This chapter provides procedures, guidance and information on authority, applicability of federal statues, ethics, and other controls related to Federal Deposit Insurance Corporation (FDIC) acquisitions.

1.208 Application of Federal Statutes to the FDIC Contracting Program

1.208(a) Overview

The federal statutes, regulations and executive orders described below apply to the FDIC contracting program and must be considered in the acquisition planning process. Not all laws apply to all contracts. Where a particular law applies only to a specific type of contract (e.g., some laws apply only to contracts for services), this is stated. If no such limitation is stated, the law applies to all types of contracts. Some laws apply only when FDIC is contracting in its corporate capacity and are so identified; otherwise, the laws apply to FDIC in all of its capacities. Lastly, the dollar thresholds that trigger the application of particular statutes, and the particular procedures for implementation of the requirements of the various statutes, are given.

1.208(c) Applicable Statutes and Executive Orders

(1) Labor Laws: Labor laws apply only to contracts that FDIC enters into in its corporate capacity.

§ Service Contract Act (SCA) of 1965 – 41 USC §351 et seq.: Guidance and information on the SCA is provided at Acquisition Policy Manual (APM) 5.11 and Procedures, Guidance and Information (PGI) 5.11.

§ Contract Work Hours and Safety Standards Act – 40 USC §3701 et seq.: Generally requires that contracts for the employment of laborers and mechanics provide for a forty (40) hour work week and for payment of overtime at a minimum of one and a half (1½) times the basic rate of pay for all hours worked in excess of forty (40) hours in a work week. It applies to contracts and subcontracts greater than $100,000 in value.

§ Davis-Bacon Act – 40 USC §3141 et seq.: Guidance and information on the Davis-Bacon Act is provided at PGI 5.1104.

§ 40 USC §3131 et seq. (formerly known as the Miller Act): Requires that contractors provide payment and performance bonds for construction contracts greater than $100,000 in value. It also requires a pledge of assets where the surety is an individual.

§ The Walsh-Healey Public Contracts Act – 41 USC §35-45: Applies to contracts for the manufacture or furnishing of supplies (materials, supplies, articles, or equipment), performed within the United States or its territories. It requires these contracts to incorporate by reference the stipulations in federal law governing minimum wages, maximum work hours, child labor, convict labor, and safe and sanitary working conditions. It applies to contracts greater than $10,000 in value.

(2) Socio-Economic Programs:

§ Buy American Act (BAA) – 41 USC §10a: The BAA requires FDIC to give preference to American-made goods when it procures goods for use in the United States.

§ Trade Agreements Act (TAA) of 1979 – 19 USC §2501 et seq.: The TAA is the statutory authority for many of the trade agreements to which the United States is a party.

In general, the BAA applies to contracts with a value greater than the micropurchase threshold, currently $3,000, and applies to contracts entered into by FDIC in its corporate capacity only.

Application of the BAA is waived when a free trade agreement (FTA) applies to the acquisition. FTAs apply to contracts for goods, services and construction at different dollar thresholds; they apply to FDIC when it contracts in its corporate capacity only.

There is significant interplay between the BAA and the TAA; both need to be considered when planning an acquisition. See PGI 5.12 for a comprehensive discussion of the application of the BAA, the special procedures mandated by the TAA, the dollar thresholds and the exceptions to their application.

§ Rehabilitation Act of 1973 – 29 USC §794d (commonly known as Section 508): Section 508 requires that electronic and information technology (EIT) developed, procured, maintained or used by the FDIC or its contractors be as accessible to persons with disabilities as it is to persons without disabilities. Acquisitions of EIT must comply with Section 508 and the regulations published by the Architectural and Transportation Barriers Compliance Board. The FDIC has adopted its own regulation on Section 508 in 12 CFR Part 352. Detailed procedures are set out at PGI 5.3.

§ Javits-Wagner-O’Day Act (JWOD) – 41 USC §46 et seq.: JWOD applies to contracts for supplies and may apply to certain contracts for services. The JWOD program creates jobs and training opportunities for people who are blind or who have other severe disabilities. Its primary means of doing so is by requiring government agencies to purchase selected products and services from nonprofit agencies employing such individuals. The JWOD Program, also known as AbilityOne, maintains procurement lists of supplies and services available from groups participating in AbilityOne. FDIC is required to fill its procurement needs for items on AbilityOne’s procurement lists from AbilityOne groups. Additional information may be found at APM 3.3 and PGI 3.3.

§ Rehabilitation Act of 1973 – 29 USC §793: This act requires that contractors not discriminate against any employee or applicant qualified for a position because of any physical or mental disability. It also requires contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified disabled individuals without discrimination because of their disabilities. FDIC voluntarily complies with this statute.

§ Executive Order 11246 – Equal Opportunity: This Executive Order prohibits discrimination by contractors in employment practices. It applies to all contracts with a value greater than $10,000.

§ The FDIC Minority and Women Outreach Program for Contracting – 12 USC §1833e and 12 CFR Part 361: This program seeks to include minority and women-owned businesses (MWOBs) and small disadvantaged businesses (SDBs) in FDIC procurements. The Office of Diversity and Economic Opportunity manages this outreach program and works with the Acquisition Services Branch (ASB) to solicit MWOB and SDB firms. APM 2.105, 3.105, and 3.205 provide more information about FDIC’s Socio-Economic Programs.

§ Vietnam Era Veterans Rehabilitation Act of 1972 – 38 USC §4212: This act applies to contracts with a value greater than $100,000. It requires that contractors not discriminate against any employee or applicant qualified for a position because they are a disabled veteran or veteran of the Vietnam era. It also requires contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified disabled veterans and veterans of the Vietnam era without discrimination based upon their disability or veteran status.

§ Executive Order 12564 (Drug Free Workplace): This executive order addresses drugs in the work place. It applies to FDIC contracts where the contractor is an individual or, if other than an individual, to contracts exceeding $100,000, by virtue of the FDIC policy of voluntary compliance with its mandates. For a contract where the contractor is an individual, the contractor must agree not to engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in the performance of the contract. For a contract exceeding $100,000, the contractor must agree to make a good faith effort to maintain a drug-free workplace.

§ Federal Prison Industries (FPI) – 18 USC §4124: The FPI program directs federal departments and agencies to purchase prison-made products, subject to certain conditions, from the FPI (trade name UNICOR). It applies to contracts for goods of the classes listed in the Schedule of Products Made in Federal Penal and Correctional Institutions; see the FPI Schedule on the FPI website, http://www.unicor.gov. It is FDIC policy that goods valued at greater than $5,000 must be purchased on the FPI Schedule, when available, to fill its requirements so long as the FPI prices do not exceed current market prices. Detailed procedures for complying with the FPI statute are found at PGI 3.304.

§ Small Business Act – 15 USC §644e: This section of the Small Business Act deals with contract bundling. It applies to contracts entered into by FDIC in its corporate capacity only. See APM 2.204 for the specifics of its application.

(3) Privacy and Payment Laws:

§ Privacy Act of 1974 – 5 USC §552a: This section applies to FDIC contracts for the design, development or operation of a system of records on individuals, whether that system is automated or paper-based. FDIC Circular 1031.1, Administration of the Privacy Act, is the FDIC comprehensive statement of procedures on the subject. The circular is available at http://fdic01/division/doa/adminservices/records/directives/1000/index.html . During acquisition planning, the Program Office must identify whether the Privacy Act applies to the proposed acquisition. Contractors must comply with the requirements of the Privacy Act and the contract must contain a clause describing the requirements imposed on the contractor.

§ Prompt Payment Act – 31 USC §3901-05: This act applies to the FDIC only when it contracts in its corporate capacity. It requires the payment of interest on properly submitted invoices more than thirty (30) days past due.

§ Assignment of Claims Act – 31 USC §3727: This act permits a contractor to assign claims for monies due to it from FDIC under a contract to a bank, trust company or other financing institution.

(4) Ethics and Integrity Laws:

§ Anti-Kickback Act of 1986 – 41 USC §§51-58: This Act prohibits both the payment and acceptance of kickbacks. It also prohibits including of the cost of kickbacks in the price of a contract. It provides substantial penalties, both criminal and civil, for violations.

§ Byrd Amendment – 31 USC §1352(b): This requirement limits the use of appropriated funds to influence, or attempt to influence, certain federal contracting and financial transactions. It applies to contracts greater than $100,000 in value, entered into by FDIC in its corporate capacity. An offeror must certify to compliance with the Byrd Amendment when it submits a bid.

§ Copeland (Anti-Kickback) Act – 40 USC §3145 and 18 USC §874: This act applies to construction contracts greater than $2,000, using laborers and mechanics for construction, alteration or repair of FDIC buildings. It makes it unlawful to use threats or intimidation to induce a worker to give up part of the wages to which he is entitled.

§ Federal Deposit Insurance Act – 12 USC 1822f (and the corresponding regulations -12 CFR Part 366): Establishes the minimum standards of contractor integrity and fitness FDIC requires of its service contractors. An offeror must certify to the standards of this act when it submits a proposal valued at $100,000 or greater.

(5) Environmental Laws: For construction contracts, FDIC complies with the provisions of the Clean Air Act (CAA) of 1990 – 42 USC 7401 et seq., (specifically 42 USC §7414) and the Clean Water Act - 33 USC §1251 et seq. (specifically 33 USC §1318). These acts cover the inspection and monitoring of facilities related to the development of implementation plans and the monitoring of compliance with air and water quality standards.

For contracts for either goods or services associated with refrigeration equipment or air conditioning, or goods containing ozone-depleting substances, FDIC complies with the CAA of 1990 – 42 USC Sections 7671g (servicing of refrigeration and air conditioning equipment), 7671h (national program for recycling and emissions reduction) and 7671j (labeling of products containing ozone-depleting substances).

(6) Information Security Law: The Federal Information Security Management Act of 2002 – 44 USC §§3541-49 establishes a comprehensive program for the management of government information security. It applies to contracts for both goods and services involving information technology. It requires the FDIC to consider information security in its contract planning, to incorporate terms governing information security in its contracts, and to adequately oversee the information security practices of its contractors. Information regarding information security and protection of sensitive information is found at APM 5.1.

(7) Tax Law: The Federal Deposit Insurance Act – 12 USC § 1825. This act exempts FDIC from all federal, state and local taxes, except taxes on real property.

(8) Office of Management and Budget (OMB)Approval under the Paperwork Reduction Act - The Paperwork Reduction Act of 1980 - Pub. L. 96-511 requires Federal agencies to obtain approval from the OMB before collecting information from ten (10) or more members of the public. The information collection and recordkeeping requirements in the sections set out below have been approved by the OMB; the OMB Control Number 3064-0072 covers all FDIC procurement-related information collections, which are contained in the following PGI sections:

1.304

1.309(c)

3.210(b)

3.215(a)

5.203(c)

5.12

7.3.2-44 through -55

7.5.2-1 through -3

7.5.12-2, -4, -6 and -8.

1.209 Contracting Officer Authority

1.209(d) Contracting Officer Warrant Program

(1) Warrant Levels: Contracting Officers are delegated contracting authority for specified contracting dollar thresholds based on training and experience as follows:

§ Level I Contracting Officer (Up to $100,000);

§ Level II Contracting Officer (Up to $1,000,000);

§ Level III Contracting Officer (Up to $5,000,000);

§ Level IV Contracting Officer (Up to $10,000,000); and

§ Level V Contracting Officer (Unlimited)

Contracting Officers may award contracts or modifications within their delegated authority. When determining the value of a contract action, the total includes the basic contract and all options. However, for contract modifications, the dollar threshold is not cumulative. For example, although a $25,000 modification may push total contract value above $100,000, a Level I Contracting Officer can still sign the modification, unless the modification increases the total value by more than fifteen (15) percent of the total contract value. In those cases, the modification must be signed by a Contracting Officer with authority for the new cumulative value.

(2) Experience Requirements: Table 1 shows Contracting Officer warrant levels with associated minimum business and contracting experience requirements for each. Contracting experience may also be used to partially satisfy the business experience requirements.

Table 1. Contracting Officer Warrant Level Experience Requirements

Level	Dollar Threshold	Business Experience	Contracting Experience
I	Not to exceed $100,000	4 Years	2 Years
II	Not to exceed $1,000,000	5 Years	3 Years
III	Not to exceed $5,000,000	6 Years	3 Years
IV	Not to exceed $10,000,000	7 Years	4 Years
V	Unlimited	8 Years	5 Years

(3) Continuous Learning Requirements: Contracting Officers must complete a minimum of forty (40) hours of continuous learning annually, or eighty (80) hours every two years, in order to maintain their Contracting Officer Appointment. Other ASB personnel in the 1102 job series must also meet the continuous learning requirement. Continuous learning may be in the form of training or may be earned by attending conferences, symposia, internal ASB workshops, and other events that offer topical presentations of value.

§ Training: In order to satisfy the continuous learning requirement, any training must enable the individual to: (1) demonstrate an in-depth functional knowledge of the laws, policies, procedures, and contracting methods that apply to FDIC contracts and to government contracts in general; and (2) effectively manage complex contracting actions. Examples of acceptable training subjects include:

o Negotiation techniques;

o Price analysis;

o Price evaluations;

o Contract terminations;

o Contract administration;

o Commercial and government contract law;

o Best value contracting;

o Contract claims;

o Incentive contracting;

o Performance-based contracting; and

o Oversight management.

§ Additional Training Requirements:

o Training must be directly related to the knowledge required for success in a position that has responsibility for contracts;

o Training may be provided by FDIC or by FDIC-approved external organizations;

o Web-based courses may be used to meet training requirements;

o A course that addresses contract subject matter areas pertinent to ongoing FDIC contract work, in addition to courses prescribed in this section, may be acceptable in part, provided the number of hours of study for credit is readily identifiable;

o Training hours must represent actual classroom hours, unless the training is from a web-based course; and

o Courses satisfying these requirements that were completed prior to the effective date of the Contracting Officer Program are acceptable.

(4) Identification of Contracting Officer Authority: Contracting Officers must prominently display their certificates of appointment within their offices.

(5) Continuing Professionalism: All Contracting Officer appointments, regardless of level, must be reviewed annually by the ASB Associate Director to ascertain that each Contracting Officer has maintained professional proficiency and otherwise remains qualified.

(6) Waivers: Waivers to the qualification requirements may be requested for individuals who, due to their extraordinary experience, or due to extraordinary circumstances, should be granted Contracting Officer authority. Requests must be submitted through the respective ASB Assistant Director to the ASB Associate Director.

(7) Interim Contracting Officer Appointments: Ordinarily, individuals are not appointed as Contracting Officers if they do not meet the qualification criteria. However, when necessary, the ASB Associate Director may grant an interim appointment to an individual who has not yet completed necessary training or education. Interim appointments ordinarily do not exceed six (6) months. Failure to successfully complete required training within the interim period normally results in the loss of appointment without prejudice. Circumstances beyond the control of the individual may allow the ASB Associate Director to extend the interim appointment period.

(8) Termination of Contracting Officer Appointments: Termination of a Contracting Officer appointment is made in writing by the ASB Associate Director, unless the Certificate of Appointment contains provisions for automatic termination. Terminations may be made for reasons such as reassignment or unsatisfactory performance. The termination must indicate the effective date of termination. Termination of employment automatically terminates a Contracting Officer's appointment. Terminations may not be made retroactively.

