1.9000 Business and Contract Clearances.

AC 11-02

Subpart 1.9000

Revised 12 April 2011

(S-90) Definitions.

(1)  "Business Clearance" means for competitive acquisitions, approval by the Clearance Approval Authority to issue a solicitation.

(2)  "Contract Clearance" means:

(i)  For competitive acquisitions conducted without discussions, approval by the Clearance Approval Authority to award a contract or order.

(ii)  For competitive acquisitions with discussions -

(A)  Approval by the Clearance Approval Authority to authorize the contracting officer to request final proposal revisions; and,

(B)  Approval by the Clearance Approval Authority to award a contract or order.

(iii)  For non-competitive contract actions, approval by the Clearance Approval Authority to award a contract, order or contract modification.

(iv)  Approval by the Clearance Approval Authority to definitize an undefinitized contract action (UCA) or an undefinitized change order.

(3)  "Clearance Approval Authority (CAA)" means the individuals delegated the authority to approve business and contract clearances (reference 1.9000(S-92)(4)(i)(ii)).

(S-91) Exclusions.

(1)  Excluded actions from business clearances only are:

(i)  CAA business clearance approval is not required prior to issuing a solicitation for non-competitive contract actions.

(ii)  CAA business clearance approval is not required prior to beginning negotiations for non-competitive contract actions. However, prior to beginning negotiations, the contracting officer shall obtain the reviews and approvals of Pre-PNMs or Sole Source PNMs in accordance with DARS 15.406-3.

(A)  "Begin negotiations" means, for the purpose of non-competitive contract actions, starting discussions with an offeror for the purpose of reaching agreement on all aspects of the proposal. Initiation of audits and fact-finding necessary to evaluate the proposal and develop the Government's negotiation objective do not constitute negotiations.

(2)  Excluded actions from business and contract clearances are:

(i)  A competitive acquisition of $50 million or more, including options, processed in accordance with the source selection procedures of FAR Part 15. For this category of acquisitions, the Source Selection Authority (SSA) is the approval authority for the release of a solicitation, issuing a request for final proposal revisions and executing contract award. Although there is no CAA for this group of acquisitions, legal (GC) and policy compliance (PL22) reviews shall be obtained prior to issuing a solicitation and prior to requesting SSA approval to award, using the procedures at 1.9000(S-93).

(ii)  An action that creates a UCA, or an undefinitized change order;

(iii)  Orders that are issued in strict accordance with the previously approved pricing arrangements/pricing tables and other terms and conditions of the basic contract vehicle including GSA schedules, GWACs and MACs.  This exclusion includes orders where contractors are contacted solely to seek deeper discounts on known quantities. Orders that result from solicitation and negotiation of labor categories, hours, or scope/requirements with contractors are not excluded from clearance requirements;

(iv)  An order issued against an existing contract, BOA or BPA if:

(A)  the prices have been established in the basic indefinite delivery contract, BOA or BPA;

(B)  all other terms and conditions have been established in the basic indefinite delivery contract, BOA or BPA;

(C)  the basic contract, BOA or BPA was reviewed and considered legally sufficient by the supporting legal office; and,

(D)  there are no negotiations (i.e., no proposal, formal or informal, is necessary for the order to be issued) involved in the award of the proposed order under the indefinite delivery contract, BOA or BPA.

(v)  Inquiries issued in accordance with the Inquiry/Quote/Order (IQO) Acquisition deskbook. However, Orders issued in accordance with the IQO process are not excluded from the contract clearance procedures;

(vi)  Contract actions that solely provide incremental funding, incentive fee funding, award fee funding or other administrative contract modifications.

(vii)  Priced options that were previously established in the basic contract/order and that are exercised in accordance with the established prices and terms and conditions of the contract/order.

(S-92) Policy, thresholds, and approvals.

(1)  The objectives of the business and contract clearance process are to ensure that:

(i)  Contract actions effectively implement approved acquisition strategies;

(ii)  Negotiations and contract actions result in fair and reasonable business arrangements;

(iii)  Negotiations and contract actions are consistent with laws, regulations, and policies; and,

(iv)  An independent review and assessment (i.e. by the CAA) for the proposed contract action is accomplished.

(2)  The CAA shall ensure that the clearance process meets the objectives in paragraph (1) above.

(3)  The Source Selection Authority (SAA) shall not be the CAA.

(4)  Contract actions meeting the contract value thresholds set below shall not be awarded without obtaining the required business and contract clearance approvals. CAA responsibilities may not be further delegated.

(i)  Competitive acquisitions processed in accordance FAR Part 12 and/or 15:

(ii)  Competitive acquisitions processed in accordance with FAR Subpart 8.4 and FAR Subpart 16.5 and contract clearance only for non-competitive contract actions:

* Note: Contract value is determined by applying the sum of the value of the basic portion of the instant acquisition, plus any options, and the value of any contingencies, such as ceiling, award fees/terms, and performance incentives.

(S-93) Business and Contract Clearance Procedures.

(1)  Legal (GC) and policy compliance (PL22) reviews shall be obtained prior to submitting a request for business/contract clearance to the CAA for approval.

(2)  The contracting officer must review the contract file/documentation prior to requesting a legal and policy compliance review.  The contract specialist or contracting officer may submit the request for legal and policy compliance review only after all contracting officer comments, if any, are resolved.

(3)  Legal and policy compliance reviews may be requested concurrently. A minimum of two business days for legal and policy compliance reviews should be factored into the procurement process (i.e., two business days for concurrent reviews or four business days for sequential reviews).

(4)  In circumstances where legal and policy compliance reviews and clearance approval must be delayed (not waived), the contracting officer shall obtain written approval from the HCO for contact actions valued less than $50M, or written approval from the HCA for contact actions valued at $50M or more, to proceed with the procurement, but shall obtain legal and policy compliance review and clearance approval after the fact but as soon as reasonably practicable. Written documentation shall justify the circumstances for such an action and shall be retained in the contract file.

(5)  Policy compliance (PL22) reviews ---

(i)  Requests for policy compliance review shall be sent via email to the "PL22 Policy Compliance Review Requests" group mailbox. The following standard subject line format shall be used: "[insert Office Code (i.e., PLX)], [insert "Business Clearance" or "Contract Clearance," as appropriate] Policy Compliance Review Request, [insert solicitation, contract/modification, or order/modification number]." Urgent requests for review must also include "Expedite" in the subject line and must be forwarded to the PL22 group mailbox by the HCO.

(ii)  Other pertinent information needed to assist the PL22 policy compliance reviewers should be included in the body of the e-mail. For example, provide the EDMS document identifier, indicate if a policy compliance review was accomplished at a previous stage of the procurement (and if so, the solicitation number), indicate if this is an "after-the-fact review," provide the estimated dollar value of the procurement, etc. Draft documents, limited to the solicitation, contract or order, the post-Price Negotiation Memorandum (PNM) or Procurement Summary, or any best-value trade-off evaluation summaries (e.g., Selection Recommendation Document (SRD)), may be submitted as attachments to the email if not available in EDMS.

(6)  Legal (GC) reviews ---

(i)  DITCO-Pacific (PL7), DITCO-Scott Telecommunications Contracting Division (PL82) and DITCO-Scott IT Contracting Division (PL83) shall obtain legal reviews from legal counsel located at DITCO-Scott. DITCO-National Capital Region (PL6), DITCO-Europe (PL5), and WHCA shall obtain legal reviews from legal counsel located at NCR.

(ii)  Requests for legal review from legal counsel located at DITCO-Scott shall be sent via email to the "DITCO Legal Office" group mailbox. Requests for legal reviews from legal counsel located at DITCO-NCR shall be sent via email to the "Acquisition Law Team" group mailbox. The following standard subject line format shall be used: "[insert Office Code (i.e., PLX)], [insert "Business Clearance" or "Contract Clearance," as appropriate] Legal Review Request, [insert solicitation, contract/modification, or order/modification number]." Provide the EDMS document identifier in the body of the email so that legal counsel can access contract file documentation, in addition to that described below, as they deem appropriate to complete their review.

Note - The minimum documentation required for legal review, as described in the following paragraphs (iii) through (viii), are summarized in Table 1-2 below.

(iii)  Requests for business clearance reviews to issue a solicitation for competitive acquisitions must include, at a minimum, a copy of the solicitation as an attachment to the email.

(iv)  Requests for contract clearance reviews to award a competitive acquisition conducted without discussions must include, at a minimum, a copy of the contract or order, the post-PNM or Procurement Summary, any best-value trade-off evaluation summaries (e.g., Selection Recommendation Document (SRD)), and a draft notification to unsuccessful offerors, as attachments to the email. Also, indicate in the body of the email that discussions were not conducted and that the solicitation clearly stated that the Government may award without discussions.

(v)  Requests for contract clearance reviews to request final proposal revisions for competitive acquisitions conducted with discussions must include a copy of the proposed letter to offerors requesting final proposal revisions.

(vi)  Requests for contract clearance reviews to award a contract or order for competitive acquisitions conducted with discussions must include, at a minimum, a copy of the contract or order, the post-PNM, Procurement Summary, or Source Selection Decision Document (SSDD), any best-value trade-off evaluation summaries (e.g., Selection Recommendation Document (SRD)) if not a source selection conducted pursuant to FAR Part 15), and a draft notification to unsuccessful offerors, as attachments to the email.

(vii)  Requests for contract clearance reviews to award a contract action for non-competitive contract actions must include, at a minimum, a copy of the contract, order or modification and the post-PNM as an attachment to the email.

Table 1-2

(7)  CAA review and approval ---

(i)  For non-competitive contract actions and competitive acquisitions with a value of $6.5 million up to $50 million, the contracting officer shall provide a "Request for Business/Contract Clearance", a copy of the policy compliance and legal reviews and disposition of comments, and the documents identified in Table 1-2 above to the CAA via email.

(ii)  For all competitive acquisitions (FAR Subpart 8.4 or Subpart 16.5 acquisitions) or non-competitive contract actions valued at $50 million or more, the contracting officer shall forward a clearance package via email through their chain-of-command, and the HCO will forward the package via email to the CAA. The clearance package shall consist of the following:

-  Request for Business/Contract Clearance;

-  Peer review report;

-  Policy compliance and legal reviews and contracting officer disposition of comments;

-  Documents identified in Table 1-2 above; and,

-  Clearance Briefing Presentation

-  Non-competitive contract clearance briefing template

-  Competitive business clearance briefing template

-  Competitive contract clearance briefing template

(iii)  Clearance Approval. If the CAA is satisfied that the contract action/file meets the clearance objectives of 1.9000(S-92), then the CAA will sign and date Part B of the "Request for Business/Contract Clearance" form. Any conditions that the CAA places on clearance approval shall be specified on the "Request for Business/Contract Clearance." The "Request for Business/Contract Clearance" shall be retained in the official contract file.

(8)  Clearance Request -- Resubmission for Clearance Approval.

(i)  Changes in acquisition strategy and/or terms and conditions may require the contract action to be resubmitted for clearance approval. The following are examples of situations that require resubmission for clearance approval:

(A)  Exceeding approved negotiation parameters

(B)  Changing contract type

(C)  Changing contract share ratio

(D)  Major change in quantity

(E)  Major change in requirements

(F)  Change to a significant term or condition

(G)  Addition or deletion of a significant term or condition