# AFFARS PART 5315Contracting by Negotiation

- PART 5315
  Contracting by Negotiation

- 5315.002 Types of Negotiations

- 5315.101-1 Tradeoff Process

- 5315.102 Oral Presentations

- SUBPART 5315.2 — SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION

- 5315.204-5 Part IV – Representations and Instructions

- 5315.209 Solicitation Provisions and Contract Clauses

- SUBPART 5315.3 — SOURCE SELECTION

- 5315.300 Scope of Subpart
- 5315.303 Responsibilities
- 5315.304 Evaluation Factors and Significant Subfactors
- 5315.305 Proposal Evaluation
- 5315.306 Exchanges with Offerors After Receipt of Proposals
- 5315.308 Source Selection Decision

- SUBPART 5315.4 — CONTRACT PRICING

- 5315.402 Pricing Policy
- 5315.403 Obtaining Cost or Pricing Data. (No Text)

- 5315.403-1 Prohibition on Obtaining Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. 254b)
- 5315.403-4 Requiring Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. 254b)
- 5315.404-4 Profit
- 5315.406-3 Documenting the Negotiation

- 5315.407 Special Cost or Pricing Areas

- 5315.407-90 Contract Audit Follow-Up (CAFU)
- 5315.407-91 Formula Pricing Agreements
- 5315.407-4 Should-cost Review

- SUBPART 5315.5 — PRE-AWARD, AWARD, AND POST-AWARD NOTIFICATIONS, PROTESTS, AND MISTAKES

- 5315.506 Post-award Debriefing of Offerors

- SUBPART 5315.6 — UNSOLICITED PROPOSALS

- 5315.606 Agency Procedures

PART 5315
Contracting by Negotiation

[Revised September 3, 2010]

5315.002 Types of Negotiations
See MP5315.002 for notification requirements when issuing request for proposals for Air Force source selection or a competitive negotiation for all acquisition estimated to be greater than $100M.

5315.1 -- SOURCE SELECTION PROCESSES AND TECHNIQUES

5315.101-1 Tradeoff Process

(a) When using Performance Price Tradeoff (PPT) past performance shall be evaluated consistent with MP5315.305, paragraphs 5.5.2 and 5.6.2.1.

See IG5315.101-1 for guidance on PPT.

5315.102 Oral Presentations

See IG5315.102 for guidance on Oral Presentations.

SUBPART 5315.2 — SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION

5315.204-5 Part IV – Representations and Instructions

(b) See IG5315.204-5(b) for guidance on preparing Section L for source selections.

(c) See IG5315.204-5(c) for guidance on preparing Section M for source selections.

5315.209 Solicitation Provisions and Contract Clauses

(h) Do not include FAR clause 52.215-8, Order of Precedence-Uniform Contract Format, in construction contracts.

(S-90) The contracting officer may include a provision substantially the same as the provision at 5352.215-9000, Facility Clearance, in solicitations that include a DD Form 254, Contract Security Classification Specification.
(S-91) The contracting officer may include a provision substantially the same as the provision at 5352.215-9001, Notice of Pre-bid/Pre-proposal Conference, in the request for proposal when appropriate. When access to classified documents is contemplated, the contracting officer may include a provision substantially the same as the provision with its Alternate I.
(S-92) The contracting officer may not award or modify a contract that includes a special contract requirement commonly referred to as “Tail Up” or “Last Lot Inefficiency,” the purpose of which is to recognize costs related to a loss of productivity for the direct labor workforce or increased supplier costs as a production line near nears shutdown, without the express written approval of the DAS(C) or ADAS(C). Requests for approval to use such a special contract requirement shall be submitted under signature of the SCO or SCCO and forwarded to SAF/AQC at safacqk.workflow@pentagon.af.mil for consideration of approval by the DAS(C) or ADAS(C). These requests must be made not less than 60 days prior to release of a solicitation or a proposed contract modification and include a copy of the special contract requirement and any supporting documentation.

SUBPART 5315.3 — SOURCE SELECTION

5315.300 Scope of Subpart

See MP5315.3 for required Air Force Source Selection responsibilities and procedures.

5315.303 Responsibilities

(a)(1) The contracting officer is the Source Selection authority (SSA) for acquisitions of $10M or less. Except as provided in paragraph (4) below, contracting officer is the SSA for acquisitions of any dollar value using Performance Price Tradeoff (PPT) or Lowest Price Technically Acceptable (LPTA) procedures, unless the acquisition plan approving authority designates otherwise.

(2) SSAs for ACAT acquisitions greater than $10M, PEO/CM acquisitions and acquisitions using other than PPT or LPTA procedures are listed below:

(i) For non-space related ACAT I programs, ASAF(A) is the SSA.

(ii) For space related ACAT I programs, USECAF is the SSA.

(iii) For ACAT II and III programs, the PEO/DAO is the SSA.

(iv) For acquisitions in the AFPEO/CM portfolio, the PEO is the SSA.

(3) SSAs for Other Contracting are listed below (Except for AFMC):

(i) For Wing-level acquisitions $10M - $100M and non-PEO/CM programs above $100M, the SSA shall be the Wing Commander or comparable Army position (for USAFE), and in the rank of 0-6 or above.

(ii) For MAJCOM Headquarters/DRUs/FOAs acquisitions $10M - $100M and non-PEO/CM programs above $100M, the SSA shall be the Headquarters Director, or DRU/FOA equivalent wing commander, having program responsibility, and in the rank of 0-6/civilian equivalent or above.

(4) SSAs for A-76 competitions are listed below:

(i) AFPEO/CM, for those competitions within the PEO/CM portfolio, unless otherwise designated by the PEO/CM.

(ii) For all other A-76 competitions greater than $10M, the MAJCOM/FOA/DRU Vice Commander (CV) shall appoint the SSA. The MAJCOM/FOA/DRU/CV must be a General Officer or Senior Executive Service Civilian. If the MAJCOM/FOA/DRU/CV does not meet this criterion, the SSA appointment authority is the Component Competitive Sourcing Official (CCSO).

(5) SSAs, if delegated in paragraph 2, 3 or 4 above, shall be no lower than the contracting officer. For those acquisitions for which the SSA is the SCO or SCCO, clearance will be accomplished IAW 5301.9001(f)(4).

(b) For major weapon system (ACAT) or major service (Category I and IA) acquisitions, senior leaders (O5s/civilian equivalents and above) are prohibited from performing multiple leadership roles on a source selection team. A senior leader functioning as an advisor to a source selection team shall not participate as an evaluator.

See IG5315.303 for guidance on preparing Source Selection Plans.

5315.304 Evaluation Factors and Significant Subfactors

See MP5315.304 for required Air Force Source Selection factors.

5315.305 Proposal Evaluation

See MP5315.305 for required Air Force proposal evaluation procedures.

(a) (i) Offerors are required to meet all solicitation requirements, such as terms and conditions, representations and certifications, and technical requirements, in addition to those identified as evaluation factors or subfactors. Failure to meet a requirement may result in an offer being ineligible for award. Offerors must clearly identify any exception to the solicitation terms and conditions and provide complete accompanying rationale. The instructions to offerors and evaluation criteria (Sections L and M or equivalent provisions of the solicitation) shall inform offerors of this condition for award.

(ii) Except for cost studies under OMB Circular A-76, source selection teams using the Lowest Price Technically Acceptable (LPTA) or Performance Price Tradeoff (PPT) process may select an evaluation approach where all proposals are evaluated against the most important non-price factor first, and only those proposals meeting the requirements of that factor proceed to the next phase of the evaluation. IG5315.101-1 provides examples of various evaluation approaches. Ensure the approach selected is clearly communicated in the solicitation and followed throughout the evaluation process.

See IG5315.305 for guidance on documenting the proposal analysis.

(2) Past performance evaluation. Informational Guidance on conducting the past performance evaluation is available in IG5315.305(a)(2).

(c) Non-government Personnel.

(1) Federally Funded Research and Development Center (FFRDC) employees. A FFRDC employee may serve as a source selection team member including membership in a Source Selection Advisory Council (SSAC) or Source Selection Evaluation Team (SSET); however, an FFRDC employee may not serve as a member of the Performance Confidence Assessment Group, as chairperson of a SSAC or SSET, or as an SSA. If FFRDC personnel are used, subparagraph 5315.305(c)(2)(iii) below applies.

(2) Advisors. Non-government advisors may be used as necessary to assist in the source selection evaluation. Although advisors may assist in the evaluation and provide input regarding the strengths, deficiencies, and weaknesses in proposals, they shall not determine ratings or rankings of offerors’ proposals. Non-government advisors shall not be the SSA, Chairperson of the SSET/SSAC or a member of or advisor to the Performance Confidence Assessment Group. If contractor personnel are used as advisors the following applies:

(i) Access to offeror proposals shall be restricted to only those portions for which the individual’s expertise is required in the evaluation (e.g., software support contractor only reviews software hours proposed).

(ii) The contracting officer shall ensure that the necessary approval has been obtained in accordance with FAR 37.2.

(iii) The solicitation shall list contractors who will be used, provide notice to prospective offerors that such contractor personnel will be used and the manner in which they will be used, and provide the offeror an opportunity to object to the release of proposal information (see (v) below).

(iv) Appropriate Organizational Conflict of Interest (OCI) clauses shall be included under the contract through which the non-government personnel are provided and those non-governmental personnel shall not have any financial interests with any of the offerors.

(v) If a competing offeror objects to the release of their proposal information to any non-government advisor, the contracting officer shall make a determination whether the non-government advisor(s) shall be permitted to participate in the source selection. The contracting officer shall inform the objecting offeror of the final determination, and, if the use of non-government advisors has been changed, shall inform all offerors of the change.

(3) Foreign Military Sales (FMS) customers and international cooperative project partners. The FMS customers may participate in the source selection process as advisors only. In addition, the contracting officer shall not release cost information or any part of an offeror’s cost proposal to representatives of FMS customers. International cooperative project partners shall not serve as the chairperson of the evaluation team or any segment thereof or as the SSA.

5315.306 Exchanges with Offerors After Receipt of Proposals

See MP5315.306 for Air Force requirements regarding exchanges with offerors.

(a)(2) If adverse past performance information, to which the contractor has had no opportunity to respond, is the reason an offeror may not receive an award without discussions or be excluded from the competitive range, the offeror shall be provided an opportunity to address the information.

(c)(1) The SSA shall establish the competitive range.

5315.308 Source Selection Decision

See MP5315.308 for required Air Force Source Selection decision activities and documentation.

See IG5315.308 for guidance on preparing Source Selection Decision Documents.

SUBPART 5315.4 — CONTRACT PRICING

5315.402 Pricing Policy

(a) For firm-fixed price (FFP) competitive contracts where adequate price competition is anticipated, approval to obtain information other than cost or pricing data from offerors shall be obtained from the Clearance Approval Authority (See 5301.9001(f)). Requests should address the following:

(i) Description of effort including estimated dollar value;

(ii) Discussion of why competitive forces are anticipated to be or were found to be inadequate;

(iii) Description of the information being requested from offerors;

(iv) Specific alternatives to obtaining this information that were considered or used and why those alternatives were not employed or their use was unsuccessful;

(v) Detailed justification for why the information is needed, why the information is obtained from offeror(s), and the impact to the evaluation if the information is not obtained; and

(vi) Copy of solicitation language (i.e., Instructions to Offerors, Section L, or equivalent) or draft evaluation notice describing the type of information being requested from offerors.

