[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Rules and Regulations]
[Pages 47065-47068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22642]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1515 and 1552
[FRL-5602-5]
Acquisition Regulation; Coverage of Source Selection Process
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: This document amends the Environmental Protection Agency (EPA)
acquisition regulation (48 CFR Chapter 15) coverage on the source
selection process. EPA is aware that Part 15 of the Federal Acquisition
Regulation is currently undergoing revision. The Agency believes that
its changes will not conflict with any subsequent revisions to Part 15.
Additionally, the Agency believes that the changes to its acquisition
regulation are needed now as an interim measure to streamline the
process and empower Contracting Officers at EPA. This rule is also
necessary to implement portions of the Federal Acquisition Streamlining
Act of 1994.
EFFECTIVE DATE: September 23, 1996.
FOR FURTHER INFORMATION CONTACT: Louise Senzel, Environmental
Protection Agency, Office of Acquisition Management (3802F), 401 M
Street, SW, Washington, D.C. 20460. Telephone: (202) 260-6204.
SUPPLEMENTARY INFORMATION:
A. Background
The proposed rule was published in the Federal Register (61 CFR
25440) on May 21, 1996, providing for a comment period until July 22,
1996.
Interested persons have been afforded an opportunity to participate
in the making of this rule. No public comments were received.
B. Executive Order 12866
This is not a significant regulatory action for the purposes of
Executive Order 12866; therefore, no review was required by the Office
of Information and Regulatory Affairs.
C. Paperwork Reduction Act
The Paperwork Reduction Act did not apply because this rule does
not contain information collection requirements that require the
approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
D. Regulatory Flexibility Act
The EPA certifies that this rule does not exert a significant
economic impact on a substantial number of small entities. The
requirements to contractors under the proposed rule impose no
reporting, record-keeping, or any compliance costs.
E. Unfunded Mandates
This rule will not impose unfunded mandates on state or local
entities, or others.
F. Regulated Entities
EPA contractors are entities potentially affected by this action.
Specifically, those entities competing under solicitations for
negotiated procurements will be affected.
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Category Regulated entity
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Industry............................ EPA contractors.
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List of Subjects in 48 CFR Part 1515 and 1552
Government procurement.
Authority: The provisions of this regulation are issued under 5
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).
Therefore, 48 CFR Chapter 15 is amended as set forth below: 1. The
authority citations for parts 1515 and 1552 continue to read as
follows:
Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C.
486(c).
1515.407 [Amended]
2. Section 1515.407 is amended by removing paragraph (a)(1), and by
redesignating paragraphs (a)(2) and (3) as (a)(1) and (2).
3. Section 1515.604 is amended by revising paragraphs (a), (c), and
(d) to read as follows:
1515.604 Responsibilities and Duties.
* * * * *
(a) Source Selection Official. The Source Selection Official (SSO)
is the official responsible for overall management of the source
selection process. Duties of the SSO include, but are not limited to,
appointing members and chairpersons of the Source Evaluation Board, the
Technical Evaluation Panel (TEP), and the Business Evaluation Panel
(BEP); and approving solicitation related documents. However, the
Contracting Officer is responsible for approving amendments to
solicitation documents. The SSO may waive in writing the requirement in
1515.612(a)(1)(v) for at least one member of the TEP to be an
individual not involved in managing the
[[Page 47066]]
current contract. The SSO also approves the competitive range
determination and makes the source selection decision.
* * * * *
(c) Technical Evaluation Panel (TEP). The Program Office has the
responsibility for developing the technical evaluation criteria and
statement of work for the solicitation. The TEP has the responsibility
for evaluating the technical aspects of the offerors' technical
proposals. Based on the recommendation of the Program Office, the SSO
has the discretion of assigning this evaluation responsibility to the
Project Officer, if appropriate, or to the TEP. When offerors' past
performance is evaluated as part of the technical proposal evaluation
process, the past performance evaluation shall be conducted by the TEP,
or by the Contracting Officer and the Project Officer. Based on input
from the Project Officer, the Contracting Officer has the discretion of
assigning this responsibility to the TEP or to the Contracting Officer
and Project Officer.
