PROCUREMENT BY NEGOTIATION

(i) comparison of prices quoted, and consideration of other prices for the same or similar supplies or services, with due regard to production costs, including extra-pay shift, multi-shift and overtime costs, and any other factor relating to price, such as profits, costs of transportation, and cash discounts;

(ii) comparison of the business reputations, capabilities, and responsibilities of the respective persons or firms who submit proposals;

(iii) consideration of the quality of the supplies or services offered, or of the quantity of the same or similar supplies or services previously furnished, with particular regard to the satisfaction of technical requirements;

(iv) consideration of delivery requirements;

(v) discriminating use of price and cost analyses;

(vi) investigation of price aspects of any important subcontract;

(vii) individual bargaining, by mail or by conference;

(viii) consideration of cost sharing;

(ix) effective utilization in general of the most desirable type of contract;

(x) consideration of the size of the business concern;

(xi) consideration as to whether the prospective supplier requires expansion or conversion of plant facilities;

(xii) consideration as to whether the prospective supplier is located in a surplus labor area;

(xiii) consideration as to whether the prospective supplier will have an adequate supply of qualified labor;

(xiv) consideration of the extent of subcontracting;

(xv) consideration of the existing and potential workload of the prospective supplier;

(xvi) consideration of broadening the industrial base by the development of additional suppliers;

(xvii) consideraton of whether the contractor requires Governmentfurnished property, machine tools, or facilities; or Government-operated test facilities;

(xviii) advantages or disadvantages to the Government that might result from making multiple awards;

(xix) consideration of the rules for the avoidance of organizational conflicts of interest (see 1.113-2); and

(xx) royalties the Government will be required to pay under patent license agreements. (See 9.102.)

3.102 General Requirements for Negotiation.

(a) Procurement shall be made by formal advertising whenever such method is feasible and practicable under the existing conditions and circumstances, even though negotiation may be authorized under Subpart 2 of this Part. Among the factors to be considered in determining whether formal advertising is feasible and practicable are:

(i) the number and location of potential suppliers;

(ii) the adequacy of the specifications for advertising;

(iii) the nature of the items being purchased;

(iv) the time available; and

(v) the type of contract contemplated.

(b) No contract shall be entered into by negotiation unless or until the following requirements have been satisfied:

(i) formal advertising is not feasible and practicable;

3.102

CFR TITLE 41 CHAPTER 18

USE OF NEGOTIATION

(14) the contemplated procurement comes within one of the circumstances permitting negotiation set forth in 10 U.S.C. 2304(a); (111) any necessary determinations and findings have been (iv) prescribed clearances or approvals have been (v) the prospective contractor has been determined to be responsible; and

made;

obtained;

(vi) other requirements of this Regulation have been met. (c) Negotiated procurements shall be on a competitive basis to the maximum practical extent. When a proposed procurement appears to be necessarily noncompetitive, the procurement office is responsible not only for assuring that competitive procurement is not feasible, but also for acting whenever possible to avoid the need for subsequent noncompetitive procurements. This action should include both examination of the reasons for the procurement being noncompetitive and steps to foster competitive conditions for subsequent procurements, particularly as to the availability of complete and accurate data, reasonableness of delivery requirements, and possible breakout of components for competitive procurement. Contracts shall not be negotiated on a noncompetitive basis without prior review and approval as provided in 3.802-3. This restriction does not apply to those procurements listed in 3.802-3(b).

3.103 Records and Reports of Negotiated Contracts. In addition to the records and reports described in 1.308 and 3.216-4 each installation is required to maintain a record of the total value of all contracts negotiated by it during each fiscal year under each of the circumstances permitting negotiation enumerated in Part 3, Subpart 2. These records. and reports based thereon, maintained as described in 1.110 and Part 21, Subpart 1.

are

3.104 Aids to Small Business in Negotiated Procurement. See Part 1, Subpart 7.

3.105 Aids to Labor Surplus Area Concerns in Negotiated Procurement. See Part 1, Subpart 8.

3.106 Dissemination of Procurement Information.

3.106-1 Synopses of Proposed Procurements. Procedures with regard to synopses of proposed procurements are set forth in 1.1003.

3.106-2 Synopses of Contract Awards. Procedures with regard to preparation of synopses of contract awards are set forth in

1.1005-1.

NASA PROCUREMENT REGULATION

PROCUREMENT BY NEGOTIATION

3.106-3 Award Information to Unsuccessful Offerors.

(a) Pre-Award Notice of Unacceptable Offers. The following policies and procedures shall be observed in making information available to unsuccessful offerors:

(1) except as provided in (11) below, in any procurement in excess of $10.000 in which it appears that the period of evaluation of proposals is likely to exceed 30 days or in which a limited number of offerors has been selected for additional_negotiation, the contracting officer. upon determination that a proposal is unacceptable, shall provide prompt notice of the fact to the offeror submitting the proposal. Such notice need not be given where disclosure will prejudice the Government's interest or where the proposed

contract is:

(A) negotiated pursuant to 10 U.S.C. 2304(a)(4), (5), or (6) (see 3.204, 3.205, or 3.206);

(B) negotiated with a foreign supplier when only foreign sources of supplies or services have been selected. In addition to stating that the proposal has been determined unacceptable, notice to the offeror shall indicate, in general terms, the basis for such determination and shall advise that, since further negotiation with him concerning this procurement is not contemplated, a revision of his proposal will not be considered.

