A reader raised the following issue: Government agencies are required to announce contracting opportunities in the Commerce Business Daily and the notices are not uniformly written. What is required in a CBD synopsis? How important are these announcements? Under Federal Acquisition Regulation 5.101
A reader raised the following issue: Government agencies are required to announce contracting opportunities in the Commerce Business Daily and the notices are not uniformly written. What is required in a CBD synopsis? How important are these announcements?
Under Federal Acquisition Regulation 5.101 contracting officers are required to synopsize in the CBD every action for contracts worth more than $25 000 including any contract modification for additional supplies or services outside the scope of an existing contract.
There are very few exceptions to this requirement. The primary exceptions are listed in FAR 5.202. The General Accounting Office has ruled that the notice requirements may not be strictly applicable to a reprocurement following a termination for default of another contractor.
One of the most important exceptions to the synopsis requirement involves purchases through the General Services Administration multiple-award schedule program. Historically GSA required agencies to synopsize in the CBD proposed MAS purchases that were valued more than $50 000. But GSA has eliminated the requirement and many commentators believe the policy change may be legally questionable.
The requirement to announce proposed contracting actions takes on even more significance when a procurement is conducted using procedures other than a full and open competition. In such cases the Competition in Contracting Act of 1994 prohibits the agency from making a contract award unless (1) an appropriate justification is approved by the designated agency official and (2) notice of the intended contracting action has been published in the CBD and all responses to that notice have been considered by the agency. The only exceptions to this requirement are cases in which the urgency of the requirement prevents notice and those in which the notice requirement is formally waived by the agency head.
A failure to provide the required notice can render the contracting action invalid. But before a company can contest an agency's decision to conduct a procurement on a sole-source basis it must respond to any CBD announcement permitting other potential sources to submit expressions of interest. In most cases a failure to follow this rule will preclude the possibility of pursuing a bid protest at GAO.
Each synopsis in the CBD must include specific information about the purchase including the contracting officer's address the solicitation number the proposal due date and a description of the goods or services to be acquired. The synopsis also must be classified under a particular code which will determine where in the CBD the notice will be published.
In Price Waterhouse [B-239525 Aug. 31 1990 90-2 CPD k 192] GAO determined that a contracting agency had acted reasonably in classifying a procurement of accounting-related services as miscellaneous services even though other classifications arguably may have applied.
But in Frank Thatcher Associates Inc. [67 Comp. Gen. 77 87-2 CPD k 480 (1987)] GAO held that a procuring agency's failure to properly classify an advertisement in the CBD had not effectively notified the firms most likely to respond to the procurement and therefore violated the CICA requirements to obtain full and open competition.
GAO has ruled that cancellation and resolicitation of the procurement is proper if an agency misclassified an advertisement in the CBD. However a protest alleging that a CBD notice was misclassified may be considered untimely if not filed within 10 calendar days after the protester is notified of the date on which the CBD notice appeared.
A CBD notice is not the equivalent of a formal solicitation and does not "lock" an agency into the advertised provisions. If there are inconsistencies between the CBD synopsis and the solicitation it is the solicitation alone that will be examined to determine the government's minimum needs.
Vendors must carefully obtain the actual solicitations for procurements in which they are interested and not rely too heavily on the CBD alone.
-- Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn Washington D.C.
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