301 FW 5, Procurement Procedures
FWM#: 119
(new)
Date: September 21, 1993, as
amended 10/28/2008
Series: Procurement
Part 301: Procurement Policies
and Procedures
Originating Office: Division of
Contracting and General Services
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301 FW 6, 10/28/2008, amends this chapter (see section 5.8). |
5.1 Purpose. This chapter prescribes procedures for the acquisition of supplies and services for the Service.
5.2 Scope. This chapter applies to all Service employees involved in the acquisition functions.
5.3 Policy. It is the policy of the Service to ensure that all requirements of law, executive orders, regulations, and all other applicable procedures have been met in the purchase of supplies and services.
5.4 Submission of Requirements.
A. Acquisition Requests. All acquisition requirements involving the transfer of Government funds or Government property shall be submitted to contracting offices on a FWS Form 3-2109, Acquisition Request (available in servicing CGS offices). Imprest fund buys and SF-44 buys are exempted. Stations with a total staff of five individuals or fewer, and with no contracting officer warrants above Level I exception ($5000) are exempted from this requirement, provided that funding and other required certifications are made on a copy of the purchase order form prior to placing the order, competition and price reasonableness determinations and justifications are prepared for all applicable transactions, and requirements for all Restricted List Items are complied with. All required information and the signatures of all designated budgeting and approving officials shall be included.
B. Specifications and Statements of Work. Detailed specifications or statements of work are required for those supplies or services being procured under the sealed bidding procurement method. Performance based statements of work and less detailed specifications and drawings are usually sufficient for those requirements being procured under the negotiated method of procurement. However, the more specific the specifications and drawings, the less chance of misinterpretation by the contractor.
C. Other Supporting Documents. Other documents which may be needed to support an acquisition include: drawings for construction projects; independent government cost estimates; justifications for other than full and open competition; lists of potential sources; lists of any Government furnished equipment or facilities; recommendations for members of technical proposal evaluation committees and a brief description of each person's qualifications; proposed technical evaluation factors and subfactors with relative weights; and signed certifications (301 FW 3.8B).
D. Special Considerations.
(1) Requirements of $25,000 and Less.
(a) Small Business - Small Purchase Set-asides. Section 15(j) of the
Small Business Act requires that all acquisitions of supplies and services with
an anticipated value of $25,000 or less and subject to small purchase
procedures shall be reserved exclusively for small business concerns. This
requirement does not apply to purchases outside the
(b) Required Sources of Supply. Among the required sources are Federal Prison Industries (UNICOR), Industries for the Blind and Other Severely Handicapped, and General Services Administration stock and Federal Supply Schedule (contracts) programs. For details on these sources and for a list of their priority order, consult your servicing contracting office.
(c) Exceptions for Certain Small Purchasing Methods. The following
types of simplified small purchases which may be made without the signature of
a warranted contracting officer are:
Government bank card transactions; imprest fund transactions; orders by
authorized employees against blanket purchasing agreements; and purchases using
Standard Form 44, Purchase Order-Invoice-Voucher.
(d) Competition for Small Purchases. Purchases not exceeding 10 percent of the small purchase limitation may be made without obtaining competitive quotations if the contracting officer considers the prices to be reasonable in accordance with FAR 13.106. Generally, solicitation of at least three sources may be considered to promote competition to the maximum extent practicable.
(2) Negotiated Competitive Requirements Over $25,000. The negotiated method is used when detailed specifications are not available, flexibility is needed in fulfilling the requirement, or selection factors other than price are used. Technical, management, and cost proposals may be solicited and evaluated, and discussions/negotiations with all offerors in the competitive range may be required to refine the terms and select a contractor. All responsible sources are permitted to compete.
5.5. Acquisitions With Less Than Full and Open Competition.
A. Full and Open Competition is the preferred method of
procurement. It allows all responsible firms to compete for the award through
the use of nonrestrictive specifications, requires
adequate advance publicity, and clearly states and ensures the application of
evaluation criteria. Federal agencies are required to obtain competition for
most acquisitions over $25,000, and any exceptions must be justified in
writing.
