the buyer as the contracting office, and we're located overseas.  Therefore, the purchase is being made outside of the U.S.

Even if we look at it from the "awarded and performed" perspective, I feel like few would argue that the contract would be awarded outside the U.S., although it may be technically performed in the U.S..  It wouldn't be both awarded AND performed in the U.S., therefore the $30k threshold would apply.

If my logic is flawed, or I'm otherwise incorrect, then the micro-purchase in this scenario should be $20k, and my question about synopsizing for micro-purchases above $25k is moot.

 

 

 

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Guest Vern Edwards
10 hours ago, jb208 said:

Regarding the $25k requirement to synopsize, wouldn't FAR 13.203( a )( 2 ) take precedence if the applicable micro-purchase threshold is $30k?  I really see no point in synopsizing if there is no requirement to solicit competitive quotations. Unless our interpretation of the applicability of FAR 13.201( g )( 1 ) is off and the micro-purchase threshold for overseas contingency varies depending on whether we're buying from a contractor outside the U.S. versus inside the U.S.?

I think you're interpreting FAR 13.201(g)(1) correctly. If the buying work is done outside the U.S., then the micro-purchase threshold is $30,000. It doesn't matter where the contractor is.

So why synopsize a prospective noncompetitive acquisition worth $25,001 to $30K? Because the "guideline" in FAR 13.203(a)(2) states no express or implied exception to the "must" synopsis rule in 5.101(a)(1). What difference does it make that you think such a synopsis is "pointless when you're going to do a noncompetitive buy. Why is it reasonable for you to infer that a "guideline" about competition "takes precedence" over an express rule about synopsis in 5.101(a)(1)? In fact, the apparent conflict has a basis in law and regulation.

Pursuant to FAR 1.109, the contingency ops, etc., micro-purchase threshold for outside the U.S. was inflation-adjusted from $25,000 to $30,000 in 2010, see 75 FR 53129, August 30, 2010, FAC 2005-45. But unlike the micro-purchase and other dollar thresholds that are periodically adjusted for inflation, the $25K dollar threshold for synopsizing is not subject to inflation adjustment because of trade agreements. See 80 FR 38292, July 15, 2015, "The FedBizOpps preaward and post-award notices (FAR Part 5) remain at $25,000 because of trade agreements."

Unfortunately, the FAR councils provided no guidance (that I could find) for how to handle the apparent inconsistency between 5.101(a)(1) and 13.203(a)(2). I doubt that they noticed it. But since FAR 5.101(a)(1) is a "must" rule and FAR 13.203(a)(2) is a "guideline" and states no exception, you must, in my opinion, comply with 5.101(a)(1), because I assume that when they say >$25K, they mean it.

You can try making an argument against compliance with the express >$25K synopsis requirement on practical grounds. Whether it would fly if challenged is a matter of speculation. Or you can ask your agency superiors for written guidance. You could simply ignore 5.101(a)(1) for buys between $25,001 and $30,000 on the grounds that it's no big deal. That's up to you.

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Thanks again for your response. My thoughts on the synopsis requirements were leading me to the same conclusion. The FAR is a continual work in progress, and I catch changes here and there that don't always make sense, only to research and find that the discrepancy has been corrected. 

Gong back to Mr. Mansfield's question, my view of the synopsis is that it's intent is to advertise or provide notice of a contract action where competition is normally required. It tells interested parties what our intentions are in those instances where the public benefit of the notice outweighs the administrative cost. 

I was really trying to avoid heading too far off topic by addressing trade agreements. Although, I found it curious that normal micro-purchases are exempt from Part 25 in the U.S., but a micro-purchase outside the U.S. could be subject to trade agreements starting at $25k.

If we had to synopsize micro-purchases >$25k, it seems to me that we would begin to negate the intended administrative efficiencies of the micro-purchase. The synopsis also wouldn't provide any real benefit to trade agreement nations.  We would simply make an award without providing companies from trade agreement nations a realistic or practicable way to compete for our business.

