cutoff

for award. Predetermined scores designed for determining the threshold level of acceptability of proposals shall not be employed.

(d) After the initial technical evaluation, the Contracting Officer and the SEB will evaluate the business portion of each proposal.

(e) Unless the SEB is prepared to recommend pursuant to 41 CFR 13.805-1(a)(5) that award be made on basis of the most favorable initial proposal, the SEB shall establish a competitive range based upon the evaluation of all the factors for award including cost or price.

(f) The SEB shall conduct written or oral discussions with all proposers within the competitive range as outlined in HUDPR 24-3.805-2(f).

(g) After the close of discussions, receipt of any revisions to proposals and any final adjustments to proposal scores, the SEB shall prepare a written report of its findings and recommendations and submit it to the SSO for action. The report shall summarize all significant SEB actions in the solicitation and evaluation phases and include:

(1) Statement of findings. Each acceptable proposal shall be discussed in descending order of scores/rankings. The statement shall identify the strengths and weaknesses of each proposal and any appropriate information for the consideration of the SSO.

(2) Recommendations. The SEB shall provide recommendations to the SSO as to selection in terms of: (i) A single source; (ii) a number of equal sources; (iii) a number of sources in descending order; or (iv) options to be considered in arriving at the final decision. In making its recommendation the SEB shall consider the requirements set forth in HUDPR 24-3.8052(h).

(h) Based upon the SEB report and his review of the matter, the SSO will recommend a source or sources and document ther basis for his recommendation. The SSO will communicate his findings and recommendation in a memorandum to the Contracting Officer. The memorandum will request the Contracting Officer to negotiate with the recommended source(s), and may include specific instructions

and an alternate source or sources in the event the conduct of final negotiations so warrant.

(i) After receipt of the SSO's recommendation, the Contracting Officer shall select a source, based upon the findings and recommendations of the SSO for final negotiations in accordance with HUDPR 24-3.805(2)(h). Final negotiations and award will be effected in accordance with HUDPR 24-3.805-2(i).

Subpart 24-3.51-Protests Against Award

§ 24-3.5101 Negotiated procurement protests.

Protests against awards of negotiated procurement shall be processed in accordance with HUDPR 24-2.407-8.

PART 24-4-SPECIAL TYPES AND METHODS OF PROCUREMENT

Subpart 24-4.1—Automatic Data Processing
Equipment and Services

Sec.
24-4.101 Clearance procedures.

Subpart 24-4.10—Architect-Engineer Services 24-4.1000 Scope of subpart. 24-4.1004-1 Establishment of Architect-Engineer evaluation boards.

24-4.1004-2 Conflict of interest. 24-4.1004-3 Privity of information. 24-4.1004-4 Maintenance and furnishing of source lists.

24-4.1004-5 Selection policy. 24-4.1004-6 Selection procedures.

AUTHORITY: Sec. 7(d), Dept. of HUD Act (42 U.S.C. 3535(d)).

SOURCE: 41 FR 55811, Dec. 22, 1976, unless otherwise noted.

Subpart 24-4.1-Automatic Data Processing Equipment and Services

§ 24-4.101 Clearance procedures.

No IFB, RFP, RFQ or amendment to an existing contract, when related in whole or in part to the procurement of ADP equipment or services, shall be issued until GSA approval is obtained pursuant to the FPMR.

Subpart 24-4.10—Architect-Engineer Services

§ 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 ArchitectEngineer 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.

§ 24-4.1004-2 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 Regulations 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 interest, 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.

§ 24-4.1004-3 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.

§ 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.

§ 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 firm having working offices, capacity, and personnel to respond to the requirements of the procurement if geographical location is an important factor to the procurement.

§ 24-4.1004-6 Selection procedures.

The following procedures shall be used in the selection of architect-engineering firms for all engineering contracts:

(a) For each requirement or group of requirements intended to result in a single contract, the Board shall review the qualifications and performance data for each of the firms on the preselection list, in accordance with the selection policy, including input from the program staff and shall select a minimum of three firms determined to have the highest qualifications. The procuring activity shall then mail letters of inquiry to those highest qualified firms regarding capability to perform the work, anticipated concepts, and the relative utility of alternate methods of approach.

