PART 15 -- CONTRACTING BY NEGOTIATION
SUBPART 15.2 — SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION
15.201 Exchanges with industry before receipt of proposals.
15.203 Requests for proposals.
15.204-2 Part I--The Schedule.
15.204-5 Part IV--Representations and Instructions.
SUBPART 15.3 — SOURCE SELECTION
15.304 Evaluation factors and significant sub factors.
15.306 Exchanges with offerors after receipt of proposals.
15.308 Source selection decision.
215.371-3 Fair & Reasonable price.
SUBPART 15.4 -– CONTRACT PRICING
15.404-1 Proposal analysis techniques.
15.406-3 Documenting the negotiation.
215.406-90 Contract Business Analysis Repository (CBAR)
SUBPART 15.5 -- PREAWARD, AWARD, AND POSTAWARD NOTIFICATIONS, PROTESTS, AND MISTAKES
15.505 Preaward debriefing of offerors.
15.506 Postaward debriefing of offerors.
SUBPART 15.6 — UNSOLICITED PROPOSALS
15.604 Agency points of contact.
15.606-1 Receipt and initial review.
(S-90) Draft RFP may be released prior to final approval of the acquisition strategy and acquisition plan; however, no RFP, PWS or Solicitation documents shall be released without prior review and input, as applicable, by PL23
(S-90) Definition. Solicitation Review Board (SRB). Cross-functional IPT chartered by either the HCA, HCO or COCO when acting as the SSA when determined that a solicitation requires a more comprehensive review before release.
(S-91) When a planned acquisition requires a more comprehensive review, the SSA may charter an SRB to review a solicitation and all associated documentation prior to release. The SSA determines membership and the PM/AM schedules and coordinates the review. If SSA does not intend to include representation from PL23 on an SRB, written justification for that decision shall be included in the file documentation . The PM/AM distributes the following documents to each member in advance of the SRB (electronic submission is encouraged).
(1) Request for Proposal (include Sections A - M) (2) PWS/SOO/SOW
(3) DD Form 254
(4) J&A, if applicable
(5) Memorandum of Agreement, if applicable
(6) All enclosures/attachments to the PWS/SOO/SOW, to include Contract Data Requirements
List (CDRLs)/Data Item Description (DIDs), wage determinations, etc. (7) Cost Estimate/IGCE
(8) Approved Acquisition Plan, if applicable
(9) Approved Program Plan
(10) Approved Source Selection Plan, if applicable
(11) Acquisition Schedule
(e) The designee is the HCA.
(c) Section C, Description/specifications/statement of work. To the maximum extent practicable, requirements should be defined as PWS/SOOs/SOWs that focus on required outcomes or results, not methods of performance or processes.
(b) Section L, Instructions, conditions, and notices to offerors or respondents.
(S-90) The Contracting Officer shall insert the provision at DARS 52.215-9000, Cross Reference Matrix, in all competitive solicitations when the HCA is the SSA. The contracting officer may insert the provision at DARS 52.215-9000, Cross Reference Matrix, in solicitations in other cases. The Cross Reference Matrix shall be used to ensure that all requirements are addressed, requirements do not conflict, and solicitation sections are internally consistent.
For AP applicability/requirements, see DARS Part 7 and the AP template at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=acquisition_plan_ap_templates. For required DISA Source Selection procedures and templates, see https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=disa_source_selection_procedures_guides_templates_samples_and_training_materials.
(a) The Senior Procurement Executive, acting as “Agency Head” under FAR and DFARS, has retained the Source Selection Authority (SSA) responsibilities at FAR 15.303(b). The SPE may appoint another individual for a particular procurement. The SSA appointment will follow the thresholds shown in Table 15-1. The SPE will sign an appointment memorandum delegating SSA authority. The appointment memorandum can be found at https://www.ditco.disa.mil/DITCOContractingTemplates/?id=disa_source_selection_procedures_guides_templates_samples_and_training_materials under Source Selection Templates/Samples.
Table 15-1 Source Selection Authority (SSA)
Contract Action Value* |
SSA |
<$50M |
Contracting Officer |
≥$50M - $100M |
Chief of Contracting Office (CoCO) |
≥$100M - <$250M |
Head of Contracting Office (HCO) |
≥$250 and Special Interest Actions |
Head of the Contracting Activity (HCA) |
(S-90) The routing process for SSA approval is as follows:
The Contracting Officer/Contract Specialist prepare DISA 320 and Form 9 as shown in DARS Subpart 1.9003. Local OGC and PL22 Compliance Review shall be included in the routing process.
