fore making such a determination the contracting officer should consult with the technical personnel to determine possible reasons for the apparently excessive price. In determining the competitive range, the contracting officer should consider the following:

(a) A proposal must be considered to be within the competitive range unless it is either so inferior technically or so high in cost as to preclude any possibility of meaningful negotiation with the offeror, or unless the offeror does not have a reasonable chance of being selected for the final award.

(b) The competitive range should be decided on the basis of the array of scores or relative ranking of the offerors, not on a predetermined absolute score or cutoff level of acceptability. Borderline proposals must not be excluded from consideration automatically if they are reasonably susceptible of being made acceptable by clarification or discussions.

(c) No offeror who is in the competitive range shall be eliminated from the competitive range solely because of an offer to deliver services or supplies of a higher quality than required. If there is no substantial basis for distinguishing between the technical excellence of proposal (s) meeting the Government's requirements, price or best buy analysis should then become the controlling factor.

[38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

§ 3-3.5108 Conduct of discussions.

(a) The contracting officer, in cooperation with technical personnel, must conduct written or oral discussions (negotiations) of the work to be performed, the cost of the work, and other relevant topics with all those offerors within the competitive range. The contracting officer shall point out to each offeror the ambiguities, uncertainties, and deficiencies, if any, in its proposal. He shall then give each offeror a reasonable opportunity to support, clarify, correct, improve or revise its proposal. Discussions with one offeror shall neither identify areas in which another has apparently achieved a higher evaluation or provided more detail (nor transmit information) which could give one offeror a competitive advantage over another. Cost estimates made by the Government will not be disclosed.

(b) Careful judgment will be exercised in determining the extent of dis

cussions. In some cases more than one round of discussions with all the offerors within the competitive range may be required. The time available, the expense and administrative limitations, and the size and significance of the procurement should all be considered in deciding on the type, duration, and depth of the discussions.

[38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

§ 3-3.5109 Closing of negotiations.

In order to properly terminate negotiations, the contracting officer shall advise each offeror within the competitive range that (a) negotiations are being conducted, (b) offerors are being asked for “best and final offer,” not merely to confirm or reconfirm prior offers, and (c) any revision or modification of proposals must be submitted by the cutoff date.

[38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

§ 3-3.5110 Selection of contractor.

(a) After the close of discussions and the receipt of any addenda to proposals, the contracting officer shall select for award the offeror (s) whose proposal(s) offers the greatest advantage to the Government, price and other factors considered.

(b) Research and development contracts should be awarded to those organizations, including educational institutions, which have the highest competence in the specific field of science or technology involved. However, awards should not be made for research and development capabilities that exceed those needed for the successful performance of the particular project.

(c) Whenever the contract is to have a fixed price, price may not be disregarded in selecting a contractor. This is particularly true where more than one acceptable offer from technically qualified sources remains for consideration after conduct of negotiations. If a lowerpriced, lower-scored offer meets the Government's needs, acceptance of a higherpriced, higher-scored offer shall be supported by a specific determination by the contracting officer that the technical superiority of the higher-priced offer warrants the additional cost involved in the award of a contract to that offeror. [38 FR 2212, Jan. 23, 1973. Redesignated at 40 FR 29722, July 15, 1975]

3-4.5402 Clearance for procurement.

8-4.5403 Methods of contracting.

8-4.5404 Competition.

Subpart 3-4.55-Procurements Involving Human

Subjects

3-4.6007

3-4.6008

3-4.6009

3-4.6010

Exemption from bonds.

Procurement of construction and architect-engineering

contract.

services

Performance of personal services.

Use of General Services Administration supply sources.

3-4.6011 Special provision of Indian SelfDetermination Contracts.

3-4.6012 General Provisions.

3-4.6013 General Provisions for Cost Reimbursement Contracts under

Indian Self-Determination

(Pub. L. 93-638), Title I.

the

Act

3-4.6014 General Provisions for Fixed-price Contracts Under the Indian Self-Determination Act.

AUTHORITY: 5 U.S.C. 301; 40 U.S.C. 486 (c). Subpart 3-4.51-Paid Advertising SOURCE: 37 FR 15861, Aug. 5, 1972, unless otherwise noted.

§ 3-4.5100 Scope of subpart.

This subpart provides policies and procedures for the procurement of paid advertising as covered by title 5, U.S.C. 302, title 44, U.S.C. 321, 322, and 324, and title 7, chapter 5, section 25.2, General Accounting Office Policy and Procedures Manual for Guidance of Federal Agencies.

§ 3-4.5101 Policies and procedures.

