This procurement was conducted pursuant to FAR Subpart 8.4. FAR Subpart 8.4 and FAR Part 15 are different provisions with different purposes. The amount of documentation necessary in FAR Subpart 8.4 procurements does not rise to the level required by FAR Part 15.11. “The very purpose of FAR Part 8 is to provide a more simplified and flexible approach away from the more formal and rigorous procedures for negotiated procurements.” Allied Tech. Grp. Inc. v. United States, 94 Fed Cl. 16, 50 (2010) (internal quotation omitted). “Orders placed against [Federal Supply Schedule] contracts are viewed as involving ‘full and open competition’ without requiring the use of procedures contained in FAR Part 15.” HomeSource, 94 Fed. Cl. at 486 (citing FAR 8.404(a)). The Evaluation Plan uses some language that also appears in FAR Part 15. See AR Tab 10, at 319. However, the use of some of the same words in two procurements does not transform a FAR Subpart 8.4 procurement into a FAR Part 15 procurement. See Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 394 (1999) (“The decisional law does not support plaintiff’s contention that an FSS selection process that is handled more like a negotiated procurement must comply with the requirements of Part 15.”).

Matt Martin Real Estate Management LLC v. United States, 96 Fed. Cl. 106 (2010).

Where, as here, a procurement conducted pursuant to FAR subpart 8.4 provides for award on a “best value” basis, it is the function of the SSA to perform a price/technical tradeoff, that is, to determine whether one quotation’s technical superiority is worth its higher price. Specifically, FAR § 8.405-2(d) requires the agency to evaluate all responses received using the evaluation criteria provided in the solicitation and to consider the level of effort and the mix of labor proposed to perform the task in evaluating the offered prices. While we are mindful that, when an agency places an order under a BPA, limited documentation of the source selection is permissible, the agency must at least provide a sufficient record to show that the source selection was reasonable. FAR § 13.303-5(e); see also FAR § 8.405-2(e) (minimum documentation requirements include documenting the rationale for any tradeoffs when establishing a BPA or placing an order); e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 8 (even for procurements conducted under simplified acquisition procedures, an agency must have a sufficient record to allow for a meaningful review).

Here, as indicated by the contemporaneous documentation set out above, there is no evidence that the agency gave any meaningful consideration to [the protester’s] lower price in making the source selection decision. Rather, the record shows that the agency’s selection decision was solely based on [the awardee’s] higher technical rating. Indeed, the contracting officer explains that the basis for the agency’s selection decision was as follows: “Given [the awardee’s] rating of ‘exceptional,’ with no other bidders having received an equivalent or higher rating, thereby rendering further analysis under the tradeoff approach unnecessary, [the awardee] was selected for award.” Because the agency did not consider price as required by the solicitation and applicable regulations, we sustain [the] protest on this basis.

Niksoft Systems Corp., B-406179, Feb. 29, 2012.

The FSS program, directed and managed by GSA, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. Federal Acquisition Regulation (FAR) § 8.401(a). When an agency conducts a formal competition under the FSS program, we will review the agency’s evaluation of vendor submissions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation.

Brooks Range Contract Services, Inc., B-405327, Oct. 12, 2011.

With respect to the first question, plaintiff contends that the trailers added to [the awardee’s] GSA schedule contract by modification, after the RFQ was issued and after [the awardee] submitted its original quote in response to the RFQ, differed so greatly from the existing trailers on [the awardee’s] GSA schedule contract at the time the RFQ was issued as to render the trailers outside the scope of [the awardee’s] original GSA schedule contract. Plaintiff alleges that the Agency’s procurement violations included awarding the contract to [the awardee] when the procured items were not listed on its GSA schedule contract prior to [the awardee] submitting a quote and the Agency accepting a quote from [deleted] when it did not provide required documentation. In response, defendant asserts that the trailers added to [the awardee’s] GSA schedule contract were merely in-scope modifications of trailers already listed [on the awardee’s] FSS contract. Defendant further contends that contractors may offer quotes for items not listed on their GSA schedule contracts, “so long as the item is on the FSS contract at the time the agency ordered the item,” in which case the award is proper.

In the instant case, [the awardee’s] FSS contract was modified before the award. The items which were the subject of the procurement, however, were not on [the awardee’s] FSS contract at the time [the awardee] responded to the RFQ and the RFQ had closed. In this regard, a Judge of the Court of Federal Claims stated….“To place an order using the GSA FSS procedures, the contracting agency must certify that all items on the order are within the scope of the vendor’s FSS contract.” In [that case], therefore, the focus was on when the order was placed. In Matter of Armed Forces Merchandise Outlet, (Comp. Gen. Oct. 12, 2004) the Government Accountability Office (GAO) stated:

Id. (citing Altos Federal Group Inc., B-294120, 2004 WL 1791349, at *3 (Comp. Gen. July 28, 2004)) (emphasis added). In Matter of Armed Forces Merchandise Outlet, the directive was to not purchase or order a non-FSS item using the FSS mechanism. In The CDM Group, Inc., B-291304.2, 2002 WL 31869253, at *2 (Comp. Gen. Dec. 23, 2002), GAO stated “[a]n agency cannot properly select an FSS vendor for an order of items on the vendor’s schedule and then include in the order items not included in that vendor’s FSS contract….” (emphasis added).

Defendant’s position, to permit modification of an FSS contract up to the time the order is placed by an agency under an FSS, would permit an agency to procure a non-FSS item through the FSS by sending out a solicitation “feeler,” and then evaluate quotes for items that did not exist on GSA schedule contracts, with the hope that a selected contractor could modify its contract to include the items sought, thereby eliminating other non-FSS contractors from the competition. Defendant’s modification approach appears to allow targeted pre-selection of contractors outside the FSS system, which is inconsistent with the FSS system, as well as the general goals of fair and open competition espoused in CICA, at 41 U.S.C. § 253. CICA provides that an agency when involved in procuring property or services “shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this title and the Federal Acquisition Regulation….” If there are no FSS qualified contractors, the agency is required to compete the award. See FAR 8.405-1(c)(1). If, in fact, CICA was violated by the Agency’s actions, then the instruction in 28 U.S.C. § 1491(b) that gives jurisdiction to this court to address “an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,” as well as FAR 8.404(c)(3), “Use of Federal Supply Schedules” (2009), which states: “Orders placed under a Federal Supply Schedule contract… (3) Must… be consistent with the requiring agency’s statutory and regulatory requirements applicable to the acquisition of the supply or service,” would be in play.

