210R80001
EPA
Project
Management
XNDTHE
Procurement
Process
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Project
Management
AND THE
Procurement
Process
A Seminar Workshop
for
Project Officers and
Other Technical Personnel
U.S. Environmental Protection Agency
Washington, D.C. 20460
1980EDITION
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TABLE OF CONTENTS
INTRODUCTION
Page
Purpose 1
Objective 1
Scope of the Seminar Workshop 2
Workshop Format, Content and Scheduling 2
Post-Seminar Workshop Critique 2
Information Baselines 2
About This Handbook 3
Participant Preparation and Daily Schedule 3
TOPIC I. THE EPA MISSION-ORIENTED PLANNING AND
REPORTING SYSTEM 5
I. EPA Formal Planning and Reporting
System (FPRS): The Big Picture 5
II. Current EPA Concerns 9
III. Organization and Responsibilities 10
CHARTS: Office of Planning and Management 11
The Procurement Organization 12
Responsibilities in the Procurement Process 14
INTRODUCTION TO LEARNING THROUGH LISTENING 15
VIGNETTE NO. 1: CHITCHAT . . . 'BOUT THIS AND THAT ... 16
CHART: The EPA Procurement and Contracting Environment
(For Competitively Solicited Procurements) 18
TOPIC II. THE EPA PROCUREMENT AND CONTRACTING
ENVIRONMENT: FORM AND FUNCTION 19
I. The Essential Questions of an Effective Procurement
Process 19
II. Relating the Essential Questions to Pre-Award
Planning and Post-Award Performance Phases 19
CHARTS: The Procurement Process Optimum Leadtimes
New Competitive Requirements 20
New Sole Source Requirements 21
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TOPIC El. THE PROCUREMENT REQUEST RATIONALE:
TRIGGER FOR BUYING 23
I. The Procurement Request/Requisition
(EPA Forms 1900-8 and 1900-8A) 23
II. . The Procurement Request Rationale 24
m. Isolating Two Elements of the Procurement Request
Rationale: Statements of Work and Evaluation
Criteria 26
CHART: Statement of Work Preparation (One Approach Through
Building Blocks) 28
VIGNETTE NO. 2: OVERHEARD OVER COFFEE 31
TOPIC HI. THE PROCUREMENT REQUEST RATIONALE: TRIGGER
FOR BUYING (cont'd) 33
IV. Cost Estimate: Independent and Other 33
VIGNETTE NO. 3: WOULD YOU TAKE ISSUE OR AGREE WITH ... 35
TOPIC IV. CONTRACT TYPE SELECTION: DEALING WITH
RISK AND REALISM 37
I. The Nature of Contracts 37
n. Cost Risk and Cost Realism 37
III. Contract Types: An Overview of Fundamentals 37
CHART: Procurement Methods & Contract Types 39
TOPIC V. THE COMPETITIVE AND NONCOMPETITIVE ENVIRONMENTS
FOR RESEARCH, STUDY, AND INVESTIGATIVE EFFORTS 41
I. The Competitive Environment 41
II. The Noncompetitive Environment 42
IU. Identification of Interested and Capable Sources 44
IV. Unsolicited Proposals: Treatment, Assessment,
. and Disposition 44
COMPTROLLER GENERAL DECISION B-183487, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES LOCAL NO. 3347, AFL-CIO 47
COMPTROLLER GENERAL DECISION B-166506, ENVIRONMENTAL PRO-
TECTION AGENCY SOLE SOURCE PROCUREMENTS 51
ii
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TOPIC VI. REQUESTS FOR PROPOSALS, SOURCE EVALUATION
AND ASSESSMENT, THE CONDUCT OF NEGOTIA-
TIONS AND TREATMENT OF UNSUCCESSFUL
OFFERORS: MAJOR CONSIDERATIONS IN THE
AWARD-MAKING PROCESS 55
I. The Solicitation Process 55
II. Project/Technical Personnel Impact on the
Solicitation and Award-Making Process 56
COMPTROLLER GENERAL DECISION B-l74589, ENVIROTRONICS 59
VIGNETTE NO. 4: KEEPING IN TOUCH . . . MEANS SO MUCH 65
III. Treatment of Unsuccessful Offerers 70
COMPTROLLER GENERAL DECISION B-l88542, ROCKWELL
INTERNATIONAL CORPORATION 72
ECOSYSTEMS, INC., TREATMENT OF LATE PROPOSALS 75
TOPIC VII. PERFORMANCE ARENA POSTULATES, ORIENTATION
CONFERENCES, AND PROGRESSING SYSTEMS
AND SURVEILLANCE 79
I. Some Contract Performance Arena Postulates 79
II. Post-Award Orientation Conferences 80
III. Progressing Systems and Surveillance 81
IV. Technical Administration and Technical
Direction: Understanding the Difference 82
TOPIC VIII. CONTRACT MODIFICATIONS, HANDLING CASES OF
UNSATISFACTORY PERFORMANCE, AND CONTRACT
COMPLETION AND CLOSEOUT 83
I. The Contract Modifications Environment 83
CHART: LANGUAGE OF CONTRACT MODIFICATIONS 85
II. Handling Cases of Unsatisfactory Performance 88
III. Fundamental Actions of Contract Completion
and Closeout 88
VIGNETTE NO. 5: BUY NOW . . . PAY LATER 91
VIGNETTE NO. 6: WHO'S TO ACT ... AFTER THE FACT? 93
iti
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SEMINAR WORKSHOP GUIDE
INTRODUCTION
Purpose
Conducted over a 3-day period, this 21-hour seminar workshop is presented
mainly to Project Officers and other technical personnel. Its purpose is twofold:
• To examine the structured roles and responsibilities of technical and
procurement personnel through which program management and the
procurement process satisfy EPA requirements and needs.
• To provide information and examples illustrating the necessary interface of
the technical and procurement communities in order to meet EPA's mission
and get the job done.
Objective
Within the stated purpose, our principal objective is to help improve the
procurement process byi
• Clarifying the relationship between the Project Officer and the
Contracting Officer through the sharing of information, experience, and
on-the-job perspectives.
• Enhancing the Project Officer's understanding of how project actions
affect the procurement process.
• Providing information and examples that identify the tools and techniques
available to the Project Officer for managing contracts.
• Illustrating how an understanding of and proper use of the procurement
process can benefit performance and result in shorter lead times.
Few environments have as great a need for mutual understanding and
cooperation among EPA personnel as the one that exists for the purpose of
satisfying technical requirements through the contracting process. This seminar
workshop is designed to enhance such understanding and cooperation.
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Scope of the Seminar Workshop
At the outset of this workshop, a few words of caution are in order. First,
while most EPA funds are expended through the placement of grants, this workshop
is limited to satisfaction of requirements through the process of contracting.
Second, the EPA project and procurement processes involve a series of deliberate
events, activities and decisions that collectively translate requirements into
contracts. EPA's requirements range from the very simple to the highly complex,
and this implies an equally wide range of project and procurement management
options. Not all of these, of course, can be treated in a 21-hour program.
It takes years of education, training, and experience to develop excellence in
scientific, engineering and technical management. The same is true in business
management. This being the case, what can one expect from a 21-hour program?
In part, the answer depends on one's background and experience. For the
uninitiated, the program provides helpful insights into the technical/procurement
interface. For the more experienced practitioner, the program provides a medium
for understanding and dealing with many of the regulatory details and structural
requirements that are basic to satisfying EPA's project needs through its
procurement process.
Workshop Format, Content, and Scheduling
A workshop is a brief, intensive program for a relatively small group of people
in a given field that emphasizes participation in problem-solving efforts. The
format, content, and scheduling of the seminar are structured to stress
participation in problem-solving and to relate program information to the "real"
world. Workshop media have been designed to encourage seminar participants to
grapple with everyday problems, as well as to understand the EPA project
management and procurement processes.
Post-Seminar Workshop Critique
At the conclusion of the program, participants will be given time to complete
the workshop critique form included in this handbook. Thoughtful attention to its
completion will help others in determining how well the seminar responded to
participant needs and achieved its objectives.
Information Baselines
Materials for this seminar workshop were prepared from the following:
• EPA Procurement Regulations (EPPR), implementing and supplementing
the Federal Procurement Regulations, (FPR); Second Edition, 1964, with
most recent revisions thereto. -//. , /
* • ~ ,' X,.
• EPA Contracts Management Manual, July 2, 1974, with Transmittals
through Number 28, dated February 15, 1980.
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• EPA Procurement Information Notices.
• EPA Operating Planning Manual.
• EPA Guide for Contract Project Officers, April 1980.
About This Handbook
This handbook contains all the materials required for participants to follow the
classroom presentations and participate in discussions, case studies and workshop
exercises. Visual aids, scripts for audio exercises, and case studies are integrated
within the topical presentation. Certain key references have been included within
the reference material section, which follows the course outline. A critique form
is included as the last page of the handbook.
Participant Preparation and Daily Schedule
A preparation assignment for each day will be made in class. Daily schedules
provide for seven hours of classroom time, at hours suited to specific sessions and
locations. Outside reading will be kept to the minimum needed to cover the
materials, but adequate materials are provided for those who wish to study in
greater depth.
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TOPIC I. THE EPA MISSION-ORIENTED PLANNING AND REPORTING
SYSTEM: AN OVERVIEW*
THE EPA FORMAL PLANNING AND REPORTING
SYSTEM
A sysie/H through mfin:h major directions anil gimls at Agency pragrjrm arc detennitieii.
ti. ianl sutviced via s/jt»,i(axJ wor.vduns lor piogiam pluming and builyet uxecutiun.
FPRS BASK COMPONENTS:
1. STRATEGIES
2. PRtVltW
3. BUDGET FORMULATION
I {^"OPERATING PLANS IPBOGRAM^PLANSI j
5 FORMAL REROUTING AND PROGRESS ASSESSMENT
6. ADMINISTRATIVE FUND AND POSITIONS CONTROL
7. PROGRAM EVALUATIONS
L*. CONTRACT PLANNING REQUIREMENTS
• CONTRACT CONSOLIDATION
• DISTRIBUTING PROCUREMENT ACTIONS MORE EVENLY
• INCREASING COMPETITIVE PROCUREMENTS
• UTILIZING OTHER CONTRACTING IMPROVEMENTS - ,-'"-
• IDENTIFYING OPPORTUNITIES FOR SMALL
BUSINESS'. MINORITY, AND B(al FIRMS
I. EPA FORMAL PLANNING AND REPORTING SYSTEM (FPRS): THE BIG
PICTURE
A. The FPRS Framework
1. Determines and enunciates the major directions and goals of the EPA
program
2. System features are designed to serve
a. Administrator and Deputy Administrator requirements in major
decisionmaking and followup
b. Requirements for management of EPA's decentralized structure
This topic was developed from portions of the EPA Operating Planning Manual,
February 10, 1976, as revised through Transmittal Number 4, December 28, 1976.
This manual is an extremely comprehensive articulation of the EPA Formal
Planning and Reporting System (FPRS) and includes discussion of the entire
planning cycle, particularly the Preview and Budget Formulation process.
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c. Necessary resource control requirements
d. Regional requirements
B. FPRS Basic Components
1. Strategies: description and evaluation of long-term (two to five
years) objectives of each EPA program in terms of substantive
environmental problems it is trying to address
2. Preview: annual review of EPA strategies, objectives, priorities, and
problem areas prior to formulation of budget submission to the Office
of Management and Budget (OMB)
3. Budget Formulation: translation of EPA-developed objectives from
the Preview into specific budget proposals to be submitted to OMB
4. Operating Plans (Program Plans): detailed annual outline for
attaining specific accomplishments within available resources
5. Formal Reporting and Progress Assessment: the EPA mechanism by
which status of outputs and activity indicators specified in the
approved operating plan is transmitted to Headquarters
6. Administrative Fund and Positions Control: Advices of Allowances
are EPA's principal mechanism for control of resources in approved
operating plans
7. Program Evaluations: conducted in key areas during a year, they
provide for determining efficiency and effectiveness of programs
C. Operating Planning Manual Instructions Applicability
1. All Allowance Holders
2. All Responsible Planning and Implementation Offices (RPIOs)
D. FPRS Basic Component No. 4 (Operating/Programs Plan Requirements)
1. Among the nine overall requirements, No. 8 is for Contract Planning.
2. From EPA Operating Planning Manual, Chapter 6, paragraph 2.h., A
Means to Achieve Shorter Lead-Times:
"Contract Planning Requirements
a. A contract planning and review system has been instituted to
enable the Contracts Management Division of the Office of
Administration to assist RPIOs in:
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• Taking advantage of opportunities for contract consolidation,
thereby reducing the number of contracts required;
• Distributing procurement actions more evenly throughout the
year in order to reduce unobligated balances which are either
lost to the Agency or carried over to the next fiscal year;
• Increasing the use of competitive, rather than sole source,
procurements which may result in more favorable contract
negotiations;
• Utilizing other contracting improvements.
b. Each RPIO must submit contract planning data for each allowance
holder. For the Office of Research and Development, separate
contracting planning packages should be submitted for each
responsibility center. This is necessary to adequately account for
the large amount of funds represented by a single allowance
holder.
c. Contract planning data is required only for those contract actions
administered by the CMD and those contracts involving prior year
carryover funds as well as current year funds.
d. OPM develops an Agency-wide contract plan based on planning
data from each allowance holder.
e. The contract plans portion of the program plan submission consists
of:
• A time-phased summary of commitments planned by each
allowance holder for each quarter of the upcoming budget year.
• A descriptive data sheet for each planned contract of $100,000
or more.
f. The contract plans will be phased according to the projected
quarter of the fiscal year in which the funds will be recorded as
commitments in the CMD's computer system (i.e., the point in
time when the complete package of procurement documentation is
received in CMD).
g. Although contract plans are based upon commitments, it should be
recognized that one of the objectives of this endeavor is to
improve the rate of contract obligations. Therefore, contract
plans should be formulated with an awareness that procurement
actions have an average lead time of 120 days from commitment
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to obligation for noncompetitive procurements and an average
lead time of 145 days for competitive procurements. Therefore,
under the fiscal year of October 1-September 30, all planned
procurement requests should be received by CMD by May 18,
1976*. Only emergency requirements (e.g., those in support of
court ordered deadlines) should be submitted to CMD after the
cutoff dates for obligation during the current fiscal year. Any
commitments planned for the fourth quarter of the fiscal year will
have little, if any, chance of being obligated by the end of the
fiscal year. Therefore, these procurement actions should cite FY
1977 funds. This is particularly significant for the Agency and
Regional Management and Enforcement Appropriations, which are
appropriated for one year only. Fourth quarter commitments in
these appropriations will be examined closely, and
recommendations for reallocations made if there is no assurance
that they will be obligated. Careful contract planning is also
needed for the R&D, Energy R&D, and Abatement and Control
Appropriations, where the amounts of carryover are scrutinized
even though the funds are appropriated for more than one year.
h. A separate data sheet is to be prepared for each planned contract
when the total cost of the procurement, including all options and
funding increments in FY 1977 and subsequent years, is
anticipated to equal or exceed $100,000*. For example, an
allowance holder may plan to commit $75,000 in FY 1977 for the
basic contract and $25,000 in FY 1978 to exercise an option on the
contract; or a funding increment of $90,000 may be planned for
commitment in FY 1977 as the first of three funding increments
in a multiyear contract with a total cost of $250,000. In each of
these cases, a data sheet is needed, even though each commitment
in FY 1977 is less than $100,000, because the total contract is
anticipated to equal or exceed $100,000.
i. In cases where more than one allowance holder will be issuing
funds for a procurement action where the total cost equals or
exceeds $100,000, a lead office should be determined by the
offices involved. The lead allowance holder should submit a data
sheet which will identify all the sources of funding, amounts, and
commitment plan for each participant.
j. Quarterly updates of contract plans are also required."
*Specific dates cited in this topic relate to FY 1977. Similar dates are used for
subsequent fiscal years.
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II. CURRENT EPA CONCERNS
A. Two-Year Funding
1. Applies to abatement control and R&D
2. Two years to obligate
3. Need to change patterns in EPA procurement previously geared to "no
year" money
4. Opportunity for creative use of options in contracting
B. Mission Contracting (PIN 76-38, May 21, 1976)
1. Definition: (A^concept-not a contract type)
"Mission contracting means the consolidation of programmatic
requirements of a specific EPA organizational element(s) into one
contract to be performed in support of the mission of that
organizations' element(s)."
2. Examples:
a. Consolidation of several similar requirements into a single SOW
b. Multiyear contract for long range continuing requirement
c. Single contract can be awarded for a comprehensive project or
mission
3. Pricing arrangement is open
4. Expected advantages to EPA
a. Fewer contract awards of higher dollar value
b. Reduced documentation and decreased gross leadtime
c. Quick response to program requirements
d. Flexibility of work direction within SOW
e. Increased competition at higher dollar threshold
f. More even work flow by the contractor and responsible
procurement office
5. Responsibility of Contract Operations Office
"Responsible for considering mission contracting as a first priority
approach to procurement of the Agency's requirements...designated
representatives to act in a liaison capacity with each program
office...."
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III. ORGANIZATION AND RESPONSIBILITIES
EPA PROJECT/CONTRACT MANAGEMENT
COORDINATION
(Jh» Coatmet Aqjbcf OHkar/CotttmcUng
CONTRACTS MANAGEMENT MANUAL
GUIDE FOR CONTRACT PROJECT Of FICERS
\ '
SPECIF VINO RESPONSIBILITIES
CONTRACTING
OFFICES
IDENTIFYING AUTHORITY AND
ITS EXTENT
ESTABLISHING COMMUNICATION
CHEATING A MANAGEMENT
ENVIRONMENT
PROVIDING FOR "ONE FACE" TO THE
CONTRACTOR (OR PERFORMER) OFFICER
CONTRACTSMANAGEMENTMANOAL
FEDERAL PROCUREMENT REGULATIONS
EPA PROCUREMENT REGULATIONS
GAO DECISIONS
A. The Contracts Management Division (CMP), (From EPA Organization and
Functions Manual, Chapter 3)
1. "Contracts Management Division. The Contracts Management
Division, under the supervision of a Director, develops, conducts, and
coordinates the Agency contracts management program, including the
provision of advisory financial analysis of grant applications. De-
velops Agency procurement policies and regulations in
implementation of the Federal Procurement Regulations. Conducts
Headquarters programs for contract placement, modification, post
award administration, and termination, including advertising, location
of sources, negotiation, award, in-process monitoring, and termi-
nation settlement. Provides technical guidance to all field
contracting operations; and conducts a contracts management
technical review and internal evaluation program. Provides cost and
price analysis services to Headquarters and field contracting
operations. Coordinates action on contract proposals with the Grants
Administration Division with respect to those proposals which have
common elements of both grants and contracts. Represents the
Agency on contracts management matters with other Federal
10
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&EPA
OFFICE OF
PLANKING AND MANAGEMENT
vvEPA
ASSISTANT ADMINISTRATOR
FOR
PLANNING AND MANAGEMENT
DEPUTY ASSISTANT ADMINISTRATOR
FOR
PLANNING AND EVALUATION
1
ECONOMIC
ANALYSIS
DIVISION
OFFICE OF AUDIT
DEPUTY ASSISTANT ADMINISTRATOR
FOR
RESOURCES MANAGEMENT
POLICY PLANNING
DIVISION
BUDGET
OPERATIONS
DIVISION
PROGRAM
EVALUATION
DIVISION
1
STANDARDSAND
REGULATIONS
EVALUATION
DIVISION
PROGRAM
ANALYSIS
DIVISION
JL
1
FINANCIAL
MANAGEMENT
DIVISION
1
PROGRAM
REPORTING
DIVISION
DEPUTY ASSISTANT ADMINISTRATOR
FOR
ADMINISTRATION
'
II
CONTRACTS
MANAGEMENT
DIVISION
1
MANAGEMENT
INFORMATION &
DAT A SYSTEMS
DIVISION
1
PERSONNEL
MANAGEMENT
DIVISION
1
MANAGEMENT ANI
ORGANIZATION
DIVISION
GRANTS
ADMINISTRATION
DIVISION
_L
SECURITY AND
INSPECTION
DIVISION
1
FACILITIES AND
SUPPORT SERVICES
DIVISION
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THE PROCUREMENT ORGANIZATION
CONTRACTS
POLICY AND
REVIEWBRANCH
DURHAM
CONTRACT
OPERATIONS
REGIONAL
OFFICES
r;/
/
OFFICE OF
PLANNING &
MANAGEMENT
1
OFFICE
1
CONTRACTS
MANAGEMENT
PIV1SION
HEADQUARTERS
CONTRACT
OPERATIONS
- - , . t ~/t /
Y- -: * , y -- •• • '
t • •- /
\
* \
\ N
\
\
COST RE VIEW
AND
POLICY BRANCH
CINCINNATI
CONTRACT
OPERATIONS
LABS AND FIELD
ACTIVITIES
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agencies and industry. Develops policies and procedures
implementing the provisions of Executive Order 11625 of October
13, 1971, "Prescribing Additional Arrangement for Developing and
Coordinating a National Program for Minority Business
Enterprise." Furnishes information, assistance, and reports to the
Department of Commerce. Coordinates with the Grants
Administration Division in the furtherance of the objectives of the
Order. Provides technical assistance to components of the
Agency's field establishment responsible for carrying out related
activities."
2. Contracting Officer Responsibilities
a. Contracting Officer Defined (FPR 1-1.207)
" 'Contracting Officer' means an official designated to enter into
or administer contracts and make related determinations and
findings."
b. Responsibilities and authorities
(FPR 1-1.401) "The head of the procuring activity is responsible
for the procurement of personal property and nonpersonal services
(including construction) to the full extent that responsibility has
been assigned to his activity."
(FPR 1-1.402) "Contracting officers are authorized to enter into
and administer contracts for personal property and nonpersonal
services (including construction) on behalf of the Government and
make related findings and determinations within the limitations of
the authority delegated to them."
Subject to meeting all applicable requirements of the law,
Executive Orders and regulations, including those of EPA.
B. Project Officer Responsibilities
1. In early planning
2. In preparation of the Procurement Request
3. In evaluation and source selection
4. In administration of the contract
5. In contract closeout
C. The Necessity for Cooperative Efforts by Both Contracting Officers and
Project^ Officers
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RESPONSIBILITIES IN THE PROCUREMENT PROCESS
RESPONSIBLE OFFICES WITHIN EPA
FUNCTION
PROJECT OFFICE
CONTRACTS OFFICE
OTHER OFFICES
PRESOLICITATiON
Advance planning
Submission of purchase request
Obtaining sources
Sole source determination
Request for Proposals
Develops program plan
Decision to buy
Recommends & evaluates sources
Prepares justification
Develops technical aspects
Advises as to procurement
process
Adequacy of PR package
Establishes source list
Final decision
Responsible for RFP contents
and release
SOLICITATION AND EVALUATION
Discussions with contractor(s)
Technical evaluation
Business evaluation
Determination of competitive range
Advisory to contracts offices
Total responsibility
Advisory
Responsible for all contacts
Total responsibility
Final decision
Audit-advisory over $100K
(fixed price)//! ; ,'• . - 'i
Audit-advisory over $250K
(cost reimbursement)
NEGOTIATIONS AND AWARD
Discussions with contractor^}
Selection of contractor
Contract preparation and award
Participant
Advisory
Scope of wot k and oilier tech-
nical aspects
Responsible for conduct
Final decision
Final contract document
General Counsel may be
advisory
CONTRACT ADMINISTRATION
Technical direction
Contract changes and extensions
Monitoring performance
Patents
Acceptance of final product
Payment of vouchers
Property administration
Administrative closeout
Within defined limits
Initiates to contracts office
Technical performance
Advisory to General Counsel
Varies with product
Reviews & certifies
Advises and recommends
Evaluates technical performance
Total responsibility
Business performance
Coordinates requests
Varies with product
Reviews & certifies final
voucher
Final decisions
Total responsibility
General Counsel pre-
pares Agency's position
Financial Management
schedules for payment
Property—records, dis-
position & other services
Audit & General Counsel
advisory
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INTRODUCTION TO LEARNING THROUGH LISTENING
You are about to experience a series of audiotape exercises that deal
with buyer-seller relationships and some aspects of the Federal procure-
ment management process. In all, there are six vignettes. They afford
the listener an opportunity to respond at the end of each vignette, or in
some cases at predetermined points within them.
What is required in terms of responses, and when, has been identified
throughout the audiotape. After a response has been requested, the tape
will be stopped and discussion will be held. Spontaneity of response—just
saying whatever may come to mind—is important. Remember this as you
listen to each vignette and follow its words on the provided script.
While this series of exercises may be utilized as an instructional or
learning medium at one sitting, it may also be utilized throughout a
program to complement and reinforce specific areas of course or
workshop content. In most instances, the latter use is employed. So
listen carefully, hear well, and seize the opportunity to participate.
How often do we hear someone but fail to really "listen" to what they
have to say? Chances are a good deal of the time. If seeing is one
ingredient of believing, then hearing—that special sense by which we
receive noises and tones as stimuli—is another. But "listening," the
ability to hear with thoughtful attention, is a third and critical factor,
and doesn't necessarily go hand in glove with the other two. These
audiotape exercises provide an opportunity for us to listen as well as to
hear.
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VIGNETTE NO. 1; CHITCHAT . . . 'BOUT THIS AND THAT
The following punchlines by Dick Stillings of Acme Industries, Inc., were recorded
while he was conversing with his friend of many years, Harold Halloran of the
engineering section of a Government agency project office. Assume you are Harold
as Dick says to you:
Dick; "...And furthermore, Harold, I don't care what you people put in those RFPs
about technical competency as the prime driver. You and I both
know. ..when all is said and done that the law requires you to go to the lowest
bidder."
• How would you respond to that? - <"? # c £.,Uf .*< (.-**• /l
i <••'•;'•/•• />.../
*************************************
,,.(^ -/,•-,->.
* , >
Dick; "Yeah, I know all about competition. And then some! We're in it all the
time. But just like motherhood, it's dangerous. Why? Because once you
switch it on pal, you can't control it1 Go competitive.. .and you can count on
every Tom, Dick, and Harry on the block coming in with a proposal. Then
what do you do, buddy?" ,
d'-~'.y t xf , .'
X.X. /•<•/
And now would you respond this time?
**************************************
Dick; "It'll take how long for you people to get this requirement on the street?
I've been telling you for years... the Government's procurement process is
fundamentally nonresponsive to need. As a guy who makes it where the
rubber hits the road, I'll never understand the length of time things take.
16
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If it were my business, Fd never run it this way!"
• And what would you say to that?
**************************************
Dick; "Harold, we've been through this one a hundred times. I can't provide all the
details before the job begins. After all, we're dealing with a research and
study effort. If we knew what you were looking for, there would be no point
to go through an investigative effort. But this thing is filled with unknowns!
Let's get the job underway first. There's plenty of time later to worry about
the details."
• How would you respond this time?
**************************************
"/U.
Copyright 1977, Sterling Institute (DAC)
17
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THE EPA
CONTRACTING ENVIRONMENT
(For competitively solicited procurements}
A network of technical and procurement events, activities and decisions that determines . . . what to buy
how to buy . from whom to buy.. . the buying arrangement. . . and how to assure performance.
PRE-AWARD TECHNICAL AND PROCUREMENT PLANNING
'"SIAIIMtNT Or WORK >.
/ COST/PRICt CSflMATE \
y EVALUATION PLAN '
S^-^ SOlJflCIS. Etc.
ITTFN A
ORAL DISCUSSIONS
BEST AND FINAL
Of FEUS
POST AWARD TECHNICAL AND CONTRACT ADMINISTRATION
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TOPIC fl. THE EPA PROCUREMENT AND CONTRACTING ENVIRONMENT:
FORM AND FUNCTION
I. THE ESSENTIAL QUESTIONS OF AN EFFECTIVE PROCUREMENT PROCESS
A. What to buy? . . \
B. How to buy? .,..,.. , .
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to
o
THE PROCUREMENT PROCESS
Optimum Leadtimes <
New Competitive Requirements
Less than $100,000
$100,000 or Greater
Milestone Description
Receipt of Acceptable
Procurement Package at
Contract Operations
Office
*Preparation, Print &
Issue RFP Package
Proposal Preparation
and Submission (1)
Evaluation (2)
Technical
* Cost (3)
*Negotiations
*Contract Preparation
*Contract Review (4)
Contract Award
Optimum Calendar
Days to Complete
20
30
21
14
14
5
5
14
Cumulative
Calendar Days
R-Day
R+20
R+50
R+85
R+99
R+104
R+109
R+123
Optimum Calendar
Days to Complete
20
30
28
32
21
5
6
14
Cumulative
Calendar Days
R-Day
R+20
R+50
R-fllO
R+131
R+136
R+142
R+156*
* These milestones are completely within the control of CMD. The accumulated time for
milestones within CMD control is 47 percent for actions under $100,000 and 54 percent for
those greater than $100,000.
1,
2,
Time should be added when pre-proposal conferences are conducted.
Cost and technical evaluations are conducted sequentially. While the cost evaluation is
within the control of CMD, cost examination cannot be initiated until evaluation of the
technical proposals is completed and a competitive range is established. Initial control
of this milestone is held by the Project Officer and any lateness on his part will have a
pyramiding effect.
It should be remembered that cost evaluations of procurements exceeding $100,000 are not
always within the control of CMD. Many, if not most, audit actions are performed by
other than EPA audit groups.
Ten calendar days should be added to those actions requiring CMD review and approval.
-------
THE PROCUREMENT PROCESS
Optimum Leadtimes
New Sole Source Requirements
>-*
(.: : * ' •'• '
Milestone Description
Receipt of Acceptable
Procurement Package at
Contract Operations
Office
*Preparation, Print &
Issue RFP Package
Proposal Preparation
and Submission
Evaluation (1)
Technical
* Cost (2)
*Negotiations
*Contract Preparation
*Contract Review (3)
Contract Award
Less than $100,000
Optimum Calendar Cumulative
Days to Complete Calendar Days
$100,000 or Greater
Optimum Calendar
1
15
30
14
14
10
5
2
10
R-Day
R+15
R+45
R+59
R+69
R+74
R+76
R+86
Days to Complete
0
15
30
25
35(2)
14
5
6
14
Cumulative
Calendar Days
R-Day
R+15
R+45
R+80
R+94
R+99
R+105
R+119
* These milestones are completely within the control of CMD. The accumulated time for
milestones is 37 percent for actions under $100,000 and 34 percent for those greater than
$100,000.
1. Cost and technical evaluations are prepared in parallel and the time alloted each is
equal. The technical evaluation is in the control of the Project Officer. Historically,
the technical evaluation requires more time than the cost. The 14 and 35 day milestones
are therefore considered outside the control of CMD.
2. It should be remembered that cost evaluations of procurements exceeding $100,000 are not
always within the control of CMD. Many, if not most, audit actions are performed by
other than EPA audit groups.
3. Ten calendar days should be added to those actions requiring CMD review and approval.
-------
-------
TOPIC HI. THE PROCUREMENT REQUEST RATIONALE; TRIGGER FOR
BUYING
PRE-AWARD TECHNICAL AND PROCUREMENT PLANNING
[EPA Contracts Management Manual, Chapter 1: EPA Forms 1900-8 and 1900-8A
are to be used for originating procurement of personal property and nonpersonal
services except printing (EPA Forms 2340-1 or 2340-6), Advertising Order
(Standard Form 1143), and Training (Optional Form 170). A Procurement Request
Rationale must accompany the Procurement Request/Requisition for all research
and development or service contracts in excess of $10,000, with certain exceptions.]
