[Code of Federal Regulations]

[Title 48, Volume 4]

[Revised as of October 1, 2006]

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

[CITE: 48CFR315.305]



[Page 33-37]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                  CHAPTER 3--HEALTH AND HUMAN SERVICES

 

PART 315_CONTRACTING BY NEGOTIATION--Table of Contents

 

                     Subpart 315.3_Source Selection

 

Sec. 315.305  Proposal evaluation.





    (a)(1) Cost or price evaluation. The contracting officer shall 

evaluate business proposals adhering to the requirements for cost or 

price analysis included in FAR 15.404. The contracting officer must 

determine the extent of analysis in each case depending on the amount of 

the proposal, the technical complexity, and related cost or price. The 

contracting officer should request the project officer to analyze items 

such as the number of labor hours proposed for various labor categories; 

the mix of labor hours and categories of labor in relation to the 

technical requirements of the project; the kinds and quantities of 

material, equipment, and supplies; types, numbers and hours/days of 

proposed consultants; logic of proposed subcontracting; analysis of the 

travel proposed including number of trips, locations, purpose, and 

travelers; and kinds and quantities of information technology. The 

project officer



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shall provide his/her opinion as to whether these elements are necessary 

and reasonable for efficient contract performance. Exceptions to 

proposed elements shall be supported by adequate rationale to allow for 

effective negotiations or award if discussions are not conducted. The 

contracting officer should also request the assistance of a cost/price 

analyst when considered necessary. In all cases, the negotiation 

memorandum must include the rationale used in determining that the price 

or cost is fair and reasonable.

    (2) Past performance evaluation. When evaluating past performance, 

the contracting officer is responsible for conducting reference checks 

to obtain information concerning the performance history of offerors. 

The contracting officer may require the assistance of the project 

officer as well as other Government technical personnel in performing 

this function.

    (3) Technical evaluation. (i) Technical evaluation plan. (A) A 

technical evaluation plan may be required by the contracting officer, at 

his/her discretion, when an acquisition is sufficiently complex as to 

warrant a formal plan.

    (B) The technical evaluation plan should include at least the 

following:

    (1) A list of recommended technical evaluation panel members, their 

organizations, a list of their major consulting clients (if applicable), 

their qualifications, and curricula vitae (if applicable);

    (2) A justification for using non-Government technical evaluation 

panel members. (Justification is not required if non-Government 

evaluators will be used in accordance with standard contracting activity 

procedures or policies);

    (3) A statement that there is no apparent or actual conflict of 

interest regarding any recommended panel member;

    (4) A copy of each rating sheet, approved by the contracting 

officer, to be used to assure consistency with the evaluation criteria; 

and

    (5) A brief description of the general evaluation approach.

    (C) The technical evaluation plan must be signed by an official 

within the program office in a position at least one level above the 

project officer, or in accordance with contracting activity procedures.

    (D) The technical evaluation plan should be submitted to the 

contracting officer for review and approval before the solicitation is 

issued. The contracting officer shall make sure that the significant 

factors and subfactors relating to the evaluation are reflected in the 

evaluation criteria when conducting the review of the plan.

    (ii) Technical evaluation panel.

    (A) General. (1) A technical evaluation panel is required for all 

acquisitions subject to this subpart which are expected to exceed 

$500,000 and in which technical evaluation is considered a key element 

in the award decision. The contracting officer has the discretion to 

require a technical evaluation panel for acquisitions not exceeding 

$500,000 based on the complexity of the acquisition.

    (2) The technical evaluation process requires careful consideration 

regarding the size, composition, expertise, and function of the 

technical evaluation panel. The efforts of the panel can result in the 

success or failure of the acquisition.

    (B) Role of the project officer. (1) The project officer is the 

contracting officer's technical representative for the acquisition 

action. The project officer may be a voting member of the technical 

evaluation panel, and may also serve as the chairperson of the panel, 

unless he/she is prohibited by law or contracting activity procedures to 

do so.

    (2) The project officer is responsible for recommending panel 

members who are knowledgeable in the technical aspects of the 

acquisition and who are competent to identify strengths and weaknesses 

of the various proposals. The program training requirements specified in 

307.170 must be adhered to when selecting prospective panel members 

(government employees).

    (3) The project officer shall ensure that persons possessing 

expertise and experience in addressing issues relative to sex, race, 

national origin, and handicapped discrimination are included as panel 

members in acquisitions which address those issues. The intent is to 

balance the composition of the panel so



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that qualified and concerned individuals may provide insight to other 

panel members regarding ideas for, and approaches to be taken in, the 

evaluation of proposals.

    (4) The project officer is to submit the recommended list of panel 

members to an official within the program office in a position at least 

one level above the project officer, or in accordance with contracting 

activity procedures. This official will review the recommendations and 

select the chairperson.

