[Federal Register Volume 59, Number 221 (Thursday, November 17, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28169]
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[Federal Register: November 17, 1994]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1871
Modification of Test of MidRange Procurement Procedures
AGENCY: Office of Procurement, NASA.
ACTION: Temporary rule.
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SUMMARY: The Office of Federal Procurement Policy approved a test of
NASA's MidRange Procurement Procedures in 1993. This modification of
the procedures is a result of OFPP's approval to expand the test to all
NASA centers and addresses other editorial and substantive changes.
EFFECTIVE DATES: This regulation is effective November 17, 1994, and
expires June 30, 1997.
FOR FURTHER INFORMATION CONTACT:
Mr. T. Deback, (202) 358-0431.
SUPPLEMENTARY INFORMATION: The MidRange Procurement Procedures were
published in 58 FR 54300, October 21, 1993.
Comments on the test procedure had been requested in 57 FR 57845,
December 7, 1992. The following substantive changes are being made to
the MidRange Procurement Procedures: (1) Authority to utilize these
procedures at all NASA centers is provided, (2) construction and A&E
contracts may now be done under MidRange, (3) the Best Value Selection
procedures have been simplified to limit the value characteristics, and
(4) the Electronic Bulletin Board aspects of MidRange have been
clarified since we will be using Internet in lieu of a separate
bulletin board. The use of the Electronic Bulletin Board was approved
as part of the Federal Acquisition Streamlining Act. NASA is in the
process of developing the Bulletin Board and will provide industry
notice of its use through the Commerce Business Daily. NASA will
continue publishing synopses in the Commerce Business Daily until that
notice is provided.
List of Subjects in 48 CFR Part 1871
Government Procurement.
Thomas S. Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, under the authority of 42 U.S.C. 2473(c)(1), 48 CFR
ch. 18 is amended by revising part 1871 to read as follows:
PART 1871--MIDRANGE PROCUREMENT PROCEDURES
1871.000 Scope of part.
Subpart 1871.1--General
1871.101 Purpose.
1871.102 Authority.
1871.103 Applicability.
1871.104 Definitions.
1871.105 Policy.
Subpart 1871.2--Planning and Requirements Process
1871.201 Use of buying team.
1871.202 Organizational responsibilities.
1871.202-1 Requiring organization.
1871.202-2 Procurement organization.
1871.202-3 Supporting organizations.
1871.202-4 Center management.
1871.203 Buying team responsibilities.
1871.204 Small business set-asides.
Subpart 1871.3--Publicizing of Solicitation
1871.301 Publicizing policy.
1871.302 Publicizing procedure.
Subpart 1871.4--Request for Offer (RFO)
1871.401 Types of RFO's.
1871.401-1 Sealed offers.
1871.401-2 Two-step competitive procurement.
1871.401-3 Competitive negotiated procurement not using qualitative
criteria.
1871.401-4 Competitive negotiation using qualitative criteria.
1871.401-5 Noncompetitive negotiations.
1871.402 Preparation of the RFO.
1871.403 Offer preparation period and limitations.
1871.404 Protection of offers.
1871.405 Model contract.
1871.406 RFO by electronic bulletin board.
1871.406-1 Methods of disseminating information.
1871.406-2 Special situations.
1871.406-3 Publicizing and response time.
1871.406-4 Method of soliciting offers.
Subpart 1871.5--Award
1871.501 Representations and certifications.
1871.502 Determination of responsible contractor.
1871.503 Negotiation documentation.
1871.504 Award documents.
1871.505 Notifications to unsuccessful offerors.
1871.506 Publication of award.
1871.507 Debriefing of unsuccessful offerors.
Subpart 1871.6--``Best Value Selection''
1871.601 General.
1871.602 Specifications for MidRange procurements.
1871.603 Establishment of evaluation criteria.
1871.604 Evaluation phases.
1871.604-1 Initial Evaluation.
1871.604-2 Determination of ``Finalists''.
1871.604-3 Discussions with ``Finalists''.
1871.604-4 Selection of ``Best Value'' Offer.
1871.605 Negotiation methods and procedures.
1871.606 Debriefings.
Authority: 42 U.S.C. 2473(c)(1).
PART 1871--MIDRANGE PROCUREMENT PROCEDURES
1871.000 Scope of part.
This part prescribes policies and procedures for the acquisition of
supplies and services from commercial sources as a pilot test
procurement program.
Subpart 1871.1--General
1871.101 Purpose.
The purpose of this part is to establish policies and procedures
that implement the MidRange procurement process. This will be a pilot
test program at the National Aeronautics and Space Administration
(NASA).
1871.102 Authority.
The Office of Federal Procurement Policy has provided authority for
NASA to conduct a pilot test of a new procurement process within the
scope of this part.
1871.103 Applicability.
(a) This part applies to all acquisitions, as described in
1871.103(b), conducted at NASA installations.
(b) This part applies to all contract actions, the aggregate amount
of which is greater than the small purchase limitation ((FAR) 48 CFR
Part 13) and not more than $500,000 in basic value. For service
contracts (exclusive of R&D and construction for which options are not
permitted), up to four annual options of not more than $500,000 each
are permitted where the option requirements are substantially the same
as the basic requirement. For supply contracts, four options of not
more than $500,000 each are permitted when not more than $500,000 in
funding is to be required in any fiscal year. The total amount of the
basic award plus options may not exceed $2,500,000 in either the case
of supplies or services except as provided in paragraph (c) of this
section.
