Interim Policy Letter (IPL) 96-009 - Effective Date

EFFECTIVE DATE/IMPLEMENTATION: The AFMCFARS changes included in this letter are to be incorporated in solicitations issued on or after the date of this IPL. Incorporate these changes in solicitations issued prior to the date of this IPL if such incorporation will not delay award. This Interim Policy Letter will be superseded by AFMCAC

96-3, anticipated publication date Apr 96. (This is a one month slippage referenced in IPLs 96-007 and 96-008.) Assure distribution to all Contracting Officers.

1. This IPL implements the following approved cases:

a. Additions and deletions to Preparation and Transmittal of Synopsis, AFMCFARS 5305.207, Release Procedures, AFMCFARS 5305.404-1, Procedures, AFMCFARS 5315.1101(e) and 5352.215.9014 (Lightning Bolt Case 96-87). This incorporates several changes in 5305.207(b)(4), Preparation of Synopis, Standard Format, regarding procedures to use the Government Printing Office billing codes. In addition, it makes minor changes to the AFMC Ombudsman Program to remove the current restriction on using the CBD notice and Section L provision for competitive acquisitions. Language now allows use for any acquisition. Lastly, the Ombudsman notice was amended to add a statement at the end to refer potential issues with the solicitation to the contracting officer before utilizing the Ombudsman. (Attachment 1)

b. Additions to Special Standards, AFMCFARS 5309.104-2(a) and 5352.209-9003 (Lightning Bolt Case 96-79). This supplies a provision for special standards of responsibility or definitive responsibility criteria which are permitted by FAR 9.104-2. A provision is needed because verifying bidder/offeror compliance with special standards requires extra effort by the contracting officer and there is some risk of sustained protests from lack of familiarity with special standards. (Attachment 2)

c. Additions to Contract Clauses, AFMCFARS 5309.308 and 5352.209-9004 (Lightning Bolt Case 96-45). This establishes a provision and clause which may be inserted in solicitations and contracts when first article testing is required. Use of the clause provides advance notification to offerors of their potential liabilities for Government costs in the event first article re-testing is required, as well as the potential administrative costs for any associated contract modification. The contractor is advised that these deductions will be in addition to any equitable adjustment to the contract price for extended delivery schedules. (Attachment 3)

d. Addition to Solicitation and Receipt of Proposals and Quotations, General, AFMCFARS 5315.402(g) (Non-Lightning Bolt Case 96-147). The Under Secretary of Defense (A&T) has directed the use of letter solicitations, in sole source procurements to the maximum extent possible. FAR 15.402(g) authorizes this method of acquisitions and lists minimum ingredients for effective solicitations. We have approved this change because we believe using letter RFPs for sole source solicitations should be the preferred practice. (Attachment 4)

e. Additions to Proposal Samples, Solicitation Provisions, AFMCFARS 5315.407 and 5352.9022 (Lightning Bolt Case 96-90). FAR 14.202-4 provides guidance on the submission of bid samples which is appropriate for those items whose facility of use and other characteristics cannot be adequately described in specifications or purchase descriptions. However, there is no provision for the use of bid (proposal) samples in request for proposals. With the transition to acquiring more commercial items, commercial item descriptions calling for proposal samples are becoming more prevalent. The proposed provision will assist contracting officers in obtaining proposal samples should the need arise. (Attachment 5)

f. Additions to Contract Clause for Work on a Government Installation, AFMCFARS 5328.310 and 5352.228-9004 (Lightning Bolt Case 96-75). This clause provides guidance for contracts which include either FAR 52.228-5, Insurance-Work on a Government Installation, or FAR 52.228-7, Insurance-Liability to Third Persons, or both. (Attachment 6)

g. Additions to Research and Development Contracting, Policy, AFMCFARS 5335.003(90)(e) and 5352.235-9003 (Lightning Bolt Case 96-118). The annual solicitation for the DoD Small Business Innovation Research (SBIR) program lists various SBIR contract requirements. The clause at 5352.235-9003 is designed to allow contracting officers to capture portions of the DoD SBIR solicitation that are relevant to their SBIR contracts. (Attachment 7)

