“Fair Opportunity” Under ProTech Fair opportunity is a requirement that U.S. government agencies purchasing goods or services under a multi-award contract give every company that holds that contract an equal opportunity to respond to a request for proposal (RFP). The fair opportunity process described in the Federal Acquisition Regulation (FAR) 16.505(b) applies to the ProTech contract. Decisions made during the Acquisition Planning phase will determine how the fair opportunity evaluation/selection process proceeds. Note: This guidance and advice for ordering COs does not supersede any requirements of the FAR or any department or agency policies. It is the responsibility of the ordering CO to ensure complete adherence to the FAR and any additional internal procedures.

WHAT IS PROTECH? (Professional & Technical Services) Professional and Technical (ProTech) services is a suite of contracting vehicles organized into five Domains: Oceans Fisheries Satellite Weather Enterprise Operations ProTech is a suite of contracting vehicles that consists of Indefinite Delivery, Indefinite Quantity (IDIQ) multiple award contracts, multiple award and single award Blanket Purchase Agreements (BPAs), and other contract types organized into five Domains: Satellite, Fisheries, Oceans, Weather, and Enterprise Operations. These Domains provide an industrial base of professional, scientific, and technical resources in support of the National Oceanic and Atmospheric Administration (NOAA) to include its Line and Staff Offices. The contracts may also be used by other Bureaus within the U.S. Department of Commerce (DOC), where applicable. The ceiling dollar amount for all orders under all ProTech Domains is $3,000,000,000. The Satellite, Oceans, Fisheries, and Weather Domains each have its own solicitation and multiple award IDIQ contracts.  The Enterprise Operations Domain requirements will be met by single and multiple award BPAs and other contracting vehicles. The overall objectives of the ProTech program are to: Obtain high-quality professional and technical services Develop an industrial base of partners Develop and maintain performance-based contracts Contribute to the NOAA mission

COMPETITION The standard for competition in task order contracts is “Fair Opportunity.” FAR Part 16 requires that all contractors be afforded a “Fair Opportunity” for consideration for award of task/delivery orders. Congress provided for competition in the use of task order and delivery order contracts in section 804 of the National Defense Authorization Act for FY 2000.

ORDERS UNDER MULTIPLE AWARD CONTRACTS FAR 16.505 (b)(1)(i) states: “The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding $3,500 issued under multiple delivery-order contracts or multiple task-order contracts, except ….” The fair opportunity process described in the Federal Acquisition Regulation (FAR) 16.505(b) applies to the ProTech contract.

PROTECH GENERAL GUIDANCE The process should be planned, fair and consistent The total cost should be considered over the full life of the delivery or task order Full and complete documentation is vitally important and must be able to withstand the scrutiny of an audit Preference of a specific vendor cannot be the basis of an award decision You must provide a fair opportunity to all ProTech awardees within the appropriate domain, unless an exception to fair opportunity is allowed. You must exercise sound judgment consistent with the business and mission requirements of the client, when considering a delivery or task order award. The fair opportunity process should be straightforward, simple, and reflective of the nature of the product, service, or solution being procured. When requesting proposals from the awardees, you should indicate the criteria you are using in the fair opportunity determination. Note that price or cost must be considered under each order as one of the factors in the selection decision. If you have sufficient information available on-hand to ensure that each awardee is provided a fair opportunity to be considered for an order, then you do not need to distribute a Delivery/Task Order Request before issuing the order. This is not generally recommended under ProTech, however, because technical complexities can make direct comparisons using on-hand information difficult. Some awards may be based on low price while others may be based on best value. In a request for quotes, you should tell vendors in advance what the evaluation criteria will be for award. If you plan to use weighted factors, you can list them in descending order of value in lieu of showing percentages. Preference of a specific vendor cannot be the basis of an award decision. Award must be based upon sound technical considerations. If the client cannot articulate, or you cannot determine legitimate requirements, then an order cannot be placed under the ProTech contracts.

