PART
1817
SPECIAL CONTRACTING METHODS
TABLE OF
CONTENTS
SUBPART 1817.1
MULTIYEAR CONTRACTING
1817.105 Policy.
1817.105-1 Uses.
SUBPART 1817.2 OPTIONS
1817.200 Scope of subpart.
1817.203 Solicitations.
1817.204 Contracts.
1817.206 Evaluation.
1817.207 Exercise of options.
1817.207-70 Analysis to support exercise of options.
1817.208 Solicitation provisions and contract clauses.
SUBPART 1817.4
LEADER COMPANY CONTRACTING
1817.401 General.
SUBPART 1817.5
INTERAGENCY ACQUISITIONS UNDER THE ECONOMY ACT
1817.500
Scope of subpart.
SUBPART 1817.70
ACQUISITIONS WITH MILITARY DEPARTMENTS
1817.7000 Scope of subpart.
1817.7001 Authorization and policy.
1817.7002 NASA-Defense Purchase Request and acceptance.
1817.7002-1 Acceptance by Military Department.
1817.7002-2 Changes in estimated total prices.
1817.7002-3 Payments.
1817.7002-4 Contract clause.
SUBPART 1817.71
EXCHANGE OR SALE OF PERSONAL PROPERTY
1817.7101 Policy.
SUBPART
1817.72 INTERAGENCY TRANSACTIONS
1817.7201
Policy.
1817.7202 Determinations
and findings requirements.
1817.7203 Ordering
procedures.
SUBPART 1817.73
PHASED ACQUISITION
1817.7300 Definitions.
1817.7301 Down-selections in phased
acquisitions.
1817.7301-1 Pre-solicitation planning.
1817.7301-2 Evaluation factors.
1817.7301-3 Down-selection milestones.
1817.7301-4 Synopsis.
1817.7301-5 Progressive competition.
1817.7302
Contract clauses.
PART
1817
SPECIAL
CONTRACTING METHODS
Subpart 1817.1--Multiyear
Contracting
1817.105
Policy.
1817.105-1
Uses.
(b) The Assistant Administrator for Procurement
(Code HS) is the approval authority for the use of the multiyear contracting
technique. Requests for approval shall
be signed by the procurement officer and shall include a description of the
acquisition, identification of anticipated contract costs and funding, and a
determination, with supporting rationale, that each of the criteria in FAR 17.105-1(b) is met by
the proposed use of multiyear contracting.
Subpart 1817.2--Options
1817.200
Scope of subpart.
FAR Subpart 17.2 applies to all NASA contracts.
1817.203
Solicitations.
(g)(2) The procurement officer is authorized to
approve option quantities greater than 50 percent.
1817.204 Contracts.
(e)(i) The
5-year limitation (basic plus option periods) applies to all NASA
contracts regardless of type and other procurement award instruments. This includes agreements (e.g. basic
ordering agreements, blanket purchase agreements), interagency acquisitions,
and orders placed under agreements or awarded under a Federal
Supply Schedule or other indefinite delivery/indefinite quantity contracts
awarded by other agencies.
(ii) When the performance
period exceeds 5 years (exclusive of options), the program/project office and
the contracting officer shall review the requirement at the
mid-point of the performance period to ensure that the products or services
continue to fulfill NASA’s mission needs and that the procurement award
instrument continues to provide the best means of satisfying the requirement.
(iii) Requests
for deviations from the 5-year limitation policy shall be sent to the Assistant
Administrator for Procurement (Code HS) and shall include justification for
exceeding five years. The justification
shall discuss planned future assessment of continued performance either
prior to exercise of options or at the mid-term of a basic contract with no
options. Evidence shall also be
included showing that the extended years can be reasonably priced.
1817.206
Evaluation.
(b)(i) The
procurement officer is the approval authority for determinations by the
contracting officer not to evaluate offers for any option quantities or
periods.
(ii) Unless a determination has been approved under 1817.206(b)(i), the
selection statement for each acquisition involving an option shall address the
source selection authority's consideration of the option as part of the initial
competition.
1817.207
Exercise of options.
(c)(2)
In addition to determining the option fulfills an existing need, the
contracting officer shall determine that there is no change in the scope of the
option requirements.
(f) Options
under cost type contracts shall contain an estimated cost for the option
period(s).
(f)(2) Use
of the provision (or formula) for determining the price of a fixed price option
requires advance approval by the Assistant Administrator for Procurement (Code
HS).
(f)(3)(ii) Use of a formula to determine the fee of an
option in a cost-type contract requires advance approval of the Assistant
Administrator for Procurement (Code HS).
