the contracting officer, and he considers it desirable to do so, he may obtain the views of the Comptroller General. The submission will be made direct to the Comptroller General and will include the material indicated in FPR 12.407-8(a)(2). Simultaneous with the submission of a protest to the Comptroller General by a contracting officer under authority of this paragraph, the Director, Supply Service will be furnished a complete copy of the submission. The contracting officer will notify the protesting individual or firm promptly in writing of the decision of the Comptroller General. A copy of the decision and notification will be furnished the Director, Supply Service.

(1) While a case involving a protest before award is pending in the Office of the Comptroller General, no award may be made except when, in the opinion of the contracting officer, the needs of his station will not permit delay in awarding the contract. He will document the specific reasons why the award must be made and submit a request for approval to the Director, Supply Service or the Assistant Administrator for Construction, whichever is appropriate.

(2) The Director, Supply Service or the Assistant Administrator for Construction, whichever is appropriate, will file a notice of intent to make the award with the Comptroller General and request advice as to the status of the case. Upon receipt of this advice, the Director, Supply Service or the Assistant Administrator for Construction will approve the request or advise the contracting officer as to the action to be taken.

(c) Protest after award. When a written protest is lodged with the contracting officer, he will review the basis for award.

(1) If the contracting officer determines that the award was proper, he will furnish the protester a written explanation of the basis for the award, responsive to the allegations of the protest, and advise the protester that he may appeal the determination to the Director, Supply Service (or the Assistant Administrator for Construction in the case of a Central Office

construction contract) or the Comptroller General.

(2) If the contracting officer determines that the award is questionable, he will advise the contractor of the protest and invite him to submit his views and relevant information. At the same time, the contracting officer will seek to obtain a mutual agreement with the contractor to suspend performance on a no-cost basis. Whether or not the contractor agrees, the case will be submitted promptly to the Director, Supply Service (or the Assistant Administrator for Construction in the case of a Central Office construction contract) who will either advise the contracting officer of the appropriate action to take, or submit the case to the Comptroller General for his decision.

[35 FR 12340, Aug. 1, 1970]

§ 8-2.407-50 Award when only one bid is received.

When only one bid is received in response to an invitation for bids, such bid may be considered and accepted if (a) the specifications used in the invitation were not restrictive, (b) adequate competition was solicited, (c) the price is reasonable, and (d) the bid is otherwise in accordance with the invitation for bids. Such determination will be made in writing and included on or attached to the abstract of bids. [33 FR 6292, Apr. 23, 1968]

§ 8-2.408 Information to bidders.

(a) Prior to award, no information as to probable acceptance or rejection of any offer shall be given to any bidder or other person outside the VA.

(b) Except as provided in paragraphs (c) and (d) of this section, information as to performance under contract or an accepted bid is not public information and will be released to persons outside the VA only upon the authority of the immediate supervisor of the contracting officer.

(c) Except as provided in paragraph (d) of this section, the contracting officer may furnish information as to performance under a contract to those having a legitimate interest, such as banks, other financial companies and

Government departments and agen

cies.

(d) When litigation is involved, all information will be furnished through the General Counsel.

[28 FR 2335, Mar. 12, 1963]

Subpart 8-2.5-Two-step Formal Advertising

§ 8-2.502 Conditions for use.

Two-step formal advertising will not be used by any Veterans Administration procurement activity unless its use has been approved by one of the following officials:

(a) Manager, Veterans Administration Marketing Center, for contracts entered into by a Marketing Division.

(b) Director, Supply Service, for contracts entered into by field stations and the Purchase and Contract Division, Supply Service, Central Office.

(c) Manager, Administrative Services, for contracts entered into by the Building and Supply Service, Central Office.

(d) Assistant Administrator for Construction for all construction contracts, excluding those for maintenance and repair entered into by a field station.

(e) The Chief Benefits Director for contracts entered into for the loan guaranty and the vocational rehabilitation and educational programs, including those entered into by regional offices.

[33 FR 76, Jan. 4, 1968, as amended at 35 FR 13366, Aug. 21, 1970]

8-3.800 Scope of subpart. 8-3.801 Basic policy.

8-3.801-2 Responsibility of contracting officers.

8-3.801-3 Responsibility of other personnel.

8-3.805 Selection of offerors for negotiation and award.

8-3.807 Pricing techniques.

8-3.807-3 Cost or pricing data.

8-3.808 Profit or fee.

8-3.808-1 General.

8-3.809 Contract audit as a pricing aid.

8-3.813 Preproduction and startup and other nonrecurring costs.

Subpart 8-3.9—Subcontracting Policies and Procedures

8-3.903-2 Review and approval of subcontracts.

