Modification of Test of MidRange Procurement Procedures

Federal RegisterNov 17, 1994

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1871

Modification of Test of MidRange Procurement Procedures

AGENCY: Office of Procurement, NASA.

ACTION: Temporary rule.

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SUMMARY: The Office of Federal Procurement Policy approved a test of

NASA's MidRange Procurement Procedures in 1993. This modification of

the procedures is a result of OFPP's approval to expand the test to all

NASA centers and addresses other editorial and substantive changes.

EFFECTIVE DATES: This regulation is effective November 17, 1994, and

expires June 30, 1997.

FOR FURTHER INFORMATION CONTACT:

Mr. T. Deback, (202) 358-0431.

SUPPLEMENTARY INFORMATION: The MidRange Procurement Procedures were

published in 58 FR 54300, October 21, 1993.

Comments on the test procedure had been requested in 57 FR 57845,

December 7, 1992. The following substantive changes are being made to

the MidRange Procurement Procedures: (1) Authority to utilize these

procedures at all NASA centers is provided, (2) construction and A&E

contracts may now be done under MidRange, (3) the Best Value Selection

procedures have been simplified to limit the value characteristics, and

(4) the Electronic Bulletin Board aspects of MidRange have been

clarified since we will be using Internet in lieu of a separate

bulletin board. The use of the Electronic Bulletin Board was approved

as part of the Federal Acquisition Streamlining Act. NASA is in the

process of developing the Bulletin Board and will provide industry

notice of its use through the Commerce Business Daily. NASA will

continue publishing synopses in the Commerce Business Daily until that

notice is provided.

List of Subjects in 48 CFR Part 1871

Government Procurement.

Thomas S. Luedtke,

Deputy Associate Administrator for Procurement.

Accordingly, under the authority of 42 U.S.C. 2473(c)(1), 48 CFR

ch. 18 is amended by revising part 1871 to read as follows:

PART 1871--MIDRANGE PROCUREMENT PROCEDURES

1871.000 Scope of part.

Subpart 1871.1--General

1871.101 Purpose.

1871.102 Authority.

1871.103 Applicability.

1871.104 Definitions.

1871.105 Policy.

Subpart 1871.2--Planning and Requirements Process

1871.201 Use of buying team.

1871.202 Organizational responsibilities.

1871.202-1 Requiring organization.

1871.202-2 Procurement organization.

1871.202-3 Supporting organizations.

1871.202-4 Center management.

1871.203 Buying team responsibilities.

1871.204 Small business set-asides.

Subpart 1871.3--Publicizing of Solicitation

1871.301 Publicizing policy.

1871.302 Publicizing procedure.

Subpart 1871.4--Request for Offer (RFO)

1871.401 Types of RFO's.

1871.401-1 Sealed offers.

1871.401-2 Two-step competitive procurement.

1871.401-3 Competitive negotiated procurement not using qualitative

criteria.

1871.401-4 Competitive negotiation using qualitative criteria.

1871.401-5 Noncompetitive negotiations.

1871.402 Preparation of the RFO.

1871.403 Offer preparation period and limitations.

1871.404 Protection of offers.

1871.405 Model contract.

1871.406 RFO by electronic bulletin board.

1871.406-1 Methods of disseminating information.

1871.406-2 Special situations.

1871.406-3 Publicizing and response time.

1871.406-4 Method of soliciting offers.

Subpart 1871.5--Award

1871.501 Representations and certifications.

1871.502 Determination of responsible contractor.

1871.503 Negotiation documentation.

1871.504 Award documents.

1871.505 Notifications to unsuccessful offerors.

1871.506 Publication of award.

1871.507 Debriefing of unsuccessful offerors.

Subpart 1871.6--``Best Value Selection''

1871.601 General.

1871.602 Specifications for MidRange procurements.

1871.603 Establishment of evaluation criteria.

1871.604 Evaluation phases.

1871.604-1 Initial Evaluation.

1871.604-2 Determination of ``Finalists''.

1871.604-3 Discussions with ``Finalists''.

1871.604-4 Selection of ``Best Value'' Offer.

1871.605 Negotiation methods and procedures.

1871.606 Debriefings.

Authority: 42 U.S.C. 2473(c)(1).

PART 1871--MIDRANGE PROCUREMENT PROCEDURES

1871.000 Scope of part.

This part prescribes policies and procedures for the acquisition of

supplies and services from commercial sources as a pilot test

procurement program.

Subpart 1871.1--General

1871.101 Purpose.

The purpose of this part is to establish policies and procedures

that implement the MidRange procurement process. This will be a pilot

test program at the National Aeronautics and Space Administration

(NASA).

1871.102 Authority.

The Office of Federal Procurement Policy has provided authority for

NASA to conduct a pilot test of a new procurement process within the

scope of this part.

1871.103 Applicability.

(a) This part applies to all acquisitions, as described in

1871.103(b), conducted at NASA installations.

(b) This part applies to all contract actions, the aggregate amount

of which is greater than the small purchase limitation ((FAR) 48 CFR

Part 13) and not more than $500,000 in basic value. For service

contracts (exclusive of R&D and construction for which options are not

permitted), up to four annual options of not more than $500,000 each

are permitted where the option requirements are substantially the same

as the basic requirement. For supply contracts, four options of not

more than $500,000 each are permitted when not more than $500,000 in

funding is to be required in any fiscal year. The total amount of the

basic award plus options may not exceed $2,500,000 in either the case

of supplies or services except as provided in paragraph (c) of this

section.

option amount, if any, exceeds the limits of 1871.103(b), the

procurement will be processed under FAR and NFS procurement procedures

applicable to large procurements (see (FAR) 48 CFR Parts 14 and 15).