In the case before the court, defendant concedes that the medical trailers were not offered through [the awardee’s] FSS contract at the time [the awardee] submitted its quote to the Agency in response to the RFQ. Defendant further acknowledges that submitting a modification request post-quote put [the awardee] in jeopardy of not being able to deliver on its quote, having submitted a quote for items it did not have listed on its FSS, in the event the GSA denied the modification request. The fact that the potential harm never materialized (i.e., the possibility of [the awardee] failing to deliver on the quoted offer) and that [the awardee] obtained the modification before the order was placed, does not excuse the Agency from violating, at a minimum, the spirit of CICA by accepting a quote on the FSS for an item that was not on [the awardee’s] GSA schedule contract at the time the quoted offer was submitted and the RFQ closed.

…

To determine whether an item offered by a contractor is a non-FSS item, “the relevant inquiry is not whether the vendor is willing to provide the services that the agency is seeking, but whether the services or positions offered are actually included on the vendor’s FSS contract, as reasonably interpreted.” See Tarheel Specialties, Inc., B- 298197, 2006 WL 2820577, at *4 (Comp. Gen. July 17, 2006) (citing Am. Sys. Consulting, Inc., B-294644, 2004 WL 2985207, at *5 (Comp. Gen. Dec. 13, 2004)).

Mobile Med. Int’l Corp. v. United States, 95 Fed. Cl. 706 (2010).

As a general matter, FSS procedures provide agencies a simplified process for obtaining commonly used commercial supplies and services, FAR § 8.401(a), and, although streamlined, satisfy the requirement for full and open competition. However, non-FSS products and services may not be purchased using FSS procedures; their purchase requires compliance with otherwise applicable procurement laws and regulations, including those requiring the use of full competitive procedures. Where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order.

Asset Protection & Security Services, LP, B-406474.2, July 17, 2012.

When a concern arises that a vendor is offering services outside the scope of its FSS contract, the relevant inquiry is not whether the vendor is willing to provide the services that the agency is seeking, but whether the services or positions offered are actually included on the vendor’s FSS contract, as reasonably interpreted.

American Security Programs, Inc., B-402069, B-402069.2, Jan. 15, 2010.

We reject the agency’s position that it was proper to issue an order to [the awardee] because the ordered items will be added to its FSS contract prior to the delivery date. This position ignores our decisions, as well as the Court of Federal Claims’s decision…. and, since there is no way to determine with certainty whether a vendor’s FSS contract will include the ordered items in the future, clearly would undermine, if accepted, the requirement that non-FSS items be purchased using normal full and open competition procedures.

Science Applications International Corporation, B-401773, Nov. 10, 2009.

The sole exception to this requirement is for items that do not exceed the micro-purchase threshold of $3,000, since such items properly may be purchased outside the normal competition requirements in any case.

Rapiscan Systems, Inc., B-401773.2, B-401773.3, Mar. 15, 2010.

However, to the extent that the protester is instead arguing that the RFQ failed to advise vendors that only those firms that had all of the required SINs listed on their own, as opposed to their subcontractors’, FSS contracts would be considered for award, and thus that it would have been improper for the agency to distinguish among quotations on that basis, we agree. Contrary to the agency’s argument, an FSS contractor acting as a prime contractor may use a subcontractor to provide services not included within the prime contractor’s FSS contract so long as the services in question are included within the subcontractor’s FSS contract. This is so because the items on the subcontractor’s FSS contract, like the items on the prime contractor’s FSS contract, were the object of competitive procedures prior to their inclusion on the vendor’s schedule contract. What is not permitted is for a schedule contractor acting as a prime contractor to use a subcontractor to offer services not included in either its own or the subcontractor’s FSS contract since this would mean that it was improperly including non-FSS goods or services in an FSS acquisition. (emphasis added).

Altos Federal Group, Inc., B-294120, July 28, 2004.

We will review an agency’s use of a limited source justification under FAR Part 8.4 for reasonableness.

XTec, Inc., B-405505, Nov. 8, 2011.

While the requirements of the Competition in Contracting Act (CICA), 10 U.S.C. sect. 2304(c)(1) (2000), which limits obtaining goods or services noncompetitively unless supported by a written justification, does not apply to orders placed against FSS contracts, Federal Acquisition Regulation (FAR) sect. 8.405-6 provides that sole-source orders from FSS contracts be supported by sole-source justifications that contain much of the same information required to be contained in justifications for sole-source contracts subject to CICA.

Computers Universal, Inc., B-296536, Aug. 18, 2005.

Because GSA administers the FSS program, we solicited GSA’s views on the responsibility determination issue. In its filing, GSA notes that the purpose of the FSS program, as set forth in FAR Part 38, is to provide federal agencies with a simplified process of acquiring commercial supplies and services. In furtherance of this goal, GSA states, it is responsible for awarding indefinite-delivery contracts in accordance with all applicable statutory and regulatory requirements, including compliance with the requirements relating to contractor responsibility (see FAR sect. 38.101(d), (e)). GSA concludes that, because it is tasked with making determinations of responsibility pertaining to the award of FSS contracts, ordering agencies, while not precluded from doing so, are not required to make a responsibility determination prior to placing an FSS order. Letter from GSA to GAO, July 26, 2006, at 1-3. We agree. Responsibility is a contract formation term that refers to the ability of a prospective contractor to perform the contract for which it has submitted an offer; by law, a contracting officer must determine that an offeror is responsible before awarding it a contract. See 41 U.S.C. sect. 253b(c), (d); FAR sect. 9.103(a), (b). The concept of responsibility expressly applies to “prospective contractors”—not “current” or “existing” contractors—a limitation that is repeated throughout the applicable statutes and regulations, and that indicates that the requirement for a responsibility determination applies before award of a contract. See, e.g., 41 U.S.C. sect. 403 (“As used in this Act… the term ‘responsible source’ means a prospective contractor….”); FAR sect. 9.100 (“This subpart prescribes polices, standards, and procedures for determining whether prospective contractors… are responsible”); FAR sect. 9.102(a) (“This subpart applies to all proposed contracts with any prospective contractor….”); and FAR sect. 9.103(c) (“A prospective contractor must affirmatively demonstrate its responsibility….”).

