If the provision at FAR 52.212-1 is included in a FAR 13 Simplified Acquisition, what is the order of precedence?

[TyroneSlothrop]

If the provision at FAR 52.212-1 is included in a FAR 13 Simplified Acquisition, what is the order of precedence?

That is, does the text of this provision have precedence over FAR 13 rules, where there are conflicts? Or vice versa? (As an example of such, 52.212-1 specifies content of debriefing.)

[ji20874]

This raises two thoughts...

(1) Order of precedence applies to multiple items within a single document (perhaps including attachments), such as a solicitation or a contract.

A solicitation may contain the provision at FAR 52.212-1, but it does not contain "FAR 13 rules" -- so is there any order of precedence question to be resolved?

If you are running a procurement where the solicitation includes FAR 52.212-1, you do what the solicitation says.  If you are planning a procurement that will include FAR 52.212-1, you tailor that provision to show what you intend to do -- then you do it.

If you don't want to do the debriefing described in FAR 52.212-1, then you should tailor that provision accordingly. 

(2) But, have you carefully read that text?  The standard version of the provision at FAR 52.212-1 does not promise a debriefing -- it merely says "If a debriefing is offered..."

A solicitation does not have to offer a debriefing, as the general right to debriefing arises outside the solicitation.  The provision at FAR 52.212-1 does not promise a debriefing.  So, what is the conflict for which you need to reach to order of precedence to resolve?

[C Culham]

59 minutes ago, TyroneSlothrop said:

If the provision at FAR 52.212-1 is included in a FAR 13 Simplified Acquisition,

 

40 minutes ago, ji20874 said:

he general right to debriefing arises outside the solicitation

No disagreement with ji just some added substance. 

You may want to read the following noted protest in total.   Noting that you conducted the procurement under FAR Part 13 policies a debriefing is not required (FAR 8, 12, 13 and 14 do not require debriefings) but you may want to consider the wording at FAR 13.106-3 (c) & (d) as to what needs to occur with regard to sharing information about the award. 

Here is the protest decision https://www.gao.gov/assets/b-414220.2.pdf   Here in part is what it says - 

"Furthermore, notwithstanding arguments to the contrary, we do not find that FAR clause 52.212-1(l) is inconsistent with this conclusion. Specifically, that clause sets forth the information that will be disclosed “[i]f a post-award debriefing is given to requesting offerors.” Id. It does not, however, establish when an agency is to provide a debriefing. Rather, consistent with the provisions of FAR § 12.102(b), whether a debriefing is to be given depends on the relevant policies and procedures that were applicable to the procurement (i.e., FAR Part 13, 14, or 15)."

[TyroneSlothrop]

Thank you ji20874 & C Culham!

[Guardian]

1 hour ago, C Culham said:

You may want to read the following noted protest in total.   Noting that you conducted the procurement under FAR Part 13 policies a debriefing is not required (FAR 8, 12, 13 and 14 do not require debriefings) but you may want to consider the wording at FAR 13.106-3 (c) & (d) as to what needs to occur with regard to sharing information about the award. 

15.506 Postaward debriefing of offerors. 

(a)(1) An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award.

15.503(b) Postaward notices.

(2) Upon request, the contracting officer shall furnish the information described in paragraph (b)(1) of this section to unsuccessful offerors in solicitations using simplified acquisition procedures in part  13. 

15.000 Scope of part.

This part prescribes policies and procedures governing competitive and noncompetitive negotiated acquisitions. A contract awarded using other than sealed bidding procedures is a negotiated contract [emphasis added] (see 14.101).

[Don Mansfield]

@Guardian, if you were trying to make a point, I missed it.

[Guardian]

@Don Mansfield Carl stated that FAR 13 does not require debriefings.  FAR paragraph 13.106-3(d) refers to a "brief explanation of the basis of the contract award decision [to be provided upon request]."  That paragraph refers the reader to 15.503(b)(2), Postaward Notices, which states when "using [SAP] in part 13" the CO "shall furnish the information described in [15.503](b)(1).  FAR subparagraph 15.506(a)(1) states that "in accordance with 15.503(b), [an offeror] shall be debriefed [emphasis added] and furnished the basis for the selection decision and contract award."  FAR paragraphs 15.505(e) (pre-award) and 15.506(d) (post-award) ennumerate, at a minimum, what debriefings shall include.  FAR 15.503, by its very title, provides guidance concerning "Notifications to unsuccessful offerors," not debriefings.  However, FAR 15.506(a)(1) seems to associate the requirements for postaward notices described under 15.503(b) with a debriefing.  I am just curious, why do you think that is?

[ji20874]

1 hour ago, Guardian said:

Carl stated that FAR 13 does not require debriefings.

And rightly so, as Carl is correct. The "brief explanation" contemplated by FAR Part 13 is not a debriefing -- it is a brief explanation. FAR 13.106-3(d) sends the reader to 15.503(b)(2) -- it does not send the reader to anything in 15.505 or 15.506 -- so, Guardian, you are looking beyond the mark -- look only to 15.503(b)(2) and do not look to 15.505 or 15.506.

