[Federal Register Volume 63, Number 203 (Wednesday, October 21, 1998)]
[Rules and Regulations]
[Pages 56091-56094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28240]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1817, 1834, and 1852
Phased Acquisitions
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This is a final rule amending the NASA FAR Supplement (NFS) to
revise its existing coverage on phased acquisitions and down-selections
to reflect changes in NASA Procedures and Guidance (NPG) 7120.5A, NASA
Program and Project Management Processes and Requirements. In addition,
the revision also includes: relocation of the NFS coverage from Part
1834, Major System Acquisition, to 1817, Special Contracting Methods,
to more accurately reflect the subject matter; and editorial revisions
to the text and associated contract clauses to eliminate redundancies
and improve readability. All of these changes are considered non
substantive in that they do not affect the existing phased acquisition/
down-selection procedures.
DATES: This rule is effective October 21, 1998.
ADDRESSES: Kenneth A. Sateriale, NASA Headquarters Office of
Procurement, Contract Management Division (Code HK), Washington, DC
20546.
FOR FURTHER INFORMATION CONTACT: Kenneth A. Sateriale, (202) 3580491.
SUPPLEMENTARY INFORMATION:
Background
NPG 7120.5A, NASA Program and Project Management Processes and
Requirements, is the primary internal document governing NASA program
management. Revision A supersedes the previous version. The revision
includes new terminology that makes obsolete some references, such as
program phase designations and definitions, in the NFS coverage on
phased acquisitions. Editorial and administrative changes to the NFS
are required to ensure complete compatibility with the revised NPG.
Impact
NASA certifies that this regulation will not have a significant
economic impact on a substantial number of small business entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) since the
changes do no more than align NFS terminology to that in Agency
internal documents and make editorial revisions to delete redundancies
and improve readability. The rule does not impose any reporting or
record keeping requirements subject to the Paperwork Reduction Act.
List of Subjects in 48 CFR Parts 1817, 1834, and 1852
Government procurement.
Tom Luedtke,
Acting Associate Administrator for Procurement.
Accordingly, 48 CFR Parts 1817, 1834, and 1852 are amended as
follows:
1. The authority citation for 48 CFR Parts 1817, 1834, and 1852
continues to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1817--SPECIAL CONTRACTING METHODS
Subpart 1817.73 [Added]
2. Subpart 1817.73 is added to read as follows:
Subpart 181734.730 Phased Acquisition
181734.7300 Definitions.
1817.7301 Down-selctions in phased acquisitions.
1817.7301-1 Pre-solicitation planning.
1817.7301-2 Evaluation factors.
1817.7301-3 Down-selection milestones.
1817.7301-4 Synopsis.
1817.7301-5 Progressive competition.
1817.7302 Contract clauses.
Subpart 1817.73--Phased Acquisition
1817.7300 Definitions.
(a) Down-selection. In a phased acquisition, the process of
selecting contractors for later phases from among the preceding phase
contractors.
(b) Phased Acquisition. An incremental acquisition implementation
comprised of several distinct phases where the realization of program/
project objectives requires a planned, sequential acquisition of each
phase. The phases may be acquired separately, in combination, or
through a down-selection strategy.
(c) Progressive Competition. A type of down-selection strategy for
a phased acquisition. In this method, a single solicitation is issued
for all phases of the program. The initial phase contracts are awarded,
and the contractors for subsequent phases are expected to be chosen
through a down-selection from among the preceding phase contractors. In
each phase, progressively fewer contracts are awarded until a single
contractor is chosen for the final phase. Normally, all down-selections
are accomplished without issuance of a new, formal solicitation.
1817.7301 Down-selections in phased acquisitions.
1817.7301-1 Pre-solicitation planning.
(a) The rationale for the use of the down-selection technique shall
be thoroughly justified in the acquisition planning requirement.
Because the initial phase solicitation will also lead to subsequent
phase award(s), the decision to use a downselection strategy must be
made prior to release of the initial solicitation. Accordingly, all
phases must be addressed in the initial acquisition strategy planning
and documented in the acquisition plan or ASM minutes.
(b) If there is no direct link between successful performance in
the preceding
[[Page 56092]]
phase and successful performance in a subsequent phase, down-selection
is inappropriate. In this case, the phases should be contracted for
separately without a down-selection.
(c) With one exception, both the initial and subsequent phase(s) of
an acquisition down-selection process are considered to be full and
open competition if the procedures in 1817.7301-4 and 1817.7301-5 (if
using the progressive competition technique) are followed. If only one
contractor successfully completed a given phase and no other offers are
solicited for the subsequent phase, award of the subsequent phase may
be made only if justified by one of the exceptions in FAR 6.302 or one
of the exclusions in FAR 6.2, and only after compliance with the
synopsis requirements of FAR 5.202 and 5.205 and 1804.570-2.
1817.7301-2 Evaluation factors.
A separate set of evaluation factors must be developed for each
phase in a down-selection competition. Since these competitive down-
selection strategies anticipate that a preceding phase contractor will
be the subsequent phase contractor, the evaluation factors for initial
phase award must specifically include evaluation of the offerors'
abilities to perform all phases.
1817.7301-3 Down-selection milestones.
(a) When sufficient programmatic and technical information is
available to all potential offerors, proposal evaluation and source
selection activities need not be delayed until completion of a given
phase. These activities should commence as early as practicable. The
initial phase contracts should be structured to allow for down-
selection at a discrete performance milestone (e.g., a significant
design review or at contract completion) of a design maturity
sufficient to allow for an informed selection decision. This will avoid
time gaps between phases and eliminate unnecessary duplication of
effort.
(b) The appropriate contract structure must reflect program
technical objectives as well as schedule considerations. For example,
if a two-phased acquisition strategy calls for formal completion of
initial phase effort at Preliminary Design Review (PDR), but it is not
financially practical or technically necessary for subsequent phase
award and performance to carry all initial phase contractors through
PDR, the initial phase contracts should be structured with a basic
period of performance through a significant, discrete milestone before
PDR with a priced option for effort from that milestone to PDR. The
downselection would occur at the earlier milestone, the PDR option
exercised only for the down-selection winner, and the subsequent phase
performance begun at the completion of the PDR option.
1817.7301-4 Synopsis.
(a) Each phase of a phased acquisition not performed in-house must
be synopsized in accordance with FAR 5.201 and must include all the
information required by FAR 5.207. Time gaps between phases should be
minimized by early synopsis of subsequent phase competition. The
synopsis for the initial competitive phase should also state the
following:
(1) The Government plans to conduct a phased acquisition involving
a competitive down-selection process. (Include a description of the
process and the phases involved.)
(2) Competitions for identified subsequent phases will build on the
results of previous phases.
(3) The award criteria for subsequent phases will include
demonstrated completion of specified previous phase requirements.
(4) The Government expects that only the initial phase contractors
will be capable of successfully competing for the subsequent phase(s).
Proposals for the subsequent phase(s) will be requested from these
contractors.
(5) The Government intends to issue (or not issue) a new, formal
solicitation(s) for subsequent phase(s). If new solicitations are not
planned, the acquisition must be identified as a ``progressive
competition'' (see 1817.7301-5), and the mechanism for providing
pertinent subsequent phase proposal information (e.g., statements of
work, specifications, proposal preparation instructions, and evaluation
factors for award) must be described.
(6) Each subsequent phase of the acquisition will be synopsized in
accordance with FAR 5.201 and 5.203.
(7) Notwithstanding the expectation that only the initial phase
contractors will be capable of successfully competing for the
subsequent phase(s), proposals from all responsible sources submitted
by the specified due date will be considered. In order to contend for
subsequent phase awards, however, such prospective offerors must
demonstrate a design maturity equivalent to that of the prior phase
contractors. Failure to fully and completely demonstrate the
appropriate level of design maturity may render the proposal
unacceptable with no further consideration for contract award.
(b) In addition to the information in paragraph (a) of this
section, the synopsis for the subsequent phase(s) must identify the
current phase contractors.
1817.7301-5 Progressive competition.
(a) To streamline the acquisition process, the preferred approach
for NASA phased acquisitions is the ``progressive competition'' down-
selection technique in which new, formal solicitations are not issued
for phases subsequent to the initial phase. Subsequent phase proposals
are requested by less formal means, normally by a letter accompanied by
the appropriate proposal preparation and evaluation information.
(b) When using the progressive competition technique, if a
prospective offeror other than one of the preceding phase contractors
responds to the synopsis for a subsequent phase and indicates an
intention to submit a proposal, the contracting officer shall provide
to that offeror all the material furnished to the preceding phase
contractors necessary to submit a proposal. This information includes
the preceding phase solicitation, contracts, and system performance and
design requirements, as well as all proposal preparation instructions
and evaluation factors. In addition, the prospective offeror must be
advised of all requirements necessary for demonstration of a design
maturity equivalent to that of the preceding phase contractors.
(c) A key feature of the progressive competition technique is that
a formal solicitation is normally not required. However, when the
Government requirements or evaluation procedures change so
significantly after release of the initial phase solicitation that a
substantial portion of the information provided in the initial phase
synopsis, solicitation, or contracts is no longer valid, a new
solicitation shall be issued for the next phase.
(d) Subsequent phase proposals should be requested by a letter
including the following:
(1) A specified due date for the proposals along with a statement
that the late proposal information in paragraph (c)(3) of FAR 52.215-1,
Instructions to Offerors--Competitive Acquisition, applies to the due
date.
(2) Complete instructions for proposal preparation, including page
limitations, if any.
(3) Final evaluation factors.
(4) Any statement of work, specifications, or other contract
requirements that have changed since the initial solicitation.
[[Page 56093]]
(5) All required clause changes applicable to new work effective
since the preceding phase award.
(6) Any representations or certifications, if required.
(7) Any other required contract updates (e.g., small and small
disadvantaged business goals).
(e) Certain factors may clearly dictate that the progressive
competition technique should not be used. For example, if it is likely
that NASA may introduce a design concept independent of those explored
by the preceding phase contractors, it is also likely that a new,
formal solicitation is necessary for the subsequent phase and all
potential offerors should be solicited. In this circumstance,
progressive competition is inappropriate.
1817.7302 Contract clauses.
(a) The contracting officer shall insert the clause at 1852.217-71,
Phased Acquisition Using Down-Selection Procedures, in solicitations
and contracts for phased acquisitions using down-selection procedures
other than the progressive competition technique described in
1817.7301-5. The clause may be modified as appropriate if the
acquisition has more than two phases. The clause shall be included in
the solicitation for each phase and in all contracts except that for
the final phase.
(b) The contracting officer shall insert the clause at 1852.217-72,
Phased Acquisition Using Progressive Competition Down-Selection
Procedures, in solicitations and contracts for phased acquisitions
using the progressive competition technique described in 1817.7301-5.
The clause may be modified as appropriate if the acquisition has more
than two phases. The clause shall be included in the initial phase
solicitation and all contracts except that for the final phase.
PART 1834--MAJOR SYSTEM ACQUISITION
1834.003 [Amended]
3. Section 1834.003(a) is revised to read as follows:
1834.003 Responsibilities.
(a) NASA's implementation of OMB Circular No. A-109, Major Systems
Acquisitions, and FAR Part 34 is contained in this part and in NASA
Policy Directive (NPD) 7120.4, ``Program/Project Management,'' and NASA
Procedures and Guidance (NPG) 7120.5, `` NASA Program and Project
Management Processes and Requirements''.
1834.70 [Removed]
4. Subpart 1834.70 is removed.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1852.217-71 and 1852.217-72 [Added]
5. Sections 1852.217-71 and 1852.217-72 are added to read as
follows:
1852.217-71 Phased acquisition using down-selection procedures.
As prescribed in 1817.7302(a), insert the following clause:
Phased Acquisition Using Down-Selection Procedures (Insert Month
and Year of Federal Register Publication)
(a) This solicitation is for the acquisition of ________ [insert
Program title]. The acquisition will be conducted as a two-phased
procurement using a competitive down-selection technique between
phases. In this technique, two or more contractors will be selected
for Phase 1. It is expected that the single contractor for Phase 2
will be chosen from among these contractors after a competitive
down-selection.
(b) Phase 1 is for the ________ [insert purpose of phase]. Phase
2 is for ________ [insert general Phase 2 goals].
(c) The competition for Phase 2 will be based on the results of
Phase 1, and the award criteria for Phase 2 will include successful
completion of Phase 1 requirements.
(d) NASA will issue a separate, formal solicitation for Phase 2
that will include all information required for preparation of
proposals, including the final evaluation factors.
(e) Phase 2 will be synopsized in the Commerce Business Daily
(CBD) in accordance with FAR 5.201 and 5.203 unless one of the
exceptions in FAR 5.202 applies. Notwithstanding NASA's expectation
that only the Phase 1 contractors will be capable of successfully
competing for Phase 2, all proposals will be considered. Any other
responsible source may indicate its desire to submit a proposal by
responding to the Phase 2 synopsis, and NASA will provide that
source a solicitation.
(f) To be considered for Phase 2 award, offerors must
demonstrate a design maturity equivalent to that of the Phase 1
contractors. This, demonstration shall include the following Phase 1
deliverables upon which Phase 2 award will be based: ________
[(insert the specific Phase 1 deliverables]. Failure to fully and
completely demonstrate the appropriate level of design maturity may
render the proposal unacceptable with no further consideration for
contract award.