Consistent with this statutory and regulatory framework, once an offeror is determined to be responsible and is awarded a contract, there is no requirement that an agency make additional responsibility determinations during contract performance. Contrary to the protester’s position, the extent of the requirement for a determination of responsibility is not tied to the type of contracting vehicle that the government elects to use for an acquisition; thus, there is no basis to conclude that the requirement for a responsibility determination is broader for orders placed under FSS contracts. In this regard, we note that FAR sect. 8.405 and sect. 8.406 set forth the ordering procedures and ordering activity’s responsibilities, respectively, with regard to FSS contracts; there is no requirement in these provisions to make a responsibility determination. In sum, we conclude that the initial responsibility determination made by GSA in connection with the award of the underlying FSS contract satisfies the requirement for a responsibility determination regarding that vendor and that there is no requirement that an ordering agency perform separate responsibility determinations when placing orders under that contract. In view of our conclusion, ATS’s challenge to HUD’s consideration of PSI’s responsibility here does not give rise to a valid basis of protest since HUD was not required to perform a responsibility determination.

Advanced Technology Systems, Inc., B-296493.6, Oct. 6, 2006.

Like the Court of Federal Claims, we conclude that the proper inquiry is not whether the FAR authorizes the use of IDIQ contracts for a procurement of construction, but whether there is any statutory or regulatory provision that precludes such use. Again, like that court, we are unaware of any such provision, and [the Protester] has not pointed to any. Indeed, it appears that [the Protester] does not challenge that conclusion.

The reason that this is the appropriate inquiry is explained in FAR § 1.102(d), 48 C.F.R. § 1.102(d), which states:

In other words, government officers are authorized, indeed, encouraged, in exercising personal initiative in procurement matters, to assume that “a specific strategy, practice, policy or procedure” that is not “addressed in the FAR nor prohibited by law (statute or case law), Executive order or other regulation” and that “is in the best interests of the Government,” “is a permissible exercise of authority.”

We agree with the Court of Federal Claims that the Corps’ use of IDIQ contracts to effect this procurement of military housing “represents the sort of innovation envisioned by that section and, with its identification of both a contract dollar value and a general scope of work, constitutes a permissible exercise of IDIQ contracting authority.” Tyler Constr. Group, 83 Fed. Cl. at 99.

Tyler Construction Group v. United States, 570 F.3d 1329 (Fed. Cir. 2009).

We are aware of no law, statute, or regulation that prohibits the use of an IDIQ contract for the procurement of construction services, and the various provisions of the FAR offer little insight into whether “construction” is included in or excluded from “supplies or services.” We must therefore conclude that FAR § 1.102(d)—providing procurement officials with the authority to use innovative approaches to satisfy the government’s procurement needs so long as such approaches are not otherwise addressed in the FAR or prohibited by law—governs the instant procurement. We find that the solicitation represents the sort of innovation envisioned by that section and, with its identification of both a contract dollar value and a general scope of work, constitutes a permissible exercise of IDIQ contracting authority.

Tyler Construction Group v. United States, 83 Fed.Cl. 94 (2008).

An agency may use an ID/IQ contract where it cannot predetermine, above a specified minimum, the precise quantity of supplies or services that will be required during the contract period and where it is inadvisable for the government to commit itself for more than a minimum quantity. Because an ID/IQ contract does not specify the precise work that will be provided and is not a requirements contract, a specific guaranteed amount or quantity is required as consideration to bind the parties. To ensure that a contract is binding, the minimum quantity must be more than a nominal amount, but should not exceed the amount the agency is fairly certain to order. There is no “magic number” that the FAR or our decisions set as adequate consideration for a contract; instead, the determination of whether a stated minimum quantity is “nominal” must consider the nature of the acquisition as a whole.

CW Government Travel, Inc., B-295530, March 7, 2005.

The Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat. 3243 (“FASA”), established “a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property.” 41 U.S.C. § 253h(d)(3) (1994). FASA also required that regulations implementing the preference “establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.” Id. Pursuant to FASA, the Federal Acquisition Regulation (“FAR”) was amended to establish a preference scheme for making multiple awards of indefinite-quantity contracts under a single solicitation. Specifically, FAR 16.504(c)(1) provides:

48 C.F.R. § 16.504(c)(1). Also as required by FASA, the FAR lists six criteria for determining when multiple awards should not be made:

…

Each of these criteria plainly requires consideration of the benefits of multiple awards. Obviously, it is impossible to conclude that a single award will provide more favorable terms and conditions, including pricing (16.504(c)(1)(ii)), without first considering the terms and conditions which would result from multiple awards. Likewise, the conclusion that the costs of administering multiple contracts may outweigh the potential benefits (16.504(c)(1)(iii)) plainly cannot be made without considering the potential benefits. Finally, the CO cannot rationally conclude that a single award is more beneficial to the government than multiple awards (16.504(c)(1)(vi)) without considering the benefits of multiple awards. This is especially true since the CO is obligated to give preference to multiple awards to the “maximum extent practicable.” 48 C.F.R. § 16.504(c)(1).

…

As discussed above, the preference for multiple awards is based on the finding that when multiple ID/IQ contracts are awarded under a single solicitation, the contractors compete head-to-head for task orders, producing significant price and technological benefits which generally do not ensue under a single award.

…

Hence, in contrast to direct, immediate, and continuous head-to-head competition for task orders presumed to result from multiple awards, the competition the New York contractor will face under the structure of the MAA program is, at best, deferred and uncertain. Therefore, the government’s conclusion that the structure of the MAA program will provide the same competitive benefits as multiple contract awards is unreasonable and does not excuse the CO’s failure to consider the benefits of multiple awards.

In summary, by failing to consider the benefits of multiple awards, the CO’s analysis violates applicable provisions of FAR 16.504(c)(1). The government’s contention that the single-award structure of the New York MAA will achieve the same benefits as multiple awards without the costs is unreasonable and does not excuse the CO’s violation. Finally, the CO’s conclusion that a single award is in the best interests of the government is also unreasonable, irrespective of the non-compliance with FAR 16.504(c)(1).

WinStar Communications, Inc. v. United States, 41 Fed. Cl. 748 (1998).

Although the FAR establishes a general discretionary “preference” for multiple IDIQ awards, FAR 16.504(c)(1)(ii)(D) permits the award of an IDIQ contract to a single source when the procurement is valued in excess of $103 million and one of a limited number of exceptions is present. CWT argues that no exception to the multiple-award mandate is present. The government, however, asserts that because Concur was the only qualified and capable source, the exception at FAR 16.504(c)(1)(ii)(D)(iii) applies. For the reasons discussed below, the court holds that the government’s award decision was not consistent with FAR 16.504(c)(1)(ii)(D).

…

Under FAR 16.504(c)(1)(i), the contracting officer “must, to the maximum extent practicable, give preference to making multiple awards of indefinite-quantity contracts under a single solicitation for the same or similar supplies or services to two or more sources.” The contracting officer should consider the following when determining the number of contracts to be awarded:

(1) The scope and complexity of the contract requirement.

