FAR 13.105: Synopsis and posting requirements

Comptroller General - Key Excerpts

Where an agency is using simplified acquisition procedures, it is not required to use full and open competition to conduct the procurement. See 41 U.S.C. §§ 3301(a), 3305. Instead, the agency is required to promote competition to the maximum extent practicable. 41 U.S.C. §§ 1901, 3305(d); FAR § 13.104. With respect to publication of a solicitation, except where the agency uses electronic posting,[7] the agency is required to “post, for not less than 10 days, in a public place at the contracting office . . . a notice of solicitation.” 41 U.S.C. §§ 1708(a)(1), 1901(e)(1); 15 U.S.C. § 637(e)(1)(b). Beyond that, when using simplified acquisition procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition. Emergency Vehicle Installations Corp., B-408682, Nov. 27, 2013, 2013 CPD ¶ 273 at 4; Minotaur Eng’g, B-258367, Jan. 11, 1995, 95‑1 CPD ¶ 137 at 2 (protest sustained where contracting officer solicited one source and failed to post notice of solicitation properly).

The FAR implements these requirements for a procurement expected to be valued between $15,000 and $25,000, as here, by directing the contracting officer to “display[] in a public place, or by any appropriate electronic means, an unclassified notice of the solicitation or a copy of the solicitation,” which must “be posted not later than the date the solicitation is issued, and must remain posted for at least 10 days or until after quotations have been opened, whichever is later.” FAR §§ 5.101(a)(2); 13.105(a), (b).

Beyond displaying the solicitation, the FAR also describes how the statutory requirement for maximum practicable competition can be met, as follows:

[M]aximum practicable competition ordinarily can be obtained by soliciting quotations or offers from sources within the local trade area. Unless the contract action requires synopsis pursuant to 5.101 and an exception under 5.202 is not applicable, consider solicitation of at least three sources to promote competition to the maximum extent practicable. Whenever practicable, request quotations or offers from two sources not included in the previous solicitation.

FAR § 13.104.

Bluehorse contends that the contracting officer failed to take reasonable steps to obtain competition because the RFQ was placed in a binder on a weekend when there was effectively no public access to the building, and specified a due date for quotations at 2 p.m. on Monday. Protester’s Comments at 2. The BIA argues that the placement of the solicitation in the binder was legally sufficient because the binder was available to anyone stopping at the contracting office reception desk, and the public could access the building by showing identification. AR at 2. In response to an inquiry from our Office, the BIA acknowledged that “the building is not open to the public on weekends but could be accessible by appointment.” Email from Counsel for BIA to GAO, Aug. 22, 2016, at 1.

Bluehorse also argues that the contracting officer failed to contact at least three sources because one of the firms she contacted was a propane supplier (as evident from its name) that could not reasonably have been expected to submit a quotation to deliver diesel fuel. Protest at 2. In response, the BIA acknowledges that the firm’s “history may not indicate diesel deliveries,” but the agency argues that the firm was a third potential source because “the vendor is clearly an ISBEE fuel vendor in the vicinity of Gallup, New Mexico” and it “could easily seek to acquire the diesel from another source.” AR at 5.

The BIA’s actions here fell short of the minimum standards for obtaining maximum practicable competition when using simplified acquisition procedures with respect to both publication of the requirement and soliciting sources. We do not regard the Saturday placement of the solicitation in a binder, in an office that was effectively closed to the public on a weekend, for quotations that were due by 2 p.m. on Monday, as meeting the requirement for public posting. Further, the contracting officer’s decision to contact one source that was plainly unlikely to supply diesel fuel, leaving only two sources that could, does not meet the guideline of soliciting “at least three sources to promote competition to the maximum extent practicable.” FAR § 13.104; cf. Latvian Connection Gen. Trading & Constr., LLC, B‑409442, Apr. 25, 2014, 2014 CPD ¶ 135 at 2 (stating that soliciting three sources meets the requirements for conducting a simplified acquisition). In both respects, the BIA’s actions fail to show appropriate concern for fair and equitable competition.

The BIA argues that regardless of any errors in publicizing or soliciting competition, Bluehorse was not competitively prejudiced by the agency’s actions because it is in Reno, Nevada, and thus could not have obtained the solicitation. Agency Reply to Dismissal Request at 1. We disagree. If the BIA had conducted the procurement with reasonable concern for obtaining competition, it could have elected either to publicize the requirement for a time and in a manner that would have allowed Bluehorse to respond, or might have contacted Bluehorse directly, particularly given its status as a past source of diesel fuel to the agency. We need not determine with certainty that Bluehorse would have been awarded the contract in order to conclude that the protester was prejudiced here. We resolve any doubts regarding prejudice in favor of the protester; a reasonable possibility of prejudice is sufficient. Celta Servs., Inc., B-411835, B-411835.2, Nov. 2, 2015, 2015 CPD ¶ 362 at 12.

