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Subpart 12-3.8—Price Negotiation

Policies and Techniques

forth in DOTPR 12-3.704-50 shall also be included in the contract. When the contract is a cost-plus-incentive-fee type, delete “Allowable Cost, Fixed Fee, and Payment” from paragraph (a) of the clause in FPR 1-3.704-1 and substitute “Allowable Cost, Incentive Fee, and Payment."

$ 12-3.704-2 Contracts with educational

institutions. When either the “Postdetermined" or “Predetermined" negotiated overhead rates clauses in FPR 1-3.704-2 is included in the contract, the appropriate “Indirect Costs” clause set forth in DOTPR 12-3.704-50 shall also be included in the contract.

$ 12-3.801-2 Responsibility of contracting

officers. In the event a contractor insists on a price or demands a profit or fee which the contracting officer considers unreasonable, and if the contracting officer is unable to obtain a satisfactory solution after exhausting the courses of action set forth in FPR 1-3.801-2(c), the matter shall be referred for resolution to the head of the procuring activity with a statement of facts and the contracting officer's recommendations. 8 12-3.807–6 Refusal to provide cost or

pricing data. In addition to the data required by FPR 1-3.807-6, a referral to higher authority should indicate the impact on the affected procurement program if an award is not made to the refusing offeror, and include a recommended course of action.

$ 12-3.704-50 Interim payment of indirect

costs. (a) When the contract includes a "Negotiated Overhead Rate" clause as set forth in FPR 1-3.704-1 or 1-3.7042, one of the clauses set forth in DOTPR 12–7.203-950 (whichever is consistent with the contractor's normal method of interim and final overhead reimbursement) shall be in serted in the contract schedule.

(b) Prior to establishing or revising the negotiated provisional rates, the contracting officer should request the contractor to submit for review his proposed overhead rates with supporting cost data, with a copy to the cognizant audit activity.

(c) Provisional overhead rates may be revised after the contracting officer has received advice that the Department of Defense or other Government office sponsoring overhead negotiations with the contractor has negotiated acceptable overhead rates.

8 12-3.808-2 Factors for determining fee

or profit. In determining the fee or profit, consideration must be given to the tax posture of the organization. A fair and reasonable fee to a nonprofit or notfor-profit organization, with tax exemptions, would be considerably lower than a fee to a commercial enterprise with no tax exempt status.

8 12-3.704-51

Audit determination (actual). Where it is not apparent that any of the major purposes enumerated in FPR 1-3.702 results or will result by the use of negotiated final overhead rates, the contracting officer will provide for settlement of overhead by audit determination. In these cases the following clause shall be used in lieu of the “Negotiated Overhead Rate" clause prescribed in FPR 13.704-1 or 1-3.704-2:

§ 12-3.809 Contract audit as a pricing aid.

(a) In establishing the due date for receipt of the auditor's report, the minimum time which will be allowed by DOT contracting officers shall normally be 30 days. Exceptions to this 30-day minimum period may be made only when program considerations require a shorter time. Urgency caused by end of year funding considerations will not be a justification for requiring a shorter period for advisory audit review.

(b) When DCAA is assigned postaward audit responsibility under cost reimbursable contracts, the contractor shall be instructed to forward the first and final vouchers to the cognizant auditor for audit review. The cogni

ences between the RFP and the contract proposed for award.

(iii) Describe any consideration given to the use of an incentive type contract and, when used, the details of the incentive provisions.

(iv) Explain why the final negotiated price is fair and reasonable. Include a statement of receipt of the certificate of current cost or pricing data. Reference the prospective contractor's confirmation of the negotiated price, terms, and conditions of the contract.

(g) Other information. Provide details, if the procurement involves procedural or contractual innovations, protests by unsuccessful proponents, GAO or Congressional inquiries, or any other special circumstances which would be of interest to approving authority.

(h) Recommendations. Include a positive recommendation for award.

zant DCAA auditor shall also be furnished a paid copy of each voucher furnished under the contract by the paying office. $ 12–3.811 Record of negotiations.