(b) The replies to these letters shall be evaluated by the Board with each response being evaluated by at least three Board members. The SF-254's from the responding firms may also be reevaluated as necessary by three or more Board members. The firms queried will be reranked as necessary in accordance with the Board's evaluation.

(c) After the reranking, a Request for Contract Services shall be forwarded to the procuring activity. The authorities identified in HUDPR 244.1004-1 or his designee shall be the Source Selection Official. The SSO shall indicate the order of qualification, including capability, of the selected firms.

(d) The procuring activity shall send a Request for Proposal to the firm ranked highest on the list and if the proposal is acceptable shall intiate negotiations with that firm. If such negotiations are unsuccessful, contract negotiations shall then be commenced with the second most qualified firm. Failing accord with the second firm, contract negotiations shall be commenced with the third firm.

(e) All selection and negotiation proceedings shall be documented. All

a. The advance funds will be provided in accordance with the letter of credit procedure set forth in HUD Handbook 1900.4B or Handbook 1900.23 as appropriate. The Contractor shall use these procedures to obtain advance funds for allowable costs under this contract.

b. In accordance with those procedures, a Letter of Credit will be issued in an amount determined by the Contracting Officer based on the needs of the Contractor. Subsequent amendments to the Letter of Credit will be on the basis of an amendment to the contract. In no instance will advance funds provided by the letter of credit procedure 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 Officer otherwise has authority to approve, and does approve in writing.

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

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 Officer, the Contractor shall repay to the Government 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 Government 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, acknowledging, 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 proceeds 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 as promptly as practicable after receipt of the Contractor's proposal.

(e) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with applicable Part 118 of Federal Procurement Regulations (41 CFR Part 1-15) as in effect on the date of this contract.

(d) The results of each negotiation shall be set forth in a modification to this contract, which shall specify (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 overhead rates for any period, the Contractor shall be reimbursed either at negotiated provisional rates as provided in the contract, or at billing rates acceptable to the Contracting Officer, subject to appropriate adjustment when the final rates for that period are established. To prevent substantial 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 agreement, 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 clause shall be considered a dispute concerning a question of fact for decision by the Contracting Officer within the meaning of the "Disputes" clause of this contract.

§ 24-7.5009 Indirect costs (actual).

When it has been determined pursuant to HUDPR 24-3.702(c) that it is not appropriate to include the Negotiated Overhead Rates Clause, insert the following:

INDIRECT COsts (Actual)

In accordance with the "Allowable Cost, Fixed Fee, and Payment" clause of the contract. 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 1-15. Any failure of the parties hereto to agree as to what constitutes actual overhead costs shall be considered a dispute covering a question of fact within the meaning of the clause of this contract entitled "Disputes."

24-7.5010 Indirect costs (celling).

When it has been determined in accordance with 41 CFR 1-3-707 that it is appropriate to place an overhead ceiling in the contracts, insert the following clause:

INDIRECT COSTS (With CEILING)

(a) Pursuant to the provisions of the clause of this contract entitled, "Indirect Costs (Actual)," the following rates are established:

Period Cost Center Type Rate Base

(b) In addition to the principles for determination of costs set 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 cognizant 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 established by such cognizant auditor shall apply. The Government will not be obligated to pay any additional amounts on account of overhead above the ceiling overhead rate set forth above.

§ 24-7.5011 Consideration and payment (cost-sharing).

The following clause shall be inserted in each cost-sharing contract:

CONSIDERATION AND PAYMENTS

(COST-SHARING)

(a) The estimated cost for the performance 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 (5) 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 percentage of costs to be reimbursed by the Government. However, the Government is not obligated to reimburse the Contractor in excess of ==% of such amount. The Government shall not be obligated to reimburse the Contractor for the Government's share of the costs in excess of $ nor is the Contractor obligated by this contract to expend his own funds in excess of $