CONTRACTING BY NEGOTIATION
(Revised June 28, 2017)
TABLE OF CONTENTS
SUBPART 1815.1 SOURCE SELECTION PROCESSES AND TECHNIQUES
1815.101 Best value continuum.
SUBPART 1815.2 SOLICITATION AND RECEIPT OF PROPOSALS AND
1815.201 Exchanges with industry before receipt of proposals.
1815.203 Requests for proposals.
1815.203-70 Installation reviews.
1815.203-71 Headquarters reviews.
1815.203-72 Risk management.
1815.204 Contract format.
1815.204-2 Part I–The Schedule.
1815.204-5 Part IV–Representations and instructions.
1815.204-70 Page limitations.
1815.207 Handling proposals and information.
1815.207-70 Release of proposal information.
1815.207-71 Appointing non-Government evaluators as special Government
1815.208 Submission, modification, revision, and withdrawal of proposals.
1815.209 Solicitation provisions and contract clauses.
1815.209-70 NASA solicitation provisions.
SUBPART 1815.3 SOURCE SELECTION
1815.300 Scope of subpart.
1815.300-70 Applicability of subpart.
1815.304 Evaluation factors and significant subfactors.
1815.304-70 NASA evaluation factors.
1815.305 Proposal evaluation.
1815.305-70 Identification of unacceptable proposals.
1815.305-71 Evaluation of a single proposal.
1815.306 Exchanges with offerors after receipt of proposals.
1815.307 Proposal revisions.
1815.308 Source selection decision.
1815.370 NASA source evaluation boards.
SUBPART 1815.4 CONTRACT PRICING
1815.403 Obtaining certified cost or pricing data.
1815.403-1 Prohibition on obtaining cost or pricing data.
1815.403-170 Waivers of certified cost or pricing data.
1815.403-3 Requiring information other than cost or pricing data.
1815.403-4 Requiring cost or pricing data.
1815.404 Proposal analysis.
1815.404-1 Proposal analysis techniques.
1815.404-2 Data to support proposal analysis.
1815.404-470 NASA Form 634.
1815.404-471 NASA structured approach for profit or fee objective.
1815.404-471-2 Performance risk.
1815.404-471-3 Contract type risk and working capital adjustment.
1815.404-471-4 Other considerations.
1815.404-471-6 Modification to structured profit/fee approach for nonprofit
1815.404-472 Payment of profit or fee under letter contracts.
1815.406-1 Prenegotiation objectives.
1815.406-170 Content of the prenegotiation position memorandum.
1815.406-171 Installation reviews.
1815.406-172 Headquarters reviews.
1815.406-3 Documenting the negotiation.
1815.407 Special cost or pricing areas.
1815.407-2 Make-or-buy programs.
1815.408 Solicitation provisions and contract clauses.
1815.408-70 NASA solicitation provisions and contract clauses.
SUBPART 1815.5 PREAWARD, AWARD, AND POSTAWARD
NOTIFICATIONS, PROTESTS, AND MISTAKES
1815.504 Award to successful offeror.
1815.505 Preaward debriefing of offerors.
1815.506 Postaward debriefing of offerors.
1815.506-70 Debriefing of offerors - Major System acquisitions.
SUBPART 1815.6 UNSOLICITED PROPOSALS
1815.604 Agency points of contact.
1815.606 Agency procedures.
1815.606-70 Relationship of unsolicited proposals to NRAs.
1815.609 Limited use of data.
1815.609-70 Limited use of proposals.
1815.670 Foreign proposals.
SUBPART 1815.70 OMBUDSMAN
1815.7001 NASA Ombudsman Program.
1815.7002 Synopses of solicitations and contracts.
1815.7003 Contract clause.
CONTRACTING BY NEGOTIATION
1815.101 Best value continuum.
When a written acquisition plan is not required by 1807.103, the contracting officer must document in the contract file the source selection approach to be used (e.g. full trade-off utilizing mission suitability, cost/price, and past performance factors; lowest price technically acceptable (LPTA), as described in FAR 15.101-2, where there is no tradeoff; price performance tradeoff (PPTO) where there is a tradeoff between price and past performance factors; or a combination of approaches) and the rating method (numerical scoring, acceptable/unacceptable, adjectival ratings & definitions) to be used, how they will be used, and how these will result in selection of the best value to the government. Identify all factors and their relative importance to one another and how the non-cost factors relate to the cost factor. To the extent that subfactors are utilized under any of the factors, the solicitation shall also provide the relative importance of each subfactor to one another under the specific factor.
(c)(6)(A) Except for acquisitions described in 1815.300-70(b) contracting officers shall issue draft requests for proposals (DRFPs) for all competitive negotiated acquisitions expected to exceed $10,000,000 (including all options or later phases of the same project). The contracting officer may waive the requirement for a DRFP upon written determination that the expected benefits will not be realized given the nature of the supply or service being acquired. The DRFP shall not be waived because of poor or inadequate planning. DRFPs shall invite comments from potential offerors on all aspects of the draft solicitation, including the requirements, schedules, proposal instructions, and evaluation approaches. Potential offerors should be specifically requested to identify unnecessary or inefficient requirements. If the DRFP contains Government-unique standards, potential offerors should be invited to identify voluntary consensus standards that meet the Government's requirements as alternatives to Government-unique standards cited as requirements, in accordance with FAR 11.101 and OMB Circular A-119. Comments should also be requested on any perceived safety, occupational health, security (including information technology security), environmental, export control, and/or other programmatic risk issues associated with performance of the work. When considered appropriate, the statement of work or the specifications may be issued in advance of other solicitation sections.
(B) Contracting officers shall plan the acquisition schedule to include adequate time for issuance of the DRFP, potential offeror review and comment, and NASA evaluation and disposition of the comments.
(C) When issuing DRFPs, potential offerors should be advised that the DRFP is not a solicitation and NASA is not requesting proposals.
(D) Whenever feasible, contracting officers should include a summary of the disposition of significant DRFP comments with the final RFP.
(E) If performance-based payments are planned to be used in a competitive negotiated acquisition, the DRFP shall request potential offerors to suggest terms, including performance events or payment criteria. Contracting officers shall use that information to establish a common set of performance-based payments parameters in the formal RFP when practicable.
(f)(i) Upon release of the formal RFP, the contracting officer shall direct all personnel associated with the acquisition to refrain from communicating with prospective offerors and to refer all inquiries to the contracting officer. This procedure is commonly known as a "blackout notice" and shall not be imposed before release of the RFP. The notice may be issued in any format (e.g., letter or electronic) appropriate to the complexity of the acquisition. Contracting officers shall ensure the blackout notice is widely distributed throughout the Center and Headquarters, as appropriate.
(ii) Blackout notices are not intended to terminate all communication with offerors. Contracting officers should continue to provide information as long as it does not create an unfair competitive advantage or reveal proprietary data.
(a) Installations shall establish procedures to review all RFPs before release. The levels of management review should be commensurate with the dollar value and complexity of the acquisition. When appropriate given the complexity of the acquisition or the number of offices involved in solicitation review, centers should consider use of a single review meeting called a Solicitation Review Board (SRB) as a streamlined alternative to the serial or sequential coordination of the solicitation with reviewing offices. The SRB is a meeting in which all offices having review and approval responsibilities discuss the solicitation and their concerns. Attendance should be limited to key senior personnel and offices with review and approval responsibilities only. Actions assigned and changes required by the SRB shall be documented.
(c) When LPTA, PPTO, or other source selection procedures are used in accordance with 1815.300-70(a)(1)(ii), the evaluation team, per FAR 15.303(b)(1), shall review and approve the RFP prior to issuance.
1815.203-71 Headquarters reviews.
For RFPs requiring Headquarters review and approval, the procurement officer shall send a copy of the RFP to the Assistant Administrator for Procurement, through the Program Operations Division. Transmission of this copy should be made via an encrypted email using NASA Public Key Infrastructure (PKI). If the RFP is too large for transmission via email, transmission of the RFP should be coordinated with the cognizant Program Operations Division Analyst.
1815.203-72 Risk management.
In all RFPs for supplies or services for which a technical proposal is required, proposal instructions shall require offerors to identify and discuss risk factors and issues throughout the proposal where they are relevant, and describe their approach to managing these risks.
(c) To the maximum extent practicable, requirements should be articulated as performance-based specifications and performance work statements that focus on required outcomes or results.
