MAZE OF DEFINITIONS: Knowing the definitions of terms in the FAR is essential. In April 2019, the GSA published a pre-solicitation notice requesting industry’s interest to provide warehouse space. Two firms protested the notice to the GAO—and it dismissed both protests because the pre-solicitation notice was not an announcement of a government contract action. (Getty Images/hocus-focus)
When is a notice not a notice of a proposed contracting action?
by Dennis P. Longo
The second article in the On Contracting series based on the Competition in Army Contracting course, which the author developed for the Office of the Deputy Assistant Secretary of the Army for Procurement.
Anyone who has ever tried to do business with DOD knows that it’s complicated. Even people who know what’s going on can get confused now and then.
A few years ago, I didn’t realize I was confused until after the Defense Federal Acquisition Regulation Supplement (DFARS) was amended to require the contracting officer to post a request for information or sources sought—two notices that the government publishes that are intended to gather information about industry capabilities before issuing a request for proposals. When limiting competition to only one responsible source, the results of the notice—according to the DFARS—must be included in the sole-source approval document unless a waiver is granted.
Let me clarify—it wasn’t the DFARS language that confused me. I was confused because my understanding of concepts of a notice, synopsis, request for information, sources sought, and notice of proposed contract action was abruptly challenged. A notice is a notice, right?
I knew that the Federal Acquisition Regulation (FAR), in Part 5, contains policies for publishing contracting opportunities to increase competition, to broaden industry participation, and to assist small businesses in obtaining government contracts and subcontracts.
However, Part 5 also uses notice, contract action, synopsis, announcement, and pre-solicitation notice as undefined terms—at least not clearly defined for me. Throw in the DFARS amendment requiring a request for information or sources sought, and my head began to ache—and what does this have to do with limiting competition to only one source? I reached for some aspirin.
So walk through this with me…
WHAT IS A NOTICE?
A notice is a method of publishing information to industry and may be made at different stages of the acquisition. A notice may announce availability of a government solicitation, announce an award of a contract, or announce dates, times and locations for meetings with industry to discuss procurement needs. To that point, the FAR encourages what it calls early exchanges of information that may take the form of pre-solicitation notices, business fairs, pre-bid or pre-proposal conferences, and the availability of draft solicitations or draft specifications for review. Easy enough, I thought.
WHAT IS A SYNOPSIS?
The FAR refers to a notice of a proposed contract action as a “synopsis.” A synopsis announces the availability of a government solicitation or a contract award. It is a summary or outline of a solicitation or a contract action that must be published on a government website that is accessible by the public. See FAR 5.201.
What information must be provided in a synopsis?
A stipulation in FAR Part 5 requires specific information about the contract action that must be included in the synopsis, when industry is invited to respond to the synopsis and when those responses must be submitted to the government.
The FAR requires that each synopsis address 18 required elements. These elements are in the regulations because the government has particular interests when publishing a synopsis—when limiting competition, the government wants to make sure that its interests are well represented.
Sixteenth in that list of required elements among those required at FAR 5.207(a) is the description of the supplies or services that the government intends to purchase.
The description of supplies or services being sought must be written clearly and concisely—free from ambiguity (clear) and expressed using only a few words but in a way that is easy to understand (concise); not unnecessarily restrictive of competition and allowing a prospective offeror to make an informed decision as to whether to request a copy of the solicitation according to FAR 5.207(c).
If a synopsis does not contain an accurate description of the supplies or services being sought, it unnecessarily restricts competition and fails to achieve our procurement objectives.
Here’s where competition comes into play.
If, for example, my synopsis doesn’t accurately describe the services required to overhaul a helicopter engine, or a synopsis identifies only two of 15 spare parts required for a tank’s ventilation system, in both examples industry can’t accurately describe its capabilities to satisfy the requirement. Consequently, the government denies all responsible sources an opportunity to compete for the contract award.
While it may appear that my failure to list all of the parts or accurately describe services that the government wants doesn’t make a big difference, it may adversely affect some new potential bidder who might—if they knew what we were looking for—be able to offer the government a much better deal, propose new technology or recommend greater performance.
WHAT IS PRE-SOLICITATION?
A pre-solicitation notice is a method the government uses to provide industry with information or to receive information. When the government needs information from industry for market research purposes or wants to inform industry of a government business fair, it may issue a pre-solicitation notice.
The government may publish a pre-solicitation notice, for example, to inform industry of its small business events or conferences, to request comments on a draft solicitation, or to receive information about commercial practices before drafting a solicitation. A pre-solicitation notice is not a notice of a proposed contract action.
In April 2019, for example, the General Services Administration (GSA) published a pre-solicitation notice requesting industry’s interest to provide warehouse space. Two firms protested the notice to the Government Accountability Office (GAO), complaining that the description of the requirement restricted competition, and that the time that the GSA required responses to the notice was too short.
The GAO dismissed both protests because the notice was not an announcement of a government contract action. See GAO’s decision B-417414; B-417414.2.
A PRE-SOLICITATION NOTICE DOES NOT ANNOUNCE A CONTRACT ACTION
A request for information and a sources-sought notice are two examples of pre-solicitation notices. I wasn’t sure if it was the result of the aspirin taking affect, but my confusion was beginning to fade.
What is a request for information?
A request for information (RFI) simply requests information from industry. It may, for example, request information as to how commercial trash removal services assess charges for trash pickup, e.g., on a monthly basis or by weight. A request for information is not a notice of a proposed contract action in that it does not describe an agency’s actual requirement, nor is it a notice of the government’s intent to award a contract. Industry responses to the request for information are treated as information only and must not be used solely to select a firm for award of a contract.
