DFARS 215.403-1(c)(1)(b) says that "Adequate price competition normally exists when (i) Prices are solicited . . . from at least two offerors that are individually capable of producing the full quantity . . ." Does the word "producing" mean "manufacturing" or "providing," i.e., providing for sale, whether manufactured by that source or not?
As long as the requirement is not brand specific, can solicting quotes from only distributors or resellers be considered full and open competition, as long as the solicted distributors/resellers colelctively offer more than one manufacturer's product that meets the requirement? Or must manufacturers also be solicited?
For acquisitions exceeding the FAR 2.101 "Simplified Acquisition Threshold", soliciting quotes from only distributors or resellers cannot be considered full and open competition. FAR 2.101 defines “Full and open competition,” when used with respect to a contract action, means that all responsible sources are permitted to compete. Eliminating manufacturers from your solicitation would require execution of the directions found at FAR Subpart 6.2 - Full and Open Competition After Exclusion of Sources or FAR Subpart 6.3 – Other Than Full and Open Competition.
The background for the question invites discussion of intent. Intent lies at the heart of a long running debate in the acquisition community regarding how to execute the clear direction at FAR 6.101(a), “…contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.” FAR Part 5 - Publicizing Contract Actions, presents the clear goal of increasing competition, broaden industry participation and carry out our nation’s socioeconomic policies (FAR 5.002). If contracting professionals are seeking the broadest competition warranted by the specific situation, the language of DFARS 215.403-1(c)(1)(b) becomes enabling rather than limiting. The intent is not to encourage solicitation of ONLY two providers as a way to “check the block” on competition. No. The intent is to address the situation in which broad competition is invited and only two offers come in. In this situation DFARS 215.403-1(C)(1)(b) provides a way to acknowledge the Government sought competition but found only a limited number of players. It admits the Government can only seek competition, not coerce it. FAR/DFARS allow both industry and Government to forego the detailed effort of Certified cost or pricing data (FAR 2.101) provided the spirit of seeking competition has in fact been pursued.
With today’s ease of using the Government point of entry (www.fbo.gov) there is little support for not seeking broad competition whenever possible. If only two distributors respond, then proceed accordingly. FAR 15.403-1(c)(1)(ii) does not invite a manufacturer or non-manufacturer determination; focusing instead on the intent of seeking, and expecting, competition.
Open full Question Details