presolicitation, evaluation, and preaward

survey.

(b) Where purchases of major items are involved or where a procurement office deems it desirable, it should request appropriate information (on both the end item and on major subcontracted components) from other procurement offices responsible for buying similar items. Each office receiving such requests shall furnish the information requested. The contracting officer, early in a negotiation of a contract, or in connection with the review of a subcontract, shall request the contractor to furnish information as to the contractor's or subcontractor's previous Government contracts and subcontracts for the same or similar end items and major subcontractor components. [36 F.R. 21455, Nov. 10, 1971]

§ 18-1.304 Restrictions on data and other information.

§ 18-1.304-1 Selection of items involving proprietary data.

In some cases the procurement of an item would involve proprietary data (see § 18-9.201(b)) or other factors which would restrict sources of procurement or limit competition, but alternative items may be procured which would meet the needs of NASA. In such cases, consideration will be given, in selecting the item to be procured, to the relative advantages for aeronautical and space purposes of the item which involves such proprietary data or other factors as against the disadvantages of a restricted source of supply and possibly increased cost to the Government because of lack of competition. However, when a particular item best meets the needs of NASA, the contracting officer will not refrain from procuring the item solely because it would involve such restrictions or limitations

§ 18-1.304-2 Treatment of technical data.

(a) General. Technical data (such as plans, designs, suggestions, improvements or concepts) acquired by NASA may have been obtained under conditions which restrict NASA's right to use the data. Therefore, care must be taken when considering the use of technical data to assure that NASA has sufficient rights to use the data in the manner desired. One of the principal ways in which NASA receives technical data is by means of proposals. NASA has a continuing interest in receiving and evaluating proposals which are pertinent to its potential

needs in carrying out its objectives and missions. Some proposals are offered and received under conditions which may prevent NASA from using the technical data contained therein other than for evaluation purposes. Proposals received by NASA are of two types-solicited and unsolicited.

(b) Definitions—(1) Unsolicited proposal. An unsolicited proposal is a written offer to perform work which does not result from (i) a formal written request for proposals or quotations, or (ii) an oral quotation solicited under the small purchase procedures (§ 18-3.604-2).

(2) Solicited proposal. A solicited proposal is a written offer to perform work which results from (i) a formal written request for proposals or quotations, or (ii) an oral quotation solicited under the small purchase procedures (§ 18-3.604-2) by NASA.

(c) Policy for unsolicited proposals. It is the policy of NASA to use technical data included in unsolicited proposals for evaluation purposes only. However, due to the administrative problems involved in handling the large number of unsolicited proposals received, the Government cannot assume liability for disclosure or use of such technical data unless it is marked by the submitter in accordance with the following requirements. Each proposal containing technical data, which the submitter intends to be used by NASA for evaluation purposes only, should be marked on the cover sheet with the following legend and shall specify the pages of the proposal to be restricted in accordance with the conditions of the legend:

Technical data contained in pages

of this proposal shall not be used or disclosed, except for evaluation purposes: Provided, That if a contract or grant is awarded to this submitter as a result of or in connection with the submission of this proposal, the Government shall have the right to use or disclose this technical data to the extent provided in the contract or grant. This restriction does not limit the Government's right to use or disclose technical data obtained from another source without restriction (October 1969).

Contracting officers and other Government personnel shall not refuse to consider any proposal merely because the proposal is restrictively marked. Proposals, or portions thereof, so marked shall be used only for evaluation and shall not otherwise be used or disclosed without the written permission of the submitter except under the conditions

provided in the legend. In the event an unsolicited proposal is submittetd with more restrictive conditions than that provided in the legend above, NASA may be unable to consider it, in which case the submitted should be so advised, see § 18-1.304-2(f) (2).

(d) Policy for solicited proposals. NASA recognizes that requests for pro posals may require the offeror, including his subcontractors, if any, to submit technical data which the offeror or his subcontractor does not want used or disclosed for any purpose other than evaluation of the proposal. Each proposal containing technical data which the offeror or his proposed subcontractors desires to restrict shall be marked on the cover sheet with the legend set forth in paragraph (c) of this section, specifying the pages of the proposal to be restricted in accordance with the conditions of the legend. Proposals, or portions thereof, so marked shall be used only for evaluation and shall not otherwise be used or disclosed without the written permission of the submitter except under the conditions provided in the legend. NASA assumes no liability for disclosure or use of unmarked technical data in solicited proposals and may use or disclose the data for any purpose. See § 18-3.501(b) (45) for language to be inserted in the RFP.

(e) NASA notice for handling proposals. In order to assure that both unsolicited and solicited proposals are handled in accordance with the policies set forth in paragraphs (c) and (d) of this section, the following notice shall be affixed to each unsolicited proposal upon receipt by NASA, and to each solicited proposal if the solicited proposal is to be disclosed outside the Government for NASA evaluation purposes in accordance with the policies and procedures set forth in paragraph (f) of this section. Application of the following notice in no way alters any obligation of the Government, nor diminishes any rights in the Government to use or disclose technical data or business information.

