How to Address FAR Part 5 (Publicizing) for Open Market Line Items on GSA Order

[Robert Mulheran]

I have a Furniture Requirement we posted to GSA eBUY (IGCE $6.8M).  Our apparent awardee has 13 Open Market Line Items (approx $168K).  I have seen the requirements for including Open Market Line Items in FAR Part 8.402(f), but I'm unclear how to address FAR Part 5 noted in FAR Part 8.402(f)(1).  When we posted the RFQ to GSA eBuy it was exempt from publicizing the RFQ to GSA Contract Opportunities.  I'm not exactly sure what I'm supposed to do now regarding FAR Part 5 now that the GSA eBuy RFQ is closed and no previous "Open Market" publicizing was previously done.

 

[Don Mansfield]

You need to publicize the open market items in accordance with FAR part 5.

[formerfed]

Yes.  Picking up on Don’s point, you often don’t know when open market items are involved or specifically which ones are until you get close to order award.  So you comply with FAR 5 after quote evaluation and prior to issuing the orders.

[Sam101]

I know this thread is about publicizing, but what about competition requirements (part 6) and contracting methods (parts 13, 14, and 15), not to mention small business programs (part 19).

RFQ# ABCQ240005

Quoter A:

Sofa: Yes, on GSA Price List

Desk: Yes, on GSA Price List

Chair: No, not on GSA Price List, Open Market Item

Quoter B:

Sofa: Yes, on GSA Price List

Desk: No, not on GSA Price List, Open Market Item

Chair: Yes, on GSA Price List

Publish this on SAM.gov?:

The purpose of this notice is to comply with FAR 8.402(f), Chair and Desk required, only those vendors who responded to RFQ# ABCQ240005, which was not publicized on SAM.gov, are allowed to respond to this notice, this notice is an RFQ for Chair and Desk. FAR 15 procedures will be used, although the Government is confused as to why a quoter who has the Chair on their GSA Schedule would need to respond to this notice, and the one with the Desk on their GSA Schedule would need to respond to this notice.

Why can't it be that during market research, if the Government can not determine that 100% all items are on at least 3 GSA vendors' GSA Price List, then procurement cannot be done via FAR 8.4 procedures and just go with FAR 13 or 15 and call it a day? Even if 99.9% of items are on at least 3 GSA vendors' GSA Price List and 0.01% is not?

FAR 8.402(f) is confusing and doesn't make any sense.

For the time being, until the FAR is updated to make FAR 8.402(f) make more sense, I'll just publish this:

The purpose of this notice is to comply with FAR 8.402(f), Chair and Desk required, only those vendors who responded to RFQ# ABCQ240005, which was not publicized on SAM.gov, are allowed to respond to this notice, this notice is an RFQ for Chair and Desk.

But what about this scenario?:

Quoter A:

Sofa: Yes, on GSA Price List

Desk: Yes, on GSA Price List

Chair: No, not on GSA Price List, Open Market Item

Quoter B:

Sofa: Yes, on GSA Price List

Desk: No, not on GSA Price List, Open Market Item

Chair: Yes, on GSA Price List

Quoter C:

Sofa: Yes, on GSA Price List

Desk: Yes, on GSA Price List

Chair: Yes, on GSA Price List

What happens then?

... stupid FAR.

[C Culham]

2 hours ago, Sam101 said:

stupid FAR

?

So you have not said how many of each. 

Taking your post without clarification my thought is why not FAR part 12 and FAR part 13 solely.  More specifically FAR 13.106-1(b).  As to synopsis "chair" only item open market, less than $25k, no synopsis needed.

With my thoughts provided I will watch for further example that demonstrates the details that make 8.402(f) stupid.

[Sam101]

SOW:

Sofa:

Qty: 300,000

Desk:

Qty: 300,000

Chair:

Qty: 300,000

IGE: $5,000 per Sofa, $1,000 per Desk, $300 per Chair

Total IGE:  $1,890,000,000.00

Quoter A:

Sofa: Yes, on GSA Price List, $5,000 each

Desk: Yes, on GSA Price List, $1,000 each

Chair: No, not on GSA Price List, Open Market Item, $300 each ($90,000,000.00)

Quoter B:

Sofa: Yes, on GSA Price List, $4,900 each

Desk: No, not on GSA Price List, Open Market Item, $800 each ($240,000,000.00)

Chair: Yes, on GSA Price List, $300 each

Quoter C :

Sofa: Yes, on GSA Price List, $5,100.00 each

Desk: Yes, on GSA Price List, $1,200.00 each

Chair: Yes, on GSA Price List, $400 each

$90 million and $240 million is above the FAR 13.5 $7.5 million threshold, so FAR 15.

So, a FAR 15 competition would need to be held for Quoter A for the Chair and Quoter B for the Desk? But Quoter A already has the Desk under its GSA Schedule, and what about the sofa?

Anyways, only the original vendors who responded to RFQ# ABC24Q0005 would be able to submit proposals under this FAR 8.402(f) RFP?

