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the conditions set forth below are $ 12–3.652–5 Consignee notification of present:

nonreceipt, damage, or nonconfor(1) Each order does not exceed mance. $10,000;

The consignee shall be instructed to (2) Title to the supplies will vest in notify the procurement office within the Government (i) upon delivery to a 30 days after the specified date of depost office or common carrier for mail- livery in the purchase order, of suping or shipment to destination, or (ii) plies not received or damaged in tranupon receipt by the Government when sit, or not conforming to purchase de. the shipment is by means other than scription. post office or common carrier; (3) The vendor agrees to replace,

§ 12-3.652–6

Responsibility for collection

of debts. repair, or correct supplies not received at destination, damaged in transit, or The Contracting Officer shall be prinot conforming to the order; and

marily responsible for collecting debts (4) The supplies will be shipped resulting from failures of contractors transportation or postage prepaid.

to properly replace, repair, or correct Therefore, no Government Bill of

supplies lost, damaged, or not conLading (GBL) will ever be issued.

forming to purchase requirements. (b) Use of the fast payment procedure would not be indicated, for exam

Subpart 12–3.7–Negotiated ple, in small purchases by offices, ves

Overhead Rates sels, air stations, bases, and other locations when material being purchased $12-3.700 Scope of subpart. is destined for use at such activities

This subpart sets forth policy and and contract administration will be

procedures governing the negotiation performed by the procurement office

of overhead rates for use in cost-reimof such activities.

bursement type contracts. § 12–3.652–3 Preparation of orders. § 12-3.703 Applicability.

(a) Orders shall be issued on the ap- Negotiated final overhead rates are propriate purchase order form except authorized for use primarily in cost-rethat calls against blanket purchase imbursement type contracts for reagreements shall be issued in accord search and development with commerance with Administration procedures. cial organizations and nonprofit or Orders may be either priced or un educational institutions. They may priced.

also be used in other cost-reimburse(b) Special data to be included on

ment type contracts, after a determi. purchase orders or in blanket pur nation is made by the contracting offichase agreements using fast payment

cer that their use is advantageous to procedures are:

the Government. Where it is not ap(1) A requirement for the supplies to

parent that any one of the major purbe shipped transportation or postage

poses enumerated in FPR 1-3.702 re

sults or will result by the use of negoprepaid; and

tiated final overhead rates, the con(2) A requirement that invoices be

tracting officer will provide for settlesubmitted directly to the paying office

ment of overhead by audit determinadesignated in the order, or in the case

tion. of unpriced purchase orders, to the contracting officer.

$ 12–3.704 Contract clauses. $ 12-3.652-4 Fast payment clause.

$ 12-3.704-1 Contracts with concerns The clause set forth in § 12-7.104-50

other than educational institutions. shall be included in all fast payment When the “Negotiated Overhead orders.

Rates" clause set forth in FPR 13.704-1 is included in the contract, the appropriate "Indirect Cost” clause set forth in DOTPR 12-3.704-50 shall also Subpart 12-3.8—Price Negotiation be included in the contract. When the

Policies and Techniques contract is a cost-plus-incentive-fee type, delete “Allowable Cost, Fixed

8 12-3.801-2 Responsibility of contracting Fee, and Payment” from paragraph

officers. (a) of the clause in FPR 1-3.704-1 and

In the event a contractor insists on a substitute “Allowable Cost, Incentive

price or demands a profit or fee which Fee, and Payment.”

the contracting officer considers un8 12-3.704-2 Contracts with educational reasonable, and if the contracting offi. institutions.

cer is unable to obtain a satisfactory

solution after exhausting the courses When either the “Postdetermined"

of action set forth in FPR 1-3.801-2(c), or “Predetermined” negotiated over

the matter shall be referred for resoluhead rates clauses in FPR 1-3.704-2 is

tion to the head of the procuring acincluded in the contract, the appropri

tivity with a statement of facts and ate "Indirect Costs” clause set forth in

the contracting officer's recommendaDOTPR 12-3.704-50 shall also be in

tions. cluded in the contract.

$ 12-3.807-6 Refusal to provide cost or & 12-3.704-50 Interim payment of indirect

pricing data. costs.

In addition to the data required by (a) When the contract includes a FPR 1-3.807-6, a referral to higher au“Negotiated Overhead Rate” clause as thority should indicate the impact on set forth in FPR 1-3.704-1 or 1-3.704 the affected procurement program if 2, one of the clauses set forth in an award is not made to the refusing DOTPR 12-7.203-950 (whichever is offeror, and include a recommended consistent with the contractor's course of action. normal method of interim and final overhead reimbursement) shall be in- § 12–3.808-2 Factors for determining fee serted in the contract schedule.

or profit. (b) Prior to establishing or revising In determining the fee or profit, conthe negotiated provisional rates, the sideration must be given to the tax contracting officer should request the

posture of the organization. A fair and contractor to submit for review his

reasonable fee to a nonprofit or notproposed overhead rates with support

for-profit organization, with tax exing cost data, with a copy to the cogni emptions, would be considerably lower zant audit activity.

