FAR_AND_QPL_DEFINITIONS.pdf

SUBPART 9.2 - QUALIFICATIONS REQUIREMENTS 9.202

Subpart 9.2 - Qualifications Requirements

9.200 Scope of subpart.

This subpart implements 10 U.S.C.2319 and 41 U.S.C.3311 and prescribes policies and procedures regarding qualification requirements and the acquisitions that are subject to such requirements.

9.201 Definitions.

As used in this subpart- “Qualified bidders list (QBL)” means a list of bidders who have had their products examined and tested and who have satisfied all applicable qualification requirements for that product or have otherwise satisfied all applicable qualification requirements.

“Qualified manufacturers list (QML)” means a list of manufacturers who have had their products examined and tested and who have satisfied all applicable qualification requirements for that product.

9.202 Policy.

(a) (1) The head of the agency or designee shall, before establishing a qualification requirement, prepare a written justification-

(i) Stating the necessity for establishing the qualification requirement and specifying why the qualification requirement must be demonstrated before contract award;

(ii) Estimating the likely costs for testing and evaluation which will be incurred by the potential offeror to become qualified; and

(iii) Specifying all requirements that a potential offeror (or its product) must satisfy in order to become qualified.

Only those requirements which are the least restrictive to meet the purposes necessitating the establishment of the qualification requirements shall be specified.

(2) Upon request to the contracting activity, potential offerors shall be provided-

(i) All requirements that they or their products must satisfy to become qualified; and

(ii) At their expense (but see 9.204(a)(2) with regard to small businesses), a prompt opportunity to demonstrate their abilities to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned, or of another agency obtained through interagency agreements or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency).

(3) If the services in (a)(2)(ii) of this section are provided by contract, the contractors selected to provide testing and evaluation services shall be-

(i) Those that are not expected to benefit from an absence of additional qualified sources; and

(ii) Required by their contracts to adhere to any restriction on technical data asserted by the potential offeror seeking qualification.

(4) A potential offeror seeking qualification shall be promptly informed as to whether qualification is attained and, in the event it is not, promptly furnished specific reasons why qualification was not attained.

(b) When justified under the circumstances, the agency activity responsible for establishing a qualification requirement shall submit to the advocate for competition for the procuring activity responsible for purchasing the item subject to the qualification requirement, a determination that it is unreasonable to specify the standards for qualification which a prospective offeror (or its product) must satisfy. After considering any comments of the advocate for competition reviewing the determination, the head of the procuring activity may waive the requirements of 9.202(a)(1)(ii) through (4) for up to 2 years with respect to the item subject to the qualification requirement. A copy of the waiver shall be furnished to the head of the agency or other official responsible for actions under 9.202(a)(1). The waiver authority provided in this paragraph does not apply with respect to qualification requirements contained in a QPL, QML, or QBL.

(c) If a potential offeror can demonstrate to the satisfaction of the contracting officer that the potential offeror (or its product) meets the standards established for qualification or can meet them before the date specified for award of the contract, a potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror-

(1) Is not on a QPL, QML, or QBL maintained by the Department of Defense (DoD) or the National Aeronautics and Space Administration (NASA); or

(2) Has not been identified as meeting a qualification requirement established after October19,1984, by DoD or NASA;

or

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9.203 FEDERAL ACQUISITION REGULATION

(3) Has not been identified as meeting a qualification requirement established by a civilian agency (not including

NASA).

(d) The procedures in subpart 19.6 for referring matters to the Small Business Administration are not mandatory on the contracting officer when the basis for a referral would involve a challenge by the offeror to either the validity of the qualification requirement or the offeror’s compliance with such requirement.

(e) The contracting officer need not delay a proposed award in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification. In addition, when approved by the head of an agency or designee, a procurement need not be delayed in order to comply with 9.202(a).

(f) Within 7 years following enforcement of a QPL, QML, or QBL by DoD or NASA, or within 7 years after any qualification requirement was originally established by a civilian agency other than NASA, the qualification requirement shall be examined and revalidated in accordance with the requirements of 9.202(a). For DoD and NASA, qualification requirements other than QPL’s, QML’s and QBL’s shall be examined and revalidated within 7 years after establishment of the requirement under 9.202(a). Any periods for which a waiver under 9.202(b) is in effect shall be excluded in computing the 7 years within which review and revalidation must occur.

