# PART 1815—CONTRACTING BY NEGOTIATION

Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.

Subpart 1815.2—Solicitation and Receipt of Proposals and Information

1815.203-72 Risk management.

1815.207 Handling proposals and information.

1815.207-70 Release of proposal information.

1815.207-71 Appointing non-Government evaluators as special Government employees.

1815.208 Submission, modification, revision, and withdrawal of proposals. (NASA supplements paragraph (b))

1815.209 Solicitation provisions and contract clauses. (NASA supplements paragraph (a))

1815.209-70 NASA solicitation provisions.

Subpart 1815.3—Source Selection

1815.305-70 Identification of unacceptable proposals.

1815.306 Exchanges with offerors after receipt of proposals. (NASA supplements paragraphs (c), (d), and (e))

Subpart 1815.4—Contract Pricing

1815.403 Obtaining certified cost or pricing data.

1815.403-170 Waivers of certified cost or pricing data.

1815.404-471 NASA structured approach for profit or fee objective.

1815.404-472 Payment of profit or fee under letter contracts.

1815.407 Special cost or pricing areas.

1815.407-2 Make-or-buy programs. (NASA supplements paragraph (e))

1815.408 Solicitation provisions and contract clauses.

1815.408-70 NASA solicitation provisions and contract clauses.

Subpart 1815.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes

1815.504 Award to successful offeror.

Subpart 1815.6—Unsolicited Proposals

1815.602 Policy.

1815.604 Agency points of contact. (NASA supplements paragraph (a))

1815.606 Agency procedures. (NASA supplements paragraphs (a) and (b))

1815.606-70 Relationship of unsolicited proposals to NRAs.

1815.609 Limited use of data.

1815.609-70 Limited use of proposals.

1815.670 Foreign proposals.

Subpart 1815.70—Ombudsman

1815.7001 NASA Ombudsman Program.

1815.7003 Contract clause.

## Subpart 1815.2—Solicitation and Receipt of Proposals and Information

### 1815.203-72 Risk management.

In all RFPs for supplies or services for which a technical proposal is required, proposal instructions shall require offerors to identify and discuss risk factors and issues throughout the proposal where they are relevant, and describe their approach to managing these risks.

### 1815.207 Handling proposals and information.

### 1815.207-70 Release of proposal information.

(a) NASA personnel participating in any way in the evaluation may not reveal any information concerning the evaluation to anyone not also participating, and then only to the extent that the information is required in connection with the evaluation. When non-NASA personnel participate, they shall be instructed to observe these restrictions.

(b)

(1) Except as provided in paragraph (b)(2) of this section, the procurement officer is the approval authority to disclose proposal information outside the Government. If outside evaluators are involved, this authorization may be granted only after compliance with FAR 37.2 and 1837.204, except that the determination of unavailability of Government personnel required by FAR 37.2 is not required for disclosure of proposal information to JPL employees.

(2) Proposal information in the following classes of proposals may be disclosed with the prior written approval of a NASA official one level above the NASA program official responsible for the overall conduct of the evaluation. If outside evaluators are involved, the determination of unavailability of Government personnel required by FAR 37.2 is not required for disclosure in these instances.

(i) Proposals submitted in response to broad agency announcements such as Announcements of Opportunity and NASA Research Announcements;

(ii) Unsolicited proposals; and

(iii) SBIR and STTR proposals.

(3) If JPL personnel, in evaluating proposal information released to them by NASA, require assistance from non-JPL, non-Government evaluators, JPL must obtain written approval to release the information in accordance with paragraphs (b)(1) and (b)(2) of this section.

### 1815.207-71 Appointing non-Government evaluators as special Government employees.

(a) Except as provided in paragraph (c) of this section, non-Government evaluators, except employees of JPL, shall be appointed as special Government employees.

(b) Appointment as a special Government employee is a separate action from the approval required by paragraph 1815.207–70(b) and may be processed concurrently. Appointment as a special Government employee shall be made by:

(1) The NASA Headquarters personnel office when the release of proposal information is to be made by a NASA Headquarters office; or

(2) The installation personnel office when the release of proposal information is to be made by the installation.