than a fee to a commercial enterprise (c) Provisional overhead rates may with no tax exempt status. be revised after the contracting officer has received advice that the Depart 8 12–3.809 Contract audit as a pricing aid. ment of Defense or other Government (a) In establishing the due date for office sponsoring overhead negotia

receipt of the auditor's report, the tions with the contractor has negotiat minimum time which will be allowed ed acceptable overhead rates.

by DOT contracting officers shall nor

mally be 30 days. Exceptions to this & 12-3.704-51 Audit determination

30-day minimum period may be made (actual).

only when program considerations reWhere it is not apparent that any of quire a shorter time. Urgency caused the major purposes enumerated in by end of year funding considerations FPR 1-3.702 results or will result by will not be a justification for requiring the use of negotiated final overhead a shorter period for advisory audit rates, the contracting officer will pro- review. vide for settlement of overhead by (b) When DCAA is assigned postaudit determination. In these cases award audit responsibility under cost the following clause shall be used in reimbursable contracts, the contractor lieu of the “Negotiated Overhead shall be instructed to forward the first Rate” clause prescribed in FPR 1- and final vouchers to the cognizant 3.704-1 or 1-3.704-2:

auditor for audit review. The cogni.

zant DCAA auditor shall also be fur- ences between the RFP and the connished a paid copy of each voucher tract proposed for award. furnished under the contract by the (iii) Describe any consideration given paying office.

to the use of an incentive type con

tract and, when used, the details of § 12-3.811 Record of negotiations.

the incentive provisions. The requirement in FPR 1-3.811(a) (iv) Explain why the final negotiated shall be satisfied by the preparation of price is fair and reasonable. Include a a memorandum which summarizes the statement of receipt of the certificate key procurement decisions and the of current cost or pricing data. Referprincipal elements of the negotiations. ence the prospective contractor's conThe format below shall be followed to firmation of the negotiated price, the extent appropriate:

terms, and conditions of the contract. (a) Introduction. (1) Describe the (g) Other information. Provide deproducts or services to be purchased tails, if the procurement involves pro

(2) Specify the type and amount of cedural or contractual innovations, proposed contract.

protests by unsuccessful proponents, (b) Background. (1) Identify the req GAO or Congressional inquiries, or uisitioning office and the individual any other special circumstances which responsible for requirement.

would be of interest to approving au(2) Show the procurement request thority. number and its total estimated cost.

(h) Recommendations. Include a (c) Solicitation of proposals. (1) positive recommendation for award. Identify the RFP by number and date. (2) Show number of sources solicit

Subpart 12-3.50—Solicitation of ed, including requests received result

Proposals ing from the synopsis.

(3) Reference any pre-bid conference 8 12-3.5000 Scope of subpart. held.

(4) Indicate date proposals were due. This subpart applies to all negotiat

(5) Furnish explanation for opening ed procurement except small purdate of less than 30 days.

chases. (d) Proposals. (1) Indicate the

8 12-3.5001 Competition. number of proposals received.

(2) Identify offerors and the Competitive proposals shall be solicamounts of their price proposals. ited from the maximum practicable

(e) Technical evaluation of propos- number of qualified and eligible supals. (1) Identify the memorandum re pliers. ceived from the technical evaluation team.

§ 12–3.5002 Preparation of request for (2) List the firms whose proposals

proposals. were considered technically acceptable (a) Generally, requests for proposals and their ratings.

shall be in writing. However, in appro(3) Identify those firms considered priate cases, such as the procurement to be within a competitive range.

of perishable subsistence, proposals (f) Negotiations. (1) In addition to may be solicited orally. When the rethe applicable information described quest is to be in writing, the following in FPR 1-3.811, this section of the forms shall be used: memorandum should also:

(1) For negotiated construction con(i) Summarize any pre-negotiation tracts, the standard forms in FPR 1conference, including the primary ob- 16.401. jectives in the areas of price and tech (2) For other than construction. nical and legal considerations.

Standard Form 33 (Solicitation, Offer, (ii) Describe any special contract and Award) and Standard Form 33A provisions negotiated. Provide an ex- (Solicitation Instructions and Condiplanation if the delivery schedule or tions). period for performance negotiated dif- (b) Requests for proposals shall indifers from that in the RFP. State the cate the type of contract contemplated reasons for any substantive differ- by the Government. When technical

proposals are required, requests for proposals shall indicate the factors on which the Government will evaluate the proposals and list them in their relative order of importance. Any other factors, excluding price, which will be given paramount consideration in making an award shall also be indicated.

(c) The guidelines established in DOTPR 12-2.202-1 for minimum bidding times are applicable to requests for proposals. 8 12–3.5003 Receipt and safeguarding of

offers. The instructions for the receipt and safeguarding of bids in FPR 1-2.401 shall also apply to the receipt and safeguarding of proposals.

8 12-3.5004 Solicitation for informational

or planning purposes. See FPR 1-1.314. 8 12-3.5005 Bidders mailing lists.

Bidders mailing lists for negotiated procurements shall be established, maintained, and utilized in accordance with FPR 1-2.205 and DOTPR 122.205-5.

those to whom solicitations have been issued as to the time, place, and general nature of the proposed conference. If time permits, prospective offerors should be asked to submit, in advance, any questions they may have.