When the estimate is within the range of 1871.103(b) and the

procurement was started using these procedures but the offered prices/

costs exceed the MidRange ceiling, the procurement may continue under

MidRange procedures, provided that:

(1) The price/cost can be determined to be fair and reasonable,

(2) The successful offeror accepts incorporation of required FAR

and NFS clauses applicable to large procurements, and

(3) The procurement does not exceed $750,000 for the basic

requirement (and each option, if any) or $3,750,000 for the total

requirement.

1871.104 Definitions.

The following terms are used throughout part 1871 as defined in

this subpart.

(a) NASA Acquisition Bulletin Board or NABB means an electronic

bulletin board; i.e., a computer system through which users may access

documents available in electronic format.

(b) MidRange procurement procedure means a set of procedures within

the authority of 1871.102 and the applicability of 1871.103.

conducted within the authority of 1871.102 and applicability of

1871.103.

(d) Request for Offer (RFO) means the solicitation used to request

offers for all authorized MidRange procurements.

(e) Clarification and Discussion are used as defined in (FAR) 48

CFR 15.601.

(f) Negotiation is used as defined in (FAR) 48 CFR 15.101 and

includes bargaining as described in (FAR) 48 CFR 15.102.

1871.105 Policy.

(a) The procedures in this part shall be used for all procurements

within the scope of part 1871 at NASA installations.

(b) Under MidRange procedures, cost or pricing data and

certification thereof shall be in accordance with (FAR) 48 CFR 15.804.

properly restricted under the provisions of (FAR) 48 CFR part 6, are

considered to be full and open competition after exclusion of sources

in accordance with (FAR) 48 CFR 6.203, Set-asides for small business

and labor surplus area concerns, or full and open competition in

accordance with (FAR) 48 CFR part 6, subpart 6.1.

(d) Options may be included in the acquisition provided they

conform to 1871.103(b) or do not exceed $500,000 for the total

requirement, options included.

(e) The appropriate part 1871 post-selection processes

(negotiation, award, and publication of award) may be used to the

extent applicable for Small Business Innovation Research (SBIR), broad

agency announcements, unsolicited proposals, and Small Business

Administration 8(a) procurement actions within the applicability of

1871.103(b). Notwithstanding the threshold requirements set forth in

1871.103(b), SBIR Phase II contracts may be awarded in amounts not

exceeding $750,000.

(f) The NABB will be used to the maximum extent practicable to

disseminate advance procurement information and conduct part 1871

procurements.

(g) Use of locally generated forms is encouraged where their use

will contribute to the efficiency and economy of the process. NASA

Forms 1667, Request for Offer, and 1668, Contract, or computer

generated versions of these forms shall be used as the solicitation and

contract cover sheets, respectively. Contractor generated forms or

formats for solicitation response should be allowed whenever possible.

There is no requirement for uniform formats (see (FAR) 48 CFR 15.406).

Subpart 1871.2--Planning and Requirements Process

1871.201 Use of buying team.

MidRange procedures are based on the use of a buying team to

conduct the procurement. The concept is to designate individuals who

are competent in their respective functional areas, provide those

individuals with the basic authority to conduct the procurement and

hold them accountable for the results. The buying team will normally

consist of one technical member and one procurement member, but may be

augmented with additional members as necessary. Personnel providing

normal functional assistance to the team (e.g., legal, financial) will

not be considered a part of the team unless so designated. To function

properly, the team should be given the maximum decision authority in

matters related to the procurement. When higher level management

approvals remain essential, it will be incumbent upon the functional

team member to obtain such approvals. The team may accept, as final,

the decision of the responsible buying team member.

1871.202 Organizational responsibilities.

1871.202-1 Requiring organization.

The requirements organization shall appoint, by name, the technical

member of the buying team. This individual will normally be an end user

or the one most familiar with the technical aspects of the requirement.

The individual appointed, whatever the relationship with the procured

item, is expected to totally fulfill the responsibilities to the buying

team. If the requiring organization elects not to appoint a technical

member to the buying team, standard interfaces and authorities

applicable to large procurements will be used. The procedures in this

part will be used to the extent practical; however, priority will be

afforded to procurements fully using buying teams.

1871.202-2 Procurement organization.

The procurement organization shall appoint the procurement member

of the buying team. This individual shall be a warranted contracting

officer or a contract specialist with broad latitude to act for the

contracting officer. The procurement member shall be the team leader

with the ultimate responsibility to conduct the procurement.

1871.202-3 Supporting organizations.

Buying team members may require additional team members to perform

specialized functions or to assist in the evaluation of offers.

Requests for supporting members shall be made by the organization

identifying the need for the support and directed to the appropriate

management level in the supporting organization. Supporting team

members, once designated for the team, shall fulfill all applicable

responsibilities to the team as other members.

1871.202-4 Center management.

Center managers shall, to the maximum extent practical and

consistent with their responsibilities to manage the Center mission,

convey sufficient authority to members of the buying team to conduct

the procurement. Administrative or technical approvals should be

minimized, and where deemed essential, facilitated to the maximum

extent practicable. Center managers should lend their full support to

the buying team should problems arise from the procurement.

1871.203 Buying team responsibilities.

(a) The buying team shall conduct the procurement in a manner that

best satisfies the user requirements and meets the norms expected of a

Government procurement. Team members should develop open

communications, rely on decisions of other responsible functional team

members and meet their obligations to the team. The team will

typically--

(1) Refine the final specifications for the solicitation;

(2) Decide the most appropriate solicitation method;

(3) Establish milestones for the procurement;

(4) Finalize the evaluation criteria;

(5) Develop the RFO and model contract; and

(6) Evaluate offers and determine the awardee.

(b) The procurement member of the buying team shall lead

clarifications, discussions, and negotiations; shall be the source

selection official; and shall conduct debriefings.

1871.204 Small business set-asides.

(a) Except as provided in paragraphs (b) through (e) of this

section, each MidRange acquisition of supplies and services shall be

reserved exclusively for small business concerns.

(b) The requirement for small business MidRange set-asides does not

relieve the buying office of its responsibility to procure from

required sources of supply, such as Federal Prison Industries,

Industries for the Blind and Other Severely Handicapped, and mandatory

multiple award Federal Supply Schedule contracts.

under less than full and open competition require a Justification for

Other than Full and Open Competition pursuant to (FAR) 48 CFR part 6.

(d) If the buying team procurement member determines there is no

reasonable expectation of obtaining offers from two or more responsible

small business concerns that will be competitive in terms of market

price, quality, and delivery, the buying team need not proceed with the

small business set-aside and may purchase on an unrestricted basis

utilizing MidRange procedures. The buying team procurement member shall

document the contract file with the reason for the unrestricted

procurement.

(e) If the buying team proceeds with the small business MidRange

set-aside and receives an offer from only one responsible small

business concern at a reasonable price, the contracting officer will

normally make an award to that concern. However, if the buying team

does not receive a reasonable offer from a responsible small business

concern, the buying team procurement member may cancel the small

business set-aside and complete the procurement on an unrestricted

basis utilizing MidRange procedures. The buying team procurement

members shall document in the file the reason for the unrestricted

purchase.

(f) Each model contract under a small business MidRange set-aside

shall contain the clause at (FAR) 48 CFR 52.219-6, Notice of Total

Small Business Set-Aside.

Subpart 1871.3--Publicizing of Solicitation

1871.301 Publicizing policy.

Use of the MidRange procedure is intended to streamline and

expedite the acquisition process. Presolicitation publication

requirements are streamlined; however, it is in the Government's

interest to provide as much advance notice as possible of a pending

acquisition in order for the Government to obtain maximum competition.

As soon as practicable after a requirement has been finalized and

before the RFO is ready for release, a presolicitation notice of the

procurement action shall be published on the NABB.

1871.302 Publicizing procedure.

(a) Synopses are not to be sent or published in the Commerce

Business Daily.

(b) A separate pre-solicitation notice for each requirement shall

be published on the NABB. The pre-solicitation notice shall be

published prior to the actual release of the solicitation.

set forth in (FAR) 48 CFR 5.207(b).

(1) Include a statement that the solicitation will be released via

the NABB, that potential offerors will be responsible for downloading

their own copy of the solicitation, and that hard copies of the

solicitation shall be made available on request, but the closing date

will be the same as that required for the NABB released solicitation;

and

(2) State the projected solicitation release date, provide notice

that it is the offeror's responsibility to monitor the NABB for

solicitation release as the solicitation will be released as soon as

permissible whether prior or subsequent to the projected date, and

identify the name, telephone number, and e-mail address of a point of

contact. The presolicitation notice shall be updated to reflect

significant changes to the original notice.

Subpart 1871.4--Request for Offer (RFO)

In MidRange procedures, solicitation of sources shall be

accomplished by use of an RFO. The RFO will be solely a solicitation

document incorporating only those elements of information required to

solicit the offer. Offers will be provided on a model contract

furnished with the RFO.

1871.401 Types of RFO'S.

The RFO may be used for all types of procurements to which MidRange

is applicable. The distinguishing difference will be the evaluation and

award criteria specified in the RFO. This, in turn, will be driven by

the buying team's decisions on the extent of discussion required, the

amount of non-price factors that will influence the award and the

amount of competition available. If the conditions in (FAR) 48 CFR

6.401(a) are met, the RFO's described in 1871.401-1 and 1871.401-2

shall be used; otherwise, RFO's described in 1871.401-3, 1871.401-4, or

1871.401-5 may be used. Once the evaluation and award criteria have

been specified in the RFO, the procurement must conform to the

procedures applicable to these criteria, unless changed by formal

amendment to the RFO.

1871.401-1 Sealed Offers.

(a) Policy. RFO's may specify that award will be made to the low,

responsive, responsible offeror providing the most advantageous offer

considering only price and price-related factors. This method shall be

used when (1) time permits the solicitation, submission, and evaluation

of sealed offers; (2) award will be made on the basis of price and

other price-related factors; (3) conducting discussions with the

offerors is not necessary; and (4) a reasonable expectation of

receiving more that one offer exists. The RFO shall be in compliance

with the requirements of (FAR) 48 CFR part 14 relating to Sealed

Bidding.

(b) Procedures. (1) The RFO shall request offerors to provide both

a technical and price offer by the closing date specified.

(2) In accordance with (FAR) 48 CFR Part 14, offers (whether

received by facsimile or sealed envelope delivery) shall be publicly

opened at the designated time and place. Interested members of the

public will be permitted to attend the opening. Offers shall be

abstracted pursuant to (FAR) 48 CFR part 14 and be available for public

inspection. For unclassified acquisitions, a summary abstract,

containing offerors, prices and any essential information specific to

that procurement shall be posted on the NABB. The abstract shall be

included in the contract file.

(3) All offers shall be examined for mistakes in accordance with

(FAR) 48 CFR 14.406. The buying team shall determine that a prospective

contractor is responsible and that the prices offered are reasonable

(see (FAR) 48 CFR 14.407-2).

(4) The Government will award a contract to the low, responsive,

responsible offeror, whose offer conforms to the RFO and will be most

advantageous to the Government, considering only price and the price-

related factors included in the solicitation

1871.401-2 Two-Step competitive procurement.

(a) Policy. (1) RFO's may specify that evaluation and award may be

conducted in two distinct steps, similar in concept to ``Two Step

Sealed Bidding.'' The MidRange Two Step process should be used when it

is desirable to award to the lowest, responsive, responsible offeror

after determining that the initial technical offer, or the revised

technical offer, is acceptable.

(2) The procedures of (FAR) 48 CFR 14.503-2(a) shall be used once

Step two of this process begins.

(b) Procedures. (1) The RFO shall request offerors to provide both

a technical and a price offer by the closing date specified. Price

offers are requested to ensure that they are accomplished in a timely

manner and to reduce the time required for Step Two.

(2) Step One. The technical offer will be evaluated to determine if

the product or service offered is acceptable. The buying team may

proceed directly to Step Two if there are sufficient acceptable offers

to ensure adequate price competition, and if further time, effort and

delay to make additional offers acceptable and thereby increase

competition would not be in the Government's interest. If this is not

the case, the buying team procurement member shall enter into

discussions and request offeror(s) whose offer(s) is susceptible to

being made acceptable to submit additional clarifying or supplementing

information to make it acceptable (see (FAR) 48 CFR 14.503-1). It is

expected that these discussions will be conducted on an informal basis.

After completion of discussions, the buying team shall proceed to Step

Two.

(3) Step Two. The buying team shall afford all offerors who have

submitted acceptable offers and those offers with whom discussions were

conducted, an opportunity, by a common date, to revise their price

offers. No changes to technical offers will be permitted during this

process. A reasonable amount of time (normally less than 5 working

days) will be afforded for the revision. The amount of time given shall

be the same for each offeror. The procedures at 1871.401-1(b)(2) and

(3) shall then be followed.

(4) The Government will award a contract to the low, responsive,

responsible offeror, whose offer conforms to the RFO and will be most

advantageous to the Government, considering only price and the price-

related factors included in the solicitation.

1871.401-3 Competitive negotiated procurement not using qualitative

criteria.

(a) Policy. (1) RFO's may provide for discussion of all aspects of

the offer but award is based on the lowest priced (or most probable

cost) technically acceptable offer. This method should be used when

qualitative factors are not material in the award decision, but it is

important to assure that technical offers and contract terms are fully

compliant with the Government's needs. This method also permits direct

discussion of price with offerors and is particularly appropriate when

different approaches can be offered to satisfy the Government's need.

(2) The RFO should reserve the right to award without discussion

based on the initial offers submitted. (FAR) 48 CFR 52.215-16,

Alternate III will be included in all RFO's for competitive negotiated

procurements not using qualitative criteria.

(b) Procedures. (1) The RFO shall request offerors to provide both

a technical and a price offer by the closing date specified.

(2) Initial evaluation. The offer shall be reviewed to determine if

all required information has been provided. No further evaluation shall

be made of any offer that is deemed unacceptable because it does not

meet the technical requirements of the RFO and is not reasonably

susceptible to being made so. Offerors may be contacted for

clarification purposes only during the initial evaluation. Offerors

determined not to be acceptable shall be notified of their rejection

and the reasons therefor and excluded from further consideration.

Documentation for such rejection should consist of one or more succinct

statements of fact that show the offer is not acceptable. No

documentation is required if all offers are deemed to be acceptable or

reasonably susceptible to being made so.

(3) Determination of finalists. From among the acceptable offers

and those susceptible to being made acceptable, the buying team shall

rank the offers based on price (or most probable cost) and exclude any

whose price/most probable cost precludes any reasonable chance of being

selected for final award. The remaining offers constitute the

``finalists'' for the contract. Only in exceptional cases will this

number be less than two offers. The procurement buying team member

shall succinctly record the basis for the decision.

(4) Discussions. Discussions may be used if it is necessary to

request the offeror to submit additional clarifying or supplementing

information to make an offer acceptable. The procurement buying team

member shall lead discussions with each finalist. The discussions are

intended to assist the buying team in fully understanding each

finalist's offer and to assure that all finalists are competing equally

on the basis intended. Care must be exercised to ensure these

discussions adhere, to the extent applicable, to the guidelines set

forth in 1815.613-71(b)(5) for the applicable contract type. Technical

transfusion, technical leveling, and auction techniques are prohibited.

