3-3.5106 Conduct of evaluation. 3-3.5107 Competitive range.

3-3.5111 Notice and debriefing.

AUTHORITY: 5 U.S.C. 301; 40 U.S.C. 486 (c).

Subpart 3-3.1-Use of Negotiation § 3-3.103 Dissemination of

ment information.

[37 FR 22613, Oct. 20, 1972]

procure

§ 3-3.103-50 Notifying and debriefing of unsuccessful offerors.

(a) Policy. (1) The policy of this Department is to provide a debriefing, when requested in writing, to an offeror that has unsuccessfully competed for a DHEW procurement. Requests for exceptions or deviations from debriefing policy and procedures shall be submitted to the Director, Office of Procurement and Materiel Management, OASAM, for approval.

(2) A briefing is intended to:

(i) Tell an unsuccessful offeror which areas of his proposal were judged to be weak and deficient and whether the weaknesses or deficiencies were factors in his not having been selected;

(ii) Identify the factors which were the basis for selection of the successful contractor. If the quality of the successful offeror's proposal to satisfy the mission requirement was the basis, the unsuccessful offeror should be so informed, and given a general comparison of sig

nificant areas, but not a point-by-point comparison of all the elements considered in the evaluation criteria. If the successful offeror was selected on the basis of cost, the unsuccessful offeror should be told that such is the case. If selection was based on other factors, they should be specified.

(3) If an unsuccessful offeror feels that his failure to obtain the award was not justified, he will rely, at least in part, on the information given him in the debriefing to determine whether he should seek recourse. Accordingly, it is essential that a debriefing be conducted in a scrupulously fair, objective, and impartial manner, and that the information given the unsuccessful offeror be absolutely factual and consistent with the findings of the Contracting Officer and the basis on which he made the award.

(4) A debriefing should not reveal:

(1) Confidential or privileged commercial or financial information, trade secrets, techniques, or processes of the other offerors; and

(11) The relative merits or technical standing of the unsuccessful offerors.

(b) Procedures. (1) Once a procurement action has been initiated, through the evaluation process, and even after the selection of a contractor, all queries as to the relative merits of the submitted proposals shall be courteously but firmly directed to the Contracting Officer. All other personnel will avoid exchange of comments with all offerors.

(2) If the procedures set forth in § 3-3.802-1 are utilized, and an award will be made within 30 days after a determination of the competitive range has been made, a preaward notification to offerors regarding whether their proposals are within the competitive range is not required. A preaward notification is required if the procedures set forth in § 3-3.802-2 are utilized or if it will take longer than 30 days after the determination of the competitive range has been made to make an award. The contract file must be documented to show when such a determination is made. If the alternate procedures (§ 3-3.802-2) are utilized, a preaward notification must be given to all offerors at the same time, as soon as practicable, after the determination of the competitive range has been made. The following is a sample preaward notification letter to those offerors considered to be not within the competitive range.

66-008-76

GENTLEMEN: Your proposal submitted in response to the subject Request for Proposal (RFP) has been evaluated. Upon examination of your proposal in accordance with the criteria set forth in the RFP, it has been determined that the proposal is not within the competitive range, price and other factors considered. (A brief explanation of the reasons for this determination should also be included in the letter.) No further information is available at this time. You will be notified of any award(s) made as a result of the solicitation.

Notification will include the name of the successful offeror(s) and dollar amount of the resulting contract(s).

Since no further negotiations will be conducted with you concerning the subject RFP, no revision of your proposal will be considered.

Your interest in our requirements is appreciated.

