|November 4, 2008|
The Procurement Review Board
a. Policy. It is the policy of DOL that all applicable acquisition or assistance instruments, or modifications to acquisition or assistance instruments referenced in Subparagraph b below, be submitted to the PRB which recommends approval or disapproval to the CAO. Approval by the CAO does not constitute award; an acquisition or assistance instrument may only be awarded by the acquisition or assistance official. The PRB is not authorized to act in the place of an acquisition or assistance official, nor the agency ethics official, as it only serves to recommend actions to the CAO.
b. Applicability. The following actions are subject to review by the PRB and approval by the CAO:
(1) In accordance with DOLAR 2903.6, waivers for contracts with current or former government employees or organizations owned or controlled by them, in conjunction with applicable agency ethics office review;
(2) Potential financial conflicts of interest under 5 CFR Parts 2634 and 2635.502;
(3) Ratification of unauthorized obligations as defined in DOLAR 2901.603-71;
(4) All proposed acquisitions and assistance actions over the simplified acquisition threshold as defined in the FAR, which are to be awarded under "other than full and open competition" procedures;
(5) All acquisitions over the simplified acquisition threshold using a make and model or “brand name descriptions” as specified in DOLAR 2910.004, FAR 6.302-1 (b)(4) and 6.302-1(c);
(6) All contracted advisory services and modifications, of any amount, to be awarded under "other than full and open competition" procedures;
(7) All contracted advisory services, valued over $50,000, to be awarded under "full and open competition" procedures;
(8) Note: as part of the review by the PRB, all proposed "other than full and open competition" acquisitions and assistance instruments for research, evaluation, demonstration, pilot, or development projects over the simplified acquisition threshold shall be reviewed by the designee of the Assistant Secretary for Policy (ASP), therefore the ASP representative shall be present for these types of requirements in order for there to be a quorum;
(9) Amendments to any order under a Blanket Purchase Agreement (BPA) that exceed the original negotiated order by $100,000 or more are to be treated as sole-source actions and are to be submitted to the PRB for review and approval by the CAO.
C. Acquisition or Assistance Instruments. The PRB will review selection of the proposed acquisition or assistance instrument indicated on the request for noncompetitive actions. However, the acquisition or assistance official is responsible for selecting the proper instrument to be used for the resulting action.
D. Exemptions. All acquisitions are subject to applicable laws and the FAR, specifically the requirements of FAR 13.106 and DOLAR 2913.106. Note: the fact that certain acquisitions are exempt from review by the PRB does not mean that they may be entered into indiscriminately. However, the following are exempt from review and prior approval by the PRB:
(1) Acquisition or assistance instruments with:
(a) Formula allocated or other grants and cooperative agreements awarded to state or local governments and agencies thereof (includes state and local entities designated by the state or chief elected official as a program grant recipient, and grants and cooperative agreements identified by Congress and approved by the Secretary or the Secretary’s designee), except that each agency is required to submit a report to the Procurement Executive, through the Director, Division of Acquisition Management Services, of all sole source grants and contracts awarded without PRB review and which are not formula allocated or other recurring requirements to state agencies; or
(b) Native American and Indian entities other than discretionary acquisition or assistance instruments.
(2) Acquisition or assistance instruments by the Employment Standards Administration for diagnostic and evaluation services are necessary for the adjudication of claims filed under the Black Lung Benefits Act, the Longshore and Harbor Worker's Compensation Act, the Energy Employees Occupational Illness Compensation Program Act, and the Federal Employees' Compensation Act, and for medical and rehabilitation supplies and services necessary for the treatment of persons found entitled to benefits under those Acts.
(3) Orders issued against mandatory sources (see FAR 8.001, 8.404(c), 8.6, 8.7 and 8.8), GSA Schedule Contracts and other Government-wide Acquisition Contracts (GWACs) where sources are considered in accordance with FAR 8.4 or the requirements of the GWAC instrument. However, orders for contracted advisory services and modifications valued over $50,000 from these mandatory sources, are not exempt from PRB review and prior approval.
(4) Acquisitions for real property or utilities.
(5) Expert witness services (see definition at FAR 6.302-3(b)(3)).
(6) Proposed acquisitions to be awarded under Section 8(a) of the Small Business Act, or HUBZone awards under FAR 19.1306, are exempt from prior review by the PRB provided they are not for contracted advisory services and modifications.
E. Structure of the Procurement Review Board. Members of the PRB are:
(1) The Procurement Executive, or designee, who is designated Executive Director;
(2) A designee of the Chief Financial Officer;
(3) A designee of the Solicitor;
(4) A designee of the Assistant Secretary for Policy with special responsibility for research, evaluation, demonstration, or development acquisitions over the simplified acquisition threshold;
(5) The Director, Faith Based and Community Initiatives, or designee; and
(6) The Director, Division of Acquisition Management Services, as a non-voting member of the PRB, provides advice and assistance to the Board.
