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When the solicitation states the wrong FAR Part that the evaluation will be conducted under


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A solicitation under protest stated the following in its Addendum to the FAR 52.212-1:


In as much as the proposal shall describe the capability of the Offeror to perform under the resulting Task Order, the quote shall be specific and complete in every detail as well as be prepared simply and economically, providing a straightforward and concise description of capabilities to satisfactorily perform under the contract. Offerors are hereby instructed that regardless of any language that may be used in this solicitation, the Government is NOT conducting this procurement under FAR Part 15. This procurement is being conducted on a competitive basis under FAR Subpart 8.4. The FAR subpart 8.4 method is intended to streamline the selection process and be minimally burdensome for both the Government and interested Offerors competing for this requirement. As this is a FAR Subpart 8.4 procurement, the Contracting Officer may communicate with an Offeror, without regard to the rules of FAR Subpart 15.3 concerning competitive range determinations and discussions, if such communications will enhance the Government's evaluation. These communications do not constitute discussions. The Contracting Officer may also identify the Offeror most likely to provide best value and negotiate solely with that offeror to finalize the order and/or negotiate more favorable terms for the Government.

(red font used above is my own, but not the bolding and underlining which is that of the solicitation's)

Subsequently, in its agency report, the Agency stated in this regard: "The reference to FAR 8.4 in the solicitation was harmless error."

Note that not only had the solicitation stated that FAR Subpart 8.4 was to be used, the Agency had 'doubled down' on this assertion by both bolding and underlining the 'NOT,' above, and also further amplifying it by prefixing their statement that the solicitation would be not conducted under FAR Part 15 with, "Offerors are hereby instructed that regardless of any language that may be used in this solicitation,..."

Contrary to the Agency's diminishment of this 'error,' it does appears to be a major procedural error insofar as FAR Part 15 vs FAR Subpart 8.4 evaluations are conduct completely differently. Does anyone know of any GAO decisions which relate to agencies evaluating proposals under a different FAR Part than that stated in the solicitation? It hardly seems to constitute a minor informal error, but a reason the GAO might sustain a protest.

BTW, this comes up because the protest stated that the Agency was wrong to use FAR Part 15 in evaluating the proposals when the solicitation cited FAR Subpart 8.4, and the Agency's response to that was that what was wrong wasn't that the Agency evaluated under FAR Part 15, but that it was wrong, but in a harmless way, that the Agency had stated in the solicitation it would evaluate under FAR Subpart 8.4.

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37 minutes ago, ax12901 said:

It was a solicitation under a GWAC (not schedule). And yes, 8.4 wasn't appropriate, obviously since that is for FSS. However, the solicitation terms should apply even so.

For starters, look at the GWAC contract ordering provisions. Most have procedures on placing orders.

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Ok, so it said "Subpart 8.4," when it should have said "Subpart 16.5," correct?  Further, despite this language, the agency used FAR Part 15 procedures.  I think we need to understand the "so what?" a little more.  That is, what is the basis of the protest?  Is it related to the conduct of discussions/exchanges?  In other words, what unfairness sprang from the agency's actions here?  There has to be some sort of competitive prejudice.  Not all procurement errors are prejudicial.  

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