[Federal Register Volume 61, Number 178 (Thursday, September 12, 1996)]
[Proposed Rules]
[Pages 48380-48397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23392]
[[Page 48380]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 14, 15, 36, 52, and 53
[FAR Case 95-029]
RIN 9000-AH21
Federal Acquisition Regulation; Part 15 Rewrite--Phase I
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule and notice of public meeting.
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SUMMARY: This proposed rule contains the Phase I rewrite of Federal
Acquisition Regulation Part 15, Contracting by Negotiation. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993. This is
not a major rule under 5 U.S.C. 804.
DATES: Public Meeting: A public meeting will be conducted at the
address shown below starting at 10 a.m. to 5:00 p.m., local time, on
October 17, 1996.
Evening Session: Requests for an evening meeting should be made on
or before September 27, 1996.
Statements: Statements from interested parties for presentation at
the public meeting should be submitted to the GSA address below on or
before October 8, 1996.
Comments: Comments should be submitted on or before November 12,
1996 to be considered in the formulation of a final rule.
ADDRESSES: Comments: Interested parties should submit written comments
to: General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 95-029 in all correspondence related to this
case.
Public Meeting: The location of the public meeting is the National
Aeronautics and Space Administration Auditorium, 300 E Street, SW,
First Floor, Washington, DC 20546. Use the entrance at 4th & E Streets.
Evening Session: Send requests for an evening meeting to: Ms.
Melissa Rider, DAR Council, Attn: IMD 3D139, PDUSD(A&T)DP/DAR, 3062
Defense Pentagon, Washington, DC 20301-3062; fax (703) 602-0350.
Internet Access: This proposed rule will also be posted on the
Acquisition Reform Network (ARNET) at www.Arnet.gov. Comments may be
submitted electronically at that address and will be considered
official public comments.
FOR FURTHER INFORMATION CONTACT: Individuals wishing to attend the
meeting, including individuals wishing to make presentations on the
topic scheduled for discussion, should contact the Part 15 Rewrite
Committee Chair, Ms. Melissa Rider (703) 602-0131; fax (703) 602-0350.
For general information, contact Ms. Victoria Moss at (202) 501-4764,
or the FAR Secretariat, Room 4037, GS Building, Washington, DC 20405
(202) 501-4755. Please cite FAR case 95-029.
SUPPLEMENTARY INFORMATION:
A. Background
On January 29, 1996, the FAR Council tasked an ad hoc interagency
committee to rewrite FAR Part 15, Contracting by Negotiation. The
rewrite will be accomplished in two phases. Phase I consists of
rewriting FAR Subparts 15.0, 15.1, 15.2, 15.3, 15.4, 15.6, and 15.10
covering acquisition techniques and source selection.
The FAR Council and the Part 15 Rewrite Committee are providing a
forum for the exchange of ideas and information with Government and
industry personnel by holding a public meeting and soliciting comments.
The goal is to ensure an open dialogue between the Government and the
general public on this important initiative. Interested parties are
invited to present statements or comments on the Phase I proposed
rewrite at the public meeting.
An evening session is also being considered to allow small
businesses and other interested parties a greater opportunity to attend
and present comments. Those who would find an evening session easier to
attend should contact Ms. Melissa Rider at the address listed above. If
there is sufficient interest, an evening session will be scheduled and
announced in a separate Federal Register notice.
B. Case Summary
The proposed rule revises fundamental concepts and processes in the
current FAR Part 15 and introduces new policies. In addition, a more
appropriate sequencing of information has been adopted to facilitate
use. The proposed rule does not alter the full and open competition
provisions of FAR Part 6. The proposed rule is Phase I of a two-phase
rewrite of FAR Part 15. Phase II will cover pricing-related issues in
FAR Subparts 15.7, 15.8, and 15.9 and unsolicited proposals in FAR
Subpart 15.5.
The committee believes that the spirit of the National Performance
Review, the Federal Acquisition Streamlining Act of 1994, and the
Federal Acquisition Reform Act of 1995 support an aggressive approach
to the rewrite. The committee reviewed the history of the current
regulation, including archive copies of the Armed Services Procurement
Regulation (ASPR), Defense Acquisition Regulation (DAR), Defense
Acquisition Regulations Council files documenting previous changes to
the regulations, GAO and Boards of Contract Appeals decisions, statutes
and supporting legislative histories, the archives of the Acquisition
Law Advisory Panel to the United States Congress (``Section 800
Panel''), SWAT team recommendations, results of a 1990 GSA survey on
improving the FAR, and recommendations of the Second Hoover Commission
and the Packard Commission. Comments considered in drafting this rule
were received--
1. During a public meeting held on January 25, 1996, and public
comments received in response to three Federal Register notices (60 FR
63023, December 8, 1995; 60 FR 65360, December 19, 1995; and 60 FR
67113, December 28, 1995);
2. Over the Acquisition Reform Network (an Internet forum);
3. From other Government agencies, the DAR Council, the CAAC, and
the Office of Federal Procurement Policy;
4. In response to other notices of the rewrite in various print
media and conferences; and
5. From Government fora such as the Front-line Professional's Forum
and the Federal Procurement Executive Association.
C. Summary of Changes
Major policy shifts in this proposed rule include--
A narrower definition of ``discussions'' limited to
communications after establishment of the competitive range;
A shift in competitive range policy to encourage retaining
only the offerors with the greatest likelihood of award and allowing
the contracting officer to further limit the competitive range in the
interest of efficiency;
Encouragement of communication with industry throughout
the solicitation process to ensure competitive range determinations are
informed decisions. The rule allows disclosure of perceived
deficiencies
[[Page 48381]]
before establishment of the competitive range to resolve ambiguities
and other concerns. These communications are not ``discussions.''
Elimination of ``minor clarifications'' except for use in
award without discussions; and
Revision of the rules governing late proposals for
negotiated acquisitions to make the offeror responsible for timely
delivery of its offer, and to allow late offers to be considered if
doing so is in the best interests of the Government.
The proposed rule also specifically authorizes practices currently
in use at some agencies including--
Comparison of one offer to another; and
Release of the Government estimate to all offerors;
Changes made to support streamlined source selections include--
Additional discussion of the concept of fairness in the
guiding principles at FAR 1.102-2(c);
A new definition of ``best value'' at FAR Part 2;
A description of the two most common source selection
processes--award to the low price technically acceptable offeror, and
tradeoffs among cost and other factors;
Authorization to use techniques such as multiphase
proposals or oral presentations. These processes and techniques are
addressed at 15.2 and comply with Section 18 of the Office of Federal
Procurement Policy (OFPP) Act and Sections 8(e), (f), and (g) of the
Small Business Act;
Guidance on communications between the Government and
industry prior to release of the solicitation. Agencies are encouraged
to share available information freely with industry, within the
constraints of the prohibition on giving information necessary to
prepare a proposal to one interested party without sharing the
information with all other interested parties; and
A new Model Contract Format (MCF), based on a joint Army/
Air Force proposal, that is proposed to replace the uniform contract
format. The MCF format has only six sections. The new format will
require a change to existing automated systems.
The greatest challenge to the committee was addressing the concerns
that traditionally have been raised under the concept of fairness,
while maintaining an acquisition process that promotes best value to
the taxpayers. This challenge was perhaps most evident in deliberations
regarding the treatment of ``discussions.'' The committee believes that
the requirement in the Competition in Contracting Act (CICA) that
discussions be held with all offerors in the competitive range does not
require that such discussions be held an equal number of times with all
offerors. In the past, discussions were conducted as ``rounds of
discussions,'' with submissions of revised proposals signaling the end
of each round. Under that approach, the Government was compelled to
reopen discussions with all offerors in the competitive range, even
when discussions were only needed with some of those offerors. That
process is burdensome, expensive, and time consuming for both the
Government and industry. The committee abandoned the concept of rounds
of discussion and eliminated that portion of the current definition
which provided for best and final offers, so that both industry and
Government could rely more on agreements reached during discussions
without requiring offerors to develop revised proposals. However, the
contracting officer may request proposal revisions as often as needed,
during discussions.
Refining the definition of ``discussions'' resulted in a disconnect
with the concept of communications prior to establishment of the
competitive range. In this area, the committee believed increased
communications with industry could be particularly beneficial. However,
it is necessary to provide guidelines for those communications in order
to preserve fairness in the contracting process. The committee decided
that those communications should be used to obtain information to
understand fully the offeror's intent and to facilitate the
Government's decision either to award without discussions or to
determine the competitive range. In order to make the communications
effective, the committee determined that the information obtained could
be used in proposal evaluation. However, changes to the offeror's
proposal, other than correction of mistakes, would not be permitted.
Additionally, the committee reaffirmed the flexibility available to
the contracting officer for determining what past performance
information should be included as part of the proposal. The committee
believes the contracting officer is in the best position to determine
whether and when to obtain information regarding corrective actions
taken to remedy poor past performance. To that end, the existing
regulation provides the contracting officer with the greatest amount of
flexibility in exercising discretion. While, as a general matter, it is
usually a more accurate indicator to look at trends in an offeror's
actual performance rather than on promises or otherwise untested
changes (the effectiveness of which is yet unknown), the rule allows
the contracting officer to ask the offerors to submit corrective action
information as part of their proposals or to request the information at
any time following receipt of proposals.
D. Regulatory Flexibility Act
The proposed changes may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the proposed
rule revises fundamental concepts and processes in the current FAR Part
15 and introduces new policies. The goals of this rewrite are to infuse
into the source selection process innovative techniques designed to
simplify the process and produce better value, and to eliminate
regulations that impose unnecessary burdens on industry and Government
contracting officers.
The proposed rule will apply to all large and small entities
(including educational and nonprofit entities), that offer supplies or
services to the Government in competitive negotiated acquisitions.
Aspects of the proposed rule which may impact small entities are:
Making a shift in competitive range policy to encourage retaining only
those offerors with the greatest likelihood of award rather than all
those with a reasonable chance of award; allowing the contracting
officer to limit the competitive range in the interest of efficiency;
prohibiting cost analysis when contracting on a fixed-price basis
without cost incentives, unless the contracting officer has reason to
believe that the proposed prices are not reasonable; requiring that
evaluation factors established for solicitations provide for meaningful
evaluations of competing proposals; rewriting past performance
requirements using plain English; allowing for increased communication
between the Government and industry earlier in the acquisition process
to ensure industry's understanding of Government requirements and the
Government's understanding of firms' proposals; eliminating the need
for firms to prepare revised proposals reflecting agreements reached
during discussions; allowing discussions to remain open until a
contract is awarded to simplify making minor adjustment to successful
offerors' proposals; allowing the Government to reveal the cost or
price that its analysis, market research, and other reviews have
identified for an acquisition; and simplifying the process used to
amend solicitations after proposals have been
[[Page 48382]]
received. The rule proposes to streamline source selection procedures,
thereby creating a more efficient process that benefits both private
and public sectors.