1.211 Unauthorized Contractual Commitments

1.211(a) Documentation - Contractor Activities

For ratification, the contractor must submit an invoice to the Contracting Officer for the unauthorized work and include documentation that describes:

(1) What work was performed;

(2) Why the work was performed;

(3) Where the work was performed;

(4) When the contractor was instructed to do the work; and

(5) Who instructed the contractor to do the work, and in what form were the instructions given (verbal or written), including a copy of any written authorization.

The ratification request must be rejected if the contractor cannot name the FDIC individual(s) or representative(s) who authorized the work. The contractor may file a claim for resolution.

If an FDIC employee directed the work, the Contracting Officer must evaluate the contractor’s submission to determine if it provides a legitimate basis for payment.

1.211(b) Program Office Activities Documentation

Before the execution of the ratification document, the office that directed the work should submit a written and signed statement to the Contracting Officer that includes:

(1) Identification of the employee who directed the contractor to perform the work;

(2) Statement of pertinent facts, including why the contracting process was not followed;

(3) A statement that goods or services have been provided to, and accepted by, FDIC, or that FDIC has obtained or should obtain a benefit resulting from performance of the unauthorized commitment; and

(4) An approved procurement request.

1.211(c) Ratification Approval

(1) Contracting Officer Recommendation Report: The Contracting Officer must prepare a written recommendation report documenting the findings of facts provided by the contractor and Program Office and providing a recommendation for either approving or denying the ratification action. When the Contracting Officer recommends approval, the recommendation report must affirm the goods and services are acceptable and the price is fair and reasonable. The Contracting Officer must obtain concurrence from the Contracting Law Unit before submitting the report for approval.

(2) Recommendation Report Approval: The Contracting Officer’s recommendation report must be reviewed and approved by the respective Assistant Director for actions $10,000 or less. Only the ASB Associate Director may approve actions greater than $10,000.

(3) Ratification Denial and Approval: If the ratification is denied, the Contracting Officer should provide the contractor with a letter disclosing the decision with a brief rationale. If the ratification is approved, the Contracting Officer should prepare a contract modification. This is applicable if the ratification occurs on a contract with a current period of performance. If the ratification occurs without a corresponding contract, a new contract should be issued.

(4) Warrant Authority and Procurement Request Authority: Ratification is permitted only within the Contracting Officer’s warrant authority, and after any additional procurement request authority has been obtained. The specific dollar amount being ratified should be used for determining the required warrant level and proper procurement request authority.

(5) Documentation: The Contracting Officer must file all documentation supporting the approval or denial of a ratification action, including procurement request authority and contract modification or new contract, in the official contract file. The Contracting Officer must provide a copy of an approved or denied recommendation report to the ASB Assistant Director, Policy and Operations Section.

________________________________________________________________

PGI Chapter 1.3 Ethics

1.301 Scope

This chapter provides procedures, guidance and information as it relates to contractor and FDIC employee ethics.

1.303 Ethics Procedures

Contracting Officers and the Program Offices they support must comply with the procedures regarding ethics issues discussed in this chapter in the award of contracts for FDIC.

1.304 Minimum Standards of Contractor Integrity and Fitness

FDIC requires contractors and subcontractors to meet minimum standards of fitness and integrity in the areas of ethics, conflicts of interest, and the use of confidential information as per 12 CFR Part 366, which is available at http://www.access.gpo.gov/nara/cfr/waisidx_08/12cfr366_08.html. Authority for interpreting these standards has been delegated to the Executive Secretary (except for contracts with law firms, authority for which is delegated to the General Counsel).

The fitness and integrity standards apply to contractors who submit proposals for services. When services are being procured, the Contracting Officer must ensure that the FDIC Integrity and Fitness clause 7.3.2-46 is included in the request for proposal or request for quotation for services estimated to cost greater than $100,000. Contractors who submit proposals for goods, or who enter into contracts for goods with the FDIC, are not subject to the regulation.

Contracting Officers must review the representations for possible issues. If there are any questions regarding the application of Part 366, the Contracting Officer must consult with the ASB, Policy and Operations Section, and the Legal Division Contracting Law Unit (CLU).

1.304(a) Failure to Provide Information

A contractor that fails to provide any required information, or misstates a material fact, may be determined by FDIC to be ineligible for the award of the contract for which such information is required, or be in default with respect to any existing contract for which such information is required.

1.304(b) Post-award Contractor Data/Information Submission

During the term of the contract, the contractor must:

(1) Verify the required information for any employee, agent, or subcontractor who performs services under the contract for whom such information has not been previously verified, prior to such employee, agent, or subcontractor performing services under the contract; and

(2) Immediately notify FDIC if any of the information submitted was incorrect at the time of submission, or has subsequently become incorrect.

1.304(c) Retention of Information

A contractor must retain the information upon which it relied in preparing its integrity and fitness representations during the term of the contract, and for a period of three (3) years following the termination or expiration of the contract, and makes such information available for review by FDIC upon request.

1.305 Disqualifying Conditions

The disqualifying conditions set out in 12 CFR Part 366 are fully described in APM 1.305. All firms submitting proposals for services with estimated costs greater than $100,000, must answer the questions directed at each of the qualifying conditions, as set forth in clause 7.3.2-46, and submit them in the proposal. By submitting a signed proposal, a contractor certifies to the absence of disqualifying conditions and conflicts of interest at the time it submits a proposal and that it will only retain employees and subcontractors who meet the requirements of Part 366.

Contractors with disqualifying conditions that arise prior to or after award are required to notify FDIC in writing within ten (10) calendar days. There are no waivers for disqualifying conditions.

1.306 Conflicts of Interest

FDIC does not award contracts for services to contractors that have disqualifying conditions, or conflicts of interest associated with a particular contract, or permit contractors to continue performance with such conflicts or conditions, unless the conflicts are waived by FDIC, or the conflicts or conditions are eliminated by the contractor.

1.306(a) Waivers

Conflicts-of-interest waivers may be granted only when the interest of FDIC in the contractor's participation outweigh the concern that a reasonable person may question the integrity of FDIC operations, taking into consideration all the relevant circumstances.

1.306(b) Referral

The Contracting Officer forwards all conflicts of interest issues to the CLU for review and determination.

1.307 Suspension and Exclusion of Contractors

The FDIC CLU may suspend or exclude contractors that violate the contractor fitness and integrity standards (12 CFR Part 366), as well as for other causes. Suspensions are immediate, but temporary. Exclusions are generally for a defined period of time.

Part 367 (12 CFR 367) informs contractors and subcontractors (including their affiliated business entities, key employees, and management officials) regarding their rights to notice and an opportunity to be heard on FDIC actions involving suspension and exclusion from contracting and rescission of existing contracts. It applies to contractors submitting offers to provide services, or entering into contracts to provide services, and to subcontractors entering into contracts to perform services under a proposed or existing contract with FDIC.

Contractors suspended or excluded from contracting programs are prohibited from entering into any new contracts for the duration of the suspension or exclusion. Contracting Officers cannot solicit offers from, award contracts to, extend or modify existing contracts, award task orders under existing contracts, or consent to subcontracts with suspended or excluded contractors. Suspended or excluded contractors are also prohibited from conducting business with FDIC as agents or representatives of other contractors. If the Contracting Officer determines it is in the corporation’s best interest to contract with a suspended or excluded contractor or subcontractor, a waiver must first be requested from the Legal Division permitting the award.

A suspension becomes effective immediately upon issuance of the notice. The Contracting Officer is responsible for checking the FDIC Debarred Vendors List on the ASB website at http://fdic01/division/DOA/buying/fitness/debarredvendors.html, and the Federal Government Excluded Parties Listing System at www.epls.gov to ensure that a contractor being considered for an award has not been suspended or excluded from performing services to FDIC.

1.309 Roles and Responsibilities – Contractor Integrity and Fitness Review

1.309(a) Contracting Officer

The Contracting Officer is responsible for reviewing integrity and fitness representations and certifications submitted by contractors and identifying eligibility issues. Generally, eligibility issues are identified:

(1) During the review of eligibility representations and certifications submitted by potential and current contractors in connection with a solicitation or modification of a contract;

(2) In a request for a waiver of a conflict of interest submitted by a contractor;

(3) In a request from a contractor to limit its representations and certifications in some manner; or

(4) From information derived from outside sources, such as other contractors or the media.

The Contracting Officer reviews the contractor's representations and certifications for completeness and to identify potential issues that could affect eligibility to serve as an FDIC contractor. Eligibility issues can be found where the representations and certifications (or an application):

(1) Reveal grounds for disqualification under Part 366;

(2) Are qualified in some manner or incomplete;

(3) Appear to be false; or

(4) Disclose a conflict of interest.

If the contractor’s certifications are complete and no eligibility issue is identified, the contractor is eligible for possible contract modification or award. If the certification(s) are incomplete, the Contracting Officer obtains the missing information from the contractor. The Contracting Officer refers any eligibility issue to CLU as early as possible in the contracting process. When the Contracting Officer identifies a potential eligibility issue, the affected contractor is notified and a copy of the notification sent to CLU. When referring an eligibility issue to CLU, the Contracting Officer provides CLU with the solicitation and other relevant contract documents. If CLU requests additional documents from the potential contractor, the Contracting Officer obtains these, as well. After its review, CLU provides its comments and recommendation to the Contracting Officer for action.

1.309(b) Contracting Law Unit

Review of Certifications and Waivers: Upon referral by ASB, CLU reviews conflicts of interests raised by the representations and certifications submitted by a contractor recommended for an award. CLU issues a written decision of its determination for ASB.

CLU also prepares the cases for eligibility determination, waiver of conflicts of interest, appeal from final decisions, and other documents for the Corporation Ethics Committee (CEC), where CLU determines that a particular case is one that merits consideration. All cases presented to the CEC are reviewed by ASB prior to their submission.

1.309(c) Security and Emergency Preparedness Section

The Security and Emergency Preparedness Section (SEPS) conducts background checks on contractors, subcontractors, and contractor personnel at the request of the Contracting Officer or Oversight Managers. See Security Management Section policy in FDIC Circular 1610.2, which can be found at http://fdic01/division/doa/adminservices/records/directives/1000/index.html. If SEPS identifies an eligibility issue or a conflict of interest, it refers the matter to the Contracting Officer who may then refer it to CLU.

1.309(d) Office of Inspector General

The Office of Inspector General (OIG) is responsible for investigating contractor misconduct and allegations of criminal conduct. Allegations may be made to the OIG directly, or may be made to, or come to the attention of, the Contracting Officer, others in ASB, or the CLU. ASB and CLU may refer allegations they receive to the OIG for investigation.

1.309(e) Corporation Ethics Committee

The delegated authority to waive a conflict of interest, if a contractor requests a waiver, rests both with the CEC and with the Assistant General Counsel of the Corporate and Legal Operations (AGC-CLO) Section of the Corporate Operations Branch of the Legal Division. Information on the Legal Division is available at http://fdic01/division/legal/about/Branches/COB/Index.html. Generally, the AGC-CLO (or designee) rules on waiver requests that are simple and straightforward; more complicated conflicts situations are referred to the CEC, in the first instance, for action on a request for waiver. Decisions by the AGC-CLO may be appealed to the CEC. Cases going to the CEC are prepared by the CLU and reviewed by the ASB prior to submission.

The CEC has the authority to reverse, stay, or uphold a final decision of the AGC-CLO. A request for reconsideration of a conflict of interest decision - be it a denial of waiver, a grant of waiver with conditions or other adverse determination - may be submitted, in writing, by the contractor or by the division or office for whose benefit the waiver decision is sought, and must be supported by evidence that substantiates the relief sought. The decision of the CEC is final and constitutes the final action of the corporation on the matter.

1.309(f) Office of Diversity and Economic Opportunity

The Contracting Officer notifies the Office of Diversity and Economic Opportunity of any adverse action(s), including intent to rescind the contract of, or to suspend and/or exclude a minority and women-owned business (MWOB) or small disadvantaged business (SDB) firm, joint venture with MWOB or SDB participation, and/or prime contractor with MWOB or SDB subcontractors.

See APM 1.309.

1.310 Roles and Responsibilities – Contractor Suspension and Exclusion

1.310(a) Legal Division, Contracting Law Unit

CLU is responsible for the overall administration of the Suspension and Exclusion regulations (12 CFR Part 367) with respect to all contractors, except law firms. CLU determines whether the actions or omissions of an independent contractor meet the standards for suspension or exclusion as defined in Part 367. The corporation’s Ethics Counselor (the FDIC Executive Secretary) is the deciding official in exclusion and suspension cases.

All reports of contractor misconduct that may support suspension or exclusion action under Part 367 (including but not limited to violations of Part 366, false certifications as to the contractor’s integrity and fitness, conflicts of interest, or other types of contractor misconduct) are referred to CLU with a copy to the ASB, Policy and Operations Section. Where information provided to CLU establishes a reasonable belief that conduct warranting a suspension or exclusion may have occurred, CLU determines if further action is warranted, as discussed below. If CLU determines that the information provided does not support a reasonable belief of actionable misconduct, it prepares a memorandum closing the case and provides the OIG and the Policy and Operations Section with a copy of it. If actionable misconduct is determined, CLU prepares a notice to the contractor.

The following steps are taken by CLU to determine if a suspension or exclusion is warranted:

(1) CLU is responsible for reviewing the material submitted, including the administrative record, and determining whether that record and the evidence, measured against the applicable evidentiary standard, supports a suspension or exclusion. In cases where the evidence in the administrative record is insufficient, CLU identifies any additional information that may be required for an enforcement action and seeks to obtain the information, if it exists;

(2) In situations where exclusion is the appropriate action, CLU prepares a notice of possible cause to exclude, and sends it to the contractor. Where suspension is appropriate, either alone or in conjunction with exclusion, CLU prepares an appropriate notice of suspension together with a case supporting that action. Where CLU determines there is no legal basis to take action, it informs the Policy and Operations Section via memorandum; and

(3) Once notice has been given and a suspension or exclusion action has commenced, CLU undertakes all necessary contact with the contractor. In suspension and exclusion cases that go to hearing, CLU reviews the record and draft a case and proposed decision for the Ethics Counselor. If a contractor appeals the decision of the Ethics Counselor to the CEC, CLU prepares the case and decision for the CEC’s consideration. In cases that are settled, CLU prepares appropriate settlement documents and advises ASB on the execution of the settlement documents.

1.310(b) Ethics Counselor and the Corporation Ethics Committee

The FDIC Executive Secretary is its designated Ethics Counselor. The Ethics Counselor decides all cases against contractors for suspension or exclusion from service to the FDIC. A contractor may appeal the Ethics Counselor’s suspension or exclusion decision to the CEC. The CEC has authority to reverse, stay, or uphold a final decision.

1.310(c) Security and Preparedness Section

If a false certification or other matter that might warrant suspension or exclusion of a contractor is identified by SEPS during the background check it conducts, SEPS refers the matter to CLU with a copy to ASB.

1.310(d) Office of Inspector General

The OIG is responsible for investigating contractor misconduct. Allegations of contractor misconduct may be made to the OIG directly, or may be made to or come to the attention of the Contracting Officer, others in ASB, the Oversight Manager, others in the Program Office or the CLU. ASB, the Program Office and CLU may refer allegations they receive to the OIG for investigation. The OIG may provide CLU with audit or investigation reports involving contractor misconduct that might warrant a suspension or exclusion action. The OIG may also provide follow-up investigatory services that may be necessary to support a suspension or exclusion.

