Thomas Warren

Vern and Marge, Thank you both for the information. I was actually looking for insight on both scenarios--the general question of whether an agency is required to consider negative information from a competitor and the more specific question laid out in the second scenario. There is a dearth of case law for either scenario. If I appeared to be "dribbling" information, that is because I was. Since this is a website full of individuals with a wealth of knowledge on all matters of government contracting (and a voluntary response policy), I did not believe I was breaching wifcon etiquette. My sincerest apologies. As for your points, Vern, they are certainly grounded in common sense. My only wish is that your point number 1 came with a case citation. Perhaps it will soon. Regards, Thomas

Thanks, MGRumbaugh. I appreciate your insight. Your comments about "ghosting" are particularly interesting. Let me see if I can throw a further factual kink into this to see if this changes any analysis. What if an offeror learns of the identity of a competitor via a FAR 15.503(a)(2) notification to small businesses? That section in the FAR requires the Agency to notify each offeror in writing prior to award regarding the name of the apparent awardee (for purposes of a size status challenge). If the apparently unsuccessful offeror learns the identity of the apparent awardee and then uses this information to seek out negative past performance information about the apparent awardee (and submits this information to the Agency), would the Agency have to consider this information at this stage (requiring it to re-open the evaluation)? The obvious wrinkle here is that the evaluation has been "completed" but award has not yet been made. Is this information too close at hand to ignore and would the agency then have to go back and re-evaluate with this "new" information? Of course, the apparent awardee is not privy to information about its competitors, so it seems like considering this information could give the unsuccessful offeror an unfair competitive advantage. Any thoughts on this? Or would the advice remain the same? Thanks again-

All are likely well aware of the GAO's "too close at hand to ignore" rule, which carves out a narrow exception to the general rule that an agency's past performance evaluation is a matter within its discretion that will not be questioned unless it is unreasonable or inconsistent with the terms of the solicitation or applicable statutes and regulations. See, e.g., Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004 CPD ? 56. The GAO has recognized that in certain "limited circumstances" an agency has an obligation, as opposed to the discretion, to consider outside information bearing on an offeror?s past performance "as where the information in question was simply too close at hand to require offerors to shoulder the inequities that spring from an agency?s failure to obtain, and consider, the information." See, e.g., Airwork Limited-Vinnell Corp., B- 285247, B- 285247.2, Aug. 8, 2000, 2000 CPD ? 50 at 8. I'm curious what the experts think about a situation where an offeror learns the identity of one of its competitors and then submits negative past performance information about this competitor--information previously unknown to the agency and not the type of information that would be discovered during a normal past performance evaluation (e.g., a state or local contract of the same subject matter). Does the agency now have the obligation, as opposed to the discretion, to consider this information? Does the analysis change if the information is submitted following close of proposals? In general, does the FAR allow the practice of submitting negative information about a competitor (or likely competitor) if the soliciation does not specifically prohibit it? Would the Agency be forced to consider this information under the "too close at hand" doctrine? The FAR seems pretty loose on the subject and the GAO appears to not have really grappled with it. Any insight would be appreciated.

The language of the bill says agencies must use "competitive procedures in accordance with . . . section 2304 . . . and the Federal Acquisition Regulation." Section 2304 and the FAR obviously includes FAR 6.302-1. You said "the bill specifically precludes the use of funds to pay for contracts awarded on a sole-source basis, not restrict funds for contracts awarded using other than full and open competition." On what basis, then, do you say that the bill would not allow for the use of FAR 6.302-1? Since the text of the bill says that agencies must use competitive procedures in accordance with 10 USC 2304 and the FAR, how does that restrict the use of any of the exceptions to full and open competition under 10 USC 2304© and FAR 6.302? I understand your point about HUBZones and SDVOSB (and I would assume anything under the micro-purchase threshold?), but your interepretation on the use of FAR 6.302-1 seems off. What am I missing?

Doesn't FAR 6.301(d) already require that? So you're saying that the bill would allow the use of the one responsible exception, for example, but only if the agency also complies with FAR 6.301(d), something that it is already required to do? I guess that is my point, then: what does this provision do? What real restriction does it impose?

I don't know if those out there in the wifcon world have been keeping close tabs on this Stimulus Bill, but I would be interested in the reaction to Section 1608 in the Senate Bill. The text is outlined below, but my brief take is this: the title of the section indicates that it was written by an amateur who doesn't know what he is talking about (I'm looking at you, Senator Coburn), but I don't think the language as written gets him where he wants to go. Take a look, but section (a) says you must use "competitive procedures in accordance with . . . section 2304 . . . and the Federal Acquisition Regulation." Looking at the title, the intent appears to be to restrict an agency's ability to use other than full and open competition (eliminating the use of those loathsome 'no-bid' contracts), but the language is ambiguous enough where it essentially says that agencies should comply with Sec 2304 and the FAR..........which is what they already do. So?? Any alternative readings? Other thoughts? ------------------------------------------------------------------------------------------------ PROHIBITION ON NO-BID CONTRACTS AND EARMARKS SEC. 1608. (a) Notwithstanding any other provision of this Act, none of the funds appropriated or otherwise made available by this Act may be used to make any payment in connection with a contract unless the contract is awarded using competitive procedures in accordance with the requirements of section 303 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253), section 2304 of title 10, United States Code, and the Federal Acquisition Regulation. ( Notwithstanding any other provision of this Act, none of the funds appropriated or otherwise made available by this Act may be awarded by grant or cooperative agreement unless the process used to award such grant or cooperative agreement uses competitive procedures to select the grantee or award recipient.

I may have been a little unclear with the language I chose to use, and I appreciate the response. If the Government issues a task order notice and requests proposals (under the procedures outlined in the solicitation) and no MATOC holder submits a proposal, then there has been no offer or acceptance yet, right? (Contrasted with the situation when the Government merely issues a task order to a SATOC holder, for instance). If, however, MATOC holder "A" submits a proposal and the Government issues it a task order, then under the provisions of the Order Limitations clause MATOC holder "A" cannot then refuse the order. I guess the point is that under the language in the Order Limitations clause, if all MATOC holders refuse to submit a proposal on a task order (one that is within the O.L. clause), the Government can essentially issue one of the MATOC holders a task order and require performance? Essentially, the moment the Government actually issues a compliant order, the contractor holding the IDIQ is bound to perform. So the distinction I see is this: under a MATOC, a contractor is not required to respond to the order notice, but when it does (or if the Government then issues the order), it must perform. Please let me know if I am misunderstanding your point. Thanks, Tom.

I understand your point, but what about an order under a multiple award contract? Though the clause is required for MATOCs, I don't conceptually understand the concept in that framework. A contractor would not be required to accept an offered task order; rather, the MATOC holders may compete within the parameters of the fair opportunity task order process outlined in the soliciation. The language in the Order Limitations Clause makes far more sense in the context of a requirements contract or a SATOC, but less so in a MATOC. Is it your opinion that the government can demand that a MATOC holder accept a task order if it is within the proper parameters of the ordering limits and the Order Limitations clause? What then of fair opportunity (I am making the assumption that an exception is not applicable)? I have always had a hard time understanding the language in the Order Limitations clause in the context of multiple award IDIQ contracts, so any insight you can provide on this would be appreciated.