[Federal Register Volume 60, Number 171 (Tuesday, September 5, 1995)]
[Rules and Regulations]
[Pages 46152-46159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21767]
[[Page 46151]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Administration
_______________________________________________________________________
48 CFR Part 2401 et al.
HUD Acquisition Regulations: Miscellaneous Amendments and Competition
Advocate Designation; Interim Rule and Notice
Federal Register / Vol. 60, No. 171 / Tuesday, September 5, 1995 /
Rules and Regulations
[[Page 46152]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Administration
48 CFR Parts 2401, 2402, 2404, 2405, 2406, 2413, 2415, 2416, 2419,
2426, 2428, 2429, 2432, 2436, 2437, 2452 and 2453
[Docket No. FR-3887-I-01]
RIN 2535-AA23
HUD Acquisition Regulation; Field Reorganization, Streamlining,
and Simplification
AGENCY: Office of the Assistant Secretary for Administration, HUD.
ACTION: Interim rule and request for comments.
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SUMMARY: This interim rule makes changes to the HUD Acquisition
Regulation (HUDAR) required to implement: the Department's Field
reorganization, particularly the establishment of the Administrative
Service Centers; the Federal Acquisition Streamlining Act of 1994
(FASA); and Departmental efforts to streamline and simplify the
procurement process.
DATES: Effective Date: October 5, 1995.
Comment due date: Comments on this interim rule must be submitted
on or before November 6, 1995.
addresses: Send written comments to Rules Docket Clerk, Room 10276,
U.S. Department of Housing and Urban Development, 451 Seventh St., SW,
Washington, DC 20410.
FOR FURTHER INFORMATION CONTACT: Edward L. Girovasi, Jr., Director,
Policy and Evaluation Division, Office of Procurement and Contracts,
Room 5262, 451 Seventh Street, SW., Washington, DC 20410-3000 (voice
(202) 708-0294, TDD (202) 708-1112). (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
Background
The uniform regulation for the procurement of supplies and services
by Federal departments and agencies, the Federal Acquisition Regulation
(FAR), was promulgated on September 19, 1983 (48 FR 42102). The FAR is
codified in title 48, chapter 1, of the Code of Federal Regulations.
HUD promulgated its regulation to implement the FAR on March 1, 1984
(49 FR 7696).
The HUDAR (title 48, chapter 24 of the Code of Federal Regulations)
is prescribed by the Assistant Secretary for Administration under
section 7(d) of the Department of HUD Act (42 U.S.C. 3535(d)); section
205(c) of the Federal Property and Administrative Services Act of 1949
(40 U.S.C. 486(c)); the Secretary's delegation effective October 9,
1985 (50 FR 42097); and the general authorization in FAR 1.301.
The purpose of this interim rule is to amend the HUDAR to update
existing coverage with respect to the Department's structure and
organizational responsibilities; to implement FASA (Pub. L. 103-355,
approved October 13, 1994); and to streamline Departmental procurement
practices.
The heading of HUDAR subpart 2401.6 is revised to read ``Career
Development, Contracting Authority, and Responsibilities''.
HUDAR 2401.601-73 is retitled ``Administrative Service Centers''
and is revised to reflect HUD's current field structure and to
eliminate content which duplicates published delegations of procurement
authority.
HUDAR 2401.602-3 is revised to conform to the structure of FAR
1.602-3 and provide greater discretion to the HCA in handling
ratifications.
HUDAR 2402.101 is revised to add definitions for the ``accounting
office'', and the ``best value'' and ``lowest-priced technically
acceptable proposal'' approaches to source selection; to correct the
HCA designation for field procurements; to provide a more generic
definition for ``Legal Counsel''; to add the ``General Counsel'' to the
list of ``Primary Organization Heads''; and to clarify the definition
of ``Source Selection Official''.
The heading of HUDAR Subpart 2404.8 is revised to read ``Government
Contract Files''.
HUDAR 2404.805-1 is renumbered and retitled to conform to recent
FAR changes, and the content is revised to grant the contracting
officer greater discretion in managing the disposition of unsuccessful
proposals.
HUDAR subpart 2405.3 and section 2405.301 are removed in their
entirety. HUD's practices in synopsizing contract awards will conform
to the FAR.
HUDAR 2406.304-70 is revised to establish an approval official
(Director, Office of Procurement and Contracts) for field contracts at
a level consistent with that required by FAR 6.304.
HUDAR 2406.304-71 is removed in its entirety. HUD's practices in
reviewing and approving justifications for other than full and open
competition will conform to the FAR.
HUDAR 2406.501 is revised to state that the Senior Procurement
Executive will designate the Department's Competition Advocate by
Federal Register notice and to authorize each HCA to appoint
contracting activity-level competition advocates.
HUDAR Part 2413 is retitled to conform to the FAR.
HUDAR 2413.107 is redesignated as 2413.106-2 and retitled to
conform to the FAR. The regulation text is unchanged.
HUDAR 2413.403 is redesignated as 2413.402 to conform to the FAR,
and revised to remove an obsolete directive and add correct information
regarding the operation of imprest funds.
HUDAR 2413.404 is redesignated as 2413.403 to conform to the FAR
and the text is revised to avoid duplication of imprest fund
transaction limits stated in the FAR.
HUDAR 2413.505-2 is redesignated as 2413.505-1(b) and retitled to
conform to the FAR. Its text is revised to authorize the use of Form
HUD-2542, Purchase Order and Payment Authorization, for any small
purchase charged to the FHA Fund, and to remove information that is
internal in nature.
HUDAR subpart 2413.6 and section 2413.601 are added to reference
HUD's internal directive governing use of the Government-wide
commercial credit card to make micro-purchases.