(c) When the Government estimate for the basic award amount or any
option amount, if any, exceeds the limits of 1871.103(b), the
procurement will be processed under FAR and NFS procurement procedures
applicable to large procurements (see (FAR) 48 CFR Parts 14 and 15).
When the estimate is within the range of 1871.103(b) and the
procurement was started using these procedures but the offered prices/
costs exceed the MidRange ceiling, the procurement may continue under
MidRange procedures, provided that:
(1) The price/cost can be determined to be fair and reasonable,
(2) The successful offeror accepts incorporation of required FAR
and NFS clauses applicable to large procurements, and
(3) The procurement does not exceed $750,000 for the basic
requirement (and each option, if any) or $3,750,000 for the total
requirement.
1871.104 Definitions.
The following terms are used throughout part 1871 as defined in
this subpart.
(a) NASA Acquisition Bulletin Board or NABB means an electronic
bulletin board; i.e., a computer system through which users may access
documents available in electronic format.
(b) MidRange procurement procedure means a set of procedures within
the authority of 1871.102 and the applicability of 1871.103.
(c) Pilot test means a test of MidRange procurement procedures
conducted within the authority of 1871.102 and applicability of
1871.103.
(d) Request for Offer (RFO) means the solicitation used to request
offers for all authorized MidRange procurements.
(e) Clarification and Discussion are used as defined in (FAR) 48
CFR 15.601.
(f) Negotiation is used as defined in (FAR) 48 CFR 15.101 and
includes bargaining as described in (FAR) 48 CFR 15.102.
1871.105 Policy.
(a) The procedures in this part shall be used for all procurements
within the scope of part 1871 at NASA installations.
(b) Under MidRange procedures, cost or pricing data and
certification thereof shall be in accordance with (FAR) 48 CFR 15.804.
(c) Procurements conducted under part 1871, unless otherwise
properly restricted under the provisions of (FAR) 48 CFR part 6, are
considered to be full and open competition after exclusion of sources
in accordance with (FAR) 48 CFR 6.203, Set-asides for small business
and labor surplus area concerns, or full and open competition in
accordance with (FAR) 48 CFR part 6, subpart 6.1.
(d) Options may be included in the acquisition provided they
conform to 1871.103(b) or do not exceed $500,000 for the total
requirement, options included.
(e) The appropriate part 1871 post-selection processes
(negotiation, award, and publication of award) may be used to the
extent applicable for Small Business Innovation Research (SBIR), broad
agency announcements, unsolicited proposals, and Small Business
Administration 8(a) procurement actions within the applicability of
1871.103(b). Notwithstanding the threshold requirements set forth in
1871.103(b), SBIR Phase II contracts may be awarded in amounts not
exceeding $750,000.
(f) The NABB will be used to the maximum extent practicable to
disseminate advance procurement information and conduct part 1871
procurements.
(g) Use of locally generated forms is encouraged where their use
will contribute to the efficiency and economy of the process. NASA
Forms 1667, Request for Offer, and 1668, Contract, or computer
generated versions of these forms shall be used as the solicitation and
contract cover sheets, respectively. Contractor generated forms or
formats for solicitation response should be allowed whenever possible.
There is no requirement for uniform formats (see (FAR) 48 CFR 15.406).
Subpart 1871.2--Planning and Requirements Process
1871.201 Use of buying team.
MidRange procedures are based on the use of a buying team to
conduct the procurement. The concept is to designate individuals who
are competent in their respective functional areas, provide those
individuals with the basic authority to conduct the procurement and
hold them accountable for the results. The buying team will normally
consist of one technical member and one procurement member, but may be
augmented with additional members as necessary. Personnel providing
normal functional assistance to the team (e.g., legal, financial) will
not be considered a part of the team unless so designated. To function
properly, the team should be given the maximum decision authority in
matters related to the procurement. When higher level management
approvals remain essential, it will be incumbent upon the functional
team member to obtain such approvals. The team may accept, as final,
the decision of the responsible buying team member.
1871.202 Organizational responsibilities.
1871.202-1 Requiring organization.
The requirements organization shall appoint, by name, the technical
member of the buying team. This individual will normally be an end user
or the one most familiar with the technical aspects of the requirement.
The individual appointed, whatever the relationship with the procured
item, is expected to totally fulfill the responsibilities to the buying
team. If the requiring organization elects not to appoint a technical
member to the buying team, standard interfaces and authorities
applicable to large procurements will be used. The procedures in this
part will be used to the extent practical; however, priority will be
afforded to procurements fully using buying teams.
1871.202-2 Procurement organization.
The procurement organization shall appoint the procurement member
of the buying team. This individual shall be a warranted contracting
officer or a contract specialist with broad latitude to act for the
contracting officer. The procurement member shall be the team leader
with the ultimate responsibility to conduct the procurement.
1871.202-3 Supporting organizations.
Buying team members may require additional team members to perform
specialized functions or to assist in the evaluation of offers.
Requests for supporting members shall be made by the organization
identifying the need for the support and directed to the appropriate
management level in the supporting organization. Supporting team
members, once designated for the team, shall fulfill all applicable
responsibilities to the team as other members.
1871.202-4 Center management.