1.313 Post-Government Employment

The FDIC Legal Division Ethics Unit is the point of contact for matters involving post-government employment restrictions. In order for the Ethics Unit to evaluate and provide advice on any post-employment ethical matter, they must receive notification when any former FDIC employee will perform on an FDIC contract or subcontract. Prior to the former FDIC employee commencing work, they must provide a certification regarding their ability to engage in post-government employment to the Contracting Officer. The certification is available at the FDIC website www.fdic.gov/buying/goods/acquisition/index.html . The Contracting Officer will forward the signed certification to the Ethics Unit.

If the Ethics Unit requires additional information, they shall contact the Contracting Officer and former employee. Any additional information submitted by the former employee must be submitted to the Contracting Officer, who will forward it to the Ethics Unit.

If the Ethics Unit determines the former employee is barred by the post-employment restrictions from performing on an FDIC contract or subcontract, the Ethics Unit shall notify the Contracting Officer. The Ethics Unit shall also identify the length of the prohibition (lifetime or two-year) and, for one or two-year prohibitions, the date of expiration. The Contracting Officer must inform the contractor and Oversight Manager of the prohibition. Upon being notified of the prohibition, the former employee must not commence working on the contract or subcontract.

1.314 Prescriptions for Provisions and Clauses for Ethics

7.1.3-1 Post-Government Employment Certification (Pre-Award) - insert provision in all solicitations.

7.1.3-2 Post-Government Employment Certification (Post-Award) - insert clause in all awards.

MODULE 2: ACQUISITION PLANNING AND COMPETITION

PGI Chapter 2.1 Acquisition Planning

2.101 Scope

This chapter provides procedures, guidance and information on acquisition planning.

2.103 Acquisition Planning Procedures

PGI 2.104 through 2.107 provide procedures that must be used by the Acquisition Team when planning procurements, preparing acquisition plans, and developing requirements packages.

2.104 Early Acquisition Planning

The ASB can be more effective in its mission when the Program Office provides sufficient advance notice of its requirements. Early communication by the Program Office enables ASB to view the requirement in a broad context, and thereby:

(1) Identify upcoming requirements and plan how to meet them;

(2) Schedule its workload so that contracting resources are available to support requests as they are received;

(3) Establish realistic lead-times and timely award schedules;

(4) Prevent contracting delays, by identifying and resolving potential conflicts of interest and other problems, before the solicitation process begins;

(5) Finalize statements of work (SOWs) or statements of objectives (SOO) and requirements packages and correct deficiencies; and

(6) Consolidate duplicative requirements for similar or affiliated services to achieve strategic sourcing benefits.

As soon as a requirement is identified, the Program Office should contact the appropriate ASB Assistant Director who assigns a contract specialist to help it develop its acquisition strategy.

2.105 Market Research

2.105(a) Planned Procurement

For an anticipated procurement, the Program Office must first contact the Contracting Officer, who provides appropriate guidance to perform market research prior to a requisition being submitted.

2.105(b) Methods of Market Research

(1) Trade literature;

(2) Commercial brochures;

(3) Internet;

(4) Industry trade shows;

(5) Telephone contact;

(6) Other government agencies; and

(7) General Services Administration Federal Supply Schedules, available at http://www.gsa.gov/Portal/gsa/ep/channelView.do?pageTypeId=8199&channelId=-13460.

2.105(c) Guidance to Those Conducting Market Research

DO NOT:

(1) Indicate authority to make a purchase;

(2) Negotiate terms;

(3) Make commitment to buy;

(4) Disclose corporate or contractor proprietary information;

(5) Disclose procurement plans;

(6) Solicit written quotes; or

(7) Disclose cost or budget estimates.

The same general information must be made available to all contractors.

2.105(d) Market Surveillance

Market surveillance is a method of market research used by the Program Office and is an ongoing process of reviewing information about market trends, new developments, products, services, and technical features. The Program Office routinely performs market surveillance when there is no planned procurement action and without coordination with the Contracting Officer.

2.105(e) Contractor Meetings and Product Demonstrations

In order to obtain information about the goods and services in the commercial marketplace, the Program Office and Contracting Officer may:

(1) Conduct face-to-face meetings with contractors to discuss specific products and services to attain a better understanding of the available products and services;

(2) Have suppliers provide product demonstrations to better understand the functionality of the available products and services; and

(3) Have the contractor provide equipment, hardware, or software for testing or evaluation. The contractor and FDIC must sign a memorandum of understanding (MOU) and a confidentiality agreement, before testing or evaluation. The Contracting Officer signs both documents on behalf of FDIC. The MOU and confidentiality agreement templates are found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.

2.105(f) Market Research for Exercising Contract Options

This application of market research is a good business practice used to confirm that FDIC is receiving the most favored price and to ensure the option price is competitive. Such market research should be completed before required notification to the contractor of intent to exercise the option, and must be conducted by the Contracting Officer and Oversight Manager. The Contracting Officer is responsible for establishing the terms and conditions for all contracts and contract modifications. The Contracting Officer may use market research information to engage in negotiations with the contractor to reduce the option price or to establish modifications that extend the schedule.

2.106 Acquisition Plan Documentation

Written Acquisition Plans address one project. Modifications to contracts that are within the scope of the contract, and incorporate actions and values already discussed in an approved Acquisition Plan, do not require a new or revised Acquisition Plan.

While the Program Office and Contracting Officer jointly prepare the Acquisition Plan, the Contracting Officer is ultimately responsible for ensuring that the plan is completed and approved in accordance with Appendix B, Approvals Memorandum and Matrix.

The following requirements are applicable to the development of Acquisition Plans.

2.106(a) Acquisition Planning Under $1,000,000

Written Acquisition Plans are not required for actions under $1,000,000, but the Acquisition Team is still expected to do reasonable planning for these acquisitions.

2.106(b) Acquisition Plans for Requirements $1,000,000 or More

Written Acquisition Plans for actions of $1,000,000 or more must be prepared following the instructions below as applicable.

(1) Background and Objectives:

§ Statement of the Requirement: Introduce the plan by a brief statement of the requirement.

§ Background and Procurement History: Summarize the technical and contractual history of the acquisition. Discuss feasible acquisition alternatives, the impact of prior acquisitions on those alternatives, and any related in-house effort.

§ Risks Associated with the Procurement: Discuss technical, cost, and schedule risks and describe efforts planned or underway to reduce risk and the consequences.

§ Procurement Request Authority: State the Program Office’s estimated cost for the acquisition and the rationale supporting it, including any independent government cost estimate.

§ Delivery or Performance-Period Requirements: State the performance period anticipated to be included in the contract and the rationale for that determination.

(2) Plan of Action:

§ Sources: Indicate the prospective sources that can meet the need. Include consideration of socioeconomic program contractors, and the impact of any bundling that might affect their participation in the acquisition. Describe all efforts that have been undertaken to identify additional sources and the results of these efforts.

§ Competition: Describe how competition is to be sought, promoted, and sustained throughout the course of the acquisition. If reasonable competition is not contemplated, discuss the specific rationale for the use of a non-competitive procurement, and identify the source(s).

§ Special Acquisition Considerations: Discuss any issues of particular importance to the acquisition not elsewhere addressed in the Acquisition Plan. Examples include: unique performance-based arrangements; use of options, special clauses; special solicitation provisions, federal laws, e.g., Service Contract Act, Section 508 requirements; or APM deviations required.

§ Location of Performance: Discuss whether the requirement is to be performed on- or off-site. Include any special considerations associated with the place of performance.

§ Oversight Management: Discuss how the Oversight Manager and Technical Monitor are to oversee the project after contract award, including any reporting requirements.

§ FDIC-Furnished Property: Indicate any property to be furnished to contractors by FDIC, including material and facilities, and discuss any associated considerations, such as its availability or the schedule for its acquisition.

§ FDIC-Furnished Information: Discuss any FDIC information, such as manuals, drawings, and test data, to be provided to prospective offerors and contractors.

§ Security Considerations: State that the acquisition complies with FDIC security directives. If directives are to be waived, explain the rationale for waiver. State the security risk level assigned to the requirement by the Division of Administration’s (DOA’s) Corporate Services Branch.

§ Business Continuity Planning: Discuss the level of business continuity planning necessary for the acquisition. Address whether the contractor’s services will be necessary in time of emergency and the level of service that will be required. Include any maintenance and testing requirement specific to business continuity, as well as any requirement that the contractor participate with FDIC in joint disaster planning exercises.

§ Contract Administration: Describe how the contract is to be administered. In contracts for services, include how inspection and acceptance corresponding to the SOW or SOO performance criteria are to be enforced.

§ Other Considerations: Discuss, as applicable, quality assurance requirements, special involvement by FDIC personnel, impacts related to procurement, and any other matters germane to the Acquisition Plan not covered elsewhere.

§ Milestones for the Acquisition Cycle: Address the following steps, at a minimum, and any others as appropriate, and provide dates. The Acquisition Plan should include “planned” and “revised” dates as appropriate. A milestone schedule template is available on the ASB website http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. Provide a complete discussion regarding inordinate delays between milestones.

o Acquisition Plan approval;

o Complete requirements package received by DOA/ASB;

o Approval of Justification for Non-Competitive Procurement (if required);

o Solicitation review completed;

o Solicitation released;

o Proposals due;

o Evaluation of proposals complete;

o Preparation of Selection Recommendation Report (SRR);

o Approval of SRR; and

o Contract Award.

§ Identification of Participants in Acquisition Plan Preparation: List the individuals who participated in preparing the Acquisition Plan, giving contact information for each.

§ Contract Assessment Report: If the requirement is in excess of $5,000,000, state whether it has, or will be, reported in the Contract Assessment Report.

2.106(c) Acquisition Plan Approval

Approval levels for the plans are delineated in the Approvals Memorandum and Matrix, which is provided as Appendix B, Approvals Memorandum and Matrix, of this PGI.

2.106(d) Changes to Approved Acquisition Plans

When it becomes necessary to revise an approved Acquisition Plan due to a significant change (e.g., scope, dollar value, contract strategy, or contract type), the Contracting Officer and Oversight Manager jointly prepare a statement that summarizes the changes. The original approval authority must approve the Acquisition Plan revision, unless the dollar value of the change or the new cumulative award value requires a higher level of approval.

2.107 Requirements Package

The Program Office develops the requirements package as described in APM 2.107 and as detailed below, using the requirements package checklist found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. A copy of the completed requirements package checklist must be filed in the official contract file.

2.107(a) Strategy Session

Program Offices are to engage in a strategy session with a Contracting Officer immediately upon recognizing the need for contract support. In this strategy session(s) the Contracting Officer advises the Program Office on the necessary contents of the requirements package.

2.107(b) Core Requirements Package Documentation

The core requirements package documents include:

(1) Approved New Financial Environment requisition;

(2) SOW or SOO; and

(3) Independent FDIC cost estimate.

If the contractor will have access to, collect, store, use, or share FDIC personally identifiable information, the FDIC system of records must be identified in the SOW or SOO. The Program Manager’s Information Security Manager should be contacted to ensure any privacy related issues are appropriately addressed. See

http://fdic01/division/dit/ITM_Web/dit_pages/InfoSec/Access_FDIC_System/Access_Proc/ISM_POC/ListofISMs.htm.

If contract services are deemed essential in the event of an emergency or business continuity event, the SOW or SOO must include:

(1) Business continuity requirements;

(2) Requirements that contractors flow emergency preparedness and continuity requirements to essential subcontracts; and

(3) Requirements for the contractor to have emergency plans for providing services to FDIC in the event of a disruption of normal operations, and participation in FDIC business continuity testing, training and exercises.

2.107(c) Additional Requirements Package Documentation

Based on any unique attributes of a requirement, the Contracting Officer must obtain additional information to supplement the core documents of an requirements package. Additional Items for consideration in completing the solicitation include:

(1) IT Security Plan; (see PGI 5.1)

(2) Contractor confidentiality agreements; (see PGI 5.104(b))

(3) Section 508 Form; (see PGI 5.3)

(4) Risk level determination (see Directive 1610.2 at http://fdic01/division/doa/adminservices/records/directives/1000/index.html);

(5) Proposal evaluation methodology; (see PGI 3.210)

(6) Technical Evaluation Panel members (see APM 3.207);

(7) Payment terms (how often to invoice, necessary supporting documentation, etc.) (see APM 5.13);

(8) Proposed payment incentives, if performance based contract is anticipated (see APM 5.7);

(9) Indemnity requirements;

(10) Insurance requirements (see APM 5.805);

(11) Warranty requirements (see APM 5.10);

(12) Any other special contract provisions;

(13) Oral presentations; (see PGI 3.208(g))

(14) Offerors’ conference; (see PGI 3.208(e))

(15) Site visits; (see PGI 6.408(d))

(16) Subcontracting (and any limitations) (see PGI 5.6); and

(17) Suggested sources. (see PGI 3.105 and 3.205)

________________________________________________________________

PGI Chapter 2.2 Competition

2.201 Scope

This chapter provides procedures, guidance and information regarding the use of competition in FDIC acquisitions.

2.203 Competition Procedures

As a general rule, at least three competitive offers should be sought for all procurements over $5,000. In circumstances where only two qualified sources can be identified, reasonable competition can be maintained by soliciting the two.

See APM 3.2 and PGI 3.2 for information on source selection and competitive range determinations.

2.206 Non-Competitive Acquisitions

2.206(a) Justification for Non-Competitive Acquisitions

Acceptable reasons for limiting competition may include, but are not limited to:

(1) Urgency (such as an unforeseen or uncontrollable event, but does not include poor planning);

(2) Only one source can meet the requirement. Examples of only one responsible source may be due to special patent rights, copyrights or other proprietary information; and

(3) Source is mandated by law (cite applicable law).

2.206(b) Actions above $5,000 and Up to $100,000

The Contracting Officer must document, in a memorandum to file, any decision to acquire required goods or services on a non-competitive basis. The memorandum to file must include information that describes the goods or services to be acquired, the proposed dollar value of the procurement, and the rationale for awarding to a single source in lieu of conducting a competitive procurement. This memorandum to file must be signed by a duly appointed Contracting Officer and placed in the official contract file prior to executing the contract/purchase order.

These procedures do not apply to transactions made with the purchase card. For guidance on non-competitive purchase card transactions, see the FDIC Purchase Card (P-Card) Guide, Appendix C.

2.206(c) Actions above $100,000

When non-competitive procedures are to be used for any action above $100,000, the Contracting Officer must document the decision, using a Justification for Non-Competitive Procurement (JNCP). (See JNCP template at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html).The extent and detail of the JNCP depends on the particular requirement, its complexity, and its potential dollar value, but in all cases must address the following:

(1) A description of the goods/services, including the requested period of performance, and a description of any options;

(2) The recommended source and applicable business location;

(3) A description of the proposed contract action and any pertinent history;

(4) The estimated dollar value, as well as the basis for this estimate;

(5) A description of any market research conducted and the results of the research;

(6) The rationale for use of non-competitive procedures;

(7) Efforts to foster competition; and

(8) Inclusion in the Contract Assessment Report for actions valued at $5,000,000 and above.