We conclude that the BIA did not conduct the procurement consistent with a concern for fair and equitable competition, and thus did not achieve maximum practicable competition. Accordingly, we sustain the protest.   (Bluehorse Corporation B-413533: Oct 28, 2016)

SMI also asserts that the agency did not publicly display the solicitation as required by FAR sect. 5.101(a)(2). For procurements between $10,000 and $25,000, such as the one here, the requirements for public notice of the solicitation appear in FAR sect. 5.101(a)(2); that provision requires public display of the solicitation unless one of the enumerated exceptions in FAR sect. 5.202 applies. While FAR sect. 5.101(a)(2) is generally applicable to all procurements between $10,000 and $25,000, where, as here, the agency has chosen to use simplified acquisition procedures for a procurement in that price range, the notice requirements are established not by FAR sect. 5.101, but by FAR sect. 13.105. That provision states that the notice requirements of FAR sect. 5.101 (including the public display requirement in FAR sect. 5.101(a)(2)) apply unless “an exception in [FAR sect.] 5.202 applies.” FAR sect. 13.105(a)(2). The language does not limit the available exceptions to those enumerated in FAR sect. 5.101(a)(2). Accordingly, all the exceptions in FAR sect. 5.202 are available to an agency using simplified acquisition procedures to conduct a procurement with an anticipated value between $10,000 and $25,000. See Military Agency Servs. Pty., Ltd., B-290414 et al., Aug. 1, 2002, 2002 CPD para. 6-7. Here, the agency relies on the unusual and compelling urgency exception in FAR sect. 5.202(a)(2). We will object to an agency’s determination that it has a need for property or services of an unusual and compelling urgency only where the determination lacks a reasonable basis. See Abbott Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD para. 119 at 6. In this regard, an agency’s assertion that there is a critical need which affects military operations carries considerable weight, and the protester’s burden to show unreasonableness is particularly heavy. Id. As explained above (in the analysis of the whether the response time to the solicitation was reasonable), there is ample support in the record for the agency’s position that there was an urgent need to procure the work called for under both solicitations here. Given that conclusion, the agency was not obligated to publicly display the solicitation. (Specialty Marine, Inc., B-296988, October 11, 2005) (pdf)

We first note that the agency has not stated or otherwise explained in any manner why the "process of coordinating with other provinces" was so "cumbersome," or why that would relieve it of any of its statutory and regulatory obligations regarding the proper posting of procurement actions. In this regard, we note that during a telephone hearing, the basic process of coordinating with the IBET and Northern Province contracting offices was described as nothing more than sending them the pre-solicitation notice and RFQ, and requesting that they be posted on the provinces’ respective websites. Additionally, although the agency is correct that the pre-solicitation notice and RFQ could have been accessed by searching the FedBizOpps site using the correct NAICS code, we note that this code includes many divergent services and postings nationwide; indeed, during the course of a telephone hearing with the parties, such a search was conducted and it yielded well over 900 different postings. Given the circumstances here, it would be quite burdensome for a contractor to have to regularly search such a large database in order for the contractor to be assured that it remained aware of potential contracting opportunities. Nevertheless, under the circumstances here, we do not agree with the protester that the agency’s posting of its requirements on only the Sierra Cascade Province’s FedBizOpps website failed to meet the statutory requirement that the notice be "electronically accessible in a form that allows convenient and universal user access." See 41 U.S.C. sect. 416 (a)(7) (2000). We have long held that prospective vendors have an affirmative duty to make every reasonable effort to obtain solicitation materials. USA Info. Sys., Inc., B-291488, Dec. 2, 2002, 2002 CPD para. 205 at 3; American Material Handling, Inc., B-281261, Jan. 19, 1999, 99-1 CPD para. 13 at 2; see Upside Down Prods., B-243308, July 17, 1991, 91-2 CPD para. 66 at 3. As noted above, each particular contracting opportunity set forth in the RFQ could have been readily located on the FedBizOpps website by searching by geographic location. That is, the contracting opportunity that the protester is interested in, the provision of wildland fire engine services for the Tahoe National Forest in the IBET Province, could have been readily located by searching the FedBizOpps website for contracting opportunities in that forest--that is, by searching the FedBizOpps website using the term “Tahoe.” See Protest at 2. Had the protester done this, the protester would have found both the pre-solicitation notice and RFQ. Given this, we conclude that the agency’s actions satisfied the legal requirements.  (Jess Bruner Fire Suppression, B-296533, August 19, 2005) (pdf)

