[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Rules and Regulations]
[Pages 3465-3474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1578]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 806, 812, 837, 852, and 873
RIN 2900-AI71
VA Acquisition Regulation: Simplified Acquisition Procedures for
Health-Care Resources
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs
Acquisition Regulation (VAAR) to establish simplified procedures for
the competitive acquisition of health-care resources, consisting of
commercial services or the use of medical equipment or space pursuant
to statute. The Veterans' Health Care Eligibility Reform Act of 1996
authorized VA to prescribe simplified procedures for the procurement of
health-care resources. This rule prescribes those procedures.
EFFECTIVE DATE: February 24, 2003.
FOR FURTHER INFORMATION CONTACT: Dennis Foley, (202) 273-9225, Office
of the General Counsel, Professional Staff Group V; or Don Kaliher,
(202) 273-8819, Acquisition Resources Service, Office of Acquisition
and Materiel Management, Department of Veterans Affairs, 810 Vermont
Avenue, NW, Washington, DC 20420.
SUPPLEMENTARY INFORMATION: On June 7, 2001, we published in the Federal
Register (66 FR 30659) a proposed rule to amend the Department of
Veterans Affairs Acquisition Regulation (VAAR), pursuant to 38 U.S.C.
8151-8153, to establish simplified procedures for the competitive
acquisition of health-care resources consisting of commercial services
or the use of medical equipment or space.
Comments were solicited concerning the proposal for 60 days, ending
August 6, 2001. We did not receive any comments.
The information presented in the proposed rule document still
provides a basis for this final rule. In addition, the proposed rule
requested Paperwork Reduction Act (PRA) comments concerning the
collection of information regarding clauses for use in both commercial
and non-commercial item and service solicitations and contracts. No
comments were received by VA or the Office of Management and Budget
(OMB).
Therefore, based on the rationale set forth in the proposed rule
document, we are adopting the provisions of the proposed rule as a
final rule with no changes, except for a non-substantive change to
reflect, at 48 CFR 801.301-70(c), the PRA clearance numbers assigned by
OMB to clauses 852.207-70 and 852.237-7.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This rule would have no
consequential effect on State, local, or tribal governments.
Executive Order 12866
This document has been reviewed by the Office of Management and
Budget under Executive Order 12866.
Regulatory Flexibility Analysis
This rule may have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601-612. An Initial Regulatory
Flexibility Analysis was published in the Federal Register on June 7,
2001, (66 FR 30672) as part of the proposed rule. No comments were
received. As required by the RFA (5 U.S.C. 601 et. seq.), the following
Final Regulatory Flexibility Analysis is set forth.
a. A succinct statement of the need for and the objectives of the
rule.
Response: The rule amends the VAAR to implement the provisions of
38 U.S.C. 8151-8153, which authorize the Secretary of Veterans Affairs,
in consultation with the Administrator of Federal Procurement Policy,
to prescribe simplified procedures for the procurement of health-care
resources. We believe the simplified procedures will allow VA to become
more efficient in procuring health-care resources.
The objective of the rule is to allow VA to become more efficient
in procuring health-care resources and thereby strengthen the medical
programs of the Department and improve the quality of health care
provided to veterans.
b. A summary of the significant issues raised by public comments in
response to the initial regulatory flexibility analysis, a summary of
the agency's assessment of such issues, and a statement of any changes
made in the proposed rule as a result of such comments.
Response: No public comments were received and no changes were made
to the proposed rule.
c. A description of and an estimate of the number of small entities
to which the rule will apply or an explanation of why no such estimate
is available.
Response: The small entities that could be affected by the rule are
any small entities that provide commercial services or the use of
medical equipment or space to the health-care industry.
We do not have precise figures on the number of small entities that
could potentially be affected by the rule. Any small entity that
provides, or wishes to provide, commercial services or the use of
medical equipment or space to VA health-care facilities could
potentially be affected.
However, the rule will not apply to the majority of VA
acquisitions. The rule applies only to competitive acquisitions of
commercial services or the use of medical equipment or space conducted
by the Veterans Health Administration (VHA) and which specifically
reference the authority of 38 U.S.C. 8153. The rule does not apply to
acquisitions of supplies or equipment made on behalf of VHA or to
acquisitions made on behalf of the Veterans Benefits Administration
(VBA) or the National Cemetery Administration (NCA). Except for section
873.108(b), the rule does not apply to VHA sole source acquisitions
from affiliated institutions or entities associated with affiliated
institutions. The authority for VHA to contract on a sole source basis
with an institution affiliated with VA or with a medical practice group
or other approved entity associated with an affiliate, addressed in the
rule at 873.108(b), is authorized by law and is not dependent upon this
rulemaking. The rule does not apply to acquisitions of services for
which other specific authorities apply, such as acquisitions of nursing
home care services, which are acquired under the authority of 38 U.S.C.
1720, or to acquisitions of non-commercial services, such as
construction.
We have no relevant data regarding commercial service acquisitions
below $25,000. However, we expect little application of the rule to
acquisitions below $25,000. Existing FAR provisions for such
acquisitions are already very simple and the provisions of the rule
likely would not provide a significant benefit to the Government to
warrant
[[Page 3466]]
use of this authority for such low dollar value acquisitions.
In Fiscal Year (FY) 1998, VHA reported approximately 6,000
individual service transactions valued in excess of $25,000 to the
Federal Procurement Data System. This 6,000 figure excludes
classification codes C, architect/engineer; E, purchase of structures;
Q402, nursing home; Y, construction; and Z, maintenance of real
property, all of which we believe are not covered by the rule. Of those
6,000 transactions, approximately 3,000 were awarded to small
businesses and approximately 900 were awarded to non-profit businesses.
Similar figures were reported for FY 1999. Of the total acquisition
dollars associated with these 6,000 annual awards, we estimate that in
FY 1998, approximately 42 percent, and in FY 1999, approximately 44
percent, were awarded to small businesses.
d. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement, and
the type of professional skills necessary for preparation of the report
or record.