OFPP believes the proposed rule reduces Government regulations that
establish requirements for the way Government deals with those seeking
to do business with it. Such deregulation reflects the spirit and
intent of the Regulatory Flexibility Act. OFPP further believes that
the changes are good for small businesses; that there are many small
businesses that do not do business with the Government because of the
complexity of offering, evaluation and award, that will benefit from
these changes.
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared
and will be provided to the Chief Counsel for Advocacy for the Small
Business Administration. A copy of the IRFA may be obtained from the
FAR Secretariat. Comments are invited. Comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and
should cite 5 U.S.C. 601, et seq. (FAR Case 95-029), in correspondence.
E. Paperwork Reduction Act
The Paperwork Reduction Act applies because the rule revises
existing information collection requirements. Accordingly, a request
for amendments of information collection requirements under Office of
Management and Budget (OMB) control numbers 9000-0037, 9000-0044, and
9000-0048 will be submitted to OMB under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1, 2, 14, 15, 36, 52, and 53
Government procurement.
Dated: September 9, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 1, 2, 14, 15, 36, 52,
and 53 be amended as set forth below:
1. The authority citation for 48 CFR Parts 1, 2, 14, 15, 36, 52,
and 53 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATION SYSTEM
2. Section 1.102-2 is amended by adding paragraph (c)(3) to read as
follows:
1.102 Performance standards.
* * * * *
(c) * * *
(3) All offerors and contractors are entitled to fair treatment.
Fair treatment requires that the members of the acquisition team abide
by the solicitation and acquisition plan (if any) and not act in an
arbitrary or capricious manner when dealing with offerors and
contractors. Fairness does not mean that offerors and contractors of
differing capabilities, past performance, or other relevant factors,
must be treated the same.
PART 2--DEFINITIONS OF WORDS AND TERMS
3. Section 2.101 is amended by inserting, in alphabetical order,
the definition ``Best value'' to read as follows:
2.101 Definitions
* * * * *
Best value means an offer or quote which is most advantageous to
the Government, cost or price and other factors considered.
* * * * *
PART 14--SEALED BIDDING
4. Section 14.404-1 is amended by adding paragraph (f) to read as
follows:
14.404-1 Cancellation of invitations after opening.
* * * * *
(f) When the agency head has determined, in accordance with 14.404-
1(e)(1), that an invitation for bids should be canceled and that use of
negotiation is in the Government's interest, the contracting officer
may negotiate and make award without issuing a new solicitation,
provided, each responsible bidder in the sealed-bid acquisition has
been given notice that negotiations will be conducted and has been
given an opportunity to participate in negotiations.
PART 15--CONTRACTING BY NEGOTIATION
5. The Table of Contents for Part 15 is revised to read as follows:
Sec.
Subpart 15.0--General
15.000 Scope of part.
15.001 Definitions.
15.002 Negotiated acquisition.
Subpart 15.1--Source Selection Processes and Techniques
15.100 Scope of subpart.
15.101 Lowest price technically acceptable process.
15.102 Tradeoff process.
15.103 Multiphase acquisition technique.
15.104 Oral presentations.
Subpart 15.2--Solicitation and Receipt of Proposals and Quotations
15.200 Scope of subpart.
15.201 Presolicitation exchanges with industry.
15.202 Requests for proposals.
15.203 Model contract format.
15.203-1 Section I, Cover sheet/supplemental information.
15.203-2 Section II, Acquisition description.
15.203-3 Section III, Financial and administrative information.
15.203-4 Section IV, Contract clauses.
15.203-5 Section V, Performance requirements.
15.203-6 Section VI, Proposal evaluation and submission information.
15.204 Issuing solicitations.
15.205 Amending the solicitation.
15.206 Receipt of proposals and requests for information.
15.207 Submission, modification, revision, and withdrawal of
proposals.
15.208 Solicitation provisions and contract clause.
15.209 Forms.
Subpart 15.3--Unsolicited Proposals
15.300 Scope of subpart.
15.301 Definitions.
15.302 Policy.
15.303 General.
15.304 Advance guidance.
15.305 Content of unsolicited proposals.
15.306 Agency procedures.
15.306-1 Receipt and initial review.
15.306-2 Evaluation.
15.307 Contracting methods.
15.308 Prohibitions.
15.309 Limited use of data.
Subpart 15.4--Source Selection
15.400 Scope of subpart.
15.401 Definitions.
15.402 Source selection objective.
15.403 Responsibilities.
15.404 Evaluation factors and subfactors.
15.405 Proposal evaluation.
15.406 Competitive range.
15.407 Communications with offerors.
15.408 Award without discussions.
15.409 Proposal revisions.
15.410 Source selection.
Subpart 15.5--Make-or-Buy Programs
15.500 Scope of subpart.
15.501 Definitions.
15.502 General.
15.503 Acquisitions requiring make-or-buy programs.
15.504 Items and work included.
15.505 Solicitation requirements.
15.506 Evaluation, negotiation, and agreement.
15.507 Incorporating make-or-buy programs in contracts.
15.508 Contract clause.
Subpart 15.6--Price Negotiation
15.600 Scope of subpart.
15.601 Definitions.
15.602 Policy.
15.603 General.
15.604 Cost or pricing data and information other than cost or
pricing data.
15.604-1 Prohibition on obtaining cost or pricing data.
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15.604-2 Requiring cost or pricing data.
15.604-3 [Reserved]
15.604-4 Certificate of Current Cost or Pricing Data.
15.604-5 Requiring information other than cost or pricing data.
15.604-6 Instructions for submission of cost or pricing data or
information other than cost or pricing data.
15.604-7 Defective cost or pricing data.
15.604-8 Contract clauses and solicitation provisions.
15.605 Proposal analysis.
15.605-1 General.
15.605-2 Price analysis.
15.605-2 Cost analysis.
15.605-4 Technical analysis.
15.605-5 Field pricing support.
15.606 Subcontract pricing considerations.
15.606-1 General.
15.606-2 Prospective subcontractor cost or pricing data.
15.606-3 Field pricing reports.
15.607 Prenegotiation objectives.
15.608 Price negotiation memorandum.
15.609 Forward pricing rates agreements.
15.610 Should-cost review.
15.610-1 General.
15.610-2 Program should-cost review.
15.610-3 Overhead should-cost review.
15.611 Estimating systems.
15.612 Unit prices.
15.612-1 General.
15.612-2 Contract clause.
15.613 [Reserved]
15.614 Unbalanced offers.
Subpart 15.7--Profit
15.700 Scope of subpart.
15.701 General.
15.702 Policy.
15.703 Contracting officer responsibilities.
15.704 Solicitation provision and contract clause.
15.705 Profit-analysis factors.
15.705-1 Common factors.
15.705-2 Additional factors.
Subpart 15.8--Preaward, Award, and Postaward Notifications, Protests,
and Mistakes
15.801 Definition.
15.802 Applicability.
15.803 Notifications to unsuccessful offerors.
15.804 Award to successful offeror.
15.805 Preaward debriefing of offerors.
15.806 Postaward debriefing of offerors.
15.807 Protests against award.
15.808 Discovery of mistakes.
15.809 Forms.
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
6. Subpart 15.0, is added, consisting of 15.000, which is revised,
and 15.001 and 15.002 which are added to read as set forth below.
Subpart 15.1 is revised and Subpart 15.2 is added to read as follows:
Subpart 15.0--General
15.000 Scope of part.
This part prescribes policies and procedures governing acquisitions
that do not use sealed bid or simplified acquisition procedures,
including both competitive and sole source acquisitions.
15.001 Definitions.
As used in this part--
Proposal modification is a change made to a proposal before the
solicitation is closing date and time; made in response to an
amendment; or made to correct a mistake at any time before award.
Revision is a change to a proposal requested by a contracting
officer as the result of discussions.
15.002 Negotiated acquisition.
This part covers negotiated acquisition processes for competitive
and sole source acquisitions (see Part 6.303-1).
(a) Sole source acquisitions. When contracting in a sole source
environment, contracting officers are encouraged to follow the
procedures in this part to the maximum practicable extent, consistent
with an efficient process. Sole source acquisitions should rely on
detailed communications with offerors rather than formal procedures.
The RFP should be tailored to remove unnecessary information and
requirements (e.g. evaluation criteria, voluminous proposal preparation
instructions); however, the Model Contract Format should be used,
whenever practicable.
(b) Competitive acquisitions. When contracting in a competitive
environment, the procedures of this part are intended to minimize the
complexity of the solicitation, evaluation, the source selection
decision to the greatest practicable extent, while maintaining a
process designed to foster an impartial and comprehensive evaluation of
offerors' proposals, leading to selection of the offer representing the
best value to the Government.
Subpart 15.1--Source Selection Processes and Techniques
15.100 Scope of subpart.
This subpart describes some acquisition processes and techniques
which may be used, singly or in combination with others, to design
acquisition strategies suitable for the complexity of the Government's
requirement and the amount of Government resources available to conduct
the source selection. These alternatives should be considered during
acquisition planning. The source selection authority (SSA) should
select the process most appropriate to the particular acquisition that
is expected to result in the best value.
15.101 Lowest price technically acceptable process.
(a) This process permits communications with offerors and requires
fewer resources than a tradeoff process (see 15.102).
(b) If the Source Selection Authority elects to use a lowest price
technically acceptable process, the following evaluation considerations
apply:
(1) The threshold(s) of technical acceptability shall be set forth
in the solicitation. The solicitation must specify that award will be
made on the basis of lowest evaluated price of proposals meeting or
exceeding the threshold(s).
(2) This process does not permit tradeoffs between price and non-
cost factors/subfactors. The non-cost evaluation is done on a pass/fail
basis.
(3) If discussions are necessary, the Government's concerns shall
be discussed with offerors and a revised proposal may be requested as
described in 15.409(c).