HUDAR 2414.406-4 is revised to clarify that the concurrence of
counsel should be obtained at headquarters or the field, depending on
the location of the contracting activity.
HUDAR 2415.407 is revised to separate the basic provision dealing
with proposal content from those cases requiring cost and pricing data.
When the latter are required, new Alternate I is prescribed for use. In
addition, contracting officers are granted the latitude to adapt
Alternate I or develop additional text to deal with situations when
partial cost and pricing data may be needed as provided in FAR 15.804-
6(a)(2).
HUDAR 2415.408 is removed because adequate coverage on issuing
solicitations is contained in the FAR.
HUDAR 2415.411 and 2415.411-70 are removed in their entirety. The
prescribed use of the Form HUD-4056, Abstract of Proposals, is an
internal agency matter.
HUDAR subpart 2415.6 contains numerous revisions to simplify HUD's
source selection practices. While each section change is explained in
turn below, the general thrust of these revisions is to move to one
procedure for the evaluation of proposals, and to clarify distinctions
in procedures when using the ``lowest-priced technically acceptable
proposal'' or ``best value'' approach to source selection.
HUDAR 2415.604 is revised to establish a single procedure for the
[[Page 46153]]
evaluation of proposals and to distinguish responsibility for the
source selection decision under the two possible source selection
approaches-- ``best value'' or ``lowest-priced technically acceptable
proposal''.
HUDAR 2415.605 is revised to require that each solicitation
identify the source selection approach to be used in evaluating
proposals, and to provide a distinction between the types of evaluation
factors available for use.
HUDAR 2415.608 is revised to clarify procedural differences in the
evaluation of proposals under the two possible source selection
approaches, and to eliminate information adequately covered in the FAR.
HUDAR 2415.609 is removed. The content of this section was removed
in an earlier HUDAR amendment; the section title was overlooked.
HUDAR 2415.611 is added to clarify requirements for documentation
of the source selection decision.
HUDAR 2415.612 and 2415.612-70 are removed in their entirety. In
order to streamline and expedite the procurement process, HUD will not
use formal source selection procedures.
HUDAR 2415.613-70 is revised to clarify that the alternative
procedures authorized by this section use the best value approach to
source selection. That same section and 2415.613-72 are both revised to
eliminate references to Source Evaluation Boards, a formal procedure
that will no longer be used.
HUDAR Subpart 2416.3, Cost-Reimbursement Contracts, and sections
2416.301 and 2416.301-3 are removed in their entirety. Recent changes
to the FAR to implement FASA eliminated the requirement for
determinations and findings to support the selection of contract type.
HUDAR subpart 2426.1 is redesignated as subpart 2426.70 to conform
to the FAR. Accordingly, HUDAR 2426.101, 2426.102, and 2426.103 are
redesignated as 2426.701, 2426.702, and 2426.703 (the regulation text
of the latter two sections is unchanged). HUDAR 2426.701 is revised to
delete the list of ethnic groups designated as ``Minority Business
Enterprises'', and instead rely on definitions established by the Small
Business Administration pursuant to Section 8(d) of the Small Business
Act.
HUDAR subpart 2426.2 and section 2426.201 are removed.
HUDAR Subpart 2428.2, Sureties, the heading of section 2428.204,
and section 2428.204-70 are removed in their entirety. FAR 28.203-2
contains adequate information regarding the use of irrevocable letters
of credit.
HUDAR 2429.101 is revised to conform the section title to the FAR
and clarify that coordination with legal counsel may be at headquarters
or in the field, depending on the location of the contracting activity.
HUDAR 2432.402, 2432.906 and 2432.908 are revised to correct
references to HUD field components consistent with the Department's
reorganization.
HUDAR 2436.602-2 and 2436.602-4 are revised to: authorize the
appointment of non-voting advisors to architect-engineer evaluation
boards; change appointment and selection authorities consistent with
the Department's field reorganization; correct references to HUD's
Standards of Conduct; and, clarify that referral of matters to legal
counsel may occur at headquarters or in the field, as appropriate.
HUDAR 2437.205 is revised to remove the requirement for higher-
level review of contracts for advisory and assistance services
contracts consistent with recent changes to the FAR. In addition, the
use of Form HUD-24003, GTR Performance Assessment (Final) is prescribed
to document the utility of products or services delivered by the
contractor, as required by FAR 37.205.
HUDAR 2452.215-70 is revised to separate the requirement for cost
and pricing data from the basic provision concerning proposal content.
A new Alternate I has been added to deal with situations when cost and
pricing data are required, in conformance with recent FAR changes
increasing the threshold for submission of cost and pricing data to
$500,000.
HUDAR 2452.219-70 is revised to eliminate repetition and clarify
the content of Alternate I.
HUDAR 2452.226-70 is revised to make a conforming change in a
reference from 2426.103 to 2426.703, and to delete ``Hasidic Jewish
Americans'' from the ethnic groups listed as ``Minority Business
Enterprises''. Their inclusion was based on an improper application of
the Minority Business Development Agency's regulations at 15 CFR 1400.1
which defines groups eligible for MBDA assistance. Those regulations do
not establish eligibility for other Federal or Federally-funded
programs.
HUDAR 2452.232-70 and 2452.232-71 are revised to allow discretion
in their application and to correct the reference to field components
in Alternate I to both clauses.
HUDAR 2453.213-71 is removed because Form HUD-24001, Order for
Supplies or Services, is no longer in use.
HUDAR 2453.213-72 is renumbered as 2453.213-71 and is revised to
authorize the use of Form HUD-2542, Purchase Order and Payment
Authorization, for any small purchase charged to the FHA Fund.
HUDAR 2453.237-70 is added to define the use of Form HUD-24002, GTR
Performance Assessment (Final), to document contractor performance and
the utility of products or services delivered.
