(a) The authority of § 3.208 shall be used only for purchases for resale, where appropriated funds are involved, and ordinarily only for purchases of articles with brand names or of a proprietary nature which a selling activity believes or finds to be desired or preferred by its patrons.

(b) Whenever it is determined to be practicable, such advance publicity as is considered suitable with regard to the supplies involved and other relevant considerations shall be given for a period of at least 15 days before making a purchase of or contract for supplies or services, under the authority of § 3.208, for more than $10,000.

Every contract negotiated under the authority of this section and §§ 3.2083.208-2 shall be accompanied with the determination and findings justifying its use, signed by the contracting officer and prepared in accordance with the requirement of Subpart C of this part. The authority of this section and §§ 3.2083.208-2 shall not be used when negotiation is authorized by the provision of §§3.203, 3.206, or 3.209.

[28 F.R. 2094, Mar. 5, 1963]

§ 3.209 Perishable or nonperishable subsistence supplies.

§ 3.209-1 Authority.

Pursuant to 10 U. S. C. 2304 (a) (9), purchases and contracts may be negotiated if

for perishable or nonperishable subsistence supplies.

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

For property or services for which it is impracticable to obtain competition.

§ 3.210-2 Application.

The following are illustrative of circumstances with respect to which the authority of §§ 3.210-3.210-3 may be used:

(a) When supplies or services can be obtained from only one person or firm ("sole source of supply");

(b) When competition is precluded because of the existence of patent rights, copyrights, secret processes, control of basic raw material, or similar circumstances. However, the mere existence of such rights or circumstances does not in and of itself justify the use of the authority of §§ 3.210-3.210-3);

(c) When bids have been solicited pursuant to the requirements of Part 2 of this chapter, and no responsive bid (a responsive bid is any bid which conforms to the essential requirements of the solicitation) has been received from a responsible bidder, or when step one of two-step formal advertising results in no acceptable technical proposal or only one acceptable technical proposal;

(d) When bids have been solicited pursuant to the requirements of Part 2 of this chapter, and the responsive bid or bids do not cover the quantitative requirements of the solicitation of bids, in which case negotiation is permitted for the remaining requirements of the solicitation of bids;

(e) When the contemplated procurement is for electric power or energy, gas (natural or manufactured), water, or other utility services or when the contemplated procurement is for construction of a part of a utility system and it

would not be practicable to allow a contractor other than the utility company itself to work upon the system;

(f) When the contemplated procurement is for training film, motion picture productions, or manuscripts;

(g) When the contemplated procurement is for technical, nonpersonal services in connection with the assembly, installation, or servicing (or the instruction of personnel therein) of equipment of a highly technical or specialized nature;

(h) When the contemplated procurement is for studies or surveys other than those which may be negotiated under § 3.205 or § 3.211;

(i) When the contemplated procurement involves construction, maintenance, repairs, alterations or inspection, in connection with any one of which the exact nature or amount of the work to be done is not known;

(j) When the contemplated procurement is for stevedoring, terminal, warehousing, or switching services, and when either the rates are established by law or regulation, or the rates are so numerous or complex that it is impracticable to set them forth in the specifications of a formal solicitation of bids;

(k) When the contemplated procurement is for commercial transportation, including time, space, trip, and voyage charters, except for such transportation services as are furnished by common carriers (for which negotiation is authorized under § 3.217, and section 321 of the Transportation Act of 1940, 49 U.S.C. 65), and including services for the operation of Government-owned vehicles, vessels or aircraft;

(1) When the contract is for services related to the procurement of perishable subsistence such as protective storage, icing, processing, packaging, handling, and transportation, whenever it is impracticable to advertise for such services a sufficient time in advance of the delivery of the perishable subsistence;

(m) When it is impossible to draft, for a solicitation of bids, adequate specifications or any other adequately detailed description of the required supplies or services;

(n) When, under the procedures set forth in joint regulation DOD 4145.16-R, AR 743-455, NAVSANDA PUB 297, AFR 67-61, and NAVMC 1133, the contract is for storage (and related services) of household goods; or

(0) When the contemplated procurement is for parts or components being procured as replacement parts in support of equipment specially designed by the manufacturer, where data available is not adequate to assure that the part or component will perform the same function in the equipment as the part or component it is to replace.

(p) When the contract is a facilities contract as defined in § 13.101-11 of this chapter and the performance required can be obtained from only one person or firm; or

(q) When the contemplated procurement involves construction where a contractor or group of contractors is already at work on the site, and it would not be practicable to allow another contractor or an additional contractor to work on the same site or when the amount is too small to interest other contractors to mobilize and demobilize.

[25 F.R. 14128, Dec. 31, 1960, as amended at 26 F.R. 9635, Oct. 12, 1961; 27 F.R. 3448, Apr. 11, 1962; 29 F.R. 11816, Aug. 19, 1964; 30 F.R. 1733, Feb. 9, 1965]

§ 3.210-3 Limitation.