(b) The information required in proposals should be kept to the minimum necessary for the source selection decision.
(a) Technical and contracting personnel will agree on page limitations for their respective portions of an RFP. Unless approved in writing by the procurement officer, the page limitation for the contracting portion of an RFP (all sections except Section C, Description/ specifications/work statement) shall not exceed 150 pages, and the page limitation for the technical portion (Section C) shall not exceed 200 pages. Attachments to the RFP count as part of the section to which they relate. In determining page counts, a page is defined as one side of a sheet, 8 1/2" x 11", with at least one inch margins on all sides, using not smaller than 12-point type. Use by offerors of smaller font sizes for non-standard text (e.g. graphics, tables, charts, figures, captions, etc.) is permitted, if appropriate. However, such fonts shall be no smaller than 8-point, shall be utilized only where appropriate, and shall not be utilized to circumvent or avoid RFP proposal page limitations. Foldouts count as an equivalent number of 8 1/2" x 11" pages. The metric standard format most closely approximating the described standard 8 1/2" x 11" size may also be used.
(b) Page limitations shall be established in solicitations for proposals submitted in all competitive acquisitions. Accordingly, technical and contracting personnel will agree on page limitations for each portion of the proposal. Unless a different limitation is approved in writing by the procurement officer, the total initial proposal, excluding title pages, tables of content, and cost/price information, shall not exceed 500 pages using the page definition of 1815.204-70(a). Page limitations shall also be established for final proposal revisions. The appropriate page limitations for final proposal revisions should be determined by considering the complexity of the acquisition and the extent of any discussions. The same page limitations shall apply to all offerors. Pages submitted in excess of specified limitations will not be evaluated by the Government. The contracting officer shall return one copy of the excess pages removed from the proposal to the offeror, advising the offeror that they were over the limit and will not be evaluated. The contracting officer shall retain one copy of each offeror’s proposal in the official contract file and annotate which excess proposal pages were not evaluated and returned to the offeror.
(a) NASA personnel participating in any way in the evaluation may not reveal any information concerning the evaluation to anyone not also participating, and then only to the extent that the information is required in connection with the evaluation. When non-NASA personnel participate, they shall be instructed to observe these restrictions.
(b)(1) Except as provided in paragraph (b)(2) of this section, the procurement officer is the approval authority to disclose proposal information outside the Government. If outside evaluators are involved, this authorization may be granted only after compliance with FAR 37.2 and 1837.204, except that the determination of unavailability of Government personnel required by FAR 37.2 is not required for disclosure of proposal information to JPL employees.
(2) Proposal information in the following classes of proposals may be disclosed with the prior written approval of a NASA official one level above the NASA program official responsible for the overall conduct of the evaluation. If outside evaluators are involved, the determination of unavailability of Government personnel required by FAR 37.2 is not required for disclosure in these instances—
(i) Proposals submitted in response to broad agency announcements such as Announcements of Opportunity and NASA Research Announcements;
(ii) Unsolicited proposals; and
(iii) SBIR and STTR proposals.
(3) If JPL personnel, in evaluating proposal information released to them by NASA, require assistance from non-JPL, non-Government evaluators, JPL must obtain written approval to release the information in accordance with paragraphs (b)(1) and (b)(2) of this section.
(a) Except as provided in paragraph (c) of this section, non-Government evaluators, except employees of JPL, shall be appointed as special Government employees.
(b) Appointment as a special Government employee is a separate action from the approval required by paragraph 1815.207-70(b) and may be processed concurrently. Appointment as a special Government employee shall be made by—
(1) The NASA Headquarters personnel office when the release of proposal information is to be made by a NASA Headquarters office; or
(2) The installation personnel office when the release of proposal information is to be made by the installation.
(c) Government evaluators need not be appointed as special Government employees when they evaluate—
(1) Proposals submitted in response to broad agency announcements such as Announcements of Opportunity and NASA Research Announcements;
(2) Unsolicited proposals; and
(3) SBIR and STTR proposals.
(b) The FAR late proposal criteria do not apply to Announcements of Opportunity, NASA Research Announcements (see 1852.235-72), and Small Business Innovative Research (SBIR) Phase I and Phase II solicitations, and Small Business Technology Transfer (STTR) solicitations. For these solicitations, proposals or proposal modifications received from qualified firms after the latest date specified for receipt may be considered if a significant reduction in cost to the Government is probable or if there are significant technical advantages, as compared with proposals previously received. In such cases, the project office shall investigate the circumstances surrounding the late submission, evaluate its content, and submit written recommendations and findings to the selection official or a designee as to whether there is an advantage to the Government in considering it. The selection official or a designee shall determine whether to consider the late submission.
(a) The contracting officer shall insert FAR 52.215-1 in all competitive negotiated solicitations.
(a) The contracting officer shall insert the provision at 1852.215-77, Preproposal/Pre-bid Conference, in competitive requests for proposals and invitations for bids where the Government intends to conduct a preproposal or pre-bid conference. Insert the appropriate specific information relating to the conference.
(b) When it is not in the Government’s best interest to make award for less than the specified quantities solicited for certain items or groupings of items, the contracting officer shall insert the provision at 1852.214-71, Grouping for Aggregate Award. See 1814.201-670(b).
(d) The contracting officer shall insert the provision at 1852.215-81, Proposal Page Limitations, in all competitive requests for proposals.
(a)(1) Except as indicated in paragraph (b) of this section, NASA competitive negotiated acquisitions shall be conducted in accordance with FAR 15.3 and this subpart as follows:
(i) When acquiring complex services, hardware development, or research and development that include technically complex requirements, COs should use a mission suitability factor, numerically score the proposals, and use the SEB procedures in 1815.370.
(ii) When acquiring routine, non-complex, repetitive follow-on services, non-developmental hardware, or non-research and development supplies or services, COs may use other source selection procedures such as lowest price technically acceptable (LPTA), as described in FAR 15.101-2, where there is no tradeoff, price performance tradeoff (PPTO), or other source selection approach except those at NFS 1815.370.
(2) Estimated dollar values of acquisitions shall include the values of multiple awards, options, and later phases of the same project.
(b) FAR 15. 3 and this subpart are not applicable to acquisitions conducted under the following procedures:
(1) Announcements of Opportunity (see Part 1872).
(2) NASA Research Announcements (see 1835.016-71).
(3) The Small Business Innovative Research (SBIR) program and the Small Business Technology Transfer (STTR) pilot program under the authority of the Small Business Act (15 U.S.C. 638).
(4) Architect and Engineering (A&E) services (see FAR 36.6 and 1836.6).
(5) Price Performance Tradeoff (PPTO) procedures for construction projects when the following applies: the Government develops and provides the design specifications in the solicitation; the offerors are not required to submit technical proposals; and selection is based solely upon price and past performance factors.
(a) The Source Selection Authority (SSA) shall be established at the lowest reasonable level for each acquisition and documented in the acquisition plan or PSM presentation. The SSA for center acquisitions shall be documented in the acquisition plan or PSM. For acquisitions designated as Headquarters selections, the SSA will be identified as part of the Master Buy Plan process (see 1807.71).
(b)(i) The SSA is the Agency official responsible for proper and efficient conduct of the source selection process and for making the final source selection decision. The SSA has the following responsibilities in addition to those listed in the FAR:
(A) Approve the source selection approach, rating method, evaluation factors, subfactors, the weight of the evaluation factors and subfactors when used, and any special standards of responsibility (see FAR 9.104-2) before release of the RFP, or delegate this authority to appropriate management personnel.
(B) Appoint the source selection team. However, when the Administrator will serve as the SSA, the Official-in-Charge of the cognizant Headquarters Program Office will appoint the team.
(C) Provide the source selection team with appropriate guidance and special instructions to conduct the evaluation and selection procedures.
(b)(ii) See 1803.104-70 for restrictions on participating in evaluation or selection of proposals.
(b)(2) Approval authorities for Acquisition Plans and Procurement Strategy Meetings are in accordance with 1807.103.
(c)(4)(A) Small Business Utilization, including the small business subcategories – SDB, HUBzone, VOSB, SDVOSB, and WOSB utilization concerns, shall be evaluated by the SSA or appropriate evaluation team member as a subfactor under the Mission Suitability factor or as a separate factor, as appropriate. The Small Business Utilization factor/subfactor shall provide for a separate and distinct evaluation of the Small Business plans, including compliance with FAR 19.704 requirement. Previous small business subcontracting performance will be rated as part of the Past Performance factor.
