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DARS PART 15 -- CONTRACTING BY NEGOTIATION



PART 15 -- CONTRACTING BY NEGOTIATION

TABLE OF CONTENTS

SUBPART 15.2 -- SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION

15.201 Exchanges with industry before receipt of proposals

15.203-90 Request for proposals

15.204 Contract format.

15.204-2 Part I-The Schedule

15.204-5 Part IV—Representations and Instructions

SUBPART 15.3 -- SOURCE SELECTION

15.300 Scope of subpart

15.303 Responsibilities

15.304 Evaluation factors and significant sub-factors

15.305 Proposal evaluation

15.307 Proposal revisions

SUBPART 15.4 -- CONTRACT PRICING

15.404(S-90) Proposal analysis

15.406(S-90) Documentation

Exhibit A Pre-negotiation Business Clearance Memorandum

Exhibit B Post-negotiation Business Clearance Memorandum

15.406-3(S-91) Requirements for pre- and post-BCM approvals

15.406-3(S-92) Approvals/review

SUBPART 15.6 - -UNSOLICITED PROPOSALS

15.606 Agency procedures

PART 15 -- CONTRACTING BY NEGOTIATION

SUBPART 15.2 — SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION

15.201 Exchanges with industry before receipt of proposals.

(f) When an AP is required (DARS Part 7), HCA review of the AP/major AP revision is required before releasing a draft request for proposal or holding a pre-solicitation or pre-proposal conference. In addition, see DARS 7.107 regarding OUSD(AT&L), OSADBU review requirement for draft requests for proposals (solicitations) involving bundled contract requirements.

15.203-90 Requests for proposals.

(a) Solicitation Review Board (SRB). Cross-functional IPT chartered by the HCA when the HCA determines that a solicitation requires a more comprehensive review before release.

(b) When a planned acquisition requires a more comprehensive review, the HCA may charter an SRB to review a solicitation and all associated documentation prior to release. The HCA determines membership and the PM/AM schedules and coordinates the review. The PM/AM distributes the following documents to each member in advance of the SRB (electronic submission is encouraged).

(1) Request for Proposal (include Sections A - M)

(2) PWS/SOO/SOW

(3) DD Form 254

(4) J&A, if applicable

(5) Memorandum of Agreement, if applicable

(6) All enclosures/attachments to the PWS/SOO/SOW, to include Contract Data Requirements List (CDRLs)/Data Item Description (DIDs), wage determinations, etc.

(7) Cost Estimate/IGCE

(8) Approved Acquisition Plan, if applicable

(9) Approved Program Plan

(10) Approved Source Selection Plan, if applicable

(11) Acquisition Schedule

(c) Specific written guidance from the Director/Vice Director on establishing or restructuring acquisitions, changing acquisition requirements, or implementing acquisition changes take precedence over decisions of the HCA.

15.204 Contract format.

(e) The designee is the HCA.

15.204-2 Part I--The Schedule.

(c) To the maximum extent practicable, requirements should be defined as PWS/SOOs/SOWs that focus on required outcomes or results, not methods of performance or processes.

15.204-5(b)(S-90) Part IV--Representations and Instructions.

To facilitate subcontracting/teaming, an administrative notice may be included in Section L of the solicitation. The notice should state that the source list would facilitate subcontracting/teaming on a program, if desired. The notice should also include the date, to which the list is current and any other information regarding handling of future updates to the list, if applicable.

SUBPART 15.3 — SOURCE SELECTION

15.300 Scope of subpart.

See DARS Part 7 and AP (Appendix A) for AP applicability/ requirements.

15.303 Responsibilities. (REVISED MAY 2006, DISA AC 03-10)

(a) The Director for Procurement (PLD) is designated as the Source Selection Authority (SSA) for all contracts awarded by DISA with an actual or estimated value, including options, of $10 million or greater except for telecommunications services procured through DISA’s Inquiry, Quote, Order (IQO) process. The Director for Procurement (PLD) is responsible for validating the source selection process. In those instances where having the Director for Procurement serve as SSA is not feasible, advise the Senior Procurement Executive and obtain a written SSA appointment letter to cover this instance only. Coordinate with PLD on a case-by-case basis if an external customer prefers to retain SSA.

(b) The source selection policies and procedures of FAR Subpart 15.3, including the designation of an SSA, do not apply to orders placed against GSA Federal Supply Schedule contracts, orders placed against Blanket Purchase Agreements (BPAs), or task and delivery orders placed against indefinite delivery contracts.