NASA NOTICE FOR HANDLING PROPOSALS
(OCTOBER 1969)

This proposal shall be used, or duplicated, only for NASA evaluation purposes and this notice shall be applied to any reproduction or abstract thereof.

Disclosure of this proposal outside the Government for NASA evaluation purposes shall not be made unless the policy and procedures prescribed by NASA Procurement

Regulation 1.304-2(1), including the requirements for approval and for an arrangement with the outside evaluator prior to disclosure, are followed.

The restrictions contained in this notice do not apply to technical data or business information obtained from another source without restriction.

(f) Disclosure of solicited and unsolicited proposals outside Government— (1) Policy. It is the policy of NASA to have proposals evaluated by the most competent technical and management sources available in NASA and the Jet Propulsion Laboratory (JPL), see § 183.804-4. Proposals being considered by a Source Evaluation Board will be handled in accordance with paragraph 305 of the Source Evaluation Board Manual (NPC 402). Proposals being considered for flight experiments by the Space Science and Applications Steering Committee and the Manned Space Flight Experiments Board will be handled in accordance with NMI 7100.1, "Conduct of Space Science Programs-Selection and Support of Scientific Investigations and Investigators," dated April 29, 1964. However, in processing a proposal for evaluation by Board, Committee, or otherwise, NASA may find in some instances that it is necessary to disclose a proposal outside the Government to meet its evaluation needs. Such outside evaluation may be made, provided the requirements in subparagraphs (2) and (3) of this paragraph are met.

(2) Approval. Decisions in NASA Headquarters to disclose solicited proposals outside the Government (or JPL) for NASA evaluation purposes shall be made by the Director, Headquarters Contracts Division, and at NASA field installations by the Procurement Officer. The decision to disclose either a solicited or unsolicited proposal outside the Government (or JPL) for the purpose of obtaining a NASA evaluation shall take into consideration the NASA Rules for the Avoidance of Organizational Conflicts of Interest (Appendix G) and the competitive relationship between the originator of the proposal and the prospective outside evaluator. In addition, should a solicited or unsolicited proposal under consideration contain a restrictive use legend or statement other than that prescribed in § 18-1.304-2(c), the legend or statement should be reviewed to assure that it does not preclude NASA from disclosing the proposal outside of the Government (or JPL) for purposes of

obtaining a NASA evaluation. In the event NASA is so precluded and an outside evaluation is nevertheless desired, the submitter should be advised that NASA may be unable to consider the proposal unless the submitter consents in writing to having the proposal evaluated outside the Government.

(3) Agreement with evaluator. Where it is determined to disclose a proposal outside the Government pursuant to subparagraph (2) of this paragraph, the following agreement, or a similar appropriate arrangement for the treatment of the proposal, shall be obtained from the recipient prior to such disclosure. Also, review should be made to assure that the NASA notice required by paragraph (e) of this section is affixed to the proposal before it is disclosed to the evaluator.

CONDITIONS FOR EVALUATING PROPOSALS
(OCTOBER 1969)

Whenever NASA furnishes a proposal for evaluation, the recipient agrees to use the technical data and business information contained in the proposal only for NASA evaluation purposes.

This requirement does not apply to technical data or business information obtained from another source without restriction.

Any notice or legend placed on the proposal by either NASA or the originator of the proposal shall be applied to any reproduction or abstract thereof. Upon completion of the evaluation, the recipient shall return all copies of the proposal and abstracts, if any, to the NASA office which initially furnished the proposal for evaluation.

Unless authorized by the NASA initiating office, the recipient shall not contact the originator of the proposal concerning any aspect of its contents.

(g) Evaluation and testing of equipment and material. Should evaluation of a proposal include the evaluation and testing of equipment or material, neither the Government nor any person acting on behalf of the Government assumes any liability to the submitter of the proposal, or any person acting on his behalf, in connection with any damage, loss, injury, or destruction resulting from such evaluation and testing. Nothing contained herein shall preclude the Government from asserting any action against the submitter or any person acting on his behalf arising out of the above circumstances.

§ 18-1.304-3 Technical and other data involved in formal advertising.

See § 18-2.404-4.

20-130-74- -3

(a) The time of delivery or of performance is an essential element of a contract and must be clearly set forth in invitations for bids and requests for proposals. Time schedules for delivery or performance shall be designed to meet the requirements of the particular procurement, all relevant factors considered, and must be realistic. Schedules which are unreasonably tight or difficult of attainment tend to restrict competition, are inconsistent with small business policies, and may result in higher contract prices. Therefore, before issuing an invitation for bids or request for proposals, the contracting offieer shall question any delivery or performance schedule which appears unrealistic, and, if necessary, initiate action to make appropriate adjustments, with due attention to relevant factors including the following:

(1) Urgency of need for the supplies or services;

(2) Production time in view of quantity, complexity of design, etc.; (3) Market conditions; (4) Transportation time; (5) Industry practices;

(6) Capabilities of small business concerns;

(7) Time for obtaining and evaluating bids or offers, and for awarding contracts;