15.102 Tradeoff process.
(a) A tradeoff acquisition process is more flexible, but also more
resource intensive, than a low price technically acceptable acquisition
process. This process is appropriate when the SSA believes that the
best value may not be the lowest price offer.
(b) If the SSA elects to use a tradeoff process, the following
evaluation considerations apply:
(1) All factors and significant subfactors that will affect
contract award and their relative importance shall be clearly stated in
the solicitation.
(2) The solicitation shall state whether all evaluation factors
other than cost or price when combined are significantly more
important, approximately equal or significantly less important than
cost or price.
(3) This process requires tradeoffs between cost or price and non-
cost factors/subfactors and permits the Government to accept other than
the lowest priced technically acceptable offer. Specific tradeoffs need
not be described in terms of cost or price impacts nor do the tradeoffs
need to be quantified in any other manner.
15.103 Multiphase acquisition technique.
(a) General. Multiphase source selection may be appropriate when
the submission of full proposals at the beginning of a source selection
would be burdensome for offerors to prepare and for Government
personnel to evaluate. Using multiphase techniques, agencies may seek
limited information initially, make one or more down-selects, and
request full proposals from a limited number of offerors.
[[Page 48384]]
(b) First phase notice. In the first phase, the Government shall
publish a notice (see 5.205) that provides a general description of the
scope or purpose of the acquisition, identifies the criteria that will
be used to make the initial down-select decision, and solicits
responses. Alternatively, the Government may issue a solicitation that
provides a more specific description of the supplies or services to be
procured. The notice or solicitation may also inform offerors of the
evaluation criteria or process that will be used in subsequent down-
select decisions. The notice or solicitation shall contain sufficient
information to allow potential offerors to make an informed decision
about whether to participate in the acquisition. The notice or
solicitation shall advise offerors that failure to participate in the
first phase will make them ineligible to participate in subsequent
phases.
(c) First phase responses. Offerors shall submit the information
requested in the notice or solicitation described in paragraph (b) of
this section. Information sought in the first phase may be limited to a
statement of qualifications and other appropriate information (e.g.,
proposed technical concept, past performance information, limited
pricing information).
(d) First phase evaluation and down-select. The Government shall
evaluate all offerors' submissions in accordance with the criteria in
the notice or solicitation and make either a mandatory or advisory
down-select decision.
(1) The Government may make a ``mandatory'' down-select if it
identified the criteria or process that will be used to evaluate offers
in all phases and requested sufficient information (including cost
information) for there to be binding offers. A mandatory down-select
allows the Government to prohibit offerors from participating in
subsequent phases based on the evaluation criteria set forth in the
notice or solicitation.
(2) If the Government did not request sufficient information for
there to be binding offers that the Government could accept without
further submissions, the Government must make an ``advisory'' down-
select. In conducting an advisory down-select, the Government shall--
(i) Request selected offerors provide a proposal for the next phase
of the acquisition;
(ii) Inform offerors not selected that, based on the offeror's
initial submission, they are unlikely to receive an award and provide
them supporting rationale. Such offerors may, at their option, submit a
proposal for the second phase which the Government must evaluate; and
(iii) Debrief offerors as required by 15.805 and 15.806 only when
they have been formally excluded from the competition. Advisory down-
selects do not constitute such exclusion.
(e) Subsequent phases. Additional information shall be sought in
the second phase so that a mandatory down-select or competitive range
determination can be performed or an award made without discussions. If
the criteria to be used in making decisions in the second phase were
not stated in the original notice or the solicitation, they shall be
identified to all remaining offerors at the start of this phase. If
desired, the Government may conduct additional phases.
15.104 Oral presentations.
(a) Except for certifications, representations, and a signed offer
sheet (including any exceptions to the Government's terms and
conditions), the SSA may require offerors to submit all, or part of,
their proposals through oral presentations. Oral presentations may
occur either before or after a competitive range (if any) is
established. Generally, oral presentations are most beneficial when
they substitute for, rather than augment, written information.
(b)(1) In deciding which information to obtain through an oral
presentation, consider the following:
(i) Whether the information can be reasonably and adequately
presented to permit evaluation by the Government.
(ii) Whether there is a need to incorporate any of the information
into the resultant contract, and if so, the ease of incorporation; and
(iii) The impact oral presentations will have on the efficiency of
the competition.
(2) Information pertaining to such areas as an offeror's
capability, work plans or approaches, staffing resources, transition
plans, sample tasks or other tests may be suitable for oral
presentations.
(c) Where oral presentations are required, the solicitation shall
provide offerors with sufficient information to prepare them.
Accordingly, the solicitation may describe--
(1) The scope of the presentations, including the types of
information to be presented orally and the associated evaluation
criteria that will be used;
(2) The personnel that will be required to provide the oral
presentation(s);
(3) The requirements for, any limitations and/or prohibitions on,
the use of written material or other media to supplement the oral
presentations;
(4) The impact oral presentations will have on the small
businesses;
(5) The location at which the oral presentations will be made;
(6) The restrictions governing the time permitted for each oral
presentation; and
(7) The extent of communication that may occur between the
Government's participants and the offeror's representatives as part of
the oral presentations (e.g. will communications encompass
discussions).
Subpart 15.2--Solicitation and Receipt of Proposals and Information
15.200 Scope of subpart.
This subpart prescribes policies and procedures for--
(a) Preparing and issuing requests for proposals (RFP's) and
requests for information (RFI's); and
(b) Receiving proposals and information.
15.201 Presolicitation exchanges with industry.
(a) Exchange of information by all interested parties involved in
an acquisition from the earliest identification of a requirement
through release of the solicitation is encouraged. Interested parties
include potential offerors, end users, Government acquisition and
supporting personnel and others involved in the conduct or outcome of
the acquisition.
(b) The purpose of exchanging information is to improve the
understanding of Government requirements, thereby enhancing the
Government's ability to obtain quality products and services at
reasonable prices, and increase the efficiency in proposal preparation,
proposal evaluation, negotiation and contract award.
(c) Agencies are encouraged to promote early exchange of
information about future acquisitions. An early exchange of information
can efficiently and effectively identify and resolve concerns regarding
the acquisition strategy, including proposed contract type, terms and
conditions and acquisition planning schedules; the feasibility of the
requirement, including performance requirements, statements of work and
data requirements; the suitability of the proposal instructions and
evaluation criteria; the availability of reference documents and
information exchange approaches; and any other industry concerns or
questions. Techniques to promote early exchange of information
include--
[[Page 48385]]
(1) Industry or small business conferences;
(2) Public hearings;
(3) Market research, as described in FAR Part 10;
(4) One on one meetings with potential offerors (see paragraph
(f));
(5) Presolicitation notices;
(6) Draft RFPs;
(7) Requests for information (RFIs);
(8) Presolicitation or preproposal conferences; and
(9) Site visits.
(d) The special notices of procurement matters at 5.205(c) or
electronic notices may be used to publicize the Government's
requirement or solicit information from industry.
(e) Requests for Information (RFIs). This method may be used when
the Government does not intend to award a contract on the basis of the
solicitation but needs to obtain price, delivery, other market
information, or capabilities for planning purposes. Responses to these
notices are not offers and cannot be accepted by the Government to form
a binding contract.
(f) Government personnel may disclose general information about
agency mission needs and future requirements. If Government personnel
disclose specific information about a proposed acquisition which is
necessary for the preparation of proposals, that information shall be
made available to the public as soon as possible, but no later than the
next release of information in order to avoid creating an unfair
competitive advantage. When a presolicitation or preproposal conference
is conducted, distributed materials should be made available to
potential offerors, upon their requests.
15.202 Requests for Proposals.
(a) Requests for proposals (RFPs) are used in negotiated
acquisitions to communicate Government requirements to prospective
contractors and to solicit proposals. RFPs shall only be used when
there is a definite intention to award a contract, and therefore, shall
not be used as a solicitation for information or planning purposes.
RFPs shall, at a minimum, describe the--
(1) Government's requirement;
(2) Anticipated terms and conditions that will apply to the
contract;
(i) Contracting officers may allow offerors to propose alternative
terms and conditions, including a contract line item number (CLIN)
structure that is different from the model in the solicitation.
(ii) Since CLIN structure is often dictated by considerations such
as place of performance, or payment and funding requirements, the
potential impact of a changed CLIN structure shall be determined before
accepting any proposed alternative.
(3) Information requirements of the offeror's proposal;
(4) Factors and significant subfactors that will be used to
evaluate the proposal.
(b) An RFP may be issued for OMB Circular A-76 studies. See Subpart
7.3 for additional information regarding cost comparisons between
Government and contractor performance.
(c) In accordance with Subpart 4.5, contracting officers may
authorize use of electronic commerce for RFPs and receipt of proposals.
If electronic proposals are authorized, the RFP shall specify the
electronic commerce method(s) that offerors may use.
(d) Contracting officers may issue RFPs or receive proposals by
facsimile.
(1) In determining whether or not to use these methods, the
contracting officer shall consider such factors as--
(i) Anticipated proposal size and volume;
(ii) Urgency of the requirement;
(iii) Availability and suitability of electronic commerce methods;
and
(iv) Adequacy of administrative procedures and controls for
receiving, identifying, recording, and safeguarding facsimile
proposals, and ensuring their timely delivery to the designated
proposal delivery location.
(2) If facsimile proposals are authorized, contracting officers may
request offeror(s) to provide the complete, original signed proposal at
a later date.
(e) Letter RFPs may be used, when appropriate (e.g., a sole source
follow-on procurement). Use of a letter RFP does not relieve the
contracting officer from complying with other requirements of this
regulation. Letter RFPs should be as clear and concise as possible and,
as a minimum, contain the following:
(1) RFP number and date;
(2) Name, address, and telephone number of contracting office;
(3) Type of contract contemplated;
(4) Quantity, description, and required delivery dates for the
item;
(5) Applicable certifications and representations;
(6) Contract terms and conditions (reference to prior contract or
updates should be provided, as applicable);
(7) Instructions to offerors and evaluation criteria (for other
than sole-source actions);
(8) Offer due date; and
(9) Other relevant information; e.g., incentives, variations in
delivery schedule, any peculiar or different requirements, cost
proposal support, and different data requirements.