Center managers shall, to the maximum extent practical and
consistent with their responsibilities to manage the Center mission,
convey sufficient authority to members of the buying team to conduct
the procurement. Administrative or technical approvals should be
minimized, and where deemed essential, facilitated to the maximum
extent practicable. Center managers should lend their full support to
the buying team should problems arise from the procurement.
1871.203 Buying team responsibilities.
(a) The buying team shall conduct the procurement in a manner that
best satisfies the user requirements and meets the norms expected of a
Government procurement. Team members should develop open
communications, rely on decisions of other responsible functional team
members and meet their obligations to the team. The team will
typically--
(1) Refine the final specifications for the solicitation;
(2) Decide the most appropriate solicitation method;
(3) Establish milestones for the procurement;
(4) Finalize the evaluation criteria;
(5) Develop the RFO and model contract; and
(6) Evaluate offers and determine the awardee.
(b) The procurement member of the buying team shall lead
clarifications, discussions, and negotiations; shall be the source
selection official; and shall conduct debriefings.
1871.204 Small business set-asides.
(a) Except as provided in paragraphs (b) through (e) of this
section, each MidRange acquisition of supplies and services shall be
reserved exclusively for small business concerns.
(b) The requirement for small business MidRange set-asides does not
relieve the buying office of its responsibility to procure from
required sources of supply, such as Federal Prison Industries,
Industries for the Blind and Other Severely Handicapped, and mandatory
multiple award Federal Supply Schedule contracts.
(c) Procurement not conducted as small business set-asides and
under less than full and open competition require a Justification for
Other than Full and Open Competition pursuant to (FAR) 48 CFR part 6.
(d) If the buying team procurement member determines there is no
reasonable expectation of obtaining offers from two or more responsible
small business concerns that will be competitive in terms of market
price, quality, and delivery, the buying team need not proceed with the
small business set-aside and may purchase on an unrestricted basis
utilizing MidRange procedures. The buying team procurement member shall
document the contract file with the reason for the unrestricted
procurement.
(e) If the buying team proceeds with the small business MidRange
set-aside and receives an offer from only one responsible small
business concern at a reasonable price, the contracting officer will
normally make an award to that concern. However, if the buying team
does not receive a reasonable offer from a responsible small business
concern, the buying team procurement member may cancel the small
business set-aside and complete the procurement on an unrestricted
basis utilizing MidRange procedures. The buying team procurement
members shall document in the file the reason for the unrestricted
purchase.
(f) Each model contract under a small business MidRange set-aside
shall contain the clause at (FAR) 48 CFR 52.219-6, Notice of Total
Small Business Set-Aside.
Subpart 1871.3--Publicizing of Solicitation
1871.301 Publicizing policy.
Use of the MidRange procedure is intended to streamline and
expedite the acquisition process. Presolicitation publication
requirements are streamlined; however, it is in the Government's
interest to provide as much advance notice as possible of a pending
acquisition in order for the Government to obtain maximum competition.
As soon as practicable after a requirement has been finalized and
before the RFO is ready for release, a presolicitation notice of the
procurement action shall be published on the NABB.
1871.302 Publicizing procedure.
(a) Synopses are not to be sent or published in the Commerce
Business Daily.
(b) A separate pre-solicitation notice for each requirement shall
be published on the NABB. The pre-solicitation notice shall be
published prior to the actual release of the solicitation.
(c) The presolicitation notice will comply with the requirements
set forth in (FAR) 48 CFR 5.207(b).
(1) Include a statement that the solicitation will be released via
the NABB, that potential offerors will be responsible for downloading
their own copy of the solicitation, and that hard copies of the
solicitation shall be made available on request, but the closing date
will be the same as that required for the NABB released solicitation;
and
(2) State the projected solicitation release date, provide notice
that it is the offeror's responsibility to monitor the NABB for
solicitation release as the solicitation will be released as soon as
permissible whether prior or subsequent to the projected date, and
identify the name, telephone number, and e-mail address of a point of
contact. The presolicitation notice shall be updated to reflect
significant changes to the original notice.
Subpart 1871.4--Request for Offer (RFO)
In MidRange procedures, solicitation of sources shall be
accomplished by use of an RFO. The RFO will be solely a solicitation
document incorporating only those elements of information required to
solicit the offer. Offers will be provided on a model contract
furnished with the RFO.
1871.401 Types of RFO'S.
The RFO may be used for all types of procurements to which MidRange
is applicable. The distinguishing difference will be the evaluation and
award criteria specified in the RFO. This, in turn, will be driven by
the buying team's decisions on the extent of discussion required, the
amount of non-price factors that will influence the award and the
amount of competition available. If the conditions in (FAR) 48 CFR
6.401(a) are met, the RFO's described in 1871.401-1 and 1871.401-2
shall be used; otherwise, RFO's described in 1871.401-3, 1871.401-4, or
1871.401-5 may be used. Once the evaluation and award criteria have
been specified in the RFO, the procurement must conform to the
procedures applicable to these criteria, unless changed by formal
amendment to the RFO.
1871.401-1 Sealed Offers.
(a) Policy. RFO's may specify that award will be made to the low,
responsive, responsible offeror providing the most advantageous offer
considering only price and price-related factors. This method shall be
used when (1) time permits the solicitation, submission, and evaluation
of sealed offers; (2) award will be made on the basis of price and
other price-related factors; (3) conducting discussions with the
offerors is not necessary; and (4) a reasonable expectation of
receiving more that one offer exists. The RFO shall be in compliance
with the requirements of (FAR) 48 CFR part 14 relating to Sealed
Bidding.