I. THE PROCUREMENT REQUEST/REQUISITION (EPA Forms 1900-8 and
1900-8A)
A. A Bridge Between Planning and Satisfaction
1. Articulates the need
2. Documents the principals
3. Details the control information
4. Provides an estimate of cost or price
5. Considers a procurement method
6. Suggests sources
7. Requires approvals
8. Permits procurement office insertions
9. Reflects distribution channels
10. Triggers procurement action
B. Procurement Request/Requisition Importance and Impact
1. On the time factor
2. On the approval process
3. On the procurement process
C. Policy. EPA procurement actions shall be initiated only after it has been
determined that:
1. The acquisition of personal property or nonpersonal services is
authorized by law
2. All applicable regulations have been complied with
23
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3. Appropriate officials have approved the proposed procurement action
4. Appropriated funds are, or there is a reasonable expectation that they
will be, available for obligation
5. The property or services are adequately described and meet the
minimum needs of EPA
6. Proper documentation supporting the procurement action has been
furnished with the procurement request
7. All purchases and contracts, whether by formal advertising or by
negotiation, shall be made on a competitive basis to the maximum
practical extent
8. Small and minority business firms including 8(a) have been accorded
an opportunity to participate in the procurement
H. THE PROCUREMENT REQUEST RATIONALE /3./.. // -/
/ ... , .i
Are related tasks already under contract?
Are related tasks programmed for later years?
24
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Present state of the art?
Contemplated follow-on procurements?
Any patents, copyrights, or proprietary information?
5. Procurement abstract
For public announcement in the Commerce Business Daily, a precis of
the program scope of work and desired qualifications of prospective
contractors.
6. Statement of work (SOW)
A definitive statement of what the contractor will be expected to do
and how the buyer will assess the performance and the conditions
bearing on performance. The wording of the SOW in the Request for
Proposals should be suitable for use in the resulting contract.
7. Proposed budget
Independently determined estimate of the elements of resources
required for performance with their attendant estimated price. This
is Government privileged information.
8. Reports
Types, timing and frequency, time to review, nature and need,
content and format, and criteria for acceptability. /;/,,, ,,_., <
9. List of recommended sources
What sources are considered qualified to perform?
Is a small business set-aside possible? If noncompetitive, has a
Justification for Noncompetitive Procurement been included?
10. Evaluation criteria for competitive procurement
How the proposal will be evaluated and weighted. Relates to the
product required in the offerers' Technical and Business Proposals.
11. Government furnished property, data, or services ..<../.., . ..,-~
12. Unsolicited proposal for research '
C. Exceptions
The following nonpersonal services or supplies do not require a separate
25
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"Procurement Request Rationale" as described above. Normally the
following require similar documentation as applicable to small purchases:
1. Communications services
2. Housekeeping services
3. Installation of equipment obtained under separate
contract
4. Maintenance of personal and real property
5. Photographic, printing, and publication services
6. Stenographic reporting services
7. Transportation and related services
8. Delivery orders placed against Federal Supply Schedule contracts
9. Orders placed against any of the three types of indefinite delivery
type contracts / :liU, •(/.-./.,«
/ - J - ,• L<-
10. Public utility services •//"//> < "
ISOLATING TWO ELEMENTS OF THE PROCUREMENT REQUEST
RATIONALE: STATEMENTS OF WORK AND EVALUATION CRITERIA
A. The Statement of Work for Research, Study, and Investigative Efforts
1. Its impact
a. On potential sources
b. On proposed cost and/or price
c. On source evaluation and selection
d. On measuring performance
e. On rights and remedies
f. On the overall procurement process
2. Erroneous notions and half-truths
a. Writing is easy.
b. Specificity is bad for research and investigative efforts.
26
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c. Thought is more important than its articulation; some things are
best left to the imagination.
d. Tight definition corrupts creativity.
e. Let clarification occur as performance unfolds.
f. The contractor's staff is being paid; let them worry about it.
B. Specific Guidelines for Work Statement Preparation
1. One interpretation: clarity is paramount. - .•<_/ •. .. -,/,.. />.;.
2. Flexibility: the extent must be defined.
3. Language: use conventional language where possible.
M, „<:>.<'•..,-i'L ./ljf( : A --
4. Government obligations: these need to be carefully delineated.
5. Delivery schedule: realism is the key.
6. Tailoring: cut the cloth to suit the need.
7. Specificity: express requirements quantitatively as well as
qualitatively.
27
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STATEMENT OF WORK PREPARATION
(One Approach Through 0utUt>0 Abc*«>
BAEAKDOWN REFINED
ItV ILEHINTSI
SOW OUTLINE
I. Nif D IDitCMimONI
A. BACKGROUND
B. maumeMNT SUMMARY
C. HMMCIMl SUHLEMEMTS
II. SMCIfIC MEDIUMLIUEHT
RfOUMEUENTI
A. !AI._ f
B. It) J-f., W«. «M
-------
d. Net conclusion: you have a draft statement of work.
3. Finishing the job
a. Seek a reading and advice about the draft.
b. Be open-minded; someone else may see the forest while you've
been looking at the trees.
c. Edit and rewrite when necessary.
d. Be declarative; don't garnish your product with unnecessary
literary lace.
e. Be as objective as possible when you believe the job is done.
(1) Read it as though you were receiving it
(2) Is it clear, convincing, and complete?
(3) Will it get you ( or the user) what is needed?
(4) Is it contractible?
D. Considerations for the Preparer of a Statement of Work
1. Is it sufficiently specific to permit the preparer and the performer to
make a list of manpower and resources needed to accomplish it?
2. Are specific duties of the performer stated as requirements so that
the contract administration representative who signs an acceptance
report can determine that the performer complied?
3. Are proper reference documents cited or shown? Are they really
pertinent to the tasks?
4. Are specifications, standards, or exhibits applicable as shown or
cited? Fully or partially?
5. Is general information separated from direction so that background
data, suggested procedures, and the like are clearly distinguishable
from performer responsibilities?
6. Is there a date for each thing the performer is to do or deliver? If
elapsed time is used, does it specify calendar days or work days?
7. Are proper quantities shown, if appropriate?
8. Have the headings been checked for format and grammatical usage?
Are subheadings consistent? Is the text compatible with the title?
29
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9. Have all requirements been reviewed to ensure compatibility with the
data requirements?
10. Are extraneous data requirements eliminated?
11. Does it mean what it says and say what it means?
£• Level of Effort or Term vs. Completion Type Tasks^ ¥. h c ' ^-^ << f <'*'*#'
' " • - "'* ' •*; / 'y, /jA.
*• Personal/Nonpersonal Services (PIN No. 78-12-10) Reflects EPA Policy
initially issued January 30, 1973 with changes and current emphases)
.
1. Differences between personal and nonpersonal services .-A.^t ^. -• f
2. Limitations on the use of personal services . ; /— - A/& •-/£-
3. Contracting Officer's written determination
G. Technical Evaluation Criteria Development
1. Direct relationship to the Statement of Work preparation and the
Procurement Request
2. Importance to:
a. Solicitation document
b. The evaluation plan
c. Offerers
, r ...
' ,' , ftr /"'..'{
}
/
. DIUJ.S Ilii't. Ci
30
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VIGNETTE NO. 2; OVERHEARD OVER COFFEE
John Ringals, an engineer who frequently initiates procurement requests, was
chatting with Mary Herzog, contract negotiator, at a midmorning break in the
coffee shop. As John put down his cup on the table, he said to Mary...
John; "Ya know, Mary, if it wasn't for my cultivated patience I'd be a wreck. I
can't get over how much is made of so little in this business!"
Mary; "Tough morning, huh? You sound perturbed. What's up?"
John? "You and your contracts management division, that's what's up! Why do
you people persist in making the ballgame so difficult?"
Mary; (LOOKING AT HIM INCREDULOUSLY) "John, don't tell me that you've
had another run-in with Harry Sparks. You two guys are too nice to have
one go-around after another. Am I right? Is it Harry?"
John; (RESPONDING EAGERLY) "You're not only right, you're clairvoyant!
He hit me right between the eyes this morning with that old saw about
'Pro-eure-ment Requests.' You know, the bit about the PR being basic to
what alternatives are open to contracts so they can get on with the job
of satisfying the requirement, and all that jazz."
Mary; (GOOD NATUREDLY) "Come on, John, we've been through all this
before. You know he's right."
31
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John; (SOUNDING SOMEWHAT PERTURBED) "Oh, yeah? You may think so,
but I sure don't. And it's a hassle just about every time he handles one of
my PRs. This time he questioned my description of a test and evaluation
technique we want studied for possible application to a couple of
upcoming demonstration projects. Told me I talked around the need
instead of to it. Then said he couldn't buy anything else unless he had a
'firm handle' on the requirement.
"To which, in my diplomatic way, I replied, 'Harry, you wouldn't know a
handle—firm or otherwise—if you were holding on to one.1 1 told him it
was my requirement, my_ money, and my neck. I tried to do him a favor
by recommending a competitive contract^ but he didn't even pick that up.
"Then he goes into his standard song-and-dance about methods of
procurement and how my PR puts him in a position of not being able to
do hisjob. Like I said, if it weren't for my cultivated patience..."
Mary; (INTERRUPTING) "...Hey, John, wait a minute. Your patience,
cultivated or not, is wearing thin. And maybe Harry's is too. You guys
ought to sit down and sort the problem out."
John; "What's to sort out, Mary? Old Harry's all right, I guess. But he persists
in this notion of his job and my job. I'll do mine. Always have. His is to
get on with it and satisfy the need. What in heaven's name has my
description of a projected technical effort got to do with determining a
method of procurement? That kind of thing, at least for me, is a
reflection of law and regulations, not technical requirements. Right,
Mary?"
• If you were in Mary Herzog's position, how would you respond to John
Ringals?
• Were John Ringals and Harry Sparks "to sit down and sort the
problem out," where would you suggest they begin?
****************
Copyright 1977, Sterling Institute (DAC)
32
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TOPIC ffl. THE PROCUREMENT REQUEST RATIONALE: TRIGGER FOR
BUYING (cont,)
IV. COST ESTIMATES: INDEPENDENT AND OTHER
A. Some Basic Questions
1. What is a cost estimate?
A forecast of a future result in terms of cost, based upon information
available at the present time
2. What is a cost?
An amount of dollars identified (or estimated) for an element of
performance or work, or for coverage of projected expenses,
exclusive of an amount for what is usually called profit
3. What is a price?
A total amount of dollars identified for the performance of work or
for a product, including an amount for what is usually called profit
B. Basic Elements of Costing and Pricing
1. Direct costs (examples)
a. Labor - .'''• > •/ ' (' • •' '/
b. Materials
c. Equipment
d. Consultants
e. Travel (sometimes)
2. Indirect costs
a. Overhead
b. General and administrative
3. Prof if or fee ... ' , .- .<
• f ~it. . i . ,
4. Role of auditors
5. Use in the award decision
C. Estimating Techniques; Pro and Con
1. Detailed //, .. '/ ' ••' '
33
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. , ,,/.:.._• , /« .'<••• , /-«'/«•/ ..-'/X"-(
• •/.> <• fV. yf , ,;. ./VV-^
2. Parametric
3. Level of effort
D. The Role of Technical Personnel in Cost Estimating
1. Utilizing a cost or price information base
2. Identifying resource needs - /:•••.• •• ••'.'• '' '••
3. Analyzing resource estimates
4. Estimating the unknown: work at it; don't guess.
E. Impact of the Government Cost Estimate
1. On selecting a contract type for the project or job to be done
2. On evaluating the credibility of contractor-proposed costs relative to
the project or job to be done
*3. On establishing Government cost objectives as differentiated from
contractor-proposed costs . A^^.^^.* )>:/<.
-------
VIGNETTE NO. 3; WOULD YOU TAKE ISSUE OR AGREE WITH . . .
A person's point of view reflects many influences, influences that one should
consider in order to assess why stands are taken and positions put forth. Listen to
the following points of view, and be ready to say whether or not, and why, you
would take issue or agree with each.
• Would you take issue or agree with a contractor who says: "I haven't any
problems with your suggested price for our services. I mean, let's face
it. If a price is fair and reasonable—and this one is—in your terms as a
buyer, then it certainly has to be in mine as a seller."
***************
• Would you take issue or agree with a contract negotiator who admonishes
you with: "Always remember that a buyer's concern is with what
something 'should cost'; a seller's concern is with what something 'will
cost.1 There is a real distinction between the two, one that all of us
should be aware of."
**************
• Would you take issue or agree with a colleague who asserts that: "A
proposer's cost or price estimate is almost never influenced by factors
aside from the immediate project or job to be done. A business has to
35
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recover its costs now. ..lest later recovery be too little, or too late."
***************
Would you take issue or ggcfifuwith an engineering estimator who takes
the position that: "In research and study projects, it isn't salary rates or
indirect costs that get to the heart of the estimating job. It's those
technical analyses of labor and other resources that create estimating
confidence. That's where it's at."
***************
Would you take issue or agree with a Project Officer who admits that:
"We could save a lot of time and frustration if we'd just let contractors
know how many dollars we have for the job! It gets to be a guessing
game, doesn't it? We go through this elaborate waste of time with
in-house estimates.. .bump them against contractor estimates. ..and we
still end up wide of the mark. Let's turn it around! Tell 'em we've got
$50K for the job, and let them tell us what they'll give us for it. Now
that's real competition, isn't it?"
***************
I _? ^ . y\ /
Copyright 1977, Sterling Institute (DAC)
36
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TOPIC IV. CONTRACT TYPE SELECTION: DEALING WITH RISK AND
REALISM
PRE-AWARD TECHNICAL AND PROCUREMENT PLANNING
I. THE NATURE OF CONTRACTS
A. The Contract Type Environment
1. Mutual assent
2. Conditions of performance '••
1 t ' ' • • ' • ^ •'. •
3. Consideration
•• - •••' ••'' •'• • •..•- . , - •<- ..,.••••••-•• s ''
4. Legal enforceability
B. Differing Connotations of "Contract Types"
1. Compensation or pricing arrangement
2. Form and structure
3. End purpose
II. COST RISK AND COST REALISM
A. Cost Risk
1. Assumption of exposure to monetary loss in light of the uncertainty
associated with performance
2. Degree of willingness to assert a projection of costs relative to their
probable incurrence
B. Cost Realism
1. Basis for estimating (forecasting) a future result in terms of cost,
based on information available at the time
2. Association of the probable costs of performance with a reasonable
basis for projecting resource use and expenditure in light of specified
goals or objectives
m. CONTRACT TYPES: AN OVERVIEW OF FUNDAMENTALS
A. Selection of Contract Type
1. Responsibility of the Contracting Officer
2. Factors that affect contract type selection
a. Cost risk identification
37
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b. Kind and complexity of requirement
c. Period of performance
d. Urgency of the requirement
e. Adequacy of a performer's estimating and accounting systems
f. Extent and nature of subcontracting
g. Past procurements
B. The Basic Contract Type Families
1. Fixed-price
a. Common characteristics
b. The type most preferred: firm fixed-price
2. Cost-reimbursement
a. Common characteristics
b. The type most used: cost-plus-a-fixed-fee
C. EPA Trends
1. Level of effort
2. Directions of work
3. Contractual options
38
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PROCUREMENT METHODS AND CONTRACT TYPES
FORMAL
ADVERTISING
NEGOTIATION
FIXED PRICE
FIXED PRICE
FIRM FIXED PRICE
*'
FIXED PRICE WITH
ESCALATION
COST
REIMBURSEMENT
COMPLETION
(END ITEM)
PROHIBITED: Cost-Plus-A-Pereentage-of-Cost Contracts
39
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TOPIC V. THE COMPETITIVE AND NONCOMPETFTIVE ENVIRONMENTS FOR
RESEARCH, STUDY, AND INVESTIGATIVE EFFORTS
PRE-AWARD TECHNICAL AND PROCUREMENT PLANNING
tEPA Contracts Management Manual, Chapter 3: Negotiated procurement by EPA
will be conducted competitively to the maximum practical extent. Noncompetitive
procurement may be conducted only when the Contracting Officer finds that one or
more ... circumstances exist. (Nine such circumstances are indicated in Chapter 3,
paragraph 8. b.)]
I. THE COMPETITIVE ENVIRONMENT
A. Maximum Competition Consistent with the Requirement and Need
1. What is competition?
2. Is it the same under all buying circumstances?
3. How can it be generated to the maximum practical extent?
4. How much competition is enough?
B. Mistaken Assumptions about Competition
1. The numbers game; more than one suffices.
2. Success ensured by the marketplace; no need to work at it.
3. Has a harmful effect on technical excellence; avoid or minimize it
for complex requirements.
4. Only thing it buys is problems; it's the marketplace counterpart of
Pandora's box.
C. Adequate Price Competition
FPR l-3.807-l(b) (1): "Price competition exists if offers are solicited and
(A) at _ least tw° responsible offerers (B) who can satisfy the purchaser's
(e.g., the Government's) requirements (C) independently contend for a
contract to be awarded to the responsive and responsible offerer
submitting the lowest evaluated price (D) by submitting priced offers
responsive to the expressed requirements of the solicitation."
D. Adequate Technical Competition
1. Assessed for each procurement
2. Front-end project and procurement management influences
a. Timely in-house action
41
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b. Realistic proposal and delivery requirements.
c. A solid and well-prepared solicitation document (Request for
Proposals).
d. Remember: it's what potential sources compete about that makes
them competitive, and not the fact that there is more than one of
them in the marketplace.
E. Competitive Negotiation
• ,a A negotiated procurement that (1) is initiated by a Request for Proposals,
*• il / which sets out the Government's requirements and the criteria for
"X< /' / evaluation of offers, (2) contemplates the submission of timely proposals
,Li , ,r by the maximum number of possible offerers, (3) usually provides
:/' discussion with those offerers found to be within the competitive range,
, L and (4) concludes with the award of a contract to the one offeror whose
':•'-" offer, price and other factors considered, is most advantageous to the
. jh'> ! Government.
F. Competition Generalized
An environment of varying dimensions relating to buy-sell relationships
in which the buyer induces, stimulates, or relies on conditions in the
marketplace that cause independent sellers to contend confidently for
the award of a contract.
fl. THE NONCOMPETITIVE ENVIRONMENT
A. Preparing a Justification for Noncompetitive Procurement;
Factors to Consider
1. What unique capability applicable to the specific effort does the
proposed contractor have that places it clearly in a preeminent
position over other organizations?
2. Is competition precluded because of the existence of patent rights,
copyrights, secret processes, control of basic raw materials, or
similar circumstances? However, the mere existence of such rights
or circumstances does not in and of itself justify a noncompetitive
action.
3. Is the effort a continuation of a previous effort performed by the
proposed contractor; and to what degree is such previous effort a
factor in the nature of the current procurement?
Such questions as the following should be considered and addressed if
pertinent:
a. Is the added effort a minor supplement to a completed project
requirement?
42
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b. Is the added effort a major supplement to a completed project
requirement?
c. Is the added effort a segment of an essentially continuing project
requirement?
4. Does the proposed contractor have exclusive access to personnel who
are considered preeminent experts in the particular fields necessary
to perform the work? If so, identify the expert(s) and the basis for
the person's or persons' expertise.
5. What facilities, equipment, or data does the proposed contractor have
that are specialized, vital to the effort, and that no other company
can provide? Can the Government furnish such resources as
Government-furnished equipment or data?
6. Are Government-owned facilities involved? If so, list the facilities.
Can these or similar facilities be made available to any competing
offerers?
7. Is the requirement to be procured from a regional, State, or local
governmental unit? If so, explain the circumstances.
8. Is an urgency situation the basis for the JNCP? There are valid
reasons for obtaining the required goods or services on an urgent
basis, and although there is more than one firm capable of delivering
the required goods or services, no firm could deliver within the
required performance period if competitive procedures are used or if
only limited number of firms are solicited and expedited evaluation
and award procedures are employed. Explain the situation and the
circumstances that have led to the need for an urgent procurement
action.
9. If the proposed basis for the JNCP is a request to award a contract to
the submitter of an unsolicited proposal, see FPR 1-4.910 (Unsolicited
Proposals).
B. JNCP Limitations; Factors that cannot be used
1. The proposed organization is either a nonprofit organization, a tax
exempt entity, or a volunteer citizens group.
2. The proposed organization has a large price advantage and it is
believed that there is little or no willingness in the market to supply
competitive offers (Comptroller General Decision B-l87369, 2/28/77).
C. Supportable and Determinative JNCP
1. Spell out facts and avoid generalities.
a. Tested the marketplace. How? Through what medium? With what
results? Are they valid?
-------
, f
/
b. Literature search. How extensive? Where? When?
c. Peculiar or unique features. Mandatory for ... performance
requirements, compatibility, continuity, operability, or what?
d. Required talent. How come? Who has it? How do you know?
Have others been sought?
2. Tell it like it is.
a. Unvarnished facts and reason are their own reward; keep it simple.
b. Don't justify the Justification; justify the basis for the noneom-
petitwe environment. ~~
m. IDENTIFICATION OF INTERESTED AND CAPABLE SOURCES
A. Synopses of Proposed Procurements and the Commerce Business Daily
1. General requirements for inclusion
2. Requirements that need not be synopsized
3. Special case of advance notices for research and development
B. Small Business Sources
1. Requirements for possible participation
2. Prescribed size standard for research, development, or testing
industries
3. Advantages of the small business as research and development
performers
C. Non-Solicitation Devices to Uncover Sources
1. Letters of interest
2. Utilization of professional symposia and conferences
3. Presolicitation notices and conferences
IV. UNSOLICITED PROPOSALS: TREATMENT, ASSESSMENT, AND
DISPOSITION
A. Unsolicited Proposals and Their Importance to the EPA Mission and
Programs
1. Tapping inventiveness
2. Uncovering ideas
-------
3. Encouraging the resource of thought
B. EPA's Definition
An unsolicited proposal is a voluntary offer to perform work the offeror
considers to have both technical merit and relevance to EPA programs.
The unsolicited proposal usually offers ideas, processes, techniques, or
equipment that the proposer considers new, novel, or unique and
deserving of support by an EPA grant or contract.
C. Treatment, Assessment, and Disposition
1. Centralized control point for receipt and processing (regardless of
where received in EPA) is the Grants Administration Division, Office
of Administration; . , p \., • <, .* ..: .. -\
2. Treatment includes acknowledgment to proposer or proposing
organization, specifying a proposal control number, and transmitting
proposal to appropriate program office for evaluation.
3. Favorable assessment may lead to funding and a grant or the award of
a contract.
4. Encouragement of cost-sharing
D. Importance of Fair Treatment and Nondisclosure
1. Confidentiality of information
2. Restrictions against intra-EPA reproduction
E. Some Questions of Interest
1. How does industry define or characterize an unsolicited proposal?
''..•'.:*>,<...< ' '' •
2. What is not an unsolicited proposal that might be submitted and
called one? ,- , . ,
3. What are minimum content needs in order to assess an unsolicited
proposal? , .-./ ,...-,/
4. What if an unsolicited proposal is determined to represent a need but
its attending information is somewhat shabby?
5. Does an unsolicited proposal, because it is designated as one, justify a
noncompetitive award?
6. If an unsolicited proposal suggests a new or unique solution to an
already-known problem for which there may be others who could also
45
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address the problem, is it improper for EPA to develop a performance
specification and competitively solicit proposals?
-*'•'• ^j-
7. Do EPA restrictions exist which preclude noncompetitive awards for
certain types of supplies and services even though unsolicited
proposals are submitted to provide them?
8. How many truly unsolicited proposals are submitted to EPA?
46
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THE COMPTROLLER OENERAL
DECISION (-(ir.^J].) OF THE UNITED STATES
WASl-trlMGTOIM. DC 2 O S 4 B
FILE: B-183487 DATE: July 3, 1975
MATTER OF: American Federation of Government Employees
Local Ho. 3347, AFL-CIO
OIBEST:
1. Whether EPA service contract for warehouse receiving function
Is Improper will depend upon whether contractor or employees
are functioning in contracting agency administration of con-
tract essentially as Government employees as tested by fac-
tor* delineated in Civil Service Commission 1967 opinion, as
supplemented.
2. OMB Circular A-76 expresses policy guidance with respect to
whether certain services should be provided in-house or
purchased from commercial sources, but alleged failure of
agency to comply with Circular is not for consideration under
GAO bid protest procedures.
The American Federation of Government Employees (AFGE), Local No.
3347, AFL-CIO. has protested the proposed award of a contract by the
Environmental Protection Agency (EPA), Contracts Management Division,
NCCH-7, Research Triangle Park, North Carolina, on the grounds that
the proposed award is for personal services and would create what is
tantamount to an employer-enployee relationship between the Government
and contractor personnel in violation of Federal personnel laws.
More specifically, the proposed procurement is for the receiving
function at the EPA warehouse at Research Triangle Park. The procure-
ment contemplates that a contractor will be selected who will accept
the responsibility for receiving all shipments delivered to the
EPA warehouse and performing associated paperwork to facilitate timely
delivery of the materials to the requestor and acceptance of the
materials by the Government.
Presently, all functions relating to receipt, delivery and ware-
housing of materials are being accomplished by a small group of Civil
Service employees who virtually perform all aspects of the warehousing
function. However, to provide an allegedly more efficient operation,
It was determined by the Director of the General Services Division of
the local EPA Office of Administration that the receiving function
could best be performed by an independent contractor.
47
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B-183487
Aa * result, discussions were held with Small Business
Administration (SBA) representatives for the Atlanta Region
prior to announcement of any proposed procurement to the general
public. SBA requested that the procurement be set aside for SBA
for award to an eligible concern under the provisions of section
8(a) of the Small Business Act. as amended (IS U.S.C. f 637(a)).
Accordingly, request for proposals (RFP) DU-75-C196 was issued
to the SBA on March 14, 1975. Subsequently, the RFP was modified
to "* * * reflect the planned manner of operation of the contract."
The fact that a contract is for services of a particu-
lar nature, e.g. a receiving function, does not in itself
indicate that the contract is improper. In general, a con-
tract of this nature may be improper if the contractor or its
eaployees are functioning in the agency's administration of the
contract essentially as Government employees as evidenced by the
existence to a substantial degree of the factors listed in the
October 1967 Civil Service Coomission opinion as supplemented in
1968. B-181436, November 1, 1974. In this case, the work will
be performed in an area dedicated to such receiving function and
"there will be no mingling of Government and Contractor personnel
in that area." Also, it IB our understanding that there will be)
no supervision of contractor personnel by Government personnel. '
Therefore, we are aware of nothing in the contract which would
violate the principles enunciated in the Civil Service Commission
opinions. Administration of the contract in violation of the
doctrine in such opinions would be inconsistent with the expressed
contract purpose and Intent.
In protesting the proposed award, the AFGE has contended
that any ensuing contract would be in contravention of OMB
Circular A-76 and therefore would be illegal. This conclusion
is reached by AFGE by comparing the allegations it has presented
with the standards for appropriate service contracting as set
forth in the Civil Service Commission General Counsel opinion
issued in 1967 regarding the legality of selected contracts at
the NASA Goddard Space Flight Center. See B-133394, November 1,
1967.
OMB Circular A-76, while expressing policy guidance with
respect to whether certain services should be provided in-house
or purchased from commercial sources, is not a regulation in the
sense that failure of an agency to comply may affect the validity
of the procurement and, therefore, the issue presented is not
properly for consideration under our bid protest procedures. See
53 Comp. Gen. 86 (1973); B-179943, December 26, 1973; and General
48
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B-183487
PataComm Industries. Inc.. B-182556, April 9, 1975. In that
connection, in 53 Comp. Gen., supra. it was stated:
"* * * ve have always regarded the provisions of
Circular A-76 as matters of Executive policy which
do not establish legal rights and responsibilities
and which are not within the decision functions of
the General Accounting Office. * * *"
Nevertheless, although It is not for consideration under our
bid protest procedures, we do have a continuing Interest In the
matter from a management-audit standpoint. In that regard, we
•ent an auditor-attorney team to the EPA facilities at Research
Triangle to examine the operation as It exists and to discuss
the situation with EPA officials and employee union representa-
tives. Further, compliance with the Circular is of deep concern
to us and we plan to utilize the Information contained In the
record in connection with our responsibilities. Also, in a
separate letter of today, we have suggested to the EPA Adminis-
trator that he may wish to review the circumstances to consider
whether the proposed procurement should proceed under the pro-
visions of EPA*s Implementation of Circular A-76.
Deputy Comptroller *»enera
of the United States
49
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Comptroller General Decision B-l 83487, July 3, 1975
American Federation of Government Employees
Local No. 3347, AFL-CIO
Having read the preceding decision, prepare to answer the following questions.
1. Whose interests do you see reflected in this decision?
2. What did the Comptroller General decide on this matter?
3. How might this protest affect the providing of warehouse receiving
services?
4. What position might the EPA Small Business Advisor be likely to take on
this problem?
50
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DECISION
rum COMPTROLLER OBNBRAL
Of TMB UNITKD BTATK*
WASHINGTON, o.c. a o o a B
FIL€: B-166506
DATE: July 26. 1974
MATTER OF: Environmental Protection Agency sole-source
procurements.
DIGEST: Factors used to justify sole-source
procurement of public education and
Information programs such as: non-
prof it" organization's makeup; fact that
organization would utilize volunteers
la performance; organisation's rapport
and understanding of State and local
Government, key memberships, respected
position, community support and coalition
approach do not represent proper justifi-
cation for noncompetitive procurements
Irrespective of fact that nonprofit organi-
zation could quote lower price since statutes
require full and free competitive consistent
vlth what is being procured.
Thin decision relates to our Office's review of certain awards
made, under the Transportation Control Flan Public Affairs Program
of the Environmental Protection Agency (EPA).
The solicitation in question all Involve procurement of similar
services and will, therefore, be discussed as a whole rather than
individually. The services desired were public education and infor-
mational programs dealing with transportation control strategies
needed to achieve ambient air standards in 38 major metropolitan
areas throughout the United States, tn all the questioned procure-
nt, swards were made on a noncompetitive negotiated basis.
Each of the awards, save one, was justified on the basis that
the services would be performed by nonprofit, tax exempt, volunteer
cititena organizations, each having an objective to work for clean
air through education. It was determined that the organizations
•elected were the ideal cross section of the communities Involved
to publicize the clean air educational program. Moreover, these
organizations were selected because the majority of their efforts
were to be performed on a volunteer basis by community leaders,
university personnel, civil servants, state legislators, businessmen
51
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B-166506
and representatives of area environmental and civic organizations.
further justifications for the noncompetitive procurements vere
aa follows: rapport and understanding of state and local Govern-
ment,, key memberships, respected position, community support, and
a coalition approach.
We do not, however, believe that the above-stated reasons
represent proper Justifications for obtaining the services on a
noncompetitive basis.
In the conduct of Its procurements, EPA is subject to the
Federal Procurement Regulations (fPR), 41 Code of Federal
Regulations, chapter 1, as well as its own procurement regula-
tions, EPPR, published at 41 Code of Federal Regulations, chapter
IS. fPR 1-1.301-1 states specifically that "All purchases and
contracts, whether by formal advertising or by negotiation,
•hall be made on a competitive basis to the maximum practicable
extent." FPR 1-1.302-1 Cb) provides that "Irrespective of
whether the procurement of supplies or services from sources
outside the Government is to be effected by formal advertising
or By negotiation, competitive proposals * * * shall be solicited
from all such qualified sources as are deemed necessary by the
contracting officer to assure such full and free competition
as Is consistent with the procurement of types of supplies and
services necessary to meet the requirements of the agency
concerned."
In the past, our Office has recognized that noncompetitive
awards may be made where the item or services are unique
(B-17S953, July 21, 1972}; where time Is of the essence and only
one known source can meet the Government's needs within the
required timeframe (52 Coop. Gen. 987 (1973)); where data is
unavailable for competitive procurement (B-161031, June 1, 1967);
or where it is necessary that the desired item manufactured
by one source be compatible and interchangeable with existing
equipment (B-152158, November 18, 1963). See, also, SO Comp.
