Establishing a Competitive Range Under FAR 12 Procedures When AWD Was Contemplated

[civ_1102]

Scenario: Government issues an RFP under FAR proceduers for services. The RFP included FAR 52.212-1, indicating that award without discussions is contemplated but discussions can be held if necessary. It is now necessary to hold discussions. Even though the RFP does not contain the FAR 15 competitive range language, when establishing a competitive range to conduct discussions, would it still be acceptable to establish "a competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. "?

[Guest Vern Edwards]

Are you using simplified acquisition procedures?

[ji20874]

civ_1102,

The answer to Vern's question is key to answering your question. Saying you're using FAR Part 12 doesn't tell us whether you're using commercial item procedures (FAR Part 12) in conjunction with simplified acquisition procedures (FAR Part 13), sealed bid procedures (FAR Part 14), or negotiated procedures (FAR Part 15). See FAR 12.102 ( b ). You did mention RFP. but RFPs are allowed under both FAR Part 13 and FAR Part 15. So the answer to your question hinges on whether you are using FAR Part 13 or FAR Part 15.

If Part 13, then no, you do not need to establish a competitive range, but you can if you want to. See FAR 13.106-2 ( b ) ( 3 ). If Part 15, then yes, you do. If the latter, your competitive range can include all offerors. See FAR 15.306 ( c ).

[ji20874]

civ_1102,

Oh, and you should be aware that your quotation "a competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals" comes from the end of FAR 15.306 ( c ) ( 2 ) -- you can do this only if your solicitation document complied with the rest of 15.306 ( c ) ( 2 ); namely, only if your solicitation notified potential offerors that the competitive range might be limited for purposes of efficiency.

[civ_1102]

No, the total value is over the commercial test program threshold. The RFP neglected to add any additional FAR 15 language beyond what is incorporated into the FAR 12 clauses.

[Jacques]

Did the solicitation say you were using streamlined procedures under FAR Subpart 12.6?

[Guest Vern Edwards]

See FAR 12.102(:

{ Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition.

You must use one of those sets of procedures--13, 14, or 15. Since the acquisition exceeds the limit for proceeding under FAR Subpart 13.5, you must follow either Part 14 or Part 15. It does not appear that you have proceeded in accordance with FAR Part 14 thus far, so all you have left is FAR Part 15. You must follow those procedures. It is not a matter of choice any longer. So proceed accordingly.

FAR 52.212-1(g) says:

(g) Contract award (not applicable to Invitation for Bids). The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror?s initial offer should contain the offeror?s best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary. The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.

If you are going to conduct discussions, establish a competitive range in accordance with FAR 15.306( c) and conduct discussions and solicit final proposal revisions in accordance with FAR 15.306(d) and (e) and 15.307.

[Jacques]

deleted

[Guest Vern Edwards]

Jacques deleted his last post, but I'm going to respond anyway.

Every procurement is either simplified, sealed bid, or negotiated and must be conducted under Part 13, 14, or 15, unless the law expressly provides otherwise, e.g., A-E procurements. Nothing in FASA excused commercial item transactions from the CICA rules about competitive proposals and the conduct of discussions. See, 10 USC 2375:

Sec. 2375. Relationship of commercial item provisions to other provisions of law

(a) Applicability of Title.--Unless otherwise specifically provided, nothing in this chapter shall be construed as providing that any other provision of this title relating to procurement is inapplicable to the procurement of commercial items.

The streamlined procedure in FAR Subpart 12.6 is a negotiated procedure that contemplates a streamlined evaluation and award without discussions. The issue in this thread is the establishment of a competitive range prior to the conduct of discussions.

See, too 10 USC 2305(:

(4)(A) The head of an agency shall evaluate competitive proposals in accordance with paragraph (1) and may award a contract--

(i) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or

(ii) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.

That law is implemented at FAR 15.306?, which says:

( c) Competitive range.

(1) Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph ( c)(2) of this section.

(2) After evaluating all proposals in accordance with 15.305(a) and paragraph ( c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C. 2305((4) and 41 U.S.C. 253b(d)).

(3) If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an offeror?s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award. Written notice of this decision shall be provided to unsuccessful offerors in accordance with 15.503.

(4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 and 15.506).

(4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 and 15.506).

I know of nothing that makes those requirements inapplicable to the conduct of a procurement for commercial items.

[civ_1102]

Thanks to all. I knew that I was ok in terms of establishing a competitive range. My question was more relating to whether or not I could exclude offerors from the range for the purpose of efficiency. But I believe the RFP must state the Government's intent to do that, which my RFP did not.

[Guest Vern Edwards]

That's right. The RFP must say so. Go ahead and throw out whomever you want. If they object, put them back in.

[Don Mansfield]

The original poster was quoting from FAR 15.306( c )(2), which has to do with limiting the competitive range for purposes of efficiency. If the question was whether the competitive range could be limited for purposes of efficiency, then the answer is yes, if the solicitation advises offerors that the Government may do that. The problem is that, unlike FAR 52.215-1, FAR 52.212-1 does not advise offerors of that possibility. Compare the two relevant paragraphs in the provisions. Here's FAR 52.215-1(f)(4):

The Government intends to evaluate proposals and award a contract without discussions with offerors (except clarifications as described in FAR 15.306(a)). Therefore, the offeror?s initial proposal should contain the offeror?s best terms from a cost or price and technical standpoint. The Government reserves the right to conduct discussions if the Contracting Officer later determines them to be necessary. If the Contracting Officer determines that the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals.

Here's FAR 52.212-1(g):

Contract award (not applicable to Invitation for Bids). The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror?s initial offer should contain the offeror?s best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary. The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.

This doesn't advise offerors that the Government may limit the competitive range for purposes of efficiency. So if the solicitation contains FAR 52.212-1 and is otherwise silent on the Government's right to limit the competitive range for purposes of efficiency, then the competitive range cannot be limited for purposes of efficiency.

[Jacques]

Jacques deleted his last post, but I'm going to respond anyway.

Thanks, Vern. Once again, I'm guilty of doing my homework after posting. 10 USC 2304(g)(1) answered the mail for me. As my question was groundless, I thought better to delete it.

[Guest Vern Edwards]

Thanks, Vern. Once again, I'm guilty of doing my homework after posting. 10 USC 2304(g)(1) answered the mail for me. As my question was groundless, I thought better to delete it.

Jacques:

I thought your post was okay. You were being thoughtful, which is good. I should have cited the information in my earlier post.

Vern