« PreviousContinue »
(b) Each contract file shall include the following data, if applicable:
(1) a copy of the procurement directres or request, or appropriate reference thereto;
2) On negotiated procurement, the original or a copy of the Determination and Findings and any request for authority to negotiate;
3) The list of sources solicited or justification for limiting such sources and a list of any firms or persons whose requests for copies of the solicitation were denied, together with the reasons for denial;
(9) Any small business or labor surplus set-aside determinations (see $1.706 and 1.804);
5) A copy of the Invitation for Bids · or the Request for Proposals, including
the drawings and specifications or an identifiable reference thereto;
6) The Security Requirements Check - List (DD Form 254) (see $ 16.811 of this chapter);
(7) One copy of each signed bid or proposal received, together with an abstract of bids or proposals received (With respect to formally advertised procurements, unsuccessful bids may be removed and destroyed either after one Tear from date of award of the contract or after final payment has been made, hichever occurs later. However, in no event will such bids be destroyed prior to final resolution of any protest or compaint submitted by an unsuccessful bidder. Furthermore, when the contracting officer determines that technical data contained in an unsuccessful bid are of sufficient value to the Government or could be reasonably considered of value to the Government in the future, such bid shall be retained.);
(8) The bidders' Statements of Contingent Fees (see $ 16.802 of this
Chapter); .: 9) All pre-award surveys (see - 11.905-4):
(10) Selection of the successful contractor, including: (i) The reasons for selection, (1) The contracting officer's determination of the contractor's responsibil
(see 1.904-1); flii) Any Small Business Administration Certificate of Competency (see
(12) A full record of negotiations, including but not limited to: participants; dates of meetings or phone calls; Government-furnished materials or facilities provided; subcontracting; terms and conditions agreed to; deviations, if any, from prescribed contract clauses; technical recommendations; and justification for final price;
(13) Justification for type of contract used (see $ 3.303 of this chapter);
(14) Any exceptions or exemptions from the Buy American Act or appropriations act restrictions (see Part 6 of this chapter);
(15) A copy of contract or award;
(17) A copy of Individual Procurement Action Report (DD Form 350);
(18) A copy of Statement and Certificate of Award (SF 1036) (see $ 16.801 of this chapter);
(19) All pertinent correspondence;
(20) Copies of all change orders, and supplements, with supporting documents;
(21) Comprehensive termination data;
(22) Copies of royalty reports received (see $ 16.806 of this chapter);
(23) Final release upon completion of the contract; and
(24) Information appropriate for renegotiation purposes (see $ 1.319); and
(25) any additional documents reflecting actions peculiar to a specific activity or service.
(c) Complete record of all negotiated contract actions, including unsuccessful proposals, shall be preserved in the cognizant procuring activity or in the Department concerned for a period of six years following final payment on each contract.
(d) This section does not apply in the case of small purchases (see $ 3.604 of this chapter). (25 F.R. 14084, Dec. 31, 1960, as amended at 27 F.R. 3443, Apr. 11, 1962; 27 F.R. 6120, June 29, 1962; 27 F.R. 11644, Nov. 27, 1962; 28 F.R. 2093, Mar. 5, 1963; 28 F.R. 2572, Mar. 16, 1963; 28 F.R. 12546, Nov. 23, 1963; 29 F.R. 11809, Aug. 19, 1964; 30 F.R. 5961, Apr. 29, 1965) $ 1.309 Solicitations for informational
or planning purposes. It is the general policy of the Department of Defense 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
(11) All price and cost data submitted used, including Certificates of Current Cost or Pricing Data (see 88 2.102-1(b), 3.807-3, and 3.807-4 of this chapter);
will not be used for this purpose. Requests for quotations may be issued for informational or planning purposes only with prior approval of an individual at a level higher than the contracting 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 § 15.205-3 of this chapter, of the cost of preparing such quotations. 126 F.R. 2599, Mar. 28, 1961] $ 1.310 Liquidated damages.
