13 Reasons Why SAP is Simpler

             

“How do you do simplified acquisition?” is a common question I hear from acquisition personnel that are more familiar with using FAR part 15 procedures to solicit offers and award contracts. The question presupposes that there is a regulated set of procedures that one must follow—similar to what is prescribed in FAR part 15, agency FAR supplements to FAR part 15, agency guidebooks on source selection, and the decisions of the Government Accountability Office (GAO) and Court of Federal Claims (COFC). Fortunately, that is not the case. Rather, FAR part 13 (Simplified Acquisition Procedures (SAP)) expressly states that certain procedures contained in FAR part 15 (Contracting by Negotiation) do not apply and requires contracting officers to “use innovative approaches, to the maximum extent practicable, in awarding contracts using simplified acquisition procedures.” FAR 13.003(h)(4). An underlying message in FAR part 13 is to not bring your FAR part 15 baggage with you. The following list presents thirteen reasons why SAP is simpler than the competitive negotiation procedures of FAR part 15.

1. Market Research is Not Always Required

Whereas FAR 10.001(a)(2)(ii) requires agencies to conduct market research before issuing solicitations for acquisitions above the simplified acquisition threshold (SAT), FAR 10.001(a)(2)(iii) only requires market research below the SAT “when adequate information is not available and the circumstances justify its cost.” Thus, if you’re using SAP for an acquisition below the SAT you may be able to limit your research to a cursory review of information available in the contracting office or a Web search. 

2. FAR Part 6 (Competition Requirements) Doesn’t Apply

FAR part 6 does not apply to contracts awarded using SAP (see FAR 6.001(a)). This makes things simpler for a couple of reasons. First, you are not limited to the competitive procedures that are prescribed at FAR 6.102. You can innovate. The only requirement is that you promote competition to the “maximum extent practicable” considering the administrative cost of the purchase (FAR 13.104(a)). Second, you avoid the extensive justification and approval requirements at FAR 6.303 and 6.304 when soliciting for a single source for purchases at or below the SAT. The contracting officer need only determine “that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand-name or industrial mobilization).” FAR 13.106-1(b)(1).

3. For the Department of Defense (DoD), the DD Form 2579 is not always required

DFARS 219.201(c)(10)(A) does not require contracting activity small business specialists to review acquisitions below the SAT that are totally set aside for small business concerns. This is one less step to take before issuing a solicitation. Note that DFARS PGI 219.201(c)(10)(1) makes clear that such reviews are not precluded and explains that such reviews may be appropriate to determine the suitability of setting aside the acquisition for other small business programs (i.e., 8(a), HUBZone, SDVOSB, and WOSB programs). However, this should only be done temporarily when the contracting activity is falling short of a specific goal—not as a matter of course. Lastly, small business set-asides under the SAT are not subject to review by the Small Business Administration (SBA) (FAR 13.003(b)).

4. If You Compete the Award of Multiple BPAs, You Don’t Have to Compete the Subsequent Purchases

FAR part 13 does not explicitly discuss competitive awards of multiple BPAs or purchases made thereunder. However, the Government Accountability Office (GAO) denied a protest against the Drug Enforcement Agency’s (DEA’s) use of this procedure in Logan LLC, Comp. Gen. COMP. GEN. DEC. B-294974.6, December 1, 2006. After competing the award of multiple BPAs, the DEA planned to rotate purchases among the multiple BPA holders instead of conducting competitions. The protestor argued that the rotation procedure failed to meet the competition standard of FAR 13.104 (i.e., “competition to the maximum extent practicable”). The GAO disagreed—

“In this case, DEA complied with the statutory requirement to obtain maximum practicable competition when it established the BPAs for these small purchases. Under these circumstances, there is no requirement that DEA compete among the BPA holders each individual purchase order subsequently issued under the BPAs.” [Internal citation omitted].

Note that the limit for purchases under BPAs for commercial items is $7 million (or $13 million under certain conditions) (FAR 13.303-5(b)(2)). While there is no monetary limit for orders under a multiple-award contract, there are competition requirements at FAR 16.505(b) (i.e., “fair opportunity”) that begin for orders above $3,500 and become increasingly more burdensome depending on the value of the order. By comparison, the rotation procedure is comparatively simpler.

