We have a multiple award task order under our own Basic IDIQ (not another agency’s), The FOPR was submitted to all Prime contractors under the IDIQ, however only one proposal was received. The FOPR included evaluation criteria based on the ordering procedures of the IDIQ (not specific criteria), it also did not include any deviations from the terms and conditions of the basic IDIQ. We are aware we have no APC and certified cost and pricing data will be required, however, would the task order still be considered “competitive” therefore not requiring business and/or contract clearance?
SUBPART 5301.90 – CLEARANCE - 5301.9000 Scope and Definitions:
(b) Excluded from business or contract clearances are:
(6) Competitive order solicitations and orders issued in accordance with FAR 8.4, 13, or 16.5 and against existing MAC ID/IQ, GWACs, and FSS contracts if they do not require either one or both of the following:
1)Establishment of specific criteria for the evaluation of proposals and selection of the awardee for the order;
2)Addition of any terms or conditions that are not included in the basic ID/IQ contract, and/or changes to the existing terms or conditions of the basic ID/IQ contract.
Fair Opportunity Guide 16.505 states:
Description: IAW AFFARS 5301.9000(b)(6), competitive order solicitations and orders issued in accordance with FAR 8.4, 13, or 16.5 and against existing MAC ID/IQ, GWACs, and FSS contracts in accordance with the terms and conditions and ordering procedures of the basic contract are excluded from business or contract clearance. If the TO/DO is not in accordance with the terms and conditions and ordering procedures of the basic contract, then business/contract clearance would be required.
Our FOPR stated:
(2) Awardee selection process for all subsequent Task Orders under the contract: (i) Task Orders will be awarded on a fair opportunity basis pursuant to Federal Acquisition Regulation (FAR) 16.505 ordering procedures, the terms and conditions of the basic contracts, and the specific requirements outlined in the Fair Opportunity Proposal Request (FOPR). Orders placed under FAR 16.505 Indefinite-Delivery Indefinite-Quantity (IDIQ) contracts are not source selections and are not subject to FAR 15.3 procedures. Unless a Task Order requirement meets one of the exemptions listed in FAR 16.505 (b)(2), it will be considered a competitive requirement.
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This response is based on the information provided. We suggest you discuss with your contracting policy unit and/or legal department as appropriate.
You did some solid research. We reviewed the FAR/DFARS/DFARS PGI/AFFARS for this reply.
You solicited under competitive conditions. Given you received only one proposal, you will need certified cost and pricing data as you noted. Your question is, "Under this circumstance, do we need to go through a Business Clearance?" You cite AFFARS 5301.9000(b)(6). We believe that AFFARS 5301.9000(c) is also instructive. If you will need to enter negotiations, we believe you may need a Business Clearance approval. If you get the certified cost and pricing data and do not need to enter negotiations, the clearance may not be necessary.
The simplest way to resolve this issue is to contact the office of the Business Clearance Authority for its interpretation given your specific circumstances.