The formula shall preclude the contractor from increasing costs for the
purpose of earning additional fee.
1817.207-70 Analysis to support exercise of options.
(a) The contracting officer’s determination that
exercise of the option is the most advantageous method of fulfilling the
requirement shall be based on input and information from the requiring
organization. The contracting officer
and the requiring organization shall ensure that analysis sufficient to support
the determination that option exercise is the most advantageous method is
completed in advance of providing the notice to the contractor required by FAR
17.207(a). Sufficient time shall
remain in the performance period to allow the acquisition team to pursue
appropriate alternative approaches with minimal impact to the program or
project in terms of technical, cost, or schedule risk should the analysis
conclude that the best programmatic path is not exercising the option.
(b) The analysis required to support the option
exercise determination must include consideration of other factors in addition
to price. In addition to the other
factors contained in FAR 17.207(e), the determination to exercise the option
should include, but is not limited to, consideration of --
(1)
The contractor’s performance in satisfying contract requirements, for example,
receiving positive performance ratings (see subpart 1842.15) and the
contractor’s level of success in implementing and maintaining small business
programs (including mentoring arrangements), which were evaluated as part of
the source selection process and incorporated into the awarded contract; and
(2) The results of market
research activities to identify any technical, engineering or scientific
advances that offer programmatic benefits or performance improvements beyond
those that are contractually available under the option to be exercised.
1817.208
Solicitation provisions and contract clauses.
(c)(3) The
contracting officer shall insert a provision substantially the same as FAR 52.217-5 in cost
reimbursement contracts when the other conditions of FAR 17.208(c) are met.
Subpart 1817.4--Leader
Company Contracting
1817.401
General.
It is NASA
policy not to use the leader company contracting technique.
Subpart 1817.5--Interagency
Acquisitions Under the Economy Act
1817.500
Scope of subpart.
(b) See 1817.72.
Subpart 1817.70
--Acquisitions with Military Departments
1817.7000
Scope of subpart.
This
subpart contains policies and procedures, developed jointly by NASA and DOD,
for acquisition of supplies or services by NASA from or through the Military
Departments.
1817.7001
Authorization and policy.
(a) NASA
is authorized by the National
Aeronautics and Space Act of 1958 (42 U.S.C. 2451 et seq.) to use the acquisition
services, personnel, equipment, and facilities of the Military Departments,
with their consent and with or without reimbursement, and, on a similar basis,
to cooperate with the Military Departments in the use of acquisition services,
equipment, and facilities.
(b) The Military Departments have agreed to
cooperate fully with NASA in making their acquisition services, equipment,
personnel, and facilities available on the basis of mutual agreement.
(c) The Military Departments have agreed not to
claim reimbursement for administrative costs incident to acquisitions for NASA,
except as may be otherwise agreed before the services are performed.
(d) When procuring supplies or services for NASA
or performing field service functions in support of NASA contracts, the Military
Departments have agreed to use their own methods, except when otherwise
required by the terms of the agreement involved.
(e) The Military Departments normally will use
their own funds when procuring supplies or services or performing services for
NASA, and will not cite NASA funds on any Defense obligation or payment
document.
1817.7002
NASA-Defense Purchase Request and acceptance.
(a) The NASA-Defense Purchase Request (NASA Form
523) shall be used by NASA contracting offices for requesting acquisition of
supplies or services from all activities of the Military Departments. Individual NASA-Defense Purchase Requests
shall be prepared in accordance with the instructions on the reverse of NASA
Form 523 and shall be numbered in accordance with Subpart 1804.71. The
form shall not be used for requesting --
(1)
Block transfers of excess property between NASA and the Military Departments;
(2)
Performance by the Military Departments of field service functions related to
NASA contracts; or
(3)
Items that the Military Departments normally purchase and stock for military
use or in-house services, except when a DOD activity is willing to accept the
form for these purposes. Supplies and
services of this nature may be requisitioned using appropriate DOD forms when
they are provided by and are acceptable to or preferred by the Military
Department supplying activity or as otherwise mutually agreed upon by the
parties.
(b) Include a provision in accordance with
1817.7203.
(c) To obtain materials from the Air Force Missile
Procurement Fund, the contracting officer shall follow the procedures of 1808.002-72.
1817.7002-1
Acceptance by Military Department.
(a) Except
as provided in paragraph (c) of this section, the Military Department concerned
will, within 30 days after receipt of a NASA-Defense Purchase Request, forward
to the initiator of the request an Acceptance of MIPR, DD Form 448-2. Each DD Form 448-2 will show the action
being taken to fill the requirement and the name and complete address of the
DOD contracting activity.