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jb,

There is no connection between competition and FBO synopses -- all sole source contracts exceeding $25,000 are synopsized, unless an exception in FAR 5,202 applies.  For example, the fact of a sole-source buy is good for reasons of public transparency, subcontracting possibilities, potential objections to the sole-source, and so forth.

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4 hours ago, jb208 said:

...Even if we look at it from the "awarded and performed" perspective, I feel like few would argue that the contract would be awarded outside the U.S., although it may be technically performed in the U.S..  It wouldn't be both awarded AND performed in the U.S., therefore the $30k threshold would apply.

 

jb,

To consider your "awarded and performed" logic from a different perspective, how do you respond to the argument that in order for the $30 K threshold to apply, the contract must be awarded and performed outside the U.S., and in your scenario, it wouldn't have been performed completely outside the U.S., so the $20 K threshold applies?

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Navy,

Asa I see it, if any performance occurs outside the United States (including delivery of a product otherwise wholly assembled in the United States), then that counts as performed outside the United States for purpose of the definition of micro-purchase -- for a supply contract, delivery is performance.

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Guest Vern Edwards
3 hours ago, ji20874 said:

There is no connection between competition and FBO synopses...

Well, there is a "connection," because the purpose of a synopsis is to make information publicly available so that firms can compete. What you meant to say was that the known existence of competition is not a prerequisite to publication of a synopsis.

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Actually, I meant that there is no connection -- a contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive.  A contracting officer should not think of synopsis as being only for competitive acquisitions.

FAR 5.002 lists three public policy purposes for synopsis, of which competition is one.  

 

 

 

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Guest Vern Edwards

ji20874:

You said:

Quote

FAR 5.002 lists three public policy purposes for synopsis, of which competition is one.

You're right, it's the very first one. The other two purposes are related to competition.

Now you say:

Quote

Actually, I meant that there is no connection [between competition and synopsizing].

Huh? If you are saying that there is no connection between the requirement for competition and the requirement to synopsize, then you're being absurd.

Statute and regulation require synopses for reasons--to pursue competition and to open it up. The reason for synopsizing when intending to procure on a sole source basis is to give firms a chance to show that there actually is competition. THAT is why COs should not think of synopses as being only for competitive acquisitions. They must synopsize to seek and broaden competition even when they think there isn't any. THAT is the connection between synopsizing and competition.

I don't know why you're standing by your "no connection" statement, and I don't know why you can't just say that you were imprecise. But go ahead and insist. I won't argue with you when you're being unreasonable.

Vern

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Vern,

Since you're done, I'll get the last word.  I'll stand my ground.  I wrote, "A contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive.  A contracting officer should not think of synopsis as being only for competitive acquisitions."  That is wholly true and perfectly precise.  I don't understand your disagreement with that statement.  And in that context -- the context in which I wrote -- there is no connection between competition and synopsis.  

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It was getting pretty late at night here, but I would just like to clarify and provide a context to what I meant by:

Quote

[The] intent [of a synopsis] is to advertise or provide notice of a contract action where competition is normally required. It tells interested parties what our intentions are in those instances where the public benefit of the notice outweighs the administrative cost.

We issue a synopsis to advertise proposed contract actions to the public and various stakeholders.  The reason we advertise is because it's reasonable to believe that there are stakeholders who may have an interest in what the government is doing.  In the case of government contracting, the interest we are serving is providing opportunities for contractors to earn the government's business (aka competition). 

What I should have said to have been more clear is that the intent of a synopsis is to advertise a proposed contract action when it is reasonable to believe there may be parties who are interested in competing for the requirement, and providing notice of the proposed contract action does not outweigh the administrative burden or risk of harm to the government by providing the notice.

  • Consider a single-source award under FAR 6.302-1.  Competition would normally be required, except that certain circumstances surrounding the government's needs or marketplace capabilities prevent competition from being obtained.  Therefore, a synopsis is required.
     
