[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR15.306]



[Page 265-267]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 15_CONTRACTING BY NEGOTIATION--Table of Contents

 

                      Subpart 15.3_Source Selection

 

Sec. 15.306  Exchanges with offerors after receipt of proposals.



    (a) Clarifications and award without discussions. (1) Clarifications 

are limited exchanges, between the Government and offerors, that may 

occur when award without discussions is contemplated.

    (2) If award will be made without conducting discussions, offerors 

may be given the opportunity to clarify certain aspects of proposals 

(e.g., the relevance of an offeror's past performance information and 

adverse past performance information to which the offeror has not 

previously had an opportunity to respond) or to resolve minor or 

clerical errors.

    (3) Award may be made without discussions if the solicitation states 

that the Government intends to evaluate proposals and make award without 

discussions. If the solicitation contains such a notice and the 

Government determines it is necessary to conduct discussions, the 

rationale for doing so shall be documented in the contract file (see the 

provision at 52.215-1) (10 U.S.C. 2305(b)(4)(A)(ii) and 41 U.S.C. 

253b(d)(1)(B)).

    (b) Communications with offerors before establishment of the 

competitive range. Communications are exchanges, between the Government 

and offerors, after receipt of proposals, leading to establishment of 

the competitive range. If a competitive range is to be established, 

these communications--

    (1) Shall be limited to the offerors described in paragraphs 

(b)(1)(i) and (b)(1)(ii) of this section and--

    (i) Shall be held with offerors whose past performance information 

is the determining factor preventing them from being placed within the 

competitive range. Such communications shall address adverse past 

performance information to which an offeror has not had a prior 

opportunity to respond; and

    (ii) May only be held with those offerors (other than offerors under 

paragraph (b)(1)(i) of this section) whose exclusion from, or inclusion 

in, the competitive range is uncertain;

    (2) May be conducted to enhance Government understanding of 

proposals; allow reasonable interpretation of the proposal; or 

facilitate the Government's evaluation process. Such communications 

shall not be used to cure proposal deficiencies or material omissions, 

materially alter the technical or cost elements of the proposal, and/or 

otherwise revise the proposal. Such communications may be considered in 

rating proposals for the purpose of establishing the competitive range;

    (3) Are for the purpose of addressing issues that must be explored 

to determine whether a proposal should be placed in the competitive 

range. Such communications shall not provide an opportunity for the 

offeror to revise its proposal, but may address--

    (i) Ambiguities in the proposal or other concerns (e.g., perceived 

deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); 

and

    (ii) Information relating to relevant past performance; and

    (4) Shall address adverse past performance information to which the 

offeror has not previously had an opportunity to comment.

    (c) Competitive range. (1) Agencies shall evaluate all proposals in 

accordance with 15.305(a), and, if discussions are to be conducted, 

establish the competitive range. Based on the ratings of each proposal 

against all evaluation criteria, the contracting officer shall establish 

a competitive range comprised of all of the most highly rated proposals, 

unless the range is further reduced for purposes of efficiency pursuant 

to paragraph (c)(2) of this section.



[[Page 266]]



    (2) After evaluating all proposals in accordance with 15.305(a) and 

paragraph (c)(1) of this section, the contracting officer may determine 

that the number of most highly rated proposals that might otherwise be 

included in the competitive range exceeds the number at which an 

efficient competition can be conducted. Provided the solicitation 

notifies offerors that the competitive range can be limited for purposes 

of efficiency (see 52.215-1(f)(4)), the contracting officer may limit 

the number of proposals in the competitive range to the greatest number 

that will permit an efficient competition among the most highly rated 

proposals (10 U.S.C. 2305(b)(4) and 41 U.S.C. 253b(d)).

    (3) If the contracting officer, after complying with paragraph 

(d)(3) of this section, decides that an offeror's proposal should no 

longer be included in the competitive range, the proposal shall be 

eliminated from consideration for award. Written notice of this decision 

shall be provided to unsuccessful offerors in accordance with 15.503.

    (4) Offerors excluded or otherwise eliminated from the competitive 

range may request a debriefing (see 15.505 and 15.506).

    (d) Exchanges with offerors after establishment of the competitive 

range. Negotiations are exchanges, in either a competitive or sole 

source environment, between the Government and offerors, that are 

undertaken with the intent of allowing the offeror to revise its 

proposal. These negotiations may include bargaining. Bargaining includes 

persuasion, alteration of assumptions and positions, give-and-take, and 

may apply to price, schedule, technical requirements, type of contract, 

or other terms of a proposed contract. When negotiations are conducted 

in a competitive acquisition, they take place after establishment of the 

competitive range and are called discussions.

    (1) Discussions are tailored to each offeror's proposal, and must be 

conducted by the contracting officer with each offeror within the 

competitive range.

    (2) The primary objective of discussions is to maximize the 

Government's ability to obtain best value, based on the requirement and 

the evaluation factors set forth in the solicitation.

    (3) At a minimum, the contracting officer must, subject to 

paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or 

discuss with, each offeror still being considered for award, 

deficiencies, significant weaknesses, and adverse past performance 

information to which the offeror has not yet had an opportunity to 

respond. The contracting officer also is encouraged to discuss other 

aspects of the offeror's proposal that could, in the opinion of the 

contracting officer, be altered or explained to enhance materially the 

proposal's potential for award. However, the contracting officer is not 

required to discuss every area where the proposal could be improved. The 

scope and extent of discussions are a matter of contracting officer 

judgment.

    (4) In discussing other aspects of the proposal, the Government may, 

in situations where the solicitation stated that evaluation credit would 

be given for technical solutions exceeding any mandatory minimums, 

negotiate with offerors for increased performance beyond any mandatory 

minimums, and the Government may suggest to offerors that have exceeded 

any mandatory minimums (in ways that are not integral to the design), 

that their proposals would be more competitive if the excesses were 

removed and the offered price decreased.

    (5) If, after discussions have begun, an offeror originally in the 

competitive range is no longer considered to be among the most highly 

rated offerors being considered for award, that offeror may be 

eliminated from the competitive range whether or not all material 

aspects of the proposal have been discussed, or whether or not the 

offeror has been afforded an opportunity to submit a proposal revision 

(see 15.307(a) and 15.503(a)(1)).

    (e) Limits on exchanges. Government personnel involved in the 

acquisition shall not engage in conduct that--

    (1) Favors one offeror over another;

    (2) Reveals an offeror's technical solution, including unique 

technology, innovative and unique uses of commercial items, or any 

information that



[[Page 267]]



would compromise an offeror's intellectual property to another offeror;

    (3) Reveals an offerors price without that offeror's permission. 

However, the contracting officer may inform an offeror that its price is 

considered by the Government to be too high, or too low, and reveal the 

results of the analysis supporting that conclusion. It is also 

permissible, at the Government's discretion, to indicate to all offerors 

the cost or price that the Government's price analysis, market research, 

and other reviews have identified as reasonable (41 U.S.C. 

423(h)(1)(2));

    (4) Reveals the names of individuals providing reference information 

about an offeror's past performance; or

    (5) Knowingly furnishes source selection information in violation of 

3.104 and 41 U.S.C. 423(h)(1)(2).



[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 65369, Dec. 18, 2001]