In 2013, for example, the Peace Corps issued a request for information that included a draft description of features it desired for an email service. The Peace Corps received two responses to the request for information and, after evaluating both responses, modified one of its contracts to add the product that was provided by one of the firms responding to the request for information. The other response to the RFI was submitted by a firm named Onix that later protested the contract modification to the GAO.
The GAO found in this case that because the Peace Corps had not issued a solicitation that described its procurement requirement, there was no basis to conclude that Onix was incapable of meeting the Peace Corp’s requirements and the subsequent contract modification was improper. See GAO’s decision B-411841.
What is a sources-sought?
Where a request for information may seek to obtain commercial practices or pricing, a sources-sought may seek industry capabilities relative to a future requirement.
According to FAR 5.205, a sources-sought may be issued to enable potential sources to learn of research and development programs and to provide an opportunity to submit their capability information.
A sources-sought notice may be published, for example, to determine if a local small business market could deliver 50,000 gallons of diesel fuel within two days’ notice in case of an emergency. Evaluation of the responses to that notice may assist a contracting officer in determining if future procurements should be set aside solely for small businesses having that capability.
In April 2018, the GAO adjudicated a protest under similar circumstances where the contracting officer, after receiving responses to a sources-sought notice, set aside procurement of 50,000 gallons of diesel fuel to small disadvantaged, veteran-owned small business firms. The protester, AeroSage, complained that the sources-sought notice was a solicitation and the contracting officer in this case didn’t consider its response. The GAO dismissed the protest, explaining that the sources-sought notice was not a solicitation that anticipated the award of a contract. See GAO’s decision B-415893.
Sources-sought notices assist the government when it conducts market research and in finding interest from capable industry sources. It also assists the contracting officer to determine if a commercial item is available to satisfy a government purchase requirement.
As with the request for information, a sources-sought notice does not announce a government contract action.
Both the request for information and the sources-sought notice are pre-solicitation notices that are published before issuing a formal solicitation. Award of a sole-source contract must not be based solely on evaluation of the responses to either of these pre-solicitation notices. Otherwise, we run the risk of conducting a de facto source selection based on responses to a pre-solicitation notice.
For example, in 2006, the Air Force posted a pre-solicitation notice for repair of air sealing ring segments for the F-100 engine. The contracting officer approved a justification and approval (J&A) to repair ring segments for the F-100 engine on a sole-source basis after issuing a pre-solicitation notice, but before expressions of interest from the notice were received. The GAO sustained the protest by Barnes Aerospace Group (B-298864.2, 26 Dec 2006), explaining that “agencies undercut their credibility when they prepare and execute sole-source J&As on the basis that there is only one responsible source available, before the time they have received expressions of interest and capability from potential offerors. The entire purpose of issuing notices seeking expressions of interest and capability is to avoid the need for such sole-source procurements, if possible.”
The government assumes a risk by proceeding with an action to limit competition without considering expressions of interest and capability from potential offerors. First, we risk depriving our programs of industry innovation; second, we risk losing the benefits of a competitive market.
We also assume a risk when we consider issuing notice of a contract action as frivolous or a formality.
For example, in 2018, the Department of Labor published a notice of its intent to award a sole-source contract and invited companies to submit a capability statement.
However, one day after publishing the notice, the contracting officer signed the J&A and awarded the sole-source contract.
Career Systems Development Corp. protested (B-416021.2, 18 May 2018) the sole-source contract, stating the Department of Labor (DOL) failed to consider its capability statement that was submitted in response to the DOL’s notice. The DOL claimed, however, that the notice inviting firms to submit capability statements was a “mere formality” and that the consideration of the protester’s capability statement was “actually irrelevant.”
GAO disagreed, explaining that the agency’s responsibility to consider the protester’s capability statement is not a “mere formality” and determined that DOL’s actions were contrary to regulation, rendering the J&A and the resulting sole source contract deficient.
The DFARS requires the contracting officer to publish a request for information or sources sought when using the “one responsible source” exception to full and open competition. Accurate use of pre-solicitation notices—as well as a walk through the valley of the acquisition regulations to understand the nature of a synopsis, request for information, sources-sought, and notice of proposed contract action—facilitates our procurement objectives, supports advance procurement planning and enhances market research toward fulfilling our mission objectives.
For more information on notice of a proposed contract action and its impact on competition in contracting, go to the Training Library on the web at the Deputy Assistant Secretary of the Army for Procurement (DASA P) Procurement.Army.Mil (PAM) website at https://spcs3.kc.army.mil/asaalt/procurement/SitePages/NewTraining.aspx.
DENNIS P. LONGO is advocate for competition, task and delivery order ombudsman, and senior procurement analyst at the Army Contracting Command at Aberdeen Proving Ground, Maryland. A member of the Army Acquisition Corps, he holds a bachelor’s degree from University of Baltimore, and is Level III certified in contracting and acquisition. His assignments include acquisition specialist at the Program Manager for Chemical Demilitarization within the U.S. Army Chemical Materials Activity and procurement analyst at the U.S. Army Legal Services Agency. He served in the Army from 1971 to 1973 at the Southern European Task Force, Italy, and was deployed to Iraq as a civilian in 2003. He authored the Defense Acquisition University Continuous Learning DOD Purchase Card Tutorial in 2003, and has been teaching courses on competition in contracting since 2004. The first of the author’s On Contracting articles appeared in the Winter 2020 edition of Army AL&T.
Read the full article in the Spring 2020 issue of Army AL&T magazine.
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