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 Requests for proposals.
15.204-2 Part I--The Schedule.
15.204-5 Part IV--Representations and Instructions.
SUBPART 15.3 — SOURCE SELECTION
15.304 Evaluation factors and significant sub factors.
15.306 Exchanges with offerors after receipt of proposals.
15.308 Source selection decision.
215.371-3 Fair & Reasonable price.
SUBPART 15.4 -– CONTRACT PRICING
15.404-1 Proposal analysis techniques.
15.406-3 Documenting the negotiation.
SUBPART 15.5 -- PREAWARD, AWARD, AND POSTAWARD NOTIFICATIONS, PROTESTS, AND MISTAKES
15.505 Preaward debriefing of offerors.
15.506 Postaward debriefing of offerors.
SUBPART 15.6 — UNSOLICITED PROPOSALS
15.604 Agency points of contact.
15.606-1 Receipt and initial review.
15.607 Criteria for acceptance and negotiation of an unsolicited proposal.
PART 15 -- CONTRACTING BY NEGOTIATION
SUBPART 15.2 — SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION
15.201 Exchanges with industry before receipt of proposals.
(S-90) Draft RFP may be released prior to final approval of the acquisition strategy and acquisition plan.
15.203 Requests for proposals.
(S-90) Definition. 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.
(S-91) 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
(e) The designee is the HCA.
15.204-2 Part I--The Schedule.
(c) Section C, Description/specifications/statement of work. 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 Part IV--Representations and Instructions.
(b) Section L, Instructions, conditions, and notices to offerors or respondents.
(S-90) The Contracting Officer (KO) shall insert the provision at DARS 52.215-9000, Cross Reference Matrix, in all competitive solicitations when the HCA is the SSA. The KO may insert the provision at DARS 52.215-9000, Cross Reference Matrix, in solicitations in other cases. The Cross Reference Matrix shall be used to ensure that all requirements are addressed, requirements do not conflict, and solicitation sections are internally consistent.
SUBPART 15.3 — SOURCE SELECTION
For AP applicability/requirements, see DARS Part 7 and the AP template at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=acquisition_plan_ap_templates. For required DISA Source Selection procedures and templates, see https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=disa_source_selection_procedures_guides_templates_samples_and_training_materials.
(a) In accordance with DISA Memorandum, PLD, Appointment as Source Selection Authority for the Defense Information Systems Agency, 10 May 2006, the Director for Procurement is designated as the Source Selection Authority (SSA) for all competitive negotiated acquisitions processed by DISA with an actual or estimated value, including options, of $10 million or more. The Director for Procurement has further delegated the authority to serve as the SSA for competitive acquisitions processed by their respective offices, to each DITCO Head of the Contracting Office (HCO) for acquisitions with an actual or estimated value, including options, of $50 million up to $100 million and to each DITCO Chief of the Contracting Office (COCO) for acquisitions with an actual or estimated value, including options, of $10 million up to $50 million. SSA is delegated upon the HCO’s or COCO’s completion of the DISA comprehensive source selection training and SSA training modules. The KO is designated as the SSA for all competitive negotiated acquisitions processed by DISA with an actual or estimated value, including options, of less than $10 million and for all competitive negotiated acquisitions for commercial telecommunications services procured through DISA’s streamlined Inquiry/Quote/Order process. See Table 15-1.
Table 15-1
Source Selection Authority (SSA)
Contract Value |
SSA |
Notes |
< $10M |
KO |
|
≥ $10M - $50M |
COCO |
If Source Selection Training has been completed |
≥ $50M - $100M |
HCO |
If the Source Selection Training has been completed |
> $100M |
HCA |
|
All competitive negotiated commercial telecom services procured through DISA’s streamlined IQO process |
KO |
(S-90) 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.
(S-91) All emails containing source selection sensitive info shall be sent encrypted and/or password protected.
(S-92) COCO approval is required when utilizing best value evaluation criteria Full Trade-Off under $50M.
15.304 Evaluation factors and significant sub factors.
(c)(3)(i)
Class Deviation 2012-O0017, September 13, 2012 (Subj: Class Deviation--Past Performance Reporting) is effective until it is published in the DFARS or until rescinded. The deviation identifies thresholds associated with key business sectors for the collection and use of Past Performance Information (PPI). The deviation shall be used in lieu of FAR 15.304(c)(3)(i) and 42.1502(b) and may be accessed at http://www.acq.osd.mil/dpap/dars/class_deviations.html.
(d) Clearly state in the solicitation, the approach the Government will use to evaluate the contractor’s past performance. For additional guidance, see reference listed in DARS Subsection 15.305(S-90).
(S-90) DISA normally comes under the Services and Information Technology business sectors. For these sectors, past performance information shall be evaluated in all source selections for negotiated competitive acquisitions $1,000,000 or greater unless the KO documents the reason past performance is not an appropriate evaluation factor for the acquisition. Past performance information shall also be evaluated in all source selections for all other contracts that exceed the simplified acquisition threshold. KOs are encouraged to evaluate past performance in all source selections regardless of the dollar threshold.
(S-90) Ensure the source selection plan and solicitation clearly state all evaluation factors, sub-factors, and relative importance.
See the OSD Guide to Collection and Use of Past Performance Information.
(S-91) Evaluation of a single proposal. If only one proposal is received in response to a competitive solicitation, the KO shall determine if the solicitation was flawed or unduly restrictive, and if the single proposal is an acceptable proposal. The interim policy, ‘Only One Offer’ dated June 13, 2011, implements the requirements in the referenced memorandum to (1) ensure that if a solicitation was open for less than 30 days, and only one offer was received, the KO shall re-advertise the solicitation for a minimum of an additional 30 days, unless a waiver is obtained from the head of the contracting activity (HCA) and (2) if the solicitation was open for at least 30 days, or has been re-advertised and still only one offer is received, the KO shall conduct negotiations with the offeror, unless this requirement is specifically waived by the HCA. For individual contract actions arising out of the IQO process, the HCA delegates the Only One Offer Waiver Authority to the Telecommunications HCO. This authority shall not be further redelegated.
A template for a "D&F Waiver for Only One Quote Received - Inquiry/Quote/Order (IQO) Process" can be accessed at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=determination_and_findings.
15.306 Exchanges with offerors after receipt of proposals.
(c) Competitive range.
(1) The competitive range shall be approved by the Source Selection Authority outlined in DARS 15.303 and in accordance with the DISA Source Selection Supplemental Guide.
(4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see FAR 15.505, 15.506 and also see DoD Source Selection Procedures, Section 3.10 Debriefings and Appendix B, Debriefing Guide at the DISA Contracting Templates website, at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=source_selection_procedures ).
(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.
(S-93) Final proposal revision letters shall be reviewed by Legal for actions $50M and over.
15.308 Source selection decision.
(S-90) Use of Automated Source Selection Evaluation Tool. An automated source selection evaluation tool is directed for use for all actions in excess of $50M, and for any actions below this threshold when the HCA is designated as the Source Selection Authority. A written waiver for this requirement must be submitted to the HCA for approval. PLD currently has a license for a Source Selection Evaluation tool; contact PL4 for information on license availability and access.
215.371-3 Fair & Reasonable price.
(b) If only one offer is received, the contracting officer shall obtain cost or pricing data, or other than cost and pricing data for commercial items, and negotiate to determine a fair and reasonable price for all telecommunications contract actions arising out of the I/Q/O process.
(a) The head of the contracting activity waives the requirement at DFARS 215.371-2 to re-solicit for an additional period of at least 30 days for all telecommunications contract actions arising out of the I/Q/O process. However, a fair and reasonable price determination is still required IAW DARS 215.371-3(b).
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.
(1) IGCEs are part of the required documentation for HCA review. The DISA IGCE Deskbook located at https://www.ditco.disa.mil/hq/deskbooks.asp contains procedures/guidance for developing IGCEs.
(2) 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.
(3) 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).
(4) Resource Managers shall coordinate on IGCEs, prior to HCA review or submission of procurement requests to contracts.
(5) KOs 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.
(S-92) DITCO KOs, 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 KO, 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 specialist at PL24 and tariff specialists at PL82. KOs 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 the threshold for obtaining certified cost or pricing data (FAR 15.403-4(a)(1)). Cost/price analyses for contract awards or modifications of a lesser value shall also be requested if considered necessary by the KO 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) PL24 or PL82, with the concurrence of the KO, 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 42.1-90.
(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 KOs 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.
(S-93) To initiate a request for cost/price analysis support, the KO 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.
15.406-3 Documenting the negotiation.
(S-90) A Price Negotiation Memorandum (PNM) shall be prepared for contracting actions as described below and included in the official contract file. A PNM is not required for orders for pre-priced supplies or services placed against an established single award indefinite delivery contract, 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 under the threshold for the test program for certain commercial items of $6.5M, and actions at or below the micro-purchase level). The PNM fulfills the documentation requirements in FAR 15.406-3 and provides the determination of fair and reasonable pricing.
(1) For competitive open market, competitive Small Business Administration (SBA) Section 8(a), and competitive GSA Schedule acquisitions, use the “Competitive PNM” format; except, for FAR Parts 12 and 15 acquisitions in which the HCO or HCA serve as the Source Selection Authority, use the “Source Selection Decision Document (SSDD)” format in lieu of the PNM format.
(2) For competitive acquisitions against indefinite delivery contracts with pre-established rates (e.g., labor rate), use the “IDIQ PNM” format.
(3) For competitive acquisitions resulting in only one offeror, subject to the requirements of the OSD Memo, Improving Competition in Defense Procurements dated 24 Nov 10, use the “Sole Source PNM” format.
(4) For sole source open market acquisitions and sole source SBA Section 8(a) acquisitions at or below the simplified acquisition threshold, or sole source orders placed against established indefinite delivery contracts or GSA Schedules at any dollar value, use the “Sole Source PNM” format.
(5) For sole source open market acquisitions or sole source SBA Section 8(a) acquisitions above the simplified acquisition threshold, use the “Pre-PNM” and “Post-PNM” formats.
(6) For pricing modifications to contracts or orders that were previously competed and have pre-established rates, use the “Modifications PNM” format.
(7) For pricing modifications to contracts or orders that do not include pre-established rates (e.g., cost type pricing modifications), use the “Pre-PNM” and “Post-PNM” formats.
** The PNM templates are located at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=price_negotiation_memorandum_pnm_templates.
(S-91) Approvals at the KO level are required for Competitive PNMs, IDIQ PNMs, or Sole Source PNMs as identified above. The KO must sign these PNMs before the award of the contract/order/modification and place a copy in the official contract file.
(S-92) DITCO Cost/Price Analyst Involvement
(1) Pre- and Post-PNMs and Sole Source PNMs valued over $6.5M shall be routed electronically to a DITCO Contract Cost/Price Analyst for review/coordination prior to approval. Routing to the Cost/Price Analyst is not required when pricing is based on established catalog or market prices, when prices are set by law or regulation, or a fair and reasonable price determination can be made by the KO by comparing prices or rates against an existing or previous Government contract.
(2) Pre-and Post-PNMs valued over $100M (when the HCA is the SSA), shall be prepared in conjunction with the DITCO Cost/Price Analyst. The Cost/Price Analyst shall assist the contracting officer in evaluation of the pricing proposal; development of the pre-negotiation objective and Pre-PNM; negotiations; and, development of the Post-PNM.
(S-93) The approval authorities for Pre/Post PNMs negotiation objectives and modification PNMs negotiation objectives are as follows:
(1) Contracting Officer (KO) -- contract actions not exceeding $6.5M, or any value for GSA schedule buys, 8(a)s, and IDIQ orders, but not above the dollar limitation of his/her warrant. If the KO is negotiating the effort and preparing the Pre-PNM, the negotiation objectives in the Pre-PNM will be approved at least one level above the KO.
(2) One level above the KO -- contract actions valued at more than $6.5M up to $10M.
(3) Chief of the Contracting Office (COCO) -- contract actions from $10M up to $50M
(4) Head of the Contracting Office (HCO) -- contract actions from $50M up to $100M.
(5) Head of the Contracting Activity (HCA) -- contract actions valued at more than $100M.
(S-94) A Post-PNM is required, but the Post-PNM approval may be waived when the negotiated agreement is within the negotiation objectives thresholds approved in the pre-PNM and where there were no significant changes to the terms, conditions, or assumptions under which the pre-PNM was developed and approved. If the post-PNM approval is waived, a waiver statement will be included in the post-PNM and signed by the KO. The waiver statement shall state the following: "Approval of the Post-PNM is not required, since the negotiated price is within the approved pre-negotiation objective, and there were no material changes to the pre-PNM terms, conditions, or assumptions.”
