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Subpart 3–3.8-Price Negotiation Policies and 8-3.212 Purchases not to be publicly dis

Techniques closed.

Sec. 8-3.216 Otherwise authorized by law.

3-3.802 Preparation for negotiation.

3-3.802–1 Consideration of late proposals. Subpart 3–3.3— Determinations, Findings, and

3-3.802–2 Alternate procedures for conAuthorities

sideration of late proposal. 8-9.301 General.

8-3.802-50 Noncompetitive procurement. 8-3.302 Determinations and findings

Subpart 3-3.50-Procurement Planning required. 8-3.303 Determinations and findings by 3-3.5000 Scope of subpart. the head of the agency. 3-3.5001 Requirement for

procurement 8-3.303-50 Other determinations and find

planning. ings by the Assistant Secretary 3-3.5002 Responsibilities for procurement for Health and Scientific

planning. Affairs.

3-3.5003 Preparation and contents of pro8-3.303-51 Determinations and findings by

curement plan. the Director, Office of Procure

3–3.5004 Procurement Planning Document. ment and Materiel Manage

Subpart 3-3.51—Selection of Offerors for ment. 8-9.808-52 Determinations and Andings by

Negotiation and Award the head of the procuring

3–3.5100 Scope of subpart. activity.

3–3.5101 Applicability. 8-3.303-53 Determination and findings by

3-3.5102 Requests for proposals. the contracting officer.

3-3.5103 Evaluation of technical proposals. 8-3.306 Form and requirements of do.

3–3.5104 Technical evaluation report. terminations and findings.

3–3.5105 Evaluation of business proposals. 3-3.305-50 Sample formats.

3-3.5106 Conduct of evaluation. 3-3.306 Procedure with respect to deter

3–3.5107 Competitive range. minations and findings.

3–3.5108 Conduct of discussions. 3-3.306-50 Preparation and submission.

3-3.5109 Closing of negotiations. 3-3.306–51 Briefing letter for authority to

3-3.5110 Selection of contractor. negotiate.

3–3.5111 Notice and debriefing. 3–3.306-52 Briefing letters for facilities

AUTHORITY: 5 U.S.C. 301; 40 U.S.C. 486(c). construction determinations. 3-3.306–53 Briefing letter for other deter- Subpart 3-3.1-Use of Negotiation

minations. 3-3.306–54 Briefing letters for advance pay

8 3–3.103 Dissemination of procuro ment determinations.

ment information. Subpart 3–3.4-Types of Contracts

(87 FR 22613, Oct. 20, 1972) 3-3.405 Cost-reimbursement type con- 3-3.103–50 Notifying and debriefing tracts.

of unsuccessful offerors. 8-3.405–3 Cost-sharing contract. 8-3.408 Letter contract.

(a) Policy. (1) The policy of this De3-3.410 Other types of agreements.

partment is to provide a debriefing, 8-3.410-1 Basic agreement.

when requested in writing, to an offeror 3-3.450 Unauthorized types of agreements. that has unsuccessfully competed for a 3-3.450–1 Letters of intent.

DHEW procurement. Requests for ex3-3.450–2 Memorandums of understanding. ceptions or deviations from debriefing Subpart 3-3.6-Small Purchases

policy and procedures shall be submitted

to the Director, Office of Procurement 3–3.600 Scope of subpart. 3-3.601 Purpose and applicability.

and Materiel Management, OASAM, for 8-3 602 Policy.

approval. 8-3.603 Competition.

(2) A briefing is intended to: 3-3.603-1 Solicitation.

(1) Tell an unsuccessful offeror which 3-3.603—2 Data to support small purchases.

areas of his proposal were judged to be 3–3.603-50 Conduct of small purchases.

weak and deficient and whether the 3-3.604 Imprest funds (petty cash) method.

weaknesses or deficiencies were factors 3-3.604-3 Agency responsibilities.

in his not having been selected; 8-3.605 Purchase order forms.