2.206(d) Review and Approval of Non-Competitive Procurements

See the Approvals Memorandum and Matrix section of the PGI, Appendix B, for review and approval requirements.

MODULE 3: CONTRACTING METHODS AND TYPES

PGI Chapter 3.1 Simplified Procurement

3.101 Scope

This chapter provides procedures, guidance and information on the use of simplified procurement procedures by FDIC Contracting Officers and the Program Offices they support.

3.102 Definitions

Price Reasonableness – A determination by a Contracting Officer that a quoted price is fair and reasonable, based on a comparison of competitive quotations or offers, or other reasonable means including those specified in PGI 3.109(g).

3.103 Simplified Procurement Procedures

The Contracting Officer reviews the requisition and requirements package to determine whether the goods and services may be procured using simplified procedures, or whether another means of procurement is more appropriate. To do this, the Contracting Officer must first consider mandatory sources, e.g., Federal Prison Industries, and AbilityOne. The Contracting Officer may also consider General Services Administration (GSA) Federal Supply Schedules and other FDIC contracts as appropriate (see APM 3.3).

The Contracting Officer must also consider the statutory requirements addressed in APM and PGI Modules 1 and 5, (e.g., Service Contract Act, Davis-Bacon Act, Section 508, and Buy American Act) when developing the procurement strategy for the requirement. (see APM 1.208, PGI 1.208, APM 5 and PGI 5) The results of the reviews discussed above must be documented in the official contract file.

3.104 Competition in Simplified Procurements

Simplified procurements of $5,000, or less, may be awarded to any contractor that can satisfy the requirement, and do not require competition. Actions above $5,000 must be competed, or the Program Office must provide justification as addressed at PGI 2.206, when requesting that non-competitive procedures be used.

3.105 Identifying Potential Sources

The Contracting Officer must develop a solicitation list and document in the official contract file how the list was generated. For actions estimated over $5,000, the list must include at least three potential sources, if available. The Contracting Officer has discretion to establish the maximum number of sources required in connection with a particular procurement. In making this decision, the Contracting Officer may consider the following factors:

(1) Availability in the marketplace of the goods or services required;

(2) Information obtained from recent purchases of the same or similar item(s);

(3) Dollar value and urgency of the proposed procurement; and

(4) Past experience concerning prices for the goods or services required.

Tools that may be utilized to identify potential sources include the Program Office, Office of Diversity and Economic Opportunity, the Central Contractor Registration (CCR) database at http://www.ccr.gov, trade publications, Internet search, GSA schedules, and the Federal Business Opportunities (FedBizOpps) website https://www.fbo.gov/. The Contracting Officer may amend the solicitation list after the request for quotation (RFQ) is issued to include additional firms.

For requirements subject to the Trade Agreements Act addressed in APM 5.12 and PGI 5.12, a synopsis of the requirement must be posted to FedBizOpps in sufficient time to allow forty (40) days from the date of posting to receipt of quotations.

3.106 Request for Quotation

3.106(a) Oral Request for Quotation

To obtain oral quotations, the Contacting Officer calls the firms on the solicitation list, presents the requirements, and requests the firm’s quotation. The Contracting Officer must document in the official contract file, the names of the firms contacted, the date solicited, and the prices and other terms and conditions quoted by each firm. The Contracting Officer may need to obtain from the selected firm completed background investigation forms or FDIC representations and certifications, or both, prior to award. The Contracting Officer has the discretion to obtain a written confirmation of the quotation before award.

3.106(b) Written Request for Quotation

The purpose of an RFQ is to provide potential offerors the information they need to respond to FDIC requirements. A written RFQ must address the following items, as required:

(1) Pricing schedule;

(2) Description of the requirement including the statement of objectives, statement of work, as appropriate;

(3) Delivery or performance information, including required delivery date or performance schedule, and place of performance;

(4) Contract clauses and provisions;

(5) Requirements for FDIC representations and certifications and background investigation questionnaires;

(6) Submission of the offeror’s Data Universal Numbering System (DUNS) number;

(7) Quotation submission instructions (e.g., mail, email, limits on number of pages, format);

(8) Basis for award, including evaluation factors and subfactors; and

(9) Risk level determination.

If limited technical evaluations are performed, the Contracting Officer may also require the offeror to provide information such as the following:

(1) Statement of the firm's relevant experience, including past FDIC experience, with references;

(2) Statement of the firm's ability to meet the performance/schedule requirements;

(3) Proposed staffing with supplemental information, such as resumes or professional qualifications;

(4) Evidence of compliance with FDIC insurance requirements, or other licensing prerequisites; and

(5) Business or financial references.

3.106(c) Quotation Response Time

The Contracting Officer must provide the offeror with sufficient time to prepare a response to the RFQ.

3.106(d) Request for Quotation Reviews

The Contracting Officer must obtain any required reviews and approvals, as addressed in Appendix B, Approvals Memorandum and Matrix, prior to issuing the RFQ.

3.106(e) Distribution

The Contracting Officer distributes the RFQ to each firm on the solicitation list, using any available means, including:

(1) Email;

(2) United States mail;

(3) Overnight delivery;

(4) Posted to FedBizOpps (https://www.fbo.gov/) or a secure FDIC website; or

(5) Courier.

3.108 Receipt of Quotations

3.108(a) Receipt and Safeguarding

Electronic mail is the preferred method for receipt of quotations. Quotations may also be submitted by fax, United States mail, overnight delivery, or other normal means utilized by the offeror. For other than electronic mail or fax, all quotations must be submitted to the FDIC mailroom by the date and time specified in the RFQ. In the case of quotations provided by either email or fax, the date and time the quotation is received by FDIC is considered the official time of receipt.

For quotations delivered to the FDIC mailroom, the Contracting Officer must advise mailroom staff that quotations are expected, and provide them the RFQ number at least two business days prior to the due date. The mailroom staff is responsible for date and time stamping each quotation and promptly delivering the package to the Contracting Officer. The Contracting Officer is responsible for safeguarding, and preventing unauthorized disclosure of information in the quotation.

3.108(b) Record of Quotation Received

The Contracting Officer must create a written abstract of quotations received, including contractor name and address, prices, delivery requirements, and other pertinent data.

3.108(c) Quotations from Solicited Firms Only

The Contracting Officer only accepts quotations from offerors on the solicitation list.

3.108(d) Late Quotations

Quotations or amendments to quotations received after the designated date and time are late. The Contracting Officer must reject the quotation and notify the offeror that the quotation is being rejected. The Contracting Officer may accept a late quotation, with the approval of the respective the ASB Assistant Director, if it is in the best interest of FDIC.

3.109 Evaluation of Quotations

3.109(a) Pre-Evaluation Review

Prior to evaluation, the Contracting Officer performs an initial review of all quotations to ensure each complies with the RFQ. The Contracting Officer must also review the offerors’ representations and certifications for compliance, as applicable.

3.109(b) Evaluation Factors

Only the evaluation factors and subfactors stated in the RFQ may be used to evaluate quotes.

3.109(c) Oral Request for Quotation Evaluation

When the Contracting Officer uses an oral solicitation, the contract is awarded to the firm with the lowest evaluated price received in a responsive quotation. The Contracting Officer must document the selection decision and maintain written records of oral price quotations that clearly reflect that the award price is fair and reasonable.

3.109(d) Written Request for Quotation Evaluation

The Contracting Officer typically awards simplified procurements on a price-only basis, i.e., to the firm that is technically capable of performing the requirement and offers the lowest price for the requested goods or services. If limited technical evaluation is used, the Contracting Officer evaluates factors in addition to price, such as past performance, capacity, quality, and technical capability, if specified in the RFQ.

When evaluating quotes to determine which ones are technically acceptable, the Contracting Officer must evaluate these factors by using the following ratings:

(1) “Pass” – Firm meets the minimum requirement and is therefore considered for award, or

(2) “Fail” – Firm does not meet the minimum requirement and is not considered for award.

The Technical Evaluation Official (TEO) from the Program Office conducts the technical evaluation of the quotations and, once complete, submits the evaluation to the Contracting Officer for approval. The TEO conducts the same evaluation tasks for a simplified procurement as are performed by a Technical Evaluation Panel (TEP) and TEP Chairperson for formal contracting. The Contracting Officer has the discretion to convene a TEP, in lieu of having the technical evaluation done by a TEO, when warranted. A written summary of the technical evaluation must be included in the official contract file.

3.109(e) Best Value Evaluation Methods

In lieu of a price-only evaluation approach, the Contracting Officer may elect to use a best value approach. When using the best value methodology, the Contracting Officer evaluates all offerors' quotes, integrating past performance, key evaluation factors and sub-factors and price, to determine which quotation represents the best value to FDIC.

3.109(f) Past Performance Information

The Contracting Officer and the Program Office must use a contractor's past performance information in the evaluation process for all procurements of $100,000 or greater for commercial goods or commercial services. Past performance may be used at the discretion of the Contracting Officer for any other procurement. For simplified procurements, a review of the information in the FDIC Contractor Performance Evaluation System is normally sufficient to determine if the firm’s past performance is acceptable or not. If further information is required, the Contracting Officer may ask for references, generally no more than two (2) or three (3), as part of the quotation. The TEO then calls and verifies information.

3.109(g) Price Reasonableness Determination

The Contracting Officer’s determination that a proposed price is reasonable is usually based on competitive quotations. If only one response is received, or the price variance between multiple responses reflects a lack of adequate competition, the Contracting Officer must use another method to determine that the price is fair and reasonable. These include:

(1) Comparison to commercial catalogs or published price lists;

(2) Comparison to established market prices;

(3) Comparison with prior purchases of same or similar goods/services;

(4) Comparison to an independently prepared FDIC estimate, providing the basis for that estimate is valid; and

(5) Value analysis developed by the Contracting Officer/Program Office.

3.110 Contract Award

3.110(a) Pre-Award Reviews

The Contracting Officer must ensure the following reviews are accomplished prior to award of a simplified procurement. Documentation to support the reviews must be included in the official contract file.

(1) Excluded Parties: The Contracting Officer must review the Debarred Vendors List, FDIC Division of Administration: Debarred Vendors, found at http://fdic01/division/DOA/buying/fitness/debarredvendors.html and the Federal Government Excluded Parties Listing System at http://www.epls.gov before contract award, regardless of dollar value. Award may not be made to a firm that is on either list.

(2) CCR Review: The Contracting Officer must review the CCR database before contract award to ensure the recommended awardee is registered and to obtain its socioeconomic status. If the proposed awardee is not registered in CCR, the Contracting Officer must assist them in the registration process. Award cannot be made to a contractor that is not registered in CCR, without approval of the respective ASB Assistant Director.

(3) Vendor File Review: The Contracting Officer must verify if the recommended firm is listed in the FDIC Vendor File, which is maintained by the Division of Finance’s Vendor File Maintenance Group (VFMG). If it is not, the Contracting Officer must obtain the firm’s name, remit to address, tax identification (ID) number and DUNS number from the CCR database and send an email to VFMG, DC (email address as stated in Outlook) to request the firm to be added to the FDIC Vendor File. Below is a sample format of the email:

To: Vendor File Maintenance Group DC (Email address is in Outlook address book)

From: Contract Specialist’s Name

Subject: Add Vendor – [Insert Vendor’s Name]

Please add the following vendor to the vendor file in NFE:

Contractor Name

Street Address

City, State Zip Code

TAX ID #: ______________

DUNS #: ______________

I have verified that this vendor is registered in the CCR database but has not been added to NFE. If you have any questions, please contact [insert Contract Specialist’s name] at x____.

Emails sent to VFMG by 3:00pm are processed the same day. Emails sent after 3:00pm are processed by 10:00am the next day. VFMG sends the Contracting Officer a confirmation email with the new vendor ID number when the firm has been added to the FDIC Vendor File. Award may not be made to a firm that is not in the FDIC Vendor File.

(4) Representations and Certifications: The Contracting Officer must review the information received through the representations and certifications to ensure that prospective awardees comply with applicable laws and directives and are eligible to do business with FDIC.

(5) Background Investigations: The Contracting Officer must obtain preliminary background investigation approval of the contractor and key personnel from Security and Emergency Preparedness Section, prior to award. This approval is required when the award exceeds $100,000 and is for services or at any dollar amount when contractor personnel or subcontractor personnel work on-site and have unescorted access to FDIC offices or facilities, or have access to FDIC networks/systems, or in any other contract where the Program Office has described a need for background investigations.

(6) Financial Capability Review: If the award exceeds $1,000,000, the Contracting Officer must conduct a financial capability review. The template for the financial capability review is available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html

3.110(b) Award Decision Documentation

The Contracting Officer must prepare a Price Evaluation Memorandum (PEM) documenting the procurement. The competitive nature, dollar value, and complexity of the requirement determine the detail that is necessary for the award decision document. At a minimum, the award decision document must include a determination of price reasonableness and the basis for award. PEM templates may be found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html .

3.110(c) Advance Authorization Letter

When advance authorization is approved by the respective ASB Assistant Director, the Contracting Officer may orally authorize the contractor to begin work, and then must issue an advance authorization letter confirming the authorization. Before an authorization is given, the contractor and the Contracting Officer must agree to the terms and conditions, price, and deliverables, normally through email and/or facsimile exchanges. The Contracting Officer must also ensure that purchase request authority for the total amount of the contract has been approved before the letter is issued.

3.110(d) Notification to Unsuccessful Offerors and Debriefings

Under simplified procurements, notification to unsuccessful offerors and debriefings are normally not provided, unless requested. If an offeror requests a notification or debriefing, the Contracting Officer provides them as set forth in PGI 3.216.

For procurements covered under the World Trade Organization-Government Procurement Agreement or other trade agreement, the Contracting Officer is required to post an award synopsis to FedBizOpps in sufficient time to permit its publication not later than sixty (60) days after award. Procedures for preparing the award synopsis are available on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.

3.111 Simplified Procurement Award Types

3.111(a) Simplified Procurement Orders

A simplified procurement order is a contract used with simplified procurements that defines the requirement, includes unit and extended price, quantity, due date, destination requirements, invoicing instructions, and applicable clauses, as required.

As a rule, under simplified procurement orders, FDIC agrees to pay the stated price upon delivery of the goods or services by the contractor, and acceptance by the Program Office. When the simplified procurement order is over $100,000, or in any other case where it is desired to consummate a binding contract between the parties before the contractor undertakes performance, the Contracting Officer must obtain acceptance of the order in writing. Upon receipt of the contractor-signed simplified procurement order, the Contracting Officer signs it and returns a copy to the contractor.

A simplified procurement order typically has no designated Oversight Manager unless determined necessary by the Contracting Officer and the Program Office, based on the complexity of the requirement. When an Oversight Manager is not formally appointed, a Program Office point-of-contact must be named in the simplified procurement order to be responsible for conducting any oversight responsibilities, such as inspection, acceptance, and reviewing and approving the invoice for payment.

3.111(b) Blanket Purchase Agreements

A blanket purchase agreement (BPA) is an unfunded agreement establishing FDIC rights to place orders for specific goods or services, and:

(1) Is not a contract because it does not obligate funds, nor does it obligate FDIC to place any call orders under it.

(2) Is designed to reduce administrative costs in accomplishing the procurement of reasonably known needs by eliminating what could be the costly issuance of individual purchase orders or contracts. The use of BPAs can result in ordering economies and reduced procurement lead-time.