Response: The reporting or recordkeeping requirements of the
clauses at section 852.207-70, Report of employment under commercial
activities, and section 852.237-7, Indemnification and Medical
Liability Insurance, were discussed in the Paperwork Reduction Act
(PRA) portion of the proposed rule, published in the Federal Register
on June 7, 2001 (66 FR 30671). The clause at section 852.207-70
requires the contractor, on contracts where current VA employees are
displaced, to report on employment openings and on efforts to hire
displaced VA employees. The clause at section 852.237-7 requires
contractors, on contracts for nonpersonal health-care services, to
provide evidence of liability insurance. The final rule imposes no new
reporting or recordkeeping requirements not already required by the
VAAR. Currently, the VAAR requires that these clauses be included in
all applicable solicitations and contracts, i.e., contracts where VA
employees might be displaced (852.207-70) or contracts for nonpersonal
health-care services (852.237-7). The rule provides clarification that
these clauses would continue to be required in all applicable service
contracts, including commercial service contracts issued under the
authority of 38 U.S.C. 8153. Small entities currently holding contracts
where VA employees might be displaced or contracts for nonpersonal
health-care services are required to provide employment reports or
evidence of liability insurance, as applicable. Under the rule, there
is no change to those requirements and no new added requirements. There
are no additional small entities affected by the rule that would not
already be affected by the current regulations. No professional skills
are necessary to comply with these reporting and recordkeeping
requirements.
e. A description of the steps the agency has taken to minimize the
significant economic impacts on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule, and the reasons for rejecting each of the
other significant alternatives.
Response: We believe that, with two exceptions (1. and 2. below),
the provisions of the rule, where those provisions differ from the FAR,
are small business/large business neutral, i.e., they would have
neither a positive nor a negative impact on small business or large
business. The two exceptions concern the authority to waive FAR small
business set-aside requirements and the provisions concerning the
transmission of solicitation notices to the Governmentwide point of
entry (GPE).
1. The rule at section 873.107 contains a provision allowing the
head of the contracting activity (HCA) to waive the requirement to set
aside an acquisition for small business. The HCA must determine that
the waiver is in the best interest of the Government. The availability
of this authority may result in acquisitions where small businesses
have to compete against large businesses rather than compete only
against other small businesses.
The alternatives to this waiver authority that were considered in
order to limit the impact of the rule on small businesses included
having no waiver authority, limiting the application of that authority
to specific types of acquisitions, such as acquisitions for medical
services, or limiting the authority to acquisitions in excess of a
certain dollar threshold. For the reasons stated below, we determined
to place no limits, other than those contained in the rule, on the
application of this waiver authority.
As noted above, the rule would only apply to a limited number of
acquisitions. We believe the waiver authority would be used in very few
of those limited number of acquisitions, primarily in acquisitions
where it is critical to broaden the pool of sources considered in order
to obtain the highest quality patient care services at reasonable
prices. In such cases, it would not be in VA's best interest to exclude
non-profit teaching hospitals and universities and other similar high
quality large businesses from the competition. Small businesses could
still compete and would have an equal opportunity to be considered for
award. The availability of this authority, while most critical to
direct patient care service acquisitions, could be a necessary element
of other commercial service acquisitions that are critical to the
optimum functioning of the medical centers.
In some limited circumstances, the waiver authority of section
873.107 may have a beneficial impact on small entities. VA has
authority to contract on a sole source basis with medical schools,
hospitals, and clinics affiliated with VA. Medical schools, hospitals,
and clinics are almost exclusively large or nonprofit businesses. Under
the FAR, if a VA medical center wishes to seek competition for services
currently being acquired from its affiliate, the affiliate would be
excluded from bidding on that competition if there were two or more
small businesses capable of providing the services. It is in VA's best
interest to obtain state-of-the-art medical services from the highest
qualified sources at reasonable prices. Without the waiver authority,
VA medical centers would most likely continue to award sole source
contracts to their affiliates rather than seek competition, since,
under a competitive solicitation, those affiliates might be excluded as
potential sources for those services due to the current FAR requirement
to set acquisitions aside for small business. While VA medical centers
might be willing to consider other sources, they generally are
unwilling to exclude their affiliates as potential sources. However,
under the waiver procedures of the rule, VA medical centers would no
longer be required to set an acquisition aside for small business and
exclude their affiliates from consideration. Accordingly, VA medical
centers may be more likely to issue competitive solicitations for
highly technical medical services rather than acquire such services on
a sole source basis from their affiliates. Rather than reducing small
business access to VA acquisitions of medical services, the waiver
process could result in increased access to such acquisitions by small
businesses. In this regard, VA intends to monitor, through the Federal
Procurement Data System, the use of the procedures provided in this
rule and the
[[Page 3467]]
impact on VA's socioeconomic programs.
2. The FAR requires that all proposed acquisitions, including sole
source acquisitions, exceeding $25,000, with certain exceptions, be
transmitted to the GPE. The rule differs from the FAR in several ways.
First, it provides, at section 873.108(a), that acquisitions exceeding
the simplified acquisition threshold (SAT) (currently $100,000) would
not have to be announced in the GPE. Rather, the rule requires that
contracting officers publicly announce such proposed acquisitions
utilizing a medium designed to obtain competition to the maximum extent
practicable. The rule lists a number of examples for where the
announcements may be announced, including the GPE. The intent of the
rule is to maximize the dissemination of information regarding such
proposed acquisitions, not to limit dissemination. Most acquisitions
for services are of interest only to the local community. In many
cases, it is impossible for a firm located some distance from a VA
medical center to provide coronary bypass operations, X-ray or oncology
services, or other services necessary to operate the medical center, on
a timely basis. We believe that both small and large local service
providers of health-care resources (e.g., hospitals and clinics) are
more likely to be made aware of acquisition opportunities if the
acquisitions are announced in mediums that are seen and read by the
local service community or if they are contacted directly. Accordingly,
we believe this provision of the rule will tend to increase competition
rather than decrease competition and will provide small businesses with
increased opportunities.
Second, the rule at section 873.108(b) provides that sole source
acquisitions from institutions affiliated with VA and from medical
practice groups and other entities associated with an affiliated
institution are exempt from the requirement for synopsis in the GPE. 38
U.S.C. 8153 specifically authorizes VA to acquire health-care resources
on a sole source basis from institutions affiliated with VA and from
medical practice groups and other entities associated with an
affiliated institution. Exempting such acquisitions from synopsis in
the GPE is consistent with statute, which imposes no requirement for VA
to solicit and consider any other offers. Thus, this provision of the
rule will have no impact on competition, since competition is not
required under any circumstances.
Section 873.108(b) also exempts from publication sole source
acquisitions of hospital care, medical services, and other health-care
services from any source, whether or not the source is affiliated with
VA. However, as required by 38 U.S.C. 8153(a)(3)(D), acquisitions from
non-affiliates, if conducted on a sole source basis, must still be
justified and approved. Acquisitions for hospital care, medical
services, or other health-care services would usually be conducted on a
sole source basis only if there was an emergency need for such
services. Otherwise, the acquisitions would likely be conducted
competitively, if not acquired from an affiliate. The FAR provides an
exemption from synopsis in the GPE under conditions of unusual or
compelling urgency and where the Government would be seriously injured
by any delay due to the publication requirement. We expect that most of
the sole source acquisitions of hospital care, medical services, and
other health-care services covered by this provision will be conducted
under conditions of unusual or compelling urgency. Such acquisitions
would include emergency hospital care for a veteran in an area not
served by a nearby VA medical center. Even under the FAR, this type of
acquisition is exempt from synopsis in the GPE by virtue of its being
an urgent and compelling acquisition. This provision of the rule will
simplify the acquisition process by freeing the contracting officer
from having to make individual determinations regarding publication for
each sole source acquisition of hospital care, medical services, and
other health-care services. Since we expect most such acquisitions to
already be exempt under the FAR, we believe this provision will have
little, if any, impact on competition or on awards to small businesses.
