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Cancel vs modify solicitation

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What changes should cause a solicitation to be cancelled and re-issued as a fresh solicitation instead of causing a modification to the solicitation?

__ a change to the PWS other than an obvious typo correction?

__ a change of contracting officer?

__ a change to the CLIN structure?

__ a change of to the CDRL's?

__ a change of contract type on one or more CLIN's?

__ change of payment terms (e.g., incentives, disincentives, or basis of payment?

_ a change to the evaluation criteria?

_ a change to the instructions to offerors?

__ add your own cause.

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Major changes to the PWS or MAJOR change to the payment terms might warrant cancellation.

Also may depend upon the timing of the changes in the solicitation period.

Also depends upon how many various types of changes, like described  above are collectively or simultaneously occurring. 

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5 minutes ago, ji20874 said:

See FAR 15.206(e).

Succinctly put, particularly for amendments after receipt of competitive proposals. 

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This is GAO's rule, repeated over and over during previous decades to justify cancelling a solicitation.  

Quote

In a negotiated procurement such as this one, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so.  (emphasis added)

There is a difference for IFBs and that is included elsewhere.

  • an agency concludes that a solicitation does not accurately reflect its needs.
  • a lack of funding justified the decision to cancel
  •  offeror's protest--and the attendant stay of contract award and performance--caused the agency's requirements to change.
  • the agency reasonably determined that it should cancel the RFP and resolicit after clarifying its tiered evaluation process.
  • when none of the proposals received were evaluated as technically acceptable.
  • The record shows that the agency is considering whether the cleaning and janitorial services required under the soliciation should have be procured from an AbilityOne vendor.
  • the PWS requirements focused only on the functional capabilities of the software, and failed to capture the agency’s needs regarding ease of use.
  • the possibility of increased competition generally provides a reasonable basis for an agency to cancel a solicitation. 
  • the record indicates that the agency intends to refine the SOW and the solicitation to increase the likelihood that vendors other than the incumbent can prevail in this competition
  • The agency has demonstrated that the cancellation occurred after the agency identified flaws in the solicitation that reasonably could be expected to limit competition.
  • Because the RFQ failed to state salient characteristics that equal products must meet, VA had reasonable basis to cancel the solicitation.
  • the solicitation did not clearly apprise vendors whether the procurement was being conducted on a sealed bid or negotiated procurement basis.
  • GSA discovered after contract award that the RFP did not include a mandatory DFARS clause requiring the contractor to use a U.S.-flag vessel, and therefore the solicitation did not comply with the requirements of the Cargo Preference Act. 
  •  the solicitation because the basis of award set forth in the solicitation did not reflect the agency’s intended procurement approach.
  • If an agency cannot purchase at a "fair and reasonable" price, as required by the FAR, then cancellation is warranted.
  • the uncertainty surrounding the future need for the services provided a reasonable basis upon which to cancel the solicitation.
  • Correcting [errors] to allow for a fair and equal competition provides a reasonable basis for canceling the solicitation.
  • an agency's cancellation of a negotiated procurement after receiving proposals where the agency determined that the solicitation overstated the agency's requirements and the agency would seek enhanced competition by relaxing its requirements.
  • [agency's] technical needs have changed, increasing beyond what the contract award would have provided, and that the statement of work (SOW) also no longer reflects the government's needs.
  • The management of an agency's funds generally depends on the agency's judgment concerning which projects and activities should receive increased or reduced funding and a contracting agency has the right to cancel a solicitation when, as a result of its allocation determinations, sufficient funds are not available.
  • Since QSSI's task order was issued under a solicitation that did not accurately reflect the agency's minimum needs, but instead was more restrictive of competition than necessary, and thus may have deterred some firms from competing or submitting a more advantageous quotation, we conclude that HUD properly terminated QSSI’s order. 
  • reducing maximum quantities can allow further competition from firms unable to perform at the originally stated quantities, but with the ability to perform at lower quantities.

You can probably double the variety of examples by researching here.

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Thx for the info Bob.

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On 12/23/2019 at 10:02 AM, joel hoffman said:

Major changes to the PWS or MAJOR change to the payment terms might warrant cancellation.

Also may depend upon the timing of the changes in the solicitation period.

Also depends upon how many various types of changes, like described  above are collectively or simultaneously occurring. 

Ah, but what is major?

   I would say anything that adds to the requirements placed on the contractor is major; anything that subtracts from the requirements placed on the contractor is also major; and anything that might adversely affect the contractor or contractor's rights is also major.

   Most modifications will fit in one of those categories.

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It’s not a modification.  You seemingly asked a question concerning prospective amendments before or after receipt of competitive proposals but before selection and award. There is no contractor at this point. See 15.206(e) and particularly, Bob’s post with GAO standards.

If a proposer or prospective proposer doesn’t like the changes, they can choose not to propose or to withdraw their proposal, if already submitted. 

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On ‎12‎/‎24‎/‎2019 at 4:48 PM, lotus said:

I would say anything that adds to the requirements placed on the contractor is major; anything that subtracts from the requirements placed on the contractor is also major; and anything that might adversely affect the contractor or contractor's rights is also major.

I think there will be very few who agree with your approach.  The result of your approach is that a solicitation amendment could almost never be issued (as every amendment would change something) -- that would be an absurd or unreasonable outcome, so I cannot endorse your definition.

I recommend reading FAR 15.206(e), which provides an answer to your question of whether a contracting officer should (1) issue a solicitation amendment; or (2) cancel the solicitation and issue a new one.  Indeed, I recommend using only that guidance to answer your question.  You will note that the word "major" is never used there, and that there is room for judgment.

We generally speak of amending solicitations and modifying contracts (to wit: see blocks 9, 10, 11, and 13 of the SF-30).

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This would be a good time to refer back to your market research and consider not only whether the change would alter the competitive landscape (i.e. 15.206(e) "additional sources likely would have submitted offers"), but also whether it would change cost drivers such that offerors who did propose might have chosen to propose in a different (and more beneficial to the Government) way had they known the details of the eventual requirement. It may be worth considering the possibility of solicitation amendments when you develop objectives for market research early in the acquisition planning process (if we're not careful sometimes our market research's only objective is "are two or more small businesses available" which wouldn't help with a solicitation "scope" question).

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Doesn't the cardinal change doctrine apply only post-award?  I think this thread is pre-award, and I would prefer not to think of cardinal changes in pre-award settings.

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1 hour ago, ji20874 said:

Doesn't the cardinal change doctrine apply only post-award?  I think this thread is pre-award, and I would prefer not to think of cardinal changes in pre-award settings.

Yes it does.  Is there any value in this follow up question though:

          'If this change were occurring during contract performance (rather than prior to award and after receipt of proposals), would it be a cardinal change?'

Folks seem to have a pretty good feel for what constitutes a cardinal change, and there is a lot of ink spilled on that subject, so I was trying to leverage some of that in answering the OP's question if possible.  If these concepts are totally unrelated, I'm relying on the group to send me back to my corner.

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I understand where you're coming from.  However, I think the text in FAR 15.206(e) is entirely adequate to answer the question regarding (1) amendment or (2) cancellation/new solicitation.  The original poster should simply read FAR 15.206(e) and then simply apply it as it is written.  For me, I think appeals to the cardinal change doctrine or any other text is unnecessary -- we need to rely on the applicable text in the FAR, which is really quite clear (even though it leaves room for contracting officer judgment).

I haven't posted a link to FAR 15.206(e), but I really hope anyone reading this thread will find it and read it. 

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