(3) May be placed concurrently with more than one firm whenever practicable. If a BPA is awarded to more than one firm for the same products or services, all of the firms must be afforded an opportunity to submit a competitive quote for subsequent orders, or a fair basis for rotational award of orders must be used.

(4) May be limited to the furnishing of individual items, groups or classes of goods or services, or it may be unlimited for all items that a firm is capable of furnishing and may include established unit prices. Individual orders must not go beyond the scope of goods and services in the BPA.

(5) Contains a statement that a contractor is obligated to furnish goods or services, described in general terms, if and when requested by authorized representatives during a specified period of time and within a stipulated aggregate amount, if one is negotiated.

(6) Identifies the authorized ordering officials. Ordering officials are limited to FDIC Contracting Officers and purchase card holders.

(7) Describes the method and types of orders that may be placed against the BPA. Orders are placed on a simplified procedures order and paid through normal invoicing and payment methods, or are ordered and paid through a purchase card. The BPA must state which method is to be used; the two may not be combined.

(8) Includes a statement that when orders issued against a BPA equal the stated total dollar limitation, if any, or when the BPA has reached its expiration date, no further orders can be placed against it.

3.111(c) Purchase Card

Policy and procedures for use of the purchase card and associated convenience checks by FDIC cardholders are found at Appendix C, FDIC Purchase Card (P-Card) Guide.

3.112 Prescriptions for Provisions and Clauses for Simplified Procurements

Contracting Officers must insert the following provisions and clauses as required:

7.3.1-1 Disposition of Submitted Material - insert provision in all solicitations.

7.3.1-2 Central Contractor Registration - insert provision in all solicitations.

7.3.1-3 Restriction on Disclosure of Information - insert provision in all solicitations.

7.3.1-4 Solicitation Requirements, Terms and Conditions - insert provision in all solicitations.

7.3.1-5 Price Only Evaluation Method - insert provision in solicitations when Best Value is not appropriate and award will be based only on price.

7.3.1-6 Identification and Delivery of Proposals - insert provision in all solicitations. Select the appropriate address for delivery of proposals.

7.3.1-7 Proprietary Information - insert provision in all solicitations.

7.3.1-8 Amendments, Extensions and Cancellations - insert provision in all solicitations.

7.3.1-9 Delivery Schedule - insert clause in all awards for goods.

7.3.1-10 Place of Delivery or Performance - insert clause in all awards.

7.3.1-11 Deliverables - insert clause in all awards.

7.3.1-12 Period of Performance - insert clause in all awards for services.

7.3.1-13 OIG Fraud Hotline - insert clause in all awards.

7.3.1-14 Order of Precedence - insert clause in all awards.

7.3.1-15 Governing Law - insert clause in all awards.

7.3.2-1 Description of Goods or Services - insert provision in all solicitations.

7.3.2-2 References to Time - insert provision in all solicitations.

7.3.2-3 Outreach Program: SDB, Minority-Owned and Women-Owned Business Concerns - insert provision in solicitations that will result in an award exceeding $100,000.

7.3.2-4 Site Visit - insert provision in solicitations when services will be performed on-site at FDIC and a site visit will be allowed prior to award.

7.3.2-5 Offerors’ Conference - insert provision in solicitations when an offerors' conference will be held.

7.3.2-6 Questions Regarding Solicitation - insert provision in all solicitations.

7.3.2-7 Submission of Offers in the English Language and in U.S. Currency - insert provision in all solicitations.

7.3.2-8 Award of Contract – Competitive - insert provision in all solicitations which are competed.

7.3.2-9 General Proposal Instructions - insert provision in all solicitations.

7.3.2-10 General Proposal Instructions – Oral Presentation - insert provision when proposal evaluations will include the use of oral presentations.

7.3.2-11 Pricing Proposal (Firm-Fixed-Price) - insert provision in solicitations that will result in firm fixed priced contracts. For awards greater than $1,000,000, include paragraph (d).

7.3.2-12 Pricing Proposal (Time and Material or Labor Hour) - insert provision in solicitations for time and material or labor hour contracts. For awards greater than $1,000,000, include subparagraph (e).

7.3.2-13 Effective Period of Offer - insert provision in all solicitations.

7.3.2-14 Non-Responsive Proposals - insert provision in all solicitations.

7.3.2-15 Mission Capability - Proposal Instructions - insert provision in solicitations when mission capability will be evaluated. Include paragraphs (b), (c), and/or (d), when applicable.

7.3.2-16 Past Performance - Proposal Instructions - insert provision in solicitations when past performance information will be evaluated.

7.3.2-17 Best Value Evaluation Process - insert provision in solicitations when the evaluation is based on best value.

7.3.2-18 Evaluation of Mission Capability - insert provision in solicitations where mission capability will be evaluated.

7.3.2-19 Reserved

7.3.2-20 Evaluation of Past Performance - insert provision in solicitations when past performance will be evaluated.

7.3.2-21 Reserved

7.3.2-22 Evaluation of Pricing - insert provision in all solicitations. The provision may be tailored by the Contracting Officer to accommodate the contract type and pricing arrangement.

7.3.2-23 Evaluation of Financial Capability - insert provision in solicitations for contracts over $1,000,000.

7.3.2-24 Technical Approach - insert provision in solicitations when the submission of a technical approach is required (Use in conjunction with the provision 7.3.2-15, Mission Capability – Proposal Instructions).

7.3.2-25 Management Plan - insert provision in solicitations when the submission of a management plan is required. (Use in conjunction with the provision 7.3.2-15, Mission Capability – Proposal Instructions).

7.3.2-26 Key Personnel - insert provision in solicitations when information on Key Personnel is required. (Use in conjunction with the provision 7.3.2-15, Mission Capability – Proposal Instructions).

7.3.2-27 Oral Presentation - insert provision in solicitations when proposal evaluations will include the use of oral presentations. (Use in conjunction with 7.3.2-10, General Instructions – Packaging the Proposal (Oral Presentation).

7.3.2-28 Late Proposals, Modifications of Proposals, and Withdrawal of Proposals - insert provision in all solicitations.

7.3.2-29 Award - Best Value - insert provision in all solicitations in which award is based on best value.

7.3.2-30 Rejecting Proposals/Waiving Informalities - insert provision in all solicitations.

7.3.2-31 Pre-Award Site Visit - insert provision in solicitations where the Contracting Officer has decided a pre-award site-visit may be conducted.

7.3.2-32 Compliance with Presidential $1 Coin Act of 2005 - insert clause in contracts where the contractor is operating a business on federal premises.

7.3.2-33 Independent Contractors - insert clause in all awards.

7.3.2-34 Duty to Deliver or Perform - insert clause in all awards.

7.3.2-35 Calendar Days - insert clause in all awards.

7.3.2-36 Task Order - insert clause in all basic ordering agreements, receivership basic ordering agreements, and BPAs, where task orders will be issued. The Contracting Officer must choose a method for task order awards.

7.3.2-37 Audit of Records - insert clause in all awards that exceed $100,000.

7.3.2-38 Scope of Services – Task Orders - insert clause in all task order awards.

7.3.2-39 Incorporation of Terms and Conditions – Task Orders/Delivery Orders - insert clause in all task orders and delivery orders.

7.3.2.40 Change in Physical Location - insert clause in all awards.

7.3.2-41 FDIC Personnel - insert clause in all awards.

7.3.2-42 Contractor Personnel - insert clause in all awards.

7.3.2-43 Key Personnel - insert clause in all awards in which the Program Office has determined key personnel are required.

7.3.2-44 Representations of Contractor - insert clause in awards over $100,000.

7.3.2-45 Preamble to Contractor Representations and Certifications - insert provision in solicitations for awards over $100,000.

7.3.2-46 Integrity and Fitness Representations and Certifications - insert provision in solicitations for awards for services over $100,000.

7.3.2-47 Additional Information - Representations, Certifications and Other Statements of the Offeror - insert provision in solicitations for contracts that will exceed $100,000.

7.3.2-48 Minority and Women-Owned Business Representations - insert provision in solicitations for awards over $100,000.

7.3.2-49 Small Disadvantaged Business Concern Certifications - insert provision in solicitations for awards over $100,000.

7.3.2-50 Certificate of Independent Price Determination - insert provision in solicitations for awards over $100,000.

7.3.2-51 Contingent Fee Representation - insert provision in solicitations for awards over $100,000. This certification is not required for the acquisition of commercial items.

7.3.2-52 Equal Opportunity Certification - insert provision in solicitations for awards over $100,000.

7.3.2-53 FDIC Contracting Capacity - insert clause in all awards.

7.3.2-54 Cooperation with the Office of Inspector General - insert clause in all awards.

7.3.2-55 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions - insert provision in solicitations for awards over $100,000.

7.3.2-56 Task Assignment Procedures - insert clause in contracts or task order when task assignments will be used. The Contracting Officer may tailor the clause, as necessary.

7.3.2-57 Advertising and Publicity - insert clause in all awards.

7.3.2-58 Limitation on Use of Appropriated Funds to Influence Federal Contracting - insert clause in solicitations for contracts over $100,000, when FDIC is acting in its corporate capacity.

7.3.2-59 Warranty Concerning Contingent Fees - insert clause in all awards over $100,000.

7.3.2-60 Anti-Kickback Procedures - insert clause in awards over $100,000.

7.3.2-61 Drug-Free Workplace - insert clause in all awards of any value to an individual, and in all other awards over $100,000, except contracts for commercial items.

7.3.2-62 Equal Opportunity - insert clause in all awards over $10,000.

7.3.2-63 Affirmative Action for Workers with Disabilities - insert clause in all awards over $10,000.

7.3.2-64 Affirmative Action for Special Disabled Veterans and Vietnam Era Veterans - insert clause in all awards at or above $100,000.

7.3.2-65 Employment Reports on Special Disabled Veterans and Vietnam Era Veterans - insert clause in all awards at or above $100,000.

7.3.2-66 Ozone-Depleting Substances - insert clause in awards for supplies that may contain or be manufactured with ozone-depleting substances, or construction awards that may involve the use of ozone-depleting substances.

7.3.2-67 Environmental Protection - insert clause in awards when either clause 7.3.2-66 Ozone-Depleting Substances or 7.3.2-68 Refrigeration Equipment and Air Conditioners is included in the award.

7.3.2-68 Refrigeration Equipment and Air Conditioners - insert clause in awards for services that include the maintenance, repair, or disposal of any equipment or appliance using ozone-depleting substances as a refrigerant, such as air conditioners, including motor vehicles, refrigerators, chillers, or freezers.

7.3.2-69 Joint and Several Liability - insert clause in all awards.

________________________________________________________________

PGI Chapter 3.2 Formal Contracting

3.201 Scope

This chapter provides procedures, guidance and information regarding the use of formal contracting by FDIC Contracting Officers and the Program Offices they support.

3.203 Formal Contracting Procedures

The Contracting Officer reviews the requisition and requirements package to determine whether the goods or services are to be procured using formal contracting procedures, or whether another means of procurement is more appropriate. To do this, the Contracting Officer must first consider mandatory sources, e.g., Federal Prison Industries, and AbilityOne. The Contracting Officer may also consider other available FDIC contracts, General Services Administration Federal Supply Schedule (FSS) contracts, or other federal agency contracts as appropriate (see PGI 3.3).

The Contracting Officer must also consider the statutory requirements addressed in APM 1.208 and PGI 1.208 and PGI 5 (for example, Service Contract Act, Davis-Bacon Act, Section 508, Buy American Act.) when developing the acquisition strategy for the requirement.

When it is determined that formal contracting is appropriate, use the procedures set forth below.

3.204 Competition in Formal Contracting

3.204(a) Competition

The Contracting Officer, in conjunction with the Program Office, analyzes the requirement in order to develop an acquisition strategy appropriate to the procurement. Through this process, the Contracting Officer strives to promote competition to the maximum extent possible. The Contracting Officer and the Program Office jointly determine whether the procurement will be accomplished on a competitive or non-competitive basis.

3.204(b) Non-Competitive Procurements

When competition cannot be obtained, and award is made on a non-competitive basis, a Justification for Non-Competitive Procurement (JNCP) is required. See PGI 2.206 for detailed information on preparing a JNCP. The following procedures are followed when using non-competitive procedures. The Contracting Officer requests a proposal directly from the approved source. The proposal is then evaluated both for technical and price considerations by the Program Office and Contracting Officer. The technical evaluation is documented by the Program Office and the Contracting Officer prepares the Price Evaluation Memorandum (PEM) found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. These documents must be included in the official contract file. The PEM is tailored to the procurement, and must include, as applicable:

(1) A statement of the purpose of the procurement;

(2) A procurement history summary;

(3) A concise description of the procurement action;

(4) Realism and reasonableness determinations, as discussed below;

(5) Funding information; and

(6) A statement regarding inclusion in the Contract Assessment Report addressed at APM 6.3, if over $5,000,000.

Price analysis must be conducted and summarized in the PEM. The analysis must include a summary of the contractor’s proposal and related discussions covering labor, material, travel and any other cost categories. The Contracting Officer must make a determination of price reasonableness, using information regarding price realism provided by the Program Office and other information gained during analysis of the offeror’s price proposal. The PEM must be approved in accordance with the approval levels found in the matrix at Appendix B, Approvals Memorandum and Matrix.

3.205 Identifying Potential Sources

The Contracting Officer prepares a solicitation list identifying potential sources. Firms that have been suspended or disbarred may not be solicited, and are not eligible for award. When requesting sources from the Office of Diversity and Economic Opportunity (ODEO), the Contracting Officer provides ODEO the requirements package or, at a minimum, the statement of work (SOW) or statement of objectives (SOO), anticipated period of performance, and estimated dollar value.

The solicitation list includes firms provided by the Program Office and ODEO, or any other sources at the Contracting Officer’s discretion. The Contracting Officer may also post a request for information or the solicitation to FedBizOpps at https://www.fbo.gov/, when determined appropriate. If adequate competition is not available, the Contracting Officer must document the results of the attempt to find sources in the official contract file. The suggested methods for identifying potential sources outlined in PGI 3.105 are also available to the Contracting Officer under formal contracts.

The Contracting Officer may add a firm to the solicitation list at any time prior to the proposal due date. The Contracting Officer need not extend the proposal due date to accommodate a request received late in the proposal preparation process.

With the exception of those solicitations posted on FedBizOpps, all firms submitting proposals must be on the solicitation list prior to receipt of proposals. The Contracting Officer may reject any proposals submitted by firms not on the list, and return the proposals to the offerors. The Contracting Officer may release the names of the solicited offeror’s to those on the solicitation list, upon request.

3.206 Source Selection Planning

Source selection planning is documented through development of a Source Selection Plan (SSP). The SSP is a confidential document and is not to be disclosed to the public; each page must be marked “Procurement Sensitive Information: Not for Public Disclosure.” The SSP template is available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.

3.206(a) Source Selection Methodology

The Contracting Officer must tailor the selection process to the specific requirements and objectives of the acquisition. The source selection methodology must be detailed in the SSP. The Contracting Officer must draw on the advice of program, technical, legal, and policy personnel in the acquisition planning stage when determining the methodology that is to be used. Once the decision to compete an acquisition has been made, the Contracting Officer must determine which source selection methodology is appropriate. FDIC has two methods available: price only and best value.