Other Matters
Paperwork Reduction Act
The Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520) requires
that Federal agencies obtain approval from the Office of Management and
Budget (OMB) before collecting information from 10 or more persons.
There are no new information collection requirements contained in these
amendments to the HUDAR. The OMB Approval Number is 2535-0091.
Justification for Interim Rulemaking
The Department has determined that this rule should be adopted
without the delay occasioned by requiring prior notice and comment
because the majority of the changes either: implement FAR revisions
already in effect that must be followed by HUD contracting personnel
immediately; or, simply correct references to HUD organizational
components consistent with the Department's field reorganization. Since
this interim rule only makes conforming and clarifying changes to
existing provisions, prior notice and comment are unnecessary under 24
CFR Part 10.
Environmental Impact
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations,
the policies and procedures contained in this rule relate only to the
performance of accounting, auditing and fiscal functions and,
therefore, are categorically excluded from the requirements of the
National Environmental Policy Act.
Regulatory Flexibility Act
As required by section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601), the undersigned hereby certifies that this rule does not
have a significant economic impact on a substantial number of small
entities because it merely makes amendments to the Department's
acquisition regulations that: simplify HUD's procurement process,
revise internal HUD component references, and implement FAR
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revisions without adding additional requirements.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under Section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. The rule makes
technical revisions and corrections to the agency's regulations. As a
result, the rule is not subject to review under the Order.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
Order. The rule involves Departmental procurement procedures only.
Semiannual Agenda of Regulations
This rule was not listed in the Department's Semiannual Agenda of
Regulations published on May 8, 1995 (60 FR 23368,) under Executive
Order 12866 and the Regulatory Flexibility Act.
List of Subjects in 48 CFR Parts 2401, 2402, 2404, 2405, 2406,
2413, 2415, 2416, 2419, 2426, 2428, 2429, 2432, 2436, 2437, 2452
and 2453
Government procurement, HUD acquisition regulations.
Accordingly, title 48, Chapter 24 of the Code of Federal
Regulations, is amended as follows:
PART 2401--FEDERAL ACQUISITION REGULATIONS SYSTEM
1. The authority citation for part 2401 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
2. The heading of subpart 2401.6 is revised to read as follows:
Subpart 2401.6--Career Development, Contracting Authority, and
Responsibilities
3. Section 2401.601-73 is revised to read as follows:
2401.601-73 Administrative Service Centers.
Procurement of supplies and services for HUD field components is
accomplished at the three Administrative Service Centers, each of which
has a Contracting Division. The ASC Contracting Division Director may
redelegate contracting authority to qualified personnel within their
service area jurisdiction, consistent with the Department's published
delegations of procurement authority and 2401.603.
4. Section 2401.602-3 is revised to read as follows:
2401.602-3 Ratification of unauthorized commitments.
(b)(1) Policy. A request for ratification shall be sent to the
Contracting Officer through the Head of the Contracting Activity (HCA).
The request will include an explanation as to the need for the service,
the reason why normal procurement procedures were not followed, to what
extent price competition was received or the price otherwise justified,
and, corrective management actions to avoid ratifications in the
future. If the justification is adequate, the ratification will be
signed by the Contracting Officer and forwarded to the HCA or designee
for approval.
(b)(3) The HCA may delegate authority to approve ratifications
below the simplified acquisition threshold to:
(i) Contracting division directors (Headquarters); or,
(ii) Contracting branch chiefs (Field).
(c)(5) Legal concurrence may be requested if there is a legal issue
involved, e.g. the propriety of the funding source, appropriateness of
the expense, etc.
PART 2402--DEFINITIONS OF WORDS AND TERMS
5. The authority citation for part 2402 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
6. In Sec. 2402.101, the definitions of Head of Contracting
Activity, Primary Organization Heads, and Source Selection Official are
revised, and the definitions of Accounting Office, Best Value, Legal
Counsel, and Lowest-Priced Technically Acceptable Proposal are added in
alphabetical order, to read as follows:
2402.101 Definitions.
Accounting Office means the Office of Finance and Accounting in
headquarters or the Field Accounting Divisions in the field.
Best Value is an approach to source selection that considers the
appropriate balance of technical merit, management capability, and
cost/price factors in deciding which proposal offers the overall ``best
value'' to the Government. A best value procurement permits the
government to award a contract to an offeror with a higher price in
order to obtain a better technical product or service with a lower risk
that performance will be unsuccessful. The selection decision may be
based on a determination of whether to tradeoff paying a higher price
to obtain the added value of a particular proposal.
* * * * *
Head of Contracting Activity (HCA) is defined in accordance with
the FAR. The following HUD officials are designated HCAs:
(1) Director, Office of Procurement and Contracts, for HUD
Headquarters procurement;
(2) The Directors, Administrative Service Center Contracting
Divisions for field procurement;
(3) The President, Government National Mortgage Association (GNMA),
for procurement transactions that are conducted by GNMA in accordance
with 2401.601-72(c).
Legal Counsel means the Office of General Counsel in Headquarters,
or the cognizant Assistant General Counsel in the field.
Lowest-Priced Technically Acceptable Proposal is an approach to
source selection under which all evaluation factors, except price, are
evaluated on a ``Pass-Fail'' basis. It is used when price will be the
deciding factor once the technical acceptability of proposals has been
determined.
Primary Organization Heads are those officials of the Department
who are responsible for the major organizational components of HUD and
who report directly to the Secretary or Deputy Secretary. The Primary
Organization Heads of HUD include: the Assistant Secretaries, the
Inspector General, and the General Counsel.
* * * * *
Source Selection Official means the head of the office initiating
and providing funding for the procurement, or his/her designee. This
role may also be delegated to the contracting officer.