5. There’s No Minimum Solicitation Response Time

There’s no requirement to wait 30 days for offers after releasing the solicitation when using SAP. The contracting officer need only “establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond.” FAR 5.203(b). What is reasonable depends on the circumstances. The GAO denied a protest of a 24-hour response time when the contracting officer based the award on price alone and the need was urgent (see Military Agency Servs. Pty., Ltd., Comp. Gen. Dec. B-290414, 2002 CPD ¶ 130). The GAO also sustained protests of response times of 1½ business days (see Information Ventures, Inc., Comp. Gen. Dec. B-293541, 2004 CPD ¶ 81); one day (see Jack Faucett Assocs., Inc., Comp. Gen. Dec. B-279347, 98-1 CPD ¶ 155); and three hours (see Sabreliner Corp., Comp. Gen. Dec. B-288030, 2001 CPD ¶ 170).

6. You Can Award to A Vendor That Didn’t Submit a Quotation

Assume that you issue a competitive RFQ and you aren’t satisfied with the quotations you receive. You know you can get a better deal from some of the vendors you found during market research. Is your only choice to cancel the solicitation and try to get those vendors to submit a quote? No, you can treat their advertised pricing as standing price quotations and issue one of them a purchase order. The Air Force encountered a similar situation in Southeast Technical Services, COMP. GEN. DEC. B-289065, December 20, 2001. They only received one quotation in response to an RFQ, which lacked sufficient information to determine the quoter’s capability. Despite the Air Force giving them a second attempt to provide the requested information, the quoter did not provide it. The Air Force then decided to award to a vendor that had submitted a quotation a few weeks prior when the Air Force was conducting market research. The Air Force was able to verify the vendor’s capability based on information contained in the quotation and on the Web. The protestor argued that the Air Force’s action was improper because they should not have considered a quotation that was not submitted in response to the RFQ. The GAO rejected that argument stating—

“…there is no requirement that agencies consider only quotations in response to an RFQ; under FAR § 13.103, a standing quotation properly may be considered in a simplified acquisition if it is current.”

Unlike a FAR part 15 solicitation, you are not limited to the responses you receive to a solicitation when making an award decision.

7. You Don’t Have to State the Relative Importance of Evaluation Factors in the RFQ/You Don’t Have to State Subfactors in the RFQ

When using FAR part 15 procedures, agencies are required to disclose the relative importance of all factors and significant subfactors in the solicitation (FAR 15.304(d)). In addition, the solicitation is also required to state the importance of all factors other than price or cost combined in relation to price or cost (FAR 15.304(e)). In practice, the wording of these statements can lead the contracting officer to needless back and forth with legal counsel and the policy office as they pursue verbal perfection. It also oftentimes leads to a product that is borderline readable.

Fortunately, FAR 13.106-1(a)(2) frees the contracting officer from these requirements:

“Solicitations are not required to state the relative importance assigned to each evaluation factor and subfactor, nor are they required to include subfactors.”

The contracting officer need only state the “basis on which award will be made (price alone or price and other factors, e.g, past performance and quality).” (FAR 13.106-1(a)(2)).

8. Formal Evaluation Plans and Scoring Quotations is Not Required/You Can Skip Right to a Comparative Evaluation of Quotations

Many agencies require the evaluation of proposals against a standard for each factor and the assignment of a rating before doing a comparative evaluation of offers. The DoD Source Selection Procedures actually prohibit those assigning the ratings from performing a comparative analysis:

“1.4.4.4.3 Neither the [Source Selection Evaluation Board (SSEB)] Chairperson nor the SSEB members shall perform comparative analysis of proposals or make source selection recommendations unless requested by the [Source Selection Authority].”

The factor standards and rating scales are typically set forth in a source selection plan that is subject to review and approval prior to release of a solicitation.

FAR 13.106-2(b)(3) eschews this complexity:

“Formal evaluation plans[…], and scoring quotations or offers are not required.”

In my experience, those raised on FAR part 15 tend to have trouble envisioning how a comparative evaluation could be done without first assigning a rating for each factor. FAR 13.106-2(b)(4)(i) actually describes how such a comparative evaluation could be done:

“After preliminary consideration of all quotations or offers, identify from all quotations or offers received one that is suitable to the user, such as the lowest priced brand name product, and quickly screen all lower priced quotations or offers based on readily discernible value indicators, such as past performance, warranty conditions, and maintenance availability…”

Although the FAR explicitly permits this procedure “for acquisitions conducted using a method that permits electronic response to the solicitation”, it would seem to be clearly permissible under the general guidance that quotations “be evaluated in an efficient and minimally burdensome fashion.” FAR 13.106-2(b)(3). (See Even Swaps: A Rational Method for Making Tradeoffs for another method that could be used for doing a comparative analysis).

9. You Can Evaluate Past Performance Based on the Information Stored in Your Head

FAR 13.106-2(b)(3) states that evaluation of nonprice factors, such as past performance—

“(i) Does not require the creation or existence of a formal data base; and

(ii) May be based on one or more of the following:

                     (A) The contracting officer’s knowledge of and previous experience with the supply or service being acquired;…”

Relying on your memory certainly makes the task of information gathering and evaluation recordkeeping simpler.