(B) COs shall specify NASA recommended goals for each small business category in solicitations that require the submission of a subcontracting plan under FAR 52.219-9. NASA recommended goals for SDB may not exceed 5 percent. If a requirement offers low levels of small business subcontracting opportunities, the contracting officer may choose not to utilize recommended goals and have the contractor propose goals.
(C) In addition to the subcontracting plan requirements of FAR 19.704 and the proposed small business goals, contracting officers should consider other aspects of the subcontracting plan in their proposal evaluation. The following are examples of desirable subcontracting plan characteristics (this is not an all-inclusive list):
(1) Clear identification of which small businesses will be used in actual contract performance, and how they will be used.
(2) Use of small business subcontractors for meaningful work, including high technology work.
(3) Inclusion of enforceable small business subcontracting plans.
(4) Support of the mentor protégé program.
(5) Participation in outreach initiatives.
(a) Typically, NASA establishes three evaluation factors: Mission Suitability, Cost/Price, and Past Performance. The evaluation factors are developed by the evaluation team and approved by the SSA. Evaluation factors may be further defined by subfactors. Evaluation subfactors should be structured to identify significant discriminators, the essential information required to support a source selection decision. Too many subfactors undermine effective proposal evaluation. All evaluation subfactors should be clearly defined to avoid overlap and redundancy. Further sub-division below the subfactor level is prohibited.
(b) Mission Suitability factor, if used.
(1) This factor indicates the merit or excellence of the work to be performed or product to be delivered. It includes, as appropriate, both technical and management subfactors. Mission Suitability shall be numerically weighted and scored on a 1000-point scale. (See 1815.300-70(a)(1)(ii).)
(2) The Mission Suitability factor may identify evaluation subfactors to further define the content of the factor. Each Mission Suitability subfactor shall be weighted and scored. The adjectival rating percentages in 1815.305(a)(3)(A) shall be applied to the subfactor weight to determine the point score. The number of Mission Suitability subfactors is limited to five. The Mission Suitability evaluation subfactors and their weights shall be identified in the RFP.
(i) For cost reimbursement acquisitions, the Mission Suitability evaluation shall consider the adequacy of the offeror’s proposed approach to meeting the requirements of the solicitation including the appropriateness of the offeror’s proposed resources. COs shall ensure that the solicitation notifies offerors that a lack of resource realism may adversely affect their Mission Suitability scores, and result in cost realism adjustments under the cost factor.
(c) Cost/Price factor. This factor evaluates the reasonableness and, if necessary, the cost realism, of proposed costs/prices. The Cost/Price factor is not numerically weighted or scored.
(d) Past Performance factor.
(1) This factor indicates the relevant quantitative and qualitative aspects of each offeror's record of performing services or delivering products similar in size, content, and complexity to the requirements of the instant acquisition.
(2) COs shall include instructions in the RFP for offerors to submit data (including data from relevant Federal, State, and local governments and private contracts) that can be used to evaluate their past performance. Typically, the RFP will require:
(i) A list of contracts similar in size, content, and complexity to the instant acquisition, showing each contract number, the type of contract, a brief description of the work, and a point of contact from the organization placing the contract. Normally, the requested contracts are limited to those received in the last three years. However, in acquisitions that require longer periods to demonstrate performance quality, such as hardware development, the time period should be tailored accordingly.
(ii) The identification and explanation of any cost overruns or underruns, completion delays, performance problems, and terminations.
(3) The contracting officer may start collecting past performance data before proposal receipt. One method for early evaluation of past performance is to request offerors to submit their past performance information in advance of the proposal due date. The RFP could also include a past performance questionnaire for offerors to send their previous customers with instructions to return the completed questionnaire to the Government. Failure of the offeror to submit its past performance information early or of the customers to submit the completed questionnaires shall not be a cause for rejection of the proposal nor shall it be reflected in the Government's evaluation of the offeror's past performance.
(4) The contracting officer shall evaluate the offeror's past performance in occupational health, security, safety, and mission success (e.g., mishap rates and problems in delivered hardware and software that resulted in mishaps or failures) when these areas are germane to the requirement.
(a) The evaluation team shall evaluate each proposal to—
(i) Identify and document all significant strengths, strengths, deficiencies, weaknesses, and significant weaknesses. These findings will include a description of how each strength, deficiency, and weakness will impact performance in terms of benefit or risk statements;
(ii) Identify and document the numerical score and/or adjectival rating of each Mission Suitability subfactor, if applicable;
(iii) Document the cost or price analysis performed and, if conducted, the cost realism analysis performed;
(iv) Identify and document the past performance evaluation findings and the rationale for the assigned level of confidence rating; and
(v) Document any programmatic risk to mission success, e.g., technical, schedule, cost, safety, occupational health, security, export control, or environmental. Risks may result from the offeror's technical approach, manufacturing plan, selection of materials, processes, equipment, or as a result of the cost, schedule, and performance impacts associated with its approach. Risk evaluations must consider the probability of the risk occurring, the impact and severity of the risk, the timeframe when the risk should be addressed, and the alternatives available to meet the requirements. Risk assessments shall be captured as part of strengths, weaknesses, and deficiencies, as applicable. Identified risks and the potential for cost impact shall be considered in the cost or price evaluation.
(a)(1) Cost or price evaluation.
(A) When contracting on a basis other than firm-fixed-price, the contracting officer shall perform price and cost realism analyses to assess the reasonableness and realism of the proposed costs. A cost realism analysis will determine if the costs in an offeror's proposal:
(a) Are realistic for the work to be performed,
(b) Reflect a clear understanding of the requirements, and
(c) Are consistent with the various elements of the offeror's technical proposal.
(B) The analysis shall, to the extent appropriate for the acquisition, include:
(a) The probable cost to the Government of each proposal, including any recommended additions or reductions in materials, equipment, labor hours, direct rates, and indirect rates. Any adjustments in direct and indirect costs, other than minor computation errors, must be fully explained and documented and, where applicable, traceable to the technical evaluation. The probable cost should reflect the Government’s best estimate based on cost resulting from the offeror's proposal after all known adjustments have been considered.
(b) The identification of the differences between the probable cost and offeror’s proposed costs regarding business methods, operating procedures, and practices as they affect cost.
(a)(2) Past performance evaluation.
(A) The Past Performance evaluation assesses the contractor's performance under previously awarded contracts. The past performance evaluation shall be in accordance with FAR 15.305(a)(2) and this section. When applying the definitions below to arrive at a confidence rating, the evaluation team shall consider and clearly document each offeror’s relevant past performance (e.g. currency/recency, size, content and complexity) to assess the offeror’s past performance data and assign an overall confidence rating. The past performance evaluation is an assessment of the Government’s confidence in the offeror’s ability to perform the solicitation requirements. At the Installation’s discretion, strengths and weakness may be assigned. Past Performance shall be evaluated for each offeror using the following levels of confidence ratings:
Very High Level of Confidence
The offeror’s relevant past performance is of exceptional merit and is very highly pertinent to this acquisition, indicates exemplary performance in a timely, efficient, and economical manner and very minor (if any) problems with no adverse effect on overall performance. Based on the offeror’s performance record, there is a very high level of confidence that the offeror will successfully perform the required effort. (One or more significant strengths exist. No significant weaknesses exist.)
High Level of Confidence
The offeror’s relevant past performance is highly pertinent to this acquisition; demonstrating very effective performance that would be fully responsive to contract requirements. Offeror’s past performance indicates that contract requirements were accomplished in a timely, efficient, and economical manner for the most part, with only minor problems that had little identifiable effect on overall performance. Based on the offeror’s performance record, there is a high level of confidence that the offeror will successfully perform the required effort. (One or more significant strengths exist. Strengths outbalance any weakness.)
Moderate Level of Confidence
The offeror’s relevant past performance is pertinent to this acquisition, and it demonstrates effective performance. Performance was fully responsive to contract requirements; there may have been reportable problems, but with little identifiable effect on overall performance. Based on the offeror’s performance record, there is a moderate level of confidence that the offeror will successfully perform the required effort. (There may be strengths or weaknesses, or both.)
Low Level of Confidence
The offeror’s relevant past performance is at least somewhat pertinent to this acquisition, and it meets or slightly exceeds minimum acceptable standards. Offeror achieved adequate results; there may have been reportable problems with identifiable, but not substantial, effects on overall performance. Based on the offeror’s performance record, there is a low level of confidence that the offeror will successfully perform the required effort. Changes to the offeror’s existing processes may be necessary in order to achieve contract requirements. (One or more weaknesses exist. Weaknesses outbalance strengths.)