    (5) The project officer shall arrange for adequate and secure 

working space for the panel.

    (C) Role of the contracting officer. (1) The term ``contracting 

officer,'' as used in this subpart, may be the contracting officer or 

his/her designated representative within the contracting office.

    (2) The contracting officer shall not serve as a member of the 

technical evaluation panel but should be available to:

    (i) Address the initial meeting of the technical evaluation panel;

    (ii) Provide assistance to the evaluators as required; and

    (iii) Ensure that the scores adequately reflect the written 

technical report comments.

    (D) Conflict of interest. (1) If a panel member has an actual or 

apparent conflict of interest related to a proposal under evaluation, 

he/she shall be removed from the panel and replaced with another 

evaluator. If a suitable replacement is not available, the panel shall 

perform the review without a replacement.

    (2) For the purposes of this subpart, conflicts of interest are 

defined in the Standards of Ethical Conduct for Employees of the 

Executive Branch (5 CFR part 2635), Supplemental Standards of Ethical 

Conduct for Employees of the Department of Health and Human Services (5 

CFR part 5501), and the Procurement Integrity Act. For outside 

evaluators serving on the technical evaluation panel, see paragraph 

(a)(3)(ii)(F) of this section.

    (E) Continuity of evaluation process. (1) The technical evaluation 

panel is responsible for evaluating the original proposals, making 

recommendations to the chairperson regarding weaknesses and deficiencies 

of proposals, and, if required by the contracting officer, assisting the 

contracting officer during communications and discussions, and reviewing 

supplemental, revised and/or final proposal revisions. To the extent 

possible, the same evaluators should be available throughout the entire 

evaluation and selection process to ensure continuity and consistency in 

the treatment of proposals. The following are examples of circumstances 

when it would not be necessary for the technical evaluation panel to 

evaluate revised proposals submitted during the acquisition:

    (i) The answers to questions do not have a substantial impact on the 

proposal;

    (ii) Final proposal revisions are not materially different from the 

original proposals; or

    (iii) The rankings of the offerors are not affected because the 

revisions to the proposals are relatively minor.

    (2) The chairperson, with the concurrence of the contracting 

officer, may decide not to have the panel evaluate the revised 

proposals. Whenever this decision is made, it must be fully documented 

by the chairperson and approved by the contracting officer.

    (3) When technical evaluation panel meetings are considered 

necessary by the contracting officer, the attendance of evaluators is 

mandatory. When the chairperson determines that an evaluator's failure 

to attend the meetings is prejudicial to the evaluation, the chairperson 

shall remove and/or replace the individual after discussing the 

situation with the contracting officer and obtaining his/her concurrence 

and the approval of the official responsible for appointing the panel 

members.

    (4) Whenever continuity of the evaluation process is not possible, 

and either new evaluators are selected or a reduced panel is decided 

upon, each proposal which is being reviewed at any stage of the 

acquisition shall be reviewed at that stage by all members of the 

revised panel unless it is impractical to do so because of the receipt 

of an unusually large number of proposals.

    (F) Use of outside evaluators. (1) The National Institutes of Health 

(NIH) and



[[Page 36]]



the Substance Abuse and Mental Health Services Administration (SAMHSA) 

are required to have a peer review of research and development contracts 

in accordance with Public Law 93-352 as amended by Public Law 94-63; 42 

U.S.C. 289 a and 42 U.S.C. 290aa-3 respectively. This legislation 

requires peer review of projects and proposals, and not more than one-

fourth of the members of a peer review group may be officers or 

employees of the United States. NIH and SAMHSA are therefore exempt from 

the provisions of 315.305(a)(3)(ii) to the extent that 42 U.S.C. 289a 

and 290aa-3 apply. Conflicts of interest are addressed at 42 CFR part 

52h. Other agencies subject to statutory scientific peer review 

requirements are also exempt from the requirements of paragraph 

(a)(3)(ii) of this section to the extent that these requirements are 

inconsistent with their legislative requirements.

    (2) In general, decisions to disclose proposals outside the 

Government for evaluation purposes shall be made by the official 

responsible for appointing panel members for the acquisition, after 

consultation with the contracting officer and in accordance with 

operating division procedures. The decision to disclose either a 

solicited or unsolicited proposal outside the Government for the purpose 

of obtaining an evaluation shall take into consideration the avoidance 

of organizational conflicts of interest and any competitive relationship 

between the submitter of the proposal and the prospective evaluator(s).

    (3) When it is determined to disclose a solicited proposal outside 

the Government for evaluation purposes, the following or similar 

conditions shall be included in the written agreement with evaluator(s) 

prior to disclosure:



                   Conditions for Evaluating Proposals



    The evaluator agrees to use the data (trade secrets, business data, 

and technical data) contained in the proposal only for evaluation 

purposes.