Third, the rule at section 873.108(c) exempts acquisitions below
the SAT from the requirement for public announcement, including
synopsis in the GPE. However, the rule at section 873.104 requires the
contracting officer to seek competition to the maximum extent
practicable and to permit all responsible sources, as appropriate, to
submit a bid, proposal, or quotation. In addition, for acquisitions
below the SAT, section 873.111 states that contracting officers should
solicit a sufficient number of sources to promote competition to the
maximum extent practicable. Section 873.107 requires that acquisitions
be set aside for small business. These provisions tend to mitigate any
negative impact that section 873.108(c) may have on small businesses.
The alternatives to the above provisions regarding public
announcements in the GPE that were considered were to eliminate these
provisions and follow the provisions of the FAR or to limit the
exemptions to specific categories of acquisitions, such as acquisitions
for medical services. The objectives of the rule are to allow VA to
become more efficient in procuring health-care resources. The intent of
this rule is to provide procurement processes that are simpler and less
time consuming than those of the FAR. As discussed above, we believe
that the flexibility to select the public medium that best captures the
awareness of interested sources will enable the Department to maximize
the effective distribution of information on VA solicitations and more
efficiently take advantage of competition without decreasing
competition. For this reason, the provisions regarding publicizing
contract actions have been retained without change.
List of Subjects
48 CFR Parts 801 and 852
Government Procurement, Reporting and recordkeeping requirements.
48 CFR Parts 806, 812, 837, and 873
Government Procurement.
Approved: October 11, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 48 CFR chapter 8 is
amended as follows:
PART 801--VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM
1. The authority citation for part 801 continues to read as
follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
801.301-70 [Amended]
2. The chart in section 801.301-70, paragraph (c) is amended by
adding two OMB information collection approval numbers to read as
follows:
801.301-70 Paperwork Reduction Act requirements.
* * * * *
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Current OMB
48 CFR part or section where identified and described control No.
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* * * * *
852.207-70................................................ 2900-0590
* * * * *
852.237-7................................................. 2900-0590
* * * * *
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[[Page 3468]]
801.602-70 [Amended]
3. In 801.602-70, paragraphs (a)(4)(vi) and (a)(4)(vii) are revised
to read as follows:
801.602-70 Legal/technical review requirements to be met prior to
contract execution.
(a) * * *
(4) * * *
(vi) Competitive contracts exceeding $1.5 million and
noncompetitive contracts exceeding $500,000 for the acquisition of
scarce medical specialist services acquired under the authority of 38
U.S.C. 7409.
(vii) Competitive contracts exceeding $1.5 million and
noncompetitive contracts exceeding $500,000 for the acquisition of
health-care resources acquired under the authority of 38 U.S.C. 8151-
8153.
* * * * *
801.602-71 [Amended]
4. In 801.602-71, paragraph (b)(2) is revised to read as follows:
801.602-71 Processing contracts for legal/technical review.
* * * * *
(b) * * *
(2) Proposed contracts and agreements for scarce medical specialist
services or for the mutual use or exchange of use of health-care
resources, as specified in 801.602-70(a)(4)(vi) and (a)(4)(vii), will
be forwarded to Central Office in accordance with Veterans Health
Administration directives and VA Manual M-1, Part 1, Chapter 34, for
review and submission to the Office of the General Counsel (025).
* * * * *
801.602-72 [Amended]
5. In 801.602-72, paragraph (b) is revised to read as follows:
801.602-72 Documents to be submitted for legal review.
* * * * *
(b) For proposed contracts and agreements for scarce medical
specialist services or for the mutual use or exchange of use of health-
care resources, as specified in 801.602-70(a)(4)(vi) and (a)(4)(vii),
the documents referred to in VA Manual M-1, Part 1, Chapter 34.
* * * * *
PART 806--COMPETITION REQUIREMENTS
6. The authority citation for part 806 continues to read as
follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
7. Section 806.302-5 is amended by:
a. Revising paragraph (b).
b. Redesignating paragraph (c) as paragraph (d).
c. Adding a new paragraph (c).
The revision and addition read as follows:?
806.302-5 Authorized or required by statute.
* * * * *
(b) Contracts or agreements for the mutual use or exchange of use
of health-care resources, consisting of commercial services, the use of
medical equipment or space, or research, negotiated under the authority
of 38 U.S.C. 8151-8153, are approved for other than full and open
competition only when such contracts or agreements are with
institutions affiliated with the Department of Veterans Affairs,
pursuant to 38 U.S.C. 7302, with medical practice groups or other
approved entities associated with affiliated institutions (entities
will be approved if determined legally to be associated with affiliated
institutions), or with blood banks, organ banks, or research centers.
The justification and approval requirements of FAR 6.303 and VAAR
806.304 do not apply to such contracts or agreements.
(c) Contracts or agreements for the mutual use or exchange of use
of health-care resources, consisting of commercial services or the use
of medical equipment or space, negotiated under the authority of 38
U.S.C. 8151-8153, and not acquired under the authority of paragraph (b)
of this section, may be conducted without regard to any law or
regulation that would otherwise require the use of competitive
procedures for procuring resources, provided the procurement is
conducted in accordance with the simplified procedures contained in
(VAAR) 48 CFR part 873. The justification and approval requirements of
FAR 6.303 and 806.304 shall apply to such contracts or agreements
conducted on a sole source basis.
* * * * *
PART 812--ACQUISITION OF COMMERCIAL ITEMS
8. The authority citation for part 812 continues to read as
follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
9. In 812.301, paragraph (c) is revised and paragraph (g) is added
to read as follows:
812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(c) The provisions and clauses in the following VAAR sections must
be used, when appropriate, in accordance with the prescriptions
contained therein or elsewhere in the VAAR, in requests for quotations,
solicitations, or contracts for the acquisition of commercial items:
(1) 852.207-70, Report of employment under commercial activities.
(2) 852.211-71, Guarantee clause.
(3) 852.211-72, Inspection.
(4) 852.211-73, Frozen processed foods.