It is expected that discussions will be conducted on an informal basis

with each finalist. After completion of discussions, each finalist

shall be afforded an opportunity to revise its offer to support and

clarify its offer. A reasonable amount of time (normally less than 5

working days) will be afforded for the revision. The amount of time

given shall be the same for each finalist. Such discussions are not

required if there are sufficient acceptable offers to ensure adequate

price competition, and if further time, effort and delay to make

additional proposals acceptable and thereby increase competition, would

not be in the Government's interest.

(5) The buying team may choose to conduct parallel negotiations

with all acceptable offerors without a determination of finalists. This

could particularly apply when few offers were received.

(6) Selection. The procurement team member shall be the source

selection official. The source selection official may elect to make

selection in lieu of determining finalists provided that it can be

demonstrated that (i) selection of an initial offer(s) will result in

the lowest price/cost to the Government and (ii) discussions with other

acceptable offerors are not anticipated to change the outcome of the

initial evaluation relative to evaluated price/cost. It is expected

that the source selection statement will not ordinarily exceed one page

and that the basis for the decision will be apparent upon review of the

informal worksheets used in the evaluation process. These informal

worksheets shall be included in the contract file.

(7) The names of offerors determined to be finalists, selected for

parallel negotiations, or selected for negotiations and/or final

contract award will be electronically transmitted to the offerors. This

will serve as notification to those offers that were not selected for

further evaluation (see 1871.505).

(8) Negotiation methods and procedures. The buying team may choose

to conduct parallel negotiations of complete contracts with those

offerors determined to be finalists or with all acceptable offerors,

including offers susceptible to being made acceptable. The buying team

may discuss any aspect of the offer during parallel negotiations. The

objective of the negotiations should be to achieve revisions to the

offer, consistent with the RFO, that are more favorable to the

Government. Technical transfusion, technical levelling, and auction

techniques are prohibited. Upon conclusion of negotiations with each

offeror, the offeror shall be asked to submit a revised offer (in full

or amended) reflecting the results of negotiations, and including the

offeror's signature on the negotiated contract. A reasonable amount of

time (normally less than 5 working days) will be afforded for the

revision. Award will be made to the lowest priced (or most probable

cost), technically acceptable offer.

1871.401-4 Competitive negotiations using qualitative criteria.

(a) Policy. (1) MidRange procurements shall normally use the BVS

source selection method, prescribed in 48 CFR part 1871, subpart 1871.6

when it is desirable to base evaluation and award on a combination of

price and non-price qualitative criteria.

(2) The RFO should reserve the right to award without discussion

based on the initial offers submitted. (FAR) 48 CFR 52.215-16,

Alternate III will be included in all RFO's for competitive negotiated

procurements using qualitative criteria.

(3) In exceptionally complex procurements where it is desirable to

use a highly structured approach and multiple evaluators, a source

selection method following the principles specified in NASA Source

Evaluation Board Handbook, 48 CFR 1870.303, Appendix I, may be more

appropriate than BVS. This may be appropriate in cases in which the

following factors cannot be accommodated within the MidRange/BVS

selection methodology:

(i) The ability to predefine the value characteristics that will

constitute the discriminators among the offers;

(ii) The complexity of the interrelationships that must be

evaluated;

(iii) The number of evaluators required to address the disciplines

that will be involved in the offers; or

(iv) The impact that the procurement may have on higher level

mission management (level of selection official) or future

procurements.

(4) A source selection process combining the mid-range and the NASA

Source Evaluation Board Handbook (48 CFR 1870.303, Appendix I)

approaches shall not be used.

(b) Procedures. (1) The buying team will determine which of the

source selection methodologies is most appropriate to the specific

procurement.

(2) The team shall record its rationale for selecting the SEB

methodology rather than BVS. Once this decision is made, the team shall

no longer function as a MidRange buying team, but shall follow the

instructions prescribed in the local procedures for the source

selection method.

1871.401-5 Noncompetitive negotiations.

(a) Policy. (1) The RFO may be used as the solicitation method for

noncompetitive procurements.

(2) MidRange procedures may be used in noncompetitive acquisitions

to the extent they are applicable.

(b) Procedures. (1) Posting a presolicitation notice on the NABB

meets the requirement of (FAR) 48 CFR 5.201 and complies with the

notice required by the Competition in Contracting Act. A

presolicitation notice is not required if one of the exceptions of

(FAR) 48 CFR 5.202 is met.

(2) The buying team shall require submission of certified cost and

pricing data in accordance with (FAR) 48 CFR 15.804-2.

(3) The technical member of the buying team shall provide technical

assistance to the procurement member during evaluation and negotiation

of the contractor's offer.

1871.402 Preparation of the RFO.

(a) The RFO shall provide all standard information required for the

offeror to submit an offer.

(b) The RFO shall contain space for all necessary additional

instructions to offerors. As a minimum, the RFO shall contain the

following:

(1) Incorporation by reference of all required standard provisions.

(2) A provision notifying offerors that standard Representations

and Certifications will be required from the successful offeror, or

from all offerors selected for parallel negotiations, prior to award of

the contract.

(3) Evaluation and award criteria.

(4) A provision requiring offerors to submit offers on an attached

model contract.

the minimum required to provide for proper evaluation. Offerors'

formats should be allowed to the maximum extent possible.

