Who needs to be sent Preaward notices for small business programs IAW FAR 15.503(a)(2)?
Is it only the 10 offerors left in the competitive range who will not receive an award after the 2nd round of dicsussions OR is it ALL 15 offerors who will not receive an award?
FAR 15.503(a)(2)(i) states "In addition to the notice in paragraph (a)(1) of this section". Therefore, does that mean an offeror has to receive the notice even if they are not in the competitive range?
Regardless of the answers above, would it be considered a "best practice" to send Preaward notices for small business programs to ALL offerors including those not in the competitive range any longer?
1. The FAR references quoted below in pertinent part are applicable to this response.
Open full Question Details
FAR 15.503 -- Notifications to Unsuccessful Offerors
(a) Preaward notices --
(1) Preaward notices of exclusion from competitive range. The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered.
(2) Preaward notices for small business programs.
(i) In addition to the notice in paragraph (a)(1) of this section, the contracting officer shall notify each offeror in writing prior to award, upon completion of negotiations, determinations of responsibility, and, if necessary, the process in 19.304(d)—
(A) When using a small business set-aside (see Subpart 19.5);
(ii) The notice shall state—
(A) The name and address of the apparently successful offeror;
(C) That no response is required unless a basis exists to challenge the size status or small business status of the apparently successful offeror (e.g., small business concern, small disadvantaged business concern, HUBZone small business concern, service-disabled veteran-owned small business concern, … ).
(iii) The notice is not required when the contracting officer determines in writing that the urgency of the requirement necessitates award without delay or when the contract is entered into under the 8(a) program (see 19.805-2).
FAR 19.302 -- Protesting a Small Business Representation or Re-representation
(a) An offeror, the SBA, or another interested party may protest the small business representation of an offeror in a specific offer.
(d) In order to affect a specific solicitation, a protest must be timely.
(1) To be timely, a protest by any concern or other interested party must be received by the contracting officer … by the close of business of the 5th business day after bid opening (in sealed bid acquisitions) or receipt of the special notification from the contracting officer that identifies the apparently successful offeror (in negotiated acquisitions) (see 15.503(a)(2)).
2. Pursuant to FAR 15.503(a)(2) as described above, in addition to pre-award notice required by FAR 15.503(a)(1) to those offerors who have been eliminated from the competitive range, the Contracting Officer must notify all offerors, including those who have been previously eliminated from the competitive range, the name and address of each of the successful offerors when using a small business set-side acquisition approach. In accordance with FAR 15.503(a)(2)(iii), the only exceptions to this requirement notice are if urgency of the requirement necessitates award without delay or if the contract is entered into under the 8(a) program, neither of which appear to be the case here.
3. As indicated in FAR 15.503(a)(2)(ii)(C), the purpose this special notification from the Contracting Officer is to allow sufficient time for any unsuccessful offeror to file a timely challenge to the small business size status of any of the apparently successful offerors in accordance with the requirements set forth in FAR 19.302. Pursuant to FAR 19.302(d)(1), in contracting by negotiation, a protest of the apparently successful offeror’s small business status must be received by the Contracting Officer by the close of business of the 5th business day after receipt of this special notification in order to be timely.
4. In summary, based on the above, the Contracting Officer must send preaward notices for small business programs in accordance with FAR 15.503(a)(2) to all 15 offerors who will not receive an award, including those offerors who had been previously eliminated from the competitive range. Given that this FAR citation expressly states a firm requirement for the Contracting Officer to provide this special preaward notice to all disappointed offerors no matter when a given offeror may have been eliminated from the competitive range, we consider the issue of whether this should be a “best practice” to be moot.