h. Additions to Disclosure of the Magnitude of Construction Projects, AFMCFARS 5336.204 and 5352.236-9009 (Lightning Bolt Case 96-76). FAR 36.204 requires that construction solicitations include an appropriate price range to provide information on project scope to potential bidders/offerors, but does not include a solicitation provision. (Attachment 8)

i. Additions to Packing, Marking, and Consignment Instructions, AFMCFARS 5347.305-10(a)(96) and 5352.247-9005 (Lightning Bolt Case 96-97). This language adds a requirement that packaging containers be capable of being opened and resealed, and is intended for use in contracts requiring acceptance and 100% inspection is at destination. (Attachment 9)

j. Additions to Best and Final Offers, AFMCFARS Appendices AA and BB (Lightning Bolt Case 96-89). The addition of this language provides guidance on actions the contracting officer should take in formal source selections to obtain the maximum possible agreement with offerors on the model contract prior to request for BAFOs. It also cautions offerors that significant revisions to the proposal with BAFO submissions may adversely impact the possessive offerors ability to be awarded a contract. (Attachment 10)

2. If you have any questions, please call me or have your staff call either of my action officers, Ms. Chris Shockey or Mr. Wm. Michael Thompson, HQ AFMC/PKP, DSN 787-6757.


/signed/

MILTON C. ROSS, SES

Acting Deputy Director of Contracting

Attachments:

1. AFMCFAR Case 96-87

2. AFMCFAR Case 96-79

3. AFMCFAR Case 96-45

4. AFMCFAR Case 96-147

5. AFMCFAR Case 96-90

6. AFMCFAR Case 96-75

7. AFMCFAR Case 96-118

8. AFMCFAR Case 96-76

9. AFMCFAR Case 96-97

10. AFMCFAR Case 96-89

PART 5305--PUBLICIZING CONTRACT ACTIONS

SUBPART 5305.2--SYNOPSIS OF PROPOSED CONTRACT ACTIONS

5305.201 General.

(b) Deleted.

(c) Use of sources sought synopsis is encouraged as early as possible in the acquisition process. Potentially competitive requirements susceptible to participation by small business, small disadvantaged business (SDB), or historically black colleges and universities (HBCUs)/minority institutions (MIs) are particularly appropriate for sources sought synopsis. All potential Section 8(a) requirements will be coordinated with the Deputy for Small Business to determine the need for synopsis and for any further coordinations required with the Small Business Administration (SBA). As authorized by FAR 5.502, supplemental advertisements in appropriate publications are encouraged for potential Section 8(a) requirements, SDB set­asides and HBCU/MIs set­asides.

(91) If a proposed acquisition includes the possibility that an option will be part of the award, a notification will be included in the synopsis. Whenever possible, the estimated option portion will be stated in terms of a period of time, number of units, a percentage of the basic requirement, or other appropriate unit of measure. The estimated value of the option(s) will be considered when determining whether the acquisition meets the $25,000 threshold for synopsizing. When an option will be exercised without a formal solicitation, synopsizing the action as a proposed acquisition is not required, provided that the option quantity or period was included in the synopsis of proposed acquisition of the basic contract.

(92) Advance Synopsis Procedures.

(1) The office responsible for PR/MIPR control at each Logistics Center shall forward an initial copy of all Purchase Requests (PRs) in excess of $25,000 to the Senior Center Contracting Official for coordination.

5305.207 Preparation and Transmittal of Synopsis.

(a) Deleted.

(b)(4) Standard Format. To ensure proper billing of CBD synopsis by the Government Printing Office (GPO) to the proper AFMC O&M account, include the appropriate billing address code (BAC) in item 4 of the synopsis. The following codes have been established for AFMC/PK's direct reporting units:

AEDC GPO391020

AFDTC GPO391036

AFFTC GPO391165

AFOSR GPO391021

AGMC GPO391052

ASC GPO391030

ESC GPO391001

HSC GPO391102

OC-ALC GPO391088

OO-ALC GPO391127

SA-ALC GPO391110

SM-ALC GPO391164

SMC GPO391132

WR-ALC GPO391023

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The GPO maintains a list of office symbols authorized to use each of the assigned AFMC BACs. Future changes of office symbols must be coordinated by the unit with the GPO at 1-800-567-8GPO.