B. Exceptions. Requirements expected to exceed $25,000 for which there is believed to be only a single source, or for which other limits upon full and open competition are proposed, shall be accompanied by a separate Justification For Other Than Full and Open Competition (JOFOC) initiated by the requesting office. It may be for an individual acquisition or for a class of acquisitions.
C. Justification (JOFOC). The following JOFOC elements shall be provided by the requesting office:
(1) Name of the agency and the contracting activity.
(2) Short title of the procurement.
(3) Description of supplies/services required and the estimated value, including breakdowns for basic years and quantities and any option years or option quantities.
(4) Statutory authority permitting other than full and open competition (citation to be completed by the contracting officer).
(5) Specific facts and analysis fully supporting the conclusion that the contractor's unique qualifications or other circumstances justify the use of limited competition under the statutory authority cited.
(6) Reasons why technical specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available, and plans for remedying this deficiency if possible.
(7) Either of the following:
(a) Evidence of a recent market survey for the requirement and the results of the effort (i.e., sources which responded in writing to the survey and any evaluation made of their capabilities);
(b) A request that a market survey be performed by the contracting officer before concurring in the proposed justification; or
(c) Reasons why a market survey has not and cannot be performed in this instance;
(8) A statement of the actions which the requesting office will take to remove or overcome any barriers to competition before any subsequent acquisition for such supplies or services is processed.
(9) A signed statement by the head of the requesting office certifying that the facts stated and other supporting data and rationale are complete and accurate.
D. Certification. The contracting officer shall be responsible for the following elements of the JOFOC:
(1) Citation of specific statutory authority permitting other than full and open competition.
(2) Description of the market survey conducted (see FAR 7.101) and the results of the survey, unless the requesting office has presented satisfactory evidence of a recent survey or adequate reasons why a market survey has not and cannot be performed in this instance.
(3) Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a Commerce Business Daily synopsis was or will be published as required by FAR subpart 5.2 and, if not, which exception under FAR section 5.202 applies.
(4) Other sources considered, if any; the results of the evaluation; and a well substantiated determination that only one source can meet the Government's needs.
(5) A well supported determination that the anticipated cost to the Government will be fair and reasonable.
(6) Certification by the contracting officer that the justification is complete and accurate to the best of his or her knowledge and belief.
5.6 Technical Proposal Evaluation Committees and Source Selection Boards.
A. Personnel on technical evaluation committees and source selection boards are usually employees from within the Service or the Federal Government with collective knowledge of the primary field(s) of work to be performed under the acquisition. Individuals, other than Federal employees, who are acting in the capacity of a procurement official must sign procurement integrity statements and the DI-1960, Conflict of Interest Certificate.
B. If outside individuals will be voting members of the evaluation committee or otherwise participate in other than an advisory capacity, the committee must be constituted as a Federal Advisory Committee in accordance with the Federal Advisory Committee Act (PL 92-463), 107 FW 1, and 308 DM 2. Such committees must be appointed by the Secretary and approved by the General Services Administration. This requirement is not applicable for Architecture and Engineering Evaluation Boards.
C. Outside evaluators who serve as advisors to the proposal evaluation committee are consultants. Consultants may be appointed as special employees in accordance with 5 U.S.C. 3109. When individuals or firms serve as consultants under contract, the provisions in 365 DM 1 must be followed.
D. Outside evaluators and their dependents must not have any significant financial interests or other personal connections with the offerors which might conflict (or give the appearance of conflicting) with their official duties. A written statement shall be required of the evaluators and selection official(s) certifying that each individual has no financial or other conflicts of interest. Departmental employee responsibilities and conduct regulations are detailed in Title 43, Part 20 of the Code of Federal Regulations. Committee and board members with doubts about possible conflicts should consult their designated ethics officer before starting or continuing their duties.
E. Committee and board members must strive to render objective, technically sound, and well documented decisions in accordance with the laws, regulations, and the solicitation evaluation criteria.
5.7 Formal Source Selection.
A. The HCA, who is the Assistant Director - Policy, Budget and Administration, is the Source Selection Authority for formal source selection in the U.S. Fish and Wildlife Service. The HCA may give this authority in writing to another management official (usually a management level above the contracting officer).
