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By
Anonymous on Thursday, August 22,
2002 - 03:39 pm:
I looked through FAR 15.5 and 36.6 for information
concerning releasing the names of A-E firms evaluated under A-E
procedures. It seems to indicate that only name that can be
released is the name of the firm (or firms) awarded a contract.
Can the names of unsuccessful firms be released after award?
By
Anonymous on Thursday, August 22,
2002 - 09:35 pm:
Identifyimg the competitors after award for an A-E
contract is no different than in a Part 15 negotiated
acquisition.
By
Anonymous on Thursday, August 22,
2002 - 09:44 pm:
I'm not that familiar with Part 15, but it seems to
say that you can only release the name of the successful
offeror. Is that correct?
By
Anonymous on Thursday, August 22,
2002 - 09:56 pm:
Generally, in the award notification, that is all we
do. Why do you want to describe who was evaluated?
By
Jerry Zaffos on Friday, August 23,
2002 - 09:12 am:
Refer to FAR 36.607 regarding release of information
on firm selection.
By
Anonymous on Friday, August 23,
2002 - 11:06 am:
Maybe my question should be...when, if ever, can you
release the names of A-E firms who have submitted a SF-255's (or
offers from offerors in general) in response to a solicitation?
Everything I read in the FAR (36.607 and 15.503) seems to
indicate you can only release the name of the successful offeror
(or firm). At what time can release the names of firms
submitting 255's (or offerors submitting offers)?
I ask due to a request from a SDB A-E firm who is looking for
subcontracting opportunities.
By
Vern Edwards on Friday, August 23,
2002 - 11:23 am:
Anonymous:
I do not know of any rule in FAR or in case law that either
requires or prohibits the disclosure of the names of the firms
that submited SF-255s in response to a solicitation.
In the absence of agency-specific guidance, do what you think
best. Let me put it this way -- Why not release the names?
By
Eric Ottinger on Friday, August 23,
2002 - 11:33 am:
Anon
I usually release the solictitation mailing list and the list of
attendees for the bidders conference. This is specifically for
the purpose of assisting firms who want to team up.
As for unsuccessful offerors, the Comp. Gen. does not reveal
this information in protest decisions. That should be a pretty
good indication of the correct approach to take.
Eric
By
Kennedy How on Friday, August 23,
2002 - 12:12 pm:
Anon,
Are you saying that the SDB A-E contractor, the winner, is
looking to subcontract with one of the losers? That is what it
sounds like to me....
Kennedy
By
Vern Edwards on Friday, August 23,
2002 - 12:21 pm:
The fact that the Comp. Gen. doesn't disclose the
names of unsuccessful offerors in a protest decision in which
those names are irrelevant has no bearing on the question of
whether or not Anonymous should give a small business the names
of firms that unsuccessfully sought a contract so that it can
seek work from them. The GAO does what it does for its own
reasons. I do not know of any regulation prohibiting such
disclosure.
One simple solution: Anonymous can call the firms and ask if
it's okay to give their names to the small business.
By
Eric Ottinger on Friday, August 23,
2002 - 12:36 pm:
Jerry,
Thanks for providing the correct cite in the FAR.
FAR 36.607 Release of information on firm selection.
(a) "After final selection has taken place, the contracting
officer may release
information identifying only the architect-engineer firm with
which a contract
will be negotiated for certain work. ..."
Eric
By
Vern Edwards on Friday, August 23,
2002 - 01:28 pm:
The objective of FAR § 36.607(a) is to maintain
confidentiality about the contract negotiations that will take
place during the period between contractor selection and
contract award. It should not be interpreted as prohibiting the
release of the names of those firms who unsuccessfully sought
the contract.
Requests for marketing information from small businesses looking
for partners for other A-E jobs is common. They want to know who
is going after government work. Don't make a federal case out of
it. If you're worried about it, call the companies in question,
tell them who wants their names and why, and ask them if it's
okay to provide their names.
Criminy.
By
Eric Ottinger on Friday, August 23,
2002 - 01:41 pm:
Vern,
We release only the name of the firm with which we are
negotiating for the purpose of maintaining the confidentiality
of contract negotiations.
You've got me Vern. Please clarify.
Eric
By
Jerry Zaffos on Friday, August 23,
2002 - 01:54 pm:
FAR 36.607 also says that, after award, the CO can
release information per FAR 5.401, which says that maximum
information should be released unless the information falls into
one of the criteria listed.
I don't know what the big deal is about releasing the names of
unsuccessful offerors since their names would be released if
they were successful.
By
Eric Ottinger on Friday, August 23,
2002 - 02:17 pm:
FAR 5.303 Announcement of contract awards.
(b) Local announcement. Agencies may also release information on
contract awards to the local press or other media. When local
announcements are made for contract awards in excess of the
simplified acquisition threshold, they shall include--
(1) "For awards after sealed bidding, a statement that the
contract was awarded after competition by sealed bidding, the
number of offers solicited and received, and the basis for
selection (e.g., the lowest responsible bidder); or"
(2) "For awards after negotiation, the information prescribed by
15.503(b), and after competitive negotiation (either price or
design competition), a statement to this effect, and in general
terms the basis for selection."
FAR 15.503 Notifications to unsuccessful offerors.