Sincerely yours,

Contracting Officer. The preaward notification to offerors whose proposals are outside the competitive range when the procedures specified in § 3-3.802-1 are utilized, need only state that the offeror's proposal was determined to be outside the competitive range and in general terms state the reasons for this determination. In any preaward notification to offerors whose proposals are not within the competitive range particular care should be taken to ensure that the offeror is advised that proposal revisions will not be considered. Whenever a preaward notification is required, the preaward notification to those in the competitive range need only state this fact. A postaward notification will be given to every unsuccessful offeror and it will include the name of the successful offeror(s) and dollar amount of the resulting contract(s). Upon request, in accordance with paragraph (a) of this section, unsuccessful offerors shall be furnished the reasons why their proposals were not accepted. Debriefings of unsuccessful offerors should be conducted only after award has been made. Debriefings may be given before award if the contracting officer determines it is in the best interest of the Government to do so and that such a debriefing would not harm the integrity of the procurement process. Any debriefing which is given before the award of a contract shall be limited to a discussion of the unsuccessful offeror's proposal. Costs and prices proposed by other offerors will not be discussed at preaward debriefings.

(3) All DHEW employees who receive from an unsuccessful offeror a request, written or oral, for a debriefing shall immediately refer the request to the contracting officer. If the request is made orally the contracting officer shall require that the request be reduced to writing. The contracting officer or his designee shall be present at all debriefings and shall review written debriefings prior to release.

(4) In some cases it may be necessary to arrange informal debriefings for an unsuccessful offeror's personnel by DHEW evaluation participants. This determination will be made by, and meeting arrangements will be the responsibility of, the contracting officer.

(5) It is most important that all DHEW personnel engaged in the evaluation and selection process be aware of the foregoing policies and procedures. Detailed and complete records of the procurement will be maintained by key technical and contracting personnel in a manner which will facilitate either a written or an oral debriefing of any unsuccessful offeror.

(c) Report. When a debriefing is held, a brief report, summarizing the results of the debriefing, will be prepared and placed in the contract file.

[37 FR 22613, Oct. 20, 1972, as amended at 37 FR 23723, Nov. 8, 1972; 40 FR 29721, July 15, 1975]

Subpart 3-3.2-Circumstances

Permitting Negotiation

SOURCE: The provisions of this Subpart 3-3.2 appear at 35 F.R. 10899, July 7, 1970, unless otherwise noted.

§ 3-3.200 Scope of subpart.

The citation of authority under which a contract is negotiated shall be referenced to the statutory provisions, for example, the proper citation for use of the exception contained in § 1-3.211 of this title is: 41 U.S.C. 252(c) (11). The citation of authority to negotiate under other law (§ 1-3.215 of this title) shall be as prescribed in § 3-3.215.

§ 3-3.201 National emergency.

(a) Limitations. This authority shall not be used for other than (1) assistance to labor surplus areas or small business concerns, and (2) administration of the Balance of Payments Program, without the prior written approval of the head of the procuring activity, or his designee.

(b) Limitations. (1) This authority shall be used only for the procurement of specialized noncommercial services which are customarily performed by educational institutions. Use of this authority for any service other than those listed in § 1-3.205(a) of this title shall require a written determination with supporting facts by the head of the procuring activity that the particular type of service is available only from educational institutions.

(2) Proposals shall be solicited from as many educational institutions as are known to possess the required capability. This shall be consistent with § 1-3.101 (c). Solicitation of a single educational institution shall require a written "Justification for Noncompetitive Procurement" in accordance with the requirements of Subpart 3-3.8.

(3) Where the circumstances of both subparagraphs (1) and (2) of this paragraph pertain in the same case, the required determinations shall be combined and made by the head of the procuring activity.

[35 FR. 10899, July 7, 1970, 35 F.R. 19752, Dec. 80, 1970]

amended at

§ 3-3.206 Purchases outside the United States.

(a) This authority shall be used in preference to any other authority under the circumstances set forth in § 1-3.206 of this title.

§ 3-3.210 Impracticable to secure competition by formal advertising.

(a) Application. (1) Negotiation under § 1-3.210 of this title shall be conducted on a competitive basis to the maximum practicable extent; except, when negotiation is justified under the circumstances specified in § 1-3.210(a)(1) of this title.