(11) in the case of procurements for which a Source Evaluation Board has been appointed and one or more than one offeror has been selected for negotiations, those offerors not selected for either preliminary negotiations or final negotiations will be notified in writing of the fact that the proposal is no longer considered for contract award. together with a general, reasonably brief explanation of the reason(s).

(111) in any procurement involving a small business setaside to be placed through conventional negotiation, upon final completion of negotiations and determinations of responsibility but prior to award, the contracting officer shall inform each unsuccessful offeror by written notice of the name and location of the apparently successful offeror(s). Each apparently unsuccessful offeror should be advised that any subsequent revisions of his proposal will not be considered, since no further negotiations are contemplated, and no further contact with the contracting officer need be made regarding the instant procurement unless the unsuccessful offeror has grounds to challenge the small business size status of the apparently successful offeror(s). This notification procedure shall not apply to procurements exempt by 3.106-3(a)(i) above or to any urgent procurement action which the contracting officer determines in writing must be awarded without delay to protect the public interest. The contracting officer's determination shall be placed in the

contract file.

(b) Post-Award Notice of Unaccepted Offers.

CFR TITLE 41 CHAPTER 18

USE OF NEGOTIATION

(1) Promptly after making all awards in any procurement in excess of $10,000, the contracting officer shall give written notice to the unsuccessful offerors that their proposals were not accepted, except that such notice need not be given where notice has been provided pursuant to (a) above or the contract is negotiated pursuant to 10 U.S.C. 2304(a) (4), (5), or (6) (see 3.204. 3.205, or 3.206), or is negotiated with a foreign supplier when only foreign sources of supplies or services have been solicited. Such notice shall also include:

(i) the number of prospective contractors solicited;
(ii) the number of proposals received;

(111) the name and address of each offeror receiving an award; and

(iv) the items, quantities, and unit prices of each award; provided that, where the number of items or other factors makes the listing of unit prices impracticable, only the total contract price need be furnished.

Additional information as to why an offeror's proposal was not accepted should be provided to the offeror upon his written request to the contracting officer, except where the price information in (iv) above readily reveals such reason, but in no event will any offeror's trade secrets and any confidential or privileged commercial or financial information be revealed. nor will a discussion be had of relative merits of the proposals. For guidelines relating to the provision of additional information see (d) below.

(2) In procurements of $10,000 or less and subject to the exceptions in (1) above, the information described in (1) above shall be furnished to unsuccessful offerors upon request.

(c) Classified Information. Classified information shall be furnished only in accordance with regulations governing classified information.

a

(d) Debriefing. It is NASA policy to provide a debriefing, by a senior NASA official when so requested in writing. to company that has unsuccessfully competed for a NASA procurement. Such a debriefing is to inform the unsuccessful competitor of those areas of his proposal where he was judged to be weak or deficient: whether those weaknesses or deficiences were factors in his not having been selected; and, importantly, also identify the factors which were the basis on which the successful contractor was selected. If the successful competitor was selected on the basis of the quality of his proposal to satisfy the mission requirement, the unsuccessful firm should be told that. including a general comparison of significant areas, but not by engaging in a point-by-point comparison of all elements considered in the evaluation criteria. If the successful competitor was selected on the basis of cost, the unsuccessful competitor should be told that such is the case. If the successful contractor was selected on the basis of other factors, these specific factors

NASA PROCUREMENT REGULATION

PROCUREMENT BY NEGOTIATION

should be debriefing are more fully set forth in NASA Management Instruction 5103. 1A, "Debriefing of Unsuccessful Companies in Competitive Negotiated Procurements" and, as applicable, paragraph 504 of NHB 8030.6, "Guidelines for Acquisition of Investigations." (See also 3.804-3(b)(7)).

identified. The policies and procedures governing

3.106-4 Disclosure of Information Prior to Selection of Contractor. The policies and procedures governing the disclosure of information prior to selection of a contractor are set forth in 1.304.2 and3.804-4.

3.106-5 Release of Contractor Award Information. The policies and procedures governing the release of contract award information are set forth in 3.854.

3.107 [Reserved]

3.108 [Reserved]

3.109 Restrictions on Data and Other Information Included in Solicited Proposals.

(a) Technical Data in Solicited Proposals. The policies and procedures concerning restrictions on the disclosure and use of technical data in solicited proposals are set forth in 1.304-2(d).

(b) Commercial and Financial Proposals. The policy governing the and financial data in solicited

1.304-2(d).

Data Included in Solicited treatment of commercial proposals is set forth in

(c) Technical and Other Data Involved in Formal Advertising. See 2.404-4.

(d) Technical, Commercial and Financial Data in Unsolicited Proposals. The policy governing the treatment of technical, commercial, andfinancial data in unsolicited proposals is set forth in 1.304-2(d).

3.110 Solicitations for Informational or Planning Purposes. See 1.309.

in

3.111 Protests Against Award. Protests against award of negotiated procurements shall be treated substantially accordance with 2.407-8. Where the protest involves selection under Source Evaluation Board procedures, the selection official will be advised of the receipt of protest.

3.112 Disclosure of Mistakes After Award. When a mistake in a contractor's proposal is not discovered until after award, the authority to correct mistakes contained in 2.406-4 may be utilized in accordance with the limitations and procedure forth therein.

set

CFR TITLE 41 CHAPTER 18