If a random new offeror (Offeror D) wants to compete, they can't, because this FAR 8.402(f) notice is only asking for Chair and Desk, not Sofa.

And the Government doesn't want to award separate contracts, they want to award one large contract that includes all three items, chair, desk AND sofa.

I know this is a simple example for furniture, to where you can say that it's easy to divide all this into more than one contract, but substitute something else for furniture, like IT or some other complicated requirement, to where the Government really does need ALL of the items under ONE contract.

[formerfed]

Quote

 

 

Why can't it be that during market research, if the Government can not determine that 100% all items are on at least 3 GSA vendors' GSA Price List, then procurement cannot be done via FAR 8.4 procedures and just go with FAR 13 or 15 and call it a day? Even if 99.9% of items are on at least 3 GSA vendors' GSA Price List and 0.01% is not?

You can do that.  But as Carl posted, FAR 12 is a better fit.

Market research is important in planning.  Besides helping to decide the approach and method, it highlights parts of the overall solution not on Schedule which are severable components like chairs in your example.  Or shows that chairs are an integral piece that can’t be acquired separately.

This kind of information leads to deciding how you comply FAR parts 5 and 6 if needed.  A lot depends upon the overall dollar value and complexity of the procurement and the relative proportion of the open market items.

If you don’t like using GSA, don’t.  But you face dealing with perhaps a huge number of potential offerors of probably unknown quality as opposed to just picking three on GSA which you should have already reviewed.

[formerfed]

Quote

I know this is a simple example for furniture, to where you can say that it's easy to divide all this into more than one contract, but substitute something else for furniture, like IT or some other complicated requirement, to where the Government really does need ALL of the items under ONE contract.

If your market research confirms this, you have two options.  One is an open market procurement and the other is GSA with acquiring the nonschedule contract actions from the Schedule contractor while complying with FAR 5 and 6.  What often happens with IT is the Schedule contractor proposes some component not on their contract but is available from other sources.  Some software utility or communications app is a simple example.  If the Schedule contractor is willing to incorporate the government acquiring that piece instead, you might be doing another procurement action which is open to any offeror.

[Sam101]

Quoter A:

Sofa: Yes, on GSA Price List, $5,000 each

Desk: Yes, on GSA Price List, $1,000 each

Chair: No, not on GSA Price List, Open Market Item, $300 each ($90,000,000.00)

Quoter B:

Sofa: Yes, on GSA Price List, $4,900 each

Desk: No, not on GSA Price List, Open Market Item, $800 each ($240,000,000.00)

Chair: Yes, on GSA Price List, $300 each

Quoter C :

Sofa: Yes, on GSA Price List, $5,100.00 each

Desk: Yes, on GSA Price List, $1,200.00 each

Chair: Yes, on GSA Price List, $400 each

$90 million and $240 million is above the FAR 13.5 $7.5 million threshold, so FAR 15.

I hereby declare that FAR 8.402(f) officially means this going forward:

a) Publish an RFP on SAM.gov as follows:

This is a notice in accordance with FAR 8.402(f), quotations were received under a GSA RFQ, ABC24Q0005, open market items were proposed from quoters who are in consideration for award, please see attached SOW, this is the same SOW issued under ABC24Q0005, see sections L and M, all attachments are in section J. Procedures are FAR 15, best value will be determined via trade-off process. Only vendors who submitted quotes under ABC24Q0005 may submit proposals in response to this notice.

Section L:

Offeror shall price Desk and Chair, but not the Sofa, since the Sofa was already priced and all quoters had it on their GSA Schedule.

Section M:

Government will evaluate the price for reasonableness, the non-price factors were already evaluated as part of the quotations received under RFQ# ABC240005.

b) Offers received.

c) Competitive Range determination made.

d) Discussions happen.

e) Revised proposals received.

f) Trade-off analysis made.

g) Award made, a “G contract” Task Order, mapped to the offeror’s GSA Schedule, open market items highlighted.

[C Culham]

@Sam101   Thanks for the clarification.   Now with the larger dollar amounts in the mix here are my thoughts based on your example.

Your scenerio suggests that you picked GSA FSS for your solicitation route.  Therefore you, in my view, are stuck with vendor C.  References I have provided will echo the why but it is because open market items would not comply with the solicitation. 

My thoughts also circles back to the references of market research.  I believe your thinking is scewed.  You are trying to compare post quote (assumed) prices with a pre-quote process.  I believe your market research will tell you whether you should go GSA FSS OR open market by determining your best route for getting quotes for the items that meet your needs, in the quickest way possible considering how simple the process will be, at fair and reasonable prices, volume discounts and probably more. 

Another thought is that you have presented an example that suggests you are more worried about total overall price of the procurement than best value.  Tradeoff, FAR part 15, then why try to demonstrate GSA is of higher price?  Why wasn't that a consideration in market research and a determination to not go GSA?

Thanks for the brain teaser, I hope my thoughts help.

 

https://www.acq.osd.mil/dpap/policy/policyvault/USA004263-15-DPAP.pdf

 

[Moderator]

Rule 17 violation.