PROTECH TRADITIONAL FAIR OPPORTUNITY PROCESS Request for Traditional Technical and Cost/Price Proposal Evaluations are conducted Exchanges (as necessary) Revised proposals (as necessary) TO is awarded All prime contract holders, within the designated Domain, will be provided the opportunity to submit full technical and cost proposals The following steps are to be followed for the traditional ordering process: A SOO/SOW/PWS is sent with a “Request for Traditional Technical and Cost/Price Proposal” to all contract holders within the designated Domain or those meeting the size standard is a set-aside is utilized. The request should typically place a limit of no more than 15 pages on the technical proposal, subject to adjustment at the discretion of the TO CO based on the size, scope and complexity of the TO. The request may also include an oral presentation requirement if it is determined to be beneficial to the evaluation. A complete cost/price proposal must be submitted, normally with no page restrictions. The amount of time allowed for the traditional response is typically 10 working days, which may be adjusted based on the scope/complexity of the requirement and the needs of the customer. Technical and cost/price evaluations are conducted by the Government evaluation teams. Exchanges take place (if needed). If exchanges take place and revised proposals are submitted, evaluations are conducted by the Government evaluation team(s) as needed. A TO is awarded to the successful offeror.

IF FAIR OPPORTUNITY IS NOT PROVIDED The Task Order CO (TO CO) shall: Prepare a written justification (If over $150K) Publish notice and justification (If over $150K) FAR 16.505(b)(2)(ii) ... (B) Orders exceeding the simplified acquisition threshold. As a minimum, each justification shall include the following information and be approved in accordance with paragraph (b)(2)(ii)(C) of this section: (1) Identification of the agency and the contracting activity, and specific identification of the document as a “Justification for an Exception to Fair Opportunity.” (2) Nature and/or description of the action being approved. (3) A description of the supplies or services required to meet the agency’s needs (including the estimated value). (4) Identification of the exception to fair opportunity (see 16.505(b)(2)) and the supporting rationale, including a demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the exception cited. If the contracting officer uses the logical follow-on exception, the rationale shall describe why the relationship between the initial order and the follow-on is logical (e.g., in terms of scope, period of performance, or value). (5) A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable. (6) Any other facts supporting the justification. (7) A statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made. (8) The contracting officer’s certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief. (9) Evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or requirements or other rationale for an exception to fair opportunity) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel. (10) A written determination by the approving official that one of the circumstances in (b)(2)(i)(A) through (E) of this section applies to the order. … (D) Posting. (1) Except as provided in paragraph (b)(2)(ii)(D)(5) of this section, within 14 days after placing an order exceeding the simplified acquisition threshold that does not provide for fair opportunity in accordance with 16.505(b), the contract officer shall— (i) Publish a notice in accordance with 5.301; and (ii) Make publicly available the justification required at (b)(2)(ii)(B) of this section. (2) The justification shall be made publicly available— At the GPE www.fedbizopps.gov; FAR 16.505(b) (8) Task-order and delivery-order ombudsman. The head of the agency shall designate a task-order and delivery-order ombudsman. The ombudsman must review complaints from contractors and ensure they are afforded a fair opportunity to be considered, consistent with the procedures in the contract. The ombudsman must be a senior agency official who is independent of the contracting officer and may be the agency’s advocate for competition. Best practice: Forward a copy of all orders which do not provide for fair opportunity to the ProTech Ombudsman.

SMALL BUSINESS SET-ASIDE REVIEW (DOC FORM CD-570) The TO CO shall: Examine the capabilities of the contract holders in order to determine if a set-aside is appropriate Determine whether to release a Request for Information (RFI) Coordination with NOAA Small Business Office and Small Business Administration (SBA) Set-aside if it is determined that two or more small business or other socio-economic category business are capable of performing the requirement Where the exception to fair opportunity FAR 16.505 (b)(2)(i)(F) is applicable, the TO CO shall determine whether to issue the solicitation to a socio-economic small business group or to all small business ProTech contract holders within the appropriate Domain. To accomplish this, the TO CO, in consultation with the TO COR or other designated technical representatives, will examine the capabilities of the contract holders in order to determine if the set-aside is appropriate for each order. The TO CO will determine whether to release a Request for Information (RFI) to assist in this determination by receiving the most up-to-date capabilities from the small businesses or if other information is available to determine the appropriate set-aside without issuing a RFI. The TO CO shall first consider a set-aside for the socio-economic programs before considering a small business set-aside. The TO shall be set-aside if it is determined that two or more small business or other socio-economic category business concerns are capable of performing the requirement. The TO CO will use the DOC CD-570 process for the set-aside determination and process it for review and coordination with NOAA Small Business Office and Small Business Administration (SBA). The authority to set aside orders in this capacity is outlined in FAR 16.505(b)(2)(i)(F) as an exception to the fair opportunity process. This exception does not need a separate justification in accordance with FAR 16.505(b)(2)(ii) and does not need to be posted to FBO.