PNM Format and Approval Requirements
COMPETITIVE ACQUISITIONS
ACQUISITION TYPE |
FORMAT |
Open Market (when the Contracting Officer (KO) is the SSA) |
Competitive PNM |
GSA Schedule orders |
Competitive PNM |
8(a) |
Competitive PNM |
IDIQ orders with Pre-established labor rates |
IDIQ PNM |
Open Market (when the COCO, HCO or HCA serves as the SSA) |
Source Selection Decision Document (SSDD) |
Competitive, but only 1 offer received |
Sole Source PNM |
SOLE SOURCE ACQUISITIONS
ACQUISITION TYPE |
FORMAT |
Open Market or 8(a) at or below SAT |
Sole Source PNM |
GSA Schedule orders |
Sole Source PNM |
IDIQ orders |
Sole Source PNM |
Open Market or 8(a) above SAT |
Pre-PNM and Post-PNM |
MODIFICATIONS
MODIFICATION TYPE |
FORMAT |
Pricing Modifications against previously competed actions and have Pre-established rates (e.g., labor rates) |
Modifications PNM |
Pricing Modifications using Pre-established rates (e.g., labor rates) – sole source |
Modifications PNM |
Other Pricing Modifications (e.g., cost type modifications) |
Pre-PNM and Post-PNM |
SUBPART 15.5 -- PREAWARD, AWARD, AND POSTAWARD NOTIFICATIONS, PROTESTS, AND MISTAKES
15.505 Preaward debriefing of offerors.
(S-90) DoD Source Selection Procedures, Section 3.10. Debriefings
The PCO shall ensure offerors are debriefed, if requested, in accordance with FAR 15.505
and FAR 15.506, as applicable. The PCO shall document the debriefing(s) provided to
offeror(s). At the request of the PCO, members of the Source Selection Team shall participate in debriefings to offerors. The PCO is encouraged to use the debriefing guide provided in the DoD Source Selection Procedures, Appendix B.
15.506 Postaward debriefing of offerors.
(d) (S-90) In addition to the requirements of FAR 15.506(d), See the DoD Source Selection Procedures, Appendix B, Section B.7, Outline for Debriefings at the DISA Contracting Templates website, https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=source_selection_procedures ).
SUBPART 15.6 — UNSOLICITED PROPOSALS
15.604 Agency points of contact.
(a) PL22 is the designated agency point of contact for unsolicited proposals. Contact with agency technical or other appropriate personnel by the offeror shall be coordinated through PL22.
(a) Unless the vendor specifies within the proposal otherwise, no reproduction of material is allowed beyond the initial copy per branch/division required for the appropriate PL22, legal, or technical reviews. Upon notification by PL22 that reviews are complete, all copies shall be properly disposed via burn bag or shredding and any softcopies received by email must be permanently deleted.
15.606-1 Receipt and initial review.
(S-90) PL22 will perform the receipt and initial review process in consultation with the HCO or HCO designee and Legal within 15 business days of receipt of the unsolicited proposal. (The HCO’s designee must be a KO who can contractually obligate or bind the Government to consult on the initial review.) Before initiating a comprehensive evaluation PL22 shall make the determination the unsolicited proposals meets the criteria defined in FAR 15.606-1(a) (1) through (7). If the proposal meets these requirements the Head of Contracting Activity (HCA) shall promptly acknowledge receipt and process the proposal for further evaluation. If the proposal does not meet the requirements of FAR 15.606-1(a) and is rejected, the HCAshall inform the offeror the reasons for rejection. PL22 shall maintain an unsolicited proposal log which includes, at a minimum, the company name, proposal title, DITCO Contracting Office, Technical POC, date unsolicited proposal was received, final disposition of the unsolicited proposal.
(a) PL22 will coordinate comprehensive evaluations and will attach or imprint on each unsolicited proposal, circulated for evaluation, the legend required by 15.609(d) within 30 business days after receipt of the unsolicited proposal.
(b) If the unsolicited proposal meets the criteria in FAR 15.605 and 15.606-1, PL22 will forward the unsolicited proposal to the appropriate technical representative, as designated by the HCO or HCO’s designee, for a comprehensive technical review. The technical review shall include a recommendation for acceptance or rejection of the proposal after considering the factors outlined in FAR 15.603. The technical evaluator or evaluators recommended acceptance or rejection of the unsolicited proposal shall be documented with supporting rationale.
(c) The evaluators shall notify PL22 of their recommendations when the evaluation is completed.
(S-90) PL22 will review the entire package including the unsolicited proposals and the technical evaluation and forward the package to legal for review. Legal will provide comments concurring or nonconcurring with the evaluation decision.
15.607 Criteria for acceptance and negotiation of an unsolicited proposal.
(a) All unsolicited proposals will be reviewed and accepted or rejected by the Vice Director.
(b) The Vice Director will provide a letter indicating rejection of an unsolicited proposal to the offeror citing the reasons for the rejection using supporting statements from the comprehensive evaluation.
(c) The Vice Director will provide a letter indicating acceptance of an unsolicited proposal only after the criteria in 15.606-2 are met.