(f) Oral RFPs are authorized when processing a written solicitation
would delay the acquisition of supplies or services to the detriment of
the Government (e. g., perishable items and support of contingency
operations or other emergency situations).
(1) Use of an oral solicitation does not relieve the contracting
officer from complying with other requirements of this regulation.
(2) The contract files supporting oral solicitations shall
include--
(i) A justification for use of an oral solicitation;
(ii) Sources solicited, including the date, time, name of
individuals contacted, and prices offered; and
(iii) The solicitation number provided to the prospective
contractors.
(3) The information furnished to potential offerors under oral
solicitations should include that set forth in paragraph (e), to the
maximum extent practicable.
15.203 Model contract format.
(a) Contracting Officers should prepare solicitations and contracts
using the model contract format (MCF) outlined in Table 15-1 to the
maximum extent practicable. The use of the MCF facilitates preparation
of the solicitation and contract as well as reference to, and use of,
those documents by offerors, contractors, and contract administrators.
The MCF need not apply to the following acquisitions:
(1) Construction and Architect-engineer contracts (see FAR Part
36).
(2) Subsistence items.
(3) Supplies or services requiring special contract formats
prescribed elsewhere in this regulation that are inconsistent with the
MCF.
(4) Letter Request for Proposals (see 15.203(e)).
(5) Contracts exempted by the agency head or designee.
Table 15-1A--Model Contract Format
------------------------------------------------------------------------
Section Title
------------------------------------------------------------------------
I................................ Cover sheet/supplemental information.
II............................... Acquisition description.
III.............................. Financial and administrative
information.
IV............................... Contract clauses.
V................................ Performance requirements.
VI............................... Proposal evaluation and submission
information.
------------------------------------------------------------------------
Sec. 15.203-1 Section I, Cover sheet/supplemental information.
The solicitation cover sheet summarizes essential details about the
solicitation. The cover sheet is the first
[[Page 48386]]
page of the solicitation. The cover sheet shall include, as a minimum,
the following information:
(a) Brief description of the acquisition.
(b) Whether or not the acquisition is restricted to small business.
(c) Name, address and location of issuing activity, including room
and building where proposals must be submitted.
(d) Solicitation number.
(e) Date of issuance.
(f) Closing date and time.
(g) Number of pages.
(h) A Government point of contact and telephone number.
(i) Government designated period for acceptance of offers (in
days).
Sec. 15.203-2 Section II, Acquisition Description.
This section includes a summary description of the supplies and/or
services, and anticipated contract type, e.g., quantities, prices, item
number, national stock number/part number, title or name identifying
the supplies or services, and options.
Sec. 815.203-3 Section III, Financial and Administrative Information.
This section includes any required accounting and appropriation
data and information affecting payment and contract administration,
e.g., the small business subcontracting plan, tailored instructions
and/or special tailored requirements for property management,
packaging, packing, preservation, marking, inspection, acceptance, or
quality assurance.
15.203-4 Section IV, Contract Clauses.
This section includes all contract clauses not tailored
specifically for the acquisition that are incorporated by reference
(i.e., all standard clauses incorporated by reference, including those
with minimal fill-ins) or are not tailored but are required to be
inserted in full text. The text of clauses incorporated by reference
shall be available through the Internet or from the contracting
officer. If the contracting officer elects to include a clause in full
text, the clause shall be treated as if it were tailored (e.g., placed
in the financial and administrative information section). The
restrictions in 52.104 on use of standard clauses still apply.
15.203-5 Section V, Performance Requirements.
This section includes more detailed information as to what and when
the contractor is to deliver, e.g., the statement of work or its
equivalent, process requirements, data requirements or special
requirements for time and place of delivery.
15.203-6 Section VI, Proposal Evaluation and Submission Information.
(a) This section includes information on how the Government will
evaluate the proposal and what the proposal must include, e.g.,
representations and certifications, instructions to offerors, and
evaluation criteria.
(b) Upon award, the contracting officer shall not include section
VI in any resultant contract but shall retain it in the contract file.
15.204 Issuing solicitations.
(a) The contracting officer shall furnish copies of unclassified
solicitations to any party upon request.
(b) A master solicitation (see 14.203-3) may be used for negotiated
acquisitions.
15.205 Amending the solicitation.
(a) When, either before or after receipt of proposals, the
Government changes, relaxes, increases, or otherwise modifies its
requirements, the contracting officer shall issue an amendment to the
solicitation.
(b) Amendments issued before the established time and date for
receipt of proposals shall be issued to all parties receiving the
solicitation, and should be issued in the same manner as the
solicitation.
(c) Amendments issued after the established time and date for
receipt of proposal should be issued--
(1) To all offerors still eligible for award; and
(2) In the same manner as the solicitation.
(d) Oral notices may be used when time is of the essence. The
contracting officer shall document the contract file and formalize the
notice with an amendment.
(e) If a change is so substantial that it warrants a complete
revision of a solicitation, the contracting officer shall cancel the
original solicitation and issue a new one, regardless of the stage of
the acquisition.
(f) If the proposal considered to be most advantageous to the
Government (determined according to the established evaluation
criteria) involves a departure from the stated requirements, the
contracting officer shall provide all offerors an opportunity to submit
new or amended proposals on the basis of the revised requirements;
provided, that this can be done without revealing to the other offerors
the solution proposed in the original departure or any other
information that is entitled to protection (see 15.206(b) and
15.409(d)).
(g) At a minimum, the following information should be included at
the beginning of each amendment:
(1) Name and address of issuing activity.
(2) Solicitation number and date.
(3) Amendment number and date.
(4) Number of pages.
(5) Short description of the change being made.
(6) Government point of contact and phone number.
(7) Revision to solicitation closing date, if applicable.
15.206 Receipt of proposals and requests for information.
(a) Upon receipt at the location specified in the solicitation,
proposals and information received in response to an RFI shall be
marked with the date and time of receipt and be transmitted to the
appropriate source selection officials.
(b) Proposals shall be safeguarded from unauthorized disclosure
throughout the source selection process. See 3.104 for statutory
requirements and regulations related to the disclosure of proposal
information and source selection information (41 U.S.C. 423(d)).
Information received in response to an RFI shall also be safeguarded
from unauthorized disclosure.
(c) If a proposal received by the contracting officer in electronic
format is unreadable to the degree that conformance to the essential
requirements of the solicitation cannot be ascertained from the
document, the contracting officer immediately shall notify the offeror
and request retransmission of the proposal or, at the contracting
officer's discretion, resubmittal of the proposal in another format. If
the retransmitted proposal is still unreadable, it may be rejected.
15.207 Submission, modification, revision, and withdrawal of
proposals.
(a) Offerors are responsible for timely submission of proposals,
and any requested revisions or modifications to them, to the Government
office designated in the solicitation. Unless the solicitation states
another specific time, the time for receipt is 4:30 p.m., local time,
at the designated Government office on the date that proposals,
requested revisions or modifications are due.
(b) Proposals, modifications, and revisions received in the
designated Government office after the exact time specified are
``late'' but may be considered if doing so is in the best interests of
the Government. Government mishandling or fault need not be established
in order to accept a
[[Page 48387]]
late offer. The contracting officer shall promptly notify any offeror
if its proposal, modification, or revision was received late and
whether or not it will be considered, unless contract award is imminent
and the notice prescribed in 15.803(b) would suffice.
(c) Offerors may not revise proposals unless requested by the
contracting officer.
(d) Proposals may be withdrawn at any time before award. Written
proposals are withdrawn upon receipt by the contracting officer of a
written notice of withdrawal. Oral offers in response to oral
solicitations are withdrawn by the offeror's statement of withdrawal
made to the contracting officer, who then shall document the contract
file. Withdrawn proposals will be destroyed or returned to the offeror
at the offeror's request and expense.
15.208 Solicitation provisions and contract clause.
When contracting by negotiation--
(a) The contracting officer shall insert the provision at 52.215-1,
Instructions to Offerors--Competitive Acquisition, in all competitive
solicitations where the Government intends to award a contract without
discussions:
(1) If the Government intends to make award after discussions with
offerors within the competitive range, use the basic provision with its
Alternate I; and
(2) If the Government wishes to reserve the right for purposes of
efficiency to limit the competitive range to no more than a specific
number, use the basic provision with its Alternate II, or the basic
provision with both Alternates I and II.
(b) The contracting officer shall insert the clause at 52.215-2,
Audit and Records--Negotiation, in solicitations and contracts except--
(1) Acquisitions not exceeding the simplified acquisition threshold
in Part 13;
(2) Acquisitions for utility services at rates not exceeding those
established to apply uniformly to the general public, plus any
applicable reasonable connection charge (10 U.S.C. 2313, 41 U.S.C.
254d, and OMB Circular No. A-133); or
(3) Facilities acquisitions, where the contracting officer shall
use the clause with its Alternate I;
(4) Cost-reimbursement contracts with educational institutions and
other nonprofit organizations, the contracting officer shall use the
clause with its Alternate II; or
(5) When the examination of records by the Comptroller General is
waived in accordance with 25.901, the contracting officer shall use the
clause with its Alternate III.
(c) When issuing a solicitation for information or planning
purposes, the contracting officer shall insert the provision at 52.215-
3, Solicitation for Information or Planning Purposes, and clearly mark
on the face of the solicitation that it is for information or planning
purposes.
(d) The contracting officer shall insert the provision at 52.215-4,
Type of Business Organization, in all solicitations.
(e) The contracting officer shall insert the provision at 52.215-5,
Facsimile Proposals, in solicitations if facsimile proposals are
authorized (see 15.203(d)).
(f) The contracting officer shall insert the provision at 52.215-6,
Place of Performance, in solicitations except those in which the place
of performance is specified by the Government.
(g) The contracting officer shall insert the provision at 52.215-7,
Annual Representations and Certifications--Negotiation, in
solicitations if annual representations and certifications are utilized
(see 14.213).
(h) The contracting officer shall insert the clause at 52.215-8,
Order of Precedence, in all solicitations and contracts.
15.209 Forms.
Forms are not needed to prepare solicitations described in this
subpart. The following forms may be used at the discretion of the
contracting officer:
(a) Optional Form XX, Solicitation and Offer--Negotiated
Acquisition, may be used to issue RFPs and RFQs.
(b) Optional Form XY, Amendment of Solicitation, may be used to
amend solicitations of negotiated contracts.