B. Formal source selection procedures are further described at FAR section 15.6, DIAR section 1415.6, and 2 CM 149015.6. These procedures are applicable to negotiated acquisitions when the estimated cost of the acquisition, including options, is significant in relation to the bureau's annual acquisition budget or involves a multiple year, long-term contractual relationship; and when the acquisition is of a highly sensitive nature or of critical importance in fulfilling a bureau mission need and warrants the direct attention or participation of bureau senior management in the acquisition process; or when the HCA determines that use is appropriate for a particular acquisition.
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301 FW 6, 10/28/2008, amends section 5.8 below. |
5.8 Unauthorized Commitments.
A. Violations and Sanctions. Any acquisition commitments made by nonwarranted personnel or by warranted contracting officers in excess of the stated limits of their warrants are invalid. All personnel are cautioned to avoid any action which might be construed as an unauthorized acquisition commitment. Violators may be subject to sanctions, including reprimands, payment of the costs, suspension or removal of warrants, etc.
B. Reporting Procedures. Procedures for reporting and processing unauthorized commitments are as follows:
(1) A memorandum must be prepared by the individual's immediate supervisor detailing the circumstances surrounding the acquisition, including a description of any efforts to have the acquisition made by a contracting officer with adequate authority. The memorandum is to be addressed to the appropriate Regional, Associate or Assistant Director through the Chief of the servicing contracting office.
(2) The Chief of the servicing contracting office or another warranted contracting officer will include a written determination of whether the price for the item is fair and reasonable, any other relevant observations, and an overall recommendation as to whether payment should be made by the Government.
(3) A separate memorandum must be prepared and signed by the
Regional, or Assistant Director transmitting the request to the Washington
Office, CGS. This memorandum should include a recommendation of appropriate
action and describe corrective measures taken to prevent any similar
occurrences. All related documentation must accompany this memorandum,
including the acquisition request, order document or assigned order number,
certification of receipt, invoice, statement of price reasonableness, and
C. Ratification Procedures.
(1) The ratification package (consisting of the above documentation) must be submitted to the Washington Office, CGS for processing and review. This office will gather all related facts through these documents and conduct further investigations. A recommendation, with the supporting documentation, shall be forwarded to the HCA for a final determination and approval of the unauthorized commitment. The Assistant Director - Policy, Budget and Administration, as the HCA, is authorized to approve ratifications.
(2) The HCA may refuse to ratify the unauthorized commitment, and direct that all or some portion of the obligation be paid from the personal funds of the employee who made the commitment. Other forms of disciplinary action may also be taken against the violators in conjunction with a decision to ratify or not to ratify the unauthorized commitment. Contracting officer warrants may also be rescinded, suspended under conditions, or limited by dollar value or otherwise.
(3) The HCA will forward approved ratifications with payment
instructions to the
(4) Cases with any indications of fraud, misappropriation of Government funds or property, or major ethical violations should be referred to the Office of the Inspector General for investigation.
5.9 Unsolicited Proposals. Project leaders receiving an apparently unsolicited offer or proposal should forward the package immediately to the Chief of the servicing contracting office for initial review.
A. Providing Guidance to Potential Offerors of Unsolicited Proposals. Service employees having preliminary contacts with individuals presenting unsolicited proposals should limit discussions to:
(1) Responding to inquiries as to the general need for the type of effort contemplated; and
(2) Providing for an understanding of the Service mission and responsibilities relative to the type of effort contemplated.
B. Procedures. The Chief of the servicing contracting office is designated as the contact point for controlling the receipt, security, evaluation, and disposition of unsolicited proposals. A contracting officer will then determine whether the proposal qualifies as an unsolicited proposal. If it appears to qualify, the Chief of the servicing contracting office shall provide instructions for evaluation, confidentiality, reproduction, discussions, and correspondence with the offeror. The Chief of the servicing contracting office shall also ensure that necessary documentation is prepared, including a justification, for making a contract award with less than full and open competition.
