will be approved only by the Director of Procurement, or his authorized representative.

§ 18-1.109-3 Request for deviations.

Requests for authority to deviate from the provisions of this chapter and other procurement publications shall be submitted to the Procurement Office, NASA Headquarters (Code DKO-1). Such requests shall be signed by the Procurement Officer, or in his absence, the duly appointed Acting Procurement Officer. Such requests shall be submitted as far in advance as the exigencies of the situation will permit. Each request for a deviation shall contain as a minimum:

(a) Identification of the NASA Procurement Regulation requirement from which a deviation is sought;

(b) A full description of the deviation and the circumstances in which it will be used;

(c) A description of the intended effect of the deviation;

(d) A statement as to whether the deviation has been requested previously, and, if so, circumstances of the previous request;

(e) The name of the contractor and identification of the contract affected, including the dollar value; and

(f) Detailed reasons supporting the request, including any pertinent background information which will contribute to a fuller understanding of the deviation sought.

[39 FR 13074, Apr. 11, 1974]

§ 18-1.109-50 Modification to existing contracts for new procurement.

(a) When an existing contract is modified to add new procurement, approval of the deviations previously granted for the existing contract must be obtained for the modificatioin as though the modification were a new contract. New procurement for the purpose of this section shall be considered any action which requires the citation of an authority to negotiate.

(b) An information copy of each request for deviation shall be furnished the cognizant Program Director.

§ 18-1.110 Reports of contracts.

(a) Special reports concerning NASA contracts prescribed by NASA Headquarters are designed to meet statutory and other congressional requirements, requirements of other Federal agencies, and to provide all levels of management

(a) Unless bids or proposals are genuinely competitive, contract prices tend to be higher than they should be. If the Administrator, NASA, or his representative considers that any bid received after formal advertising evidences a violation of the antitrust laws, he is required by 10 U.S.C. 2305 (d) to refer such bids to the Attorney General of the United States for appropriate action (see § 18-2.404-1(b) (4)). Similarly, evidence of such violations in negotiated procurements will be referred to the Attorney General. (see § 18-3.215-2). Practices which are designed to eliminate competition or restrain trade and which may evidence possible violations of such laws include collusive bidding, follow-theleader pricing, rotated low bids, uniform estimating systems, sharing of the business, identical bids, or similar actions.

(b) When bids or proposals are received and, in the opinion of the contracting officer, are indicative of possible antitrust violations, he shall report such circumstances to the General Counsel, NASA Headquarters, through the Procurement Office (Code DKP-1). Reports of such bids or proposals should not be submitted automatically, but only when there is some reason to believe that those bids or proposals may not have been arrived at independently. Such reports shall be submitted with conformed copies of bids or proposals, contract documents, and other supporting data, and shall set forth:

(1) The noncompetitive pattern or situation under consideration;

(2) Purchase experience in the same product or service for a reasonable period of time (one or more years) prior to the receipt of the bids or proposals under consideration, including unit and

(a) Since NASA is governed by the same procurement law as the Department of Defense (Chapter 137, Title 10, U.S.C.), and both agencies deal to a considerable extent with the same segment of industry, it is NASA policy to prescribe procurement regulations which, to the maximum practicable extent, are consistent with policies and procedures adopted by the Department of Defense in the ASPR.

(b) NASA and the General Services Administration have also reached agreement concerning the relationship between the FPR and the NASA Procurement Regulation. NASA has agreed to participate in the publication program established by the FPR system. Therefore, the NASA Procurement Regulation will be published in Chapter 18 of Title 41 of the Code of Federal Regulations and will utilize the numbering system employed by the FPR.

§ 18-1.113 Code of conduct.

§ 18-1.113-1 Government personnel.

