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for award. Predetermined cutoff and an alternate source or sources in scores designed for determining the the event the conduct of final negotiathreshold level of acceptability of pro- tions so warrant. posals shall not be employed.

(i) After receipt of the SSO's recom(d) After the initial technical evalua- mendation, the Contracting Officer tion, the Contracting Officer and the shall select a source, based upon the SEB will evaluate the business portion findings and recommendations of the of each proposal.

SSO for final negotiations in accord(e) Unless the SEB is prepared to ance with HUDPR 24-3.805(2)(h). recommend pursuant to 41 CFR 1

Final negotiations and award will be 3.805-1(a)(5) that award be made on effected in accordance with HUDPR basis of the most favorable initial pro- 24-3.805-2(i). posal, the SEB shall establish a competitive range based upon the evalua

Subpart 24-3.51–Protests Against tion of all the factors for award in

Award cluding cost or price.

(f) The SEB shall conduct written or oral discussions with all proposers

$ 24-3.5101 Negotiated procurement prowithin the competitive range as out

tests. lined in HUDPR 24-3.805-2(f).

Protests against awards of negotiat(g) After the close of discussions, re- ed procurement shall be processed in ceipt of any revisions to proposals and accordance with HUDPR 24-2.407-8. any final adjustments to proposal scores, the SEB shall prepare a writ

PART 24-4—SPECIAL TYPES AND ten report of its findings and recom

METHODS OF PROCUREMENT mendations and submit it to the SSO for action. The report shall summarize all significant SEB actions in the so

Subpart 24-4.1-Automatic Data Processing licitation and evaluation phases and

Equipment and Services include:

Sec. (1) Statement of findings. Each ac- 24-4.101 Clearance procedures. ceptable proposal shall be discussed in descending order of scores/rankings. Subpart 24–4.10—Architect-Engineer Services The statement shall identify the strengths and weaknesses of each pro 24-4.1000 Scope of subpart. posal and any appropriate information

24-4.1004-1 Establishment of Architect-Enfor the consideration of the SSO.

gineer evaluation boards. (2) Recommendations. The SEB

24-4.1004-2 Conflict of interest. shall provide recommendations to the

24-4.1004-3 Privity of information. SSO as to selection in terms of: (i) A

24-4.1004-4 Maintenance and furnishing of

source lists. single source; (ii) a number of equal

24-4.1004-5 Selection policy. sources; (iii) a number of sources in de

24-4.1004-6 Selection procedures. scending order; or (iv) options to be considered in arriving at the final deci. AUTHORITY: Sec. 7(d), Dept. of HUD Act sion. In making its recommendation (42 U.S.C. 3535(d)). the SEB shall consider the require- SOURCE: 41 FR 55811, Dec. 22, 1976, unless ments set forth in HUDPR 24-3.805- otherwise noted. 2(h). (h) Based upon the SEB report and

Subpart 24-4.1-Automatic Data his review of the matter, the SSO will

Processing Equipment and Services recommend a source or sources and document ther basis for his recommendation. The SSO will communi. 829

$ 24-4.101 Clearance procedures. cate his findings and recommendation No IFB, RFP, RFQ or amendment in a memorandum to the Contracting to an existing contract, when related Officer. The memorandum will re- in whole or in part to the procurement quest the Contracting Officer to nego. of ADP equipment or services, shall be tiate with the recommended source(s), issued until GSA approval is obtained and may include specific instructions pursuant to the FPMR.

Subpart 24-4.10—Architect-Engineer

Services

8 24-4.1004-3 Privity of information.

The Evaluation Board is to be insulated from outside pressures to the extent practical. No person having knowledge of the activities of the Board shall divulge information concerning the deliberations of the Board to any other persons not having a need to know such information.

8 24-4.1000 Scope of subpart.

This subpart sets forth the policy and procedures to be followed for the establishment of architect-engineer evaluation boards and sets forth policy and procedures for the deliberations of the Board. $ 24-4.1004-1 Establishment of Architect

Engineer evaluation boards. Each architect-engineer evaluation board, whether permanent or ad hoc, shall consist of at least five (5) voting members who are Federal employees from the appropriate program area or from Federal offices outside the program area as appropriate. One member of each board shall be appointed Chairman. Five (5) alternate members who are Federal employees shall also be appointed, but at any given time the majority of voting members shall be from the program area concerned. The members of a permanent board shall be appointed for a period of two (2) years. Appointment shall be made by the following authorities with copies of appointment memoranda furnished to the appropriate procuring activity:

(a) Primary Organizational Heads for Boards appointed at the Headquarters level;

(b) Head of the Procuring Activity for Boards appointed at the Field Office level.