(b) To the
extent feasible, all documents (including acceptances, contracts,
correspondence, shipping documents, work or project orders, and Standard Form
1080 (Voucher for Transfer between Appropriations and/or Funds) billings) will
reference the NASA-Defense Purchase Request number and the item number.
(c)
Acceptance by the Military Department is not required for NASA-Defense Purchase
Requests covering deliveries of common-use standard-stock items that the
supplying agency has on hand or on order for prompt delivery at published
prices.
1817.7002-2
Changes in estimated total prices.
When a
Military Department determines that the estimated total price (Block 7, NASA
Form 523) of the items to be acquired for NASA is not sufficient to cover the
required reimbursement or is in excess of the amount required, a request for an
amendment will be forwarded to the NASA originating office. The request will indicate a specific dollar
amount, rather than a percentage, and will include justification for any upward
adjustment requested. Upon approval of the request, the cognizant NASA
contracting office shall forward to the DOD contracting activity an amendment
to the NASA Defense Purchase Request.
1817.7002-3
Payments.
Except
when agreements provide that reimbursement is not required, payments to the
Military Departments shall be made by NASA office designated in block 9 of the
NASA-Defense Purchase Request upon receipt of Standard Form 1080. Billings will be supported in the same
manner as billings between Military Departments.
1817.7002-4
Contract clause.
The
contracting officer shall insert the clause at 1852.217-70, Property Administration and Reporting, in any
NASA-Defense Purchase Request when property will be involved.
Subpart 1817.71--Exchange
or Sale of Personal Property
1817.7101
Policy.
(a)
Section 201(c) of the Federal Property and Administrative Services Act of 1949,
63 Stat. 384, as amended (40 U.S.C. 481(c)), authorizes the exchange or sale of
Government personal property and the application of the exchange allowance or
proceeds from sale to the acquisition of similar property for replacement
purposes. The transaction must be
evidenced in writing.
(b) NASA
installations and contractors are authorized to conduct exchange/sale
transactions as long as the requirements and restrictions of NPG 4300.1 and
the Federal Property Management Regulations, Subchapter H, part 101-46, are
followed. In conducting such exchanges/sales, NASA contractors must obtain the
contracting officer's prior written approval and must report the transactions
to the cognizant NASA installation Property Disposal Officer (PDO).
Subpart 1817.72--Interagency Transactions
1817.7201 Policy.
(a) The Space
Act (42 U.S.C. 2473) applies to NASA interagency acquisitions except those for
the NASA Office of Inspector General acquired under the authority of the
Inspector General Act of 1978 (5 US.C. Appendix III). NASA has elected to conform its implementation of the Space Act
and the Inspector General Act to the requirements of the Economy Act (see FAR
17.5).
(b)
Individual orders or successive non-competitive interagency orders for the same
requirement with the same servicing agency shall not exceed five years.
(c) Requests
for deviation from the five year limitation in paragraph (b) of this section
shall require the approval of the Center Director if the estimated value of the
order is $5 million or less, or the Assistant Administrator for Procurement
(Code HS) if the estimated value of the order exceeds $5 million. Requests for deviation shall address:
(1)
Why more than five years is required;
(2)
Why the work must be performed by the same servicing agency; and
(3)
How long beyond the current order the requirement is expected to continue.
1817.7202 Determinations and
findings requirements.
(a) Interagency acquisitions shall be supported
by a Determination and Finding (D&F) equivalent to that required for
Economy Act transactions (see FAR 17.503).
This requirement applies to all purchases of goods or services under
contracts entered into or administered by agencies other than NASA including
the Military Departments. The Space Act
shall be cited as authority for all NASA interagency acquisitions except that
the Inspector General Act shall be cited as the authority for interagency
acquisitions for the NASA Office of Inspector General.
(b) To satisfy the D&F requirement
identified in FAR 17.503(a)(2), current
market prices, recent acquisition prices, or prices obtained by informational
submissions as provided in FAR 15.201
may be used to ascertain whether the acquisition can be accomplished more
economically from commercial sources.
(c) In addition to
the requirements in FAR 17.503, the D&F must identify the period of
performance and whether the acquisition is a non-competitive follow-on for the
same services from the same servicing agency.
(See 1817.7201(b).)
