« PreviousContinue »
ndvance as the exigencies of the situee 2 of this chapter). Practices which are tion will permit. Each request for a designed to eliminate competition or redeviation shall contain the following: strain trade and which may evidence
(a) A clear statement of the deviation possible violations of such laws include desired;
collusive bidding, follow-the-leader pric(b) The reasons the deviation is con- ing, rotated low bids, uniform estimating sidered necessary or would be in the best systems, sharing of the business, ideninterest of the Government;
tical bids, or similar actions. (C) The name of the contractor and (b) When bids or proposals are reidentification of the contract affected; ceived and, in the opinion of the con
(d) A statement as to whether the de- tracting officer, are indicative of possible viation has been requested previously, antitrust violations, he shall report such and, if so, circumstances of the previous circumstances to the General Counsel, request; and
NASA, Headquarters, through the Office (e) Any pertinent background infor- of Procurement (Code KDP). Reports mation which will contribute to a full of such bids or proposals should not be understanding of the desired deviation. submitted automatically, but only when
there is some reason to believe that those § 18–1.110 Reports of contracts.
bids or proposals may not have been ar(a) Special reports concerning NASA rived at independently. Such reports contracts prescribed by NASA Head- shall be submitted with conformed copies quarters are designed to meet statutory of bids or proposals, contract documents, and other Congressional requirements, and other supporting data, and shall set requirements of other Government agen- forth: cies, and to provide all levels of manage- (1) The noncompetitive pattern or ment with data on which to formulate situation under consideration; procurement policy as well as to deter- (2) Purchase experience in the same mine the extent of compliance with pre- product or service for a reasonable period scribed policy.
of time (one or more years) prior to the (b) Basic recurring reports are set receipt of the bids or proposals under forth in Subpart 18–16.9, and include the consideration, including unit and total Individual Procurement Action Report contract price and abstracts of bids; (NASA Form 507) and the Procurement (3) Community of financial interest Status Report (NASA Form 561). The
among bidders, insofar as it is known; statistics furnished in these reports are (4) The extent, if any, to which specialso used in the preparation of reports fication requirements or patents restrict furnished to the President, the Congress, competition; other Government agencies, and man- (5) Information which may be availagement within NASA. The accuracy, able with respect to the pricing system completeness, and timeliness of all re- employed in bids or proposals believed ports are fully dependent on careful to reflect noncompetitive practices; and preparation and prompt submission,
(6) Any other information considered § 18–1.111 Reports of noncompetitive pertinent. practices.
(c) Evidence of noncompetitive bid
practices which, in the opinion of the (a) Unless bids or proposals are gen- General Counsel, NASA Headquarters, uinely competitive, contract prices tend
may violate the antitrust laws shall be to be higher than they should be. If forwarded to the Attorney General of the the Administrator, NASA, or his repre, United States. sentative considers that any bid received
(d) The reports required by this $ 18after formal advertising evidences a vio
1.111 are separate and apart from the lation of the antitrust laws, he is required reporting requirement contained in g 18– by 10 U.S.C. 2305(d) to refer such
1.114. bids to the Attorney General of the United States for appropriate action $ 18–1.112 Relationship to ASPR and (see § 18–2.404–1(b) (6) of this chapter).
FPR. Similarly, evidence of such violations in (a) Since NASA is governed by the negotiated procurements will be referred same procurement law as the Departto the Attorney General (see § 18–3.215- ment of Defense (Chapter 137, Title 10
U.S.C.), and both agencies deal to a con- conduct in connection with dealings on siderable extent with the same segment behalf of the Government. Such conof industry, it is NASA policy to pre- duct must at all times be beyond rescribe procurement regulations which, to proach and must be such that each inthe maximum practicable extent, are dividual involved in NASA procurement consistent with policies and procedures activities would have no reticence in adupted by the Department of Defense making a full public disclosure of all in the Armed Services Procurement Reg- actions taken in connection with such ulation (ASPR).