Selecting among the price only or best value methods for source selection involves a determination of the relative importance of price to other factors. The method selected depends upon the complexity of the goods or services to be acquired, as well as the dollar value, and procurement lead-time.

(1) Price Only Method: The price-only method is generally used for non-complex, routine requirements. This method calls for the selection of the offeror whose proposal meets certain specifications (e.g., delivery dates or performance levels) and who offers the lowest price. Routine goods or services that fall within the facilities, information technology equipment, and training (manuals/courses) program areas are good examples of requirements that are candidates for this method. Under certain situations, the Contracting Officer and the Program Office may determine that limited "pass/fail" technical evaluation factors must be included, in addition to evaluating price and past performance. “Pass/Fail” evaluation ratings are based on whether the offeror meets the minimum technical requirements and can be considered for award.

(2) Best Value Method: The best value method is appropriate for acquisitions requiring innovative solutions or a high level of technical expertise. This method allows for the evaluation of technical factors in addition to price and past performance. This method provides flexibility in selection through tradeoffs between price and non-price evaluation factors with the intent of awarding to the contractor that offers FDIC the best value for its money.

When using the best value approach, adjectival ratings are assigned to the technical factors, coupled with a confidence rating for past performance, and a determination of reasonableness, realism, and completeness for price. The use of color coding is the primary best value approach used by FDIC, however, other descriptive methods such as technical points may also be used to arrive at the adjectival rating. The color coded ratings and their definitions in Table 2.

Table 2. Color Coded Ratings for Best Value Method

Color	Rating	Definition
Blue	Exceptional	Exceeds specified minimum performance or capability requirements in a way beneficial to FDIC.
Green	Acceptable	Meets specified minimum performance or capability requirements necessary for acceptable contract performance.
Yellow	Marginal	Does not clearly meet some specified minimum performance or capability requirements necessary for acceptable performance, but any proposal inadequacies are correctable.
Red*	Unacceptable	Fails to meet specified minimum performance capability requirements.

* Proposals with an unacceptable rating are not awardable.

3.206(b) Establishing Evaluation Factors

Evaluation factors and sub-factors must be developed, based on the requirements of the procurement. These factors are used to evaluate the offerors’ proposals and must be stated in the SSP and disclosed to potential offerors in the request for proposal (RFP). Evaluation factors must be chosen that require the offeror to provide evidence of its ability to perform. The factors that relate to the most critical aspects of the SOO or SOW must be predominant in the technical evaluation. The use of too many evaluation factors is undesirable and must be avoided because it can lead to an unintentional leveling of evaluation scores.

3.208 Request for Proposals

The RFP is the vehicle FDIC uses to give potential offerors all the information they need to submit a proposal. The Contracting Officer must carefully craft the RFP to clearly articulate to potential offerors FDIC requirements, proposal submission requirements, evaluation methodology and the selection criteria to be used.

3.208(a) Request for Proposal Content

The RFP must include, as applicable:

(1) Required date, time and place for submitting proposals;

(2) The period of time that the proposals must remain valid in order to allow FDIC to complete its evaluation (s), typically ninety (90) calendar days. However, the Contracting Officer has the discretion to specify a longer or shorter proposal acceptance period;

(3) Pricing schedule;

(4) Description of the requirement, including the SOO, SOW, as appropriate;

(5) Delivery or performance information, including required delivery date or performance schedule, and place of performance;

(6) Contract clauses and provisions;

(7) Proposal instructions, including submission instructions (e.g., mail, email, limits on number of pages, format);

(8) Basis for award, including evaluation factors and sub-factors; and

(9) Information required for evaluation, including items such as:

§ Statement of the firm's ability to meet the performance/schedule requirements;

§ Proposed staffing with supplemental information, such as resumes or professional qualifications;

§ Compliance with FDIC insurance requirements or other licensing prerequisites; and

§ Statement of the firm's relevant experience, including past FDIC experience, with references.

3.208(b) Review of Request for Proposal

The Contracting Officer must obtain any required reviews and approvals, as addressed in APM 5.15 (legal review requirements), and Appendix B, Approvals Memorandum and Matrix, prior to issuing the RFP.

3.208(c) Response Time

The Contracting Officer must establish a due date and time that gives offerors sufficient time to respond to the RFP. The Contracting Officer may consider the complexity and/or dollar value of the contract and any unique characteristics to determine the appropriate response time.

3.208(d) Offeror Questions

During the solicitation process, interested firms must submit all questions in writing. The Contracting Officer must respond in a timely manner, using information obtained from the Program Office, ODEO, Legal, or other resources, as appropriate. The Contracting Officer must send the questions and FDIC responses to all firms on the solicitation list.

3.208(e) Offerors’ Conference

The Contracting Officer and the Program Office must jointly determine the need for an offerors’ conference, and site visit, if appropriate. Site visits may be used when offerors need to see the facility or resource in question in order to submit a proposal for the anticipated contract performance.

If it is determined that a conference is necessary, the Contracting Officer must ensure that:

(1) The timing is as early as possible in the process;

(2) The Program Office is represented to discuss the requirement; and

(3) The Contracting Officer is present to discuss solicitation and contract issues.

If there is a significant delay in scheduling the offerors’ conference, the Contracting Officer must promptly issue an RFP amendment extending the due date for submission of proposals.

3.208(f) Solicitation Amendments

If the RFP must be amended, the Contracting Officer must send amendments to all firms in the competitive range, if one is established, and allow sufficient time to permit offerors to consider all changes. The Contracting Officer should request that each offeror confirm receipt of each amendment, either immediately after it is received, or with the offeror’s proposal.

3.208(g) Oral Presentations

FDIC uses oral presentations, along with pricing and other written information, for the purpose of evaluating an offeror’s understanding and capability to perform the requirements and to select the successful offeror. The Contracting Officer may require each offeror to submit all or part of its technical and management proposal through oral presentations. However, offerors must submit their pricing proposal, representations and certifications, any required background investigation forms, and a signed proposal cover sheet (including any exceptions to FDIC terms and conditions) in writing. The following illustrates the details of conducting oral presentations:

(1) Every Technical Evaluation Panel (TEP) member must attend all presentations, unless the ASB Associate Director has approved the member’s absence in writing, and the Contracting Officer has documented the file appropriately;

(2) FDIC does not discuss an offeror’s strengths or weaknesses, nor conduct negotiations during the oral presentation;

(3) Changes to the oral presentation are not permitted after the stated due date for offerors’ responses;

(4) FDIC reserves the right to videotape or otherwise record all presentations, including question and answer sessions. Copies of video taped presentations or other recordings are not made available to individual offerors. The Contracting Officer must ensure that the offerors do not record their presentations using audio or videotape, or any other method/medium;

(5) Offerors’ statements made during the oral presentations do not become a part of any contract resulting from the RFP, unless FDIC and an offeror agree to make such information a part of the contract. When an oral presentation includes information that the parties intend to include in the contract as material terms or conditions, the information must be put in writing. Incorporation by reference of oral statements is not permitted;

(6) Oral presentations are intended to demonstrate the offerors’ understanding of the FDIC requirement and the offerors’ capability. Therefore, the Contracting Officer must specify in the solicitation the topics that must be addressed by the offerors during the oral presentation;

(7) If the offeror will be engaged in a question-and-answer session during the oral presentation, the Contracting Officer must specify such in the solicitation. FDIC evaluators must focus their questions on the offeror's understanding of the requirement, and its capabilities;

(8) No cost or price information should be discussed in the oral presentation or during any question and answer sessions; and

(9) The Contracting Officer must also address the following in the solicitation:

§ Role and/or qualifications of the presenters;

§ Anticipated dates and location for the oral presentations;

§ The media to be used for the presentation (PowerPoint or equivalent software);

§ The number of paper copies and electronic copies to be submitted; and

§ Time limits for the presentation and question-and-answer session.

3.209 Receipt of Proposals

Proposals may be submitted by electronic mail, United States mail, overnight delivery, or other means specified in the RFP. For other than electronic mail, the FDIC mailroom is the official receipt point for all RFPs.

3.209(a) Due Date

In the case of proposals received electronically, the date and time of the e-mail is considered the official time of receipt of the proposal. For proposals delivered to the FDIC mailroom, the Contracting Officer must advise the mailroom staff that proposals are expected, and provide them the RFP number at least two (2) days prior to the required due date. The mailroom staff is responsible for date and time stamping each proposal and delivering the package to the Contracting Officer.

3.209(d) Non-Responsive Proposals

Examples of reasons a proposal may be deemed non-responsive include, but are not limited to:

(1) The offeror is debarred or suspended;

(2) The offeror’s proposal does not comply with the specified RFP instructions;

(3) The proposed delivery date is later than the required delivery date specified in the RFP;

(4) The proposal does not comply with FDIC or other government standards specified in the RFP;

(5) The proposed price is determined to be grossly unrealistic; or

(6) The proposal acceptance period does not comply with the RFP.

3.209(e) Solicitation Cancellation

When a Program Office requests the cancellation of a solicitation, it must provide the Contracting Officer with the rationale for the cancellation and also cancel the requisition in the New Financial Environment. The Contracting Officer must document the official contract file with the reason for the cancellation.

3.210 Proposal Evaluation

Proposal evaluation is an assessment of the proposal and the offeror’s ability to perform the prospective contract successfully. Proposal evaluation encompasses an evaluation of the mission (technical) capabilities of the offerors, past performance, price analysis, and evaluation of any additional elements, for example Section 508 compliance. Further information follows on key evaluation areas.

During evaluation, the Contracting Officer must monitor the proposal acceptance period defined in the RFP and submitted in the proposals and request extensions as necessary.

3.210(a) Mission Capability (Technical) Evaluation

The TEP evaluates each proposal individually, based on the instructions and evaluation factors provided in the SSP and RFP. The TEP does not evaluate proposals against each other. Generally, evaluators take the following steps in the evaluation process:

(1) Review each proposal for organization and contents;

(2) Analyze each proposal section provided by the Contracting Officer using the evaluation factors, corresponding standards, and any proposal instructions; and

(3) Document the review of each proposal section with ratings and written narratives, describing both strengths and weaknesses and analyzing their relative importance to the requirement.

3.210(b) Past Performance Evaluation

The Contracting Officer receives the completed past performance questionnaires from other government agencies and commercial entities and provides them to the TEP along with each offeror's proposal. The TEP may contact the individuals who completed the questionnaires and any other references in order to obtain clarification on comments or to ask follow-up questions.

The Contracting Officer must search the FDIC Contractor Performance Evaluation System (in SharePoint) and provide the TEP with any recent/relevant performance evaluation forms for the contractor whose performance is being evaluated.

The Contracting Officer may obtain additional past performance information from the National Institute of Health’s Contractor Performance System available at https://cps.nih.gov.

The TEP conducts a structured past performance evaluation that examines an offeror's relevant present and past performance record to determine its ability to perform as proposed. The past performance evaluation considers demonstrated accomplishment of the services outlined in the SOO or SOW, to include the experience and capabilities of the contractor and its key personnel, and the offeror's overall performance record.

Offerors without a record of relevant past performance, or for whom information on past performance is not available, are not evaluated favorably or unfavorably on past performance and, as a result, receive a "neutral/unknown confidence" rating for the past performance factor. More recent and more relevant performance has a greater impact on the past performance confidence assessment than less recent or relevant effort(s). Likewise, a more relevant past performance record may receive a higher confidence rating and may be considered more favorable than a less relevant record of favorable performance. Past performance information for subcontractors or team members is valued in proportion to the amount of work they are expected to perform.

A relevancy rating is assigned using the definitions specified in Table 3 below:

Table 3. Relevancy Rating

RATING	DEFINITION
Highly Relevant	The magnitude of the effort and the complexities on this contract are essentially what the solicitation requires.
Relevant	Some dissimilarities in magnitude of the effort and/or complexities exist on this contract, but it contains most of what the solicitation requires.
Not Relevent	Performance on this contract contains relatively no similarities to the performance required by this solicitation.

A past performance confidence assessment rating is assigned using the definitions specified in Table 4.

Table 4. Past Performance Confidence Assessment Rating

RATING	DEFINITION
Exceptional/High Confidence	Based on the offeror's performance record, essentially no uncertainty exists that the offeror will successfully perform the required effort.
Very Good/Significant Confidence	Based on the offeror's performance record, little uncertainty exists that the offeror will successfully perform the required effort.
Satisfactory/ Confidence	Based on the offeror's performance record, some uncertainty exists that the offeror will successfully perform the required effort.
Neutral/Unknown Confidence	No performance record identifiable.
Marginal/Little Confidence	Based on the offeror's performance record, substantial uncertainty exists that the offeror will successfully perform the required effort. Changes to the offeror's existing processes may be necessary in order to achieve contract requirements.
Unsatisfactory/No Confidence	Based on the offeror's performance record, extreme uncertainty exists that the offeror will successfully perform the required effort.

3.210(c) Price Evaluation

Price evaluation includes a determination of price reasonableness and price realism.

(1) Price Reasonableness: The preferred method of determining price reasonableness is through effective competition. The requirement for seeking competition is satisfied when:

§ Two or more responsive offerors, competing independently, submit proposals that satisfy the FDIC requirement, and award is made to the offeror whose proposal represents the best value; or

§ Only one proposal is received, but the Contracting Officer can reasonably conclude that the proposal was submitted with the expectation of competition.

In the absence of competition, or when only one proposal is received in a competitive environment, the following methods may be used to determine price reasonableness:

§ Compare proposed prices with prices for same or similar goods or services in comparable quantities acquired under previous or existing contracts, when the original prices were determined fair and reasonable;

§ Compare proposed prices with competitive published catalogs or lists, including FSS pricing, published market prices or commodities, similar indices, and discount or rebate arrangements;

§ Compare proposed prices with the FDIC independent cost estimate when the basis for the cost estimate is known; or

§ Compare set prices required by law or regulations.

(2) Price Realism: The TEP evaluates price proposals to determine whether the proposed price for the work is realistic. A realistic price is one that reflects a clear understanding of the requirement and is consistent with the offeror’s technical proposal. The elements of a price proposal can provide insight into an offeror's understanding of the requirement. If an offeror's total proposed price either greatly exceeds or falls far short of the Program Office estimate for the requirement, the offeror's understanding of what is required must be questioned. The TEP review and determination includes the appropriateness of:

§ The number and qualifications of personnel to be assigned to the various aspects of the proposed work;

§ Proposed labor rates or proposed material fees; and

§ The price, amount, and necessity of travel.

If the TEP cannot perform the price realism duties, the TEP Chairperson performs this function. The TEP Chairperson includes price realism analysis in the TEP report discussed in section 3.214, or in a written memorandum to the Contracting Officer.

3.210(d) Technical Evaluation Panel Briefing

Prior to distributing the proposals to the TEP, the Contracting Officer briefs the TEP members on their roles and responsibilities and on their obligations to safeguard the proposals in their possession in order to prevent unauthorized disclosure. The Contracting Officer must ensure the TEP members sign the required Confidentiality Agreement and Conflict of Interest Certification (see APM 3.207(c)).

