Considering that BAAs are not issued nor are proposals selected for award subject to FAR 15.3 procedures, and that cost is not a required evaluation criteria in BAA award evaluation (rather cost realism/reasonableness is considered after a merit review of proposal(s)), are POMs and PNMs as identified in FAR Part 15.406 required documentation if the Government objects to any portion of and requires resubmission of a revised cost proposal after it has already completed the peer review process?
FAR 35.016(d) establishes that written evaluation reports on individual proposals will be necessary but there is not a source selection procedure as in competitive acquisitions. The type, extent, and granularity of the written evaluation report will depend on the specific evaluation criteria specified in the Broad Agency Announcement (BAA). FAR 35.016(b)(2) instructs contracting officers to, “Describe the criteria for selecting the proposals, their relative importance, and the method of evaluation;” The transparency concept here is to first, tell the public what the government wants and how it will be recognized and selected, and second, do what was published.
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Could the methods and documentation at FAR subpart 15.4 be part of that written evaluation report? Yes, they could, if the situation calls for them. Could that evaluation report be called a ‘prenegotiation objectives memorandum’ or a ‘price negotiation memorandum’ as presented in FAR subpart 15.4? Yes, they could, but it could also be called ‘written evaluation report.’ The important thing is to document what happened and why the agreed upon price is fair and reasonable. There is no prohibition against a contracting officer determining that more rigorous evaluation and documentation methods are called for to ensure the fairness and reasonableness of the agreed upon price is adequately explained.
FAR 15.306(d) does not present a limitation on negotiation. FAR 15.306(d) describes, in a broad sense, the latitude a contracting officer has in bargaining to fulfill their duty as a member of the Acquisition Team to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs FAR 1.102(d). If the proposal in response to the BAA were to have areas of uncertainty, or questions arise regarding cost realism for instance, the contracting officer may want to talk with the respondent. The contracting officer may want to determine, before the talking begins, what the government thinks an agreement should look like. Documenting this before-the-talking-begins expectation, regardless of what we call it, helps keep things on track once the talking begins. The respondent may, or may not, alter their proposal in response to these talks. This process, in plain language, is ‘negotiation.’