(a) Authority to purchase paid advertising must be granted in writing by an official delegated such authority (See Subpart 3-75.3 of Part 3-75 of this part). No advertisement, notice of proposal will be published prior to receipt of advanced

written authority for such publication. No voucher for any such advertisement or publication will be paid unless there is presented, with the voucher, a copy of such written authority.

(b) Requests for procurement of advertising shall be accompanied by written authority to advertise or publish which sets forth justification and includes the names of newspapers or journals concerned, frequency and dates of proposed advertisements, estimated cost, and other pertinent information.

(c) Paid advertisements shall be limited to publication of essential details of invitations for bids and requests for proposals including those for the sale of personal property, and for the recruitment of employees.

(d) Standard form 1143, Advertising Order, shall be used for procurement and payment of paid advertising. Procedures for payment of vouchers are contained in title 7, chapter 5, section 25.2, General Accounting Office Manual for Guidance of Federal Agencies.

Subpart 3-4.52-Unsolicited
Proposals

SOURCE: 37 FR 16398, Aug. 12, 1972, unless otherwise noted.

§ 3-4.5200 Scope of subpart.

This subpart provides policies and procedures applicable to the handling of documents submitted as unsolicited proposals.

individuals to originate valuable ideas relevant to the furtherance thereof and to submit such ideas in unsolicited proposals.

(b) All unsolicited proposals should be specific and, as a minimum, include the information set forth below. Although it is desired that unsolicited proposals be prepared in conformance with the standards set forth below, agencies may accept unsolicited proposals for evaluation purposes which do not conform thereto:

(1) Name and address of the organization or individual submitting the proposal;

(2) Date of preparation or submission; (3) Type of organization (profit, nonprofit, educational, other);

(4) Concise title and clear and concise abstract. Extensive material should be included only in appendices;

(5) An outline and discussion of the purpose of the proposed effort or activity, the method of attack upon the problem, and the nature and extent of the anticipated results;

(6) Names of the key personnel to be involved (name of principal investigator, if applicable), brief biographical information, including principal publications and relevant experience;

(7) Proposed starting and completion dates;

(8) Equipment, facility, and personnel requirements;

(9) Proposed budget, including separate cost estimates for salaries and wages, equipment, expendable supplies, services, travel, subcontracts, other direct costs and overhead;

(10) Names of any other Federal agencies receiving the unsolicited proposal and/or funding the proposed effort or activity;

(11) Brief description of the offeror's facilities, particularly those which would be used in the proposed effort or activity;

(12) Brief outline of the offeror's previous work and experience in the field;

(13) A current financial statement and, if available, a descriptive brochure; (14) Period for which unsolicited proposal is valid;

(15) Names and telephone numbers of offeror's primary business and technical personnel whom the agency may contact during evaluation and/or negotiation;

(16) Identification, on the cover sheet, of technical data which the offeror

intends to be used by HEW for evaluation purposes only (see § 3-1.353 (c) of the HEWPR); and

(17) Signature of a responsible official of the proposing organization or a person authorized to contractually obligate such organization.

(c) Unsolicited proposals should be submitted well in advance of the desired beginning of support, and in ample copies (five copies as a minimum) to allow simultaneous study by all reviewers.

(d) All unsolicited proposals shall be acknowledged as soon after receipt as possible and should be processed in an expeditious manner.

§ 3-4.5202-2 Treatment of technical data in unsolicited proposals.

The treatment of technical data contained in unsolicited proposals and the legends to be used are contained in § 3-1.353 of the HEWPR. S

§ 3-4.5202-3 Method of procurement.

(a) It is HEW's policy to obtain competition whenever possible (see § 11.301-1). However, if a decision is made to award a contract to an offeror on the basis of an unsolicited proposal, the procurement will be conducted without competition.

(b) Subject to the provisions of § 3-4.5203-3(a), 8 document which qualifies as an unsolicited proposal may not serve as the basis for a competitive solicitation of proposals. Therefore, a determination must be made as to whether a document qualifies as an unsolicited proposal during the preliminary review of the document in accordance with § 3-4.5203-1.

§ 3-4.5202-4 Grant applications.

(a) Research and development work is supported by every agency of HEW through grants as well as contracts. Procedures for the handling of grant applications vary from agency to agency and, often, from program to program within particular agencies.

(b) Procurement officials shall not refuse to consider any unsolicited proposal merely because it was initially submitted as a grant application. However, contracts shall not be awarded on the basis of unsolicited proposals which have been rejected for grant support on the ground that they lack scientific merit.

