(d) Certification by offeror. Το ensure against contacts between Department employees and prospective offerors which would exceed the limits of advance guidance set forth in § 14.905 resulting in an unfair advantage to an offeror, the principal official responsible for procurement (or designee) shall ensure that the following certification is furnished to the prospective offeror and the executed certification is included as part of the resultant unsolicited proposal:

UNSOLICITED PROPOSAL CERTIFICATION BY OFFEROR

This is to certify, to the best of my knowledge and belief, that:

a. This proposal has not been prepared under Government supervision.

b. The methods and approaches stated in the proposal were developed by this offeror. c. Any contact with employees of the Department of Health and Human Services has been within the limits of appropriate advance guidance set forth in § 1-4.905.

d. No prior commitments were received from departmental employees regarding acceptance of this proposal. Date:

Organization: Name:

Title:

(This certification shall be signed by a responsible official of the proposing organization or a person authorized to contractually obligate the organization.)

§ 3-4.907 Time of submission.

The principal official responsible for procurement shall establish procedures governing the time for submission and number of copies of proposals for the purpose of maintaining orderly and efficient evaluation procedures.

§ 3-4.908 Agency point of contact.

The principal official responsible for procurement or his/her designee shall be the point of contact for coordinating the receipt and handling of unsolicited proposals. Contacts made outside of the procuring activity shall be promptly coordinated with the principal official responsible for procurement or his/her designee.

§ 3-4.909 Receipt, review and evaluation.

The principal official responsible for procurement or his/her designee shall be accountable for the receipt and handling of unsolicited proposals. Accordingly, he/she shall establish procedures for controlling the receipt, evaluation, and timely disposition of unsolicited proposals in accordance with § 1-4.909. These procedures shall include controls on the reproduction and disposition of proposal material, particularly data identified by the offeror as subject to duplication, use, or disclosure restrictions.

(a)-(e) [Reserved]

(f) An unsolicited proposal shall not be refused consideration merely because it was initially submitted as a grant application. However, contracts shall not be awarded on the basis of unsolicited proposals which have been rejected for grant support on the ground that they lack scientific merit. § 3-4.910 Method of procurement.

(a) [Reserved]

(b) In lieu of the justification for noncompetitive procurement required by § 1-4.910(b), the program office shall prepare a "Justification for Acceptance of Unsolicited Proposal."

(1) The "Justification" shall address the factors listed in § 1-4.909(d) and include the following findings:

(i) The unsolicited proposal was selected on the basis of its overall merit, cost, and contribution to the activity's program objective.

(ii) The substance of the unsolicited proposal does not closely resemble that of a pending competitive solicitation;

(iii) The substance thereof is not available to the Government without restriction from another source.

(2) The "Justification for Acceptance of Unsolicited Proposal" shall be submitted to the contracting officer together with, but as a separate document from, the request for contract and shall be signed by the same official of the program office who signs the request for contract. Approval of the "Justification" shall be made at the same level as prescribed in § 33.5306 for approval of a justification for noncompetitive procurement.

§ 3-4.913 Limited use of data.

The legend, Use and Disclosure of Data, prescribed in § 1-4.913(a) is to be used by the offeror to restrict the use of data for evaluation purposes only. However, data contained within the unsolicited proposal may have to be disclosed as a result of a request submitted pursuant to the Freedom of Information Act. Because of this possibility, the following notice shall be furnished to all prospective offerors of unsolicited proposals whenever the legend is provided in accordance with § 1-4.905(b)(9):

The Government will attempt to comply with the "Use and Disclosure of Data" legend. However, the Government may not be able to withhold a record (data, document, etc.) nor deny access to a record requested by an individual (the public) when an obligation is imposed on the Government under the Freedom of Information Act, 5 U.S.C. 552, as amended. The Government's determination to withhold or disclose a record will be based upon the particular circumstances involving the record in question and whether the record may be exempted from disclosure under the Freedom of Information Act. Records which the offeror considers to be trade secrets and commercial or financial information and privileged or confidential must be identified by the offeror as indicated in the referenced legend.

Subpart 3-4.10-Architect-Engineer Services

SOURCE: 41 FR 27835, July 7, 1976, unless otherwise noted.

§ 3-4.1001 General policy.

Pursuant to Pub. L. 92-582 dated October 27, 1972, which amended, it is the policy of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 471, et seq.), it is the policy of the Federal Government to publicly announce all requirements for Architect/Engineer (A/E) services, and to negotiate contracts for A/E services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices. The acquisition of such services in connection with a "public building" as that term is defined in section 13 of the Public Building Act of 1959 (40 U.S.C. 612), may be exercised only under the conditions prescribed in § 10119.402(c) of this title and subject to standards prescribed by the Administrator of General Services pursuant to § 101-19.502 of this title. The procurement of such services in connection with special purpose space such as schools, hospitals, laboratories, and research centers is subject to the requirements and conditions prescribed by section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 252(c)(4)) and § 1-3.204 of this title.

§ 3-4.1002 Definitions.

(a)-(c) [Reserved]

(d) "Fee" means the total amount payable to the A/E for the work and services to be performed.

§ 3-4.1003 Public announcements.

(a) One of the first steps in beginning the A/E selection process is to assure the availability of funds so that the succeeding A/E selection steps will be accomplished in a proper manner and that the Government and interested A/E firms will not be expending resources on projects that are tentative or stand little chance of being approved. In the event a certification of available funding has not been received but is reasonably anticipated in the near future, and it is imperative that the Government's requirement be publicized without further delay, the notice(s) publicizing the requirement shall contain wording to the effect

that the Department expects to receive the design funds in the near future and discussions will not be held with the proposed A/E firm until receipt of such funds.

(b) Program of requirements. The program of requirements or design criteria is normally prepared by the appropriate program element, and is the basis for the subsequent preparation of the statement of work. The Office of Facilities Engineering and Property Management (OFEPM), including its Regional Offices (ROFEC), should provide assistance in the preparation of the program of requirements. The program requirements as well as the A/E statement of work (scope of services, see § 3-4.50-3, and the Independent Government estimate, see § 14.100-3, should be prepared and completed prior to the public announcement of the proposed procurement to ensure that the announcement complies with the requirements of FPR 11.1003-3 and 1-1.1003-7.

(c) Preparation of A/E Statement of Work (Scope of Services). The statement of work shall be prepared by that office responsible for the evaluation and selection action. A statement of work should facilitate price negotiations, eliminate ambiguities, and assure that the design will satisfy program needs. Each A/E statement of work should reflect the specific design requirements. Such items as scheduling, cost control, and value management including life cycle costs are important factors for consideration. Typical areas coverd by an A/E statement of work are: Predesign; Concepts & Schematics; Design Development; Contract Document Development; Administration and Inspection; and other pertinent requirements such as time and payment scheduling, and phased options.

(d) To insure the broadest publicity concerning the Government's interest in obtaining A/E services, the contracting officer shall have developed notices in accordance with § 1-1.10037(b)(9) with respect to individual projects. The following should be included in notices which publicize procurement of A/E services:

Firms desiring to be considered for architect/engineer contracts in a given area must

file the Standard From 254 and Standard Form 255, when applicable, with either the Principal Operating Component or the ROFEC whichever may be appropriate, or with the Deputy Assistant Secretary for Facilities Engineering and Property Management (DASFEPM), Office of Architectural and Engineering Service, OFEPM, Office of the Secretary, DHHS, 330 Independence Avenue, SW., Washington, D.C 20201, depending on the geographical area of interest.

§ 3-4.1004 Selection.

§ 3-4.1004-1 Establishment of A/E evaluation boards.

(a) The following shall apply to the establishment of A/E evaluation boards:

(1) When the independent Government estimate of the total A/E proposed contract exceeds $10,000 or regardless of the dollar amount involved whenever A/E services are to be procured under an open-end (requirements) contract, all evaluation and selection actions shall be performed by evaluation boards of the Office of Facilities Engineering and Property Management (OFEPM) which includes ROFEC's.

(2) When the independent Government estimate of the total A/E proposed contract is $10,000 or less and the project is not within the scope of an open-end contract, such action for the evaluation and selection may be performed by ROFEC boards with the concurrence of the Regional Engineer when such functions cannot be performed by the principal operating component under paragraph (a)(3) of this section.

(3) When the independent Government estimate of the total A/E proposed contract is $10,000 or less and not within the scope of an open-end contract, the evaluation and selection actions may be conducted by the principal operating component's personnel who meet the qualifications as set forth herein and consistent with the requirements of Subpart 1-4.10.

(4) In the event of special circumstances involving a proposed A/E contract estimated to exceed $10,000 which would not fall within the scope of an open-end contract, and which a principal operating component (POC)

believes would warrant its exercising evaluation and selection functions in lieu of OFEPM, the POC must submit its request and justification to the DASFEPM, OFEPM, for approval.

(5)(i) When the Government estimate for the total propsed A/E requirement is more than $10,000 each evaluation board shall consist of five licensed professional architects or engineers (with the Regional Engineer or his representative serving as chairman on a ROFEC board), one program or administrative representative, and one nonvoting recording secretary. A minimum number of three licensed architects or engineers shall be present at all evaluation board meetings and shall constitute a quorum.

(ii) When the independent government estimate is $10,000 or less, each evaluation board shall consist of at least one licensed professional architect or engineer (with the Regional Engineer or his representative serving as Chairman on a ROFEC board), one program or administrative representative, and one nonvoting recording secretary.

(6) The makeup of evaluation boards in the Office of the DASFEPM, OFEPM, is determined by the DASFEPM, OFEPM, so as to meet varying requirements. The Regional Engineers shall determine the makeup of the evaluation boards in the ROFEC's. Each principal operating component shall determine the makeup of the evaluation boards, consistent with this section (3-4.1004).

listing in the order of preference not less than three firms with addresses considered to be the most highly qualified to perform the required services. The report shall comply with § 14.1004-2(c) of this title and include the following:

(1) Summary sheet and rating factors tabulating the individual member scores, ranking, and rating factors;

(2) SF-254's and 255's plus any essential brochures for each A/E firm, and

(3) Government estimate of total A/ E fee.

§ 3-4.1004-3 Evaluation criteria. (a)-(d) [Reserved]

(e) Whenever possible, small business firms will be selected for projects for which they are considered to be qualified and to be capable of handling.

§ 3-4.1004-4 Action by agency head or his authorized representative.

(a) The responsible official to whom the authority has been delegated shall review the report of the A/E evaluation board, and in concert with appropriate technical and staff representatives, shall either concur or otherwise advise the Board of his decision in writing.

(1) The approval of the DASFEPM, OFEPM or his designee is required, whenever:

(i) The Government's estimate of the total proposed A/E contract exceeds $100,000; or

(ii) Any modification to an existing contract would increase the total contract amount by more than 35 percent.

(2) The approval of the cognizant Regional Engineer is required whenever the Government's estimate is less than $100,000, except for paragraph (a)(3) of this section. (In the Baltimore-Washington metropolitan area, such approval should be requested of the Director, Office of Architectural and Engineering Services (OFEPM).) (3) The approval of the head of a principal operating component or his designee shall be provided when:

(i) The Government's estimate of the total proposed A/E contract is