(c) Standard Forms 30 and 33 may be used, if appropriately modified
(e.g., substitute the MCF for the Uniform Contract Format Table of
Contents). If so modified, the contracting officer shall remove the
form designation (i.e., standard form number).
(d) To promote identification and proper handling of proposals,
Optional Form 17, Offer Label, may be furnished with each request for
proposals. The form may be obtained from the General Services
Administration (see 53.107).
Subpart 15.3--[Redesignated as Subpart 15.3]
7. Subpart 15.5 is redesignated as Subpart 15.3
8. Subpart 15.4 is revised to read as follows:
Subpart 15.4--Source Selection
15.400 Scope of subpart.
This subpart prescribes policies and procedures for selection of a
source or sources in competitive negotiated acquisitions.
15.401 Definitions.
Deficiency, as used in this subpart is a single material failure to
meet a Government requirement or a single flaw that appreciably
increases the risk of unsuccessful contract performance.
Discussion, as used in this subpart, means communication after
establishment of the competitive range between the contracting officer
and an offeror in the competitive range.
15.402 Source selection objective.
The objective of source selection is to select the offer which
represents the best value. Typically, the best value would be achieved
through--
(a) A tradeoff process used to select the most advantageous offer
by evaluating and comparing factors in addition to cost or price. A
best value decision in these acquisitions reflects the Government's
willingness to accept other than the lowest priced acceptable offer if
the perceived benefits of the higher priced offer merit the additional
cost; or
(b) A lowest price technically acceptable process is used where it
has been determined that the Government's interests are best served by
selection of the lowest price offer that is evaluated (on a pass/fail
basis) as technically acceptable used to select the most advantageous
offer where proposals are evaluated on a pass/fail basis, and award is
made to the lowest cost (price) technically acceptable offeror.
Proposals need not be ranked under this process nor are communications
precluded.
Sec. 15.403 Responsibilities.
(a) Agency heads are responsible for source selection. The
contracting officer is designated as the source selection authority,
unless the agency head appoints another individual for a particular
procurement or class of procurements.
(b) The source selection authority shall--
(1) Establish an evaluation team, tailored for the particular
procurement, that includes an appropriate mix of contracting, legal,
logistics, technical, and other expertise to assure a comprehensive
evaluation of offers;
(2) Approve the source selection plan before solicitation release,
if agency procedures require a plan;
(3) Ensure consistency among the solicitation requirements, notices
to offerors, proposal preparation instructions, evaluation factors and
subfactors, solicitation provisions or contract clauses, and data
requirements;
[[Page 48388]]
(4) Ensure that proposals are evaluated based solely on the factors
and subfactors contained in the solicitation (10 U.S.C. 2305(b)(1) and
41 U.S.C. 253b(d)(2));
(5) Consider the recommendations of advisory boards or panels (if
any); and
(6) Select the source or sources whose proposal is the best value
to the Government (10 U.S.C. 2305(b)(4)(B) and 41 U.S.C. 253b(d)(2));
(c) The contracting officer shall--
(1) After release of a solicitation, serve as the focal point for
inquiries from actual or prospective offerors;
(2) After receipt of proposals, control and conduct communications
with offerors in accordance with 15.409; and
(3) Award the contract(s).
15.404 Evaluation factors and subfactors.
(a) The criteria upon which the award decision is based consist of
evaluation factors and subfactors. The selected factors and subfactors
shall be tailored to the acquisition.
(b) Use factors and subfactors that--
(1) Represent the key areas of importance and emphasis to be
considered in the source selection decision, and
(2) Support meaningful discrimination and comparison between and
among competing proposals.
(c) If a multiphase solicitation technique will be used, the
factors and subfactors (if any) that apply to the initial phase shall
be set forth in the notice or solicitation.
(d) The evaluation factors and significant subfactors that apply to
an acquisition and their relative importance, are within the broad
discretion of agency acquisition officials, subject to the following
requirements:
(1) Price or cost to the Government shall be evaluated in every
source selection (10 U.S.C. 2305(a)(3)(A)(ii) and 41 U.S.C.
253a(c)(1)(B)).
(2) The quality of the product or service shall be addressed in
every source selection through consideration of one or more non-cost
evaluation factors such as past performance, compliance with
solicitation requirements, technical excellence, management capability,
personnel qualifications, and prior experience (10 U.S.C.
2305(a)(3)(A)(i) and 41 U.S.C. 253a(c)(1)(B).
(3)(i) Except as set forth in paragraph (ii) of this paragraph,
past performance shall be evaluated in all source selections for
competitive acquisitions issued on or after--
(A) July 1, 1995, for acquisition expected to exceed $1,000,000;
(B) July 1, 1997, for acquisitions expected to exceed $500,000; or
(C) January 1, 1999, for acquisitions expected to exceed $100,000.
(ii) Past performance need not be evaluated if the contracting
officer documents the reason past performance is not an appropriate
evaluation factor for the acquisition (OFPP Policy Letter 92-5).
(e) All factors and significant subfactors that will affect
contract award and their relative importance shall be clearly stated in
the solicitation (10 U.S.C. 2305(a)(2)(A)(i) and 41 U.S.C.
253a(b)(1)(A)) (see 15.205-5(c)). The rating method need not be
disclosed in the solicitation.
(f) The solicitation shall also state, at a minimum, whether all
evaluation factors other than cost or price, when combined, are--
(1) Significantly more important than cost or price;
(2) Approximately equal to cost or price; or
(3) Significantly less important than cost or price. (10 U.S.C.
2305(a)(3)(A)(iii) and 41 U.S.C. 253a(c)(1)(C)).
15.405 Proposal evaluation.
(a) Proposal evaluation is an assessment of both the proposal and
the offeror's ability to accomplish the prospective contract
successfully. An agency shall evaluate competitive proposals solely on
the factors (including any subfactors) specified in the solicitation.
In evaluation of competitive proposals against the evaluation factors
specified in the solicitation, an agency should compare their relative
qualities. Agencies may use any method or combination of methods to
evaluate proposals, including color/adjectival ratings, numerical
weights, and ordinal rankings. If preaward testing or product
demonstration is required, it need not be accomplished in accordance
with a formal test plan, provided all offerors are evaluated against
the same criteria. The evaluation method used by the agency need not be
disclosed in the solicitation.
(1) Cost or price evaluation. Normally, competition establishes
price reasonableness. Therefore, when contracting on a firm fixed price
or fixed price with economic price adjustment basis, comparison of the
proposed prices will usually satisfy the requirement to perform a price
analysis; do not perform a cost analysis unless the price of the
otherwise successful offeror is determined to be unreasonable (see
15.604-1(b)(1)(i)(B)). When contracting on other than a firm fixed
price or fixed price with economic price adjustment basis, the
evaluations should include a cost realism analysis to determine what
the Government should realistically expect to pay for the proposed
effort, the offeror's understanding of the work and ability to perform
the contract. The contracting officer shall document the cost or price
evaluation.
(2) Past performance evaluation. (i) Past performance information
is one indicator of an offeror's ability to perform the contract
successfully. The age and relevance of the information, source of the
information, subjectivity of the data and general trends in
contractor's performance should be considered. This assessment of past
performance information is separate from the responsibility
determination required under Subpart 9.1.
(ii) The solicitation shall provide offerors an opportunity to
identify past contracts (including Federal, State, and local
Governments and private) for efforts similar to the Government
requirement. At the discretion of the contracting officer, the
solicitation may also request offerors to provide information on
problems encountered on the identified contracts and the offeror's
corrective actions. The Government may use this information as well as
information obtained from any other sources to evaluate the offeror's
past performance.
(iii) Firms lacking relevant past performance history shall receive
a neutral evaluation for past performance. A neutral evaluation means
any assessment that neither rewards nor penalizes firms without
relevant performance history.
(3) Technical evaluation. If a technical evaluation is necessary
beyond ensuring that the proposal meets the minimum requirements in the
solicitation, the source selection records shall include--
(i) An assessment of each offeror's ability to accomplish the
technical requirements; and
(ii) A summary, matrix, or quantitative ranking of each technical
proposal against the evaluation criteria.
(4) Cost information may be provided to members of the technical
evaluation team if the source selection authority concurs.
(b) All proposals received in response to a solicitation may be
rejected if the source selection authority determines that doing so is
in the best interests of the Government.
15.406 Competitive range.
(a) The contracting officer shall establish a competitive range for
the purpose of conducting written or oral discussion (see 15.409(c)).
The
[[Page 48389]]
competitive range shall include proposals having the greatest
likelihood of award based on the factors and subfactors in the
solicitation.
(b) In planning an acquisition, the contracting officer may
determine that the number of proposals that would otherwise be included
in the competitive range is expected to exceed the number at which an
efficient competition can be conducted. In reaching such a conclusion,
the contracting officer may consider such factors as the results of
market research, historical data from previous acquisitions for similar
supplies and services, and the resources available to conduct the
source selection. Alternate II of 52.215-1, Information to Offerors--
Competitive Acquisition, may be used to indicate the Government's
estimate of the greatest number or proposals that will be included in
the competitive range for purposes of conducting an efficient
competition among the most highly rated proposals.
(c) After evaluating offers, the contracting officer may determine
that the number of proposals that would otherwise be included in the
competitive range exceeds the number at which an efficient competition
can be conducted. Provided the solicitation notifies offerors that the
competitive range can be limited for purposes of efficiency, the
contracting officer may limit the number or proposals in the
competitive range to the greatest number that will permit an efficient
competition among the most highly rated proposals. The solicitation
provision at 52.215-1, Instruction to Offerors-Competitive Acquisition,
reserves the contracting officer's right to limit the competitive range
for purposes of efficiency.
(d) If the contracting officer determines that an offeror's
proposal is no longer in the competitive range the proposal shall no
longer be considered for award. Written notice of this decision shall
be provided to unsuccessful offerors at the earliest practicable time
(see 15.803(a)(1)).
(e) Offerors excluded from the competitive range may request a
debriefing. When a debriefing is requested, see 15.805.
15.407 Communications with offerors.
(a) Competition on other than price alone and the source selection
process necessarily involve communications between the Government and
competing offerors. Open communications support the goal of efficiency
in Government procurement (10 U.S.C. 2304(j) and 41 U.S.C. 253(h)) by
providing the Government with relevant information (in addition to that
submitted in the offeror's initial proposal) needed to understand and
evaluate the offeror's proposal. The nature and extent of
communications between the Government and offerors is a matter of
contracting officer judgment.
(b) Communication with offerors prior to establishment of the
competitive range. Communication with offerors after receipt of
proposals, but prior to establishment of the competitive range (or
award, if award is to be made without discussions), is encouraged to
obtain information to facilitate the Government's decision either to
award without discussions or determine the competitive range.
Information received during this phase of communications may provide
context to the proposal in that it allows the Government to understand
the offeror's intent. Consequently, it may be used in proposal
evaluation. Communications conducted pursuant to this paragraph--
(1) Are not ``discussions'' (see 15.409(c));
(2) Do not permit changes in an offeror's proposal other than
correction of mistakes;
(3) Are conducted to obtain information that explains or resolves
ambiguities or other concerns (e.g., perceived errors, perceived
omissions, or perceived deficiencies) in the offeror's proposal.
However, a willingness by the offeror to correct any perceived errors,
perceived omissions, perceived deficiencies, or other concerns does not
require that the offeror be placed in the competitive range;
(4) Shall only be initiated if authorized by the contracting
officer; and
(5) Need not be conducted with all offerors. For example, when
trying to determine the competitive range, the Government could limit
communications to those offerors, whose proposals, on initial
evaluation, would be neither clearly ``in'' nor clearly ``out'' of the
competitive range. Similarly, when trying to decide whether or not to
award without discussions, the Government could limit communications to
the offeror(s), based on initial evaluation, deemed to have the
greatest likelihood of award.
(c) Communication with offerors after establishment of the
competitive range. Communication with offerors determined to be in the
competitive range is accomplished through written and/or oral
discussions (see 15.401). If a competitive range is established, the
Contracting Officer shall conduct discussions at least once with all
offerors in the competitive range (but see 15.410). All evaluated
deficiencies in an offeror's proposal, except those relating to past
performance on which the offeror has already had an opportunity to
comment, and any other issues which, in the judgment of the contracting
officer, should be brought to the offeror's attention shall be
disclosed during the conduct of discussions. While the Government may
rely upon agreements made during discussions for the purposes of
proposal evaluations, such agreements shall be confirmed by proposal
revision(s) before contract award (see 15.411).
(d) Improper discussions and communications. The contracting
officer and other Government personnel involved in the procurement
shall not engage in--
(1) Favoring one offeror over another by coaching, prompting,
suggesting, or recommending ways in which an offeror must change its
proposal to bring it up to the level of other proposals;
(2) Revealing an offeror's technical solution to another offeror;
(3) Advising an offeror of another offeror's price without that
other offeror's permission. However, the contracting officer may inform
an offeror that its price is considered by the Government to be too
high or unrealistic, and the results of the analysis supporting that
conclusion. It is also permissible to indicate to all offerors the cost
or price that the Government's price analysis, market research, and
other reviews have identified as reasonable (41 U.S.C. 423(h)(1)(2));
(4) Revealing the names of individuals providing reference
information about an offeror's past performance; or
(5) Knowingly furnishing source selection information or
information about other offerors' proposals without permission of the
source (see 3.104-4(j) and (k) and 41 U.S.C. 423(h)(1)(2)).
15.408 Award without discussions.
Award may be made without discussions if the solicitation states
that the Government intends to evaluate proposals and make award
without discussions, unless the contracting officer determines that
discussions are considered necessary. However, if the solicitation
contains such a notice and the Government later conducts discussions,
the rationale for doing so shall be documented in the contract file
(see 52.215-16 Alt III) (10 U.S.C. 2305(b)(4)(A)(ii) and 41 U.S.C.
253b(d)(1)(B)). The Contracting Officer may permit minor clarifications
to allow proposal modifications that resolve ambiguities, or correct
apparent mistakes.
[[Page 48390]]
15.409 Proposal revisions.
(a) The contracting officer may request proposal revisions as often
as needed during discussions. Proposal revisions shall be submitted in
writing. The contracting officer may establish a common cut off date
for receipt of proposal revisions.
(b) If an offeror in the competitive range is no longer considered
to be among those most likely to receive award after discussions have
begun, the offeror may be eliminated from the competitive range without
being afforded an opportunity to submit a proposal revision.
(c) Requesting and/or receiving proposal revisions does not
necessarily conclude discussions. However, requests for proposal
revisions should advise offerors that the Government may make award
without obtaining further revisions.
15.410 Source selection.
An integrated comparative assessment of proposals shall be
performed before source selection is made. The source selection
authority shall independently determine which proposal(s) represents
the best value, consistent with the factors and subfactors in the
solicitation. The source selection authority may determine that all
proposals should be rejected if it is in the best interests of the
Government (see 15.407(b)).
(a) The source selection team, or advisory boards or panels, may
conduct the comparative analysis(es) and make award recommendations, if
the source selection authority requests such assistance.
(b) The basis for the source selection decision shall be documented
and shall reflect the rationale for any tradeoffs among factors,
subfactors, and business judgments. The perceived benefits to be
received for any total additional cost should be specified. Specific
tradeoffs need not be described in terms of cost/price impacts nor do
the tradeoffs need to be quantified in any other manner.
Subpart 15.7--[Subpart 15.7 Redesignated as Subpart 15.5]
9. Subpart 15.7 is redesignated as new Subpart 15-5.
Subpart 15.6--[Removed]
Subpart 15.8--[Redesignated as Subpart 15.6]
10. Subpart 15.6 is removed and Subpart 15.8 is redesignated as new
Subpart 15.6.
Subpart 15.9--[Redesignated as Subpart 15.7]
11. Subpart 15.9 is redesignated as new Subpart 15.7 .
12. Subpart 15.10 is redesignated as Subpart 15.8 and revised to
read as follows:
Subpart 15.8--Preaward, Award, and Postaward Notifications,
Protests, and Mistakes
15.801 Definition.
Day, as used in this subpart, means calendar day, except that the
period will run until a day which is not a Saturday, Sunday, or legal
holiday.
15.802 Applicability.
This subpart applies to the use of competitive proposals, as
described in 6.102(b), and a combination of competitive procedures, as
described in 6.102(c). To the extent practicable, however, the
procedures and intent of this subpart, with reasonable modification,
should be followed for sole source acquisitions and acquisitions
described in 6.102(d): broad agency announcements, small business
innovation research contracts, and architect-engineer contracts.
However, they do not apply to multiple award schedules, as described in
6.102(d)(3).
15.803 Notifications to unsuccessful offerors.
(a) Preaward notices--(1) Preaward notices of exclusion from
competitive range. The contracting officer shall notify offerors
promptly when their proposals are excluded from the competitive range
or otherwise excluded from competition. The notice shall state the
basis for the determination and that a proposal revision will not be
considered.
(2) Preaward notices for small business set-asides. In a small
business set-aside (see Subpart 19.5), upon completion of negotiations
and determinations of responsibility, but prior to award, the
contracting officer shall notify each offeror in writing of the name
and location of the apparent successful offeror. The notice shall also
state that (i) the Government will not consider subsequent revisions of
the offeror's proposal and (ii) no response is required unless a basis
exists to challenge the small business size status of the apparently
successful offeror. The notice is not required when the contracting
officer determines in writing that the urgency of the requirement
necessitates award without delay.
(b) Postaward notices. (1) Within three days after the date of
contract award, the contracting officer shall provide written
notification to each offeror whose proposal was in the competitive
range but was not selected for (10 U.S.C. 2305(b)(5) and 41 U.S.C.
253b(c)). The notice shall include-
(i) The number of offerors solicited;
(ii) The number of proposals received;
(iii) The name and address of each offeror receiving an award;
(iv) The items, quantities, and unit prices of each award (if the
number of items or other factors makes listing unit prices
impracticable, only the total contract price need be furnished); and
(v) In general terms, the reason(s) the offeror's proposal was not
accepted, unless the price information in paragraph (b)(1)(iv) of this
section readily reveals the reason. In no event shall an offeror's cost
breakdown, profit, overhead rates, trade secrets, manufacturing
processes and techniques, or other confidential business information be
disclosed to any other offeror.
(2) Upon request, the contracting officer shall furnish the
information described in paragraphs (b)(1) (i) through (v) of this
section to unsuccessful offerors in solicitations using simplified
acquisition procedures in FAR Part 13.
(3) Upon request, the contracting officer shall provide the
information in paragraphs (b)(1) (i) through (v) of this section to
unsuccessful offerors who received a preaward notice of exclusion from
the competitive range.
15.804 Award to successful offeror.
The contracting officer shall award a contract to the successful
offeror by furnishing the contract or other notice of the award to that
offeror.
(a) If award is made without discussions, the contracting officer
may award a contract without obtaining the offeror's signature a second
time. The offeror's signature on the offer constitutes the offeror's
agreement to be bound by the offer.
(b) If the award document includes information that is different
than the latest signed offer, both the offeror and the contracting
officer shall sign the contract award.
(c) When an award is made to an offeror for less than all of the
items that may be awarded and additional items are being withheld for
subsequent award, each notice shall state that the Government may make
subsequent awards on those additional items within the offer acceptance
period.
(d) If the Optional Form YY (OF YY), Contract Award, is not used to
award the contract, the first page of the award document shall contain
the
[[Page 48391]]
Government's acceptance statement from block 15A of that form and the
contracting officer's signature. In addition, if the award document
includes information that is different than the latest signed offer,
the first page shall include the contractor's agreement statement from
block 14A of OF YY and the signature of the contractor's authorized
representative.
15.805 Preaward debriefing of offerors.
Offerors excluded from the competitive range or otherwise excluded
from the competition before award may request a debriefing before award
(10 U.S.C. 2305(b)(6)(A) and 41 U.S.C. 253b (f)-(h)).
(a) The offeror may request a preaward debriefing by submitting a
written request for debriefing to the contracting officer within three
days after the receipt of notice of exclusion from the competition. If
the offeror does not submit a timely request, the offeror need not be
given either a preaward or a postaward debriefing. Offerors are
entitled to no more than one debriefing for each proposal.
(b) The contracting officer should provide a debriefing to the
offeror as soon as practicable. If providing a preaward debriefing is
not in the best interest of the Government at the time it is requested,
the contracting officer may delay the debriefing, but shall provide the
debriefing no later than the time postaward debriefings are provided
under 15.806. In that event, the contracting officer shall include the
information at 15.806(d) in the debriefing.
