[Federal Register Volume 67, Number 109 (Thursday, June 6, 2002)]
[Rules and Regulations]
[Pages 38904-38908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14162]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1813 and 1852
RIN 2700-AC33
Non-Commercial Representations and Certifications and Evaluation
Provisions for Use in Simplified Acquisitions
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This final rule amends the NFS to provide a consolidated set
of representations and certifications and an evaluation provision for
the acquisition of non-commercial items within the simplified
acquisition threshold.
EFFECTIVE DATE: June 6, 2002.
FOR FURTHER INFORMATION CONTACT: Celeste Dalton, NASA, Office of
Procurement, Contract Management Division (Code HK), (202) 358-1645 or
e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
Currently for commercial acquisitions, FAR provision 52.212-3,
Offeror Representations and Certifications--Commercial Items, provides
a consolidated set of representations and certifications. No equivalent
provision exists for non-commercial items. This final rule provides an
equivalent provision for use with NASA's non-commercial acquisitions
within the simplified acquisition threshold (SAT). This new
consolidated provision will ensure that all appropriate representations
and certifications are consistently used and will simplify the
incorporation of representation and certification into solicitations.
Additionally, this final rule provides an evaluation provision to be
used in non-commercial acquisitions within the SAT when selection is
based on other than technically acceptable low offer. This evaluation
provision will provide a consistent notice to offerors of how
evaluations will be conducted.
NASA published a proposed rule in the Federal Register on January
25, 2002 (67 FR 3669-3673). Two respondents submitted comments on the
proposed rule. One respondent was generally supportive of the proposed
rule. The other respondent's comments indicated a lack of understanding
that this change is merely a consolidation of existing requirements and
not an imposition of additional requirements. The comments received
were considered in formulation of this final rule. While no changes are
being made as a result of comments received, changes are being made for
consistency with existing FAR provisions. Changes made include removal
of the Trade Agreements Certificate since it does not apply to
acquisitions within the SAT; removal of the definition of ``woman-owned
business'' since 52.219-1 no longer has this category; replacing
``place of ownership'' with ``office'' under the HUBZone certification
as a result of changes made to 52.219-1 in FAC 01-06; and editorial
changes at 1813.302-570(a)(2) for consistency of formatting and at
1852.213-70(c)(6)(i) and 1852.217-70(c)(6)(ii) for clarity.
B. Regulatory Flexibility Act
NASA certifies that this final rule will not have a significant
economic impact on a substantial number of small business entities
within the meaning of the Regulatory Flexibility Act (5 USC 601, et
seq.), because this rule merely consolidates within one provision
existing FAR representations and certifications for use in non-
commercial simplified acquisitions.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because these changes to
the NFS do not impose any new recordkeeping or information collection
requirements, or collection of information from offerors, contractors,
or members of the public that require the approval of the Office of
Management and Budget under 44 USC 3501, et seq.
List of Subjects in 48 CFR Parts 1813 and 1852
Government Procurement.
Scott Thompson,
Acting Assistant Administrator for Procurement.
Accordingly, 48 CFR Part 1813 and 1852 are amended as follows:
1. The authority citation for 48 CFR Parts 1813 and 1852 continues
to read as follows:
Authority: 42 U.S.C. 2473(c)(1)
PART 1813--SIMPLIFIED ACQUISITION PROCEDURES
2. Add section 1813.302-570 to read as follows:
1813.302-570 NASA solicitation provisions.
(a)(1) The contracting officer may use the provision at 1852.213-
70, Offeror Representations and Certifications--Other Than Commercial
Items, in simplified acquisitions exceeding the
[[Page 38905]]
mircro-purchase threshold that are for other than commercial items.
This provision shall not be used for acquisitions conducted under FAR
13.5.
(2) This provision provides a single, consolidated list of
certifications and representations for the acquisition of other than
commercial items using simplified acquisition procedures and is
attached to the solicitation for offerors to complete and return with
their offer.
(i) Use the provision with its Alternate I in solicitations for
acquisitions that are for, or specify the use of recovered materials
(see FAR 23.4).
(ii) Use the provision with its Alternate II in solicitations for
the acquisition of research, studies, supplies, or services of the type
normally acquired from higher education institutions (see FAR 26.3).
(iii) Use the provision with its Alternate III in solicitation
which include the clause at FAR 52.227-14, Rights in Data--General (see
FAR 27.404(d)(2) and 1827.404(d)).
(b) The contracting officer may insert a provision substantially
the same as the provision at 1852.213-71, Evaluation--Other than
Commercial Items, in solicitations using simplified acquisition
procedures for other than commercial items when evaluation factors are
to be included for evaluation and the selection will be based upon best
value, rather than technically acceptable, low price. (See FAR 13.106.)