(2) The illustration specified in § 1-3.210 (a) (3) of this title shall apply only if the negotiation is for the identical requirements specified in the unresponsive bid. If specification deviations are authorized or if delivery, quantity, or

other requirements are changed, the revised requirements shall be readvertised or, if appropriate, negotiated under one of the other authorities prescribed in Subpart 1-3.2 of this title.

(3) Cases of doubt in applying the illustration specified in § 1-3.210 (a) (13) of this title shall be resolved in favor of formal advertising.

(b) Limitations. This authority shall not be used when negotiation is authorized by any other authority set forth in §§ 1-3.201 through 1-3.215 of this title. § 3-3.211 Experimental, developmental, or research work.

(a) Limitations. Whenever more than single unit quantities of equipment or supplies are to be procured under this authority, the quantity shall be justified as reasonable and essential by the program authority submitting the procurement request. § 3-3.212

Purchases not to be publicly

disclosed.

(a) Limitations. This authority shall be used in preference to any other authority when competition is to be limited because of the need for nondisclosure (also see § 1-1.1003 of this title).

§ 3-3.215 Otherwise authorized by law. (a) When other statutory authority is the basis for negotiation, the proper citation for the contract is 41 U.S.C. 252 (c) (15) plus the section number, title of the Act, and the Public Law number (or U.S.C. citation) of the statute which permits negotiation. For example, the proper citation in a contract for the procurement of expert and consultant service would be 41 U.S.C. 252 (c) (15) and 5 U.S.C. 3109.

Subpart 3-3.3-Determinations,

Findings, and Authorities

SOURCE: The provisions of this Subpart 8-3.3 appear at 35 FR. 9004, June 11, 1970, unless otherwise noted.

83-3.301 General.

(a) Determinations and findings which authorize negotiation of contracts and determinations which support other procurement actions shall be made by the officials specified in § 3-3.303 and 883-3.303-50 and 3-3.303-52.

(b) Class determinations and findings shall be justified on the basis of need to avoid processing multiple determinations and findings when more than one con

tract must be negotiated under the same negotiation authority for the same program or project. The multiple procurements must be for items or services which are to be negotiated at or near the same time and are so related as to constitute a logical and distinct class. All class determinations and findings shall be limited to a period of 1 year or less. § 3-3.302 Determinations and findings required.

The following determinations in connection with the negotiation of contracts are required to be made in writing, supported by written findings.

(a) The determination required by section 304 (b) of the Act (41 U.S.C. 254 (b)) as to estimated cost of, and fees to be paid under, cost-plus-a-fixed-fee contracts (see §§ 1-3.401, 1-3.405-4, and 1-3.405-5(c) (2));

(b) The determination required by section 304(b) of the Act that the use of a cost or a cost-plus-a-fixed-fee contract or an incentive-type contract is likely to be less costly than other methods or that it is impracticable to secure property or services of the kind or quality required without the use of a cost or cost-plusa-fixed-fee contract or an incentive-type contract (see §§ 1-3.404-4 and 1-3.405-1 of this title):

(c) The determination required by section 303 (b) of the Act (41 U.S.C. 253(b)) that it is in the public interest to reject all bids:

(d) The determination required by section 305 (c) of the Act (41 U.S.C. 255 (c)) that the making of advance payments would be in the public interest (see § 1-30.405 of this title);

(e) The determinations required with respect to waiving a requirement for the submission of cost or pricing data and the certification thereof (see § 1-3.8073(b) of this title) and for the inclusion of the clauses required by §§ 1-3.814-1 through 1-3.814-3 of this title in contracts with foreign governments or agencies thereof.

(f) The determinations required by section 304 (c) of the Act (41 U.S.C. 254(c)) and Subpart 1-6.10 of Part 1-6 with respect to omitting the clause specified in § 1-7.101-10 or § 1-7.602-7 of this title from contracts with foreign contractors or subcontractors regarding the right of the Comptroller General of the United States to examine the contractor's records when it is determined

(1) that the omission will serve the best interests of the United States, or (2) that the public interest will best be served by the omission (see § 1-6.1001 of this title).

