2.03 Acquisition

2.03.01
PURPOSE
This subchapter describes policies, responsibilities, and procedures for conducting acquisitions at the National Institute of Standards and Technology (NIST).

2.03.02
SCOPE
This subchapter is applicable to all NIST employees.

2.03.03
POLICY
It is NIST policy to ensure that all acquisitions are made in strict compliance with all applicable laws and regulations.

2.03.04
AUTHORITIES AND RESPONSIBILITIES
a. Contracting Officers are the only persons authorized to enter into contracts and obligate funds on behalf of the Government.

b. Other NIST employees may be delegated the authority to place orders not to exceed $25,000 on the Government BankCard. To obtain the delegation authority, one must complete the required training (i.e., cardholder AND approving official) and receive written approval by the Head of the Contracting Office (HCO) who is the Chief of the Acquisition Management Division (AMD). For detailed BankCard information, see http://www-i.nist.gov/admin/amd/index_bc.html and Appendix B of this subchapter.

c. The requesting organizational unit is responsible for providing information required by the Contracting Officer in the process of awarding and administering a contract. This includes:

(1) Annually, identifying all anticipated acquisitions with a lifetime estimated value exceeding $100,000 in accordance with DAO 208-15 and annual departmental budget guidance;

(2) Preparing required OMB Circular A-11, Exhibit 300 (i.e., Planning, Budgeting, Acquisition, and Management of Capital Assets);

(3) Completing contractor performance reports;

(4) Timely submittal of required documentation. Annual submission deadlines will be published as Administrative Bulletins at http://www-i.nist.gov/admin/mo/adman/contents.htm;

(5) Advising the Contracting Officer of any unusual requirements;

(6) Performing technical evaluations on offers; and

(7) Monitoring and keeping the Contracting Officer apprised of any contract performance issues.

d. Contracting Officer Representatives (CORs) have limited authority for such responsibilities as monitoring contractor progress and alerting Contracting Officers to problems, recommending any necessary contract changes, and inspecting and accepting deliverables. They do not have the authority to make changes to contract prices, terms or conditions. A COR may be designated as Levels 1, 2, or 3 Contracting Officer Technical Representative (COTR) or Point of Contact/Order Contact (P/OC). All designations are considered CORs. See the following websites for further information regarding the program: http://www-i.nist.gov/admin/amd/acquisition/cotr_cert_prog.html and http://oamweb.osec.doc.gov/docs/CAM_1301.67.pdf.

2.03.05
ACQUISITION PLANNING
An Acquisition Plan is a documented plan that addresses all technical, business, management, and other significant considerations that will control an acquisition. In developing the plan, the requesting organization shall form a team consisting of all those who will be responsible for significant aspects of the acquisition, such as contracting, fiscal, legal, and technical personnel. The requesting organization should review previous plans for similar acquisitions and discuss them with the key personnel involved in those acquisitions. The plan represents a checklist of things to do to award a contract in a timely manner. It identifies each major acquisition task, a timetable and strategy (if necessary) for accomplishment, and responsible personnel. Acquisition planning should start as soon as the agency needs are identified, preferably well in advance of the fiscal year in which contract award or order placement is necessary. The acquisition plan is designed to:

a. Identify projected procurement requirements;

b. Encourage the distribution of procurement actions evenly throughout the fiscal year to provide more effective use of resources;

c. Facilitate contract consolidation and more favorable contract arrangements, thereby reducing the number of contracts and accompanying documentation;

d. Increase the use of competitive procurements to secure more favorable contract terms;

e. Increase the opportunities for awarding contracts in support of the socio-economic programs;

f. Provide support to management control systems by identifying trends in year-end spending and requirements for consulting and related services; and

g. Provide a means for projecting the appropriate allocation of procurement resources to process the planned procurements.

Historically, the majority of requests for procurement actions have been submitted for processing during the last few months of the fiscal year. This peak in year-end procurement workload has resulted in unbalanced volumes of work being processed during a constrained time period in AMD. The results are:

(1) A disproportionate number of year-end awards;

(2) Increasing amounts of funds being lost or carried over into the new fiscal year; and

(3) Delays in processing acquisition requests. Detailed information is available at http://oamweb.osec.doc.gov/CAPPS_dao.html (DAO 208-15, and Amendment 1).