The Contracting Officer must provide detailed written and verbal instructions on the mechanics of evaluating each proposal, and a copy of the SSP, RFP, any RFP amendments. The briefing agenda typically includes, but is not limited to:

(1) Evaluators' responsibility for protecting contracting information, including documentation requirements and use of the standard protective marking statement "Procurement Sensitive Information – Not for Public Disclosure" on all proposal evaluation documents;

(2) Identification of the proposals received;

(3) The schedule for completing the evaluation;

(4) Key solicitation terms and conditions and significant SOW contents;

(5) The process the TEP follows in its review;

(6) Any proposal format requirements;

(7) Instructions for requesting clarifications;

(8) Evaluation factors and their corresponding standards;

(9) The past performance evaluation process; and

(10) The TEP consensus process.

Upon completion of the briefing, the Contracting Officer provides the TEP with copies of the proposals. Usually, the Contracting Officer does not provide the TEP with the price proposals until after the TEP has completed its technical evaluation. However, the Contracting Officer may, with the approval of the respective ASB Assistant Director, provide the price proposals to the TEP at the same time as it is given the technical proposals, if appropriate for the acquisition.

3.211 Communications with Offerors

The Contracting Officer communicates with offerors through two different levels of exchange, clarifications and discussions. The level of exchange is determined by the degree of interaction necessary for the Contracting Officer to make the award.

3.211(a) Clarification of Proposals

Clarifications are limited exchanges between FDIC and offerors that do not result in a change to the offeror’s proposal or price. Rather, a clarification simply explains an area of a proposal that is ambiguous, for example, conflicting statements in the proposal; or is otherwise unclear, such as a clerical error. In this level of exchange, the Contracting Officer requests in writing that the offeror(s) clarify certain aspects of proposals or resolve minor or clerical errors.

During the evaluation process, if TEP members need clarification on any part of a proposal, the TEP Chairperson may request it from the Contracting Officer. Only the Contracting Officer has the authority to request clarification from an offeror, and the Contracting Officer must request clarification in writing. Contracting Officers must instruct the offeror to provide supplemental information of a strictly explanatory nature. An offeror must provide the clarification in writing, but may not change any part of the proposal as a result of the clarification request. If the offeror provides information that changes the contents of its proposal, the Contracting Officer can disregard the changes, eliminate the proposal from further consideration, or waive the matter as a minor informality, if that is the case. All clarifications must be documented in the official contract file.

3.211(b) Discussions

Following the initial evaluation of the proposal, if there is no one successful offeror, the Contracting Officer must determine which offerors are within the competitive range. Technical and/or price discussions must be held with each offeror in the competitive range. Discussions are negotiations between the offeror and FDIC. The discussions enhance FDIC understanding of the proposal, allow reasonable interpretation of the proposal, and facilitate the evaluation process.

Discussions are tailored to each offeror’s proposal, and must be conducted by the Contracting Officer. The primary objective of discussions is to maximize the ability of FDIC to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation.

Before holding discussions, the Contracting Officer normally meets with members of the TEP to review the findings. During this meeting, the Contracting Officer must determine what information to provide to, and request from, offerors in the competitive range concerning their proposals.

With the assistance and participation of the TEP, the Contracting Officer conducts the discussions, face-to-face, telephonically, or in writing, and may include technical, price, or other issues. The Contracting Officer must control the discussions to ensure they are conducted fairly. Discussions are not a general question-and-answer period for each offeror; rather, the Contracting Officer must ask specific questions to clarify uncertainties in the proposal.

During discussions, the Contracting Officer must:

(1) Advise the offeror of deficiencies in its proposal based upon the TEP's evaluations;

(2) Attempt to resolve any uncertainties concerning the offeror's proposal;

(3) Identify and resolve suspected mistakes by calling them to the offeror's attention without disclosing information on other offerors' proposals or the evaluation process;

(4) As appropriate, inform an offeror that FDIC considers its price to be too high, or too low; and.

(5) Discuss adverse past performance information to which the offeror has not previously had an opportunity to comment.

During discussions the Contracting Officer must ensure that FDIC personnel do not:

(1) Help an offeror bring up a proposal to the level of other proposals
through successive discussion opportunities (see Limits on Communications at PGI 3.211(c) below;

(2) Indicate to an offeror that a price must be met to obtain further consideration; or

(3) Furnish information about other offerors' proposed prices.

After discussions are completed, offerors are given the opportunity to revise or clarify their proposals through submission of a best and final offer (BAFO).

3.211(c) Limits on Communications

FDIC personnel involved in any acquisition must not engage in conduct that:

(1) Favors one offeror over another;

(2) Helps an offeror bring up a proposal to the level of other proposals through successive discussion opportunities;

(3) Reveals an offeror’s technical solution, including unique technology, innovative and unique uses of commercial items, or any information that would reveal one offeror’s intellectual property to another offeror;

(4) Reveals an offeror’s price or indicates to an offeror that a price must be met to obtain further consideration;

(5) Reveals the names of individuals providing reference information about an offeror’s past performance; or

(6) Knowingly furnishes source selection information.

3.213 Best and Final Offers

After discussions are concluded, the Contracting Officer must solicit BAFOs from all offerors in the competitive range. A BAFO template is provided on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. The request includes:

(1) Notice that the Contracting Officer has concluded discussions;

(2) Notice of the opportunity to submit BAFOs by revising price proposals, technical proposals, or other terms and conditions of the original proposals; and

(3) A due date and time that allows a reasonable opportunity for submission of a written BAFO.

After the Contracting Officer has received and reviewed the BAFO submissions, the TEP reconvenes to evaluate them. The TEP follows the same process used to evaluate the original offers, including a TEP consensus meeting and a price realism determination after the technical evaluation. However, the TEP only considers the changes resulting from the BAFO. For any changes that affect the technical evaluation, the TEP members complete a TEP Evaluation Rating Form found on the ASB website (http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html) that addresses any changes to the offers made by the BAFOs The TEP Chairperson documents the BAFO evaluation results in a TEP addendum.

3.214 Documenting the Source Selection Decision

3.214(a) Technical Evaluation Panel Report

(1) Technical Evaluation Panel Consensus

The goal for the TEP is to reach consensus on the merits of each proposal, relative to the evaluation factors. After the individual TEP members have completed and documented their evaluations of each proposal, using a TEP Evaluation/Rating Form found on the ASB website (http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html), the TEP discusses the strengths and weaknesses of each proposal. The TEP must attempt to achieve a consensus rating for each evaluation factor using a rational, agreed upon method, e.g., thorough discussion. If the TEP cannot reach a consensus rating, the TEP Chairperson decides the rating.

(2) Technical Evaluation Panel Report

The TEP Chairperson provides the Contracting Officer a report which documents the panel’s position on each offeror’s technical proposal and past performance if part of the evaluation. This report includes:

§ An analysis of the proposals, including an assessment of each offeror's ability to accomplish the technical requirements;

§ An analysis of the strengths and weaknesses and their magnitude by evaluation factor and subfactor;

§ A consensus narrative statement summarizing the strengths and weaknesses of each proposal and the basis for the consensus;

§ Protective marking statement, “Procurement Sensitive Information - Not for Public Disclosure” on each page; and

§ A price realism analysis (see PGI 3.210(c)(2)). If performed after submission of the TEP Report, the TEP must provide a separate memorandum to the Contracting Officer.

§ Signature of all TEP members.

Templates for preparation of the TEP report may be found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. The TEP Chairperson provides the completed past performance questionnaires, the TEP Report, and technical evaluation rating forms (both individual and consensus evaluation rating forms) to support the evaluation to the Contracting Officer for inclusion in the official contract file.

(3) Review of Technical Evaluation Panel Report

The Contracting Officer must review the TEP Report and evaluation rating forms to ensure that the TEP evaluated all proposals impartially, and in accordance with the evaluation factors listed in the solicitation. The Contracting Officer must advise the TEP Chairperson of any deficiencies in, or necessary changes to, the TEP Report. After reviewing the TEP Report, the Contracting Officer must provide the offerors’ price proposals to the TEP for review, if they were not provided at the initiation of the TEP evaluation process.

3.214(b) Selection Recommendation Report

Both the Contracting Officer and the TEP Chairperson sign the Selection Recommendation Report (SRR) which includes:

(1) Purpose;

(2) Background;

(3) Solicitation planning and evaluation references;

(4) TEP organization structure;

(5) Chronology of events;

(6) Solicitation bidders list;

(7) Summary of proposal responses;

(8) Evaluation methodology;

(9) Summary of initial proposal evaluation results;

(10) Summary of BAFO evaluation results;

(11) Summary-Integrated best value decision;

(12) Pre-award verifications (see PGI 3.215(a);

(13) Recommendation; and

(14) Approval.

A template for preparation of the SRR may be found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.

3.215 Contract Award

3.215(a) Pre-Award Reviews

The Contracting Officer must ensure the following reviews are accomplished prior to developing the SRR and executing the contract. Documentation to support the reviews must be included in the official contract file.

(1) Excluded Parties: The Contracting Officer must review the Debarred Vendors List, FDIC Division of Administration: Debarred Vendors, found at http://fdic01/division/DOA/buying/fitness/debarredvendors.html and the Federal Government Excluded Parties Listing System at http://www.epls.gov before contract award, regardless of dollar value. Award may not be made to a firm that is on either list.

(2) CCR Review: The Contracting Officer must review the Central Contractor Registration database found at http://www.ccr.gov, before contract award to ensure the recommended offeror is registered and to obtain its socioeconomic status. Award may not be made to a firm that is not registered in CCR, without approval of the respective ASB Assistant Director.

(3) Vendor File Review: The Contracting Officer must verify if the recommended firm is listed in the FDIC Vendor File, which is maintained by the Division of Finance’s Vendor File Maintenance Group (VFMG). If it is not, the Contracting Officer must obtain the firm’s name, remit to address, tax identification (ID) number and DUNS number from the CCR database and send an email to VFMG, DC (email address as stated in Outlook) to request the firm to be added to the FDIC Vendor File. Below is a sample format of the email:

To: Vendor File Maintenance Group DC (Email address is in Outlook address book)

From: Contract Specialist’s Name

Subject: Add Vendor – [Insert Vendor’s Name]

Please add the following vendor to the vendor file in NFE:

Contractor Name

Street Address

City, State Zip Code

TAX ID #: ______________

DUNS #: ______________

I have verified that this vendor is registered in the CCR database but has not been added to NFE. If you have any questions, please contact [insert Contract Specialist’s name] at x____.

(4) Contractor Representations and Certifications: The Contracting Officer must review the information received through the FDIC Contractor Representations and Certifications to ensure that offerors comply with applicable laws and directives.

(5) Integrity and Fitness Representations and Certifications: The Contracting Officer must review the information received through the FDIC Integrity and Fitness Representations and Certifications to ensure that offerors are eligible to do business with FDIC.

(6) Background Investigations: The Contracting Officer must obtain preliminary background investigation approval of the contractor and key personnel from the Security and Emergency Preparedness Section, prior to award. This approval is required when the award exceeds $100,000 and is for services; or at any dollar amount when contractor personnel or subcontractor personnel work on-site and have unescorted access to FDIC offices or facilities, or have access to FDIC networks/systems, or in any other contract where the Program Office has described a need for background investigations.

(7) Financial Capability Review: If the award will exceed $1,000,000, the Contracting Officer must conduct a financial capability review. A template is available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html

3.215(b) Selection Recommendation Report Approval

Once the Contracting Officer has completed the SRR, it is forwarded for appropriate review and approval in accordance with Appendix B, Approvals Memorandum and Matrix.

3.215(c) Award Process

Once the award decision is approved, the Contracting Officer notifies the successful offeror via email or in writing.

The Contracting Officer must prepare the contract, incorporating the successful offeror’s name and address, key personnel information, compensation ceilings and any other information necessary to complete the award document. The Contracting Officer sends the original of the contract to the contractor, who signs and returns it. After executing the contract, the Contracting Officer sends a copy to the contractor and retains the original for the official contract file.

The Contracting Officer must upload the contract into CEFile and provide CEFile access to the designated Oversight Manager and any designated Technical Monitors so they can view the contract and maintain their Oversight Manager file.

3.215(d) Notice to Proceed – Advance Authorization Letter

Usually, the Contracting Officer has the fully executed contract in place before a contractor commences work. An advance authorization letter may be used in limited circumstances, primarily in the case of urgent or emergency requirements as addressed in chapters 3.4 and 3.5. However, in some cases (with the prior approval of the respective ASB Assistant Director) the Contracting Officer may grant a notice to proceed before the execution date, with supporting documentation. In such cases, the Contracting Officer can orally authorize a contractor to begin performing before a contract is fully executed. The Contracting Officer must immediately issue an advance authorization letter authorizing the contractor to commence work, (The advance authorization letter template is available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html). Before providing oral authorization, the contractor and FDIC must agree to the terms and conditions, price, and deliverables. The Contracting Officer also must ensure that the Program Office has provided an approved requisition with procurement authority in the total amount of the contract. Further details on use of an advance authorization letter are found in APM 3.4, APM 3.5, PGI 3.4 and PGI 3.5.

3.216 Notification to Unsuccessful Offerors and Debriefings

3.216(a) Notification to Unsuccessful Offerors

The notice contains the identity of the successful offeror, the total price of the successful proposal and procedures for requesting a debriefing, if a technical evaluation was conducted. A Notification to Unsuccessful Offerors template is found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.

3.216(b) Debriefings

Debriefings are offered to unsuccessful offerors when technical proposals are evaluated as part of the proposal evaluation and award process (includes contracts, basic ordering agreements (BOAs), task orders, and purchase orders). Unsuccessful offerors must request a debriefing in writing within fifteen (15) calendar days after the offeror is notified of the contract award. Debriefings may also be provided to successful offerors upon request. Debriefings may be held either by telephone or in person, within a reasonable time, generally within thirty (30) calendar days.

(1) Responsibilities: The Contracting Officer is responsible for assembling information and coordinating the debriefing with the offeror and the TEP Chairperson or other TEP members. However, the Contracting Officer does have the discretion to allow other participants, such as an offeror's subcontractor and counsel to attend. When requested by the Contracting Officer, Contracting Law Unit participates in the debriefing. ODEO is given an opportunity to participate when debriefings are given to minority or women-owned businesses and small disadvantaged businesses. TEP personnel should be available for debriefing consultations, before the debriefing. The Contracting Officer must retain a record of debriefing conferences in the official contract file.

(2) Discussion Items: The Contracting Officer introduces all FDIC participants, explains their respective roles in the selection and award process, and manages the flow of the meeting.

§ Required Discussion Items:

o Evaluation Structure: An overview of the evaluation structure/process, including the procedural aspects of the technical and price assessment, the technical evaluation criteria, and price proposal.

o Weaknesses in the Proposal - Future Improvement: It is essential that debriefers provide useful information that helps the offeror produce a more competitive proposal in response to future solicitations. For example, if an offeror's proposed prices were so much higher than most other offerors' prices that they precluded any real chance of selection, debriefers could stress a general need to trim proposal prices - without stating any particular price that might be considered "competitive" or "reasonable." On the other hand, if the offeror's proposal lacked technical merit, debriefers can identify the general areas of weakness, but should refrain from making a point-by-point comparison of all elements considered.

§ Optional Discussion Items: When the Contracting Officer considers it appropriate, other items such as the following may be discussed:

o General Ranking: The offerors ranking in general terms, such as within "the top third" or "bottom half" of the offerors. It is important to concentrate on the relative nature of the rating system. Debriefers should emphasize that a low rating does not necessarily mean that an offeror is not qualified to perform the required services but, rather, that the contractor was not perceived to be overall as strong as the successful offeror. It is not appropriate to discuss either the specific ratings or the price proposals of other offerors. However, the Contracting Officer may disclose the awardee’s price;

o Number of sources solicited;

o Number of proposals received;

o Perceived strengths in the firm's proposal;

o Procedures for requesting information under the Freedom of Information Act, if requested; and

o Procedures for filing an official protest, if requested.