PART 2404--ADMINISTRATIVE MATTERS
7. The authority citation for part 2404 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d).
8. The heading of subpart 2404.8 is revised to read as follows:
[[Page 46155]]
Subpart 2404.8--Government Contract Files
9. Section 2404.805-1 is redesignated as 2404.805 and amended by
revising the section heading and paragraph (a), to read as follows:
2404.805 Storage, handling and disposal of contract files.
(a) Unsuccessful cost and technical proposals shall be retained in
the contracting activity for a period of two months following the
contract award as reference material for debriefings. Upon expiration
of the two month period, the contracting office shall either:
(1) Retain one copy of each such proposal with the official
contract file; or,
(2) Ship one copy of each unsuccessful bid or proposal to the
Federal Records Center unless a debriefing has been requested but not
held, or a protest is pending concerning the procurement. In no event
shall these documents be destroyed before expiration of the retention
periods in FAR 4.805.
* * * * *
PART 2405--PUBLICIZING CONTRACT ACTIONS
10. The authority citation for part 2405 is revised to read as
follows:
Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d);
and FAR class deviation approved November 15, 1990.
Subpart 2405.3--[Removed]
11. and 12. Subpart 2405.3 Synopses of Contract Awards is removed.
PART 2406--COMPETITION REQUIREMENTS
13. The authority citation for part 2406 is revised to read as
follows:
Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).
14. Section 2406.304-70 is revised to read as follows:
2406.304-70 Approval of the justification--field procurements.
(a) The justification for other than full and open competition for
field procurements shall be approved in writing--
(3) For a proposed contract more than $1 million but not exceeding
$10 million, by the Director, Office of Procurement and Contracts.
2406.304-71 [Removed]
15. Section 2406.304-71 is removed.
16. Section 2406.501 is revised to read as follows:
2406.501 Requirement.
The Senior Procurement Executive shall designate the Department's
competition advocate by Federal Register notice. Contracting activity-
level competition advocates shall be appointed by each HCA.
PART 2413--SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASING
PROCEDURES
17. The authority citation for part 2413 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
18. The heading of part 2413 is revised to read as follows:
PART 2413--SIMPLIFIED ACQUISITION PROCEDURES
2413.107 [Redesignated as 2413.106-2]
19. Section 2413.107 is redesignated as 2413.106-2 and revised to
read as follows:
2413.106-2 Data to support purchases.
(d) Contracting officers may use Form HUD-24007, Purchase/Delivery
Order Data File, to record all relevant data pertaining to a small
purchase, including recording written and oral quotations received and
documenting orders against GSA contracts.
2413.403 [Redesignated as 2413.402]
20. Section 2413.403 is redesignated as 2413.402 and revised to
read as follows:
2413.402 Agency responsibilities.
(c) Policies and procedures governing the operation of imprest
funds are established in internal directives issued by HUD's Office of
the Chief Financial Officer.
2413.404 [Redesignated as 2413.403]
21. Section 2413.404 is redesignated as 2413.403 and revised to
read as follows:
2413.403 Conditions for use.
(a) Transaction limits above that established in FAR 13.403(a) may
be approved by the Senior Procurement Executive.
2413.505-2 [Redesignated as 2413.505-1]
22. Section 2413.505-2 is redesignated as 2413.505-1 and revised to
read as follows:
2413.505-1 Optional Form (OF) 347, order for supplies and services,
and Optional Form 348, order for supplies and services schedule-
continuation.
(b) For small purchases charged to the FHA Fund, contracting
officers may use Form HUD-2542, Purchase Order and Payment
Authorization.
23. A new subpart 2413.6 and a new section 2413.601 are added to
read as follows:
Subpart 2413.6--Micro-Purchase
2413.601 General.
(c) HUD's procedures concerning the use of the government-wide
commercial purchase card are contained in its Handbook on the
Government-wide Commercial Credit Card Program.
PART 2414--SEALED BIDDING
24. The authority citation for part 2414 is revised to read as
follows:
Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).
25. Section 2414.406-4 is revised to read as follows:
2414.406-4 Mistakes after award.
(d) For determinations under FAR 14.406-4(b)(1) and (2), the Head
of the Contracting Activity will obtain the concurrence of legal
counsel before notification to the Contractor. The Contracting Officer
shall be notified promptly of action to be taken.
PART 2415--CONTRACTING BY NEGOTIATION
26. The authority citation for part 2415 is revised to read as
follows:
Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).
27. In section 2415.407, new paragraphs (b) and (c) are added, to
read as follows:
2415.407 Solicitation provisions.
* * * * *
(b) The contracting officer shall use the language at Alternate I
to request cost and pricing data when it is anticipated that a contract
or subcontract resulting from this solicitation will exceed $500,000 in
value. This language shall also be used for those instances when the
contracting officer determines that full cost and pricing data are
required pursuant to FAR 15.804-2(a)(3).
(c) In those instances when certified cost and pricing data are not
required because an action is $500,000 or less, the contracting officer
may request partial or limited data in order to determine a reasonable
price (see FAR 15.804-6(a)(2)). The contracting officer shall request
only that data which is considered necessary to determine a reasonable
price. If partial or limited data is required, the contracting officer
may adapt the content of Alternate I to
[[Page 46156]]
suit the circumstances of the procurement, or develop additional text
as required.