$ 24-4.1004-4 Maintenance and furnishing

of source lists. The appropriate office utilizing architect-engineer services shall maintain a source list consisting of the current “U.S. Government Architect-Engineer Questionnaire,” Standard Form 254 (SF-254), submitted by firms as defined in 41 CFR 1-4.1002 interested in performing work in the program area. For each procurement or group of related procurements the Board shall prepare from its source list a preselection list of ten (10) firms considered likely to be capable of meeting the requirements of the procurement. Every SF-254 shall be read and evaluated by at least two (2) Board members to determine which of the firms on the source list should be included on the preselection list. When a list of ten (10) firms is not available, fewer firms may be considered. SF-254's may be obtained from the General Services Administration.

8 24-4.1004–2 Conflict of interest.

Each board member, whether voting or nonvoting, shall familiarize himself with those provisions of Title 24, Housing and Housing Credit, Subtitle A, Part O, of the Code of Federal Reg. ulations regarding conflicts of interest. If at any time during the selection process a Board member encounters a situation with one or more of the firms being considered that might be or might appear to be a conflict of in. terest, he will disqualify himself and call it to the attention of the Chairman for resolution and proper action.

The Chairman will refer the matter to the Office of General Counsel.

§ 24-4.1004–5 Selection policy.

The selection of architect-engineering firms for professional service contracts shall be accomplished in accordance with the procedures set forth in this section. Such selection shall be based upon competitive evaluation procedures to determine which firm(s) is/are the most qualified. Qualification considerations include but are not limited to:

(a) Demonstrated specialized experience of the firm and key personnel in the area of expertise needed for the procurement.

(b) Capability and capacity of the firm to accomplish the work in the required period of time.

(c) Past experience of the firm with respect to performance of Federal contracts.

(d) Geographical location of the screening and evaluation sheets and firm having working offices, capacity, meeting records are a part of the offiand personnel to respond to the re- cial record of the Board. quirements of the procurement if geographical location is an important PART 24–7–CONTRACT CLAUSES factor to the procurement.

Sec. § 24-4.1004–6 Selection procedures. 24-7.000 Scope of part.

The following procedures shall be used in the selection of architect-engi

Subpart 24-7.5—Special Clauses neering firms for all engineering con- 24-7.5007 Letter of credit. tracts:

24-7.5008 Negotiated overhead rates. (a) For each requirement or group of 24-7.5009 Indirect costs (actual). requirements intended to result in a 24-7.5010 Indirect costs (ceiling). single contract, the Board shall review

24-7.5011 Consideration and payment

(cost-sharing). the qualifications and performance

24-7.5012 Reproduction of reports. data for each of the firms on the pre

24-7.5013 Warranty. selection list, in accordance with the

24-7.5014 Coordination of Federal reportselection policy, including input from

ing requirements. the program staff and shall select a 24-7.5015 Ocean freight shipments-use of minimum of three firms determined to American-flag vessels-reports. have the highest qualifications. The 24-7.5016 Lead based paint proscription. procuring activity shall then mail let- AUTHORITY: Sec. 7(d), Housing and Urban ters of inquiry to those highest quali. Development Act (42 U.S.C. 3535(d)). fied firms regarding capability to per

SOURCE: 41 FR 55812, Dec. 22, 1976, unless form the work, anticipated concepts,

anticipated concepts, otherwise noted. and the relative utility of alternate methods of approach.

§ 24-7.000 Scope of part. (b) The replies to these letters shall This part sets forth special contract be evaluated by the Board with each

clauses which are in addition to response being evaluated by at least

clauses set forth in 41 CFR Part 1-7 three Board members. The SF-254's

for use in connection with the profrom the responding firms may also be

curement of personal property and reevaluated as necessary by three or

nonpersonal services (including conmore Board members. The firms quer

struction). ied will be reranked as necessary in accordance with the Board's evaluation.