(b) Procedures. (1) The RFO shall request offerors to provide both
a technical and price offer by the closing date specified.
(2) In accordance with (FAR) 48 CFR Part 14, offers (whether
received by facsimile or sealed envelope delivery) shall be publicly
opened at the designated time and place. Interested members of the
public will be permitted to attend the opening. Offers shall be
abstracted pursuant to (FAR) 48 CFR part 14 and be available for public
inspection. For unclassified acquisitions, a summary abstract,
containing offerors, prices and any essential information specific to
that procurement shall be posted on the NABB. The abstract shall be
included in the contract file.
(3) All offers shall be examined for mistakes in accordance with
(FAR) 48 CFR 14.406. The buying team shall determine that a prospective
contractor is responsible and that the prices offered are reasonable
(see (FAR) 48 CFR 14.407-2).
(4) The Government will award a contract to the low, responsive,
responsible offeror, whose offer conforms to the RFO and will be most
advantageous to the Government, considering only price and the price-
related factors included in the solicitation
1871.401-2 Two-Step competitive procurement.
(a) Policy. (1) RFO's may specify that evaluation and award may be
conducted in two distinct steps, similar in concept to ``Two Step
Sealed Bidding.'' The MidRange Two Step process should be used when it
is desirable to award to the lowest, responsive, responsible offeror
after determining that the initial technical offer, or the revised
technical offer, is acceptable.
(2) The procedures of (FAR) 48 CFR 14.503-2(a) shall be used once
Step two of this process begins.
(b) Procedures. (1) The RFO shall request offerors to provide both
a technical and a price offer by the closing date specified. Price
offers are requested to ensure that they are accomplished in a timely
manner and to reduce the time required for Step Two.
(2) Step One. The technical offer will be evaluated to determine if
the product or service offered is acceptable. The buying team may
proceed directly to Step Two if there are sufficient acceptable offers
to ensure adequate price competition, and if further time, effort and
delay to make additional offers acceptable and thereby increase
competition would not be in the Government's interest. If this is not
the case, the buying team procurement member shall enter into
discussions and request offeror(s) whose offer(s) is susceptible to
being made acceptable to submit additional clarifying or supplementing
information to make it acceptable (see (FAR) 48 CFR 14.503-1). It is
expected that these discussions will be conducted on an informal basis.
After completion of discussions, the buying team shall proceed to Step
Two.
(3) Step Two. The buying team shall afford all offerors who have
submitted acceptable offers and those offers with whom discussions were
conducted, an opportunity, by a common date, to revise their price
offers. No changes to technical offers will be permitted during this
process. A reasonable amount of time (normally less than 5 working
days) will be afforded for the revision. The amount of time given shall
be the same for each offeror. The procedures at 1871.401-1(b)(2) and
(3) shall then be followed.
(4) The Government will award a contract to the low, responsive,
responsible offeror, whose offer conforms to the RFO and will be most
advantageous to the Government, considering only price and the price-
related factors included in the solicitation.
1871.401-3 Competitive negotiated procurement not using qualitative
criteria.
(a) Policy. (1) RFO's may provide for discussion of all aspects of
the offer but award is based on the lowest priced (or most probable
cost) technically acceptable offer. This method should be used when
qualitative factors are not material in the award decision, but it is
important to assure that technical offers and contract terms are fully
compliant with the Government's needs. This method also permits direct
discussion of price with offerors and is particularly appropriate when
different approaches can be offered to satisfy the Government's need.
(2) The RFO should reserve the right to award without discussion
based on the initial offers submitted. (FAR) 48 CFR 52.215-16,
Alternate III will be included in all RFO's for competitive negotiated
procurements not using qualitative criteria.
(b) Procedures. (1) The RFO shall request offerors to provide both
a technical and a price offer by the closing date specified.
(2) Initial evaluation. The offer shall be reviewed to determine if
all required information has been provided. No further evaluation shall
be made of any offer that is deemed unacceptable because it does not
meet the technical requirements of the RFO and is not reasonably
susceptible to being made so. Offerors may be contacted for
clarification purposes only during the initial evaluation. Offerors
determined not to be acceptable shall be notified of their rejection
and the reasons therefor and excluded from further consideration.
Documentation for such rejection should consist of one or more succinct
statements of fact that show the offer is not acceptable. No
documentation is required if all offers are deemed to be acceptable or
reasonably susceptible to being made so.
(3) Determination of finalists. From among the acceptable offers
and those susceptible to being made acceptable, the buying team shall
rank the offers based on price (or most probable cost) and exclude any
whose price/most probable cost precludes any reasonable chance of being
selected for final award. The remaining offers constitute the
``finalists'' for the contract. Only in exceptional cases will this
number be less than two offers. The procurement buying team member
shall succinctly record the basis for the decision.
(4) Discussions. Discussions may be used if it is necessary to
request the offeror to submit additional clarifying or supplementing
information to make an offer acceptable. The procurement buying team
member shall lead discussions with each finalist. The discussions are
intended to assist the buying team in fully understanding each
finalist's offer and to assure that all finalists are competing equally
on the basis intended. Care must be exercised to ensure these
discussions adhere, to the extent applicable, to the guidelines set
forth in 1815.613-71(b)(5) for the applicable contract type. Technical
transfusion, technical leveling, and auction techniques are prohibited.
