Solicitations shall generally indicate either a desired term of performance or a completion date. In cases where development of a tangible item by a given date is urgent, solicitations shall indicate such urgency. Generally, solicitations to conduct research and exploratory development work will specify a level of effort for a term of performance. However, solictations calling for a specific item in the category of such exploratory or advanced development will specify a completion date. A contractor may propose an alternate term of performance or completion date without disqualification of his proposal.

§ 18-1.306 Approval signature.

Approval signatures on contracts or purchase authorizations shall be minimized to the greatest practical extent and, in the event that multiple approval signatures are required, they shall, where possible, be obtained concurrently.

§ 18-1.307 Priorities, allocations, and allotments.

§ 18-1.307-1 NASA program.

(a) General. In the interest of maintaining a minimum priorities and allocations system as a mobilization preparedness measure, it is national policy to require contractors to use ratings and allotment authority to support NASA procurement, to the extent required by the Bureau of Domestic Commerce (BDC). In addition to the procurement and construction of the Department of Defense, the Office of Emergency Preparedness has authorized the BDC to provide priorities authority for all procurement and construction programs of NASA. The Department of Defense is the claimant agency to the Office of Emergency Preparedness for NASA.

(b) Implementation. Department of Defense implementation of all rules and

regulations published by BDC with respect to which the Department of Defense is delegated administrative responsibility, is contained in the DOD Priorities and Allocations Manual. NASA implementation is published in Part

18-52.

(c) Operating responsibility. NASA installations shall comply with the priorities and allocations program, including the Defense Materials System, as set forth in:

(1) The DOD Priorities and Allocations Manual;

(2) The rules and regulations published by BDC; and

(3) Instructions set forth in Part 18-52.

[36 F.R. 25102, Dec. 29, 1971]

§ 18-1.307-2 Required use of priorities, allocations, and allotments clause.

The clause set forth below shall be inserted in or attached to all ratable contracts, except that no such clause need be attached to those purchase orders of less than $500 which are not rated. Ratable contracts are those contracts for supplies which are required to be supported with rating and allotment authority (see the DOD Priorities and Allocations Manual).

PRIORITIES, ALLOCATIONS, AND ALLOTMENTS (OCTOBER 1971)

The contractor shall follow the provisions of DMS Reg. 1 and all other applicable regulations and orders of the Bureau of Domestic Commerce in obtaining controlled materials and other products and materials needed to fill this order.

[36 F.R. 25102, Dec. 29, 1971]

§ 18-1.307-3 Inadequate response to solicitations.

(a) In accordance with the policies and procedures of the Priorities and Allocations System rated contracts and purchase orders or Authorized Controlled Material Orders may be placed on selected suppliers when adequate response to a solicitation is not received. Therefore, when there are no bids or proposals received as a result of a solicitation or if the bids or proposals received do not cover the entire requirement, normal procurement procedures shall be followed in attempting to locate sources, to the extent exigencies of the procurement will permit. If such efforts are unsuccessful, and it is determined at this point in time that the procurement must

be accomplished, then rated orders in the form of rated contracts, rated purchase orders or an Authorized Controlled Material Order shall be presented, to one or more (as appropriate) selected suppliers or manufacturers qualified to produce the item or material. This will be accomplished by a cover letter signed by the contracting officer, citing the requirements of the Defense Production Act and BDC Regulation 2, and requesting timely acceptance thereof by the contractor. The letter shall also request that any reasons for rejection be promptly furnished in writing, as required by the BDC Regulations. Rated orders will be placed pursuant to appropriate negotiation authority. Contracts and purchase orders shall contain, as a minimum, the following information in addition to normal contractual requirements to be a valid rated order:

(1) DO or DX rating on contracts or purchase orders as appropriate;

(2) DMS allotment number on Authorized Controlled Material Orders;

(3) Certification "Certified for National Defense Use Under DMS Reg. 1 or BDC Reg. 2 (as appropriate);”

(4) Delivery schedule; and

(5) Signature.

(b) Rated orders or Authorized Controlled Material Orders which are rejected by suppliers shall be forwarded to BDC through appropriate priorities assistance channels, for such action as BDC considers appropriate.

[36 F.R. 25102, Dec. 29, 1971]

§ 18-1.308 Documentation of Procurement Actions; Maintenance and Disposition of Contract Files.

