Does FAR 13.5 override 15.506?

[CHILINVLN]

Received this from the KO when requesting a debrief.  I've never seen this type of response before and wanted to validate.

This procurement was done under FAR Part 13.5, “Simplified Procedures for Certain Commercial Items” (ref Basis for Award, page 5 of the combo).  FAR 13.106-3(d) would apply in this case and allows for “a brief explanation of the basis for the contract award decision” if it was based on factors other than price alone.  As such, your reference to FAR 15.506 would not be applicable. 

[ji20874]

Override?  It's not a matter of override; rather, it is a matter of applicability.  Does FAR 15.506 apply to your procurement?

[Joe Bernier]

The KO is correct. The applicability of FAR 15.506 can be found at FAR 15.502, which states that the subpart applies to competitive proposals as described in FAR 6.102(b). This reference points you to FAR 6.401(b) which states it is applicable to proposals solicited using FAR Part 15 procedures. At FAR 6.001(a), you'll find that the requirements of the part do not apply to acquisitions conducted using the simplified acquisition procedures of FAR Part 13, which includes subpart 13.5, except specific sole source requirements are not relevant to your question. Moving to FAR 13.106-3(d) that the KO referenced, this states that a brief explanation is to be provided and refers you to FAR 15.503(b) as a reference for what needs to be contained in that brief explanation, which is less than what would be required in a FAR Part 15 procurement if a debrief were applicable.

[CHILINVLN]

5 minutes ago, Joe Bernier said:

The KO is correct. The applicability of FAR 15.506 can be found at FAR 15.502, which states that the subpart applies to competitive proposals as described in FAR 6.102(b). This reference points you to FAR 6.401(b) which states it is applicable to proposals solicited using FAR Part 15 procedures. At FAR 6.001(a), you'll find that the requirements of the part do not apply to acquisitions conducted using the simplified acquisition procedures of FAR Part 13, which includes subpart 13.5, except specific sole source requirements are not relevant to your question. Moving to FAR 13.106-3(d) that the KO referenced, this states that a brief explanation is to be provided and refers you to FAR 15.503(b) as a reference for what needs to be contained in that brief explanation, which is less than what would be required in a FAR Part 15 procurement if a debrief were applicable.

Excellent, thank you.

[C Culham]

2 hours ago, Joe Bernier said:

The KO is correct. The applicability of FAR 15.506 can be found at FAR 15.502, which states that the subpart applies to competitive proposals as described in FAR 6.102(b). This reference points you to FAR 6.401(b) which states it is applicable to proposals solicited using FAR Part 15 procedures. At FAR 6.001(a), you'll find that the requirements of the part do not apply to acquisitions conducted using the simplified acquisition procedures of FAR Part 13, which includes subpart 13.5, except specific sole source requirements are not relevant to your question. Moving to FAR 13.106-3(d) that the KO referenced, this states that a brief explanation is to be provided and refers you to FAR 15.503(b) as a reference for what needs to be contained in that brief explanation, which is less than what would be required in a FAR Part 15 procurement if a debrief were applicable.

I have a slightly different twist. 

FAR 13.5 provides that FAR part 12 applies (FAR 13.500(b)).  FAR 12.201 allows for use of FAR 13, 14 or 15 for solicitation, evaluation and award. So the question is, to answer the OPs question, what FAR part was used for solicitation, evaluation, and award.  If FAR part 15, then 15.506 may well apply.  The OP could determine this in one easy step.  Was the solicitation a Request for Quotes (RFQ) or a Request for Proposals (RFP)?

The response the OP received from the agency is poorly written in my view.

[MileHighAcq]

On 10/16/2023 at 9:55 AM, C Culham said:

I have a slightly different twist. 

So the question is, to answer the OPs question, what FAR part was used for solicitation, evaluation, and award. 

 

On 10/16/2023 at 6:38 AM, CHILINVLN said:

This procurement was done under FAR Part 13.5, “Simplified Procedures for Certain Commercial Items”. 

Am I missing something here? If the procurement was conducted pursuant to FAR Part 13.5, then it was conducted using FAR 13 procedures. Something to note however is that while FAR 13 allows you to borrow concepts from FAR 15, if you borrow too much from FAR 15, courts have held that you defacto conducted your procurement using FAR 15 procedures, whatever the solicitation actually said, and will apply all the applicable procedures to your procurement - e.g., evaluation, discussions, and debriefings.

