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    What is the difference between communications, clarifications and discussions? How does it apply to FAR parts 8/16 and 15? Is there differences when looking to award a LPTA versus BVTO contract under 15? We do a lot of IDIQ contracts at our agency how does this apply to those and their task orders? Please advise.


    Answer

    Exchanges with offerors after receipt of proposals is covered in FAR 15.306.  According to the FAR, the PCO is limited to three types of exchanges with offerors after receipt of proposals: clarifications, communications and discussions.  In addition to the FAR and DFARS, another excellent resource is the DoD Source Selection Procedures Guide dated 1 April 2016 (from here on out, I'll refer to it as the Guide), which has some great insights about conducting  exchanges with offerors after receipt of proposals.  First, it's important to point out that the Guide applies to all competitively negotiated procurements (in other words, FAR Subpart 15.3 source selections).  Probably just as important as the applicability of the Guide is when it does not apply.  Two of the exceptions in the Guide pertain directly to your question: FAR Subpart 8.4, Federal Supply Schedules (FAR subpart 16.505(b)(l), and orders under multiple award contracts--Fair Opportunity (See para 1.2.1 in the Guide).  However, para 1.2.3 goes onto say that "agencies shall consider  the use of these procedures for orders under multiple-award (Fair Opportunity) greater than $10 million.  It's pretty clear cut when we are talking about FAR Subpart 15.3 source selections and exchanges with offerors after receipt of proposals are necessary, the types of exchanges are limited to these three in FAR 15.306 and DoD Contracting Officers (PCOs) must control these exchanges by strictly following the rules in FAR 15.306 (See 1.4.2.2.7).

    As already mentioned, orders placed under FAR Subpart 8.4, Federal Supply Schedules (FAR subpart 16.505(b)(l)) are exempted from the mandatory use of DoD source selection procedures.  Also, FAR 8.404(a) states that FAR Part 15 does not apply to orders placed against Federal Supply Schedules contracts.  Therefore, by extension, it's pretty clear from reading FAR 8.404(a) and the applicability section of the Guide, FAR 15.306 exchanges are not required either for FAR Subpart 8.4 orders.  Also, FAR Subpart 8.4 does not mention the requirement for any type of formal exchanges probably due to the fact the Federal Supply Schedule program is intended to be "a simplified process for obtaining commercial supplies and services" via multiple award IDIQ contracts that are already awarded and prices already established by GSA (See FAR 8.402(a)).  That being said, ordering agencies are required to determine price fair and reasonableness and are permitted to request and negotiate further discounts before placing any order and shall seek a price reduction for orders greater than the simplified threshold (See FAR 8.405-4 and CD 2014-O0011)

    Where there sometimes is a bit of confusion is concerning where do FAR 15.306 exchanges fit in with orders placed using Fair Opportunity procedures under FAR 16.505.  Is it proper to use FAR 15.306 exchanges for orders placed under FAR 16.505(b)(1)?  According to the Guide, it's not mandatory to use the DoD source selection procedures for multiple-award orders except the PCO shall consider use of these procedures for orders greater than $10M.  It's also worth mentioning that according to FAR 16.505(b)(1)(v)(5) when the PCO is developing the Fair Opportunity procedures, she should consider "whether contractors could be encouraged to respond to potential orders by outreach efforts to promote exchanges of information....".  Therefore, while not mandatory, it is encouraged particularly for orders over $10 million.  If the decision is made to use the Guide (or any part of the Guide) for developing the multiple-award (Fair Opportunity) procedures, then the PCO may also want to consider incorporating FAR 15.306 exchanges with offerors after receipt of proposals.  In other words, the Guide is saying for orders over $10M that it's a good idea to have a more formalized and documented process for the fair opportunity procedures and by extension if exchanges might be necessary why reinvent the wheel; the Guide and FAR 15.306 procedures are very good so why not use them.  The acquisition plan (for the award of the multiple-award IDIQs) and the RFP would of course need to discuss how the source selection procedures from the Guide and, if exchanges are going to be permitted, how FAR 15.306 would come into play for orders placed under the contract's fair opportunity procedures. 

    Finally, the Guide does a good job of explaining the process of exchanges with offeorors after receipt of proposals.  Section 3.3 covers award without discussions and addresses the purpose, limitations and best practices for conducting clarifications  Section 3.5 covers the discussion process which goes in-depth about conducting communications, establishing the competitive range and holding discussions.  DAU does also offer continuous learning training for source selection including CLC 007 and CON 0070

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