1 - NOAA Acquisition Process Guide Planning Module

                                                                                                                                

1.1  Defining Requirements

1.1.1        Supplies

1.1.2    Services

1.1.3        Major Systems

1.2  Funding Requirements

1.2.1        Appropriate Use of Funds

1.2.1.1  Business Cards

1.2.1.2  Food

1.2.1.3  Give-Away Items

1.2.1.4  Organizational Mementos

1.2.1.5  Printing and Duplication

1.2.1.6  Tax Exemption

1.2.2        Basic Fiscal Controls

1.2.2.1  Budgeting

1.2.2.2  Antideficiency Act

1.2.2.3  Funding Indefinite Quantity Contracts

1.2.2.4  Appropriations

1.2.2.5  Acquisitions Subject to the Availability of Funds

1.3  Market Research

1.3.1        Market Research Prior  to Award of Task Order/delivery Orders under Indefinite-Delivery / Indefinite-Quantity (IDIQ) Contract

1.3.2        Market Research Techniques

1.4  Acquisition Planning

1.4.1        Advanced Acquisition Planning Forecast

1.4.2        Milestone Acquisition Plans

1.4.3        Formal Acquisition Plans       

1.5  Method of Acquiring Goods and Services

1.5.1        Agency Inventories

1.5.2        Excess from Other Agencies

1.5.3        UNICOR/Federal Prison Industries (FPI)

1.5.4        Committee for Purchase from People who are Blind or Severely Disabled

1.5.5        Wholesale Supply Sources

1.5.6        Federal Supply Schedules (FSS)

1.5.6.1  Ordering Procedures for Supplies or Services

1.5.6.2  Additional Ordering Procedures for Orders Exceeding the Simplified Acquisition Threshold

1.5.6.3  Oral Orders

1.5.6.4  e-Buy

1.5.7        Existing Indefinite Delivery Contracts (IDC) and Multiple Award Contracts (MACs)

1.5.8        Acquisition of Printing Services and Related Supplies

1.5.9        Commercial Items

1.5.9.1  What is a Commercial Item?

1.5.9.2  Commercial Item Procedures

1.5.9.3  Commercial Items Exceeding the Simplified Acuistion Threshold

1.5.9.4  Procurement Procedures

1.5.9.5  Sole Source Acquisitions under FAR Subpart 13.5

1.5.9.6  Commercialize Determination

1.5.10    Simplified Acquisition Procedures

1.5.11    Sealed Bidding

1.5.12    Contracting by Negotiation

1.5.12.1          Unsolicited Proposals

1.5.13    Interagency Acquisitions Under the Economy Act (Non-NOAA and Non-DOC Contracts)

1.5.14    Emergency Acquisition

1.5.14.1          Contracting Thresholds at a Glance

1.5.14.2          Getting Prepared

1.5.14.3          Variations

1.5.14.4          Government Policy and Training

1.5.14.5          Micro-Purchases

1.5.14.6          Government-wide Commercial Purchase card a.k.a. Bankcard

1.5.14.7          Simplified Acquisition Procedures (SAP)

1.5.14.8          Contracts > the SAP Threshold

1.6  Contract Types

1.6.1        Factor in Selecting Contract Types

1.6.1.1      Basic Contract Types

1.6.1.2      Other Considerations

1.6.2        Cost Risk of Contract Type

1.6.3        Fixed-Price (FP) Contracts

1.6.4        Cost-Reimbursement (CR) Contracts

1.6.5        Time and Material (T&M) Contracts

1.6.6        Letter Contracts / Undefinitized Contract Actions (UCAs)

1.6.7        Indefinite-Delivery Contracts

1.6.8        Agreements

1.6.8.1  Basic Ordering Agreement (BOA) (FAR 16.703)

1.6.8.2 Blanket Purchase Agreement (BPA)

1.6.8.3 Interagency Agreements (IA)

1.7 Special Considerations in Contract Planning

1.7.1 Small Business Considerations

1.7.1.1 SBA Size Standards

1.7.1.2 Small Business Size Certification

            1.7.1.2.1 SBA Size Recertification

            1.7.1.2.2. SBA Size Re-Representation – Long Term Contracts

1.7.1.3 Small Business Program Definitions

1.7.1.4 Bundling and Consolidation

1.7.1.5 Determining NAICS Codes

1.7.1.6 Applying the Small Business Size standard in a Procurement

1.7.1.7 Non-manufacturer Rule and Waiver

1.7.1.8 Small Business Administration (SBA) 8(a) Business Development Program

1.7.1.9 Total Small Business Set-Aside

1.7.1.10 HUBZone

1.7.1.11 Service Disabled Veteran-Owned Small Business (SDVOSB) Concern

1.7.2 EIT Certification / Section 508 Compliance

1.7.3 Contracting for Services

         1.7.3.1 Service Contract Act (SCA)

1.7.3.2 Performance-Based Acquisition (PBA) of Services

         1.7.3.3 Management of Contracted Services

1.7.4 Contract Security Considerations

1.7.5 Deemed Export and Export Controls

1.7.6 Information Technology (IT)

1.7.7 Advisory and Assistance Services

1.7.8 Determination and Findings (D&F)

1.7.9 Contract Financing

         1.7.9.1 Commercial Contract Financing

         1.7.9.2 Non-Commercial Contract Financing

1.7.10 “Brand Name” and “Brand Name or Equal”

1.7.11 Green Procurement

1.7.12 SAFETY Act Considerations

1.7.13 Use of Project Labor Agreements for Federal Construction Projects

1.8 Competition Requirements

   1.8.1 Considerations for Increasing Competition

         1.8.2 Other Than Full and Open Competition

                  1.8.2.1 Only One Responsible Source

            1.8.2.2 Unusual and Compelling Urgency

                  1.8.2.3 Industrial Mobilization

                  1.8.2.4 International agreement

                  1.8.2.5 Authorized or Required by Statute

                  1.8.2.6 National Security

                  1.8.2.7 Public Interest

                  1.8.2.8 Noncompetitive and Single Offer Contracts

          1.8.3 Justification and Approval (J&A)

                  1.8.3.1 Contracts > the Simplified Acquisition Threshold – Sole Source

                  1.8.3.2 Orders Under GSA FSS – Sole Source

            1.8.3.3 Simplified Acquisition – Sole Source

            1.8.3.4 Commercial Items – Sole Source

            1.8.3.5 Emergency Acquisition – Sole Source

1.9 Acquisition Systems

         1.9.1 Agency Acquisition Systems

                  1.9.1.1 Commerce Business Services

                  1.9.1.2 C.Request

                  1.9.1.3 C.Buy

                  1.9.1.4 Contractor Performance Assessment Reporting System (CPARS)

                  1.9.1.5 Forecasting and Advance Acquisition Planning System (FAAPS)

        1.9.2 Federal Acquisition Systems

                  1.9.2.1 Ability One

                  1.9.2.2 Central Contractor Registration (CCR)

                  1.9.2.3 Excluded Parties List System (EPLS)

                  1.9.2.4 Electronic Subcontracting Reporting System (eSRS)

                  1.9.2.5 Federal Agency Registration (FedReg)

1.9.2.6 Federal Business Opportunities (FBO)

                  1.9.2.7 Federal Procurement Data Systems – Next Generation (FPDS-NG)

                  1.9.2.8 Financial Management Services (FMS)

                  1.9.2.9 GSA e-Buy

                  1.9.2.10 Online Representations and Certification Application (ORCA)

                  1.9.2.11 Past Performance Information Retrieval System (PPIRS)

                  1.9.2.12 VETBIZ.Gov

                  1.9.2.13 Wage Determination Online (WDOL)

1.10 Procurement Request (PR) Package

1.11 Source Selection Plan

  1.11.1 Oral Presentations

1.12 Files and Documentation

       1.12.1 Contract Files

       1.12.2 Simplified Acquisition Procedures

       1.12.3 Emergency Acquisition

1.13 Summary of Planning Section References

 

Acquisition begins long before an acquisition request is generated by an individual or office requiring the purchase of a good or service. It begins with the strategic planning process and carries through final assessment of whether what was acquired achieved or helped to achieve the mission which the acquisition supported.

 

Even though the procurement process starts with the Customer, Acquisition professionals must reach out and partner with these customers (Line and Corporate Offices and Department of Commerce colleagues) to help manage a complex acquisition process in an environment of constrained budgets and growing demands and expectations.

 

The Customer identifies their need, develops specific requirements, and provides funding.  The Customer and Contracting Officer work together to conduct market research which includes reviewing mandatory sources to determine the availability of the supply/service. The Customer documents the requirement and research results in a Procurement Request.

 

The Federal Acquisition Regulation FAR 2.101 defines acquisition planning as…the process by which the efforts of all personnel responsible for an acquisition (The Acquisition Team is defined in FAR 1.102-3) are coordinated and integrated through a comprehensive plan for fulfilling the agency need in a timely manner and at a reasonable cost. It includes developing the overall strategy for managing the acquisition.  FAR 1.102-2(a)(7) requires all member of the (Acquisition) Team to employ planning as an integral part of the overall process of acquisition products or services. 

 

According to FAR 7.104 Acquisition planning should begin as soon as the agency need is identified, preferably well in advance of the fiscal year in which contract award or order placement is necessary. Acquisition planning is an ongoing and continuous effort in support of NOAA business operations and NOAA program execution.  It is important that NOAA Acquisition and Grants Office (AGO) be engaged early in all program planning phases from strategic planning to annual guidance.  Acquisition planning is crucial for the NOAA Planning, Programming, Budgeting, and Execution System (PPBES).  The details of the NOAA PPBES are provided in the NOAA Business Operations Manual.   Early and frequent coordination between program activities and The Acquisition office (AGO) enhances NOAA's ability to meet mission requirements through well-planned, resourced, and efficient acquisitions that align to the NOAA mission and NOAA strategic plan.  For more information see the AGO website section discussing Forecasting and Advanced Acquisition Planning System (FAAPS) .

 

In developing the plan, the customer FAR 7.101 is responsible for forming a team consisting of all those who will be responsible for significant aspects of the acquisition, such as contracting, fiscal, legal, and technical personnel.

 

Once contacted by the customer, the Contracting Officer (CO) establishes a unique file to house both required and supporting documentation from the commencement of the procurement through the life of the contract.  This file serves as a background for informed decisions at each step of the acquisition process, provide information for reviews and investigations, and furnish essential facts in the event of litigation or Congressional inquiries.

 

1.1 Defining  Requirements

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One of the most crucial, steps in the procurement process is defining and describing the requirement in a writing. The better a requirement description, the more likely the Government will obtain the desired supply or service at an acceptable price with adequate delivery terms. A good-quality description enables the Contracting Officer to choose the most suitable procurement method.

 

CAM 1307.1 designates the Program Official serving as the “planner” who must begin the acquisition process by developing a full understanding of the needs of their program and considerations for accomplishing the planned acquisition. The Customer/Program Official shall discuss with the servicing contracting office, topics ranging from defining the need, market research results, potential sources, small business considerations, expected delivery or period of performance, and an appropriate acquisition strategy to meet the procurement goal. These discussions will culminate in an acquisition plan that consists of a milestone schedule to accompany the complete acquisition package (see CAM 1307.1 Appendix B for acquisition package requirements).

 

FAR 11 specifies that when describing agency needs, acquisition of supplies or services should be stated in terms of a) functions to be performed, b) performance required, or c) essential physical characteristics.  Requirements should be developed in a manner that promotes competition, allows for use of commercial items, eliminates restrictive features, and includes only what is essential to satisfy the Government’s minimum needs and is authorized by law.  If the requirement is a product (supplies), the Contracting Officer should be given all possible information relating to that product, an explanation of its desired functionality, and data regarding the end user’s need. These will all facilitate working towards a viable implementation or installation schedule.

 

1.1.1 Supplies                                                                                       Top of Page

 

A Requirements Document/ Description should adequately state the Government’s needs. When acquiring supplies, the Contracting Officer should include the following:

·      Common nomenclature (commercial description)

·      Kind of material

·      Electrical data (if applicable)

·      Dimensions, size, capacity

·      Principles of operation

·      Restrictive environmental conditions

·      Intended use

·      Equipment with which the item is to be used

·      End item application

·      Original Equipment Manufacturer (OEM) part number (if applicable)

·      Other pertinent info, as needed

 

Special Note:  Military/Federal Specifications (MIL/FED)

Describing requirements in terms that commercial offerors can recognize and obtaining commercial items is the preferred method within NOAA. MIL/FED Specifications should only be used in cases where it is the only way to describe the requested item. However, if the Customer describes the requirement through use of a MIL/FED Specification, ordering data must be included in each Specification. In addition, when a MIL/FED specification is used, the buyer must verify that the item is not on a Qualified Products List (QPL). If a QPL does apply, award can only be made to a Contractor who is listed on the QPL.  For more information on QPL’s, see FAR 9.203.  

 

1.1.2 Service                                                                                          Top of Page

 

FAR 37.102(f) specifies that agencies shall establish effective management practices in accordance with Office of Federal Procurement Policy (OFPP) Policy Letter 93-1, Management Oversight of Service Contracting, to prevent fraud, waste, and abuse in service contracting.  In addition, the Department of Commerce Departmental Administrative Order (DAO) DAO 208-10 Management of Contracted Services, as amended) provides policy and guidance to ensure that service contracts:

  • Support DOC objectives.
  • Utilize performance-based methods to the maximum extent practicable.
  • Contain clear requirements.
  • Identify measurable outcomes.
  • Are properly planned and administered.
  • Achieve the intended results.

 

Use the NOAA Acquisition Strategy Requirements template to assist in development of acquisition strategy for contracted services.

 

For service acquisitions, the Procurement Request description should be detailed and specific so as to adequately identify potential Offerors, support needed, intended duration of services to be provided, and the Government’s expectations and should include the following:

 

All service contracts, whether performance-based or not, requires the use of a QASP in accordance with FAR 46.103(a) to measure performance. Contracting Officers are responsible for ensuring a QASP is prepared by the Project Officer for service contracts (see Sample QASP for CPFF Contract). The appointed Contracting Officer’s Representative (COR) utilizes the QASP in conducting surveillance and oversight of Contractor performance.

 

See CON 110 Requirements Overview and Acquisition Lessons Learned from GAO Protests in the January 2005 edition of The Advisor for more information. 

 

For other considerations in planning see APG 1.7

 

1.1.3 Major System Acquisitions                                                           Top of Page

 

Program Manager Qualifications.  Program Managers for Major Systems Acquisitions must meet the training and experience standards provided in the Federal Acquisition Certification for Program and Project Managers (FAC P/PM) provided in OFPP Memorandum “The Federal Acquisition Certification for Program and Project Managers” dated April 25, 2007.
           
Also see:  CAM Notice  10-11 PPM Certification Program and CAM 1301.671 Department of Commerce Program and Project Manager Certification Program.

 

Department of Commerce Approvals for Major Systems Acquisitions.  In addition to NOAA Council approvals, an acquisition valued at $10 Million or more will require review and approval by either the Department of Commerce Investment Review Board or the Department of Commerce Acquisition Review Board. 

 

1.2  Funding of Requirements

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Funding lies at the core of all Government functions. The proper use of funds from a variety of sources is essential for accountability of the taxpayer's money. To ensure that expenditures are charged to the proper accounts, the Customer and Contracting Officer should check with the Comptroller and Counsel and be familiar with the constraints and controls placed on various types of funds.

 

1.2.1 Appropriate Use of Funds                                                             Top of Page

 

Many questions arise concerning how to appropriately use funds to accomplish the various missions of the DOC/NOAA. Procurement officials and those in supervisory and command positions must be aware that the consequence of using NOAA funds inappropriately could lead to a member or employee being held personally responsible for commitments and purchases made by them. For this reason, any question of whether a contemplated action is appropriate must be resolved prior to entering any agreement that commits (or appears to commit) the NOAA to payment. Procurement officials and others shall seek the advice of Chief Financial Officer and/or Counsel to ensure actions are legitimate and legal prior to any action taken.

 

Procurement officials should ensure that written guidance is received for questionable procurements and include that guidance in the procurement files.

 

The Comptroller General of the United States has reviewed many such inquiries and has issued published rulings on them. A compilation of decisions of the Comptroller General is contained in the "Principles of Federal Appropriations Law," available on the Government Accountability Office (GAO) website.

 

Note: FAR 31.205-32 allows for the incurrence of pre-contract costs when necessary for a required delivery schedule to be met.

 

1.2.1.1 Business Cards                                                                           Top of Page

The Justice Department has ruled that government agencies may use appropriated funds to purchase business (calling) cards.  The Chief Financial Officer/Assistant Secretary for Administration, Department of Commerce, has issued supplemental guidelines which supports this policy.

Appropriated funds may be used for the purchase of business cards (which must be used solely for conducting NOAA related business) under the following conditions:

1.2.1.2 Food                                                                                             Top of Page

 

Appropriated funds may not be used to purchase food for non-Federal attendees at agency-sponsored conferences. 

 

There is a general prohibition against the use of appropriated funds for subsistence (i.e., food) at meetings.  Agency-sponsored conferences are “meetings” for purposes of 31 U.S.C. § 1345; therefore, light refreshments and meals at such meetings constitute “subsistence expenses,” and are prohibited under that section.

 

An agency may have food available at its conference by entering into a no-cost contract with a conference planner who can collect registration fees from participants to cover the expense of food.  In addition, if the event is being held with a non-profit partner, there may be alternatives which can be discussed with Counsel.

 

For current Guidance see:  Effective Immediately – New Legal Guidance Regarding the Use of Appropriated Funds to Purchase Food for Non-Federal Attendees at Agency-Sponsored Conferences dated April 2, 2008.

1.2.1.3 Give-Away Items                                                                         Top of Page

 

Appropriated funds shall not be used to purchase give-away items. All such items are viewed by GAO as personal gifts, for which appropriated fund use is not appropriate. The only exception is when there is a direct connection between a particular give-away item and the purpose for which the appropriation was made. Further, it must be determined that the item was essential to the carrying out of such purpose.

 

1.2.1.4 Organizational Mementos                                                          Top of Page

 

If a requiring activity has funds, they may be used to purchase mementos (not exceeding $200 in cost) used in connection with ceremonies, dedications, or official functions. These mementos may not be personal items, but rather official mementos, such as plaques.

 

1.2.1.5 Printing and Duplication                                                             Top of Page

 

Government printing and related supplies are also Federally mandated to be performed/furnished by or through the Government Printing Office (GPO) unless an exception exists (see FAR 8.802(a) ).  For the Department of Commerce (DOC), all printing requirements are to be fulfilled by the GPO. 

  • Offices serviced by Acquisition Divisions within the NOAA HQ Area (D.C. metropolitan area) must coordinate with the NOAA Office of Printing and Visual Arts see NAO 201-32C). 
  • Offices serviced by field Acquisition Divisions shall coordinate with the GPO Regional Printing Office for their specific region (see NAO 201-32C).

 

1.2.1.6 Tax Exemption                                                                            Top of Page

 

Generally, the U.S. Government is exempt from payment of taxes on purchases. This exemption applies to purchases of both property and material acquired with appropriated funds for Government use. The exemption does not apply to items purchased by Contractors or the Federal Excise Tax imposed on specific items (e.g., tires). Contractors are required to include all Federal, state and local taxes in their bid/quote in accordance with FAR 52.229-3; it is improper for a Government official to provide a tax exemption certificate or number to a Contractor who is purchasing items necessary to perform a contract (e.g., construction).