  • Consider an action performed using limited sources under FAR 6.302-2.  Competition is also normally required in this situation, except that certain circumstances surrounding the acquisition is exposing the government to significant harm.  The government and public are in a symbiotic relationship, and if one  harmed, they are both harmed.  The greater good is served by minimizing the time required to complete the contract action, rather than issuing a synopsis.
     
  • Consider the synopsis exception at FAR 5.202( a )( 5 ) for utility services.  Most states have public utility commissions that allow or even require utility companies to operate in a monopoly.  There is no competition available, and the high barrier to marketplace entry due to laws and startup costs prevents new entrants to the market.  In this situation, the administrative cost of a synopsis would provide no benefit to the public because nobody else is reasonably going to come to market and try to compete with the established utility company.

Thank you everyone for your responses.  I'm in a small office, and your opinions have greatly helped me gain the backing I needed to ensure we are doing things the right way.

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Guest Vern Edwards
3 hours ago, ji20874 said:

Vern,

Since you're done, I'll get the last word.  I'll stand my ground.  I wrote, "A contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive.  A contracting officer should not think of synopsis as being only for competitive acquisitions."  That is wholly true and perfectly precise.  I don't understand your disagreement with that statement.  And in that context -- the context in which I wrote -- there is no connection between competition and synopsis.  

Bull. This is what you wrote that I objected to:

18 hours ago, ji20874 said:

There is no connection between competition and FBO synopses -- all sole source contracts exceeding $25,000 are synopsized, unless an exception in FAR 5,202 applies. 

Emphasis added. I suggested that you didn't mean that there was "no connection":

15 hours ago, Vern Edwards said:

Well, there is a "connection," because the purpose of a synopsis is to make information publicly available so that firms can compete. What you meant to say was that the known existence of competition is not a prerequisite to publication of a synopsis.

To which you responded:

13 hours ago, ji20874 said:

Actually, I meant that there is no connection -- a contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive.

"Actually, I meant that there is no connection." You omitted that from your last self-quote.

Do you understand my disagreement now? "No connection" is misleading. It misinforms. It was not necessary to making your point. If you're going to answer questions, don't mislead and misinform people any more than necessary.

Criminy. This is the kind of thing that Don Mansfield calls you on. You're intellectually dishonest when you do it. When I suggested that you didn't mean it, you could have just said, "You're right Vern, I didn't mean that there was no connection. I meant that a contracting officer should not think of synopsis as being only for competitive acquisitions." Instead, you come across as a contracting staff weenie who can't admit that he didn't speak as clearly as he could have.

You're a pain when you do this kind of thing. Like "no connection," it's not necessary.

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jb,

Thanks for your clarification.  Yes, my note that offended Vern was in response to your posting.  I responded to you with a purpose of clarifying that all contracts exceeding $25,000 are synopsized, including sole source contracts, unless an exception in FAR 5,202 applies, whether or not the contracting officer intends the for the action to be competitive or non-competitive, and regardless of whatever the contracting officer discerns as public benefit and administrative costs.  I wrote--

  • There is no connection between competition and FBO synopses -- all sole source contracts exceeding $25,000 are synopsized, unless an exception in FAR 5,202 applies.

He objected to this statement because he dishonestly separated the text before the hyphen from the text after the hyphen.  If one reads it as a whole, in its context, it is harmonious and precise and correct.  Because of his further objection, I clarified--

  • Actually, I meant that there is no connection -- a contracting officer does a synopsis under FAR 5.101( a )( 1 ) (except when exempted under FAR 5.202) regardless of whether he or she intends for a proposed action to be competitive or non-competitive. A contracting officer should not think of synopsis as being only for competitive acquisitions.

He objected again because he dishonestly separated the text before the hyphen from the text after the hyphen.  Again, if one reads it as a whole, in its context, it is harmonious and precise and correct.

He will likely object again, and he can have the last word.  But I'm glad the exchange has been beneficial to you.

 

 

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Guest Vern Edwards

"Dishonestly separated"? :huh: "Harmonious and precise and correct"? :lol:

Try this: The purpose of a synopsis is to try to get competition, whether you think there is competition or not.

Compare and contrast.

 

 

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