In order to comply with the requirements of DAO 208-15, AMD and each OU must work together to establish and execute annual spending plans. The plans should include all anticipated acquisition actions exceeding $25,000. Information regarding the procurement deadlines for each fiscal year will be
issued as an Administrative Bulletin at http://www-i.nist.gov/admin/mo/adman/contents.htm. Included with the Bulletin will be a spreadsheet format to be completed, and returned electronically to AMD.

Required information will include a description of the requirement, action type (e.g., open market competitive, GSA delivery order, etc.), estimated dollar value, including all options, and planned date to submit to AMD. For each action included on the plan, the OU must designate a COTR who has completed the required training. This individual will be responsible for writing the specification or statement of work, performing necessary market research, and working with AMD staff regarding source selection and technical aspects of the process. Upon receipt of OU plans, the AMD Division Chief will schedule meetings with OU designated representatives to discuss the plans. The initial plan for each fiscal year is due October 31. Quarterly updates to the plans will be due on January 31, March 31, and June 30, thereafter.

2.03.06
REQUESTING ACQUISITION SERVICES
a. For all new acquisitions the organizational units are responsible for submitting the following information to AMD: See also http://www-i.nist.gov/admin/amd/acquisition/list_req_docs.shtml.

(1) A completed standard requisition form submitted to AMD electronically via CSTARS, with required approval/clearances.

(2) A Statement of Work or Specifications (See Appendix G of this Subchapter). A Statement of Work Sample Format and General Guidelines for Preparation of Documents are available at http://www-i.nist.gov/admin/amd/index_acq.html.

(3) Market research documentation including a list of potential vendors that can satisfy the minimum requirements at http://www-i.nist.gov/admin/amd/acquisition/market_research_report.pdf.

(4) Evaluation criteria (if award is to be based on other than low price).

(5) Form CD-492, “Justification for Other than Full and Open Competition”, if requesting award to single source, without competition, or competition is otherwise limited, such as a requirement for a specific brand name product. Detailed information regarding preparation of a complete CD-492 is available at: http://www-i.nist.gov/admin/amd/acquisition/sole_source_just.html.

Please note that use of the CD-492 should be very rare, as competition is the Government’s preferred and statutorily required method of acquiring goods and services.

(6) List of deliverables (if applicable).

(7) Form NIST-1082, “Certification of Proposed Acquisition for Services”, if applicable. See Appendix F of this subchapter for details.

(8) Section 508 market research documentation if the requirement is for Electronic and Information Technology (EIT). For additional information, see http://www-i.nist.gov/cio/NIST_CIO_Section_508_Accessibility_Website.htm.

b. Standard requisition form must be submitted electronically via CSTARS to AMD along with accompanying documentation, and required Local Clearances. See http://www-i.nist.gov/admin/amd/clearances/required_clearances.shtml.

c. For modifications to existing awards, submit a standard requisition form via CSTARS indicating the estimated amount of the modification and the reason for the modification. All appropriate approvals must appear on the route list or be separately attached.

d. If there are not sufficient funds on the original requisition to make an award, or finalize a modification, additional funds must be submitted via a new CSTARS requisition. AMD staff cannot increase the funding amount that has been committed on a requisition. The supplemental requisition will be consolidated with the original requisition at time of award. Similarly, after award, if unexpected funds need to be de-obligated, the requisitioner or Administrative Officer must submit a requisition via CSTARS requesting de-obligation. See the CSTARS User’s Manual for instructions on submitting supplemental or de-obligating requisitions. (On-line version of the Manual can be found at http://www-i.nist.gov/admin/cstars/index.shtml)

2.03.07
URGENT PROCUREMENT PROCESS
a. This was formerly known as Fast-Track Procurement Process. It is a process for bonafide urgent purchases that require priority handling. The following documentation is required to process an urgent request:

(1) See 2.03.06;

(2) Within CSTARS, complete the procurement note field to state that the procurement is urgent; and

(3) Follow-up with a call to the appropriate AMD Team Leader to ensure the request is received and expedited.