(d) Business Evaluation Panel (BEP). (1) Outside of the technical
review, the Contracts Office has the lead for reviewing solicitation
evaluation criteria and the Statement of Work from a business
perspective; evaluating the business, pricing, and contractual aspects
of the offerors' business and technical proposals; and examining other
factors such as the responsibility of the offerors. Based on the
recommendation of the Contracting Officer, the SSO has the discretion
to designate these responsibilities to the Contracting Officer or
designating a BEP. Sections 1515.612(a)(1) (vi) and (vii) are
applicable only when the SSO has designated a BEP.
(2) When no BEP is convened, the Contracting Officer shall perform
a preliminary cost evaluation of each offeror's cost/price proposal to
identify any cost elements that appear unreasonable or questionable.
When cost analysis is employed, the Contracting Officer shall perform a
detailed cost analysis of the business proposal which includes an
evaluation of the offeror's subcontracting program, management
structure, and any other relevant factors which may prevent award to an
offeror. This analysis may be included in a separate report, in the
competitive range determination, or in the pre/post-negotiation
memorandum.
4. Section 1515.604-70 is amended by adding paragraph (c) to read
as follows:
1515.604-70 Personal conflicts of interest.
* * * * *
(c) Each EPA employee (including special employees (as defined by
1503.600-71 (b)) involved in source evaluation and selection is
required to comply with the Office of Government Ethics ethics
provisions at 5 CFR Part 2635.
5. Section 1515.605 is amended by revising paragraphs (a), (b), and
adding (c) to read as follows:
1515.605 Evaluation Factors.
* * * * *
(a) The Contracting Officer shall insert the provisions at
1552.215-70, ``EPA Source Evaluation and Selection Procedures--
Negotiated Procurement'' and either: the provision in 1552.215-71,
``Evaluation Factors for Award,'' where all evaluation factors other
than cost or price when combined are significantly more important than
cost or price; or the provision in Alternate I to 1552.215-71, where
all evaluation factors other than cost or price when combined are
significantly less important than cost or price; or the provision in
Alternate II to 1552.215-71, where award will be made to the offeror
with the lowest-evaluated cost or price whose technical proposal meets
the minimum needs of the Government; or the provision in Alternate III
where all evaluation factors other than cost or price when combined are
approximately equal to cost or price. The Contracting Officer may use
provisions substantially the same as 1552.215-71, Alternate I to
1552.215-71, Alternate II to 1552.215-71, or Alternate III to 1552.215-
71 without requesting a deviation to the EPAAR.
(b) Technical evaluation criteria should be prepared in accordance
with FAR 15.605 and inserted into paragraph (b) of the provision at
1552.215-71, Alternate I, and Alternate III. If technical evaluation
criteria are used in Alternate II, the criteria should be prepared in
accordance with FAR 15.605 and inserted into paragraph (b). When past
performance is to be used as an evaluation factor, the Contracting
Officer must develop criteria for evaluating past performance and
include such criteria in section M of the solicitation.
(c) Evaluation Methodologies. Evaluation criteria may be developed
using methodologies other than numerical scoring, e.g., adjectival
ratings or color scoring. The relative importance of the evaluation
criteria must be clearly identified in the solicitation. The
Contracting Officer should identify and prepare evaluation criteria
consistent with FAR 15.605.
* * * * *
6. Section 1515.608 is amended by revising paragraphs (a)(1);
adding paragraph (a)(3); by revising paragraphs (b)(1)(ii) and
(b)(2)(i); by adding paragraph (b)(3); by removing paragraph (c) and by
redesignating paragraphs (d) and (e) as (c) and (d), to read as
follows:
1515.608 Proposal evaluation.
(a) * * *
(1) Technical proposals shall be evaluated solely on the factors
specified in the solicitation and in accordance with FAR 15.608.
Additionally, the evaluation of technical proposals (including past
performance factors) shall be accomplished using the scoring plan shown
below or one specifically developed for the solicitation. Contracting
Officers may request that the TEP also indicate whether proposals are
acceptable or unacceptable, and/or whether the offerors' response to
individual criteria are acceptable or unacceptable.
Scoring Plan
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Value Descriptive statement
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0............................... The factor is not addressed, or is
totally deficient and without merit.
