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On 1/17/2020 at 11:01 AM, Ibn Battuta said:

And I found one in which an office of the Army Corps of Engineers issued a "Delivery Order Proposal Request" DOPR. See GAO B-401017.4. (Please check the definition of solicitation in FAR 2.101.)

BTW, I have found a form, ENG Form 6141, "A-E Task Order Solicitation Compliance Checklist (JUN 2019," issued by, let's see, the Army Corps of Engineers. "The TORP was issued on May 28, 2013, to firms who held contracts under a multiple-award task order contracts awarded by the Corps."

The Corps doesnt use solicitations for the Brooks Act selection phase of a single award A/E contract, an A/E IDIQ contract or for A/E task order competitions.

Any “solicitation” would be associated with the request for a price proposal to the firm or firms selected to negotiate the single or multiple award A/E contract(s) or the firm selected to negotiate the A/E task order terms and prices.

The RFP includes the detailed Statement of Work

For new A-E contract competitions, the Corps uses a “synopsis”, which specifically states that it isn’t an RFP and that no solicitation will be provided.

The ENG Form Checklist that you referred to is prepared after negotiations with the selected firm(s) as part of the A/E task order award documentation.

EDIT: Please remember the FAR Part 2 definition of “solicitation (also taking into account the definitions of “offer” and “quotations”): 

Solicitation means any request to submit offers or quotations to the government. Solicitations under sealed bid procedures are called “invitations for bids”. Solicitations under negotiated procedures are called “requests for proposals”. Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer“.

”Offer means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called “bids” or “sealed bids”;  responses to requests for proposals (negotiation) are offers called “proposals”: however responses to requests for quotations (simplified acquisition) Are “quotations”, not offers. For unsolicited proposals, see subpart 15.6”

Thus, it is only a solicitation when the Corps requests (solicits) the price proposal for the A/E task order. That may be a hold over from before updates to  FAR 16.505 introduced the term “notice” and dropped the term “solicit price proposals”.

I suspect that the “tail wagging the dog” DoD contracting software may require a solicitation number for all task orders but I don’t know for sure. Perhaps a DoD employee reader here can explain one way or another (thanks).


Edited by joel hoffman

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7 hours ago, Ibn Battuta said:

The word "notice" in connection with a fair opportunity made its first regulatory appearance in the DFARS, when Section 216.505-70 was added as required by Public Law 107-107, NDAA for FY2002, Section 803, 67 Fed. Reg. 65505, October 25, 2002. The new DFARS section stated, in pertinent part:

The word "notice" was inserted in FAR 16.505(b) by interim rule, FAC 2005-27, 73 Fed. Reg. 54008, September 17, 2008, as required by the 2008 NDAA, Public Law 110-181, Section 843. There was another interim rule in 2011, FAC 2005-50, 76 Fed. Reg. 14548, March 16, 2011. A final rule was published in FAC 2005-56, 77 Fed. Reg. 12927, March 2, 2012.

Thanks, Ibn! 

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After reading the definition of “solicitation”, I notice that the first phase of a Two phase Design-Build construction acquisition (FAR 36.3)  is called a “solicitation” and requires a solicitation number.  However, Phase One, technically doesn’t involve an “offer”, as defined in the definition of solicitation  (“a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract”).

The responses to Phase One are “Qualifications Proposals“, with no pricing. The government cannot “accept” such a proposal and bind the offeror to perform the resultant contract. If selected in phase One, a firm would be asked in Phase Two for a price and technical proposal (Offer).

The design-build industry calls Phase One a “Request for Qualifications” (“RFQ”), not an RFP. The owner “shortlists” a few, most highly qualified teams for Phase 2. Only Phase 2 is an RFP, issued to the shortlisted Phase One firms.

But since the government already had an “RFQ” (Request for Quotations), to avoid confusion, the government didn’t adopt that terminology for Phase One in 1997, when the Two-Phase D-B method was incorporated into the FAR.

For those who insist on the sanctity of FAR Part 2 definitions throughout the FAR, this is another example of an exception and probably due to lack of coordination within various areas of the FAR.

Quoting 36.303:

“ 36.303   Procedures.

One solicitation may be issued covering both phases, or two solicitations may be issued in sequence. Proposals will be evaluated in Phase One to determine which offerors will submit proposals for Phase Two. One contract will be awarded using competitive negotiation.”

The problem here is that the same solicitation can cover both Phases.

However, if you use a separate solicitation for phase 2, technically the first phase isn’t a “solicitation” by the definition of solicitation”. You aren’t  soliciting an offer in phase one . It can’t be used to award a contract. It can’t bind anyone to perform anything.

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