2.03.08
ACTIONS REQUIRING SPECIAL CLEARANCES
AMD has assembled a listing of required clearances for various types of procurements to assist you in preparing the necessary documentation for your requirement. The clearances are required prior to submitting your requisition to AMD or placing a BankCard or BPA order. See http://www-i.nist.gov/admin/amd/clearances/required_clearances.shtml.

2.03.09
PERSONAL VS. NON-PERSONAL SERVICES
Service contracts are classified as either personal or non-personal in nature. The use of personal service contracts in the Federal Government requires specific statutory authority and otherwise is essentially limited to obtaining the services of experts or consultants by excepted appointments. NIST does not have this statutory authority, therefore NIST contractual service requirements fall exclusively into the realm of non-personal service contracts in which the Government may not exercise direct supervisory control of the contractor(s) or create the appearance of an employer-employee relationship. See Appendix F of this subchapter for completion of NIST-1082, Certification of Proposed Acquisition for Services.

2.03.10
SMALL BUSINESS PROGRAMS
Federal law mandates that simplified acquisitions up to $100,000 (except for micro purchase of $2,500 or less), be reserved/set-aside for small businesses to ensure compliance with statutory socio-economic programs. Federal and Departmental goals have been established for the following business types:

(1) Small business;

(2) Veteran-owned small business;

(3) Service-disabled veteran-owned small business;

(4) HUBZone small business;

(5) Small disadvantaged business;

(6) 8(a); and

(7) Small women-owned business.

Accordingly, all purchases from large businesses less than $100,000 must be justified on a CD-570 form (Small Business Set-Aside Review Form). The NIST Small and Disadvantaged Business Utilization Specialist (SADBUS) is responsible for promoting the use of the small business programs. The goals of the NIST SADBUS are to institutionalize the use of small businesses and to facilitate the identification of various small business sources capable of fulfilling program needs. The NIST SADBUS meets on a regular basis with representatives from the small business community to aid, assist, and counsel them on the “who and how’ to market themselves at NIST. He/she works closely with AMD staff to ensure that all procurements between $2,501 and $100,000 are automatically set-aside for small business and if not, documents the decision process. He/she consults on a regular basis with the DoC Director of Small and Disadvantaged Business Utilization to ensure that NIST is meeting all of its socio-economic goals established by DoC annually. He/she reviews the annual procurement plans and prepares a forecast of expected contract opportunities that the small business community is capable of performing either as a prime or subcontractor. The NIST SADBUS also reviews all CD-570’s for any proposed unrestricted procurement above $100,000. These requirements are forwarded to the DoC Director of Small and Disadvantaged Business Utilization and the SBA Representative before solicitation so that they can review the proposed procurement strategy. Detailed information is available at http://www.doc.gov/osdbu.

2.03.11
COMMERCE STANDARD ACQUISITION AND REPORTING SYSTEM (CSTARS)
CSTARS is a commercial software product used by DoC’s acquisition community. New and existing users should contact the IT Assistance Center (iTAC) (x5375 or at itac@nist.gov) for set-up information, training schedules, and/or general help with the application. There is also a CSTARS web site at http://www-i.nist.gov/admin/cstars/index.shtml for additional user documentation and information.

2.03.12
INTERAGENCY AGREEMENTS
An Interagency Agreement (IA) is used when an exchange of funds, resources, supplies, or services is made with another Federal agency, or when the principal purpose of the relationship is not financial assistance or procurement. Guidance concerning regulations and policy governing Interagency Agreements, including links to sample documents and a chart describing the review and approval process for various types of Interagency Agreements, can be found at http://www-i.nist.gov/admin/amd/acquisition/interagency_agreement.html and at http://oamweb.osec.doc.gov/CAPPS_InteragencyAgreements.html.

2.03.13
UNAUTHORIZED PROCUREMENT ACTIONS AND RESULTANT RATIFICATIONS
An Unauthorized Procurement Action (UPA) is a representation of commitment concerning a procurement made for the agency by an unauthorized person. All purchases must be conducted by Contracting Officers, or other NIST employees who have been given a delegation of procurement authority (DPA). The Government is not bound by orders placed by an individual who does not have acquisition authority or who exceeds their authority. (See Appendix C of this subchapter for details.)