Gen. 209 (1970). To the extent that a nonprofit, tax exempt,
volunteer citizens group falls within one of the preceding
examples, a noncompetitive procurement may be justified.
However, we find no authority justifying a noncompetitive
award solely on the basis of a firm's status as either a non-
profit organization, a tax exempt entity, or a volunteer citizens
group. Moreover, we can find no authority to support any of the
further justifications for making noncompetitive awards.
52
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B-166506
Additionally, the justifications for award contained In the
record indicate that there are other firms or organizations
available to provide the services, but that these other entities,
if-awarded a contract,'night, in EPA's view, have a more difficult
tine putting forth EPA's message for one reason or another.
The fact that a particular group can perform the services with
greater ease than any other group or firm does not,"in our
opinion, justify a noncompetitive procurement to the exclusion
of others. We note, in this regard, that these reasons seen
contrary to the specific bases stated for making award to a
private firm in the New York. City area.
While It Bay not be in the best Interests of the Government
at this point in tint to disturb the awards in question, we do
have serious reservations concerning future sole-source procure-
ments for these types of services. In our opinion, there Is
no overriding uniqueness in the fact that a firm is either a
consortlira, tax exempt, or a nonprofit organization. It is
clear that several organizations throughout the United States
have the ability to disseminate the EPA message. Therefore,
vblle nonprofit organizations may be able to quote a lower price
for these services, other organizations should he afforded an
equal opportunity to compete.
We, therefore, recommend that EPA eliminate any noncompetltive
restrictions In future procurement for this type of service.
JH
Deputy Comptroller GenerarV,,
of the United States
53
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Comptroller General Decision B-166506, July 26, 1974
Environmental Protection Agency sole-source procurements
Having read the preceding decision, prepare to answer the following questions.
1. How did this decision come about?
2. Whose interests are being examined in this decision?
,X
3. What impact has this decision had on the EPA procurement process?
4. How does this decision affect the work of Project Officers and other
technical personnel?
54
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TOPIC VI. REQUESTS FOR PROPOSALS, SOURCE EVALUATION AND
ASSESSMENT, THE CONDUCT OF NEGOTIATIONS, AND
TREATMENT OF UNSUCCESSFUL OFFERORS: MAJOR
CONSIDERATIONS IN THE AWARD-MAKING PROCESS
PRE-AWARD TECHNICAL AND PROCUREMENT PLANNING
Source evaluation and selection is performed in accordance with PIN 77-15, dated
February 7, 1977, A copy of this PIN is included in the Reference Materials portion
of this volume.
I. THE SOLICITATION PROCESS
A. Basic Objectives
1. To inform (about the requirement)
2. To specify (conditions of solicitation) , .,..
3. To encourage (competition to the maximum practical extent)
4. To require (responses in consonance with specified format for
submission) , •/. ,,-..,. ,, •/., „, •/;•:*-"•:
_ .'!«*"'
B. The Solicitation Document (RFP); What Is It and Why Is It Important?^
1. Responsibility for preparation and review: who does what?
2. Structuring the solicitation document
a. Major sections (indicative)
• Cover letter and information
• Instructions to offerers (proposers)
• Draft contract schedule
• Work statement
• Evaluation crite
• Boiler Plate —
•Yvt'-H i [..(I,-'
b. The RFP as a medium for enforcing national priorities, programs,
and socioeconomic goals
• EPA's Small Business Program
•*<.*-«••... , '. v.'l,.,.---•>« / ."'* /'"( i '< !•('''/< <(
• EPA's Minority Business Enterprise Program
• Davis-Bacon-
55
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• Service Contract Act - *
H. PROJECT/TECHNICAL PERSONNEL IMPACT ON THE SOLICITATION
AND AWARD-MAKING PROCESS
A. Determinative Inputs to the RFP
1. The contract schedule
2. Qualification criteria (i.e., when appropriate, criteria that define the
type or kind of source considered suitable to perform)
3. Evaluation criteria (i.e., specified factors in light of which submitted
proposals will be evaluated and ranked)
TECHNICAL FUNCTION IMPACT ON
SOLICITATION, EVALUATION AND AWARD
SOLICITATION
• EVALUATION
PTOTOMEM
PROPOSAL
EVALUATION
RESULT
ACCEPTABLE
ACCEPTABLE
UNACCEPTABLE
ACCEPTABLE
* (MARGINAL)
(MARGINAL!
COMPETITIVE '
RANGE DETERMINATION
. WHO'S IN ...»
• WHO* OUT ...»
• WHAT TO DO ABOUT
IT ... 7
• WHO'S IN CHAHOE7
• AWARD
CONTRACTINGIWFICER
••RESPONSIBLE
• HAS TO RELV (IN TECHNICAL JUDGMENTS
•- JUSTIFICATION FOR AWARD IAND NOH-AWAHDI
REFLECTING TECHNICAL AND OTHER EVALUATION ACTIONS
B. Proposal Evaluation Criteria and Competitive Range Determinations for
Competitively Negotiated Procurements
1. Must the RFP identify and articulate the evaluation criteria (factors)
and provide a reasonable idea or specific numerical identification of
their relative importance? Yes.
56
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2. Must the stated evaluation criteria clearly indicate the relative
importance of each criterion? Yes.
3. How has the Comptroller General stated the principle requiring
evaluation criteria disclosure in RFPs?
"Intelligent competition requires, as a matter of sound procurement
policy, that offerers be advised of the evaluation factors to be used
and the relative importance of those factors. Each offeror has a
right to know whether the procurement is intended to achieve a
minimum standard at the lowest cost or whether cost is secondary to
quality. Competition is hardly served if offerers are not given any
idea of the relative values of technical excellence and price." (52
Comp. Gen. 161, 14 G.C./394)
4. Must the criteria set out in 'the fttfP be the criteria actually used in
evaluation? Yes.
5. Can they change in the course of the solicitation process? Yes.
Must contenders be advised of the change(s) and given the
opportunity to modify their proposals accordingly? Yes.
6. Where specific percentages or weights are not specified, must the
stated evaluation criteria be listed in descending order of
importance. Yes, where the descent is relatively slow and uniform.
(But relative importance of each often should be stated.)
7. What if the descent of non-weighted criteria is interrupted by a
factor(s) that represents an exceptionally large or small part(s) of
the overall scoring? Then the predominant value of that factor(s)
should be indicated in the RFP at least in some narrative form.
8. Is an evaluation based on a comparison of an offerer's score with a
predetermined score for acceptability proper? No, such a
comparison is improper.
9. Who is responsible for determining the competitive range? The
Contracting Officer. On the basis of what factors? Those
determined to be salient to the procurement (i.e., technical,
price/cost, delivery, and so forth).
10. When is the competitive range determined? Once proposals have
been received, an initial screening is done to rule out those that are
technically unacceptable. Those remaining are then evaluated and
scored from both the technical and business standpoint. Meaningful
discussions are then held with those offerers determined by the
contracting officer to be within the competitive range. These
discussions are limited to clarification and do not provide
opportunity for correction of deficiencies.
57
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11. When must a proposal be regarded as being in the competitive
range? It must be regarded as being in the competitive range unless
it is so technically inferior or out of line with regard to price that
meaningful discussions are precluded.
12. What's that mean? It means that a proposal is in the competitive
range as long as there is real probability that it can be clarified to
the point where it becomes the most acceptable.
58
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COPY
B-174589 (2) March 28, 1972
Dear Mr. Ruckelshaus:
Enclosed is a copy of our decision of today to Envirotronics denying its
protest against the award of a contract to Franklin Institute Research Laboratories
pursuant to request for proposals No. CI 72-0003, which was the subject of a report
dated February 23, 1972, from the Assistant Administrator for Planning and
Management.
There are two aspects of this procurement which require comment. We have
many times stated that when a point evaluation formula is used in the evaluation
process, as here, sound procurement policy dictates that offerors be informed as to
the evaluation factors and their relative weight or importance. See 50 Comp. Gen.
59, 61 (1970), and cases cited. The RFP in the instant case was deficient in this
respect. Also, as pointed out at page 60 of the cited case, we have serious
reservations as to the propriety of determining which proposals are within a
competitive range by comparing their scores with a predetermined score for
acceptability, which was apparently done here, without reference to the array of
scores actually achieved. We question whether the procedure employed is
conducive to obtaining the maximum practicable competition contemplated by the
statutes and regulations. We therefore suggest that appropriate action be taken to
prevent a recurrence of these deficiencies in future procurements.
Sincerely yours,
R.F. KELLER
Deputy Comptroller
General of the
United States
The Honorable William D. Ruckelshaus
Administrator, Environmental Protection Agency
59
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B-174589 March 28, 1972
Envirotronics
7540 Balboa Boulevard
Van Nuys, California 91406
Attention: Mr. Dale L. Carpenter
President
Gentlemen:
Further reference is made to your protest against the award of a contract to
Franklin Institute Research Laboratories by the Environmental Protection Agency
pursuant to request for proposals No. Cl 72-0003.
The subject RFP was issued on July 28, 1971, for research in scientific
literature and other specified services in connection with the offset printing of
abstracts of published papers concerning health aspects of pesticides to be used in
the publication of monthly issues of the "Health Aspects of Pesticides Abstract
Bulletin." Eight proposals were received by the closing date of August 26, 1971.
After technical evaluation of the proposals they were ranked as follows:
Technical
Rating Amount
Franklin Institute 95 $119,194
Bionetics Research Labs 85 105,000
Herner Information Service 76 89,605
Scientific Literature Corporation 68 108,000
Envirotronics 62 88,132
George Washington University 62 69,489
Allen Associates 47 51,564
The Learning Center 43 84,706
Negotiations were conducted with Franklin Institute and Bionetics as the
only offerers determined to be within a competitive range, price and other factors
considered. As a result of the negotiations, Franklin Institute's price was reduced
to a fixed price of $114,199, and Bionetics1 price was increased to $119,250.
Therefore, award was made to Franklin Institute on November 1, 1971.
You contend that your lower offer of $88,132.26 should have been accepted
as you were responsive to the RFP, offered certain advantages in techniques over
the previous contractor, and all of your personnel to be assigned to the contract
have advanced degrees in their respective fields. Also, you question the procuring
agency's assessment of your technical capabilities to fulfill the contract. Further,
you point out that your firm submitted a Certificate of Eligibility for preference
under Defense Manpower Policy No. DMP-4. Finally, you object to an award to a
"non-profit" concern for $26,000 more than your offer.
60
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B-174589
The negotiation of this procurement was subject to Federal Procurement
Regulations (FPR) l-3.805.1(a) requiring written or oral discussions with all
responsible offerers who submit proposals within a competitive range, price and
other factors considered. It has been held that "other factors" includes the
technical acceptability of proposals. See 46 Comp. Gen. 606 (1967). We have also
held that the determination of competitive range, particularly as regards technical
considerations, is primarily a matter of administrative discretion which will not be
disturbed by our Office in the absence of a clear showing that such determination
represented an arbitrary abuse of discretion. See 48 Comp. Gen. 314, 317 (1968).
In the instant case, the procuring activity employed a rating system to
determine competitive range. Criteria, maximum possible scores, and the scoring
of your proposal were as follows:
MAXIMUM
POINTS
CRITERIA POSSIBLE RATING
Understanding of the problem 25 15
Method of approach 15 10
Completeness and novelty of ideas 5 4
Adequacy of required facilities 15 12
Quality of proposed personnel 20 16
Rated experience 20 5
TM 62
In explaining its evaluation of your proposal, the agency states the following:
" *** As stated in our memorandum of September 22, 1971, their proposal,
for the most part, constituted an echo of our own work scope. There was a
lack of definitive information on a program for executing the requirements
of the work scope and accomplishing the objectives of world-wide coverage
of the literature. In our opinion, the information that was furnished on
operational procedures was superficial and gave no indication of any
in-depth investigation or planning.
This company has been in existence since March 1970, and at the time of
this bid, they were just over a year old. Because of this fact, they could not,
as they stated, specify any accomplishments in this field. The designated
Project Officer did not have graduate training, or the equivalent, in library
or information science as specified in the contract. Nowhere in their
proposal was there any evidence that any of their staff members had ever
worked on a project of this specific nature. We agree that they appear to
have assembled a staff of competent scientists who would be an asset on a
project such as the abstract bulletin, and we rated them accordingly on this
61
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B-l74589
aspect. We believe also, however, that these qualifications alone are
inadequate for meeting the requirements of this project and any experience,
on the part of the company or the individuals concerned, in publishing any
periodicals of this nature is completely lacking.
"The proposal stated that they have competence in French, Spanish, German,
Chinese, Russian, and Dutch but provided no information on how they would
handle other languages, e.g., Japanese, Italian, Norwegian, Swedish, and
Danish.
"They stated that they planned to use a computerized photosetting system
for printing the publication, and again we rated them high in novelty of
ideas. The previous contractor was using an IBM composer for preparing the
Bulletin; however, except in the initial stages of the original contract, they
used a technique that did not require paste-up page layouts as stated by
Envirotronics. For a new contractor, the paste-up method does provide
some needed flexibility, particularly with respect to chronology, in
preparation of their first issues. Furthermore, in the opinion of the head of
our Data Management Section, the OCR scanning equipment has not been
developed to the point of sufficient accuracy, and he questioned the ability
of this equipment to read superscripts, subscripts, and other symbols. Also
in his opinion Envirotronics has underestimated the effort required to
program for extraction of the quarterly subject and author indexes."
In these circumstances, we see no basis for concluding that the evaluation
was arbitrary or without a reasonable basis. Since this procurement was not a
set-aside for labor surplus area concerns, your certified eligibility did not entitle
you to any preference in the negotiations. Finally, Franklin Institute's status as a
non-profit concern is not a factor affecting the award.
Accordingly, your protest is denied.
Very truly yours,
/s/ R.F. KELLER
Deputy Comptroller
General of the
United States
-------
Comptroller General Decision B-l74589, March 28, 1972
Envirotronics
Having read the preceding decision, prepare to answer the following questions.
1. What did the Comptroller General find in need of improvement regarding
evaluation criteria?
• /'..'/A'VW / Aii/ (r/y/ sz&tt *4 kf j&Jft&',4
i . '
2. How is the use of a predetermined threshold score viewed by the
Comptroller General?
3. Who is the "winner" in this instance?
63
^u
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VIGNETTE NO. 4; KEEPING IN TOUCH . . . MEANS SO MUCH
Brad Langsley, the Onward Company's proposal manager for research and
development efforts, was organizing his thoughts about responding to a Request for
Proposals that had appeared on his desk a few days ago. After examining the RFP's
proposal evaluation criteria, he placed a call to Doug Rose, who he knew would be
the Government's Project Officer for the job. The following conversation took
place.
Doug; (ANSWERING THE PHONE) "R«5cD Section. Rose here. Can I help you?"
Brad; "Hi, Doug. Brad Langsley from Onward.... How's it goin'?"
Doug; "Straight up and flat out, Brad. How 'bout yourself?"
Brad; "Hangin1 in, my friend. Say, we got that RFP you and I talked about a few
weeks ago, and we're real anxious to submit a proposal. But first I need
some clarification."
Doug; "What's the problem?"
Brad; "Well, I'm not sure there is one, but just to be on the safe side, let me run
this by you. Been looking at the evaluation criteria, Doug, and a few things
make me twitch a little."
Doug; "Like what?"
Brad; "Well, for starters, I see you've placed personnel way up there in emphasis
and, I assume, points. Now, don't get me wrong. It's not for me to say how
you should do it. And I'm not being critical, Doug, believe me. But it seems
to us that you guys are asking for it...you know, the old information
dump...resumes that just won't quit'"
65
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Doug: "Yeah...well...we know that. We go through it all the time around here. But
you've been there before, Brad. What's so different this time?"
Brad: "Well...probably nothing, as we see it on the surface. But the surface is
about all the RFP gives us to go on, Doug. I mean, assuming you guys have a
1,000-point scale for your evaluation factors, you've probably got 200 points
of it set aside for personnel—it sounds like the biggest item on the list. But
there isn't a whole lot for us to go on in terms of what you really want."
Doug; "Hm-m-m...well...that's not so. We've specified that you have to identify
individual backgrounds, consultants versus company staff people, what
experience they bring to the job...all that stuff."
Brad; (IN ALMOST METERED TONES) "No problem with that at all. Our concern
is that we want to be as responsive as possible to each of those subcritera.
We want to give you the very best we've got...and you know as well as I do
that we've got a lot of the best to give."
Doug; "We know that, Brad. That's why we've put so much emphasis on personnel.
We're not anxious to have this job done by a second-rate horde of gypsies.
We want the best...if we can get it. And we figure that one way to separate
the chaff from the wheat is to concentrate heavily on personnel. I can
assure you, we have no intention of going to any one other than a really good
performer for this one. You know the field. There aren't more than four or
five outfits that could really measure up to this job."
Brad1 "1 near ya» mv fpiend, but you guys don't award the contract. And given the
way you've specified the proposal criteria, you may have just sent out an
open invitation to the very type of people you don't feel can do the job."
Doug; (WITH A SLIGHT CHUCKLE IN HIS VOICE) "Look, Brad, there are times
that we may not appear to look too bright, but we're not stupid. Once we
get the technical proposals in hand, well separate the men from the boys.
You can depend on that. About 100 of those suggested 200 points you've
mentioned relate to current or recent experience. You guys shouldn't have
to worry about that. Incidentally, do you remember Marty Reisen?"
Brad; (PLEASANTLY TAKEN ABACK) "Marty? Well, sure. We've worked with
him on a half-dozen projects over the last two or three years. Very capable
guy, but what's he got to do with it?"
Doug; "Plenty. He's only the chairman of our tech evaluation committee for this
job! His say-so on who's gonna get it will be mighty important."
Brad; "Well son-of-a-gun! I'm glad to hear that. Kind of restores my faith in the
system.... Hey look, Doug, I know you're awfully busy, and I won't
66
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take up any more of your time. Thanks for the information. Well be in
there on this one, no doubt, competing just as hard as we can. And if we're
gonna do that, Fd better get off the horn and on the job! So...take care, my
friend...and take it easy."
Doug; "Okay, Brad, and the same to you. Hope I was helpful. So long."
• What do you perceive has happened here?
Copyright 1977, Sterling Institute (DAC)
67
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C. EPA Evaluation Procedures for Technical Proposals (PIN 77-15)
1. Initial Review. Technical proposals shall be reviewed promptly after
the time and date for the receipt of offers—to determine if any of
the offers are so technically deficient as to conclusively remove them
from further consideration.
2. Scoring Plan. The scoring of offers must be done through the
application of a predetermined scoring plan consisting of numerical
values.
3. Scoring system. The Source Evaluation Board, or contracting officer
in the case of procurement actions not in excess of $1,000,000, shall
prepare a scoring system for evaluating each offer against each
evaluation criterion set forth in the solicitation.
4. Evaluation Guidelines. The evaluation of offers requires the exercise
of careful judgment on the part of each evaluator. Offers must be
carefully read and analyzed before the scoring plan is
applied—evaluators should consider the following:
a. Avoid "reading into" or "reading out of"
b. Avoid tendency to interpret
c. Avoid infusion of personal knowledge
d. Recognize scoring as use of subjective judgment
e. Recognize individual differences of evaluators' conclusions
f. Recognize ambiguities, inconsistencies, and other factors that can
affect scoring
g. Recognize "catch phrases" and "buzz words"
h. Recognize the difference between substance and glossy
presentation format
i. Recognize flattery by the offeror
j. Avoid the influence of "first impression"
5. Ranking. The assignment of numerical scores to an offer determines
the relative rank of that offer with respect to other offers.
68
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D. Contract Negotiation and the Role of the Project Officer and Technical
Personnel; A Brief Look
1. Contract negotiation by tradition among buyers and sellers
Negotiation is a process of bargaining among two or more parties,
each with its own viewpoints and objectives, who are seeking to reach
a mutually satisfactory agreement on, or settlement of, a matter of
common concern.
2. Responsibility of Contracting Officers (FPR 1-3.801-2)
a. Acting within the scope of their appointments (or through
authorized representatives) are the exclusive agents of their
agencies to enter into and administer contracts on behalf of the
Government.
b. Responsibilities, while delegable, are not transferable.
c. Coordination of a negotiation team effort, if a team is required.
• What needs to be coordinated?
- Planning and prenegotiation preparation
- Factfinding and analysis
- Negotiation session inputs and prescribed roles
• What may happen in the absence of coordination?
- Unfounded concessions and compromises
- Professional embarrassment
- Troublesome procurements
3. The role of technical personnel in the negotiation process
a. Analyzing proposals
• Evaluating and assessing for technical merit
• Identifying, analyzing and assessing resource needs and
estimates
• Evaluating resource allocations
b. Planning and prenegotiation preparation
• Identifying an agenda of technical information needs and/or
issues
69
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• Helping to determine/uncover proposal weaknesses that need
clarification or explanation
• Surfacing proposal strong points that need to be reinforced
c. At the negotiation meeting
. • Supporting the contract specialist in keeping track of technical
• discussions /. / "7 • / ;
• Working through the contract specialist in discussions
concerning technical aspects of the requirement
• Coming prepared
HI. TREATMENT OF UNSUCCESSFUL OFFERORS
A. Requirements for the Contracting Officer to Notify the Unsuccessful
1. Pre-award notification of unacceptability for procurements over
$10,000
a. When period of evaluation is likely to exceed 30 days
b. When limited number of offerers have been selected for negotiation
c. In any case, only when disclosure will not prejudice the
Government's interest
"When during the process of source evaluation, the competitive
range is determined and an offeror is determined to be within the
competitive range for a specific category(s) of work required by
the solicitation and outside the competitive range in other
category(s) of work, the offeror shall be promptly notified that,
after evaluation, it has been determined that he is outside the
competitive range for a certain category(s). The procedure is
applicable when multiple awards based on distinct categories of
work are anticipated. The purpose is to put the offeror on notice
that an offer for a specific category(s) of work will not receive
further consideration." PIN 77-15
2. Written post-award notification of unacceptability for procurements
over $10,000 indicating
Written notification indicating
a. Name of the successful offeror
70
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b. Awarded price or cost
c. Number of proposals received, but not prices quoted by other
offerers """"
3. Information in addition to post-award notification—a debriefing
session, if requested in writing
B. The Interests of the Unsuccessful
1. Proposal preparation requires time and money.
2. Proposal shortcomings may reside in misunderstanding and ignorance.
3. A little education can go a long way.
4. Some equate award to others with a biased selection process.
C. The Government's Interest in the Unsuccessful
1. Debriefing is the process by which the Contracting Officer (and
:oTfiers, If appropriate)
a. Provides an unsuccessful offerer with the Government's evaluation
of the significant factors contained in its proposal, citing
determinative weaknesses.
b. Identifies those factors that were the basis for selecting the
successful offerer (i.e., quality of proposal, cost or price, or
whatever).
c. Does not reveal any confidential business information or the
relative merits or technical standing of other offerors.
2. Summary report of the debriefing session must be placed in the
contract file.
-------
TUB COMPTROLLBFt OBNBRAI.
DEOIBIOIM (•dn^MS)-] o** THE UN ire D STATEB
WASHINGTON. D.C, a O B 4 B
FILE: B-188542 DATE: August 16, 1977
MATTER OF: Rockwell International Corporation
DIGEST:
1. Call for new round of best and final offers, as result of
various material changes made to specification requirements
after submission of best and final offers, is justified and
does not constitute auction technique. Agency had no alter-
native but to institute a second round of negotiations. More-
over, record indicates that price revisions made under second
best and final offers were primarily result of changed require-
ments and correction of proposal deficiencies.
2. Costs of phasing in new contractor may be evaluation factor
where considered desirable to do so but only if solicitation
so provides.
'3. Determinations of proposal merits are matter of agency dis-
cretion which will not be disturbed unless demonstrated to
be arbitrary or unreasonable, and instant record fails to
provide evidence of objectionable evaluation.
Rockwell International Corporation (Rockwell) protests the
manner In-which a cost-plus-award-fee contract was awarded to
Xonics, Incorporated (Xonics). The award was made by the
Environmental Protection Agency (EPA) under request for proposals
(RFP) DU-76-B079 for the operation and maintenance of the CHAMP
(Community Health Air Monitoring Program) air monitoring system,
operated by the Health Effects Research Laboratory, Research
Triangle Park, North Carolina.
Rockwell's primary contention is that EPA personnel engaged
in a prohibited "auction technique" and conferred an unfair com-
petitive advantage on Xonics when, after best and final offers had
been received and EPA had tentatively selected Rockwell for final
negotiations and had advised Xonics that the selection was based
on Rockwell's superiority in technical jn&rit and lower cost, EPA
reopened negotiations and requested an additional round of best and
final offers.
72
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Comptroller General Decision B-l88542, August 16,1977
Rockwell International Corporation
Having read the preceding digest of the decision, read paragraph IS of PIN 77-15 in
the Reference Materials and prepare to answer the following questions.
1. Why do you think an offerer should question EPA's decision to call for an
additional round of "best and final" offers?
L
//
2. What is the purpose of a "best and final" offer:
a. As perceived by the Government?
b. As viewed by the offeror?
3. Why did the Comptroller General decline to question or examine the
merit of the proposal?
4. What are some ways in which the need for successive rounds of best and
final offers may be avoided?
73
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ECOSYSTEMS, INC.
Harry Allen, contract specialist in the Contracts Management Division, was
perplexed. It was Monday morning, and after opening his mail he sensed a problem
in the offing. At the close of business last Friday, the closing date for submission,
he had had three proposals in hand responding to an EPA requirement. He now was
holding a fourth, for the same requirement, which had just arrived in his in-basket.
He now had to consider what should be done with the additional proposal.
He leaned back and reflected on the solicitation phase he thought had ended
last Friday. Things had gone well for this one, and he certainly wasn't looking for
any problem that might interrupt a smooth pre-award proposal evaluation and
source selection phase. As always, it had been made clear to him that time was of
the essence.
Six weeks ago, Requests for Proposals had been forwarded to five firms in
light of an EPA-generated requirement for the development of new energy
pollution control devices to test the spread of industrial waste fumes. Although
there were several established firms in the pollution control technology field, a
decision had been made to solicit only those firms believed to be most capable.
The in-house cost estimate for the work to be done amounted to $365,000.
The RFP announced that a cost-plus-a-fixed-fee contract (CPFF), completion form,
was contemplated for the procurement. And, as required, the procurement had
been synopsized in the Commerce Business Daily, with appropriate inclusions
designed to identify factors determined to be necessary for the consideration of
any source interested in responding.
Three of five sources solicited had responded with timely proposals (New Era
Systems, Inc., Energy Safety Systems, and Hawkeye Associates). The remaining
two had indicated that ongoing workload commitments made it impossible for them
to respond to the expressed requirements for performance and delivery.
Two additional sources had requested an RFP as a result of the
procurement's synopsis in the Commerce Business Daily. One of them, the
Spearhead Co., had been technically evaluated by EPA for a similar procurement
four months ago and found unqualified. This source was denied an RFP.
Copyright 1976 by Sterling Institute, Inc. This case example is designed for
teaching purposes only. It does not necessarily indicate the policy or practice of
any Federal Department or Agency, or of any company or corporation. Names,
items, figures, and other elements are fictitious and were created to provide a
framework for class discussion.
75
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The second firm, Ecosystems, Inc., was largely an unknown. EPA technical
and contracts personnel had only limited knowledge of the firm's capability and
personnel. It had been in business for about seven years and had done no research
work of any sophisticated character for EPA. But a search of the performance
record for work it had done in other research-related activities within EPA
surfaced a responsive and positive record of achievement. The firm was sent an
RFP.
During the solicitation phase, Ecosystems, Inc. had called on several
occasions for technical clarification of the statement of work. Harry Allen
recalled his delight in having uncovered another source for the procurement,
affirming his own judgment about the utility of synopsizing in the Commerce
Business Daily. Yes, things had seemed to go well, but the situation at hand needed
to be resolved. The contract specialist's first move was to undertake a quick
desk-top review of the four proposals. As he flipped through the pages of each, he
jotted down the following data:
Proposer Cost Estimate Proposal Arrived
New Era Systems, Inc. $450,000 Last Friday
Energy Safety Systems $390,000 Last Friday
Hawkeye Associates $422,000 Last Friday
Ecosystems, Inc. $330,000 * Today
(•Ecosystems, inc. proposes a firm fixed-price alternative of $365,000 to its
cost-plus-a-fixed-fee of $330,000.)
Shaking his head, he said to himself, "Too bad, looks like this Ecosystems,
Inc. outfit might have given the competition a run for the money. But in fairness
to the other three, we simply can't consider a late proposal."
He had no sooner come to that conclusion and laid the four proposals to one
side, when an Air Mail/Special Delivery letter arrived at his desk. It was from
Energy Safety Systems modifying its original cost proposal by quoting a new CPFF
estimate of $370,000. The explanation for the modification read, in part, as
follows: "The revised estimate enclosed herewith reflects a correction of our
technical assessment of the research manhours to be applied, both in meeting the
requirements as well as for feasibility study tasks identified in the RFP's statement
of work."
"One late submission right on top of another," he grumbled. "I wonder what's
next'"
1. Assess the presolicitation decision to send the RFP to only five sources,
when the known source-base included other firms. In view of the decision to
limit the solicitation, should this procurement have been publicized in the
Commerce Business Daily? t \
76
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2. In responding to the CBD synopsis, one source was found unqualified and
denied an RFP. Is such a finding permissible? How would the Government
defend this decision if the firm were to protest? <# ,
' '•'•
3. What possible impact or influence might "technical clarification" discussions
with Ecosystems have on this procurement? ..:-.-''
4. How important are estimated cost projections in a procurement of this
kind? Why do you think Ecosystems submitted an alternative firm
fixed-price proposal to meet the requirement?
,>y
5. Do you agree with the contract negotiator's determination that Ecosystem's , .:////
proposal should not be considered because it is late? ^-.-^^ ^*" ^ ','' j ./
' ^ '
6. Were you Harry Allen, what steps would you take to determine lateness in
this case in order to deal with the situation accordingly?
7. What is the role of technical personnel in dealing with late proposals?
>:./, / '/* .^ 'h^i'M
8. What action should be taken concerning the cost proposal modification
received from Energy Safety Systems?
11
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D. Protests to the General Accounting Office (GAP)
1. The role of the General Accounting Office
a. Basis for "assuming" jurisdiction over bid/proposal protests
• As arm of Congress, has a statutory obligation to report illegal
expenditures and contracts to Congress
• Has statutory duty to audit and settle public accounts
• Has obligation to assure that laws and regulations relating to
expenditure of public funds are complied with
b. GAO decisions on bid/proposal protests are regarded as final and
conclusive on the contracting agency
2. Traditional GAO postures in considering protests
a. Impropriety versus illegality
b. Tests of arbitrary and capricious actions by procurement official
3. Prescribed protest procedures (protest stops everything)
GAO Regulations (Title 4, Chapter 1, Part 20 of the Code of Federal
Regulations)
4. GAO Protest Statistics (see Reference Materials)
78
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TOPIC VII. PERFORMANCE ARENA POSTULATES, ORIENTATION
CONFERENCES, AND PROGRESSING SYSTEMS AND
SURVEILLANCE
POST-AWARD TECHNICAL AND CONTRACT ADMINISTRATION
Those negotiated contracts which require technical monitoring by EPA technical or
program personnel will include specific contract language that defines the
authorities of the designated Project Officer.... In seeing that his contract
program is properly carried out, the Project Officer should assure that contractor's
progress is monitored and, if necessary, controlled.
