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PN 97-24

PROCUREMENT NOTICE


 March 5, 1999

WAIVER OF SUBMISSION OF COST AND PRICING DATA FOR SMALL BUSINESS INNOVATION RESEARCH PHASE II CONTRACTS AND FOR ACQUISITIONS WITH THE CANADIAN COMMERCIAL COPORATION

PURPOSE: To provide a class waiver from the FAR 15.403-4 requirement for the submission of cost or pricing data for Small Business Innovation Research (SBIR) program Phase II contracts, and to delete the end date for the existing waiver of the submission of cost or pricing data for acquisitions with the Canadian Commercial Corporation (CCC). This PN also clarifies the extent to which the assurance provided by the CCC should be relied on.

BACKGROUND: FAR 15.403-4 requires that cost or pricing data be submitted for contract awards and modifications in excess of $500,000 unless one of the exceptions at FAR 15.403-1(b) applies. One of the exceptions listed there is a waiver granted under FAR 15.403-1(c)(4). A waiver may be granted under FAR 15.403-1 (c)(4) by the head of the contracting activity if the price can be determined to be fair and reasonable without the submission of cost or pricing data.

NASA SBIR Phase II contract awards, which are generally limited to $600,000, do not meet the FAR 15.403-1(b) adequate price competition, prices set by law or regulation, or commercial item exceptions. However, a class waiver is considered to be in the Government's interest to promote maximum small business participation in the SBIR program and to increase the number of small businesses participating in Federal R&D contracts. The Government's payment of fair and reasonable prices under SBIR Phase II contracts is ensured without the submission of cost or pricing data by (1) contracting officers having access to adequate information in the offerors' proposals; (2) Phase II proposals being subjected to multiple technical reviews; and (3) contracting officers having the ability under FAR 15.403-5(a)(3) to request information other than cost or pricing data if additional information is needed.

A class waiver for SBIR Phase II contracts would result in consistent practices among NASA centers, thereby eliminating the possible confusion encountered by contractors that deal with more than one center for Phase II contracts. In addition, the value of the cost or pricing data for SBIR Phase II contracts generally has been minimal and has been found to result in delays in awards as the small businesses often cannot provide the data quickly.

The elimination of the end date for the waiver of submission of cost or pricing data from the CCC makes NASA's waiver consistent with the one between the Department of Defense and the CCC. The current rule states that the CCC will provide assurance of the fairness and reasonableness of the proposed prices. This has been interpreted by some to mean that no additional analysis is necessary. This PN clarifies that, while this assurance is to be relied on, it may be necessary to obtain information other than cost or pricing data from subcontractors to the CCC in order to perform any required proposal analysis, including a technical analysis and a cost realism analysis.

REPLACEMENT PAGES: You may use the enclosed pages to replace 15:1, 15:2, 15:15, 15:16, and 15:16.1 (added) of the NFS.

REGULATORY COMPLIANCE: This PN was published as a final rule in the Federal Register (64 FR 10573, March 5, 1999).

EFFECTIVE DATE: This PN is effective as dated and shall remain in effect until cancelled or superseded.

HEADQUARTERS CONTACT: Joseph LeCren, Code HK, (202) 358-0444, joseph.lecren@hq.nasa.gov.

 

Scott Thompson
Director, Contract Management Division


PART 1815

CONTRACTING BY NEGOTIATION

TABLE OF CONTENTS

SUBPART 1815.2 SOLICITATION AND RECEIPT OF PROPOSALS AND INFORMATION

1815.201 Exchanges with industry before receipt of proposals.

1815.203 Requests for proposals.

1815.203-70 Installation reviews.

1815.203-71 Headquarters reviews.

1815.204 Contract format.

1815.204-2 Part I-The Schedule.

1815.204-5 Part IV-Representations and instructions.

1815.204-70 Page limitations.

1815.207 Handling proposals and information.

1815.207-70 Release of proposal information.

