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  • Question

    FAR part 8 indicates that award should be made by determing best value and in addition to price you can consider other factors. FAR part 12 indicates under using streamlined procedure for evaluation that if not using 52.212- 2 that technical subfactors are not required and since the test program has been extended part 13 can still be utilized which indicates that scoring, competitve ranges, etc are not required and that COs may conduct comparative evaluations of offers. So if I am in part 8 or using part 12/13 what is appropriate to state regarding what you are going to evaluate and the basis of award without appearing to move into FAR part 15?


    Answer

    1. The FAR references quoted below in pertinent part are applicable to this response.

    FAR subpart 8.4 -- Federal Supply Schedules
    FAR 8.405-1 – Ordering Procedures for Supplies, and Services Not Requiring a Statement of Work

    (d) For proposed orders exceeding the simplified acquisition threshold.
      (2) The ordering activity contracting officer shall provide an RFQ that includes a description of the supplies to be delivered or the services to be performed and the basis upon which the selection will be made (see 8.405-1(f)).

      (4) The ordering activity contracting officer shall ensure that all quotes received are fairly considered and award is made in accordance with the basis for selection in the RFQ.

    (f) In addition to price, when determining best value, the ordering activity may consider, among other factors, the following: (1) Past performance; (2) Special features of the supply or service required for effective program performance; (3) Trade-in considerations; (4) Probable life of the item selected as compared with that of a comparable item; (5) Warranty considerations; (6) Maintenance availability; (7) Environmental and energy efficiency considerations; [and] (8) Delivery terms.

    FAR 12.203 -- Procedures for Solicitation, Evaluation, and Award
    Contracting officers shall use the policies unique to the acquisition of commercial items prescribed in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition. The contracting officer may use the streamlined procedure for soliciting offers for commercial items prescribed in 12.603. For acquisitions of commercial items exceeding the simplified acquisition threshold but not exceeding $6.5 million ($12 million for acquisitions as described in 13.500(e)), including options, contracting activities shall employ the simplified procedures authorized by Subpart 13.5 to the maximum extent practicable.

    FAR 12.603 -- Streamlined Solicitation for Commercial Items
    (c) To use these procedures, the contracting officer shall --
      (2) In the, Description, include the following additional information:  (ix) A statement regarding the applicability of the provision at 52.212-2, Evaluation -- Commercial Items, if used, and the specific evaluation criteria to be included in paragraph (a) of that provision. [or] If this provision is not used, describe the evaluation procedures to be used.

    FAR 13.106-1 -- Soliciting Competition
    (a) Considerations.
      (2) When soliciting quotations or offers, the contracting officer shall notify potential quoters or offerors of the basis on which award will be made (price alone or price and other factors, e.g., past performance and quality). Contracting officers are encouraged to use best value. Solicitations are not required to state the relative importance assigned to each evaluation factor and subfactor, nor are they required to include subfactors.

    FAR 13.106-2 -- Evaluation of Quotations or Offers
    (a) General.
      (2) Quotations or offers shall be evaluated on the basis established in the solicitation.

    (b) Evaluation procedures.
      (1) The contracting officer has broad discretion in fashioning suitable evaluation procedures. … At the contracting officer’s discretion, one or more, but not necessarily all, of the evaluation procedures in Part 14 or 15 may be used.

      (3) If using price and other factors, ensure that quotations or offers can be evaluated in an efficient and minimally burdensome fashion. Formal evaluation plans and establishing a competitive range, conducting discussions, and scoring quotations or offers are not required. Contracting offices may conduct comparative evaluations of offers.

    FAR 15.209 -- Solicitation Provisions and Contract Clauses
    When contracting by negotiation --
    (a) The contracting officer shall insert the provision at 52.215-1, Instructions to Offerors -- Competitive Acquisition, in all competitive solicitations … .

    FAR 15.304 -- Evaluation Factors and Significant Subfactors
    (c)(2) The quality of the product or service [includes:] consideration of one or more non-cost evaluation factors such as past performance, compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience.

    2. First, pursuant to FAR 15.209(a), if the Contracting Officer determines that “contracting by negotiation” (i.e., FAR part 15) should be used for the acquisition, then the provision FAR 52.215-1 must be included in the solicitation which, in effect, advises potential offerors that FAR part 15 procedures will be used. Conversely, if the Contracting Officer decides to use some other contracting method rather than “contracting by negotiation” for the acquisition, such as the procedures described in FAR subpart 8.4, or in FAR 12.603 or in FAR 13.106 (i.e., Simplified Acquisition Procedures), then this provision would not be included in the solicitation. As such, the omission of this provision in the solicitation would, by inference, indicate to potential offerors that the acquisition will not be conducted in accordance with FAR part 15.

    3. As indicated in the references cited above, the proposal evaluation procedures specified in FAR subpart 8.4, in FAR 12.603 and in FAR 13.106 do have certain similarities to procedures required by FAR part 15.  For example, similar to “contracting by negotiation”, these other contracting methods require that the solicitation state the basis (i.e., the evaluation factors) on which award will be made, and mandate that all quotes or offers received are fairly considered and award is made in accordance with those evaluation factors. Additionally, these other contracting methods expressly permit the use of non-price evaluation factors, similar to those required in “contracting by negotiation”, as the basis for proposal evaluation and contract award. If fact, FAR 13.106-2(b)(1) permits the Contracting Officer to evaluate “quality” in accordance with the factors listed in FAR 15.304(c)(2) when using Simplified Acquisition Procedures, but does not require the Contracting Officer, for example, to establish a competitive range pursuant to FAR 15.306(c). Therefore, even though these similarities exist among the various contracting methods discussed above, the use of the same proposal evaluation procedures does not mean that the acquisition is being conducted as a FAR part 15 procurement, per se.

    4. Based on the above, we would recommend the following approaches when conducting procurements for supplies when not using “contracting by negotiation”. In all cases, the evaluation factors, whatever they happen to be (e.g., price only or price and non-price factors), must be clearly stated in the solicitation, and evaluation and contract award must be conducted in accordance with those stated factors. If using Federal Supply Schedules, then follow the guidance set forth in FAR 8.405-1(f) when constructing the solicitation’s evaluation factors. If using Simplified Acquisition Procedures when acquiring commercial items, then follow the guidance set forth in FAR 13.106-1(a) and FAR 13.106-2(b) when constructing the solicitation. Finally, as noted in paragraph 2 above, avoid including any provisions in the solicitation that are expressly required for FAR part 15 procurements (e.g., FAR 52.215-1).

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