I. SOME CONTRACT PERFORMANCE ARENA POSTULATES
A. Contract Knowledge
1. The contract and what it says is the instrument governing^
performance, not what one assumes it was supposed to say or wishes
it might have said.
2. "When all else fails," relates the old saw, "read the contract."
B. Work Scope Changes
A change in scope is a new procurement, requiring a Procurement
Request/Requisition, justification, estimated cost, and written
recommendation to the Contracting Officer for action.
C. Contract Modifications
4
''"•'
' Whether a change is in-scope or out-of-scope, only the Contracting
Officer is authorized to modify the contract.
!•"•':'
D. Contract Performance
This is where it's at. Noncompliance of the performer should be noted
for appropriate Contracting Officer/ Project Officer coordination and
action.
E. Contractor Communications
Keep it straight and keep a record.
F. Trips to Contractor's Site
Make trip reports that honestly reflect conditions of performance and
ongoing contractor operations.
G. Progress Payments/Vouchers
O>• • . /- u ,.;i /<• //•« ( 11 <-/'.'<.
-------
Relate payment to performance achievements; relate contractor billings
to work accomplished.
H. Progress Reports
Tell it like it is—good or otherwise.
I. Correspondence
1. Keep it as simple as possible and be certain to commit a copy to the
contract file.
2. Remember that you are communicating within a contractual
relationship.
J. Contract Completion
Requires the submission of some kind of certification and evaluation of
satisfactory completion, as well as delivery and acceptance.
K. Government Personnel Restrictions
The obligation of funds in excess of those appropriated (or in advance of
! those to be appropriated) is a violation of the law (Anti-Deficiency Act)
for which consequences are prescribed.
H. POST-AWARD ORIENTATION CONFERENCES -<*
A. Initial Action and Establishment
1. Determination after contract award that the performer and EPA need
to convene to discuss scope of work, technical requirements, and/or
other information that will impact work or tasks to be done
2. Should be established and chaired by the cognizant Contracting
Officer, or by an authorized representative
B. Agenda and Participants
1. Agenda (or checklist) may include such matters as: clarification of
specifications and other work requirements; special contract
provisions; milestone planning and determinations; processing and
procedure for modifications during performance; reporting
requirements; billing and payment procedures; and possible
performance problem areas
2. Participants: EPA project and contract management personnel,
contract performer representatives, and others as appropriate
C. Conference Procedure
80
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1. Businesslike, recognizing that parties are in a contractual relationship
2. Commitments (if any) and clarifications among parties put in writing
3. Summary report prepared covering significant items discussed, areas
requiring continuing resolution, any controversial matters, and
assigned responsibility for post-conference actions (if any)
III. PROGRESSING SYSTEMS AND SURVEILLANCE
A. Basic Objectives of Management Control Systems and Their Data Outputs
1. To provide an accurate record of work progress
2. To relate cost, schedule and technical performance to each other
3. To be valid, timely, and auditable
4. To supply management with meaningful data summaries
B. Management Control Systems Permitting
Effective Monitoring and Surveillance
1. Oriented to tasks or work breakdown structure activities
2. Discrete package reporting of cost, schedule, and performance
3. Tailored systems that provide exactly (not more than) what is needed
4. Timely systems that report in light of prescribed milestones
C. Difficulties in Progressing Research, Study, and Investigative Efforts
1. Nature of uncertainty
2. Unanticipated problems
3. Unanticipated breakthroughs
4. Over-management as a possible performance depressant
D. Potential Problem Areas
1. Change control
2. Planned and actual versus reported levels of achievement
81
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3. Timely monitoring for effective surveillance
4. Progress report validation and verification
IV. TECHNICAL ADMINISTRATION AND TECHNICAL DIRECTION: UNDER-
STANDING THE DIFFERENCE
A. Technical Administration
1. The performance of prescribed responsibilities or the execution of
actions as set out by EPA issuances or directives, and sometimes
reflected or noted in a contract
2. For instance: the responsibilities identified by EPA for Government
technical representatives in their administration of performance
efforts
B. Technical Direction
1. The contractually prescribed authority to redirect contractor (per-
former) effort during contract performance
2. Where a specified individual is named (usually after contract award)
as the contract Project Officer
3. If appropriate, usually specified in the solicitation document (RFP) as
a special (or nonstandard) provision that will appear in any awarded
contract
4. For instance: a specific contract provision that identifies the person
who has the authority, the extent of that authority, and what
limitations have been placed on it*
*It is very important that the concept and consequences of technical direction be
understood within the context of any specific contract. In some instances,
authority and responsibility for technical direction are identified within individual
contracts. Some activities prepare kits to assist project personnel in the execution
of technical direction during contract performance. But even with the best of
intentions, unauthorized (as well as seemingly authorized) technical direction may
lead to unauthorized contract changes, and subsequent contractor performance may
create difficulties in a number of areas for which there are no remedies under the
contract.
Usually technical direction means direction within the general scope of the
contract, issued in writing by a technical officer named in the agreement or
contract. The agreement or contract defines the extent of authority for direction.
This statement or clause must further state that technical direction may not
constitute a basis for increase in cost or price, or serve as a basis for delivery
schedule extensions. If used, it should make clear that changes to work otherwise
agreed to in expressed terms, conditions, or specifications are subject to
formalized procedures and Contracting Officer action under the Changes clause of
the contract.
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TOPIC VIII. CONTRACT MODIFICATIONS, HANDLING CASES OF
UNSATISFACTORY PERFORMANCE, AND CONTRACT
COMPLETION AND CLOSEOUT
POST-AWARD TECHNICAL AND CONTRACT ADMINISTRATION
The Contracting Officer is the only Government representative authorized to make
any type of contract changes outside of the Scope of Work. The designated Project
Officer should always consult with the Contracting Officer before issuing any
direction to the contractor which may represent a change in contract requirements.
[Federal Register, Vol. 42, No. 244, December 20, 1977, EPPR 15-1.5001: A
completed contract is one which is both physically and administratively complete
and in which all aspects of contractual performance have been accomplished or
formally waived. (Physically complete: all specified deliverables have been
delivered and accepted by the Government. Administratively complete: all
administrative actions accomplished, all releases executed, and final payment
made.) Contract performance is formally terminated when a notice of termination
is issued in accordance with the termination clause incorporated into the contract.]
I. THE CONTRACT MODIFICATIONS ENVIRONMENT
A. Elements That Affect and Influence the Probability of Changed
Conditions
1. Chance and the unforeseen
2. Proper technical direction
3. Specifications requiring performance clarification
4. Performer submission of change proposals
5. Contractual encouragement of alternatives to achieve desired goals
B. Factors That May Result in Unanticipated and Unwanted Changed
Conditions
1. Hastily constructed statements of work
2. Unexamined performance or technical data packages
3. Performance definition left to post-award interpretation
4. Unrealistic requirements that result in an inability to perform them
5. Unilateral change direction without regard for contractual author-
ization and coverage
83
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C. The Language of Contract Changes; Basic Terms and Proper Usage
LANGUAGE OF CONTRACT MODIFICATIONS (I)
• WHAT IS A CONTRACT MODIFICATION?
• WHY IS THE TERM GENERAL SCOPE OF THE CONTRACT SO CRITICAL IN
DEALING WITH MODIFICATIONS?
• WHAT HAVE THE TERMS UNILATERAL AND BILATERAL GOT TO DO WITH IT?
• WHAT IS A SUPPLEMENTAL AGREEMENT?
* WHERE DOES A CHANGE ORDER FIT IN?
• WHAT MAKES FOR AN EQUITABLE ADJUSTMENT WHEN A CONTRACT IS
MODIFIED?
• WHAT IS A CONSTRUCTIVE CHANGE ORDER?
84
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LANGUAGE OF CONTRACT MODIFICATIONS
• FPR 1-1.219 (Contract Modification)
"Contract modification" means any written alteration in the specifications, delivery point,
rate of delivery, contract period, price, quantity, or other contract provision of an
existing contract, whether accomplished by unilateral action in accordance with a contract
provision or by mutual action of the parties to the contract. It includes (a) bilateral
actions, such as supplemental agreements and amendments, and (b) unilateral actions, such
as change orders, notices of termination, and notices of the exercise of an option.
• General Scope of Contract
In Government contracting, the general scope of the contract represents what both parties
oo have fairly and reasonably agreed"!s to be done or performed (i.e., the job, the task, or
01 combinations of these things). Where, as in some research and non-hardware contracts, it
becomes genuinely difficult to define precisely what is to be done, differences in scope
interpretation during performance may raise significant problems affecting not only
performance but delivery and cost as well.
Recognizing that interpretations of scope during contract performance may present problems,
the key to minimizing their occurrence is an effective and meaningful effort on the part
of technical and procurement personnel to define the scope of work as adequately as possible
for inclusion in the contract before it is signed. Advanced procurement planning, care in
the structuring of specificntions and the writing of the Statement of Work, adequate prepara-
tion of solicitation documents encouraging knowledgeable responses from contractors—all
these represent preoontrantual techniques designed to further this end. And post-award
clarification of general scope need not be a function of actual performance. Post-award/
preperformance orientations or conferences may be most useful.
• Administrative Order
"Administrative order" is not defined by the basic procurement regulations, but is usually
characterized as an amendment that corrects, changes, or in some way modifies the adminis-
trative recitals governing the contract. Normally, such orders do not require the agreement
of the contractor because they bear no relationship to contract cost or delivery. Examples
of such orders would be changes in appropriation citations, modifications of budgetary
numbers, corrections of standard forms to be used, and so forth.
-------
00
0>
LANGUAGE OF CONTRACT MODIFICATIONS
• Change Order
"Change order" is not defined by the Federal Procurement Regulations. Other Federal Agency or
Department procurement regulations generally define this term as "...a written order signed by
the contracting officer, directing the contractor to make changes which the Changes clause of
the contract authorizes the contracting officer to order without the consent of the contractor.1
• Supplemental Agreement
"Supplemental agreement" is not defined by the Federal Procurement Regulations. Other Federal
Agency or Department procurement regulations generally define this term as "...any contract
modification which is accomplished by the mutal actions of the parties."
• Constructive Change Order
A "constructive change order" is not a prescribed contractual vehicle for issuing a change
prior to commencing work under a contract. Quite the opposite is the case. Constructive
change orders result from actions or activities which, during contract performance, were
intended to clarify or to aid performance as prescribed by the contract. However, such
clarification or aid may, in the light of subsequent consideration, be determined to have
had the effect of requiring a contractor to perform work different from that prescribed
by terms of the original contract. If this were the case, then such actions may be deemed
to have constituted a constructive change order, and may permit relief to the contractor
under the Changes clause. Any course of conduct might be construed to have had the practical
effect uf requiring a contractor to perform work not originally specified. But there are
recognized limitations to application of this doctrine. Mere suggestions, for instance,
do not constitute constructive change orders. Hork which a contractor voluntarily performs
is not subject to recovery as representing the net result of a constructive change order.
The essence of prevention in this area is a recognition and respect for the constructive
change order doctrine, the exercise of care by Government representatives in their communi-
cations with contractors, and the application of constant effort to make certain that a
contractor does not misconstrue "suggestions" for "directions."
-------
CHANGE ORDERS AND THE CHANGES CLAUSE (I)
(5om»
• WHO MUST ISSUE?
• AUTHORITY TO ISSUE?-
• TIME FOR ISSUANCE? -
• FORM OF ISSUANCE? —
• SCOPE OF ISSUANCE?
CONTRACTING OFFICER
CONTRACT ITSELF
AT ANY TIME
-*~ IN WRITING
WITHIN THE GENERAL SCOPE OF
THE CONTRACT...
FOR SPECIFIED AREAS THAT ARE
SPELLED OUT IN THE CHANGES
CLAUSE ITSELF
CHANGE ORDERS AND THE CHANGES CLAUSE (II)
(Some £**ancfe/ Point*)
• MUST THE CONTRACTOR (PERFORMER) ]
PROCEED WITH A CHANGE.
AS ISSUED?
• MUST THE CONTRACTOR (PERFORMER)
CONSENT TO A CHANGE BEFORE
PROCEEDING?
• MAY THE CONTRACT COST OR PRICE
AND/OR DELIVERY SCHEDULE BE
ADJUSTED BECAUSE OF A CHANGE?
• MUST AN ADJUSTMENT BE DOCU
MENTED IN WRITING?
• IF PARTIES FAIL TO AGREE TO AN
ADJUSTMENT, DOES THE CONTRACT'S
DISPUTE CLAUSE BECOME OPERABLE?
-*- YES
NO
-»- YES
-*«• YES
-»- YES
87
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H. HANDLING CASES OF UNSATISFACTORY PERFORMANCE
A. Importance of Timely Action
1. Responsiblity to act
2. Authority to formalize action
3. Silence is not golden; it may lead to presumptions of acquiescence.
B. Range of Possible Actions by the Contracting Officer
1. Bring the particular deficiency to the attention of the performer's
contract manager verbally and ask that planned corrective actions be
included in a progress report.
2. By letter, bring the deficiency to the attention of the performer and
ask for a response including the corrective action taken or planned.
3. By letter or verbally, ask for a meeting with the performer's
management to ensure management level cognizance of the
problem(s) and a written commitment by management for corrective
action.
4. Withhold payment under appropriate provisions of the contract until
satisfactory performance is demonstrated.
C. Contract Termination
1. Types of termination
a. Termination for convenience
b. Termination for default
2. Relationship of termination and its consequences to contract type
a. Fixed-price type contracts
b. Cost-reimbursement type contracts
III. FUNDAMENTAL ACTIONS OF CONTRACT COMPLETION AND CLOSEOUT
A. Contractor Performance Evaluations
1. Purposes
a. Provide an orderly and uniform method for determining and
recording contractor effectiveness in meeting contractual
commitments
88
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b. Increase the importance to contractors of satisfying their
obligations for cost, schedule, and technical performance
c. Provide a reservoir of performance data within the Government
for examination and use in considering future procurement
2. Objectives
a. Assessment of the job in light of what was required
b. Performance-oriented critique of strengths and weaknesses
c. Factual evaluation, not one of whim, notion, or personal persuasion
B. Contractor Performance Evaluation Report Requirements
1. Contracting Officer responsible for administration of the contract:
prepares a business evaluation on EPA Form 1900-26.
2. Project Officer having overall technical responsibility for the
contract: prepares a technical evaluation on EPA Form 1900-27.
3. Completed forms filed in the contractor's bidding application file,
then coded and entered on EPA Form 1900-29 (Automated Bidder's
List Applicant Data Coding Form), and computer-stored for future
reference.
C. C+nsideratiens for Closing Completed or Terminated Contracts
1. Closing Review (Federal Register, Vol. 42, No. 244, December 20,
1977, EPPR 15-1.5002-1)
a. That all deliverables have been delivered and/or services rendered
b. That all administrative actions have been completed
2. Contract documentation (as appropriate) (Federal Register, Vol. 42,
No. 244, December 20, 1977, EPPR 15-1.5002-1 (Record of Contract
Actions — no fewer than 43 items are specified in this EPPR)
89
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VIGNETTE NO. 5; BUY NOW . . . PAY LATER
Hal Beasley, a contractor's technical representative at a Government test and
evaluation center, was discussing contract changes with Don King of the center's
quality assurance branch. Their concluding remarks were these:
Don; "Come on, Hal, you guys always gripe about what something's gonna cost'
But you never want to put your money where your mouth is until the job's
over. Wouldn't you want to know what bucks you had to give up before
someone started a job for you?"
Hal; (WITH A SLIGHTLY FRUSTRATED TONE) "Well, of course, Don ... if I
were buying bubble gum or nuts and bolts! But that's not my point."
Don; "Oh? What is±your point?"
Hal; "Simply put, it's this: the problem with the Government's approach to
contract changes is that it puts the cart before the horse."
Don; "Really. How's that?"
Hal; (LEANING FORWARD AS THOUGH READY TO BRING IT HOME) "It's like
this, my friend. You insist on forward pricing for the kind of work that
research and study-task changes involve — the kind that have a cost hook in
them every time you turn around. What you guys oughta do is issue your
changes first and then deal with their cost, performance, and schedule
impact once the work has gotten underway. And you know why? Because
delayed pricing favors the Government. It provides you with an opportunity
91
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to assess actual costs more accurately, instead of having to mess around
and guess about projected ones. Delayed pricing is bound to give you the
clearer picture ... it's like dealing with facts instead of fiction. Now
come on, Don, you know that makes good sense, don't you?"
If you were in Don King's position, how would you respond to Hal Beasley?
During a lengthy and difficult negotiation over a difference in estimates for a
change order issued under a cost-plus-a-fixed-fee contract for research and data
collection, Stan Hartman of Computron Associates turned from the Government
contract negotiator and directed his comments to Alex Jefferson, the Government's
Project Officer for the effort.
Stan; "Phew! How do I get to this guy, Alex? He must think I'm the original Mr.
Ripoff! He's worried that if he gives in to my estimated cost for this one,
you'll pay me more than he thinks the change is worth. This is a cost-type
deal, and we're talking about modifying a statement of work that we agreed
was slippery to begin with. Do you share his worry about this one? You
must realize that I can't be reimbursed for more than my actuals anyway."
"You remember, Alex, what a tough time we had in getting this change
together. It was a brute! And one of the reasons was because we simply
couldn't define all the elements of the data-collection scenario at the very
start of this job. You've been with this thing from the beginning. Surely you
must know that what I'm saying is true, don't you?"
• Assume you are in Alex Jefferson's position. Given the situation, what
would you do or say?
***************
Copyright 1977, Sterling Institute (DAC)
92
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VIGNETTE NO. 6; WHO'S TO ACT . . . AFTER THE FACT?
Rick Jones was upset. As the Government's Project Officer for a development
program to convert a current communication system from replaceable printed
circuit module technology to large-scale integrated circuits (LSI), he had faced
what he termed "an uphill battle" with the performing contractor for almost four
months. He had had it with Circuit Electronics, Inc., and he was discussing his
problem with Frank DeSepia, the Contracting Officer for the program.
Rick:
(GETTING RIGHT TO IT) "Frank, I've had it with Circuit! I've told
them. I've told my boss. And I'm telling you. The ballgame is definitely
over with them!"
(WITH A LOOK OF SURPRISE) "Hey, man, calm down. You sound like
you're on a one-way trip to complete frustration."
"No, not really. I've already been there ... and back. I've put up with just
about as much as anyone could in dealing with Circuit and Curtis Spicer,
and I want something done about it."
"Who's Curtis Spicer?"
"Circuit's project manager for the program. Or let me put it this way.
He's this month's project manager! Heaven only knows who next month
might bring. Last month Spicer was managing another project for
Circuit ... one, I'm given to understand, that went down the drain. They
ran out of money and someone had the good sense not to give them
anymore. You know the old story, Frank ... 'idle hands and idle time are
costly things.' So good old Circuit dumped the guy on me."
"Really? How do you know that?"
"Very simple! They've got a reputation for shifting people across
projects. Everybody knows it."
93
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(SLIGHTLY DRAWN BACK) "I didn't."
"Well now you do, Mr. Contracting Officer! When I got the word on
Spicer, I called him and told him that I wasn't happy ... not one bit ...
about the change. But as long as he was on the job, I wanted him to
realize that Circuit had been behind the curve from 'day one,' and that
my patience had diminished to zero."
(SOUNDING MUCH MORE CONCERNED) "What did he say to that?"
"Oh, he gave me some kind of flimflam about things-were-going-
to-be-different, mixed in with several references to changes he
understood we had made in the specifications over the past three months,
and said he'd be glad to meet with me to get the whole thing back on an
even keel."
Frank:
Rick:
Frank;
Rick;
Frank:
"Didn't that please you?"
"Please me? It infuriated me' That's all I've heard from those guys since
the start of this program. One thing I'll say for them: they've got a
bottomless grab bag of curves they can throw!"
"I hear ya, Rick, and I'm not unsympathetic. But tell me, what are they
doing wrong?"
(POISING HIMSELF AND FURROWING HIS BROW) "Friend, you haven't
got enough time to listen to it all' But for starters, let me put it this
way ... they've been late on every required delivery ... they've fought
every suggestion we've made about alternatives they could take ... they
tell me their budget has been exceeded for virtually every program task
they've attempted ... and the bottom line has got to be late delivery, and
I mean late!"
(IN ALL INNOCENCE) "What do you think we ought to do about all this?"
(TAKEN ABACK) "What do I think? Man, that's where you come in. I
want this thing settled ... once and for all. They should be told 'to fish or
cut bait.' It's obvious they aren't listening to me, but they've got to
listen to you."
"What makes you think so? Maybe the first thing we ought to do, Rick, is
stop pushing so many pronouns around ... you, me, them, and who else?
How about a framework that concentrates on us for a change?"
"Oh come on, Frank ... don't get on one of those kicks. I need some
action taken, not a lecture ...."
(COMING ON A LITTLE STRONG) "Tell me, how long have they not
been listening to you?"
94
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Ricks "I'd say about a dozen times over the last six weeks. On two occasions
I've called old Doc Ringer — he heads up the Circuit division that has the
job — and I might as well talk to a stone fence. He's about as responsive
as a stick!"
Frank; "The contract for this job was let when ... about four months ago?"
Rick; "Yeah, something like that."
Frank; "CPFF contract ... completion type, as I recall. Four months ago, huh?
Okay, let me check it out and see if we can pull our act together. But
first, Mr. Project Manager, a couple of questions for you."
Rick; "Shoot"'
Frank; "Number one ... can you document, and I mean doc-u-ment, your case?
And number two .. why didn't you come to me two months ago about
Circuit?"
• If you were in Frank DeSepia's position, what would you do now? On
what basis? Assuming Rick Jones' points are corroborate, what
alternatives are open to Frank DeSepia?
• Quite obviously, Rick Jones has become a part of the problem he
wants Frank DeSepia to solve. What would you suggest are reasons
for this having happened?
Copyright 1977, Sterling Institute (DAC)
95
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TABLE OF CONTENTS
EPA Procurement Statistics
Page
Contracts Management Division — Average Leadtime Statistics
EPA-Related Committees and Subcommittees — Senate
3
5
EPA-Related Committees and Subcommittees — House
Extracts from the Federal Register
Subpart 15-1.3
15-1.313
15-1.350
Subpart 15-1.6
Subpart 15-1.7
15-1.704
15-1.704-1
35-1.704-2
15-1.708-2
15-1.709-50
Subpart 15-1.23
15-1.2302-3
15-1.2302-5
Subpart 15-3.50
Subpart 15-3.53
Part 15-3
General Policies
Record of contract actions
Release of procurement information
Debarred, Suspended,and Ineligible Bidders
Small Business Concerns
Agency program direction and operation
Small business advisor
Small business specialists
Applicability and procedure
Records and reports
Environmental Protection
Compliance responsibilities
Withholding award
Closing Completed or Terminated Contracts
Code of Conduct
Procurement by Negotiations
Subpart 15-3.405-3 Cost Sharing Contract
15-3.405-3-50 Basic guidelines
15-3.405-3-51 Unsolicited proposals
15-3.405-3-52 Determination of amount of cost sharing
9
9
10
11
11
11
11
11
12
12
13
13
13
13
15
17
17
17
18
18
U.S. Environmental Protection Agency Procurement
Information Notice, PIN 77-15, re:
Source Evaluation and Selection Procedures
21
-------
U.S. Environmental Protection Agency Procurement
Information Notices, PIN 78-3, re:
Source Evaluation and Selection Procedures —
Supplementary Procedure for Procurement
Actions Not in Excess of $100,000 63
U.S. Environmental Protection Agency Procurement
Information Notice, PIN 78-12-10, re:
Service Contracts 69
Contracts Management Manual, Chapter 22, Procurement Plan 75
Extracts from the Federal Register 81
Part 20 Bid Protest Procedures 81
Comptroller General Decision, B-189172,
Environmental Science and Engineering, Inc.,
December 15, 1977 85
Bid Protest Report 93
Unsolicited Proposals with Sample Letter,
Chapter 4, Contracts Management Manual 97
CFR 41 — 1-3.802-1, Consideration of Late Proposals 101
n
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EPA PROCUREMENT STATISTICS
Office
Washington
Cincinnati
Research Tr
Total CMD
Region
Fiscal Year 1979
Number of Actions
Dollar Value
ingle Park
I
II
III
IV
V
VI
VII
VII
IX
X
Total
1,471
780
959
3,210
17
15
11
16
30
13
5
14
13
8
142
$209,370,000
71,598,000
99,742,000
380,710,000
1,191,192
816,054
1,570,788
1,364,502
3,848,303
492,302
570,873
383,864
549,501
121,391
10,909,270
Competitive Awards
Noncompetitive
300,760,900
79,949,100
Participation by Small and Minority Business
Small Business Awards 1,203
Minority Business Awards 26
8 (a) Awards 111
FY '79
FY '78
Comparative Size of Procurements
Average Dollar Size 108,903
Average Dollar Size 99,009
105,300,000
3,118,200
11,808,500
Median
Median
39,845
35,495
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CONTRACTS MANAGEMENT DIVISION
Average Leadtime Statistics
CLASS
A
BC
BS
C
DC
DS
FC
FH
FI
FL
FO
FS
FV
LC
LS
S
TC
TS
U
ADVERTISED
COMPETITIVE
BOA SOLE SOURCE
NEGOTIATED COMPETITIVE
NEW CONTR NEGOT FOL COM PET
NEW CONTR NEGOT FOL SOL SRC
NEGOT COMPETITIVE-MOD
MOD NEGOT-CHANGES CLAUSE
INCREMENTAL FUNDING ACTION
LETTER AMENDMENT
EXERCISE OF OPTION
NEGOT SOLE SOURCE-MOD
COST OVERRUN
LTR CONTR COMPET
LTR CONTR-SOL SRC
NEGOT SOL SRC (NEW CONTR)
TASK UNDER BO^A'COMPET
TASK UNDER BOA SOL SRC
UNSOLICITED PROPOSAL
TOTAL AWARDS
WCO
196
-
153
282
250
137
54
89
25
249
28
85
90
225
266
121
-
46
87
S£
DCO
68
-
117
224
141
155
276
95
30
77
32
67
67
-
30
110
-
80
196
8Z
c/
ceo
84
241
161
212
-
-
54
32
17
-
23
71
31
289
18
96
-
18
67
70
TOTAL EPA
FY79
102
241
153
246
162
142
82
81
25
101
29
79
66
268
136
111
-
57
126
81
FY78
75
280
188
239
118
134
60
108
27
44
26
73
68
134
119
120
172
40
188
84
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EPA-RELATED COMMITTEES & SUBCOMMITTEES
All of the following committees and subcommittees have
interests in various EPA programs. The Agency has in
the past had significant business (e.g., hearings,
briefing, etc.) with all of them. Those marked by an *
have direct jurisdiction over EPA programs.
SENATE
Committee on Agriculture, Nutrition and Forestry*
Subcommittee on Agricultural Research and General
Legislation
Committee on Appropriations*
Subcommittee on HUD and Independent Agencies
Committee on Budget*
Committee on Commerce, Science and Transportation*
Subcommittee on Aviation
Subcommittee on Science and Space
Subcommittee on Merchant Marine and Tourism
Committee on Energy and Natural Resources
Subcommittee on Energy Research and Development
Subcommittee on Public Lands and Resources
Committee on Environment and Public Works*
Subcommittee on Environmental Pollution
Subcommittee on Resource Protection
Committee on Foreign Relations
-------
Committee on Governmental Affairs
Permanent Subcommittee on Investigations
Committee on Human Resources
Subcommittee on Health and Scientific Research
Select Committee on Small Business
Subcommittee on Environmental, Rural and Urban
Economic Development
Subcommittee on Government Regulation
-------
EPA-RELATED COMMITTEES & SUBCOMMITTEES
All of the following committees and subcommittees have
interests in various EPA programs. The Agency has in
the past had significant business (e.g., hearings,
briefing, etc.) with all of them. Those marked by an *
have direct jurisdiction over EPA programs
HOUSE
Committee on Agriculture*
Subcommittee on Department Investigations, Oversight
and Research
Committee on Appropriations*
Subcommittee on HUD-Independent Agencies
Committee on Budget*
Committee on Government Operations
Subcommittee on Environment, Energy and Natural
Resources
Committee on Interior and Insular Affairs
Subcommittee on Energy and the Environment
Committee on International Relations
Committee on Interstate and Foreign Commerce*
Subcommittee on Consumer Protection and Finance
Subcommittee on Energy and Power
Subcommittee on Health and the Environment
Subcommittee on Oversight and Investigations
Subcommittee on Transportation and Commerce
-------
Committee on Merchant Marine and Fisheries*
Subcommittee on Fisheries and Wildlife Conservation
and the Environment
Subcommittee on Oceanography
Committee on Public Works and Transportation*
Subcommittee on Aviation
Subcommittee on Investigations and Review
Subcommittee on Water Resources
Committee on Science and Technology*
Subcommittee on Science and Applications
Subcommittee on Transportation, Aviation and Weather
Subcommittee on Fossil and Nuclear Energy Research,
Development and Demonstration
Subcommittee on Science, Research and Technology
Subcommittee on Advanced Energy Technologies and
Energy Conservation Research, Development and
Demonstration
Subcommittee on Domestic and International Scientific
Planning, Analysis and Cooperation
Subcommittee on Environment and Atmosphere
Committee on Small Business
Subcommittee on Impact of Energy Problems, Environment
and Safety Requirements and Government Research
on Small Business
Select Committee on Outer Continental Shelf
-------
RULES AND REGULATIONS
Subpart 15-1.3—General Policies
1. Section 15-1.313 is added as follows:
§ 15-1.313 Record of contract action*.
All EPA procurement activities
performing purchasing and contract ad-
ministration functions shall assemble
and maintain official records of all ac-
tions with'respect to solicitations and
contracts.
(b) To the extent that retained copies
of contractual documents and corre-
spondence do not reflect all actions
taken, suitable memoranda of the un-
documented actions shall be prepared
promptly and placed in the appropriate
-official contract file.
° Contracting officer's determina-
tion of the contractor's responsibility
(see FPR 1-M204). and a copy of each
preaward survey performed (see FPR
1-1.1205-4) or reference to previous sur-
veys relied upon.
(iil) Any Small Business Administra-
tion certificate of comnstency (see FPR
1-1.708). and
-------
RULES AND REGULATIONS
25A and 25B) or other bond documents,
or a reference thereto, and notice to
sureties. In case of construction con-
tracts (see FPB Subpart 1-10.1 and 1-
10.2);
(31) Post award conference record
;
(3) Record of oral quotation (s) (EPA
Form 190&-13) or copy of written quo-
tation^) ;
(4) Statement setting forth the basis
of determination of fair and reasonable
price, when only one response is received
and the procurement is over $500;
(5) Justification for noncompetitive
procurement when over $500;
(6) Copies of documentation involv-
ing action taken with respect to habitu-
ally delinquent vendors;
(7) Evidence of receipt and accept-
ance of supplies or services:
(8) Other documentation as required
by FPR 1-3.606-4 when a blanket pur-
chase arrangement is involved; and
(9) In respect to oral purchase orders,
a copy of the vendor's invoice endorsed
by an authorized Government represent-
ative evidencing receipt of property or
service. If it is not possible to obtain a
copy of the invoice, a record shall be
maintained showing price and date of
receipt of personal property or nonper-
sonal services ordered.
g 15-1.318-1 [Amended]
2. Section 15-1.318-1 Is amended by
making the following changes:
1. In paragraph (a) (1) insert the
words "Office of" preceding the word
"Audit".
2. Delete the word "TWX", and sub-
stitute the word "telegram" in the sec-
ond sentence of paragraph (b) (1).
3. Delete the words "Assistant General
Counsel, Grants and Procurement", and
substitute the words "Office of the As-
sociate General Counsel, Grants, Con
tracts and General Administration" In
the third sentence of paragraph (e)(l).
4. Delete the words "Assistant General
Counsel, Grants and Procurement", and
substitute the words "Office of the As-
sociate General Counsel. Grants, Con-
tracts and General Administration" in
paragraph (e>(3).
5. Delete the words "Assistant General
Counsel, Grants and Procurement", and
substitute the words "Office of the As-
sociate General Counsel, Grants, Con-
tracts and General Administration" in
the first sentence of paragraph (f) (4).
6. Delete the words "Assistant General
Counsel. Grants and Procurement", and
substitute the words "Associate General
Counsel, Grants. Contracts and General
Administration" in the first sentence of
paragraph (f) (5).
7. Delete the words "Assistant General
Counsel, Grants and Procurement", and
substitute the words "Associate General
Counsel. Grants, Contracts and General
Administration" in the second sentence
of (f)(6>.
3. Section 15-1.350 is amended by add-
ing new text as follows:
$ IS—1.350 Release of procurement in-
formation.
' The Freedom of Information Act, 5
TJ.S.C. 552, provides that certain Gov-
ernment records shall be made available
to the public upon request. This Act has
been implemented by the Environmental
Protection Agency (EPA) in 40 CFR Part
2. Subpart B-Confldentiallty of Business
Information of 40 CFR Part 2 provides
the policy and guidance pertaining to the
procurement of supplies and services.
4. Sections 15-1.351, 15-1.352. and 15-
1.353 are revised by deleting the text
and reserving the sections as follows:
§ 15-1.351 [Reserved]
§ 15-1.352 f Reserved]
§ 15-1.353 [Reserved]
FEDERAL iEGISTE«, VOL 42, NO. 344—TUESDAY, DECEMBE* JO. 1977
10
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RULES AND REGULATIONS
Subpart 15-1.6—Debarred, Suspended.
and Ineligible Bidders
§ 15-1.603 [Amended!
1. Section 19-1.603 is amended by
deleting the abbreviation "CFR" In the
last line and substituting "FPR".
2. Section 15-1.605-2 is added and re-
served as follows:
§ 15-1.605-2 [Reserved]
3. Section 15-1.605-4 is redestgnated
as ; 15-1.605-3 and revised as follows:
§15-1.605—3 Notice of Suspension.
The Administrator has designated the
Deputy Assistant Administrator for Ad-
ministration as the official responsible
for furnishing the notification required
by FPR 1-1.605-3. The Director. Con-
tracts Management Division, or his desig-
nee. is responsible for the preparation of
the notification.
Subpart 15-1.7—Small Business Concerns
1. Section 15-704 Is amended by add-
ing new text as follows:
§ 15—1.704 Agency program direction
and operation.
(a) The Environmental Protection
Agency (EPA) shall, in furtherance o.f
the declared policy of the Congress, and
as restated in the PPR, extend every
effort to encourage participation by small
business concerns in the procurement of
property and services supporting the
EPA mission, and that are within their
capabilities. The Deputy or Associate
Deputy Assistant Administrator for Ad-
ministration, Directors of Administra-
tion, Regional Administrators, and Di-
rectors of Laboratories are responsible
for results under the small business pro-
gram within their respective activities.
Procurement and technical personnel
assigned to these activities shall be in-
formed of the benefits that accrue to the
Nation and to the Agency through the
proper use of the capabilities of small
business concerns in the procurement of
EPA requirements.
The Head of the procuring activ-
ity, the chief officer responsible for pro-
curement at the contracting activity, and
the chiefs of the purchasing offices in the
regions and laboratories are responsible
for the contracting and purchasing as-
pects of the small business program,
(c) The extent of small business par-
ticipation In EPA procurement shall be
accurately measured, reported, and pub-
licized.
Section 15-1.704-1 is revised to change
the caption and text as follows:
g 15-1.704-1 Small Business Advisor.
The Agency shall establish and main-
tain an Office of Small Business and
Contractor Relations. The Small Busi-
ness Advisor of the Agency is appointed
by the Administrator. The Small Busi-
ness Advisor is responsible for the estab-
lishment. Implementation, and execution
of the small business program of the
•Agency and provides guidance and ad-
vice to the Directors and Chiefs of the
field procurement operations in the im-
plementation and execution of their re-
spective programs. The Small Business
Advisor is the central point of contact
for inquiries concerning the small busi-
ness program from Industry, the Small
Business Administration (8BA), and the
Congress, and will advise the Adminis-
trator and staff as required. The Small
Business Advisor will represent the
Agency In the negotiations with the other
Government agencies on small business
matters. The duties of the Small Business
Advisor may be assigned either on a full-
time or part time basis; however, if as-
signed on a part time basis, the small
business duties will take precedence over
collateral responsibilities.
3. Section 15-1.704-2 is revised as fol-
lows :
§ 15-1.704-2 Small business specialist
(a) Small business specialists shall be
appointed In writing for each procure-
ment or purchasing office. While small
business specialists will normally be ap-
pointed from members of operating pro-
curement staffs, they shall be responsible
directly to the appointing authority with
respect to small business matters and not
to their immediate line of procurement
supervision or to technical personnel.
The appointing authority is as follows:
(1) Cincinnati, Research Triangle
Park, and Headquarters Contract Oper-
ations, the Head of the procuring activity
without power or redelegation.
f2> Regional offices. Regional Direc-
tors with power of redelegation to a
Laboratory Director or to a chief of a
staff office at a higher management level
than the chief of the procurement activ-
ity.
(3) Laboratories, Director of the Lab-
oratory without power of redelegation.
A copy of each appointment and ter-
mination of all specialists shall be for-
warded to the Agency Small Business
Advisor. In addition to performing the
duties outlined in paragraph (b> of this
section that are normally performed in
the activity to which he is assigned, the
small business specialist shall be the
small business'advisor to the head of the
activity and shall perform such addi-
tional functions as may be prescribed in
furtherance of the overall Small Business
Program. The small business specialist is
not precluded from being assigned the
responsibility for the Labor Surplus Area
Program prescribed by FPR Subpart
1-1.8. and for the Minority Business En-
FEDERM REGISTER, VOL. 42, NO. 344—TUESDAY, DECEMBER 20, 1977
11
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RULES AND REGULATIONS
terprise Program prescribed by FPR Sub-
part 1-1.13. The small business specialist
may be appointed on either a full or part
time basis; however, when appointed on
a part time basis, the small business duty
shall take precedence over collateral re-
sponsibilities. When the volume of pro-
curement does not warrant assignment
of a small business specialist, the con-
tracting officer shall be responsible for
the program.
(b) A small business specialist ap-
pointed pursuant to (a) above shall per-
form the following duties as are appro-
priate for his procurement activity:
(1) Maintain a program designed to
locate capable small business sources for
current and future procurements;
(2) Coordinate inquiries and requests
for advice from small business concerns
on procurement matters:
(3) Review all proposed solicitations
over $2,500, assure that small business
concerns will be afforded an equitable
opportunity to compete, and, as appro-
priate, initiate recommendations for
small business set-asides, complete EPA
Form 1900-37, entitled "Record of Pro-
curement Request Review," as appro-
priate;
(4) Take action to assure the avail-
ability of adequate specifications and
drawings, when necessary, to obtain
small business participation In a procure-
ment. When small business concerns can-
not be given an opportunity on a current
procurement, Initiate action, in writing.
with appropriate technical and contract-
ing personnel to insure that necessary
specifications or drawings for future pro-
curements are available.
(5) Review proposed procurements for
possible breakout of items or services
suitable for procurement from small
business concerns;
<6> Advise small business concerns
with respect to the financial assistance
available under existing laws and regula-
tions and assist such concerns In apply-
ing for financial assistance;
(7) Participate in determinations con-
cerning the responsibility of a prospec-
tive contractor (see FPR Subpart 1-1.12),
including determinations involving in-
tegrity, business ethics, or persistent fail-
ure to apply necessary tenacity or per-
severance;
(8) Participate as the minority busi-
ness enterprise representative in ac-
cordance with FPR 1-1.1302 and Chapter
10, Contracts Management Manual;
(9) Participate in the evaluation of a
prime contractor's small business sub-
contracting programs;
(10) Assure that adequate records are
maintained, and accurate reports pre-
pared, concerning small business partic-
ipation in the procurement program (see
115-1.709-50);
(11) Make available to SB A copies of
solicitations when so requested;
112) Act as liaison between his pro-
curement office, the contracting officer,
and the appropriate SBA office or repre-
sentative in connection with set-asides,
certificates of competency, size classifica-
tion, and any other matter in which the
small business program may be Involved;
and
(13) May participate, if required, in
Business Opportunity /Federal Procure-
ment Conferences, and other Govern-
ment-industry conferences and meetings
to assist small business, labor surplus,
and minority business enterprises.
§ 1S-1.706-50-2 [Amended}
4. Section 15-1.706-50-2 is amended by
deleting in the last sentence, the words,
"Chief of Contract Operations" and sub-
stituting the words, "appointing author-
ity."
§ 15-1.706-50-3 [ Amended }
5. Section 15-1.706-50-3 is amended by
deleting in the last sentence, the words.
"Chief of Contract Operators" and sub-
stituting the words "appointing author-
ity."
6. Section 15-1.708-2 is added as fol-
lows:
S 15-1.708-2 Applicability and proce-
dure.
A copy of the documentation support-
Ing the determination that a small busi-
ness concern is not responsible, as re-
quired by FPR 1-1.708-2 (a) (5 )(i). shall
be transmitted to the Agency Small Busi-
ness Advisor concurrently with the sub-
mission of a copy of the documentation
to the appropriate SBA Region Office.
7. Section 15-1.709-50 is added as fol-
lows:
% 15—1.709—50 Records and reports.
(a) As required, monthly reports of
factual information, covering procure-
ment actions and dollars awarded to
small business, minority business, Small
Business Administration under author-
ity of section 8 (a) of the Small Business
Act, and information on actions and dol-
lars made under small business set-
asides, shall be submitted by the Cost
Review and Policy Branch, Contracts
Management Division, to the Agency
Small Business Advisor.
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RULES AND REGULATIONS
<3) Total actions and dollar value of
awards to small business.
(4) Total actions and dollar value of
construction awards to small business
.made by set-aside.
(5) Total actions and dollars value of
small business awards made by set-
asides, excluding set-asides for construc-
tion.
• (6> Total actions and dollar value of
awards made to the Small Business Ad-
ministration pursuant to section 8 (a) of
the Small Business Act.
(7) Total actions and dollar value of
awards made to minority concerns.
(c) The reports identified in para-
graphs (a) and (b> of this section are to
be submitted to the Small Business Ad-
visor no later than the 20th day follow-
ing the end of the reporting period with
the exception of the last report of the
fiscal year which shall be submitted no
later than the 30th day following the
end of the fiscal year.
Part 15-1 is amended by adding a new
Subpart 15-1.23 as follows:
Subpart 15-1.23—Environmental
Protection
§ 15—1.2302—3 Compliance responsibili-
ties.
Notifications required by FPR 1-1.2302
shall be forwarded, in writing to the
Director, Contracts Management Divi-
sion.
§ ) 5-1.2302-5 Withholding award.
Notifications required by FPR 1-1.-
2302-5 shall be forwarded, in turn, to the
Director, Office of Federal Activities, and
the Director, Contracts Management Di-
vision. Such notice shall be by telephone
and the date notice is given shall be
noted in the procurement Hie to establish
the start of the 15 working clay delay
period.
Part 15-1 is amended by adding a new
Subpart 15-1.50 as follows:
Subpart 15-1.50—Closing Completed or
Terminated Contracts
fi 15-1.5000 Scop*- of subparl,
This subpart establishes procedures
governing the closing of contract flies
when all contract performance is com-
pleted or the contract is terminated.
§ 15—1.5001 Defmilion—Completed con*
tract.
A completed contract is one that is
both physically and administratively
complete and in which all aspects of con-
tractual performance have been accom-
plished or formally waived. A contract is
physically complete only after all prop-
erty and services called for under the
contract. Including such related items
as reports, materials, data, and exhibits,
have been delivered to and accepted by
the Government including property and
services for which no specific compensa-
tion may have been stipulated or a no-
tice of complete contract termination has
been given the contractor by the Govern-
ment. A contract is administratively
complete when all payments have been
made and all administrative actions ac-
complished. A contractor accorded lim-
ited administration and having a face
value of $10,000 or under Is closed when
evidence of physical completion is re-
ceived by the contracting officer.
§ 1S-1.5002 Procedures.
§15-1.5002-1 Go*ing review.
(a) Upon physical completion, the con-
tract and contract file shall be reviewed
to verify that all actions have been fully
documented to the extent practicable.
Consideration must be given to the type
of contract being closed, and the con-
tract flle shall be reviewed to determine
that:
(1) All services have been rendered
and accepted;
(2) All property, including but not
limited to contract end items, reports,
data, and exhibits, have been delivered
and accepted;
(3) All payments and collections have
been accomplished;
(4) Releases from liabilities, obliga-
tions, and claims have been obtained
from the contractor, if appropriate;
(5) Assignments of refunds, rebates,
and credits, have been executed by the
contractor, if appropriate;
<6) All administrative actions have
been completed such as determination of
final overhead rates, release of funds, or
disposal of property, and all administra-
tive reviews and approvals have been ac-
complished and documented regarding
such items as wages, salaries, Insurance,
and accounting;
(7) The file is documented as presribed
in § 15-1.313; and
(8) Ascertain the possible existence of
pending disputes, contingent liabilities,
or circumstances out of which future
claims or litigation might arise, poten-
tial credits, or refunds or other future
recoveries. Insure that adequate reserves
have been set aside to provide for con-
tingent liabilities.
(b) A closing review shall be made to
insure that either the contract flle con-
tains, or that all actions necessary to
complete the flle have been consum-
mated as they are applicable to the type
of contract being closed:
(1) Inspection and acceptance docu-
ments or a statement from program per-
sonnel that all services and property re-
quired by the contract have been per-
formed or delivered in accordance with
the terms of the contract and are ac-
ceptable to the Government. All dis-
crepancies in actual performance or de-
livery with contract requirements must
FSDfUAL tEGISTEft, VOl. 47, NO. 144—TUESDAY, DECEMBER 10, 1977
13
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RULES AND REGULATIONS
be reconciled before the contract flle is
closed;
(2) Contract files shall not be closed
or flnal payment made until (1) all ques-
tions of disallowed or suspended costs
are settled; (11) the "completion vouch-
er" and the "cumulative claim and rec-
onciliation statement" are vertifled (see
f 15-1.5002-3) and flnal audit report or
closing statement obtained from the Cost
Review and Policy Branch, Contracts
Management Division; (ill) all discrep-
ancies are resolved between payments
and deliveries or performance, and be-
tween billings and payments; (Iv) final
overhead rates are established and set
forth In a contract modification; (v) as-
signments of refunds, rebates, credits,
and other amounts are executed: (vi>
flnal release of claims is received from
the contractor; and (vil) partial or com-
plete termination settlements are set
forth in a supplemental agreement and
payment or collection made;
(3) A copy of each subcontract ap-
proved or ratified by the contracting of-
ficer, together with the letter or docu-
ment of approval and the subcontract
review memorandum must be retained'
in the contract file. If approval of in-
dividual subcontracts is waived by ap-
proval of the contractor's purchasing
system, a copy of or a specific reference
to the purchasing system'approval must
be included in the contract file. Unre-
solved disputes between prime and sub-
contractors must be resolved before the
prime contract flle can be closed, unless
the prime contractor releases the Gov-
ernment from any obligation relating to
the subcontractor claims:
(4) Before a contract flle can be closed,
all additions or changes to the terms.
conditions, or administrative recitals
must be formalized by an appropriate
supplemental agreement or unilateral
change order. Timely action must be
taken to formalize adjustment of price,
estimated cost, or fee when required by
special contract provisions, such as price
redetermination, incentive clauses, es-
calation, or partial or complete termina-
tion settlements. Contracting officers
have no authority to, and shall not, give
or execute any kind of release of claim
or obligation to the contractor except by
formal modification of the contract:
t5) All Government-owned property,
real or personal, either furnished by the
Government or acquired by the contrac-
tor for the account of the Government,
must be accounted for and appropriate
disposal action taken upon physical com-
pletion of the contract. The contract flle
shall not be closed until the inventory of
all such Government-owned property is
verified and a complete record of the dis-
position of all property Is placed in the
file;
(6) Individual copies of the following
must be placed in the contract flle prior
to closing: (i) Systems approvals. I.e.,
accounting, estimating, purchasing,
property management, quality assur-
ance, and maintenance; (li) advance
understanding on particular items of
cost identified In PPR 1-15.107; I.e.,
TJUiD, employee compensation, travel.
Insurance plans, and precontract costs:
and (111) other agreements relating to
contract performance;
(7) Copies of appropriate clearances
and reports relating to Inventories, pat-
ents, royalties, copyright, publications.
and tax exemptions must be Included in
the official contract flle. Also the flle
must contain copies of Inquiries from
and answers and reports to sources such
as the Congress, the General Accounting
Office, audit activities, and other or-
ganizations; and
(8) Copies of letters delegating con-
tract administration, such as technical
direction, quality assurance inspection
and acceptance, property management,
and subcontract approval, must be in-
cluded In the official contract flle and a
statement that all delegated actions
were completed satisfactorily.
§ 15-15.5002-2
randum.
Contract closing* memo-
The contracting officer shall prepare
a memorandum that may take the form
of a memorandum for the record or a
checklist of contract actions applicable
to the type of contract involved (see
115-1.313 and J 15-1.5002-1). Hie
memorandum shall contain as a mini-
mum verification that all contract per-
formance is completed and that all
contract action have been fully docu-
mented. Contracting activities shall
design and prescribe the form and con-
tents of such closing checklists.
| 15-1.5002-3 Verification of costs.
Before flnal payment is made under a
cost-reimbursement type contract, the
contracting officer must verify the allow-
abiltty, allocablllty, and reasonableness
of costs claimed. Verification of total
costs incurred should be obtained from
the Office of Audit, through the Cost Re-
view and Policy Branch. CMD, in the
form of a flnal audit certification. Simi-
lar verification of actual costs must be
made for fixed-price contracts when cost
Incentive or price redetermination are
Involved. Termination settlement pro-
posals shall be submitted to the Cost Re-
view and Policy Branch for review by
the Office of Audit, as prescribed by FPR
1-B.207.
3 15-1.5002-4 Termination.
(a) All documentation relating to the
terminated portion of a contract shall be
maintained in a separate termination file
or In a separately identifiable section of
the official contract flle. After flnal settle-
ment and payment or collection of all
FEOHAl RfGISTtR. VOL. 41, NO. 244—TUESDAY, OtCIMiEl 20, 1*77
14
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MULES AND REGULATIONS
termination claims, the termination file
shall be reviewed to insure that the file
contains documentation to support all
actions relating to the termination settle-
ment and to the disposition of the Gov-
ernment-owned property. Documenta-
tion of the file shall include:
(1> Request for termination action or
a statement of reasons for the termina-
tion;
(2) Notice of termination and Instruc-
tions to the contractor, and notice to the
General Accounting Office as prescribed
• by PPR 1-8.403;
(3) Correspondence with the contrac-
tor and records of all discussions. meet-
Ings, and negotiations;
(4) Copies of all settlement proposals
and accounting reviews and analysis
thereof;
(5) Records and approvals of subcon-
tractor settlements;
(8) Inventory schedules and records of
disposal of Government-owned property;
and
(7) Settlement agreements, records of
exceptions, and contracting officer deter-
minations, as appropriate.
(b) After all termination actions are
completed and the separate termination
file closed, it shall be filed as part of the
official contract file.
Subpart 15-1.53—Code of Conduct
| 15-1.5300 [Amended]
Section 15-1.5300 is amended by mak-
ing the following change:
In paragraph (a)UHv), change the
citation 18 U.S.C. 200 to 18 U.S.C. 209.
(PB Doe.TT-36298 Filed 13-1»-77;8:4S ua[
KDHAt Mom* VOl. 41. NO. Mt-JWSMr. MCIMKI 10. ,.77
15
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RULES AND REGULATIONS
TMt 41—Publk Contract! ond Property
CHAPTER 15—ENVIRONMENTAL PROTECTION
AGENCY
[FRL 810-5]
PART 15-3—PROCUREMENT BY
NEGOTIATIONS
Colt Sharing In Contract! for R««arch
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: This action revises an
Environmental Protection Agency
(EPA) regulation that covers the basic
guidelines for the use of cost sharing
in contracts for research. Previously.
the EPA procurement regulations en-
couraged cost sharing for research
contracts that resulted from unsolicit-
ed proposals, however, for fiscal years
1976 and 1977 EPA was included in the
Department of Housing and Urban
Development—Independent Agencies
Appropriations Acts which do contain
requirements for cost sharing when
contracts result from proposals not
specifically solicited by the Govern-
ment. Cost sharing is a financial ar-
rangement under which a contractor
bears a portion of costs of performing
a contract. The Intended effect of this
regulation is to require cost sharing in
an amount that will reflect the mu-
tuality of interest of the contractor
and the Government.
EFFECT DATE: January 12.1978.
FOR FURTHER INFORMATION
CONTACT:
Frank Boyer, Contracts Policy and
Review Branch (PM-214), Environ-
mental Protection Agency. Washing-
ton, D.C. 20460, 202-755-0900.
SUPPLEMENTARY INFORMATION:
Prior to fiscal year'1976, money for
the EPA was appropriated under the
provisions of the Agriculture—Envi-
ronmental and Consumer Protection
Appropriation Acts. These Acts did
not contain requirements for cost
sharing.
It is the general policy of the EPA to
invite comments regarding the devel-
opment of proposed rules; however,
this action consists only of a revision
of an existing regulation to bring it
into conformance with provisions of
law and no useful purpose would be
served by Inviting comments.
(Sec. 205(c). 63 Slat. 390; 40 U.S.C. 486.)
NOTE.—The Environmental Protection
Agency has determined that this document
does not contain a major proposal requiring
preparation of an inflation impact state-
ment under Executive Order 11821 and
OMB Circular A-107.
Dated: December 28. 1977.
DOUGLAS M. COSTLE,
Administrator,
Environmental Protection Agency.
The table of contents for Part 15-3
Is amended to provide new entries as
follows:
Sec.
15-3.405-3-50 Basic guidelines.
15-3.405-3-51 Unsolicited proposals.
15-3.405-3-52 Determination of amount of
cost sharing.
Subport 15-3.4—Typ« of Contract!
Section 15-3.405-3 is revised to add
H 15-3.405-3-50, 15-3.405-3-51, and 15-
3.405-3-52 as follows:
} 15-3.405-3 Cost sharing contract.
This section prescribes the condi-
tions under which cost sharing con-
tracts are to be used and guidance for
the amount of cost sharing to be ob-
tained. As defined in the Federal pro-
curement regulations, a cost sharing
contract is a cost-reimbursement type
contract under which the contractor
receives no fee but is reimbursed only
for an agreed portion of its allowable
caste. However, the principles set
forth in this section are considered to
apply equally to fixed-price contracts
where the contractor agrees, or is re-
quired by statute, to bear a portion of
the cost of performance.
§ 15-3.403-3-50 Basic guidelines.
(a) Cost sharing with non-Federal
organizations shall be encouraged
where the parties have considerable
mutual interest in the basic or applied
research subject matter of the con-
tract. For example, when it is probable
that the contractor will receive signifi-
cant future benefits from the research
such as increased technical knowledge
useful in future operations, additional
technical or scientific expertise or
training for its personnel, opportunity
to benefit through patent rights, and
the use of background knowledge in
future production contracts.
(b) Normally, cost sharing need not
be applied where the contracting offi-
cer has determined that one or more
of the following circumstances exist:
<1) The particular research objective
or scope of effort for the project is
specified by EPA rather than proposed
by the performing organization. This
will usually include any formal solici-
tation for a specific project;
FEOERAl REGISTER, VOL 43, NO. «—THURSDAY. JANUARY
17
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RULES AND REGULATIONS
(2) The research effort has only
minor relevance to the non-Federal ac-
tivities of the performing organization,
and th£ organization Is proposing to
undertake the research primarily as a
service to EPA;
(3) The organization has little or no
non-Federal sources of funds from
which to make a cost contribution.
Cost sharing should generally not be
requested if cost sharing would mean
that EPA would have to provide funds
through some other means (such as
fees) to enable the organization to cost
share. It should be recognized that
those organizations which are pre-
dominantly engaged In research and
development and have little or no pro-
duction or other service activities may
not be in a favorable position to make
a cost contribution; or
(4) Payment of the full cost of the
project Is necessary in order to obtain
' the services of the particular organiza-
tion.
5 15-3.405-3-51 Unsolicited proposal*.
The Department of Housing and
Urban Development-Independent
Agencies Appropriation Act contains a
requirement that none of the funds
provided in the Act may be used for
payment through grants or contracts
to recipients that do not share in the
cost of conducting research resulting
from proposals that are not specifical-
ly solicited by the Government. Ac-
cordingly, contracts which result from
unsolicited proposals shall provide for
the contractor to bear a portion of the
cost of performance as determined in
accordance with § 15-3.405-3-52. How-
ever, where there is no measurable
gain to the performing organization,
there is no mutuality of interest, and,
therefore, no means by which the
extent of cost sharing may reflect a
mutuality of interest.
§15-3.405-3-52 Determination of amount
of emit sharing.
When cost sharing is determined to
be appropriate in accordance with
§ 15-3.405-3-50 or required by statute
pursuant to § 15-3.405-3-51, the
amount of cost participation by the
performing organization may vary in
accordance with a number of factors
relating to the performing organiza-
tion and the character of the research
effort. The amount of cost participa-
tion shall reflect the mutual agree-
ment of the contracting officer and
the contractor. Factors which con-
tracting officers may consider in any
negotiations with prospective contrac-
tors regarding the amount of cost-par-
ticipation include the following:
(a) Cost participation by educational
Institutions and other not-for-profit or
nonprofit organizations should nor-
mally be at least 1 percent of total
project cost. In many cases cost shar-
ing of less than 5 percent of total pro-
ject cost would be* appropriate in view
of the organization's nonprofit status
and their normally limited ability to
recover the cost of such participation
from non-Federal sources. However, In
some cases it may be appropriate for
educational Institutions to provide a
higher degree of cost sharing, such as
when the cost of the research consists
primarily of the academic year salary
of faculty members, or when the
equipment acquired by the institution
for the project will be of significant
value to the institution in Its educa-
tional activities.
(b) The amount of cost participation
by commercial or industrial organiza-
tions should depend to a large extent
on whether the research effort or re-
sults are likely to enhance the per-
forming organization's capability, ex-
pertise, or competitive position and
the value of such enhancement to the
performing organization. It should be
recognized that those organizations
which are predominantly engaged in
research and development and have
little or no production or other service
activities may not be in a favorable po-
sition to derive a monetary benefit
from their research under Federal
agreements. Therefore, cost participa-
tion by commercial or industrial orga-
nizations could reasonably range from
as little as 1 percent or less of the
total project cost to more than 50 per-
cent of total project cost.
(c) If the performing organization
will not acquire title to, or the right to
use, inventions, patents, or technical
information resulting from the re-
search project. It would generally be
appropriate to obtain less cost sharing
than in cases in which the performer
acquit es such rights.
-------
(e) A relatively low degree of cost
sharing may be appropriate if, In the
view of the Federal agency, an area of
research requires special stimulus in
the national interest.
(f) A fee or profit will usually not be
paid to the performing organization if
the organization is to contribute to the
cost of the research effort, but the
amount of cost sharing may be re-
duced to reflect the fact that the orga-
'nization is foregoing its normal fee or
profit on the research. However, if the
research Is expected to be of only
minor value to the performing organi-
zation and if cost sharing is not re-
quired by statute, it may be appropri-
ate for the performer to make a con-
tribution in the form of a reduced fee
or profit rather than sharing the costs
of the project.
(FR Doc. 78-860 Filed 1-11-78; 8:45 am]
19
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U.S. Environmental Protection Agency
PROCUREfniNT INFOMTIRTION NOTICE
Mo-.PIK 77-15
Feb. 7. 1977
Source Evaluation and Selection Procedures
Reference: EPPR Subpart 15-3.8, Price Negotiation Policies and Techniques
Purpose & Scope: To provide revised policy and procedures for source evaluation
and selection applicable to EPA competitive negotiated procure-
ment actions la excess of $10,000 except architect-engineer
services.
Discussion! The referenced EPPR established EPA policies and procedures for the
evaluation of offerers for negotiation and award. The growth of
case law covering the subject, as well as the potential for misinter-
pretation of the EPPR Subpart, and the desire to adopt a procedure
that provides a detailed evaluation and selection method, prompted
the drafting of the proposed chapter to the Contracts Management Manual
(copy attached).
The policies and procedures set forth in the attachment shall be observed
by all EPA personnel engaged in the acquisition of agency requirements
through the procurement process to the extent that those requirements
are within the purview of the attached chapter (see paragraph 2,
APPLICABILITY).
The policies and procedures set forth become effective March 1, 1977.
Concurrent with the issuance of this PIN a copy of the attachment
is being forwarded to the Management and Organization Division (PM-213)
for appropriate agency coordination and subsequent publication as a
chapter in the Contracts Management Manual. Cancellation of the EPPR
Subpart 15-3.8 will be effective on March 1, 1977.
21
EPA MQ FOKM 1900-38 lt-761
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ENVIRONMENTAL PROTECTION AGENCY MANUAL
CHAPTER - SOURCE EVALUATION AND
SELECTION PROCEDURES CONTRACTS MANAGEMENT
TABLE OF CONTENTS
PARAGRAPH - PARAGRAPH
TITLES NUMBERS
Purpose , 1
Applicability 2
Deviations and Exceptions 3
Policy 4
Policy .......... a
Conflict of Interest b
Disclosure of Information c
Definitions, Responsibilities, and Duties 5
Head of the Procuring Activity a
Source Selection Official b
Source Evaluation Board . c
Technical Evaluation Panel d
Business Evaluation Panel .... e
Program Manager f
Project Officer g
Contracting Officer ..... h
Contract Specialist . i
Director or Chief of Contract Operations j
Source Evaluation Board Report k
Technical Evaluation Panel Report 1
Business Evaluation Panel Report . m
Source Selection Decision Report . . n
Evaluation and Selection Functional Assignments 6
In Excess of $5,000,000 a
In Excess of $1,000,000 But Not Exceeding $5,000,000 ... b
In Excess of $10,000 But Not Exceeding $1,000,000 .... c
Procurement Request and Solicitation Preparation . 7
Procurement Request a
Presolicitation b
Evaluation Criteria 8
Preproposal Conferences 9
Prior to Issuance of the Solicitation a
After Issuance of the Solicitation b
Post Conference Actions ..... ..... c
Receipt and Distribution of Offers 10
Receipt . a
Security Measures b
Distribution of Offers ... c
TN CHAP
ORIGD5ATOR PM-214 i
22
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ENVIRONMENTAL PROTECTION AGENCY MANUAL
CHAPTER - SOURCE EVALUATION AND
SELECTION PROCEDURES CONTRACTS MANAGEMENT
TABLE OF CONTENTS
Evaluation Procedures . 11
Initial Review a
Scoring Plan b
Scoring System ..... c
Evaluation Guidelines d
Ranking e
Other Evaluation Factors 12
Determination of the Competitive Range ..... 13
Technical Evaluation a
Business Evaluation b
Determination and Documentation . . c
Example . ..... d
Written or Oral Discussions ..... 14
Background a
Purpose b
Uncertainties c
Deficiencies d
Limitations . ........ e
Best and Final Offer 15
Notification a
Receipt b
Evaluation c
Limitation ..... d
Source Selection Decisions 16
General a
SSO Selection b
Contracting Officer Selection ...... c
Negotiations with the Source Selected 17
Award 18
Notifications to Unsuccessful Offerers 19
Unacceptable Offers . ...... a
Competitive Range . b
Unsuccessful Offerers c
Debriefing 20
Exhibits
TN CHAP
ORIGINATOR PM-214 ii
23
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ENVIRONMENTAL PROTECTION AGENCY
SOURCE EVALUATION AND SELECTION PROCEDURES
CONTRACTS.MANAGEMENT
DRAFT
MANUAL
1. PURPOSE. This Chapter prescribes the policies and procedures for
the source evaluation and selection processes pertaining to the procure-
ment of personal property and nonpersonal services (including construc-
tion) as defined in the Federal Property and Administrative Services Act
of 1949, as amended, and major systems acquisition as set forth In Office
of Management and Budget Circular A-109 from non-Federal sources by
competitive negotiation.