(b) The pre-proposal conference shall be conducted by the contracting shall be conducted by the officer or his representative, with participation by technical and legal personnel as appropriate.

(c) All prospective offerors shall be furnished identical information in connection with the proposed procurement. All conferees shall be advised that remarks and explanations at the conference shall not qualify the terms of the solicitation and specifications unless the solicitation is amended in writing. A summary shall be made of the conference and copies furnished prospective offerors. 8 12-3.5007 Amendment of request for

proposals—prior to closing date. (a) If after issuance of a request for proposals, but before the closing date of its receipt, it becomes necessary to make changes in quantity, specifications, delivery schedules, or closing dates, or to correct a defect or ambiguity, such change shall be accomplished by issuance of an amendment to the request, whether or not a preproposal conference is held. SF-30 shall be used for amending requests for proposals.

(b) When it is considered necessary to issue an amendment to a request for proposals, the period of time remaining before closing and the need for extending this period by postponing the time set for closing must be considered. Where only a short time remains before the time set for closing, consideration should be given to notifying offerors of an extension of time by telegram or telephone. Such notification should be confirmed in the amendment.

(c) Any information given to a prospective offeror concerning a request for proposals shall be furnished promptly to all other prospective of. ferors as an amendment to the request if the lack of such information would be prejudicial to uniformed offers. No award shall be made on request for proposals unless such amendment

§ 12-3.5006 Pre-proposal conferences. 8 12-3.5006-1 General.

(a) The pre-proposal conference is a procedure which may be used, general ly in complex negotiated procurement, as a means of briefing prospective offerors after a solicitation has been issued but before offers or proposals are prepared.

(b) Such a conference permits the Government to explain or clarify com plicated specifications and requirements to interested firms. It may also be used to provide an opportunity for interested firms to examine a model of the equipment being procured, where for reasons such as security or limited quantities, such model can only be shown at a specific time and location. 8 12-3.5006-2 Procedure.

(a) Where it is determined to be in the best interests of the Government to hold a pre-proposal conference, the contracting officer shall make the nec essary arrangements and notify all

thereto has been issued in sufficient time to permit prospective offerors to consider such information in submitting or modifying their proposals. § 12-3.5008 Treatment of procurement in


sonnel, at meetings arranged by contracting personnel, or by official correspondence from the contracting officer to the originating activity or technical office seeking clarification of the matter in question. In the conduct of necessary discussion of a request for proposals with suppliers, no personnel shall furnish any information to a supplier which may afford him any advantage over others. However, general information which would not be prejudicial to others may be furnished upon request, e.g., explanations of a particular contract clause or a particular condition of the schedule. When necessary to clarify ambiguities, or correct mistakes or omissions, an appropriate amendment to the solicitation shall be issued.

$ 12-3.5008-1 Restrictions on disclosure

and use of data in proposals. (a) Requests for proposals may require the offeror to submit data with his proposal which may include a design or plan for accomplishing the objectives of the procurement. Such data may include information which the offeror does not want disclosed to the public or used by the Government for any purpose other than evaluation of the proposals.

(b) Contracting officers and other Government personnel shall not refuse to consider any proposal merely because it or the data submitted with it is SO marked with a restrictive legend. Those portions of the proposal and data which are so marked (except for information which is also obtained from another source without restriction) shall be used only to evaluate the proposal and shall not be disclosed outside the Government without the written permission of the offeror. If it is desired to duplicate, use, or disclose the data of the offeror to whom the contract is to be awarded, for purposes other than to evaluate the proposal, the contract should so provide.

$ 12-3.5008-3 Pre-award notice of unac

ceptable offers. In any procurement in excess of $10,000 in which it appears that the period of evaluation of proposals is likely to exceed 60 days or in which a limited number of suppliers have been selected for additional negotiation, the contracting officer, upon determination that a proposal is unacceptable, shall provide prompt notice of that fact to the source submitting the proposal. Such notice need not be given where the proposed contract is to be awarded within a few days and notice pursuant to FPR 1-3.103 would suffice. In addition to stating that the proposal has been determined unacceptable, notice to the offeror shall advise that, since further negotiation with him concerning this procurement is not contemplated, a revision of his proposal will not be considered. If the firm requests a debriefing, this shall be provided at the earliest feasible time after the request, but not prior to award of the contract.

$ 12-3.5008-2 Disclosure of information

during the pre-award or pre-acceptance

period. (a) General. See FPR 1-3.805-1(b) for restrictions regarding the disclosure of information.

(b) Equal consideration and information to all prospective contractors. During the interval between mailing of requests for proposals and the making of awards, discussion of the procurement with prospective contractors and the transmission of technical or other information shall be conducted only by or with the knowledge of the contracting officer; except that necessary technical or other information during such period may be transmitted to prospective contractors by other personnel via contracting per

8 12-3.5009 Notice of award technique.

When time is of the essence, the notice of award technique may be used as an acceptance of a proposal. To assure that the notice of award will constitute a valid acceptance of the of. feror's proposal, the contracting officer will insure that the proposal fully embodies the terms of the agreement

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