1............................... The factor is addressed, but contains
deficiencies and/or weaknesses that
can be corrected only by major or
significant changes to relevant
portions of the proposal, or the
factor is addressed so minimally or
vaguely that there are widespread
information gaps. In addition,
because of the deficiencies,
weaknesses, and/or information gaps,
serious concerns exist on the part of
the TEP about the offeror's ability
to perform the required work.
2............................... Information related to the factor is
incomplete, unclear, or indicates an
inadequate approach to, or
understanding of the factor. The TEP
believes there is question as to
whether the offeror would be able to
perform satisfactorily.
3............................... The response to the factor is
adequate. Overall, it meets the
specifications and requirements, such
that the TEP believes that the
offeror could perform to meet the
Government's minimum requirements.
4............................... The response to the factor is good
with some superior features.
Information provided is generally
clear, and the approach is acceptable
with the possibility of more than
adequate performance.
5............................... The response to the factor is superior
in most features.
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* * * * *
(3) The goal of the technical evaluation is to understand each
offeror's proposal and to assess each
[[Page 47067]]
proposal relative to the specified evaluation factors. The TEP
report(s) should address any perceived strengths, as well as any
perceived weaknesses or deficiencies, and risks associated with the
offerors' performance. Scores may or may not change from the initial
evaluation to the supplemental evaluation, depending on the offerors'
response to interrogatories. The supplemental TEP report must explain
the rationale for no change in score, as well as any decrease or
increase in score as a result of the offerors' response to
interrogatories.
(b) * * *
(1) * * *
(ii) Any interrogatories the Contracting Officer should submit to
offerors to clarify their technical proposals to address any
weaknesses, deficiencies, or questions associated with their technical
proposals. The Contracting Officer may review the technical proposals
and TEP evaluation, and submit any additional interrogatories deemed
appropriate.
(2)(i) A statement that the respective technical evaluation panel
members are free from actual or potential personal conflicts of
interest, and are in compliance with the Office of Government Ethics
ethics provisions at 5 CFR Part 2635.
* * * * *
(3) The Contracting Officer may release the cost/price proposals to
the entire TEP or solely to the TEP Chairperson, after the TEP has
completed its evaluation of initial proposals. The TEP or Chairperson
should evaluate cost/price proposals to determine whether the offerors'
cost/price proposals adequately reflect their technical proposals and
the requirements of the solicitation, and demonstrate that the proposed
price or cost provides an adequate understanding of the requirements of
the solicitation. Any inconsistencies between the proposals and the
solicitation requirements should be identified. Any inconsistencies
between the cost and technical proposals should also be identified.
7. Section 1515.609 is amended by revising paragraph (c) to read as
follows:
1515.609 Competitive Range.
* * * * *
(c)(1) When a single proposal is the only proposal in the
competitive range, as part of the required discussion in the
competitive range determination, Contracting Officers shall address at
a minimum the following factors: Whether the requirement could have
been broken up into smaller components; whether the solicitation
provided adequate response time; whether the requirement could have
been satisfied with reduced staffing levels (discussion may be combined
with the first factor); and if applicable, whether the work required
on-site could otherwise be performed at a contractor's facility,
avoiding the cost and logistical implications of relocating employees.
(2) In cases where only a single proposal has been received and a
competitive range determination has not been prepared, the discussion
of the reasons for receipt of the single proposal which otherwise would
be contained in the competitive range determination shall be included
in the source selection document. The discussion in the source
selection document at a minimum shall address the factors referenced in
paragraph (c)(1) of this section.
(3) The Contracting Officer shall provide a copy of the competitive
range determination or source selection document to the Competition
Advocate after approval of the determination or document by the
designated Source Selection Official.
8. Section 1515.611 is revised to read as follows:
1515.611 Best and final offers.
The Contracting Officer shall establish a common cut-off date for
receipt of revised proposals and/or confirmations of negotiations (best
and final offers) upon completion of negotiations.
9. Section 1515.612 is amended by revising paragraphs (a)(1)(iii),
(iv) and (v); and by adding paragraph (c) to read as follows:
1515.612 Formal source selection.
(a) * * *
(1) * * *
(iii) SEB Membership--The SSO will determine the organizational
levels of the individuals to serve on the SEB.