(d) Facsimile offers, defined by Federal Acquisition Regulation 48

CFR 14.202-7 and 15.402(i), shall normally be authorized for MidRange

procurements. In special circumstances, the buying team may elect to

require only original offers.

1871.403 Offer preparation period and limitations.

The buying team should establish deadlines for receipt of offers

based on an assessment of the minimum amount of time required to

respond to the solicitation. The time required will depend on the

complexity of the requirement and amount of cost and technical

information required to be submitted. The information required shall be

limited to the amount required to conduct a proper evaluation. The

offer preparation period established in the RFO shall not be less than

15 calendar days unless the procurement is urgent and the reasons for

urgency are documented in the contract file.

1871.404 Protection of offers.

A facsimile machine(s) shall be dedicated for receipt of offers and

placed in a secure location where offers received on it can be

safeguarded. All offers submitted shall be recorded, sealed in an

envelope marked with the RFO number and taken to the buying team

procurement member. Facsimile attendants shall make a good faith effort

to inspect the document for completeness and legibility. If the

attendant believes there are missing or illegible pages, the document

will be promptly referred to the buying team procurement member for

notification to the offeror that it should resubmit the offer. The

Government shall not assume responsibility for proper transmission.

1871.405 Model contract.

MidRange procedures use a simplified contract format. The

simplified contract format may be used with any type of contract, as

long as the clauses and provisions appropriate to the contract type are

included.

1871.406 RFO by electronic bulletin board.

1871.406-1 Methods of disseminating information.

(a) In accordance with 1871.302, presolicitation notices of

solicitations for MidRange procurements shall be posted on the NABB.

The presolicitation notice shall include the information required by

1871.302(c).

(b) Solicitations for MidRange Procurements shall be made available

on the NABB. Paper copies shall be mailed within 5 working days from

the date the RFO is posted on the NABB or receipt of the request,

whichever is later.

requirement in (FAR) 48 CFR 14.203-1 that delivery of the solicitations

be made pursuant to (FAR) 48 CFR 14.205.

(d) For the purposes of (FAR) 48 CFR 15.402(a), a solicitation

posted on the NABB is a written solicitation.

(e) Solicitations posted on the NABB in accordance with these

regulations are exempt from the requirement in (FAR) 48 CFR 15.408(a)

to issue solicitations using the procedures in (FAR) 48 CFR Part 5.

1871.406-2 Special situations.

Notices for special situations as described in (FAR) 48 CFR 5.205

involving MidRange Procurements must be published in the Commerce

Business Daily. Such special situations include R&D sources sought,

intent to sponsor or change the mission of an Federally Funded Research

and Development Center, effort to locate commercial sources under OMB

Circular No. A-76, and Section 8(a) competitive national buy

acquisitions.

1871.406-3 Publicizing and response time.

In accordance with 18.403, contracting activities shall allow at

least 15 calendar days response time for receipt of offers from the

date of posting of the solicitation on the NABB. Contracting activities

shall check the NABB immediately after uploading a solicitation to

assure that the solicitation is properly posted.

1871.406-4 Method of soliciting offers.

(a) Solicitations and solicitation amendments for MidRange

procurements shall be generated in, or converted to, electronic files

and uploaded to the NABB. Each contracting activity will designate two

or more individuals to perform the upload and check the uploaded files

to assure that the data was not corrupted during transmission.

(b) Amendments to a solicitation posted on the NABB shall be

uploaded to the NABB, and the solicitation and amendment number shall

be added to the index of amended solicitations.

Subpart 1871.5--Award

1871.501 Representations and certifications.

Upon determination of the successful offeror, or all offerors

selected for parallel negotiations, the buying team procurement member

will determine if the offeror has on file valid Representations and

Certifications. If the offeror has not completed the required forms, or

they have expired, the offeror will be requested to provide the forms

promptly. Should the offeror fail to provide the required

Representations and Certifications or fail to meet a required

condition, the buying team may reject the offer and proceed to the next

highest ranked offeror who is responsive and responsible.

1871.502 Determination of responsible contractor.

Contractor responsibility shall be determined in accordance with

(FAR) 48 CFR Part 9.

1871.503 Negotiation documentation.

The prenegotiation memorandum, if required, and the results of

negotiation will be in abbreviated form and will be approved by the

buying team.

1871.504 Award documents.

Contract award shall be accomplished by Contracting Officer

execution of the contract document and providing a paper copy to the

successful offeror. If facsimile documents were used in the evaluation

process, the successful offeror may be required to execute original

copies of the contract to facilitate legibility during the

administration phase of the contract.

1871.505 Notifications to unsuccessful offerors.

For solicitations that were posted on the NABB, a preaward notice

shall be electronically transmitted to the offerors. This notice meets

the requirements of (FAR) 48 CFR 15.1001. However, the preaward notice

in a small business set-aside must allow unsuccessful offerors 5

working days to challenge the small business status of the successful

offeror. The procedures of (FAR) 48 CFR 15.1001(c)(2) shall be followed

for procurements subject to the Trade Agreements Act.

1871.506 Publication of award.

An award notice shall be posted on the NABB for seven (7) calendar days

after posting, if the contract offers subcontracting opportunities or

if it is subject to the Trade Agreement Act. The information required

by (FAR) 48 CFR 5.207 shall be included in the award notice in

abbreviated form.

