(h) In the case of unregulated dairies, evidence of the circumstances which caused the contractor to have to pay a higher price for the milk used to supply the contract requirements for fluid milk for beverage purposes than was included in the contract price for such milk, identification of the action of the Secretary of Agriculture which caused the increase and how the action of the Secretary of Agriculture affected the price the contractor was required to pay producers for milk;

(i) Statement of total loss suffered under the contract, with detailed supporting analysis;

(j) Statement of total loss resulting from the actions of the Secretary of Agriculture identified in paragraphs (g) and (h) of this section; and

(k) Such other statements or evidence as may be requested by the contracting officer.

[32 F.R. 6137, Apr. 19, 1967]

§ 1.328-6 Processing cases.

(a) Heads of Procuring Activities are responsible for reviewing and analyzing the requests for price adjustment and taking such action as is necessary to verify the contractor's submission. When an audit of the contractor's books or records is considered necessary, the Defense Contract Audit Agency will conduct such audit and provide an advisory report of its audit.

(b) An adjustment of the contract price will not be authorized unless the contractor has established that he is entitled to an increase in the price under the standards set forth in § 1.328-3.

(c) If it is determined by the Head of the Procuring Activity that the standards set forth in § 1.328-3 have been met, the contracting officer will be authorized to enter into a supplemental agreement adjusting the contract price, after a certification of the availability of funds has been obtained from the Department whose funds were used to pay for the milk delivered under the contract.

(d) In the event of a disagreement between the Head of the Procuring Activity and the contractor, the Head of the Procuring Activity will render a decision to the contractor in writing setting forth the facts determined by the Head of the Procuring Activity and, where applicable, a statement indicating wherein the contractor has failed to meet the standards set forth in § 1.328-3.

[32 F.R. 16398, Nov. 30, 1967]
§ 1.329-1 Purpose and scope.

Public Law 89-487 (as codified by Public Law 90-23 in section 552 of title 5, United States Code) provides that information is to be made available to the public either by (a) publication in the FEDERAL REGISTER, (b) providing an opportunity to read and copy records at convenient locations, or (c) upon request, providing a copy of a properly identified record. Materials to be published or made available under paragraphs (a) and (b) of this section will be determined in accordance with applicable provisions of DoD Directive 5400.7 and implementing Departmental regulations. General policy guidelines and procedures to be followed in responding to public requests for procurement records are contained in §§ 1.329-1.329-4 and DoD Directive 5400.7. (See Part 286 of this chapter, 32 F.R. 9666, July 4, 1967.)

[32 F.R. 16398, Nov. 30, 1967]

§ 1.329-2 Release of records-General considerations.

(a) The Act imposes upon the Department of Defense the obligation of making information available to the public to the greatest extent possible while at the same time recognizing the need for providing specific exemptions to protect certain categories of information. The Department of Justice has stated with respect to the passage of this law:

This law was initiated by Congress and signed by the President with several key

concerns

-that disclosure be the general rule, not the exception;

-that all individuals have equal rights of

access;

-that the burden be on the Government to justify the withholding of a document, not on the person who requests it;

—that individuals improperly denied access to documents have a right to seek injunctive relief in the courts;

-that there be a change in Government policy and attitude.

Accordingly, DoD Directive 5400.7 states that it is the policy of the Department of

Defense to make the maximum amount of information concerning its operations and activities available to the public.

(b) Procurement records requested and properly identified by any member of the public must be made available, unless they come within any of the specific categories of matters which are exempt from public disclosure under §1.329-3. It should be noted that the person making the request need not have a particular interest in its subject matter nor must he provide justification for the request.

(c) In deciding whether a particular record may be released, the request must be reviewed in accordance with DoD Directive 5400.7 and Departmental implementation thereof to determine whether the document or material requested qualifies as a "record" and, if so, whether it falls within an exemption under section VIII of the Directive as further implemented by §§ 1.329-1.329-4. Except for the establishment of procedures for the review of requests, the Departments and their subordinate organizations shall not, pursuant to § 1.108, issue instructions or regulations establishing standards for determining the release of procurement records without prior approval of the Assistant Secretary of Defense (Installations and Logistics). [32 F.R. 16398, Nov. 30, 1967] § 1.329-3 Exemptions.