The post-award notice requirement of FAR 15.503 is entirely and wholly separate from the debriefing requirement of FAR 15.505 and 15.506.

• In a Part 15 procurement, both are applicable.
• In a Part 13 procurement, only the first is applicable and then only if requested by a quoter.

[Guardian]

29 minutes ago, ji20874 said:

And right so, as Carl is correct.  The "brief explanation" contemplated by FAR Part 13 is not a debriefing -- it is a brief explanation.

@ji20874 I agree.  "If a supplier requests information on an award that was based on factors other than price alone," I respond by giving what I document in the file as a brief explanation."  However, my question is, why does part 15 refer to the procedures provided for that brief explanation together with the statement "in accordance with 15.503(b), shall be debriefed [FAR 15.506(a)(1)]"?

I understand your point.  But it's still a glitch in the language.

[ji20874]

In a Part 15 procurement, the contracting officer does the FAR 15.503 notice first, and the FAR 15.506 debriefing occurs later.  The "shall be debriefed" text in 15.506 refers to the debriefing, not the notice.  If a Part 15 offeror makes a request within three days of receiving the notice, the agency "shall" provide a debriefing.

The 15.503 notice and the 15.506 debriefing remain entirely and wholly separate.

[Guardian]

Just now, ji20874 said:

In a Part 15 procurement, one does the FAR 15.503 notice first, and the FAR 15.506 debriefing occurs later.  The "shall be debriefed" text in 15.506 refers to the debriefing, not the notice.  If a Part 15 offeror makes a request within three days of receiving the notice, the agency "shall" provide a debriefing.

The 15.503 notice and the 15.506 debriefing remain entirely and wholly separate.

I get it, but no one can get around the fact that part 15 states, "in accordance with 15.503(b), shall be debriefed," and that 15.503(b) is the exact reference provided by 13.106-3 in the same sentence that discusses the supplier being entitled to a brief explanation of the basis for the contract award decision...." 

[ji20874]

 

16 minutes ago, Guardian said:

I get it, but no one can get around the fact that part 15 states, "in accordance with 15.503(b), shall be debriefed,"

No.  You are neither reading it correctly, nor quoting it correctly.  FAR 15.506(a)(1) says that if an offeror makes a request within three days after receiving the 15.503 notice, the offeror "shall be debriefed."  It absolutely does not say that a 15.503 notice is a debriefing.

[Guardian]

2 minutes ago, ji20874 said:

No.  You are neither reading it correctly, nor quoting it correctly.  FAR 15.506(a)(1) says that if an offeror makes a request within three days after receiving the 15.503 notice, the offeror "shall be debriefed."  It absolutely does not say that a 15.503 notice is a debriefing.

@ji20874 Yes, I see.  It makes complete sense now.  Thank you!

[joel hoffman]

Nothing here sends the reader anywhere outside of 15.503(b). Don’t  conflate the two.

“15.503   (b) Postaward notices.  

(1) Within 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award (  10 U.S.C.2305(b)(5) and  41 U.S.C.3704) or had not been previously notified under paragraph (a) of this section. The notice shall include-

                 (i) The number of offerors solicited;

                 (ii) The number of proposals received;

                 (iii) The name and address of each offeror receiving an award;

                 (iv) The items, quantities, and any stated unit prices of each award. If the number of items or other factors makes listing any stated unit prices impracticable at that time, only the total contract price need be furnished in the notice. However, the items, quantities, and any stated unit prices of each award shall be made publicly available, upon request; and

                 (v) In general terms, the reason(s) the offeror’s proposal was not accepted, unless the price information in paragraph (b)(1)(iv) of this section readily reveals the reason. In no event shall an offeror’s cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror.

            (2) Upon request, the contracting officer shall furnish the information described in paragraph (b)(1) of this section to unsuccessful offerors in solicitations using simplified acquisition procedures in  part  13.”

 

[Vern Edwards]

Interesting thread.

TyroneSlothrop got the answer he was looking for by the third post. The rest of this has been a series of exchanges between Guardian and long-standing members.

@GuardianA CO who conducted a simplified acquisition in which the solicitation included FAR 52.212-1, and who receives a request from a disappointed quoter for a "debriefing," should not worry over the difference between a "brief explanation" and a "debriefing" like some Lilliputian arguing about at which end one should break an egg. They should just email the information listed in 52.212-1(l) and 15.503(b)(1) and thank the quoter for its participation.

[Guardian]

8 hours ago, Vern Edwards said:

 

@GuardianA CO who conducted a simplified acquisition in which the solicitation includes FAR 52.212-1, and who receives a request from a disappointed quoter for a "debriefing," should not worry over the difference between a "brief explanation" and a "debriefing" like some Lilliputian arguing about at which end one should break an egg. They should just email the information listed in 52.212-1(l) and 15.503(b)(1) and thank the quoter for its participation.

@Vern Edwards I agree.  I love the reference to Gulliver's Travels.  I am holding on to that word.