 

1.2.2 Basic Fiscal Controls                                                                     Top of Page

 

Appropriated funds are subject to three basic fiscal controls:

 

  • Purpose. Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law. For example, salary and benefits funding should not be used to purchase new aircraft. In addition, Contracting Officer  use of non-DOC contracts needs to conform to the intended use of those contracts.  For example, an Information Technology (IT) IDC should not be used to procure logistics support.

 

  • Time. An appropriation is available only for payment of expenses properly incurred during the period of availability, or to complete contracts properly made during the period of availability. This is also referred to as the "Bona Fide Needs" rule.

 

  • Amount.  An officer or employee of the United States Government may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation, or involve the Government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law. This is also known as the Anti-Deficiency Act (ADA).  The extended duration of continuing resolutions in recent years requires acquisition professionals to devote additional attention to ensure compliance with this Act and to avoid major disruptions to essential government services.  Absent specific authority, funding under a continuing resolution is generally available only to fund ongoing projects and activities, not new initiatives or projects and provides only partial funding until appropriations have been received.  Procurement Memorandum 2008-05 provides guidance on conducting acquisitions under a Continuing Resolution.

 

  • Of the three basic fiscal controls, the purpose statute most often arises as a point of concern. Probably the most fundamental statute dealing with the use of appropriated funds is 31 USC 1301(a), which clearly states that appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law. It prohibits charging authorized items to the wrong appropriation and prohibits charging unauthorized items to any appropriation. Anything less would render Congressional control meaningless.

1.2.2.1 Budgeting                                                                                   Top of Page

 

The Customer is responsible for proper budgeting, which is an important precursor to not violating the Antideficiency Act. The Contracting Officer has ultimate responsibility for ensuring the appropriate funding is available for obligation at contract award.

 

1.2.2.2 Antideficiency Act                                                                       Top of Page

 

This Act prohibits obligation or expenditure of Government funds in excess of amounts appropriated by Congress or in excess of amounts permitted by regulations; forbids the obligation of any funds in advance of the official appropriation of funds; requires the head of each Government agency to establish an administrative control system for the purposes of keeping obligations within the amount of apportionment and enabling the agency to detect and report violations of the Antideficiency Act through the Executive Branch to Congress.  For more information about this topic see http://www.gao.gov/ada/antideficiency.htm

 

1.2.2.3 Funding Indefinite Quantity Contracts                                     Top of Page

 

A high-risk area for Contracting Officers when it comes to the Antideficiency Act is in funding the minimum in the case of indefinite quantity contracts. In the case of indefinite quantity contracts for supplies or services that specify delivery of minimum quantities during a given period, an obligation shall be recorded upon execution of the contract for the cost of the minimum quantity specified.

 

1.2.2.4 Appropriations                                                                            Top of Page

 

Proper use of appropriations is imperative. Contracting Officers must ensure that the specified appropriation/funds in the Procurement Request (PR) are appropriate for the supplies/services required. Funding law violations not only risk the public’s view of the integrity of NOAA – they also may and have resulted in the loss of limited and much-needed funds. For more information on Appropriated Funds, read The General Accountability Office’s Principles of Federal Appropriations Law.

 

The table “NOAA Appropriations Lifecycle” summarizes NOAA appropriations along with obligation periods. For further guidance on avoiding misappropriation, see the DOC Financial Management Handbooks and the NOAA Finance Handbook.

 

NOAA Appropriations – Lifecycle

Years For

Appropriation

New Obligation Unexpired

Obligations, Adjust. & Disburse.

Expired

Closed End of Year

Canceled

NOAA 1 Year

1

2-6

6

NOAA 2 Year

2

3-7

7

 

Closed (Canceled) Appropriations.  An appropriation that is no longer available for the adjustment or payment of obligations. Appropriations are closed (canceled) after being in the expired status for five years. A Comptroller General opinion has provided agencies with authority to make disbursement adjustments to closed appropriations to correct errors only.

 

Expired Appropriation.  An appropriation whose period of availability for incurring new obligations has expired but the appropriation is not closed (canceled). During this period, the appropriation is available for adjustment to, or payment of, existing obligations. Appropriations remain in an expired status for 5 years as shown in the table above. At the end of the five-year expiration period, the appropriation is closed (canceled) and is no longer available for the payment of unliquidated obligations.

 

Funding of severable services across fiscal years is feasible if the period of the contract awarded, option exercised, or order placed does not exceed one year. See FAR 37.106.

 

For more information on financial matters, visit the NOAA Budget Office website at http://www.corporateservices.noaa.gov/~nbo/ and the NOAA Finance Office website at http://www.corporateservices.noaa.gov/~finance/.

 

Continuing Resolution.  Procurement Memorandum 2008-05 provides guidance on conducting acquisitions under a Continuing Resolution.

 

A high-risk area for Contracting Officers when it comes to the Antideficiency Act is in funding the minimum in the case of indefinite quantity contracts. In the case of indefinite quantity contracts for supplies or services that specify delivery of minimum quantities during a given period, an obligation shall be recorded upon execution of the contract for the cost of the minimum quantity specified.

 

1.2.2.5 Acquisitions Subject to the Availability of Funds                  Top of Page

 

What is the correct course of action when the Customer must have an order in place for continuing services (never new requirements or actions) on 1 October? Typically, Congress has not yet appropriated the funds necessary to commit the Government to the expenditure and The Anti-Deficiency Act prohibits a Contracting Officer from obligating funds in advance of the appropriation. Nevertheless, FAR 32.703-2 has included provisions that will enable the Contracting Officer to issue orders in advance of the appropriation for requirements of continuing supplies and/or services. The Contracting Officer may initiate a contract action properly chargeable to funds of the new fiscal year before these funds are available, provided that the contract includes the clause at FAR 52.232-18, Availability of Funds (see FAR 32.705-1(a)).

 

This authority may be used only for operation and maintenance and continuing services (e.g., rentals, utilities, and supply items not financed by stock funds) that are necessary for normal operations and for which Congress previously had consistently appropriated funds, unless specific statutory authority exists permitting applicability to other requirements.

 

Additionally, the Purchase Order/Delivery Order/Task Order must include FAR 52.232-18 Availability of Funds and FAR 52.232-19 Availability of Funds for the Next Fiscal Year if the contract is a one-year indefinite quantity funded by annual appropriations.

 

Once funds have been appropriated, a modification to the order must be issued, citing the authority of the Availability of Funds clause. The amount of funds made available should be indicated in the modification. For example, if a Continuing Resolution is in effect (funding for continued operations for a short period of time such as one month), the modification should indicate that funds are available for that period of time only, such as “This modification is issued to provide funds for the period of October 1 through October 31, 20XX in the amount of $5,000.”

 

This type of modification should be issued until the entire appropriation has been received. At that time, the Contracting Officer should issue a modification to the order that provides funds for the remainder of the fiscal year. This enables a Contractor to perform work, invoice, and receive payment.

 

The Government shall not accept supplies or services under a Purchase Order/Modification conditioned upon the availability of funds until the Contracting Officer has given the Contractor notice. This notice must be confirmed in writing, by issuance of a modification, that funds are available.

 

1.3  Market  Research 

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Market research is conducted first by the Customer/Project Officer and again by the Contracting Officer before soliciting offers.  Prior to initiating a procurement action, the Customer and Contracting Officer must perform due diligence in assessing what products or services are currently available.  The results should be an element of the Acquisition Plan (see APG 1.4).  Market research also helps is to identify potential sources that satisfy the Government’s mandate to support socioeconomic program such as should the requirement be set-aside for small business concerns or solicited on an unrestricted basis.

 

Market research will significantly impact the selection of evaluation factors, contracting and source selection methods, and amount and type of requested proposal information. The extent of market research will vary depending on such factors as urgency, estimated dollar value, and complexity of the requirement, and past performance. The Customer/Project Officers should document the results of market research in a manner appropriate to the size and complexity of the acquisition. Market research should accomplish the following objectives:      

  • Identify products and technologies, particularly to determine if a commercial item can meet the Government’s requirements.
  • Identify the size and status of potential vendors.
  • Assess the competitiveness of the market.
  • Identify commercial practices.

                                                                                                

The extent of market research will vary depending on such factors as urgency, estimated dollar value, complexity of the requirement, and historical purchases of the item. Although not formally required for acquisitions under the SAT, market research should be conducted by the Contracting Officer to the maximum extent practicable. Market research can provide information on the availability of commercial or non-developmental items in the marketplace, which manufactures or sells the item, and number of sources available. FAR 10 describes the requirements and procedures for conducting market research. The GSA Acquisition Market Research web-site located at https://www.acquisition.gov/buyers_market_research.asp is available to assist the customer and contracting officer in their market research efforts. 

 

.Special Note:  Once the PR package has been submitted to the Contracting Officer, all communications with industry must be initiated and led by the Contracting Officer and not the Project Officer.

 

 1.3.1 Market Research Prior to Award of Task Order/Delivery Orders under an Indefinite-Delivery/Indefinite-Quantity (ID/IQ) Contract                           Top of Page                                                                                                                    

 

FAR 10.001 requires agencies to conduct market research appropriate to the circumstances before awarding a task order or delivery order under an indefinite-delivery/indefinite-quantity contract (e.g., GWACs, MACs) for a non-commercial item in excess of the simplified acquisition threshold (SAT).  Market research involves obtaining information specific to the item being required.  The extent of the market research will vary, depending on such factors as urgency, estimated dollar value, complexity and past experience.  The Contracting Officer may use market research conducted within 18 months before the award of any task or delivery order if the information is still current, accurate and relevant. 

 

 1.3.2 Market Research Techniques                                                    Top of Page

 

Targeted market research – e.g., calling vendors to inquire about their ability to meet a NOAA requirement – is another effective form of market research; the Contracting Officer cannot assume that all available sources have seen a posted requirement. Targeted market research allows the Contracting Officer to ensure small and disadvantaged businesses are aware of the requirement and to make decisions as to whether the procurements should be reserved or set aside in support of various socioeconomic programs. Other market research techniques include scanning federal supply schedules, contacting known suppliers, using the Central Contractor Registration (CCR) at http://www.ccr.gov, online research, and conferring with colleagues or peers. See attached Market Research Helpful Hints and Market Research Checklist and take a look at the GSA Acquisition Market Research web-site at https://www.acquisition.gov/buyers_market_research.asp.

 

Central Contractor Registration (CCR):  An alternative to maintaining a source list is using the Central Contractor Registration (CCR) website to obtain Vendor information. The CCR website is the primary Vendor database for the Federal Government. CCR collects, validates, stores, and disseminates data in support of agency acquisition missions.

Unless an exception exists, prospective prime Vendors must be registered in CCR prior to being awarded a contract, basic agreement, Basic Ordering Agreement (BOA), or Blanket Purchase Agreement (BPA) (see FAR 4.1102). The Contracting Officer must use CCR to verify that the prospective Contractor is registered in the CCR database.

This policy applies to all types of awards except the following:

  • Purchases using the Government-wide Commercial Purchase Card a.k.a. Bankcard as both the purchasing and payment mechanism.
  • Awards to foreign vendors for work performed outside the United States, if it is impractical to obtain CCR registration.
  • Classified contracts or purchases, when registration in the CCR database, or use of CCR data could compromise the safeguarding of classified information or national security.
  • Contracts awarded by deployed Contracting Officers in the course of military operations, including, but not limited to, contingency operations as defined in 10 U.S.C. 101(a)(13) or contracts awarded by Contracting Officers in the conduct of emergency operations such as responses to natural disasters or national or civil emergencies.
  • Purchases to support unusual or compelling needs of the type described in FAR 6.302-2. Use of this exception does not relieve the Contracting Officer from ensuring that the Contractor is registered in CCR prior to the time of payment.
  • Micro-purchases that do not use the electronic funds transfer (EFT) method for payment and are not required to be reported (see FAR 4.6).

Contacting Industry.  The Government is encouraged to exchange information with all interested parties and those exchanges must be consistent with procurement integrity requirements (see FAR 3.104). The purpose of exchanges with industry prior to issuing a Solicitation is explained in FAR 15.201(b) as follows:

The purpose of exchanging information is to improve the understanding of Government requirements and industry capabilities, thereby allowing potential Offerors to judge whether or how they can satisfy the Government's requirements, and enhancing the Government's ability to obtain quality supplies and services . . . at reasonable prices, and increase efficiency in proposal preparation, proposal evaluation, negotiation, and contract award.

On-Site Vendor Demonstrations and/or Product Service Displays.  Vendor demonstrations can be a useful way to stay abreast of the types of products, technology and/or services available in the marketplace that may be useful to support NOAA operations and programs.  However, they must be properly conducted to ensure they do not pose an unacceptable risk.  NOAA Acquisition Alert (AA) 11-03 provides guidance to ensure the demonstrations are properly planned for and authorized, and that the activities do not provide the vendor an unfair competitive advantage, result in a procurement ratification action, or otherwise adversely impact the Bureau.  The AA prescribes roles and responsibilities of NOAA staff engaging in vendor demonstration and product/service display activities, including specific responsibilities for the NOAA Sponsor, NOAA LO/SO Division Director and Head of Contracting Office (HCO), as well as the process to be followed in planning for and conducting the demonstrations.  This process includes execution of the NOAA Vendor On-Site Demonstration Request and Approvals checklist (Attachment (1) to AA 11-03) and the Vendor Demonstration Agreement (Attachment (2) to AA 11-03).  Demonstrations may not be conducted until all required approvals and internal signatures have been obtained, including the signature of an authorized representative of the vendor on the Vendor Demonstration agreement.

Benchmarking with Other Government Agencies and Contacting Government Experts. 

Reviewing the market research of others is a technique that can be used by contacting other contracting offices to obtain bidders lists and market research reports pertaining to similar acquisitions.

Attending trade shows, symposia, and conferences.

Reviewing catalogs and trade journals for advertisements, articles on new technology, and benchmark tests.

Conducting an Industry Day event.   Typically open forums for exchanges of all types of information not necessarily related to one specific procurement. Industry days related to a specific procurement are referred to as pre-solicitation conferences or site visits. Can cover a broad range of subjects or materials, such as how to do business with NOAA or Small Business opportunities.

Issuing a Sources Sought advertisement.  May be published as Requests for Information (RFIs) or Sources Sought Notices to Federal Business Opportunities (FedBizOpps). It is designed to identify potential sources for procurements and can provide an opportunity for the marketplace to indicate its interest in submitting offers for future acquisitions. This type of synopsis has particular application when one Contractor is thought to be uniquely capable of meeting the Government’s minimum requirements and verification of this opinion is needed.

Issuing Requests for Information (RFIs).  An RFI requests responses from industry (e.g., white papers, capability statements, product brochures) solely for information and planning purposes. RFIs may be used when the Government does not presently intend to award a contract, but wants to obtain price, delivery, other market information, or capabilities for planning purposes.   An RFI does not constitute a Request for Proposal (RFP) or a promise to issue an RFP in the future, and a RFI does not commit the Government to contract for any supply or service. (See FAR 15.201(e).) Responses to these notices are not offers and cannot be accepted by the Government to form a binding contract. The Contracting Officer must post the RFI on www.fedbizopps.gov  to notify the public. Although there is no required format for RFIs, see Sample RFI.

Conducting Pre-Solicitation Conferences.  This is an opportunity to bring together potential Offerors into a single forum to a) clarify the Government’s requirements b) gather feedback from attendees c) facilitate teaming relationships amongst industry. Feedback can either be questions or suggestions on contractual or technical issues that help to prepare a more solid Solicitation, or questions or suggestions that might reveal current industry capability to satisfy requirements.

 

All questions and answers from pre-solicitation conferences, whether presented openly in a group discussion or anonymously in written format, must be posted, without attribution, to the www.fedbizopps.gov website. Contracting Officers should ensure that responses to questions and answers do not reveal any proprietary information or divulge potential Offerors.

 

The exception to this rule would be questions received from potential Offerors that contain trade secrets. If a question posed by a potential Offeror contains trade secrets, the Contracting Officer shall request that the potential Offeror resubmit its question in a form that does not contain such trade secrets so that the question and the answer may be posted to the www.fedbizopps.gov website. If the potential Offeror declines to redact such trade secrets from its question, neither the question nor the answer may be posted to the www.fedbizopps.gov website. (See FAR 15.201(f)

 

For assistance in creating a pre-solicitation conference brief, see the Pre-Solicitation Brief Template and Sample Industry Day Briefing. The Project Officer and the Contracting Officer are responsible for conducting pre-solicitation conferences. It is imperative that Project and Contracting Officers work closely with Counsel before, during, and after such an event.

 

Conducting site visits. A Government employee visits various industry partners in the market they are researching to gather information about a particular product or company capability. Or, the Government allows industry to visit a Government facility to better understand a particular requirement.  

Accessing Internet databases via search engines keyed to unique terms associated with the subject matter of the source selection.

 

During an Emergency, the Contracting Officer may also us the following techniques:

 

Vendor List. Contracting Officers should ensure they add any relevant sources to an existing vendor list or create their own for posterity. Vendor lists are an excellent tool to speed up the contracting process. Ideally www.ccr.gov, the Internet, and state and local resources can provide listings of local vendors.

 

Disaster Response Registry.  This registry contains information on contractors who are willing to perform disaster or emergency relief activities within the U.S. and its outlying areas.  It is a voluntary registry, maintained by FEMA, of contractors that are willing to perform debris removal, distribution of supplies, reconstruction, and other disaster or emergency relief activities established in accordance with 6 U.S.C. 796, Registry of Disaster Contractors.  The registry is located at www.ccr.gov and alternately through the FEMA website at http://www.fema.gov/business/index/shtm.

                                                                                                               

Local NOAA Leadership at the Deployed Emergency Acquisition, Contingency, Incident or COOP Site.

 

Chamber of Commerce and Yellow Pages. Many cities, particularly the larger ones, have a chamber of commerce and a yellow pages section.  These are valuable resources.

 

Taxicab drivers, local government officials, and local clergy.

 

U.S. Embassy (OCONUS). This can be an excellent source of information. The Embassy General Services Officer (GSO) may be able to provide some contracting support – particularly if the contract is to be written with the host country. Embassies will also be a good resource to help identify the established contracting offices in the local area.

 

General Contractors. These are contractors who will sell the Contracting Officer everything that is needed, from food to construction at a substantial premium. In some cases, these firms will be the first contractors the Contracting Officer will encounter and they can be very responsive; however, try to limit business with these contractors as they are very expensive and in effect, the Contracting Officer is just "contracting out" the contracting function.  

 

Referrals. If all else fails, the Contracting Officer can refer the purchase request back to the Contracting Officer’s parent organization (if mission-ready) or to other DOC and NOAA procurement offices and acquisition divisions. 

 

1.4 Acquisition Planning

                                                                                                                                         Top of Page

Acquisition planning is mandated by Federal Acquisition Regulation FAR 7.102(a) for all acquisitions and shall be the first step in any acquisition, beginning as early in the program life-cycle as possible.

 

Commerce Acquisition Manual (CAM) chapter CAM 1307.1 provides policy and guidance to effectively conduct acquisition planning and develop acquisition plan applicable to all acquisitions within the Department of Commerce (DOC) and its Operating Units and has identified three acquisition planning levels (Advance Acquisition Planning Forecast, Milestone Acquisition Plans and Formal Acquisition Plans) each requiring a different degree of planning. The extent of acquisition planning is contingent upon a variety of factors such as the dollar value of the action, mission criticality, risk level, visibility and project complexity. These factors will determine the applicable acquisition plan to implement for the acquisition.  Therefore, the Customer and Acquisition office representative should form a team consisting of those individuals responsible for any significant aspects of the acquisition in order to develop the acquisition plan. Convening an acquisition planning meeting allows key players to discuss any issues that need to be addressed early in the procurement process.  Even small procurements benefit from collective discussion and enable sound procurement decisions as part of the acquisition planning process.  The result of the acquisition planning meeting should be some form of acquisition plan that establishes items such as contract type, procurement schedule, funding requirements, and budget estimates.  