The requirement in FPR 1-3.811(a) shall be satisfied by the preparation of a memorandum which summarizes the key procurement decisions and the principal elements of the negotiations. The format below shall be followed to the extent appropriate:

(a) Introduction. (1) Describe the products or services to be purchased.

(2) Specify the type and amount of proposed contract.

(b) Background. (1) Identify the requisitioning office and the individual responsible for requirement.

(2) Show the procurement request number and its total estimated cost.

(c) Solicitation of proposals. (1) Identify the RFP by number and date.

(2) Show number of sources solicited, including requests received resulting from the synopsis.

(3) Reference any pre-bid conference held.

(4) Indicate date proposals were due.

(5) Furnish explanation for opening date of less than 30 days.

(d) Proposals. (1) Indicate the number of proposals received.

(2) Identify offerors and the amounts of their price proposals.

(e) Technical evaluation of proposals. (1) Identify the memorandum received from the technical evaluation team

(2) List the firms whose proposals were considered technically acceptable and their ratings.

(3) Identify those firms considered to be within a competitive range.

(f) Negotiations. (1) In addition to the applicable information described in FPR 1-3.811, this section of the memorandum should also:

(i) Summarize any pre-negotiation conference, including the primary objectives in the areas of price and technical and legal considerations.

(ii) Describe any special contract provisions negotiated. Provide an explanation if the delivery schedule or period for performance negotiated differs from that in the RFP. State the reasons for any substantive differ

Subpart 12-3.50—Solicitation of

Proposals 819_2 5000 Seone a § 12-3.5000 Scope of subpart.

This subpart applies to all negotiated procurement except small purchases. § 12-3.5001 Competition.

Competitive proposals shall be solicited from the maximum practicable number of qualified and eligible suppliers.

8 12-3.5002 Preparation of request for

proposals. (a) Generally, requests for proposals shall be in writing. However, in appropriate cases, such as the procurement of perishable subsistence, proposals may be solicited orally. When the request is to be in writing, the following forms shall be used:

(1) For negotiated construction contracts, the standard forms in FPR 116.401.

(2) For other than construction, Standard Form 33 (Solicitation, Offer, and Award) and Standard Form 33A (Solicitation Instructions and Conditions).

(b) Requests for proposals shall indicate the type of contract contemplated by the Government. When technical

proposals are required, requests for those to whom solicitations have been proposals shall indicate the factors on issued as to the time, place, and generwhich the Government will evaluate al nature of the proposed conference. the proposals and list them in their If time permits, prospective offerors relative order of importance. Any should be asked to submit, in advance, other factors, excluding price, which any questions they may have. will be given paramount consideration (b) The pre-proposal conference in making an award shall also be indi. shall be conducted by the contracting cated.

officer or his representative, with par(c) The guidelines established in

ticipation by technical and legal perDOTPR 12-2.202-1 for minimum bid

sonnel as appropriate. ding times are applicable to requests

(c) All prospective offerors shall be for proposals.

furnished identical information in con

nection with the proposed procure§ 12-3.5003 Receipt and safeguarding of

ment. All conferees shall be advised offers.

that remarks and explanations at the The instructions for the receipt and

conference shall not qualify the terms safeguarding of bids in FPR 1-2.401

of the solicitation and specifications shall also apply to the receipt and

unless the solicitation is amended in safeguarding of proposals.

writing. A summary shall be made of $ 12-3.5004 Solicitation for informational

the conference and copies furnished

prospective offerors. or planning purposes. See FPR 1-1.314.

$ 12-3.5007 Amendment of request for

proposals-prior to closing date. 8 12-3.5005 Bidders mailing lists.