Very Low Level of Confidence
The offeror’s relevant past performance does not meet minimum acceptable standards in one or more areas; remedial action was required in one or more areas. Performance problems occurred in one or more areas which, adversely affected overall performance. Based on the offeror’s performance record, there is a very low level of confidence that the offeror will successfully perform the required effort. (One or more deficiencies or significant weaknesses exist.)
In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance (see FAR 15.305(a) (2) (ii) and (iv)).
(B) The evaluation may be limited to specific areas of past performance considered most germane for the instant acquisition. It may include any or all of the items listed in FAR 42.1501, and/or any other aspects of past performance considered pertinent to the solicitation requirements or challenges. Regardless of the areas of past performance selected for evaluation, the same areas shall be evaluated for all offerors.
(C) Questionnaires and interviews may be used to solicit assessments of the offeror's performance, as either a prime or subcontractor, from the offeror's previous customers.
(D) All pertinent information, including customer assessments and any offeror rebuttals, will be made part of the source selection records and addressed in the evaluation of past performance.
(a)(3) Technical Evaluation.
(A) Mission Suitability subfactors, when used, shall be evaluated using the following adjectival ratings, definitions, and percentile ranges.
A comprehensive and thorough proposal of exceptional merit with one or more significant strengths. No deficiency or significant weakness exists.
A proposal having no deficiency and which demonstrates over-all competence. One or more significant strengths have been found, and strengths outbalance any weaknesses that exist.
A proposal having no deficiency and which shows a reasonably sound response. There may be strengths or weaknesses, or both. As a whole, weaknesses not off-set by strengths do not significantly detract from the offeror’s response.
A proposal having no deficiency and which has one or more weaknesses. Weaknesses outbalance any strengths.
A proposal that has one or more deficiencies or significant weaknesses that demonstrate a lack of overall competence or would require a major proposal revision to correct.
(B) When contracting on a cost reimbursement basis, a cost realism analysis shall be performed consistent with FAR 15.404-1(d).
(a)(4) The cost or price evaluation, specifically the cost realism analysis, often requires a technical evaluation of the proposed costs elements. Contracting officers may provide technical evaluators a copy of the cost volume or relevant information from it to use in the analysis.
(b) The contracting officer and the SSA, if applicable, are authorized to make the determination to reject all proposals received in response to a solicitation.
(a) The contracting officer shall not complete the initial evaluation of any proposal when it is determined that the proposal is unacceptable because:
(1) It does not represent a reasonable initial effort to address the essential requirements of the RFP or clearly demonstrates that the offeror does not understand the requirements;
(2) In research and development acquisitions, a substantial design drawback is evident in the proposal, and sufficient correction or improvement to consider the proposal acceptable would require virtually an entirely new technical proposal; or
(3) It contains major deficiencies or omissions or out-of-line costs which discussions with the offeror could not reasonably be expected to cure.
(b) The contracting officer shall document the rationale for discontinuing the initial evaluation of a proposal in accordance with this section.
(a) If only one proposal is received in response to the solicitation, the contracting officer shall determine if the solicitation was flawed or unduly restrictive and determine if the single proposal is an acceptable proposal. Based on these findings, the SSA shall direct the contracting officer to one of the following:
(1) Award without discussions provided the contracting officer determines that adequate price competition exists (see FAR 15.403-1(c)(1)(ii)); or
(2) Award after negotiating an acceptable contract. (The requirement for submission of cost or pricing data shall be determined in accordance with FAR 15.403-3(a)(1)(ii); or
(3) Reject the proposal and cancel the solicitation.
(c)(2) A total of no more than three proposals shall be a working goal in establishing the competitive range. Field installations may establish procedures for approval of competitive range determinations commensurate with the complexity or dollar value of an acquisition.
(d)(3)(A) The contracting officer shall identify any cost/price elements that do not appear to be justified and encourage offerors to submit their most favorable and realistic cost/price proposals, but shall not discuss, disclose, or compare cost/price elements of any other offeror. The contracting officer should question inadequate, conflicting, unrealistic, or unsupported cost information, differences between the offeror's proposal and most probable cost assessments, cost realism concerns, differences between audit findings and proposed costs, proposed rates that are too high/low, and labor mixes that do not appear responsive to the requirements. No agreement on individual cost/price elements or a "bottom line" is necessary.
(B) The contracting officer shall discuss contract terms and conditions so that a "model" contract can be sent to each offeror with the request for final proposal revisions. If the solicitation allows, any proposed technical performance capabilities above those specified in the RFP that have value to the Government and are considered proposal strengths should be discussed with the offeror and proposed for inclusion in that offeror’s "model" contract. If the offeror declines to include these strengths in its "model" contract, the Government evaluators should reconsider their characterization as strengths.
(e)(1) In no case shall the contracting officer relax or amend RFP requirements for any offeror without amending the RFP and permitting the other offerors an opportunity to propose against the relaxed requirements.
(b)(i) The request for final proposal revisions (FPRs) shall also—
(A) Instruct offerors to incorporate all changes to their offers resulting from discussions, and require clear traceability from initial proposals;
(B) Require offerors to complete and execute the "model" contract, which includes any special provisions or performance capabilities the offeror proposed above those specified in the RFP;
(C) Caution offerors against unsubstantiated changes to their proposals; and
(D) Establish a page limit for FPRs.
(ii) Approval of the procurement officer is required to reopen discussions.
(iii) Proposals are rerated and, for mission suitability, rescored based on FPR evaluations. Scoring or rating changes between initial and FPRs shall be clearly traceable.
(1) A Source Selection Decision (SSD) is a deliberative decision that is documented in the Source Selection Statement, reflecting the thought process behind the selection and representing the independent judgment of the SSA. The SSA has broad discretion in determining the manner and extent to which technical, past performance, and cost evaluation results of the evaluation team are used, subject only to the tests of rationality and consistency with the evaluation criteria identified in the solicitation. The adjectival ratings and numerical scoring presented to the SSA, which represent the evaluation team’s relative ranking of proposals within the mission suitability factor, when the mission suitability is included as an evaluation factor cannot be the sole basis for a selection decision. Instead, the selection shall be based upon a comparative assessment of the relative discriminators that includes a discussion of the benefits or risks/detriments associated with the discriminators of the selected offeror over all other offerors considering all evaluation factors (i.e. past performance factor, cost/price factor, other non-price factors).
(2) All significant evaluation findings shall be fully documented and considered in the source selection decision. The source selection decision shall document the SSA’s rationale supporting the selection. The source selection decision shall document the mission suitability subfactor ratings and overall mission suitability score, if applicable. Selection is made on the basis of the evaluation criteria established in the RFP.
(3) Before award, the SSA shall sign a source selection statement that clearly and succinctly justifies the selection. The NASA Source Selection Statement Development Guide provides agency-wide guidance and is available at:
https://prod.nais.nasa.gov/portals/pl/documents/Source_Selection_Guide_March_2012.pdf. Source selection statements must describe: the acquisition, the evaluation procedures, the substance of the Mission Suitability evaluation, when used, and the evaluation of the Cost/Price and Past Performance factors. The statement must also address unacceptable proposals, the competitive range determination, late proposals, or any other considerations pertinent to the decision. The source selection statement shall include the successful offeror’s overall proposed cost or price (contract award value) as well as the successful offeror’s overall evaluated cost or price (probable). The source selection statement shall not disclose the proposed or overall evaluated cost or price for unsuccessful offerors. Instead, the source selection statement shall describe the overall proposed and probable cost or price of unsuccessful offerors in relative terms of comparison to the successful offeror’s cost or price, e.g. offeror ABC’s probable cost or price was minimally or substantially, higher or lower than the successful offeror’s cost/price. The source selection statement shall not reveal any confidential business information, to include trade secrets and commercial or financial information prohibited from disclosure by FAR 24.202 or exempt from release under the Freedom of Information Act, 5 U.S.C. 552 and the Trade Secrets Act, 18 U.S.C. 1905. Questions about confidential business information, disclosure of such information, and contents of source selection statements shall be directed to the Office of General Counsel or Office of Chief Counsel. Except for certain major system acquisition competitions (see 1815.506-70), source selection statements shall be releasable to competing offerors and the general public upon request. The statement shall be available to the contracting officer or other Debriefing Official to use in postaward debriefings of unsuccessful offerors and shall be provided to debriefed offerors upon request. If the source selection and contract award are not protested or otherwise challenged, the contracting officer shall post the source selection statement on the Federal Business Opportunities web page https://www.fbo.gov/ not later than 11 calendar days after the final debriefing has been conducted. If the source selection or contract award is protested or otherwise challenged, the source selection statement shall not be posted and shall be controlled as sensitive source selection information until the protest or challenge has been resolved. The source selection statement shall be posted for a period of not less than 30 days.