(c) Debriefings may be done orally, in writing, or by any other
method acceptable to the contracting officer.
(d) The contracting officer should normally chair any debriefing
session held. Individuals who conducted the evaluations shall provide
support.
(e) At a minimum, preaward debriefings shall include--
(1) The agency's evaluation of significant elements in the
offeror's proposal;
(2) A summary of the rationale for eliminating the offeror from the
competition; and
(3) Reasonable responses to relevant questions about whether source
selection procedures contained in the solicitation, applicable
regulations, and other applicable authorities were followed in the
process of eliminating the offeror from the competition.
(f) Preaward debriefings shall not disclose--
(1) The number of offerors;
(2) The identity of other offerors;
(3) The content of other offeror's proposals;
(4) The ranking of other offerors;
(5) The evaluation of other offerors; or
(6) Any of the information prohibited in 15.806(e)
(g) The contracting officer shall include an official summary of
the debriefing in the contract file.
15.806 Postaward debriefing of offerors.
(a) An offeror, upon its written request received by the agency
within three days after the date on which that offeror has received
notice of contract award, shall be debriefed and furnished the basis
for the selection decision and contract award. An offeror who was
notified of exclusion from the competition (15.805(a)), but failed to
submit a timely request, is not entitled to a debriefing. When
practicable, debriefing requests received more than three days after
the offeror receives notice of contract award may be accommodated.
However, accommodating untimely debriefing requests does not extend the
time within which suspension of performance can be required, because
this accommodation is not a ``required debriefing'' as described in FAR
Part 33. To the maximum extent practicable, the debriefing should occur
within five days after receipt of the written request.
(b) Debriefings of successful and unsuccessful offerors may be done
orally, in writing, or by any other method acceptable to the
contracting officer.
(c) The contracting officer should normally chair any debriefing
session held. Individuals who conducted the evaluations shall provide
support.
(d) At a minimum, the debriefing information shall include--
(1) The Government's evaluation of the significant weaknesses or
deficiencies in the offeror's proposal, if applicable;
(2) The overall evaluated cost or price and technical rating, if
applicable, of the successful offeror and the debriefed offeror
(including unit prices);
(3) The overall ranking of all offerors when any ranking was
developed by the agency during the source selection;
(4) A summary of the rationale for award;
(5) For acquisitions of commercial end items, the make and model of
the item to be delivered by the successful offeror; and
(6) Reasonable responses to relevant questions about whether source
selection procedures contained in the solicitation, applicable
regulations, and other applicable authorities were followed.
(e) The debriefing shall not include point-by-point comparisons of
the debriefed offeror's proposal with those of other offerors.
Moreover, the debriefing shall not reveal any information exempt from
release under the Freedom of Information Act (5 U.S.C. 552) including--
(1) Trade secrets;
(2) Privileged or confidential manufacturing processes and
techniques;
(3) Commercial and financial information that is privileged or
confidential, including cost breakdowns, profit, indirect cost rates,
and similar information; and
(4) The names of individuals providing reference information about
an offeror's past performance.
(f) The contracting officer shall include an official summary of
the debriefing in the contract file.
15.807 Protests against award.
(a) Protests against award in negotiated acquisitions shall be
treated substantially the same as in sealed bidding (see Subpart 33.1).
Use of agency protest procedures which incorporate the alternative
dispute resolution provisions of Executive Order 12979 is encouraged
for both preaward and postaward protests.
(b) If, within one year of contract award, a protest causes the
agency to issue either a new solicitation or a new request for revised
offers on the protested contract award, the agency shall make available
to prospective offerors or original offerors still within the
competitive range, respectively--
(1) Information provided in any debriefings conducted on the
original award about the successful offeror's proposal; and
(2) Other nonproprietary information that would have been provided
to the original offerors.
15.808 Discovery of mistakes.
Mistakes in a contractor's proposal that are disclosed after award
shall be processed in accordance with 14.407-4.
15.809 Forms.
(a) Optional Form YY, Contract Award, may be used to award
negotiated contracts. If the form is not used, the award document shall
incorporate the agreement and award language from the form.
(b) Standard Form 26, Award/Contract, may be used, if appropriately
modified (e.g., substitute the MCF for the Uniform Contract Format
Table of Contents). If so modified, the contracting officer shall
remove the form designation (i.e., standard form number).
[[Page 48392]]
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
13. Section 36.524 is revised to read as follows:
36.524 Contracting by Negotiation.
The contracting officer shall insert in solicitations for
construction the provision at 52.236-XX, Preparation of Offers--
Construction, when contracting by negotiation.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
14. Section 52.215-1 is revised to read as follows:
52.215-1 Instructions to Offerors--Negotiated Acquisition.
As prescribed in 15.208(a), insert the following provision:
Instructions to Offerors--Negotiated Acquisition (Date)
(a) Definitions.
(1) Time, if stated as a number of days, will include Saturdays,
Sundays, and Federal holidays.
(2) In writing or written means any worded or numbered expression
which can be read, reproduced, and later communicated, and includes
electronically transmitted and stored information.
(3) Revision means a revision of an offer requested by the
contracting officer during discussions.
(4) Discussion means communication after establishment of the
competitive range between the contracting officer and an offeror in the
competitive range.
(5) Communication means interchanges with offerors which are not
discussions. They may be conducted to obtain information which explains
or resolves ambiguities or for minor clarifications.
(b) Amendments to solicitations. If this solicitation is amended,
all terms and conditions which are not modified remain unchanged.
Offerors shall acknowledge receipt of any amendment to this
solicitation by the date and time specified in the amendment(s).
(c) Submission, revision and withdrawal of offers. (1) Unless other
methods (e.g. electronic commerce, facsimile, etc.) are permitted in
the solicitation, offers and modifications to offers shall be submitted
in paper media in sealed envelopes or packages (i) addressed to the
office specified in the solicitation, and (ii) showing the time
specified for receipt, the solicitation number, and the name and
address of the offeror.
(2) The first page of the offer must show--
(i) The solicitation number;
(ii) The name, address, and telephone number of the offeror;
(iii) A statement specifying the extent of agreement with all
terms, conditions, and provisions included in the solicitation and
agreement to furnish any or all items upon which prices are offered at
the price set opposite each item;
(iv) Names, titles, and telephone numbers of persons authorized to
negotiate on its behalf with the Government in connection with this
solicitation; and
(v) Name, title, and signature of person authorized to sign the
offer. Offers signed by an agent shall be accompanied by evidence of
that agent's authority, unless that evidence has been previously
furnished to the issuing office.
(3) Offerors are responsible for submitting offers, and any
requested revisions to them, to the Government office designated in the
solicitation on time. Unless the solicitation states a specific time,
the time for receipt is 4:30 p.m., local time, at the designated
Government office on the date that offers or requested revisions are
due. Offers, and requested revisions to them, that are received in the
designated Government office after the time for receipt are ``late''
and shall be considered at the Source Selection Authority's discretion.
(4) Unless otherwise specified in the solicitation, the offeror may
propose any item or combination of items.
(5) Offers submitted in response to this solicitation shall be in
the English language and shall be in terms of U.S. dollars, unless
otherwise permitted in the solicitation.
(6) Offerors may not revise offers unless requested by the
Contracting Officer.
(7) Offers may be withdrawn at any time prior to award. Withdrawals
are effective upon receipt by the Contracting Officer.
(d) Period for acceptance of offers. Offers in response to this
solicitation will be valid for the number of days specified on the
solicitation cover sheet (unless a different period is proposed by the
offeror.
(e) Restriction on disclosure and use of data. Offerors who include
in their proposals data that they do not want disclosed to the public
for any purpose or used by the Government except for evaluation
purposes, shall--
(1) Mark the title page with the following legend:
This proposal includes data that shall not be disclosed outside
the Government and shall not be duplicated, used, or disclosed--in
whole or in part--for any purpose other than to evaluate this
proposal. If, however, a contract is awarded to this offeror as a
result of--or in connection with--the submission of this data, the
Government shall have the right to duplicate, use, or disclose the
data to the extent provided in the resulting contract. This
restriction does not limit the Government's right to use information
contained in this data if it is obtained from another source without
restriction. The data subject to this restriction are contained in
sheets [insert numbers or other identification of sheets]; and
(2) Mark each sheet of data it wishes to restrict with the
following legend:
Use or disclosure of data contained on this sheet is subject to
the restriction on the title page of this proposal.
(f) Contract award (1) The Government intends to award a contract
or contracts resulting from this solicitation to the responsible
offeror(s) whose offer(s) conforming to the solicitation represent the
best value.
(2) The Government may reject any or all offers if such action is
in the Government's interest.
(3) The Government may waive informalities and minor irregularities
in offers received.
(4) The Government intends to evaluate proposals and award a
contract without discussions with offerors (except communications).
Therefore, each individual offer should contain the offeror's best
terms from a cost or price and technical standpoint. The Government
reserves the right to conduct discussions if the Contracting Officer
later determines them to be necessary. If the Contracting Officer
determines that the number of proposals that would otherwise be in the
competitive range exceeds the number at which an efficient competition
can be conducted, the Contracting Officer may limit the number of
proposals in the competitive range to the greatest number that will
permit an efficient competition among the most highly rated proposals.
(5) The Government reserves the right to make an award on any item
for a quantity less than the quantity offered, at the unit cost or
prices offered, unless the offeror specifies otherwise in the offer.
(6) Communications with offerors after receipt of an offer do not
necessarily constitute a rejection or counteroffer by the Government.
(7) The Government may determine that an offer is unacceptable if
the prices proposed are materially unbalanced between line items or
subline items. An offer is materially unbalanced when it is based on
prices significantly less than
[[Page 48393]]
cost for some work and prices which are significantly overstated in
relation to cost for other work, and if there is a reasonable doubt
that the offer will result in the lowest overall cost to the
Government, even though it may be the low evaluated offer, or it is so
unbalanced as to be tantamount to allowing an advance payment.
(8) The Government reserves the right to make multiple awards if,
after considering the additional administrative costs, it is in the
Government's best interest to do so.
(9) Award of a contract is effective upon transmittal of the
contract signed by the Government.
(10) The Government may disclose the following information in
postaward debriefings to other offerors: (i) the overall evaluated cost
or price and technical rating of the successful offeror; (ii) the
overall ranking of all offerors, when any ranking was developed by the
agency during source selection; (iii) a summary of the rationale for
award; and (iv) for acquisitions of commercial end items, the make and
model of the item to be delivered by the successful offeror.
