[Federal Register Volume 61, Number 178 (Thursday, September 12, 1996)]
[Proposed Rules]
[Pages 48380-48397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23392]



[[Page 48380]]

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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.

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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

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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

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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.

* * * * *
    (c) * * *
    (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.

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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.
    (c) First phase responses. Offerors shall submit the information 
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.
    (c) Where oral presentations are required, the solicitation shall 
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.
    (c) Agencies are encouraged to promote early exchange of 
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.
    (c) In accordance with Subpart 4.5, contracting officers may 
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.
    (c) Name, address and location of issuing activity, including room 
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.
    (c) Amendments issued after the established time and date for 
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.
    (c) If a proposal received by the contracting officer in electronic 
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.
    (c) Offerors may not revise proposals unless requested by the 
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.
    (c) When issuing a solicitation for information or planning 
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.
    (c) Standard Forms 30 and 33 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).
    (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));
    (c) The contracting officer shall--
    (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.
    (c) If a multiphase solicitation technique will be used, the 
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
    (C) January 1, 1999, for acquisitions expected to exceed $100,000.
    (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.
    (c) After evaluating offers, the contracting officer may determine 
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.
    (c) Communication with offerors after establishment of the 
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.
    (c) Requesting and/or receiving proposal revisions does not 
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.
    (c) When an award is made to an offeror for less than all of the 
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.
    (c) Debriefings may be done orally, in writing, or by any other 
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.
    (c) The contracting officer should normally chair any debriefing 
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).
    (c) Submission, revision and withdrawal of offers. (1) Unless other 
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.
    (c) This solicitation is issued for the purpose of: [state 
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.
    (c) Telephone number of receiving facsimile equipment:[insert 
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.
    (c) If the solicitation requires an offer on all items, failure to 
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).
    (c) OF 309 (XX/96), Contract Award. OF YY may be used to award 
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.
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[[Page 48396]]




53.302-308  Optional Form 308 Solicitation and Offer--Negotiated 
Acquisition.
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[[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