duplication would be likely to result in additional cost to the Government or would result in duplication of necessary preparation which would unduly delay the procurement.

§ 18-3.214-3 Limitation.

This authority shall not be used unless and until the Administrator has determined, in accordance with the requirements of Subpart 18-3.3, that:

(a) The supplies are of a technical or specialized nature requiring a substantial investment or an extended period of preparation for manufacture; and

(b) Procurement by formal advertising either

(1) Would be likely to result in additional cost to the Government by reason of duplication of investment; or

(2) Would result in duplication of necessary preparation which would unduly delay procurement.

§ 18-3.215 Negotiation after advertising.

Pursuant to 10 U.S.C. 2304 (a) (15), purchases and contracts may be negotiated if:

for property or services for which he [the Administrator] determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (1) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (11) the negotiated price is lower than the lowest rejected bid of any reasonable bidder, as determined by the head of the agency; and (iii) the negotiated price is the lowest negotiated price offered by any responsible supplier.

§ 18-3.215-2 Limitation.

This authority shall not be used unless the Administrator has determined, in accordance with the requirements of Subpart 18-3.3, that the bid prices, after formal advertising for such supplies or services, are unreasonable or were not independently reached in open competition. Also, after such determination by the Administrator and after rejection of all bids, no contract shall be negotiated under this authority unless:

(a) Prior notice of intention to negotiate and a reasonable opportunity to negotiate have been given by a contract

otherwise authorized by law.

§ 18-3.217-2 Application.

The following are examples of other statutes which authorize negotiation:

(a) Small Business Act (Public Law 85-536 as amended-15 U.S.C. 631-647). Contracts for partial or total set-asides for small business made pursuant to a joint determination by the NASA and Small Business Administration (including contracts entered into pursuant to "Small Business Restricted Advertising") shall cite as authority 10 U.S.C. 2304(a) (17) and Section 15 of the Small Business Act (15 U.S.C. 642).

(b) Section 321 of the Transportation Act of 1940 (49 U.S.C. 65). This law permits negotiation for transportation services when the services required can be procured from any common carrier. § 18-3.218 Construction work. § 18-3.218-1

Application.

Contracts to construct or repair any building, road, sidewalk, sewer, main, or similar item are subject to 10 U.S.C. 2304 (c).

§ 18-3.218-2 Limitation.

(a) Work in the United States. Contracts for construction work to be performed within the United States shall be formally advertised and may not be negotiated unless authorized pursuant to 10 U.S.C. 2304 (a) (1), (2), (3), (10), (11), or (15).

ized to be made by the Director of Procurement:

(a) Determinations with respect to advance payments as required by 10 U.S.C. 2307(c) and 2310(b); and

(b) Any other determinations and findings not required to be made by higher authority.

§ 18-3.304 Determinations and findings to be made by a contracting officer. The following individual determinations and findings may be made by a contracting officer, subject to any limitations imposed by the designating official:

(a) Determinations and findings under 10 U.S.C. 2304 (a) (11) with respect to contracts requiring the expenditure of not more than $100,000;

(b) Determinations and findings justifying negotiations on the basis of public exigency under 10 U.S.C. 2304 (a) (2) as required by § 18-3.202-3.

(c) Determinations and findings justifying negotiation under 10 U.S.C. 2304 (a) (7) as required by § 18-3.207-3.

(d) Determinations and findings required by 10 U.S.C. 2306 (c) prior to the making of any cost, cost-plus-fixed-fee, or incentive contract shall set forth those facts and circumstances that clearly indicate why the type of contract selected is likely to be less costly than any other type or that it is impracticable to obtain property or services of the kind or quality required except under such contract;

a

(e) Determinations and findings required by 10 U.S.C. 2306(d) of the estimated costs of contracts or projects on the basis of which maximum allowable fee percentages are measured;

(f) Determinations and findings required by 10 U.S.C. 2306(f) with respect to significant sums by which contracts may be adjusted; and

(g) Any other determinations and findings called for by this chapter and not required to be made by higher authority.

§ 18-3.305

authority. Determinations and findings authorizing negotiation shall set forth those facts and circumstances that clearly and convincingly establish that formal advertising would not be feasible and practicable. Instructions for the preparation of determinations and findings and sample determinations and findings under 10 U.S.C. 2304(a) (11) and

10 U.S.C. 2304 (a) (14) are set forth in this § 18-3.305.

§ 18-3.305-1

Individual contracts under 10 U.S.C. 2304 (a) (11). (See §§ 18-3.211 and 18–3.301 (b).)

(a) Findings. In the first paragraph under "Findings" describe briefly and clearly the scope and nature of the work to be performed. In the second paragraph, set forth the facts and circumstances that are clearly illustrative of the conditions set forth in 10 U.S.C. 2304(a) (11) for use of this authority. (See §§ 18-3.211 and 18-3.211-2.) In the third paragraph, set forth those facts and circumstances that clearly and convincingly establish, with respect to the use of this authority, that formal advertising would not be feasible and practicable.

(b) Determination. Following the format set forth in the sample below, use the appropriate terms to state precisely whether the proposed procurement is for experimental, developmental, or research work or the making or furnishing of property for experiment, test, development, or research; or for a combination of these.

(c) Sample format.

DETERMINATION AND FINDINGS Decision To Negotiate an Individual Contract Under 10 U.S.C. 2304 (a) (11)

FINDINGS

exit and reentry and the reentry problems of other vehicles, such as Apollo or lunar space vehicles, where the largest flight dynamic pressures may be encountered.

2. The proposed contract will require the contractor to do development work in the design and engineering of the compressor unit. Research work will be necessary to support the development stage of the work,

primarily to determine the type of components to be included in the unit to insure performance requirements.

3. Formal advertising is not feasible and practicable for this procurement because it is impossible to describe in precise detail or by definite drawings and specifications the nature of the work to be done; only the ultimate objectives and the general scope of the work can be outlined.

DETERMINATION

On the basis of the above findings, I hereby determine that the proposed procurement is for developmental and research work, and for the making of property for research.

Upon the basis of the determination and findings above, I hereby decide that this contract will be negotiated pursuant to 10 U.S.C. 2304 (a) (11).

DATE

§ 18-3.305-2 Class of contracts under 10 U.S.C. 2304 (a) (11). (See §§ 18-3.211 and 18-3.301 (b).) (a) Findings. In the first paragraph identify the program, the project, and the project number (using the NASA Financial Management Manual, AgencyWide Coding Structure, NPC 300-4) to which the contemplated procurements are oriented. A statement also will be included in the first paragraph that the determination and findings cover only the procurement requirements that are provided for and further defined under the program/project cited, except for such items of property or supplies for which formal advertising is feasible and practicable. In the second paragraph, under "Findings," describe briefly and clearly the scope and nature of the work to be performed. When property and services are to be procured under a "Class Determination and Findings," a statement will be made that the "Determination and Findings" does not apply to those items of property or supplies for which formal advertising is feasible and practicable. In the third paragraph, set forth the facts and circumstances that are clearly illustrative of the conditions set forth in 10 U.S.C. 2304(a) (11) for use

of this authority (see §§ 18-3.211 and 18-3.211-2). In the fourth paragraph, set forth facts and circumstances that clearly and convincingly establish, with respect to the use of this authority, that formal advertising would not be feasible and practicable.

(b) Determination. Following the format set forth in the sample below, use the appropriate terms to state whether the proposed class of contracts will be for experimental, developmental, or research work; or the making or furnishing of property or supplies for experiment, test, development, or research; or for a combination of these. A statement of the period (not to exceed one year) for which the determination and findings will be effective will be included. (c) Sample format.

DETERMINATION AND FINDINGS

Decision to Negotiate a Class of Contracts under 10 U.S.C. 2304(a) (11)

FINDINGS

1. This procurement will consist of one or more contracts for the accomplishment of the Advanced Technology Program for Liquid Propellant Rocket Engines, except for such items of property or supplies for which formal advertising is feasible and practicable and will cover only procurement requirements that are provided for and further defined under the following project citation: RA Engine Project

Project Nr XX-XX-XXX-XXX

2. The proposed class of contracts is for the Advanced Technology Program for Liquid Propellant Rocket Engines, which has as its goal the development of the necessary technology for reliable rocket engines that are needed for launch vehicles and for spacecraft, except for such items of property or supplies for which formal advertising is feasible and practicable. These procurements will involve study and analysis of problems and possible solutions relating to new and unproven concepts in the field of liquid propellant rocket engine systems, subsystems, components, instruments, propellants, fabrication techniques, materials, storage and environmental factors, and aerothermochemistry and heat transfer properties. The procurements will also involve the experimental demonstration of the feasibility of new and unproven concepts and development of the technology required to bring new or unproven concepts into practical use.

3. The proposed procurements will require contractors to study, analyze, and investigate problems in the field of liquid propellant rocket engine systems, and, on the basis of

experiments, demonstrate the feasibility of the new concepts which result from these studies.

4. Formal advertising is not feasible and practicable for these procurements because it is impossible to describe in precise detail, or by any definite drawings or specifications, the nature of the work to be performed under

the proposed contracts; only the ultimate objective and the general scope of the work can be outlined.

DETERMINATION

On the basis of the above findings, I hereby determine that the proposed class of contracts is for experimental and research work and for the making or furnishing of property for experiment, test, and research.

Upon the basis of the determination and findings above, I hereby decide that this class of contracts will be negotiated pursuant to 10 U.S.C. 2304 (a) (11).

This class determination shall remain in effect until June 30, 1963. DATE

§ 18-3.305-3

Individual contract under 10 U.S.C. 2304 (a) (14). (See § 183.214).

(a) Findings. In the first paragraph, under "Findings," describe briefly and clearly the supplies or property being .procured. Such description must inIclude a statement that the supplies or property are technical or specialized in nature and must explain why they are so categorized. The second paragraph must establish either one or, preferably, both of the following:

(1) That furnishing the supplies or property requires a substantial initial investment and that such investment (or a substantial part of it) has already been made by one source (or by the Government in such source), so that procurement by formal advertising would be likely to result in additional cost to the Government by reason of duplication of investment;

(2) That furnishing the supplies or property requires an extended period of preparation for manufacture, that one source has already made such preparation (or a large part of it), and that procurement by formal advertising would result in duplication of necessary preparation which would unduly delay the procurement of the supplies or property. In the case of subparagraph (1) of this paragraph, provide estimates of the original investment and the amount that would have to be duplicated at the expense of the Government. In the case of subparagraph (2) of this paragraph, show that such delay would be prejudicial to the mission of NASA. In both cases, use specific facts relating to the particular procurement, not unsupported statements of general applicability.

(b) Determination. Use the following Determination in its entirety, where applicable; otherwise delete the inapplicable portions. For example, the supplies might be either technical or specialized, in which case only one term would be used; or the procurement might involve substantial investment but not an extended period of preparation, in which case irrelevant language would be deleted and the remainder combined in one sentence.

DETERMINATION

On the basis of the above findings, I hereby determine that the proposed contract is for supplies or property of a technical and specialized nature requiring a substantial initial investment and an extended period of preparation for manufacture and that procurement by formal advertising:

(1) Would be likely to result in additional cost to the Government by reason of duplication of investment; and

(11) Would result in duplication of necessary preparation which would unduly delay the procurement.

§ 18-3.306 Procedure with respect to determinations and findings.

Determinations and Findings for authority to negotiate required by §§ 183.202, 18-3.207 and 18-3.210 through 18-3.215 shall be signed by the appropriate official prior to issuance of a request for proposals or quotations. Any modifications of such Determinations and Findings subsequently found to be necessary will not require cancellation of the request for proposals or quotations, provided the Determinations and Findings as modified, support negotiation under any one of the authorities cited in §§ 18-3.201 through 18-3.217. Where the facts continue to support the negotiation but under an exception for which Determination and Findings is not re

quired, cancellation of the Determination and Findings will not require cancellation of the request for proposals or quotations. Where a Determination and Findings is executed by the Administrator or Deputy Administrator, NASA, and is not used, the initiating activity should return the Determination and Findings to the Director of Procurement (Code KDR), explaining the circumstances why the Determination is no longer required.