[Oyster]

Footnote 6 of a recent GAO protest decision is instructive.  See DKMT Consulting, LLC, B-421223, January 12, 2023:

The protester also asserts that the agency failed to provide it a debriefing. The award of a contract under FAR part 13 does not require a debriefing, but may require a brief explanation of the basis for the agency's award decision. To that end, FAR section 13.106-3(d) provides, "[i]f a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided (see [FAR] 15.503(b)(2))." Although the agency did not provide DKMT with a brief explanation, an objection to a brief explanation, or the lack thereof, does not form a basis of protest. 

[Oyster]

C Culham makes a good point.  We can't answer this question definitively because we don't know what the solicitation actually said.  If it stated that FAR Part 15 procedures would be used, that could alter the analysis.  FAR 13.106-2(b)(1) states:  "The contracting officer has broad discretion in fashioning suitable evaluation procedures. The procedures prescribed in parts  14 and 15 are not mandatory. At the contracting officer’s discretion, one or more, but not necessarily all, of the evaluation procedures in part  14 or 15 may be used."

 

Unless CHILNVILN says that the solicitation said FAR Part 15 procedures would be used, I will assume it did not.  If it did not, then the contracting officer is correct, and the final answer is that FAR 15.506 does not "apply" to this FAR Part 13 procurement.  

[Jamaal Valentine]

On 10/30/2023 at 12:36 PM, MileHighAcq said:

Something to note however is that while FAR 13 allows you to borrow concepts from FAR 15, if you borrow too much from FAR 15, courts have held that you defacto conducted your procurement using FAR 15 procedures, whatever the solicitation actually said, and will apply all the applicable procedures to your procurement - e.g., evaluation, discussions, and debriefings.

@MileHighAcq, I think this is a belief that’s based on cases like Finlen Complex, Inc., B-288280, Oct 10, 2001. If you have any court cases, I would be interested in them.

Cases like Finlen Complex, Inc. must be read and used as comparisons carefully. In Finlen, GAO disagreed with the Army’s contention that since the solicitation, on its face, was identified as a commercial item procurement using simplified acquisition procedures, the withholding of the relative weight of evaluation factors was authorized and no further analysis was needed.

Specifically, the GAO found “important issues regarding the treatment of offerors participating in procurements that, although labeled as acquisitions using simplified procedures, are conducted in a manner virtually indistinguishable from any other negotiated procurement under FAR part 15.”The GAO reasoned that “the labeling of a procurement as "simplified" does not absolve the agency from its obligation to treat vendors fairly.” Here, “[GAO looked] to the substance of [the] agency's actions, rather than the form.”

The Army’s conduct raised issues of fairness and reasonableness. First, the Army identified the evaluation factors and advised that the technical and quality factors would be more important than price. This was a discretionary act. However, the Army failed to identify the importance of the past performance factor despite the majority of the evaluation narrative was dedicated explaining how the agency would assess past performance. Accordingly, GAO concluded that the Army’s decision to make past performance the least important factor was unsupported and that it was reasonable for Finlen to expect that the Army would give past performance significant weight.

Additionally, the Army “argued that revealing the relative weight of factors in the solicitation would hinder the agency's ability to change the weight of those factors during the course of its evaluation.” Moving the goalpost is unfair and unreasonable.

In sum, GAO concluded that the Army’s conduct was unfair and unreasonable. GAO found that “there is little about the procedures used in this procurement that can reasonably be called simplified” because “this procurement is very similar to any other negotiated acquisition conducted under the rules set forth in FAR part 15. Those rules require that when offerors are asked to prepare detailed proposals, those offerors must be advised of the weight of all factors and significant subfactors that will affect the contract award.” The failure to disclose the weight of all factors “was particularly unfair here because of the contrast between the indications in the RFP that past performance would be a significant evaluation factor, and the agency's actual intent to make it, by far, the least important one.”

@C Culham, I think the procurement remains under FAR part 13.

Now, Finlen can be distinguished in that GAO “has explained, neither errors in terminology nor the inclusion of some FAR part 15 procedures transforms a solicitation so completely as to negate the nature of the procurement or render inapplicable the relevant procurement regulations. See iTility, L.L.C., B‑415274.3, Apr. 2, 2018, 2018 CPD ¶ 134 at 4-5 (concluding that the procedures of FAR subpart 8.4 applied to a procurement that sought to establish blanket purchase agreements and was restricted to Federal Supply Schedule contract holders even though the solicitation was called a request for proposals and incorporated various FAR part 15 competitive procedures).” BC Site Services, LLC, B-420797.4, B-420797.5, Mar 21, 2023.

While fairness (including predictability) and reasonableness are fundamental, even when using simplified procedures, errors in terminology or the inclusion of some FAR part 15 procedures does not necessarily transform a solicitation. As you allude, Acquisition Teams should be mindful of the implications and the borders of their discretion.

[C Culham]

8 hours ago, Jamaal Valentine said:

I think the procurement remains under FAR part 13.

How about both FAR part 12 and 13, I could live with that?

8 hours ago, Jamaal Valentine said:

the inclusion of some FAR part 15 procedures does not necessarily transform a solicitation.

Yes each procurement stands on its own when it comes to matters in conflict when handed to someone like GAO to adjudicate.

I did a little more looking.   My thoughts are swayed in part but not completely as noted above.  Seeing the instant procurement would help me zero in my thoughts and I still feel the agency response is not well perfected.   

https://www.gao.gov/assets/b-411284.pdf 

And

 

Edited October 31, 2023 by C Culham

[Jamaal Valentine]

On 10/31/2023 at 6:37 AM, C Culham said:

How about both FAR part 12 and 13, I could live with that?

That would be more accurate.

Aside, are you aware of any procurements that used FAR part 12 alone (i.e., not in conjunction with subpart 8.4 or 16.5 nor parts 13, 14, or 15)?

[C Culham]

3 minutes ago, Jamaal Valentine said:

Aside, are you aware of any procurements that used FAR part 12 alone (i.e., not in conjunction with subpart 8.4 or 16.5 nor parts 13, 14, or 15)?

No sir.   The FAR does make it complicated.

CO may use FAR 13.5 simplified acquistion procedures for a commercial products and services.  The procedures may be any in FAR part 13.  But when the CO does FAR part 12 applies and if the CO uses other parts of the FAR, FAR part 12 takes precedence.

So in the context of this thread here is how I see it, what do you think?  

The procurement was done pursuant to FAR Part 13.5, Simplified Procedures for Certain Commercial Items.  As such FAR 52.212-1 should have been included in the solicitation and paragraph (l) applies.   

Aside - Should have the agency tailored 52.212-1 if for the particular market place debriefing does occur and essentially follows FAR 15.506 (without the specific timing but at anytime) whereby the original paragraph (l) of 52.212-1 would be inconsistent with the marketplace?   And what if the agency did not tailor does a offeror have a case for protest that they should be debriefed following that as occurs in the market place and in the same detail as provided for in FAR 15.506 if that is what the market place does? 

 

[Jamaal Valentine]

I agree that FAR 52.212-1 should have been included in the solicitation. I doubt paragraph (l) was tailored although it it may have been. Assuming it wasn’t tailored, FAR 52.212-1(l) simply says ‘if’ a post-award debriefing is given. That is not a policy that is inconsistent with anything in FAR part 13 so the FAR part 12 precedence wouldn’t apply, imo. Moreover, a debriefing would not be required under the provision.

Regarding tailoring, I’m not aware of any marketplace that entitles a prospective vendor to a debriefing. That being said, I haven’t read this entire thread to see if the vendor, in this case, proposed such a thing (see FAR 12.213).

Finally, even if it was common to the marketplace, but absent from the solicitation, a protest would have been due prior to the solicitation close date.

[Metal Marc]

FAR 15.506 doesn't apply, but that doesn't mean you don't have to debrief unsuccessful offerors when using SAP. Your evaluation factors for award drive your debriefing requirements when utilizing SAP. It's one of the few times where FAR 13 actually leads us to FAR 15 without us trying to invoke FAR 15 procedures.