The record here also discloses that the agency’s sole-source determination may not be reasonable. We first note in this regard that the agency has never synopsized its intent to make a sole-source award to Metaworks. Although the agency points out that it received no responses (other than the protester’s) to the December 15 pre‑solicitation notice, the agency also acknowledges that the pre-solicitation notice was misclassified as “medical services,” rather than as “other scientific and technical consulting services.” AR, Tab 1, Statement of Facts, at 4. The document that the agency terms a “revised notice” was, in actuality, an RFQ apparently issued only to IVI. Given these flaws, the agency’s actions may have denied potential sources (other than the protester) the opportunity to respond to a proper synopsis of the agency’s intended sole-source. In addition, in its justification of its sole source determination, the agency describes Metaworks’ skills and experience, and states that Metaworks is “the leading provider” of these services. AR, Tab 2, at 10 (Sole Source Justification). This description, on its face, suggests that there are other providers of these services, and that the agency is aware of them. Finally, we note that the protester claims that it, too, can provide these services. Protester’s Comments at 5. In short, there is little here to support the determination that only Metaworks could provide these services. See Ultraviolet Purification Sys., Inc., supra, at 4; Jack Faucett Assocs., Inc., supra, at 4. (Information Ventures, Inc., B-293541, April 9, 2004) (pdf)

Our review of the record leads us to conclude that this synopsis did not accurately describe the agency’s requirements.  As set forth above, the notice, while not entirely clear, indicates a need for a contractor to “plan and convene a conference” (described later in the notice as involving over 4,000 participants), and to provide training for conference participants on the Get Connected Toolkit.[2]   However, the requisition, including the scope of work, dated November 20, 2003, which presumably served as the basis for the notice, provides a markedly different description of the work here.  Specifically, the requisition shows that the agency actually wanted a contractor to provide a geriatrics specialist and a conference coordinator to prepare a one-day training course in using the Get Connected Toolkit.  This training course was to be offered during the course of the American Society of Aging (ASA)/NCOA conference on April 14, 2004, and the agency anticipated providing training to up to 60 individuals.  See AR, Tab D, Statement of Work at 2-10.  In our view, the agency’s actual requirements are significantly different than “planning and convening a conference” for 4,000 people, as the notice advised. In light of the misleading notice used here, Information Ventures, as well as other potential contractors, was denied any realistic opportunity to compete for the agency’s requirements.  In this regard, Information Ventures advises that it has extensive experience in planning conferences for HHS in the subject areas relevant to the procurement, including graphics and design expertise; that it, too, has the ability to identify experts and consultants; and that it would have competed for the contract had the agency accurately described its needs.  Without providing an accurate notice of its sole-source procurement, HHS failed to ensure that its actions provided competition to the maximum extent practicable, as required by FAR § 13.104 for simplified acquisitions.  See id. at 6. (Information Ventures, Inc., B-293518; B-293518.2, March 29, 2004) (pdf)

Generally, agencies are required to provide public notice of proposed contract actions for amounts above $25,000 in the Commerce Business Daily (CBD) and to give potential sources a reasonable opportunity to respond. 41 U.S.C.A. sec. 416(a) (West Supp. 1998); FAR sec. 5.101, 5.203(b). This requirement extends to proposed sole-source awards using simplified acquisition procedures (i.e., for amounts between $25,000 and $100,000). FAR sec. 13.003(i)(2), 13.105(a). Although certain contract actions using FACNET are exempt from the CBD notice and response time requirements, see 41 U.S.C.A. sec. 416(c)(1)(A) and (B); FAR sec. 5.202(a)(13) and (14), 13.105(a)(1), this does not mean that public notice and an opportunity to respond are not required where FACNET is used; instead, it means that when an acquisition is conducted via FACNET, public notice may be furnished via FACNET rather than via the CBD.  (Jack Faucett Associates, Inc., B-279347, June 3, 1998)

Comptroller General - Listing of Decisions

For the Government For the Protester
Specialty Marine, Inc., B-296988, October 11, 2005 (pdf) Bluehorse Corporation B-413533: Oct 28, 2016
Jess Bruner Fire Suppression, B-296533, August 19, 2005 (pdf) Information Ventures, Inc., B-293541, April 9, 2004 (pdf)
  Information Ventures, Inc., B-293518; B-293518.2, March 29, 2004
  Jack Faucett Associates, Inc., B-279347, June 3, 1998  (print)


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