(8) Time for contractors to comply with any conditions precedent to performance; and

(9) Time for the Government to perform its obligations under the contract (e.g., furnishing of Government prop

(a) Delivery schedules may be expressed in terms of:

(1) Specific calendar dates (e.g., on or before July 1, 1970);

(2) Specified periods from date of contract (i.e., date of award or acceptance by the Government, or date shown on contract document as effective date of contract); or

(3) Specified periods from date of receipt by contractor of notice of award or acceptance by the Government (including notice by receipt of contract document executed by the Government). The full period which the Government holds out as being available for contract performance should not be curtailed to the prejudice of the contractor by delay in giving notice of award. Accordingly, one of the provisions in paragraph (b) or (c) of this section shall be used in advertised procurements and may be suitably modified and used in appropriate negotiated procurements (other than small purchases).

(b) Where the delivery schedule is in terms of specific calendar dates, invitations for bids shall include one of the following provisions:

(1) The foregoing delivery requirements are based on the assumption that the Government will make award by (contracting officer, insert calendar date). Each delivery date in the delivery schedule set forth herein will be extended by the number of calendar days after the above date that the contract is in fact awarded. Attention is directed to paragraph 10(d) of the Solicitation Instructions and Conditions, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Therefore, in computing the available time for performance, the bidder should take into consideration the time required for notice of award to arrive through the ordinary mails. (July 1968)

(ii) The foregoing delivery requirements are based on the assumption that the suc

cessful bidder will receive the notice of award by (contracting officer, insert calendar date). The Government will extend each delivery date in the delivery schedule set forth herein by the number of calendar days after the above date that the contractor receives notice of award: Provided, That the contractor promptly acknowledges such receipt. (February 1962)

(c) Where the delivery schedule is based on the date of contract (see paragraph (a) (2) of this section), the invitations for bids will include the following provision:

Attention is directed to paragraph 10(d) of the Solicitation Instructions and Conditions, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Any award hereunder, or a preliminary notice thereof, will be mailed or otherwise furnished to the bidder the day the award is dated. Therefore, in computing the time available for performance, the bidder should take into consideration the time required for the notice of award to arrive through the ordinary mails. However, a bid offering delivery based on date of receipt by the contractor of the contract or notice of award (rather than the contract date) will be evaluated by adding the maximum number of days normally required for delivery of the award through the ordinary mails. If, as so computed, the delivery date offered is later than the delivery date required in the invitation, the bid will be considered nonresponsive and rejected. (July 1968)

(d) Where the delivery schedule is based on the date of the contract (see paragraphs (a) (2) and (c) of this section), the contract, notice of award, acceptance of proposal, or other contract document executed by the Government shall be mailed or otherwise furnished the contractor on the day it is dated.

(e) Where the delivery schedule is based on date of receipt by the contractor of notice of award (see paragraph (a)(3) of this section), or where it is expressed in terms of specific calendar dates on the assumption that notice of award will be received by a specified date (see paragraph (b) (2) of this section), the notice of award, acceptance of proposal, or other contract document executed by the Government shall be sent by certified mail, return receipt requested, or shall be accompanied by a date of receipt acknowledgment card.

(f) When the required delivery schedule in the invitations for bids is based on date of the contract (see paragraph (a) (2) of this section), a bid offering delivery based on date of receipt by the

contractor of the contract or notice of award (see paragraph (a)(3) of this section):

(1) Shall be evaluated by adding the maximum number of days normally required for delivery of the award through the ordinary mails; and

(2) If the delivery date offered by the bid (computed in accordance with subparagraph (1) of this paragraph) is later than the delivery date required in the invitation for bids, the bid shall be considered nonresponsive and rejected; but

(3) If award is made under subparagraph (1) of this paragraph, under the terms of the contract the delivery date will be the number of days, after actual receipt by the contractor of the notice of award, which were specified in the bid. § 18-1.305-4 Time of delivery clauses.

(a) Examples of time of delivery clauses for invitations for bids are set forth in paragraphs (b) and (c) of this section. They may be modified or other clauses may be used to state particular delivery requirements or any special procedures to be used in the evaluation, rejection, or award process as regards time of delivery. These clauses also may be suitably modified and used as appropriate in negotiated procurements.

(b) The following clause may be used where delivery by a particular time is essential to meet the Government's requirements:

TIME OF DELIVERY (FEBRUARY 1962) Delivery is required to be made in accordance with the following schedule:

Bids offering delivery or each quantity within the applicable delivery period specified above will be evaluated equally as regards time of delivery. Bids offering delivery of a quantity under such terms or conditions that delivery will not clearly fall within the applicable delivery period specified above will be considered nonresponsive and will be rejected. Where a bidder offers an earlier delivery schedule than that called for above, the Government reserves the right to award either in accordance with the required schedule or in accordance with the schedule offered by the bidder. If the bidder offers no other delivery schedule, the delivery schedule stated above shall apply.

(d) In the blank spaces entitled "Time" under the clauses set forth in paragraphs (b) and (c) of this section, the contracting officer shall insert one of the following phrases, as appropriate: