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bkl14

Awarding to More Awardees

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Good Morning,

I am in the process of evaluating offerors for an IDIQ contract.  The solicitation stated that we would make up to 5 awards for this solicitation. I was curious to see if we could award to more than state in the solicitation? I have looked on WIFCON to see if this topic has come up and could not find anything. Any guidance would be helpful. Thanks!

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1 hour ago, bkl14 said:

Good Morning,

I am in the process of evaluating offerors for an IDIQ contract.  The solicitation stated that we would make up to 5 awards for this solicitation. I was curious to see if we could award to more than state in the solicitation? I have looked on WIFCON to see if this topic has come up and could not find anything. Any guidance would be helpful. Thanks!

Amend the RFP to allow you to make more than five awards. 

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You must comply with the procedures in the solicitation...barring any other information or language in your solicitation that we're unaware of, if the solicitation merely states "up to 5 awards," you may not award 6 or more.  While I didn't find a GAO decision on the issue with your particular circumstances, reference 41 USC § 3701(a) which states "An executive agency shall evaluate sealed bids and competitive proposals, and award a contract, based solely on the factors specified in the solicitation."

If it's truly in the Government's best interest to award more than 5 contracts, consider amending the solicitation (FAR 15.206).

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46 minutes ago, Vern Edwards said:

Amend the RFP to allow you to make more than five awards. 

Since this would be an amendment after the established time and date for receipt of proposals, I would have to determine the competitive range and open discussions. Which is fine, if necessary. I feel like I read a GAO case that was denied where a contractor protested an Agency adding another awardee even after stating they would award up to a certain amount. I think I'm dreaming it. Thanks everyone for your help!

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8 minutes ago, bkl14 said:

Since this would be an amendment after the established time and date for receipt of proposals, I would have to determine the competitive range and open discussions.

Why do you think that?

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8 minutes ago, bkl14 said:

Since this would be an amendment after the established time and date for receipt of proposals, I would have to determine the competitive range and open discussions.

According to what?

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10 minutes ago, Don Mansfield said:

Why do you think that?

Maybe I'm not interpreting FAR 15.206 (c) incorrectly, but I was under the impression for amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from competition. The solicitation closed and we are in the process of evaluating the proposals.  When I read,  "to all offerors that have not been eliminated from competition," I read that a competitive range should be determined to establish which offerors are not eliminated from competition. Am I wrong?  

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See Latvian Connection, LLC; Solution Managers International--USA, B-408182.3, B-408182.4, Aug. 13, 2013:

Quote

The protesters assert that the changes made to the solicitation by amendments 0008 and 0009 are so substantial that the agency must cancel the solicitation and issue a new one to afford all potential offerors, including them, an opportunity to compete for the contract. As discussed below, we find the agency reasonably decided to amend, rather than cancel and reissue, the solicitation. Federal Acquisition Regulation (FAR) § 15.206(e) states that a contracting officer should cancel a solicitation under the following circumstances: If, in the judgment of the contracting officer, . . . an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition. Our review of agency decisions about whether an amendment to a solicitation requires cancellation is limited to whether the exercise of agency discretion is reasonable. See Government Contract Servs. Co., B-294367, Oct. 25, 2004, 2004 CPD ¶ 215 at 4; The New Jersey & H St. Ltd. P’ship, B-288026, B-288026.2, July 17, 2001, 2001 CPD ¶ 125 at 4.

I believe the number of offers or quotes would not have increased had you amended the solicitation prior to its closing. So, I think it is reasonable to amend the solicitation and to issue the amendment solely to the firms that submitted offers/ quotes.

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1 hour ago, bkl14 said:

When I read,  "to all offerors that have not been eliminated from competition," I read that a competitive range should be determined to establish which offerors are not eliminated from competition. Am I wrong?  

I think you are misinterpreting FAR 15.206(c). There's no requirement that you first establish a competitive range in order to issue an amendment after receipt of proposals. However, if you did establish a competitive range, you'd be required to issue any amendments to all offerors in the competitive range.

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12 minutes ago, napolik said:

See Latvian Connection, LLC; Solution Managers International--USA, B-408182.3, B-408182.4, Aug. 13, 2013:

 

I believe the number of offers or quotes would not have increased had you amended the solicitation prior to its closing. So, I think you are OK to amend the solicitation and to issue the amendment solely to the firms that submitted offers/ quotes.

Thank you. I have a feeling that my question(s) are not clear. 

I was not originally asking if it was ok to amend a solicitation. My question is basically asking if it is ok to award (without discussions/sol amendment) to six technically acceptable offerors when it clearly it states in the solicitation that we intended to award up to five. My initial thought is no, but I thought I had read a GAO decision where an Agency awarded to more than anticipated awardees under a Multiple Award vehicle and one of the awardees felt it would limit their opportunity to win task orders since the pool increased. Based on the responses above, it seems that I'm totally making this GAO case up in my head.  Then, based on the conversations above, I further questioned my interpretation of  FAR 15.206 (c), if I wanted to amend the solicitation, since we are beyond the established time and date for the receipt of proposals,

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2 minutes ago, Don Mansfield said:

I think you are misinterpreting FAR 15.206(c). There's no requirement that you first establish a competitive range in order to issue an amendment after receipt of proposals. However, if you did establish a competitive range, you'd be required to issue any amendments to all offerors in the competitive range.

Thank you. If you don't mind me asking, how do you interpret the statement, "that have not been eliminated from competition."

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Issue the amendment to the firms submitting offers or quotes. Then, award the revised maximum number of contracts. 

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3 minutes ago, bkl14 said:

Thank you. If you don't mind me asking, how do you interpret the statement, "that have not been eliminated from competition."

If I had eliminated one or more offerors from competition when issuing the amendment, I don't need to send them the amendment. If I didn't eliminate any offerors from competition, then everyone who submitted an offer gets the amendment.

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6 minutes ago, bkl14 said:

Thank you. If you don't mind me asking, how do you interpret the statement, "that have not been eliminated from competition."

That language does not establish a requirement to draw a competitive range, it merely addresses both situations (when it does happen and when it doesn't happen).  Consider the two scenarios:

If you haven't drawn a competitive range, all offerors receive the amendment as no one has been eliminated from the competition. 

If you have drawn a competitive range, only those remaining offerors will receive the amendment because some offerors have been eliminated from the competition.

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Thank you everyone for your responses.

FAR 15.206 clearly states, "

15.206 -- Amending the Solicitation.

(a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation.

(b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation.

(c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition.

My scenario is that we are past the established time and date for receipt of the proposals, so the only part of FAR PART 15.206 that would apply to my situation would be (c). Correct? So, my confusion was to interpret the language,  "offerors that have not been eliminated from the competition." I understand what Don is saying, that if you eliminate from competition, then you would only send the amendment to those in the competitive range or you could just issue the amendment to all offerors. So, I would just need to determine which is more efficient for my scenario. I don't have to issue the amendment to all offerors, just to those who have not been eliminated from competition.  Thanks everyone for your help. I believe I have clear path on my next steps.

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21 hours ago, bkl14 said:

Since this would be an amendment after the established time and date for receipt of proposals, I would have to determine the competitive range and open discussions. Which is fine, if necessary. I feel like I read a GAO case that was denied where a contractor protested an Agency adding another awardee even after stating they would award up to a certain amount. I think I'm dreaming it. Thanks everyone for your help!

Issuing a solicitation amendment under FAR 15.206( c ) and inviting new proposals does not constitute discussions.

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