(a) The law does not provide an automatic self-executing formula for determining whether a particular record is appropriate for release. Rather nine general categories of exemptions were established to provide the framework within which judgment must be exercised in deciding whether a particular record is exempt from disclosure.

(b) In compliance with DoD Directive 5400.7, records should be made available upon the request of any member of the public if no significant purpose would be served by withholding them under an applicable exemption, provided disclosure is not prohibited by executive order (see paragraph (c) (1) of this section) or by a statute.

(c) In addition to the general discussion of the exemptions in DoD Directive 5400.7, the following guidelines for the review of request for procurement documents are set forth below. In determining whether a procurement record not specifically discussed in §§ 1.329-1.329-4 should be released, the Department of Defense policy regarding the release of

information contained in DoD Directive 5400.7 shall govern.

(1) Matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." Examples of such matters are those classified pursuant to Executive Order 10501, Safeguarding Official Information in the Interests of the Defense of the United States. This exemption would also cover information not classified for security reasons but otherwise required by Executive order to be kept secret in the interests of foreign policy or national defense.

(2) Matters "related solely to the internal personnel rules and practices of an agency." These matters include materials which are intended for the guidance of agency personnel only, including internal rules and practices which cannot be disclosed to the public without prejudice to the proper and efficient performance of an agency function. Examples of such materials are operating rules, guidelines, and manuals of procedure for Government investigators and examiners. Other examples are: Circumstances under which an unannounced inspection or spot-audit of a transaction will be conducted to determine compliance with regulatory requirements; or negotiating or bargaining techniques, positions, or limitations.

(3)

Matters "specifically exempted from disclosure by statute." Examples of such statutes include 18 U.S.C. 1905 for trade and financial information provided in confidence to an officer or employee of the Government; Public Law 86-36 (50 U.S.C. 402 note) for National Security Agency information; the Atomic Energy Act of 1954 (42 U.S.C. 2231); and 35 U.S.C. 181-188 (Patent Secrecy).

(4) Matters that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential." (i) This exemption covers documents containing information which is customarily privileged or confidential and is released to the Government on that basis by an individual, private or public organization, State or local government, foreign government, or international organization. The applicability of this exemption does not depend upon whether the Department obtains the information directly from a person concerned with preserving the confidential nature of the information, such as in the case where a prime contractor submits information from a subcontractor. It may

encompass business statistics, inventory and customer lists, scientific and manufacturing processes and developments, and trade secrets. Such information is generally received in confidence in connection with the receipt of bids and proposals, solicited or unsolicited, and in the course of negotiations. It would also include statistical data or information concerning contract performance, income, profits, losses, and expenditures received from contractors or potential contractors.

(ii) To receive the protection of the exemption, material must be received in confidence or not made generally available by the party furnishing it to the Government. The following are examples of documents which would normally be exempt under this provision: Cost and pricing data submitted by contractors, as described in § 3.807 of this chapter; documents or data appropriate for renegotiation purposes; price analyses based on contractor submitted data (see e.g. § 3.811 of this chapter); documents supporting advance and progress payments; documents received from contractors relating to compliance with labor policies e.g., records of compliance checks; payrolls or certified excerpts); settlement proposals, rejected engineering change proposals, invention reports of disclosures and value engineering proposals.

(iii) Formulae, designs, drawings and specifications, and research data are considered to be items of valuable public property and their release is governed by other DoD Directives and Departmental regulations. Reports or documents which are end items under a contract, or reports recording the results obtained from scientific and technical activities, whether acquired under contract or accomplished by in-house research elements of the Department of Defense, would likewise be governed by appropriate DoD Directives and Departmental regulations.