(c) Non-Government evaluators need not be appointed as special Government employees when they evaluate:

(1) Proposals submitted in response to broad agency announcements such as Announcements of Opportunity and NASA Research Announcements;

(2) Unsolicited proposals; and

(3) SBIR and STTR proposals.

### 1815.208 Submission, modification, revision, and withdrawal of proposals. (NASA supplements paragraph (b))

(b) The FAR late proposal criteria do not apply to Announcements of Opportunity, NASA Research Announcements, and Small Business Innovative Research (SBIR) Phase I and Phase II solicitations, and Small Business Technology Transfer (STTR) solicitations. For these solicitations, proposals or proposal modifications received from qualified firms after the latest date specified for receipt may be considered if a significant reduction in cost to the Government is probable or if there are significant technical advantages, as compared with proposals previously received. In such cases, the project office shall investigate the circumstances surrounding the late submission, evaluate its content, and submit written recommendations and findings to the selection official or a designee as to whether there is an advantage to the Government in considering it. The selection official or a designee shall determine whether to consider the late submission.

### 1815.209 Solicitation provisions and contract clauses. (NASA supplements paragraph (a))

(a) The contracting officer shall insert FAR 52.215–1 in all competitive negotiated solicitations.

### 1815.209-70 NASA solicitation provisions.

(a) The contracting officer shall insert the provision at 1852.215–77, Preproposal/Pre-bid Conference, in competitive requests for proposals and invitations for bids where the Government intends to conduct a prepoposal or pre-bid conference. Insert the appropriate specific information relating to the conference.

(b) When it is not in the Government's best interest to make award for less than the specified quantities solicited for certain items or groupings of items, the contracting officer shall insert the provision at 1852.214–71, Grouping for Aggregate Award. See 1814.201–670(b).

(c) When award will be made only on the full quantities solicited, the contracting officer shall insert the provision at 1852.214–72, Full Quantities. See 1814.201–670(c).

(d) The contracting officer shall insert the provision at 1852.215–81, Proposal Page Limitations, in all competitive requests for proposals.

## Subpart 1815.3—Source Selection

### 1815.305-70 Identification of unacceptable proposals.

(a) The contracting officer shall not complete the initial evaluation of any proposal when it is determined that the proposal is unacceptable because:

(1) It does not represent a reasonable initial effort to address the essential requirements of the RFP or clearly demonstrates that the offeror does not understand the requirements;

(2) In research and development acquisitions, a substantial design drawback is evident in the proposal, and sufficient correction or improvement to consider the proposal acceptable would require virtually an entirely new technical proposal; or

(3) It contains major deficiencies or omissions or out-of-line costs which discussions with the offeror could not reasonably be expected to cure.

(b) The contracting officer shall document the rationale for discontinuing the initial evaluation of a proposal in accordance with this section.

### 1815.306 Exchanges with offerors after receipt of proposals. (NASA supplements paragraphs (c), (d), and (e))

(c)(2) A total of no more than three proposals shall be a working goal in establishing the competitive range. Field installations may establish procedures for approval of competitive range determinations commensurate with the complexity or dollar value of an acquisition.

(e)

(1) In no case shall the contacting officer relax or amend RFP requirements for any offeror without amending the RFP and permitting the other offerors an opportunity to propose against the relaxed requirements.

## Subpart 1815.4—Contract Pricing

### 1815.403 Obtaining certified cost or pricing data.

### 1815.403-170 Waivers of certified cost or pricing data.

(a) NASA has waived the requirement for the submission of certified cost or pricing data when contracting with the Canadian Commercial Corporation (CCC). This waiver applies to the CCC and its subcontractors. The CCC will provide assurance of the fairness and reasonableness of the proposed price. This assurance should be relied on; however, contracting officers shall ensure that the appropriate level of data other than certified cost or pricing data is submitted by subcontractors to support any required proposal analysis, including a technical analysis and a cost realism analysis. The CCC also will provide for follow-up audit activity to ensure that any excess profits are found and refunded to NASA.

(b) NASA has waived the requirement for the submission of certified cost or pricing data when contracting for Small Business Innovation Research (SBIR) program Phase II contracts. However, contracting officers shall ensure that the appropriate level of data other than certified cost or pricing data is submitted to determine price reasonableness and cost realism.

