5.705 Publicizing postaward
Source: FAR 5.705 on acquisition.gov
FAR 5.705 requires enhanced public notice and clear justification for Recovery Act-funded contract actions, especially those not awarded competitively or not fixed-price, to ensure transparency and public understanding.
Overview
FAR 5.705 establishes specific postaward publicizing requirements for contract actions funded by the American Recovery and Reinvestment Act (Recovery Act). It mandates enhanced transparency for awards, modifications, and orders exceeding $500,000, as well as for any contract action that is not both fixed-price and competitively awarded, regardless of dollar value. The section outlines how to identify Recovery Act-funded actions in public notices and prescribes clear, public-friendly language for descriptions. It also details when and how to provide rationales for non-fixed-price or non-competitive awards, ensuring the public can understand the reasons for such contracting approaches.
Key Rules
- Award Notice Requirement for Recovery Act Actions > $500,000
- All contract actions (including modifications and orders) exceeding $500,000 and funded by the Recovery Act must be publicized.
- Identification of Recovery Act Actions
- Notices must clearly indicate Recovery Act funding by using the word "Recovery" in the title and selecting the appropriate field in the Governmentwide Point of Entry (GPE) system.
- Plain Language Descriptions
- Descriptions must be clear, concise, and understandable to the general public, avoiding jargon and acronyms.
- Rationale for Non-Fixed-Price or Non-Competitive Awards
- For any contract action not both fixed-price and competitively awarded, a public rationale must be included in the notice, explaining the contracting approach.
- No Proprietary or Sensitive Information
- Notices must not include proprietary or national security information.
Responsibilities
- Contracting Officers: Must ensure proper publicizing of Recovery Act-funded actions, use correct identification procedures, provide clear descriptions, and include required rationales.
- Contractors: Must be aware that award details and rationales for non-standard awards will be made public.
- Agencies: Must oversee compliance with these transparency requirements and ensure information is posted correctly on the GPE.
Practical Implications
- This section exists to promote transparency and accountability for Recovery Act spending.
- It impacts daily contracting by requiring additional steps for publicizing and documenting contract actions, especially for non-standard awards.
- Common pitfalls include failing to properly identify Recovery Act actions, omitting required rationales, or using unclear language in public notices.
Follow usual publication procedures at 5.301, except that the following supersede the exceptions at 5.301(b)(2) through (7):
(a)
(1) Publicize the award notice for any action exceeding $500,000, funded in whole or in part by the Recovery Act, including-
(i) Contracts;
(ii) Modifications to existing contracts;
(iii) Orders which are issued under task or delivery order contracts; and
(iv) Modifications to orders under task or delivery order contracts.
(2) Contracting officers shall identify contract actions, funded in whole or in part by the Recovery Act, by using the following instructions which are also available in the Recovery FAQS under "Buyers/Engineers" at the Governmentwide Point of Entry (GPE) ( https://www.sam.gov" target="_blank">https://www.sam.gov ):
(i) If submitting notices electronically via ftp or email, enter the word "Recovery" as the first word in the title field.
(ii) If using the GPE directly, select the "yes" radio button for the "Is this a Recovery and Reinvestment Act action" field on the "Notice Details" form (Step 2) located below the "NAICS Code" field. In addition, enter the word "Recovery" as the first word in the title field.
(3) In preparing the description required by 5.207(a)(16), use clear and concise language to describe the planned procurement. Use descriptions of the goods and services (including construction), that can be understood by the general public. Avoid the use of acronyms or terminology that is not widely understood by the general public.
(b) Regardless of dollar value, if the contract action, including all modifications and orders under task or delivery order contracts, is not both fixed-price and competitively awarded, publicize the award notice and include in the description the rationale for using other than a fixed-priced and/or competitive approach. Include in the description a statement specifically noting if the contract action was not awarded competitively, or was not fixed-price, or was neither competitive nor fixed-price. These notices and the rationale will be available to the public at the GPE, so do not include any proprietary information or information that would compromise national security. The following table provides examples for when a rationale is required.
Posting of Rationale - Examples
| Description of Contract Action | Rationale Required | |
|
(1) |
A contract is competitively awarded and is fixed-price. |
Not required. |
|
(2) |
A contract is awarded that is not fixed-price. |
Required. |
|
(3) |
A contract is awarded without competition. |
Required. |
|
(4) |
An order is issued under a new or existing single award IDIQ contract. |
Required if order is made under a contract described in paragraph (b)(2) or (3) of this section. |
|
(5) |
An order is issued under a new or existing multiple award IDIQ contract. |
Required if one or both of the following conditions exist: (i) The order is not fixed-price. (ii) The order is awarded pursuant to an exception to the competition requirements applicable to the underlying vehicle (e.g., award is made pursuant to an exception to the fair opportunity process). |
|
(6) |
A modification is issued. |
Required if modification is made- (i) To a contract described in (b)(2) or (3) of this section; or (ii) To an order requiring posting as described in (b)(4) or (5) of this section. |
|
(7) |
A contract or order is awarded pursuant to a small business contracting authority (e.g., SBA’s section 8(a) program). |
Required if one or both of the following conditions exist: (i) the contract or order is not fixed-price; (ii) the contract or order was not awarded using competition (e.g., a non-competitive 8(a) award). |
(c) Contracting officers shall use the instructions available in the Recovery FAQs under "Buyers/Engineers" at the GPE ( https://www.sam.gov" target="_blank">https://www.sam.gov ) to identify actions funded in whole or in part by the Recovery Act.