(4) Once the selection decision is made, the contracting officer shall award the contract.
(a) The source evaluation board (SEB) procedures shall be used for those acquisitions identified in 1815.300-70(a)(1)(i). The NASA Source Selection Guide provides agency-wide guidance to individuals participating in the Source Evaluation Board (SEB) process and is available on the NASA Headquarters Procurement Library at https://prod.nais.nasa.gov/portals/pl/sol_to_award.html.
(b) The SEB assists the SSA by providing expert analyses of the offerors' proposals in relation to the evaluation factors and subfactors contained in the solicitation. The SEB will prepare and present its findings to the SSA, avoiding trade-off judgments among either the individual offerors or among the evaluation factors. The SEB will not make recommendations for selection to the SSA. Although the SSA may seek advice or opinions about the SEBs findings from key senior personnel or management during the executive session (if held) that follows the SEB presentation, the source selection decision must reflect the SSA’s sole independent decision and judgment. Any individual participating in an executive session with the SSA shall be cleared in advance of the source selection briefing of any conflict of interest consistent with NPR 1900.3 and NPD 1900.9, Ethics Program Management.
(1) The SEB shall be comprised of competent individuals fully qualified to identify the strengths, deficiencies, weaknesses, and risks associated with proposals submitted in response to the solicitation. Advance planning is required to identify fully-engaged and dedicated resources as early as possible in the process. Dedicated resources are necessary to complete early acquisition milestones in a timely manner, e.g., defining the requirements, acquisition strategy, etc. The SEB shall be appointed as early as possible in the acquisition process, but not later than acquisition plan or procurement strategy meeting approval.
(2) While SEB participants are normally drawn from the cognizant installation, personnel from other NASA installations or other Government agencies may participate. When it is necessary to disclose the proposal (in whole or in part) outside the Government, approval shall be obtained in accordance with 1815.207-70.
(3) When Headquarters retains SSA authority, the Headquarters Office of Procurement, Program Operations Division must concur on the SEB appointments. Qualifications of voting members, including functional title, grade level, and related SEB experience, shall be provided to the cognizant Program Operations Division analyst.
(1) The organization of an SEB is tailored to the requirements of the particular acquisition. This organization can range from the most streamlined and efficient situation, where the SEB conducts the evaluation and fact-finding without the use of committees or panels/consultants (as described in paragraphs (d)(4) and (5) of this section) to a highly complex situation involving a major acquisition where two or more committees are formed and these, in turn, are assisted by special panels or consultants in particular areas. The number of committees or panels/consultants shall be kept to a minimum.
(2) The SEB Chairperson is the principal operating executive of the SEB. The Chairperson is expected to manage the team efficiently without compromising the validity of the findings provided to the SSA as the basis for a sound selection decision.
(3) The SEB Recorder functions as the principal administrative assistant to the SEB Chairperson and is principally responsible for logistical support and recordkeeping of SEB activities.
(4) An SEB committee functions as a fact-finding arm of the SEB, usually in a broad grouping of related disciplines (e.g., technical or management). The committee evaluates in detail each proposal, or portion thereof, assigned by the SEB in accordance with the established evaluation factors and subfactors and summarizes its evaluation in a written report to the SEB. The committee will also respond to requirements assigned by the SEB, including further justification or reconsideration of its findings. Committee chairpersons shall manage the administrative and procedural matters of their committees.
(5) An SEB panel or consultant functions as a fact-finding arm of the committee in a specialized area of the committee's responsibilities. Panels are established or consultants named when a particular area requires deeper analysis than the committee can provide.
(6) The total of all such evaluators (committees, panels, consultants, etc. excluding SEB voting members and ex officio members) shall be limited to a maximum of 20, unless approved in writing by the Assistant Administrator for Procurement. Requests to exceed the evaluation team size limitation shall provide a detailed justification and shall be sent to the Headquarters Office of Procurement, Program Operations Division.
(e) Voting members.
(1) Voting members of the SEB shall include people who will have key assignments on the project to which the acquisition is directed. However, it is important that the appointment of members be tempered to ensure objectivity and to avoid an improper balance. It may even be appropriate to designate a management official from outside the project as SEB Chairperson.
(2) Non-government personnel shall not serve as voting members of an SEB.
(3) The SEB shall review the findings of committees, panels, or consultants and use its own collective judgment to develop the SEB evaluation findings reported to the SSA. All voting members of the SEB shall have equal status as rating officials.
(4) SEB membership shall be limited to a maximum of 7 voting individuals. Wherever feasible, an assignment to SEB membership as a voting member shall be on a full-time basis. When not feasible, SEB membership shall take precedence over other duties.
(5) The SEB should be comprised of a multidisciplinary team to ensure comprehensive evaluation of proposals. Voting members should include senior representatives that have expertise in various functional areas specific to the unique acquisition requirements. Depending on the scope and requirements of the acquisition, the Center Procurement Officer may nominate to the SSA a procurement representative to serve as a voting or non-voting member of the SEB. The following positions shall be voting members of all SEBs:
(ii) A senior, key technical representative for the project.
(iii) A senior Safety and Mission Assurance (SMA) representative, as required based upon the type of acquisition.
(iv) Committee chairpersons (except where this imposes an undue workload).
(f) Ex officio members.
(1) The number of nonvoting ex officio (advisory) members shall be kept as small as possible. Ex officio members should be selected for the experience and expertise they can provide to the SEB. Since their advisory role may require access to highly sensitive SEB material and findings, ex officio membership for persons other than those identified in paragraph (f)(3) of this section is discouraged.
(2) Nonvoting ex officio members may state their views and contribute to the discussions in SEB deliberations, but they may not participate in the actual rating process. However, the SEB recorder should be present during rating sessions.
(3) For field installation selections, the following shall be nonvoting ex officio members on all SEBs:
(i) Chairpersons of SEB committees, unless designated as voting members.
(ii) The procurement officer of the installation, unless a voting member.
(iii) The contracting officer responsible for the acquisition, unless designated a voting member.
(iv) The Chief Counsel and/or designee of the installation.
(v) The installation small business specialist.
(vi) The SEB recorder.
(1) If committees are used, the SEB Chairperson shall send them the proposals or portions thereof to be evaluated, along with instructions regarding the expected function of each committee, and all data considered necessary or helpful.
(2) While oral reports may be given to the SEB, each committee shall submit a written report which should include the following:
(i) Copies of individual worksheets and supporting comments to the lowest level evaluated consistent with the solicitation evaluation criteria factors and subfactors;
(ii) An evaluation sheet summarized for the committee as a whole; and
(iii) The committee findings for each proposal, including documentation of all significant strengths, strengths, deficiencies, weaknesses, and significant weaknesses which significantly affected the evaluation and any reservations or concerns, including supporting rationale, which the committee or any of its members want to bring to the attention of the SEB.
(3) The SEB process must be adequately documented. Clear traceability must exist at all levels of the SEB process. All reports submitted by committees or panels will be retained as part of the SEB records as outlined in paragraph (k) of this section.
(4) Each voting SEB member shall thoroughly review each proposal and any committee reports and findings. The SEB shall rate or score the proposals for each evaluation factor and subfactor according to its own collective judgment. The SEB shall document the results of rating and scoring of proposals.
(h) SEB presentation.
(1) The SEB Chairperson shall brief the SSA on the results of the SEB evaluation to permit an informed and objective selection of the best source(s) for the particular acquisition.
(2) The presentation shall focus on the significant strengths, deficiencies, and significant weaknesses found in the proposals, the probable cost of each proposal, and any significant issues and problems identified by the SEB. This presentation must explain—
(i) Any applicable special standards of responsibility;
(ii) Evaluation factors and subfactors;
(iii) The significant strengths and significant weaknesses of the offerors which includes a description of the benefits or risks associated with the significant findings;
(iv) The Government independent cost estimate, if applicable;
(v) The offerors' proposed cost/price;
(vi) The probable cost;
(vii) The proposed fee arrangements; and
(viii) The final adjectival ratings and scores to the subfactor level.