(5) Matters that are "interagency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." (i) This exemption is intended to recognize that a full and frank exchange of opinions would be impossible if all internal communications were required to be made public. The exemption does not contemplate indiscriminate administrative secrecy, and any internal memoranda which would routinely be disclosed to a private party

through the discovery process in litigation should be available for release to members of the public.

(ii) The following are examples of documents and information not normally available to the public under this exemption: Cost and price analysis as described in Subpart H, Part 3 of this chapter; contractor experience lists; procurement management reviews, such as Contract Performance Evaluation Reports; Government price estimates; preaward surveys and other advisory documents considered by contracting officers in determining contractor responsibility for award purposes and other documents containing staff advice preliminary to an award of a contract; records of Source Selection Boards, Contract Review Boards, etc.; advisory documents regarding termination actions; advisory records concerned with contract administration, such as production surveillance, quality assurance, and inspection reports; and renegotiation reports (see § 1.319).

(iii) Records which are received or generated by a department and which are preliminary to a decision or action, should not be released until such time as disclosure would not be detrimental to the authorized and appropriate purpose for which they are being used. For example, a copy of an IFB intended for public release at a particular time should not be released prematurely, although the document is in final form and ready for distribution. Similarly, advance plans. to procure, lease, or dispose of materials, real estate, or facilities should not be released, particularly when such information would adversely affect the integrity of the procurement process. (See e.g. §1.1007.)

(6) Matters that are "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." A citizen has a right to be secure in his personal affairs when such affairs have no bearing or effect on the general public. This exemption is intended to exclude from disclosure requirements, not only personnel and medical files, but also all private, personal, financial, or business information contained in other files which, if disclosed to the public, would constitute a clearly unwarranted invasion of personal privacy. An example of such similar files are those compiled to evaluate candidates for security clearance-civilian, military, and industrial..

(7) Matters contained in "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." (i) The term "law enforcement" is used in this exemption in its broadest sense and is not limited to the enforcement of criminal statutes only.

(ii) This exemption would include reports under § 1.111 for suspected criminal conduct, noncompetitive practices, and other procurement irregularities or reports on identical bids under § 1.114. It would also encompass Inspector General reports on procurement matters, where reports were compiled for possible law enforcement action. These reports are often generated by specific allegations of procurement irregularities on the part of contractors or Government personnel. Other examples are lists of firms or individuals suspended under § 1.605 or reports under § 1.608; and information received in connection with investigations conducted pursuant to Executive Order 11246 (Equal Opportunity).

(8) Matters "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions."

(9) Matters involving "geological and geophysical information and data including maps, concerning wells." [32 F.R. 16399, Nov. 30, 1967]

§ 1.329-4 Requests for procurement records.

(a) Request for copies of procurement records shall be reviewed in accordance with Departmental procedures issued in accordance with DoD Directive 5400.7.

(b) Request for copies, or for the inspection of procurement records should be addressed to the procuring activity, purchasing office or other appropriate activity having cognizance of the information or document desired by the party making the request. If the identity of the activity is not known, the request should be addressed to the most appropriate office as follows:

Army: Office of the Assistant Secretary of the Army (Installations & Logistics), Department of the Army, Washington, D.C. 20310. Navy: Chief of Naval Material (MAT 05), 18th Street and Constitution Avenue NW., Washington, D.C. 20360.

Air Force: Director, Administrative Services, Headquarters, U.S. Air Force, Washington, D.C. 20330.

DSA: Staff Director, Administration, Headquarters, Defense Supply Agency, Attention DSAH-XA, Cameron Station, Alexandria, Va. 22314.

DCA: Information Services Officer, Room 4430, HQ, DCA, Navy Service Center, 8th and South Courthouse Road, Arlington, Va. 20305.

DASA: HQ, Defense Atomic Support Agency, Washington, D.C. 20305.

[32 F.R. 16400, Nov. 30, 1967]

Subpart D-Procurement Responsibility and Authority

SOURCE: The provisions of this Subpart D appear at 31 F.R. 1039, Jan. 29, 1966, unless otherwise noted.

§ 1.400 Scope of subpart.