EXCEPTIONS TO FAIR OPPORTUNITY Need is so urgent that fair opportunity would result in unacceptable delays Only one awardee capable because of unique or highly specialized supplies/services Logical follow-on, if all awardees were given fair opportunity under original order Minimum guarantee The government may issue orders without the fair opportunity process whenever circumstances warrant the exercise of any exception set forth in 41 USC §253j. In the event that any of the Exceptions to fair opportunity are employed, the rationale must be thoroughly documented. If the logical follow-on exception is used, the rationale must describe why the relationship between the initial order and the follow-on is logical (e.g., in terms of scope, period of performance, or value). In accordance with 41USC §253j, fair opportunity does not apply to orders that are under $3,500, although to the extent practicable, such micro-purchases shall be distributed equitably.

EXAMPLES OF FAIR OPPORTUNITY EXCEPTIONS Exception Provided for by 41 USC §253j [abbreviated description] Examples of Delivery or Task Order Types that Qualify As Exceptions Unusual urgency that would lead to unacceptable delays Natural disaster or other emergency needs Military/mobilization needs Immediate short-term need arising on short notice Only one capable contractor Only one contractor offers the equipment/service Only one contractor offers the equipment/service to the locations where the equipment/service is needed Only one contractor can demonstrate that it is capable of providing equipment/service in the manner required by the user or to the required locations

EXAMPLES OF FAIR OPPORTUNITY EXCEPTIONS Exception Provided for by 41 USC §253j [abbreviated description] Examples of Delivery or Task Order Types that Qualify As Exceptions Economy, efficiency and logical follow-on to an order already issued under fair opportunity Orders associated with any moves, additions, changes, or similar needs Incremental orders for the same or a new equipment/service to locations where equipment/service already exists or has been ordered Orders placed to minimize inefficiencies or additional costs that would result from introducing multiple maintenance, operations, training network management, or other support systems Orders placed to maintain the engineering and operational integrity of, or to augment an established telecommunications capability within an organization

EXAMPLES OF FAIR OPPORTUNITY EXCEPTIONS Exception Provided for by 41 USC §253j [abbreviated description] Examples of Delivery or Task Order Types that Qualify As Exceptions Meet a minimum revenue guarantee No examples provided. Self-explanatory. For orders exceeding the simplified acquisition threshold, a statute expressly authorizes or requires that the purchase be made from a specified source. In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply. No justification is needed.

PROTECH OMBUDSMAN Concerns should be first raised to the TO Contracting Officer NOAA Acquisition and Grants Office (AGO) Ombudsman will hear and facilitate the resolution of concerns Maintain strict confidentiality as to the source of the concern Before consulting with an ombudsman, interested parties must first address their concerns, issues, disagreements, and/or recommendations to the contracting officer for resolution. If resolution cannot be made by the contracting officer, interested parties may contact the NOAA Ombudsman. In accordance with FAR 16.505(b)(8), complaints related to matters affecting task order award may be directed to the designated NOAA AGO Ombudsman. The NOAA Acquisition and Grants Office (AGO) Ombudsman has the responsibility to review contractor complaints and ensure that all contractors are afforded a fair opportunity to be considered for each task order, consistent with the ordering procedures in the contract. The NOAA Ombudsman will review contractor complaints, and if any corrective action is needed, provide a written determination of such action to the TO CO. Issues that cannot be resolved within NOAA shall be forwarded to the DOC Ombudsman for review and resolution. Also see NOAA AGO Acquisition Alert 16-05 (http://www.ago.noaa.gov/acquisition/docs/aa_16- 05_noaa_ago_ombudsman_contracts_08.31.16.pdf) Ombudsman.

For additional questions contact protech.services@noaa.gov For POC information visit http://www.protechservices.noaa.gov/contacts.php