(c) The propriety of awarding a contract to support research and develop

66-008-76- 6

§ 3-4.5203-1 Preliminary review.

(a) A preliminary review of each document submitted as an unsolicited proposal shall be conducted by program personnel of the receiving agency to determine that it:

(1) Contains sufficient technical and cost information to enable meaningful evaluation;

(2) Has been approved by a responsible official of the proposing organization or a person authorized to contractually obligate such organizations; and

(3) Does not merely offer to perform standard services, such as routine analyses or testing in accordance with established procedures, or to provide "off-the-shelf" articles.

(b) In addition, the reviewing program official shall make a written determination as to whether the document is truly unsolicited. In making such determination, consideration shall be given to all relevant circumstances, including whether the document may have resulted from: (1) The close professional relationships that frequently develop between program representatives and their counterparts in the scientific community; or (2) the inadvertent disclosure by program personnel of information relating to specific projects being contemplated by HEW or its agencies.

(c) If the document does not meet the requirements of paragraph (a) of this section, or is determined not to be truly unsolicited, a comprehensive evaluation need not be made, and the document may be considered and handled as correspondence or advertising. In such cases a prompt reply shall be sent to the offeror indicating how the document is being interpreted and the reason(s) for not considering it an unsolicited proposal.

(d) When a document, based upon preliminary review, qualifies as an unsolicited proposal, it shall be circulated for comprehensive evaluation in accordance with § 3-4.5203-2, and a copy thereof, together with the reviewing official's written determination, shall be furnished to the chief procurement official of the agency.

83-4.5203-2 Comprehensive

tion.

(a) Every unsolicited proposal that is circulated for comprehensive evaluation shall have attached or imprinted a legend identifying it as an unsolicited proposal, and stating that it may be used only for purposes of evaluation. See $3-1.353 (c) and (e) of the HEWPR.

(b) In evaluating an unsolicited proposal, the evaluating office(s) shall consider, in addition to any other criteria, the following factors:

(1) The overall scientific and technical merit of the proposed effort;

(2) The potential contribution which the proposed effort is expected to make to specific program objective(s), if supported at this time;

(3) The unique capabilities, related experience, facilities, instrumentation, or techniques which the offeror possesses and offers, and which are considered to be integral factors for achieving the scientific, technical, or technological objective(s) of the proposal;

(4) The unique qualifications, capabilities, and experience of the proposed principal investigator and/or key personnel.

(c) Comprehensive evaluation shall be coordinated according to procedures to be established pursuant to § 3-4.5203-4. If an unsolicited proposal is not to be accepted, the offeror shall be informed by a suitable letter. A copy of such letter and associated unsolicited proposal shall be retained in the files of the agency contracting officer.

§ 3-4.5203-3 Procurement procedure.

(a) Competitive procurement. (1) When a document qualifies as an unsolicited proposal, but its substance is available to HEW without restriction from another source, or its substance closely resembles that of a pending competitive solicitation or otherwise is not sufficiently unique to justify acceptance, HEW's policy of obtaining competition applies (see § 3-4.5202-3).

(2) When procurement is intended and competition is feasible, the unsolicited proposal shall be rejected, as in § 3-4.5203-2. All readily available copies (excluding the contracting officer's offcial file copy) shall be returned to the offeror.

(b) Noncompetitive procurement. (1) A favorable technical evaluation of an unsolicited proposal is not, in itself, suf

(1) The procurement is for basic scientific or engineering research; and the unsolicited proposal was selected on the basis of its overall merit, cost and contribution to the agency's program objectives, after a thorough evaluation and comparison with other proposals, solicited or unsolicited, in the same or related fields; or

(ii) The procurement is for services other than basic research (e.g., development, feasibility studies, etc.); the unsolicited proposal contains technical data or offers unique capabilities that are not available from another source; and it is not feasible or practical to define the Government's requirement in such a way as to avoid the necessity of using the technical data contained in the unsolicited proposal.

(2) In addition, the "Justification” shall include the facts and circumstances that support the recommendation action. The following illustrations represent factors which should be considered, appropriate, in preparing the "Justification."

as

(1) The scientific/technical merits of the unsolicited proposal and its potential contribution to the agency's program objectives;

(1) The qualifications, capabilities, and related experience of the offeror, principal investigator, and/or key personnel;

(iii) Unique facilities, instrumentation, or techniques; and

(iv) Circumstances that operate to preclude competitive negotiation.

(3) The "Justification for Acceptance of Unsolicited Proposal" shall be submitted to the contracting officer together with, but as a separate document from, the request for contract, and shall be signed by the same official of the