This subpart deals with the procurement responsibility and authority of (a) the Head of a Procuring Activity and (b) contracting officers, and with the appointment of contracting officers. This subpart also imposes limitations upon the authority to enter into contracts. For the purpose of this subpart, the term "contracting officer" does not include authorized representatives of the contracting officer.

§ 1.401 Responsibility of each procur ing activity.

Except as otherwise prescribed by procedures of each respective Department, the Head of a Procuring Activity is responsible for the procurement of supplies and services under or assigned to the procurement cognizance of his activity.

§ 1.402 Authority of contracting officers.

Contracting officers are authorized to enter into contracts for supplies or services on behalf of the Government, and in the name of the United States of America, by formal advertising, by negotiation, or by coordinated or interdepartmental procurement, and to administer such contracts, in accordance with this subchapter. This authority is subject to the requirements prescribed in §§ 1.403 and 1.404 and any further limitations, consistent with this subchapter, imposed by the appointing authority.

S 1.404 Special requirements to be met before entering into negotiated con

tracts.

In addition to the requirements in § 1.403, no negotiated contract shall be entered into until the determinations and findings required by Subparts C and O, Part 3 of this chapter, with respect to he circumstances justifying negotiation and with respect to any use of a special method of contracting have been made. 1.405 Selection, appointment, and termination of appointment of contracting officers.

The selection, appointment, and ternination of appointment of contracting Officers shall be made only by the Secresary of the Department, the Head of a Procuring Activity, or their designees.

1.405-1 Selection.

= (a) Considerations. In selecting conGracting officers, the appointing authorty shall consider experience, training, education, business acumen, judgement, character, reputation, and ethics.

(b) Evaluation of experience, trainEng, and education. In considering experience, training, and education, the following shall be evaluated:

(1) Experience in a Government procurement office, commercial procurement, or related fields;

(2) Formal education or special training in business administration, law, accounting, or related fields;

(3) Completion of the Defense Procurement Management Course or other procurement courses; and

(4) Knowledge of the provisions of this subchapter and of other applicable regulations.

§ 1.405-2 Appointment.

(a) Except for those individuals who are designated contracting officers by position, appointment of contracting officers shall be made on DD Form 1539, Certificate of Appointment, issued by the appointing official (see F-200.1539). Any limitations on the scope of the authority to be exercised by the contracting officer, other than those contained in this subchapter, shall be entered on the face of the certificate. Certificates may be serially numbered.

(b) The office of each appointing authority shall maintain a file containing all documents (such as résumés, references, and records of training) necessary to support the appointment of each contracting officer.

86-068-68- -5

Unless

§ 1.405-3 Termination of appointment. (a) Automatic termination. the appointment of a contracting officer contains other provision for automatic termination, the appointment shall remain effective, unless sooner revoked, until the contracting officer is reassigned or his employment is terminated.

(b) Revocation. The appointment of a contracting officer may be revoked at any time by the appointing authority, or higher appointing authority, or any successor to either, but no such revocation shall operate retroactively. Revocation of the appointment shall be made by letter, reading substantially as follows:

To accomplish modification of a contracting officer's authority, his present appointment shall be revoked, and a new certificate issued.

§ 1.405-5 Assignment of duties to contracting officers.

In assignment of duties, including execution and administration of contracts, consideration shall be given to the ability, training and experience of the contracting officer. Duties, involving contracts of large dollar value and complexity, shall be given only to personnel with commensurate experience, training, and ability.

Subpart E-Contingent or Other Fees

SOURCE: The provisions of this Subpart E appear at 25 F.R. 14086, Dec. 31, 1960, unless otherwise noted.

§ 1.500 Scope of subpart.

This subpart sets forth the procedures to be followed and prescribes the form to be used for obtaining information concerning contingent or other fees paid by contractors for soliciting or securing contracts from the Department of Defense, including the Departments of the Army, the Navy, the Air Force, and the Defense Supply Agency.

[27 F.R. 11644, Nov. 27, 1962]