FAR 13.106-3(d) Request for information. If a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided (see 15.503(b)(2)).

FAR 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.

As always, please be careful when trying to shoehorn FAR 15 procedures into your FAR 13 buys (I don't recommend incorporating FAR 15 procedures in a SAP buy...not at all).

[Jamaal Valentine]

23 hours ago, Metal Marc said:

FAR 15.506 doesn't apply, but that doesn't mean you don't have to debrief unsuccessful offerors when using SAP. Your evaluation factors for award drive your debriefing requirements when utilizing SAP. It's one of the few times where FAR 13 actually leads us to FAR 15 without us trying to invoke FAR 15 procedures.

FAR 13.106-3(d) Request for information. If a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided (see 15.503(b)(2)).

Are you saying responses to FAR 13.106-3(d) requests are debriefs? Why refer to them as debriefings when debriefs are covered under FAR 15.505 and 15.506?

[dacaan]

On 11/16/2023 at 7:41 PM, Jamaal Valentine said:

Are you saying responses to FAR 13.106-3(d) requests are debriefs? Why refer to them as debriefings when debriefs are covered under FAR 15.505 and 15.506?

FAR 13.106-3(d) are RFI's ---presuming MM is referring to  invoking FAR 52.212-1(l)--which calls it a debrief.  I think it is reasonable to call it a debrief if the solicitation borrows evaluation criteria from part 15 and a provision calls out a debrief. This goes back to Jamaal's discussion on Finlen where the Gov't tried invoking only the convenient stuff (from both FAR parts). I think if you are using part 15 evaluation criteria and you have a solicitation provision using a part 15 term of art---then the Gov't should be obligated to all of the duties within that term of art unless there is language explicitly stating otherwise. 

However, there is that unjust holding in Shtor, B-411284 which stripped the FAR 52.212-1(l) "debriefing" of any of it's part 15 rights including the timeliness exception for protests. MM should check out the Shtor GAO case--because it is pretty clear that there is no debriefing requirement in part 13 procurements even if FAR 52.212-1(l) is included. 

 

[formerfed]

12 hours ago, dacaan said:

 I think if you are using part 15 evaluation criteria and you have a solicitation provision using a part 15 term of art---then the Gov't should be obligated to all of the duties within that term of art unless there is language explicitly stating otherwise. 

I’m going to take a different view of the debriefing subject.  If the solicitation, with its evaluation criteria and instructions, requires preparation of an extensive response and requires offerors to invest considerable time and money, then a debriefing should be offered if nothing more than a courtesy. 

[joel hoffman]

13 hours ago, formerfed said:

I’m going to take a different view of the debriefing subject.  If the solicitation, with its evaluation criteria and instructions, requires preparation of an extensive response and requires offerors to invest considerable time and money, then a debriefing should be offered if nothing more than a courtesy. 

Agree.

[ji20874]

13 hours ago, formerfed said:

I’m going to take a different view of the debriefing subject.  If the solicitation, with its evaluation criteria and instructions, requires preparation of an extensive response and requires offerors to invest considerable time and money, then a debriefing should be offered if nothing more than a courtesy. 

Sure!  But that courtesy debriefing, however it is styled, and even if styled as a debriefing, does not constitute a required debriefing.

[ji20874]

On 11/1/2023 at 12:42 PM, Jamaal Valentine said:

Aside, are you aware of any procurements that used FAR part 12 alone (i.e., not in conjunction with subpart 8.4 or 16.5 nor parts 13, 14, or 15)?

It is impossible to use FAR part 12 alone.  See FAR 12.102(b).

Please don't take my word for it -- please, go and read FAR 12.102(b).

FAR part 12 is NEVER used in conjunction with subpart 8.4 or 16.5 -- those are self-contained.  If the parent schedule contract or indefinite delivery contract was for commercial items, FAR part 12 may have been appropriately used for the parent instrument procurement -- but the delivery or task order procurement is self-contained within subpart 8.4 or 16.5 and whatever ordering instructions are in the parent instrument.

Please read FAR 12.102(b).

[C Culham]

1 hour ago, ji20874 said:

Sure!  But that courtesy debriefing, however it is styled, and even if styled as a debriefing, does not constitute a required debriefing.