§ Unauthorized Discussion Items: These items must not be discussed or disclosed to the firm being debriefed:

o The number of offerors included in the competitive range or requested to submit BAFOs;

o The details of the assessment of the firm being debriefed, or the firm's specific ranking;

o Any other offeror's assessment or ranking;

o The successful offeror’s proposal;

o Copies of any technical or price evaluation sheets, reports, or any other written information produced by the TEP or the Contracting Officer during the evaluation process; and

o Information relating to the other offerors, including proprietary information.

3.217 Contract Types and Pricing Arrangements

3.217(a) Contract Types

The contract types discussed in the following paragraphs represent those used most frequently by FDIC Contracting Officers. Any of the contract types discussed in this paragraph may utilize any combination of the pricing arrangements addressed in 3.217(d) below, as may be appropriate for the procurement.

(1) Contract: A contract is used when the scope of work can be described by stating a definite goal or target or specifying specific goods. A contract normally requires the contractor to complete and deliver the specified end goods (e.g., office supplies) or services, or may be issued for a specific level of effort during the contract period. A contract must not be used to issue task orders.

(2) Basic Ordering Agreement: A BOA is not a contract. It is a written instrument of understanding negotiated between the FDIC and a contractor for future delivery of as yet unspecified quantities of goods or services. A BOA becomes a binding contract when a task order is issued. A BOA must contain the following:

§ Terms and conditions that apply to the basic BOA and any task orders issued against it;

§ A statement that the contractor is obligated to furnish goods or services, described in general terms, if and when requested by authorized representatives during a specified period of time;

§ A statement that the FDIC is not obligated to place any orders under the BOA;

§ Identification of the point at which each order becomes a binding commitment, e.g., issuance of the order, acceptance of the order in a specified manner, or failure to reject the order within a specified number of days;

§ Procedures for placing orders under the BOA, including:

o The method(s) for pricing orders under the BOA, if unit prices are not included in the basic agreement;

o How proposals will be solicited;

o How proposals will be evaluated; and

o How task orders will be issued.

§ A statement that orders may only be placed by warranted ASB Contracting Officers;

§ A statement that no further orders may be placed against the BOA when it has reached its expiration date; and

§ A ceiling amount, which represents the total not-to-exceed dollar amount of all task orders which may be issued under the BOA.

The scope of BOA may be limited to the furnishing of individual items, groups or classes of goods or services, or it may be unlimited for all items that a firm is capable of furnishing. A BOA may include established unit prices and/or labor categories and labor rates. A BOA must not state or imply any commitment by FDIC to place future orders with the contractor, nor may it be used in any manner to restrict competition. Any and all goods/services must be authorized by issuance of task orders. There is no mechanism in a BOA to authorize and pay for work under the BOA itself.

Often it is in the best interest of FDIC to establish BOAs with more than one contractor. Having BOAs with multiple qualified and capable contractors reduces administrative lead time for acquiring the good/service once the specific requirement generates; ensures FDIC will have sufficient support to meet its requirements; and allows for competition when issuing task orders, thereby providing FDIC with the best value. When it is not feasible to establish multiple BOAs due to the uniqueness of the requirement or other reasons, the Contracting Officer must include the reason for establishing a single BOA for the required goods or services in the official contract file.

The solicitation and selection of one or more contractors to receive a BOA may be based on either competitive procedures (see PGI 2.203) or non-competitive procedures (see PGI 2.206). When non-competitive procedures are used, all of the contractors selected to receive a BOA may be identified in a single memorandum to file (for BOAs less than $100,000) or a single JNCP (for BOAs equal to or greater than $100,000).

The procurement request authority must be based on the total estimated value of the requirement, regardless of how many BOAs may be awarded. However, a purchase requisition must be created for every BOA. Therefore, after the number of contractors to receive a BOA is determined, additional purchase requisitions of zero (0) dollar value must be processed. The ceiling amount on any of the BOAs must not exceed the dollar value of the procurement request authority approved initially, or as subsequently increased. Throughout the performance period of the BOAs, the Program Office and Contracting Officer must monitor the dollar value of all task orders issued among the BOAs to ensure their combined amounts do not exceed the procurement request authority dollar value.

The Contracting Officer must establish the procedures for awarding task orders under the BOA in consultation with the Program Office. The procedures must be stated in both the solicitation for the BOA, and in the BOA itself. The Contracting Officer must ensure that all task orders are issued in accordance with the ordering procedures included in the BOA. The ordering procedures may include, but are not limited to, full or limited competition with all BOA contractors, or a form of rotation among the BOA contractors. Unless the BOA contains procedures for issuing a task order by rotation, any non-competitive task order issued under a BOA must be justified in accordance with PGI 2.206.

Each BOA must be reviewed annually before the anniversary of its effective date and revised as necessary to conform to the requirements of the APM. A BOA may be changed only by modifying the agreement itself and not by modifying individual task orders issued under it. Modifying a BOA does not retroactively affect the task orders previously issued under it.

(3) Receivership Basic Ordering Agreement: A receivership basic ordering agreement (RBOA) is used to expedite the acquisition of goods and/or services in support of failing or failed financial institutions and their subsidiaries. An RBOA is similar to a BOA in all respects except the following:

§ It is limited to awards in support of the Division of Resolutions and Receiverships (DRR) as it conducts pre- and post-closing activities of failing or failed financial institutions, prepares for and performs the duties of receiver in the pre- or post-closing period, or deals with related subsidiaries.

§ It does not contain a ceiling amount. Because the amount of goods and/or services to be acquired during the period of an RBOA depends on the size and number of financial institution closings, as well as on existing levels of current asset sales, it is virtually impossible for DRR to accurately forecast a ceiling amount applicable to the RBOA(s). Furthermore, having an inaccurate ceiling amount for the RBOA(s) could result in the repeated need to increase the ceiling amount; thereby extending the time before new task orders could be issued. Hence, an RBOA does not contain a ceiling amount. Instead, dollar value ceiling controls are established at the task order level, versus the RBOA level, allowing DRR the ability to formulate requirements and resultant cost estimates as needs become better defined.

§ The dollar value of the procurement request authority is zero, for the same reason addressed above as to why an RBOA does not contain a ceiling amount. Whether there are one or multiple RBOAs, a zero (0) dollar purchase requisition must be created for every RBOA.

§ RBOAs and task orders issued under RBOAs may also be used with the expedited and emergency contracting procedures addressed at PGI 3.5.

3.217(b) Task Orders

Orders for the acquisition of goods or services, issued under a BOA or an RBOA are known as task orders. Only warranted ASB Contracting Officers may issue task orders. Task orders issued under either a BOA or RBOA are entered into in the same capacity as the respective BOA or RBOA, unless multiple capacities are authorized in the BOA or RBOA.

Although task orders may also include the ordering of goods, the term delivery order is typically used when the order is only for goods. Nevertheless, the following guidance on task orders applies regardless of whether the order is for goods or services. The goods or services to be acquired on the task order must be within the scope of the work identified in the ordering agreement. The issuance of a task order must be in compliance with the procedures identified in the BOA or RBOA. The delivery of goods and the performance of services, ordered in a task order, must be completed during the period of the ordering agreement.

The issuance of a task order creates a contract. It contains a unique task order number, negotiated price, performance period/delivery schedule, requirements document, and contractually binding signatures. The requirement document is usually in the form of either a SOW or performance work statement (PWS). Invoicing, payments, closeout, and (if necessary) terminations, are accomplished at the task order level.

The following documents, as applicable, are required to be processed for each task order, subject the dollar thresholds and approval levels identified in the February 20, 2007 letter "Revised Procurement-Related Delegations and Re-Delegations of Authority Limits" and the Approvals Matrix, both found at Appendix B, Approvals Memorandum and Matrix:

(1) Purchase requisition;

(2) Acquisition Plan;

(3) Source Selection Plan;

(4) Justification for Non-Competitive Procurement;

(5) Solicitation; and

(6) SRR or PEM.

Legal review of the acquisition plan, solicitation, and task order award document are subject to the approval levels identified in APM 5.15, Legal Review of Acquisition Documents and Contract Actions, and the Approvals Memorandum and Matrix, Appendix B. Task orders over $5,000,000, must be reported separately in the Contract Assessment Report. Modifications to task orders are subject to the same approvals and documentation requirements as modifications to contracts (see PGI 6.5).

When task orders are awarded based on competition among contractors, the source selection process may be streamlined from that identified in APM 3.206 Source Selection Planning. However, prior to issuing the request for task order proposal, the streamlining efforts must be approved by the respective ASB Assistant Director and documented in the official contract file.

Examples of a streamlined source selection process include:

(1) Instead of using color-coding or points in the evaluation of the offerors' technical proposals, summarize the findings so as to highlight the magnitude of strengths of weaknesses. These findings are then considered along with price and past performance (if applicable) when determining the best value;

(2) After receipt of initial proposals, selecting the contractor whose proposal offers the best value and negotiating changes to the requirements documents and price with only the selected contractor; and

(3) Rotating awards.

3.217 (c) Task Assignments

When it is necessary to authorize work under a contract or task order, at various times throughout the period of performance on an as-needed-basis, the vehicle for authorizing such work is a task assignment. Task assignments involve work within the scope of the SOW for the contract or task order for which the specific requirement is not determined until after contract or task order award. The task assignment is therefore a subset of the contract or task order. The task assignment must be incorporated into the contract or task order by bilateral modification. The modification may or may not involve the addition of line items. It is recommended the task assignment be assigned a unique number (such as TA 08-01)for administrative purposes. This number is not an addition to the contract or task order number, but provides a numerical identification mechanism for FDIC and the contractor to keep track of the various task assignments.

The scope of work associated with any task assignment must be within the scope of the SOW of the contract or task order. The period of performance for any task assignment must not exceed that of the contract or task order, and the total dollar amount of task assignments must not exceed the ceiling amount of the contract or task order. Procedures for requesting a proposal, negotiating, and issuing the task assignment must be identified in the contract or task order. Because invoices must be submitted at the contract or task order level, the procedures must identify whether separate invoices are required for each task assignment.

Only Contracting Officers have the authority to issue task assignments and this authority must not be delegated.

Task assignments do not require an Acquisition Plan, Source Selection Plan, or JNCP. However, a purchase requisition must be approved at the appropriate level for the dollar value of the task assignment, prior to issuing the task assignment. A PEM is not required for a task assignment. However, a determination of price reasonableness must be documented by the Contracting Officer in a memorandum to the official contract file. In making the determination, the Contracting Officer must verify that the negotiated task assignment dollar amount is based on the appropriate skill mix (labor categories and number of labor hours), which are applied to either previously negotiated labor rates or labor rates adequately supported in the task assignment proposal, along with reasonable costs for any material or travel. Legal review is not required for the request for task assignment, the task assignment, or the modification incorporating the task assignment into the contract or task order.

3.217(d) Pricing Arrangements

Any of the pricing arrangements discussed below may be utilized with any of the contract types in PGI 3.217(a). As part of acquisition planning, the Contracting Officer, in coordination with the Program Office, selects the pricing arrangement most suitable to the procurement. The most suitable pricing arrangement may be a hybrid utilizing more than one type of pricing arrangement, when appropriate. For instance, a contract may include both firm fixed price (FFP) and labor hour line items, and may further include cost reimbursable items, where contractors are reimbursed for actual costs for goods or services provided under the contract. In any of the three categories discussed below, the price or hourly rate includes all basic costs of performance, including overhead, general and administrative expenses, profit, and any other specific costs negotiated with the contractor.

(1) Firm Fixed Price: A FFP contract, which best utilizes the basic profit motive of business enterprise, is appropriate when the risk involved is minimal or can be predicted with an acceptable degree of certainty. Under a FFP contract, FDIC pays the contractor a predetermined price for successfully performing the work. This arrangement represents the least risk for FDIC in that the contract has a predetermined total price at the time of contract award and is not subject to adjustment during contract performance. Accordingly, a FFP arrangement places the maximum risk upon the contractor to manage costs and resulting profit or loss. It provides maximum incentive for the contractor to control costs and perform effectively and imposes a minimum administrative burden upon the contracting parties. FDIC normally issues payment upon delivery and acceptance of the goods or services. Successful use of this arrangement requires a clear definition of requirements in the SOW and realistic estimates of work to be performed. Firm fixed prices include any and all of the contractor's costs and expenses, direct and indirect, as well as any profit, fee or any markups of any nature.

(2) Fixed Unit Prices: A fixed unit price pricing arrangement is one in which FDIC pays the contractor agreed-upon fixed unit prices for specified goods or services. Contractor's fixed unit prices include any and all of contractor's costs and expenses, direct and indirect, as well as any profit, fee, or any markups of any nature. Fixed unit prices may be appropriate for requirements such as training courses, office supplies, etc.

(3) Time and Materials: Time and materials (T&M) pricing arrangements provide primarily for the procurement of labor services on the basis of direct labor hours at specified fixed hourly labor rates, plus the cost of necessary materials. FDIC uses these contracts when it is difficult to provide a detailed SOW or to estimate the price or duration of time required for performance. With a T&M pricing arrangement, FDIC compensates the contractor at the hourly rates specified in the contract for actual productive work hours exclusive of travel time, vacation, holiday, sick leave and other absences. The hourly rates include any and all wages, overhead, general and administrative expenses and profit or fee. The Contracting Officer may authorize reimbursement of material handling expenses in the contract. Any material handling expenses must be properly applied to direct material (excluding travel, overhead, or any other allocation). If subcontracting is approved under the contract, the Contracting Officer must approve subcontractor hourly rates in addition to the prime’s hourly rates. Subcontractor mark-ups may be permitted, if approved in advance by the Contracting Officer.

(4) Labor Hours: A labor hour contract is similar to a T&M contract, except that FDIC does not require the contractor to provide materials during performance. As noted under T&M pricing, FDIC compensates the contractor at the hourly rates specified in the contract for actual productive work hours exclusive of travel time, vacation, holiday, sick leave and other absences. The hourly rates include any and all wages, overhead, general and administrative expenses and profit or fee. If subcontracting is approved under the contract, the Contracting Officer must approve subcontractor hourly rates in addition to the prime’s hourly rates. Subcontractor mark-ups may be permitted, if approved in advance by the Contracting Officer.

(5) Additional Considerations: Any of the contract types and pricing arrangements discussed above may include additional requirements that impact the total price paid to the contractor. These include features such as:

§ Cost reimbursable items: These are items (goods or services) that are required for performance of the contract, but would not normally be included in a contractor’s fixed price or hourly rate. Therefore, the Contracting Officer includes language in the contract to permit reimbursement of the items on an actual cost basis. A description of the cost reimbursable items must be identified in the contract. The contractor must also submit supporting documentation, such as receipts, with their invoice to show actual costs incurred.

§ Incentives: As discussed in PGI 5.7, contracts may include incentives, such as award term and other applicable performance or delivery incentives negotiated by the Contracting Officer.

3.218 Prescriptions for Clauses and Provisions for Formal Contracting