Subpart 24-7.5—Special Clauses (c) After the reranking, a Request for Contract Services shall be forward

§ 24-7.5007 Letter of credit. ed to the procuring activity. The authorities identified in HUDPR 24

When advance payments are author4.1004-1 or his designee shall be the

ized and a letter of credit is to be used. Source Selection Official. The SSO insert the following clause: shall indicate the order of qualifica

LETTER OF CREDIT tion, including capability, of the selected firms.

a. The advance funds will be provided in (d) The procuring activity shall send

accordance with the letter of credit proce

dure set forth in HUD Handbook 1900.4B or a Request for Proposal to the firm

Handbook 1900.23 as appropriate. The Conranked highest on the list and if the

tractor shall use these procedures to obtain proposal is acceptable shall intiate ne advance funds for allowable costs under this gotiations with that firm. If such ne contract. gotiations are unsuccessful, contract b. In accordance with those procedures, a negotiations shall then be commenced

Letter of Credit will be issued in an amount with the second most qualified firm.

determined by the Contracting Officer Failing accord with the second firm,

based on the needs of the Contractor. Sub

sequent amendments to the Letter of Credit contract negotiations shall be com

will be on the basis of an amendment to the menced with the third firm.

contract. In no instance will advance funds (e) All selection and negotiation pro

provided by the letter of credit procedure ceedings shall be documented. All exceed the amount of the contract as from

time to time amended, less the amount of withholding provided therein.

c. The funds provided by the letter of credit procedure shall be solely for the purposes of making payments for items of allowable cost as defined in this contract, or to reimburse the Contractor for such items of allowable cost and for making payments for such other costs as the Contracting Offi. cer otherwise has authority to approve, and does approve in writing.

d. The Contractor may draw on the Letter of Credit using payment vouchers as fol. lows:

1. Payment vouchers may be executed only for the purpose of obtaining funds in the minimum amount necessary for the following purposes:

(a) Making payments for items of allowable costs as defined in this contract; (b) reimbursing the Contractor for such items of allowable costs; and (c) for making payments for such other costs as the Contracting Officer otherwise has authority to approve, and does approve in writing; and the funds so obtained may be used only for such purposes.

2. Payment vouchers drawn shall be timed to be in accordance with the actual cash requirements of the Contractor in carrying out the purpose of the contract.

e. The Contractor may at any time repay all or any part of the funds or credit obtained under the Letter of Credit. When so requested in writing by the Contracting Of ficer, the Contractor shall repay to the Gov. ernment such part of the balance of advance payments as shall, in the opinion of the Contracting Officer, be in excess of the Contractor's current needs.

f. If upon completion or termination of this contract all amounts obtained by the Letter of Credit have not been fully liquidated by authorized charges under the contract, the balance thereof shall be deducted from any sums otherwise due or which may be due to the Contractor from the Government, and any excess funds shall be repaid by the Contractor to the Government upon demand.

g. Notwithstanding any other provisions of this contract, the Contractor shall not transfer, pledge, or otherwise assign this contract or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company, or other financing institution.

h. Any and all advance payments made under this contract shall be secured by a lien in favor of the Government, paramount to all other liens, upon the supplies or other things covered by this contract and on all material and other property acquired for or allocated to the performance of this contract, except to the extent that the Govern ment by virtue of any other provision of this contract, or otherwise, shall have valid

title to such supplies, materials, or other property as against other creditors of the Contractor. The Contractor shall identify by marking or segregation all property which is subject to a lien in favor of the Government by virtue of any provision of this contract in such a way as to indicate that it is subject to such lien and that it has been acquired for or allocated to the performance of this contract. If for any reason such supplies, materials, or other property are not identified by marking or segregation, the Government shall be deemed to have a lien to the extent of the Government's interest under this contract on any mass of property with which such supplies, materials, or other property are commmingled. The Contractor shall maintain adequate accounting control over such property on his books and records. If at any time during the progress of the work on the contract it becomes necessary to deliver any item or items and materials upon which the Government has a lien as aforesaid to a third person, the Contractor shall notify such third person of the lien herein provided and shall obtain from such third person a receipt, in duplicate, acknowledg. ing, inter alia, the existence of such lien. A copy of each receipt shall be delivered by the Contractor to the Contracing Officer. If this contract is terminated in whole or in part and the Contractor is authorized to sell or retain termination inventory acquired for or allocated to this contract, such sale or retention shall be made only if approved by the Contracting Officer, which approval shall constitute a release of the Government's lien hereunder to the extent that such termination inventory is sold or retained, and to the extent that the proc

roceeds of the sale, or the credit allowed for such retention on the Contractor's termination claim, is applied in reduction of advance payments then outstanding hereunder.

$ 24-7.5008 Negotiated overhead rates.