(iv) TEP Chairperson--The SSO will determine, based on the
recommendation of the requesting program office, the Chairperson of the
TEP. For recompetes or follow-on contracts, the Chairperson should
normally not be the incumbent contract's Project Officer.
(v) TEP Membership--At least two members, in addition to the
Project Officer, who are knowledgeable of the procurement's technical
aspects. If the procurement is a follow-on to an existing contract, at
least one of the TEP members should be someone who is not involved in
managing the current contract, preferably from outside of the program
division which originated the requirement. See 1515.604(a) for waiver
of this requirement.
* * * * *
(c) Source Selection Plan. No separate source selection plan is
required. The Contracting Officer may include the information required
by FAR 15.612(c) in the individual acquisition plan.
10. Section 1552.215-70 is revised to read as follows:
1552.215-70 EPA Source Selection and Selection Procedures--Negotiated
Procurements (SEP 1996)
As prescribed in 1515.605, insert the following provision.
EPA SOURCE SELECTION AND SELECTION PROCEDURES--NEGOTIATED PROCUREMENTS
(SEP 1996)
(a) The Government will perform source selection in accordance
with FAR Part 15 and the EPA Source Evaluation and Selection
Procedures in EPAAR Part 1515 (48 CFR Part 1515). The significant
features of this procedure are:
(1) The Government will perform either cost analysis or price
analysis of the offeror's cost/business proposal in accordance with
FAR Parts 15 and 31, as appropriate. In addition, the Government
will also evaluate proposals to determine contract cost or price
realism.
Cost or price realism relates to an offeror's demonstrating that
the proposed cost or price provides an adequate reflection of the
offeror's understanding of the requirements of this solicitation,
i.e., that the cost or price is not unrealistically low or
unreasonably high.
(2) The Government will evaluate technical proposals as
specified in 1552.215-71, Evaluation Factors for Award.
(b) In addition to evaluation of the previously discussed
elements, the Government will consider in any award decision the
responsibility factors set forth in FAR Part 9.
(End of Provision)
11. Section 1552.215-71 is revised as follows:
1552.215-71 Evaluation Factors for Award.
As prescribed in 1515.605, insert one of the following provisions.
EVALUATION FACTORS FOR AWARD (SEP 1996)
(a) The Government will make award to the responsible offeror(s)
whose offer conforms to the solicitation and is most advantageous to
the Government, cost or price and other factors considered. For this
solicitation, all evaluation factors other than cost or price when
combined are significantly more important than cost or price.
(b) Technical Evaluation Criteria:
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(End of Provision)
EVALUATION FACTORS FOR AWARD (SEP 1996)
ALTERNATE I (SEP 96)
(a) The Government will make award to the responsible offeror(s)
whose offer conforms
[[Page 47068]]
to the solicitation and is most advantageous to the Government, cost
or price, and other factors considered. For this solicitation, all
evaluation factors other than cost or price when combined are
significantly less important than cost or price.
(b) Technical Evaluation Criteria:
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(End of Provision)
EVALUATION FACTORS FOR AWARD--PROPOSAL MEETS THE MINIMUM NEEDS OF THE
GOVERNMENT WITH THE LOWEST EVALUATED COST/PRICE
ALTERNATE II (SEP 1996)
(a) The Government will make award to the lowest-evaluated cost
or price, technically acceptable, responsible offeror whose offer
meets the minimum needs of the Government. In the event that there
are two or more technically acceptable, equal price (cost) offers,
the Government will consider other factors, as listed below in
descending order of importance:
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(b) Technical Evaluation Criteria:
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(End of Provision)
EVALUATION FACTORS FOR AWARD (SEP 1996)
ALTERNATE III (SEP 96)
(a) The Government will make award to the responsible offeror(s)
whose offer conforms to the solicitation and is most advantageous to
the Government, cost or price, and other factors considered. For
this solicitation, all evaluation factors other than cost or price
when combined are approximately equal to cost or price.
(b) Technical Evaluation Criteria:
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(End of Provision)
Sec. 1552.215-72 [Removed]
12. Section 1552.215-72 is removed.
Dated: August 21, 1996.
John C. Gherardini III,
Acting Director, Office of Acquisition Management.
[FR Doc. 96-22642 Filed 9-5-96; 8:45 am]
BILLING CODE 6560-50-P
