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tions represent factors which should be considered, as appropriate, in preparing the "Justification":

(1) What unique capability or highly specialized experience does the proposed contractor have which is important to the specific effort and makes him clearly more desirable than any other organization?

(ii) Is competition precluded because of patent rights, copyrights, secret processes or other proprietary information? (However, the mere existence of such rights or circumstances does not in and of itself justify noncompetitive procurement.)

(iii) Is the effort a continuation of previous effort performed by the proposed contractor, and to what degree is such previous effort a factor in the cost and/or quality of the current procurement?

(iv) Does the proposed contractor have personnel considered predominant experts in the particular field, and what is the basis of such "predominance?" (Professional publications?-professional society recognition, etc.?)

(v) What facilities or equipment does the proposed contractor have which are specialized and vital to the effort?

(vi) Does the proposed contractor have a substantial investment of some kind which would have to be duplicated at Government expense by another source entering the field?

(vii) Are Government-owned facilities involved?

(d) Review and approval. The "Justification" shall be reviewed and approved as follows: (1) For small purchases in excess of $500, but not in excess of $10,000, the "Justification" may be in the form of a brief statement within the request-for-contract or requisition. Award of the contract as requested shall constitute the contracting officer's con

currence.

(2) For procurements in excess of $10,000, but not in excess of $25,000, the "Justification" shall be submitted for the approval of the Chief of the procurement office.

(3) For procurements in excess of $25,000, but not in excess of $100,000 the "Justification" shall be submitted through the contracting officer for approval by the official in charge of the office which is one level of organization above the Chief of the procurement office.

(4) For procurements in excess of $100,000, the "Justification" shall be submitted through the contracting officer for approval at a level not lower than that of an assistant head of the procuring activity.

[35 FR 19753, Dec. 30, 1970, as amended at 40 FR 29719, July 15, 1975]

Subpart 3-3.50-Procurement
Planning

SOURCE: 37 FR 14784, July 25, 1972, unless otherwise noted.

§ 3-3.5000 Scope of subpart.

This subpart prescribes (a) planning for all negotiated procurements as required by § 3-3.5001 below and (b) contents of the procurement plan. The procurement plan is an administrative tool designed to enable the contracting officer and the project officer to plan effectively for the accomplishment of procurements during a specified time frame. The procurement plan serves as an outline of the method by which the contracting officer expects to accomplish the procurement task.

§ 3-3.5001 Requirement for procurement planning.

(a) The procurement plan is required for all new procurements which are expected to exceed $100,000, except the following:

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(2) Procurements of utility services where the services are available from only one source;

(3) Procurements made from or through other Government agencies.

(b) Any preparation of procurement plans for new procurements, which are not expected to exceed $100,000, shall be in accordance with the procedures of each operating agency. Procurement plans will be prepared for procurements which are two-step formally advertised procurements or set-asides over $100,000. § 3-3.5002 Responsibilities for procurement planning.

(a) Planning by program and staff activities. (1) Whenever execution of a program or project requires the acquisition of property or services by contract the program or project plan should delineate all elements to be acquired by contract. Such program or project plans include a plan and time-frame for completion action. (See § 3-1.452-2.)

(2) Planning for procurement action should commence as early as possible in the fiscal year. Program offices which expect to initiate procurements are required to meet at the beginning of each fiscal year with the procurement officials who will be responsible for these procurements in order to discuss current staff capabilities and anticipated requirements in an effort to achieve an even distribution of workload over the fiscal year consistent with program needs. These meetings should result in understandings as to expected timing of project development and procurement requests.

(3) For each project, as soon as it appears likely there will be a procurement, the program office will notify the appropriate procurement office of the anticipated procurement. When notified, the procurement office will arrange to meet with the program staff in order to develop a plan for procurement.

(b) Planning by procurement activities. Procurement activities will coordinate with program and staff offices in order to ensure:

(1) Timely and comprehensive planning for procurement;

(2) Timely initiation of procurement requests or requests for contracts; and, (3) Instruction of program and staff offices in proper procurement practices and methods.