It is expected that discussions will be conducted on an informal basis
with each finalist. After completion of discussions, each finalist
shall be afforded an opportunity to revise its offer to support and
clarify its offer. A reasonable amount of time (normally less than 5
working days) will be afforded for the revision. The amount of time
given shall be the same for each finalist. Such discussions are not
required if there are sufficient acceptable offers to ensure adequate
price competition, and if further time, effort and delay to make
additional proposals acceptable and thereby increase competition, would
not be in the Government's interest.
(5) The buying team may choose to conduct parallel negotiations
with all acceptable offerors without a determination of finalists. This
could particularly apply when few offers were received.
(6) Selection. The procurement team member shall be the source
selection official. The source selection official may elect to make
selection in lieu of determining finalists provided that it can be
demonstrated that (i) selection of an initial offer(s) will result in
the lowest price/cost to the Government and (ii) discussions with other
acceptable offerors are not anticipated to change the outcome of the
initial evaluation relative to evaluated price/cost. It is expected
that the source selection statement will not ordinarily exceed one page
and that the basis for the decision will be apparent upon review of the
informal worksheets used in the evaluation process. These informal
worksheets shall be included in the contract file.
(7) The names of offerors determined to be finalists, selected for
parallel negotiations, or selected for negotiations and/or final
contract award will be electronically transmitted to the offerors. This
will serve as notification to those offers that were not selected for
further evaluation (see 1871.505).
(8) Negotiation methods and procedures. The buying team may choose
to conduct parallel negotiations of complete contracts with those
offerors determined to be finalists or with all acceptable offerors,
including offers susceptible to being made acceptable. The buying team
may discuss any aspect of the offer during parallel negotiations. The
objective of the negotiations should be to achieve revisions to the
offer, consistent with the RFO, that are more favorable to the
Government. Technical transfusion, technical levelling, and auction
techniques are prohibited. Upon conclusion of negotiations with each
offeror, the offeror shall be asked to submit a revised offer (in full
or amended) reflecting the results of negotiations, and including the
offeror's signature on the negotiated contract. A reasonable amount of
time (normally less than 5 working days) will be afforded for the
revision. Award will be made to the lowest priced (or most probable
cost), technically acceptable offer.
1871.401-4 Competitive negotiations using qualitative criteria.
(a) Policy. (1) MidRange procurements shall normally use the BVS
source selection method, prescribed in 48 CFR part 1871, subpart 1871.6
when it is desirable to base evaluation and award on a combination of
price and non-price qualitative criteria.
(2) The RFO should reserve the right to award without discussion
based on the initial offers submitted. (FAR) 48 CFR 52.215-16,
Alternate III will be included in all RFO's for competitive negotiated
procurements using qualitative criteria.
(3) In exceptionally complex procurements where it is desirable to
use a highly structured approach and multiple evaluators, a source
selection method following the principles specified in NASA Source
Evaluation Board Handbook, 48 CFR 1870.303, Appendix I, may be more
appropriate than BVS. This may be appropriate in cases in which the
following factors cannot be accommodated within the MidRange/BVS
selection methodology:
(i) The ability to predefine the value characteristics that will
constitute the discriminators among the offers;
(ii) The complexity of the interrelationships that must be
evaluated;
(iii) The number of evaluators required to address the disciplines
that will be involved in the offers; or
(iv) The impact that the procurement may have on higher level
mission management (level of selection official) or future
procurements.
(4) A source selection process combining the mid-range and the NASA
Source Evaluation Board Handbook (48 CFR 1870.303, Appendix I)
approaches shall not be used.
(b) Procedures. (1) The buying team will determine which of the
source selection methodologies is most appropriate to the specific
procurement.
(2) The team shall record its rationale for selecting the SEB
methodology rather than BVS. Once this decision is made, the team shall
no longer function as a MidRange buying team, but shall follow the
instructions prescribed in the local procedures for the source
selection method.
1871.401-5 Noncompetitive negotiations.
(a) Policy. (1) The RFO may be used as the solicitation method for
noncompetitive procurements.
(2) MidRange procedures may be used in noncompetitive acquisitions
to the extent they are applicable.
(b) Procedures. (1) Posting a presolicitation notice on the NABB
meets the requirement of (FAR) 48 CFR 5.201 and complies with the
notice required by the Competition in Contracting Act. A
presolicitation notice is not required if one of the exceptions of
(FAR) 48 CFR 5.202 is met.
(2) The buying team shall require submission of certified cost and
pricing data in accordance with (FAR) 48 CFR 15.804-2.
(3) The technical member of the buying team shall provide technical
assistance to the procurement member during evaluation and negotiation
of the contractor's offer.
1871.402 Preparation of the RFO.
(a) The RFO shall provide all standard information required for the
offeror to submit an offer.
(b) The RFO shall contain space for all necessary additional
instructions to offerors. As a minimum, the RFO shall contain the
following:
(1) Incorporation by reference of all required standard provisions.
(2) A provision notifying offerors that standard Representations
and Certifications will be required from the successful offeror, or
from all offerors selected for parallel negotiations, prior to award of
the contract.
(3) Evaluation and award criteria.
(4) A provision requiring offerors to submit offers on an attached
model contract.
(c) Requirements for the content and format of the offer should be
the minimum required to provide for proper evaluation. Offerors'
formats should be allowed to the maximum extent possible.
