Under FAR Part 16 Task Order Solicitation, Agency Can Establish Competitive Range Without Notification

Under FAR Part 15 negotiated procurements, an agency must give notice and an opportunity to request a debriefing to offerors eliminated from the competitive range. But the notice requirement does not apply for task and delivery order procurements under FAR Part 16 where FAR Part 15 is inapplicable.

A recent GAO decision highlights this distinction.

The Department of Education issued multiple solicitations to meet IT requirements. One RFQ, the PIVOT H solicitation, was for hosting of applications, data, and IT systems services. The PIVOT H solicitation was issued for a task order pursuant to a multiple-award, IDIQ contract program.

Under PIVOT H, NTT DATA Services Federal Government, Inc. protested issuance of a task order to IBM, and GAO considered this protest in NTT DATA Services Federal Government, Inc., B-416123 (Comp. Gen.  2018). The RFQ was a best-value tradeoff, considering price and several non-price evaluation factors. The evaluation factors, in descending order of importance, were:  technical approach, past performance, and price and subcontracting goals.

NTT argued that the agency engaged  in improper additional rounds of discussions with IBM and Offeror A, but not with it. The agency erred, according to NTT, because it never made a formal competitive range announcement.

GAO rejected this argument, noting that the requirement to notify firms of the competitive range is a FAR Part 15 requirement, which was inapplicable to this RFQ because it was conducted under FAR Part 16. The RFQ stated:

Vendors are hereby instructed that, regardless of any language that may be used in this solicitation, the Department is NOT conducting this procurement under FAR [Federal Acquisition Regulation] Part 15.  This procurement is being conducted under the “fair opportunity” requirements of FAR subpart 16.505.

Furthermore, “FAR § 16.505(b) states, among other things, that the requirements of FAR subpart 15.3 are inapplicable to task order competitions such as the instant acquisition.” GAO noted that “the record shows that the agency effectively established a competitive range comprised of the firms the agency determined had a reasonable chance for award.” The agency’s documentation stated that

The Department encouraged all vendors to revisit their pricing after evaluating their initial proposal and requested that they apply further discounts.  Therefore, there was no reason to believe that, based on NDSFG’s and [Offeror B]’s total evaluated pricing, that either vendor could have reasonably provided more competitive pricing as they would have had to significantly reduce their proposals by approximately $21 million (21%) to be competitive with IBM and $35 million (35%) to be competitive with [Offeror A].  It should be noted that the [subsequent] negotiations with IBM and [Offeror A] did not address the technical solutions and only focused on price and past performance.

Given these facts, and that all interested parties were afforded fair opportunity twice (initial solution submission and first round of negotiations), the Department only entered into [further] negotiations with IBM and [Offeror A].

Based on this evaluation, GAO determined that eliminating NTT from the competitive range was reasonable. The notice requirements for the competitive range were inapplicable:

The protester is correct that the agency did not perform the other two elements required under FAR § 15.306 in connection with the establishment of a competitive range.  Specifically, the agency did not provide DSFG with contemporaneous notice of its elimination from further consideration, or afford the firm an opportunity to request a debriefing at that time.  However, since those procedural requirements are not found in FAR § 16.505, there was no need for the agency to have provided DSFG such notice and opportunity, and DSFG has not alleged or demonstrated that the agency’s failure in this regard caused it competitive prejudice.  We therefore deny this aspect of DSFG’s protest.

Under FAR 16.505, then, an agency can effectively establish a competitive range without notifying an offeror or allowing the opportunity for a debriefing, because those are requirements found only under FAR Part 15.  As task and delivery order procurements become increasingly popular, offerors should remember that their notification and debriefing rights may be different than expected.

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