activities. (b) NASA and the General Services
8 18–1.114 Administration have also reached agree
Reporting of identical bids. ment concerning the relationship between
(a) General. Executive Order 10936 the Federal Procurement Regulation (April 24, 1961, 3 C.F.R. 1961 Supp., p. (FPR) and the NASA Procurement Regu- 104), as implemented by the Departlation. NASA has agreed to participate ment of Justice, requires that a report be in the publication program established submitted to the Attorney General on by the FPR system. Therefore, portions each formally advertised procurement of the NASA Procurement Regulation (including small business restricted adwhich require publication will be pub- vertising) over $10,000 which involves lished in this chapter and will utilize the identical bids. numbering system of the FPR system. (b) Definitions. (1) Identical bids are
two or more bids for the same line item 8 18–1.113 Code of conduct.
which: (a) A number of Federal statutes pro
(i) Are identical on their face (rehibit certain acts by Government person- gardless of such evaluation factors as nel and special Government employees discount, transportation, etc.) either as as defined in 18 U.S.C. 202 in relation to to unit price or total line item amount; procurement activities for the Government. Among these statutes are the fol- (ii) Are identical as evaluated as to lowing: (1) 18 U.S.C. 201 relating to either unit price or total line item bribes in order to secure a Government amount. contract; (2) 18 U.S.C. 203 relating to (2) The term “line item" means each compensation for services rendered in object of procurement specified in an connection with any proceeding
invitation for bids which, under the claim in which the United States has an terms of the invitation, is susceptible interest; (3) 18 U.S.C. 205 relating to to a separate contract award. The reacting as an agent or attorney for prose- porting requirements herein established cuting any claim against the United for line items are applicable to invitaStates; (4) 18 U.S.C. 208 relating to tions calling for line item bidding, even transacting business as an officer or though such bids contain qualifying or agent of the United States with firms restrictive limitations on award (e.g., of which such oficer or agent, his spouse,
all-or-none bids; lump sum awards in minor child, or partner is an official or
the case of construction contracts; award in which he has a pecuniary interest; on one item conditioned on award of and (5) 18 U.S.C. 209 relating to com
other items). pensation from non-Government sources (c) Information to be obtained from in connection with Government serv- bidders. Each invitation for bids for ices. All procurement personnel shall procurement estimated to exceed become familiar with these statutory $10,000 will include substantially the prohibitions. Any questions concerning following: them shall be referred to legal counsel. PARENT COMPANY AND EMPLOYER IDENTIFICAIn addition to criminal penalties, the
TION NUMBER (MARCH 1963) statutes provide that transactions en
(a) Bidder represents that he () is, I tered into in violation of these prohibi- is not, owned or controlled by a parent comtions are voidable (18 U.S.C. 218). pany. For this purpose a parent company (b) Aside from such statutory pro
is defined as one which either owns or conhibitions, as set forth in paragraph (a),
trols the activities and basic business poll
cies of the bidder. To own another comof this section, procurement personnel pany means the parent company must own shall maintain the highest standards of at least a majority (more than 50 percent)
of the voting rights in that company. To (3) No identical bids are discovered in control another company such ownership 18 the normal process of evaluating bids for not required; 11 another company is able to formulate, determine or veto basic business
award and no identical bids are apparpolicy decisions of the bidder, such other
ent on the face of the bid. company is considered the parent of the bid
(f) Information to be reported. der. This control may be exercised through When a procurement invitation results the use of dominant minority voting rights, in the submission of identical bids to be use of proxy voting, contractual arrange- reported under paragraph (d) of ments, or otherwise.
this section, a report shall be submitted (b) If the bidder is owned or controlled by showing the entire bid proceeding for & parent company, Insert in the space below the name and main office of the parent com
each line item in which identical bids
are received. A copy of the invitation pany.
for bids and a copy of the completed
abstract of all bids received shall be filed (Name)
with the report, except that an abstract (c) Bidder will provide in the applicable will not be furnished if the number space below, if he has no parent company, of line items on the invitation for bids his own Employer's Identification Number
exceeds 100. In such case, the report (E.I. No.) (Federal Social Security Identif
shall be annotated to indicate both the cation Number as used on Federal Tax Re
number of line items and the total numturn); or, if he has a parent company, the E.I. No, of his parent company.
ber of bidders on the invitation.
(g) Submission of reports. (1) IdenBidder's E.I. No.. Parent Company's E.I. No.----
tical Bid reports shall be submitted on
Department of Justice Form DJ-1500 The information required by this para- (Federal Stock No. 7540_823–7870), graph (c) will be included on reports of available from General Services Adminidentical bids. If identical bids are in- istration stores and depots. Instructions volved and bidders fail to provide this for completing this form are printed as information, one inquiry will be made to the cover sheet of each pad of the forms. obtain such information. Failure on Reports shall be made within 20 days the part of bidders to provide the infor- following the final disposition of all bids mation in this paragraph on invitation received in response to the invitation for for bids shall be indicated on all reports bids involved. Two completed copies of of identical bids, but shall not be consid- the report, with attachments, and ered a basis for rejection of bids. of the completed bid, shall be sent di
(d) Reportable bids. All identical rectly to the Attorney General (Code bids shall be reported when the bid value AT-IBR), Washington, D.C. One copy of all line items covered by the invitation of the completed report (including abfor bids exceeds $10,000 (based on the stract of bids, if appropriate) shall be apparent low bid for each line item), retained by the reporting installation and regardless of whether:
one completed copy submitted to the Di(1) They were the low bids;
rector of Procurement (Code KDP), (2) Award is made on the line item;
NASA Headquarters. (3) The invitation was canceled; or
(2) This reporting requirement is in (4) Any other disposition was made addition to and will not be deemed a subsequent to public opening of the bids. substitute for the reports of noncom
(e) Conditions under which identical petitive practices required by $ 18–1.111. bids are not reportable. Reports shall § 18–1.115 Noncollusive bids and pronot be submitted when:
posals. (1) Bids are received only from foreign sources on invitations for bids in
(a) In order to promote full and free volving delivery and performance out- competition for Government contracts, side the United States, its possessions, or
the following certification shall be inPuerto Rico;
cluded in all (1) invitations for bids and
(2) requests for proposals or quotations (2) There is no line item on which the
(other than for small purchases made apparent low bids exceed $2,500 (line in accordance with Subpart 18–3.6 of item evaluation computations beyond this chapter and other than requests for those normally made to determine low technical proposals in connection with bidders are not required); or
two-step formal advertising) involving
firm fixed-price contracts and fixed-price shall have the meanings set forth in this contracts with escalation:
subpart, unless (a) the context in which CERTIFICATION OF NONCOLLUSION (OCTOBER they are used clearly requires a different 1963)
meaning or (b) a different definition is (a) By submission of this bid or proposal, prescribed for a particular part or porthe bidder or offeror certifies in connection
tion thereof. with this procurement that:
§ 18–1.202 Administrator. (1) The price in this bid or proposal has been independently arrived at without col- “Administrator" means the Adminislusion with any other bidder or offeror or trator or Deputy Administrator of NASA. with any competitor;
(2) Unless otherwise required by law, the § 18–1.203 Change order. price in this bid or proposal has not been
"Change order" means a written order knowingly disclosed and will not be know
signed by the contracting officer, directingly disclosed prior to opening, in the case of a bid, or prior to award, in the case
ing the contractor to make changes of a proposal, directly or indirectly to any
which the changes clause of the contract other bidder or offeror or to any competitor;
authorizes the contracting officer to or. and
der without the consent of the con(3) No attempt has been or will be made tractor. to induce any other person or firm to submit or not to submit a bid or proposal.
8 18–1.204 Construction contractor. (b) The person signing this bid or pro- "Construction contractor" means a posal certifies that he has fully informed himself regarding the accuracy of the state
person (or firm) who, before being ments contained in this certification.
awarded a contract, satisfies the con(c) This certification is not applicable to tracting officer that he qualifies as one: a foreign bidder or offeror submitting a bid (a) Who owns, operates, or maintains or proposal for a contract which requires a place of business regularly engaged in performance or delivery outside the United
the construction, alteration, or repair of States, its possessions, and Puerto Rico.
buildings, structures, communication f&(d) A bid or proposal will not be considered for award where (a) (1), (a) (3) or
cilities, or other engineering projects, in(b) above has been deleted or modified. cluding the furnishing and installing of Where (a) (2) above has been deleted or necessary equipment; or modified, the bid or proposal will not be (b) Who, if newly entering into a conconsidered for award unless the bidder or struction activity, has made all neces. offeror furnishes with the bid or proposal sary prior arrangements for personnel, a signed statement which sets forth in detail
construction equipment, and required lithe circumstances of the disclosure and the head of the agency, or his designee, deter
censes to perform construction work. mines that the disclosure was not made with $ 18–1.205 Contract modification. collusive intent.
"Contract modification" means any (b) The authority to make the deter- written alteration in the specification, mination described in paragraph (d)
delivery point, rate of delivery, contract of the certification in paragraph (a) of period, price, ntity, or other contract this section shall be exercised by the provisions of an existing contract, Director of the Installation or his deputy, whether accomplished by unilateral ac
(c) Where a certification is suspected tion in accordance with a contract provi. of being false or there is indication of
sion, or by mutual action of the parties collusion, the matter shall be processed to the contract. It includes (a) bilateral in accordance with $ 18–1.111. For re- actions such as supplemental agreejection of bids which are suspected of ments, and (b) unilateral actions such as being collusive and for the negotiation change orders, administrative changes, of procurements subsequent to such
notces of termination, and notices of the rejection, see 88 18–2.404-1(b) (6) and 18-3.215–2 of this chapter.
exercise of a contract option.
§ 18–1.206 Contracting officer. Subpart 18–1.2-Definition of Terms
“Contracting officer" means any em18–1.201 Definitions.
ployee of NASA who is currently desig. As used throughout this chapter, the nated a contracting officer with the words and terms defined in this subpart authority to enter into and administer contracts and make determinations and § 18–1.212 Field procurement office. findings with respect thereto, or with
"Field procurement office" means any any part of such authority. The term NASA procurement office other than also includes the authorized representa- procurement offices at NASA Headtive of the contracting officer acting quarters. within the limits of his authority.
8 18–1.213 Government instrumentality. $ 18–1.207 Contracts.
"Government instrumentality” means “Contracts" means all types of agree
any of the following: ments and orders for the procurement of
(a) An instrumentality of the U.S. supplies or services. It includes awards
Government; and notices of award; contracts of a
(b) An agency or instrumentality of a fixed-price, cost, cost-plus-a-fixed-fee, State or local government, possession, or or incentive type; contracts providing for Puerto Rico; the issuance of job orders, task orders,
(c) An agency or instrumentality of a or task letters thereunder; letter con- foreign government. tracts; and purchase orders. It also includes supplemental agreements with re- § 18–1.214 Head of a field installation. spect to any of the foregoing.
"Head of a field installation" means 8 18–1.208 Director of procurement.
the Director of a field installation. "Director of Procurement” means the $ 18–1.215 Head of the agency. Director, Office of Procurement, NASA "Head of the agency" means the AdHeadquarters (Code KD).
ministrator or Deputy Administrator of § 18–1.209 Executive agency.
NASA. "Executive agency" means any execu
& 18–1.216 Includes. tive department or any independent es- "Includes" means “includes but is not tablishment in the Executive Branch of limited to." the Government, including any wholly owned Government corporation, the Na- § 18–1.217 Installation. tional Aeronautics and Space Adminis- "Installation" means NASA Headtration, and the Departments of the quarters and field installations. Army, Navy and Air Force.
& 18–1.218 Manufacturer. $ 18–1.210 Federal agency.
“Manufacturer" means a person (or "Federal agency" means any executive firm): agency or any establishment in the Leg
(a) Who owns, operates, or maintains islatiye or Judicial Branches of the Gov
a factory or establishment that produces
on the premises the materials, articles, ernment (except the Senate, the House
or equipment required under the contract of Representatives, and the architect of and of the general character described the Capitol and any activities under his by the sp ifications; or direction).
(b) Who, if newly entering into a 8 18-1.211 Field installation.
manufacturing activity, has made all
necessary prior arrangements for manu"Field installation" means Ames Re- facturing space, equipment, and personsearch Center; Electronics Research nel to perform the manufacturing operaCenter; Flight Research Center; God. tions required for contract performance; dard Space Flight Center; Langley and Research Center; John F. Kennedy (c) Who, before being awarded a conSpace Center, NASA; Lewis Research tract, satisfies the contracting officer that Center; Manned Spacecraft Center; he qualified under paragraphs (a) or (b) George C. Marshall Space Flight Center; of this section. Pacific Launch Operation Center; North & 18–1.219 May. Eastern Omce; Wallops Station; Western "May” is permissive. However, the Operations Office, and any other field words "no person may . *" mean that installation hereafter established by no person is required, authorized, or perNASA.
mitted to do the act prescribed.