(d) Facsimile offers, defined by Federal Acquisition Regulation 48
CFR 14.202-7 and 15.402(i), shall normally be authorized for MidRange
procurements. In special circumstances, the buying team may elect to
require only original offers.
1871.403 Offer preparation period and limitations.
The buying team should establish deadlines for receipt of offers
based on an assessment of the minimum amount of time required to
respond to the solicitation. The time required will depend on the
complexity of the requirement and amount of cost and technical
information required to be submitted. The information required shall be
limited to the amount required to conduct a proper evaluation. The
offer preparation period established in the RFO shall not be less than
15 calendar days unless the procurement is urgent and the reasons for
urgency are documented in the contract file.
1871.404 Protection of offers.
A facsimile machine(s) shall be dedicated for receipt of offers and
placed in a secure location where offers received on it can be
safeguarded. All offers submitted shall be recorded, sealed in an
envelope marked with the RFO number and taken to the buying team
procurement member. Facsimile attendants shall make a good faith effort
to inspect the document for completeness and legibility. If the
attendant believes there are missing or illegible pages, the document
will be promptly referred to the buying team procurement member for
notification to the offeror that it should resubmit the offer. The
Government shall not assume responsibility for proper transmission.
1871.405 Model contract.
MidRange procedures use a simplified contract format. The
simplified contract format may be used with any type of contract, as
long as the clauses and provisions appropriate to the contract type are
included.
1871.406 RFO by electronic bulletin board.
1871.406-1 Methods of disseminating information.
(a) In accordance with 1871.302, presolicitation notices of
solicitations for MidRange procurements shall be posted on the NABB.
The presolicitation notice shall include the information required by
1871.302(c).
(b) Solicitations for MidRange Procurements shall be made available
on the NABB. Paper copies shall be mailed within 5 working days from
the date the RFO is posted on the NABB or receipt of the request,
whichever is later.
(c) Solicitations available on the NABB are exempt from the
requirement in (FAR) 48 CFR 14.203-1 that delivery of the solicitations
be made pursuant to (FAR) 48 CFR 14.205.
(d) For the purposes of (FAR) 48 CFR 15.402(a), a solicitation
posted on the NABB is a written solicitation.
(e) Solicitations posted on the NABB in accordance with these
regulations are exempt from the requirement in (FAR) 48 CFR 15.408(a)
to issue solicitations using the procedures in (FAR) 48 CFR Part 5.
1871.406-2 Special situations.
Notices for special situations as described in (FAR) 48 CFR 5.205
involving MidRange Procurements must be published in the Commerce
Business Daily. Such special situations include R&D sources sought,
intent to sponsor or change the mission of an Federally Funded Research
and Development Center, effort to locate commercial sources under OMB
Circular No. A-76, and Section 8(a) competitive national buy
acquisitions.
1871.406-3 Publicizing and response time.
In accordance with 18.403, contracting activities shall allow at
least 15 calendar days response time for receipt of offers from the
date of posting of the solicitation on the NABB. Contracting activities
shall check the NABB immediately after uploading a solicitation to
assure that the solicitation is properly posted.
1871.406-4 Method of soliciting offers.
(a) Solicitations and solicitation amendments for MidRange
procurements shall be generated in, or converted to, electronic files
and uploaded to the NABB. Each contracting activity will designate two
or more individuals to perform the upload and check the uploaded files
to assure that the data was not corrupted during transmission.
(b) Amendments to a solicitation posted on the NABB shall be
uploaded to the NABB, and the solicitation and amendment number shall
be added to the index of amended solicitations.
Subpart 1871.5--Award
1871.501 Representations and certifications.
Upon determination of the successful offeror, or all offerors
selected for parallel negotiations, the buying team procurement member
will determine if the offeror has on file valid Representations and
Certifications. If the offeror has not completed the required forms, or
they have expired, the offeror will be requested to provide the forms
promptly. Should the offeror fail to provide the required
Representations and Certifications or fail to meet a required
condition, the buying team may reject the offer and proceed to the next
highest ranked offeror who is responsive and responsible.
1871.502 Determination of responsible contractor.
Contractor responsibility shall be determined in accordance with
(FAR) 48 CFR Part 9.
1871.503 Negotiation documentation.
The prenegotiation memorandum, if required, and the results of
negotiation will be in abbreviated form and will be approved by the
buying team.
1871.504 Award documents.
Contract award shall be accomplished by Contracting Officer
execution of the contract document and providing a paper copy to the
successful offeror. If facsimile documents were used in the evaluation
process, the successful offeror may be required to execute original
copies of the contract to facilitate legibility during the
administration phase of the contract.
1871.505 Notifications to unsuccessful offerors.
For solicitations that were posted on the NABB, a preaward notice
shall be electronically transmitted to the offerors. This notice meets
the requirements of (FAR) 48 CFR 15.1001. However, the preaward notice
in a small business set-aside must allow unsuccessful offerors 5
working days to challenge the small business status of the successful
offeror. The procedures of (FAR) 48 CFR 15.1001(c)(2) shall be followed
for procurements subject to the Trade Agreements Act.
1871.506 Publication of award.
An award notice shall be posted on the NABB for seven (7) calendar days
after posting, if the contract offers subcontracting opportunities or
if it is subject to the Trade Agreement Act. The information required
by (FAR) 48 CFR 5.207 shall be included in the award notice in
abbreviated form.