(S-91) The source selection policies and procedures of FAR Subpart 15.3, including the designation of an SSA, do not apply to orders placed against GSA Federal Supply Schedule contracts, orders placed against Blanket Purchase Agreements (BPAs), or task and delivery orders placed against indefinite delivery contracts.
(S-92) All emails containing source selection sensitive info shall be sent encrypted and/or password protected.
(S-93) COCO approval is required when utilizing best value evaluation criteria Full Trade-Off under $50M.
(c)(3)(i)
Class Deviation 2012-O0017, September 13, 2012 (Subj: Class Deviation--Past Performance Reporting) is effective until it is published in the DFARS or until rescinded. The deviation identifies thresholds associated with key business sectors for the collection and use of Past Performance Information (PPI). The deviation shall be used in lieu of FAR 15.304(c)(3)(i) and
42.1502(b) and may be accessed at http://www.acq.osd.mil/dpap/dars/class_deviations.html.
(d) Clearly state in the solicitation, the approach the Government will use to evaluate the contractor’s past performance. For additional guidance, see reference listed in DARS Subsection
15.305(S-90).
(S-90) Ensure the source selection plan and solicitation clearly state all evaluation factors, sub- factors, and relative importance.
See the OSD Guide to Collection and Use of Past Performance Information.
(c) Competitive range.
(1) The competitive range shall be approved by the Source Selection Authority outlined in
DARS 15.303 and in accordance with the DISA Source Selection Supplemental Guide.
(4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see FAR 15.505, 15.506 and also see DoD Source Selection Procedures, Section 3.10
Debriefings and Appendix B, Debriefing Guide at the DISA Contracting Templates website, at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=source_selection_procedure s).
(S-90) Identify any apparent remaining weaknesses;
(S-91) Instruct offerors to incorporate all changes to their offers resulting from discussions, and require clear traceability from initial proposals;
(S-92) Establish a page limit for final proposal revisions.
(S-93) Final proposal revision letters shall be reviewed by Legal for actions $50M and over.
(S-90) Use of Automated Source Selection Evaluation Tool. An automated source selection evaluation tool is directed for use for all actions in excess of $50M, and for any actions below this threshold when the HCA is designated as the Source Selection Authority. A written waiver for this requirement must be submitted to the HCA for approval. PLD currently has a license for a Source Selection Evaluation tool; contact ASC for information on license availability and access.
(S-91) If only one proposal is received in response to a competitive solicitation, the contracting officer shall determine if the solicitation was flawed or unduly restrictive, and if the single proposal is an acceptable proposal.
(b) If only one offer is received, the contracting officer shall obtain cost or pricing data, or other than cost and pricing data for commercial items, and negotiate to determine a fair and reasonable price for all telecommunications contract actions arising out of the Inquiry/Quote/Order (I/Q/O) process.
(a)(1) All I/Q/O telecommunication actions are exempt from the requirement to re-solicit for a minimum additional 30 days when only one offer is received. If only one offer is received, the contracting officer shall obtain cost or pricing data, or other than cost or pricing data for commercial items, and negotiate to determine a fair and reasonable price.
(c)(2)(iii)(D) Independent Government Cost Estimates (IGCEs). (S-90) Definitions.
IGCE is a cost estimate developed by Government technical personnel, based on the
PWS/SOO/SOW (without the influence of potential contractors).
Resource Managers ensure and verify that resources are available in the budget/POM, and manage resources accordingly.
(S-91) Policy.
(1) IGCEs are part of the required documentation for HCA review. The DISA IGCE Deskbook located at https://www.ditco.disa.mil/hq/deskbooks.asp contains procedures/guidance for developing IGCEs.
(2) IGCEs must contain details for estimates. IGCEs are not valid and are not acceptable for HCA review or for contracting action without the backup details to demonstrate how the estimates were developed. Assistance with developing IGCEs including incorporation of current cost and pricing information should be requested, as needed, from PL23.
(3) The use of “fully burdened” labor (hour) rates is recommended. Rates must be recent, and relevant to the labor categories contemplated. PL23 can provide advice regarding sources of fully loaded labor rates as well as their applicability and limitations for use in developing the IGCE.
(4) Resource Managers shall coordinate on IGCEs, prior to HCA review or submission of procurement requests to contracts.