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

1815.208 Submission, modification, revision, and withdrawal of proposals.

1815.209 Solicitation provisions and contract clauses.

1815.209-70 NASA solicitation provisions.

SUBPART 1815.3 SOURCE SELECTION

1815.300 Scope of subpart.

1815.300-70 Applicability of subpart.

1815.303 Responsibilities.

1815.304 Evaluation factors and significant subfactors.

1815.304-70 NASA evaluation factors.

1815.305 Proposal evaluation.

1815.305-70 Identification of unacceptable proposals.

1815.305-71 Evaluation of a single proposal.

1815.306 Exchanges with offerors after receipt of proposals.

1815.307 Proposal revisions.

1815.308 Source selection decision.

1815.370 NASA source evaluation boards.

SUBPART 1815.4 CONTRACT PRICING

1815.403 Obtaining cost or pricing data.

1815.403-1 Prohibition on obtaining cost or pricing data.

1815.403-170 Waivers of cost or pricing data.

1815.403-3 Requiring information other than cost or pricing data.

1815.403-4 Requiring cost or pricing data.

1815.404 Proposal analysis.

1815.404-2 Information to support proposal analysis.

1815.404-4 Profit.

1815.404-470 NASA structured approach for profit or fee objective.

1815.404-471 Payment of profit or fee under letter contracts.

1815.406 Documentation.

1815.406-1 Prenegotiation objectives.

1815.406-170 Content of the prenegotiation position memorandum.

1815.406-171 Installation reviews.

1815.406-172 Headquarters reviews.

1815.406-3 Documenting the negotiation.

1815.407 Special cost or pricing areas.

1815.407-2 Make-or-buy programs.

1815.408 Solicitation provisions and contract clauses.

1815.408-70 NASA solicitation provisions and contract clauses.

SUBPART 1815.5 PREAWARD, AWARD, AND POSTAWARD NOTIFICATIONS, PROTESTS, AND MISTAKES

1815.504 Award to successful offeror.

1815.506 Postaward debriefing of offerors.

1815.506-70 Debriefing of offerors - Major System acquisitions.

SUBPART 1815.6 UNSOLICITED PROPOSALS

1815.602 Policy.

1815.604 Agency points of contact.

1815.606 Agency procedures.

1815.606-70 Relationship of unsolicited proposals to NRAs.

1815.609 Limited use of data.

1815.609-70 Limited use of proposals.

1815.670 Foreign proposals.

SUBPART 1815.70 OMBUDSMAN

1815.7001 NASA Ombudsman Program.

1815.7002 Synopses of solicitations and contracts.

1815.7003 Contract clause.

 

PART 1815

CONTRACTING BY NEGOTIATION

Subpart 1815. 2--Solicitation and Receipt of Proposals and Information

1815.201 Exchanges with industry before receipt of proposals.


(2) The presentation shall focus on the significant strengths, deficiencies, and significant weaknesses found in the proposals, the probable cost of each proposal, and any significant issues and problems identified by the SEB. This presentation must explain any applicable special standards of responsibility; evaluation factors, subfactors, and elements; the significant strengths and significant weaknesses of the offerors; the Government cost estimate, if applicable; the offerors' proposed cost/price; the probable cost; the proposed fee arrangements; and the final adjectival ratings and scores to the subfactor level.

(3) Attendance at the presentation is restricted to people involved in the selection process or who have a valid need to know. The designated individuals attending the SEB presentation(s) shall:

(i) Ensure that the solicitation and evaluation processes complied with all applicable agency policies and that the presentation accurately conveys the SEB's activities and findings;

(ii) Not change the established evaluation factors, subfactors, elements, weights, or scoring systems; or the substance of the SEB's findings. They may, however, advise the SEB to rectify procedural omissions, irregularities or inconsistencies, substantiate its findings, or revise the presentation.