1871.507 Debriefing of unsuccessful offerors.
If the procurement method used provides for a debriefing of
unsuccessful offerors, the procedures applicable to that selection
process shall be used in the debriefing. The procurement buying team
member shall conduct debriefings.
Subpart 1871.6--``Best Value Selection''
1871.601 General.
(a) Best Value Selection (BVS) seeks to select an offer based on
the best combination of price and qualitative merit of the offers
submitted and reduce the administrative burden on the offerors and the
Government.
(b) BVS takes advantage of the lower complexity of MidRange
procurements and predefines the value characteristics which will serve
as the discriminators among offers. It eliminates the use of area
evaluation factors and the highly structured scoring.
1871.602 Specifications for MidRange procurements.
BVS refines the traditional approach to preparing specifications.
BVS envisions that the specification will focus on the end result that
is to be achieved and will serve as a statement of the Government's
baseline requirements. The offeror will be guided in meeting the
Government's needs by a separate set of value characteristics which
establish what the Government considers to be valuable in an offer.
These value characteristics will be performance based and will permit
the selection of the offer which provides better results for a
reasonable marginal increase in price.
1871.603 Establishment of evaluation criteria.
(a) The requiring organization will provide, along with the
specification, a list of value characteristics against which the offers
will be judged. There is no limit to the number or the type of
characteristics that may be specified. The only standard will be
whether the characteristic is rationally related to the need specified
in the specification. Characteristics may include such factors as
improved reliability, innovativeness of ideas, speed of service,
demonstrated delivery performance, higher speeds, ease of use,
qualifications of personnel, solutions to operating problems, level of
service provided on previous similar contracts, or any of numerous
other characteristics that may be of value to the Government in
satisfying its needs.
(b) Cost and technical will be considered equal in importance. The
value characteristics will not be assigned weights.
(c) All subsequent evaluations will consider these characteristics
when determining the finalists or making the final selection for award.
Additional characteristics, not listed in the RFO, shall not be used as
a basis for discriminating among proposals.
1871.604 Evaluation phases.
1871.604-1 Initial evaluation.
(a) Offers will be reviewed to determine if all required
information has been provided and the offeror has made a reasonable
attempt to present an acceptable offer. Offerors may be contacted only
for clarification purposes during the initial evaluation. No further
evaluation shall be made of any offer that is deemed unacceptable
because:
(1) It does not represent a reasonable effort to address itself to
the essential requirements of the RFO or clearly demonstrates that the
offeror does not understand the requirements of the RFO;
(2) It contains major technical or business deficiencies or
omissions or out-of-line costs which discussions with the offeror could
not reasonably be expected to cure; or
(3) In R&D procurement, a substantial design drawback is evident in
the offer and sufficient correction or improvement to consider the
offer acceptable would require virtually an entirely new offer.
(b) Offerors determined not to be acceptable shall be notified of
their rejection and the reasons therefor and excluded from further
consideration.
(c) Documentation. If it is concluded that all offers are
acceptable, then no documentation is required and evaluation proceeds.
If one or more offers are not acceptable, the procurement member of the
team will notify the offeror of the rejection and the reasons therefor.
The documentation should consist of one or more succinct statements of
fact that show the offer is not acceptable.
1871.604-2 Determination of ``Finalists''.
(a) All acceptable offers will be evaluated against the
specifications and the value characteristics. Based on this evaluation,
the team will identify the finalists from among the offers submitted.
Finalists will include all offers having a reasonable chance of being
selected for final award, as prescribed in 1815.613-71(b)(4)(i) for
competitive range. Generally, finalists will include the offer having
the best price (or lowest most probable cost) and the offer having the
highest qualitative merit, plus those determined to have the best
combination of price and merit. Offers not qualifying as finalists will
be excluded from the balance of the evaluation process.
(b) Whenever possible, the buying team will conduct parallel
negotiations of complete contracts with all finalists as discussed in
1871.605. This approach, which provide for the negotiation of
definitive contracts prior to selection, serves to maintain the
competitive environment among offerors throughout the acquisition
cycle.
(c) In some cases, the buying team may choose to conduct
discussions with the finalists as opposed to conducting parallel
negotiations of complete contracts. This may be appropriate when: (1)
Certain aspects of offers are unclear and clarifying the offers could
determine that a finalist actually has no reasonable chance of being
selected for final award; or (2) the finalists are so numerous that
negotiating complete contracts with all finalists is not practical
considering the time and resources available. Discussions shall be
conducted in accordance with 1871.604-3.
(d) The buying team may choose to conduct parallel negotiations
with all acceptable offerors without a determination of finalists. This
could particularly apply where few offers were received.
(e) The selection official may elect to make selection in lieu of
determining finalists, provided it can be clearly demonstrated that (1)
selection of an initial offer(s) will result in the best value for the
Government, considering both price and non-price qualitative criteria;
and (2) discussions with other acceptable offerors are not anticipated
to change the outcome of the initial evaluation relative to the best
value offer(s).
(f) Documentation. If finalists are identified as discussed in
paragraph (a) of this section, the documentation expected and required
to result from this phase of evaluation is approximately one-quarter of
a page for each finalist. The documentation shall succinctly describe
how the value characteristics in the RFO were provided by the offeror
and cost/price considerations that caused the offer to qualify as a
finalist. The evaluator(s) shall not be required to justify why other
offers provided less qualitative merit. It is expected that, should the
decision be challenged, the documented reason for selection, when
compared with the non-selected offer, shall clearly demonstrate the
difference that resulted in non-selection. It is expected and
recommended that all informal worksheets used in the evaluation process
be included in the contract file for use in any debriefings requested.