(g) Exceptions to the restrictions of the Buy American Act (41 U.S.C. 10(a-d) and determinations under the Balance of Payments program; see Subpart 3-6.1 of Part 3-6 and Part 1-6 of this title.

(h) Use of time and materials or labor-hour type contract (see § 1-3.406 of this title.

(1) Acquisition of construction of equipment or facilities on property not owned by the United States pursuant to an appropriation or other act incorporating the provisions of 10 U.S.C. 2353.

(j) Use of indemnification provision in a research contract pursuant to an appropriation or other act incorporating the provisions of 10 U.S.C. 2354.

(k) Use of letter contracts

§ 1-3.408).

[37 FR 17472, Aug. 29, 1972]

(see

§ 3-3.303 Determinations and findings by the head of the agency.

The following determinations and findings shall be made by the Assistant Secretary for Health and Scientific Affairs (where health programs are involved), the Assistant Secretary for Education (where education programs are involved), or the Assistant Secretary for Administration and Management (where other programs are involved).

(a) The determination required by § 1-3.211 of this title with respect to contracts which will require expenditure in excess of $25,000.

(b) The determinations required by §§ 1-3.212 of this title and 3-3.213 of this part.

(c) The determination required for the omission of the Examination of Records clause from contracts with foreign contractors or subcontractors (see § 1-6.1004 of this title). (d) Determinations

with § 1-6.103-3.

[37 FR 17472, Aug. 29, 1972]

in

accordance

§ 3-3.303-50 Other determinations and findings by the Assistant Secretary for Health and Scientific Affairs. (a) The determination required for application of 10 U.S.C. 2353 (b) (3).

(b) The determination required for application of 10 U.S.C. 2354 with respect to the use of an indemnification provision in a research contract.

[37 FR 17472, Aug. 29, 1972]

§ 3-3.303-51 Determinations and findings by the Director, Office of Procurement and Materiel Management. The determination required by

§ 1-3.202(d) that the making of advance payments is in the public interest shall be made by the Director, Office of Procurement and Materiel Management OS-OASAM.

[37 FR 17472, Aug. 29, 1972]

§ 3-3.303-52 Determinations and findings by the head of the procuring activity.

(a) The following determinations and findings shall be made by the head of the procuring activity or his designee.1

(1) The determination required by § 1-3.201 for reasons other than:

(1) Assistance to labor surplus areas or small business concerns, and

(ii) Administration of the Balance of Payments Program.

(2) The determinations and findings required by §§ 1-3.202 and 1-3.214.

(3) The determinations and findings required by §§ 1-3.302(c) and 1-3.302(e). (4) The determinations which support exceptions to restrictions of the Buy American Act (41 U.S.C. 10(a-d)) and the determinations and deviations required by Subpart 1-6.8 in administration of the Balance of Payments Program, within the limitations of Subpart 3-6.1 and Part 1-6.

(5) The determination required for application of 10 U.S.C. 2353, (b) (1), and (b) (2).

(6)1 All class determinations and findings except for the categories specified in §§ 3-3.303 and 3-3.303-51.

(7) The determinations and findings which support proposed payment of fixed fees in excess of: (1) 10 percent of estimated costs, exclusive of fee, of any costplus-a-fixed-fee contract for experimental, developmental, or research work, or (ii) 7 percent of estimated cost, exclusive of fee, for any other cost-plus-afixed-fee contract, but see § 3-75.104-2 (a).

(8) The determinations required by § 1-3.406 with respect to the use of time and materials and labor hour contracts.

(9)1 The determinations required by § 1-3.408 with respect to the use of letter contracts.

[37 FR 17472, Aug. 29, 1972]

1 A designee for making these determinations must be at least one organizational level above that of the contracting officer.