(5) 852.211-74, Telecommunications equipment.
(6) 852.211-75, Technical industry standards.
(7) 852.214-70, Caution to bidders-bid envelopes.
(8) 852.216-70, Estimated quantities for requirements contracts.
(9) 852.229-70, Purchases from patient's funds.
(10) 852.229-71, Purchases for patients using Government funds and/
or personal funds of patients.
(11) 852.233-70, Protest content.
(12) 852.237-7, Indemnification and Medical Liability Insurance.
(13) 852.237-70, Contractor responsibilities.
(14) 852.237-71, Indemnification and insurance (vehicle and
aircraft service contracts).
(15) 852.252-1, Provisions or clauses requiring completion by the
offeror or prospective contractor.
(16) 852.270-1, Representatives of contracting officers.
(17) 852.270-2, Bread and bakery products.
(18) 852.270-3, Purchase of shellfish.
* * * * *
(g) When soliciting for commercial services or the use of medical
equipment or space under the authority of part 873 and 38 U.S.C. 8151-
8153, the provisions and clauses in the following VAAR sections may be
used in accordance with the prescriptions contained therein or
elsewhere in the VAAR:
(1) 852.273-70, Late offers.
(2) 852.273-71, Alternative negotiation techniques.
(3) 852.273-72, Alternative evaluation.
(4) 852.273-73, Evaluation--health-care resources.
(5) 852.273-74, Award without exchanges.
PART 837--SERVICE CONTRACTING
10. The authority citation for part 837 continues to read as
follows:
[[Page 3469]]
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
11. Section 837.403 is amended by revising the first sentence of
the paragraph to read as follows:
837.403 Contract clause.
The contracting officer shall insert the clause at 852.237-7,
Indemnification and Medical Liability Insurance, in lieu of FAR Clause
52.237-7, in solicitations and contracts for nonpersonal health-care
services, including solicitations and contracts for nonpersonal health-
care services awarded under the authority of 38 U.S.C. 8151-8153 and
(VAAR) 48 CFR part 873. * * *
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
12. The authority citation for part 852 continues to read as
follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
13. In section 852.207-70, the introductory text is revised to read
as follows:
852.207-70 Report of employment under commercial activities.
As prescribed in 807.304-77 and 873.110, the following clause must
be included in A-76 cost comparison solicitations and solicitations
issued under the authority of 38 U.S.C. 8151-8153 which may result in
the conversion, from in-house to contract performance, of work
currently being performed by VA employees:
* * * * *
14. Section 852.273-70 is added to read as follows:
852.273-70 Late offers.
As prescribed in 873.110(a), insert the following provision:
Late Offers (Jan 2003)
This provision replaces paragraph (f) of FAR provision 52.212-1.
Offers or modifications of offers received after the time set forth
in a request for quotations or request for proposals may be
considered, at the discretion of the contracting officer, if
determined to be in the best interest of the Government. Late bids
submitted in response to an invitation for bid (IFB) will not be
considered.
(End of provision)
15. Section 852.273-71 is added to read as follows:
852.273-71 Alternative negotiation techniques.
As prescribed in 873.110(b), insert the following provision:
Alternative Negotiation Techniques (Jan 2003)
The contracting officer may elect to use the alternative
negotiation techniques described in section 873.111(e) of 48 Code of
Federal Regulations Chapter 8 in conducting this procurement. If
used, offerors may respond by maintaining offers as originally
submitted, revising offers, or submitting an alternative offer. The
Government may consider initial offers unless revised or withdrawn,
revised offers, and alternative offers in making the award. Revising
an offer does not guarantee an offeror an award.
(End of provision)
16. Section 852.273-72 is added to read as follows:
852.273-72 Alternative evaluation.
As prescribed in 873.110(c), insert the following provision:
Alternative Evaluation (Jan 2003)
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror submitting the lowest priced
offer that conforms to the solicitation. During the specified period
for receipt of offers, the amount of the lowest offer will be posted
and may be viewed by--[Contracting officer insert description of how
the information may be viewed electronically or otherwise]--. Offerors
may revise offers anytime during the specified period. At the end of
the specified time period for receipt of offers, the responsible
offeror submitting the lowest priced offer will be in line for award.
(b) Except when it is determined not to be in the Government's best
interest, the Government will evaluate offers for award purposes by
adding the total price for all options to the total price for the basic
requirement. The Government may determine that an offer is unacceptable
if the option prices are materially unbalanced. Evaluation of options
shall not obligate the Government to exercise the option(s).
(End of provision)
17. Section 852.273-73 is added to read as follows:
852.273-73 Evaluation--health-care resources.
As prescribed in 873.110(d), in lieu of FAR provision 52.212-2, the
contracting officer may insert a provision substantially as follows:
Evaluation--Health-Care Resources (January 2003)
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror whose offer, conforming to
the solicitation, will be most advantageous to the Government, price
and other factors considered. The following information or factors
shall be used to evaluate offers: --[Contracting officer insert
evaluation information or factors, such as technical capability to
meet the Government's requirements, past performance, or such other
evaluation information or factors as the contracting officer deems
necessary to evaluate offers. Price must be evaluated in every
acquisition. The contracting officer may include the evaluation
information or factors in their relative order of importance, such
as in descending order of importance. The relative importance of any
evaluation information must be stated in the solicitation.]--
(b) Except when it is determined not to be in the Government's
best interest, the Government will evaluate offers for award
purposes by adding the total price for all options to the total
price for the basic requirement. The Government may determine that
an offer is unacceptable if the option prices are materially
unbalanced. Evaluation of options shall not obligate the Government
to exercise the option(s).
(c) If this solicitation is a request for proposals (RFP), a
written notice of award or acceptance of an offer, mailed or
otherwise furnished to the successful offeror within the time for
acceptance specified in the offer, shall result in a binding
contract without further action by either party. Before the offer's
specified expiration time, the Government may accept an offer (or
part of an offer), whether or not there are negotiations after its
receipt, unless a written notice of withdrawal is received before
award.
(End of provision)
18. Section 852.273-74 is added to read as follows:
852.273-74 Award without exchanges.
As prescribed in 873.110(e), insert the following provision:
Award Without Exchanges (Jan 2003)
The Government intends to evaluate proposals and award a
contract without exchanges with offerors. Therefore, each initial
offer should contain the offeror's best terms from a cost or price
and technical standpoint. However, the Government reserves the right
to conduct exchanges if later determined by the contracting officer
to be necessary.
(End of provision)
19. Part 873 is added to read as follows:
PART 873--SIMPLIFIED ACQUISITION PROCEDURES FOR HEALTH-CARE
RESOURCES
Sec.