When selection of the successful offeror(s) is made, the buying team
shall document the selection in accordance with 1871.604-4(c).
(g) The names of offerors determined to be finalists, selected for
parallel negotiations, or selected for negotiations or final contract
award will be electronically transmitted to the offerors. This will
serve as notification to those offerors that were not selected for
further evaluation (see 1871.505).
1871.604-3 Discussions with ``Finalists''.
(a) The procurement team member shall lead discussions with each
finalist. The discussions are intended to assist the buying team in
fully understanding each finalist's offer and to assure that the
meanings and points of emphasis of the RFO have been adequately
conveyed to the finalists so that all are competing equally on the
basis intended. Care must be exercised to ensure these discussions
adhere, to the extent applicable, to the guidelines set forth in
1815.613-71(b)(5) for the applicable contract type. Technical
transfusion, technical leveling, and auction techniques are prohibited.
It is expected that these discussions will be conducted on an informal
basis with each finalist.
(b) After completion of discussions, each finalist shall be
afforded an opportunity to revise its offer to support and clarify its
offer. A reasonable amount of time (normally less than 5 working days)
will be afforded for the revision. The amount of time given shall be
the same for each finalist.
1871.604-4 Selection of ``Best Value'' Offer.
(a) The procurement team member shall be the source selection
official.
(b) The BVS source selection is based on the premise that, if all
offers are of approximately equal qualitative merit, award will be made
to the offer with the lowest evaluated price (fixed-price contracts) or
the Government-determined most probable cost (cost type contracts).
However, the Government will consider awarding to an offeror with
higher qualitative merit if the difference in price is commensurate
with added value. Conversely, the Government will consider making award
to an offeror whose offer has lower qualitative merit if the price (or
cost) differential between it and other offers warrant doing so.
(c) Documentation. Rationale for selection of the successful
offeror shall be recorded in a selection statement which succinctly
records the value characteristics upon which selection was made. The
statement need not and should not reveal details of the successful
offer that are proprietary or business sensitive. Since the value
characteristics are expressed in performance terms, the reasons for
selection can focus on results to be achieved, rather than the detailed
approach the offeror will use. The statement shall also comment on the
rationale used to equate cost and qualitative merit. Little or no
comment would be required when the selected offeror possessed the
highest merit and lowest price. When a marginal analysis is made
between value characteristics and price (or cost)--in most cases this
will be a subjective, integrated assessment of all pertinent factors--
specific rationale should be provided to the extent possible. It is
expected that the statement will not ordinarily exceed one page. Where
the procurement is closely contested, it would be prudent to expand on
the rationale provided in the statement.
(d) The name of the offeror(s) selected for award and the selection
statement shall be electronically transmitted to the offerors which
will serve as a notification to those offerors that were not selected
(see 1871.505).
1871.605 Negotiation methods and procedures.
(a) Policy. (1) The buying team may choose to conduct parallel
negotiations of complete contracts with those offerors determined to be
finalists or with all acceptable offerors. Parallel negotiation may
also be used where more than one offeror is selected for negotiations
after discussions. Use of parallel negotiations takes advantage of the
competitive atmosphere and the responsiveness of offerors in completing
negotiations. It also provides the selection official a higher
confidence in the offer, since only the contracting officer's signature
is required to make the offer a binding contract.
(2) When the selection official has chosen to make selection in
lieu of conducting parallel negotiations, negotiations may be conducted
with the successful offeror(s) to resolve any open issues necessary to
effect a binding contract(s). This may be typical of R&D and service
contracts where the Government desires to negotiate changes in emphasis
or orientation in an otherwise superior offer(s).
(b) Procedure. (1) Upon conclusion of parallel negotiations with
each offeror, the offeror shall be asked to submit a revised offer (in
full or amended) reflecting the results of the negotiations, and
including the offeror's signature on the negotiated contract. A
reasonable amount of time (normally less than 5 working days) will be
afforded for the revision. The amount of time given shall be the same
for each offeror. Upon receipt of all offers, the procurement member of
the buying team shall make selection and document as required in
1871.604-4(c). Upon selection, the contracting officer shall execute
the selected contract.
(2) If negotiation is conducted after selection, the buying team
shall first select the offer and document as required in 1871.604-4(c),
then negotiate the terms of the contract. The offeror shall be asked to
submit a revised offer reflecting the results of negotiation, and
including the offeror's signature on the negotiated contract. A
reasonable amount of time (normally less than 5 working days) will be
afforded for the revision. After receipt of the revised offer, the
contracting officer shall execute the contract.
1871.606 Debriefings.
In addition to electronically transmitting the selection statement
to the offerors, a debriefing, a debriefing will be provided by the
buying team procurement member to any offeror submitting a written
request. The debriefing will concentrate on the reasons why the
successful offeror was selected. If the contract is unclassified, the
debriefer may reveal any aspect of the contract and how it relates to
the merits used to select the successful offer. If the successful offer
had value characteristics which are proprietary or business sensitive,
and had an impact on the selection, the debriefer should so state and
summarize the results which are expected to accrue to the Government.
The debriefer shall not divulge the details of the proprietary or
business sensitive information.
[FR Doc. 94-28169 Filed 11-16-94; 8:45 am]
BILLING CODE 7510-01-M