(a) If after issuance of a request for Bidders mailing lists for negotiated

proposals, but before the closing date procurements shall be established, maintained, and utilized in accordance

of its receipt, it becomes necessary to with FPR 1-2.205 and DOTPR 12

make changes in quantity, specifica2.205-5.

tions, delivery schedules, or closing

dates, or to correct a defect or ambigu§ 12-3.5006 Pre-proposal conferences. ity, such change shall be accomplished

by issuance of an amendment to the 8 12-3.5006-1 General.

request, whether or not a preproposal (a) The pre-proposal conference is a conference is held. SF-30 shall be used procedure which may be used, general- for amending requests for proposals. ly in complex negotiated procurement, (b) When it is considered necessary as a means of briefing prospective of- to issue an amendment to a request ferors after a solicitation has been for proposals, the period of time reissued but before offers or proposals maining before closing and the need are prepared.

for extending this period by postpon(b) Such a conference permits the ing the time set for closing must be Government to explain or clarify com considered. Where only a short time plicated specifications and require remains before the time set for closments to interested firms. It may also ing, consideration should be given to be used to provide an opportunity for notifying offerors of an extension of interested firms to examine a model of time by telegram or telephone. Such the equipment being procured, where notification should be confirmed in for reasons such as security or limited the amendment. quantities, such model can only be (c) Any information given to a prosshown at a specific time and location pective offeror concerning a request

for proposals shall be furnished 8 12-3.5006-2 Procedure.

promptly to all other prospective of(a) Where it is determined to be in ferors as an amendment to the request the best interests of the Government if the lack of such information would to hold a pre-proposal conference, the be prejudicial to uniformed offers. No contracting officer shall make the nec award shall be made on request for essary arrangements and notify all proposals unless such amendment

thereto has been issued in sufficient sonnel, at meetings arranged by contime to permit prospective offerors to tracting personnel, or by official correconsider such information in submit- spondence from the contracting offiting or modifying their proposals. cer to the originating activity or tech

nical office seeking clarification of the 8 12-3.5008 Treatment of procurement in

matter in question. In the conduct of formation.

necessary discussion of a request for

proposals with suppliers, no personnel $ 12-3.5008-1 Restrictions on disclosure

shall furnish any information to a supand use of data in proposals.

plier which may afford him any ad(a) Requests for proposals may re vantage over others. However, general quire the offeror to submit data with information which would not be prejuhis proposal which may include a dicial to others may be furnished upon design or plan for accomplishing the

request, e.g., explanations of a particuobjectives of the procurement. Such

lar contract clause or a particular condata may include information which dition of the schedule. When necesthe offeror does not want disclosed to

sary to clarify ambiguities, or correct the public or used by the Government

mistakes or omissions, an appropriate for any purpose other than evaluation

amendment to the solicitation shall be of the proposals.

issued. (b) Contracting officers and other Government personnel shall not

§ 12-3.5008-3 Pre-award notice of unacrefuse to consider any proposal merely

ceptable offers. because it or the data submitted with it is SO marked with a restrictive

In any procurement in excess of legend. Those portions of the proposal

$10,000 in which it appears that the and data which are so marked (except

period of evaluation of proposals is for information which is also obtained

likely to exceed 60 days or in which a from another source without restric

limited number of suppliers have been tion) shall be used only to evaluate the

selected for additional negotiation, the proposal and shall not be disclosed

contracting officer, upon determinaoutside the Government without the

tion that a proposal is unacceptable, written permission of the offeror. If it

shall provide prompt notice of that is desired to duplicate, use, or disclose

fact to the source submitting the prothe data of the offeror to whom the posal. Such notice need not be given contract is to be awarded, for purposes

where the proposed contract is to be other than to evaluate the proposal,

awarded within a few days and notice the contract should so provide.

pursuant to FPR 1-3.103 would suf

fice. In addition to stating that the 8 12-3.5008-2 Disclosure of information proposal has been determined unac

during the pre-award or pre-acceptance ceptable, notice to the offeror shall period.

advise that, since further negotiation (a) General. See FPR 1-3.805-1(b) with him concerning this procurement for restrictions regarding the disclo

is not contemplated, a revision of his sure of information.

proposal will not be considered. If the (b) Equal consideration and infor. firm requests a debriefing, this shall mation to all prospective contractors.