In addition to Board members, an official from the requesting office may be present, upon prior notification, to provide any required clarification or additional information. No representative of any proposed recipient of an award may be present.
F. Procurement Review Board Responsibilities. The primary function of the PRB is to serve as a senior-level clearinghouse to review proposed noncompetitive acquisitions and assistance instruments.
(1) Other Than Full and Open Competition Contracts. If the acquisition vehicle is an "other than full and open competition" contract for supplies and services, review by the PRB and approval by the CAO only authorizes the initiation of a noncompetitive acquisition. Disapproval by the CAO of a proposed acquisition will mean that the acquisition instrument may be awarded only using full and open competition. Acquisitions are governed by the Federal Acquisition Regulation. FAR Subpart 6.3 lists the only circumstances permitting "other than full and open competition" in the award of contracts. The details of these regulations contain qualifications which may be reviewed on the internet at: http://acquisition.gov/comp/far/current/html/Subpart 6_3.html#wp1086841 Currently, the exceptions to full and open competition are: -6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. -6.302-2 Unusual and compelling urgency. -6.302-3 Industrial mobilization; engineering, developmental, or research capability; or expert services. -6.302-4 International agreement. -6.302-5 Authorized or required by statute. -6.302-6 National security. -6.302-7 Public interest.
However, CAO approval is not the final determination for use of "other than full and open competition." Before a proposed acquisition instrument can be awarded with "other than full and open competition," the justification for such a noncompetitive action shall be prepared in accordance with FAR 6.303 and approved by the official specified in FAR 6.304. The justification in FAR 6.303 and the approvals in FAR 6.304 are in addition to the PRB review and CAO approval.
After the CAO approves initiating a noncompetitive proposed acquisition, the acquisition official shall publish the action in Fedbizopps.gov (or http://www.eps.gov/) in accordance with the provisions of FAR 5.2. If, after considering any responses to the notice in Fedbizopps.gov of a proposed sole source (only one responsible source) acquisition instrument action, the acquisition official determines that more than one source can meet the Government's needs, the acquisition official shall solicit offers using competitive procedures (see FAR 15.202, and FAR 6.303). If the acquisition official determines to proceed with a noncompetitive acquisition, the justification for "other than full and open competition" shall include a listing of the sources, if any, that expressed, in writing, an interest in the acquisition (see FAR 6.303-2(a) (10)). Acquisitions may be awarded under "other than full and open competition" procedures only when properly justified in accordance with FAR 6.303 and approved in accordance with FAR 6.304.
(2) Grants and Cooperative Agreements. For grants and cooperative agreements the PRB reviews whether the assistance instrument is appropriate for noncompetitive award. Unfavorable review by the PRB and disapproval by the CAO means that the grant or cooperative agreements in question shall be competed among eligible recipients. With favorable PRB action and CAO approval, the noncompetitive action can go forward. The PRB, for information purposes only, may require the publication of a summary of the proposed assistance award on the DOL homepage, in the Federal Register, and/or in any other government-wide point of entry for assistance agreements.
G. Procurement Review Board Responsibilities. The primary function of the PRB is to serve as a senior-level clearinghouse to review proposed noncompetitive acquisitions and assistance instruments. The Federal Grant and Cooperative Agreement Act encourages competition, where deemed appropriate, in the award of grants and cooperative agreements. Competition is deemed appropriate in awarding discretionary grants and cooperative agreements unless one or more of the following exceptions apply:
(1) A non-competitive award is authorized or required by the statute funding the program.
(2) The activity to be funded is essential to the satisfactory completion of an activity presently funded by DOL, wherein competition would result in significant or real:
(a) harm (further harm) to the public good; or
(b) expenses in excess of any potential savings to the Government; or
(c) disruption to program services; or
(d) duplication of work at additional cost to the Government, or
(e) delay in the time of program completion.
(3) Services are available from only one responsible source and no substitute will suffice; or the recipient has unique qualifications to perform the type of activity to be funded.
(4) The recipient has submitted an unsolicited proposal that is unique or innovative and has outstanding merit.
(5) The activity will be conducted by an organization using its own resources or those donated or provided by third parties, and DOL support of the activity would be highly cost effective.
(6) It is necessary to fund a recipient that has an established relationship with the agency in order to:
(a) Maintain an existing facility or capability to furnish services or benefits of particular significance to the agency on a long term basis; or
(b) Maintain a capability for investigative, scientific, technical, economic, or sociological research.
(7) The application for the activity was:
(a) evaluated under the criteria of the competition for which the application was submitted;
(b) rated high enough to have deserved selection under that competition; and
(c) not selected for funding because the Department mishandled the application.
(8) The Secretary has determined that a noncompetitive award is in the public interest. This authority may not be delegated.