The authority of §§ 3.210 through 3.210-3 shall not be used when negotiation is authorized by any other authority set forth in §§ 3.201 through 3.217, except that this authority shall be used in preference to § 3.212. The authority illustrated in § 3.210-2 (c) and (d) shall not be used in cases where "Small Business Restricted Advertising" has been used. However, the authority may be used in the case of partial set-asides unless in the judgment of the contracting officer the failure to obtain sufficient responsive bids was caused by the existence of set-aside. The authority contained in § 3.210-2 (m) and (0) shall not be used in procurements in excess of $10,000 unless its use is approved in advance at a level higher than the contracting officer. Every contract that is negotiated under the authority of §§ 3.210 through 3.210-3 shall be accompanied with a determination and findings justifying its use, signed by the contracting officer and prepared in accordance with the requirements of Subpart C of this part.

[28 F.R. 12554, Nov. 23, 1963]

§ 3.211 Experimental, developmental, or research work.

§ 3.211-1 Authority.

Pursuant to 10 U.S.C. 2304 (a) (11), purchases and contracts may be negotiated if

The following are illustrative of circumstances with respect to which the authority of § 3.211 may be used:

(a) Contracts relating to theoretical analysis, exploratory studies, and experiment in any field of science or technology;

(b) Developmental contracts calling for the practical application of investigative findings and theories of a scientific or technical nature;

(c) Contracts for such quantities and kinds of equipment, supplies, parts, accessories, or patent rights thereto, and drawings or designs thereof, as are necessary for experiment, development, research, or test; or

(d) Contracts for services, tests, and reports necessary or incidental to experimental, developmental, or research work.

§ 3.211-3 Limitation.

The authority of this section and §§ 3.211-3.211-2 shall not be used for negotiated contracts with educational institutions or for quantity production, except that such quantities may be purchased hereunder as are necessary to permit complete and adequate experiment, development, research, or test; accordingly, research or development contracts which call for the production of a reasonable number of experimental or test models, or prototypes, shall not be regarded as contracts for quantity production. Negotiated contracts with educational institutions shall be negotiated in accordance with § 3.205. The authority of this section and §§ 3.2113.211-2 shall not be used when negotiation is authorized by the provisions of §3.203 or § 3.206. In order for this authority to be used, the required determination must be made in accordance with the requirements of Subpart C of this part.

[28 F.R. 2094, Mar. 5, 1963]

§ 3.211-4 Records and reports.

Each Military Department is required to maintain a record of the name of each contractor with whom a contract has been entered into pursuant to the authority of § 3.211, together with the amount of the contract and (with due

Pursuant to 10 U.S.C. 2304 (a) (137), purchases and contracts may be negotiated if

* for equipment that he [the Secretary] determines to be technical equipment whose standardization and the interchangeability of whose parts are necessary in the public interest and whose procurement by negotiation is necessary to assure that standardization and interchangeability;

[30 F.R. 14081, Nov. 9, 1965] § 3.213-2 Application.

(a) The authority of §§ 3.213-3.213-5 may be used for procuring additional units and replacement items of specified makes and models of technical equipment and parts, which are either: (1) for tactical use, or (2) an integral part of or

used in direct support of a weapons system, or (3) for use in Alaska, Hawaii or outside the remainder of the United States, in theaters of operations, on board naval vessels, or at advanced or detached bases; and which have been adopted as standard items of supply in accordance with procedures prescribed by each respective Department. A current or recurring procurement requirement for the item shall be present.

(b) This authority would apply, for example, whenever it is necessary:

(1) To limit the variety and quantity of parts that must be carried in stock;

(2) To make possible, by standardization, the availability of parts that may be interchanged among items of damaged equipment during combat or other emergency;

(3) To procure from selected suppliers technical equipment which is available from a number of suppliers but which would have such varying performance or design characteristics (notwithstanding detailed specifications and rigid inspection) as would prevent standardization and interchangeability of parts; or

(4) To provide a uniform configuration of equipment for materiel programed for a Military Assistance Program (MAP) Country or Countries.