2. APPLICABILITY.
a. The provisions of this Chapter apply EPA-wide to all competitive
negotiated procurement actions In excess of $10,000 except architect-
engineer services. For the selection and award procedures pertaining
to architect-engineer services see Federal Procurement Regulations
(FFR) Subpart 1-4.10 as Implemented by Environmental Protection Agency
Procurement Regulations (EPPR) Subpart 15-4.10.
b. Generally the provisions of this Chapter also apply to the
procurement of automatic data processing equipment and services. However,
any special requirements placed by the General Services Administration
on a particular procurement action .shall take precedence If such
requirements are in conflict with any provision of this Chapter.
c. The provisions need not be applied to negotiated procurement
where award is based on any of the conditions set forth as exceptions
in FPR l-3.805-l(a)(l) through (a)(5). However, in those cases where
TN
ORIGINATOR:
24
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technical evaluation of offers is a significant factor in the source
selection process, the procedures are applicable.
d. In t^ose cases where the charter of a Federal Contract Research
Center (FCRC) permits competition, these procedures apply.
3. DEVIATIONS ANDEXCEPTIONS. The Director, Contracts Management
Division (PM-214), may authorize deviations or exceptions to any of the
provisions of this Chapter upon the receipt of adequate justification
(also see EPPR 15-1.009-2).
4. POLICY.
a. Policy. It is EPA policy that source evaluation and selection
shall be conducted in accordance with standards and procedures that insure
fair and impartial treatment of all offerers, and further insure the
selection of sources whose performance is expected to best meet EPA
objectives at a reasonable price or cost within budgetary resources.
Commensurate with this policy it is paramount that source evaluation and
selection proceedings be conducted in a manner designed to avoid any
appearance of bias, partiality, arbitrary or capricious behavior,
inequitable treatment, or undue influence.
b. Conflicts of Interest.
(1) Title 40, Protection of Environment, Part 3, of the Code of
Federal Regulations, prescribes the high ethical standards of conduct
required of each EPA employee, including both regular and special
Government employees as they are covered by Part 3, in carrying out their
duties and responsibilities. Each EPA employee engaged in source
evaluation and selection is required to familiarize hiaself with the
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provisions of Fart 3 regarding conflicts of interest and to inform the
Director or Chief of Contract Operations in^ writing if his participation
in the source evaluation and selection process could be reasonably
interpreted as a possible or apparent conflict of interest. Any EPA
employee so informing the Director or Chief of Contract Operations and
determined to have a conflict of interest shall be relieved of further
duties in connection with the evaluation and selection process and a
successor designated.
(2) Only regular or special Government employees of EPA, or where
appropriate, other Federal Government agencies, shall participate in the
evaluation and selection process. Employees of contractors shall not
participate either formally or informally in the evaluation and selection
process.
c. Disclosure ^pf^jiformation. During the course of evaluation and
selection, personnel shall not reveal any information concerning the
evaluation to anyone who is not also participating in the same evaluation
proceedings, except as may be required for internal clearances or technical
assistance. The right to Information during the evaluation process does
not extend to the chain of supervision of personnel engaged in the evalu-
ation. However, nothing in this procedure precludes reasonable status
reports of activities to persons having program or procurement responsibi-
lities, provided that no information relating to the status or content
of a specific proposal is disclosed.
5. DEFINITIONS. RESPONSIBILITIES. AND D13TIES.
a. Head of the Procuring Activity. As defined in FPR 1-1.206,
"head of the procuring activity" means that official intermediate between
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the head of the agency and the contracting officer, who has the responsi-
bility for supervision and direction of the procuring activity. For the
purpose of this Chapter, the Director, Contracts Management Division (PM-
(PM-214), is the head of the procuring activity In that he is responsible
for the procedural supervision and direction of all EPA organizational
elements engaged in procurement. Specific functions in regard to source
evaluation and selection include:
(1) Monitor the source evaluation and selection process;
(2) Provide guidance and direction where required; and
(3) Rule on requests for deviation and exceptions from the
policy and/or procedures prescribed herein.
b. Source Selection Official. The official designated, as herein-
after provided in this Chapter, to direct the source selection process.
Duties Include:
(1) Appointing the Source Evaluation Board and chairman;
(2) Appointing the Technical Evaluation Panel and Business
Evaluation Panel and chairmen;
(3) Approving the solicitation and the evaluation criteria,
including any changes subsequent to Issuance;
(4) Monitoring the source evaluation and selection process;
(S) Providing guidance and/or direction when required;
(6) Approving competitive range determinations and exclusion
of offerers therefrom;
(7) Selecting source(s) for negotiations; and
(8) Conducting formal debriefings.
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c. Source Evaluation Board. The Source Evaluation Board (SEB) is
appointed by the Source Selection Official (SSO), and is composed of
personnel representing the various functional and technical disciplines
involved in a specific procurement action. The membership consists of
a chairman who is responsible for all of the procedural and administrative
aspects of the SEB, and other specialists, e.g., technical, legal,
procurement, and financial, as may be deemed appropriate by the SSO. In
addition to the chairman and other specialists, the Chairman of the
Technical Evaluation Panel (TEF) and Business Evaluation Panel (BEP) are
members of the SEB.
d. Technical Evaluation Panel. The TEP is composed of personnel
including, but not limited to, the project officer and at least two
additional members knowledgeable of the technical aspects of the procurement
action. Responsibilities of the TEP are to participate in the coordination
of evaluation criteria and statement of work for the solicitation,
evaluate offers, provide a comprehensive evaluation report to the SEB,
and prepare a summary of the strengths and weaknesses of each offer for
the Chairman of the SEB to use in his presentation to the SSO.
e. Business Evaluation Panel. The BEP is composed of personnel
including, but not limited to, the contracting officer and/or contract
specialist, and a cost and price analyst. Responsibilities of the BEP
are to participate in the coordination of evaluation criteria and
statement of work for the solicitation, evaluate the business and
contractual aspects of the offerers' business proposals, and prepare a
28
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summary of findings, including strengths and weaknesses of each offer,
and recommendations for the use of the Chairman of the SEE to use in his
presentation to the SSO.
f. Program Manager. The EPA program official at division, office,
or laboratory director level having overall responsibility for the
management of a program. The program manager usually is the Chairman
of the SEE.
g. Project Officer. The EPA individual designated by the program
manager, with the concurrence of the SSO as the technical representative
for the procurement action. The project officer usually is the Chairman
of the TEP.
h. Contracting Officer. The EPA official delegated the authority
to enter into and administer contracts and make related determinations
and findings. Delegations of contracting officer authority have been
made by the Administrator to positions in EPA and redelegated to
positions and individuals whose functions are to provide procurement
support (See Delegations Manual, Chapter 1, General, Administrative
and Miscellaneous).
1. Contract Specialist. The EPA individual assigned the respon-
sibility for the procurement action and for the accomplishment of
the administrative duties necessary for and leading to a contract.
Responsibilities of the contract specialist include, but are not
limited to, preparing the solicitation document, arranging preproposal
conferences, conducting negotiations, insuring complete and accurate
documentation of the official contract file, and preparing the
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contractual instrument. Generally, the contract specialist is also
responsible for receiving, safeguarding, distributing offers to the
SEB, and, when so designated, may be a member of the BEF.
J. Director or Chief of Contract Operations. The senior EPA
individual classified in the GS-1102 series having assigned responsi-
bilities for the management and operations of the procurement activities
at a specific location, i.e., Washington, D.C.; Research Triangle Park,
North Carolina; and Cincinnati, Ohio.
k. Source Evaluation Board Report. The formal report prepared by
the SEB which contains the evaluation standards (Including the evaluation
criteria, specifications, and other special terms and conditions of the
solicitation), detailed narrative assessments of each offer against these
standards, numerical scores when used, and a summary of facts and findings
of significant strengths, weaknesses, and risks of each offer. The SEB
report forms the basis for analysis and selection by the SSO.
1. Technical Evaluation PanelReport. The formal narrative report
prepared by the TEP for submission to the SEB. This report is the basis
for a najor portion of the SEB report to the SSO. It includes the
detailed scoring and a summary of facts and findings of significant
strengths, weaknesses, and risks associated with each offer. The report
must be in sufficient detail to permit a determination of acceptable
offers, justify the relative ranking of offers, and to adequately advise,
through debriefing sessions, those offerers who did not receive an
award of the reason their offers were not accepted.
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m' Business Evaluation Panel Report.
(1) The formal narrative report prepared by the BEF for
submission to the SEB. This report is the basis for a portion of the
SEB report to the SSO. It includes the consideration, analysis, and
recommendations concerning the following elements of each offerer's
business and management proposal:
(a) Reasonableness of price or estimated cost in relation
to the requirement;
(b) Investigation and analysis of unrealistically low or
or high cost elements;
(c) Evaluation of the proposed management structure to
be utilized for performance;
(d) Indirect cost management;
(e) Analysis of manhours, materials, and, if applicable,
such elements as computer time, subcontractors, consultants, and travel;
(f) Subcontracting program as it relates to small business,
labor surplus area concerns, and minority business enterprises; and
(g) Record of past performance under prior Government
contracts as it relates to timely performance, history of cost control,
requests for changes, and quality of the end product.
(2) The Business Evaluation Report represents a continuing
function during the source evaluation and selection process. It may
be necessary to prepare more than one business evaluation report. One
may be prepared based upon preliminary evaluations of offers wherein
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a price or cost comparison is made between offerer's proposals and
against an independent Government cost estimate. A second report may
be required to analyze laborhours against classification of skills
among the offerers. For example, the hourly rates of one offerer may
appear to be high in comparison to other offerers, but the analysis
may indicate an entirely different classification of skills offered.
The final Business Evaluation Report contains a detailed analysis of
the individual elements of the offerer's price or costs and is normally
supported by an audit report. The requirements relating to contract
audit as a pricing aid are set forth in FPR 1-3.809.
(3) Generally, business proposals are not susceptible to the
application of a numerical scoring system. However, the BEP Report
should reflect adjectival ratings for each significant element of the
proposal that has been analyzed. The adjectival ratings to be used
are "minus," "plus," or "check" and are applicable under the following
conditions:
(a) "Minus" means that the particular element is lacking
to such a degree that contract performance may be impaired;
(b) "Plus" means that the particular element is superior
to such an extent that contract performance is likely to be enhanced; and
(c) "Check" means that the particular element neither
exceeds nor falls below what is considered essential for successful
contract performance.
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n. Source Selection Decision Report. The Source Selection Decision
Report is prepared by, or under the direction of, the SSO. It reflects
the analysis made by the SSO of the SEB Report, the TEF Report, and the
BEP Report. The Report fully documents the rationale of the SSO in
arriving at the decision to select a particular source, or sources, for
final negotiation.
6. EVALUATION AND SELECTION FUNCTIONAL ASSIGNMENTS. The following
conditions are applicable to the appointment or designation of the
SSO, SEB, TEP, and BEP and their functional duties with respect to
procurement actions of the dollar values indicated.
a. In Excessof $5.000.000;
(1) SSO - The Head of the Procuring Activity (see 5a);
(2) SEB Chairman - Program Manager (see 5f);
(3) SEB Members - Chairmen of the TEP and BEP. (Such other
specialists may be appointed by the SEB Chairman as deemed appropriate
for the particular procurement action) (see 5c);
(4) TEP Chairman - Project Officer (see 5d); and
(5) BEP Chairman - Contracting Officer (see 5e).
b. In Excess of ^,OOP,000 But Not Exceeding $5.000.000;
(1) SSO - Director or Chief of Contract Operations (see 5j);
(2) SEB Chairman - Program Manager (see 5f);
(3) SEB Members - Chairmen of the TEP and BEP. (Such other
specialists excluding members of the TEP and BEP may be appointed by the
SEB Chairman as deemed appropriate for the particular procurement action)
(see 5c);
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(4) TEP Chairman - Project Officer (see 5d); and
(5) BEP Chairman - Either the Contracting Officer (see 5h)
or the Contract Specialist (see 5i) as determined by the Contracting
Officer.
c. In Excess of $10.000 But Not Exceeding $1.000,000:
(1) SSO - Contracting Officer (see 5h);
(2) SEB Chairman - Generally a functional SEB is not appointed
for procurement actions of these dollar values; therefore, the project
officer and contract specialist shall perform those duties normally
associated with the SEB Chairman and SEB Members;
(3) SEB Members - None;
(4) TEP Chairman - The normal functions of the TEP are performed
by the Project Officer; and
(5) BEP Chairman - The normal functions of the BEP are performed
by the contract specialist and the price analyst.
7. PROaJREMENT REQUEST AMP SOLICITATION PREPARATION.
a. Procurement Request. Chapter 1, Procurement Request/Requisition
and Rationale Document, Contracts Management Manual prescribes policies
I
and procedures for the use of EPA Form 1900-8, Procurement Request/
Requisition, and establishes the documentation which must accompany the
form. Paragraph 4e(12) sets forth the requirement for inclusion of
the evaluation criteria with the form.
b. Presolicitatlon.
(1) The effectiveness of the source selection process depends
to a large extent on the content and quality of the solicitation document.
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It is important at this stage in the procurement action that the SEE, TEP,
and BEP are appointed and become actively associated with the contracting
officer, or contract specialist, in the preparation of the solicitation.
Therefore, the SEB and panels shall be appointed at this time where the
procurement action is in excess of $1,000,000.
(2) For those procurement actions not in excess of $1,000,000,
the contracting officer, or contract specialist, shall thoroughly review
the solicitation document for consistency with law, policy, and regula-
tions. Other matters to be addressed include type of contract contemplated,
planned contractual provisions, quantities, schedules, completeness, and
specification and data requirements. The contracting officer shall insure
that specification requirements have been correlated with the operational
needs. The contracting officer shall insure that both management and
technical data requirements have been similarly evaluated to eliminate
nonessential or unduly restrictive requirements.
(3) Irrespective of the dollar value of the procurement action
the solicitation document including the evaluation criteria shall be
reviewed and approved by the SSO, as designated in paragraph 6a, b,
or c, above, prior to release to the public. Proposed amendments of
the solicitation shall be similarly reviewed and approved prior to
release.
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8. EVALUATION CRITERIA.
a. Although the initiator of EPA Form 1900-8, Procurement Request/
Requisition, is responsible for the development of the evaluation
criteria, the TEP and BEF are additionally responsible for insuring
that the evaluation criteria are adequately stated and are applicable
to the procurement action.
b. The development of evaluation criteria is not susceptible to the
application of a pre-determined mathematical formula, but must be developed
on a case-by-case basis after taking into consideration all of the salient
features of the specific procurement action. Each element of the evaluation
criteria must have a direct and important relationship to each salient
feature.
c. All offerers must be able to readily determine from an examination
of the criteria included in the solicitation, the bases upon which their
offers will be evaluated. In order to accomplish this, the criteria
shall be set forth in elements, and subelements to the extent appropriate,
and provide the relative order of importance of each.
d. Depending upon the procurement action, weights may be assigned
to each major element of the evaluation criteria; however, it is not
necessary to specify subelement weights. The decision regarding the use
of evaluation criteria having assigned weights vests in the SSO.
e. Where the ratio of importance of one element to another is 6 to 1,
or higher, the weights must be set forth in the solicitation (see
Comptroller General Decisions B-18C245, May 9, 1974 and B-184446, March 2,
1976). Likewise, consideration should be given to including weights in
the solicitation where the ratio is 5 to 1, or as low as 4 to 1.
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9. PREPROPOSAL CONFERENCES. Preproposal conferences are an important
part of the solicitation process, and shall be conducted in a fair and
impartial manner that will not give any prospective offerer an unfair
competitive advantage over another. The determination to conduct a
preproposal conference may be made by the SSO, or the contracting officer,
under the following conditions:
a. Prior to Issuance of the Solicitation. Where it is determined
that a preproposal conference would be advantageous to the Government
and prospective offerers in order to:
(1) Clarify or explain complex specifications, statement of
work, or proposed contractual provisions, e.g., patent rights, and data
requirements;
(2) Discuss or emphasize the importance of any qualification
requirements that have been set forth in the synopsis and solicitation,
e.g., offerers1 capabilities, experience, facilities, and resources
that are required to perform the statement of work;
(3) Reveal any ambiguities, inconsistencies, and gaps within
or between the solicitation schedule, statement of work, specifications,
and evaluation criteria; and
(4) Provide additional background material to prospective
offerers, e.g., reports or other documents that are too voluminous to
include with the solicitation, and site tour, or visits to the place of
performance.
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b. After Issuance of the Solicitation. It may become necessary to
conduct a preproposal conference even though the solicitation does not
provide for one. A notice shall be given to all prospective offerers
who have received the solicitation, and shall be in such form as the
SSO, or contracting officer, may determine, i.e., an amendment to the
solicitation or a letter notice. The following circumstances are
indicative that a preproposal conference is desirable.
(1) Numerous questions regarding the solicitation have been
directed to the contracting officer, contract specialist, or project
officer, and these questions are relative to substantive matters;
(2) An important segment of industry requests the conference;
or
(3) Continuing review of the technical and business aspects of
the solicitation by EPA personnel reveals matters which should be
clarified.
c. Post Conference Actions. The actions to be taken following a
preproposal conference are dependent upon several factors, generally as
follows, and are largely judgmental.
(1) In those cases where a transcript (either based upon tape
or stenographic notes) has been prepared, the transcript may be furnished
to all prospective offerers or all prospective offerers may be notified
of its availability upon request, provided that, nothing in the transcript
in any way modifies the solicitation; or
(2) Where the transcript modifies the solicitation, an amendment
of the solicitation shall be prepared and furnished to all prospective
offerers.
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10. RECEIPT AND DISTRIBUTION OFOFFERS. The integrit7 and consequent
effectiveness of the source evaluation and selection process is dependent
upon the care that must be exercised in the receipt and subsequent handling
of offers. Offerers' identities, offer contents, and prices shall be
handled with the utmost discretion to avoid compromising the evaluation
results, or giving any offerer an unfair competitive advantage over other
offerers. The contracting officer is the single point of contact during
the entire competitive process. Any questions regarding the receipt and
distribution of offers, the status of the proceedings, or other matters
shall be referred to the contracting officer. The receipt and distribution
of offers shall be governed by the following minimum standards:
*• Receipt. Only those offers which are received on or before the
time and date set forth in the solicitation shall be considered for award,
unless the late receipt is due to one of the conditions described in the
"Late Proposals, Modifications of Proposals, and Withdrawals of Proposals"
provision of the solicitation.
b. Security Measures. The Director or Chief of Contract Operations
is responsible for Insuring that as offers are received they are promptly
recorded and properly safeguarded to prevent unauthorized disclosures.
c. Distribution of Offers. Each EPA solicitation sets forth a
requirement that offerers shall submit the technical and business
proposals as separate and complete in themselves so that evaluation of
each may be accomplished concurrently and independently. It is imperative
that this separation be maintained throughout the evaluation process to
insure that the technical evaluation is conducted solely on the technical
39
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proposal and is not in any way influenced by cost or price considerations.
Therefore, promptly following the time and date set for the receipt of
offers, the contract specialist, or other Individual who has been designated
by the Director or Chief of Contract Operations, shall distribute the
technical and business portions to:
(1) The TEP and BEP, respectively, where the procurement action
is in excess of $1,000,000: or
(2) The project officer (technical portion only) and contracting
officer, or contract specialist when so designated, and the price analyst
(business portion only) where the procurement action is $1,000,000 or
less.
The contract specialist, or other designated individual, shall maintain
a record, i.e., log of the offers received, furnish a copy of this record
to the recipients of the offers, and obtain a receipt, if deemed appropriate.
Recipients shall be advised of the requirements for maintaining the
technical and business proposals as completely separate entities, and of
the requirements regarding the disclosure of information contained in
the offers (see 4c).
In those cases where offerers have been instructed to submit their
technical offers to a location other than the procurement activity, the
Individual at that location must be designated to receive, record, and
distribute offers in the same manner as prescribed for the contract
specialist.
The original copy of each offer received shall be retained by the contract
specialist, pending the completion of the evaluation process, as the
official file copy. This original copy and any codifications thereto
40
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shall become a part of the official contract file after award.
Concurrent with the distribution of the proposals, the contract specialist
shall advise the evaluators when the evaluation must be completed and the
evaluation reports are to be submitted to the SEB or, when the procurement
action is $1,000,000 or less, to the SSO.
11. EVALUATION PROCEDURES. In previous parts of this Chapter, the
evaluation and source selection policy has been established; definitions,
responsibilities, and duties have been set forth; functional assignments
have been made; and the procedures leading to the receipt and distribution
of offers have been described. This paragraph expands on the procedures
governing the technical and business evaluation of offers, and prescribes
the method of scoring that shall be used in determining the relative
ranking of offers.
a. Initial^JReyiew. Technical proposals shall be reviewed promptly
after the time and date for the receipt of offers as set out in the
solicitation. The purpose of this review is to determine if any of the
offers are so technically deficient as to conclusively remove them from
further consideration. Either the contracting officer, project officer,
the TEP, or the contract specialist acting alone, or in conjunction with
each other, shall make this initial review. Some examples of technically
deficient offers are: the offerer is offering equipment instead of the
study called for in the solicitation, the technical approach will clearly
not accomplish the desired results, the offer contains an approach cr
methodology that has previously been found to be unworkable, or the
offer is contingent upon conditions which EPA cannot meet without violating
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statutes or regulations. The removal of an offer from further considera-
tion is a very serious matter which may have an adverse impact upon EPA;
consequently, if any reasonable doubt exists regarding the offer it shall
be included for complete evaluation, scoring, and ranking.
b. Scoring Plan. The scoring of offers must be done through the
application of a predetermined scoring plan consisting of numerical values.
These values are applied against the weight assigned to each subelement
of the evaluation criteria set forth in the solicitation. The values are
on a scale of zero through five; consequently, each value, except zero,
represents 20% of the maximum rating that a subelement may receive. For
example, an assigned value of four means that within a particular subelement
the offer has been evaluated and found to contain 80% of the elements
of the scoring plan. The following scoring plan shall be used in conjunc-
tion with numerical weights to arrive at scores for each element and
subelement. _, f, /
7377?""
Value Descriptive Statement
0 Not addressed in the offer.
1 Addressed, but totally deficient.
2a in,-',' ,.,<,'/,: ,Vt»:.'X', ,•/ Deficient, but appears to be capable of
<--..V;; XV.-A./ ^/'/y^ improvements to adequate or better with-
-x'y /.•Jij/c/.i out adopting a new approach.
2b Appears to be deficient; however, final
AJJ(/- scores will be determined subsequent to
answers to written questions and/or oral
questions.
3 Adequate; overall it meets the specifica-
tions .
4 Good; has some superior features.
5 Generally superior in most features.
The relationship of the scoring plan to written or oral discussions and to
subsequent negotiations is as follows:
-------
(1) Value of "0," "1," or "2a" - The element or subelement
clearly is deficient and is not to be questioned or discussed during written
or oral discussions. Such values are solely for the purposes of scoring,
ranking, and determination of the competitive range. If, however, the
offer attains an overall score, because of other factors, that places
it in a sufficiently high position to be selected for negotiations, the
offerer shall be allowed to correct these deficiencies during negotiations.
(2) Value of "2b" - The element or subelement contains uncertain-
ties which must be resolved before the offer is fully understood. Such
uncertainties are to be resolved during written or oral discussions, and
the offer is to be given a final score that is based on the offerer's
clarifications. • / /
' '' " • • '
(3) Values of "3," "4," or "5" - The element or subelement is
fully understood and there is no need for clarification by the offerer.
However, discussions involving any such elements or subelement s are not
precluded .
c. Scoring System. The SEB, or contracting officer in the case of
/V t^i - ^ r*fj 'V
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element and subelement. For example, if the solicitation stated that
the first criterion was twice as important as each of the remaining three,
then the scoring system should reflect this by providing for a maximum
numerical weight of 200 points for this element of the offer, and 100
points for the remaining three elements. When the scoring system contains
subelements, particular attention must be given to maintaining the
relative importance of each subelement to the total element. The
scoring system shall be developed prior to any comprehensive review of
offers, and, once adopted, shall be applied x?ithout change throughout
the entire evaluation. On rare occasions it nay be found that the system
is impracticable or not conducive to fair and impartial scoring. In
such cases the system may be modified with the approval of the Director
or Chief of Contract Operations. However, all offers shall be rescored
using the modified system.
In scoring offers a numerical value of the scoring plan is applied to
each numerical weight in order to arrive at a score for that particular
element or subelement. The sum of these scores is the overall score
attained by the offer. The following example is an outline of a typical
scoring system showing the assignment of numerical weights, the applica-
tion of the scoring plan, the derivation of individual scores for each
element and subelement, and the overall score to be used in ranking the
offers.
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TECHNICAL EVALUATION SCORING SYSTEM
Numerical i >A Scoring Individual
Evaluation Criteria Weight ' J .-\ Plan Scores
I. Adequacy of Technical Proposal
a. Literature search and
investigation methodology
b. Proposed sources of
information
c. Plan for assessing the
value of each publication
d. Correlation of literature
to economic aspects
e. Presentation of findings
II. Project Management
a. Previous experience the
project manager has had
in this type of effort
b. Company resources available
to the project manager
c. Proposed subcontracting
effort in connection with
obtaining additional resources
d. Project management
organization and plan
III. Personnel Qualifications
200
40
40
40
40
40
100
25
25
25
25
100
128
f
3 - CU"" 24
2b 16
5 !-t
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The application of the principles set forth in ll.b.(l), (2), and (3) to
the above sample will result in the following:
(1) Item I.b, Proposed sources of information, must be
discussed with the offerer, and the element appropriately rescored. If
the clarification offered is such that a rescoring is not appropriate,
the value and score will remain as initially determined;
(2) Item I.e, Presentation of findings, is not to be discussed,
but the offerer shall be allowed to correct his offer if he is selected
for negotiations because of other factors that have resulted in the
attainment of a high rank; and
(3) Items II.c» Proposed subcontracting effort in connection with
obtaining additional resources, and III.c, Qualifications of consultants,
shall be treated in the same manner under the same circumstances set forth
in (2) above.
d. Evaluation Guidelines. The evaluation of offers requires the
exercise of careful judgment on the part of each evaluator. Offers must
be carefully read and analyzed before the scoring plan is applied to any
element or subelement. Evaluators should consider the following when
analyzing offers:
(1) Avoid "reading into" or "reading out of" any portion of the
offer a meaning other than the exact language appearing in the offer;
(2) Avoid the tendency to interpret the meaning of the
offerer's writing;
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(3) Avoid any infusion of personal knowledge concerning the
offerer, particularly if the offer does not address the matter;
(4) Recognize that the assignment of a score to an element or
subelement is subjective and based upon judgment;
(5) Recognize that no two individuals may assign the same
numerical score to an element or subelement;
(6) Recognize ambiguities, inconsistencies, errors, omissions,
irregularities, and deficiencies that can affect scoring;
(7) Recognize that offerers often use "catch phrases," "buzz
words," and semi*-legalistic phraseology which may not indicate a thorough
understanding of the solicitation;
(8) Recognize the quality of substance and do not be influenced
by form, format, or method of presentation;
(9) Recognize flattery on the part of the offerer; and
(10) Avoid forming "first impressions" of an offer that might
tend to influence the score to be assigned.
e. Ranking. The assignment of numerical scores to an offer
determines the relative rank of that offer with respect to other offers.
While the use of predetermined scores as a cutoff for the establishment
of the competitive range is prohibited, the scoring and relative rank
of offerers does influence this determination materially. This is
particularly true when an offer, or group of offers, falls significantly
below the lowest score attained by the higher ranking offers.
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12. OTHER EVALUATION FACTORS. Frequently there are other factors that
enter into the evaluation process that must be considered in arriving
at a relative ranking. These factors are not included in the evaluation
criteria of the solicitation, but consist of important items which may
have a significant impact upon the determination of those offers within
the competitive range and upon selection for award. They are not point
scored, but are presented to the SSO for his consideration as deemed
appropriate. While some of these items appear in 5 m, concerning the
functions of the BEP, the following examples are items related to prior
performance on Government contracts that must be taken into consideration:
a. Compliance With;
(1) Socio-economic programs such as small business and labor
surplus area concerns and minority business enterprise;
(2) Labor standards provisions such as the Fair Labor Standards
Act, Service Contract Act of 1965, Contract Work Hours and Safety
Standards Act, and, if applicable, the labor standards provisions
relative to construction;
(3) The provisions of the Disabled Veterans and Veterans of
the Vietnam Era and the Employment of the Handicapped clauses; and
(4) The provisions of the Clean Air and Water acts.
b. Have Record ofi
(1) Lack of integrity, business ethics, or failure to apply
necessary tenacity or perseverance to do an acceptable job;
(2) Poor financial capability or credit;
48
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(3) Violation of statutes or regulations resulting in place-
ment on a debarred, suspended, or Ineligible listing (see FPR 1-1.6);
(4) Actual or potential conflict of interest situation; and
(5) Previous determinations of nonresponsibility in connection
with the award of contracts.
c. Additional. There may be occasions where there are reasons to
include other factors that are not stated above. However, they must be
reasonable in the judgment of the SSO and pertinent to the procurement
action.
13. DETERMIHATION OF THE COMPETITIVE RANGE. Determination of the
competitive range is not treated In depth by the FPR (see 1-3.805-1(a)),
which states in part "... a competitive range, price and other factors
considered, except ..." The implication here being that price is the
primary consideration, and that other factors are secondary. In the case
of EPA procurement actions this would be applicable only to negotiated
supply contracts, but is not applicable to the procurement of research
and development studies, surveys, demonstrations and similar subjects
which are more prevalent. Almost all EPA procurement actions to which
this Chapter applies involve other factors which are of greater impor-
tance than the price or estimated cost proposed. Accordingly, determi-
nation of the competitive range shall be made only after evaluation
of all offers received and careful consideration of and possible trade
offs as follows:
a. Technical Evaluation. While the attainment of a particularly
high score would sees to indicate that an offer should be considered
49
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within the competitive range, upon consideration of the price offered,
it nay not be practicable to trade off the superior technical aspects
of the offer against a significantly higher price. Generally, the
attainment of a high technical evaluation score in itself need not be
sufficient basis for a determination that the offer is within the
competitive range. Conversely, an offer with a lower technical
evaluation may meet the minimum requirements of the solicitation and
offer a price that should be given further consideration.
b. Business Evaluation. The business evaluation of offers is an
essential element in determining the competitive range, and is of
particular significance where several offers have received scores that
are close In numerical value as a result of the technical evaluation.