5315.403 Obtaining Cost or Pricing Data. (No Text)

5315.403-1 Prohibition on Obtaining Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. 254b)

(c) Standards for exceptions from cost or pricing data requirements.

(3) Commercial Items.

(B) Using the Mandatory Procedures detailed in MP5315.403-1(c)(3), MAJCOM, DRU, and AFISRA SCOs shall submit an annual report for contracts, subcontracts, or modifications expected to have a total value of $15,000,000 or more identifying cost or pricing data exceptions for commercial item procurements (FAR 15.403-1(b)(3)).

(4) Waivers.

(A) Follow the Mandatory Procedures at MP5315.403-1(c)(4)(A) to submit a request for waiver of the Cost or Pricing Data requirement through the MAJCOM/DRU SCO to the HCA (see 5301.601(a)(i)). The request shall include a determination explaining the details as to (1) why the property or services cannot be reasonably obtained without the waiver; (2) the methodology to be used in determining whether the price is fair and reasonable without submission of cost or pricing data; and (3) how the government will benefit from the granting of the waiver.

(B) Using the Mandatory Procedures detailed in MP5315.403-1(c)(4), MAJCOM, DRU, and AFISRA SCOs shall submit an annual report identifying cost or pricing data waivers (FAR 15.403-1(b)(4)) for contracts, subcontracts, or modifications expected to have a total value of $15,000,000 or more.

5315.403-4 Requiring Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. 254b)

(a)(2)(i) Follow the Mandatory Procedures at MP5314.403-4 to submit a Determination and Findings for HCA signature authorizing the contracting officer to obtain cost or pricing data for actions below the pertinent threshold in FAR 15.403-4(a)(1), provided the action exceeds the simplified acquisition threshold.

5315.404-3 Subcontract Pricing Considerations

See IG5315.404-3 for additional subcontract pricing considerations.

5315.404-4 Profit

(c)(2)(90) Chief of the Contracting Office may approve written requests for the use of an Alternate Structured Approach. This authority may not be re-delegated.

5315.406-3 Documenting the Negotiation

(a) See IG5315.406-3 for a Price Negotiation Memorandum (PNM) Checklist that may be used to ensure PNMs contain all required information.
5315.407 Special Cost or Pricing Areas

5315.407-90 Contract Audit Follow-Up (CAFU)

Follow the Mandatory Procedures at MP5315.407-90 for conducting contract audit follow-up (CAFU).

5315.407-91 Formula Pricing Agreements

Formula Pricing Agreements (FPAs), sometimes referred to as spare parts pricing agreements, may be used by contracting officers to establish the pricing methodology for more than one future contract action. They may also be used to establish a pricing methodology for corporate contracts and strategic sourcing agreements. While use of FPAs is optional, contracting officers shall follow the Mandatory Procedures at MP5315.407-91 to establish an FPA.

5315.407-4 Should-cost Review

(b) Program should-cost review.

(4) The contracting office organizes and manages the program should-cost review. The team chief is responsible for the completion of the should-cost report.

SUBPART 5315.5 — PRE-AWARD, AWARD, AND POST-AWARD NOTIFICATIONS, PROTESTS, AND MISTAKES

5315.506 Post-award Debriefing of Offerors

(d) Post-award debriefings provide offerors an explanation of why they were either excluded from the competitive range or not selected for contract award. Open and frank exchanges of information with offerors after award are necessary in order to demonstrate the fairness and integrity of the source selection process and reduce unnecessary protests. Debriefings to all successful and unsuccessful offerors shall provide sufficient information to effectively convey the basis of the SSA’s integrated assessment and selection decision and to assist offerors in improving future proposals. Follow Mandatory Procedures at MP5315.5 for conducting post-award debriefings.

SUBPART 5315.6 — UNSOLICITED PROPOSALS

5315.606 Agency Procedures

See the Mandatory Procedures at MP5315.606 for review of unsolicited proposals.