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Add sections 1852.213-70 and 1852.213-71 to read as follows:
1852.213-70 Offeror Representations and Certifications--Other Than
Commercial Items.
As prescribed in 1813.302-570, insert the following provision:
Offeror Representations and Certifications--Other Than Commercial
Items--(JUN 2002)
(a) Definitions. As used in this provision--
``Emerging small business'' means a small business concern whose
size is no greater than 50 percent of the numerical size standard
for the NAICS code designated.
``Forced or indentured child labor'' means all work or service--
(1) Exacted from any person under the age of 18 under the menace
of any penalty for its nonperformance and for which the worker does
not offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as
defined in 38 U.S.C. 101(16).
``Service-disabled veteran-owned small business concern''--Means
a small business concern--
(1) Not less than 51 percent of which is owned by one or more
service-disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by
one or more service-disabled veterans; and
(2) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case
of a veteran with permanent and severe disability, the spouse or
permanent caregiver of such veteran.
``Small business concern'' means a concern, including its
affiliates, that is independently owned and operated, not dominant
in the field of operation in which it is bidding on Government
contracts, and qualified as a small business under the criteria in
13 CFR part 121 and size standards in this solicitation.
``Veteran-owned small business concern'' means a small business
concern--
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of
which is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
``Women-owned small business concern'' means a small business
concern--
(1) That is at least 51 percent owned by one or more women; or,
in the case of any publicly owned business, at least 51 percent of
the stock of which is owned by one or more women; and
(2) Whose management and daily business operations are
controlled by one or more women.
(b) Taxpayer Identification Number (TIN) (26 U.S.C. 6109, 31
U.S.C. 7701).
(1) All offerors must submit the information required in
paragraphs (b)(3) through (b)(5) of this provision to comply with
debt collection requirements of 31 U.S.C. 7701(c) and 3325(d),
reporting requirements of 26 U.S.C. 6041, 6041A, and 6050M, and
implementing regulations issued by the Internal Revenue Service
(IRS).
(2) The TIN may be used by the Government to collect and report
on any delinquent amounts arising out of the offeror's relationships
with the Government (31 U.S.C. 7701(c)(3)). If the resulting
contract is subject to the payment reporting requirements described
in FAR 4.904, the TIN provided hereunder may be matched with IRS
records to verify the accuracy of the offeror's TIN.
(3) Taxpayer Identification Number (TIN).
[ ] TIN:----------.
[ ] TIN has been applied for.
[ ] TIN is not required because:
[ ] Offeror is a nonresident alien, foreign corporation, or
foreign partnership that does not have income effectively connected
with the conduct of a trade or business in the United States and
does not have an office or place of business or a fiscal paying
agent in the United States;
[ ] Offeror is an agency or instrumentality of a foreign
government;
[ ] Offeror is an agency or instrumentality of the Federal
Government.
(4) Type of organization.
[ ] Sole proprietorship;
[ ] Partnership;
[ ] Corporate entity (not tax-exempt);
[ ] Corporate entity (tax-exempt);
[ ] Government entity (Federal, State, or local);
[ ] Foreign government;
[ ] International organization per 26 CFR 1.6049-4;
[ ] Other ----------.
(5) Common parent.
[ ] Offeror is not owned or controlled by a common parent;
[ ] Name and TIN of common parent:
Name ----------.
TIN----------.
(c) Offerors must complete the following representations when
the resulting contract is to be performed inside the United States,
its territories or possessions, Puerto Rico, the Trust Territory of
the Pacific Islands, or the District of Columbia. Check all that
apply.
(1) Small business concern. The offeror represents as part of
its offer that it [ ] is, [ ] is not a small business concern.
(2) Veteran-owned small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents as part of its
offer that it [ ] is, [ ] is not a veteran-owned small business
concern.
(3) Service-disabled veteran-owned small business concern.
[Complete only if the offeror represented itself as a veteran-owned
small business concern in paragraph (c)(2) of this provision.] The
offeror represents as part of its offer that it [ ] is, [ ] is not
a service-disabled veteran-owned small business concern.
(4) Small disadvantaged business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents, for general
statistical purposes, that it [ ] is, [ ] is not a small
disadvantaged business concern as defined in 13 CFR 124.1002.
(5) Women-owned small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents that it [ ] is, [
] is not a women-owned small business concern.
(6) Small Business Size for the Small Business Competitiveness
Demonstration Program and for the Targeted Industry Categories
under the Small Business Competitiveness Demonstration Program.