2.03.14
SUBMISSION DEADLINES
Annually, AMD provides acquisition submission guidelines in Administrative Bulletins at http://www-i.nist.gov/admin/mo/adman/contents.htm. The submission deadlines are the period of time encompassing the interval between the initiation of a requisition and the placing of an order by AMD. The deadlines represent the “last possible” date for requisition submission to AMD. Submit the requisitions as early as possible for processing, particularly complex and/or large dollar requirements. AMD would like to promote acquisition planning at the earliest practicable time to apportion acquisition actions evenly over the entire fiscal year and avoid the excessive obligation of funds in the last quarter of the fiscal year. See paragraph 2.03.05 and http://oamweb.osec.doc.gov/CAPPS_dao.html (DAO 208-15).

2.03.15
EQUIPMENT LOANS
A loan or gift of equipment or the use thereof, must be appropriately approved and documented (see Section 7.01.17, “Transfer of Personal Property into NIST”). Prior to acceptance of any equipment loan or gift, an equipment loan agreement stipulating the responsibilities of all parties and time period for the loan, must be signed by both parties. NIST Counsel must approve this agreement before it is signed by the NIST representative. Execution of the equipment loan agreement and personal property records (CD-210 and/or CD-342) must occur prior to acceptance of the loan/gift.

2.03.16
CONFLICTS OF INTEREST, ETHICS, AND IMPROPER BUSINESS PRACTICES
a. All employees, whether or not directly involved in an acquisition, are prohibited from:

(1) Knowingly obtaining contractor offer information or source selection information before the award of a Federal agency contract to which the information relates;

(2) Disclosing contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates;

(3) Discussing future non-Federal employment with a person who is a bidder or offeror in a Federal agency procurement in which the official (employee) is participating personally and substantially unless the official is disqualified from further personal and substantial participation in that procurement (applies only to procurement over the simplified acquisition threshold); and

(4) Accepting compensation from a contractor as an employee, officer, director, or consultant of the contractor within a one-year period after the former official served as:

(i) A procuring Contracting Officer, source selection authority, a member of a source selection evaluation board, or the chief of a financial or technical evaluation team in which that contractor was selected for award of a contract in excess of $10,000,000; and

(ii) A program manager, deputy program manager; or administrative contracting officer for a contract in excess of $10,000,000.

b. As a rule, no Government employee (to include but not limited to Program Officials, COTRs, Procurement Personnel, anyone associated with the procurement) may solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who (a) has or is seeking to obtain Government business with the employee’s agency, (b) conducts activities that are regulated by the employee’s agency, or (c) has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties. Certain limited exceptions are authorized in agency regulations.

c. Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. The Office of Government Ethics (OGE) has developed and issued the “Standards of Ethical Conduct for Employees of the Executive Branch” which is available at
http://www.usoge.gov/pages/forms_pubs_otherdocs/fpo_files/reference/rfsoc_02.pdf or 202-482-9300.

2.03.17
SOFTWARE LICENSE AGREEMENTS, HOTEL/CONVENTION RESERVATION AGREEMENTS, AND OTHER ADDENDA
There may be orders placed by AMD or by a BankCard holder that result in the contractor requiring signature on a software license agreement, hotel/convention reservation agreement, or other document that may become an addendum to the contract or purchase order. The software license may contain questionable terms such as:

(1) Conflict with the contract or BankCard order;

(2) Terms inconsistent with Federal laws and regulations;

(3) Governing law and jurisdiction for suits involving the agreement;

(4) Attorney fee provisions;

(5) Late payment provisions;

(6) Indemnification; and

(7) Automatic renewal.

Similarly, hotel/convention reservation agreements may include terms and conditions unacceptable to the Government, such as cancellation penalties, minimum room guarantees, termination provisions, etc.

If the OU receives any type of agreement that the vendor requests be signed before they will enter into a legally binding contract arrangement with the Government, the document should be forwarded to an AMD Contracting Officer (CO). Only a CO is authorized to sign these supplemental agreements. The CO will coordinate all supplemental agreements with legal counsel before their signature, and will incorporate them into the final award, if appropriate.

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5/2008