§ 3-3.5003 Preparation and contents of procurement plan.

(a) The procurement plan (1) serves as an advance agreement between program and contracting personnel outlining the methods of how and when the procurement is to be accomplished; (2) serves to resolve problems early in the procurement cycle thereby precluding delay in contract placement; and (3) is developed prior to the preparation and submission by the program office of the formal procurement request and request for contract to the contracting office.

(b) Procurement plans shall be prepared and signed jointly by the cognizant contract negotiator and project officer and concurred in by the contracting officer. The scope of the procurement plan is determined by the characteristics of the procurement. Generally a joint planning meeting between the project officer and contract negotiator is held for the purpose of identifying and selecting those actions (technical and business) necessary to effect timely and pro

per placement of the contract. The project officer defines his requirement and describes the purpose of the project. Based on these needs, consideration shall be given to such matters as (1) refinement of work statements, scopes of work, specifications, etc., for solicitation purposes; (2) funding; (3) sources for solicitation and synopsizing requirements; (4) proposal evaluation criteria; (5) special program approvals and clearances including determination and findings; and (6) procurement planning schedule. Details concerning the aforementioned factors are contained in Section I of the pamphlet entitled "The Negotiated Contracting Process-A Guide for Project Officers" which is available for use by all DHEW Project Officers. (See § 3-1.452-1 (d).)

§ 3-3.5004 Procurement Planning Doc

ument.

The Procurement Planning Document HEW Form 592 shall be used in planning for the procurement. One copy of the approved procurement planning document shall be made a part of the contract file. HEW Form 592 is illustrated in HEWPR 3-16.950-592. Subpart 3-3.51-Selection of Offerors for Negotiation and Award SOURCE: 38 FR 2212, Jan. 23, 1973, unless otherwise noted.

§ 3-3.5100 Scope of subpart.

This section provides guidance to all DHEW personnel regarding (a) evaluation of the technical and other aspects of proposals and (b) the requirement for "written or oral discussion" with concerns whose proposals are "within a competitive range," under competitive negotiated procurements.

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vided the request for proposals notifies all offerors of the possibility that award may be made without discussion and provided award is in fact made without any written or oral discussions. § 3-3.5102 Requests for proposals.

(a) Careful drafting of the request for proposals (RFP) is vital to the proper working of the competitive process. Particular efforts must be made to develop an accurate statement of work in order to preclude ambiguities and to avoid misunderstandings which might otherwise surface at later stages of the procurement.

(b) Unless otherwise authorized by the procedures of the operating agency, the RFP shall require that a proposal generally will be in two parts: a "Technical Proposal" and a "Business Proposal." Each of the parts shall be separate and complete in itself so that evaluation of one may be accomplished independently of evaluation of the other. Generally, the RFP will provide that the "Technical Proposal" not contain any reference to cost. Resource information, such as data concerning labor hours and categories, materials, subcontracts, travel, computer time, etc., shall be included in the "Technical Proposal" so that offeror's understanding of the scope of work may be evaluated.

(c) The instructions to the offerors concerning the "Business Proposal" should require submission of cost information in sufficient detail to allow a complete cost analysis. (See 1-3.807-3 of this title for requirements for cost or pricing data.) Categories and amounts of labor, materials, travel, computer time, as well as information with regard to contractor past performance, including contracts or subcontracts for like services or supplies, financial capacity, certifications, and representations, and other pertinent administrative and business information should also be requested.

(d) Evaluation criteria must be developed by technical personnel, at the time of initiation of the procurement request, for inclusion by the contracting officer in the RFP. These criteria and their relative importance or weight require the exercise of judgment on a caseby-case basis, since the criteria must be tailored to the requirements of each particular procurement. These criteria must be submitted to the contracting officer in sufficient time to allow for this review

before the issuance of the request for proposal. Since these criteria will serve as the standard against which all proposals will be evaluated, it is imperative that they be chosen carefully to emphasize those factors considered to be critical to the selection of a contractor.