The presentation to the SSA shall include the total mission suitability point score for each offeror’s proposal. An adjectival rating (e.g. excellent, very good, etc.) shall be assigned for each mission suitability subfactor, but an adjectival rating shall not be assigned for the total mission suitability factor of each offeror’s proposal. The SEB shall compute the total mission suitability point score by adding all of the mission suitability subfactors points assessed, with the maximum possible total mission suitability point score being 1000 points. The total mission suitability point score does not represent a precise measure of the relative merit of any one offeror’s proposal, rather it shows an offeror’s relative standing by providing the total points each offeror’s proposal is assessed out of the possible1000 points so that the offerors can be compared.
(3) Attendance at the presentation is restricted to people involved in the selection process or who have a valid need to know. The designated individuals attending the SEB presentation(s) shall—
(i) Ensure that the solicitation and evaluation processes complied with all applicable Agency policies and that the presentation accurately conveys the SEB’s activities and findings; and
(ii) Not change the established evaluation factors, subfactors, weights, or scoring systems, or the substance of the SEB's findings. They may, however, advise the SEB to rectify procedural omissions, irregularities or inconsistencies, substantiate its findings, or revise the presentation.
(4) The SEB recorder will coordinate the formal presentation including arranging the time and place of the presentation, assuring proper attendance, and distributing presentation material.
(5) For Headquarters selections, the Headquarters Office of Procurement, Program Operations Division will coordinate the presentation, including approval of attendees. When the Administrator is the SSA, a preliminary presentation should be made to the head of the contracting activity and to the Official-in-Charge of the cognizant Headquarters Program Office.
(i) A source selection statement shall be prepared in accordance with 1815.308. For installation selections, the installation Chief Counsel or designee will prepare the source selection statement. For Headquarters selections, the Office of General Counsel or designee will prepare the statement.
(j) SEB Records.
(1) The contracting officer shall retain in the official contract file, source selection documentation in accordance with FAR 4.803(a)(13), Contents of contract files. Specifically, upon completion of SEB activities, the contracting officer shall retain a copy of the following source selection evaluation documents in the official contract file for initial proposals and final proposal revisions (FPR), if applicable:
(i) Each offeror’s proposal.
(ii) The competitive range determination(s).
(iii) The unsuccessful and successful notices sent to offerors.
(iv) If committees were utilized, the committee’s evaluation for each evaluation factor, including all identified significant strengths, strengths, significant weakness, weaknesses, and deficiencies, together with supporting rationale, which the committee or any of its members brought to the attention of the SEB.
(v) Documentation of any clarifications and discussions held with offerors during the source selection process.
(vi) Initial and final reports containing the SEB’s consensus findings, including minority reports, if any.
(vii) All presentations from the SEB to the SSA, including those containing the SEB’s evaluation and rating of proposals.
(viii) The source selection decision.
(2) Extra copies of offerors’ proposals should be stored in a secure facility and shall be properly disposed of after the time period for filing a protest has expired.
(3) Contracting officers shall handle electronic copies of materials containing source selection information in the same manner as the hardcopy information.
(c)(4) Waivers of the requirement for submission of certified cost or pricing data shall be prepared in accordance with FAR 1.704. A copy of each waiver shall be sent to the Headquarters Office of Procurement, Contract and Grant Policy Division.
(a) NASA has waived the requirement for the submission of certified cost or pricing data when contracting with the Canadian Commercial Corporation (CCC). This waiver applies to the CCC and its subcontractors. The CCC will provide assurance of the fairness and reasonableness of the proposed price. This assurance should be relied on; however, contracting officers shall ensure that the appropriate level of data other than certified cost or pricing data is submitted by subcontractors to support any required proposal analysis, including a technical analysis and a cost realism analysis. The CCC also will provide for follow-up audit activity to ensure that any excess profits are found and refunded to NASA.
(b) NASA has waived the requirement for the submission of certified cost or pricing data when contracting for Small Business Innovation Research (SBIR) program Phase II contracts. However, contracting officers shall ensure that the appropriate level of data other than certified cost or pricing data is submitted to determine price reasonableness and cost realism.
(a)(1) For sole source procurement actions, when requiring data other than certified cost or pricing data, contracting officers must clearly communicate to the contractor the data that will be needed to determine that the proposed price is fair and reasonable. The contracting officer should allow contractors to submit such data in the format consistent with their disclosed estimating practices and shall not require the contractor to use Government price/cost templates, models, or forms. For competitive procurement actions, when requesting data other than certified cost or pricing data, the use of price/cost templates, models, or forms is authorized in those situations where the contracting officer determines, with the concurrence of the Center cost/price analysis subject matter expert, that price reasonableness or cost realism cannot be determined efficiently without the use of the Government template, model, or form; and that there are demonstrated benefits to utilizing this Government template, model, or form that outweigh the offerors’ cost to complete the Government template, model, or form. This written determination shall be included in the contract file and a copy sent to the Headquarters Office of Procurement, Contract and Grant Policy Division.
(a)(4) A contractor that refuses to provide requested data other than certified cost or pricing data may be rendered ineligible for award unless the Head of the Contracting Activity determines otherwise, in accordance with FAR 15.403-3(a)(4). As such, it is important that contractor refusals to provide requested pricing information receive the attention of management at levels higher than the contracting officer, and that contracting officer’s document the extent of their efforts to obtain the requested data. In these circumstances, the basis for the agreed-to price may not be an appropriate basis for comparison in determining price reasonableness in future procurements. Contracting officers should request the necessary data other than certified cost or pricing data again in future procurements of this item/service and not just rely on the prior price as being a valid basis for determining price reasonableness on future procurements.
(b) For other than firm-fixed-price competitions, only data other than certified cost or pricing data necessary to ensure price reasonableness and assess cost realism should be requested. For firm-fixed-price competitions, the contracting officer shall not request any cost data, except for the data specifically required by FAR 22.1103, unless cost analysis is warranted, as permitted by FAR 15.404-1(d)(3). Cost analysis may be warranted in those situations where the price analysis indicated that the requirements may not be fully understood by one or more competing offeror(s) such as when proposed price(s) appear unreasonable or unrealistically low in consideration of the proposed approach(es) giving rise to concerns of poor quality, service shortfalls, or potential default. Under firm-fixed price service contract competitions, labor rate and fringe benefit data may be obtained to be used in future wage determination adjustments under FAR 52.222-41 and FAR 52.222-6. This data, when requested, does not necessarily need to be part of the competition’s price evaluation.
(b)(2) If a certificate of current cost or pricing data is made applicable as of a date other than the date of price agreement, the agreed date should generally be within two weeks of the date of that agreement.
(e)(2)(A) The NASA Technical Evaluation Report Template and Guide provide agency-wide guidance to individuals performing a technical analysis on a contractor’s proposal and are available on the NASA Headquarters Procurement Library at http://prod.nais.nasa.gov/portals/pl/cost_price_audit.html. The NASA Technical Evaluation Report Template shall be used to document the results of all sole source contractor proposal technical evaluations greater than the simplified acquisition threshold. The Director of the Headquarters Office of Procurement, Contract and Grant Policy Division is the approval authority to utilize a template (such as a Center derived technical evaluation web-based system) other than the NASA Technical Evaluation Report Template.
(a)(1)(A) When the required participation of the ACO involves merely a verification of information, contracting officers should obtain this verification from the cognizant DCMA office.
(B) When the cost proposal is for a product of a follow-on nature, contracting officers shall ensure that the following items, at a minimum are considered: actuals incurred under the previous contract, learning experience, technical and production analysis, and subcontract proposal analysis. This information may be obtained through NASA resources or the cognizant DCMA ACO or DCAA.
(C) Before requesting field pricing support, contracting officers should determine what information can be obtained from NASA resources, so as to be able to tailor field pricing support requests to the minimum amount of information truly needed to conduct the cost/price analysis.
(D) Requests for DCAA audit assistance shall be made on NASA Form 1434, Letter of Request for Pricing-Audit-Technical Evaluation Services. DCAA audit requests shall be made in accordance with the following:
(1) Audit requests shall only be made after the CO performs an analysis and concludes that other resources (DCMA, internal analysis, etc.) will not provide the information necessary to determine that the cost is reasonable and realistic.