(a) Each office performing procurement and contract administration functions shall maintain official records of all actions with respect to solicitations and contracts in accordance with the provisions of this § 18-1.308, except that the application of these provisions to small purchases and other simplified procurements covered by Subpart 18-3.6, is optional. The Procurement Officer shall be responsible for the establishment, currency, completeness, and review of this documentation, and for its final disposition, in accordance with Supplement 2 of this chapter entitled "Contract File Maintenance, Closeout, and Disposition."

(b) The combination of official contract files listed in S2.101 shall contain documentation of all actions taken with respect to the contract, including final

disposition, sufficient to constitute a full history of the transaction and permit ready reconstruction of all stages of the transaction, for the purposes of (1) providing a complete background to assure informed decisions at each step in the procurement, (2) supporting actions taken by personnel in the procurement cycle, (3) providing information for reviews and investigations conducted by the field installations, NASA Headquarters, the General Accounting Office, or others, and (4) furnishing essential facts in the event of litigation or Congressional inquiries.

[36 F.R. 25103, Dec. 29, 1971] § 18-1.309

Solicitations for information or planning purposes.

It is the general policy of the NASA to solicit bids, proposals or quotations only where there is a definite intention to award a contract or purchase order. However, in some cases solicitation for informational or planning purposes may be justified. Invitations for bids and requests for proposals will not be used for this purpose. Requests for quotations may be issued for informational or planning purposes only with prior approval of the Procurement Officer. In such cases, the request for quotation shall clearly state its purpose and, in addition, the following statement in capital letters shall be placed on the face of the request: "The Government Does Not Intend To Award a Contract on the Basis of This Request for Quotation, or Otherwise Pay for the Information Solicited." The foregoing does not prohibit the allowance, in accordance with § 18-15.205-3, of the cost of preparing such quotations.

§ 18-1.310 Liquidated damages.

(a) This § 18-1.310 applies to procurement by formal advertising and procurement by negotiation. Liquidated damages provisions normally will not be utilized but may be used where both (1) the time of delivery or performance is such an important factor in the award of the contract that the Government may reasonably expect to suffer damages if the delivery or performance is delinquent, and (2) the extent or amount of such damages would be difficult or impossible to ascertain or prove. Where a liquidated damages provision is to be used in a supply or service contract, insert the clause as prescribed by § 18-7.105-5.

(b) When a liquidated damages clause is used, the contract shall set forth the

amount which is to be assessed against the contractor for each calendar day of delay. The rate of assessment of liquidated damages must be reasonably considered in the light of procurement requirements on a case-by-case basis, since liquidated damages fixed without reference to probable actual damages may be held to be a penalty and therefore unenforceable. If appropriate to reflect the probable damages, considering that the Government can terminate for default or take other appropriate action, the rate of assessment of liquidated damages may be in two or more increments which provide a declining rate of assessment as the delinquency continues. The contract may also include an overall maximum dollar amount or period of time, or both, during which liquidated damages may be assessed, to assure that the result is not an unreasonable assessment of liquidated damages.

(c) The law imposes the duty upon a party injured by another to mitigate the damages which result from such wrongful action. Therefore, where a liquidated damages provision is included in a contract and a basis for termination for default exists, appropriate action should be taken expeditiously by the Government to obtain performance by the contractor or to terminate the contract. If delivery or performance is desired after termination for default, efforts must be made to obtain either delivery or performance elsewhere within a reasonable time. For these reasons, particularly close administration over contracts containing liquidated damages provisions is imperative.

(d) Whenever any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the Administrator, is authorized and empowered to remit the whole or any part of such damages as he may consider to be just and equitable. Recommendations concerning remissions of liquidated damages will be forwarded by the contracting officer, with appropriate documentation, via the head of the field installation to the Director of Procurement for submission to the Administrator.

[35 F.R. 18803, Dec. 11, 1970, as amended at 36 F.R. 21455, Nov. 10, 1971]

§ 18-1.311 Buying in.

"Buying In" refers to the practice in procurements involving price competition, of attempting to obtain a contract award by knowingly offering a price less

than anticipated costs with the expectation of either (a) increasing the contract price during the period of performance through change orders or other means, or (b) receiving future "follow-on" contracts at prices high enough to recover any losses on the original "buy-in” contract. Such a practice is not favored since its long term effects may diminish competition and it may result in poor contract performance. Where there is reason to believe that "buying in" has occurred, contracting officers shall assure that amounts thereby excluded in the development of the original contract price are not recovered in the pricing of change orders or in follow-on procurements subject to cost analysis.

