Federal Acquisition Regulation; Part 15 RewritePhase I

Federal RegisterSep 12, 1996

Ask Donna

What actually matters in this document.

Text

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.

-----------------------------------------------------------------------

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.

* * * * *

(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.

[[Page 48383]]

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

(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));

(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.

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

(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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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).

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.

[GRAPHIC] [TIFF OMITTED] TP12SE96.064

[[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

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.