Harry Kahn

As part of HKA’s on-going efforts to stay abreast of DoD acquisition and contracting policies, we came upon two recent additions to the Defense Acquisition University (DAU) ACQuipedia website: 1) Solicitations, and 2) Pre-Award Surveys.  The ACQuipedia articles are provided in their entirety below:

DEFINITION

A solicitation is any request to submit offers or quotations to the Government. Solicitations under sealed bid procedures are called “invitations for bids.” Solicitations under negotiated procedures are called “requests for proposals.” Solicitations under simplified acquisition procedures may require submission of either a quotation or an offer.

GENERAL INFORMATION/NARRATIVE

There are three primary methods by which the Government informs prospective contractors of the Government’s requirements and to solicit offers:

Simplified Acquisition Procedures (FAR Part 13). The simplified acquisition methods include use of the Government Purchase Card, Purchase Orders, and Blanket Purchase Agreements. The Contracting Officer solicits offers from prospective contractors on these purchase items by issuing a “Request for Quotation” (RFQ). Any responses provided by the potential offerors do not in themselves constitute a legally binding contract. FAR 13.004(a) states:

“A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier’s quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.”

Sealed Bidding (FAR Part 14). Sealed bidding is a competitive bid method of contracting that determines contract award based on price. After bids are publicly opened, an award will be made to the “responsible, responsive” bidder” whose bid, conforming to the invitation for bids, will be most advantageous to the Government, considering only price and the price-related factors included in the invitation” (FAR 14.101(e)).

Contracting by Negotiation (FAR Part 15). A
Request for Proposals (RFP) is used in negotiated acquisitions, generally for requirements that are above the Simplified Acquisition Threshold and those that do not meet the sealed bidding requirements of FAR 6.401(a). Unlike an RFQ, where the contractual agreement is entered into when the supplier accepts the Government’s offer (or order) to procure supplies or services, an RFP results in a binding contract when both parties come to an agreement on the terms and conditions of the contract. This agreement could occur upon initial receipt of the offeror’s proposal in response to the RFP or after further discussion or negotiations by the parties. Whereas in a Sealed Bidding environment a contract award is based strictly on price or price-related factors, the use of an RFP allows the Government to make an award based on “trading off” other areas that may be deemed more important than simply the lowest price. Other elements that could be considered include technical performance factors and past performance considerations.

At a minimum, the RFP shall describe (i) the Government’s requirement; (ii) the anticipated terms and conditions that will be contained in the contract, (iii) the required information that the prospective offerors must include in their proposal, and (iv) the factors and significant sub-factors (to include their relative importance) that will be used by the Government to evaluate the proposals. The RFP may, at the discretion of the Government, allow offerors to propose alternative terms and conditions including the contract line item number (CLIN) structure.

RFPs are frequently issued via electronic commerce, e.g., FedBizOpps.gov. Interested offerors may post their proposals in this manner as well, as long as they are complying with the conditions set forth in the RFP. The electronic commerce method(s) that offerors may use will be stated in the RFP.

The contracting officer may issue a “letter RFP” in sole-source acquisitions and in certain other appropriate circumstances (see FAR 15-203(e)). When using a letter RFP, it should include as much information as normally required; it does not relieve the contracting officer from complying with other FAR requirements.

The contracting officer may issue an “oral” RFP if he/she determines that processing a written solicitation would delay the acquisition of supplies or services to the detriment of the Government, and that a synopsis notice is not required. Examples include the procurement of perishable items and procurements in support of contingency operations or other emergency situations. As with the use of a letter RFP, the issuance of an oral RFP does not relieve the contracting officer from complying with other FAR requirements.

As explained in FAR 15.204-1, the contracting officer shall prepare solicitations under FAR Part 15 procedures by using the Uniform Contract Format (UCF), unless otherwise exempt by the FAR. Common exemptions to the use of the UCF include contracts for commercial items, construction and architect-engineer contracts, contracts for supplies or services requiring special contract formats, the issuance of a letter RFP, and contracts exempted by the agency head or designee.

The Uniform Contract Format

The use of the UCF facilitates preparation of the solicitation and contract. All elements of Part I, II, and III in the solicitation will become part of the awarded contract. Section K of the solicitation will be incorporated into the contract by reference. Part L and M do not become part of the subsequent contract, but will remain in the Government’s contract file.

Commercial Items (FAR Part 12). Most acquisitions that utilize procedures from FAR Parts 13, 14, and 15 are for the acquisition of commercial items. Because of this, the electronic combined synopsis/solicitation for commercial items is typically used. It is prepared in accordance with the format prescribed in FAR Subpart 12.6. The use of the UCF in the acquisition of commercial items under FAR Part 12 is neither required nor prohibited (FAR 12.207.)