(2) Audit requests should not be requested for proposed contracts or modifications in an amount less than $10M for Fixed-Price proposals and $100M for Cost-Type proposals unless there are exceptional circumstances which are explained in the audit request.
(3) Audit requests shall not be requested for proposal rate and factor analysis/verification. All such requests should be made through the cognizant DCMA ACO.
(4) Audit requests must be approved and submitted to DCAA only by Center Cost/Price Analysts. Center Cost/Price Analysts shall coordinate all such requests with Headquarters Office of Procurement, Contract and Grant Policy Division.
(5) Center Cost/Price Analysts will work with the DCAA HQ Financial Liaison Advisor (FLA) at email DCAA-FLA-NONDOD@dcaa.mil to arrange contact with field audit offices and facilitate the audit request. Contact Headquarters Office of Procurement, Contract and Grant Policy Division for name and phone number of current DCAA HQ FLA.
(E) Field pricing support requests from DCMA shall be made in accordance with the following:
(1) DCMA field pricing audit requests shall only be made after the CO performs an analysis and concludes that other resources (e.g. internal analysis) will not provide the information necessary to determine that the cost is reasonable and realistic.
(2) Proposal rate and factor analysis/verification and business system status requests shall be requested only by Center Cost/Price Analysts. Center Cost/Price Analysts should first check DCMA’s Consolidated Business Analysis Repository (CBAR) for this information. If information is not in CBAR, request for this information should be to the cognizant DCMA ACO for your particular procurement. If cognizant DCMA ACO is unknown, contact the DCMA NASA Support Desk operated by DCMA NASA Product Operations at email NASA_Support_Desk@dcma.mil or phone 210-295-0121 to obtain contact information for cognizant DCMA ACO.
(3) DCMA pricing support should be requested through the cognizant DCMA ACO for your particular procurement. If cognizant DCMA ACO is unknown, contact the DCMA NASA Support Desk operated by DCMA NASA Product Operations at email NASA_Support_Desk@dcma.mil or phone 210-295-0121 to obtain contact information for cognizant DCMA ACO.
(F) Use of contractor to perform contract audit services.
(1) Except as provided under paragraph (a)(1)(F)(2) of this section, the use of a contractor to perform contract audit services is not allowed at contractor locations where DCAA currently conducts contract audit services. In these situations, the contracting officer should elevate any issues with untimely audit services to the Field Audit Office (FAO) manager and/or Regional Audit Manager (RAM). If additional assistance is needed to obtain timely DCAA services, contracting officers may request such assistance from the Headquarters Office of Procurement, Contract and Grant Policy Division.
(2) In those instances in which DCAA has audit cognizance for a particular contractor yet DCAA is unable to perform contract audit services, contracting officers can use a contractor to perform the required contract audit services in lieu of DCAA.
(i) For proposal, financial capability, and accounting system reviews, interim and final contract billings, contract audit closing statements, requests for equitable adjustments, contract terminations, defective pricing reviews, compliance with Cost Accounting Standards (CAS), earned value management (EVM) systems, and estimating systems reviews.
(ii) For incurred cost audit services, purchasing systems, and other internal controls within the contractor's operational environment, if the portion of the current contractor fiscal year work performed for NASA is more than 50 percent of their business base.
(b)(1)(i)(A) The NASA structured approach for determining profit or fee objectives, described in 1815.404-471 shall be used to determine profit or fee objectives in the negotiation of contracts greater than or equal to the simplified acquisition threshold that use cost analysis and are–
(1) Awarded on the basis of other than full and open competition (see FAR 6.3);
(2) Awarded under NASA Research Announcements (NRAs) and Announcements of Opportunity (AO’s); or
(3) Awarded under the Small Business Innovative Research (SBIR) or the Small Business Technology Transfer Research (STTR) programs.
(B) Although specific agreement on the applied weights or values for individual profit or fee factors shall not be attempted, the contracting officer may encourage the contractor to –
(1) Present the details of its proposed profit amounts in the structured approach format or similar structured approach; and
(2) Use the structured approach method in developing profit or fee objectives for negotiated subcontracts.
(ii) The use of the NASA structured approach for profit or fee is not required for—
(A) Architect-engineer contracts;
(B) Management contracts for operation and/or maintenance of Government facilities;
(C) Construction contracts;
(D) Contracts primarily requiring delivery of materials supplied by subcontractors;
(E) Termination settlements; and
(F) Contracts having unusual pricing situations when the procurement officer determines in writing that the structured approach is unsuitable.
1815.404-470 NASA Form 634.
NASA Form 634 shall be used in performing the analysis necessary to develop profit or fee objectives as required in 1815.404-4(b)(1)(i)(a). Contracting officers shall complete and document the profit or fee analysis in the contract file in accordance with the instruction sheet attached to the NF 634.
(a) The structured approach was designed for determining profit or fee objectives for commercial organizations. However, the structured approach shall be used as a basis for arriving at profit/fee objectives for nonprofit organizations (FAR 31.7), excluding educational institutions (FAR 31.3), in accordance with paragraph (b) of this section. It is NASA policy not to pay profit or fee on contracts with educational institutions.
(b) For contracts with nonprofit organizations under which profit or fee is involved, an adjustment of up to 3 percent of the costs in Block 13 of NASA Form 634 must be subtracted from the total profit/fee objective. In developing this adjustment, it is necessary to consider the following factors:
(1) Tax position benefits.
(2) Granting of financing through letters of credit.
(3) Facility requirements of the nonprofit organization.
(4) Other pertinent factors that may work to either the advantage or disadvantage of the contractor in its position as a nonprofit organization.
(b)(i) Before conducting negotiations requiring installation or Headquarters review, contracting officers or their representatives shall prepare a prenegotiation position memorandum that contains the requirements set forth in 1815.406-170.
(ii) A prenegotiation position memorandum is not required for contracts awarded under the competitive negotiated procedures of FAR 15.3 and 1815.3.
1815.406-170 Content of the prenegotiation position memorandum.
The prenegotiation position memorandum (PPM) should fully explain the contractor and Government objective positions. A Government maximum position may be developed and included along with the Government objective position in the PPM in accordance with Center contracting activity procedures. Where there is a Government objective and a maximum position, the basis for each amount, as well as why it is reasonable, must be explained in detail in the PPM for each element (cost and profit/fee) involved. Since the PPM will ultimately become the basis for negotiation, it should be structured to track to the price negotiation memorandum (see FAR 15.406-3 and 1815.406-3). In addition to the information described in FAR 15.406-1 and, as appropriate, FAR 15.406-3(a), the PPM should address the following subjects, as applicable, in the order presented:
(a) Introduction. Include a description of the acquisition and a history of prior acquisitions for the same or similar items. Address the extent of competition and its results. Identify the contractor and place of performance (if not evident from the description of the acquisition). Document compliance with law, regulations and policy, including JOFOC, synopsis, EEO compliance, and current status of contractor systems (see FAR 15.406-3(a)(4)). In addition, the negotiation schedule should be addressed and the Government negotiation team members identified by name and position.
(b) Type of contract contemplated. Explain the type of contract contemplated and the reasons for its suitability.
(c) Special features and requirements. In this area, discuss any special features (and related cost impact) of the acquisition, including such items as—
(1) Letter contract or pre-contract costs authorized and incurred;
(2) Results of preaward survey;
(3) Contract option requirements;
(4) Government property to be furnished;
(5) Contractor/Government investment in facilities and equipment (and any modernization to be provided by the contractor/Government);
(6) Any deviations, special clauses, or unusual conditions anticipated, for example, unusual financing, warranties, EPA clauses and when approvals were obtained, if required; and
(7) Any risk management issues, e.g., mission success, safety, occupational health, information technology, export control, security, and environmental risks.
(d) Cost analysis. For the basic requirement, and any option, include the following:
(1) A parallel tabulation, by element of cost and profit/fee, of the contractor's proposal and the Government's negotiation objective. The negotiation objective represents the fair and reasonable price the Government is willing to pay for the supplies/services. For each element of cost, compare the contractor's proposal and the Government position, explain the differences and how the Government position was developed, including the estimating assumptions and projection techniques employed, and how the positions differ in approach. Include a discussion of excessive wages found (if applicable) and their planned resolution. Explain how historical costs, including costs incurred under a letter contract (if applicable), were used in developing the negotiation objective.