1871.507 Debriefing of unsuccessful offerors.

If the procurement method used provides for a debriefing of

unsuccessful offerors, the procedures applicable to that selection

process shall be used in the debriefing. The procurement buying team

member shall conduct debriefings.

Subpart 1871.6--``Best Value Selection''

1871.601 General.

(a) Best Value Selection (BVS) seeks to select an offer based on

the best combination of price and qualitative merit of the offers

submitted and reduce the administrative burden on the offerors and the

Government.

(b) BVS takes advantage of the lower complexity of MidRange

procurements and predefines the value characteristics which will serve

as the discriminators among offers. It eliminates the use of area

evaluation factors and the highly structured scoring.

1871.602 Specifications for MidRange procurements.

BVS refines the traditional approach to preparing specifications.

BVS envisions that the specification will focus on the end result that

is to be achieved and will serve as a statement of the Government's

baseline requirements. The offeror will be guided in meeting the

Government's needs by a separate set of value characteristics which

establish what the Government considers to be valuable in an offer.

These value characteristics will be performance based and will permit

the selection of the offer which provides better results for a

reasonable marginal increase in price.

1871.603 Establishment of evaluation criteria.

(a) The requiring organization will provide, along with the

specification, a list of value characteristics against which the offers

will be judged. There is no limit to the number or the type of

characteristics that may be specified. The only standard will be

whether the characteristic is rationally related to the need specified

in the specification. Characteristics may include such factors as

improved reliability, innovativeness of ideas, speed of service,

demonstrated delivery performance, higher speeds, ease of use,

qualifications of personnel, solutions to operating problems, level of

service provided on previous similar contracts, or any of numerous

other characteristics that may be of value to the Government in

satisfying its needs.

(b) Cost and technical will be considered equal in importance. The

value characteristics will not be assigned weights.

when determining the finalists or making the final selection for award.

Additional characteristics, not listed in the RFO, shall not be used as

a basis for discriminating among proposals.

1871.604 Evaluation phases.

1871.604-1 Initial evaluation.

(a) Offers will be reviewed to determine if all required

information has been provided and the offeror has made a reasonable

attempt to present an acceptable offer. Offerors may be contacted only

for clarification purposes during the initial evaluation. No further

evaluation shall be made of any offer that is deemed unacceptable

because:

(1) It does not represent a reasonable effort to address itself to

the essential requirements of the RFO or clearly demonstrates that the

offeror does not understand the requirements of the RFO;

(2) It contains major technical or business deficiencies or

omissions or out-of-line costs which discussions with the offeror could

not reasonably be expected to cure; or

(3) In R&D procurement, a substantial design drawback is evident in

the offer and sufficient correction or improvement to consider the

offer acceptable would require virtually an entirely new offer.

(b) Offerors determined not to be acceptable shall be notified of

their rejection and the reasons therefor and excluded from further

consideration.

acceptable, then no documentation is required and evaluation proceeds.

If one or more offers are not acceptable, the procurement member of the

team will notify the offeror of the rejection and the reasons therefor.

The documentation should consist of one or more succinct statements of

fact that show the offer is not acceptable.

1871.604-2 Determination of ``Finalists''.

(a) All acceptable offers will be evaluated against the

specifications and the value characteristics. Based on this evaluation,

the team will identify the finalists from among the offers submitted.

Finalists will include all offers having a reasonable chance of being

selected for final award, as prescribed in 1815.613-71(b)(4)(i) for

competitive range. Generally, finalists will include the offer having

the best price (or lowest most probable cost) and the offer having the

highest qualitative merit, plus those determined to have the best

combination of price and merit. Offers not qualifying as finalists will

be excluded from the balance of the evaluation process.

(b) Whenever possible, the buying team will conduct parallel

negotiations of complete contracts with all finalists as discussed in

1871.605. This approach, which provide for the negotiation of

definitive contracts prior to selection, serves to maintain the

competitive environment among offerors throughout the acquisition

cycle.

discussions with the finalists as opposed to conducting parallel

negotiations of complete contracts. This may be appropriate when: (1)

Certain aspects of offers are unclear and clarifying the offers could

determine that a finalist actually has no reasonable chance of being

selected for final award; or (2) the finalists are so numerous that

negotiating complete contracts with all finalists is not practical

considering the time and resources available. Discussions shall be

conducted in accordance with 1871.604-3.

(d) The buying team may choose to conduct parallel negotiations

with all acceptable offerors without a determination of finalists. This

could particularly apply where few offers were received.

(e) The selection official may elect to make selection in lieu of

determining finalists, provided it can be clearly demonstrated that (1)

selection of an initial offer(s) will result in the best value for the

Government, considering both price and non-price qualitative criteria;

and (2) discussions with other acceptable offerors are not anticipated

to change the outcome of the initial evaluation relative to the best

value offer(s).

(f) Documentation. If finalists are identified as discussed in

paragraph (a) of this section, the documentation expected and required

to result from this phase of evaluation is approximately one-quarter of

a page for each finalist. The documentation shall succinctly describe

how the value characteristics in the RFO were provided by the offeror

and cost/price considerations that caused the offer to qualify as a

finalist. The evaluator(s) shall not be required to justify why other

offers provided less qualitative merit. It is expected that, should the

decision be challenged, the documented reason for selection, when

compared with the non-selected offer, shall clearly demonstrate the

difference that resulted in non-selection. It is expected and

recommended that all informal worksheets used in the evaluation process

be included in the contract file for use in any debriefings requested.

