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BAA's and the need for cost or pricing data


sbuford

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Being that Broad Agency Announcements (BAA?s) consistent with FAR 35.016 are considered a competitive procedure under FAR 6.102; can Contracting Officer?s (CO's) consider FAR based contract awards, in response to proposals received under BAA?s, an exception under FAR 15.403-1(B)(1) to obtaining cost or pricing data or should CO's obtain cost or pricing data per FAR 15.403-4? Particularly for those BAA?s that describe an agency?s research interest for an individual program requirement.

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Being that Broad Agency Announcements (BAA?s) consistent with FAR 35.016 are considered a competitive procedure under FAR 6.102; can Contracting Officer?s (CO's) consider FAR based contract awards, in response to proposals received under BAA?s, an exception under FAR 15.403-1(B)(1) to obtaining cost or pricing data or should CO's obtain cost or pricing data per FAR 15.403-4? Particularly for those BAA?s that describe an agency?s research interest for an individual program requirement.

No. Just because you've used a competitive procedure doesn't mean that you've obtained adequate price competition. Two different things.

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Guest Vern Edwards

The Competition in Contracting Act statutes require that agencies promote and provide for full and open competition and use competitive procedures. Broad agency announcements are considered competitive procedures for purposes of the law. See FAR 6.102. However, full and open competition does not, in and of itself, yield any particular competitive result. For instance, the result of full and open competition might be that you receive only one proposal. See FAR 6.001, which says:

This part prescribes policies and procedures to promote full and open competition in the acquisition process and to provide for full and open competition, full and open competition after exclusion of sources, other than full and open competition, and competition advocates. This part does not deal with the results of competition (e.g., adequate price competition), that are addressed in other parts (e.g., Part 15).

So, by using a broad agency announcement you are using a competitive procedure to promote and provide for full and open competition, but the result might not be adequate price competition, which is an exception to the requirement to obtain cost or pricing data. See FAR 15.403-1( c)(1) for the standards for adequate price competition. Thus, depending on how it's done, a broad agency announcement might not result in adequate price competition, in which case, if the acquisition is above the dollar threshold in FAR 15.403-4(a)(1) and none of the other exceptions applies, the CO would have to require the submission and certification of cost or pricing data.

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I believe the FAR allows for a determination of adequate price competition even if only one offeror submitted a proposal if the offeror believed that there would be more than one response to the solicitation. We recently tried to make that argument in response to a request for a TINA certification in support of an award under a BAA where we were the only contractor that submitted a proposal - but it was dismissed by the PCO. We were certainly under the impression that we were under a true price competition and prepared our proposal accordingly. That left us a little perplexed in that it is an expensive process to prepare a complete proposal update - which the Government pays for, either directly or indirectly.

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The issue that's always caused me to advise my clients that BAAs don't support a determination that adequate price competition exists is FAR 31.016(d):

(d) Proposals received as a result of the BAA shall be evaluated in accordance with evaluation criteria specified therein through a peer or scientific review process. Written evaluation reports on individual proposals will be necessary but proposals need not be evaluated against each other since they are not submitted in accordance with a common work statement.

The statement that proposals submitted in response to a BAA are "not submitted in accordance with a common work statement" seems inconsistent with the adequate price competition standards in FAR 15.403-1©(1), where two of the three standards reference the Government's "expressed requirement" and the third references price analysis based on comparison with previous prices resulting from adequate price competition.

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