(11) Identify the factors which were 3-3.605-1 Standard Form 44, Purchase the basis for selection of the successful Order-Invoice, Voucher.

contractor. If the quality of the success3–3.605-2 Standard Forms 147 and 148,

ful offeror's proposal to satisfy the misOrder for Supplies or Services. 3-3.606 Blanket purchase arrangements.

sion requirement was the basis, the un8-3.606-4 Documentation.

successful offeror should be so informed, 3-3.606-6 Agency implementation.

and given a general comparison of significant areas, but not a point-by-point Subject: DHEW Request for Proposal (RFP) comparison of all the elements consid

No. ered in the evaluation criteria. If the GENTLEMEN: Your proposal submitted in successful offeror was selected on the response to the subject Request for Probasis of cost, the unsuccessful offeror

posal (RFP) has been evaluated. Upon examshould be told that such is the case. I

ination of your proposal in accordance with

the criteria set forth in the RFP, it has been selection was based on other factors,

determined that the proposal is not within they should be specified.

the competitive range, price and other fac(3) If an unsuccessful offeror feels tors considered. (A brief explanation of the that his failure to obtain the award was reasons for this determination should also not justified, he will rely, at least in be included in the letter.) No further inforpart, on the information given him in

mation is available at this time. You will be the debriefing to determine whether he

notified of any award (s) made as a result of

the solicitation. should seek recourse. Accordingly, it is

Notification will include the name of the essential that a debriefing be conducted

successful offeror(s) and dollar amount of in a scrupulously fair, objective, and im

the resulting contract(s). partial manner, and that the informa- Since no further negotiations will be contion given the unsuccessful offeror be ducted with you concerning the subject RFP, absolutely factual and consistent with no revision of your proposal will be conthe findings of the Contracting Officer

sidered. and the basis on which he made the

Your interest in our requirements is apaward.

preciated. (4) A debriefing should not reveal:

Sincerely yours, (1) Confidential or privileged com

Contracting Officer. mercial or financial information, trade The preaward notification to offerors secrets, techniques, or processes of the

whose proposals are outside the competiother offerors; and

tive range when the procedures specified (11) The relative merits or technical

in § 3-3.802–1 are utilized, need only standing of the unsuccessful offerors. state that the offeror's proposal was de

(b) Procedures. (1) Once a procure- termined to be outside the competitive ment action has been initiated, through

range and in general terms state the reathe evaluation process, and even after sons for this determination. In any prethe selection of a contractor, all queries award notification to offerors whose proas to the relative merits of the submit

posals are not within the competitive ted proposals shall be courteously but

range particular care should be taken to firmly directed to the Contracting Officer. ensure that the offeror is advised that All other personnel will avoid exchange proposal revisions will not be considered. of comments with all offerors.

Whenever a preaward notification is re(2) If the procedures set forth in

quired, the preaward notification to those $ 3–3.802–1 are utilized, and an award in the competitive range need only state will be made within 30 days after a de- this fact. A postaward notification will be termination of the competitive range given to every unsuccessful offeror and it has been made, a preaward notification will include the name of the successful to offerors regarding whether their pro- offeror(s) and dollar amount of the reposals are within the competitive range sulting contract(s). Upon request, in acis not required. A preaward notification cordance with paragraph (a) of this is required if the procedures set forth in section, unsuccessful offerors shall be $ 3–3.802–2 are utilized or if it will take furnished the reasons why their prolonger than 30 days after the determina- posals were not accepted. Debriefings of tion of the competitive range has been unsuccessful offerors should be conducted made to make an award. The contract only after award has been made. Debrieffile must be documented to show when ings may be given before award if the such & determination is made. If the contracting officer determines it is in the alternate procedures (§ 3-3.802–2) are best interest of the Government to do so utilized, a preaward notification must be and that such a debriefing would not given to all offerors at the same time, as harm the integrity of the procurement soon as practicable, after the determina- process. Any debriefing which is given tion of the competitive range has been before the award of a contract shall be made. The following is a sample pre- limited to a discussion of the unsuccessful award notification letter to those offerors offeror's proposal. Costs and prices proconsidered to be not within the competi- posed by other offerors will not be distive range.

cussed at preaward debriefings.

39 66-008-76


(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 oficer shall require that the request be reduced to writing. The contracting oficer 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 Ale. [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 8-3.2 appear at 86 7.R. 10899, July 7, 1970, unless otherwise noted. 8 3-3.200 Scope of subpart.

The citation of authority under which & 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. 83_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.

8 3-3.204 Personal professional

services. (a) Limitations. This authority shall not apply to the procurement of man. agement consultant services, 8 3-3.205 Services of educational insti.