(a) This section 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 of ascertainment or proof. Where a liquidated damages provision is to be used in a supply or service contract, insert the provision set forth in $ 7.105-5 of this chapter in accordance with the instructions thereof. Liquidated damages provisions for construction contracts are covered by $ $ 18.113, 7.603--39 and 8.709 of this chapter.
(b) The rate of assessment of liquidated damages must be reasonable, con sidered 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.
(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 de
livery or performance elsewhere withi a reasonable time. For these reason particularly close administration Ove contracts containing liquidated damage provisions is imperative.
(d) Whenever any contract includes provision for liquidated damages for de lay, the Comptroller General on th recommendation of the Secretary con cerned is authorized and empowered t remit the whole or any part of suc damages as in his discretion may be jus and equitable. Accordingly, recom mendations concerning such remissie may be transmitted to the Secretar concerned in accordance with Depart mental procedures. (25 F.R. 14085, Dec. 31, 1960, as amended a 30 F.R. 5961, Apr. 29, 1965) § 1.311 “Buying In”.
"Buying in” refers to the practice o attempting in procurements involvin price competition, to obtain a contrac award by knowingly offering a price les than anticipated costs with the expecta tion of either (a) increasing the contrac price during the period of performanc through change orders or other mean: or (b) receiving future “follow-on" con tracts at prices high enough to recove any losses on the original "buy-in" con tract. Such a practice is not favored b. the Department of Defense since its long term effects may diminish competitio and it may result in poor contract per formance. Where there is reason to be lieve that "buying in" has occurred, con tracting officers shall assure tha amounts thereby excluded in the develop ment of the original contract price ar not recovered in the pricing of chang orders or of follow-on procurements sub ject to cost analysis. (29 F.R. 9747, July 21, 1964) $ 1.312 Voluntary refunds.
(a) General. A voluntary refund is : payment or credit, not required by an contractual or other legal obligation made to the Government by a contracto or subcontractor either as a payment o as an adjustment under one or mor contracts or subcontracts. It may be un solicited or it may be made in respons to a request by the Government. Wher it is desired to solicit a voluntary refun from a subcontractor, the prime con tractor should be encouraged to facili tate the making of such refund. I deciding whether to solicit a voluntar refund or to accept an unsolicited re. fund, the contracting officer shall ask - legal counsel to review the contract or - contracts and all data relevant thereto
to determine whether the Goverrament's rights would be jeopardized or impaired by the contracting officer's proposed · action. : ibi Solicited refunds. Voluntary re
unds 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 compen- Sated for the use of Government-owned property, or in the disposition of con
actor 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 subconcactor shall not be considered contrary to good conscience and equity, and thus
a voluntary refund shall not be re- quested, unless the overcharge or inade
quate 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 Secretary concerned.
(C) Disposition of voluntary refunds. D) If a refund is offered prior to final payment, it is preferable that the contract price be appropriately modified to
Elect 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 ad
justment in the contract price, the check shall be made payable to the Treasurer of the United States and shall be forwarded immediately to the comptroller of the appropriate Department, or other Departmental officer responsible for the control of funds. When forwarded, the check shall be accompanied by a letter Identifying it as a voluntary refund,
ing the number of the contract or contracts involved and, where possible, bring the account number of the appropriation to which the refund should be credited.
10 FR. 14887, Dec. 2, 1965) - $ 1.313 Procurement of parts. } (a) Parts for replenishment of stock,
Pepair, or replacement, must be procured so as to assure the requisite safe, dependable, and effective operation of the equip
ment. Where it is feasible to do so < thout impairing this assurance, parts
should be procured on a competitive basis, as in the kind of cases described in paragraph (b) of this section. However, where this assurance can be had only if the parts are procured from the original manufacturer of the equipment or his supplier, the procurement should be restricted accordingly, as in the kind of cases described in paragraph (c) of this section,
(b) Parts that are fully identified and can be obtained from a number of known sources, and parts for which fully adequate manufacturing drawings and any other needed data are available (or can be made available in keeping with the policies in Subpart B, Part 9 of this title), are to be procured on a competitive basis. In general, such parts are of a standard design configuration or have commercial equivalents. They include individual items that are susceptible of separate procurement, such as resistors, transformers, generators, spark plugs, or electron tubes.