(2) Significant differences between the field pricing report (including any audit reports) and the negotiation objectives and/or contractor's proposal shall be highlighted and explained. For each proposed subcontract meeting the requirement of FAR 15.404-3(c), there shall be a discussion of the price and, when appropriate, cost analyses performed by the contracting officer, including the negotiation objective for each such subcontract. The discussion of each major subcontract shall include the type of subcontract, the degree of competition achieved by the prime contractor, the price and, when appropriate, cost analyses performed on the subcontractor's proposal by the prime contractor, any unusual or special pricing or finance arrangements, and the current status of subcontract negotiations.
(3) The rationale for the Government's profit/fee objectives and, if appropriate, a completed copy of the NASA Form 634, Structured Approach–Profit/Fee Objective, and DD Form 1861, Contract Facilities Capital Cost of Money, should be included. For incentive and award fee contracts, describe the planned arrangement in terms of share lines, ceilings, and cost risk.
(e) Negotiation approval sought. The PPM represents the Government's realistic assessment of the fair and reasonable price for the supplies and services to be acquired. If negotiations subsequently demonstrate that a higher dollar amount (or significant term or condition) is reasonable, the contracting officer shall document the rationale for such a change and request approval to amend the PPM from the original approval authority.
1815.406-171 Installation reviews.
Each contracting activity shall establish procedures to review all prenegotiation position memoranda. The scope of coverage, exact procedures to be followed, levels of management review, cost/price analyst review, and contract file documentation requirements should be directly related to the dollar value and complexity of the acquisition. The primary purpose of these reviews is to ensure that the negotiator, or negotiation team, is thoroughly prepared to enter into negotiations with a well-conceived, realistic, and fair plan.
(a) When a prenegotiation position has been selected for Headquarters review and approval, the contracting activity shall submit to the Office of Procurement, Program Operations Division, one copy each of the prenegotiation position memorandum, the contractor's proposal, the Government technical evaluation, and all pricing reports (including any audit reports).
(b) The required information described in paragraph (a) of this section shall be furnished to Headquarters as soon as practicable and sufficiently in advance of the planned commencement of negotiations to allow a reasonable period of time for Headquarters review. Electronic submittal is preferred.
(c) When a procurement action has been selected for a Headquarters led cost/price analysis peer review, the contracting activity shall submit to the Office of Procurement, Contract and Grant Policy Division a copy of the procurement schedule. Based upon this information, the cost/price analysis peer review team lead will contact the contracting officer to establish the peer review team’s review schedule. Cost/price analysis peer reviews assess the cost/price analysis approach with special emphasis given to ensure a complete and thorough analysis is completed and documented.
(a)(i) A PNM is not required for a contract awarded under competitive negotiated procedures. However, the information required by FAR 15.406-3 shall be reflected in the evaluation and selection documentation to the extent applicable.
(ii) When the PNM is a "stand-alone" document, it shall contain the information required by the FAR and NFS for both PPMs and PNMs. However, when a PPM has been prepared under 1815.406-1, the subsequent PNM need only provide any information required by FAR 15.406-3 that was not provided in the PPM, as well as any changes in the status of factors affecting cost elements (e.g., use of different rates, hours, or subcontractors; wage rate determinations; or the current status of the contractor's systems). In these situations, the PPM will accompany the PNM during the review process.
(e)(1) Make-or-buy programs should not include items or work efforts estimated to cost less than $500,000.
(a) The contracting officer shall insert the provision at 1852.215-78, Make-or-Buy Program Requirements, in solicitations requiring make-or-buy programs as provided in FAR 15.407-2(c). This provision shall be used in conjunction with the clause at FAR 52.215-9, Changes or Additions to Make-or-Buy Program. The contracting officer may add additional paragraphs identifying any other information required in order to evaluate the program.
(b) The contracting officer shall insert the clause at 1852.215-79, Price Adjustment for "Make-or-Buy" Changes, in contracts that include FAR 52.215-9 with its Alternate I or II. Insert in the appropriate columns the items that will be subject to a reduction in the contract value.
(c) When the solicitation requires the submission of certified cost or pricing data, the contracting officer shall include 1852.215-85, Proposal Adequacy Checklist, in the solicitation to facilitate submission of a thorough, accurate, and complete proposal.
Notifications, Protests, and Mistakes
1815.504 Award to successful offeror.
The reference to notice of award in FAR 15.504 on negotiated acquisitions is a generic one. It relates only to the formal establishment of a contractual document obligating both the Government and the offeror. The notice is effected by the transmittal of a fully approved and executed definitive contract document, such as the award portion of SF 33, SF 26, SF 1449, or SF 1447, or a letter contract when a definitized contract instrument is not available but the urgency of the requirement necessitates immediate performance. In this latter instance, the procedures for approval and issuance of letter contracts shall be followed.
1815.505 Preaward debriefing of offerors.
The NASA Procurement Debriefing Guide provides agency-wide guidance for preaward debriefings and is available at: http://prod.nais.nasa.gov/portals/pl/documents/NASA_Debriefing_Guide.pdf
(a) When an acquisition is conducted in accordance with the Major System acquisition procedures in Part 1834 and multiple offerors are selected, the debriefing will be limited in such a manner that it does not prematurely disclose innovative concepts, designs, and approaches of the successful offerors that would result in a transfusion of ideas.
(b) When Phase B awards are made for alternative system design concepts, the source selection statements shall not be released to competing offerors or the general public until the release of the source selection statement for Phase C/D without the approval of the Assistant Administrator for Procurement. Requests for approval should be submitted through the Procurement Operations Division.
Renewal proposals, (i.e., those for the extension or augmentation of current contracts) are subject to the same FAR and NFS regulations, including the requirements of the Competition in Contracting Act, as are proposals for new contracts.
(a)(6) Information titled "Guidance for the Preparation and Submission of Unsolicited Proposals" is available on the Internet at http://prod.nais.nasa.gov/pub/pub_library/unSol-Prop.html. A deviation is required for use of any modified or summarized version of the Internet information or for alternate means of general dissemination of unsolicited proposal information.
(a) NASA will not accept for formal evaluation unsolicited proposals initially submitted to another agency or to the Jet Propulsion Laboratory (JPL) without the offeror's express consent.
(b)(i) NASA Headquarters and each NASA field installation shall designate a point of contact for receiving and coordinating the handling and evaluation of unsolicited proposals.
(ii) Each installation shall establish procedures for handling proposals initially received by other offices within the installation. Misdirected proposals shall be forwarded by the point of contact to the proper installation. Points of contact are also responsible for providing guidance to potential offerors regarding the appropriate NASA officials to contact for general mission-related inquiries or other preproposal discussions.
(iii) Points of contact shall keep records of unsolicited proposals received and shall provide prompt status information to requesters. These records shall include, at a minimum, the number of unsolicited proposals received, funded, and rejected during the fiscal year; the identity of the offerors; and the office to which each was referred. The numbers shall be broken out by source (large business, small business, university, or nonprofit institution).
1815.606-70 Relationship of unsolicited proposals to NRAs.
An unsolicited proposal for a new effort or a renewal, identified by an evaluating office as being within the scope of an open NRA, shall be evaluated as a response to that NRA (see 1835.016-71), provided that the evaluating office can either:
(a) State that the proposal is not at a competitive disadvantage, or
(b) Give the offeror an opportunity to amend the unsolicited proposal to ensure compliance with the applicable NRA proposal preparation instructions. If these conditions cannot be met, the proposal must be evaluated separately.
1815.609-70 Limited use of proposals.
Unsolicited proposals shall be evaluated outside the Government only to the extent authorized by, and in accordance with, the procedures prescribed in, 1815.207-70.
1815.670 Foreign proposals.
Unsolicited proposals from foreign sources are subject to NPD 1360.2, Initiation and Development of International Cooperation in Space and Aeronautics Programs.
1815.7001 NASA Ombudsman Program.
NASA's implementation of an ombudsman program is in NPR 5101.33, Procurement Advocacy Programs.
1815.7002 Synopses of solicitations and contracts.
In all synopses announcing competitive acquisitions, the contracting officer shall indicate that the clause at 1852.215-84, Ombudsman, is applicable. This may be accomplished by referencing the clause number with the associated link.
1815.7003 Contract clause.
The contracting officer shall insert a clause substantially the same as the one at 1852.215-84, Ombudsman, in all solicitations (including draft solicitations) and contracts. Use the clause with its Alternate I when a task or delivery order contract is contemplated.