[Complete only if the offeror has represented itself to be a small
business concern under the size standards for this solicitation.]
(i) [Complete only for solicitations indicated as being set-
aside for emerging small businesses in one of the four designated
industry groups (DIGs).] The offeror represents as part of its offer
that it [ ] is, [ ] is not an emerging small business.
[[Page 38906]]
(ii) [Complete only for solicitations indicated as being for one
of the targeted industry categories (TICs) or four designated
industry groups (DIGs).] Offeror represents as follows:
(A) Offeror's number of employees for the past 12 months (check
the Employees column if size standard stated in the solicitation is
expressed in terms of number of employees); or
(B) Offeror's average annual gross revenue for the last 3 fiscal
years (check the Average Annual Gross Number of Revenues column if
size standard stated in the solicitation is expressed in terms of
annual receipts).
(Check one of the following):
Number of employees Average annual gross revenues
--50 or fewer --$1 million or less.
--51-100 --$1,000,001-$2 million.
--101-250 --$2,000,001-$3.5 million.
--251-500 --$3,500,001-$5 million.
--501-750 --$5,000,001-$10 million.
--751-1000 --$10,000,001-$17 million.
--Over 1000 --Over $17 million.
(7) HUBZone small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents as part of its
offer that--
(i) It [ ] is, [ ] is not a HUBZone small business concern
listed, on the date of this representation, on the List of Qualified
HUBZone Small Business Concerns maintained by the Small Business
Administration, and no material change in ownership and control,
principal office, or HUBZone employee percentage has occurred since
it was certified by the Small Business Administration in accordance
with 13 CFR part 126; and
(ii) It [ ] is, [ ] is not a joint venture that complies with
the requirements of 13 CFR part 126, and the representation in
paragraph (c)(11)(i) of this provision is accurate for the HUBZone
small business concern or concerns that are participating in the
joint venture. [The offeror shall enter the name or names of the
HUBZone small business concern or concerns that are participating in
the joint venture: ----------.] Each HUBZone small business concern
participating in the joint venture shall submit a separate signed
copy of the HUBZone representation.
(8) (Complete if dollar value of the resultant contract is
expected to exceed $25,000 and the offeror has represented itself as
disadvantaged in paragraph (c)(4) of this provision.) [The offeror
shall check the category in which its ownership falls]:
-- Black American.
-- Hispanic American.
-- Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians).
-- Asian-Pacific American (persons with origins from Burma,
Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China,
Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines,
U.S. Trust Territory of the Pacific Islands (Republic of Palau),
Republic of the Marshall Islands, Federated States of Micronesia,
the Commonwealth of the Northern Mariana Islands, Guam, Samoa,
Macao, Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, or Nauru).
-- Subcontinent Asian (Asian-Indian) American (persons with origins
from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives
Islands, or Nepal).
-- Individual/concern, other than one of the preceding.
(d) Representations required to implement provisions of
Executive Order 11246--
(1) Previous contracts and compliance. The offeror represents
that--
(i) It [ ] has, [ ] has not participated in a previous
contract or subcontract subject to the Equal Opportunity clause of
this solicitation; and
(ii) It [ ] has, [ ] has not filed all required compliance
reports.
(2) Affirmative Action Compliance. The offeror represents that--
(i) It [ ] has developed and has on file, [ ] has not
developed and does not have on file, at each establishment,
affirmative action programs required by rules and regulations of the
Secretary of Labor (41 CFR parts 60-1 and 60-2), or
(ii) It [ ] has not previously had contracts subject to the
written affirmative action programs requirement of the rules and
regulations of the Secretary of Labor.
(e) Buy American Act--Balance of Payments Program Certificate.
(Applies only if the clause at Federal Acquisition Regulation (FAR)
52.225-1, Buy American Act--Balance of Payments Program--
Supplies, is included in this solicitation.)
(1) The offeror certifies that each end product, except those
listed in paragraph (e)(2) of this provision, is a domestic end
product as defined in the clause of this solicitation entitled ``Buy
American Act--Balance of Payments Program--Supplies'' and that the
offeror has considered components of unknown origin to have been
mined, produced, or manufactured outside the United States. The
offeror shall list as foreign end products those end products
manufactured in the United States that do not qualify as domestic
end products.
(2) Foreign End Products:
Line Item No. and Country of Origin
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[List as necessary]
(3) The Government will evaluate offers in accordance with the
policies and procedures of FAR part 25.
