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Federal Register / Vol. 86, No. 187 / Thursday, September 30, 2021 / Rules and Regulations
i Indicating to offerors a price, contract term or condition, commercially available feature, and/or requirement beyond any requirement or target specified in the solicitation that offerors will have to improve upon or meet, as appropriate, in order to remain competitive.
ii Posting offered prices electronically or otherwise without disclosing the identity of the offerors and permitting revisions of offers based on this information.
2 Except as otherwise permitted by law, contracting officers shall not conduct acquisitions under this section in a manner that reveals the identities of offerors, releases proprietary information, or otherwise gives any offeror a competitive advantage see FAR 3.104. 38 U.S.C. 8153
873.112

Evaluation information.

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a Without regard to FAR 15.304, Evaluation factors and significant subfactors except for 15.304c1 and c3, which do apply to acquisitions under this authority, the criteria, factors, or other evaluation information that apply to an acquisition, and their relative importance, are within the broad discretion of agency acquisition officials as long as the evaluation information is determined to be in the best interest of the Government. 38
U.S.C. 8153
b Price or cost to the Government must be evaluated in every source selection. Past performance shall be evaluated in source selections for competitive acquisitions exceeding the SAT unless the contracting officer documents that past performance is not an appropriate evaluation factor for the acquisition. 38 U.S.C. 8153
c The quality of the product or service may be addressed in source selection through consideration of information such as past compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience. The information required from quoters, bidders, or offerors shall be included in notices or solicitations, as appropriate. 38 U.S.C. 8153
d The relative importance of any evaluation information included in a solicitation must be set forth therein. 38
U.S.C. 8153
873.113

Exchanges with offerors.

a Without regard to FAR 15.201 or 15.306, acquisitions generally involve exchanges between the Government and competing offerors. Open exchanges support the goal of efficiency in Government by providing the Government with relevant information
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in addition to that submitted in the offerors initial proposal needed to understand and evaluate the offerors proposal. The nature and extent of exchanges between the Government and offerors is a matter of contracting officer judgment. Clarifications, communications, and discussions are not applicable to acquisitions under this part. 38 U.S.C. 8153
b Exchanges with potential offerors may take place throughout the source selection process. Exchanges may start in the planning stages and continue through contract award. Exchanges should occur most often with offerors determined to be in the best value pool see 873.114. The purpose of exchanges is to ensure there is mutual understanding between the Government and the offerors on all aspects of the acquisition, including offerors submittals/proposals. Information disclosed as a result of oral or written exchanges with an offeror may be considered in the evaluation of an offerors proposal. 38 U.S.C. 8153
c Exchanges may be conducted, in part, to obtain information that explains or resolves ambiguities or other concerns e.g., perceived errors, omissions, or deficiencies in an Offerors proposal. 38 U.S.C. 8153
d Exchanges shall only be initiated if authorized by the contracting officer and need not be conducted with all offerors. 38 U.S.C. 8153
e Except for acquisitions based on alternative negotiation techniques contained in 873.111d1, the contracting officer and other Government personnel involved in the acquisition shall not disclose information regarding one offerors proposal to other offerors without consent of the offeror in accordance with FAR parts 3 and 24. 38 U.S.C.
8153
f Award may be made on initial proposals without exchanges if the solicitation states that the Government intends to evaluate proposals and make award without exchanges, unless the contracting officer determines that exchanges are considered necessary. 38
U.S.C. 8153
873.114

Best value pool.

a Without regard to FAR 15.306c, the contracting officer may determine the most highly rated proposals having the greatest likelihood of award based on the information or factors and subfactors in the solicitation. These vendors constitute the best value pool.
This determination is within the sole discretion of the contracting officer.
Competitive range determinations are
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not applicable to acquisitions under this part 873. 38 U.S.C. 8153
b In planning an acquisition, the contracting officer may determine that the number of proposals that would otherwise be included in the best value pool is expected to exceed the number at which an efficient, timely, and economical competition can be conducted. In reaching such a conclusion, the contracting officer may consider such factors as the results of market research, historical data from previous acquisitions for similar services, and the resources available to conduct the source selection. Provided the solicitation notifies offerors that the best value pool can be limited for purposes of making an efficient, timely, and economical award, the contracting officer may limit the number of proposals in the best value pool to the greatest number that will permit an efficient competition among the proposals offering the greatest likelihood of award. The contracting officer may indicate in the solicitation the estimate of the greatest number of proposals that will be included in the best value pool. The contracting officer may limit the best value pool to a single offeror. 38 U.S.C. 8153
c If the contracting officer determines that an offerors proposal is no longer in the best value pool, the proposal shall no longer be considered for award. Written notice of this decision must be provided to unsuccessful offerors at the earliest practicable time. 38 U.S.C. 8153
873.115

Proposal revisions.

a The contracting officer may request proposal revisions as often as needed during the proposal evaluation process at any time prior to award from vendors remaining in the best value pool. Proposal revisions shall be submitted in writing. The contracting officer may establish a common cutoff date for receipt of proposal revisions.
Contracting officers may request best and final offers n. In any case, contracting officers and acquisition team members must safeguard all proposals and revisions to avoid unfair dissemination of an offerors proposal.
38 U.S.C. 8153
b If an offeror initially included in the best value pool is no longer considered to be among those most likely to receive award after submission of proposal revisions and subsequent evaluation thereof, the offeror may be eliminated from the best value pool without being afforded an opportunity to submit further proposal revisions. 38
U.S.C. 8153

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