 

An Acquisition Planning Checklist found at NOAA Acquisition Handbook, Part 7, Exhibit 1 is a helpful tool in the planning process. During the advanced discussion, the Checklist should be reviewed by the Customer and the Acquisition staff representative to identify the reviews/approvals needed for the proposed acquisition.

 

 NOAA uses simplified Milestone Plans unless the acquisition threshold requires a written AP as described above. Note: All acquisitions for services over the Simplified Acquisition Threshold (SAT) must have an approved Milestone Plan before Solicitation release. The plans provided should be commensurate with, and tailored to, the dollar value and complexity of the acquisition.  See the Simplified Acquisition Procedures and Federal Supply Schedule Plan of Action and Milestones Template.

 

Although a formal Acquisition Plan is not generally required for orders below the Simplified Acquisition Threshold (SAT), it is recommended that the Contracting Officer utilize a Plan of Action and Milestones (POA&M) for complex or high dollar value SAP requirements (see SAP and FSS POA&M Template). The POA&M may be used to inform the Customer of the key procurement milestones (e.g., synopsis and technical review) and projected timeframe for award.

Note: All acquisitions for services over the Simplified Acquisition Threshold (SAT) shall have an approved Milestone Plan (See NOAA Acquisition Handbook Part 7). See Emergency Acquisition Contracting AP Template.

 

1.4.1 Advanced Acquisition Planning Forecast                                   Top of Page


Commerce Acquisition Manual (CAM) chapter CAM 1307.1 requires Advance acquisition planning forecasts which only apply to acquisitions where total life-cycle cost exceeds the Simplified Acquisition Threshold (SAT); or acquisitions with life-cycle cost of the SAT or less when simplified acquisition methods are not used. Forecasts involve the identification of planned acquisitions during the budget formulation process and must commence before the fiscal year begins in order to improve scheduling of actions, increase control of fourth quarter obligations, and further opportunities for consolidating requirements.

 

AGO determines acquisition workload distribution, knowledge requirements, and service levels based on annual Advanced Acquisition Plans (AAP) (see DAO 208-15 Procurement Planning SystemCAM 1307.1,  FY 2010 Agency Acquisition Planning Instructions, FY 2011 Acquisition Planning Instruction, Federal Advanced Acquisition Planning System (FAAPS) websiteNOAA Acquisition Handbook Part 7 and the NOAA Business Operations Manual).  In order for AGO to be an effective business partner with supported program offices, it is imperative that AAPs are submitted in accordance with the timelines and procedures established in the NOAA Business Operations Manual and the NOAA Acquisition Handbook.

 

Milestone Status
CAM Notice 10-19, CAM 1307.1 requires Contracting Officers to update the status of major acquisition milestones in FAAPS (i.e., synopsis posted, solicitation released, offer/proposal due dates, competitive range established, source selection made, award, etc.).  Milestone status shall be recorded under the “Procurement Office Comments” field by the assigned Contracting Officer/Specialist and maintained to reflect the most current updates of the acquisition.  The Procurement Office field has no edit constraints or size limits.  However, since this field will be part of the “public view” option, the comments shall not contain procurement sensitive information.

 

 

1.4.2 Milestone Acquisition Plans                                                         Top of Page


CAM 1307.1 mandates milestone acquisition plans are required for acquisitions where total life-cycle cost exceeds The Simplified Acquisition Threshold (SAT) but are less than $10 million; or acquisitions with life-cycle cost of the SAT or less when simplified acquisition methods are not used.”

 

All acquisitions for services over the Simplified Acquisition Threshold (SAT) shall have an approved Milestone Plan before Solicitation release. The plans provided should be commensurate with, and tailored to, the dollar value and complexity of the acquisitionSee a Template for Simplified Acquisition Procedures and Federal Supply Schedule Planning and Acquisition Milestones.

 

NOAA Acquisition Handbook, page 81 defines a “Milestone Plan” (MP) as a schedule of planned target dates for key milestones to be met during the acquisition. The MP is initiated and formalized by the CS, is concurred in by the COR and approved as indicated below.  A milestone template is provided herein (see NOAA Milestone Plan Template).  The Milestone Plan must receive written concurrence from the Contract Specialist and the Contracting Officer’s Representative and must be approved at the following levels:

 

Dollar Threshold

Information Acquisition Plan - Milestone Approval Level

Below the SAT

Contracting Officer

SAT - $2.5M

Head of Contracting Office (HCO)

$2.5M - Above

Senior Bureau Procurement Official, Director NOAA AGO

 

1.4.3 Formal Acquisition Plans                                                            Top of Page


A formal acquisition plan (written narrative) is required for all acquisitions where total life-cycle cost exceeds $10 million or an acquisition of at any value designated by the Department of Commerce or NOAA, with the exception of unsolicited proposals (per FAR 15.6) and emergency acquisitions.  A formal acquisition plan identifies all significant technical, cost and business issues of a requirement and provides specific solutions to address any critical issues in the proposed acquisition.

 

The formal acquisition plan also requires development of a milestone acquisition plan (see CAM 1307.1 Appendix D which identifies acquisition objectives and outlines the actions, milestones and documents required to meet the acquisition need.

 

Ensure milestone plans reflect standard procurement administrative lead times (PALT) in accordance with CAM 1307.1 Appendix C and NOAA Acquisition Handbook, Part 7, Exhibit 2.

 

Contents.  The Program Official, with advice and assistance from the Contracting Officer, serves as the “planner” in the acquisition planning process and has overall responsibility for preparing and maintaining acquisition plans and associated documentation, and for obtaining all necessary concurrences and approvals.  FAR 7.105 and CAM 1307.1 specifies the elements to be considered in a typical Acquisition Plan including the responsibilities of each of the acquisition planning team members. See NOAA AP Milestone Template

Safeguarding Information.  Milestone and formal acquisition plans contain advance information on proposed acquisitions, which could give prospective contractors an unfair advantage.  Therefore, acquisition plans and supporting documentation are considered procurement sensitive. 

CAM 1307.1 prescribes the following notice shall be prominently displayed on the front page of all formal acquisition plans:

 

“This document contains proprietary or source selection information related to the conduct of a Federal agency procurement. The disclosure and receipt of this information is restricted by Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C.423). The unauthorized disclosure of this information may subject both the discloser and the recipient to the contractual, civil, and/or criminal penalties as provided by law.”

 

 Each page of the plan shall contain a header identifying the title of the acquisition and a footer identifying the page numbers and the following notice:

 

                        “Source Selection Information—See FAR Subparts 2.101 and 3.104-4”

Individuals who participate directly or indirectly in any stage of the acquisition process shall not publicize, discuss or release any information regarding the milestone or formal acquisition plan, supporting documents or other details regarding the proposed acquisition outside DOC or to prospective contractors, except as provided in the FAR.  

 

Reviews and Approvals.  Prior to release of the solicitation Formal acquisition plans shall be prepared, reviewed and approved   Approval Authority is as follows:

 

Dollar Threshold

Approval Authority

$5M-$9.999M

Head of Contracting Activity (HCA) (DUS for Oceans and Atmosphere)

>  $10M

Department of Commerce Senior Procurement Executive (SPE)

and

Commerce Acquisition Review Board

or

Commerce Information Technology Review Board

 

  1.5 Methods to Acquire Goods and Services       

Top of Page

Once a need for supplies/services has been identified, it is essential to determine whether the need can be fulfilled by a required source of supply or service as specified in FAR 8.002. Many of the required sources offer the access to a wide range of supplies and services and provide simple ordering procedures to easily satisfy the Customer’s requirements. 

 

In determining if a required source meets the Government's need, the customer and Acquisition staff should consider factors such as end-function, delivery date, quantity, shipping point, and cost. All procurement actions, regardless of dollar value, shall use the following sources of supplies and services in the order in which they are listed below:

 

Supplies by Descending Order of Priority

  • Agency Inventories
  • Excess From Other Agencies (see FAR 8.1)
  • Federal Prison Industries, Inc. (UNICOR) (see FAR 8.6)
  • Supplies which are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled (see FAR 8.7)
  • Wholesale supply sources such as General Services Administration (GSA) stock programs, the Defense Logistics Agency (DLA), Department of Veterans Affairs (VA), and Military Inventory Control Points (ICPs)
  • Mandatory Federal Supply Schedules (FSS) (see FAR 8.4)
  • Optional use FSS (see FAR 8.4)
  • Commercial Sources (including educational and nonprofit institutions)

 

Use of other Government Supply Sources

 

Services by Descending Order of Priority

  • Services which are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled (see FAR  8.7)
  • Mandatory FSS (see FAR 8.4)
  • Optional use FSS (see FAR 8.4)
  • Federal Prison Industries, Inc. (UNICOR) (see FAR 8.6) or Commercial Sources (including educational and nonprofit institutions)

 

There are a number of ways to satisfy a customer’s procurement requirements that cannot be satisfied through the use of “Mandatory Sources” as outlined above.  Based on market research and dollar threshold, the Contracting Officer, in consultation with the Project Officer, will determine that requirements may be met using any of the following methods:

·         FAR 12 – Acquisition of Commercial Items  FAR 12 Process Map;

·         FAR 13 – Simplified Acquisition Procedures FAR 13 Process Map;

·         FAR 14 – Sealed Bidding FAR 14 Process Map;

·         FAR 15 Contracting by Negotiation FAR 15 Process Map 

·         FAR 17 – Special Contracting Methods Interagency Acquisitions Under the Economy Act

·         FAR 18 – Emergency Acquisition

 

1.5.1 Agency Inventories                                                                      Top of Page

 

The term “agency inventory” refers to in-house stock items (e.g., excess personal property). Per FAR 8.102, when practicable, agency personnel must make positive efforts to satisfy agency requirements by obtaining and using excess personal property (including that which is suitable for adaptation or substitution) before initiating a contract action.

 

Information regarding the availability of excess personal property can be obtained through the following:

·         Review of excess personal property catalogs and bulletins issued by the GSA;

·         Personal contact with GSA or the activity holding the property;

·         Submission of supply requirements to the regional offices of GSA (GSA Form 1539, Request for Excess Personal Property, is available for this purpose); and

·         Examination and inspection of reports and samples of excess personal property in GSA regional offices.

 

1.5.2 Excess from Other Agencies                                                      Top of Page

 

When an agency is unable to fulfill a requirement using excess personal property, it shall next seek property from other agencies.

 

1.5.3 UNICOR / Federal Prison Industries (FPI)                                  Top of Page

 

UNICOR is the trade name for the Federal Prison Industries (FPI) – a self-supporting, wholly owned Government corporation of the District of Columbia that provides training and employment for prisoners in Federal correctional institutions. FAR 8.6 governs the procedures for purchases from UNICOR, which provides a wide range of products and services listed in its FPI schedule that are available for purchase at prices not to exceed current market prices (http://www.unicor.gov/). Supplies manufactured by FPI are in strict conformity with Federal specifications.

 

Before purchasing a product listed in the FPI schedule, the Contracting Officer must conduct market research and then make a written determination (documented in a Determination and Findings (D&F)) whether or not the FPI item is comparable to supplies available from the private sector that best meet the Government's needs in terms of price, quality, and delivery schedule. The determination is a unilateral decision made solely at the discretion of the Contracting Officer and shall be retained in the contract file. Market research is not required if the purchase will be made from a source other than FPI based on an exception listed in FAR 8.605.

 

If an item is comparable, it should be purchased from FPI (following procedures at FAR 8.602), unless a waiver is obtained. FPI waivers are discussed at FAR 8.604; waiver requests should be sent electronically to: https://www.unicor.gov. If the item is found to not be comparable, the item should be acquired using competitive procedures (FAR 6.102, FAR 19.5, and FAR 13) or the fair opportunity procedures in FAR 16.505 if placing an order under a Multiple Award Contract (MAC) Delivery Order. If this is the case, FPI is to be solicited in the same manner as other sources.

 

Authorized Exceptions (FAR 8.605)

Purchase from FPI is not mandatory and a waiver is not required if:

  • As stated above, the Contracting Officer makes a determination that the FPI item of supply is not comparable to supplies available from the private sector that best meet the Government's needs in terms of price, quality, and time of delivery; and
  • The item is acquired in accordance with FAR 8.602(a)(4);
  • Public exigency requires immediate delivery or performance;
  • Suitable used or excess supplies are available;
  • The supplies are acquired and used outside the United States;
  • Items being acquired total $2,500 or less;
  • Acquiring items that FPI offers exclusively on a competitive (non-mandatory) basis, as identified in the FPI Schedule; or
  • Services are being acquired.

 

Items listed in the FPI Schedule of Products are normally ordered using the OF 347, Order for Supplies or Services, or the SF 1449, Solicitation/Contract/Order for Commercial Items. However, FPI also offers a Quick Ship/credit card option for expedited delivery.

 

1.5.4 Committee for Purchase from People Who Are Blind or Severely Disabled                                                                                    Top of Page

 

Federal agencies and activities are required by the Javits-Wagner-O'Day (JWOD) Act and the rules of the National Industries for the Blind and Severely Disabled (NIB/NISH) to purchase requirements for selected supplies and services from nonprofit agencies employing people who are blind or severely disabled (FAR 8.7) at Committee-established prices if available during the required period.

 

Contracting Officers should be aware of the supplies/services available under AbilityOne (renamed from JWOD Program in 2006) and utilize them to the maximum extent practicable. The two central nonprofit agencies under AbilityOne/JWOD are:

 

Before placing orders with any source, buyers must ensure that they have first screened the requirement(s) for mandatory AbilityOne/JWOD products and documented the contract file with the results of the screening. Remember: The contract file must provide an audit trail of all actions taken by the buyer. If there is “special” need for which the A-List product won't work, the file should be annotated. As an example: A buyer purchased a commercial, thick, black marker instead of a Skillcraft marker. Only after some discussion with Command personnel did the reviewing official learn that the marker was needed by divers to mark ships' hulls. AbilityOne/JWOD doesn't make a water insoluble marker and the buyer had failed to adequately annotate the file.

 

The JWOD Procurement List of supplies and services available from AbilityOne/JWOD agencies. The Contracting Officer must obtain supplies on the JWOD Procurement List from the central nonprofit agency or its designated participating AbilityOne/JWOD nonprofit agency. Consult the AbilityOne/JWOD website for specific ordering information. If supplies on the Procurement List are available from DLA, GSA, or VA facilities, these supplies may be ordered from these agencies in lieu of ordering directly from the AbilityOne/JWOD Program as these agencies also provide the AbilityOne/JWOD products.

 

1.5.5 Wholesale Supply Sources                                                         Top of Page

 

Wholesale supply source is an umbrella term identifying the various Government-managed supply systems (GSA, DLA, VA , ICPs). Items are obtained utilizing various requisition methods. See 41 CFR 101-26.6 for information on DLA and 41 CFR 101-26.704 for information on VA. The Code of Federal Regulations can be found at: http://www4.law.cornell.edu/cfr/.

 

1.5.6 Federal Supply Schedules (FSS)                                                Top of Page

 

The General Services Administration (GSA) Federal Supply Schedule (FSS) Program (see FAR  38) is authorized to issue Government-Wide Acquisition Contracts (GWACs) – contracts that allow DOC agencies to place orders with commercial firms for services and products at stated prices. Orders are placed directly with the Schedule Contractor and deliveries are made to the Customer. This provides ordering activities with a simplified process for obtaining commonly used supplies and services at prices associated with volume buying.

 

Placing an order against a GSA FSS, however, is not always an easy or the best solution. Open market competitions generally provide greater flexibility in reserving items to meet socioeconomic goals and particularly for developmental or commercial items, the Government may receive a price benefit as a result of competing the item on the open market. The Contracting Officer is still required to document the reasonableness of the procurement by completing a Business Case Memorandum (BCM) for orders exceeding $100,000 or a Simplified Acquisition Documentation Record for actions below $100,000 but above the micro-purchase threshold.

 

While prices offered on GSA have been determined to be fair and reasonable, multiple /competing offers can provide lower rates resulting in additional savings to the Government.

 

Note: Contracting Officers should seek discounts off of the published schedule prices when an order exceeds the maximum order threshold, when the supply or service is available elsewhere at a lower price, or when establishing a BPA to fulfill recurring requirements. The discounts may be based on such things as comparisons with other vendor prices and quantity discounts. For services, the Contracting Officer is responsible for considering the level of effort and the mix of labor proposed to perform a specific task being ordered, and for determining that the total price is reasonable. In addition, if in the Contracting Officer’s judgment, introduction of competition from non-schedule sources would be in the best interest of the Government in terms of price, delivery or quality, non-schedule alternatives should be utilized.

 

There are two types of GSA FSS:

  • Single Award Schedule – Only one Contractor is listed to provide the specific supplies.
  • Multiple Award Schedule (MAS) – Several vendors are listed who offer the same or similar supplies. The Contracting Officer should review and compare among the vendors before making a best value determination. Best value considerations include special features, trade-in considerations, probable life of the item compared with that of a comparable item, warranty, maintenance availability, past performance, and environmental and energy efficiency.

 

Task and delivery orders to GSA FSS Contractors should be competed to the fullest extent possible. Contracting Officers may solicit quotations from GSA FSS on a sole-source basis (e.g., due to unusual and compelling urgency or exclusive licensing agreement – see APG 1.8.3).

 

“Best Procurement Approach” – Interagency Acquisitions under Federal Supply Schedules (FSS).  FAR 17.5 requires the requesting agency make a determination of best procurement approach for all interagency acquisitions prior to requesting that another agency conduct an acquisition on its behalf.  For assisted acquisitions, concurrence of the requesting agency’s responsible contracting office is also required.  Also for assisted acquisitions, prior to the issuance of a solicitation, the servicing agency and the requesting agency shall both sign a written agreement establishing the general terms and conditions governing the relationship between them, including roles and responsibilities for acquisition planning, contract execution and administration and management of the contract or order.  FAR 17.502-2 contains requirements for the servicing agency for preparation of a business-case analysis when the servicing agency wishes to establish a multi-agency contract in accordance with the Economy Act.  FAR 17.5 states a statutory exception for orders of $500,000 or less against Federal Supply Schedules.

 

1.5.6.1 Ordering Procedures for Supplies or Services                       Top of Page

 

Supplies and Services Not Requiring a Statement of Work (SOW) (FAR 8.405-1).  Contracting Officers may place orders for supplies or services at or below the micro-purchase threshold with any FSS Contractor that can meet the Government’s needs. Contracting Officers must always attempt to distribute orders among Contractors.  

For orders above the micro-purchase threshold but not exceeding the Maximum Ordering Threshold (MOT), the Contracting Officer should consider reasonably available information about the supply or service offered under MAS contracts by surveying at least three schedule Contractors through the GSA Advantage! Online shopping service, or by reviewing the catalogs or pricelists of at least three schedule Contractors.

 

At a minimum, the Contracting Officer shall document the schedule contracts considered, noting the Contractor from which the supply or service was purchased; a description of the supply or service purchased; and the amount paid.