(f)(1) Buy American Act--North American Free Trade Agreement--
Israeli Trade Act--Balance of Payments Program Certificate. (Applies
only if the clause at FAR 52.225-3, Buy American Act-- North
American Free Trade Agreement--Israeli Trade Act--Balance of
Payments Program, is included in this solicitation.)
(i) The offeror certifies that each end product, except those
listed in paragraph (f)(1)(ii) or (f)(1)(iii) of this provision, is
a domestic end product as defined in the clause of this solicitation
entitled ``Buy American Act--North American Free Trade Agreement--
Israeli Trade Act--Balance of Payments Program'' and that the
offeror has considered components of unknown origin to have been
mined, produced, or manufactured outside the United States.
(ii) The offeror certifies that the following supplies are NAFTA
country end products or Israeli end products as defined in the
clause of this solicitation entitled ``Buy American Act--North
American Free Trade Agreement--Israeli Trade Act--Balance of
Payments Program'': NAFTA Country or Israeli End Products:
Line Item No. and Country of Origin
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[List as necessary]
(iii) The offeror shall list those supplies that are foreign end
products (other than those listed in paragraph (f)(1)(ii) of this
provision) as defined in the clause of this solicitation entitled
``Buy American Act--North American Free Trade Agreement-- Israeli
Trade Act--Balance of Payments Program.'' The offeror shall list as
other foreign end products those end products manufactured in the
United States that do not qualify as domestic end products.
Other Foreign End Products:
Line Item No. and Country of Origin
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[List as necessary]
(iv) The Government will evaluate offers in accordance with the
policies and procedures of FAR part 25.
(2) Buy American Act--North American Free Trade Agreements--
Israeli Trade Act--Balance of Payments Program Certificate,
Alternate I. If Alternate I to the clause at FAR 52.225-3 is
included in this solicitation, substitute the following paragraph
(f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
(f)(1)(ii) The offeror certifies that the following supplies are
Canadian end products as defined in the clause of this solicitation
entitled ``Buy American Act--North American Free Trade Agreement--
Israeli Trade Act--Balance of Payments Program'':
Canadian End Products:
Line Item No.
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(List as necessary)
(3) Buy American Act--North American Free Trade Agreements--
Israeli Trade Act--Balance of Payments Program Certificate,
Alternate II. If Alternate II to the clause at FAR 52.225-3 is
included in this solicitation, substitute the following paragraph
(f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
(f)(1)(ii) The offeror certifies that the following supplies are
Canadian end products or Israeli end products as defined in the
clause of this solicitation entitled ``Buy American Act--North
American Free Trade
[[Page 38907]]
Agreement--Israeli Trade Act--Balance of Payments Program'':
Canadian or Israeli End Products:
Line Item No. and Country of Origin
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[List as necessary]
(4) Trade Agreements Certificate. (Applies only if the clause at
FAR 52.225-5, Trade Agreements, is included in this solicitation.)
(i) The offeror certifies that each end product, except those
listed in paragraph (f)(4)(ii) of this provision, is a U.S.-made,
designated country, Caribbean Basin country, or NAFTA country end
product, as defined in the clause of this solicitation entitled
``Trade Agreements.''
(ii) The offeror shall list as other end products those end
products that are not U.S.-made, designated country, Caribbean Basin
country, or NAFTA country end products.
Other End Products:
Line Item No. and Country of Origin
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[List as necessary]
(iii) The Government will evaluate offers in accordance with the
policies and procedures of FAR part 25. For line items subject to
the Trade Agreements Act, the Government will evaluate offers of
U.S.-made, designated country, Caribbean Basin country, or NAFTA
country end products without regard to the restrictions of the Buy
American Act or the Balance of Payments Program. The Government will
consider for award only offers of U.S.-made, designated country,
Caribbean Basin country, or NAFTA country end products unless the
Contracting Officer determines that there are no offers for such
products or that the offers for such products are insufficient to
fulfill the requirements of the solicitation.
(g) Certification Regarding Knowledge of Child Labor for Listed
End Products (Executive Order 13126). [The Contracting Officer must
list in paragraph (j)(1) any end products being acquired under this
solicitation that are included in the List of Products Requiring
Contractor Certification as to Forced or Indentured Child Labor,
unless excluded at FAR 22.1503(b).]
(1) Listed end products.
Listed End Product and Listed Countries of Origin
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(2) Certification. [If the Contracting Officer has identified
end products and countries of origin in paragraph (g)(1) of this
provision, then the offeror must certify to either (g)(2)(i) or
(g)(2)(ii) by checking the appropriate block.]
[ ] (i) The offeror will not supply any end product listed in
paragraph (g)(1) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that
product.