(a) [Reserved)

(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 requiroments 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, as amended at 35 F.R. 19752, Doc. 80, 1970) § 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. 8 3-3.210 Impracticable to secure com

petition 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 g 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 tho Wustration 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. 83_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. (&) 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). 8 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 83.3 appear at 88 P.R. 2004, Juno 11, 1970, unless otherwise notod. 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 oficials specified in $ 3–3.303 and $$ 3–3.303–50 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. 8 3–3.302 Determinations and findingo

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 is determined

(1) that the omission will serve the best 8 3–3.303–51 Determinations and find. interests of the United States, or (2) that ings by the Director, Office of Prothe public interest will best be served curement and Materiel Management. by the omission (see 1-6.1001 of this

The determination required by title).

§ 1-3.202(d) that the making of advance (g) Exceptions to the restrictions of

payments is in the public interest shal the Buy American Act (41 U.S.C. 10(and)

be made by the Director, Ofice of Proand determinations under the Balance of

curement and Materiel Management Payments program; see Subpart 3–6.1 of

OSOASAM. Part 3-6 and Part 1-6 of this title.

(37 FR 17472, Aug. 29, 1972) (h) Use of time and materials or labor-hour type contract (see § 1-3.406 of

§ 3-3.303-52 Determinations and find. this title.

ings by the head of the procuring

activity. (1) Acquisition of construction of equipment or facilities on property not (a) The following determinations and owned by the United States pursuant to findings shall be made by the head of an appropriation or other act incorpo- the procuring activity or his designee.' rating the provisions of 10 U.S.C. 2353. (1): The determination required by

(j) Use of indemnification provision in $ 1-3.201 for reasons other than: & research contract pursuant to an ap- (i) Assistance to labor surplus areas propriation or other act incorporating or small business concerns, and the provisions of 10 U.S.C. 2354.

(i) Administration of the Balance of (k) Use of letter contracts (see Payments Program. $ 1-3.408).

(2) The determinations and findings (37 FR 17472, Aug. 29, 1972)

required by $s 1-3.202 and 1-3.214. 8 3–3.303 Determinations and findings

(3)The determinations and findings by the head of the agency.

required by 99 1-3.302(c) and 1-3.302(e).

(4) The determinations which support The following determinations and find

exceptions to restrictions of the Buy ings shall be made by the Assistant se

American Act (41 U.S.C. 10(a-d)) and cretary for Health and Scientific Affairs

the determinations and deviations re(where health programs are involved),

quired by Subpart 1-6.8 in administration the Assistant Secretary for Education

of the Balance of Payments Program, (where education programs are in

within the limitations of Subpart 3-6.1 volved), or the Assistant Secretary for

and Part 1-6. Administration and Management (where

(5) The determination required for other programs are involved).

application of 10 U.S.C. 2353, (b) (1), and (a) The determination required by

(b) (2). $ 1-3.211 of this title with respect to con

(6) 'All class determinations and findtracts which will require expenditure in

Ings except for the categories specified in excess of $25,000.

$$ 3-3.303 and 3-3.303-51. (b) The determinations required by

(7) The determinations and indings $$ 1-3.212 of this title and 3-3.213 of this

which support proposed payment of fixed part.

fees in excess of: (1) 10 percent of esti(c) The determination required for

mated costs, exclusive of fee, of any costthe omission of the Examination of Rec

plus-&-fixed-fee contract for experiords clause from contracts with foreign

mental, developmental, or research work, contractors or subcontractors (see

or (ii) 7 percent of estimated cost, ex$ 1-6.1004 of this title).

clusive of fee, for any other cost-plus-d(d) Determinations in accordance

fixed-fee contract, but see $ 3–75.104–2 with § 1-6.103–3.

(a). (87 FR 17472, Aug. 29, 1972)

(8)* The determinations required by 8 3–3.303–50 Other determinations and § 1-3.406 with respect to the use of time

findings by the Assistant Secretary and materials and labor hour contracts. for Health and Scientific Affairs.

(9)* The determinations required by (a) The determination required for

§ 1-3.408 with respect to the use of letter application of 10 U.S.C. 2353 (b) (3).

contracts. (b) The determination required for (37 FR 17472, Aug. 29, 1972) application of 10 U.S.C. 2354 with respect to the use of an indemnification provision

1 A designee for making these determina. in a research contract.

tions must be at least one organizational level (87 FR 17472, Aug. 29, 1972]

above that of the contracting omicer.

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