(d) The determination described in paragraph (a)
of this section is not required for contracts awarded under the Space Act to
Government agencies pursuant to a Broad Agency Announcement when a review of
the acquisition records would make it obvious that the award is not being used
as a method of circumventing regulatory or statutory requirements, particularly
FAR Part 6, Competition Requirements (e.g., when a significant number and value
of awards made under the BAA are made to entities other than Government
agencies).
(e)
All D&F’s for a servicing agency not covered by the FAR shall be
approved by the Assistant Administrator for Procurement.
1817.7203 Ordering procedures.
To satisfy the ordering procedures in FAR
17.504(b)(4), all payment provisions shall require the servicing agency or
department to submit a final voucher, invoice, or other appropriate payment
document within six months after the completion date of the order. A different period may be specified by
mutual agreement if six months is not sufficient.
Subpart 1817.73--Phased Acquisition
1817.7300
Definitions.
(a) Down-selection. In a phased acquisition, the process of
selecting contractors for later phases from among the preceding phase
contractors.
(b) Phased
Acquisition. An incremental acquisition implementation
comprised of several distinct phases where the realization of program/project
objectives requires a planned, sequential acquisition of each phase. The phases may be acquired separately, in
combination, or through a down-selection strategy.
(c) Progressive Competition. A type of down-selection strategy for a
phased acquisition. In this method, a
single solicitation is issued for all phases of the program. The initial phase
contracts are awarded, and the contractors for subsequent phases are expected
to be chosen through a down-selection from among the preceding phase
contractors. In each phase,
progressively fewer contracts are awarded until a single contractor is chosen
for the final phase. Normally, all
down-selections are accomplished without issuance of a new, formal
solicitation.
1817.7301
Down-selections in phased acquisitions.
1817.7301-1
Pre-solicitation planning.
(a) The
rationale for the use of the down-selection technique shall be thoroughly
justified in the acquisition planning requirement. Because the initial phase solicitation will also lead to
subsequent phase award(s), the decision to use a down-selection strategy must
be made prior to release of the initial solicitation. Accordingly, all phases must be addressed in the initial
acquisition strategy planning and documented in the acquisition plan or ASM
minutes.
(b) If
there is no direct link between successful performance in the preceding phase
and successful performance in a subsequent phase, down-selection is
inappropriate. In this case, the phases should be contracted for separately
without a down-selection.
(c) With
one exception, both the initial and subsequent phase(s) of an acquisition
down-selection process are considered to be full and open competition if the
procedures in 1817.7301-4 and 1817.7301-5 (if using the progressive competition
technique) are followed. If only one
contractor successfully completed a given phase and no other offers are
solicited for the subsequent phase, award of the subsequent phase may be made
only if justified by one of the exceptions in FAR 6.302 or one of
the exclusions in FAR 6.2, and only after compliance with the synopsis
requirements of FAR 5.202 and 5.205 and 1804.570-2.
1817.7301-2
Evaluation factors.
A separate
set of evaluation factors must be developed for each phase in a down-selection
competition. Since these competitive down-selection
strategies anticipate that a preceding phase contractor will be the subsequent
phase contractor, the evaluation factors for initial phase award must
specifically include evaluation of the offerors’ abilities to perform all
phases.
1817.7301-3
Down-selection milestones.
(a) When sufficient programmatic and technical
information is available to all potential offerors, proposal evaluation and
source selection activities need not be delayed until completion of a given
phase. These activities should commence
as early as practicable. The initial
phase contracts should be structured to allow for down-selection at a discrete
performance milestone (e.g., a significant design review or contract
completion) of a design maturity sufficient to allow for an informed selection
decision. This will avoid time gaps
between phases and eliminate unnecessary duplication of effort.
(b) The appropriate contract structure must
reflect program technical objectives as well as schedule considerations. For example, if a two-phased acquisition
strategy calls for formal completion of initial phase effort at Preliminary
Design Review (PDR), but it is not financially practical or technically
necessary for subsequent phase award and performance to carry all initial phase
contractors through PDR, the initial phase contracts should be structured with
a basic period of performance through a significant, discrete milestone before
PDR with a priced option for effort from that milestone to PDR. The down-selection would occur at the
earlier milestone, the PDR option exercised only for the down-selection winner,
and the subsequent phase performance begun at the completion of the PDR option.
1817.7301-4
Synopsis.
(a) Each
phase of a phased acquisition not performed in-house must be synopsized in
accordance with FAR 5.201 and
must include all the information required by FAR 5.207. Time gaps between phases
should be minimized by early synopsis of subsequent phase competition. The synopsis for the initial competitive
phase should also state the following:
(1)
The Government plans to conduct a phased acquisition involving a competitive
down-selection process. (Include a
description of the process and the phases involved).