DEFINITION

FAR 2.101 defines a Pre-award survey as “an evaluation of a prospective contractor’s capability to perform a proposed contract.” The purpose of a preaward survey is to obtain information not available to the contracting officer to make a responsibility determination prior to contract award.

GENERAL INFORMATION/NARRATIVE

Prior to awarding a contract, the contracting officer must make an affirmative statement of responsibility of the prospective contractor. In making this responsibility determination, the contracting officer shall consider information from various sources to include conducting a pre-award survey of the prospective contractor if the necessary information cannot be obtained by the contracting officer.

The pre-award survey is initiated by the contracting officer using the Standard Form (SF) 1403. The 1403 outlines the additional information needed to determine responsibility (FAR 9.106-2). The contracting officer should only include information that is necessary to make the responsibility determination. The more information requested, the greater the time necessary to complete the survey, possibly delaying the acquisition. Normally, the contracting officer will need additional information on the prospective contractor’s production capability, technical capability, financial capability, or ability to deliver the required supply or service in accordance with the contract. The contracting officer may also want to determine the adequacy of the prospective contractors accounting system if a cost type contract is being considered. The preaward survey can also be used to find out if the prospective contractor is able to comply with the appropriate labor laws such as the Walsh-Healey Public Contracts Act, Service Contract Act, or various OSHA regulations. Regardless of what information is needed, the contracting officer should only request the minimum information needed to make a responsibility determination. Once complete, the SF 1403 and solicitation are sent to the surveying activity. Within DoD, the surveying activity is normally the Defense Contract Management Agency. Before the surveying activity conducts the survey, it will confirm if the prospective contractor is debarred or suspended. It also determines if the procurement is for a commercial item and if it is over the simplified acquisition threshold (FAR 9.106-1(a)). The surveying activity will then determine what type of survey is needed.

TYPES OF PRE-AWARD SURVEYS

There are three types of formal surveys; General Purpose Capability Study, Onsite Survey, and Short Form. The General Purpose Capability Study is a study of the general capabilities and qualifications of the prospective contractor. General Purpose Capability Studies do not consider the quantity of the items being procured, or the required delivery schedule in the solicitation. An award recommendation is not made, but a risk rating may be provided. The information to be included in the General Purpose Capability Study will come from data readily available to the surveying activity; no onsite visit is required.

If the information is not readily available, then an onsite survey must be conducted. When an onsite survey is required, the surveying activity will coordinate a visit to the prospective contractor’s facility. The prospective contractor will be informed of the information that is required and grants the surveying activity access to the facility. If the contractor does not grant access, the responsibility determination cannot be made and the prospective contractor may not win the contract. The survey team includes may include the contracting officer or buyer, quality assurance representative, safety representative, legal counsel, technical subject matter expert, and others as necessary. Once the onsite visit is made, the surveying activity reports the findings of the visit and may provide an award recommendation and risk rating to the contracting officer.

The third type of formal pre-award survey is the short form survey. This type is used when the surveying activity can make an award recommendation and risk rating to the contracting officer based on the information readily available without having to conduct an onsite survey. The surveying activity will annotate on the SF 1403 that the survey is a short form survey.

If the contracting officer determines that the information needed does not require a formal survey, he/she can request an informal survey. This request can be made over the phone or via email; the SF 1403 is not needed. Information for the informal survey comes from data readily available to the surveying activity and can include information contained in formal surveys that were conducted within the last 12 months. An informal survey does not contain an award recommendation, but can provide a risk rating if sufficient information is available. If the surveying activity determines that the information is not available, it may recommend that the contracting officer request a formal survey.

When requesting any type of pre-award survey, the contracting officer needs to consider the time required to conduct the survey. General Purpose Capability Studies and Onsite Surveys may take as long as 45 days to complete, while Short Form and informal surveys can be completed in a matter of days.

 

Pre-Award Survey Type	May Provide Risk Rating	May Provide Award   Recommendation	Time Necessary
General Purpose (Formal)	YES	NO	Up to 45 Days
Onsite (Formal)	YES	YES	Up to 45 Days
Short Form (Formal)	YES	YES	Several Days
Informal	If Sufficient Info Exists	NO	Several Days

In addition to requesting a pre-award survey from a surveying activity within the DoD, the FAR allows the contracting officer to request a survey from another agency (FAR 9.106-3)

Once the pre-award survey is complete and the report received, the contracting officer should have the necessary information to make a determination of responsibility.

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