(c) Parts not within the scope of paragraph (b) of this section generally should be procured (either directly or indirectly) only from sources that have satisfactorily manufactured or furnished such parts in the past, unless fully adequate data (including any necessary proprietary data), test results, and quality assurance procedures, are available (or can reasonably be made available in keeping with the policies in Subpart B, Part 9 of this title) to assure the requisite reliability and interchangeability of the parts, and procurement on a competitive basis would be consistent with the assurance described in paragraph (a) of this section. In assessing this assurance, the nature and function of the equipment for which the part is needed should be considered. To illustrate, acceptable tolerances for a commercial television part may be far less stringent than those for a comparable military radar part, permitting competitive procurement of the former but not of the latter. The exacting performance requirements of specially designed military equipment generally demand that parts be closely controlled and have proven capabilities of precise integration with the system in which they operate, to a degree that precludes the use of even apparently identical parts from new sources, since the functioning of the
whole may depend on latent characteristics of each part which are not definitely known. [25 F.R. 1085, Dec. 31, 1960) $ 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, Prior to issuing the decision, the contracting officer shall consider the neceszity for coordination with the contract administration office or the purchasing office, as appropriate. However, the decision must be that of the contracting officer.
(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 be in the form of a statement of the claim or other description of the nature of the dispute, with necessary references to pertinent contract provisions; a statement as to which of the facts relevant to the dispute the parties are in agreement and, as clearly as possible, the area of disagreement; and the contracting officer's statement of his decision and the basis therefor.
(c) The contracting officer (PCO, ACO, or TCO) shall decide all questions subject to the disputes procedures as to which he has the authority to act.
(d) 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, appropriately modified where other appeal Boards are authorized, shall be included in such decision.
This is the final decision of the Contracting Officer. Decisions on disputed questions of fact and on other questions that are sub
ject to the procedure of the Disputes claui may be appealed in accordance with the pro visions of the Disputes clause. If you do cide to make such an appeal from this de cision, written notice thereof (in triplicate must be mailed or otherwise furnished to th Contracting Officer within 30 days from th date you receive this decision. Such notic should indicate that an appeal is intende and should reference this decision an identify the contract by number. TI Armed Services Board of Contract Appeals the authorized representative of the Secre tary for hearing and determining such dir putes. The rules of the Armed Service Board of Contract Appeals are set forth in tk Armed Services Procurement Regulatio Appendix A, Part 2.
(e) After an appeal has been filer contracting agencies are not preclude from further seeking agreement as t disposition of the controversy. How ever, such efforts to dispose of a contro versy shall not be conducted pursuan to formal board actions or hearings, an shall not result in suspension of process ing of an appeal, except as ordered authorized by the Armed Services Boar of Contract Appeals.
(f) In the event of an appeal, th amount determined to be payable in th decision of the contracting officer, les any portion previously paid, normall should be paid in advance of any de cision by the Board without prejudice t the rights of either party or the appea (30 F.R. 14071, Nov. 9, 1965) § 1.315 Procurement of jewel bearing
(a) It has been determined that de fense interests require the continue maintenance of an active and versatil mobilization base for the production c jewel bearings. This base has bee established at the Government-owne Turtle Mountain Bearing Plant. Rolle North Dakota. In support of this policy Government purchases of jewel bearing shall be made from that plant in all case where it can meet purchase require ments. Additionally, all procurement of items containing jewel bearings sha provide, in the solicitations and resultin contracts, a requirement that jewel bear ings in the quantities, and of the type and sizes necessary for the end items t be supplied under the contract, be pur chased from the Turtle Mountain Plan and be incorporated in the delivere items, subject to the criteria provided i. paragraphs (b), (c), and (d) of thi section, except:
(1) When quantity requirements, qual. ity standards, or delivery requirements
cannot be satisfied by bearings manufacEtured at the Turtle Mountain Plant; . (2) For purchases of commercial end
items or of military end items having jeweled components used in commercial end items, when the quantities of such end items or components are such that the contracting officer either knows or reasonably expects that all such commercial end items or commercial components of military end items are already manufactured and available from the stock of any dealer, wholesaler, distributor, or manufacturer; or
(3) For bearings used in items that are to be procured and used outside the United States, its possessions, and Puerto Rico.