(f) Information not covered by numbered notes.

(5) Ombudsman CBD Notice. In accordance with AFMCFAR 5315.1101, ensure the following notice, substantially as written, is included in CBD item 17:

"An Ombudsman has been appointed to hear concerns from offerors or potential offerors during the proposal development phase of this acquisition. The purpose of the Ombudsman is not to diminish the authority of the program director or contracting officer, but to communicate contractor concerns, issues, disagreements, and recommendations to the appropriate government personnel. When requested, the Ombudsman will maintain strict confidentiality as to the source of the concern. The Ombudsman does not participate in the evaluation of proposals or in the source selection process. Interested parties are invited to call [Ombudsman's name] at [Ombudsman's Telephone Number]. The Ombudsman should only be contacted with issues or problems that have been previously brought to the attention of the contracting officer and could not be satisfactorily resolved at that level."

PART 5305--PUBLICIZING CONTRACT ACTIONS

SUBPART 5305.4--RELEASE OF INFORMATION

5305.404 Release of long range acquisition estimates.

Use of Long Range Acquisition Estimates (LRAEs) is optional. If used, each activity will establish their local procedures. The Small Business Office will work with activity commanders to assure that requirement activities provide LRAEs for selected contracts expected to be awarded in each fiscal year. When available, include planned requirements beyond the next fiscal year. LRAEs will include equipment, supplies, and services that can reasonably be expected to be purchased as a lot from one vendor. The items should be competitive when contract action is initiated.

5305.404­1 Release procedures.

(1) If used, the Deputy for Small Business will take the necessary planning actions to make sure that requirements activities provide their LRAEs to the Deputy for Small Business by 1 September of each fiscal year.

(2) The Deputy for Small Business will publish notification of the updated estimate in the Commerce Business Daily in accordance with FAR 5.404­2.

PART 15--CONTRACTING BY NEGOTIATIONS SUBPART 5315.11--OMBUDSMAN PROGRAM5315.1100 Purpose and applicability. (a) The Ombudsman, as a representative of the Designated Acquisition Commander (DAC), Center Commander, Laboratory Commander, or Program Executive Officer (PEO), facilitates communication between the program offices and interested parties (offerors, potential offerors, and industry representatives) in the resolution of significant acquisition matters arising during the proposal development phase of an acquisition. (b) The primary function of the Ombudsman is to hear concerns about specific issues in the pre­proposal phase of competitive acquisitions, including source selections, and to communicate these concerns to senior management personnel for the particular acquisition. The Ombudsman will act in a manner that does not compromise the interested party. If requested, anonymity will be maintained. (c) The scope of the Ombudsman's functions may cover all acquisitions up to contract award. It is important to remember, however, that the Ombudsman does not usurp normal procurement authority (i.e., program director, contracting officer, and source selection authority). 5315.1101 Procedures. (a) The Center Commander or Laboratory Commander (except for Wright Laboratory), shall appoint an experienced senior official as the Ombudsman. The Ombudsman will have sufficient authority to call upon other resources of the activity to accomplish the mission. (b) The Ombudsman shall (i) work with acquisition personnel to resolve issues raised by interested parties; (ii) report only to the DAC, Center Commander, Laboratory Commander, or PEO; and (iii) inform the commander or PEO, as required, of issues raised and actions taken. (c) Consistent with security requirements, the Ombudsman shall have access to the appropriate offices and be allowed to collect all relevant facts to resolve issues raised by interested parties. Ombudsmen are granted access on a class basis to source selection and proprietary information under 5303.104­5(c). Source selection information must be obtained through the source selection authority. (d) The Ombudsman shall maintain a log to track individual cases from receipt to disposition. (Do not include names in the log if anonymity is requested.) (e) Identify the Ombudsman in the initial Commerce Business Daily (CBD) announcement of the acquisition (e.g., Requests for Information, Request for Proposal (RFP), Sources Sought Synopses) by including a statement similar to the one prescribed at AFMCFARS 5305.207 (f)(5). Also, either include the same statement substantially as written in RFP executive summary or cover letters or include the provision at 5352.215-9014 in Section L of the solicitation. (f) Publicity is the key to an effective Ombudsman program. The Ombudsman should establish a dedicated phone number for listing in the CBD announcement. In addition, the Ombudsman should publicize the program through speeches, articles, meetings, etc., and interact with industry on a regular basis.


5352.215-9014 Acquisition Ombudsman.

As prescribed at 5315.1101(e), insert a provision, substantially as follows, in Section L of solicitations when the Ombudsman statement is not included elsewhere in the Request for Proposal.

Acquisition Ombudsman (JUL 1992)

An Ombudsman has been appointed to hear concerns from offerors and potential offerors during the proposal development phase of this acquisition. The purpose of the Ombudsman is not to diminish the authority of the program director or contracting officer, but to communicate contractor concerns, issues, disagreements, and recommendations to the appropriate government personnel. When requested, the Ombudsman will maintain strict confidentiality as to the source of the concern. The Ombudsman does not participate in the evaluation of proposals or in the source selection process. Interested parties are invited to call (Ombudsman's Name) at Ombudsman's Telephone Number). The Ombudsman should only be contacted with issues or problems that have been previously brought to the attention of the contracting officer and could not be satisfactorily resolved at that level.

(End of Provision)

5309.1 Responsible prospective contractors

5309.104-2 Special standards

(a) The contracting officer may insert a provision substantially the same as 5352.209-9003, Definitive Responsibility Criteria, in Section M of solicitations when special standards of responsibility are required. When using definitive responsibility criteria the contracting officer shall ensure that use of the criteria is properly supported in the record: The customer or technical function provides a written explanation of why the special standards are needed, the successful offeror's data submission (or other data) provides specific and objective evidence that the offeror meets the standards, and the responsibility determination or other documentation in the award file shows that the special standards were met.

5352.209-9003 Definitive Responsibility Criteria

As prescribed at 5309.104-2(a), insert a provision in Section M of solicitations, substantially as follows. Tailor the provision to include an appropriate method of verifying that bidders/offerors meet the special standards; e. g., if verification during a pre-award survey is contemplated, change the first sentence of paragraph (b) to read "The bidder/offeror must provide documentation or other evidence of meeting the special standards to the pre-award survey team.

Definitive Responsibility Criteria (FEB 1996)

(a) Special standards of responsibility apply to this acquisition in accordance with FAR 9.104-2(a). The following special standards apply:

(list)

(b) The bidder/offeror shall submit documentation with the bid/proposal that demonstrates the bidder/offeror meets the above special standards. The contracting officer may request additional documentation after bid opening or receipt of proposals. This data will be used to determine whether or not a bidder/offeror meets the special standards of responsibility. Bidders/

Offerors failing to meet the special standards referenced in paragraph (a), above, shall be determined to be non-responsible and, therefore, ineligible to receive contract award.

(End of Provision)











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5309.308 Contract Clauses.

The contracting officer may insert the clause at 5352.209-9004, in Section I of solicitations and contracts whenever the first article approval clauses at FAR 52.209-3 and/or 52.209-4 are used. The dollar value to be inserted in the designated blank should include the government estimated value of testing, inspection and evaluation (contained in block 9.g. of AFMC Form 260) and the estimated administrative cost of processing the associated contract modification. FAR 15.605(e) identifies $500 as the administrative cost to the government for issuing and administering contracts when making multiple awards. This dollar value is considered representative of the administrative cost associated with processing a contract modification and may be used by the contracting officer or the value may be adjusted as necessary.


5352.209-9004 Resubmission of First Articles.

As prescribed in 5309.308, insert the following clause in Section I of the solicitation and contract:

Resubmission of First Articles (FEB 1996)

If first article re-testing/resubmission is authorized under FAR 52.209-3 (c) or 52.209-4 (c), in addition to any equitable adjustment to the contract price as consideration for delivery schedule extension(s), additional costs to the Government related to the re-testing/resubmission, including administra-tive costs for the contract modification, in the amount of $_________ (contracting officer shall insert estimate from AFMC form 260 for retesting value and up to $500 for administrative costs) shall be borne by the contractor and deducted from the contract price. When the government determines that a complete re-test is not required, the contracting officer may adjust the total re-testing cost accordingly.

(End of Clause)


















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5314.402 General.

(g) In accordance with FAR 15.402(g) use letter Requests for Proposals (RFPs) as the preferred practice for sole source acquisition.



















































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5315.4 Solicitation and receipt of proposals and quotations.

5315.407 Solicitation provisions.

(91)(a) The contracting officer shall insert the provision substantially as written at 5352.215-9022, Proposal Samples, in Section L of requests for proposals, if proposal samples, as discussed in FAR 14.202-4, are required.

(b) If it appears that the conditions in FAR 14.202-4(f)(1) and 14.201-6(o)(2)(i) will apply, the contracting officer shall use the provision with its Alternate I.

(c) If it appears that the conditions in FAR 14.202-4(f)(1) and 14.201-6(o)(2)(ii) will apply, the contracting officer shall use the provision with its Alternate II.


5352.215-9022 Proposal Samples.

As prescribed at 5315.407(91)(a), insert the following provision substantially as written in Section L of requests for proposals, if proposal samples are required:

Proposal Samples (FEB 1996)

(a) "Proposal samples" are item sample submissions required of offerors to show those characteristics of the offered products that cannot adequately be described by specifications or purchase descriptions (e.g., balance, facility of use, or pattern).

(b) Proposal samples, required elsewhere in this solicitation, must be furnished as part of the offer and must be received by the time specified for receipt of proposals. Failure to furnish samples on time may require rejection of the offer in accordance with the late submissions, modifications, and withdrawals of proposals provision of this solicitation.

(c) Proposal samples will be tested or evaluated to determine compliance with all the characteristics listed for examination in this solicitation. Failure of these samples to conform to the required characteristics may render an offer unacceptable. Products delivered under any resultant contract must conform to (1) the approved sample for the characteristics listed for test or evaluation and (2) the specifications for all other characteristics.

(d) Unless otherwise specified in the solicitation, proposal samples shall be submitted at no expense to the government and returned at the offeror's request and expense, unless they are destroyed during preaward testing.

(End of Provision)









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Alternate I (FEB 1996). As prescribed at 5315.407(91)(b), insert the following paragraph:

(e) At the discretion of the contracting officer, the requirement for furnishing proposal samples may be waived for an offeror if (1) the offeror states that the offered product is the same as a product offered by the offeror to the __ (enter designated contracting office/activity) and (2) the contracting officer determines that the previously offered product was accepted or tested and found to comply with specifications and other requirements for technical acceptability conforming in every material respect with those in this solicitation.

Alternate II (FEB 1996). As prescribed at 5315.407(91)(c), insert the following paragraph:

(e) At the discretion of the contracting officer, the requirement for furnishing proposal samples may be waived for an offeror if (1) the offer states that the offered product is the same as a product offered by the offeror to the __ (enter designated contracting office/activity) on a previous acquisition and (2) the contracting officer determines that the previously offered product was accepted or tested and found to comply with specifications and other requirements. For technical acceptability conforming in every material respect with those of this solicitation and (3) the product offered under this solicitation will be produced under a resulting contract at the same plant in which the previously acquired or tested product was produced.

5328.310 Contract clause for work on a Government installation.

The PCO shall use the clause at 5352.228-9004, Insurance Clause Implementation, in Section I, in all solicitations and contracts which include either FAR 52.228-5, Insurance - Work on a Government Installation, or FAR 52.228-7, Insurance - Liability to Third Persons, or both.

5352.228-9004 Insurance Clause Implementation.

As prescribed at AFMCFARS 5328.310, insert the following clause in Section I of all solicitations and contracts which include either FAR 52.228-5, Insurance - Work on a Government Installation, or FAR 52.228-7, Insurance - Liability to Third Persons, or both.

Insurance Clause Implementation (FEB 1996)

The contractor shall obtain and maintain the minimum kinds and amounts of insurance during performance of this contract as specified by FAR 28.307-2 and contemplated by FAR 52.228-5 and/or 52.228-7.

(End of Clause)





























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5335.003 Policy.

(90)(e) Small Business Innovation Research (SBIR) Phase I and Phase II Contract Requirements. The contracting officer may insert the clause at AFMCFARS 5352.235-9003, Small Business Innovation Research (SBIR) Phase I and Phase II Contract Requirements, in Section I of contracts awarded for SBIR Phase I or Phase II, based on the SBIR solicitation published by the Department of Defense (DoD). The contracting officer may modify the clause as required.


5352.235-9003 Small Business Innovation Research (SBIR) Phase I and Phase II Contract Requirements.

As prescribed at AFMCFARS 5335.003(90)(e), insert the following in Section I of SBIR Phase I and Phase II contracts awarded as a result of the SBIR solicitation published by the Department of Defense.

Small Business Innovation Research (SBIR) Phase I and

Phase II Contract Requirements (FEB 1996)

The following requirements of the FY____ Department of Defense (DoD) solicitation for the Small Business Innovation Research (SBIR) program are incorporated herein by reference: (list applicable requirements by paragraph number and title.)

(End of Clause)

























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5336.204 Disclosure of the magnitude of construction projects.

Insert the provision at 5352.236-9009, substantially as written, in Section L of all construction solicitations.


5352.236-9009 Magnitude of Construction Projects.

As prescribed at 5336.204, insert the following provision in Section L of construction solicitations with the appropriate price range set forth in

FAR 36.204.

Magnitude of Construction Projects (FEB 1996)

The estimated price range for this project is between __________ and

__________.

(End of Provision)
































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5347.305-10 Packing, marking, and consignment instructions.

(a)(96) The Contracting Officer shall insert the clause at 5352.247-9005, Packaging for Inspection and Acceptance at Destination, in Section D of all solicitations and contracts for material requiring 100 per cent inspection of material at destination.

5352.247-9005 Packaging for Inspection and Acceptance at Destination.

As prescribed at 5347.305-10(a)(96), insert the following clause in Section D of the solicitation and contract:

PACKAGING FOR INSPECTION AND

ACCEPTANCE AT DESTINATION (JAN 1996)

Items requiring inspection and acceptance of material at destination must be preserved, packaged, and packed so that all containers are capable of being opened and resealed. The contractor shall be responsible for ensuring that the material being supplied under this contract is provided adequate physical protection to prevent corrosion or damage during shipment and storage, unless the damage or deterioration is due to fault of the government.

(End of Clause)



























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AFMC FARS Appendix AA, Paragraph AA-312d. Best and Final Offers

(1) In order to improve the efficiency of transitioning from written/oral discussions to best and final offers (BAFOs), revisions to the model contract are to be agreed upon to the maximum extent possible by the offerors and the Government before the Government requests the BAFO. To accomplish this, include appropriate instructions in Section L of all solicitations where AFFARS Appendix AA and Appendix BB source selection procedures are followed. Prior to the close of the written/oral discussion phase, the contract team must review each offeror's response and resolve as much as practicable any disagreements, deficiencies, or omissions regarding the model contract and other documents. After resolution, obtain a business clearance using the procedures defined in AFFARS 5301.90, as supplemented, and request a BAFO based upon the refined contractual agreement. The BAFO request should advise offerors that significant changes to proposals in BAFO responses may adversely impact their eligibility for award.

(2) All formal source selections require approval to request second or subsequent BAFOs. For Other Contracting, this authority is HQ AFMC/CC. For Major, Selected, and Other Programs, the authority is SAF/AQ.

AFMC FARS Appendix BB, Paragraph 32.d., Best and Final Offers

(1) In order to improve the efficiency of transitioning from written/oral discussions to best and final offers (BAFOs), revisions to the model contract are to be agreed upon to the maximum extent possible by the offerors and the Government before the Government requests the BAFO. To accomplish this, include appropriate instructions in Section L of all solicitations where AFFARS Appendix AA and Appendix BB source selection procedures are followed. Prior to the close of the written/oral discussion phase, the contract team must review each offeror's response and resolve as much as practicable any disagreements, deficiencies, or omissions regarding the model contract and other documents. After resolution, obtain a business clearance using the procedures defined in AFFARS 5301.90, as supplemented, and request a BAFO based upon the refined contractual agreement. The BAFO request should advise offerors that significant changes to proposals in BAFO responses may adversely impact their eligibility for award.

(2) All formal source selections require approval to request second or subsequent BAFOs. For Other Contracting, this authority is HQ AFMC/CC. For Major, Selected, and Other Programs, the authority is SAF/AQ.











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