(5) Contracting officers shall notify AMs of appropriate remedial action on contract price/IGCE deviations greater than 25 percent, or of any other indication of discrepancy between proposal and the basis for the IGCE (e.g., significant variation in labor mix). Remedial action may include changes to the PWS/SOO/SOW, formal discussions, resource reprogramming, amendment or cancellation, but does not include unjustified revision of the IGCE.
(S-92) DITCO Contracting Officers, communications specialists, contract specialists, and contract negotiators assigned to DITCO field offices shall initiate action to obtain cost and price analyses in accordance with the following procedures.
(1) The contracting officer, exercising sole responsibility for the final pricing decision shall, in accordance with FAR 15.404-1, coordinate with, request, and evaluate the advice of the contract pricing specialist at PL23 and tariff specialists at PL82. Contracting officers shall request cost and pricing assistance for contract awards or modifications of $6.5 million or more. Contracting officers may request cost and pricing assistance, including a cost/price analysis and review of all Solicitation documents including the Performance Work Statement (PWS), Request For Proposal (RFP), etc. before negotiating any contract or modification with a contract value in excess of the threshold for obtaining certified cost or pricing data (FAR 15.403-4(a)(1)), if required by the contracting officer in order to determine price reasonableness. .
(2) PL82 assistance related to tariff interpretation, tariff rate establishment/update and other tariff issues shall be requested as required.
(3) PL23 or PL82, with the concurrence of the contracting officer, shall be responsible for: (i) Obtaining cost or pricing data or information other than cost or pricing data and auditing
contractor's records.
(ii) Performing contract audit follow-up reporting tasks in accordance with DoD Directive
7640.2 and DARS 42.1-90.
(iii) Conducting cost or price analyses and tariff reviews in accordance with FAR 15.404-1, as appropriate. Cost analyses shall incorporate audit findings, technical analysis and tariff review results, and all relevant cost driver information.
(iv) Consolidating cost or pricing data, information other than cost or pricing data, audit results, tariff reviews and other pertinent information; and developing pre-negotiation objectives.
(v) Participating in negotiations with contractors which require the use of information, computations, or data developed during the cost or price analysis.
(vi) Reviewing all major RFPs prior to their issuance to industry for competitive and noncompetitive services, supplies, and equipment to ensure adequate cost or pricing data and tariff provisions are included and that detailed evaluation criteria are developed and tailored for each acquisition.
(vii) Assisting contracting officers in documenting the contract files by providing detailed cost/price analysis memoranda, supporting schedules, automated spreadsheets, discussion items, pre- and post-negotiation memorandums input, DD Forms 1547, Tariff Change Notices, Tariff Contract File Conflict Notices, and other items as required.
(viii) Participating in conferences, briefings, debriefings, and other meetings where pricing and/or tariff support is required.
(S-93) To initiate a request for cost/price analysis support, the contracting officer shall submit an Interoffice Memorandum (IM) to applicable Cost Analyst via the PL23 Mailbox at DITCO Scott containing detailed instructions. RFP reviews must be requested early in the acquisition stage so that a detailed review may be accomplished prior to submitting the RFP to industry. Acquisition plans and timelines must recognize the need for effective pricing/tariff reviews and analyses and must contain reasonable periods for conducting these tasks.
(S-90) A Price Negotiation Memorandum (PNM) shall be prepared for contracting actions as described below and included in the official contract file.
A PNM is not required for orders for pre-priced supplies or services placed against an established single award indefinite delivery contracts and actions at or below the micro-purchase level. The PNM fulfills the documentation requirements in FAR 15.406-3 and provides the determination of fair and reasonable pricing. (See DARS 13.106-3 (S-90)) for PNM requirements for the I/Q/O process or the North Atlantic Treaty Organization (NATO) Allied Long Lines Agency (ALLA)/National Allied Long Lines Agency (NALLA) circuit demand process under the threshold for the test program for certain commercial items of $6.5M.)
(1) For competitive open market, competitive Small Business Administration (SBA) Section
8(a), and competitive GSA Schedule acquisitions, use the “Competitive PNM” format; except, for FAR Parts 12 and 15 acquisitions in which the HCO or HCA serve as the Source Selection Authority, use the “Source Selection Decision Document (SSDD)” format in lieu of the PNM format.