2415.408 [Removed]
28. Section 2415.408 is removed.
2415.411 [Removed]
29. Section 2415.411 is removed.
2415.411-70 [Removed]
30. Section 2415.411-70 is removed.
31. Section 2415.604 is revised to read as follows:
2415.604 Responsibilities.
(b) The technical requirements related to source selection shall be
performed by a Technical Evaluation Panel (TEP). Generally, a TEP will
consist of three to five voting members, with one member serving as the
chairperson. For more complex procurements, the TEP may add advisors
and/or a committee structure to focus on specific technical issues or
concerns. For inexpensive or routine acquisitions of equipment,
supplies or services, the TEP may consist of one technical
representative. The TEP is responsible for documenting the evaluation
of all proposals as appropriate to the source selection approach in
use, and for making the source selection recommendation(s).
(c)(4) The selection of the source(s) for contract award shall be
made by:
(i) The contracting officer for awards using the ``lowest-priced
technically-acceptable proposal'' approach; or,
(ii) The Source Selection Official (SSO) for awards based on the
``best value'' approach.
32. Section 2415.605 is revised to read as follows:
2415.605 Evaluation factors.
(c) The solicitation shall state the basis for the source selection
decision as either ``lowest-priced technically-acceptable proposal''
(LPTAP) or ``best value'' (see 2402.1, Definitions).
(e) When using the best value approach, each technical evaluation
factor and subfactor shall be assigned a numerical weight (except for
pass-fail factors) which shall appear in the RFP. When using LPTAP,
each evaluation factor is applied on a ``pass-fail'' basis; numerical
scores are not assigned. ``Pass-Fail'' evaluation factors define a
standard of comparison for solicitation/contract requirements which
proposals either completely satisfy or fail to meet.
33. In section 2415.608, paragraph (a) is revised to read as
follows:
2415.608 Proposal evaluation.
(a) After receipt of proposals, the Contracting Officer will
forward copies of the technical portion of each proposal to the TEP
Chairperson or his or her designee. The cost/price portion of each
proposal shall be retained by the Contracting Officer pending initial
technical evaluation by the TEP.
(2) Technical evaluation. The TEP shall rate each proposal based on
the evaluation factors specified in the solicitation. The TEP shall
identify each proposal as being either acceptable, unacceptable but
capable of being made acceptable, or unacceptable. A proposal shall be
considered unacceptable if it is so clearly deficient that it cannot be
corrected through written or oral discussions. Under the best value
approach, predetermined cut-off scores designed to determine a
threshold level of acceptability of proposals shall not be employed.
However, under solicitations where mandatory requirements are
established, those proposals that do not meet the mandatory
requirements may be found unacceptable without further review.
(3) A technical evaluation report, which complies with FAR
15.608(a)(2), shall be prepared and signed by the technical
evaluator(s), furnished to the contracting officer, and maintained as a
permanent record in the official procurement file.
* * * * *
2415.609 [Removed]
34. Section 2415.609 is removed.
35. A new section 2415.611 is added to read as follows:
2415.611 Best and final offers.
(d) After receipt and evaluation of best and final offers, the TEP
shall document its selection recommendation(s) in a final written
report. The final report shall include sufficient information to
support the recommendation(s) made, appropriate to the source selection
approach and type and complexity of the acquisition.
2415.612 [Removed]
36. Section 2415.612 is removed.
2415.612-70 [Removed]
37. Section 2415.612-70 is removed.
38. In section 2415.613, paragraph (a) is revised to read as
follows:
2415.613 Alternative source selection procedures.
(a) The Department of Housing and Urban Development uses procedures
authorized by FAR 15.613 for all research and development contracts and
other contracts where the contractor's proposed methodology of carrying
out the work is a significant selection factor and the award decision
will follow the best value approach.
* * * * *
39. Section 2415.613-70 is revised to read as follows:
2415.613-70 Technical evaluation.
The TEP shall perform the required technical evaluation of
proposals received in accordance with 2415.608.
40. In section 2415.613-72, paragraph (a) is revised to read as
follows:
2415.613-72 Selection and final negotiation.
(a) Selection. After the close of discussions and receipt of best
and final offers, the TEP shall perform a final evaluation and prepare
its selection recommendation for the SSO. Based on this evaluation, the
SSO shall select for final contract negotiation the offeror(s) whose
proposal is most advantageous to the Government in terms of price/cost,
technical and other relevant factors included in the solicitation.
* * * * *
PART 2416--TYPES OF CONTRACTS
41. The authority citation for part 2416 is revised to read as
follows:
Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).
Subpart 2416.3--[Removed]
42-44. Subpart 2416.3--Cost-Reimbursement Contracts is removed.
PART 2426--OTHER SOCIOECONOMIC PROGRAMS
45. The authority citation for part 2426 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
Subpart 2426.1--[Redesignated as Subpart 2426.70]
46. The heading, subpart 2426.1--Minority Business Enterprises, is
redesignated as subpart 2426.70.
2426.101 [Removed]
47. Section 2426.101 is removed.
2426.102 [Removed]
48. Section 2426.102 is removed.
2426.103 [Removed]
49. Section 2426.103 is removed.
Subpart 2426.2--[Removed]
50-51. Subpart 2426.2--Historically Black Colleges and Universities
is removed.
52. A new section 2426.701 is added, to read as follows:
2426.701 Policy.
It is the policy of the Department to foster and promote Minority
Business
[[Page 46157]]
Enterprise (MBE) participation in its procurement program, to the
extent permitted by law and consistent with its primary mission. A
``minority business enterprise'' is a business which is at least 51
percent owned by one or more minority group members; or, in the case of
a publicly-owned business, one in which at least 51 percent of its
voting stock is owned by one or more minority group members, and whose
management and daily business operations are controlled by one or more
such individuals. For this purpose, minority group members are those
groups of U.S. citizens found to be disadvantaged by the Small Business
Administration pursuant to Section 8(d) of the Small Business Act.