873.101 Policy.
873.102 Definitions.
873.103 Priority sources.
873.104 Competition requirements.
873.105 Acquisition planning.
873.106 Presolicitation exchanges with industry.
873.107 Socioeconomic programs.
873.108 Publicizing contract actions.
873.109 General requirements for acquisition of health-care
resources.
[[Page 3470]]
873.110 Solicitation provisions.
873.111 Acquisition strategies for health-care resources.
873.112 Evaluation information.
873.113 Exchanges with offerors.
873.114 Best value pool.
873.115 Proposal revisions.
873.116 Source selection decision.
873.117 Award to successful offeror.
873.118 Debriefings.
Authority: 38 U.S.C. 8151-8153.
873.101 Policy.
The simplified acquisition procedures set forth in this Department
of Veterans Affairs Acquisition Regulation (VAAR) part apply to the
acquisition of health-care resources consisting of commercial services
or the use of medical equipment or space. These procedures shall be
used in conjunction with the Federal Acquisition Regulation (FAR) and
other parts of VAAR. However, when a policy or procedure in FAR or
another part of VAAR differs from the procedures contained in this
part, this part shall take precedence. These procedures contain more
flexibility than provided in FAR or elsewhere in VAAR.
873.102 Definitions.
Commercial service means a service, except construction exceeding
$2,000 and architect-engineer services, that is offered and sold
competitively in the commercial marketplace, is performed under
standard commercial terms and conditions, and is procured using firm-
fixed price contracts.
Health-care providers includes health-care plans and insurers and
any organizations, institutions, or other entities or individuals who
furnish health-care resources.
Health-care resource includes hospital care and medical services
(as those terms are defined in section 1701 of title 38 United States
Code (U.S.C.), any other health-care service, and any health-care
support or administrative resource, including the use of medical
equipment or space.
873.103 Priority sources.
Without regard to FAR 8.001(a)(2), except for the acquisition of
services available from the Committee for Purchase From People Who Are
Blind or Severely Disabled, pursuant to the Javits-Wagner-O'Day Act (41
U.S.C. 46-48c) and FAR subpart 8.7, there are no priority sources for
the acquisition of health-care resources consisting of commercial
services or the use of medical equipment or space.
873.104 Competition requirements.
(a) Without regard to FAR part 6, if the health-care resource
required is a commercial service, the use of medical equipment or
space, or research, and is to be acquired from an institution
affiliated with the Department in accordance with section 7302 of title
38 U.S.C., including medical practice groups and other approved
entities associated with affiliated institutions (entities will be
approved if determined legally to be associated with affiliated
institutions), or from blood banks, organ banks, or research centers,
the resource may be acquired on a sole source basis.
(b) Acquisition of health-care resources identified in paragraph
(a) of this section are not required to be publicized as otherwise
required by 873.108 or FAR 5.101. In addition, written justification,
as otherwise set forth in section 303(f) of the Federal Property and
Administration Services Act of 1949 (41 U.S.C. 253(f)) and FAR part 6,
is not required.
(c) Without regard to FAR 6.101, if the health-care resource
required is a commercial service or the use of medical equipment or
space, and is to be acquired from an entity not described in paragraph
(a) of this section, contracting officers must seek competition to the
maximum extent practicable and must permit all responsible sources, as
appropriate under the provisions of this part, to submit a bid,
proposal or quotation (as appropriate) for the resources to be procured
and provide for the consideration by the Department of bids, proposals,
or quotations so submitted.
(d) Without regard to FAR 5.101, acquisition of health-care
resources identified in paragraph (c) of this section shall be
publicized as otherwise required by 873.108. Moreover, for any such
acquisition described in paragraph (c) of this section to be conducted
on a sole source basis, the contracting officer must prepare a
justification that includes the information and is approved at the
levels prescribed in section 303(f) of the Federal Property and
Administration Services Act of 1949 (41 U.S.C. 253(f)) and FAR part 6.
873.105 Acquisition planning.
(a) Acquisition planning is an indispensable component of the total
acquisition process.
(b) For the acquisition of health-care resources consisting of
commercial services or the use of medical equipment or space, where the
acquisition is expected to exceed the simplified acquisition threshold
(SAT), an acquisition team must be assembled. The team shall be
tailored by the contracting officer for each particular acquisition
expected to exceed the SAT. The team should consist of a mix of staff,
appropriate to the complexity of the acquisition, and may include
contracting, fiscal, legal, administrative, and technical personnel,
and such other expertise as necessary to assure a comprehensive
acquisition plan. The team should include the small business advocate
representing the contracting activity or a higher level designee and
the SBA Procurement Center Representative (PRC), if available. As a
minimum, the team must include the contracting officer and a
representative of the requesting service.
(c) Prior to determining whether a requirement is suitable for
acquisition using these simplified acquisition procedures, the
contracting officer or the acquisition team, as appropriate, must
conduct market research to identify interested businesses. It is the
responsibility of the contracting officer to ensure the requirement is
appropriately publicized and information about the procurement
opportunity is adequately disseminated as set forth in 873.108.
(d) In lieu of the requirements of FAR part 7 addressing
documentation of the acquisition plan, the contracting officer may
conduct an acquisition strategy meeting with cognizant offices to seek
approval for the proposed acquisition approach. If a meeting is
conducted, briefing materials shall be presented to address the
acquisition plan topics and structure in FAR 7.105. Formal written
minutes shall be prepared to summarize decisions, actions, and
conclusions and included in the contract file, along with a copy of the
briefing materials.
873.106 Presolicitation exchanges with industry.
(a) This section shall be used in lieu of FAR part 10, except as
provided in paragraph (b)(3)of this section. In conducting market
research, exchange of information by all interested parties involved in
an acquisition, from the earliest identification of a requirement
through release of the solicitation, is encouraged. Interested parties
include potential offerors, end users, Government acquisition and
support personnel, and others involved in the conduct or outcome of the
acquisition. The nature and extent of presolicitation exchanges between
the Government and industry shall be a matter of the contracting
officer's discretion (for acquisitions not exceeding the simplified
acquisition threshold) or the acquisition team's discretion, as
coordinated by the contracting officer.
(b) Techniques to promote early exchange of information include--
(1) Industry or small business conferences;
[[Page 3471]]
(2) Public hearings;
(3) Market research in accordance with FAR 10.002(b), which shall
be followed to the extent that the provisions therein would provide
relevant information;
(4) One-on-one meetings with potential offerors;
(5) Presolicitation notices;
(6) Draft Requests for proposals (RFPs);
(7) Requests for information (RFIs);
(8) Presolicitation or preproposal conferences;
(9) Site visits;
(10) Electronic notices (e.g., Internet); and
(11) Use of the Procurement Marketing and Access Network (PRO-NET).