(2) For competitive acquisitions against indefinite delivery contracts with pre-established rates
(e.g., labor rate), use the “IDIQ PNM” format.
(3) For competitive acquisitions resulting in only one offeror, subject to the requirements of the OSD Memo, Improving Competition in Defense Procurements dated 24 Nov 10, use the “Sole Source PNM” format.
(4) For sole source open market acquisitions and sole source SBA Section 8(a) acquisitions at or below the simplified acquisition threshold, or sole source orders placed against established indefinite delivery contracts or GSA Schedules at any dollar value, use the “Sole Source PNM” format.
(5) For sole source open market acquisitions or sole source SBA Section 8(a) acquisitions above the simplified acquisition threshold, use the “Pre-PNM” and “Post-PNM” formats.
(6) For pricing modifications to contracts or orders that were previously competed and have pre- established rates, use the “Modifications PNM” format.
(7) For pricing modifications to contracts or orders that do not include pre-established rates
(e.g., cost type pricing modifications), use the “Pre-PNM” and “Post-PNM” formats.
** The PNM templates are located at https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=price_negotiation_memorandum_pnm_templates.
(S-91) Approvals at the contracting officer level are required for Competitive PNMs, IDIQ PNMs, or Sole Source PNMs as identified above. The contracting officer must sign these PNMs before the award of the contract/order/modification and place a copy in the official contract file.
(S-92) DITCO Cost/Price Analyst Involvement
(1) Pre- and Post-PNMs and Sole Source PNMs valued over $6.5M shall be routed electronically to a DITCO Contract Cost/Price Analyst for review/coordination prior to approval. Routing to the Cost/Price Analyst is not required when pricing is based on established catalog or market prices, when prices are set by law or regulation, or a fair and reasonable price determination can be made by the contracting officer by comparing prices or rates against an existing or previous Government contract where prices are recent and based on an adequately supported fair and reasonable determination.
(2) Pre-and Post-PNMs valued over $10M, shall be prepared in conjunction with the DITCO Cost/Price Analyst. The Cost/Price Analyst shall assist the contracting officer in evaluation of the pricing proposal; development of the pre-negotiation objective and Pre-PNM; negotiations; and, development of the Post-PNM.
(S-93) The approval authorities for Pre/Post PNMs negotiation objectives and modification
PNMs negotiation objectives is the Contracting Officer.
(S-94) A Post-PNM is required, but the Post-PNM approval may be waived when the negotiated agreement is within the negotiation objectives thresholds approved in the pre-PNM and where there were no significant changes to the terms, conditions, or assumptions under which the pre- PNM was developed and approved. If the post-PNM approval is waived, a waiver statement will be included in the post-PNM and signed by the contracting officer. The waiver statement shall state the following: "Approval of the Post-PNM is not required, since the negotiated price is within the approved pre-negotiation objective, and there were no material changes to the pre- PNM terms, conditions, or assumptions.”
Table 15-2 Competitive Acquisitions PNM Format & Approval
ACQUISITION TYPE |
FORMAT |
Open Market (when the Contracting Officer is the SSA) |
Competitive PNM |
GSA Schedule orders |
Competitive PNM |
8(a) |
Competitive PNM |
IDIQ orders with Pre-established labor rates |
IDIQ PNM |
Open Market |
Source Selection Decision Document (SSDD) |
Competitive, but only 1 offer received |
Sole Source PNM |
Table 15-3 Sole Source Acquisitions PNM Format & Approval
ACQUISITION TYPE |
FORMAT |
Open Market or 8(a) at or below SAT |
Sole Source PNM |
GSA Schedule orders |
Sole Source PNM |
IDIQ orders |
Sole Source PNM |
Open Market or 8(a) above SAT |
Pre-PNM and Post-PNM |
Table 15-4 Modifications PNM Format & Approval
MODIFICATION TYPE |
FORMAT |
Pricing Modifications against previously competed actions and have Pre-established rates (e.g., labor rates) |
Modifications PNM |
Pricing Modifications using Pre- established rates (e.g., labor rates) – sole source |
Modifications PNM |
Other Pricing Modifications (e.g., cost type modifications) |
Pre-PNM and Post-PNM |
(a) CBAR is the DoD's centralized database for all business clearances (Price Negotiation Memoranda (PNM)) in excess of $25 million, providing Contracting Officers with the ability to rapidly and effectively share information about business deals across the DoD. CBAR allows a contracting officer's negotiation experience to be shared with other contracting officers who will be negotiating with the same contractor.