[ ] (ii) The offeror may supply an end product listed in
paragraph (g)(1) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that
product. The offeror certifies that it has made a good faith effort
to determine whether forced or indentured child labor was used to
mine, produce, or manufacture any such end product furnished under
this contract. On the basis of those efforts, the offeror certifies
that it is not aware of any such use of child labor.
(End of provision)
Alternate I--Jun 2002
As prescribed in 1813.302-570(a)(2), add the following paragraph
to the end of the basic provision and identify appropriately:
( ) Recovered Material Certification. As required by the
Resource Conservation and Recovery Act of 1976 (42 U.S.C.
6962(c)(3)(A)(i)), the offeror certifies, that the percentage of
recovered materials to be used in the performance of the contract
will be at least the amount required by the applicable contract
specifications.
Alternate II--Jun 2002
As prescribed in 1813.302-570(a)(2), add the following paragraph
to the end of the basic provision and identify appropriately:
( ) Historically Black College or University and Minority Institution
Representation
(1) Definitions. As used in this provision--
``Historically black college or university'' means an
institution determined by the Secretary of Education to meet the
requirements of 34 CFR 608.2. For the Department of Defense, the
National Aeronautics and Space Administration, and the Coast Guard,
the term also includes any nonprofit research institution that was
an integral part of such a college or university before November 14,
1986.
``Minority institution'' means an institution of higher
education meeting the requirements of Section 1046(3) of the Higher
Education Act of 1965 (20 U.S.C. 1067k, including a Hispanic-serving
institution of higher education, as defined in Section 316(b)(1) of
the Act (20 U.S.C. 1101a)).
(2) Representation. The offeror represents that it--
( ) is ( ) is not a historically black college or university;
( ) is ( ) is not a minority institution.
Alternate III--Jun 2002
As prescribed in 1813.302-570(a)(2), add the following paragraph
to the end of the basic provision and identify appropriately:
( ) Representation of Limited Rights Data and Restricted
Computer Software
(1) This solicitation sets forth the work to be performed if a
contract award results, and the Government's known delivery
requirements for data (as defined in FAR 27.401). Any resulting
contract may also provide the Government the option to order
additional data under the Additional Data Requirements clause at FAR
52.227-16, if included in the contract. Any data delivered under the
resulting contract will be subject to the Rights in Data-General
clause at FAR 52.227-14 that is to be included in this contract.
Under the latter clause, a Contractor may withhold from delivery
data that qualify as limited rights data or restricted computer
software, and deliver form, fit, and function data in lieu thereof.
The latter clause also may be used with its Alternates II and/or III
to obtain delivery of limited rights data or restricted computer
software, marked with limited rights or restricted rights notices,
as appropriate. In addition, use of Alternate V with this latter
clause provides the Government the right to inspect such data at the
Contractor's facility.
(2) As an aid in determining the Government's need to include
Alternate II or Alternate III in the clause at FAR 52.227-14, Rights
in Data-General, the offeror shall complete paragraph (3) of this
provision to either state that none of the data qualify as limited
rights data or restricted computer software, or identify, to the
extent feasible, which of the data qualifies as limited rights data
or restricted computer software. Any identification of limited
rights data or restricted computer software in the offeror's
response is not determinative of the status of such data should a
contract be awarded to the offeror.
(3) The offeror has reviewed the requirements for the delivery
of data or software and states [offeror check appropriate block]--
( ) None of the data proposed for fulfilling such requirements
qualifies as limited rights data or restricted computer software.
( ) Data proposed for fulfilling such requirements qualify as
limited rights data or restricted computer software and are
identified as follows:
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Note: ``Limited rights data'' and ``Restricted computer
software'' are defined in the contract clause entitled ``Rights in
Data-General.''
1852.213-71 Evaluation--Other Than Commercial Items.
As prescribed in 1813.302-570(b) insert the following provision:
Evaluation--Other Than Commercial Items--Jun 2002
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror whose offer conforming to
the solicitation will be most advantageous to the Government, price
and other factors considered. The following factors shall be used to
evaluate offers:
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[Contracting Officer shall insert the evaluation factors, such as
(i) technical capability of the item offered to meet the Government
requirement; (ii) price; (iii) past performance (see FAR 15.304).]
(b) Options. The Government will evaluate offers for award
purposes by adding the total price for all options to the total
price for the basic requirement. The Government may determine that
an offer is unacceptable if the
[[Page 38908]]
option prices are significantly unbalanced. Evaluation of options
shall not obligate the Government to exercise the option(s).
(End of provision)
[FR Doc. 02-14162 Filed 6-5-02; 8:45 am]
BILLING CODE 7510-01-P