5.10 Contracting Officer Technical Representative (COTR). The duties of a COTR are assigned by the contracting officer. Some of the duties are: monitoring the contract performance; interpreting the technical aspects of the contract; notifying the contracting officer of any real or anticipated difficulties in the performance of the contract; assisting the contracting officer in any disputes concerning interpretation of the contract requirements; reviewing and recommending approval of contract reporting requirements; recommending interim and final contract payments; and assisting the contracting officer in the review and preparation of documentation needed to close out a contract.
A. Appointment. In accordance with DIAR 1401.670, the contracting officer appoints a COTR by letter at time of contract award. The letter of appointment is accompanied by a copy of the contract. The COTR must respond in writing to the contracting officer, acknowledging receipt and understanding of the appointed responsibilities and the contract.
B. Contractual Compliance. The COTR and the contractor work towards the successful completion of the contract. The COTR, because of the working relationship, is usually the first Government representative to become aware of problems which arise during contract performance. No negotiation of any changes in the schedule, specifications, or statement of work must take place with the contractor. All issues which might affect any aspect of the contract must be brought to the immediate attention of the contracting officer. The COTR needs to be aware that there is no privity of contract between the Government and the subcontractors.
C. Payments. The COTR recommends approval or disapproval of
contractor's requests for payments. The recommendation must be made within 3
days from the date the invoice is presented to the COTR in order to avoid
paying interest on the invoice. (The 3 day time limit is for the complete
review by the COTR and the contracting officer. It should be under
extraordinary circumstances when this timeframe is not met; i.e. problem with
the invoice.) The COTR must provide written documentation to the contracting
officer of the reason(s) for recommending disapproval for payment. The
contracting officer must make the final decision regarding payment and submit
the invoice to the
D. Contract Completion. The COTR recommends or disapproves any requests from the contracting officer for verification of contract completion, acceptability of any deliverables, and evaluation of the contractor's performance.
5.11 Prompt Processing of Invoices. Each Service official must ensure
that all Service components adhere to the goal of ensuring that the invoices,
receiving reports, and other needed supporting documents are submitted to the
5.12 Assistance.
A. General. Guidance provided in this section applies to those assistance documents processed by CGS. Assistance agreements are used to stimulate or support statutorily authorized activities through other organizations such as State and local governments, Indian tribal governments and tribal organizations, educational institutions, hospitals, charities, and other nonprofit and profit making companies or associations. In contrast to acquisition, a Federal agency's principal purpose in assistance is to transfer funds, property, technical support services, or other things of value to the recipient, subject to certain terms and conditions specified in the laws and regulations.
B. Grants.
(1) Authority. A grant is used when authorized for specific program purposes by a Federal statute (in addition to the Federal Grant and Cooperative Agreement Act of 1977), and when the Service is expected to have little or no direct involvement in the project beyond the transfer of funds or property and the required administrative oversight.
(2) Procurements Under Grants. The fundamental procurement principles consist of: providing equal treatment to all prospective sources of the items or services to be purchased; ensuring full and open competition regardless of the dollar value of the items or services; maintaining an arm's length business relationship between the purchasing organization and the contractor; remedying situations where problems occur; and supporting socio-economic objectives that are applicable to procurements conducted under grants.
C. Cooperative Agreements.
(1) A cooperative agreement is appropriate when the Service and one or more cooperators agree to mutually support the accomplishment of an objective for which the use of assistance agreements is specifically authorized by law. Cooperative agreements are used when the Service is substantially involved in the principal activities of the project.
(2) Service involvement usually consists of providing management or technical expertise to the cooperator(s). However, use of Service facilities and the transfer of Government funds or property may also occur as part of the agreement. The primary benefit, resulting from the cooperative arrangement, is normally to the recipient and not the Federal Government.
D. Memoranda of Understanding (MOU). Agreements are often written simply to record mutual understandings on matters of policy, and they are not used to make formal, binding commitments. The MOU should not involve the acquisition or transfer of property or services or the transfer of Federal funds. Other methods and instruments must be used (such as contracts, cooperative agreements, grants, or intra-/interagency agreements) to transfer funds or property.
For additional information about the content of this chapter, contact the Division of Contracting and Facilities Management. For more information about this Web site, contact Krista Holloway, in the Division of Policy and Directives Management.
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