(4) The SEB recorder will coordinate the formal presentation including arranging the time and place of the presentation, assuring proper attendance, and distributing presentation material.

(5) For Headquarters selections, the Headquarters Office of Procurement (Code HS) will coordinate the presentation, including approval of attendees. When the Administrator is the SSA, a preliminary presentation should be made to the center director and to the Official-in-Charge of the cognizant Headquarters Program Office.

(i) Recommended SEB presentation format.

(1) Identification of the Acquisition. Identifies the installation, the nature of the services or hardware to be acquired, some quantitative measure including the Government cost estimate for the acquisition, and the planned contractual arrangement. Avoids detailed objectives of the acquisition.

(2) Background. Identifies any earlier phases of a phased acquisition or, as in the case of continuing support services, identifies the incumbent and any consolidations or proposed changes from the existing structure.

(3) Evaluation Factors, Subfactors, and Elements. Explains the evaluation factors, subfactors, and elements, and any special standards of responsibility. Lists the relative order of importance of the evaluation factors and the numerical weights of the Mission Suitability subfactors. Presents the adjectival scoring system used in the Mission Suitability and Past Performance evaluations.

(4) Sources. Indicates the number of offerors solicited and the number of offerors expressing interest (e.g., attendance at a preproposal conference). Identifies the offerors submitting proposals, indicating any small businesses, small disadvantaged businesses, and women-owned businesses.

(5) Summary of Findings. Lists the initial and final Mission Suitability ratings and scores, the offerors' proposed costs/prices, and any assessment of the probable costs. Introduces any clear discriminator, problem, or issue which could affect the selection. Addresses any competitive range determination.

(6) Significant Strengths, Deficiencies, and Significant Weaknesses of Offerors. Summarizes the SEB's findings, using the following guidelines:

(i) Present only the significant strengths, deficiencies, and significant weaknesses of individual offerors.

(ii) Directly relate the significant strengths, deficiencies, and significant weaknesses to the evaluation factors, subfactors, and elements.

(iii) Indicate the results and impact, if any, of discussions and FPRs on ratings and scores.

(7) Final Mission Suitability Ratings and Scores. Summarizes the evaluation subfactors and elements, the maximum points achievable, and the scores of the offerors in the competitive range.

(8) Final Cost/Price Evaluation. Summarizes proposed costs/prices and any probable costs associated with each offeror including proposed fee arrangements. Presents the data as accurately as possible, showing SEB adjustments to achieve comparability. Identifies the SEB's confidence in the probable costs of the individual offerors, noting the reasons for low or high confidence.

(9) Past Performance. Reflects the summary conclusions, supported by specific case data.

(10) Special Interest. Includes only information of special interest to the SSA that has not been discussed elsewhere, e.g., procedural errors or other matters that could affect the selection decision.

(j) A source selection statement shall be prepared in accordance with 1815.308. For installation selections, the installation Chief Counsel or designee will prepare the source selection statement. For Headquarters selections, the Office of General Counsel or designee will prepare the statement.

Subpart 1815.4--Contract Pricing

1815.403 Obtaining cost or pricing data.

1815.403-1 Prohibition on obtaining cost or pricing data.

(b)(1) The adequate price competition exception is applicable to both fixed-price and cost-reimbursement type acquisitions. Contracting officers shall assume that all competitive acquisitions qualify for this exception.

(c)(4) Waivers of the requirement for submission of cost or pricing data shall be prepared in accordance with FAR 1.704. A copy of each waiver shall be sent to the Headquarters Office of Procurement (Code HK).

1815.403-170 Waivers of cost or pricing data.

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

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

1815.403-3 Requiring information other than cost or pricing data.

(b) As indicated in 1815.403-1(b)(1), the adequate price competition exception applies to all competitive acquisitions. For other than firm-fixed-price competitions, only the minimum information other than cost or pricing data necessary to ensure price reasonableness and assess cost realism should be requested. For firm-fixed-price competitions, the contracting officer shall