(End of provision)
Alternate I (Date). As prescribed in 15.208(a)(1), substitute the
following paragraph (f)(4) for paragraph (f)(4) of the basic provision:
(4) The Government intends to evaluate proposals and award a
contract after conducting discussions with responsible offerors whose
proposals have been determined to be within the competitive range. If
the Contracting Officer determines that the number of proposals that
would otherwise be in the competitive range exceeds the number at which
an efficient competition can be conducted, the Contracting Officer may
limit the number of proposals in the competitive range to the greatest
number that will permit an efficient competition among the most highly
rated proposals. Therefore, the offeror's initial offer should contain
the offeror's best terms from a price and technical standpoint.
Alternate II (Date). As prescribed in 15.208(a)(2), add the
following to paragraph (f)(4):
(4) If the Contracting Officer exercises the Government's right to
limit the number of proposals in the competitive range, the competitive
range will be limited to no more than ________________ (insert number).
15. Section 52.215-2 is amended by revising the introductory text
to read as follows:
52.215-2 Audit and Records--Negotiation.
As prescribed in 15.208(b), insert the following clause:
* * * * *
16. Sections 52.215-3 through 52.215-8 are revised to read as
follows:
52.215-3 Solicitation for Information or Planning Purposes.
As prescribed in 15.208(c), insert the following provision:
Solicitation for Information or Planning Purposes (Date)
(a) The Government does not intend to award a contract on the basis
of this solicitation or to otherwise pay for the information solicited
except as provided in subsection 31.205-18, Bid and proposal costs of
the Federal Acquisition Regulation.
(b) Although ``offer'' and ``offeror'' are used in this Request for
Information, your response will be treated as information only. It
shall not be used as an offer.
(c) This solicitation is issued for the purpose of: [state
purpose].
(End of provision)
52.215-4 Type of Business Organization.
As prescribed in 15.208(d), insert the following provision:
Type of Business Organization (Date)
The offeror or quoter, by checking the applicable box, represents
that--
(a) It operates as a corporation incorporated under the laws of the
State of ________________, {time} an individual, {time} a
partnership, {time} a nonprofit organization, or {time} a joint
venture.
(b) If the offeror or quoter is a foreign entity, it operates as
{time} an individual, {time} a partnership, {time} a nonprofit
organization, {time} a joint venture, or {time} a corporation,
registered for
business in------------------------------------------------------------
(country)
(End of provision)
52.215-5 Facsimile Proposals.
As prescribed in 15.208(e), insert the following provision:
Facsimile Proposals (Date)
(a) Definition-Facsimile proposal, as used in this solicitation,
means a proposal, revision or modification of a proposal, or withdrawal
of a proposal that is transmitted to and received by the Government via
facsimile machine.
(b) Offerors may submit facsimile proposals as responses to this
solicitation. Facsimile offers are subject to the same rules as paper
proposals.
(c) Telephone number of receiving facsimile equipment:[insert
telephone number]
(d) If the offeror chooses to transmit a facsimile proposal, the
Government will not be responsible for any failure attributable to the
transmission or receipt of the facsimile proposal including, but not
limited to, the following:
(1) Receipt of garbled or incomplete proposal.
(2) Availability or condition of the receiving facsimile equipment.
(3) Incompatibility between the sending and receiving equipment.
(4) Delay in transmission or receipt of proposal.
(5) Failure of the offeror to properly identify the proposal.
(6) Illegibility of proposal.
(7) Security of proposal data.
(e) The Government reserves the right to make award solely on the
facsimile proposal. However, if requested to do so by the Contracting
Officer, the apparently successful offeror agrees to promptly submit
the complete original signed proposal.
(End of provision)
52.215-6 Place of Performance.
As prescribed in 15.208(f), insert the following provision:
Place of Performance (Date)
(a) The offeror or quoter, in the performance of any contract
resulting from this solicitation, {time} intends, {time} does not
intend [check applicable block] to use one or more plants or facilities
located at a different address from the address of the offeror or
quoter as indicated in this proposal or quotation.
(b) If the offeror or quoter checks ``intends'' in paragraph (a) of
this provision, it shall insert in the spaces provided below the
required information:
Place of Performance
(Street Address, City, County, State, Zip Code)
----------------------------------------------------------------------
----------------------------------------------------------------------
Name and Address of Owner and Operator of the Plant or Facility if
Other than Offeror Quoter
----------------------------------------------------------------------
----------------------------------------------------------------------
(End of provision)
52.215-7 Annual Representations and Certifications--Negotiation.
As prescribed in 15.208(g), insert the following provision:
Annual Representations and Certifications--Negotiation (Date)
The offeror certifies that annual representations and
certifications (check the appropriate block):
[[Page 48394]]
{time} (a) Dated ____________[insert date of signature on
submission] that are incorporated herein by reference, have been
submitted to the Contracting Office issuing this solicitation and that
the submittal is current, accurate, and complete as of the date of this
offer, except as follows [insert changes that affect only this
solicitation; if ``none,'' so state]:
{time} (b) Are enclosed.
(End of provision)
52.215-8 Order of Precedence.
As prescribed in 15.208(h), insert the following clause:
Order of Precedence (Date)
Any inconsistency in this solicitation or contract shall be
resolved by giving precedence in the following order: (a) The
Acquisition Description (excluding the specifications); (b) tailored
clauses; (c) Performance Requirements (including the specifications);
(d) other contract clauses; and (e) other parts of the contract,
including attachments.
(End of clause)
17. Section 52.236-XX is added to read as follows:
52.236-XX Preparation of Offers--Construction.
As prescribed in 36.524, insert the following provision:
Preparation of Offers--Construction (Date)
(a) Offers must be (1) Submitted on the forms furnished by the
Government or on copies of those forms, and (2) manually signed. The
person signing an offer must initial each erasure or change appearing
on any offer form.
(b) The offer form may require offerors to submit offer prices for
one or more items on various bases, including--
(1) Lump sum offer;
(2) Alternate prices;
(3) Units of construction; or
(4) Any combination of subparagraphs (b)(1) through (b)(3) of this
provision.
(c) If the solicitation requires an offer on all items, failure to
do so will disqualify the offer. If an offer on all items is not
required, offerors should insert the words ``no offer'' in the space
provided for any item on which no price is submitted.
(d) Alternate offers will not be considered unless this
solicitation authorizes their submission.
(End of provision)
PART 53--FORMS
18. Section 53.213 is amended by revising paragraph (a) to read as
follows:
53.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165, OF's
347, 348).
(a) SF 18 (Rev. 6/95), Request for Quotations. SF 18 is prescribed
for use in obtaining price, cost, delivery, and related information
from suppliers as specified in 13.107(a).
* * * * *
19. Section 53.214 is amended by revising the first sentences of
paragraphs (a) and (d) to read as follows:
53.214 Sealed bidding.
(a) SF 26, Award/Contract. SF 26 is prescribed for use in awarding
sealed bid contracts for supplies or services in which bids were
obtained on SF 33, Solicitation, Offer, and Award, as specified in
14.408-1(d)(1). * * *
* * * * *
(d) SF 1447(5/88), Solicitation/Contract. SF 1447 is prescribed for
use in soliciting supplies or services and for awarding contracts that
result from the bids.* * *
* * * * *
20. Section 53.215-1 is revised to read as follows:
53.215-1 Solicitation and receipt of proposals and quotations.
The following forms are prescribed, as stated below, for use in
contracting by negotiation (except for construction, architect-engineer
services, or acquisitions made using simplified acquisition
procedures):
(a) OF 307 (XX/96), Solicitation and Offer-Negotiated Acquisition.
OF XX may be used to support solicitation of negotiated contracts as
specified in 15.210(a). Award of such contracts may be made by OF YY,
as specified in 15.809(a).
(b) OF 308 (XX/96), Amendment of Solicitation. OF XY may be used to
amend solicitations of negotiated contracts, as specified in 15.210(b).
(c) OF 309 (XX/96), Contract Award. OF YY may be used to award
negotiated contracts as specified in 15.809(a).
(d) SF 26 (REV. 4/85), Award/Contract. SF 26 as prescribed in
53.214(a) may be used in entering into negotiated contracts in which
the signature of both parties on a single document is appropriate, as
specified in 15.809(b).
(e) SF 30, Amendment of Solicitation/Modification of Contract. SF
30, prescribed in 53.243, may be used for amending requests for
proposals, and for amending requests for information, as specified in
15.210(c).
(f) SF 33, Solicitation, Offer, and Award. SF 33, prescribed in
53.214(c), may be used in connection with the solicitation and award of
negotiated contracts. Award of such contracts may be by either OF YY,
SF 33, or SF 26, as specified in 15.809(a) and (b), and 53.214(c).
(g) OF 17 (REV. 12/93), Offer Label. OF 17 may be furnished with
each request for proposals to facilitate identification and handling of
proposals, as specified in 15.210(d).
21. Section 53.243 is amended by revising the introductory
paragraph to read as follows:
53.243 Contract modifications.
SF 30 (REV 10/83), Amendment of Solicitation/Modification of
Contract. SF 30 is prescribed for use in amending solicitations, as
specified in 14.208, and 43.301, modifying purchase and delivery
orders, as specified in 13.503(b), and modifying contracts, as
specified in 42.1203(f), 43.301, 49.602-5, and elsewhere in this
regulation. The form may also be used to amend solicitations for
negotiated contracts, as specified in 15.209(c). Pending the
publication of a new edition of the form, Instruction (b), Item 3
(effective date) is revised in paragraphs (3) and (5) as follows:
* * * * *
22. Sections 53.302-307, 53.302-308, and 53.302-309 are added to
read as follows:
BILLING CODE 6820-EP-P
[[Page 48395]]
53.302-307 Optional Form 307 Contract Award.
[GRAPHIC] [TIFF OMITTED] TP12SE96.063
[[Page 48396]]
53.302-308 Optional Form 308 Solicitation and Offer--Negotiated
Acquisition.
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[[Page 48397]]
53.302-309 Optional Form 309--Amendment of Solicitation
[GRAPHIC] [TIFF OMITTED] TP12SE96.065
[FR Doc. 96-23392 Filed 9-10-96; 8:45 am]
BILLING CODE 6820-EP-C