(2) Competitions for identified subsequent phases
will build on the results of previous phases.
(3) The award criteria for subsequent phases will
include demonstrated completion of specified previous phase requirements.
(4) The Government expects that only the initial
phase contractors will be capable of successfully competing for the subsequent
phase(s). Proposals for the subsequent
phase(s) will be requested from these contractors.
(5)
The Government intends to issue (or not issue) a new, formal solicitation(s)
for subsequent phase(s). If new
solicitations are not planned, the acquisition must be identified as a
"progressive competition" (see 1817.7301-5), and the mechanism for providing pertinent
subsequent phase proposal information (e.g., statements of work,
specifications, proposal preparation instructions, and evaluation factors for
award) must be described.
(6)
Each subsequent phase of the acquisition will be synopsized in accordance with
FAR 5.201 and 5.203.
(7)
Notwithstanding the expectation that only the initial phase contractors will be
capable of successfully competing for the subsequent phase(s), proposals from
all responsible sources submitted by the specified due date will be
considered. In order to contend for
subsequent phase awards, however, such prospective offerors must demonstrate a
design maturity equivalent to that of the prior phase contractors. Failure to fully and completely demonstrate
the appropriate level of design maturity may render the proposal unacceptable
with no further consideration for contract award.
(b) In addition to the information in paragraph
(a) of this section, the synopsis for the subsequent phase(s) must identify the
current phase contractors.
1817.7301-5
Progressive competition.
(a) To
streamline the acquisition process, the preferred approach for NASA phased
acquisitions is the "progressive competition" down-selection
technique in which new, formal solicitations are not issued for phases
subsequent to the initial phase.
Subsequent phase proposals are requested by less formal means, normally
by a letter accompanied by the appropriate proposal preparation and evaluation
information.
(b) When
using the progressive competition technique, if a prospective offeror other
than one of the preceding phase contractors responds to the synopsis for a
subsequent phase and indicates an intention to submit a proposal, the
contracting officer shall provide to that offeror all the material furnished to
the preceding phase contractors necessary to submit a proposal. This information includes the preceding
phase solicitation, contracts, and system performance and design requirements,
as well as all proposal preparation instructions and evaluation factors. In addition, the prospective offeror must be
advised of all requirements necessary for demonstration of a design maturity
equivalent to that of the preceding phase contractors.
(c) A key
feature of the progressive competition technique is that a formal solicitation
is normally not required. However, when
the Government requirements or evaluation procedures change so significantly
after release of the initial phase solicitation that a substantial portion of
the information provided in the initial phase synopsis, solicitation, or
contracts is no longer valid, a new solicitation shall be issued for the next
phase.
(d)
Subsequent phase proposals should be requested by a letter including the
following:
(1) A specified due date for the proposals along
with a statement that the late proposal information in paragraph (c)(3) of FAR 52.215-1, Instructions to Offerors -- Competitive
Acquisition, applies to the due date.
(2) Complete instructions for proposal preparation,
including page limitations, if any.
(3) Final evaluation factors.
(4) Any statement of work, specifications, or other
contract requirements that have changed since the initial solicitation.
(5) All required clause changes applicable to new
work effective since the preceding phase award.
(6) Any representations or certifications, if
required.
(7) Any other required contract updates (e.g.,
small and small disadvantaged business goals).
(e) Certain factors may clearly dictate that the
progressive competition technique should not be used. For example, if it is likely that NASA may introduce a design
concept independent of those explored by the preceding phase contractors, it is
also likely that a new, formal solicitation is necessary for the subsequent
phase and all potential offerors should be solicited. In this circumstance, progressive competition is inappropriate.
1817.7302
Contract clauses.
(a) The contracting officer shall insert the
clause at 1852.217-71, Phased Acquisition Using Down-Selection
Procedures, in solicitations and contracts for phased acquisitions using
down-selection procedures other than the progressive competition technique
described in 1817.7301-5. The clause may be modified as appropriate if the
acquisition has more than two phases.
The clause shall be included in the solicitation for each phase and in
all contracts except that for the final phase.
(b) The contracting officer shall insert the
clause at 1852.217-72, Phased Acquisition Using Progressive Competition
Down-Selection Procedures, in solicitations and contracts for phased
acquisitions using the progressive competition technique described in 1817.7301-5. The clause may be modified as appropriate if
the acquisition has more than two phases. The clause shall be included in the
initial phase solicitation and all contracts except that for the final phase.
