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To Contents	Am I required to solicit the Incumbent Contractor?
By mjthomas on Wednesday, May 14, 2003 - 12:38 pm: Scenario: I am a Contracting Officer at GSA. I recently solicited, justified the price as fair and reasonable, and awarded a GSA Task Order for Copier Support that was previously solicited and awarded with another contracting agency. The customer decided he was not going to use the contracting agency and came to us (GSA) for support. We solicited several GSA schedule holders IAW the FAR and our internal regulations, and awarded a task order to another company, other than the incumbent. The incumbent protested the award, because they were not given a chance to submit an offer. I have been in contracting for close to 25 years, and I know source selection is our prerogative, although I know we are subject to scrutiny if we do not solicit the incumbent. My questions are: 1. Where in the FAR does it state we have to solicit the incumbent? 2. Since this our first contract, technically, we do not have an incumbent. Wher can I find clarification on the definition of an incumbent? By dave on Wednesday, May 14, 2003 - 01:03 pm: From CompGen B-262223.2 dated Feb 9, 96: DIGEST Agency's inadvertent failure to solicit incumbent contractor does not warrant sustaining incumbent's subsequent protest where agency otherwise obtained full and open competition. By Stan M on Wednesday, May 14, 2003 - 02:08 pm: My understanding is that if you purposely exclude a known source, you have a defacto debarment without due process, which is improper. I am not saying this is what happened just reading between the lines By Anon2U on Wednesday, May 14, 2003 - 02:27 pm: Unless there are circumstances not revealed to us, they will lose the protest as Dave has pointed out above. You followed GSA procedures for FSS Schedules and that is all that is required. If you did it for a DoD agency then I hope you followed the new DFARS procedures for Services. They apply to anyone making awards for DoD per the Section 803 of the appropriations law. The protester might find a loophole if those were not followed exactly and GAO might want to hear the protest to set a precident on the new regulations. By formerfed on Wednesday, May 14, 2003 - 02:53 pm: mjthomas, You didn't say why the incumbent wasn't solicited. Also why did the customer come to you rather than use their own (previous) contracting office? Was it to somehow avoid soliciting the incumbent? Most of the pertinent case law pertains to using full and open procedures under CICA. Essentially if an agency inadvertently excluded an incumbent yet received good competition, there's no problem. However if the agency intentionally excluded an incumbent and received less than adequate competition and/or paid a higher price than from the incumbent, then the protest is sustained. See Interproperty Investments, Inc, B-281600, which Bob has a link to on the protest page of this site. Notice the decision mentions Professional Ambulance, B-24874 dated Sept 1, 1992 where the protest is sustained. Dave and Anon2U point out GSA Schedule ordering procedures govern how orders are placed. If the procedures are followed, a protest won't be successful. The only thing I might worry about is if there was a concerted effort of the customers’ part to intentionally avoid soliciting the incumbent. Another issue concerns whether the protestor can prove they perform at a satisfactory level and that their price is significantly less than the awardees By dave on Wednesday, May 14, 2003 - 03:05 pm: The only place I find where the FAR discusses soliciting the incumbent is in 13.104 where it discusses soliciting at least three sources and it further states to solicit from two sources not solicited in the previous buy. This implies your third souce would be the incumbent. The only other cite is 14.205-4(b) and that addresses excessively long BML where it states the previous successful bidder is to be solicited. In these days of FedBizOpps, the FAR section on Bidders Mailing Lists seems archaic. If you solicited via FedeBizOpps and the incumbent missed it, well that's his/her tough luck. By mjthomas on Wednesday, May 14, 2003 - 03:05 pm: formerfed, As the contractong officer, I was unaware of any incumbent contractor until after award. The main reason the customer came to us (GSA), I presume, was the timeliness and better rates we could get by using FSS schedule holders with discounts. I would hope it was not an attempt to avoid soliciting the incumbent. The rates, I later found out after the protest was received, were substantially lower than what our customer was paying. There was a slight change in requirements, but nothing major. Anon2, We did follow the 803 rules in the DFARS. Thanks for the input. It was greatly appreciated. By Anon2U on Wednesday, May 14, 2003 - 10:17 pm: A side note for savvy contractors: We are procuring the vast majority of our supplies and services via the GSA FSS now to avoid a lot of the normal documentation and streamline source selection. We no longer have the personnel (either in number or skill) to go full and open except on rare occasions. We constantly remind our incumbents that if they do not have a schedule, they better get one because the odds are that we will be competing their contract via FSS at the end of the option years. Most take the advice but at least one incumbent lost out because he refused to negotiate with GSA. Several more better get a move on or they may miss out as well.

Am I required to solicit the Incumbent Contractor?