be provided at the earliest feasible During the interval between mailing

time after the request, but not prior to of requests for proposals and the

award of the contract. making of awards, discussion of the procurement with prospective contrac

8 12-3.5009 Notice of award technique. tors and the transmission of technical When time is of the essence, the or other information shall be conduct. notice of award technique may be used ed only by or with the knowledge of as an acceptance of a proposal. To the contracting officer; except that assure that the notice of award will necessary technical or other informa constitute a valid acceptance of the of. tion during such period may be trans- feror's proposal, the contracting offimitted to prospective contractors by cer will insure that the proposal fully other personnel via contracting per- embodies the terms of the agreement

Sec. 12-4.1004-1 Establishment of Architect-En

gineer Evaluation Boards. 12-4.1004-2 Functions of the Evaluation

Board. 12-4.1004-3 Evaluation criteria. 12-4.1004-4 Action by the agency head or

his authorized representive. 12-4.1004-5 Procedures for procurements

estimated not to exceed $10,000. 12-4.1005 Negotiation procedures. 12-4.1005-1 General. 12-4.1050 Release of information. 12-4.1051 Clauses for architect-engineer

contracts. 12-4.1052 Debriefing unsuccessful inter

viewed firms.

Subpart 12-4.50_Utilization and Disposal of

Personal Property Pursuant to Exchangel

Sale Authority 12-4.5001 General.

between the parties. If the proposal is changed, for any reason, the contractor must set forth his understanding of any modifications or additions in a letter to the contracting officer. The notice of award shall reference the contractor's proposal and any other document modifying the proposal. The following is a sample notice of award:

NOTICE OF AWARD GENTLEMEN: The United States of America, acting through the undersigned contracting officer, hereby accepts your proposal No. --, dated ----, as modified by your letter(s) of ------, to furnish (supplies, services, work) in accordance with RFP No. ---, dated ------, for a total price of $ --- This notice of award constitutes a binding contract obligation from time of mailing. All delivery dates will be computed from the date of this notice unless otherwise provided.

A document formalizing this contract will be sent to you for signature as soon as possible. This formal contract will be dated and numbered as above.

You are directed to proceed with the performance of this contract in accordance with the terms of your proposal and this acceptance.

Sincerely, (Written Signature) (Typed Name)

Contracting Officer (on copies only)

(Date) Funds Citation: Negotiation Authority: ---§ 12-3.5010 Protests against award.

Protests against awards of negotiated procurements shall be processed in the same manner as prescribed in FPR 1-2.407-8.

Subpart 12-4.51-Procurement of Tax-Free

Spirits 12-4.5100 Scope of subpart. 12-4.5101 Delegation of authority. 12-4.5102 Procedure.

AUTHORITY: Sec. 205(c), 63 Stat. 389; 40 U.S.C. 486(c), 10 U.S.C. 2301-2314.

SOURCE: 42 FR 45205, Sept. 8, 1977, unless otherwise noted.

Subpart 12-4.10—Architect-Engineer


§ 12–4.1002 Definitions.

(a) (Reserved)

(b) “Agency Head” refers to those DOT officials designated in DOTPR 12–1.204.

(c) (Reserved]

(d) “Head of the Procuring Activity" refers to those DOT officials designated in DOTPR 12-1.206.

(e) Fee”—The compensation (contract price) for professional services paid to the A-E.

8 12-3.5011 Unsolicited contract proposals.

Department Order 4200.4 (set forth in DOTPR Part 99) establishes the policies and procedures for processing unsolicited contract proposals.


Subpart 12-4.10—Architect-Engineer Services Sec. 12-4.1002 Definitions. 12-4.1003 Public annoucements. 12-4.1004 Selection.

8 12-4.1003 Public announcements.

The time allowed for A-E firms to respond to an advertisement of a project notice shall generally follow the requirements for bidding time in FPR 1-2.202-1 and DOTPR 12-2.202-1. If practical the time allowed for firms to respond to a project notice shall be 30 days from the date the notice is published; however, the minimum time

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