In such cases, the business evaluation may be the determining factor in
arriving at the competitive range. Similarly, one or more of the factors
set forth in paragraph 12 may be of such importance that the offer cannot
be reasonably determined to be within the competitive range.
c. Determination and Documentation. The contracting officer shall
make the determination of the competitive range with the subsequent
approval by the SSO (see 5 b (6)). As with the preceding discussions
regarding evaluations, no stringent rules can, or should be, applied
In determining the competitive range, nor can a mathematical formula
be devised. Where there is reasonable doubt regarding the inclusion
of a particular offer within the competitive range, that doubt should
be resolved in favor of inclusion. Because the determination of the
competitive range is based on informed judgment and is complex in nature,
all such determinations must be completely documented to set forth the
rationale supporting the determination.
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d. Example. The following example Is furnished for guidance in
determining the competitive range based on the technical and business
evaluations of a group of offers:
Offerer Technical Evaluation Score Cpjt/Priee
A Co. 330 $ 250,000
B Inc. 325 175,000
K Co. 275 145,000
D Co. 245 150,000
C Co. 200 115,000
G Co. 125 92,000
(1) G Co., while offering the lowest price/cost has submitted an
offer that is seriously lacking in essential qualities. A review of the
scoring will show several essential qualities to have been scored as "0,"
"1," or "2a;"
(2) A Co., while attaining the highest technical score has offered
a price/cost that is unreasonable for the effort required. If an analysis
of the business proposal shows that several elements of cost or price are
unusually high, but may be susceptible to downward revision, the offer may
be included in the competitive range; however, if those circumstances do
not exist, the offer may safely be considered to be outside the competitive
range because of price/cost.
(3) C Co., has attained a score which represents only 50% of the
essential qualities desired. This is also reflected in the business pro-
posal. The offer should not be considered within the competitive range,
and
(4) The offers of B Inc., K Co., and D Co., are close as to both
the technical evaluation and cost/price offered. Therefore, these three
offers should be within the competitive range, and, depending upon the
51
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circumstances incident to the much higher price, A Co., may also be
included.
14. WRITTEN OR ORAL DISCUSSIONS
a. Background. Public Law 87-653, commonly known as the Truth in
Negotiations Act, amended 10 U.S.C. 2304(g) to require written or oral
discussions in negotiated procurements with all responsible offerers
who submit proposals within a competitive range. While this Act did
not apply to those agencies subject to the Federal Property and Admin-
istrative Services Act of 1949, as amended, the Administrator of General
Services has applied the same provision to civilian executive agencies
in the interest of uniformity. This provision is set forth in
FPR 1-3.805-1(a).
b. Purpose. The FPR provides guidance as to the purpose of
conducting discussions by the statement contained in 1-3.804 which is
"Oral discussions or written communications shall be conducted with
offerers to the extent necessary to resolve uncertainties relating to
the purchase or the price to be paid." By interpretation, the purposes
of these discussions are to:
(1) Provide offerers an opportunity to further explain their
offers;
(2) Afford the contracting officer an opportunity to understand
fully what is being offered;
(3) Arrive at preliminary agreements regarding price, cost,
performance, contract terms and conditions; and
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(4) Resolve minor informalities in offers, e.g., incomplete
representations and certifications, and incomplete cost or pricing
information.
c. Uncertainties. An uncertainty is described as any part of an
offer that is not stated in a manner that is clear and concise enough
to avoid the necessity for Interpretation of its meaning or intent.
Uncertainties may arise because of terminology, sentence structure,
grammatical composition, word usage, misspelling, or inconsistencies
or ambiguities in two or more portions of the offer.
d. Deficiencies. Deficiencies, as distinguished from uncertainties,
are those portions of an offer that are lacking in some necessary quality
or element such that they do not address the minimum requirements as
stated in the solicitation.
e. Limitations. Careful judgment in determining the extent of
discussions must be exercised. Discussions with each offerer must be
confined to those areas of the offer that have been identified as
containing uncertainties. There must be a scrupulous avoidance of
disclosure of technical information, ideas, or cost data from any
other offerer. No indication shall be given to any offerer of a
price which must be met or bettered to obtain further consideration
since such practice constitutes an auction technique. On the other hand,
this does not prohibit pointing out price or cost elements that do not
appear to be justified, or encouraging offerers to put forward their most
favorable price proposals, but in so doing, the price elements of any
53
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other offerer must not be discussed, disclosed, or compared. It is of
paramount importance that discussions shall not be extended into the
identification and correction of deficiencies.
15. BEST AND FINAL OFFER
a. Notification. At the conclusion of written or oral discussions,
a final common cut-off date, in accordance with FPR l-3.805-l(b), which
allows a reasonable opportunity for submission of final written offers
must be established and all participants so notified. This notification
must include information to the effect that discussions are being
concluded; offerers are being asked for their "best and final" offer
(which can be a confirmation of a prior offer, but should be explicitly
stated as a final offer); and the confirmation or revised final offer
must be submitted by the date specified. When contracting officers call
for the "best and final" offer, offerers should be cautioned against
"buying-in" and submitting unsupported changes in their former offers.
b. Receipt. Any "best and final" offer received after the established
final common cut-off date must thereafter be handled as "late" in accord-
ance with FPR 1-3.803-1.
c. Evaluation. "Best and final" offers shall be subject to a final
evaluation (price or cost, technical, and other salient factors) to the
extent considered necessary by the contracting officer. Evaluations
shall be performed in accordance with the procedures previously prescribed
for use in the evaluation of initial offers (see paragraph 11, EVALUATION
PROCEDURES and paragraph 12, OTHER EVALUATION FACTORS) in order to
determine the relative ranking of the revised offers.
54
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d. Limitation. Contracting officers shall not call for "best and
final" offers more than once unless fully justified and then only when
approved by the SSO.
16. SOURCE SELECTION DECISIONS.
a. General. The selection of a source, or sources, for negotiations
shall be made after the receipt and evaluation of "best and final" offers.
b. SSO Selection. After the SSO has reviewed the SEB report (see
5 '< ) he shall prepare, or direct the preparation of, a source selection
decision report which shall reflect:
(1) The source selection decision,
(2) Comprehensive rationale for the decision,
(3) Authorization for the contracting officer to conduct
negotiations with the source selected, and
(4) Authorization to award a contract upon successful completion
of negotiations.
c. Contracting Officer Selection. For these procurement actions not
in excess of $1,000,000, the contracting officer shall prepare a source
selection decision report which reflects:
(1) The source selection decision, and
(2) Comprehensive rationale for the decision.
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17. NEGOTIATIONS WITH THE SOURCE SELECTED. The contracting officer,
assisted by the contract specialist and such other technical and business
specialists as deemed appropriate, shall conduct negotiations with the
source selected. Such negotiations shall not involve material changes
which, in the judgment of the contracting officer, would alter the bases
for the source selection decision. In the event that the SSO directs
negotiations with more than one source, negotiations may be conducted
successively with those sources selected. At the conclusion of negotiations
offerers will be requested to submit written confirmation of agreements
with respect to price and other significant elements agreed upon. A common
cut-off date shall be established for the receipt of these confirmations.
The procedures described in paragraph 16, SOURCE SELECTION DECISION. para-
graphs b(l), (2) and (4) or, paragraph c, as appropriate, shall be followed
to document the selection decision. Negotiations at this point in the source
evaluation and selection process permits consideration and correction of
elements and subelenents which were assigned numerical values of "0," "1,"
or "2a."
18. AWARD. Contract award shall be made to that offerer who has sub-
mitted an offer which promises the greatest advantage to EFA in terms
of performance at an affordable cost, and as a result of fair and
impartial evaluation. However, award shall be made only after all
required clearances and approvals have been obtained.
19. NOTIFICATIONS TO UNSUCCESSFUL OFFEROKS.
a. Unacceptable Offers. Written notice shall be given to those
offerers whose offers have been found to be unacceptable as a result
56
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of the Initial evaluation made pursuant to 11 a. The notice shall be
substantially in accordance with Exhibit A and shall be furnished
promptly following the Initial evaluation.
b. Competitive Range. Promptly after establishing the competitive
range those offerers (other than those in 19 a, above) whose offers
have not been found to be within the competitive range shall be notified.
The notice shall be substantially in accordance with Exhibit B.
c. Unsuccessful Offerers. Offerers who have not been selected for
award shall be notified as promptly as possible that their offers are
no longer being considered. If after selection of the successful
offerer, it is expected that an award will be made in a short period
of time, those offerers that were within the competitive range, but
have not been selected for award, need not be notified. In such cases
the notification shall be made after award (see FPR l-3.103(b)). Where
notification is made before award, such notice shall be substantially in
accordance with Exhibit C.
20. DEBRIEFING. If unsuccessful offerers request a debriefing prior to
contract award, they shall be afforded the opportunity for a formal
debriefing, provided that the contract award will not be unreasonably
delayed. Debriefing shall be conducted only for those offerers who submit
written requests, and where the request has been signed by a corporate
official, senior partner, or other comparable executive of the offerer.
Debriefings must be absolutely factual and in conforoance with the
documentation supporting the decision of the selection official.
Restrictions on disclosure of information pertaining to any other offerer's
proposal are set forth in FPR 1-3.103(b).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE Of
PLANNING AND MANAGEMENT
Gentlemen:
Your proposal submitted in response to our Request for Proposals
No. has been received and has undergone an
initial technical evaluation. As a result of this evaluation,
your proposal has been found to be inadequate in the treatment of
certain elements which ve consider to be essential for successful
contract performance. The inadequate areas were (briefly explain
the areas which were considered inadequate).
A substantial modification of your proposal would be necessary to
correct the inadequate treatment. The "Late Proposals, Modifications
of Proposals, and Withdrawals of Proposals" provision in the request
for proposals precludes consideration of any modification of a
proposal received after the date and time specified. Based on the
foregoing, your proposal will not receive further consideration nor
will any modifications be considered.
Tour interest in EPA programs is appreciated. We encourage you to
continue responding to our future requirements.
Sincerely yours,
Contracting Officer
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EXHIBIT B
'4
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
PLANNING AND MANAGEMENT
Gentlemen:
So that you may redirect resources held in anticipation of
receiving a contract award, this Agency, as a service to you,
is providing advance information which indicates your proposal
submitted in response to RTF No. was not determined
to be within the competitive range.
Based on the foregoing, revisions to your proposal will not be
considered. Following award of the contract you will receive a
further notice setting forth the successful contractor and the
contract amount. We wish to express appreciation for your
interest in EPA programs, and encourage you to continue
responding to our future requirements.
Sincerely yours,
Contracting Officer
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EXHIBIT C
* « \
12E * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
%«^«.^ WASHINGTON. D.C. 20460
OFFICE OF
PLANNING AND MANAGEMENT
Gentlemen:
So that you may redirect resources held in anticipation of
receiving a contract award, this Agency, as a service to you,
is providing advance information which indicates your proposal
for
although judged to be in the competitive range will not be
considered for further negotiation. Subsequent revisions to
your proposal will not be considered.
We have selected the firm listed below as the offerer whose
proposal offers the greatest advantage to the Government, cost
or price, technical, and other factors considered. Negotiations
will be held with:
(Name of source selected for negotiations)
Following award of the contract, you will receive a further
letter setting forth the name of the successful contractor and
the contract amount. We wish to express appreciation for your
interest in EPA programs and encourage you to continue responding
to our future requirements.
Sincerely yours,
Contracting Officer
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EXHIBIT D
PROCESSING SEQUENCE
FOR
SOURCE EVALUATION AND SELECTION
1. Procurement Request
2. Develop evaluation criteria for the solicitation
3. Prepare and issue the solicitation
4. Receive offers
5. Conduct preliminary evaluation
6. Determine the competive range
7. Conduct written or oral discussions
8. Request "Best and Final" offers
9. Receive and evaluate "Best and Final" offers
10. Select the source for negotiations
11. Conduct negotiations with the source selected
12. Conclude negotiations
13. Award the Contract
14. Debriefing
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U.S. Environmental Protection flgency
PROCUREMENT INFORfflflTION NOTICE
No.
78-3
ir-9-77
Subject! Source Evaluation and Selection Procedures - Supplementary
Procedure for Procurement Actions Not In Excess of $100,000
Procurement Information Notice (PIN) No. 77-15, February 7, 1977
Purpose & Scope:
To provide a supplementary procedure for the evaluation of
proposals where the procurement action is not in excess of
$100,000, and the type of action is clearly susceptible to
the use of simplified methods.
Discussion
PIN No. 77-15 transmitted a draft of a proposed chapter of the Contracts
Management Manual entitled "Source Evaluation and Selection Procedures."
Paragraph 5, Subparagraph 1, describes the Technical Evaluation Report
prepared by the Technical Evaluation Panel. Paragraph 11 presents
more detailed procedures governing the technical and business evaluation
and prescribes a method of scoring. There have been Indications from
some field procurement activities that the requirements regarding
narrative discussions may be creating a workload for program personnel
which is resulting in delayed technical evaluations. This is partic-
ularly true where procurement actions not in excess of $100,000 are
involved, and where requests for proposals are not expected to result
in offers which are complex enough to require extensive evaluation.
Accordingly, a combined checklist-scoring system is authorized for
use under the foregoing conditions. A suggested format and minimum
number of headings of a combined checklist-scoring system is attached.
Both the format and major headings may be modified to accommodate the
particular circumstances and evaluation criteria of a specific request
for proposals. In all circumstances the format and heading shall be
compatible with the evaluation criteria.
EPA HO FORM 1900-38 1-761
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This supplementary procedure may be used on a trial basis through
June 30, 197S. If the trial period shows conclusively that signi-
ficant savings of manpower and more prompt technical evaluations have
resulted, consideration will be given to amending the Source
Evaluation and Selection Procedures to include the use of a
combined checklist-scoring system.
Action Officer: Frank Boyer (PM-214), Telephone: 755-0900
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PROPOSAL TECHNICAL EVALUATION
RFP NUMBER AND TITLE:
OFFSROR:
EVALUATED BY: DATE:
MAXIMUM SCORE ATTAINABLE: EVALUATION SCORE:
EVALUATION CRITERIA - SCORING PLAN - SCORE
A. ADEQUACY OF TECHNICAL PROPOSAL
1. Understanding Scope of Work (Assigned Weight: Points)
Z_ Value Descriptive Statement
0 0 Not addressed In the offer.
20 1 Addressed, but totally deficient.
40 2a Deficient but appears to he capable of improve-
ments to adequate or better without adopting a
new approach.
40 2b Appears to be deficient; however, final scores
will be determined subsequent to answers to
written questions and/or oral questions.
60 3 Adequate; overall it meets the specifications.
80 4 Good; Has some superior features.
100 5 Generally superior in most features.
(Score: I of Assigned Weight )
2. Project Approach (Assigned Weight: Points)
Z. Value Descriptive Statement
0 0 Not addressed in the offer.
20 1 Addressed, but totally deficient.
40 2a Deficient but appears to be capable of Improve-
ments to adequate or better without adopting a
new approach.
40 2b Appears to be deficient; however, final scores
will be determined subsequent to answers to
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60
SO
100
written questions and/or oral questions.
Adequate; overall It meets the specifications.
Good; has some superior features.
Generally superior in most features.
(Score: % of Assigned Weight )
3. Project Management - Resources Allocation (Assigned Weight: Joints)
3 Valug Descriptive Statement
0 0
20 1
40 2a
40 2b
60 3
80 4
100 5
B. OFFEROR
1. Experience
£ Value
0 0
20 1
40 2a
Not addressed in the offer.
Addressed, but totally deficient.
Deficient but appears to be capable of improve-
ments to adequate or better without adopting a
new approach.
Appears to be deficient; however, final scores
will be determined subsequent to answers to
written questions and/or oral questions.
Adequate; overall it meets the specifications.
Good; has some superior features.
Generally superior In most features.
(Score: % of Assigned Weight )
(Assigned Weight:_
Descriptive Statement
Not addressed in the offer.
40
2b
Addressed, but totally deficient.
Deficient but appears to be capable of improve-
ments to adequate or better without adopting a
new approach.
Appears to be deficient; however, final scores
will be determined subsequent to answers to
written questions and/or oral questions.
66
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60 3
80 4
100 5
Adequate;
Good; has
Generally
("Score :
Personnel 3ac
*' Value
0 0
20 1
kg round
nesc
Mot
jnd r
overall it meets the specifications.
some superior features.
superior in most features.
» of
Assigned
Velght )
xperience (Assigned Height Points)
riotive Statement
addressed
Addressed
, but
in the offer.
totally
deficient.
40 2a Deficient but appears to be capable of improve-
ments to adequate or better without adopting a
new approach.
40 2b Appears to be deficient; however, final scores
will be determined subsequent to answers to
written questions and/or oral questions.
60 3 Adequate; overall it aeets the specifications.
30 4 Good; has sone superior features.
100 5 Generally superior in sost features.
CScore: ". of Assigned Weight )
3. Facilities (Assigned Weight Points)
^ Value Descriptive Statement
"> n Not addressed in the offer.
20 1 Addressed, but totally deficient.
•iO 2a Deficient but appears to be capable of improve-
ments to adequate or better without adopting a
new approach.
«0 2b Appears to be deficient; however, final scores
will be determined subsequent to answers to
written questions and/or oral questions.
60 3 Adequate; overall it xeets the specifications.
3^ - 3ocd; has sone superior features.
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100 5 Generally superior In most features.
(Score: * of Assigned Weight )
DEBRIEFING REMARKS: (Specific comments concerning the proposal as it
relates to the technical evaluation criteria in
the RFP1
NOTE: Detailed data substantiating any score shall be made available
by the evaluator upon request.
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U.S. Environmental Protection flgency
PROCUREfTlEHT INFOfMTWTION NOTICE
No.
78-12-10
m-1Q-7R
Subject:
Service Contracts
Reference:
Memo from Director, Contracts Management Division,
dated January 30, 1973, same subject.
Purpose & Scope: To incorporate outstanding EPA policy
into the PIN system.
Discussion:
Policy continues in effect until cancelled or
superseded., with the following emphasis and/or
changes:
1. Note the requirement in the third paragraph
for a written determination by the Contracting
Officer in all instances of contracting for
nonpersonal services, except as provided.
2. In the third complete paragraph on page 3
change the citation of EPA Order 1900.2 to read
Contracts Management Manual, Chapter 5.
3. Note the RFP certification at the top of
page 4. The permissive language "should" in
the last line on page 3 is hereby changed to
"shall."
Action Officer: Robert L. Wright, 755-0822
HO FORM 1900-38 ,1-761
69
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Service Contracts
Chief, Headquarters Contract Operations
Chief, Durham Contract Operations
Chief, Cincinnati Contract Operations
Chief, Cost Review and Policy Branch
We have decided to defer publication of EPPR 15-55,
Service Contracts, which appeared for rule making in the
Federal Register August 29, 1972. As an alternative, the
following guidance is provided:
A service contract is one which requires the contractor
to furnish the Government the time and effort of his
personnel, rather than (or in addition to) an end product.
A contract may call for the furnishing of both supplies and
services; in such a case, these guidelines apply to the extent
that the furnishing of services is involved. Service contracts
may be classified as "personal" or "nonpersonal." These two
terms refer to the relationship between those employees of
the contractor who perform the services and the Government
agency for which the services are performed.
All contracts for services, other than contracts for
personal services are contracts for nonpersonal services.
Nonpersonal services may be obtained by contract, utilizing
regular procurement procedures. The contracting officer
shall, prior to issuance of any invitation for bids, request
for procurement, or award, determine in writing that the
Cervices jtc^ b_e_ procured are nonpersonal in nature stating
the reasons for his determination. This determination shall
be maintained in the contract file in the form of a separate
memorandum or an appropriate statement in the summary of
negotiations. Contracts for construction and contracts for
architect-engineering services for preparations of designs,
plans, drawings and specifications, awarded pursuant to
FPR, Part 1-18 and simplified small purchases under FPR,
Subpart 1-3.6 are exempt from this determination requirement.
CONCURRENCES
70
OFFICIAL FILE COPY
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Contracts for personal services are those contracts
where, either under the terms ""of the contract or the method
of its performance and administration, the Government has
the right to (or does in fact) supervise or direct the"
method by which contract work is performed, subsequent to
the date of execution of the contract, by means other than
change orders or other contract modifications. No contracting
officer or other EPA offical or employee may authorize or
enter into a contract (or approve a subcontract) for the
furnishing of personajl services to the Government; except,
when such services are to be furnished by bona fide experts
or consultants.
EPA is authorized by 5 U.S.C. 3109, as implemented by
annual appropriations acts, to obtain by contract or by
appointment, without regard to certain otherwise applicable !
Civil Service requirements, personal services of experts or
consultants to fill expert positions or consultant positions,
on a temporary or intermittent employment basis. Where the "~
services of experts or consultants are to be personal in
nature, such services will be obtained by appointment pursuant
to EPA personnel procedures whenever possible. (See EPA
Order 3110.4 for policy and definition.)
No contract for expert or consultant services may be
awarded until the program or staff office requesting the
procurement of such services obtains and furnishes to the
contracting officer a determination by the Director, Personnel
Management Division (or his designee) that the services in
question will be:
a. Nonpersonal in nature; or
b. Personal in nature, and furnishes to the contracting
officer satisfactory evidence that the personal services of a
particular individual are required and that circumstances
beyond the control of such individual would prevent his
accepting an appointment under personnel procedures if such
an appointment were tendered.
Contracts for services of experts and consultants shall not
be used —
(1) To perform work which can be done as well by regular
EPA employees
(2) To perform duties of a full-time continuing position
(3) To avoid competitive civil service employment
procedures
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(4) To avoid statutory pay limitations
{5} To avoid agency manpower ceilings.
The requirements of EPA Order 3110.4 which concern
confidential statements of employment and financial interests,
dual employment and dual compensation, political activity
restrictions, etc., shall be complied with with regard to
each individual who performs personal services by contract.
Compensation of individuals who contract with the
Government to furnish personal expert or consultant services
shall not exceed the compensation that would be allowable
were such individuals appointed pursuant to EPA personnel
procedures in accordance with EPA Order 3110.4.
Contracts with nonprofit or profit making organizations
under which experts or consultants will furnish personal
services to the Government shall provide that compensation
(salary) paid to any individuals (including subcontractor
personnel, etc.), who actually furnish personal services to
the Government shall not exceed the per diem equivalent of
the highest rate fixed by the Classification Act pay schedule
for Grade GS-18. This limitation prevails regardless of the
type of contract used and regardless of whether the contract
provides for such compensation as a direct charge, an indirect
charge, or part of a composite rate.
EPA Order 1900.2 prescribes that all proposals to obtain
management consultant services by contract must be approved
by the Assistant Administrator for Planning and Management.
Management consultant services are defined in EPA Order 1900.2.
Any request for procurement of management consultant services
not accompanied by the approval of the Assistant Administrator
for Planning and Management will be returned to the initiator
for compliance with EPA Order 1900.2.
5 U.S.C. § 3108 prohibits contracts with detective
agencies or their employees, regardless of the nature of
services to be performed. However, the Comptroller General
of the United States has ruled that a bona fide, separate
subsidiary of a detective agency corporation, with its own
operating personnel, financial transactions, and books of
account, separate from the parent corporation, may be regarded
as a separate legal entity and not subject to the detective
employment prohibition in 5 U.S.C. 3108, even if it is wholly
owned by a detective agency corporation.
A detective agency may be defined as a legal entity
certified or licensed under tax, permit, or licensing require-
ments of any State or municipality to provide services of a
detective or investigative nature.
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Solicitations for protective services as distinguished
from investigative services, shall include the following
certification:
"The (bidder/offerer) is not a detective agency, nor
an employee of such agency as contemplated by 5 U.S.C. 3108."
The provisions of statutes and regulations requiring
competition are fully applicable to service contracts.
The contracting officer shall, prior to award, obtain
the advice of the Office of General Counsel regarding any
procurement of services the authority for which appears
questionable.
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ENVIRONMENTAL PROTECTION AGENCY
CHAPTER 22
PROCUREMENT PLAN
MANUAL
CONTRACTS MANAGEMENT
1. PURPOSE. This Chapter establishes policy and procedures
regarding the use of procurement plans. Conditions for use are
described, procedures for coordination are set forth, and forms are
provided.
2.
BACKGROUND.
a. Procurement planning is the process by which the efforts of
all personnel responsible for the procurement of personal property
and nonperscnal services are coordinated and integrated through a
comprehensive plan. This involves analysis of the requirements and
the documentation of technical, business, policy, operational, and
other procurement considerations into a comprehensive plan portraying
realistic milestones that must be met to achieve the end results of a
particular program requirement.
b. At the latest, procurement planning should start with the
receipt of the Procurement Request/Requisition, and should represent
the coordinated efforts of program and procurement personnel in
arriving at a realistic and workable schedule of events.
3. POLICY. A procurement plan is required for each negotiated cost
reimbursement or fixed-price type procurement action in excess of
$100,000, except for the procurement of architect-engineer services
under the provisions of FPR 1-4.10 and EPPR 15-4.10. The application
of this policy to procurement actions of 5100,000 or less is optional
at the discretion of the chief officer responsible for procurement at
the contracting activity. For the purpose of this policy, the term
"procurement action" also includes contract change orders and
modifications.
4. APPROVALS REQUIRED.
a. Approval of procurement plans is required as follows:
(1) Head of the procuring activity - procurement actions
expected to result in a contract of $5,000,000 or more.
TN 19 (8/29/78)
ORIGINATOR:
75
CHAP 22
PAR 1
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MANUAL
CHAPTER 22
PROCUREMENT PLAN
CONTRACTS MANAGEMENT
(2) Chief officer responsible for procurement at the
contracting activity - procurement actions expected to result in a
contract of $100,000 but less than $5,000,000.
b. The chief officer responsible for procurement at the
contracting activity shall forward procurement plans which require
approval to the head of the procuring activity for concurrent review
with the pertinent requests for proposals (RFP). Procurement plan and
RFP reviews shall be accomplished promptly by the Contracts Policy
and Review Branch.
5. PROCEDURES.
a. General. The contract specialist responsible for a
procurement action shall prepare a procurement plan promptly after
receipt of the Procurement Request/Requisition. After preparation of
the procurement plan, coordination with the project officer shall be
effected for the purpose of obtaining written program office approval
of the projected contract award date (Forecast Date). Upon receipt
of program office and Procurement and Contracts Management Division
(PCMD) approval, the contract specialist shall maintain the plan so
that actual occurrences of events are recorded in the manner
described below, and for subsequent management review. The Contract
Award Schedule is a working document for use primarily by the PCMD.
Upon award of the contract the document shall be included in the
contract file under Item 5 (See EPA Form 1900-19).
b. Forms. EPA Form 1970-1, Contract Award Schedule
(Coapetitiv^) Figure 22-1, or EPA Form 1970-2, Contract Award Schedule
(Noncompetitive), Figure 22-2, shall be used as appropriate to record
the planned procurement schedule and other pertinent data. The
column headed "Optimum No. of Days" has been completed on both forms
to reflect the number of days appropriate to competitive and
noncompetitive procurement actions.
c. Completing the Contract Award Schedule. The contract
specialist responsible for the procurement action shall forecast the
date by which each milestone is anticipated to occur. The basis for
the forecast of events is the "Optimum No. of Days" schedule and a
realistic assessment of the time required to award the contract.
Upon completion of the scheduling the contract specialist shall
CHAP 22 TN 19
PAX 5 76 8/29/78
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MANUAL
CHAPTER 22
PROCUREMENT PLAN
CONTRACTS MANAGEMENT
obtain the written approval of the contracting officer, the project
officer (if not colocated, by telephone with subsequent written
confirmation) and the appropriate approving authority set forth in
subparagraph 4a. The procedures for scheduling, posting, and
rescheduling milestone events are as follows.
(1) Scheduling the milestone events requires entering a
calendar date under the column headed "Forecast Date", and by
inserting a symbol under the appropriate month. In the event that
the forecast date for contract award exceeds the total optimum time,
i.e., 156 days total for competitive, or 119 days total for
noncompetitive, by more than 14 days, an explanation of the reason(s)
for the extended time shall be included in the plan (either as an
entry under "Remarks", or by separate attachment).
(2) Recording the actual date that the event is completed
requires the posting of a date in the "Actual Date" column.
(3) Rescheduling of milestone events is required whenever
the contract specialist has reason to believe that the approved
forecast award date will be delayed by more than 14 days. The chief
officer responsible for procurement at the contracting activity shall
be responsible for the review and approval of the new schedule.
However, a revision to a schedule previously approved by the head of
the procuring activity shall be forwarded as information to the head
of the procuring activity. Approval by the project officer shall be
obtained in all rescheduling forecasts.
d. Recording significant information. The contract specialist
shall enter the title of the procurement in the space at the top of
the forms after the word "Title." The blocks at the bottom of the
forms shall be completed to record the required data. Abbreviations
may be used to identify the Program Office, The description to be
entered in the block titled "Contract Type" shall indicate whether the
proposed contract is expected to be fixed price, cost reimbursement,
or award or incentive fee. Also, if cost reimbursement, whether the
proposed contract is anticipated to be a completion or term form
contract. The contract specialist shall use the "Remarks" part of
TN 19 77 -> CHAP 22
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MANUAL
CONTRACTS MANAGEMENT
CHAPTER 22
PROCUREMENT PLAN
the form, when appropriate, to record information that will advise
the procurement plan approving official of significant problems and
decisions which affect the procurement schedule. For example, the
"Remarks" block shall be used to:
(1) Relate anticipated problems which can be expected to
affect the projected schedule;
(2) Set forth reasons for deviations from optimum leadtimes
in the projected schedule;
(3) Explain material deviations in actual accomplishment of
events versus projected accomplishment, and where appropriate the
rationale for rescheduling the milestone events; and
(4) Record such other information as may be necessary to
reflect actual problem areas encountered.
CHAP 22
PAR 5
78
TN 19
8/29/78
-------
CONTRACT AWARD SCHEDULE (Competitive)
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PART 20—BID PROTEST PROCEDURES
8«c.
30.0
30.1
303
30.3
Definition*.
Piling of protect.
Time for filing.
Notice at protest, submission of
agency report and time for filing
of comments on report.
Withholding of award.
Furnishing of Information on pro-
testa.
Time for submission of additional In-
formation.
Conference.
Time for decision by Comptroller
General.
Request for reconsideration.
Effect of judicial proceedings.
30.4
30.5
30.0
20.7
20.8
20.9
30.10
AuTHoarrr: Sec. 311, 43 Stat. 35, as
amended (81 UJS.C. 53). Interpret or apply
sec. 305, 43 Stat. 34 (31 U.S.C. 71); sec.
304. 43 Stat. 34. as amended (31 U.S.C. 74).
40 PR 17879. Apr. 34, l»75, unless
otherwise noted.
§ 20.0 Definitions.
(a) All "days" referred to in this part
are deemed to be "working days" of the
Federal Government. The term "file" or
"submit" in all sections except } 20.2 and
520.9(b> refers to the date of trans-
mission,
(b) "Adverse agency action" Is any
action or Inaction on the part of a con-
tracting agency which Is prejudicial to
the position taken in a protest filed with
an agency. It may Include but is not
limited to: a decision on the merits of
the protest; a procurement action such
as the award of a contract or the rejec-
tion of a bid despite the pendency of a
protest; or contracting agency acquies-
cence in and active support of continued
and substantial contract performance.
§ 20.1 Fain* of protest.
(a) An interested party may protest to
the General Accounting Office the award
or the proposed award of a formally ad-
vertised or negotiated contract of pro-
curement or sale by or for an agency
of the Federal Government whose ac-
counts are subject to settlement by the
General Accounting Office.
(b) Such protests must be In writing
and addressed to the General Counsel.
General Accounting Office, Washington,
D.C. 20548. To expedite handling within
the General Accounting Office, the ad-
dress should Include "Attn: Bid Protest
Control Unit."