 

The Contracting Officer should seek price reductions from the schedule Contractor appearing to provide the "best value." After price reductions have been sought, the Contracting Officer may place the order directly with the Contractor who provides best value and results in the lowest overall cost alternative. The Contracting Officer should then document the analysis and results in the contract file.

 

Services Requiring a Statement of Work (SOW) (FAR 8.405-2).  Contracting Officers may place orders at or below micro-purchase threshold with any FSS Contractor that can meet the Government’s needs. Always attempt to distribute orders among Contractors. For orders exceeding the micro-purchase threshold, but not exceeding the MOT, the Government shall develop a work statement. To the maximum extent practicable, Statements of Work shall be stated as Performance Work Statements (PWS).

The Contracting Officer shall provide the RFQ (including the PWS and evaluation criteria) to at least three schedule Contractors that offer services that will meet the agency’s needs. The Contracting Officer should request that Contractors submit firm-fixed prices to perform the services identified in the statement of work. GSA FSS orders may be placed on a fixed price or time and materials basis. If the requirement cannot be firm fixed price, FSS orders placed on a T&M basis, must be supported by rationale contained in a D&F, as required by FAR 16.601(c). 

  • The Contracting Officer must ensure the PWS specifies the following (minimum) requirements:
  • The work to be performed;
  • The location of the work to be performed;
  • The period of performance;
  • The delivery schedule;
  • Any applicable performance standards, and]
  • Any special requirements (e.g., security clearances, travel, or special knowledge).

 

At a minimum, the Contracting Officer shall document the procurement file with the following:

  • The schedule contracts considered, noting the Contractor from which the service was purchased;
  • A description of the service purchased;
  • The amount paid;
  • The evaluation methodology used in selecting the Contractor to receive the order;
  • The rationale for any tradeoffs in making the selection;
  • The price reasonableness determination; and
  • The rationale for using other than a firm-fixed price order or a performance-based order.

 

1.5.6.2 Additional Ordering Procedures for Orders Exceeding the Simplified Acquisition Threshold (SAT)  Top of Page

 

Each order exceeding the SAT shall be placed on a competitive basis unless the requirement is waived on the basis of a justification that is prepared and approved in accordance with FAR 8.405-6 and includes a written determination that –

·         A statute expressly authorizes or requires that the purchase be made from a specified source; or

·         One of the exceptions to Fair Opportunity applies.

An order exceeding the SAT is placed on a competitive basis only if the Contracting Officer provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the Contracting Officer will make the selection, to –

·         As many schedule Contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that offers will be received from at least three Contractors that can fulfill the requirements, and the Contracting Officer:

o    Receives offers from at least three Contractors that can fulfill the requirements; or

o    Determines in writing that no additional contractors that can fulfill the requirements could be identified despite reasonable efforts to do so (documentation should clearly explain efforts made to obtain offers from at least three Contractors); and

o    Ensures all offers received are fairly considered; or

o    All Contractors offering the required supplies or services under the applicable multiple award schedule, and affords all Contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.

    • Posting of a Request for Quotations on the GSA’s electronic quote system, “e-Buy” (www.gsaAdvantage.gov), is one medium for providing fair notice to all Contractors.

 

1.5.6.3 Oral Orders                                                                                   Top of Page

 

Ordering activities may place oral orders to acquire non-complex supplies and services whenever practicable.  Oral orders may not be used for the following: services requiring a Statement of Work; brand name specifications in excess of $25,000; when security requirements apply, the requirement contains options, or when an oral order is not the most economical or practical method to use

 

1.5.6.4 e-Buy                                                                                            Top of Page

 

E-Buy is an electronic system that allows Federal buyers to request information, find sources, and prepare RFQs/RFPs online for services and products offered through GSA’s Multiple Award Schedule (MAS) program. E-Buy facilitates the request for and submission of offers for commercial products and services offered through GSA FSS and GWACs. Using the e-Buy system, Contracting Officers may prepare and post an RFQ/RFP for a specified period of time and Contractors may review the request and post a response. E-Buy may be used to provide fair notice to all Contractors.


E-Buy enhances the procurement process for NOAA by leveraging the power of the Internet to increase FSS and GWAC Contractor participation to obtain quotations that result in best value procurement opportunities. For more information, visit https://www.ebuy.gsa.gov/advgsa/ebuy/ctrler/EbuyHome.

 

GSA e-Buy. A component of General Services Administration (GSA) Advantage, e-Buy is an electronic system that allows Federal buyers to request information, find sources, and prepare RFQs/RFPs online for services and products offered through GSA’s Multiple Award Schedule (MAS) program. E-Buy facilitates the request for and submission of offers for commercial products and services offered through GSA Federal Supply Schedules (FSS) and Government-wide Acquisition Contracts (GWACs). Using the e-Buy system, Contracting Officers may prepare and post an RFQ/RFP for a specified period of time and Contractors may review the request and post a response.

1.5.7 Existing Indefinite Delivery Contracts (IDCs) and Multiple Award Contracts (MACs)                                                                                 Top of Page

 

Contracts established under FSS are generally Indefinite Delivery Contracts (IDCs). IDCs are used when a future need for supplies and services is known, but the exact times and/or quantities of future deliveries may not be known at the time of contract award, allowing the Contracting Officer to place individual DOs or TOs as needs are determined. Contracting Officers should screen local contracts and other NOAA and DOC contracts to attempt to fill Customer requirements utilizing existing IDCs. When issuing DOs/TOs against single award IDCs, the Contracting Officer does not need to seek competition or synopsize, and does not need to negotiate terms or prices.

 

Firm fixed-price orders are normally placed against IDCs for supplies or services, GSA Schedules, or contracts with Government agencies such as Federal Prison Industries and nonprofit agencies employing people who are blind or severely disabled Industries. Under an IDC, three contract types exist:

·         Definite Quantity – in which a known quantity exists yet the delivery schedule is unknown.

·         Indefinite Quantity – in which the quantity and delivery schedules are unknown and the IDC promises a minimum quantity to the Contractor.

·         Requirements – guarantees that all requirements for contract line items will be ordered from the Contractor that awarded the IDC.

 

Whether single or multiple award IDC contracts, at a minimum, the IDC contract should include:

·         Terms and conditions

·         Authorized Contracting Officers and Ordering Offices

·         Contract Line Item Numbers (CLINs) and unit prices

·         Basic contract price and any Option period prices

·         Minimum/maximum order quantities

·         Delivery locations and time frames

 

Oral Orders.  Oral orders may be issued against an IDC if authorized in the basic contract. If payment will be made by the Bankcard issuance of a confirming written order is not required. The cardholder must ensure that the information required by FAR 16.505(a)(6) is documented in the purchase file or on the purchase log or IDC DO/TO log. If payment will not be made by a bankcard, oral orders must be confirmed in writing. The basic contract will provide instruction on ordering and confirmation procedures.  See the NOAA Bankcard web site at http://www.ago.noaa.gov/ago/acquisition/bankcard.cfm  for more information.

 

Multiple Award Contracts (MACs). The Contracting Officer should, to the maximum extent practicable, give preference to making multiple awards under a single Solicitation for the same or similar supplies or services to two or more sources.

Mandatory Use of Federal Strategic Sourcing Initiative (FSSI) Blanket Purchasing Agreements (BPAs) for Office Supplies.  The General Services Administration (GSA), along with various other federal agencies, is focusing on optimizing federal buying power through strategic sourcing and collaborative efforts.  Toward that end, GSA has awarded FSSI BPAs for office supplies.  Each BPA has a one-year term with three one-year option periods and has been negotiated to reflect reduced pricing compared to conventional GSA supply schedules and to capitalize on high-volume discounts which will be realized through multi-agency use of these BPAs.  The Department of Commerce (DOC) has mandated the use of these BPAs for acquisition of office supplies within DOC with limited exception (See Attachment (1) to PM 2011-03).  Attachment to the PM detail the available BPA pools and ordering requirements and procedures that apply, with some distinctions in the procedures for orders under the micropurchase threshold, orders between the micropurchase threshold and the simplified acquisition threshold (SAT) and orders over the SAT (e.g., levels of competition required for each category and when buyers must solicit additional price reductions from vendors); andprescribes the requirements for justification and approval of any exception to the use of FSSI BPAs for acquisition of office supplies through any method or contractual vehicle, including purchase cards.

 

With the exception of transactions at PaperClips stores, prior to entering into any acquisition of office supplies not obtained through FSSI BPAs, the Contracting Officer or purchase cardholder shall complete a Justification and Approval for Non-Use of FSSI BPA for Office Supplies form, Attachment (2) to PM 2011-03, specifically documenting the basis for the non-use, including supporting documentation, and forward it to the delegated official for review and approval.  The PM prescribes the Bureau Procurement Official (BPO) as the approving official; however, further prescribes that this authority may be delegated no lower than the Head of the Contracting Office (HCO) at the discretion of the BPO.  NOAA Acquisition Alert (AA) 11-02  delegates the HCO approval authority for the justification document, with emphasis on the requirement that the Contracting Officer or purchase cardholder must request and obtain the approval prior to making the purchase from an alternate source.  AA 11-02 describes a simplified email process that may be used to expedite processing of the justification document.  The HCO shall promptly provide a copy of each approved justification to the AGO Policy and Oversight Division at Jerry.Rorstrom-Lee@noaa.gov.  The Policy and Oversight Division will forward copies of all approved justifications to both the NOAA SBPO and the Office of Acquisition Management (OAM) at TOueen@doc.gov.    

 

The Contracting Officer or purchase cardholder shall retain the approved form in the contract or purchase card file.

 

Mandatory Contracts for Acquisition of Telecommunications and Network Services and Equipment.  GSA awards global contracts for the acquisition of telecommunications and network services and equipment, and the transition from FTS2001 and FTS2001 Crossover to Networx for long distance services is currently underway (January 2011).  The transition from WITS2001 to WITS3 for local services is completed.  GSA has awarded new contracts for these services, and has established a process through which either a Contracting Officer or Designated Agency Representative (DAR) may place orders directly against them for all telecommunications and network services and equipment, including the National Security System (NSS) and Trusted Internet Connections (TIC).  Use of these contracts is mandatory unless a waiver is granted.

For DOC and DOC operating units, CAM Notice 11-05, CAM 1339.70 sets forth the acquisition-specific requirements for the use of Networx and WITS3; defines roles and responsibilities; and establishes the reporting requirements for orders placed under Networx and WIS3.  CAM 1339.70, Subsection 1.5, details roles and responsibilities for the program, including responsibility for issuing, implementing and overseeing compliance with Departmental policy, approving waiver requests, appointment of DARs, and FPDS reporting.  For DOC, the DAR is the appointed representative for placement of orders under the Networx and WITS3 contracts and is responsible for management and oversight of those obligations.  Section 2 details the DAR training requirements, DAR selection and appointment, DAR Authority and DAR recordkeeping requirements.  A Contracting Officer may serve as a DAR.  Section 3 discusses ordering procedures, including:  the requirement to apply a Fair Opportunity process to every requirement in excess of $3,000; funds management, including certification and obligation of funds and monitoring of expenditures; and the waiver process, including a requirement for a cost benefit analysis.  Section 4 assigns responsibility for reporting the orders in FPDS within three days of establishment of the order to the Contracting Officer; consequently, appropriate internal reporting procedures must also be established to ensure timely, complete and accurate reporting in FPDS.  Operating units are encouraged to capture pertinent workload data for these acquisitions in order to fully document the time invested and the level of expertise applied to the orders as this information is not necessarily reflected in CSTARS reporting data.  The BPO shall submit semi-annual data on the use of Networx and related contracts in the format outlined in Appendix A to CAM Notice 11-05, CAM 1339.70.  Reports are cumulative for each fiscal year and shall be submitted on the 10th business day of May (1st and 2nd quarter) and the 10th business day of November (fiscal year) to:

U.S. Department of Commerce
Office of Acquisition Management
Acquisition Workforce and Policy Division
1401 Constitution Avenue, NW
HCHB Room 1854
Washington, DC  20230

 

 

1.5.8 Acquisition of Printing Services and Related Supplies            Top of Page

 

Government printing and related supplies are also Federally mandated to be performed/furnished by or through the Government Printing Office (GPO) unless an exception exists (see FAR 8.802(a)).  For the Department of Commerce (DOC), all printing requirements are to be fulfilled by the GPO.  Offices serviced by Acquisition Divisions within the NOAA HQ Area (D.C. metropolitan area) must coordinate with the NOAA Office of Printing and Visual Arts see NAO 201-32C.  Offices serviced by field Acquisition Divisions (ERAD, CRAD, MRAD, WRAD) shall coordinate with the GPO Regional Printing Office for their specific region (see NAO 201-32C).

 

1.5.9 Commercial Items                                                                     Top of Page

 

The Federal Acquisition Streamlining Act (FASA) resulted in significant changes to Government procurement, including the institution of policy that Government agencies shall buy commercial items that meet agency needs to the maximum extent practicable. Commercial item acquisitions follow the same five phases of the contracting process (Planning, Solicitation, Evaluation, Award, and Post-Award); the predominant difference is in the format and clauses. Procurements pursuant to FAR 12 Commercial Items allow for a Combined Synopsis/Solicitation whereas procurements pursuant to FAR 13.5 Test Program for Certain Commercial Items allow for additional streamlined procedures.

 

1.5.9.1 What Are Commercial Items?                                                        Top of Page

 

FAR 2.101 states, in part, that a commercial item is:

  • Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and has been sold, leased, or licensed to the general public; or has been offered for sale, lease, or license to the general public;

·         Any item that evolved from an item described in paragraph (1) of this definition through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation;

·         Any item that would satisfy a criterion expressed in numbers (1) or (2) above, but for (a) modifications of a type customarily available in the commercial marketplace; or (b) minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. Minor modifications mean modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process.

·         Any combination of items meeting the requirements of paragraphs (1), (2), (3), or (5) of this definition that are of a type customarily combined and sold in combination to the general public;

·         Certain installation services, maintenance services, repair services, training services, and other services;

·         Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions;

·         Any item, combination of items, or service referred to in numbers (1) through (6) above, notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a Contractor; or

·         A non-developmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments.

 

 A good method of determining whether a Government requirement can be met with a commercial item is for the Contracting Officer to ask: “Is this item or service unique to the Government?” and “Is the item generally available to the public?” If the item in question is indeed publicly available, and the amount of the purchase is $3,000 or more for supplies or $2,500 or more for services, then Contracting Officers are required to follow the procedures for a commercial item purchase. Most of the supplies and services the Government buys using SAP are commercial.

Contracting Officers must evaluate each requirement at or below the Simplified Acquisition Threshold (SAT) to determine if it meets the definition of a commercial supply or service in FAR 2. Generally, all requirements under the SAT can be considered commercial unless market research, buyer’s knowledge, etc., indicates that the item is not commercial. The Contracting Officer should proceed to solicit and award simplified acquisitions using commercial practices. The Contracting Officer should document the contract file with the basis for his/her decision to use the policies and procedures of FAR 12 or FAR 13 for acquisitions of supplies and services. In either case, the Solicitation and award should reflect the Contracting Officer’s written determination of commerciality or non-commerciality.

The following decision flow depicts the determination of commerciality or non-commerciality of a supply/service and the steps that ensue:

 

Commerciality / Non-Commerciality Process Flow

APG Image - Commerciality / Non-Commerciality Process Flow

 

 

See also the Commercial Item Determination Checklist.

1.5.9.2 Commercial Item Procedures                                              Top of Page

 

Per FAR 12.102, Contracting Officers should use the policies for commercial items (FAR 12) in conjunction with the policies and procedures for Solicitation, Evaluation, and Award prescribed in FAR 13, Simplified Acquisition Procedures; FAR 14, Sealed Bidding; or FAR 15, Contracting by Negotiation, as appropriate for the particular acquisition.

 

Special requirements have been established for commercial item acquisitions in order for Government practices to leverage those practices found in the commercial marketplace. These requirements include:

  • Market Research: After the requirement has been established, market research should be conducted to determine if the agency’s need can be fulfilled commercially and to determine any unique commercial terms and conditions. Market research also may determine if items are available that can be modified to meet a given requirement or if non-developmental items are available.
  • Description of Agency Need: The purchase description should contain sufficient detail to allow potential Offerors of commercial items to know which of their products and services may be suitable.
  • Contract Type: Commercial items can only be acquired with the use of a firm fixed price, fixed price with economic price adjustment, time-and-materials, or labor-hour award.  See FAR 12.207(b) for documentation requirements when using other than firm fixed price or fixed price with economic price adjustment contract types.  See D&F for T&M Template.
  • Solicitation Procedures: Use a Combined Synopsis/Solicitation (pursuant to FAR 12) whenever possible. The Combined Synopsis/Solicitation procedure offers several benefits, including authorization of a shorter response time and elimination of the requirement to issue a separate written Solicitation.

 

If, through market research, the Contracting Officer determines that a commercial item is available and can meet the Government’s requirement, the Contracting Officer should take the following steps:

  • Evaluate the requirement for small business and subcontracting possibilities. All requirements between $3,000 and the SAT are automatically set aside for small business concerns.
  • Document sole source justification, if applicable.
  • Synopsize the requirement on FedBizOpps using either the combined or standard synopsis procedures of FAR 5.
  • If issuing a written Solicitation, use an SF 1449.
  • After evaluation, award on an SF 1449.

 

Commercial Practices. The terms and conditions delineated in FAR 12 are intended to satisfy the interests of the Government and the Offeror. However, it may be determined through market research that a practice not identified in FAR 12 is customary in the commercial marketplace. The Contracting Officer may tailor FAR 52.212-4 to incorporate any such practices into the Solicitation/order when determined appropriate and not otherwise precluded by law or executive order.

 

Commercial Software. Commercial computer software or documentation can generally be acquired under licenses customarily provided to the public as long as the licenses are consistent with Federal law and satisfy the Government’s needs. (See FAR 12.212.)

 

1.5.9.3 Commercial Items Exceeding the Simplified Acquisition Threshold                                           Top of Page

 

Test Program for Certain Commercial Items provides special authority to use Simplified Acquisition Procedures (SAP) for the acquisition of commercial items exceeding the SAT but not exceeding $6.5 million ($12 million in support of a contingency operation or to facilitate the defense against or recovery from nuclear, biological, chemical, or radiological attack), including Options. An award shall never be issued in excess of the Contracting Officer’s specific delegation of contracting authority. Contracting Officers should employ the simplified procedures authorized by this test program to the maximum extent practicable for commercial items.

 

The purpose of the test program is to vest Contracting Officers with additional procedural discretion and flexibility, so that commercial item acquisitions may be solicited, offered, evaluated, and awarded in a simplified manner that maximizes efficiency and economy and minimizes burden and administrative costs for both the Government and industry. When using SAP to procure commercial items exceeding the SAT, the Contracting Officer must identify in the Solicitation that the procedures of FAR 13.5 will be used.

 

Contracting Officers shall review each acquisition to determine if it can be set-aside for small business participation considering the recommendations of the cognizant Small Business Specialist. Acquisitions over the SAT shall be set-aside for small business participation when there is a reasonable expectation that offers will be obtained from two responsible sources and the award will be made at a fair and reasonable price. The clause at FAR 52.219-8, Utilization of Small Business Concerns, must be included in the Solicitation. Additionally, for all actions that exceed $650,000 for which FAR 52.219-8 is required, the Contracting Officer must include FAR 52.219-9, Small Business Subcontracting Plan.

 

See APG 1.7 Special Considerations for more information on small business set-asides.