    The foregoing requirement does not apply to data obtained from 

another source without restriction.

    Any notice or legend placed on the proposal by either the Department 

or the submitter of the proposal shall be applied to any reproduction or 

abstract provided to the evaluator or made by the evaluator. Upon 

completion of the evaluation, the evaluator shall return the Government 

furnished copy of the proposal or abstract, and all copies thereof, to 

the Departmental office which initially furnished the proposal for 

evaluation.

    Unless authorized by the Department's initiating office, the 

evaluator shall not contact the submitter of the proposal concerning any 

aspects of its contents.

    The evaluator is obligated to obtain commitments from its employees 

and subcontractors, as necessary, to effect the purposes of these 

conditions.



    (iii) Receipt of proposals.

    (A) After the closing date set by the solicitation for the receipt 

of proposals, the contracting officer will use a transmittal memorandum 

to forward the technical proposals to the project officer or chairperson 

for evaluation. The business proposals will be retained by the 

contracting officer for evaluation.

    (B) The transmittal memorandum shall include at least the following:

    (1) A list of the names of the organizations submitting proposals;

    (2) A reference to the need to preserve the integrity of the source 

selection process;

    (3) A statement that only the contracting officer is to conduct 

discussions.

    (4) A requirement for a technical evaluation report in accordance 

with paragraph (a)(3)(vi) of this section; and

    (5) The establishment of a date for receipt of the technical 

evaluation report.

    (iv) Convening the technical evaluation panel.

    (A) Normally, the technical evaluation panel will convene to 

evaluate the proposals. However, there may be situations when the 

contracting officer determines that it is not feasible for the panel to 

convene. Whenever this decision is made, care must be taken to assure 

that the technical review is closely monitored to produce acceptable 

results.

    (B) When a panel is convened, the chairperson is responsible for the 

control of the technical proposals provided to him/her by the 

contracting officer for use during the evaluation process. The 

chairperson will generally distribute the technical proposals prior to



[[Page 37]]



the initial panel meeting and will establish procedures for securing the 

proposals whenever they are not being evaluated to insure their 

confidentiality. After the evaluation is complete, all proposals must be 

returned to the contracting officer by the chairperson.

    (C) The contracting officer shall address the initial meeting of the 

panel and state the basic rules for conducting the evaluation. The 

contracting officer shall provide written guidance to the panel if he/

she is unable to attend the initial panel meeting. The guidance should 

include:

    (1) Explanation of conflicts of interest;

    (2) The necessity to read and understand the solicitation, 

especially the statement of work and evaluation criteria, prior to 

reading the proposals;

    (3) The need for evaluators to restrict the review to only the 

solicitation and the contents of the technical proposals;

    (4) The need for each evaluator to review all the proposals;

    (5) The need to watch for ambiguities, inconsistencies, errors, and 

deficiencies which should be surfaced during the evaluation process;

    (6) An explanation of the evaluation process and what will be 

expected of the evaluators throughout the process;

    (7) The need for the evaluators to be aware of the requirement to 

have complete written documentation of the individual strengths and 

weaknesses which affect the scoring of the proposals; and

    (8) An instruction directing the evaluators that, until the award is 

made, information concerning the acquisition must not be disclosed to 

any person not directly involved in the evaluation process.

    (v) Rating and ranking of proposals. The evaluators will 

individually read each proposal, describe tentative strengths and 

weaknesses, and independently develop preliminary scores in relation to 

each evaluation factor set forth in the solicitation. After this has 

been accomplished, the evaluators shall discuss in detail the individual 

strengths and weakness described by each evaluator and, if possible, 

arrive at a common understanding of the major strengths and weaknesses 

and the potential for correcting each offeror's weakness(es). Each 

evaluator will score each proposal, and then the technical evaluation 

panel will collectively rank the proposals. Generally, ranking will be 

determined by adding the numerical scores assigned to the evaluation 

factors and finding the average for each offeror. The evaluators should 

then identify whether each proposal is acceptable or unacceptable. 

Predetermined cutoff scores shall not be employed.

    (vi) Technical evaluation report. A technical evaluation report 

shall be prepared and furnished to the contracting officer by the 

chairperson and maintained as a permanent record in the contract file. 

The report must reflect the ranking of the proposals and identify each 

proposal as acceptable or unacceptable. The report must also include a 

narrative evaluation specifying the strengths and weaknesses of each 

proposal, a copy of each signed rating sheet, and any reservations, 

qualifications, or areas to be addressed that might bear upon the 

selection of sources for negotiation and award. Concrete technical 

reasons supporting a determination of unacceptability with regard to any 

proposal must be included. The report should also include specific 

points and questions which are to be raised in discussions or 

negotiations.