873.107 Socioeconomic programs.
(a) Implementation. This section provides additional authority,
over and above that found at FAR 19.502, to waive small business set-
asides. For acquisitions above the micro-purchase threshold, if,
through market research, the contracting officer determines that there
is reasonable expectation that reasonably priced bids, proposals, or
quotations will be received from two or more responsible small
businesses, a requirement for health-care resources must be reserved
for small business participation. Without regard to FAR 13.003(b)(1),
19.502-2, and 19.502-3, the head of the contracting activity (HCA) may
approve a waiver from the requirement for any set-aside for small
business participation when a waiver is determined to be in the best
interest of the Government.
(b) Rejecting Small Business Administration (SBA) recommendations.
(1) The contracting officer (or, if a waiver has been approved in
accordance with paragraph (a) of this section, the HCA) must consider
and respond to a recommendation from an SBA representative to set a
procurement aside for small business within 5 working days. If the
recommendation is rejected by the contracting officer (or, if a waiver
has been approved, by the HCA) and if SBA intends to appeal that
determination, SBA must, within 2 working days after receipt of the
determination, notify the contracting officer involved of SBA's
intention to appeal.
(2) Upon receipt of the notification of SBA's intention to appeal
and pending issuance of a final Department appeal decision to SBA, the
contracting officer involved must suspend action on the acquisition
unless a determination is made in writing by the contracting officer
that proceeding to contract award and performance is in the public
interest. The contracting officer must promptly notify SBA of the
determination to proceed with the solicitation and/or contract award
and must provide a copy of the written determination to SBA.
(3) SBA shall be allowed 10 working days after receiving the
rejection notice from the contracting officer (or the HCA, if a waiver
has been approved) for acquisitions not exceeding $5 million, or 15
working days after receiving the rejection notice for acquisitions
exceeding $5 million, to file an appeal. SBA must notify the
contracting officer within this 10 or 15 day period whether an appeal
has, in fact, been taken. If notification is not received by the
contracting officer within the applicable period, it shall be deemed
that an appeal was not taken.
(4) SBA shall submit appeals to the Secretary. Decisions shall be
made by the Procurement Executive, whose decisions shall be final.
(c) Contracting with the Small Business Administration (the 8(a)
Program). The procedures of FAR 19.8 shall be followed where a
responsible 8(a) contractor has been identified.
(d) Certificates of Competency and determinations of
responsibility. The Director, Office of Small and Disadvantaged
Business Utilization (OSDBU), Department of Veterans Affairs (VA), and
the Assistant Administrator, Office of Industrial Assistance, Small
Business Administration (SBA), shall serve as ombudsmen to assist VA
contracting officers on any issues relating to Certificates of
Competency (COC). Copies of all COC referrals to SBA shall be submitted
to the Director, OSDBU (00SB).
873.108 Publicizing contract actions.
(a) Without regard to FAR 5.101, all acquisitions under this part
873, except as provided in paragraph (b) of this section, for dollar
amounts in excess of the simplified acquisition threshold (SAT), as set
forth in FAR part 13, shall be publicly announced utilizing a medium
designed to obtain competition to the maximum extent practicable and to
permit all responsible sources, as appropriate under the provisions of
this part, to submit a bid, proposal, or quotation (as appropriate).
(1) The publication medium may include the Internet, including the
Governmentwide point of entry (GPE), and local, regional or national
publications or journals, as appropriate, at the discretion of the
contracting officer, depending on the complexity of the acquisition.
(2) Without regard to FAR 5.203, notice shall be published for a
reasonable time prior to issuance of a request for quotations (RFQ) or
a solicitation, depending on the complexity or urgency of the
acquisition, in order to afford potential offerors a reasonable
opportunity to respond. If the notice includes a complete copy of the
RFQ or solicitation, a prior notice is not required, and the RFQ or
solicitation shall be considered to be announced and issued at the same
time.
(3) The notice may include contractor qualification parameters,
such as time for delivery of service, credentialing or medical
certification requirements, small business or other socio-economic
preferences, the appropriate small business size standard, and such
other qualifications as the contracting officer deems necessary to meet
the needs of the Government.
(b) The requirement for public announcement does not apply to sole
source acquisitions, described in 873.104(a), from institutions
affiliated with the Department in accordance with section 7302 of title
38 U.S.C., including medical practice groups and other approved
entities associated with affiliated institutions (entities will be
approved if determined legally to be associated with affiliated
institutions), or from blood banks, organ banks, or research centers.
In addition, the requirement for public announcement does not apply to
sole source acquisitions of hospital care and medical services (as
those terms are defined in section 1701 of title 38 U.S.C.) or any
other health-care services, including acquisitions for the mutual use
or exchange of use of such services. However, as required by 38 U.S.C.
8153(a)(3)(D), acquisitions from non-affiliates, if conducted on a sole
source basis, must still be justified and approved (see 873.104(d)).
(c) For acquisitions below the SAT, a public announcement is
optional.
(d) Each solicitation issued under these procedures must
prominently identify that the requirement is being solicited under the
authority of 38 U.S.C. 8153 and part 873.
873.109 General requirements for acquisition of health-care resources.
(a) Source selection authority. Contracting officers shall be the
source selection authority for acquisitions of health-care resources,
consisting of commercial services or the use of medical equipment or
space, utilizing the guidance contained in this part 873.
[[Page 3472]]
(b) Statement of work/Specifications. Statements of work or
specifications must define the requirement and should, in most
instances, include qualifications or limitations such as time limits
for delivery of service, medical certification or credentialing
restrictions, and small business or other socio-economic preferences.
The contracting officer may include any other such terms as the
contracting officer deems appropriate for each specific acquisition.
(c) Documentation. Without regard to FAR 13.106-3(b), 13.501(b), or
15.406-3, the contract file must include:
(1) A brief written description of the procedures used in awarding
the contract;
(2) The market research, including the determination that the
acquisition involves health-care resources;
(3) The number of offers received; and
(4) An explanation, tailored to the size and complexity of the
acquisition, of the basis for the contract award decision.
(d) Time for receipt of quotations or offers. (1) Without regard to
FAR 5.203, contracting officers shall set a reasonable time for receipt
of quotations or proposals in requests for quotations (RFQs) and
solicitations.
(2) Without regard to FAR 15.208 or 52.212-1(f), quotations or
proposals received after the time set forth in an RFQ or request for
proposals (RFP) may be considered at the discretion of the contracting
officer if determined to be in the best interest of the Government.