 

Maximizing the Use of Competition

 

Full and Open Competition.  Obtaining full and open competition when acquiring goods and services increases the Government’s buying power, as competition can drive down costs and potentially heighten performance, innovation and overall value.  Therefore, in accordance with CAM 1306.7 to the maximum extent practicable, contracting officers shall promote and provide for full and open competition in awarding contracts. 

 

1.5.9.4 Procurement Procedures under FAR Subpart 13.5              Top of Page

 

  • Describe the requirement in terms of commercial items.
  • Perform market research to determine if commercial items are available to meet the Government’s requirement.
  • Evaluate the requirement for small business and subcontracting possibilities.
  • Issue and document sole source requirements as detailed below.
  • Synopsize the requirement using the Combined Synopsis/Solicitation.
  • Issue a written solicitation (if desired) on an SF 1449.
  • After evaluation, issue a unilateral Purchase Order (PO) on an SF 1449. A bilateral PO may also be awarded.
  • Establish BPAs, if desired, which allow Contracting Officers to issue calls up to $5 million, or a lessor amount as expressly stated on the Contracting Officer’s Certificate of Appointment, SF 1402.

 

1.5.9.5 Sole Source Acquisitions under FAR Subpart 13.5              Top of Page

 

Contracting Officers should conduct sole source acquisitions under FAR 13.5 only if the need to do so is justified in a Justification for Other than Full and Open Competition (JOFOC) and approved at the appropriate level. The JOFOC must be prepared using the format at FAR 6.303-2, modified to reflect an acquisition under the authority of the test program for commercial items.

 

Approval levels for JOFOCs under the test program are as follows:

·         For a proposed contract exceeding the SAT, but not exceeding $550,000, the Contracting Officer certifies that the justification is accurate and complete to the best of his/her knowledge.

·         For a proposed contract exceeding $550,000, but not exceeding $10,000,000, the Competition Advocate for the procuring activity, who is the SBPO

See also the Commercial Sole Source Proposal Analysis Roadmap.

 

1.5.9.6 Commerciality Determination                                                 Top of Page

 

Contracting Officers should document in writing their determinations that the commercial item definition has been met for all acquisitions using FAR 12 that exceed $1 million. Contract files must be fully and adequately documented to show the market research conducted and the rationale supporting the decision. Particular care must be taken to document determinations involving modifications of a type customarily available in the commercial marketplace, and items only offered for sale, lease, or license to the general public, but not yet actually sold, leased, or licensed. In these situations, the documentation must clearly detail the particulars of the modifications and sales offers. When such items lack sufficient market pricing histories, additional diligence must be given to determinations that prices are fair and reasonable as required by FAR 15.4.

 

See the Commercial Item Determination Checklist.

See NCMA article “Buyer’s 10 Commandments for Procuring Commercial Items” CM March 2008.

 

1.5.10 Simplified Acquisition Procedures – FAR 13 - Process Map   Top of Page

 

Several simplified acquisition methods for purchase and payment may be utilized to satisfy procurement requirements. Based on market research and dollar threshold, Contracting Officers (in consultation with the Customer) should determine the method most suitable, efficient, and economical for individual procurements. Customers and Contracting Officers may wish to meet to determine the methods that best fit the circumstances of long-term and short-term requirements.

 

Contracting Officers may use Simplified Acquisition Procedures to acquire supplies or services under the following circumstances:

  • Using appropriated funds for an acquisition in which the aggregate amount of supplies or services does not exceed the Simplified Acquisition Threshold (SAT) as defined in FAR 2.101.
  • Procuring commercial supplies or services with a value not greater than $6.5 million ($12 million for contingency operations) including Options, in accordance with FAR 13.5.

 

Simplified Acquisition Procedures (SAP) were developed to accomplish the following:

  • Reduce administrative costs.
  • Improve opportunities for Small, Small Disadvantaged, Women-Owned, and Service-Disabled Veteran Owned Small Businesses.
  • Promote efficiency and economy in contracting.
  • Avoid unnecessary burdens for agencies and Contractors.

 

Simplified acquisitions follow the same basic contracting process as all procurements, involving progression through the five contracting phases: Planning, Solicitation, Evaluation, Award, and Post-Award.

 

SIMPLIFIED ACQUISITION PROCEDURES THRESHOLDS

Threshold

Commercial or non-commercial buys (FAR 2.101)

$150K

Contingency Operation or Defense against Nuclear, Biological, Chemical, or Radiological Attack – inside the United States

$300K

Contingency Operation or Defense against Nuclear, Biological, Chemical, or Radiological Attack – outside the United States

$1M

Commercial supplies and services per FAR 13.5

$6.5K

Commercial – contingency / used for defense against or recovery from attack per FAR 13.5

$12M

 

Note: The Contracting Officer is prohibited, under FAR 13.003, from breaking down requirements aggregating more than the above thresholds into several purchases that are less than the applicable threshold merely to permit use of SAP or avoid requirements applicable to purchases exceeding the micro-purchase threshold or the SAT (otherwise known as “splitting” to circumvent a threshold).

 

1.5.11 Sealed Bidding – FAR Part 14                                           Top of Page

 

Reserved.  See FAR Part 14

                                 

1.5.12 Contracting by Negotiation – FAR Part 15                             Top of Page

Unless conducted using sealed bidding in accordance with FAR 14, all procurements are considered “negotiated.” A negotiated procurement is called such whether the Contracting Officer actually negotiates with Offerors or makes award on initial offer(s). In a sole-source environment, the Contracting Officer can negotiate in the traditional sense by having back-and-forth discussions with the vendor to agree upon technical approach and/or cost/price. In a competitive environment, the Contracting Officer enters into negotiations not in the conventional sense of the word but rather by having formal, structured discussions with Offerors in the competitive range. Finally, a Contracting Officer may decide to award on initial offer(s) (if so stipulated in the Solicitation) without the need for discussions; the procurement is still considered a “negotiated procurement.”

The multifaceted quality of the term “negotiations” also muddies the waters when it comes to defining the term “discussions.” FAR 15.306 identifies that exchanges with Offerors after receipt of proposals can be either “clarifications” or “negotiations.” “Negotiations,” when conducted in a competitive acquisition after establishment of the competitive range, are called “discussions” (see FAR 15.306(d)) with the intent of allowing Offerors to revise their proposals.

Clarifications are limited exchanges between the Government and Offerors that may occur when award without discussions is contemplated. Clarifications may be used to make clear 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.

The line between clarifications and discussions can be fine, and Contracting Officers should involve Counsel prior to clarifications to ensure that they do not go beyond clarifications and accidentally enter into discussions.

 

  1.5.12.1 Unsolicited Proposals                                                         Top of Page

 

The Project Officer, Contracting Officer, or Small Business Specialist may receive an Unsolicited Proposal.  FAR 15.6 sets forth the policies and procedures concerning unsolicited proposals:

 

Unsolicited proposals allow unique and innovative ideas or approaches that have been developed outside the Government to be made available to Government agencies for use in accomplishment of their missions. Unsolicited proposals are offered with the intent that the Government will enter into a contract with the Offeror for research and development or other efforts supporting the Government mission, and often represent a substantial investment of time and effort by the Offeror.  

 

A valid unsolicited proposal must be innovative and unique, independently originated and developed, prepared without Government involvement, and must provide sufficient detail for Government review. Unsolicited proposals are not offered in response to published requests for information (RFIs) or requests for proposal (RFPs). They are not an advance proposal for known agency requirements, nor do they address a previously published agency requirement. Moreover, submission of an unsolicited proposal does not in any way guarantee a contract award.

 

The Project Officer should forward any unsolicited proposals received to the Chief of the Contracting Office which is the Acquisition Division Head of Contracting Office (HCO). The HCO will evaluate the proposal using the criteria set forth in FAR 15.606-2. If the proposal is determined to be outside the mission or invalid, it will be returned by the HCO to the Contractor with an explanation of the reason for rejection. If the proposal is desirable, the Contracting Officer will be responsible for the coordination, evaluation, and award of any resultant contract. A synopsis that specifies the Government’s intent to make a sole-source award and a Justification and Approval (J&A) will be required.

 

For more information, see the attached The Basics of Unsolicited Proposals.

 

1.5.13 Interagency Acquisitions under the Economy Act (Non-NOAA and Non-DOC Contracts Interagency Agreements)                                                      Top of Page

 

In developing an Acquisition Strategy, Project and Contracting Officers must determine the appropriate means to fulfill the requirement. Occasionally other contracts may provide a more efficient and cost effective means of fulfilling the requirement. This determination can be made by considering a variety of important factors:

  • Does use of this contract satisfy customer requirements, meet program schedule, prove cost effective, and consider contract administration?
  • Are the tasks to be accomplished or supplies to be procured within the scope of the contract?
  • Will the funding be used in accordance with appropriation limitations in terms of purpose, time and amount?
  • Will unique terms, conditions, and requirements be provided to the assisting agencies for incorporation into the contract to comply with all applicable NOAA-unique statutes, regulations, directives and other requirements?
  • Have data been collected on the use of assisted acquisitions for analysis?

Non–NOAA contracts may not be used to avoid funding limitations or as a Band-Aid for poor acquisition planning. The transfer of funds should not be the default position of NOAA. Project Officers should make every effort to satisfy the requirement using NOAA resources to maintain contractual controls and, in the process, avoid payment of unnecessary fees. This objective can only be achieved if requirements generators identify their needs and initiate the acquisition and coordination well in advance with the Contracting Officer and Legal Counsel. Contracting Officers should negotiate all fees requested by the Assisting Agency to ensure reasonableness.

The following definitions are pertinent to understanding and following Direct and Assisted Acquisition procedures:

“Assisting Activity” means the department/agency/activity outside of NOAA with contracting responsibility for a NOAA requirement.

“Assisted Acquisition” means a contract awarded or a task or delivery order placed on behalf of NOAA by an official of the United States outside of NOAA. This may also include situations in which the assisting agency provides the support themselves.

“Direct Acquisition” means a task or delivery order above the Simplified Acquisition Threshold placed by a NOAA Contracting Officer/Ordering Officer against a contract vehicle established outside of NOAA.

 “DoD Agency” means Army, Navy, Air Force and DoD Agencies such as the Defense Logistics Agency.

 

“Economy Act Order” means orders involving funds transfers using the authority of the Economy Act, 31 USC 1535.

 

“Interagency Acquisition” means a procedure by which an agency needing supplies or services (the requiring agency) obtains them from another agency (the assisting agency).

 

“Micro-Purchase Threshold” currently means $3,000, except it means—

            (1) $2,500 for acquisitions of services subject to the Service Contract Act;

            (2) $2,000 for acquisitions of construction subject to the Davis-Bacon Act; and

            (3) As otherwise specified in FAR 2.101.

 

“Non-DoD Agency” means any Federal agency outside of the DoD.

 

“Non-Economy Act Order” means orders involving funds transfers using authority other than the Economy Act, the most commonly used authorities being the General Services Administration (GSA) Acquisition Services Fund or Franchise Funds.

“Non-NOAA Contracts” means contracts awarded by an official outside of NOAA. These include optional use Federal Supply Schedules, Blanket Purchase Agreements (BPA) issued against Federal Supply Schedules, and other contracts/schedules awarded outside of NOAA.

“Requiring Individual” means the individual in the organization responsible for identifying and fulfilling the requirement.

“Requiring Activity Supporting Contracting Office” means the NOAA contracting activity normally providing contracting support to the requiring organization.

“Simplified Acquisition Threshold (SAT)” currently means $150,000 except as further defined in FAR 2.101.

 

 “Best Procurement Approach” Determination – Interagency Acquisitions.  FAR 17.502-1 requires a determination of best procurement approach for all interagency acquisitions prior to requesting that another agency conduct an acquisition on its behalf.  For assisted acquisitions, concurrence of the requesting agency’s responsible contracting office is also required.  Also for assisted acquisitions, prior to the issuance of a solicitation, the servicing agency and the requesting agency shall both sign a written agreement establishing the general terms and conditions governing the relationship between them, including roles and responsibilities for acquisition planning, contract execution and administration and management of the contract or order.  Subsection 17.502-2 contains requirements for the servicing agency for preparation of a business-case analysis when the servicing agency wishes to establish a multi-agency contract in accordance with the Economy Act.  FAR 17.5 states a statutory exception for orders of $500,000 or less against Federal Supply Schedules. 

For Assisted Acquisitions, NOAA Contracting Officers in concert with the cognizant Comptroller must ensure the appropriate Determination and Findings (D&F) is completed (see APG 1.7.8 and Interagency Funds Transfer Checklist). For Direct Acquisitions over SAT, the justification should be included in the Business Clearance Memorandum (see BCM Module).

The Office of Acquisition Management outlines Department of Commerce guidance regarding the use of Interagency Agreements and Other Special Agreement at CAM 1317.570 and at http://oam.eas.commerce.gov/CAS_agreement_mou.html.  The CAM chapter specifies DOC requirements for operating units when using interagency agreements for award and administration of direct acquisitions; and development, preparation, review, clearance, approval, cost and performance monitoring, and close-out of assisted acquisitions. 

 

In the case of assisted acquisitions, requesting agency personnel must work with the servicing agency to develop the acquisition strategy as well as in assisting with contract administration, including contractor surveillance and performance evaluation, review of invoices, and closeout. 

 

When DOC is the servicing agency, DOC personnel shall coordinate the work with the requesting agency in much the same manner.  A model format for agreements under Economy Act authority (for general use) can be found at http://www.ogc.doc.gov/gen_law.html.  The elements of the Agreement must be incorporated into any interagency agreement for assisted acquisition under authority of the Economy Act. 

DOC Reporting Requirements.  Senior Bureau Procurement Officials(SBPO) are required to submit to Department of Commerce(DOC) a high-level semi-annual report of the portfolio for all funded and unfunded active agreements; pending agreements; and those agreements which expired during the 6-month period being reported.  These reports are due to Department of Commerce on November 1 (for the period April 1 through September 30) and May 1 (for the period October 1 through March 31).  Consequently, Head of the Contracting Office (HCOs) shall prepare a semi-annual report using the format at CAM 1317.570 Appendix E, of all such interagency acquisitions under their or their Contracting Officers’ supervision.  Files for all such interagency acquisitions shall be maintained in a central location to facilitate preparation of this report.  The report shall be timely submitted to NOAA AGO Director’s Office so that the SBPO can meet the required dates for submission of the reports to DOC.

FPDS Reporting Requirements:  For assisted acquisitions, in addition to any required terms and conditions, the Project Officer must include a requirement for the servicing agency to enter the DOC Funding Agency and Funding Office Identification in FPDS (see APG 1.9.8) when reporting any contract action which results from the agreement.  For awards on behalf of the Department of Defense (DoD), see CAM 1317.570 regarding specific FPDS reporting requirements.

1.5.14 Emergency Acquisition                                                              Top of Page

  

FAR 18 - Emergency Acquisition identifies acquisition flexibilities that are available for emergency acquisitions.  “Emergency Acquisition Flexibilities” as defined in the Federal Acquisition Regulation provide for regulatory and statutory exemptions that are applicable to facilitate acquisitions in an emergency environment.

The NOAA AGO preference for acquisition response to an emergency is use of existing DOC/NOAA contract vehicles. A list of existing contract vehicles and contracts is provided in the NOAA COOP Contracts List.

 

1.5.14.1 Contracting Thresholds at a Glance                                      Top of Page

 

Simplified Acquisition Procedures Threshold

Threshold

Contingency Operation or Defense against Nuclear, Biological, Chemical, or Radiological Attack – inside the United States

$300K

Contingency Operation or Defense against Nuclear, Biological, Chemical, or Radiological Attack – outside the United States

$1M

Commercial Items per FAR 13.5 – contingency / used for defense against or recovery from attack

$11M

Micro-purchase Threshold

 

Contingency Operation or Defense against Nuclear, Biological, Chemical, or Radiological Attack per FAR 13.201(g)(1)

≤ $15K inside U.S.

≤ $25K outside U.S.

 

1.5.14.2 Getting Prepared                                                                      Top of Page

 

Pre-load Data. The preferred method of executing contracts is through the use of C.Buy if a C.Buy connected computer is available to you. If access to C.Buy is not available, you may be required to create contracting documents manually. Before you deploy, it is important to pre-load procurement instrument templates (e.g., for a PWS, SOW, J&A, or D&F) onto your laptop to the maximum extent possible. These templates are available to you in the NOAA APG Template Matrix. You may also need to have a stock of these forms pre-printed and available and primary and secondary COOP sites in order to support possible paper-based transaction processing.

 

Learn About Your New Environment. It is imperative that you complete your due diligence to find out as much information as you can regarding the environment you will soon be entering and operating within. Educating yourself on geography, local news and items of interest, and safety information is paramount to your success.

Know What To Expect.  Contracting Officers deployed to support an incident response, contingency environment, or COOP may be responsible for the following:

  • Establish minimum suitable office space.
  • Obtain low security profile transportation for Contracting Officer’s dedicated use.
  • Establish suitable communications for the office and mobile unit.
  • Contact the HCA designee, existing USG installations within the deployment area, or, in the event of OCONUS, the U.S. Embassy or Consulate in the host nation for guidance on contracting information or Host Country Support Agreements.
  • Obtain maps of adjacent towns or settlements and conduct personal visits to learn availability of necessary items of supplies or services. Mark maps and prepare source lists. Secure telephone books of the local area, if available. (NOTE: Maps and source lists should be updated as new information becomes available. Source lists should be annotated to reflect which contractors will provide 24-hour emergency response.)
  • Work with the incident commander to establish good working relations with local officials.
  • Obtain an interpreter, if necessary, at the earliest opportunity (OCONUS)
  • Keep the incident commander (per Incident Command System) informed of contracting matters.
  • Establish a system for Clients to submit purchase requests for local acquisitions.
  • Update Client training to orient them to the purchasing system as soon as practicable.
  • Adapt the system to suit local conditions.
  • Appoint decentralized ordering officers (Delegated Procurement Authority) within functional areas, as necessary, with Contracting Officer supervised purchasing authority up to the maximum order limit of the indefinite delivery/requirements contract or BPA. Ordering officers will be trained in the use of simplified acquisition procedures and funds accountability.
  • Identify functional personnel with a Bankcard and home station funding. Coordinate and control Bankcard activity according to purchase request approval procedures to achieve economical purchases and avoid duplication of purchased resources. Advise cardholders on local market conditions, limitations, and statement reconciliation procedures.
  • Report contracting actions and dollars as required.
  • Advise Clients to use the NOAA APG as a reference source for understanding contracting processes in an emergency, incident response, contingency operation, or COOP.

 

For your personal preparation, check with your Acquisition Division HCA and the NOAA AGO COOP for a pre-deployment/emergency acquisition checklist. (See Pre-Deployment Checklist Example).

 

1.5.14.3 Variations                                                                                  Top of Page

 

REFERENCE

SUBJECT

GUIDELINES

FAR 4.1102(a)(3)

Central Contractor Registration

Contracts awarded to support unusual and compelling needs or emergency acquisitions are exempt from the requirements pertaining to Central Contractor Registration.  

FAR 5.202(a)(2)

Synopses of Proposed Contract Actions

When there is an unusual and compelling urgency and the Government would be seriously injured if the agency complied with the notice time periods, the Contracting Officer need not submit the notice. (See FAR 18.103)

FAR 6.001(a)

Competition Requirements

For contracts awarded using the simplified acquisition procedures in FAR Part 13, FAR Part 6 competition requirements do not apply (See FAR 13.501 for requirements pertaining to sole source acquisitions of commercial items under FAR 13.5).