AUTHORITY: The provision of this Part 8-3 issued under 72 Stat. 1114, sec. 205(c), 63 Stat. 390; 38 U.S.C. 210, 40 U.S.C. 486(c).

Subpart 8-3.1-Use of Negotiation

§ 8-3.101 General requirements for negotiation.

(a) Contracts in excess of $10,000 or $1,000 for contracts made for repairs to properties acquired under chapter 37, title 38, United States Code, will be entered into by negotiation only in the absence of any one or more of the elements essential to formal advertising set forth in § 8-2.102, or when:

(1) It is determined that the procurement should be effected from small business in accordance with FPR 1-1.7.

(2) It is determined that the procurement should be effected from labor surplus area concerns in accordance with FPR 1-1.8.

(3) Items to be purchased are for authorized resale.

(b) Proposed contracts for the purchase of a firm quantity of supplies or equipment, at a cost in excess of $200,000 are subject to the procedure set forth in § 8-2.407-1.

[30 FR 13228, Oct. 16, 1965, as amended at 39 FR 38378, Oct. 31, 1974; 40 FR 40803, Sept. 4, 1975]

Subpart 8-3.2-Circumstances Permitting Negotiation

§ 8-3.200 Scope of subpart.

(a) Subject to the requirements and limitations prescribed in FPR 1-3.1, 1– 3.2 and 1-3.3 and Subparts 8-3.1, 8-3.2 and 8-3.3, Veterans Administration contracting officers, acting within the scope of their authority, may negotiate contracts for the acquisition of supplies, equipment and services. Each such acquisition will cite the specific authority under which the procurement was negotiated.

(b) In those instances where a purchase in excess of $10,000 may be negotiated under more than one authority, the contracting officer will select the authority he/she deems most appropriate to accomplish the purchase and will include in the contract file complete justification for his/her selection.

[35 FR 13366, Aug. 21, 1970, as amended at 40 FR 40803, Sept. 4, 1975]

§ 8-3.203 Purchases not in excess of $10,000.

(a) Procurement of medical services and resources authorized by sections 4117 and 5053 of title 38, United States Code, costing less than $10,000 may be procured by negotiation under authority of FPR 1-3.203. Each such contract and revision thereof is, however, subject to the same approval as those costing in excess of $10,000. See § 83.204.

(b) Except as provided in this paragraph, purchases authorized to be negotiated under the special procurement authorities contained in title 38, United States Code, will be negotiated under the authority of FPR 1-3.203 when the amount of the purchase is not in excess of $10,000. An exception exists in the case of services or supplies purchased on account of any property acquired under the Loan Guaranty program. For such purchases, 38 U.S.C. 1820(b) requires formal advertising if the amount will exceed $1,000.

(c) Procurements of consulting, management, administrative and professional services costing less than $10,000 and made under the authority of 38 U.S.C. 213 are subject to the controls set forth in Subparts 8-4.52 and 8-4.53.

[40 FR 40803, Sept. 4, 1975, as amended at 45 FR 16183, Mar. 13, 1980]

§ 8-3.204 Personal or professional services.

(a) Various sections of title 38, United States Code, authorize the Administrator to enter into contracts for the purpose of acquiring personal or professional services. These authorizations do not, however, stipulate the manner in which such contracts are to be entered into, i.e., negotiation or formal advertising. Civilian agencies are, under the authority of FPR 13.204, authorized to procure such services by negotiation. Therefore, when the services listed in this section are to be acquired by the Veterans Administration, at a cost in excess of $10,000, a contract will be negotiated by the contracting officer. These contracts will cite in addition to the authority to negotiate, FPR 1-3.204, the appropriate

section of title 38 which authorizes the contract.

(b) Architect-engineer services when required in conjunction with construction (see Subparts 8-4.10 and 8-16.7 of this chapter) will cite as the authority for such negotiation FPR 1-3.204-38 U.S.C. 5002.

(c) Contracts with medical schools, clinics, and any other group or individual capable of furnishing such services to provide scarce medical specialist services at Veterans Administration

facilities (including but not limited to services of physicians, dentists, nurses, physicians' assistants, dentists' assistants, technicians, and other medical support personnel) will be negotiated under authority of FPR 1-3.204 and 38 U.S.C. 4117.

(d) Contracts with other hospitals (or other medical installations having hospital facilities) or medical schools, or clinics in the medical community for:

(1) The mutual use, or exchange of use, of specialized medical resources when such a contract will obviate the need for a similar resource to be provided in a Veterans Administration facility; or

(2) The mutual use, or exchange of use, of specialized medical resources in a Veterans Administration facility, which have been justified on the basis of veterans' care, but which are not utilized to their maximum effective capacity will be negotiated under authority of FPR 1-3.204-38 U.S.C. 5053.