53. A new section 2426.702 is added, to read as follows:
2426.702 Responsibility.
The Director of the Office of Small and Disadvantaged Business
Utilization (OSDBU) develops Departmental MBE plans and policies in
accordance with Executive Orders 11625 and 12432 and by directive from
the Secretary. He or she provides advice and guidance to the Secretary
and Primary Organization Heads on MBE functions, reviews and makes
recommendations to the Secretary on MBE annual plans and goals,
monitors and evaluates the Department's MBE program, and reports on MBE
program performance to the Department of Commerce.
54. A new section 2426.703 is added, to read as follows:
2426.703 Solicitation provision.
Contracting officers shall request all interested contractors,
bidders, or offerors (including those responding to requests for
quotations) to complete the certification at 2452.226-70, Certification
of Status as a Minority Business Enterprise. Completion of this
certification is voluntary and is not a condition of eligibility for
contract award.
PART 2428--BONDS AND INSURANCE
55. The authority citation for part 2428 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
Subpart 2428.2--[Removed]
56.-58. Subpart 2428.2--Sureties is removed.
PART 2429--TAXES
59. The authority citation for part 2429 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d).
60. Section 2429.101 is revised to read as follows:
2429.101 Resolving tax problems.
In order to have uniformity in HUD's treatment of the tax aspects
of contracting and ensure effective cooperation with other Government
agencies on tax matters of mutual interest, the Office of General
Counsel has the responsibility within HUD for handling all those tax
problems. Therefore, the contracting activity will not engage in
negotiation with any taxing authority for the purpose of determining
the validity or applicability of, or obtaining exemptions from or
refund of, any tax. When a problem exists, the Contracting Officer
shall request, in writing, the assistance of legal counsel. The request
shall detail the problem and be accompanied by appropriate backup data.
Counsel shall report to the Contracting Officer as to the necessary
disposition of the tax problem. The Contracting Officer will notify the
contractor of the outcome of the tax problem. Counsel is responsible
for communications with the Department of Justice for representation or
intervention in proceedings concerning taxes.
PART 2432--CONTRACT FINANCING
61. The authority citation for part 2432 continues to read as
follows:
Authority: 31 U.S.C. 3901-3906; 40 U.S.C. 486(c); 42 U.S.C.
3535(d).
62. Section 2432.402 is revised to read as follows:
2432.402 General.
(e)(1) The Determination and Findings required by FAR
32.402(c)(1)(iii) shall be made by the Director, Office of Procurement
and Contracts for Headquarters contracts, or the cognizant Director,
Administrative Services Center Contracting Division for field
contracts.
(2) Each advance payment situation shall be coordinated with the
head of the cognizant accounting office, before authorization may be
given, to ensure that there are controls in place to assure proper
administration of advance payments.
63. Section 2432.906 is revised to read as follows:
2432.906 Contract financing payments.
Except for construction contracts (see FAR 52.232-27), periods for
payment shorter than 30 days shall not be specified in contracts
without the prior approval of the cognizant accounting office to ensure
that procedures are in place to allow timely payment.
64. Section 2432.908 is revised to read as follows:
2432.908 Contract clauses.
(a) The Contracting Officer shall insert a clause substantially the
same as provided at 2452.232-70, Payment Schedule and Invoice
Submission (Fixed-Price), in all fixed-price solicitations and
contracts. The clause with its Alternate I may be used for
solicitations and contracts issued by the Administrative Service
Centers.
(b) The Contracting Officer shall insert a clause substantially the
same as provided at 2452.232-71, Voucher Submission (Cost-
Reimbursement), in all cost-reimbursement solicitations and contracts
when vouchers are to be sent directly to the paying office. The clause
with its Alternate I may be used for solicitations and contracts issued
by the Administrative Service Centers.
PART 2436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
65. The authority citation for part 2436 is revised to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
66. In section 2436.602-2, paragraphs (a) introductory text,
(a)(2), and (c) are revised, and paragraph (a)(3) is removed, to read
as follows:
2436.602-2 Evaluation boards.
(a) Each architect-engineer evaluation board, whether permanent or
ad hoc (which may include preselection boards), shall consist of at
least three voting members who are Federal employees from the
appropriate program area or from Federal offices outside the program
area as appropriate. One member of each board shall be appointed
chairperson. Non-voting advisors may also be appointed, including
private practitioners in architecture, engineering and related
professions. The members of a permanent board shall be appointed for a
period of two years. Appointment shall be made by the following
authorities with copies of appointment memoranda furnished to the
appropriate contracting activity:
(1) * * *
(2) The cognizant program office head within the State or Area
Office for boards appointed at the field level.
(c) Conflict of interest. Each board member, whether voting or
nonvoting, shall be advised of, and presumed to be familiar with the
regulations at 24 CFR Part 0, Standards of Conduct, regarding conflicts
of interest. If at any time during the selection process a board member
encounters a situation with one or more of the firms being considered
that might be or might appear to be a conflict of interest, he or she
will
[[Page 46158]]
disqualify him or herself and call it to the attention of the
chairperson for resolution and proper action. The chairperson will
refer the matter to legal counsel.
* * * * *
67. Section 2436.602-4 is revised to read as follows:
2436.602-4 Selection authority.
(a) The final selection decision shall be made by the appropriate
Primary Organization Head (Headquarters) or the appropriate program
office head at the cognizant State or Area Office (Field).
PART 2437--SERVICE CONTRACTING
68. The authority citation for part 2437 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
69. Section 2437.205 is revised to read as follows:
2437.205 Management controls.
Documentation of the contractor's performance and the utility of
products or services delivered shall be recorded on Form HUD-24002, GTR
Performance Assessment (Final) by the responsible Government Technical
Representative. This form may also be used to document contractor
performance on other contracts.
PART 2452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
70. The authority citation for part 2452 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
71. Section 2452.215-70 is revised to read as follows:
2452.215-70 Proposal content and outline.