10. You Can Negotiate Terms Without Having to Establish a Competitive Range, Conduct Discussions, and Request Final Proposal Revisions

The rules dealing with exchanges with offerors after receipt of proposals at FAR 15.306 may breed more litigation than any other section in the FAR. In practice, they have had the effect of constraining communication between the Government and offerors. Fortunately, these rules do not apply when using SAP. FAR 13.106-2(b)(3) expressly states that establishing a competitive range and conducting discussions is not required.

A good example of what a negotiation could look like when using SAP is described in United Marine International LLC, COMP. GEN. DEC. B-281512, February 22, 1999. The Army Corps of Engineers received four quotations in response to an RFQ for a debris collection vessel. The Corps considered two of the quotations unacceptable and did not consider them further. The two remaining quotations were acceptable, but the protester’s (United’s) price was higher. The lower-priced quoter (D&D) listed a number of optional items or upgrades in its quotation that were available, but not called for in the RFQ’s technical requirements. The Corps decided to take advantage of these options and requested a revised quotation from D&D, which still came out to be lower than United’s originally quoted price. The Corps did not amend the RFQ to include new technical requirements, establish a competitive range, conduct discussions, or request revised quotations from both competitors. They just issued a purchase order to D&D based on their revised quotation.

United protested alleging that the Corps had conducted discussions only with D&D and that they should have been given the opportunity to submit a revised quotation pursuant to FAR part 15. The GAO disagreed:

“The Corps was not required to follow the FAR provisions United cites because they are inapposite to a commercial item acquisition conducted under simplified acquisition procedures. Where, as here, simplified acquisition procedures are used, contracting agencies are to use innovative approaches to the maximum extent practicable in order to award contracts in the manner that is most suitable, efficient and economical in the circumstances of each acquisition.”

In my SAP course, the United case is particularly hard to accept for students raised on FAR part 15 procedures and no big deal for those who only know SAP.

11. You Can Accept Late Quotations

FAR 15.208(b)(1) contains a controversial, some would say draconian, rule regarding the handling of late proposals. The rule leaves no discretion to the contracting officer if they are in receipt of a late proposal—they may not consider it except in prescribed circumstances. More problematic is that the rule is interpreted differently by the GAO and the COFC (compare Sea Box, Inc. COMP. GEN. DEC. B-291056, Oct. 31, 2002, with Watterson Construction Company v. U. S., 10-587C, March 29, 2011). The rule is incorporated in noncommercial solicitations by use of the provision at FAR 52.215-1, Instructions to Offerors—Competitive Acquisition (see subdivision (c)(3)(ii)(A) of the provision) and commercial solicitations by use of the provision at FAR 52.212-1, Instructions to Offerors—Commercial Items (see subdivision (f)(2)(i) of the provision).

Fortunately, FAR part 13 does not include an analogous late quotation rule. In fact, the GAO has stated that late quotations must be considered unless the solicitation contains a late quotations provision, other quoters would be prejudiced, or the agency has begun the award process. See John Blood, COMP. GEN. DEC. B-274624, December 19, 1996. However, in the absence of a standard FAR  provision for RFQ instructions agencies typically incorporate the provision at FAR 52.212-1—a provision for use in invitations for bids and requests for proposals—without tailoring it for SAP. This unnecessarily applies the late proposal rule to SAP. (See here for an example of FAR 52.212-1 tailored for SAP).

12. Documentation Should Be Kept to a Minimum

FAR 13.106-3(b) implores agencies to “Keep documentation to a minimum.” For a written solicitation not exceeding the SAT, the contracting officer need only maintain “written records of solicitations or offers to notes or abstracts to show prices, delivery, references to printed price lists used, the supplier or suppliers contacted, and other pertinent data.” Additional “statements” would be required in the absence of competition or if nonprice factors were used to make the award decision. No need for the six-section classification folders—two sections will do.

13. You Don’t Have To Notify Unsuccessful Vendors or Conduct Debriefings

FAR part 13 does not contain a requirement for the contracting officer to individually notify vendors who unsuccessfully competed for a simplified acquisition. The FAR only requires the publication of a synopsis of contract awards over $25,000, unless an exception applies (see FAR 5.301(a)). Further, debriefings are not required. If an unsuccessful vendor wants to know why they lost a competition based on factors other than price alone, the contracting officer need only provide “a brief explanation of the basis for the contract award decision.” FAR 13.106-3(d).