When selection of the successful offeror(s) is made, the buying team

shall document the selection in accordance with 1871.604-4(c).

(g) The names of offerors determined to be finalists, selected for

parallel negotiations, or selected for negotiations or final contract

award will be electronically transmitted to the offerors. This will

serve as notification to those offerors that were not selected for

further evaluation (see 1871.505).

1871.604-3 Discussions with ``Finalists''.

(a) The procurement team member shall lead discussions with each

finalist. The discussions are intended to assist the buying team in

fully understanding each finalist's offer and to assure that the

meanings and points of emphasis of the RFO have been adequately

conveyed to the finalists so that all are competing equally on the

basis intended. Care must be exercised to ensure these discussions

adhere, to the extent applicable, to the guidelines set forth in

1815.613-71(b)(5) for the applicable contract type. Technical

transfusion, technical leveling, and auction techniques are prohibited.

It is expected that these discussions will be conducted on an informal

basis with each finalist.

(b) After completion of discussions, each finalist shall be

afforded an opportunity to revise its offer to support and clarify its

offer. A reasonable amount of time (normally less than 5 working days)

will be afforded for the revision. The amount of time given shall be

the same for each finalist.

1871.604-4 Selection of ``Best Value'' Offer.

(a) The procurement team member shall be the source selection

official.

(b) The BVS source selection is based on the premise that, if all

offers are of approximately equal qualitative merit, award will be made

to the offer with the lowest evaluated price (fixed-price contracts) or

the Government-determined most probable cost (cost type contracts).

However, the Government will consider awarding to an offeror with

higher qualitative merit if the difference in price is commensurate

with added value. Conversely, the Government will consider making award

to an offeror whose offer has lower qualitative merit if the price (or

cost) differential between it and other offers warrant doing so.

offeror shall be recorded in a selection statement which succinctly

records the value characteristics upon which selection was made. The

statement need not and should not reveal details of the successful

offer that are proprietary or business sensitive. Since the value

characteristics are expressed in performance terms, the reasons for

selection can focus on results to be achieved, rather than the detailed

approach the offeror will use. The statement shall also comment on the

rationale used to equate cost and qualitative merit. Little or no

comment would be required when the selected offeror possessed the

highest merit and lowest price. When a marginal analysis is made

between value characteristics and price (or cost)--in most cases this

will be a subjective, integrated assessment of all pertinent factors--

specific rationale should be provided to the extent possible. It is

expected that the statement will not ordinarily exceed one page. Where

the procurement is closely contested, it would be prudent to expand on

the rationale provided in the statement.

(d) The name of the offeror(s) selected for award and the selection

statement shall be electronically transmitted to the offerors which

will serve as a notification to those offerors that were not selected

(see 1871.505).

1871.605 Negotiation methods and procedures.

(a) Policy. (1) The buying team may choose to conduct parallel

negotiations of complete contracts with those offerors determined to be

finalists or with all acceptable offerors. Parallel negotiation may

also be used where more than one offeror is selected for negotiations

after discussions. Use of parallel negotiations takes advantage of the

competitive atmosphere and the responsiveness of offerors in completing

negotiations. It also provides the selection official a higher

confidence in the offer, since only the contracting officer's signature

is required to make the offer a binding contract.

(2) When the selection official has chosen to make selection in

lieu of conducting parallel negotiations, negotiations may be conducted

with the successful offeror(s) to resolve any open issues necessary to

effect a binding contract(s). This may be typical of R&D and service

contracts where the Government desires to negotiate changes in emphasis

or orientation in an otherwise superior offer(s).

(b) Procedure. (1) Upon conclusion of parallel negotiations with

each offeror, the offeror shall be asked to submit a revised offer (in

full or amended) reflecting the results of the negotiations, and

including the offeror's signature on the negotiated contract. A

reasonable amount of time (normally less than 5 working days) will be

afforded for the revision. The amount of time given shall be the same

for each offeror. Upon receipt of all offers, the procurement member of

the buying team shall make selection and document as required in

1871.604-4(c). Upon selection, the contracting officer shall execute

the selected contract.

(2) If negotiation is conducted after selection, the buying team

shall first select the offer and document as required in 1871.604-4(c),

then negotiate the terms of the contract. The offeror shall be asked to

submit a revised offer reflecting the results of negotiation, and

including the offeror's signature on the negotiated contract. A

reasonable amount of time (normally less than 5 working days) will be

afforded for the revision. After receipt of the revised offer, the

contracting officer shall execute the contract.

1871.606 Debriefings.

In addition to electronically transmitting the selection statement

to the offerors, a debriefing, a debriefing will be provided by the

buying team procurement member to any offeror submitting a written

request. The debriefing will concentrate on the reasons why the

successful offeror was selected. If the contract is unclassified, the

debriefer may reveal any aspect of the contract and how it relates to

the merits used to select the successful offer. If the successful offer

had value characteristics which are proprietary or business sensitive,

and had an impact on the selection, the debriefer should so state and

summarize the results which are expected to accrue to the Government.

The debriefer shall not divulge the details of the proprietary or

business sensitive information.

[FR Doc. 94-28169 Filed 11-16-94; 8:45 am]

BILLING CODE 7510-01-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.