Per FAR 14.201-8(c), for multiple contracts, the CO assumes that there is a $500 administrative cost per award in determining if multiple awards is more advantageous for the government. Should the same logic be applied to SAP? If so, where is it found in the FAR and if not why not?
This is a Great question! We should first state that the government must reserve the right to make multiple awards when using sealed bidding by including 52.214-22 in the solicitation (IFB). If this was not done, the dollar figure of $500 found at 14.201-8(c) would be mute. Now, on to the answers:
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When conducting a source selection in accordance with FAR Part 15 Contracting by Negotiation; the same concept exists but with some minor variations. Like sealed bidding, the government must first reserve the right to make multiple awards in the solicitation (RFP). In this instance, the government has more leeway in determining what an appropriate “administrative cost” is as the FAR, DFARS (including PGI) and the DoD Source Selection Procedures Guide are all silent on any specific dollar value to use if doing a source selection IAW FAR 15. For the specific references, see 52.215-1(f) and especially 52.215(f)(6). In our experience, contracting officers who have been in this situation have often used the dollar amount from 14.201-8(c) for analysis purposes to justify their decisions; there is nothing that prohibits this.
Note: the above scenario is based on a situation where the government is not intending to award an Indefinite Deliver Contract. There are different rules when soliciting for and awarding IDIQ contracts, see FAR 16.5 and the corresponding DFARS requirements, procedures and guidance.
Now, when using Simplified Acquisition Procedures (SAP), the administrative cost burden does not apply and the government has even more leeway in deciding to make multiple awards (i.e. issue multiple purchase orders). The “even more leeway” in this instance is that the government is not required to reserve the right to make multiple awards in our solicitation (RFQ) beforehand.
Well, the logic can be found first and foremost in FAR 13.104 Legal Effect of Quotations. This gives the government much more latitude in deciding what purchase orders (and what those POs might contain) to issue. In addition, if using the SF1449 to issue your RFQ for SAP, then see 52.212-1(h) multiple awards. So unless the offeror identifies the limitations; the government has that flexibility. Again, in our experience, contracting officers have used the dollar amount from 14.201-8(c) for analysis purposes to justify their decisions in this instance too.
A final word of caution; during bid protests, the GAO and COFC have found on a few rare occasions that federal agencies (including DoD) have actually conducted a FAR Part 15 source selection even though they thought they were using SAP. This happens when they developed an RFQ that is very restrictive and stringent and essentially makes prospective offerors submit what amounts to a “proposal” vs a “quote”. In other words, if the RFQ reads like, smells like, and looks like an RFP… it’s an RFP. If that were the case, we would have had to identify the fact we were reserving the right to make multiple awards in the solicitation.