As prescribed in 2415.407(a), insert the following solicitation
provision in all negotiated solicitations over the small purchase
limitation:
PROPOSAL CONTENT AND OUTLINE (Insert Month, Year)
(a) Proposals shall be submitted in two separate parts as
further described below and shall be enclosed in a sealed envelope
and addressed to the office specified in the solicitation. The
envelope must show the hour and date specified in the solicitation
for receipt, the solicitation number, and the name and address of
the offeror. Part I shall consist of the technical and management
submittal of the proposed work. Part II shall consist of a business
proposal comprised of, cost and pricing data, (if required), and the
offeror's representations and certifications. Each part of the
proposal shall be complete in itself so that the evaluation of both
parts can be accomplished concurrently, and the evaluation of the
technical and management submittal can be made strictly on the basis
of its merit.
(b) Proposals shall be submitted in [insert number] copies of
each Part I and [insert number] copies of Part II.
(c) Part I--Technical and Management
Section 1: Proposal Coverage. Cover the scope of work and
general objectives which the proposal addresses.
Section 2: Tasks and Methods. Describe the principal tasks or
sub-projects to be undertaken together with a discussion of their
relationships to each other. Discuss the considerations for
selecting, performing and the time sequencing of the tasks or sub-
projects. Describe and discuss the method of personnel training and
field personnel recruitment and the method of project control to be
applied to the project to ensure timely, professional and quality
performance. The Contractor must clearly state his/her plans for
project management and in providing current and updated project
progress to HUD during those phases of Contractor performance that
require substantial coordination with HUD personnel.
Section 3: Organization and Staffing. Include an organizational
chart for the project showing the name of the project manager and
the names of key personnel. Include a brief resume for each person
shown on the special qualifications applicable to the performance of
the project. Describe the specific effort to be contributed to the
project by each of the key personnel and include a statement
expressed either in percentage or person-hours that each will devote
to the effort. Include a summation of the minimum person-hours or
person-months of professional effort to be used in completing the
project. Describe the physical facilities to be used. If
consultants, advisors or subcontractors are to be used, describe the
arrangements and include resumes of the Key personnel.
Section 4: Prior and Current Experience. Include a list of
projects currently in progress and/or completed within the last two
years which are relevant to this procurement. Include names,
addresses, and telephone numbers of contact points with these
clients. The Government reserves the right to request information
from any source so named.
Section 5: Conflicting or Multiple Use of Contractor Resources.
Include a description of the contractor's current or planned
projects that may draw upon resources or personnel, including top
management, proposed to be committed to this project. Explain how
such conflicting or multiple uses will be resolved to avoid
impairing the timely, professional, and high-quality performance of
this project. If the proposer has one or more existing HUD projects
that will run concurrently with this project, explain how the level
of attention described in the proposal will be preserved across
projects.
The Government reserves the right to downgrade the related
Factor for Award score for any proposal that does not adequately and
credibly address such conflicts or multiple uses.
Section 6: Security Investigation. The offeror shall address in
its technical proposal how it intends to manage the security of
automated systems as required by HUDAR clause 2452.237-76. This
includes developing security procedures, requesting background
investigations for employees and subcontractors as required, and
requesting investigations for replacements of such individuals as
necessary due to turnover, rotation, or other reasons.
(d) Part II--Business Proposal
Section 1: Representations and Certifications. The Offeror's
Representations and Certifications provided in Section K of this
solicitation shall be included in this section.
(End of provision)
ALTERNATE I (Insert Month, Year)
This alternate shall be used as prescribed at 2415.407(b) when
the submission of cost and pricing data are required. In such cases,
add the following Section 2 to paragraph (d) of the basic provision:
Section 2: Cost and Pricing Data. The offeror shall furnish cost
or pricing data using the SF-1411, Contract Pricing Proposal,
provided in Section L of this solicitation, and the instructions
attached to it, which are also printed at FAR 15.804-6. Round all
amounts to the nearest dollar. Your data will be subject to review
and evaluation by various Government personnel, and thus the
estimates furnished on the SF-1411 should be supported by the
required supplementary data so that the review and evaluation can be
conducted with a minimum amount of delay and effort. In particular,
ensure that the following essential elements are provided:
(i) A summary of total cost by cost element cross-referenced to
each proposed contract line item (instruction number 1).
(ii) Identification of the basis for the kinds, quantities, and
cost of all material elements proposed; and a consolidated priced
summary of individual material quantities, or a consolidated priced
bill of material (BOM), for the entire proposal. A well prepared BOM
includes: part number/description, unit cost, quantity required, any
nonrecurring costs, extended cost, and basis for the proposed price
(quotation, prior buy, similar item, etc.) (instruction number 1,
Materials).
(iii) For each subcontract over $500,000 show: source,
deliverable, quantity, price, type of subcontract, degree of
competition, basis for selecting vendor and establishing
reasonableness of price. When required, the subcontractor's cost or
pricing data must be submitted with the offeror's initial proposal.
If available and if required by FAR 15.806, the contractor should
provide the results of review and evaluation of subcontract
proposals. Though not required, the offeror should provide reasons
for omitted data/reviews with dates when the data/reviews will be
available (instruction number 1, Materials).
(iv) A Justification, submitted on an SF-1412, Claim for
Exemption from Submission of Certified Cost or Pricing Data, when
claiming an exemption from submitting cost or pricing data
(instruction number 1, Materials).
[[Page 46159]]
(v) A time phased, e.g., quarterly, annual, breakdown of labor
rates and hours by category or skill level, and the basis for the
estimates of rates and hours, e.g., historical experiences,
engineering estimates, learning curves, etc. If labor is the
allocation base for indirect costs, summarize for each overhead pool
and year (instruction number 1, Direct Labor).