15.304 Evaluation factors and significant sub factors.

(c)(3) Class Deviation 99-0002, 29 Jan 99 (Subj: Class Deviation--Past Performance) is effective until further notice. The deviation identifies thresholds associated with key business sectors for the collection and use of Past Performance Information (PPI). The deviation may be accessed at http://www.acq.osd.mil/dp/dars/deviations/99o0002.pdf.

DISA normally comes under the Services and Information Technology business sectors. Past performance information shall be evaluated in all source selections for negotiated competitive acquisitions $1,000,000 or greater unless the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition.

Although FAR Subpart 15.304 requires evaluation of past performance in all source selections for negotiated competitive acquisitions expected to exceed $1,000,000 with limited exceptions. Contracting officer are encouraged to evaluate past performance in all source selections regardless of the dollar threshold.

(d) Clearly state in the solicitation, the approach the Government will use to evaluate the contractor’s past performance. For additional guidance, see references listed in DARS Subsection 15.305(a)(2).

15.305 Proposal evaluation.

(a)(2) Past performance evaluation.

Ensure the source selection plan and solicitation clearly state all evaluation factors and

sub-factors and relative importance.

See DISA’s Collecting and Using Past Performance Information (PPI) Deskbook and the OSD Guide to Collection and Use of Past Performance Information.

(S-90) Evaluation of a single proposal.

(a) If only one proposal is received in response to a competitive solicitation, the contracting officer shall determine if the solicitation was flawed or unduly restrictive, and if the single proposal is an acceptable proposal. Based on these findings, the SSA determines whether to continue with the procurement and proceed with one of the following:

(l) Award without discussions. The contracting officer shall determine that adequate price competition exists (FAR 15.403-1(c)(l)(ii));

(2) Award after negotiating a mutually acceptable contract. (The requirement for submission of cost or pricing data shall be determined in accordance with FAR 15.403-1); or

(3) Reject the proposal and cancel the solicitation.

15.307 Proposal revisions.

(b)(S-90) Identify any apparent remaining weaknesses;

(S-91) Instruct offerors to incorporate all changes to their offers resulting from discussions, and require clear traceability from initial proposals;

(S-92) Establish a page limit for final proposal revisions.

15.308 Source Selection Decision.

All source selection decision documents for acquisitions of $10 million or greater and subject to FAR Subpart 15.3 (except for sensitive and classified acquisitions, and contract actions using the DISA Inquiry, Quote, Order (IQO) process) require review and coordination by both PL2 and legal counsel prior to forwarding to the Source Selection Authority.

SUBPART 15.4 -– CONTRACT PRICING

15.404-1 Proposal analysis techniques.

(c)(2)(iii)(D) Independent Government Cost Estimates (IGCEs).

(S-90) Definitions.

IGCE is a cost estimate developed by Government technical personnel, based on the PWS/SOO/SOW (without the influence of potential contractors).

Resource Managers ensure and verify that resources are available in the budget/POM, and manage resources accordingly.

(S-91) Policy.

(a) IGCEs are part of the required documentation for HCA review (DARS 7.9001). The DISA IGCE Deskbook contains procedures/guidance for developing IGCEs.

(b) IGCEs must contain details for estimates. IGCEs are not valid and are not acceptable for HCA review or for contracting action without the backup details to demonstrate how the estimates were developed.

(c) Use “Fully burdened” labor (hour) rates unless more recent information is available or other sources of information (e.g., wage rate determinations from the Department of Labor).

(d) Resource Managers shall coordinate on IGCEs, prior to HCA review or submission of procurement requests to contracts.

(e) Contracting officers shall notify AMs of appropriate remedial action on contract price/IGCE deviations greater than 25 percent, or of any other indication of discrepancy between proposal and the basis for the IGCE (e.g., significant variation in labor mix). Remedial action may include changes to the PWS/SOO/SOW, formal discussions, resource reprogramming, amendment or cancellation, but does not include unjustified revision of the IGCE.

15.404(S-90) Proposal analysis.

(a) DITCO contracting officers, communications specialists, contract specialists, and contract negotiators assigned to DITCO field offices shall initiate action to obtain cost and price analyses in accordance with the following procedures.

(1) The contracting officer, exercising sole responsibility for the final pricing decision shall, in accordance with FAR 15.404-1, coordinate with, request, and evaluate the advice of the contract pricing and tariff specialists at PL82. Contracting officers shall request a cost/price analysis, or Request For Proposal (RFP) review before negotiating any contract or modification with a contract value in excess of $550,000, unless information available to the contracting officer is considered adequate to determine the reasonableness of the proposed cost or price. Cost/price analyses for contract awards or modifications of a lesser value shall also be requested if considered necessary by the contracting officer in order to determine price reasonableness.