By mjthomas on Wednesday, May 14, 2003 - 12:38 pm:

Scenario: I am a Contracting Officer at GSA. I recently solicited, justified the price as fair and reasonable, and awarded a GSA Task Order for Copier Support that was previously solicited and awarded with another contracting agency. The customer decided he was not going to use the contracting agency and came to us (GSA) for support. We solicited several GSA schedule holders IAW the FAR and our internal regulations, and awarded a task order to another company, other than the incumbent. The incumbent protested the award, because they were not given a chance to submit an offer. I have been in contracting for close to 25 years, and I know source selection is our prerogative, although I know we are subject to scrutiny if we do not solicit the incumbent. My questions are: 1. Where in the FAR does it state we have to solicit the incumbent? 2. Since this our first contract, technically, we do not have an incumbent. Wher can I find clarification on the definition of an incumbent?

By dave on Wednesday, May 14, 2003 - 01:03 pm:

From CompGen B-262223.2 dated Feb 9, 96:

DIGEST

Agency's inadvertent failure to solicit incumbent contractor does not
warrant sustaining incumbent's subsequent protest where agency
otherwise obtained full and open competition.

By Stan M on Wednesday, May 14, 2003 - 02:08 pm:

My understanding is that if you purposely exclude a known source, you have a defacto debarment without due process, which is improper. I am not saying this is what happened just reading between the lines

By Anon2U on Wednesday, May 14, 2003 - 02:27 pm:

Unless there are circumstances not revealed to us, they will lose the protest as Dave has pointed out above. You followed GSA procedures for FSS Schedules and that is all that is required.

If you did it for a DoD agency then I hope you followed the new DFARS procedures for Services. They apply to anyone making awards for DoD per the Section 803 of the appropriations law. The protester might find a loophole if those were not followed exactly and GAO might want to hear the protest to set a precident on the new regulations.

By formerfed on Wednesday, May 14, 2003 - 02:53 pm:

mjthomas,

You didn't say why the incumbent wasn't solicited. Also why did the customer come to you rather than use their own (previous) contracting office? Was it to somehow avoid soliciting the incumbent?

Most of the pertinent case law pertains to using full and open procedures under CICA. Essentially if an agency inadvertently excluded an incumbent yet received good competition, there's no problem. However if the agency intentionally excluded an incumbent and received less than adequate competition and/or paid a higher price than from the incumbent, then the protest is sustained. See Interproperty Investments, Inc, B-281600, which Bob has a link to on the protest page of this site. Notice the decision mentions Professional Ambulance, B-24874 dated Sept 1, 1992 where the protest is sustained.

Dave and Anon2U point out GSA Schedule ordering procedures govern how orders are placed. If the procedures are followed, a protest won't be successful. The only thing I might worry about is if there was a concerted effort of the customers’ part to intentionally avoid soliciting the incumbent. Another issue concerns whether the protestor can prove they perform at a satisfactory level and that their price is significantly less than the awardees

By dave on Wednesday, May 14, 2003 - 03:05 pm:

The only place I find where the FAR discusses soliciting the incumbent is in 13.104 where it discusses soliciting at least three sources and it further states to solicit from two sources not solicited in the previous buy. This implies your third souce would be the incumbent.
The only other cite is 14.205-4(b) and that addresses excessively long BML where it states the previous successful bidder is to be solicited. In these days of FedBizOpps, the FAR section on Bidders Mailing Lists seems archaic.
If you solicited via FedeBizOpps and the incumbent missed it, well that's his/her tough luck.

By mjthomas on Wednesday, May 14, 2003 - 03:05 pm:

formerfed,

As the contractong officer, I was unaware of any incumbent contractor until after award. The main reason the customer came to us (GSA), I presume, was the timeliness and better rates we could get by using FSS schedule holders with discounts. I would hope it was not an attempt to avoid soliciting the incumbent. The rates, I later found out after the protest was received, were substantially lower than what our customer was paying. There was a slight change in requirements, but nothing major.

Anon2,

We did follow the 803 rules in the DFARS.

Thanks for the input. It was greatly appreciated.

By Anon2U on Wednesday, May 14, 2003 - 10:17 pm:

A side note for savvy contractors: We are procuring the vast majority of our supplies and services via the GSA FSS now to avoid a lot of the normal documentation and streamline source selection. We no longer have the personnel (either in number or skill) to go full and open except on rare occasions. We constantly remind our incumbents that if they do not have a schedule, they better get one because the odds are that we will be competing their contract via FSS at the end of the option years. Most take the advice but at least one incumbent lost out because he refused to negotiate with GSA. Several more better get a move on or they may miss out as well.