(g) The following draft Phase 2 evaluation factors are provided
for your information. Please note that these evaluation factors are
not final, and NASA reserves the right to change them at any time up
to and including the date upon which Phase 2 proposals are
solicited.
[Insert draft Phase 2 evaluation factors (and subfactors and
elements, if available), including demonstration of successful
completion of Phase 1 requirements.]
(h) Although NASA will request Phase 2 proposals from Phase
contractors, submission of the Phase 2 proposal is not a requirement
of the Phase 1 contract. Accordingly, the costs of preparing these
proposals shall not be a direct charge to the Phase 1 contract or
any other Government contract.
(i) The anticipated schedule for conducting this phased
procurement is provided for your information. These dates are
projections only and are not intended to commit NASA to complete a
particular action at a given time. [Insert dates below].
Phase 1 award--
Phase 2 synopsis--
Phase 2 proposal requested--
Phase 2 proposal receipt--
Phase 2 award--
(End of clause)
1852.217-72 Phased acquisition using progressive competition down-
selection procedures.
As prescribed in 1817.7302(b), insert the following clause:
Phased Acquisition Using Progressive Competition Down-Selection
Procedures (Insert Month and Year of Federal Register Publication)
(a) This solicitation is for the acquisition of ________ [insert
Program title]. The acquisition will be conducted as a two-phased
procurement using a progressive competition down-selection technique
between phases. In this technique, two or more contractors will be
selected for Phase
1. It is expected that the single contractor for Phase 2 will be
chosen from among these contractors after a competitive down-
selection.
(b) Phase 1 is for the ________ [insert purpose of phase]. Phase
2 is for ________ [insert general Phase 2 goals].
(c) The competition for Phase 2 will be based on the results of
Phase 1, and the award criteria for Phase 2 will include successful
completion of Phase 1 requirements.
(d) NASA does not intend to issue a separate, formal
solicitation for Phase 2. Instead, Phase 2 proposals will be
requested from the Phase 1 contractors by means of ________
[indicate method of requesting proposals, e.g., by a letter]. All
information required for preparation of Phase 2 proposals, including
the final evaluation criteria and factors, will be provided at that
time.
(e) Phase 2 will be synopsized in the Commerce Business Daily
(CBD) in accordance with FAR 5.201 and 5.203 unless one of the
exceptions in FAR 5.202 applies. Notwithstanding NASA's expectation
that only the Phase 1 contractors will be capable of successfully
competing for Phase 2, all proposals will be considered. Any other
responsible source may indicate its desire to submit a proposal by
responding to the Phase 2 synopsis, and NASA will provide that
source to all the material furnished to the Phase 1 contractors that
is necessary to submit a proposal.
(f) To be considered for Phase 2 award, offerors must
demonstrate a design maturity equivalent to that of the Phase 1
contractors.
[[Page 56094]]
This, demonstration shall include the following Phase 1 deliverables
upon which Phase 2 award will be based: ________ [insert the
specific Phase 1 deliverables]. Failure to fully and completely
demonstrate the appropriate level of design maturity may render the
proposal unacceptable with no further consideration for contract
award.
(g) The following draft Phase 2 evaluation factors are provided
for your information. Please note that these evaluation factors are
not final, and NASA reserves the right to change them at any time up
to and including the date upon which Phase 2 proposals are
requested. Any such changes in evaluation factors will not
necessitate issuance of a new, formal solicitation for Phase 2.
[Insert draft Phase 2 evaluation factors (and subfactors and
elements, if available), including demonstration of successful
completion of Phase 1 requirements.]
(h) Although NASA will request Phase 2 proposals from Phase 1
contractors, submission of the Phase 2 proposal is not a requirement
of the Phase 1 contract. Accordingly, the costs of preparing these
proposals shall not be a direct charge to the Phase 1 contract or
any other Government contract.
(i) The anticipated schedule for conducting this phased
procurement is provided for your information. These dates are
projections only and are not intended to commit NASA to complete a
particular action at a given time. [Insert dates below].
Phase 1 award--
Phase 2 synopsis--
Phase 2 proposal requested--
Phase 2 proposal receipt--
Phase 2 award--
(End of clause)
1852.234-70 and 1852.234-71 [Removed]
6. Sections 1852.234-70 and 1852.234-71 are removed.
[FR Doc. 98-28240 Filed 10-20-98; 8:45 am]
BILLING CODE 7510-01-P