Contracting officers must document the rationale for accepting
quotations or proposals received after the time specified in the RFQ or
RFP. This paragraph (d)(2) shall not apply to RFQs or RFPs if
alternative evaluation techniques described in 873.111(e)(1)(ii) are
used. This paragraph (d)(2) does not apply to invitations for bid
(IFBs).
(e) Cancellation of procurements. Without regard to FAR 14.404-1,
any acquisition may be canceled by the contracting officer at any time
during the acquisition process if cancellation is determined to be in
the best interest of the Government.
873.110 Solicitation provisions.
(a) As provided in 873.109(d), contracting officers shall insert
the provision at 852.273-70, Late offers, in all requests for
quotations (RFQs) and requests for proposals (RFPs) exceeding the
micro-purchase threshold.
(b) The contracting officer shall insert a provision in RFQs and
solicitations, substantially the same as the provision at 852.273-71,
Alternative negotiation techniques, when either of the alternative
negotiation techniques described in 873.111(e)(1) will be used.
(c) The contracting officer shall insert the provision at 852.273-
72, Alternative evaluation, in lieu of the provision at 52.212-2,
Evaluation--Commercial Items, when the alternative negotiation
technique described in 873.111(e)(1)(ii) will be used.
(d) When evaluation information, as described in 873.112, is to be
used to select a contractor under an RFQ or RFP for health-care
resources consisting of commercial services or the use of medical
equipment or space, the contracting officer may insert the provision at
852.273-73, Evaluation--health-care resources, in the RFQ or RFP in
lieu of FAR provision 52.212-2.
(e) As provided at 873.113(f), if award may be made without
exchange with vendors, the contracting officer shall include the
provision at 852.273-74, Award without exchanges, in the RFQ or RFP.
(f) The contracting officer shall insert the clauses at FAR 52.207-
3, Right of First Refusal of Employment, and at 852.207-70, Report of
employment under commercial activities, in all RFQs, solicitations, and
contracts issued under the authority of 38 U.S.C. 8151-8153 which may
result in a conversion, from in-house performance to contract
performance, of work currently being performed by Department of
Veterans Affairs employees.
873.111 Acquisition strategies for health-care resources.
Without regard to FAR 13.003 or 13.500(a), the following
acquisition processes and techniques may be used, singly or in
combination with others, as appropriate, to design acquisition
strategies suitable for the complexity of the requirement and the
amount of resources available to conduct the acquisition. These
strategies should be considered during acquisition planning. The
contracting officer shall select the process most appropriate to the
particular acquisition. There is no preference for sealed bid
acquisitions.
(a) Request for quotations. (1) Without regard to FAR 6.1 or 6.2,
contracting officers must solicit a sufficient number of sources to
promote competition to the maximum extent practicable and to ensure
that the purchase is advantageous to the Government, based, as
appropriate, on either price alone or price and other factors (e.g.,
past performance and quality). RFQs must notify vendors of the basis
upon which the award is to be made.
(2) For acquisitions in excess of the SAT, the procedures set forth
in FAR part 13 concerning RFQs may be utilized without regard to the
dollar thresholds contained therein.
(b) Sealed bidding. FAR part 14 provides procedures for sealed
bidding.
(c) Negotiated acquisitions. The procedures of FAR parts 12, 13,
and 15 shall be used for negotiated acquisitions, except as modified in
this part.
(d) Multiphase acquisition technique. (1) General. Without regard
to FAR 15.202, multiphase acquisitions may be appropriate when the
submission of full proposals at the beginning of an acquisition would
be burdensome for offerors to prepare and for Government personnel to
evaluate. Using multiphase techniques, the Government may seek limited
information initially, make one or more down-selects, and request a
full proposal from an individual offeror or limited number of offerors.
Provided that the notice notifies offerors, the contracting officer may
limit the number of proposals during any phase to the number that will
permit an efficient competition among proposals offering the greatest
likelihood of award. The contracting officer may indicate in the notice
an estimate of the greatest number of proposals that will be included
in the down-select phase. The contracting officer may down-select to a
single offeror.
(2) First phase notice. In the first phase, the Government shall
publish a notice (see 873.108) that solicits responses and that may
provide, as appropriate, a general description of the scope or purpose
of the acquisition and the criteria that will be used to make the
initial down-select decision. The notice may also inform offerors of
the evaluation criteria or process that will be used in subsequent
down-select decisions. The notice must contain sufficient information
to allow potential offerors to make an informed decision about whether
to participate in the acquisition. The notice must advise offerors that
failure to participate in the first phase will make them ineligible to
participate in subsequent phases. The notice may be in the form of a
synopsis in the Governmentwide point of entry (GPE) or a narrative
letter or other appropriate method that contains the information
required by this paragraph.
(3) First phase responses. Offerors shall submit the information
requested in the notice described in paragraph (d)(2) of this section.
Information sought in the first phase may be limited to a statement of
qualifications and other appropriate information (e.g., proposed
technical concept, past performance information, limited pricing
information).
[[Page 3473]]
(4) First phase evaluation and down-select. The Government shall
evaluate all offerors' submissions in accordance with the notice and
make a down-select decision.
(5) Subsequent phases. Additional information shall be sought in
the second phase so that a down-select can be performed or an award
made without exchanges, if necessary. The contracting officer may
conduct exchanges with remaining offeror(s), request proposal
revisions, or request best and final offers, as determined necessary by
the contracting officer, in order to make an award decision.
(6) Debriefing. Without regard to FAR 15.505, contracting officers
must debrief offerors as required by 873.118 when they have been
excluded from the competition.
(e) Alternative negotiation techniques. (1) Contracting officers
may utilize alternative negotiation techniques for the acquisition of
health-care resources. Alternative negotiation techniques may be used
when award will be based on either price or price and other factors.
Alternative negotiation techniques include but are not limited to:
(i) Indicating to offerors a price, contract term or condition,
commercially available feature, and/or requirement (beyond any
requirement or target specified in the solicitation) that offerors will
have to improve upon or meet, as appropriate, in order to remain
competitive.
(ii) Posting offered prices electronically or otherwise (without
disclosing the identity of the offerors) and permitting revisions of
offers based on this information.
(2) Except as otherwise permitted by law, contracting officers
shall not conduct acquisitions under this section in a manner that
reveals the identities of offerors, releases proprietary information,
or otherwise gives any offeror a competitive advantage (see FAR 3.104).
873.112 Evaluation information.
(a) Without regard to FAR 15.304 (except for 15.304(c)(1) and
(c)(3), which do apply to acquisitions under this authority), the
criteria, factors, or other evaluation information that apply to an
acquisition, and their relative importance, are within the broad
discretion of agency acquisition officials as long as the evaluation
information is determined to be in the best interest of the Government.