Now I am going to be nitpicky.   

If the debriefing is "offered" say in the solicitation then would it not be required?  In posing this question I do understand completely that if noting in the solicitation states that a debreifing will be provided and then the agency just decides to do them out of the goodness of their heart it is not a a reqired debriefing.  Just making the clarification as a saleint question was not asked of formerfed.   And that question is - Is the offered debriefing going to be stated in the solicitation or just something the agency might do at their discreation?   

To further my thought it would seem if the latter the agency could place themselves in a predicament where they pick and choose who to give a debreifing too.   Once again I understand the idea of a courtesy but in the end under the standard of fair dealing stating the avialability of a debriefing in a solicitaton seems to make the most sense to me to avoid the appearance of giving favor over one offer from another.  

[Metal Marc]

On 11/29/2023 at 4:17 AM, dacaan said:

MM should check out the Shtor GAO case--because it is pretty clear that there is no debriefing requirement in part 13 procurements even if FAR 52.212-1(l) is included. 

Yes, I'm familiar with that one. There may not be a requirement for a formal debrief - with the noun debrief being used as a term of art - but there is FAR 13 requirement to debrief (used as a verb) someone who request information as to why they lost when evaluation factors are based on things other than price alone. I try not to use the term of art when referring to this post-award process, but I'm not perfect.

Regarding 52.212-1(l), I wipe that out with my addendum. I also ensure anything related to FAR 15 is deleted, as well. My addendums to 52.212-1 and -2 are re-writes of the two provisions, and the only place I mention post-award information for the contractors is at the tail end of my -2 addendum. Here's an example from a recent buy:

4. Award Notification – Contracting will notify the successful Offeror that they will receive the award via email or phone call.

Unsuccessful Offerors will not be notified personally, but can find the award information online (SAM.gov) within 24 hours of award.  The information posted will be as follows:
a. Offeror/Business Name
b. City and State
c. Contract #
d. TEP and the Total (Actual) Award Amount
e. Offeror’s capability and experience rating [Pass/Fail]

On 11/29/2023 at 4:17 AM, dacaan said:

I think it is reasonable to call it a debrief if the solicitation borrows evaluation criteria from part 15 and a provision calls out a debrief.

My FAR 13 buys never include FAR 15 evaluation criteria. The other than price related factors I use are all mentioned in FAR 13, or I'll make it up...oops, I mean innovate.

Edited November 30, 2023 by Metal Marc
Eggs

[C Culham]

9 minutes ago, Metal Marc said:

Regarding 52.212-1(l), I wipe that out with my addendum to -1. I also ensure anything related to FAR 15 is deleted, as well.

 

Well I am not going to argue but I find the thought as being on the precipice of a possible protest.   If your "wipe out" is based on market research I can by in but if not then I do wonder.  

[Metal Marc]

1 minute ago, C Culham said:

Well I am not going to argue but I find the thought as being on the precipice of a possible protest.   If your "wipe out" is based on market research I can by in but if not then I do wonder.  

It's not based on market research: it's based on the fact that FAR 12 allows me an addendum to each provision and on my experience. When using 13, I stay with 13. There is no reason to use anything from FAR 15 when I'm using SAP (except when 13.106-3(d) says to), and since I can wipe out FAR 15 language using an addendum, I chuck it all in the bin.

[C Culham]

3 minutes ago, Metal Marc said:

It's not based on market research: it's based on the fact that FAR 12 allows me an addendum to each provision and on my experience. 

I noted I was not going to argue but I suggest you consider this....emphasis added

FAR 12.302(a) "...contracting officers may, within the limitations of this subpart, and after conducting appropriate market research, tailor the provision at 52.212-1, Instructions to Offerors-Commercial Products and Commercial Services, and the clause at 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services, to adapt to the market conditions for each acquisition...."

Your "allowance" is limited!

I think you will find that research of GAO protests would support in some instant cases that changing 52.212-4 absent appropriate market research can result in a sustained protest.  My reference for such a statement is from the 30,000 foot level that encompasses this quote....

• "Inserting terms into FAR Part 12 procurements that are inconsistent with “customary commercial practices.” (CPDT Subcategory 3.1).

Detail of this reference found here -