§ 18-1.312 Voluntary refunds.

(a) General. A voluntary refund is a payment or credit, not required by any contractual or other legal obligation, made to the Government by a contractor or subcontractor either as a payment or as an adjustment under one or more contracts or subcontracts. It may be unsolicited or it may be made in response to a request by the Government. Where it is desired to solicit a voluntary refund from a subcontractor, the prime contractor should be encouraged to facilitate the making of such refund. In deciding whether to solicit a voluntary refund or to accept an unsolicited refund, the contracting officer shall ask legal counsel to review the contract or contracts and all data relevant thereto to determine whether the Government's rights would be jeopardized or impaired by the contracting officer's proposed action.

(b) Solicited refunds. Voluntary refunds may be requested during or after contract performance. They shall be requested only when it is considered that the Government was overcharged under a contract or was inadequately compensated for the use of Government-owned property or in the disposition of contractor inventory, and retention by the contractor or subcontractor of the amount in question would be contrary to good conscience and equity. Generally, retention by the contractor or subcontractor shall not be considered contrary to good conscience and equity, and thus a voluntary refunds shall not be requested, unless the overcharge or inadequate compensation was due, at least in part, to the fault of the contractor or subcontractor. The decision to solicit a

voluntary refund shall be made by the Deputy Administrator or his designee after coordination with the Director of

Procurement.

(c) Disposition of voluntary refunds. (1) If a refund is offered prior to final payment, it is preferable that the contract price be appropriately modified to reflect the refund. In such a case, the amount of the refund shall be credited to the applicable appropriation cited in the contract.

(2) In cases where the refund is to be made by check rather than by an adjustment in the contract price, the check shall be made payable to the National Aeronautics and Space Administration and shall be forwarded immediately to the Financial Management Office of the appropriate installation. When forwarded, the check shall be accompanied by a letter identifying it as a voluntary refund, giving the number of the contract or contracts involved and, where possible, giving the account number of the appropriation to which the refund should be credited.

§ 18-1.314 Disputes and appeals.

(a) When a dispute cannot be settled by agreement and a decision under the "Disputes" clause is necessary, the contracting officer shall review the available facts pertinent to the dispute before making his final decision. When there is any doubt as to whether the issue in dispute is subject to the disputes procedure, a decision will be made pursuant to the "Disputes" clause. The disputes procedure shall not be invoked in cases when a dispute is clearly not subject to the procedure. The contracting officer shall obtain, from assigned legal and other advisors, such advice and assistance as is required to render a decision. The decision must be that of the contracting officer (or his representative if such representative has been authorized by the contracting officer to make final decisions pursuant to the "Disputes" clause); however, prior to making the decision, the contracting officer (or representative authorized to render final decisions) may consult with any other Government personnel involved in the dispute.

(b) The final decision should include a statement of facts sufficient to enable the contractor to understand both the decision and the basis therefor. Normally, the decision should (1) recite the contractor's claim or otherwise describe

the nature of the dispute, with necessary references to pertinent contract provisions; (2) state the facts relevant to the dispute on which the parties are in agreement and, as clearly as possible, the facts on which they are in disagreement; and (3) set forth the contracting officer's decision and the basis therefor.

(c) When a final decision of the contracting officer involves a dispute that is subject to the procedure of a "Disputes" clause, or when there is doubt as to whether the decision is subject to such procedure, a paragraph substantially as follows shall be included in such decision:

This is the final decision of the Contracting Officer on the question involved in this dispute. Decisions on disputed questions of fact and on other questions that are subject to the procedure of the Disputes clause may be appealed in accordance with the provisions of the Disputes clause. If you decide to make such an appeal from this decision, written notice thereof (in triplicate) must be mailed or otherwise furnished to the Contracting Officer within 30 days from the date you receive this decision. Such notice should indicate that an appeal is intended and should reference this decision and identify the contract by number. The NASA Board of Contract Appeals is the authorized representative of the Administrator for hearing and determining such disputes. The Rules of the NASA Board of Contract Appeals are set forth in Appendix A to the NASA Procurement Regulation (34 F.R. 3613-3616, Feb. 28, 1969).