(c) Before making a determination to procure specified makes and models under the authority of §§ 3.213-3.213-5, consideration shall be given to whether:

(1) It is feasible, from an economical and timely deployment standpoint, to distribute or redistribute the equipment and parts already in the supply system on a selected geographic basis;

(2) It is practicable or economical to use or develop a military design which would permit standardization of components and parts under the Defense Standardization Program;

(3) Standardization will impair the capability of industry to produce mobilization requirements of all Departments;

(4) It is practicable to satisfy the requirement by interchanging parts and cannibalizing equipment already in the system;

(5) Future procurement of the selected item of equipment can be effected at reasonable prices;

(6) Standardization will serve to reduce or prevent an increase in the variety of parts that must be carried in stock;

(7) Standardization will render obsolete large dollar value inventories of equipment and supporting parts already

in the supply system without compensating benefits;

(8) Standardization will enhance military mission capability;

(9) Savings in training personnel or procuring technical literature will accrue;

(10) Standardization will adversely affect existing coordinated military specifications and standards;

(11) The current design of the specified make and model to be standardized has been changed from the design of equipment of the same make and model now in the supply system; and whether requirement exists for design changes of a scope which would negate the benefits contemplated from this standardization action; and

(12) In cases where military mission capability is not overriding, the anticipated savings to be obtained from standardization, arrived at through an overall economic evaluation, including appropriate factors enumerated in paragraphs (a), (b), and (c) of this section, will equal or exceed the expected savings which would be obtained through unrestricted competition.

(d) In arriving at determinations to standardize under the authority of §§3.213-3.213-5, the originating Department shall consult with other user Departments and DSA, as applicable, in order to insure the full benefit of the action.

(e) The period of standardization, not to exceed 6 years, shall be commensurate with the useful life of the property proposed for standardization and the anticipated rate of change in design and interchangeability of components. Actions taken under the authority of §§ 3.2133.213-5 shall be recorded and reviewed by the originating Department at a level designated by the approving authority, at least once every 2 years to determine whether the standardization should be continued, revised, or canceled. The redesign or redesignation of a model which has been standardized will not require revision or cancellation of standardization approval if interchangeability of parts of the new model with those of the model standardized is not affected in any significant respect. [30 F.R. 14081, Nov. 9, 1965] § 3.213-3

Limitation.

The authority of §§ 3.213-3.213-5 shall not be used (a) for initial procurements of equipment and parts; (b) or for

the purpose of selecting arbitrarily the equipment and parts of certain suppliers; I nor shall it be used unless the Secretary of a Department has determined, in accordance with the requirements of Subpart C of this part that: (1) the equipment constitutes technical equipment; (2) standardization of such equipment I and interchangeability of its parts are necessary in the public interest; and (3) procurement of such equipment or of its parts by negotiation is necessary to assure that standardization and interchangeability.

[30 F.R. 14082, Nov. 9, 1965]

In cases involving procurement of technical equipment and parts for applications specified in § 3.213-2(a), where a Department expects that the equipment will be established as standard and that maintenance of such standardization can be secured only by subsequent negotiation, the following notice may be inserted in the initial solicitation of bids or proposals. Prior approval by the Head of the Procuring Activity, his Deputy or Principal Assistant responsible for procurement, shall be obtained:

NOTICE OF POSSIBLE STANDARDIZATION
(AUGUST 1965)

All bidders are informed that it is possible that the products procured through this action may be established as standard and, at the option of the (Army, Navy, Air Force), subsequent procurements may be negotiated under authority of paragraph 3-213 of the Armed Services Procurement Regulation. [30 F.R. 14082, Nov. 9, 1965]

§ 3.213-5 Records and reports.

Each Military Department shall maintain on a current basis, a master list of items for which determinations and findings have been made under the authority of §§ 3.213-3.213-5. A copy of each such determination and finding shall be furnished to the Assistant Secretary of Defense (Installations and Logistics) within 5 days after the date thereof.

[30 F.R. 14082, Nov. 9, 1965]

§ 3.214 Technical or specialized supplies requiring substantial initial inor extended period of preparation for manufacture.

vestment

§ 3.214-1 Authority.

Pursuant to 10 U.S.C. 2304(a)(14), purchases and contracts may be negotiated if:

The authority of § 3.214 may be used for procurement of technical or specialized supplies-for example: aircraft, tanks, radar, guided missiles, rockets, and similar items of equipment; major components of any of the foregoing; and any supplies of a technical or specialized nature which may be necessary for the use or operation of any of the foregoing. Such procurement generally involves:

(a) High starting costs which already have been paid for by the Government or by the supplier;

(b) Preliminary engineering and development work that would not be useful to or usable by any other supplier;

(c) Elaborate special tooling already acquired;

(d) Substantial time and effort already expended in developing a prototype or an initial production model; and

(e) Important design changes which will continue to be developed by the supplier.

The authority of § 3.214 will in general be used in situations where it is preferable to place a production contract with the supplier who had developed the equipment, and thereby either assure to the Government the benefit of the techniques, tooling, and equipment already acquired by that supplier, or avoid undue delay arising from a new supplier having to acquire such techniques, tooling and equipment.

However, this exception should not be used to avoid duplication of private investment unless this duplication would be likely to result in additional cost to the Government.

[25 F.R. 12128, Dec. 31, 1960, as amended at 26 F.R. 2604, Mar. 28, 1961]

§ 3.214-3 Limitation.

The authority of this section and §§ 3.214-3.214-2 shall not be used unless and until the Secretary has determined,