(e) The RFP must inform offerors of all evaluation criteria and of the relative importance or weight attached to each criterion, although there need not be stated a numerical weighting formula. Evaluation criteria shall be described fully enough in each RFP to inform prospective offerors of the significant matters which should be addressed in the proposals. The technical and business proposal instructions of the RFP must inform the offeror of all information deemed essential to proper evaluation of the proposal, so that all competitors are aware of all requirements and so that the difference(s) in proposals will reflect the offeror's differing responses to unambiguous RFP requirements and criteria.

(f) No factors other than those set forth in the request for proposals as the evaluation criteria shall be used in the evaluation of technical proposals.

(g) The RFP evaluation criteria shall not be modified except by a formal amendment to the RFP. § 3-3.5103

posals.

Evaluation of technical pro

(a) The technical proposals received by the contracting officer will be forwarded to the technical evaluators for evaluation; the business portion of the proposal will be retained by the contracting officer for evaluation.

(b) The technical evaluators will evaluate each proposal in strict conformity with the evaluation criteria of the RFP and will assign each proposal a score. A technical ranking will then be compiled. The technical evaluators shall then identity each proposal as either acceptable or unacceptable. Predetermined cutoff scores shall not be employed.

(c) The technical evaluators shall then determine whether any proposal which has been rated as unacceptable might be considered acceptable upon the furnishing of clarifying data by the offeror, and the contracting officer will be so informed. The contracting officer will arrange for the submission of clarifying data in writing or by consultation, and furnish it to the technical evaluators for their consideration.

(d) It is essential to the competitive procurement process that all information contained in offerors' proposals be maintained in strict confidence. In no event during the evaluation period shall any offeror be told the number of proposals received, prices, cost ranges, or the Government cost estimate. Discussions with offerors relative to any aspect of the procurement shall be held only with the contracting officer or his authorized representative.

(e) For the sole purpose of eliminating any uncertainty or ambiguity in an initial proposal, the contracting officer may make inquiry of an offeror. Such inquiry of and clarification furnished by such offeror shall not be considered to constitute "discussions" within the meaning of § 1-3.805-1(g) of this title and shall not necessitate any inquiry of other offerors. However, if the clarification results in an offeror revising its proposal or it would in any way prejudice the interests of other offerors, discussions must be held with all responsible offerors within the competitive range.

§ 3-3.5104 Technical evaluation report.

A technical evaluation report shall be prepared and signed by the technical evaluators, furnished the contracting officer, and maintained as a permanent record in the contract file. The report shall reflect the ranking of the proposals and shall identify each proposal as acceptable or unacceptable in accordance with 3-3.5103 (b) and (c). The report shall also include a narrative evaluation specifying the strengths and weaknesses of each proposal, and any reservations or qualifications that might bear upon the selection of sources for negotiation and award. Concrete technical reasons supporting a determination of unacceptability with regard to any proposal shall be included.

§ 3-3.5105 Evaluation of business proposals.

(a) Each business proposal requires some form of price or cost analysis. The contracting officer must exercise judgment in determining the extent of analysis in each case. In high-dollar value procurements, the analysis should be thorough and the record carefully documented to disclose the extent to which the various elements of costs, fixed fee, or profit contained in the contractor's proposals were analyzed. The negotiation memorandum should also reflect

the consideration given to the recommendations, if any, of the price analyst and the basis for nonacceptance or departure from the recommendations during the course of negotiations.

(b) The contracting officer must appraise the management capability of the offeror to perform the required work in a timely manner. In making this appraisal, he must consider such factors as the company's management organization, past performance, reputation for reliability, and availability of the required facilities, and cost controls.

§ 3-3.5106 Conduct of evaluation.

Personnel participating in any way in evaluating proposals shall not reveal any information concerning the evaluations underway except to an individual participating in the same evaluation proceedings, and then only to the extent that such information is required in connection with such proceedings. Divulging information during the evaluation, selection, and negotiation phases of the procurement to personnel not having a need to know could jeopardize any resultant award. The Contracting Officer will therefore instruct personnel participating in the evaluations to observe these restrictions and assure that personnel understand that unauthorized disclosure of information, no matter how innocent, could subject such personnel to disciplinary action.

140 FR 29722. July 15, 1975]

§ 3-3.5107 Competitive range.

Unless an award is made without any discussions in accordance with § 33.5101, discussions shall be conducted with each offeror in the "competitive range." The competitive range is composed of those offerors with which there is a possibility of conducting meaningful discussions which could result in the improvement of their offers, price and other factors considered. Determining which proposals fall within a competitive range will depend upon the particular circumstances of each negotiation. Cost or price alone is sometimes controlling, but technical capability and other relevant criteria may be paramount. The decision as to which firms are and which firms are not within a competitive range is a matter of administrative discretion. There could conceivably be a business proposal in which the cost or price is so high that it seems to be completely out of the competitive range. However, be

fore making such a determination the contracting officer should consult with the technical personnel to determine possible reasons for the apparently excessive price. In determining the competitive range, the contracting officer should consider the following:

(a) A proposal must be considered to be within the competitive range unless it is either so inferior technically or so high in cost as to preclude any possibility of meaningful negotiation with the offeror, or unless the offeror does not have a reasonable chance of being selected for the final award.

(b) The competitive range should be decided on the basis of the array of scores or relative ranking of the offerors, not on a predetermined absolute score or cutoff level of acceptability. Borderline proposals must not be excluded from consideration automatically if they are reasonably susceptible of being made acceptable by clarification or discussions.

(c) No offeror who is in the competitive range shall be eliminated from the competitive range solely because of an offer to deliver services or supplies of a higher quality than required. If there is no substantial basis for distinguishing between the technical excellence of proposal (s) meeting the Government's requirements, price or best buy analysis should then become the controlling factor.

[38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

§ 3-3.5108

Conduct of discussions.

(a) The contracting officer, in cooperation with technical personnel, must conduct written or oral discussions (negotiations) of the work to be performed, the cost of the work, and other relevant topics with all those offerors within the competitive range. The contracting officer shall point out to each offeror the ambiguities, uncertainties, and deficiencies, if any, in its proposal. He shall then give each offeror a reasonable opportunity to support, clarify, correct, improve or revise its proposal. Discussions with one offeror shall neither identify areas in which another has apparently achieved a higher evaluation or provided more detail (nor transmit information) which could give one offeror a competitive advantage over another. Cost estimates made by the Government will not be disclosed.

(b) Careful judgment will be exercised in determining the extent of dis

cussions. In some cases more than one round of discussions with all the offerors within the competitive range may be required. The time available, the expense and administrative limitations, and the size and significance of the procurement should all be considered in deciding on the type, duration, and depth of the discussions.

[38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

§ 3-3.5109

Closing of negotiations.

In order to properly terminate negotiations, the contracting officer shall advise each offeror within the competitive range that (a) negotiations are being conducted, (b) offerors are being asked for "best and final offer," not merely to confirm or reconfirm prior offers, and (c) any revision or modification of proposals must be submitted by the cutoff date.

[38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

§ 3-3.5110 Selection of contractor.

(a) After the close of discussions and the receipt of any addenda to proposals, the contracting officer shall select for award the offeror(s) whose proposal(s) offers the greatest advantage to the Government, price and other factors considered.

(b) Research and development contracts should be awarded to those organizations, including educational institutions, which have the highest competence in the specific field of science or technology involved. However, awards should not be made for research and development capabilities that exceed those needed for the successful performance of the particular project.

(c) Whenever the contract is to have a fixed price, price may not be disregarded in selecting a contractor. This is particularly true where more than one acceptable offer from technically qualified sources remains for consideration after conduct of negotiations. If a lowerpriced, lower-scored offer meets the Government's needs, acceptance of a higherpriced, higher-scored offer shall be supported by a specific determination by the contracting officer that the technical superiority of the higher-priced offer warrants the additional cost involved in the award of a contract to that offeror. [38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

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