(d) After an appeal has been filed, a controversy may be disposed of by agreement. However, processing of the appeal shall not be suspended by such efforts except upon order, or as otherwise authorized, by the NASA Board of Contract Appeals.

(e) In the event of an appeal, any amount determined to be payable in the decision of the contracting officer, less any portion previously paid, normally should be paid promptly following the contracting officer's decision, without prejudice to the rights of either party in the event of a subsequent appeal. § 18-1.315 ings.

Procurement of jewel bear

(a) Definitions. As used in this paragraph:

(1) "Jewel bearing" means a piece of synthetic sapphire or ruby of any shape, except a phonograph needle, which has one or more polished surfaces and which is suitable for use in an instrument, mechanism, subassembly or part without

any additional processing to the synthetic sapphire or ruby. A jewel bearing may be either unmounted, or mounted into a ring or bushing. Examples of types of jewel bearings are: watch hole-olive, watch hole-straight, pallet stones, roller jewels (jewel pins), end stones (caps), vee (cone) jewels, instrument rings, cups, double cups and orifice jewels.

(2) "Price list" is the official U.S. Government Jewel Bearing Price List for jewel bearings produced by the William Langer Jewel Bearing Plant in Rolla, North Dakota, which is issued periodically by the General Services Administration.

(3) "Plant" means the Governmentowned William Langer Jewel Bearing Plant, Rolla, North Dakota.

(4) "Military standard jewel bearing" means a jewel bearing conforming to Military Specification No. MIL-B-27497 (latest revision) entitled "Bearings, Jewel, Sapphire or Ruby, Synthetic."

(b) Policy. It has been determined that NASA's requirements for jewel bearings must, to the maximum extent practicable, be procured from the Governmentowned William Langer Jewel Bearing Plant, Rolla, North Dakota, which is operated through a contractor by the General Services Administration.

(c) Procedures. (1) All direct Government purchases of jewel bearings shall be made from the plant where it can meet the requirements.

(2) All procurements of items in the Federal Supply Classes and Groups listed in § 18-1.315(d), or any subassembly, component or part, thereof, shall provide that jewel bearings, in the quantities and of the types and sizes (including tolerances) required to produce the end items to be supplied, be purchased from the plant and incorporated in the items delivered by contractor and subcontractor at every tier. To accomplish this, the clause in § 18-1.315 (e) shall be inserted in all contracts for items in paragraph (d) of this section except:

(i) In small purchases using small purchase procedures;

(ii) When the contracting officer knows that the item being procured does not contain jewel bearings;

(iii) When quantity requirements, quality standards, or delivery requirements cannot be satisfied by bearings manufactured by the plant;

(iv) For jewel bearings used in items that are to be procured by a NASA activ

ity outside the United States and the procured items are intended for use outside the United States, its possessions, and Puerto Rico; or

(v) When the urgency of the requirement for all or part of a procurement of a jewelled item is such that delivery of prefabricated end items offers the best possible solution. The required source provision will apply to any quantity in excess of the prefabricated items specified for immediate delivery.

(3) Whenever it is necessary to redesign or re-engineer jewelled items in the Federal Supply Classes and Groups cited in paragraph (d) of this section to satisfy performance requirements, the contractors or subcontractors who manufacture the jewelled items shall be required to use military standard jewel bearings in the redesign. The only exception to this requirement will be when the dimensional tolerances or configurations of military standard jewel bearings are such that their use in the product would prevent attainment of the required level of performance specified for the item. When one or more nonstandard bearings must be used to satisfy performance requirements of the jewelled product but military standard bearings will function satisfactorily for other applications within the same item, the item will be required to be redesigned to provide for the use of military standard bearings in such "other" applications. However, in no case shall a contractor or subcontractor be required to redesign a jewelled item solely for the purpose of converting from the use of nonstandard to military standard jewel bearings. This is not intended to prevent any contractor or subcontractor from voluntarily redesigning a jewelled item solely to accommodate the use of military standard bearings. Such voluntary redesign may be economically advantageous due to the lower unit price of military standard bearings from the plant.

(4) The plant may reject a contractor's or subcontractor's purchase order due to currently outstanding, excessive and overdue indebtedness to the plant by such customer. The plant is required to refuse shipments against purchase orders whenever shipments would increase the indebtedness of a customer beyond a credit limit which may have been set by the General Services Administration. Rejection by the plant of a contractor's or subcontractor's purchase