9.203 QPL’s, QML’s, and QBL’s.

(a) Qualification and listing in a QPL, QML, or QBL is the process by which products are obtained from manufacturers or distributors, examined and tested for compliance with specification requirements, or manufacturers or potential offerors, are provided an opportunity to demonstrate their abilities to meet the standards specified for qualification. The names of successful products, manufacturers, or potential offerors are included on lists evidencing their status. Generally, qualification is performed in advance and independently of any specific acquisition action. After qualification, the products, manufacturers, or potential offerors are included in a Federal or Military QPL, QML, or QBL. (See 9.202(a)(2) with regard to any product, manufacturer, or potential offeror not yet included on an applicable list.)

(b) Specifications requiring a qualified product are included in the following publications:

(1) GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR 101-29.1.

(2) Department of Defense Acquisition Streamlining and Standardization Information System (ASSIST) at ( https:// assist.dla.mil/online/start/).

(c) Instructions concerning qualification procedures are included in the following publications:

(1) Federal Standardization Manual, FSPM-0001.

(2) Defense Standardization Manual 4120.24-M, Appendix2, as amended by Military Standards 961 and 962.

(d) The publications listed in paragraphs(b) and (c) of this section are sold to the public. The publications in paragraphs(b)

(1) and (c)(1) of this section may be obtained from the addressee in 11.201(d)(1). The publications in paragraphs(b)(2) and (c)(2) of this section may be obtained from the addressee in 11.201(d)(2).

9.204 Responsibilities for establishment of a qualification requirement.

The responsibilities of agency activities that establish qualification requirements include the following:

(a) Arranging publicity for the qualification requirements. If active competition on anticipated future qualification requirements is likely to be fewer than two manufacturers or the products of two manufacturers, the activity responsible for establishment of the qualification requirements must-

(1) Periodically furnish through the Governmentwide point of entry (GPE) a notice seeking additional sources or products for qualification unless the contracting officer determines that such publication would compromise the national security.

(2) Bear the cost of conducting the specified testing and evaluation (excluding the costs associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern which has met the standards specified for qualification and which could reasonably be expected to compete for a contract for that requirement. However, such costs may be borne only if it is determined in accordance with agency procedures that such additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to amortize the costs incurred by the agency within a reasonable period of time, considering the duration and dollar value of anticipated future requirements. A prospective contractor requesting the United States to bear testing and evaluation costs must certify as to its status as a small business concern under Section3 of the Small Business Act in order to receive further consideration.

(b) Qualifying products that meet specification requirements.

(c) Listing manufacturers and suppliers whose products are qualified in accordance with agency procedures.

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SUBPART 9.2 - QUALIFICATIONS REQUIREMENTS 9.206-1

(d) Furnishing QPL’s, QML’s, or QBL’s or the qualification requirements themselves to prospective offerors and the public upon request (see 9.202(a)(2)(i)).

(e) Clarifying, as necessary, qualification requirements.

(f) In appropriate cases, when requested by the contracting officer, providing concurrence in a decision not to enforce a qualification requirement for a solicitation.

(g) Withdrawing or omitting qualification of a listed product, manufacturer or offeror, as necessary.

(h) Advising persons furnished any list of products, manufacturers or offerors meeting a qualification requirement and suppliers whose products are on any such list that-

(1) The list does not constitute endorsement of the product, manufacturer, or other source by the Government;

(2) The products or sources listed have been qualified under the latest applicable specification;

(3) The list may be amended without notice;

(4) The listing of a product or source does not release the supplier from compliance with the specification; and

(5) Use of the list for advertising or publicity is permitted. However, it must not be stated or implied that a particular product or source is the only product or source of that type qualified, or that the Government in any way recommends or endorses the products or the sources listed.

(i) Reexamining a qualified product or manufacturer when-

(1) The manufacturer has modified its product, or changed the material or the processing sufficiently so that the validity of previous qualification is questionable;

(2) The requirements in the specification have been amended or revised sufficiently to affect the character of the product; or

(3) It is otherwise necessary to determine that the quality of the product is maintained in conformance with the specification.

