Intent to award to more than one offeror

[Mr_Batesville]

SCENARIO:

The subject requirement has been solicited in the past on MATOC basis and only one vendor bid and received the award. In an effort to increase competition for the new requirement, extensive market research and industry days have been held. The goal is to have more than one vendor to promote competitive pricing on the T.O level.

QUESTION:

Can an agency (Other than DOD) use language in the solicitation to reserve the right not to award  to less than two offerors. Essentially, saying if only one bid comes in we will not move forward with the award. DOD has additional guidance on how to deal with this. Our Agency does not have any additional guidance to supplement the FAR on this topic. Any ideas on creative legal language to prevent protest etc and canx sol?

[ji20874]

It should be easy to cancel the procurement if you receive only one proposal.  The solicitation and resulting contract is premised on future competition at the task order level (multiple-award contracts) — so, receiving only one offer (or only one awardable offer) will make it impossible to achieve the acquisition objectives, and will serve as a reasonable reason for canceling the solicitation.    

You don’t need text in your solicitation to allow you to cancel the solicitation. You just do it if and when that is what you need to do.  

[Mr_Batesville]

So while that is a great response and rational, is there any case law to support that answer or regulation. Im looking for such guidance for a civilian agency similar to that of the DFARS?

[ji20874]

Have you done any looking on your own?  If so, you have probably already come across the following, which I found with a quick search here on Wifcon--

• Computer World Services Corporation B-416042: May 22, 2018
• Henry's Aerial Service, Inc.; Evergreen Flying Services, Inc. B-414238.7, B-414238.9: Aug 10, 2017
• Tien Walker B-414623.2, B-414623.3: Jul 10, 2017
• Medfinity LLC B-413450: Sep 9, 2016

By the way, you don't need case law or regulation to answer your question.  Look at the Guiding Principles for the Federal Acquisition System in FAR 1.102 et seq.  It will give you the coverage you are looking for.

You don't need text in your solicitation giving you the right to cancel the solicitation.  You already have that right, as long as there is a reasonable basis for the cancellation.

[joel hoffman]

I agree with ji here. The DoD guidance is just that - guidance. You don’t have to rely on cookbook instructions in a regulation that are BCA tested. Go for it. 

[Mr_Batesville]

 

Ji20874 -

CLARIFICATION: This is a total small business set-aside. Intent to award a MATOC to at least 2 offerors. 

I have read the cases you provided and others. They all have rationale to canx. In my scenario,  we want to simply canx if we do not receive more than one proposal. This is not an issue with evaluations, the requirement or scope etc. Under FAR 19 (Small Business) it says something to the fact that if one proposal is received we should make award to that firm. Is my interpretation of the FAR wrong? 

[ji20874]

If you solicit competitively for a hamburger, and only get one quote, you can purchase the hamburger if the price is reasonable.

When you are soliciting competitively for multiple-award IDIQ contracts, you are not soliciting to purchase a hamburger -- rather, you are soliciting for multiple firms with whom you can establish a contract in anticipation of future orders that will competitively purchase hamburgers.  An IDIQ contract purchases nothing.  So your solicitation failed in providing you with multiple firms from whom you can order later -- your market research led you to believe you would get two or offers, but the solicitation results did not meet that expectation.  That's a reason to cancel the solicitation and re-think and adjust your approach.

But you don't have to cancel if you don't want to.

[Mr_Batesville]

Thanks for the response. Yes the objective is exactly how you explained, we MUST get competition on the TO level. The only way to establish that is to have two IDIQ contracts. My fear was FAR 19.502-2 " The contracting officer should make award" if it was a Total Small business Set-Aside. It does not say shall so even if the offeror is responsible, I dont HAVE/(Shall) to make an award to that firm. Thanks for all the input.