(c) The Initial protest filed with the
General Accounting Office shall (1) in-
clude the name and address of the pro-
tester, (2) Identify the contracting ac-
tivity and the number of the solicitation
and/or contract, (3) contain a statement
of the grounds of protest, and (4) specifi-
cally request a ruling by the Comptroller
General. A copy of the protest shall also
be filed concurrently with the contracting
officer and the communication to the
General Accounting Office should so in-
dicate. The grounds for protest filed with
the General Accounting Office must be
fully supported to the extent feasible.
See 120.2 Cd) with respect to time for fil-
ing any additional statement required in
support of an initial protest.
(d) No formal briefs or other techni-
cal forms of pleading or motion are re-
quired, but a protest and other submis-
sions should be concise, logically ar-
ranged, and direct.
§ 20.2 Time for filing.
(a) Protesters are urged to seek reso-
lution of their complaints initially with
the contracting agency. If a protest has
been filed Initially with the contracting
agency, any subsequent protest to the
General Accounting Office filed within 10
days of formal notification of or actual
or constructive knowledge of initial ad-
verse agency action will be considered
provided the initial protest to the agency
was filed In accordance with the time
limits prescribed la paragraph (b) of
this section, unless the contracting
agency Imposes a more stringent tune
for filing. In which case the agency's
time for filing will control. In any case.
a protest will be considered If filed with
the General Accounting Office within the
time limits prescribed in paragraph (b).
(b) (1) Protests based upon alleged im-
proprieties in any type of solicitation
which are apparent prior to bid opening
or the closing date for receipt of initial
proposals shall be filed prior to bid open-
ing or the closing date for receipt of
initial proposals. In the case of negoti-
ated procurements, alleged Improprieties
which do not exist in the initial solicita-
tion but which are subsequently Incor-
porated therein must be protested not
later than the next closing date for re-
ceipt of proposals following the incorpo-
ration.
(3) In cases other than those covered
In subparagraph (1), bid protests shall
be fUed not later than 10 days after the
basis for protest Is known or should have
been known, whichever Is earlier.
(3) The term "filed" as used in this
section means receipt in the contracting
agency or in the General Accounting Of-
fice as the case may be. Protesters are
cautioned that protests should be trans-
mitted or delivered in the manner which
will assure earliest receipt. Except as
provided In paragraph (c) of this sec-
tion, any protest received In the General
Accounting Office after the time limits
prescribed in this section shall not be
considered unless It was sent by regis-
tered or certified mail not later than the
81
-------
fifth day, or by mailgram not later than
the third day, prior to the final date for
filing a protest as specified herein. The
only acceptable evidence to establish the
date of mailing shall be In the U.S. Pos-
tal Service postmark on the wrapper or
on the original receipt from the U.S. Pos-
tal Service. The only acceptable evidence
to establish the date of transmission by
mailgram shall be the automatic date in-
dication appearing on the mailgram. If
the postmark In the case of mall or the
automatic date Indication in the case of
a mailgram is Illegible, the protest shall
be deemed to have been filed late.
(c) The Comptroller General, for good
cause shown, or where he determines that
a protest raises Issues significant to pro-
curement practices or procedures, may
consider any protest which Is not filed
timely.
(d) If an additional statement In sup-
port of the initial protest is required
by the General Accounting Office, one
copy shall be mailed or otherwise fur-
nished to the General Counsel, General
Accounting Office, and a copy shall be
mailed or otherwise furnished to the
contracting officer, not later than 5 days
after receipt of notification from the
General Accounting Office of the need for
such additional statement.
140 FR 17970, Apr. 34, 1976. as amended at 40
FR 60039, Dec. 31, 1979; 41 FR 2073. Jan. 14,
19761
§ 20.3 Notice of protest, submission of
agency report and lime for filing of
comments on report.
(a) The General Accounting Office
shall notify the contracting agency by
telephone and In writing within one day
of the receipt of a protest, requesting the
agency to give notice of the protest to
the contractor if award has been made
or, if no award has been made, to all
bidders or proposers who appear to have
a substantial and reasonable prospect
of receiving an award If the protest Is.
denied. The agency shall be requested
to furnish in accordance with applicable
procurement regulations copies of the
protest documents to such parties with
instructions to communicate further
directly with the General Accounting
Office.
(b) Material submitted by a protester
will not be withheld from any Interested
party outside the Government or from
any Government agency which may be
involved in the protest except to the
extent that the withholding of informa-
tion is permitted or required by law or
regulation. If the protester considers that
the protest contains material which
should be withheld, a statement advising
of this fact must be affixed to the front
page of the protest document and the
allegedly proprietary Information must
be so Identified wherever it appears.
icj The Office of General Counsel
shall request the agency to submit a com-
plete report on the protest to the General
Accounting Office as expedltiously as
possible (generally within 25 working
days) In accordance with applicable pro-
curement regulations, and to furnish a
copy of the report to the protester and
other Interested parties.
(d) Comments on the agency report
shall be filed with the Office of General
Counsel within 10 days after receipt of
the report, with a copy to the agency
office which furnished the report and to
other interested parties. Any rebuttal a
protester or Interested parties may care
to make shall be filed with the Office
of General Counsel, General Accounting
Office, within 5 days after receipt of the
comments to which rebuttal is directed,
with a copy to the agency office which
furnished the report, the protester, and
interested parties, as the case may be.
Unsolicited agency rebuttals shall be con-
sidered if filed within 5 days after receipt
by the Agency of the comments to which
rebuttal is directed.
(e) The failure of a protester or any
Interested party to comply with the time
limits stated in this section may result
In resolution of the protest without con-
sideration of the comments untimely
filed.
140 FR 17979. Apr. 34. 1976, M amended at 40
FR 60035, Dec. 31, 1976; 41 FR 2073, Jan. 14.
1970]
§ 20.4 Withholding of award.
When a protest has been filed before
award the agency will not make an
award prior to resolution of the protest
except as provided in the applicable pro-
curement regulations, in the event the
agency determines that award is to be
made during the pendency of a protest,
the agency will notify the Comptroller
General.
§ 20.5 Furnishing of information on
protest*.
The Office of General Counsel, General
Accounting Office, shall, upon request,
make available to any Interested party
Information bearing on the substance
of the protest which has been submitted
by interested parties or agencies, except
to the extent that withholding of infor-
mation is permitted or required by law
or regulation. Any comments thereon
shall be submitted within a ma-Hm^™
of 10 days.
§20.6 Time for submission of additional
information.
Any additional Information requested
by the Office of General Counsel, Gen-
eral Accounting Office, from the pro-
tester or interested parties shall be sub-
mitted no later than 5 days after the
receipt of such request. If It Is necessary
82
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to obtain additional information from
the agency, the General Accounting Of-
fice will request that such information be
furnished as expeditiously as possible.
(40 PR 60036, Dec. 31, 1975]
§ 20.7 Conference.
(a) A conference on the merits of the
protest with members of the Office of
General Counsel, General Accounting
Office, may be held at the request of the
protester, any other Interested party, or
an agency official. Request for a con-
ference should be made prior to the ex-
piration of the time period allowed for
filing comments on the agency report
(see | 20.3 (d)). Except in unusual cir-
cumstances, requests for a conference re-
ceived after such tune will not be
honored.
(b) Conferences normally will be held
prior to expiration of the period allowed
for filing comments on the agency re-
port. All interested parties shall be In-
vited to attend the conference. Ordinar-
ily, only one conference will be held on
a bid protest.
(c> Any written comments to be sub-
mitted and as deemed appropriate by the
General Accounting Office as a result of
the conference must be received in the
General Accounting Office within 5 days
of the date on which the conference was
held.
§ 20.8 Time for decision by Comptroller
General.
The Comptroller General establishes
a goal of 25 days for Issuing a decision
on a protest after receipt of all informa-
tion submitted by all parties and the
conclusion of any conference.
§ 20.9 Request for reconsideration.
(a) Reconsideration of a decision of
the Comptroller General may be re-
quested by the protester, any interested
party who submitted comments during
consideration of the protest, and any
agency involved in the protest. The re-
quest for reconsideration shall contain a
detailed statement of the factual and
legal grounds upon which reversal or
modification is deemed warranted, spec-
ifying any errors of law made or in-
formation not previously considered.
(b) Bequest for reconsideration of a
decision of the Comptroller General shall
be filed not later than 10 days after the
basis for reconsideration is known or
should have been known, whichever Is
earlier. The term "filed" as used to this
section means receipt in the General Ac-
counting Office.
(c) A request for reconsideration shall
be subject to these bid protest proce-
dures consistent with the need for
prompt resolution of the matter.
§ 20.10 Effect of judicial proceedings.
The Comptroller General may refuse
to decide any protest where the matter
Involved is the subject of litigation be-
fore a court of competent jurisdiction or
has been decided on the merits by such
a court. The foregoing shall not apply
where the court requests, expects, or
otherwise expresses interest In the Comp-
troller General's decision.
83
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THE COMPTROLLER GENERAL
DECISION (•( 1-1^1).) OF THE UNITED STATES
WASHINGTON. O.C. SO94B
FILE: B-J89172 DATE: December 15, 1977
MATTER OF. Environmental Science and Engineering, Inc.
DIGEST:
1. Protest that evaluation criteria should have been broader
is untimely because not raised prior to date for sub-
mission of initial proposals. Moreover, agency properly
evaluated protester's proposal based on factors stated in
solicitation rather than on factors not so stated.
2. Agency's determination that proposal was outside
of competitive range was reasonable where evaluation
criteria in Request for Proposals (RFP) emphasized con-
tractor experience and proposed methodology, and pro-
posal contained a number of major informational
deficiencies with regard to experience and methodology.
3. Agency was not required to request additional informa-
tion from offerer concerning aspects of RFP to which
offerer failed to respond where addition of such
information would have been a major revision of the
proposal.
Environmental Science and Engineering, Inc. (ESE)
protests the av.rard of a contract under Request for Pro-
posals
-------
B-189172
this Office the exclusion of its proposal from the competitive
range. ESE protests on the grounds that the evaluation criteria
were incomplete, ESE's proposal was improperly graded, and
EPA was required to request clarification from ESE concerning
its proposal prior to finding it unacceptable.
With regard to the evaluation criteria, ESE contends that
EPA should have considered factors in addition to those specified
in the evaluation criteria of the RFP, in making its competitive
range determination. ESE cites as examples of such factors
the following: prior performance on Government contracts,
the proximity of the contractor to anticipated work in Region
IV, the number of professionals the contractor has available
in Hegion IV, the in-house disciplines available through the
contractor, the facilities the contractor has available to do
the job and their proximity to Region IV.
To the extent that ESE is asserting that additional factors
should have been included in the evaluation criteria, its
assertions arc untimely raised. Section 20. 2(bKl) of Title
4 of tht Code of Federal Regulations requires that protests
based upon alleged improprieties in ttic solicitation which
are apparent prior to the closing Hale for initial proposals
shall be filed prior to that date. Here, ESE's protest was
received after Ihe closing date for initial proposals and thus
is untimely regarding objections to the evaluation criteria.
However, ESE also assorts that, even if Hie omitted criteria
were not included in the evaluation criteria of the HFP, they
should have been considered by the agency evaluators. ESE
points to EPA's Procurement Information Notice (PIN) 77-15
Source Evaluation and Selection Procedures, which states
on page 25 that:
"OTHEK EVALUATION FACTORS. Frequently
there are other lactors that enter into the evalua-
tion process that must be considered in arriving
at a relative ranking. These factors arc not
included in the evaluation criteria of the solicita-
tion, but consist of important items which may
86
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B-189172
have a significant impact upon the determination of
those offers within the competitive range and upon
selection for award. They are not point scored,
but are presented to the SSO for his consideration
as deemed appropriate.."
Two categories of examples are cited in this provision: com-
pliance with statutory contractual requirements (e. g., labor
standards incorporated into the contract) and negative record of
responsibility. Such factors are relevant to a competitive range
or award determination because an offerer who fails to satisfy
them will not be considered for award. However, in order to
be considered for award, the offerer also must submit a pro-
posal which is technically acceptable. A determination of
technical acceptability is based on the evaluation criteria stated
in the solicitation. 50 Comp. Gen. 670 (1971). Consequently,
it was proper for EPA to evaluate the offers for technical
acceptability on the basic of the evaluation factors stated in the
RFP, without specifically taking into consideration other factors
which ESE contends would have enhanced its point score. Sec
North American Telephone Association, B-187239, DecemFeT"15,
T976, VG-2 CPD455; 48 CoTJip. Gen. 3H (1968).
ESE next asserts that KPA's determination that ESE's proposal
was outside of the competitive range was erroneous. EPA s
determination was based on three findings of deficiencies in ESE's
proposal. EPA first found that ESE's proposal had not "demon-
strated specific experience in planning and/or designing various
wastcwater subsystems. " Part I, Section III, of the technical
evaluation criteria listed "contractor's experience with planning
and/or designing various wastewater subsystems. " Six sub-
systems which were to be addressed were listed as follows:
flow and waste measures, interceptor systems, treatment
measures, wastewater disposal, sludge treatment and disposal
and facilities siting. The criteria also specified the components
of each subsystem to be discussed. For example, under "flow
and waste measures, " the components were listed as: "infiltration/
inflow, household water conservation, user charge systems, flow
equalization and industrial recycling. " ESE's proposal provided a list
of twelve wastewater subsystem planning and design projects which it
had completed, or was in the process of completing. Each listed
project contained a notation as to which of the six subsystems specified
87
-------
B-ia9172
in the RFP were included in that project. Five of the projects
included all six subsystem functions specified. EPA found that the
proposal contained no further description of ESE's experience
concerning the subsystem components specified in the RFP.
EPA secondly found that ESE's proposal did not "indicate
satisfactory capability in identifying objectives and constraints
and applying them to alternative subsystems. " Part I, Section
IV of the technical evaluation criteria is entitled: "contractors
experience with and proposed methodologies for evaluating alter-
native wastewater subsystems and systems and for selection of
an optimum system. " Subsection (A) of Section IV lists: "identi-
fication of objectives and constraints and application to alternative
subsystems. ESE's proposal provided a list of ten projects
which ESE denoted as having included identification of objectives
and constraints and application to alternative subsystems. EPA
found that ESE's proposal did not describe the methodology which
it proposed to use for identifying objectives and constraints. EPA
concluded that ESE's inadequate description of experience coupled
with a lack of methodology description did not demonstrate that
the firm could satisfactorily meet the minimum requirements of
the RFP.
EPA thirdly found that ESE's proposal did not "indicate adequate
experience in the evaluation of environmental impact to the natural
environment. " Part I, Section V of the technical evaluation criteria
is entitled: "contractors past performance and proposed methodolog-
ies for evaluating primary and secondary environmental impacts
on the natural and socioeconomic environment. " Section V contains
a list of ten subcategories of environmental impact to be considered
(water, land, groundwater, air, land use and population densities,
etc.). ESE's proposal lists twenty-two projects with a notation
as to which of the ten subsystems specified in Part V were involved
in each project. EPA states that the low rating given to ESE for
this Part was primarily due to a lack of specific experience in
each subcategory. In addition, low point scores were given to each
category in this Part for unsatisfactory proposed methodologies.
EPA determined that in order for ESE to remedy the omissions
from its proposal, it would have to provide more than clarifying data,
but rather, it would have had to add to its proposal new information
concerning its experience and proposed methodology. EPA concluded
88
-------
B-189172
that ESE's proposal was technically unacceptable and outside of the
competitive range.
ESE contends that the information contained in its proposal was
a "documented response to the general intent of EPA criteria,
and an implied* response to specific criteria sufficient for a
prudent review. " It contends that the listing in its proposal of
major environmental studies currently being performed by ESE
was sufficient to indicate a high level of experience. ESE asserts
that to the trained reader each of the projects listed in its pro-
posal implies a certain level of accomplishment. ESE states,
for example, that the listing of six effluent guidelines projects
conducted over the past five years would by definition require
design and cost analysis for hundreds of treatment systems. ESE
also contends that the experience of its personnel, which was
described in its proposal was sufficient to satisfy the RFP evalua-
tion criteria in light of Amendment 1 to the RFP which states, at
page 3, that: "The experience of each prospective contractor is
being evaluated by a combination of company experience in
environmental analysis and the experience of personnel who
would be assigned to perform directives of work issued under
this contract. '
Alternatively, ESK contends that, even if its proposal was
deficient, EPA was required to request clarification from ESIi
concerning the extent of its experience and its proposed metho-
dology, prior to determining it to be outside of the competitive
range. ESE cites 41 C.F. R. 15-3. 805-l(a)(4)(ii) which states
that:
"The technical evaluators shall determine
whether any proposal whicli appears to be
unacceptable might be found acceptable
upon the furnishing of clarifying data by
the proposer * * >:-
This Office has held that a contracting agency may exclude a
proposal, as submitted, from the competitive range for "informa-
tional" deficiencies when those deficiencies are so material as to
preclude any possibility of upgrading the proposal to an acceptable
level except through major revisions and additions which would be
tantamount to the submission of another proposal. Servrite Interna-
tional, Ltd.. B-187197, Octobers, 197C, 76-2 CPD ^5; CgmTclv1
Comrcss, T3-183379. June 30, 1975, 75-1 CPD 400; 53 Comp. Gen.
1 (1973); 52 id. 382, 386 (1972); 52 id. 865, 868 (1973). Here, the
89
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B-189172
evaluation criteria clearly indicated that the contractor's experience
with planning and/or designing wastewater subsystems and selecting
between alternative subsystems, was an important element of pro-
posal evaluation. ESE cited projects which it had conducted but
did not describe its experience regarding those components speci-
fically listed in the RFP. ESE's listing of the experience of its
personnel did not remedy the lack of information as to company
experience, because Iho RFP specified that both company and
personnel experience would be scored. AlsoT-'S'E's proposal con-
tained no discussion of ESE's proposed methodology for identifying
objectives and constraints of wastewater systems and subsystems,
as listed in the RFP.
We find to be reasonable EPA's determination that it had
no duty to request clarifications from ESE because ESE's pro-
posal could be upgraded to an acceptable level only through major
revisions and additions related to a basic requirement of the
RFP. SCP 52 Comp. Gen. 382. 386 <1972). Wo conclude that the
absence of description in ESE's proposal of the types of experience
specifically enumerated in the evaluation criteria and omissions of
information regarding proposed methodology was a major deficiency
which formed a reasonable basis for EPA's finding thai F.SE was
outside of the competitive range. Uecausc ESE's proposal was found
to be technically unacceptable, ILSJ2 was not entitled to an opportunity
to submit a revised proposal. Sec Scrvrite International, Ltd., supra.
ESE finally asserts that EPA's decision to proceed with award
prior to resolution of the protest by this Office violated the spirit
of bid protest procedures. The Federal Procurement Regulations
(FPR) provide that award may be made prior lo resolution of a bid
protest by GAO where: (i) the items to be procured are urgently
required; or (ii) delivery or performance will be unduly delayed
by failure to make award promptly; or (iii) a prompt award will
otherwise be advantageous to the Government. FPR 1-2. 407-8{bM4).
ESE lias not shown that EPA failed to follow this regulation or that EPA
proceeded with award in bad faith. Consequently, we have no basis
to question EPA's action in awarding a contract prior to resolution
of the bid protest by this Office.
90
-------
B-189172
Accordingly, the protest is denied.
Deputy Comptroller
of the United Stales
91
-------
BID PROTEST REPORT
FISCAL YEAR - 1977
October
1976 -
AGENCY
SENCY
:TION
3RIC.
LR FORCE
ED
RMY
3C
DMMERCE
.C. GOVT.
lA
LA
SA
)A
?A
JDA
:c
re
?o
3A
sw
JD
ITERIOR
IS
PROTESTS
3
31
98
2
147
1
22
13
2
72
2
1
14
5
1
3
9
101
27
7
23
1
DAYS
55
564
2644
7
3540
26
644
256
121
1837
91
51
535
301
-
-
79
2547
682
183
1145
21
AVERAGE
18.3
18.1
27.
3.5
24.
26.
29.2
19.6
60.5
25.5
45.5
51.
38.2
60.2
-
-
8.7
25.2
25.5
26.1
49.9
21.
DAYS
64
660
2716
16
3413
35
618
416
50
1471
212
14
365
172
26
26
178
2322
617
74
710
90
September 1977
GAO
AVERAGE
21.3
21.2
29.8
8.
23.2
35.
28.
32.
25.
20.4
106.
14.
26.
34.4
26.
8.6
19.7
23.
22.8
10.4
30.8
90.
OTHER
DAYS
17
665
3055
37
4267
55
1439
314
37
1721
154
13
318
103
3
-
127
3085
1025
98
648
12
AVERAGE
5.6
21.4
31.1
19.5
29.
55.
65.4
24.1
18.5
23.9
77.
13.
22.7
20.6
3.
-
14.1
30.5
37.9
14.
28.1
12.
TOTAL
DAYS
136
1889
8415
60
11126
116
2684
996
208
4883
457
78
1215
576
29
26
394
8049
2286
355
2501
123
AVERAGE
45.3
60.9
85.7
30.
75.
116.
122.
74.3
104.
67.8
228.5
78.
86.
115.2
29.
8.6
43.7
79.7
84.6
50.7
108.7
123.
PROTESTS
D
-
29
81
2
133
-
18
9
1
66
2
1
12
2
1
1
9
89
26
7
20
1
S
3
2
17
-
14
1
4
4
1
6
-
2
__ — — *
3
-
2
-
12
1
-
3
_
-------
AGENCY
GAO
OTHER
TOTAL
FROTHS'
AGENCY
^^^^^•W«UB
JUSTICE
LABOR
MAR. CORF
NASA
NAVY
NSF
PANAMA
CANAL
SBA
SEC. & EXCH
COMMISSION
STATE
SMITHSON.
TRANSP.
TREASURY
TVA
USIA
VA
DEFENSE
LIBRARY
CONGRESS
PROTESTS
5
10
6
18
114
1
1
11
*
1
4
3
28
5
4
2
20
1
1
820
DAYS
149
141
228
1097
3510
47
-
399
27
72
40
983
253
-
50
516
-
28
22869
AVERAGE
29.8
14.1
38.
60.9
30.8
47.
-
36.2
27.
18.
13.3
35.1
50.6
-
25.
25.8
-
28.
27.8
DAYS
204
180
140
661
2641
26
4
190
42
122
94
703
103
21
82
557
6
70
20111
AVERAGE
40.8
18.
23.3
36.7
23.1
26.
4.
17.2
42.
30.5
31.3
25.3
20.6
5.2
41.
27.6
6.
70.
24.7
DAYS
154
355
152
530
3396
16
6
187
11
162
77
608
102
40
50
679
11
10
23665
AVERAGE
30.8
35.5
25.3
29.4
29.6
16.
6.
17.
11.
40.5
25.6
21.7
20.4
10.
25.
33.8
11.
10.
28.8
DAYS
- - — ii i
507
676
540
2288
9547
89
10
869
80
321
211
2054
458
61
182
1713
17
98
66323
AVERAGE
101.4
67.6
90.
127.1
83.7
89.
10.
79.
80.
80.2
70.3
73.4
91.6
15.2
91.
65.6
17.
98.
80.8
D S
3 :
7 :
5
16
110
1
1
11
1
3
2
26
5
4
2
16
1
724 9
94
-------
BID PROTEST REPORT
FISCAL YEAR - 1977
RESUME
Protests Denied 723
Protests Sustained 97
Advertised Procurements 469
Negotiated Procurements — 351
Protests Received and Decided Before Award 350
Protests Received and Decided After Award 358
Protests Received Before Award and Decided
After Award 104
Corrective Action Recommended 115
Corrective Action Recommended Under P.L. 91-510 35
Reconsiderations •— 84
Contract Cancellation/Termination Recommended - 15
Untimely Submissions 108
GAO Without Jurisdiction 68
Protests Where Decisions Rendered 820
Withdrawals Before Decision 435
Miscellaneous 258
Dismissed 151
Total Protests Closed During FY 1977 1,664
Total Protests Received During FY 1977 1,607
Review of Awards Under Grants 20
B-184562, HEW
B-187008, DOT
B-185475. EPA
B-184899, HEW
B-187698, HEW
October 6, 1976
October 28, 1976
.November 29± 1976
December 23, 1976
December 8, 1976
B-186913, Justice February 25, 1977
B-188355, EPA February 23. 1977
B-185169, EPA March 1. 1977
B-185874. EPA March 8. 1977
B-189249. EDA September 22. 1977
B-184562, HEW
B-186962. EPA
B-187999. EPA"
April 12, 1977
May 6. 1977
May 4, 1977
B-184562, HOT May 24, 1977
B-188116, Labor June 23, 1977
B-187734. EPA July 1. 1977
B-189280, DOT July 7, 1977
B-188488, HEW August 3, 1977
B-189280, DOT August 8, 1977
B-187912. EPA August 17, 1977
95
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-------
ENVIRONMENTAL PROTECTION AGENCY
CHAPTER 4
CONTRACTS MANAGEMENT
UNSOLICITED PROPOSALS
MANUAL
1. PURPOSE. This chapter establishes a centralized control for the
receipt, accounting, and processing of unsolicited proposals.
2. DEFINITION. An unsolicited proposal is a voluntary offer to
perform work the offeror considers to have both technical merit and
relevance to Environmental Protection Agency programs. The
unsolicited proposal usually offers ideas, processes, techniques,
or equipment that the proposer considers new, novel, or unique, and
deserving of support by an EPA grant or contract.
3. SOURCES OF PROPOSALS. Proposals are voluntarily submitted by
individuals and various types of organizations having scientific
and technological ideas which they feel will contribute to the
success of the EPA mission. Many of these proposals may be of little
or no value. However, others may be substantially beneficial and
may therefore merit EPA support in the form of a grant or contract.
4. CENTRALIZED CONTROL POINT. A centralized control point will
be located in the Grants Administration Division, Office of Adminis-
tration, to process unsolicited proposals regardless of where they
are received in EPA. To fully utilize the source of scientific and
technical information being submitted, the Agency should encourage
the submission of unsolicited proposals and should promptly
acknowledge receipt of a proposal. The proposal will then be
evaluated for its scientific merit and relevance to EPA programs.
5. PROCEDURE.
a. Unsolicited proposals received by any organizational element
of EPA shall be forwarded Immediately to the Grants Administration
Division, Office of Administration, for official receipt and
processing.
b. The Grants Administration Division will (1) acknowledge
receipt to the person or organization submitting the proposal
(Figure 4-1), (2) assigns£ proposal control number, and (3) transmit
the proposal to the appropriate program office for evaluation.
2 (9-24-74)""CHAP 4
*M 214 PAR 1
97
-------
MANUAL i
CHAPTER 4
CONTRACTS MANAGEMENT
UNSOLICITED PROPOSALS
c. If the program office decides to fund the proposal as a grant*
the proposal will be returned to the Grants Administration Division
for further processing. If the proposal is to be funded by contract,
a request for a contract will be forwarded to the Contracts Management
Division, Office of Administration.
6. DISCLOSURE AND USB OP PROPOSAL DATA.
a. Because of the "proprietary rights" Involved in unsolicited
proposals, ethical and legal considerations impose restrictions on
the disclosure and use of data submitted with the proposal.
b. The Grants Administration Division, Office of Administration,
is authorized to copy, photograph, or reproduce in any manner, any
part of an unsolicited proposal. All other organizational elements
of EPA must obtain approval from the Grants Administration Division
before duplicating information from unsolicited proposals,
?• NOHCOMPETITrVE PROCUREMENT. Although contracts resulting from
unsolicited proposals may be awarded on a "sole source" basis, the
unsolicited proposal does hot, in and of itself, justify noncompetitive
procurement. Award of a contract on a "sole or single source" basis
must be justified as prescribed in Chapter 3 of this Manual, Noncom-
petitive Procurement.
TN 2
98 9-24-74
-------
CHATTER 4
UNSOLICITED PROPOSALS
CONTRACTS MANAGEMENT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
Re: Proposal Mo.
Title:
Receipt Date:
Dear
This Is to inform you that your unsollcited^^posal, as
referenced by the title above, was received on the date indicated.
The proposal, which now bears the identifjrp^ BHvfcondental Protection
Agency number as shown above, is being _
office for evaluation as a grant or cp&£ratand vU.^Mivonsidered
for technical merit and relevance AcTtb* \irOarem niVsic
It should be understood^
a notice to initiate the
you will be contacted
unfavorable, you wlH?
In accord
tion oust be
unsolicited p;
prior to its
proposal is suff
proposal, is not
'not XyXt^Mtiitment of funds or
liould^he review be favorable,
proceed further; If the review is
> effect.
^procurement regulations, conpeti-
m extent possible. While an
'e a favorable technical evaluation,
be determined that the substance of the
to Justify acceptance as an original
from another source, or doe's not closely
resemble that of a pending competitive solicitation.
ique
We appreciate your interest in our program; If we *>*n be of
further assistance, please do not hesitate to contact us.
Sincerely yours,
Referral Officer
Grants Administration Division
Figure 4-1. ActtnovXedBcnent Letter
CHAP 4
-------
§ 1-3.802-1 Consideration of late pro.
posai*.
(a) Except as provided In 5 i-3.802-2,
the following provision regarding the re-
ceipt and consideration of proposals for
award that are received after the exact
time set for receipt in the request for
proposals shall be placed in each
solicitation:
LATE PROPOSALS, MODIFICATIONS or PROPOSALS,
AND WITHDRAWALS or PROPOSALS
(a) Any proposal received at the office
designated In the solicitation after the exact
time specified for receipt will not be con-
sidered unless it Is received before award Is
made, and:
(1) It was sent by registered or certified
mall not later than the fifth calendar day
prior to the date specified for receipt of
offers (e.g., an offer submitted in response
to a solicitation requiring receipt of offers
by the 20th of the month must bave been
mailed by the 15th or earlier);
(2) It was sent by mall (or telegram if
authorized) and it Is determined by the
Government that the late receipt was due
solely to mishandling by the Government
after receipt at the Government installation;
or
(3) I*, is the only proposal received.
(b) Any modification of a proposal, ex-
cept a modification resulting from the Con*
tractlng Officer's request for "best and final"
offer, is subject to the same conditions as in
(a)te pronosal or mod-
ification of proposal la received and it
ts clear from available Information
that it cannot be considered for award
(e.g.. when the postmark clearly shows
that the proposal was mailed later than
the flf th day prior to the date specified),
the contracting officer, or his authorized
representative, shall promptly notify the
offerer that it was received late and will
not be considered for award. However,
when a late proposal or modification of
proposal is transmitted by registered or
certified mail and it is received before
award but it is not clear from the avail-
able information whether it can be con-
sidered, the offerer shall be promptly
notified substantially in accordance with
the notice in $ 1-2.303-6, appropriately
modified to relate to proposals. Disposi-
tion of late proposals that cannot be con-
sidered for award shall be in accordance
with agency procedures,
(c» Where only one proposal is In-
volved and It is received after the time
specified, it may be evaluated and consid-
ered for award in accordance with agency
procedures. As used in this section the
term "only Proposal received" means a
proposal which is one submitted by (1)
the only offerer responding to the re-
quest for proposals, (2) a sole source,
or i3) an offerer who is offering propri-
etary items In response to a request for
proposals which specifies that awards will
be made on the basis of proprietary Items
identified by the offerer by brand name,
model, type, or other identification. With
respect to '3) of this paragraph (c), the
term does not mean an offer which is
based on a performance specification or
a brand name product which is specifi-
cally Identified In the request for
proposals.
fd) The normal revisions of proposals
by offerers selected for discussion during
the usual conduct of negotiations with
such offerers are not to be considered as
late proposals or later modifications to
proposals but shall be handled in accord-
ance with 5 1-3.805.
{38 FR 26914, Sept. 27. 1973]
EFFECTIVE DATE NOTE: The Note In 5 1-
3.802-11 a) becomes effective Aug. 22. 1972.
101
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