[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Proposed Rules]
[Pages 25440-25443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12628]



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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1515 and 1552

[FRL-5505-3]


Acquisition Regulation; Source Selection Process

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
revise its acquisition regulation (48 CFR Chapter 15) coverage on the 
source selection process. EPA is aware that Part 15 of the Federal 
Acquisition Regulation is currently undergoing revision. The Agency 
believes that its changes will not conflict with any subsequent 
revisions to Part 15. Additionally, the Agency believes that the 
changes to its acquisition regulation are needed now as an interim 
measure to streamline the process and empower Contracting Officers at 
EPA. This rule is also necessary to implement portions of the Federal 
Acquisition Streamlining Act of 1994.

DATE: Comments should be submitted not later than July 22, 1996.


[[Page 25441]]


ADDRESSES: Written comments should be submitted to the contact listed 
below at the following address: U.S. Environmental Protection Agency, 
Office of Acquisition Management (3802F), 401 M Street SW., Washington, 
DC 20460. Comments and data may also be submitted electronically by 
sending electronic mail (e-mail) to: Senzel.L[email protected]. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and any form of encryption. Comments and data 
will also be accepted on disks in WordPerfect in 5.1 format or ASCII 
file format. No Confidential Business Information (CBI) should be 
submitted through e-mail. Electronic comments on this proposed rule may 
be filed on-line at many Federal Depository Libraries.

FOR FURTHER INFORMATION CONTACT: Louise Senzel, Environmental 
Protection Agency, Office of Acquisition Management (3802F), 401 M 
Street SW., Washington, DC 20460. Telephone: (202) 260-6204.

SUPPLEMENTARY INFORMATION:

A. Executive Order 12866

    The proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866; therefore, no review is required by 
the Office of Information and Regulatory Affairs.

B. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this proposed 
rule does not contain information collection requirements that require 
the approval of OMB under the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.)

C. Regulatory Flexibility Act

    The EPA certifies that this proposed rule does not exert a 
significant economic impact on a substantial number of small entities. 
The requirements to contractors under the proposed rule impose no 
reporting, record-keeping, or any compliance costs.

D. Unfunded Mandates

    This proposed rule will not impose unfunded mandates on state or 
local entities, or others.

E. Regulated Entities

    EPA contractors are entities potentially affected by this action. 
Specifically, those entities competing under solicitations for 
negotiated procurements will be affected.

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                 Category                         Regulated entity      
------------------------------------------------------------------------
Industry..................................  EPA Contractors.            
------------------------------------------------------------------------

List of Subjects in 48 CFR Parts 1515 and 1552

    Government procurement.

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Dated: May 7, 1996.
Betty L. Bailey,
Director, Ofice of Acquisition Management.

    Therefore, 48 CFR chapter 15 is proposed to be amended as set forth 
below:

PARTS 1515 AND 1552--[AMENDED]

    1. The authority citations for parts 1515 and 1552 continue to read 
as follows:

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c).


Sec. 1515.407  [Amended]

    2. Section 1515.407 is amended by removing paragraph (a)(1) and by 
redesignating paragraphs (a) (2) and (3) as (a) (1) and (2).
    3. Section 1515.604 is amended by revising paragraphs (a), (c) and 
(d) to read as follows:


1515.604  Responsibilities and duties.

* * * * *
    (a) Source Selection Official. The Source Selection Official (SSO) 
is the official responsible for overall management of the source 
selection process. Duties of the SSO include, but are not limited to, 
appointing members and chairpersons of the Source Evaluation Board, the 
Technical Evaluation Panel (TEP), and the Business Evaluation Panel 
(BEP); and approving solicitation related documents. However, the 
Contracting Officer is responsible for approving amendments to 
solicitation documents. The SSO may waive the requirement in 
1515.612(a)(v) for at least one member of the TEP to be an individual 
not involved in managing the current contract. The SSO also approves 
the competitive range determination and makes the source selection 
decision.
* * * * *
    (c) Technical Evaluation Panel (TEP). The Program Office has the 
responsibility for developing the technical evaluation criteria and 
statement of work for the solicitation. The TEP has the responsibility 
for evaluating the technical aspects of the offerors' technical 
proposals. Based on the recommendation of the Program Office, the SSO 
has the discretion of assigning this evaluation responsibility to the 
Project Officer, if appropriate, or to the TEP. When offerors' past 
performance is evaluated as part of the technical proposal evaluation 
process, the past performance evaluation shall be conducted by the TEP, 
or by the Contracting Officer and the Project Officer. Based on input 
from the Project Officer, the Contracting Officer has the discretion of 
assigning this responsibility to the TEP or to the Contracting Officer 
and Project Officer.
    (d) Business Evaluation Panel (BEP). (1) The Contracts Office has 
the responsibility for reviewing solicitation evaluation criteria and 
the Statement of Work from a business perspective; evaluating the 
business, pricing, and contractual aspects of the offerors' business 
and technical proposals; and examining other factors such as the 
responsibility of the offerors. Based on the recommendation of the 
Contracting Officer, the SSO has the discretion to designate these 
responsibilities to the Contracting Officer or designating a BEP. 
Sections 1515.612(a) (vi) and (vii) are applicable only when the SSO 
has designated a BEP. (2) When no BEP is convened, the Contracting 
Officer shall perform a preliminary cost evaluation of each offeror's 
cost/price proposal to identify any cost elements that appear 
unreasonable or questionable. When cost analysis is employed, the 
Contracting Officer shall perform a detailed cost analysis of the 
business proposal which includes an evaluation of the offeror's 
subcontracting program, management structure, and any other relevant 
factors which may prevent award to an offeror. This analysis may be 
included in a separate report, in the competitive range determination, 
or in the pre/post-negotiation memorandum.
    4. Section 1515.604-70 is amended by adding paragraph (c) to read 
as follows:


1515.604-70   Personal conflicts of interest.

* * * * *
    (c) Each EPA employee (including special employees) involved in 
source evaluation and selection is required to comply with the Office 
of Government Ethics ethics provisions at 5 CFR part 2635.
    5. Section 1515.605 is amended by revising paragraphs (a) and (b) 
and adding paragraph (c) to read as follows:


1515.605   Evaluation factors.

* * * * *
    (a) The Contracting Officer shall insert the provisions at 
1552.215-70, ``EPA Source Evaluation and Selection Procedures--
Negotiated Procurement'' and either: the provision in 1552.215-

[[Page 25442]]

71, ``Evaluation Factors for Award,'' where all evaluation factors 
other than cost or price when combined are significantly more important 
than cost or price; or the provision in Alternate I to 1552.215-71, 
where all evaluation factors other than cost or price when combined are 
significantly less important than cost or price; or the provision in 
Alternate II to 1552.215-71, where award will be made to the offeror 
with the lowest-evaluated cost or price whose technical proposal meets 
the minimum needs of the Government; or the provision in Alternate III 
where all evaluation factors other than cost or price when combined are 
approximately equal to cost or price. The Contracting Officer may use 
provisions substantially the same as 1552.215-71, Alternate I to 
1552.215-71, Alternate II to 1552.215-71, or Alternate III to 1552.215-
71 without requesting a deviation to the EPAAR.
    (b) Technical evaluation criteria should be prepared in accordance 
with FAR 15.605 and inserted into paragraph (b) of the provision at 
1552.215-71, Alternate I, and Alternate III. If technical evaluation 
criteria are used in Alternate II, the criteria should be prepared in 
accordance with FAR 15.605 and inserted into paragraph (b). When past 
performance is to be used as an evaluation factor, the Contracting 
Officer must develop a criteria for evaluating past performance and 
include such criteria in section M of the solicitation.
    (c) Evaluation Methodologies. Evaluation criteria may be developed 
using methodologies other than numerical scoring, e.g., adjectival 
ratings or color scoring. The relative importance of the evaluation 
criteria must be clearly identified in the solicitation. The 
Contracting Officer should identify and prepare evaluation criteria 
consistent with FAR 15.605.
    6. Section 1515.608 is amended by revising paragraphs (a)(1), 
(b)(1)(ii), and (b)(2)(i); by adding paragraph (b)(3); by removing 
paragraph (c) and by redesignating paragraphs (d) and (e) as (c) and 
(d) to read as follows:


1515.608   Proposal evaluation.

    (a) * * *
    (1) Technical proposals shall be evaluated solely on the factors 
specified in the solicitation and in accordance with FAR 15.608. 
Additionally, the evaluation of technical proposals (including past 
performance factors) shall be accomplished using the scoring plan shown 
below or one specifically developed for the solicitation. Contracting 
Officers may request that the TEP also indicate whether proposals are 
acceptable or unacceptable, and/or whether the offerors' response to 
individual criteria are acceptable or unacceptable.

