Principle of Economy

[Whynot]

Are there statutory or regulatory prohibitions on the Federal Government purchasing in excess of their minimum needs or requirements? If so, where can I find reference to them. Thank you.

[Jacques]

Can you elaborate on what you mean by "purchasing"/  Where in the process are you?  Writing your requirement?  Writing evaluation criteria that give evaluation credit for performance in excess of the Government's minimum needs?

[Guest PepeTheFrog]

search for the "bona fide needs rule"

[Jacques]

Edit: See Retreadfed's comment below.

Edited October 7, 2019 by Jacques

[Retreadfed]

1 hour ago, Whynot said:

Are there statutory or regulatory prohibitions on the Federal Government purchasing in excess of their minimum needs or requirements?

Are you asking about quantity or quality?

[joel hoffman]

3 hours ago, Whynot said:

Are there statutory or regulatory prohibitions on the Federal Government purchasing in excess of their minimum needs or requirements? If so, where can I find reference to them. Thank you.

Quote

Section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note) makes it the policy of the Government to avoid using Lowest Price Technically Acceptable (LPTA) source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process. The section requires that LPTA source selection criteria be used only when: (1) An executive agency is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers; (2) the executive agency would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal; (3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal; (4) the executive agency has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the executive agency; (5) the contracting officer has included a justification for the use of an LPTA evaluation methodology in the contract file; and (6) the executive agency has determined that the lowest price reflects total costs, including for operations and support.

Additionally, section 880 requires that the use of LPTA source selection criteria be avoided, to the maximum extent practicable, in procurements that are predominantly for the acquisition of: information technology services; cybersecurity services; systems engineering and technical assistance services; advanced electronic testing; audit or audit readiness services; health care services and records; telecommunications devices and services; or other knowledge-based professional services; personal protective equipment; or, knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.“

Sorry about the formatting. The above quote is from FAR Case 2018-016:  Lowest Price Technically Acceptable Source Selection Process.  (October 2, 2019)

See the WIFCON Home Page or   https://www.federalregister.gov/documents/2019/10/02/2019-20798/federal-acquisition-regulation-lowest-price-technically-acceptable-source-selection-process

It would seem that current policy, at least for DoD would generally not prohibit the government from purchasing more than minimum (quality) requirements.

And - of course,  trade-off methods are allowed by FAR for source selections, task order contracting, simplified acquisitions, FSS, etc.

Not to say that one cant use Part 14 IFB methods, either (for any of those different acquisition types, if goods and services meeting minimum specified requirements would satisfy your needs.

As for quantity - as Frog says - see the Bonafide Needs rules. 

 

 

[Whynot]

Thanks for the insights.

What would prevent an agency today from creating a Mil Spec type requirement for a hammer over that of a commercial hammer? Other than the direction to use commercial items where possible, what would prevent a Mil Spec hammer form being needed?

[ji20874]

For a specialty application, a Mil Spec hammer might be entirely appropriate.

[Whynot]

Is there something more than a pre-solicitation market survey to determine if there is a commercial item that can meet the need that would validate that the expense and effort of a Mil Spec is necessary?

[joel hoffman]

MIL SPECs are for DoD standardization purposes.

Try MIL STD 961. I wasn’t able to download it .  One can’t simply develop a standardized MIL SPEC on their own. 

DEPARTMENT OF DEFENSE STANDARD PRACTICE: DEFENSE AND PROGRAM-UNIQUE SPECIFICATIONS FORMAT AND CONTENT (27-OCT-2015)., This standard establishes the format and content requirements for the preparation of defense specifications and program-unique specifications prepared either by DoD activities or by contractors for the DoD. It also covers the format and content requirements for specification sheets, supplements, revisions, amendments, and notices.

[Jacques]

47 minutes ago, Whynot said:

Is there something more than a pre-solicitation market survey to determine if there is a commercial item that can meet the need that would validate that the expense and effort of a Mil Spec is necessary?

"Commercial item or design specification" would be a false choice.  See the order of precedence at FAR 11.101(a), encouraging the use of "performance-oriented documents (e.g., a PWS or SOO)" over design specs or standards.

[formerfed]

@whynot.  What are you getting at?  Do you have a specific issue?  Or are you just asking questions to learn?

[Lionel Hutz]

16 hours ago, Whynot said:

Thanks for the insights.

What would prevent an agency today from creating a Mil Spec type requirement for a hammer over that of a commercial hammer? Other than the direction to use commercial items where possible, what would prevent a Mil Spec hammer form being needed?

If a Mil Spec hammer is needed to perform a special job that a commercial hammer could not perform, then it would be acceptable.  But, the government cannot create unduly burdensome specifications that exceed its requirements. 

For example, see Global SuperTanker Services, LLC, B-414987; B-414987.2 (Nov. 6, 2017) :

"In preparing a solicitation, a procuring agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy its legitimate needs. In this respect, solicitations should be written in as non-restrictive a manner as possible in order to enhance competition.To the extent a protester challenges a specification as unduly restrictive, the procuring agency has the burden to establish that the specification is reasonably necessary to meet its needs. We review the agency’s explanation for reasonableness, that is, whether it can withstand logical scrutiny." (Citations omitted.) 

 

[Retreadfed]

On ‎10‎/‎8‎/‎2019 at 11:09 AM, Jacques said:

"Commercial item or design specification" would be a false choice.  See the order of precedence at FAR 11.101(a), encouraging the use of "performance-oriented documents (e.g., a PWS or SOO)" over design specs or standards.

I'm not sure what you meant by this, but the preference is for the government to acquire commercial items instead of items produced to government specs regardless of whether those specs are performance based or design specs.  For DoD see, 10 U.S.C. 2377.

[Jacques]

3 hours ago, Retreadfed said:

I'm not sure what you meant by this, but the preference is for the government to acquire commercial items instead of items produced to government specs regardless of whether those specs are performance based or design specs.  For DoD see, 10 U.S.C. 2377.

Retreadfed,

My original point ("'Commercial item or design specification' would be a false choice") was the mere absence of a commercial item to meet a requirement does NOT justify writing a requirement document as a design specification, or, worse yet, going out and preparing a Government standard.

I agree there is a preference for commercial items.  However, the preference is for commercial items OVER nondevelopmental items (presumably OVER something that is neither).  See 10 USC 2377(a)(2).

A different set of priorities relates to the manner in which the Government writes its requirement.  See, e.g., 10 USC 2377(a)(1) and my earlier reference to order of precedence in FAR 11.102(a).

These are separate, albeit related, things.  See FAR 12.202(b) ("Generally, for acquisitions in excess of the simplified acquisition threshold, an agency’s statement of need for a commercial item will describe the type of product or service to be acquired and explain how the agency intends to use the product or service in terms of function to be performed, performance requirement or essential physical characteristics.")

Commerciality is an attribute of the item offered to meet a requirement.  It is absolutely NOT the same thing as the manner in which the requirement is described.

[Retreadfed]

14 hours ago, Jacques said:

the mere absence of a commercial item to meet a requirement does NOT justify writing a requirement document as a design specification, or, worse yet, going out and preparing a Government standard.

We are in agreement on this point.