H. Submission of Requests to the Procurement Review Board. To initiate action by the PRB, an agency proposing to enter into an acquisition subject to PRB review shall forward a request for review complete with justification and signed by the Agency Head to the CAO. The request and justification shall be submitted on Form DL 1-490, General Information for Procurement Review Board (available on the DOL intranet). The justification need not be extensive but should cite the authority for "other than full and open competition" in FAR 6.302 for contracts or in Paragraph 836G., above, for grants and cooperative agreements and should explain why the cited authority applies. The program office requesting PRB approval will work with the Contracting Officer to submit a list of recent contracts and/or grants awarded to the proposed contractor/grantee by the Department of Labor as identified on the Form DL 1-490. The program office shall provide additional information on sole source grants and contracts awarded to the proposed recipient by other federal agencies. If the proposed procurement is for Contracted Advisory Services, complete DL 1-490A, Contracted Advisory Services Contract Information Sheet. Requests shall be forwarded at least 60 days before planned award or sooner if additional time is needed to permit acquisition by competition in the event of disapproval of the noncompetitive selection. The request package shall include an original and five (5) copies of the request and justification. The Division of Acquisition Management Services will process the request and may return it if it is administratively incorrect or incomplete.
Note: This request for PRB action should not be confused with the justification for "other than full and open competition" required by FAR 6.303. The FAR justification is prepared by the agency in conjunction with the acquisition or assistance official, and signed in accordance with the dollar amount of the acquisition.
Where the proposed non-competitive grant, or comparable instrument, is to be awarded to an entity that received the previous award and the amount of the new (combined) award is expected to exceed $500,000, the Agency Head shall also provide information to the PRB that documents efforts by the agency to facilitate competition to the maximum extent practicable, including:
(1) Issuance of a solicitation for grant applications or request for capability statements via the Federal Register or any government-wide point of entry for assistance agreements;
(2) Demonstrated efforts by the Agency to build the capacities of other potential grantees for future awards, which is likely to result in award to such entities within a reasonable time;
(3) Demonstrated efforts to widen the distribution of grant dollars among a larger spectrum of grantees; or
(4) Issuance of a notice of intent to award an unsolicited, sole source, or urgent grant award. The notification of unsolicited, sole source, and urgent grant awards shall be published in the Federal Register or any government-wide point of entry for assistance agreements fifteen (15) days before to award and should include at a minimum the following information: 1) recipient(s) name(s), 2) amount(s) of award(s); 3) project period(s); 4) reason(s) for no competition; and 5) name and address of official to be contacted for more information on these awards; or
(5) A statement verifying that the proposed recipient is not on GSA's debarred or suspended listing http://www.epls.gov/
I. Procedures for Review of Requests. The Procurement Review Board generally meets each month. Time and location may vary based upon need. The following processing procedures will be used for all requests for PRB review: (a) upon receipt of the request, the Division of Acquisition Management Services will assign a case number and generally make an appointment for review by the PRB within five (5) working days. If the Director, Division of Acquisition Management Services, identifies omissions or corrections required in the application, those changes shall be received before the PRB appointment will be scheduled.
(1) Organizational Conflicts of Interest. Board members shall not review acquisitions initiated within their area of responsibility and shall abstain from voting if it becomes apparent that their office has an interest in any proposed acquisition under review
(2) Quorum for PRB meetings. Although the full Board normally meets to consider all acquisition requests the Executive Director (or designee), and two Board members will constitute a quorum. A representative of the Division of Acquisition Management Services should be present to assist administratively with each meeting of the PRB. PRB recommendations shall be determined by a majority vote. A tie vote will be considered to be a recommendation against approval.
(3) Following the vote, the Executive Director shall forward the Board recommendation for approval or disapproval to the CAO. Written notification of the CAO’s decision will be forwarded promptly to the originating DOL Agency Head. If approved, the CAO’s decision memorandum will specify the approved project duration and funding as appropriate. A new request to the PRB will be required if an Agency Head wishes to exceed either the approved funding amount by 10 percent (or other percent as specified by the CAO) or extend project duration beyond the approved period. Upon receipt of the decision, it is the responsibility of the originating DOL Agency Head to take all further actions in accomplishing the acquisition. If a request is disapproved, a request for further review may be made only if additional substantive information becomes available.
(4) Deadlines for submission of PRB requests. Deadlines are imposed to allow for a sufficient time for the PRB to review and consider its response and the acquisition or assistance official to make an award within a reasonable period of time before the funds expire.
(a) Program Year Funding. Sole source acquisition and assistance instruments shall be submitted by close of business on June 1 in order to be considered by the PRB. The Division of Acquisition Management Services will not accept PRB requests after that date. The CAO may waive this deadline on a case-by-case basis.
(b) Fiscal Year Funding. Sole source acquisition and assistance instruments shall be submitted by August 31 in order to be considered by the PRB. The Division of Acquisition Management Services will not accept PRB requests after that date. The CAO may waive this deadline on a case-by-case basis
(5) Deadline for submission to monthly meeting. Requests shall be received, without need for revision, at least two business days before the PRB meeting.