FAR 6.302-2

Full and Open Competition

When the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided.

FAR 9.206-1

Qualification Requirements

When the agency head or designee determines that an emergency exists, whenever an agency elects, whether before or after award, not to enforce a qualification requirement which it established, the requirement may not thereafter be enforced unless the agency complies with FAR 9.202(a).

FAR 13.106-1(b)

Soliciting Competition under SAP

When purchases do not exceed the SAT, contracting officers may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand name, or industrial mobilization).

FAR 15.203(f)

Written vs. Oral RFPs

Oral RFPs are authorized when processing a written solicitation would delay the acquisition of supplies or services to the detriment of the Government and a notice is not required under FAR 5.202 (e.g., perishable items and support of contingency operations or other emergency situations). Use of an oral RFP does not relieve the contracting officer from complying with other FAR requirements.

 

FAR 26.2

Robert T. Stafford Disaster Relief and Emergency Assistance Act

Contracts awarded under the authority of this Act shall give preference, to the extent practicable and feasible, to local firms.  Preference may be given through a local area set-aside or through an evaluation preference when authorized in agency regulations or procedures.

FAR 33.103(f)

FAR 33.104(b) and (c)

 

Protests

 

When urgent and compelling circumstances exist, the head of the contracting activity may continue award or performance.

FAR 25.102

Buy American Act

Not applicable for items purchased outside the U.S. and its territories.

FAR 28.102-1(a)

Bonds

Miller Act 40 U.S.C. 270a-f, can be waived by the contracting officer for overseas construction.

 

  1.5.14.4 Governing Policy and Training                                            Top of Page

 

The following DOC and NOAA policies apply to acquisitions during emergencies, COOP, and contingency operations:

 

·         OMB Policy:  Emergency Acquisition Guide – May 2007

 

·         DOC Policy: DOC Procurement Memorandum 2006-07 Emergency Acquisition Flexibilities

 

·         NOAA Policy: NOAA Acquisition Alert System 10-02 – Processing acquisitions in support incidents requiring quick acquisition turnarounds (e.g. Deep Water Horizon)

 

·         NOAA Policy: NOAA Acquisition Alert System 06-01 Standard Provision for Incident/Emergency Management Acquisitions

 

Training Resources:

 

  • Training of many types is available for those interested in or requiring more information on emergency acquisition contracting and emergency acquisitions.

 

 

 

 

1.5.14.5 Micro-Purchases                                                                      Top of Page

 

While the majority of the dollars that you spend as an Emergency Acquisition Contracting Officer will likely be obligated using one of the instruments designated for use at or below the SAT, the majority of your procurement actions will likely be completed for purchases at or below the micro-purchase threshold.

Micro-purchasing regulations are designed to reduce administrative work and expedite the purchases of readily available supplies and services. After determining that supplies/services are not available from mandatory sources (as must occur in all procurements per FAR 8), the Contracting Officer may initiate a micro-purchase.

 

The micro-purchase threshold for Department of Commerce transactions is $2,500 for services and $3,000 for supplies; however, per FAR 13.201 for purchases to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack, the micro-purchase threshold is raised to:

  • $15,000 in the case of any contract to be awarded and performed,or purchase to be made, inside the United States; and
  • $25,000 in the case of any contract to be awarded and performed,or purchase to be made, outside the United States.

 

1.5.14.6 Government-wide Commercial Purchase Card a.k.a. Bankcard

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The Government-wide Commercial Purchase Card a.k.a. Purchase Card or Bankcard is authorized for use in making and/or paying for purchases of supplies, services, or construction up to the SAT in an emergency acquisition subject to the limitations and authorities for the use of the Bankcard.

 

The Bankcard may not be used for the following items:

  • Cash advances
  • Rental or lease of land or buildings
  • Telecommunications services
  • Travel or travel-related expenses

 

  • Rental or lease of motor vehicles
  • Expenses associated with official travel
  • Hazardous materials

 

 

Contracting Officers must determine and apply the particular policies in effect for the operation they are supporting. This should be a routine part of the Contracting Officer 's pre-deployment planning process.

 

The Micro-Purchase Worksheet and Electronic Purchase Log should be used to document each micro-purchase. Applicable requisition and award documents should be maintained in the purchase file.

 

For more information on use of the Bankcard see http://www.ago.noaa.gov/ago/acquisition/bankcard.cfm.  

 

1.5.14.7 Simplified Acquisition Procedures(SAP)                               Top of Page

 

FAR 2.101 defines the SAT for contingency operations or to facilitate defense against or recovery from nuclear, biological, chemical or radiological attack (41 U.S.C. 428a) as:

 

  • $300,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and
  • ·         $1 million for any contract to be awarded and performed, or purchase to be made, outside the United States.

   

FAR 13.500(e) authorizes the use of SAP above the Simplified Acquisition Threshold (SAT) but not exceeding $12 million for commercial items that, as determined by the head of the agency, are to be used in support of a contingency operation or to facilitate the defense against or recovery from nuclear, biological, chemical, or radiological attack.

 

These thresholds enable the Contracting Officer to deliver a greater variety of supplies and services to a customer in need much more quickly than under usual circumstances.

 

Contracting Officers should always seek to obtain competition to the maximum extent possible. The requirement to solicit offers from at least three sources per FAR 13.104 does not apply in an emergency acquisition if the Contracting Officer makes a determination that the circumstances regarding urgency described at FAR 13.106(b) exist.

 

The “broad discretion in fashioning suitable evaluation procedures” allowed the Contracting Officer by FAR 13.106-2(b) is particularly helpful in the Emergency Acquisition environment; however, be aware that the requirements to document price reasonableness still apply. The EA KO Simplified Acquisition Documentation Record may be used to document the purchase file.

                                                                                          

1.5.14.8 Contracts > the Simplified Acquisition Threshold (SAT)                                            Top of Page

 

Most Client requirements in the Emergency Acquisition environment will require the use of only SAP; however, because of the unpredictable nature of requirements in an emergency, the EA KO may be required to execute contracts in accordance with the procedures in FAR 15. Such large procurements will tax the limited resources of the Emergency Acquisition Contracting Officer(EA KO), who can expect little or no help to accomplish the task. The key to successful emergency acquisition contracting is taking maximum advantage of regulatory flexibility – and documenting it.

 

Large contracts in excess of $11 million will be negotiated in accordance with FAR 15, CAM, CAR, and the NOAA Acquisition Handbook. While the time necessary to execute a large purchase would normally be greater than that for simplified acquisitions, there are exemptions available to expedite the process. Two provisions normally applicable to the award of large contracts are the requirement for full and open competition and the need for a written solicitation. These provisions can slow the award process considerably. Competition may be limited per FAR 6.302 and oral RFPs may be authorized when the EA KO completes the appropriate file documentation required by those citations.

 

Contracts awarded pursuant to the authority of FAR 6.302-2, Unusual and Compelling Urgency, may not exceed the time for the agency to enter into another contract for the required goods and services through the use of competitive procedures, and may not exceed one year unless the head of the agency entering into the contract determines that exceptional circumstances apply.  The determination may be made after contract award when making the determination prior to award would unnecessarily delay the award.

 

1.6 Contract Types

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FAR 16 - Contract Types - Contracting Officer selects the contract type for any given procurement, basing the decision, in part, on information provided by the Customer/Project Officer. Understanding the factors considered in the various types of contracts will help Customer/Project Officers appreciate the importance of providing complete and thorough documentation.

 

The selection of a contract type will vary according to the specific needs of the Customer/Project Officer. Successful planning includes forecasting needs to ensure that the resulting procurement(s) will do the following:  

·         Support the acquisition mission of the Customer/Project Officer in a timely manner.

·         Support the financial objectives and availability of budgeted funds.

·         Adhere to the appropriate laws and regulations.

·         Identify acceptable risks and tradeoffs.  

·         For a quick reference of contract types, see the Contract Types Matrix at APG 1.6.2

  

  1.6.1 Factors in Selecting Contract Types                                         Top of Page

 

A wide selection of contract types is available to the Government to allow for flexibility in accommodating the vast variety and volume of supplies and services that the Government procures.  It is the policy of DOC to take appropriate actions to maximize competition, minimize the use of high-risk contracting authorities, mitigate risk when utilizing high-risk contracts, and employ sound practices to ensure the effective use, management, and oversight of all contracts (see CAM 1316.1).  In addition, Office of Management and Budget (OMB) memorandum entitled Increasing Competition and Structuring Contracts for the Best Results dated October 27, 2009, provides guidelines for selecting the most appropriate contract type and maximizing competition

  1.6.1.1 Basic Contract Types                                                               Top of Page

 

Basic Contract Types.  Basic contract types are grouped into two broad categories: Fixed Price (FAR 16.2) and Cost Reimbursement (FAR 16.3). Within these categories, specific contract types vary according to (a) the degree and timing of the responsibility assumed by the Contractor for the costs of performance and (b) the amount and nature of the profit incentive offered to the Contractor for achieving or exceeding specified standards or goals. (FAR 16.4). There are varying levels of cost and performance risk associated with each contract type.

 

As discussed in FAR 16.104, the Contracting Officer considers many factors when selecting and negotiating contract types:

 

Price competition. Normally, effective price competition results in realistic pricing, and a fixed-price contract is ordinarily in the Government's interest.

 

Price analysis. Price analysis, with or without competition, may provide a basis for selecting the contract type. The degree to which price analysis can provide a realistic pricing standard should be carefully considered.

 

Cost analysis. In the absence of effective price competition and if price analysis is not sufficient, the cost estimates of the Offeror and the Government provide the bases for negotiating contract pricing arrangements. It is essential that the uncertainties involved in performance and their possible impact upon costs be identified and evaluated, so that a contract type that places a reasonable degree of cost responsibility upon the Contractor can be negotiated.

 

Type and complexity of the requirement. Complex requirements, particularly those unique to the Government, usually result in greater risk assumption by the Government. This is especially true for complex research and development contracts, when performance uncertainties or the likelihood of changes makes it difficult to estimate performance costs in advance. As a requirement recurs or as quantity production begins, the cost risk should shift to the Contractor, and a fixed-price contract should be considered.

 

Urgency of the requirement. If urgency is a primary factor, the Government may choose to assume a greater proportion of risk or it may offer incentives to ensure timely contract performance.

 

Period of performance or length of production run. In times of economic uncertainty, contracts extending over a relatively long period may require economic price adjustment terms.

 

Contractor's technical capability and financial responsibility.

 

Adequacy of the Contractor's accounting system. Before agreeing on a contract type other than firm-fixed-price, the Contracting Officer shall ensure that the Contractor's accounting system will permit timely development of all necessary cost data in the form required by the proposed contract type. This factor may be critical when the contract type requires price revision while performance is in progress, or when a cost-reimbursement contract is being considered and all current or past experience with the Contractor has been on a fixed-price basis.

 

Concurrent contracts. If performance under the proposed contract involves concurrent operations under other contracts, the impact of those contracts, including their pricing arrangements, should be considered.

 

Extent and nature of proposed subcontracting. If the Contractor proposes extensive subcontracting, a contract type reflecting the actual risks to the prime Contractor should be selected.

 

Acquisition history. Contractor risk usually decreases as the requirement is repetitively acquired. Also, product descriptions or descriptions of services to be performed can be defined more clearly.

 

Combining contract types.  If the entire contract cannot be firm-fixed price, the Contracting Officer shall consider whether or not a portion of the contract can be established on a firm-fixed price basis.

 

  1.6.1.2 Other Considerations                                                             Top of Page

 

Commercial Items. FAR 12.2 describes special requirements for the acquisition of commercial items. FAR 12.207 addresses contract types when acquiring commercial items – specifically that agencies must use firm-fixed-price contracts or fixed-price contracts with economic price adjustment except when the criteria at FAR 12.207(b) are met and a Time and Materials or Labor Hour contract type may be used. Indefinite-delivery contracts may be used where the prices are established based on a firm-fixed-price or fixed-price with economic price adjustment. These contract types may be used in conjunction with an award fee and performance or delivery incentives when the award fee or incentive is based solely on factors other than cost (see FAR 16.202-1 and FAR 16.203-1). Use of any other contract type to acquire commercial items is prohibited.

 

Service Contracts.  If the requirement is a service, the Client should be able to specify the required support, estimate the duration of need, and outline desired results, which will facilitate obtaining the best possible services and maximizing the outcome. Contracting Officers must ensure that the requirement is, indeed, a service as defined by FAR 37 for Service Contracting – that is, “a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply.”

 

As prescribed in FAR 37.102 describes policy regarding contracting for services. Agencies must use performance-based acquisition methods to the maximum extent practicable when contracting for services except when acquiring architect-engineer services, construction services, utility services, or services incidental to supply services. As well, agencies must use the following order of precedence when acquiring services:

·         A firm-fixed-price performance-based contract or task order.

·         A performance-based contract or task order that is not firm-fixed-price.

·         A contract or task order that is not performance-based.  

 

When acquiring services, including those acquired under supply contracts or orders, agencies must use PBA methods to the maximum extent practicable, except for the following:

·         Architect-engineer services acquired in accordance with 40 U.S.C. 1101 et seq. (see FAR Part 36);  

·         Construction (see FAR Part 36);  

·         Utility services (see FAR Part 41); or

·         Services that are incidental to supply purchases.

 

All service contracts, whether performance-based or not, require the use of a Quality Assurance Surveillance Plan (QASP) in accordance with FAR 46.103(a) to measure performance. Contracting Officers are responsible for ensuring a QASP is prepared by the Client for service contracts. The appointed Contracting Officer’s Representative (COR) utilizes the QASP in conducting surveillance and oversight of Contractor performance.

 

Note: The Service Contract Act does not apply to work performed outside of the United States.

 

Cost Plus Award Fee (CPAF) Contracts.  FAR 16.405-2(b)(1)(i) states that “The cost-plus-award-fee contract is suitable for use when … the work to be performed is such that it is neither feasible nor effective to devise predetermined objective incentive targets applicable to cost, technical performance or schedule.” It is the policy of NOAA that objective criteria will be utilized, whenever possible, to measure contract performance. If it is determined that objective criteria do not exist and that it is appropriate to use a CPAF contract, then the Contracting Officer shall document the contract file to reflect that “the work to be performed is such that it is neither feasible nor effective to devise predetermined objective incentive targets applicable to cost  technical performance, or schedule.” When objective criteria exist and the Contracting and Project Officer wish to also evaluate and incentivize subjective elements of performance, the most appropriate contract type would be a multiple incentive type contract, containing both incentive and award fee criteria or a fixed price/award fee contract. For more information see OFPP Memorandum “Appropriate Use of Incentive Contracts” December 2007.

 

Hybrid Contracts.  The use of a hybrid contract may offer an appropriate balance between the requirement, how fulfilling the requirement is priced and the level of risk the Government and contractor bear.  In a hybrid contract, increments for which there is a basis for firm pricing can be awarded as firm-fixed-price while factors for which there remains considerable uncertainty can be acquired on a cost-reimbursement or time-and-material or labor-hour basis.

 

Use of Incentives to Motivate.  Incentives enable the Government to reduce exposure to risk by tying payment of fees to contractor performance.  Incentives should be considered to motivate effective cost control and encourage quality, timely performance, taking into consideration factors that are within the contractor’s controls.

 

  1.6.2 Cost Risk of Contract Type                                                   Top of Page

 

Cost risk varies in concert with the level of requirements definition. The decision of selecting the most appropriate contract type is the principle method of allocating cost and performance risk between the government and the contractor and requires careful consideration of the level of uncertainty regarding the requirement. The use of fixed-price contracts is preferred unless considerable uncertainty of the necessary resources to achieve the Government’s objective and risks associated with adequately fulfilling the requirement cannot be managed by the contractor within economically reasonable parameters. The use of cost-reimbursement contracts allows the Government to absorb a greater portion of the risk and avoid costly contingencies that a contractor may be forced to offer on a fixed-price basis.   The following contracting authorities are considered high-risk due to the potential of misuse or overspending when used inappropriately or without proper oversight and management:  

Noncompetitive Contracts. Noncompetitive contracts present a risk to the Government due to the position the Government faces when negotiating contracts without the benefit of a direct market mechanism to help establish pricing.

Single Offer Contracts. Competitions that yield only one offer in response to a solicitation deprive the Government of the ability to consider alternative solutions in a reasoned and structured manner.

Cost-reimbursement Contracts. Cost-reimbursement contracts are suitable for use only when uncertainties involved in contract performance do not permit cost to be estimated with sufficient accuracy to use any type of fixed-price contract.  They provide limited direct incentive for contractors to control costs because they bind the contractor to making “best efforts”.

Time-and-Materials Contracts. Time-and-materials contracts are a form of cost-reimbursement type contracts. Since time-and-materials contracts provide no positive profit incentive to the contractor for cost control or labor efficiency, this contract type may be used only when it is not possible, at the time of placing the contract, to estimate accurately the extent or duration of the work or anticipate costs with any reasonable degree of confidence.

Labor-Hour Contracts. Labor-hour contracts are a variation of a time-and materials contract differing only in that the materials are not supplied by the contractor.  Labor-hour contracts provide no positive profit incentive to the contractor for cost control or labor efficiency and may be used only when it is not possible, at the time of placing the contract, to estimate accurately the extent or duration of the work or anticipate costs with any reasonable degree of confidence.

Incentive Contracts. Incentive contracts are appropriate when a firm-fixed-price contract is not appropriate and the required supplies or services can be acquired at lower costs and, in certain instances, improved delivery or technical performance, by relating the amount of profit or fee payable under the contract to the contractor’s performance.

Indefinite-Delivery Contracts. Indefinite-delivery contracts for very broadly stated Professional and Management Support services where it is intended that individual task orders will provide more specific direction on the actual services to be provided exposes the government to greater performance risk.

 

An assessment of this relationship between cost risk and requirements definition helps to identify the preferred contract type for an acquisition. The following table demonstrates six acquisition situations and the appropriate contract type for each situation using the stages of a major system acquisition to demonstrate how contract type alternatives typically change as contract requirements become better defined and the work needed to complete the contract becomes more certain.

APG Image - Cost Risk and contract type

Transition to Lower Risk Contract Types.   Over time, experience generally enables the Government to address uncertainties, making it possible to convert to more competitive and lower risk contract types that create a better incentive to provide the desired products or services within time and on budget.  In addition, changing circumstances may make a lower risk contract type appropriate in later periods.  FAR 16.103 cautions Contracting Officers to avoid protracted use of cost-reimbursement or time-and-materials and/or labor-hour contracts after experience provides a basis for firmer pricing.  When re-competing a requirement, if a decision is made that it is premature to transition to a lower risk contract type, Contracting Officers shall document and support their rationale not to transition. The documentation shall include a rationale explaining why it remains difficult to define the requirements with a reasonable degree of certainty; market research results identifying barriers to competition; and results of spend analysis that does not support firm-fixed pricing and/or competitive practices.

 

  1.6.3 Fixed-Price (FP) Contracts                                                        Top of Page

 

Explanation: The Government agrees to pay a fixed amount for a product or service.

 

Use When:

  • Requirements and specifications are reasonably well defined.
  • Contractors are experienced in meeting the requirement.
  • Procuring commercial items in accordance with FAR 12.207.

 

General Advantages:

  • Provides maximum incentive for the Contractor to control costs and perform effectively.
  • Ensures that all costs and resulting profit or loss are the full responsibility and risk of the Contractor.

 

Disadvantages:

  • Must have a reasonably definitive functional or detailed specification package.
  • Proposed prices may contain pricing for unknown risks.
  • May deter potential Offerors who do not want to assume the risk of cost overruns.
  • Full funding is required.

 

Varieties of FP Contracts:

·         Firm-Fixed-Price (FFP) is the most common of the FP contracts. Provides a firm-fixed price that includes profit for each line item or grouping of line items.

·         Fixed-Price Incentive (FPI) contains a ceiling price, target cost, target profit, and a profit sharing formula that motivates the Contractor to control costs and meet stated objectives. Use when labor or material requirements are moderately uncertain, such as in the production of a major system based on a prototype.

·         Fixed-Price Award Fee (FPAF) is a FFP with standards for evaluating performance and procedures for calculating a fee based on performance against the standards. A typical application would be for installation support services. (See FAR 16.404)

·         Fixed-Price Economic Price Adjustment (FP-EPA) provides for upward and downward revision of the stated contract price upon the occurrence of specified contingencies within the areas of established prices, actual costs of labor/material, or cost indexes of labor/material. Use when the stability of the market or labor conditions during an extended period of performance is uncertain and contingencies that would otherwise be included in the contract price can be identified and covered separately in the contract.

·         Fixed-Price Level of Effort (FP-LOE) means the Government agrees to pay a fixed dollar amount for a specified level of effort over a stated period of timed and may be used when the contract price is the SAT or less unless approved by the Head of the Contracting Office (HCO).

  

1.6.4 Cost-Reimbursement (CR) Contracts                                         Top of Page

 

Cost-reimbursement contracts require the Government to reimburse the contractor for costs that are reasonable, allocable and allowable. The Government assumes the greatest performance risk with cost-reimbursement contracts since the contractor is only required to put forth its “best effort” in the performance of the contract.  For this reason, cost-reimbursement contracts shall only be used when circumstances do not allow the requirement to be sufficiently defined or uncertainties involved in contract performance do not permit costs to be estimated with sufficient accuracy to benefit from the use of a fixed-price contract; the contractor’s accounting system has been determined adequate for determining costs related to the contract; adequate Government resources are available to award and manage the contract type and an appropriate Government surveillance plan is in place that provides reasonable assurance efficient methods and effective cost controls are utilized. See CAM 1316.1, Appendix B.

 

The Contracting Officer shall prepare a Justification and Approval determination and obtain appropriate level approvals as indicated in CAM 1316.1 and Acquisition Alert 2010-03. 

 

Explanation: The Government pays for allowable costs incurred, to the extent prescribed in the contract, usually with some type of profit arrangement.

 

Use When: A fixed-price type contract is inappropriate due to the immaturity of the product or uncertainties in the nature of the work required; however, when preparing for follow-on contracts, determine if any portion can be broken out and ordered on a fixed-price basis.

  

Advantages:

  • Does not require firm Specifications.
  • Can be incrementally funded.

 

Disadvantages:

  • No real incentive for the Contractor to control costs.
  • Government assumes risk of cost overruns.
  • Requires significantly more post award Government oversight than fixed-price type contracts to ensure the Government receives good value. (See APG  Post-Award Module)

 

Varieties of CR Contracts:

 

·         Cost-Sharing – Contractor is reimbursed for an agreed-upon portion of its allowable costs and agrees to absorb the rest of its cost.  The contractor receives no fee; instead it anticipates other benefits for performing the contract.

·         Cost-Plus-Fixed-Fee (CPFF) – Negotiated fee fixed at inception of contract; however, may be adjusted as a result of changes in the work performed under the contract. Provides contractor minimal incentive to control costs. Note:  Fee shall not exceed the statutory limitations outlined in FAR 15.404-4(c)(4)(i).

·         Cost-Plus-Incentive-Fee (CPIF) – Initial negotiated fee to be adjusted later by a formula that relates total allowable costs to total target cost. Contractor is incentivized to control costs and meet performance objectives to realize a higher fee.

·         Cost-Plus-Award-Fee (CPAF) – Provides for a fee that consists of a base fee amount (which may even be $0) that is negotiated prior to award, and an award fee amount, which is based on the Government’s subjective evaluation of contract performance.  The award fee is designed to motivate excellence in the areas of cost, schedule and technical performance.  (See FAR 16.305).  Requires the Government to prepare an Award Fee Plan that establishes the procedures for evaluating award-fee and an Award-Fee Board for conducting the award fee evaluation. FAR 16.401(e)(2) directs that award fee shall not be earned if the contractor’s overall cost, schedule, and technical performance in the aggregate is below satisfactory.  It further directs that the basis for all award-fee determinations shall be documented in the contract file to include, at a minimum, a determination that overall cost, schedule and technical performance in the aggregate ir or is not at a satisfactory level.  This determination and the methodology for determining the award fee are unilateral decisions made solely at the discretion of the Government.  See CAM 1316.1 and FAR 16.401(e)(3) for more information.

 

The Office of Acquisition and Management (OAM) will maintain a database of all contracts and orders containing award fee, award term and incentive provisions.  Contracting Officers shall submit to OAM the required documentation delineated in CAM 1316.1, Paragraph 7.5.  

 

  1.6.5 Time-and-Materials (T&M) Contracts                                        Top of Page

 

Time-and-materials and labor-hour contracts are a form of cost-reimbursement contracts; therefore, they shall be used only when it is impossible to accurately, or with any degree of confidence define the effort, time, or cost required to provide a product or service.  Since time-­and-materials and labor-hour contracts provide no incentive to the contractor to control costs or improve labor efficiency, increased government surveillance of the contractor’s performance is required to ensure the contractor is employing effective, cost-efficient methods.

    

Explanation: Provides for acquiring supplies or services on the basis of direct labor hours at specified fixed hourly rates that include wages, overhead, general and administrative expenses, and profit; and incidental materials at cost, including, if appropriate, material handling costs.  Labor-hour contracts differ only in that materials are not furnished by the contractor.   Labor-hour contract types shall be used only to acquire services.

    

Use ONLY When:   The Contracting Officer makes a determination that the contractor  has an adequate accounting system, the Government has adequate resources to award and manage the contract type, and an appropriate Government surveillance plan is in place that provides reasonable assurance efficient methods and effective cost controls are in place.  The Contracting Officer shall prepare a Determination and Findings (D & F) and obtain appropriate level approvals.  For more information see CAM 1316.1, Acquisition Alert 2010-03, FAR 16.601, and D&F for T&M Contract Template).   

 

Advantages:

·         Provides for the delivery of services at fixed hourly rates and for materials at cost (although a material handling fee may be applied).

·         FAR authorizes the use of T&M or Labor Hour contract types for commercial item procurements. (For an overview, see the FAC 2005-15 T&M Information Sheet; for a comparison of T&M policies and examples of applications, see the Comparison of Regulations for T&M/LH Contracts Chart.)

 

Disadvantages:

  • Least desirable of all cost vehicles, as it provides no positive profit incentive to the Contractor for cost control or labor efficiency; therefore, appropriate Government surveillance of Contractor performance is required to give reasonable assurance that efficient methods and effective cost controls are being used. In addition, there is no guarantee that appropriate staffing levels will match fixed rates.
  • Must be justified with a Determination and Findings (D&F).
  • Requires extensive oversight by the appointed Contracting Officer’s Representative (COR) to perform tasks such as verifying the appropriateness of the labor categories and reasonableness of the labor hours worked and materials used.  

 

1.6.6 Letter Contracts/ Undefinitized Contract Actions (UCAs)            Top of Page

 

Explanation: Guidance for Letter Contracts and Undefinitized Contract Actions (UCAs) is provided for in FAR 16.603. A Letter Contract is considered to be a UCA for which the price is not agreed upon prior to commencing performance. A Letter Contract/UCA is a written preliminary contractual instrument that authorizes the Contractor to begin immediately manufacturing supplies or performing services. A Letter Contract/UCA should be as complete and definitive as possible under the circumstances.  

 

HCOs must approve D&Fs for Letter Contracts.  If the HCO is the Contracting Officer for the letter contract, the D&F must be approved at a level above the HCO. 

The following documentation is required prior to executing a Letter Contract:

  • D&F that no other contract is suitable (D&F for UCA Template).
  • Draft of proposed letter contract
  • Statement of Need /Urgency Impact provided by the Project Officer.
  • Approved Funding Document - The Government shall not obligate more than 50 percent of the not-to-exceed price before definitization. However, if a Contractor submits a qualifying proposal before 50 percent of the not-to-exceed price has been obligated by the Government, then the limitation on obligations before definitization may be increased to no more than 75 percent.
  • Definitization schedule to include the following (addressed in the D&F):

o   Dates for submission of the Contractor’s price proposal, required cost or pricing data, and, if required, make-or-buy and subcontracting plans (Note: UCAs shall include at least a preliminary basic subcontracting plan addressing the requirements of  FAR 19.704 and shall require the negotiation of the final plan within 90 days after award or before definitization, whichever occurs first (FAR 19.705-5(b)), and

o   A date for the start of negotiations, and

o   A target date for definitization, which shall be the earliest practicable date for definitization.

Prior to the definitization of the Letter Contract/UCA, the Contracting Officer must prepare a Business Case Memorandum (BCM) and obtain approval see APG Evaluation Module. Per GSA's Policy Office, letter contracts/UCAs may not be placed against GSA's Multiple Award Schedule Contracts.

 

Use When:

  • The negotiation of a definitive contract action is not possible in sufficient time to meet the Government’s requirements (e.g., under urgent and compelling circumstances).
  • The Government’s interest demands that the Contractor be given a binding commitment so that contract performance can begin immediately.

 

Advantages:

  • Allows Contractor to begin work for the immediate support of mission requirements.

 

Disadvantages:

 

1.6.7 Indefinite-Delivery Contracts                                                       Top of Page

 

The use of an indefinite-delivery contract is suitable for commercial supplies or services when the need is recurring. There are three types of indefinite-delivery contracts: definite-quantity contracts, requirements contracts, and indefinite-quantity contracts.   

 

Explanation: Allows acquisition of supplies and/or services when the exact times and/or exact quantities of future deliveries are not known at the time of contract award. Indefinite-delivery contracts are also known as delivery order contracts (supplies) or task order contracts (services).

 

Use When:

  • Delivery schedule is uncertain.
  • Quantity of supplies or services is uncertain.
  • A minimum and maximum quantity can be established.
  • A recurring need is anticipated.

 

Advantages:

  • Allows the Government to procure an indefinite quantity of supplies or services (within stated limits) during a fixed period.
  • Allows Government stocks to be maintained at minimum levels.
  • Allows flexibility in both quantities and delivery scheduling.
  • Permits ordering of supplies or services after requirements materialize.

 

Varieties of Indefinite-Delivery Contracts:

·         Definite-Quantity – (FAR 16.502) – Provides for delivery of a definite quantity of specific supplies or services for a fixed period with deliveries or performance to be scheduled at designated locations upon order. Use when it can be determined in advance that a definite quantity of supplies or services will be required during the contract period and the supplies or services are regularly available or will be available after a short lead time.

·         Requirements – (FAR 16.503) – Provides for filling all actual purchase requirements of designated Government activities for supplies or services during a specified contract period with deliveries or performance to be scheduled by placing orders with the Contractor. Use when recurring requirements are anticipated but precise quantities that designated activities will need during a definite period cannot be predetermined. There is no funding at the time of contract award; funds are obligated at the time of issuance of the task or delivery orders against the contract. Commonly used for household good moves.

·         Indefinite-Quantity – (FAR 16.504) – Provides for delivery of an indefinite quantity of supplies or services during a fixed period within stated limits. Indefinite Delivery, Indefinite Quantity (IDIQ) contracts should be used only when a recurring need is anticipated. The Government places orders for individual requirements with quantity limits stated as a number of units or dollar values. May be used when the Government cannot predetermine the precise quantities of supplies or services that will be required during a given period. Must specify a reasonable minimum quantity that is more than a nominal amount and a realistic maximum quantity. In the case of indefinite quantity contracts for supplies or services that specify delivery of minimum quantities during a given period, an obligation shall be recorded upon execution of the contract for the cost of the minimum quantity specified.

 

FAR 16.504 requires the Contracting Officer give preference to multiple awards of IDIQ contracts under a single Solicitation and all multiple awardees be given a fair opportunity to compete for task orders after contract award unless an exception exists. The Contracting Officer must document the decision whether or not to use multiple awards under an IDIQ contract in the acquisition plan or contract file. A Multiple Award Contract (MAC) requires the identification of a Task and Delivery Order Ombudsman per FAR 16.504 and FAR 16.505 in the Solicitation and resulting contract. The Contracting Officer may determine that a class of acquisitions is not appropriate for multiple awards.

 

Additional requirements: The Contracting Officer shall prepare a D&F and obtain appropriate level approvals. Also requires a Mitigation Plan which shall be signed by the COR, Program Manager and the Contracting Officer. Task Orders for Professional and Management Support services shall identify specific performance metrics and outcomes that the oversight personnel will use to measure acceptability of contractor performance (see CAM 1316.1).

1.6.8 Agreements                                                                                    Top of Page

 

1.6.8.1 Basic Ordering Agreement (BOA) (FAR 16.703)                          Top of Page

 

A basic ordering agreement is a written instrument of understanding, negotiated between an agency, contracting activity, or contracting office and a contractor, that contains (1) terms and clauses applying to future contracts (orders) between the parties during its term, (2) a description, as specific as practicable, of supplies or services to be provided, and (3) methods for pricing, issuing, and delivering future orders under the basic ordering agreement. A basic ordering agreement is not a contract.
 

Explanation: A written instrument of understanding between the Government and a Contractor that contains (1) terms and clauses applying to future contracts (orders) between the parties; (2) a description of supplies or services to be provided; and (3) methods for pricing, issuing, and delivering future orders under the BOA.

 

Use When:

  • Contracting for uncertain requirements must be expedited or when specific items, quantities, and prices are unknown at the time of agreement.
  • The purchase of a substantial number of requirements is anticipated.

 

Advantages:

·         May reduce administrative lead-time, inventory investment, and inventory obsolescence due to design changes.

 

Disadvantages:

  • May require the issuance of a Justification and Approval (J&A) prior to issuing an order.
  • Period for which orders can be placed against a BOA cannot exceed five years.

 

    1.6.8.2 Basic Purchase Agreement (BPA)                                        Top of Page

 

In accordance with Federal Acquisition Regulation (FAR) 8.405-3, ordering activities may establish Basic Purchase Agreements under any GSA Schedule contract. A GSA Schedule BPA simplifies the fillin of recurring needs for supplies (products) and services, while leveraging a customer's buying power by taking advantage of quantity discounts, saving administrative time, and reducing paperwork.  

1.6.8.3  Interagency Agreements (IA)                                                    Top of Page

 

The Office of Acquisition Management outlines Department of Commerce policy regarding the use of Interagency Agreements and Other Special Agreement at CAM 1317.570 and at http://oam.eas.commerce.gov/CAS_agreement_mou.html.  The CAM chapter specifies DOC requirements for operating units when using interagency agreements for award and administration of direct acquisitions; and development, preparation, review, clearance, approval, cost and performance monitoring, and close-out of assisted acquisitions. 

 

In the case of assisted acquisitions, requesting agency personnel must work with the servicing agency to develop the acquisition strategy as well as in assisting with contract administration, including contractor surveillance and performance evaluation, review of invoices, and closeout. 

 

When DOC is the servicing agency, DOC personnel shall coordinate the work with the requesting agency in much the same manner.  A model format for agreements under Economy Act authority (for general use) can be found at http://www.ogc.doc.gov/gen_law.html.  The elements of the Agreement must be incorporated into any interagency agreement for assisted acquisition under authority of the Economy Act. 

 

“Best Procurement Approach” Determination – Interagency Acquisitions.  Prior to requesting that another agency conduct an acquisition on its behalf FAR 17.502-1 requires a determination of best procurement approach for all interagency acquisitions.  For assisted acquisitions, concurrence of the requesting agency’s responsible contracting office is also required.  Also for assisted acquisitions, prior to the issuance of a solicitation, the servicing agency and the requesting agency shall both sign a written agreement establishing the general terms and conditions governing the relationship between them, including roles and responsibilities for acquisition planning, contract execution and administration and management of the contract or order.  Subsection 17.502-2 contains requirements for the servicing agency for preparation of a business-case analysis when the servicing agency wishes to establish a multi-agency contract in accordance with the Economy Act.  FAR 17.5 states a statutory exception for orders of $500,000 or less against Federal Supply Schedules.

 

 1.7 Special Considerations in Contract Planning

 Top of Page

Additional areas should be considered and documentation may be required depending upon the type and size of the procurement.

 

1.7.1 Small Business Considerations                                                Top of Page

NOAA is required by statute to implement basic small business programs. FAR 19.201 dictates that the Government shall “provide maximum practicable opportunities in its acquisitions [to small businesses],” including the opportunity to participate as prime Contractors and subcontractors.  Support of small business socioeconomic program goals begins during the Planning phase.  Recommendations for each acquisition are documented on the Small Business Set-Aside Review form (CD 570).

Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 (micro-purchase threshold) but not exceeding the Simplified Acquisition Threshold (SAT) ($300,000 for contingency operations) is reserved exclusively for small business concerns and should be set aside per FAR 19.5, however, purchases from required sources of supply under FAR 8 are exempt from small business set-aside requirements. However, if the CO is recommending that the acquisition should not be set-aside for small business, the CO must obtain the Small Business Specialist’s approval/concurrence via the CD-570 and include that approval/clearance CD-570 Review Levels in the award file. 

 

Submit the CD-570 to the Small Business Specialist for approval, along with a copy of the CD-435 and supporting documentation, i.e., statement of work, source list, etc.  The Small Business Specialist will provide a decision on the set-aside based on the information submitted.   For more information on Procurement Center Representative (PCR)s, see the Small Business Administration’s (SBA’s) assigned Procurement Center Representative (PCR).

 

The following set-asides may also be considered:

·         Service-Disabled Veteran-Owned Small Business (SDVOSB) (see FAR 19.1405)

·         Small Disadvantage Small Business

·         Woman-Owned Small Business

·         HUBZone Small Business (see FAR 19.1305),

 

For acquisitions greater than the Simplified Acquisition Threshold (SAT), the requirement to set aside an acquisition for HUBZone Small Business Concerns takes priority over the requirement to set aside the acquisition for small business concerns.

 

Note: Socioeconomic programs do not apply overseas. A non U.S.-based Contracting Officer may contract with local businesses without the FAR restrictions for small business concerns.

 

1.7.1.1 SBA Size Standards                                                                   Top of Page

           

To be eligible for small business set-asides, a firm must be small, as defined by size standards that are set by the SBA, as well as meet the definition of “small business concern” in FAR 19.001. The Small Business Act states that a small business concern is "one that is independently owned and operated and which is not dominant in its field of operation." The SBA establishes size standards on an industry-by-industry basis (see FAR 19.102). SBA’s table of size standards numerically defines the size of each for-profit industry and is matched to North American Industry Classification System (NAICS) codes. A size standard is almost always stated either as the number of employees or average annual receipts of a business concern, unless otherwise noted (http://www.sba.gov/size/indextableofsize.html).