When it has been determined pursuant to HUDPR 24-3.702(a) that negotiated overhead rates should be used, insert the following clause:

NEGOTIATED OVERHEAD RATES (a) Notwithstanding the provisions of the clause of this contract entitled “Allowable Cost, Fixed Fee, and Payment,” the allowable indirect costs under this contract shall be obtained by applying negotiated overhead rates to bases agreed upon by the parties, as specified below.

(b) The Contractor, as soon as possible but not later than ninety (90) days after the expiration of his fiscal year, or such other period as may be specified in the contract, shall submit to the Contracting Officer, with a copy to the cognizant audit activity, a proposed final overhead rate or rates for that period based on the Contractor's actual cost experience during that period, together with supporting cost data. Negotiation of overhead rates by the Contractor and the Contracting Officer shall be undertaken 4 promptly as practicable after receipt of the Contractor's proposal,

(e) Allowability of costs and acceptability of cost allocation methods shall be deter mined in accordance with applicable Part 1 16 of Federal Procurement Regulations (41 CFR Part 1-18) as in effect on the date of this contract.

(d) The results of each negotiation shall be set forth in a modification to this con: tract, which shall apeetty (1) the agreed final rates, (2) the bases to which the rates apply, and (3) the periods for which rates apply.

(e) Pending establishment of final over. head rates for any period, the Contractor shall be reimbursed either at negotiated provisional rates as provided in the con: tract, or at billing rates acceptable to the Contracting Officer, subject to appropriate adjustment when the final rates for that period are established. To prevent substan. tal over or under payment, and to apply either retroactively or prospectively; (1) Provisional rates may, at the request of either party, be revised by mutual agree. ment, and (2) billing rates may be adjusted at any time by the Contracting Officer. Any such revision of negotiated provisional rates provided in the contract shall be set forth in a modification to this contract.

(f) Any failure by the parties to agree on any final rates under this cause shall be considered a dispute concerning a question of fact for decision by the Contracting Offi. cer within the meaning of the “Disputes" clause of this contract.

84-7.5010 Indirect costa (celling).

when it has been determined in ac. cordance with 41 CFR 1-3=707 that it lo appropriate to place an overhead celling in the contracta, insert the fol. lowing alause:

INDIRECT COITS (WITH CEILINO) (A) Pursuant to the provisions of the clause of this contract entitled, "Indirect Costs (Actual)," the following rates are on: tablished:

Period Cost Center Type Rate Base (b) In addition to the principles for deter: mination of costa sot forth in the clause of this contract entitled "Indirect Costs (Actual)," the following special provision shall be applicable to this contract. * Final overhead rates shall not exceed == % of the allowable direct labor dollars; provided, however, that in the event overhead rates developed by the cogniçant audit activ: ity on the basis of actual allowable costs are less than the ceiling overhead rate agreed to herein then the rates based upon those os. tablished by such cognizant auditor shall apply, The Government will not be obligat: ed to pay any additional amounts on 20count of overhead above the ceiling overhead rate set forth above.

$ 84-7.5011 Consideration and payment

(cost-sharing), The following clause shall be insert. ed in each cost-sharing contract:

CONSIDERATION AND PAYMENTS

$ 24-7.5009 Indirect costs (actual).

When it has been determined pursu. ant to HUDPR 24-3.702(c) that it is not appropriate to include the Negoti. ated Overhead Rates Clause, insert the following:

INDIRECT COSTS (ACTUAL) In accordance with the "Allowable Cost, Fixed Fee, and Payment" cause of the con tract, the Contractor shall be paid his actual overhead cost. Allowable overhead cost will be determined by the Contracting Officer in accordance with the principles set forth in 41 CFR Part 1-16, Any failure of the parties hereto to agree as to what con. stitutes actual overhead costs shall be con. sidered a dispute covering a question of fact within the meaning of the clause of this contract entitled "Disputes."

(COST-SHARING) (a) The estimated cost for the perform: ance of this contract is $-=, The Contractor agrees to bear without reimbursement by the Government ==% of the cost for performance hereunder. Such cost sharing shall be effected as set forth in Paragraph (b) below.

(b) Public vouchers or invoices shall be submitted to the Contracting Officer in an original and five (8) copies and shall show the total cost incurred for the period for which the voucher or invoice is submitted, the cumulative total of costs incurred through the billing period, and the percent: age of costs to be reimbursed by the Gov. ernment. However, the Government is not obligated to reimburse the Contractor in excess of ==% of such amount. The Gov. ernment shall not be obligated to reimburgo the Contractor for the Government's share of the costs in excess of $-= nor is the Con. tractor obligated by this contract to expend his own funds in excess of $-=,

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