(e) Proposed contracts for the services and resources specified in paragraphs (c) and (d) of this section may be entered into for 1 year only. When deemed essential to the mission of the stations, proposed renewal contracts will be negotiated for the subsequent year. Except as provided in paragraph (f) of this section, such proposed contracts will be submitted for approval to the appropriate Regional Medical Director (13C), when authority is 38 U.S.C. 5053, or (134) when authority is 38 U.S.C. 4117, so as to reach Central Office 60 days prior to effective date of the contract.

(1) Complete justification for all contracts will be submitted, as approval depends on the adequacy of the justification.

(2) Proposed contracts under authority of 38 U.S.C. 4117 will be submitted in five copies, and contracts under authority of 38 U.S.C. 5053 will be submitted in six copies.

(3) The transmittal letter and each supporting document will be submitted in the same number of copies as the contract. As an incomplete submission delays processing of the proposed contract in Central Office, care should be exercised to assure that the proper number of copies are submitted, and that submissions are complete (e.g., complete name and address of the other party or parties to the contract are included).

(4) Proposed contracts of the type specified in paragraph (d) (1) and (2) of this section will be accompanied by a recommendation of the head of the station as to the geographical limits to be applied to the medical community.

(5) A copy of all executed sharing contracts, both new and renewal, will be forwarded to the appropriate Regional Medical Director (13C) for post audit and for purposes of making the annual report to Congress as required by 38 U.S.C. 5057.

(f) Proposed renewal sharing contracts under the authority of 38 U.S.C. 5053 may be approved by the appropriate Medical District Director when such contract proposals meet the following conditions:

(1) There shall be no new services added to the sharing contract. (Services, however, may be deleted from the contract without Central Office approval.) No individual cost item that is being procured from the contractor (non-Veterans Administration facility identified in the contract) shall increase in cost more than 10 percent over the cost for that same item in the previous contract.

(2) The sharing proposal has been reviewed for legality by the District Counsel responsible for servicing the Veterans Administration facility involved. The District Counsel shall be sent, along with the sharing proposal, a copy of the previous sharing agreement for the same services so that a comparison can be made of the two documents.

(3) All contract clauses required by Chapters 1 and 8, Title 41, Code of

Federal Regulations are included in the proposal.

(4) Equal Employment Opportunity clearance has been obtained, when required (see § 8-12.805-1).

(g) Contracts for professional or technical services with private or public agencies not specifically authorized in any other section of title 38, United States Code, may be acquired under 38 U.S.C. 213 and negotiated under FPR 1-3.204 when the cost of such services will exceed $10,000. Controls over the procurement of consulting, management, administrative and professional services are set forth in Subparts 8-4.52 and 8-4.53.

an

(h) Personal service contracts having employer-employee relationship, except to the extent indicated in paragraph (c) of this section, will not be negotiated under this authority but will be consummated in accordance with MP-5, Parts I and II. The determination as to whether a contract is of this nature is primarily the responsibility of the appointing official. Contracting officers should, however, be alert to the conditions or circumstances set forth in this paragraph which, if present, could result in an invalid contract. If any of those conditions or circumstances are present, any doubts will be resolved by consultation with the requester and by seeking legal advice.

(1) Contracts with individuals. (i) The contract does not call for an end product which is adequately described in the contract.

(ii) The contract price or fee is based on the time actually worked rather than the results to be accomplished.

(iii) The services are to be of a continuing rather than a temporary or intermittent nature.

(iv) The Veterans Administration retains the right to control and direct the means and methods by which contractor-furnished personnel accomplish this work.

[40 FR 40803, Sept. 4, 1975, as amended at 45 FR 16183, Mar. 13, 1980]

§ 8-3.207 Medicines or medical supplies.

(a)(1) Except as provided in this § 83.207 or when specific prior approval has been granted by the Assistant Administrator for Supply Services to a field station contracting officer, no Veterans Administration contracting officer shall enter into a contract by negotiation under authority of FPR 13.207, when the estimated cost of the item(s) required, singly or collectively, is in excess of $10,000 for a single transaction.

(2) When an individual is designated to act in the capacity of one of the positions specified in this § 8-3.207, that individual is authorized to consummate contracts in excess of $10,000 in the same manner as the incumbent of the position. The contracting officer's title will be indicated on the contract documents and official correspondence with the contractor. This will verify to the contractor that the contracting officer possesses the necessary contracting authority. Additionally, the contracting officer's title will appear on the applicable determinations and findings.

(b) The following contracting officers are authorized to award negotiated contracts in excess of $10,000 for medicines or medical items:

(1) Assistant Administrator Supply Services.

for