(2) PL82 assistance related to tariff interpretation, tariff rate establishment/update and other tariff issues shall be requested as required.

(3) PL82, with the concurrence of the contracting officer, shall be responsible for:

(i) Obtaining cost or pricing data or information other than cost or pricing data and auditing contractor's records.

(ii) Performing contract audit follow-up reporting tasks in accordance with DoD Directive 7640.2 and DARS 42.9000.

(iii) Conducting cost or price analyses and tariff reviews in accordance with FAR 15.404-1, as appropriate. Cost analyses shall incorporate audit findings, technical analysis and tariff review results, and all relevant cost driver information.

(iv) Consolidating cost or pricing data, information other than cost or pricing data, audit results, tariff reviews and other pertinent information; and developing pre-negotiation objectives.

(v) Participating in negotiations with contractors which require the use of information, computations, or data developed during the cost or price analysis.

(vi) Reviewing all major RFPs for competitive and noncompetitive services, supplies, and equipment to ensure adequate cost or pricing data and tariff provisions are included and that detailed evaluation criteria are developed and tailored for each acquisition.

(vii) Assisting contracting officers in documenting the contract files by providing detailed cost/price analysis memoranda, supporting schedules, automated spreadsheets, discussion items, pre- and post-negotiation business clearance memorandums input, DD Forms 1547, Tariff Change Notices, Tariff Contract File Conflict Notices, and other items as required.

(viii) Participating in conferences, briefings, debriefings, and other meetings where pricing and/or tariff support is required.

(b) To initiate a request for cost/price analysis support, the contracting officer shall submit an Interoffice Memorandum (IM) to applicable Cost Analyst containing detailed instructions. RFP reviews must be requested early in the acquisition stage so that a detailed review may be accomplished prior to submitting the RFP to industry. Acquisition plans and timelines must recognize the need for effective pricing/tariff reviews and analyses and must contain reasonable periods for conducting these tasks.

15.406(S-90) Documentation.

The suggested format for the Business Clearance Memorandum (BCM) is contained at Exhibit A (Pre-Negotiation) and Exhibit B (Post-Negotiation). BCMs may be tailored but must capture the key data elements identified in the suggested formats.

15.406-3(S-91) Requirements for pre- and post-BCM approvals.

(a) For competitive acquisitions that do not require negotiating pricing actions, a formal BCM is not required. Ensure the file is properly documented to establish how the price is determined fair and reasonable, (i.e., competition, prices set by law or regulation, price analysis and the acquisition history. No approvals are required by this subpart.

(b) This subpart does not apply to acquisition under the simplified acquisition threshold or for telecommunication services and equipment accomplished using the I/Q/O process or the North Atlantic Treaty Organization (NATO) Allied Long Lines Agency (ALLA)/National Allied Long Lines Agency (NALLA) circuit demand process.

(c) BCMs will be routed electronically to a DITCO Cost Analyst for review/coordination prior to approval.

(d) Post-BCM approval may be waived when the negotiated agreement is within the threshold approved in the pre-BCM and where there were no significant changes to the terms, conditions, or assumptions under which the pre-BCM was developed and approved. If the post-BCM is waived, a waiver statement will be included in the post-BCM. The waiver statement shall state the following: "Approval of the BCM is not required, since the negotiated price is within the approved pre-negotiation objective, and there were no material changes to the pre-BCM terms, conditions, or assumptions." The BCM shall satisfy the requirements of FAR 15.406-3 and shall be signed by the contracting officer responsible for signing the contract.

15.406-3(S-92) Approvals/review.

(a) The approval authorities for DITCO pre-BCMs are as follows:

(i) Contracting Officer -- contract actions not exceeding $5M, but not above the dollar limitation of his/her warrant. If the contracting officer is negotiating the effort and preparing the BCM, the BCM will be approved by at least one level above the contracting officer.

(ii) Division Chief -- contract actions not exceeding $25M.

(iii) Head of the Contracting Office (HCO) -- contract actions less than $100M.

(iv) Head of the Contracting Activity (HCA) -- contract actions $100M or greater.

(b) The approval authorities for DITCO post-BCM clearances, when the pre-BCM objectives are not met, are the same as those listed in paragraph (a)(i) through (iv) above.

SECTION II. PRE-NEGOTIATION COMPLIANCES (For competitive acquisition, document specific information for each Offeror; if not applicable, put “N/A”):

(a) Acquisition Plan (AP) number , was prepared in accordance with FAR Subpart 7.105, DFARS Subpart 7.105, and DARS Subpart 7.1, and was approved on , by . Address changes, corrections and revised strategies between the AP and now.

(q) Government Furnished Facilities D&F approved in accordance with FAR Subpart 45.302. Yes _____, No _____, N/A ______. If no, explain.

(r) Independent Government Cost Estimate (IGCE) prepared by . It agrees with the PR funding profile and is well supported.

(s) Appropriated Funds for services are properly apportioned over the period of performance in accordance with FAR Subpart 32.703-3 bona fide need rule and severability).

(t) Type of Contract D&F (including HCO approval for T&M) approved on . Include rationale for contractor/Government risk trade-off, cost/performance history, rationale for incentives, and unsuitability of other contract types especially discuss rationale for choice between T&M vs. other cost reimbursable types. Also discuss subcontract types.

(u) Competition: Rationale for competition structure. Extent of Competition solicited and secured.

Date:

RFP No:

Project Name:

PRE-NEGOTIATION

BUSINESS CLEARANCE MEMORANDUM

In accordance with FAR Subpart 15.406 and DFARS Subpart 215.406, the following information for the record and pre-negotiation objectives are established for this acquisition:

1. Contracting Office Code:

Funding Document/Purchase Request Amend No.:

Type of Funds:

Total Dollar Amount:

Funding Profile:

Current period/year: $

Option period/year 2: $

Option period/year 3: $

Option period/year 4: $

(NOTE: (FY and amount) _________ funds are subject to availability;

(FY and amount) __________ funds are for planning purposes only.)

3. Independent Government Cost Estimate (IGCE): An IGCE was furnished by (give individual's name, title, organizational and/or customer code) on (date) in the total amount of

$____________________.

4. Scope Determination: If this is a sole source contract modification, there is a requirement for a scope determination. This memo should fully document the basis used. Scope determination required: Yes ( )No ( ).

5. Solicitation and Amendments Summary:

9. Description of Item Being Acquired:

13. No Contractor appearing on the Debarred, Suspended and Ineligible Prospective Contractors List was issued a copy of the solicitation: Yes (__) No (__).

14. Type of Contract: _____________________. The Contracting Officer, (insert name), approved the contract type on _____________________.

15. Required Approvals*: Other Approvals, as appropriate. Any required modifications to any of the referenced acquisition documents should reflect both the revision and subsequent approval.

16. Background:

17. Delay(s) in Procurement Process:

18. Submission of cost and pricing data by Contractor(s) and Subcontractor(s): In accordance with FAR Subpart 15.406, the Contractor(s) and applicable subcontractor(s) have submitted cost and pricing data or request for waivers: Yes (__) No (__).

19. Other Information Relative to Offeror(s): ____________________________________

20. Competitive Range Determination: In accordance with FAR Subpart 15.306, the contracting officer has determined that the following proposals are in the competitive range, for the reasons stated below: _____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

The following proposal(s) was determined to be so deficient as to have no reasonable chance of being selected for award, as further described below:

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

21. Technical Analysis of Offers:

Technical Terms and Conditions:

Technical Evaluation Report was received on

The technical evaluation board consisted of

The contracting officer briefed the technical evaluation board on

22. Objectives for Negotiation:

a. A clear and concise explanation of each issue raised in the technical evaluation should be addressed below. Also include a narrative of the thinking that establishes the Government's objectives as it relates to quality that should be expressed and evaluated for the following issues:

(1) Technical Capability Issues:

(2) Management Capability Issues:

(3) Personnel Qualifications Issues:

(4) Prior Experience Issues:

(5) Past Performance Issues:

(6) Schedule Compliance Issues:

(7) Other Issues:

b. Cost/Price: In accordance with FAR Subpart 15.404-2 and DFARS Subpart 215.404-2, field pricing reports were/were not requested. Audit reports/rate verifications on the offerors are in the contract file. In addition to the discrepancies noted in the technical/management proposals, issues noted by the auditor will be included in the discussions with the offerors to be addressed in their final proposal revision. The auditors will participate in discussions: Yes ( ) No ( ).

Company Government

Proposed Cost Elements Objective

Direct Labor: Direct Labor:

Overhead/G&A: Overhead/G&A:

Materials/ODCs: Materials/ODCs:

Profit/Fee: Profit/Fee:

Or

CLIN 0001

Direct Labor: Direct Labor:

Overhead/G&A: Overhead/G&A:

Materials/ODCs: Materials/ODCs:

Profit/Fee: Profit/Fee:

CLIN 0002

Direct Labor: Direct Labor:

Overhead/G&A: Overhead/G&A:

Materials/ODCs: Materials/ODCs:

Profit/Fee: Profit/Fee:

Also include any supporting narrative that helps to establish the Government's pre-negotiation cost objectives.