(2) The expected duration and frequency of task or delivery orders.

(3) The mix of resources a contractor must have to perform expected task or delivery order requirements.

(4) The ability to maintain competition among the awardees throughout the contracts’ period of performance.

FAR 16.504(c)(1)(ii)(A). However:

FAR 16.504(c)(1)(ii)(D). Plaintiff cites to this provision in support of its argument, discussed below, that the government did not determine that CWT was not qualified and capable of performing the work at a reasonable price.

…

On the one hand, the RFP did require the agency to make a best value determination. On the other hand, the FAR nonetheless allowed the agency to award to a single offeror only upon determining that there is a single source that is qualified and capable of performing the work at a reasonable price. Here, the record demonstrates that the agency used a best value determination when it decided to award the contract to a single offeror. That is, the agency selected Concur because it was technically superior and priced lower than CWT. Such determination is inconsistent with FAR 16.504(c)(1)(ii)(D).

CW Government Travel, Inc. v. United States, 110 Fed. Cl. 462 (2013).

Under FAR § 16.504(c)(1)(i), a contracting officer must, to the maximum extent practicable, “give preference to making multiple awards of indefinite quantity contracts under a single solicitation for the same or similar supplies or services to two or more sources.” The FAR also sets out a number of conditions under which the multiple award approach is not to be used, two of which are relevant to the protest here: where the expected cost of administration of multiple contracts outweighs the expected benefits of making multiple awards, or where multiple awards would not be in the best interests of the government. The contracting officer is required to document the basis for the decision to use (or not use) multiple awards, FAR § 16.504(c)(1)(ii)(C), and we will review the contracting officer’s determination for reasonableness… Where we conclude that the rationale advanced by the contracting officer is not sufficient to overcome the preference for multiple awards, we will sustain the protest.

Information Ventures, Inc., B-403321, Sept. 27, 2010.

The Federal Acquisition Streamlining Act of 1994 requires that the implementing regulations—here, the Federal Acquisition Regulation (FAR)—express a preference for awarding multiple task or delivery order contracts for the same or similar services or property, and establish criteria for determining whether multiple contracts would not be in the best interest of the government. 10 U.S.C. § 2304a(d) (2000). Accordingly, the FAR provides that during acquisition planning, the contracting officer must, to the maximum extent practicable, give preference to making multiple awards of indefinite-quantity contracts under a single solicitation for the same or similar supplies or services to two or more sources. FAR § 16.504(c). However, the FAR provision identifies a number of circumstances where, if applicable, the contracting officer cannot use the multiple award approach. The contracting officer is required to document his decision.

One Source Mechanical Services, Inc., Kane Construction,
B-293692, B-293802, June 1, 2004.

Even where a solicitation specifically states an intention to award multiple contracts, it does not impose on the agency a legal obligation to make more than one award. Rather, an agency’s expression of intent merely demonstrates its expectation that it will make multiple awards. Therefore, the mere fact that the RFP here stated that the agency intended to make multiple awards did not require it to make separate awards for the set-aside and unrestricted portions of the requirement.

Hawkeye Glove Manufacturing, Inc., B-299741, Aug. 1, 2004.

To determine whether an RFQ and the delivery order that would follow from the RFQ exceed the scope of an underlying contract, the court adopts the analysis articulated by the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993), a decision that addresses whether a contract modification exceeds the scope of the underlying contract. The Federal Circuit explained that a “modification generally falls within the scope of the original procurement if potential bidders would have expected it to fall within the contract’s changes clause.” Id. at 1205. Therefore, to determine the propriety of a contract modification, a court should examine “whether the contract as modified materially departs from the scope of the original procurement.” Id. Applying this standard in a delivery order protest, the court must determine whether the delivery order proposed or issued by the agency materially departs from the scope of the underlying contract, such that potential offerors in the original procurement would not have anticipated that the agency would issue delivery orders of that nature under the contract.

California Indus. Facilities Res., Inc. v. United States, 104 Fed. Cl. 589 (2012).

The Competition in Contracting Act of 1984 (CICA) requires that agencies specify their needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. When a protester alleges that the issuance of a task or delivery order under a multiple-award contract is beyond the scope of the contract, we analyze the protest in essentially the same manner as those in which the protester argues that a contract modification is outside the scope of the underlying contract. The fundamental issue is whether issuance of the task or delivery order in effect circumvents the general statutory requirement under CICA that agencies use competitive procedures when procuring their requirements.

In determining whether a task or delivery order is outside the scope of the underlying contract, and thus falls within CICA’s competition requirement, our Office examines whether the order is materially different from the original contract, as reasonably interpreted. Evidence of a material difference is found by reviewing the circumstances attending the original procurement; any changes in the type of work, performance period, and costs between the contract as awarded and the order as issued; and whether the original solicitation effectively advised offerors of the potential for the type of orders issued. In other words, the inquiry is whether the order is one which potential offerors would have reasonably anticipated.

Cygnus Corporation, B-406350, B-406350.2, April 11, 2012.

Pursuant to 41 U.S.C. § 4106(f)(1) (2011), our Office has jurisdiction to entertain protests in connection with the issuance or proposed issuance of a task or delivery order only if the order has a value in excess of $10,000,000, or it is alleged that the order increases the scope, period, or maximum value of the contract under which the order is placed.

Qwest Government Services, Inc., B-404845, March 25, 2011.

Our decisions have held that a task or delivery order that precludes competition for future orders for the duration of the contract performance period may constitute a downselection, and that a protest may be filed against the issuance of such an order. Our view is based on the legislative history of FASA, which indicates that the provisions addressing task- and delivery-order contracts were intended to encourage the use of multiple-award, rather than single-award contracts, in order to promote an ongoing competitive environment in which each awardee would be fairly considered for each order issued. In this regard, the Federal Acquisition Regulation (FAR) requires agencies to provide all awardees “fair opportunity to be considered for each order exceeding $3,000 issued under multiple delivery-order contracts or multiple task-order contracts.” FAR § 16.505(b)(1)(i). Where an agency conducts a competition that essentially abandons the multiple-award, fair-consideration scheme envisioned under FASA in favor of selecting a single contractor for future orders under the ID/IQ contract, we will find that there has been a downselection and review a challenge to the resulting award.

Doug Boyd Enterprises, LLC, B-298237.2, Aug. 6, 2007.