(a) A number of Federal statutes prohibit certain acts by Government personnel and special Government employees as defined in 18 U.S.C. 202 in relation to procurement activities for the Government. Among these statutes are the following: (1) 18 U.S.C. 201 re

lating to bribes in order to secure a Government contract; (2) 18 U.S.C. 203 relating to compensation for services rendered in connection with any proceeding or claim in which the United States has an interest; (3) 18 U.S.C. 205 relating to acting as an agent or attorney for prosecuting any claim against the United States; (4) 18 U.S.C. 208 relating to transacting business as an officer or agent of the United States with firms of which such officer or agent, his spouse, minor child, or partner is an official or in which he has a pecuniary interest; and (5) of 18 U.S.C. 209 relating to compensation from non-Government sources in connection with Government services. These statutory prohibitions, and their application to NASA personnel, are discussed in NASA Management Instruction 1910.1 "Conflict of Interest Statutes", NASA Management Instruction 1930.1 "Gifts and Gratuities", and NASA Management Instruction 1940.1 "Financial Interests and Investments". All NASA personnel involved in procurement actions shall become familiar with these statutory prohibitions. Any questions concerning them shall be referred to legal counsel. In addition to criminal penalties, the statutes provide that transactions entered into in violation of these prohibitions are voidable (18 U.S.C. 218).

(b) Aside from such statutory prohibitions, as set forth in paragraph (a) of this section, procurement personnel shall maintain the highest standards of conduct in connection with dealings on behalf of the Government. Such conduct must at all times be beyond reproach and must be such that each individual involved in NASA procurement activities would have no reticence in making a full public disclosure of all actions taken in connection with such activities.

§ 18-1.113-2 Organizational

of interest.

conflicts

(a) It is NASA policy to avoid situations in the procurement process where, by virtue of work or services performed for NASA, or as the result of data acquired from NASA or from industry, a particular company:

(1) Is given an unfair competitive advantage over other companies in respect to future NASA business;

(2) Is placed in a position to affect Government actions under circumstances in which there is danger that the company's judgment may be biased; or

(3) Otherwise finds that a conflict exists between the performance of work or services for the Government in an impartial manner and the company's own self-interest.

(b) It has been NASA's experience that conflicts of this type occur most frequently in circumstances where onsite contractors provide support services involving either (1) the preparation of specifications or statements of work to be incorporated into a solicitation of bids or proposals on subsequent procurements, or (2) access to the proprietary data of other companies. In such circumstances, the following clause shall be used in both the solicitation and the ensuing contract:

LIMITATION ON FUTURE CONTRACTING
(JULY 1971)

(a) It is agreed by the parties to this contract that the Contractor will be restricted in its future contracting with NASA to the manner described below. Except as specifically provided in this clause, the Contractor shall be free to compete for NASA business on an equal basis with other companies.

(b) If the Contractor, under the terms of this contract, or through the performance of tasks pursuant to this contract, is required to develop specifications or statements of work and such specifications or statements of work are to be incorporated into a solicitation, the contractor shall be ineligible to perform the work described within that solicitation as a prime or first tier subcontractor under an ensuing NASA contract. Such restrictions shall remain in effect for 3 years following the date of the initial solicitation. It is further agreed that NASA will not unilaterally require the Contractor to prepare such specifications or statements of work under this contract.

(c) To the extent that the work under this contract requires access to proprietary, business confidential, or financial data of other companies, and as long as such data remains proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies.

(d) The restrictions of paragraph (b) above may be waived by the Contracting Officer if it is determined that such restrictions would be detrimental to the NASA program. The waiver provision in paragraph (d) of the clause may be exercised by the contracting officer only after receiving written approval from the Director of Procurement, NASA Headquarters. Unless the circumstances of paragraphs (b) or (c) of the clause are present, the fact that a contractor will perform research and development work under a support service contract is not reason for inclusion of the clause: Provided, That if the

circumstances of paragraphs (b) or (c) of the clause are introduced by a task order which is to be issued under a contract whose general scope would not have otherwise required the clause, the clause will be incorporated in the basic contract prior to issuance of the task order.