23. Profit/fee analysis.

Discuss the use of Weighted Guidelines in accordance with DFARS Subpart 215.404.

Use of modified weighted guidelines and or alternate structured approach, state rationale:

Exhibit A to Subpart 15.406(S-90)

Pre-Negotiation Business Clearance Memorandum

Signature/Approval Page

________________________ ___________________________________

(Date) Contract Specialist

________________________ ___________________________________

(Date) Contracting Officer

_________________________ ___________________________________

(Date) DITCO Cost Analyst

PRE-NEGOTIATION OBJECTIVES - APPROVED:

___________ ___________________________________

(Date) (Appropriate approval level)

Exhibit A to Subpart 15.406(S-90)

Date: ___________

RFP No. _______________________

Project Name: _________________

POST-NEGOTIATION

BUSINESS CLEARANCE MEMORANDUM

In accordance with FAR Subpart 15.406 and DFARS Subpart 215.406, the following information for the record and results of negotiations/discussions are established for this acquisition:

1. Purpose of Post-Negotiation Business Clearance Memorandum is to document the principal elements of the negotiated agreement between the parties.

2. Resolution of Pre-negotiation Approval(s) and Condition(s):

Contractor's Purchasing Systems Review: Yes (__) No (__)

Subcontracting Plan Review:

Others:

3. Negotiations/Discussions:

Negotiations/discussions were conducted from [date]___________________________to [date]_____________________________.

4. The following individuals participated in the negotiations/discussions:

5. Summary of Negotiations/Discussions:

(State any differences in objectives and the accepted prices and any significant deviations from the objectives.)

Technical issued discussed with each offeror:

Cost Proposal Comparison: A comparison of the original proposed costs and the final revised costs follows:

Offeror Original Proposal Final Revised Price

Cost issues discussed with each offeror were addressed as follows:

6. Submission of Certificate(s) of Current Cost or Pricing Data Exemption (FAR Subpart 15.4): If applicable, identify and state the basis for exemption: ___________________.

Exhibit B to Subpart 15.406(S-90)

7. The Contractor(s) has submitted a Certificate(s) of Current Cost or Pricing Data

(see FAR Subpart 15.4), dated _______________________.

8. Receipt of Equal Opportunity Compliance Determination(s) (FAR Subpart 22.805):

9. All members of the Technical Evaluation Panel signed Non-Disclosure Certificates:

Yes (__) No (__).

10. Funds Available for Requirements: $______________.

11. Security: The Contractor(s) meets the requirements of the DD Form 254.

12. Responsibility: Name(s) of contractor(s)________________________has provided service under contract number____________________ Name(s) of contractor(s)________________________ has the financial resources and capability to perform the services in accordance with the terms, conditions, and specifications set forth in the contract.

13. Verification that the prospective awardee(s) is not on the List of Parties excluded from Federal Procurements and Non-Procurements: Yes (__) No (__).

14. Recommendation: Based on the above, it is recommended that contract(s) be awarded to Name(s) of contractor(s)________________________ in the dollar amount(s) of _____________________ for identify service or commodity ___________________________

____________________________________________________________________________

_______________ ______________________________________

(Date) Contract Specialist

15. (May be modified as necessary) Contracting Officer’s Determination: Based on the foregoing, it is my determination that the proposed Contractor(s) is a qualified source and possesses the technical ability to perform, is financially capable, and is responsible within the meaning of FAR Subparts 9.103 and FAR 9.104. The proposed Contractor(s) has performed satisfactorily, technically and financially on previous contract(s) with the Government/this Agency. The proposed amount is fair and reasonable. Therefore, the recommendation to execute a contract with ____________________

____________________ for performance period and dollar amounts _____________________

is approved.

Exhibit B to Subpart 15.406(S-90)

_____________________ __________________________________________

(Date) Contracting Officer

_____________________ __________________________________________

(Date) (See DARS Subpart 15.406-3(S-92) for

where approval level)

Waiver statement if applicable, otherwise delete:

“Approval of the BCM is not required, since the negotiated price is within the approved pre-negotiation objective, and there were no material changes to the pre-BCM terms, conditions, or assumptions.”

Exhibit B to Subpart 15.406(S-90)

SUBPART 15.6 — UNSOLICITED PROPOSALS

15.606 Agency procedures.

(a) & (b) All Heads of Contracting Offices (HCOs) (DARS Part 2) shall establish procedures and contact points within their respective offices for the receipt and handling of unsolicited proposals.

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