(vi) In the absence of a forward pricing rate agreement or
indirect rate proposal, the contractor should show how indirect
rates were estimated and applied as a basis for evaluating the
reasonableness of the proposed rates. Support for the indirect rates
could consist of cost breakdowns, trends, and budgetary data
(instruction number 1, Indirect Costs).
(vii) Identification of all other costs by category and basis
for pricing (instruction number 1, Other Costs).
(viii) When claiming cost of money, the contractor must submit
Form CASB-CMF and show the calculation of the proposed amount
(instruction number 1, Facilities Capital Cost of Money).
(ix) Identification of cost or pricing data, i.e., data that are
verifiable and factual, and an explanation of the estimating
process. When applicable, the following items should be specifically
identified:
(A) Judgmental factors and the methods used in the estimate,
including those used in projecting from known data; and
(B) The nature and amount of any contingencies (instruction
number 2).
(x) An index referencing all cost or pricing data and
information accompanying or identified in the proposal (instruction
number 4).
(xi) For change order proposals: an estimate of the cost to
complete deleted work not yet performed; identification of the
actual or estimated cost of deleted work already performed; and an
estimate of the cost of work added (instruction number 7B).
(End of provision)
72. In section 2452.219-70, the section heading and Alternate I are
revised to read as follows (and footnote 8 is removed):
2452.219-70 Small Business and Small Disadvantaged Business
Subcontracting Plan.
* * * * *
ALTERNATE I (DEC 1992)
This alternate is required for all sealed bid solicitations
exceeding $500,000 ($1,000,000 for construction) that are not set
aside for small business. In such cases, insert the following
paragraph (d) for that in the basic clause:
(d) The contract expected to result from this solicitation will
contain the clause at FAR 52.219-9, ``Small Business and Small
Disadvantaged Business Subcontracting Plan (Alternate I).'' The
offeror submitting the apparent low bid, upon request by the
Contracting Officer, shall submit a subcontracting plan, where
applicable, which addresses separately subcontracting with small
business concerns and small disadvantaged business concerns, and
which shall be included in and made a part of the resultant
contract. The Contracting Officer will review the adequacy of the
subcontracting plan as part of the responsibility determination (FAR
subpart 9.1). Failure to submit an adequate subcontracting plan
where applicable shall make the offeror ineligible for the contract
award.
(End of provision)
73. Section 2452.226-70 is revised to read as follows:
2452.226-70 Certification of status as a minority business enterprise.
As prescribed in 2426.703, insert the following provision in all
solicitations:
CERTIFICATION OF STATUS AS A MINORITY BUSINESS ENTERPRISE
(August 1995)
Bidder, Offeror or Supplier certifies that he or she ______ is,
______ is not, (check one), a minority business enterprise which is
defined as a business which is at least 51 percent owned by one or
more minority group members or, in the case of a publicly owned
business, at least 51 percent of its voting stock is owned by one or
more minority group members, and whose management and daily
operations are controlled by one or more such individuals. For the
purpose of this definition, minority group members are:
(Check the box applicable to you)
[ ] Black Americans
[ ] Hispanic Americans
[ ] Native Americans
[ ] Asian Pacific Americans
[ ] Asian Indian Americans
74. In section 2452.232-70, Alternate I is revised to read as
follows:
2452.232-70 Payment schedule and invoice submission (fixed-price).
* * * * *
ALTERNATE I (MAR 1988)
This alternate may be used in fixed-price contracts awarded by
the Administrative Service Centers. In such cases, substitute the
following paragraph (c) for that in the basic clause:
(c) Invoices shall be submitted in an original and three (3)
copies to the office identified on the cover page of the contract
(SF-26 or SF-33). To constitute a proper invoice, the invoice must
include all items per FAR 52.232-25, ``Prompt Payment.''
75. In section 2452.232-71, Alternate I is revised to read as
follows:
2452.232-71 Voucher submission (cost-reimbursement).
* * * * *
ALTERNATE I (MAR 1988)
This alternate may be used in cost-reimbursement contracts
awarded by the Administrative Service Centers. In such cases,
substitute the following paragraph (a) for that in the basic clause:
(a) The Contractor shall submit, on a monthly basis [Contracting
Officer may substitute a different time frame, if appropriate], an
original and three (3) copies of each voucher. In addition to the
items necessary per FAR 52.232-25, ``Prompt Payment,'' the voucher
shall show the elements of cost for the billing period and the
cumulative costs to date. All vouchers shall be submitted to the
Contracting Officer specified on the cover page of the contract (SF-
26 or SF-33).
75a. In section 2452.237-77, footnote 9 is redesignated as footnote
8.
PART 2453--FORMS
76. The authority citation for part 2453 is revised to read as
follows:
2452.237-77 [Footnote 9 redesignated as Footnote 8]
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
77. Section 2453.213-71 is revised to read as follows:
2453.213-71 HUD Form 2542, Purchase Order and Payment Authorization.
As prescribed in 2413.505-2(b), Contracting Officers may use HUD
Form 2542 for small purchases charged to the FHA Fund.
2453.213-72 [Removed]
78. Section 2453.213-72 is removed.
79. A new section 2453.237-70 is added, to read as follows:
2453.237-70 HUD Form 24002, GTR Performance Assessment (Final).
As prescribed in 2437.205, Government Technical Representatives
shall use HUD Form 24002 to document the contractor's performance and
the utility of products or services delivered. This form may also be
used for other contracts.
Dated: August 2, 1995.
Marilynn A. Davis,
Assistant Secretary for Administration.
[FR Doc. 95-21767 Filed 9-1-95; 8:45 am]
BILLING CODE 4210-01-P