(b) Postaward notices. (1) "Within 3 days after the date of
contract award, the contracting officer shall provide written
notification to each offeror whose proposal was in the
competitive range but was not selected for award
(10 U.S.C. 2305(b)(5) and 41 U.S.C. 253b(c)) or had not been
previously notified under paragraph (a) of this section. The
notice shall include--
(i) The number of offerors solicited;
(ii) The number of proposals received;
(iii) The name and address of each offeror receiving an award;
..."
Eric
By
Vern Edwards on Friday, August 23,
2002 - 02:17 pm:
Eric:
Okay, I'll clarify: Tell people who you selected, but don't tell
them anything about the contents of that firm's SF 254 or 255,
the rationale for the selection, or, if there was a design
competition [see FAR § 36.602-1(b)], the features of the
selectee's design concept.
Take a look at the Corps of Engineers FAR supp. (the EFARS); the
Corps not only reveals the name of the selected firm, but it
tells each firm it's standing after the selection process:
"36.607 Release of information on firm selection.
(a) The selection board chairperson shall notify, in writing or
electronically, all firms of their selection status within 10
days after approval of the selection. Notifications shall not be
made after a preselection board. The notification shall indicate
to the firm that it is: (i) The highest rated, (ii) Among the
most highly qualified firms but not the highest rated, or (iii)
Not among the most highly qualified firms. The notification
shall also inform each firm that it may request a debriefing in
accordance with paragraph (b) below. Within 10 days after
contract award, all remaining most highly qualified firms shall
be so notified."
Clearly the Corps, who is second to none in the conduct of A-E
selections, doesn't read FAR § 36.607(a) literally. The A-E
statute, 40 U.S.C. 541-544, is silent on notifications.
A-E selection is like the old DOD and NASA "four-step" source
selection process. Selection is not the same as contract award;
there must be negotiations first, and you should be careful what
you disclose publicly until those negotiations have been
completed. The names of the unsuccessful firms do not affect
negotiations.
Moreover, Anonymous asked if he could release the names "after
award." The last sentence in FAR § 36.607(a) says: "When an
award has been made, the contracting officer may release award
information (see 5.401)." FAR § 5.401(b) says, in part:
"Contracting officers may make available maximum
information to the public...." Italics added. None of the four
stated exceptions to that policy involve the names of the
unsuccessful firms.
If I announced a selection IAW FAR § 36.607(a) and a small
business called to ask the names of the other firms who applied
for the contract, I would release the names without a second
thought, unless my agency-specific regulation said not to do so.
I wouldn't ask a government lawyer first and I wouldn't tell the
small business to wait for a debriefing.
That's what I would do. You do what you would do.
By
Vern Edwards on Friday, August 23,
2002 - 02:29 pm:
Eric:
I don't know why you quoted what you just did, because it only
describes what must be released.
Take a look at the EFARS § 36.607(a). The Corps of Engineers
releases not only the name of the selectee, but tells each
offeror its standing before the award of the contract.
The Corps clearly doesn't read FAR the same way you do and I'm
pretty sure they know what they're doing.
The objective of FAR § 36.607(a) is to prevent the disclosure of
information that might bear on upcoming negotiations. I wouldn't
hesitate to release the names of the unsuccessful firms after
award, and I wouldn't ask a lawyer first. I would release the
names before award. I did it when I was a contracting officer
and I would do it now.
That's what I would do. You do what you would do.
By
Eric Ottinger on Friday, August 23,
2002 - 02:48 pm:
Vern,
Common sense would suggest that if the FAR intended that we
should release the identity of the unsuccessful offerors it
would say so.
Actually, the FAR says that we should release the number of
unsuccessful offerors.
You can do what you want. Working 1102's should talk to their
supervisors and their lawyers before they embarrass themselves.
Eric
By
K.C. on Friday, August 23, 2002 -
03:54 pm:
In re. to post at 2:48p on Friday "Common sense would
suggest that if the FAR intended ... it would say so."
Common sense, as well as documented policy, tells me that if the
FAR (and other policy) doesn't say that I cannot ... I can!
Specifically, see FAR 1.102 (d), which provides that "...In
exercising initiative, Government members of the Acquisition
Team may assume if a specific strategy, practice, policy or
procedure is in the best interests of the Government and is not
addressed in the FAR, nor prohibited by law (statute or case
law), Executive order or other regulation, that the strategy,
practice, policy or procedure is a permissible exercise of
authority."
The original poster notes that the small business would like to
increase its business base. Is affording that opportunity to a
small business inconsistent with the job of "working" 1102s? Is
affording maximum opportunities to small businesses a stated
goal of Federal acquisition, and therefore by definition in the
interest of the Government?
There are a couple of common sense ways that "working 1102s" can
accommodate this request -- 1) Ask the unsuccessful offerors if
they would provide a POC for the small business to contact, 2)
Alternatively, provide the small business POC information to the
unsuccessful offerors and allow them to release information
If working 1102s have to play "Mother, may I" with their
supervisors and lawyers on simple issues, seems to me that they
could become outsourced 1102s.
By
Eric Ottinger on Friday, August 23,
2002 - 04:38 pm:
K.C.
Neverless-- I would be curious to know what your supervisor and
your lawyer think. Let me know.
Eric
By
Vern Edwards on Friday, August 23,
2002 - 06:19 pm:
If common sense was going to suggest something, it
would say so.
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