### 1815.404-471 NASA structured approach for profit or fee objective.

### 1815.404-472 Payment of profit or fee under letter contracts.

NASA's policy is to pay profit or fee only on definitized contracts.

### 1815.407 Special cost or pricing areas.

### 1815.407-2 Make-or-buy programs. (NASA supplements paragraph (e))

(e)

(1) Make-or-buy programs should not include items or work efforts estimated to cost less than $500,000.

### 1815.408 Solicitation provisions and contract clauses.

### 1815.408-70 NASA solicitation provisions and contract clauses.

(a) The contracting officer shall insert the provision at 1852.215–78, Make-or-Buy Program Requirements, in solicitations requiring make-or-buy programs as provided in FAR 15.407–2(c). This provision shall be used in conjunction with the clause at FAR 52.215–9, Changes or Additions to Make-or-Buy Program. The contracting officer may add additional paragraphs identifying any other information required in order to evaluate the program.

(b) The contracting officer shall insert the clause at 1852.215–79, Price Adjustment for “Make-or-Buy” Changes, in contracts that include FAR 52.215–9 with its Alternate I or II. Insert in the appropriate columns the items that will be subject to a reduction in the contract value.

(c) When the solicitation requires the submission of certified cost or pricing data, the contracting officer shall include 1852.215–85, Proposal Adequacy Checklist, in the solicitation to facilitate submission of a thorough, accurate, and complete proposal.

## Subpart 1815.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes

### 1815.504 Award to successful offeror.

The reference to notice of award in FAR 15.504 on negotiated acquisitions is a generic one. It relates only to the formal establishment of a contractual document obligating both the Government and the offeror. The notice is effected by the transmittal of a fully approved and executed definitive contract document, such as the award portion of SF 33, SF 26, SF 1449, or SF 1447, or a letter contract when a definitized contract instrument is not available but the urgency of the requirement necessitates immediate performance. In this latter instance, the procedures for approval and issuance of letter contracts shall be followed.

## Subpart 1815.6—Unsolicited Proposals

### 1815.602 Policy.

Renewal proposals, (i.e., those for the extension or augmentation of current contracts) are subject to the same FAR and NFS regulations, including the requirements of the Competition in Contracting Act, as are proposals for new contracts.

### 1815.604 Agency points of contact. (NASA supplements paragraph (a))

(a)(6) Information titled “Guidance for the Preparation and Submission of Unsolicited Proposals” is available on the Internet at http://ec.msfc.nasa.gov/hq/library/unSol-Prop.html. A deviation is required for use of any modified or summarized version of the Internet information or for alternate means of general dissemination of unsolicited proposal information.

### 1815.606 Agency procedures. (NASA supplements paragraphs (a) and (b))

(a) NASA will not accept for formal evaluation unsolicited proposals initially submitted to another agency or to the Jet Propulsion Laboratory (JPL) without the offeror's express consent.

### 1815.606-70 Relationship of unsolicited proposals to NRAs.

An unsolicited proposal for a new effort or a renewal, identified by an evaluating office as being within the scope of an open NRA, shall be evaluated as a response to that NRA (see 1835.016–71), provided that the evaluating office can either:

(a) State that the proposal is not at a competitive disadvantage, or

(b) Give the offeror an opportunity to amend the unsolicited proposal to ensure compliance with the applicable NRA proposal preparation instructions. If these conditions cannot be met, the proposal must be evaluated separately.

### 1815.609 Limited use of data.

### 1815.609-70 Limited use of proposals.

Unsolicited proposals shall be evaluated outside the Government only to the extent authorized by, and in accordance with, the procedures prescribed in, 1815.207–70.

### 1815.670 Foreign proposals.

Unsolicited proposals from foreign sources are subject to NPD 1360.2, Initiation and Development of International Cooperation in Space and Aeronautics Programs.

## Subpart 1815.70—Ombudsman

### 1815.7001 NASA Ombudsman Program.

NASA's implementation of an ombudsman program is in NPR 5101.33, Procurement Advocacy Programs.

### 1815.7003 Contract clause.

The contracting officer shall insert a clause substantially the same as the one at 1852.215–84, Ombudsman, in all solicitations (including draft solicitations) and contracts.