(b) Price or cost to the Government must be evaluated in every
source selection. Past performance shall be evaluated in source
selections for negotiated competitive acquisitions exceeding the SAT
unless the contracting officer documents that past performance is not
an appropriate evaluation factor for the acquisition.
(c) The quality of the product or service may be addressed in
source selection through consideration of information such as past
compliance with solicitation requirements, technical excellence,
management capability, personnel qualifications, and prior experience.
The information required from quoters, bidders, or offerors shall be
included in notices or solicitations, as appropriate.
(d) The relative importance of any evaluation information included
in a solicitation must be set forth therein.
873.113 Exchanges with offerors.
(a) Without regard to FAR 15.201 or 15.306, negotiated acquisitions
generally involve exchanges between the Government and competing
offerors. Open exchanges support the goal of efficiency in Government
by providing the Government with relevant information (in addition to
that submitted in the offeror's initial proposal) needed to understand
and evaluate the offeror's proposal. The nature and extent of exchanges
between the Government and offerors is a matter of contracting officer
judgment. Clarifications, communications, and discussions, as provided
for in the FAR, are concepts not applicable to acquisitions under this
part 873.
(b) Exchanges with potential offerors may take place throughout the
source selection process. Exchanges may start in the planning stages
and continue through contract award. Exchanges should occur most often
with offerors determined to be in the best value pool (see 873.114).
The purpose of exchanges is to ensure there is mutual understanding
between the Government and the offerors on all aspects of the
acquisition, including offerors' submittals/proposals. Information
disclosed as a result of oral or written exchanges with an offeror may
be considered in the evaluation of an offeror's proposal.
(c) Exchanges may be conducted, in part, to obtain information that
explains or resolves ambiguities or other concerns (e.g., perceived
errors, perceived omissions, or perceived deficiencies) in an offeror's
proposal.
(d) Exchanges shall only be initiated if authorized by the
contracting officer and need not be conducted with all offerors.
(e) Improper exchanges. Except for acquisitions based on
alternative negotiation techniques contained in 873.111(e)(1), the
contracting officer and other Government personnel involved in the
acquisition shall not disclose information regarding one offeror's
proposal to other offerors without consent of the offeror in accordance
with FAR parts 3 and 24.
(f) Award may be made on initial proposals without exchanges if the
solicitation states that the Government intends to evaluate proposals
and make award without exchanges, unless the contracting officer
determines that exchanges are considered necessary.
873.114 Best value pool.
(a) Without regard to FAR 15.306(c), the contracting officer may
determine the most highly rated proposals having the greatest
likelihood of award based on the information or factors and subfactors
in the solicitation. These vendors constitute the best value pool. This
determination is within the sole discretion of the contracting officer.
Competitive range determinations, as provided for in the FAR, are not
applicable to acquisitions under this part 873.
(b) In planning an acquisition, the contracting officer may
determine that the number of proposals that would otherwise be included
in the best value pool is expected to exceed the number at which an
efficient, timely, and economical competition can be conducted. In
reaching such a conclusion, the contracting officer may consider such
factors as the results of market research, historical data from
previous acquisitions for similar services, and the resources available
to conduct the source selection. Provided the solicitation notifies
offerors that the best value pool can be limited for purposes of making
an efficient, timely, and economical award, the contracting officer may
limit the number of proposals in the best value pool to the greatest
number that will permit an efficient competition among the proposals
offering the greatest likelihood of award. The contracting officer may
indicate in the solicitation the estimate of the greatest number of
proposals that will be included in the best value pool. The contracting
officer may limit the best value pool to a single offeror.
(c) If the contracting officer determines that an offeror's
proposal is no longer in the best value pool, the proposal shall no
longer be considered for award. Written notice of this decision must be
provided to unsuccessful offerors at the earliest practicable time.
[[Page 3474]]
873.115 Proposal revisions.
(a) Without regard to FAR 15.307, the contracting officer may
request proposal revisions as often as needed during the proposal
evaluation process at any time prior to award from vendors remaining in
the best value pool. Proposal revisions shall be submitted in writing.
The contracting officer may establish a common cutoff date for receipt
of proposal revisions. Contracting officers may request best and final
offers. In any case, contracting officers and acquisition team members
must safeguard proposals, and revisions thereto, to avoid unfair
dissemination of an offeror's proposal.
(b) If an offeror initially included in the best value pool is no
longer considered to be among those most likely to receive award after
submission of proposal revisions and subsequent evaluation thereof, the
offeror may be eliminated from the best value pool without being
afforded an opportunity to submit further proposal revisions.
(c) Requesting and/or receiving proposal revisions do not
necessarily conclude exchanges. However, requests for proposal
revisions should advise offerors that the Government may make award
without obtaining further revisions.
873.116 Source selection decision.
(a) An integrated comparative assessment of proposals should be
performed before source selection is made. The contracting officer
shall independently determine which proposal(s) represents the best
value, consistent with the evaluation information or factors and
subfactors in the solicitation, and that the prices are fair and
reasonable. The contracting officer may determine that all proposals
should be rejected if it is in the best interest of the Government.
(b) The source selection team, or advisory boards or panels, may
conduct comparative analysis(es) of proposals and make award
recommendations, if the contracting officer requests such assistance.
(c) The source selection decision must be documented in accordance
with FAR 15.308.
873.117 Award to successful offeror.
(a) The contracting officer shall award a contract to the
successful offeror by furnishing the contract or other notice of the
award to that offeror.
(b) If a request for proposal (RFP) process was used for the
solicitation and if award is to be made without exchanges, the
contracting officer may award a contract without obtaining the
offeror's signature a second time. The offeror's signature on the offer
constitutes the offeror's agreement to be bound by the offer. If a
request for quotation (RFQ) process was used for the solicitation, and
if the contracting officer determines there is a need to establish a
binding contract prior to commencement of work, the contracting officer
should obtain the offeror's acceptance signature on the contract to
ensure formation of a binding contract.
(c) If the award document includes information that is different
than the latest signed offer, both the offeror and the contracting
officer must sign the contract award.
(d) When an award is made to an offeror for less than all of the
items that may be awarded and additional items are being withheld for
subsequent award, each notice shall state that the Government may make
subsequent awards on those additional items within the offer acceptance
period.
873.118 Debriefings.
Offerors excluded from a request for proposals (RFP) may submit a
written request for a debriefing to the contracting officer. Without
regard to FAR 15.505, preaward debriefings may be conducted by the
contracting officer when determined to be in the best interest of the
Government. Post-award debriefings shall be conducted in accordance
with FAR 15.506.
[FR Doc. 03-1578 Filed 1-23-03; 8:45 am]
BILLING CODE 8320-01-P