                              Scoring Plan                              
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             Value                        Descriptive statement         
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0..............................  The factor is not addressed, or is     
                                  totally deficient and without merit.  
1..............................  The factor is addressed, but contains  
                                  deficiencies and/or weaknesses that   
                                  can be corrected only by major or     
                                  significant changes to relevant       
                                  portions of the proposal, or the      
                                  factor is addressed so minimally or   
                                  vaguely that there are widespread     
                                  information gaps. In addition, because
                                  of the deficiencies, weaknesses, and/ 
                                  or information gaps, serious concerns 
                                  exist on the part of the TEP about the
                                  offeror's ability to perform the      
                                  required work.                        
2..............................  Information related to the factor is   
                                  incomplete, unclear, or indicates an  
                                  inadequate approach to, or            
                                  understanding of the factor. The TEP  
                                  believes there is question as to      
                                  whether the offeror would be able to  
                                  perform satisfactorily.               
3..............................  The response to the factor is adequate.
                                  Overall, it meets the specifications  
                                  and requirements, such that the TEP   
                                  believes that the offeror could       
                                  perform to meet the Government's      
                                  minimum requirements.                 
4..............................  The response to the factor is good with
                                  some superior features. Information   
                                  provided is generally clear, and the  
                                  approach is acceptable with the       
                                  possibility of more than adequate     
                                  performance.                          
5..............................  The response to the factor is superior 
                                  in most features. The goal of the     
                                  technical evaluation is to understand 
                                  each offeror's proposal and to assess 
                                  each proposal relative to the         
                                  specified evaluation factors. The TEP 
                                  report(s) should address any perceived
                                  strengths, as well as any perceived   
                                  weaknesses or deficiencies, and risks 
                                  associated with the offerors'         
                                  performance. Scores may or may not    
                                  change from the initial evaluation to 
                                  the supplemental evaluation, depending
                                  on the offeror's response to          
                                  interrogatories. The supplemental TEP 
                                  report must explain the rationale for 
                                  no change in score as well as any     
                                  decrease or increase in score as a    
                                  result of the offeror's response to   
                                  interrogatories.                      
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* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (ii) Any interrogatories the Contracting Officer should submit to 
offerors to clarify their technical proposals to address any 
weaknesses, deficiencies, or questions associated with their technical 
proposals. The Contracting Officer may review the technical proposals 
and TEP evaluation, and submit any additional interrogatories deemed 
appropriate.
    (2)(i) A statement that the respective technical evaluation panel 
members are free from actual or potential personal conflicts of 
interest and are in compliance with the Office of Government Ethics 
ethics provisions at 5 CFR Part 2635.
* * * * *
    (3) The Contracting Officer may release the cost/price proposals to 
the entire TEP or solely to the TEP Chairperson, after the TEP has 
completed its evaluation of initial proposals. The TEP or Chairperson 
should evaluate cost/price proposals to determine whether the offerors' 
cost/price proposals adequately reflect their technical proposals and 
the requirements of the solicitation, and demonstrate that the proposed 
price or cost provides an adequate understanding of the requirements of 
the solicitation. Any inconsistencies between the proposals and the 
solicitation requirements should be identified. Any inconsistencies 
between the cost and technical proposals should also be identified.
* * * * *
    7. Section 1515.609 is amended by revising paragraph (c) to read as 
follows:


1515.609  Competitive range.

    (a) * * *
    (b) * * *
    (c)(1) When a single proposal is the only proposal in the 
competitive range, as part of the required discussion in the 
competitive range determination, Contracting Officers shall address at 
a minimum the following factors: whether the requirement could have 
been broken up into smaller components; whether the solicitation 
provided adequate response time; whether the requirement could have 
been satisfied with reduced staffing levels (discussion may be combined 
with the first factor); and if applicable, whether the work required 
onsite could otherwise be performed at a contractor's facility, 
avoiding the cost and logistical implications of relocating employees.
    (2) In cases where only a single proposal has been received and a 
competitive range determination has not been prepared, the discussion 
of the reasons for receipt of the single proposal which otherwise would 
be contained in the competitive range determination shall be included 
in the source selection document. The discussion in the source

[[Page 25443]]

selection document at a minimum shall address the factors referenced in 
paragraph (c)(1) of this section.
    (3) The Contracting Officer shall provide a copy of the competitive 
range determination or source selection document to the Competition 
Advocate for review and concurrence prior to approval.
    8. Section 1515.611 is revised to read as follows:


1515.611  Best and final offers.

    The Contracting Officer shall establish a common cut-off date for 
receipt of revised proposals and/or confirmations of negotiations (best 
and final offers) upon completion of negotiations.
    9. Section 1515.612 is amended by revising paragraphs (a)(1) (iii), 
(iv) and (v); and by adding paragraph (c) to read as follows:


1515.612  Formal source selection.

    (a) * * *
    (1) * * *
    (iii) SEB Membership--The SSO will determine the organizational 
levels of the individuals to serve on the SEB.
    (iv) TEP Chairperson--The SSO will determine, based on the 
recommendation of the requesting program office, the Chairperson of the 
TEP. For recompetes or follow-on contracts, the Chairperson should 
normally not be the incumbent contract's Project Officer.
    (v) TEP Membership--At least two members, in addition to the 
Project Officer, who are knowledgeable of the procurement's technical 
aspects. If the procurement is a follow-on to an existing contract, at 
least one of the TEP members should be someone who is not involved in 
managing the current contract, preferably from outside of the program 
division which originated the requirement. See 1515.605(a) for waiver 
of this requirement.
* * * * *
    (c) Source selection plan. No separate source selection plan is 
required. The Contracting Officer may include the information required 
by FAR 15.612(c) in the individual acquisition plan.
    10. Section 1552.215-70 is revised to read as follows:


1552.215-70  EPA Source Selection and Selection Procedures--Negotiated 
Procurements (XX 1996)

    As prescribed in 1515.605, insert the following provision.

EPA Source Selection and Selection Procedures--Negotiated Procurements 
(XX 1996)

    (a) The Government will perform source selection in accordance 
with FAR part 15 and the EPA Source Evaluation and Selection 
Procedures in EPAAR Part 1515 (48 CFR part 1515). The significant 
features of this procedure are:
    (1) The Government will perform either cost analysis or price 
analysis of the offeror's cost/business proposal in accordance with 
FAR parts 15 and 31, as appropriate. In addition, the Government 
will also evaluate proposals to determine contract cost or price 
realism. Cost or price realism relates to an offeror's demonstrating 
that the proposed cost or price provides an adequate reflection of 
the offeror's understanding of the requirements of this 
solicitation, i.e., that the cost or price is not unrealistically 
low or unreasonably high.
    (2) The Government will evaluate technical proposals as 
specified in 1552.215-71, Evaluation Factors for Award.
    (b) In addition to evaluation of the previously discussed 
elements, the Government will consider in any award decision the 
responsibility factors set forth in FAR part 9.

(End of Provision)

    11. Section 1552.215-71 is revised as follows:


1552.215-71  Evaluation Factors for Award.

    As prescribed in 1515.605, insert one of the following provisions.

Evaluation Factors for Award (XX 1996)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to 
the Government, cost or price and other factors considered. For this 
solicitation, all evaluation factors other than cost or price when 
combined are significantly more important than cost or price.
    (b) Technical Evaluation Criteria.

(End of Provision)

Evaluation Factors for Award (XX 1996) Alternate I (XX 96)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to 
the Government, cost or price, and other factors considered. For 
this solicitation, all evaluation factors other than cost or price 
when combined are significantly less important than cost or price.
    (b) Technical Evaluation Criteria.

(End of Provision)

Evaluation Factors for Award--Proposal Meets the Minimum Needs of the 
Government With the Lowest Evaluated Cost/Price. Alternate II (XX 1996)

    (a) The Government will make award to the lowest-evaluated cost 
or price, technically acceptable, responsible offeror whose offer 
meets the minimum needs of the Government. In the event that there 
are two or more technically acceptable, equal price (cost) offers, 
the Government will consider other factors, as listed below in 
descending order of importance:
    (b) Technical Evaluation Criteria.

(End of Provision)

Evaluation Factors for Award (XX 1996) Alternate III (XX 96)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to 
the Government, cost or price, and other factors considered. For 
this solicitation, all evaluation factors other than cost or price 
when combined are approximately equal to cost or price.
    (b) Technical Evaluation Criteria.

(End of Provision)


1552.215-72  [Removed]

    12. Section 1552.215-72 is removed.

[FR Doc. 96-12628 Filed 5-20-96; 8:45 am]
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