(c) In those cases where the contracting officer determines that a potential organizational conflict of interest exists which is not covered by the above clause, he shall prepare a written analysis of the facts of the case, clearly indicating the area of concern and the nature of the potential conflict, together with a proposed clause appropriately restricting subsequent contracting. The proposed clause and supporting written analysis shall be forwarded to the Procurement Officer for approval in those cases where the installation has final authority for contractor source selection, and to the Director of Procurement, NASA Headquarters (Code KDR) in those cases where NASA Headquarters retains such authority. When approved, the clause shall be included in the solicitation and in the resulting contract.

(d) The rules for avoidance of organizational conflict, as such, do not impose any contractual obligation on the contractor. Such obligation is imposed only by the contract clause designed to carry out such rules. The contracting officer shall not impose restrictions on any contractor in reliance on these rules in the absence of a specific contractua agreement with the contractor.

(e) In no case shall the contract contain a provision deferring the determination of the applicability of these rules to a time after the contract has been awarded, and no contract shall contain an exclusion affecting subsequent contracting which is not terminated on a specific date, or an event certain. [36 F.R. 25102, Dec. 29, 1971]

§ 18-1.114 Reporting of identical bids. (a) General. Executive Order 10936 dated April 24, 1961, as implemented by the Department of Justice, requires a report to be submitted to the Attorney General on each formally advertised procurement (including small business restricted advertising) over $10,000 which involves identical bids. Identical bids are two or more bids for the same line item which:

(1) Are identical on their face (regardless of such evaluation factors as

discount, transportation, etc.) either as to unit price or total line item amount; or (2) Are identical as evaluated as to either unit price or total line item amount.

A line item is an item of supply or service which independently can be made the subject of an award by the Government. However, the reporting requirements herein established for line items shall be applicable to invitations calling for line item bidding even though the invitations or bids contained qualifying or restrictive limitations on award (e.g., all or none bids or award on one item being conditioned on award of other items). This reporting requirement is in addition to the reports required by § 18-1.111.

(b) Information to be obtained from bidders. Each invitation for bids for a procurement estimated to exceed $10,000 will include substantially the following: PARENT COMPANY AND EMPLOYER IDENTIFICATION NUMBER (MARCH 1963)

(a) Bidder represents that he is, is not, owned or controlled by a parent company. For this purpose a parent company is defined as one which either owns or controls the activities and basic business policies of the bidder. To own another company means the parent company must own at least a majority (more than 50 percent) of the voting rights in that company. To control another company such ownership is not required; if another company is able to formulate, determine or veto basic business policy decisions of the bidder, such other company is considered the parent of the bidder. This control may be exercised through the use of dominant minority voting rights, use of proxy voting, contractual arrangements, or otherwise.

(b) If the bidder is owned or controlled by a parent company, insert in the space below the name and main office of the parent company.

(c) Bidder will provide in the applicable space below, if he has no parent company, his own Employer's Identification Number (E.I. No.) (Federal Social Security Identification Number as used on Federal Tax Return); or, if he has a parent company, the E.I. No. of his parent company. Bidder's E.I. No_.

Parent Company's E.I. No----

If a bidder fails to provide the above information on an invitation for bids and if identical bids are involved, one inquiry will be made in an effort to obtain the information. Failure to provide information concerning the parent company or

the employer's identification number is not a basis for rejection of bids.

(c) Reportable bids. An identical bid report shall be submitted when identical bids are received and the bid value of all line items covered by the invitation for bids exceeds $10,000 (based on the apparent low bid for each line item) except that reports will not be submitted when:

(1) They were the low bids;

(2) Award is made on the line item; (3) The invitation was canceled; or (4) Any other disposition was made subsequent to public opening of the bids.

(d) Submission of reports. Identical bid reports shall be submitted for all reportable bids on Department of Justice Form DJ-1500 (Federal Stock No. 7540– 823-7870), available from General Services Administration stores depots. Instructions for filling out this form are printed as the cover sheet of each pad of these forms. Reports shall be made within 20 days following the disposition of all of one or more contracts or other action. Two completed copies of the report, a copy of the invitation for bids and a copy of the completed abstract of bids shall be sent to the Attorney General, Ref: AT-IBR, Washington, D.C. 20530. The abstract of bids need not be furnished when the number of line items on an invitation exceeds 100; in which event, the identical bid report shall be annotated to indicate (1) the number of line items, and (2) the number of bidders on the invitation. A copy of the identical bid report shall be retained by the purchasing activity.

(e) Completion of reports. All bids for each line item on which reportable identical bids have been disclosed shall be reported regardless of whether the identical bids were the low bids. Reports are required on reportable identical bids regardless of whether an award is made on the line item, the invitation is canceled, or any other disposition is made subsequent to the public opening of the invitation.

[36 F.R. 21454, Nov. 10, 1971]

§ 18-1.115 Noncollusive bids and proposals.

(a) In order to promote full and free competition for Government contracts, the following certification shall be included in all (1) invitations for bids and (2) requests for proposals or quotations (other than for small purchases made in accordance with Subpart 18-3.6 of this

chapter and other than requests for technical proposals in connection with twostep formal advertising) involving firm fixed-price contracts and fixed-price contracts with escalation. When the solicitation authorizes the submission of oral offers and requires that such offers be confirmed in writing, it shall require that the certification be included with or be expressly incorporated by reference in and thereby made a part of the confirmation:

CERTIFICATE OF INDEPENDENT PRICE
DETERMINATION (JUNE 1964)

(a) By submission of this bid or proposal, each bidder or offeror certifies, and in the case of a joint bid or proposal, each party thereto certifies as to his own organization, that in connection with this procurement:

(1) the prices in this bid or proposal have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or offeror or with competitor:

any

(2) unless otherwise required by law, the prices which have been quoted in this bid or proposal have not been knowingly disclosed by the bidder or offeror and will not knowingly be disclosed by the bidder or offeror prior to opening, in the case of a bid, or prior to award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor; and

(3) no attempt has been made or will be made by the bidder or offeror to induce any other person or firm to submit or not to submit a bid or proposal for the purpose of restricting competition.

(b) Each person signing this bid or proposal certifies that:

(1) he is the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein and that he has not participated, and will not participate, in any action contrary to (a) (1) through (3) above; or

(2) (a) he is not the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein but that he has been authorized in writing to act as agent for the persons responsible for such decision in certifying that such persons have not participated, and will not participate, in any action contrary to (a) (1) through (3) above, and as their agent does hereby so certify; and (b) he has not participated, and will not participate, in any action contrary to (a) (1) through (3) above.

(c) This certification is not applicable to a foreign bidder or offeror submitting a bid or proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico.

(d) A bid or proposal will not be considered for award where (a) (1), (3), or (b) above has been deleted or modified. Where (a) (2) above has been deleted or modified, the bid or proposal will not be considered for award unless the bidder or offeror furnishes with the bid or proposal a signed statement which sets forth in detail the circumstances of the disclosure and the Administrator, or his designee, determines that such disclosure was not made for the purpose of restricting competition.

(b) The fact that a firm (1) has published price lists, rates, or tariffs covering items being procured by the Government, (2) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (3) has sold the same items to commercial customers at the same prices being offered the Government does not constitute, without more, a disclosure within the meaning of paragraph (a) (2) of the certificate.

(c) It is not required that a separate written authorization be given to the signer of the bid or proposal for each procurement involved where the signer makes the certification provided in paragraph (b) (2) of the certificate: Provided, That with respect to any blanket authorization given, (1) the procurement to which the certificate applies is clearly within the scope of such authorization, and (2) the person giving such authorization is the person responsible within the bidder's or offeror's organization for the decision as to the prices being bid or offered at the time the certificate is made in a particular procurement.

(d) After the execution of an initial certificate and the award of a contract in connection therewith, the contractor need not submit additional certificates in connection with proposals submitted on "work orders" or similar ordering instruments issued pursuant to the terms of that contract, where the Government's requirements cannot be met from another source.

(e) The authority to make the determination described in paragraph (d) of the above certification shall be exercised by the head of the installation or his deputy.

(f) Where a certification is suspected of being false or there is indication of collusion, the matter shall be processed in accordance with § 18-1.111. For rejection of bids which are suspected of being collusive and for the negotiation of pro