(b) For all negotiated contract pricing actions exceeding $25M, Contracting Officers shall add their Price Negotiation Memorandum information to the CBAR database using the format attached to the DPAP Memo Contract Business Analysis Repository at http://www.acq.osd.mil/dpap/policy/policyvault/USA006809-12-DPAP.pdf. Contracting Officers shall upload the PNM documentation, including both the approved pre-negotiation objectives required by FAR 15.406-1 and the record of negotiations (i.e., the PNM) required by FAR 15.406-3 and DARS 15.406-3.
(c) Contracting Officers are to upload the same PNM documentation described above for all definitized or awarded actions over $100M which occurred after 1 October 2012 and prior to 24 June 2013.
(d) The CBAR User's Manual and the CBAR PCO list (includes specific contacts for each section/org) can be located at https://www.ditco.disa.mil/DITCOContractingTemplates/?id=contracting_templates .
(S-90) DoD Source Selection Procedures, Section 3.10, Debriefings
The PCO shall ensure offerors are debriefed, if requested, in accordance with FAR 15.505 and FAR 15.506, as applicable. The PCO shall document the debriefing(s) provided to
offeror(s). At the request of the PCO, members of the Source Selection Team shall participate in debriefings to offerors. The PCO is encouraged to use the debriefing guide provided in the DoD Source Selection Procedures, Appendix B.
(d) (S-90) In addition to the requirements of FAR 15.506(d), See the DoD Source Selection Procedures, Appendix B, Section B.7, Outline for Debriefings at the DISA Contracting Templates website,
https://www.ditco.disa.mil/DitcoContractingTemplates/doku.php?id=source_selection_procedure s).
(a) PL22 is the designated agency point of contact for unsolicited proposals. Contact with agency technical or other appropriate personnel by the offeror shall be coordinated through PL22.
(a) Unless the contractor specifies within the proposal otherwise, no reproduction of material is allowed beyond the initial copy per branch/division required for the appropriate PL22, legal, or
technical reviews. Upon notification by PL22 that reviews are complete, all copies shall be properly disposed via shredding and any softcopies received by email must be permanently deleted.
(S-90) PL22 will perform the receipt and initial review process in consultation with the HCO or HCO designee and Legal within 15 business days of receipt of the unsolicited proposal. (The HCO’s designee must be a contracting officer who can contractually obligate or bind the Government to consult on the initial review.) Before initiating a comprehensive evaluation PL22 shall make the determination the unsolicited proposals meets the criteria defined in FAR 15.606-
1(a) (1) through (7). If the proposal meets these requirements the Head of Contracting Activity (HCA) shall promptly acknowledge receipt and process the proposal for further evaluation. If the proposal does not meet the requirements of FAR 15.606-1(a) and is rejected, the HCA shall inform the offeror the reasons for rejection. PL22 shall maintain an unsolicited proposal log which includes, at a minimum, the company name, proposal title, DITCO Contracting Office, Technical POC, date unsolicited proposal was received, final disposition of the unsolicited proposal.
(a) PL22 will coordinate comprehensive evaluations and will attach or imprint on each unsolicited proposal, circulated for evaluation, the legend required by 15.609(d) within 30 business days after receipt of the unsolicited proposal.
(b) If the unsolicited proposal meets the criteria in FAR 15.605 and 15.606-1, PL22 will forward the unsolicited proposal to the appropriate technical representative, as designated by the HCO or HCO’s designee, for a comprehensive technical review. The technical review shall include a recommendation for acceptance or rejection of the proposal after considering the factors outlined in FAR 15.603. The technical evaluator or evaluators recommended acceptance or rejection of the unsolicited proposal shall be documented with supporting rationale.
(c) The evaluators shall notify PL22 of their recommendations when the evaluation is completed.
(S-90) PL22 will review the entire package including the unsolicited proposals and the technical evaluation and forward the package to legal for review. Legal will provide comments concurring or nonconcurring with the evaluation decision.
(a) All unsolicited proposals will be reviewed and accepted or rejected by the PLD Vice
Director.
(b) The PLD Vice Director will provide a letter indicating rejection of an unsolicited proposal to the offeror citing the reasons for the rejection using supporting statements from the comprehensive evaluation.
(c) The Vice Director will provide a letter indicating acceptance of an unsolicited proposal only after the criteria in 15.606-2 are met.