9.205 Opportunity for qualification before award.

(a) If an agency determines that a qualification requirement is necessary, the agency activity responsible for establishing the requirement must urge manufacturers and other potential sources to demonstrate their ability to meet the standards specified for qualification and, when possible, give sufficient time to arrange for qualification before award. The responsible agency activity must, before establishing any qualification requirement, furnish notice through the GPE. The notice must include-

(1) Intent to establish a qualification requirement;

(2) The specification number and name of the product;

(3) The name and address of the activity to which a request for the information and opportunity described in 9.202(a)

(2) should be submitted;

(4) The anticipated date that the agency will begin awarding contracts subject to the qualification requirement;

(5) A precautionary notice that when a product is submitted for qualification testing, the applicant must furnish any specific information that may be requested of the manufacturer before testing will begin; and

(6) The approximate time period following submission of a product for qualification testing within which the applicant will be notified whether the product passed or failed the qualification testing (see 9.202(a)(4)).

(b) The activity responsible for establishing a qualification requirement must keep any list maintained of those already qualified open for inclusion of additional products, manufacturers, or other potential sources.

9.206 Acquisitions subject to qualification requirements.

9.206-1 General.

(a) Agencies may not enforce any QPL, QML, or QBL without first complying with the requirements of 9.202(a).

However, qualification requirements themselves, whether or not previously embodied in a in a QPL, QML, or QBL, may be enforced without regard to 9.202(a) if they are in either of the following categories:

(1) Any qualification requirement established by statute prior to October30,1984, for civilian agencies (not including NASA); or

(2) Any qualification requirement established by statute or administrative action prior to October19,1984, for DoD or NASA. Qualification requirements established after the above dates must comply with 9.202(a) to be enforceable.

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9.206-2 FEDERAL ACQUISITION REGULATION

(b) Except when the agency head or designee determines that an emergency exists, whenever an agency elects, whether before or after award, not to enforce a qualification requirement which it established, the requirement may not thereafter be enforced unless the agency complies with 9.202(a).

(c) If a qualification requirement applies, the contracting officer need consider only those offers identified as meeting the requirement or included on the applicable QPL, QML, or QBL, unless an offeror can satisfactorily demonstrate to the contracting officer that it or its product or its subcontractor or its product can meet the standards established for qualification before the date specified for award.

(d) If a product subject to a qualification requirement is to be acquired as a component of an end item, the contracting officer must ensure that all such components and their qualification requirements are properly identified in the solicitation since the product or source must meet the standards specified for qualification before award.

(e) In acquisitions subject to qualification requirements, the contracting officer shall take the following steps:

(1) Use presolicitation notices in appropriate cases to advise potential suppliers before issuing solicitations involving qualification requirements. The notices shall identify the specification containing the qualification requirement and establish an allowable time period, consistent with delivery requirements, for prospective offerors to demonstrate their abilities to meet the standards specified for qualification. The notice shall be publicized in accordance with 5.204. Whether or not a presolicitation notice is used, the general synopsizing requirements of subpart 5.2 apply.

(2) Distribute solicitations to prospective contractors whether or not they have been identified as meeting applicable qualification requirements.

(3) When appropriate, request in accordance with agency procedures that a qualification requirement not be enforced in a particular acquisition and, if granted, so specify in the solicitation (see 9.206-1(b)).

(4) Forward requests from potential suppliers for information on a qualification requirement to the agency activity responsible for establishing the requirement.

(5) Allow the maximum time, consistent with delivery requirements, between issuing the solicitation and the contract award. As a minimum, contracting officers shall comply with the time frames specified in 5.203 when applicable.

9.206-2 Contract clause.

The contracting officer shall insert the clause at 52.209-1, Qualification Requirements, in solicitations and contracts when the acquisition is subject to a qualification requirement.

9.206-3 Competition.

(a) Presolicitation. If a qualification requirement applies to an acquisition, the contracting officer shall review the applicable QPL, QML, or QBL or other identification of those sources which have met the requirement before issuing a solicitation to ascertain whether the number of sources is adequate for competition. (See 9.204(a) for duties of the agency activity responsible for establishment of the qualification requirement.) If the number of sources is inadequate, the contracting officer shall request the agency activity which established the requirement to-

(1) Indicate the anticipated date on which any sources presently undergoing evaluation will have demonstrated their abilities to meet the qualification requirement so that the solicitation could be rescheduled to allow as many additional sources as possible to qualify; or

(2) Indicate whether a means other than the qualification requirement is feasible for testing or demonstrating quality assurance.

(b) Post solicitation. The contracting officer shall submit to the agency activity which established the qualification requirement the names and addresses of concerns which expressed interest in the acquisition but are not included on the applicable QPL, QML, or QBL or identified as meeting the qualification requirement. The activity will then assist interested concerns in meeting the standards specified for qualification (see 9.202(a)(2) and (4)).

9.207 Changes in status regarding qualification requirements.

(a) The contracting officer shall promptly report to the agency activity which established the qualification requirement any conditions which may merit removal or omission from a QPL, QML, or QBL or affect whether a source should continue to be otherwise identified as meeting the requirement. These conditions exist when-

(1) Products or services are submitted for inspection or acceptance that do not meet the qualification requirement;

(2) Products or services were previously rejected and the defects were not corrected when submitted for inspection or acceptance;

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SUBPART 9.2 - QUALIFICATIONS REQUIREMENTS 9.207

(3) A supplier fails to request reevaluation following change of location or ownership of the plant where the product which met the qualification requirement was manufactured (see the clause at 52.209-1, Qualification Requirements);

(4) A manufacturer of a product which met the qualification requirement has discontinued manufacture of the product;

(5) A source requests removal from a QPL, QML, or QBL;

(6) A condition of meeting the qualification requirement was violated; e.g.,advertising or publicity contrary to 9.204(h)

(5);

(7) A revised specification imposes a new qualification requirement;

(8) Manufacturing or design changes have been incorporated in the qualification requirement;

(9) The source is listed in the System for Award Management Exclusions (see subpart 9.4); or

(10) Performance of a contract subject to a qualification requirement is otherwise unsatisfactory.

(b) After considering any of the above or other conditions reasonably related to whether a product or source continues to meet the standards specified for qualification, an agency may take appropriate action without advance notification. The agency shall, however, promptly notify the affected parties if a product or source is removed from a QPL, QML, or QBL, or will no longer be identified as meeting the standards specified for qualification. This notice shall contain specific information why the product or source no longer meets the qualification requirement.

9.2-5

QUALIFIED PRODUCTS LIST (June 5, 2009)

Definition: The Qualified Products List (QPL) is an electronic list, both internet and mainframe based. The QPL identifies materials, and suppliers whose materials, are approved for use on ODOT projects without further documentation or testing. The QPL provides Department personnel with an easy to use paperless process to determine if a material is acceptable for immediate incorporation into the work. The QPL also serves as an electronic project documentation method to capture material data in the project records. The QPL eliminates the traditional project submission and documentation process requirements for select manufactured materials.

Scope: The QPL is intended to be used as a method of acceptance for the following materials:

1. Manufactured materials that historically have an acceptable performance history.

2. Manufactured materials for which the producing industry has a history of furnishing quality materials.

3. Materials that are small cost items in the Departments overall materials purchases.

4. Materials for which the Department’s laboratory does not possess the equipment or capabilities to routinely test for acceptance, and for which capital expenditures for such equipment and capabilities is not warranted.

QPL Process:

The QPL Process is as follows:

A. Determining a QPL material.

B. Determining the acceptance requirements for QPL material approval C. Adding a material to the QPL D. Required project site documentation and inspection for a QPL material E. Documenting Project Acceptance of a QPL material F. Random Testing G. Removal of materials from the QPL H. QPL dispute resolution process I. Reinstatement of materials to the QPL

A. Determining a QPL material: The Department will determine if a material is eligible for inclusion on the QPL in the following manner:

For materials where the Department has no in house historical test data:

Upon request by the appropriate specification committee, the Office of Material Management (OMM) will evaluate a proposed material and recommend to the committee a method for materials acceptance. If the recommended method is via QPL the evaluation must include:

A. Evaluate the expected variability of the material.

B. Evaluate the material manufacturing industries’ ability to produce a quality material.

i. ISO 900X manufacturers

ii. Manufacturers with a known quality history

iii. Other quality processes

C. Other states experience and acceptance methods for the material.

D. Cost to the Department for:

i. obtaining testing equipment for acceptance/verification and Independent

Assurance Sample (IAS) testing

ii. obtaining samples using in-house personnel

iii. providing additional labor and training to in-house personnel

iv. contracting private test laboratories to perform acceptance/verification

v. obtaining samples using an independent third party

vi. managing the independent third party

vii. Other options such as NTPEP processes

The evaluation will be documented. A copy of the evaluation will be provided to the Specification Committee and a copy will be maintained on file by OMM. The Specification committee will notify OMM whether they accept the QPL recommendation as part of the final specification. In the event that the specification committee rejects the QPL recommendation, OMM will determine an alternate material acceptance option for committee approval.

For materials where the Department has in house historical test data:

OMM may periodically evaluate the current acceptance process for a material and make a recommendation to a specification committee for that material to be added to the QPL. This evaluation will be based on the following:

A. Historic performance of producers of the material

B. Historic variability of the material

C. Historic test data

D. Other states experience and acceptance method for the material

E. Cost to the Department for:

i. maintaining testing equipment for acceptance/verification and IAS testing

ii. contracting private test laboratories to perform acceptance/verification

iii. obtaining samples within house forces

iv. obtaining samples with independent third party forces

v. providing additional manpower and training to in house forces

vi. managing the independent third party

vii. Other options such as NTPEP processes

The evaluation will be documented. A copy of the evaluation will be provided to the Specification Committee and a copy will be maintained on file by OMM.

In the event that the specification committee rejects the QPL recommendation, then the Department will continue the current method of acceptance.

B. Determining the acceptance requirements for QPL material approval. In the event that the specification committee accepts the QPL recommendation, OMM will be responsible for developing the criteria for acceptance of the material for inclusion of the material on the QPL.

The criteria for inclusion on the QPL will generally include the following:

1. Submittal of test data demonstrating conformance to the specification requirements.

2. Samples of the material to determine typical markings and other identifying characteristics.

3. Samples for testing, if some testing can be performed.

4. Submittal requirements for other offices, if other Departmental offices have some involvement in the materials acceptance process.

5. Annual recertification submittal requirements.

C. Adding a material to the QPL. The Office of Materials Management is responsible for maintaining the QPL. OMM will maintain a QPL website listing all submittal requirements for the QPL material and the approved manufacturers. Each QPL material will have a separate submittal requirement document on the website.

1. Initial QPL material approval process.

a. A material manufacturer (not supplier) can request inclusion of a material on the

QPL list by making a complete QPL submittal meeting the requirements set forth for that material.

b. OMM will evaluate the submittal for compliance with these requirements.

c. Materials meeting these requirements will be listed on the QPL website.

2. Annual recertification process.

a. Manufacturers must recertify their materials by January 1 st of each calendar year by making a complete QPL submittal.

b. It is the manufacturer’s responsibility to initiate the recertification process by making an annual QPL submittal.

c. Materials not recertified will be removed from the list effective February 1 st and can only be returned to the QPL list through the process set forth in Section C.1.

D. Required project site documentation and inspection for a QPL material. Only materials listed on the QPL at the time of delivery to the project will be accepted by the QPL process. This is verified electronically since only those materials listed on the QPL can be entered into the Testing Administration System (TAS). QPL materials/products will not be approved or accepted through traditional sampling and testing methods unless otherwise approved by the Office of Materials Management (OMM). OMM will maintain a current QPL listing of materials, products, and manufacturers on the OMM website. Documentation and inspection requirements are as follows:

1. Provide the Engineer documentation that the material provided is from a currently approved QPL manufacturer. Acceptable manufacturer validation documentation includes:

A. Manufacturer’s stamps or imprint on the material B. Label information C. A letter of conformance showing the manufacturer D. Some other form of documentation showing the manufacturer, the grade or brand, is on the QPL list

2. The Engineer will visually inspect the material quality for assurance that the material is free of defects.

3. The Engineer will check the Department’s current CMS/TAS QPL screen. If the manufacturer and brand appear on the current QPL listing, then the Engineer can accept the material and enter the required data into CMS/TAS.

4. Materials may be added to the QPL providing that the product/manufacturer is accepted onto the list as per Section C.1 unless the cause for removal from the QPL list was pursuant to Section G.

5. Materials for which the manufacturer cannot be identified will not be accepted.

E. Documenting Project Acceptance of a QPL material. If the Engineer verifies and determines that the QPL material is correctly identified and in acceptable condition, then the Engineer will use the CMS-TAS QPL screen to acknowledge approval/acceptance of the material and to document the following:

Material Description/Type Quantity Reference number Manufacturer

F. Random Testing. OMM will identify QPL materials for random testing.

Materials for which the Department has in-house testing capability will require random testing consisting of process samples obtained by ODOT from the manufacturer’s stock. OMM will determine, document, and monitor the testing frequency.

Materials for which the Department does not have in-house testing capability, OMM will randomly choose a least five (5) QPL materials for yearly evaluation by an independent source.

The costs of sampling and testing for these QPL materials will not exceed $100,000 in a calendar year.

The Department will obtain a sample from the manufacturer and perform one round of Quality Assurance (QA) testing within 30 days of receipt of the manufacturer’s certification and Departmental approval for product inclusion on the QPL. Final approval and acceptance of the material will be based on the Department’s Quality Assurance sampling and testing of the material for compliance with the approved plans and specifications.

G. Removal of materials from the QPL. In the event a random test, as set forth in Section F, yields a failing result the manufacturer will be notified. The manufacturer will then have 15 days to determine the cause, provide an explanation for the failure, and identify corrective actions in writing to OMM.

Unresolved random tests or lack of responsiveness on the part of the Manufacturer beyond 15 days subsequent to a failed test will result in removal of the material from the QPL. OMM will determine the acceptability of the manufacturer’s explanation.

In the event that a material exhibits field performance problems, the manufacturer will be notified. The Manufacturer will then have 15 days to determine the cause, provide an explanation for the failure, and identify corrective actions in writing to OMM. OMM will determine the acceptability of the manufacturer’s explanation.

H. QPL dispute resolution process. In the event a material is removed from the QPL under the terms described in Section G, the Manufacturer may appeal the removal.

If the supplier disputes the validity of Department test results the supplier must notify the Department within 15 days of receiving results. The Department will conduct a review of equipment operation and calibration and invite the supplier to witness the applicable testing procedures. The Department will conduct the investigation in a manner it chooses to best isolate the cause of possible comparison problems which may include conducting testing on Department and supplier equipment with Department and supplier technicians. The Department will analyze results and give them to the supplier.

If original Department test results are validated then they will stand. If Department testing is found to be in error, the Department will make a determination as to whether re-sampling and/or retesting will be performed; whether an alternative test value (if available) will be accepted and used (i.e. in the case of verification testing); or if some other method of re-evaluating the material in question will be used.

The manufacturer must submit a written appeal to the Administrator, Office of Materials Management setting forth reasons to reinstate the material to the QPL. The Administrator will issue a written decision within 30 days of receipt of the written appeal.

In the event that the Manufacturer does not accept the decision of the Administrator, they may appeal the decision to the QPL Appeal Board. The QPL Appeal Board will consist of the Deputy Director Division of Construction Management; Administrator, Office of Construction

Administration and the State Construction Engineer. The appeal to the QPL Appeal Board must be made in writing and must contain additional information or identify an area where the Administrator may have erred in their decision.

The QPL Appeal Board will make its determination based on the documents provided by the Department and the Manufacturer. The QPL Appeal Board will issue a written decision within 30 days of its receipt of the appeal.

I . Reinstatement of materials to the QPL

Materials that are removed from the QPL due to the supplier failing to obtain recertification can be reinstated by following the requirements of C “Determining if a submitted material is added to the QPL”.

Materials removed from the QPL due to failing random tests will not be considered for reinstatement for a period of not less than one year. In addition, OMM may require additional testing and documentation for consideration of reinstatement.

QPL SOP Revision