 

The North American Industry Classification Standard (NAICS) was developed jointly by the U.S., Canada, and Mexico to provide comparability in statistics about business activity across North America. The U.S. Census Bureau assigns one NAICS code to each establishment based on its primary activity (the activity that generates the most revenue for the establishment). Generally, the NAICS classification codes are derived from information that the business establishment provided on administrative, survey, or census reports. NAICS categories do not distinguish business size; however, the SBA, in a continuing effort to define small businesses within industries, established a table of size standards matched to NAICS standards that identifies whether a business entity is small and therefore eligible for Government programs/preferences reserved for small business concerns.

 

The Contracting Officer shall determine the appropriate NAICS code and related small business size standard and include them in all solicitations above the micro-purchase threshold (see FAR 19.303 and 13 C.F.R. 121.402).

 

SBA programs are designated by NAICS code based upon the product/service being procured. The size standards themselves are expressed in either number of employees or annual receipts in millions of dollars, unless otherwise specified. The number indicates the maximum allowed for a concern and its affiliates to be considered small. Note that receipts represent actual retrospective earnings (as opposed to projected earnings) based upon the most recent three-year average. (For businesses younger than three years, the SBA uses other methods – such as tax returns, books of account, and audited financial statements – to analyze and define receipts.)

 

Contracting Officers can see if a company is considered a small business under a particular NAICS code by accessing the SBA Dynamic Small Business Search (DSBS) and entering the name of the company and the applicable NAICS code. If the NAICS code is listed and if in the corresponding column labeled “Small” the word “yes” appears, then the company meets the SBA's definition as a small business under that NAICS Code. If the word "no" appears in the “Small” column, then the company is considered a large business for that particular NAICS and is ineligible for the competition.

 

A company without the specific code listed in its profile may self-certify it is small under the size standard specified in the Solicitation. The Contracting Officer may accept a concern’s self-certification as true for the particular procurement in the absence of a written protest by other Offerors or other credible information that causes the Contracting Officer or SBA to question the size of the concern. Additional information concerning this process is provided in the Code of Federal Regulations Section 121.405.

 

To find more information about the SBA size standards, visit the SBA website; www.sba.gov/size/indexsize.html. To learn more about the size statistics collected by the Census Bureau, visit www.census.gov/epcd/www/smallbus.html.

 

1.7.1.2 Small Business Size Certification                                             Top of Page

             

1.7.1.2.1 SBA Size Recertification                                                         Top of Page

             

To ensure that small business size status is accurately represented and reported over the life of long-term Federal contracts, effective 30 June 2007, small business size status is not automatically retained from the time of initial offer. This SBA size recertification rule (Federal Register Nov 15 2006) is applicable to Solicitations as well as to all current and future long-term contracts.

 

Recertification must occur prior to the following events:

  • Option exercise
  • Merger or acquisition
  • End of the first five years of a contract

 

Government-Wide Acquisition Contracts (GWACs), General Services Administration (GSA) Multiple Award Schedule (MAS) contracts, and multi-agency contracts (MACs) are not exempted from this rule.

 

1.7.1.2.2 SBA Size Re-Representation – Long Term Contracts       Top of Page

             

Long-term contract means a contract of more than five years in duration, including options.  However, the term does not include contracts that exceed five years in duration because the period of performance has been extended for a cumulative period not to exceed six months under the clause at FAR 52.217-8, Option to Extend Services, or other appropriate authority.

 

FAR 19.301-2 requires a contractor that represented itself as a small business concern before contract award re-represent its size status for the North American Industry Classification system (NAICS) code in the contract prior to the end of the fifth year of a contract that is more than five years in duration (long-term contract); prior to exercising any option thereafter; following a novation agreement on any contract; or following a merger or acquisition, regardless of the existence of a novation.  The change clarifies that if a contractor re-represents his size status as other than small, the agency may no longer include the value of options exercised, modifications issued, orders issued, or purchases made under blanket purchasing agreements on that contract in its small business prime contracting goal achievements.  Further, Agencies should issue a modification to the contract capturing the re-representation and report it to FPDS within 30 days after notification of the re-representation.    

 

Government-Wide Acquisition Contracts (GWACs), General Services Administration (GSA) Multiple Award Schedule (MAS) contracts, and multi-agency contracts (MACs) are not exempted from this rule.

 

1.7.1.3 Small Business Program Definitions                                       Top of Page

 

The NOAA Contracting community is responsible for promoting business with small or disadvantaged companies in order to meet Federal Small Business goals. It is important that the Project Officer understand these socioeconomic initiatives when planning procurement.

 

A firm may possibly meet the criteria for the first seven of the below programs at the same time. More information on each of these programs is available at the Small Business Administration website at http://www.sba.gov.

 

Small Business Concern (SB).  Located in U.S, organized for profit, including affiliates is independently owned & operated, not dominant in field of operations in which it is bidding on Government contracts, AND meets SBA size standards included in the Solicitation. The size standard is based upon the North American Industrial Classification Standard (NAICS) assigned to the specific procurement dependent upon product/service purchased.  

 

Woman-Owned Small Business (WOSB).  Small Business, at least 51% owned by one or more women, AND management and daily business operations controlled by one or more women. Qualified firms may self-certify as a woman-owned small business.

 

Small Disadvantaged Business (SDB).  Small Business concern unconditionally owned and controlled by one or more socially and economically disadvantaged individuals who are of good character & citizens of the U.S., AND must be certified by the Small Business Administration (SBA).

 

Small Disadvantaged Business 8(a) Certified [8(a)].  Small Business, SBA-certified as a SDB, AND certified by SBA into the 8(a) Business Development Program for a maximum of 9 years.

 

Historically Underutilized Business Zone (HUBZone).  Small Business, at least 51% owned and controlled by one or more U.S. citizens, AND must be certified by SBA as a HUBZone concern (principal office located in an economically-distressed HUBZone area AND 35% or more employees live in any designated HUBZone).  

 

Veteran-Owned Small Business (VOSB).  Small Business, veteran-owned as defined in 38 USC 101(2), 51% or more owned by one or more veterans, AND management and daily operations controlled by one or more veterans. Qualified firms may self-certify as a veteran-owned small business.  

 

Service-Disabled Veteran Owned Small Business (SD-VOSB).  Small Business, veteran-owned, 51% or more owned by one or more service-disabled veterans, AND management & daily business operations controlled by one or more service disabled veterans OR in the case of veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran, AND with 0% - 100% service-connected disability as defined in 38 USC 101(16) & documented on DD 214 or equivalent. Qualified firms may self-certify as a service-disabled veteran owned small business. For more information.

 

Historically Black Colleges & Universities/Minority Institutions (HBCU/MI).  HBCU is an accredited institution established before 1964 whose principal mission is education of black Americans. MIs are institutions meeting requirements of Higher Education Act of 1965 and Hispanic-serving institutions defined at 20 USC 1059. The Secretary of Education must designate HBCUs/MIs. Lists of HBCU/MIs are available at http://www.ed.gov/about/inits/list/whhbcu/edlite-list.html.

 

1.7.1.4 Bundling and Consolidation                                                     Top of Page

 

Bundling.  Bundling is when two or more requirements previously provided or performed under separate smaller contracts are combined into a Solicitation for a single contract that is likely to be unsuitable for award to a small business concern (due to size or nature of the performance, anticipated dollar value, and/or location of performance – see FAR 2.101 and FAR 7.107).

 

The Contracting Officer must perform market research to determine whether bundling is necessary and justified and would derive measurable substantial benefits that would outweigh the impact on small business participation. Measurable benefits might result from an assessment of the following:

  • Cost savings.
  • Quality improvements that will save time or improve or enhance performance or efficiency.
  • Reduction in acquisition cycle times

 

The Contracting Officer must show benefits equivalent to 10 percent of the estimated contract value if the contract is $86 million or less (and five percent of the estimated contract value or $8.6 million, whichever is greater, if the value exceeds $86 million). If the Contracting Officer is unable to show the required savings, the Service Acquisition Executive, Deputy Secretary of Commerce must make the determination that bundling is necessary (see FAR 7.107(c)).

 

For more regulatory and policy guidance see PM 2003-04 Bundling Action Plan and FAR Requirements for Bundled Contracts.

 

Consolidation.  Consolidation is when two or more requirements previously provided or performed under separate smaller contracts are combined into one and may be offered under a Small Business program. Agencies may not consolidate requirements with an estimated value exceeding $5.5 million unless the acquisition strategy includes the following:

 

  • Results of market research showing consolidation is necessary/justified because the benefits of consolidation exceed the benefits of each of the possible alternative contracting approaches. A benefits assessment will include an assessment of costs as well as an assessment of the following (regardless of whether quantifiable in dollar amounts):
    • Quality.
    • Acquisition Cycle.
    • Terms and conditions.
  • Any other benefit. (Savings in administrative/personnel costs alone are not sufficient unless the total savings is substantial in relation to the procurement.)
  • Identification of any alternate contracting approaches that would involve a lesser degree of consolidation.
  • A determination by the Senior Procurement Executive (Director, DOC Office of Acquisition Management and Financial Assistance) that the consolidation is necessary and justified. This determination should be identified in the BCM.

 

Additional Guidance.  Offerors may challenge bundling and consolidation decisions by protesting to the Government Accountability Office (GAO). Here are two examples:

Sigmatech, Inc.; B-296401; August 10, 2005 – GAO sustained a protest challenging bundling of services with other requirements under a single-award BPA issued under awardee’s FSS contract, claiming the Agency failed to perform bundling analysis or satisfy the requirements of the following:

·         FAR 7.107(a) and (b), conducting sufficient market research to determine that bundling is necessary and justified;

·         FAR 10.001(c)(2), notifying affected incumbent small business concerns of the Government’s intention to bundle the requirement at least 30 days prior to releasing the Solicitation; and

·         FAR 19.202-1, encouraging small business participation in acquisitions.

TRS Research; B-290644; September 13, 2002 – GAO sustained a protest claiming the Agency improperly bundled its requirements in violation of the Small Business Act. GAO stated that an agency must justify bundling of requirements by analyzing the benefits and costs of such an approach.

 

For a detailed discussion of Bundling and Consolidation, see Benefit Analysis Guidebook: A Reference to Assist Department of Defense Acquisition Strategy Teams in Performing a Benefit Analysis before Bundling Contract Requirements. This guidebook provides a thorough discussion of what bundling is and is not and describes actions that acquisition strategy teams can take to avoid or mitigate bundling’s potential negative consequences on small businesses. It is a tool for striking the right balance between maximizing small business participation in contracts and achieving for the Government the benefits of contract consolidation. It also contains a helpful decision flow chart (Figure 5-1) and checklist (pages v-vi).

 

1.7.1.5 Determining NAICS Codes                                                                 Top of Page

 

Until October 1, 2000, small business standards were classified by a four-digit code called a Standard Industrial Classification (SIC) Code. NAICS codes have since replaced SIC codes. On the NAICS web page (http://www.naics.com/search.htm), the Contracting Officer can search on NAICS codes. The SBA website also provides instructions on determining a NAICS code: See http://www.sba.gov. For size standard purposes, procurements are classified in the industry whose definition best describes the principal nature of the product or services being acquired. The Contracting Officer ultimately determines the NAICS code.

 

Upon approval, the NAICS Code and size standard listed in the CD-570 should be included in the synopsis. The Solicitation must include the provision at FAR 52.219-1, Small Business Program Representations, required for inclusion in all Solicitations exceeding the micro-purchase threshold when the contract will be performed in the U.S. or its outlying areas.

 

1.7.1.6 Applying the Small Business Size Standard in a Procurement    

   Top of Page 

Per FAR 19.102, small business size standards are applied by:

§  Classifying the product or service being acquired in the industry whose definition, as found in the NAICS manual (http://www.census.gov/epcd/www/naics.html), best describes the product,

§  Identifying the size standard that SBA has established for that industry, and

§  Specifying the size standard in the Solicitation so that Offerors can correctly identify themselves as small or large.

 

1.7.1.7 Nonmanufacturer Rule and waivers                                                   Top of Page

 

Per the SBA, a nonmanufacturer concern is one that supplies a product under a Federal Government contract that it did not manufacture.  The Nonmanufacturer Rule is detailed in paragraph (b) of 13 CFR §121.406.  To qualify for Federal Government contracting, a nonmanufacturer must have 500 or fewer employees, be primarily in the wholesale or retail trade, and supply the product of a U.S. small manufacturer, if the contract is set aside for a small business. This requirement is called the “Nonmanufacturer Rule.” FAR 19 dictates that a Contractor under a small business set-aside or 8(a) contract shall be a small business under the applicable size standard and shall provide either its own product or that of another domestic small business manufacturing or processing concern under the Nonmanufacturer Rule.

 

Waivers for Nonmanufacturers. SBA has waived the requirement for small businesses to furnish supplies manufactured by small businesses for simplified acquisitions not exceeding $25,000. Therefore, a small business may provide a quote on the product of any domestic manufacturer (regardless of size), as long as the procurement is less than $25,000. For acquisitions above $25,000, the small business Vendor must provide a quote on products manufactured by a small business. SBA may waive the requirement for a Vendor to furnish supplies manufactured by a small business if there are no small business manufacturers or producers in the Federal market.

 

The SBA Associate Administrator for Government Contracting has the authority to make decisions on waivers of the Nonmanufacturer Rule in the following cases:

·         After reviewing a determination by a Contracting Officer that no small business manufacturer or processor can reasonably be expected to offer a product meeting the
Specifications (including period of performance) required of an Offeror or by the Solicitation; or

·         For a product or class of products after determining that no small business is available to participate in the Federal procurement market.

 

The two types of waivers of the Nonmanufacturer Rule are regularly referred to as “individual waivers” or “Solicitation-specific” and “class waivers.” More information on each type and a sample format for waiver requests can be found at http://www.sba.gov/.

 

Contracting Officers may request that the SBA waive the Nonmanufacturer Rule for a particular class of products. When procuring an item on the SBA waiver list, the Contracting Officer may proceed with the set-aside by incorporating FAR 52.219-6, Alternate I, which allows the small business Contractor to provide the product of any domestic manufacturer. For items that are not on the SBA list of classes for which a waiver has been granted, the Contracting Officer may document the file and solicit on an unrestricted basis or may request an individual waiver from SBA to proceed with the set-aside. Once the waiver is received, the Contracting Officer may proceed with the small business set-aside. The contract shall include FAR Clause 52.219-6, Alternate I; however, the acquisition remains under the total small business set-aside.

 

1.7.1.8 Small Business Administration (SBA) 8(a) Business Development Program                                                                                                   Top of Page

 

The SBA 8(a) Business Development Program was created to help small disadvantaged businesses compete in the Federal procurement market. To be considered for the program, a business must apply via the local SBA district office. Once certified by the SBA, program participants enter a developmental stage for four years and then a transitional stage for five years. The SBA reviews 8(a) firms annually for compliance with eligibility requirements.

 

Procedures Less than or Equal to the SAT.  No separate agency offering is needed for requirements that are issued under purchase orders that do not exceed the SAT. After an 8(a) Contractor has been identified, the Contracting Officer shall establish the prices, terms, and conditions with the 8(a) Contractor and shall prepare a purchase order consistent with the procedures in FAR 13, including the applicable clauses. No later than the day that the purchase order is provided to the 8(a) Contractor, the Contracting Officer shall provide it to the cognizant SBA Business Opportunity Specialist, using facsimile, electronic mail, or any other means acceptable to the SBA district office.  The SBA will review the eligibility of the 8(a) participant within two working days after receipt of a copy of the signed purchase order.  Absent receipt of a negative determination within two working days, the 8(a) contractor is authorized to begin performance.

 

Procedures Greater than the SAT.  For requirements greater than the SAT, the written notification to the SBA shall clearly indicate that the requirement is being processed under the SBA-DOC Partnership Agreement (PA). In addition to the notification requirements at FAR 19.804-2, the notice shall also specify the following:

·         Under the PA, an SBA acceptance or rejection of the offering is required within 5 working days of receipt of the offering; and

·         For sole source requirements, an SBA acceptance shall include a size verification and a determination of the 8(a) firm’s program eligibility, and, upon acceptance, the Contracting Officer will solicit a proposal, conduct negotiations, and make award directly to the 8(a) firm; or

·         For competitive requirements, upon acceptance, the Contracting Officer will solicit offers, conduct source selection, and, upon receipt of an eligibility verification, award a contract directly to the selected 8(a) firm.

 

When soliciting 8(a) concerns, the Contracting Officer should search the CCR website (http://www.ccr.gov) to find local businesses falling under the SBA 8(a) Business Development Program and make an award to the responsive and responsible Contractor that is determined to provide best value to the Government at a price that is determined to be fair and reasonable.

 

The following requirements are all eliminated under 8(a) contracting: an offering or acceptance letter, competition, and synopsis. Solicitations may be issued on a sole-source basis without the requirement for a J&A to support the action; POs may be issued unilaterally. After awarding to an 8(a) business concern, the Contracting Officer should forward a copy of the order or contract to the local SBA office to verify the Contractor’s eligibility. Two days after SBA’s receipt of the order, performance may commence.

 

1.7.1.9 Total Small Business Set-Aside                                                Top of Page

 

If the Contracting Officer does not consider it likely that two Small Business sources will respond to a Solicitation, he/she should dissolve the set-aside and re-submit the Solicitation on an unrestricted basis. Even when a requirement is solicited on an unrestricted basis, small business concerns may continue to compete for the award.

 

When an adequate number of small business concerns are solicited and one or more acceptable quotations are received, the Contracting Officer may award the requirement (via SF 1449) to the responsible small business who offers the lowest price/best value to the Government, based on the source selection criteria established in the Solicitation.

 

1.7.1.10 HUBZone                                                                                    Top of Page

 

The Historically Underutilized Business Zone (HUBZone) Program was created to provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas. HUBZones are historically located within one or more qualified census tracts, qualified non-metropolitan counties, or lands within the external boundaries of an Indian reservation.  See FAR 19.1301.

 

Eligible businesses appear on the list of qualified HUBZone Small Business Concerns maintained by SBA. Per FAR 19.501, in all acquisitions exceeding the SAT, HUBZone Small Business set-asides take priority over set-asides for small business concerns.

 

At their sole discretion, the Contracting Officer may set-aside acquisitions that exceed the micro-purchase threshold for competition restricted to HUBZone Small Business Concerns, provided the following criteria are satisfied:

§  Offers will be received from two or more HUBZone Small Business Concerns.

§  Award will be made at a fair market price.

 

1.7.1.11 Service Disabled Veteran-Owned Small Business (SDVOSB) Concerns                                                                                                 Top of Page

 

A Service-Disabled Veteran-Owned Small Business (SDVOSB) Concern is a small business concern that is not less than 51-percent owned by one or more service-disabled veterans, or in the case of any publicly owned business, not less than 51-percent stock owned by one or more service-disabled veterans. Further, the management and daily operations of an SDVOSB must be controlled by one or more service-disabled veterans, or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.

 

FAR 19.14 provides that Contracting Officers may set requirements aside for SDVOSB Concerns over the micro-purchase threshold if:

·         There is reasonable expectation that offers will be received from two or more SDVOSB Concerns. If the Contracting Officer receives only one acceptable offer from an SDVOSB Concern in response to a set-aside, the Contracting Officer should make an award to that Offeror, given that #2 below is determined.

·         Award will be made at a fair market price.

 

The Contracting Officer is encouraged to conduct market research in order to locate SDVOSB Concerns in order to conduct set-asides, e.g., use of the Veterans Technology Services (VETS) small business set-aside GWAC (http://www.gsa.gov/vetsgwac). Vendor information is available at the U.S. Department of Veterans Affairs – Center for Veterans Enterprise website (