(b) In order to assure that all bidders S or offerors are competing on the same E basis, it is necessary that the solicitastion for items containing jewel bear
ings clearly state:
(1) The successful contractor will be required to purchase (directly or through subcontractors, as appropriate) Turtle Mountain source bearings at prices established in the U.S. Government Jewel Bearing Price List then in effect, and to incorporate such bearings in the items
to be delivered; and te (2) Bids or proposals are to be predi
cated on this requirement. $ If it should occur, after award, that the
Turtle Mountain Plant rejects the contractor's (or subcontractor's) purchase order entirely or in part, the contractor for subcontractor) shall be required to 80 notify the contracting officer who will effect an equitable adjustment in the contract price to reflect any costs or savings accruing to contractor by reason of any price differential for such bearings, pursuant to the clause of this contract entitled “Changes."
(C) To the extent Turtle Mountain bearings are fungible with other bearings and it is not practical or would be costly to segregate jewel bearing inventories or work in process for items to be furnished the Government from that to be furnished commercial customers, or for other similar reasons, it may be in the Government's interest to waive the use requirements at the discretion of the contracting officer. No waiver will be granted to prospective contractors prior to award and no assurance will be given
prior to award to any prospective contractors that such waiver will be granted after award. Minor inconvenience to contractors alone will not satisfy the need for demonstrating that the Government's interests are served by such waiver. When the use requirement is waived, an equitable adjustment for cost savings resulting therefrom shall be made.
(d) In circumstances where a procurement is not exempt from this procedure but it would be impractical or contrary to the Government's best interest to require actual use of all of the Turtle Mountain bearings required to be purchased, the contracting officer may provide in the solicitation and resulting contract that a minimum fixed percentage of the total bearings requirements be of Turtle Mountain origin, or that Turtle Mountain bearings be purchased for and used in a certain number of the total items to be supplied.
(e) In all procurements subject to these procedures, the following clause is required for use: REQUIRED SOURCE FOR JEWEL BEARINGS (No
VEMBER 1964) Jewel bearings required in the performance of this contract shall be procured from the Turtle Mountain Jewel Bearing Plant, Rolla, North Dakota, at prices established in the Official U.S. Government Jewel Bearing Price List dated (insert latest effective date). The Contractor agrees that the delivery dates specified for the quantities and types of jewel bearings so ordered will be reasonably related to manufacturing schedules and delivery requirements of this contract. The Contractor agrees to notify the Contracting Officer promptly of the rejection of his (or any subcontractor) purchase order in whole or in part by the Turtle Mountain Plant and further agrees to an equitable adjustment in the contract price pursuant to the "Changes" clause of this contract to reflect any costs or savings to the Contractor (or subcontractor) resulting from such rejection. The Contractor further agrees to incorporate or to have his subcontractors incorporate the purchased Turtle Mountain jewel bearings in the items to be delivered under this contract.. The requirement for use (but not the requirement for purchase) of such bearings may be waived in the discretion of the Contracting Officer when such waiver is determined by him to be in the Government's interest, and where agreement is reached for an equitable adjustment in the contract price by reason of such waiver.
29 F.R. 9747, July 21, 1964, as amended at 30 F.R. 1729, Feb. 9, 1965)