Section 13.101(b)(1) of the Federal Acquisition Regulation (FAR) expressly recognizes that either single or multiple awards are permissible in the context of simplified acquisitions, and our Office has consistently held that where, as here, a solicitation does not require a single award, multiple awards may be made. Given that it was within the agency’s discretion to make either a single award or multiple awards, we review for reasonableness the agency’s exercise of that discretion in making a single award to Fisher Scientific.

Although the FAR recognizes that multiple awards may be made under FAR Part 13 procurements, neither the FAR nor case law provides any specific guidance as to when multiple awards are either appropriate or required in these procurements. The FAR does, however, provide guidance regarding single or multiple awards in the context of sealed bidding and negotiated acquisitions. For example, in the context of sealed bidding, the FAR advises that IFBs are to provide for multiple awards where the contracting officer determines that multiple awards “might be made if doing so is economically advantageous to the Government.” FAR § 14.201-6(q). Section 14.201-8(c) of the FAR adds that after the receipt of bids, “[t]he contracting officer shall assume, for the purpose of making multiple awards, that $500 would be the administrative cost to the Government for issuing and administering each contract awarded under a solicitation,” and that “[i] ndividual awards shall be for the items or combinations of items that result in the lowest aggregate cost to the Government, including the assumed administrative costs.” In the context of negotiated acquisitions, the FAR requires that RFPs inform offerors that “the Government reserves the right to make multiple awards if, after considering the additional administrative costs, it is in the Government’s best interest to do so.” FAR § 52.215-1(f)(6); see FAR § 15.209(a) (requiring the inclusion of FAR § 52.215-1). Although neither Part 14 or Part 15 of the FAR is applicable to the simplified acquistion here, we believe the above-referenced provisions of these parts are instructive regarding the reasonableness of the agency’s determination that multiple awards were not in the government’s best interests.

Para Scientific Company, B-299046.2, Feb. 13, 2007.

In fact, it is universally understood—among courts, various boards of contract appeals and noted authorities in the field of procurement law—that a BPA obligates neither party until such time as an individual purchase order is issued by the government and accepted by the contractor. See e.g., Potomac Computers, 94-1 BCA ¶ 26,304 (1993) (Recognizing that vendor could refuse to accept call for services); Julian Freeman, 94-3 BCA ¶ 27,280 (1994) (“Under a BPA, neither party actually commits itself nor assumes any duty toward the other.”); BPAs vs. IDIQs: An Interesting Choice, 24 NASH & CIBINIC REPORT ¶ 26 (In broader discussion of pros and cons of BPAs commentator notes: “Of course, using this technique means that the contractor is not contractually bound but that is of little concern to an agency when there are multiple contractors capable of performing the work.”)

As this Court has recognized, in the context of a failed attempt to invoke the CDA with a BPA, only accepted orders create contractual obligations. Accordingly, to the extent [the protester] contends that a BPA is valid only if it imposes a unilateral obligation to perform on the supplier, we reject this plank of the plaintiff’s argument. There is simply no precedent favoring the view that a BPA is a contract which binds one party and not the other. As Ridge Runner, Modern Systems Technology, Zhengxing, and many other decisions before them have held, there is no mutuality of consideration in such a case. [The protester] has conceded as much.

Crewzers Fire Crew Transp., Inc. v. United States, 98 Fed. Cl. 71 (2011).

Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified acquisitions—used to purchase supplies and services, including construction, research and development, and commercial items, the aggregate amount of which does not exceed $100,000 (FAR §§ 2.101, 13.000, 13.003(a))—are excepted from the general requirement that agencies obtain full and open competition through the use of competitive procedures when conducting procurements. See 41 U.S.C. §§ 253(a)(1)(A), (g)(1), and (g)(4) (2004). Part 13 of the FAR establishes procedures for simplified acquisitions, which are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors. To facilitate these objectives, FASA requires only that agencies obtain competition to the maximum extent practicable. 41 U.S.C. § 427(c); FAR § 13.104. Consistent with the maximum-extent-practicable standard, an agency “must not solicit quotations based on personal preference.” FAR § 13.104(a)(1). Additionally, an agency may solicit from one source only “if the contracting officer determines that the circumstances of the contract action deem only one source is reasonably available (e.g., urgency, exclusive licensing agreements, or industrial mobilization).” FAR § 13.106-1(b)(1).

BPAs are one method of simplified acquisition. FAR § 13.303. Agencies are not required to request proposals or to conduct a competition before establishing BPAs. After a BPA is established, however, otherwise applicable competition requirements still apply to all procurements under the BPA. FAR § 13.303-5(a) (BPA to be used only for purchases that are otherwise authorized by law or regulation); Moreover, the existence of a BPA does not justify purchasing from only one source. FAR § 13.303-5(c). If, for a procurement in excess of $2,500 there is an insufficient number of established BPAs to ensure maximum practicable competition, the contracting officer must solicit quotations from other sources. FAR § 13.303-5(d)(1).

Envirosolve LLC, B-294974.4, June 8, 2005.

Under the simplified acquisition procedures, contracting officers are allowed great discretion in “fashioning suitable evaluation procedures.” 48 C.F.R. § 13.106-2(b)(1)….

…

Finally, the rules also instruct contracting officers to keep documentation to a minimum. 48 C.F.R. § 13.106-3(b)(3). The import of the rules for simplified acquisition procedures is, as the term “simplified” would suggest, to promote efficiency and economy in contracting while avoiding unnecessary burdens for agencies and contractors. 48 C.F.R. § 13.002. The FAR does require, however, that contracting officers, when making a simplified acquisition evaluation and decision, evaluate proposals “on the basis established in the solicitation.” 48 C.F.R. § 13.106-2(a)(2). And contracting officers must support the award decision “if other than price-related factors were considered in selecting the supplier.” 48 C.F.R. § 13.106-3(b)(3)(ii). Thus, when reviewing an agency’s evaluation in a simplified acquisition, we must examine the record to determine whether the agency evaluated the proposal in accordance with the terms of the solicitation and whether the exercise of its discretion was reasonable.

Forestry Surveys & Data v. United States, 44 Fed. Cl. 493 (1999).

When using simplified acquisition procedures, agencies must promote competition “to the maximum extent practicable.” 10 U.S.C. § 2304(g)(3) (2012). In meeting this requirement, agencies must make reasonable efforts, consistent with efficiency and economy, to afford all eligible and interested vendors an opportunity to compete. Agencies have a fundamental obligation to have procedures in place not only to receive quotations, but also to reasonably safeguard quotations received and to give them fair consideration. Id. However, as a practical matter, even with appropriate procedures in place, an agency may lose or misplace a bid or quotation, and the occasional loss of a bid or quotation—even if through the negligence of the agency—generally does not entitle the bidder or vendor to relief. Indeed, we have found an agency’s rejection of a quote to be reasonable where a protester emailed its quote to the agency, but the record showed that the agency never actually received the emailed submission prior to the deadline.

B&S Transport, Inc., B-407589, Dec. 27, 2012.

As noted above, the procurement was conducted under the simplified procedures for evaluation of commercial items. Simplified acquisition procedures are designed, among other things, to reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. FAR § 13.002; 41 U.S.C. § 3305 (Supp. IV 2010). When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate proposals in accordance with the terms of the solicitation.

Our Office reviews allegations of improper agency actions in conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition and with the terms of the solicitation. Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures.

In this regard, FAR § 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. Clarifications are “limited exchanges” between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2). Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors in the competitive range. Ultimately, it is the actions of the parties that determine whether discussions have been held and not the characterization of the communications by the agency. situations where there is a dispute regarding whether communications between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Communications that do not permit an offeror to revise or modify its proposal, but rather request that the offeror confirm what the offeror has already committed to do in its proposal, are clarifications and not discussions.

…

Where improper discussions were held, we will resolve any doubts concerning the prejudicial effect of the agency’s actions in favor of the protester; a reasonable possibility of prejudice is a sufficient basis for sustaining the protest. In other words, once an impropriety in the conduct of discussions is found, it must be clear from the record that the protester was not prejudiced in order to deny the protest.

ERIE Strayer Company, B-406131, Feb. 21, 2012.

Simplified acquisition procedures are designed to, among other things, reduce administrative costs, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. FAR § 13.002. When using simplified acquisition procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation. In reviewing protests of an allegedly improper simplified acquisition evaluation, we examine the record to determine whether the agency met this standard and executed its discretion reasonably. Moreover, even for procurements under simplified acquisition procedures, it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. In this regard, where an agency fails to adequately document its actions, it bears the risk that there may not be adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for the source selection decision. Nevertheless, in reviewing an agency’s procurement actions, we do not limit our review to contemporaneous evidence, but consider, as appropriate, hearing testimony and the parties’ arguments.

Resource Dimensions, LLC, B-404536, Feb. 24, 2011.

In using simplified acquisition procedures, agencies are required to “promote competition to the maximum extent practicable.” 10 U.S.C. § 2304(g)(3) (2006); FAR § 13.104. While this standard generally may be met through the solicitation of at least three sources, see FAR § 13.104(b); an agency may not deliberately fail to solicit a responsible source that has expressed interest in competing without a reasonable basis for questioning the source’s ability to meet the agency’s needs.

We do not think that the agency has demonstrated that the acquisition specialist had a reasonable basis for failing to solicit the protester, a vendor she clearly knew to be interested in competing for orders for the item. The agency cites the protester’s lack of prior performance in furnishing the item as a basis for the acquisition specialist’s decision not to solicit the firm here, yet it appears from the record that the successful vendor likewise had not previously furnished the item; thus, we do not think that this provided a reasonable basis for distinguishing between the two vendors. The agency also cites the fact that the protester’s single purchase order for the item was cancelled after it was determined that, contrary to the representation in its quotation, the protester did not intend to furnish a domestic end item. We fail to see how the protester’s noncompliance with its obligation to furnish a domestic end item under its prior order furnishes a basis for questioning its ability to perform under this solicitation, however. The agency has not suggested that the firm is nonresponsible or otherwise ineligible to receive a contract. Further, the RFQ here is not set aside for small business; thus, FAR § 52.219-6(c), requiring small business offerors to furnish only domestic end items, is inapplicable, and the agency has not indicated any other basis for rejecting all non-domestic end items.

Solutions Lucid Group, LLC, B-400967, April 2, 2009.

[The protester] alleges that the time allowed for the submission of quotations was unreasonable. Contracting agencies are required to provide a reasonable time for all offerors to respond to solicitations, 41 U.S.C. § 416(a)(5) (2000); Federal Acquisition Regulation (FAR) § 13.003(h)(2). The decision as to the appropriate response time lies within the discretion of the contracting officer. [The protester] argues not that the 5 days was unreasonable, but that the time that [the protester] had between when it received the solicitation (the afternoon of August 1) and the time set for submission of quotations (the morning of August 3) was unreasonable. This argument is unpersuasive. The agency was under no obligation to solicit [the protester]. In using simplified acquisition procedures, agencies are required to promote competition to the maximum extent practicable. FAR § 13.104. Where, as here, a simplified acquisition is not expected to exceed $25,000, the contracting officer is required to consider solicitation of at least three sources to promote competition to the maximum extent practicable. FAR § 13.104(b). The agency fulfilled this requirement by issuing the flushing solicitation to three firms. Since all firms, regardless of when they received the solicitation, were required to submit quotations by the solicitation’s specified due date, [the protester] did not have as much time as the other, solicited firms in which to prepare its quotation. However, the time period being judged for its reasonableness is that afforded to the firms that were solicited. As explained above, we find the time set by the agency for the submission of quotations reasonable under the particular facts of this case.

[The protester] also asserts that the agency did not publicly display the solicitation as required by FAR § 5.101(a)(2). For procurements between $10,000 and $25,000, such as the one here, the requirements for public notice of the solicitation appear in FAR§ 5.101(a)(2); that provision requires public display of the solicitation unless one of the enumerated exceptions in FAR § 5.202 applies. While FAR § 5.101(a)(2) is generally applicable to all procurements between $10,000 and $25,000, where, as here, the agency has chosen to use simplified acquisition procedures for a procurement in that price range, the notice requirements are established not by FAR § 5.101, but by FAR § 13.105. That provision states that the notice requirements of FAR § 5.101 (including the public display requirement in FAR § 5.101(a)(2)) apply unless “an exception in [FAR §] 5.202 applies.” FAR § 13.105(a)(2). The language does not limit the available exceptions to those enumerated in FAR § 5.101(a)(2). Accordingly, all the exceptions in FAR § 5.202 are available to an agency using simplified acquisition procedures to conduct a procurement with an anticipated value between $10,000 and $25,000.

Here, the agency relies on the unusual and compelling urgency exception in FAR § 5.202(a)(2). We will object to an agency’s determination that it has a need for property or services of an unusual and compelling urgency only where the determination lacks a reasonable basis. In this regard, an agency’s assertion that there is a critical need which affects military operations carries considerable weight, and the protester’s burden to show unreasonableness is particularly heavy. As explained above (in the analysis of whether the response time to the solicitation was reasonable), there is ample support in the record for the agency’s position that there was an urgent need to procure the work called for under both solicitations here. Given that conclusion, the agency was not obligated to publicly display the solicitation.

Specialty Marine, Inc., B-296988, Oct. 11, 2005.

Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified acquisitions—used to purchase supplies and services, including construction, research and development, and commercial items, the aggregate amount of which does not exceed $100,000 (FAR §§ 2.101, 13.000, 13.003(a))—are excepted from the general requirement that agencies obtain full and open competition through the use of competitive procedures when conducting procurements. See 41 U.S.C. §§ 253(a)(1)(A), (g)(1), and (g)(4) (2000). Part 13 of the FAR establishes procedures for simplified acquisitions, which are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors. To facilitate these objectives, FASA only requires that agencies obtain competition to the maximum extent practicable. 41 U.S.C. § 427(c); FAR § 13.104.

Under the maximum-extent-practicable standard applicable to simplified acquisitions, an agency “may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source is reasonably available (e.g., urgency, exclusive licensing agreements, or industrial mobilization).” FAR § 13.106-1(b) (1). We review protests of the sole source determinations made in these procurements for reasonableness.

In addition, regardless of whether a simplified acquisition is competed or reserved for only one source, the simplified acquisition procedures require synopsis of procurements in excess of $25,000 in accordance with the Small Business Act, 15 U.S.C. § 637(e), and the Office of Federal Procurement Policy Act, 41 U.S.C. § 416 (2000). Exceptions to this synopsis requirement are set forth in the regulations, but none are applicable here (nor has the agency asserted that any are applicable). See FAR §§ 13.105, 5.101(a)(1), 5.202. A synopsis must provide an “accurate description” of the property or services to be purchased and must be sufficient to allow a prospective contractor to make an informed business judgment as to whether to request a copy of the solicitation.

Finally, after synopsizing a procurement, agencies must provide potential offerors a reasonable opportunity to respond. 41 U.S.C. § 426(c); FAR §§ 5.203(b), 13.003(h)(2). What constitutes a reasonable opportunity to respond will depend on “the circumstances of the particular acquisition, such as complexity, commerciality, availability, and urgency.” FAR § 5.203(b). In short, the fundamental purpose of these notices, including the circumstance where an agency contemplates a sole source award, is to enhance the possibility of competition.

Information Ventures, Inc., B-293541, April 9, 2004.

When agencies use simplified acquisition procedures, as the Forest Service did here, they are not required to meet the standard of full and open competition; they are, however, required to obtain competition to the maximum extent practicable. 41 U.S.C. § 427(c) (2000). Accordingly, if the Forest Service viewed [the protester’s] submission as an unsolicited quotation, that fact alone provided no basis to decline to consider it. While we recognize that there may be circumstances where it would not be reasonable to require an agency to consider an unsolicited quotation, we see no basis for reaching that conclusion here.

Alternatively, the agency may have viewed [the protester’s] quotation as late and rejected it on that basis. That basis, as well, is, in our view, legally unsupported. We have long held that the requirement to obtain competition to the maximum extent practicable, whether in the context of simplified acquisition procedures or the predecessor small purchase procedures, means that language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision—which was not present here—expressly providing that quotations must be received by that date to be considered. Instead, agencies should consider any quotations received prior to source selection if no substantial activity has transpired in evaluating quotations and other vendors would not be prejudiced.

Payne Construction, B-291629, Feb. 4, 2003.

[The protester’s] objection to the agency’s decision to accept [the awardee’s] post-closing modification of its quote is without merit. The protester takes the position that, since this RFQ contained a late quotation provision and substantial evaluation had taken place, [the awardee’s] revised quote, which actually modified its offered product, was a late quotation that should not have been accepted. While the agency’s acceptance of late submissions was inconsistent with the late quotation clause that was included in the solicitation, all of the vendors, including the protester, benefited similarly from the agency’s flexibility in this regard. As outlined above, the protester submitted the descriptive data that demonstrated the acceptability of its product after the date set for receipt of quotations. Thus, the protester was afforded an opportunity to make its otherwise noncompliant quote technically acceptable through the late submission of technical material, in derogation of the late quotation clause in the solicitation. Since it had already accepted the late submission of technical information by the protester, we find unobjectionable, in the context of the use of simplified acquisition procedures, the agency’s attempt to enhance competition through the acceptance of additional technical information and revisions to permit the other vendors to establish compliance with the specifications. Simplified acquisition procedures emphasize efficiency rather than formal procedure and, when using them, agencies have considerable discretion in their approach, as long as it promotes competition to the maximum extent practicable. FAR sect. 13.106-2(b)(2). Here, the vendors benefited similarly from the agency’s willingness to accept late submissions, hence the protester was not prejudiced by the agency’s acceptance of late technical submissions.

Williams-Trane Company, Inc., B-283522, Nov. 22, 1999.

In reviewing DLA’s obligations in this situation, we look first to Part 13 of the FAR, which establishes the procedures for simplified acquisitions. These simplified procedures are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors, where, in cases like these, the value of the acquisition is less than $100,000. See FAR § 2.101. In simplified acquisitions, agencies are only required to obtain competition to the “maximum extent practicable.” 10 U.S.C. § 2304(g)(3); FAR § 13.104. In a simplified acquisition, an agency can limit a solicitation to a brand-name item where the “contracting officer determines 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). In such cases, we review protests of sole-source determinations—and, as here, the decision to limit the procurement to a brand-name—for reasonableness.

…

We see no basis for [the agency’s] approach of using simplified acquisition procedures where its estimated requirement for these filters cannot reasonably be expected to fall within the applicable threshold ($100,000) for a simplified acquisition of this nature. Although [the agency] responds that the use of simplified acquisition procedures is appropriate here because it limits the purchase under each of these [individual contracts] to $100,000, regardless of the value of the estimated quantity, we think DLA is, in essence, splitting these orders to allow the use of simplified acquisition procedures, which is expressly barred by FAR §13.003(c)(2). Under this provision, agencies are advised: Do not break down requirements aggregating more than the simplified acquisition threshold… into several purchases that are less than the applicable threshold merely to— (i) Permit use of simplified acquisition procedures. FAR § 13.003(c)(2); see also 10 U.S.C. § 2304(g)(2) (“A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures.”)

Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009.

First, as a general matter, while the FAR does not expressly recognize reverse auctions as a permissible procurement vehicle for goods and services, neither does it expressly prohibit the government from using auctions, and FAR § 1.102(d) provides that a procurement procedure is permissible where not specifically prohibited. At the same time, [the agency’s] use of reverse auctions is fully consistent with FAR part 13 and promotes the underlying purpose of that regulation. In this regard, FAR part 13, which is generally aimed at streamlining the procurement process, advises agencies to use simplified acquisition procedures where, as here, the value of the acquisition is below the simplified acquisition threshold, FAR § 13.002; to make simplified purchases in the most suitable, efficient, and economical manner based on the circumstances of the acquisition, FAR § 13.003(g); and to use innovative procedures to the maximum extent practicable. FAR § 13.003(h). In addition, agencies are encouraged to use electronic purchasing techniques, FAR § 13.003(d), and to maximize the use of electronic commerce when practicable and cost effective. FAR § 3.003(f). We thus find no basis to object generally to the agency’s utilizing reverse auction procurement procedures.

Regarding [the protester’s] specific objection—that the reverse auction here is impermissible because it will result in disclosure of its price—we find no basis for objecting to the agency’s approach. [The protester] is correct that the Act prohibits government officials and those acting on behalf of the government from knowingly disclosing contractor quotation or proposal information before award. 41 U.S.C. § 423(a). However, that prohibition is not absolute. Rather, the Act specifically provides that it does not “restrict the disclosure of information to, or its receipt by, any person or class of persons authorized in accordance with applicable agency regulations or procedures, to receive the information,” 41 U.S.C. § 423(h)(1), and does not “restrict a contractor from disclosing its own quote or proposal information or the recipient from receiving that information.” 41 U.S.C. § 423(h)(2). We think the price disclosure under [the agency’s] reverse auction procedures falls within the exception language, although we are aware of no judicial or other authoritative interpretation of these provisions. First, under the procedure the agency has established, vendors actually will disclose their own prices—albeit, as a condition of competing—by entering the prices on the auction website; as noted, a vendor’s disclosing its own price is not prohibited under the Act. Moreover, even if the price disclosure were considered to be by government officials due to its nature as a precondition to a vendor’s competing, the disclosure is pursuant, and integral, to the reverse auction procurement procedures established by the agency; we thus would view the disclosure as being to persons authorized by agency procedures to receive the information, consistent with the exception language.

MTB Group, Inc., B-295463, Feb. 23, 2005.

Under Federal Acquisition Regulation (FAR) sect. 13.003(b)(1), an acquisition with an estimated value exceeding $2,500 and not exceeding $100,000 is reserved exclusively for small business concerns and shall be set aside in accordance with Subpart 19.5. FAR sect. 19.502-2(a) provides, in relevant part, that a set aside of such an acquisition is automatic: unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.

As a general rule, the decision as to whether to set aside a particular procurement is within the discretion of the contracting agency. We will not question a set-aside decision unless an abuse of discretion is clearly shown. Here, there is no basis to conclude that the agency abused its discretion.

It is uncontested that the government estimate for the RFQ at issue falls within the $2,500 to $100,000 simplified acquisition range within which the FAR requires that the procurement automatically be set aside for small business concerns absent an appropriate contrary determination. The contracting officer determined, based on past procurement history and a search of the Small Business Administration’s (SBA) listing of small business concerns for the SIC code, that there was a reasonable expectation of receiving offers from at least two small business concerns.

Nordic Sensor Technologies, Inc., B-282942, July 23, 2009.

The simplified acquisition procedures require notice of procurements in excess of $25,000 in accordance with the Small Business Act, 15 U.S.C. § 637(e), and the Office of Federal Procurement Policy Act, 41 U.S.C. § 416 (2000). A notice must provide an “accurate description” of the property or services to be purchased and must be sufficient to allow a prospective contractor to make an informed business judgment as to whether to request a copy of the solicitation. 15 U.S.C. § 637(f) (2000). Additionally, “[a] publication of a notice of solicitation by electronic means meets the requirements for accessibility… if the notice is electronically accessible in a form that allows convenient and universal user access” through the GPE. 41 U.S.C. § 416 (a)(7) (2000).

…

Nevertheless, under the circumstances here, we do not agree with the protester that the agency’s posting of its requirements on only the Sierra Cascade Province’s FedBizOpps website failed to meet the statutory requirement that the notice be “electronically accessible in a form that allows convenient and universal user access.” See 41 U.S.C. § 416 (a)(7) (2000). We have long held that prospective vendors have an affirmative duty to make every reasonable effort to obtain solicitation materials.

Jess Bruner Fire Suppression, B-296533, Aug. 19, 2005.

A synopsis must provide an “accurate description” of the property or services to be purchased and must be sufficient to allow a prospective contractor to make an informed business judgment as to whether to request a copy of the solicitation. 15 U.S.C. § 637(f); FAR § 5.207(c). In addition, a synopsis must provide prospective alternative sources a meaningful opportunity to demonstrate their ability to provide what the agency seeks to purchase. In short, the fundamental purpose of these notices, including in the circumstance where an agency contemplates a sole-source award, is to enhance competition.

Information Ventures, Inc., B-293518, B-293518.2, March 29, 2004.

Under the terms of FAR Part 13 applicable to this solicitation, the contracting officer was not authorized to use simplified acquisition procedures to acquire supplies and services when the anticipated award exceeded $5 million. We are unpersuaded that the agency had a reasonable expectation that, “due to the introduction of competition,” the value of this acquisition would decrease below $5 million. Nothing in the record indicates that the agency conducted any market survey or Internet product search to support its view that the required items could be purchased at a price below the $5 million threshold. To the contrary, the only documented research performed by the agency, conducted in connection with the planned sole-source award to [the awardee], indicated that the procurement value was [DELETED]. In short, the record shows that the agency’s estimated value of this acquisition was in excess of $5 million, yet the agency proceeded with this procurement on the basis of authority that had application only to acquisitions below $5 million.

Further, the record indicates that the agency’s violation of the applicable FAR Part 13 provisions prejudiced [the protester]. [The protester] maintains that, had the agency amended the solicitation to place vendors on notice of its intent to proceed pursuant to the $5.5 million threshold, [the protester] would have added additional enhanced features to its product, just as [the awardee] did in its quotation that exceeded the $5 million threshold, and that [the protester’s] enhancements would have led the agency to conclude that [the protester’s] quotation reflected the best value to the government. In this context, [the protester] states that it considered the $5 million threshold in FAR Part 13 to constitute a ceiling on its quotation. We view [the protester’s] understanding in this regard to be reasonable.

Global Communications Solutions, Inc., B-299044, B-299044.2, Jan. 29, 2007.