The following answer is provided based on the minimal facts provided on this acquisition as well as no knowledge of the goals of this procurement.
- The fact that this is contracting action is greater than $3,000 and less than or equal to $150,000 and your market research can show you that you can expect to receive 2 or more offers from small business at a fair and reasonable price then FAR 19.502-2 (a), Total Small Business Set-Asides, requires that this action be set aside for small business.
(a) Before setting aside an acquisition under this paragraph, refer to 19.203(b). Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 ($15,000 for acquisitions as described in 13.201(g)(1)), but not over $150,000, ($300,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices…
- Next the Contracting Officer must make the determination that this item is a commercial service in accordance with the definition for commercial items at FAR 2.101 [services focues mostly on paragraphs (5) – (7) of the definition].
FAR 2.101 “Commercial item” means --
(1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and--
(i) Has been sold, leased, or licensed to the general public; or,
(ii) Has been offered for sale, lease, or license to the general public;
(2) Any item that evolved from an item described in paragraph (1) of this definition through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation;
(3) Any item that would satisfy a criterion expressed in paragraphs (1) or (2) of this definition, but for --
(i) Modifications of a type customarily available in the commercial marketplace; or
(ii) Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. Minor modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor;
(4) Any combination of items meeting the requirements of paragraphs (1), (2), (3), or (5) of this definition that are of a type customarily combined and sold in combination to the general public;
(5) Installation services, maintenance services, repair services, training services, and other services if--
(i) Such services are procured for support of an item referred to in paragraph (1), (2), (3), or (4) of this definition, regardless of whether such services are provided by the same source or at the same time as the item; and
(ii) The source of such services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;
(6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. For purposes of these services—
(i) “Catalog price” means a price included in a catalog, price list, schedule, or other form that is regularly maintained by the manufacturer or vendor, is either published or otherwise available for inspection by customers, and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public; and
(ii) “Market prices” means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors.
(7) Any item, combination of items, or service referred to in paragraphs (1) through (6) of this definition, notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor; or
(8) A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments.
- Once the commercial item determination has been made, then the competitive procedures stated in FAR part 12 will apply to your acquisition. Particularly, FAR 12.102 and 12.203 state that you can combine the competitive procedures of FAR part 12 with those of FAR part 13, 14 and 15. This will allow you to do anything from low price to formal tradeoffs to the informal process of either of these allowed under simplified acquisitions procedures. With your acquisition being $90,000, you can also utilize the combined synopsis/solicitation process to shorten your timeframes. This is where your procurement team will have to know the goals of this procurement and look at the statement of work. Are discussions required? Will low price suffice? Does anything need to be evaluated? If so, can it be accomplished more informally or would it be better evaluated in a formal structure? Your responses to these questions will determine which procedure will best fit your contracting action.
FAR part 12
12.102 -- Applicability.
(a) This part shall be used for the acquisition of supplies or services that meet the definition of commercial items at 2.101.
(b) Contracting officers shall use the policies 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.
(c) Contracts for the acquisition of commercial items are subject to the policies in other parts of the FAR. When a policy in another part of the FAR is inconsistent with a policy in this part, this part 12 shall take precedence for the acquisition of commercial items.
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 12.207 reminds us that since this is a commercial acquisition that your only contract type can be firm-fixed-price contracts or fixed-price contracts with economic price adjustment. So no matter what contract strategy you choose, it will fit with either of these contract types.