in preparation of a statement of work, or to provide material leading directly and predictably to a statement of work to be used in the competitive procurement of a product or service, that contractor should not be allowed to supply the service, or the product or major components thereof either as a prime or subcontractor or vendor, except when it is determined and justified in accordance with established criteria that such contractor is a sole source for the required product or service. The content of a statement of work is not considered predictable if two or more contractors, unaffiliated with each other, are involved substantially in the preparation of material leading to it. Generally, feasibility studies which do not propose in detail the characteristics of a possible final product, are not work statements and a company should not be barred from bidding subsequently on the product.

(d) If a contractor agrees to prepare and furnish essentially complete specifications to be used in competitive procurement, that contractor should not be allowed to compete either as a prime or subcontractor vendor, for a reasonable period including, at least, the initial procurement. This prohibition should not be applied to:

(1) Contractors who have furnished at ERDA request specifications or data with respect to a product sold to ERDA, even though the specifications or data may have been paid for separately or in the price of the product.

(2) Contractors acting as industry representatives who assist ERDA in preparing, refining, or coordinating specifications, if such assistance is supervised and controlled by ERDA representatives.

(3) Contracts for a developmental or prototype item. However, the principle in the concluding sentence of paragraph (b) should be applied.

(4) Purchases from divisions of or companies affiliated with the performing contractor, provided such purchases are supervised and controlled by ERDA representatives.

consulting services

(e) A contractor performing evaluation or for ERDA in connection with a competitive procurement should not be allowed to evaluate or give other consulting services: (1) on a product or service which the contractor provides; (2) on the product or services of any company with which the contractor has a consulting relationship; or (3) on its own product or on similar services which he has performed for others. Such a contractor should not be allowed to give consulting services to prospective bidders on a procurement item for which it has performed or will perform evaluation services for ERDA. It is recognized that under contracts for the operation of

ERDA facilities and certain research and development contracts, the performing contractor may solicit proposals and advise ERDA concerning proposed purchases from competitors as well as from its own affiliated divisions or companies not directly engaged in the performance of the ERDA contract. In such cases the contracting officer should assure by appropriate review and supervision that the action taken is sound.

(f) A contractor's judgment may be biased because of past or present relationships of its officers or employees with other organizations and because of organizational relationships (e.g., interlocking directorships). In selecting a contractor to develop technical specifications in connection with competitive procurement or to perform evaluation services on technical proposals, consideration should be given to present and past relationships of the contractor's organization and personnel to the companies whose proposals are to be organization and personnel to the companies whose proposals are to be evaluated. In order to avoid or minimize organizational conflicts of interest and to avoid assignments of work which would create unavoidable conflicts of interest, these relationships may require that an organization be eliminated from consideration for selection, or that a reasonable period of restraint, for example, 1 year, be imposed on the organization or on the use of certain employees in the performance of contract work.

(g) Combinations of contracts for architect-engineering and construction services, which may result in self-inspection of construction work, tend to prevent a contractor from rendering unbiased decisions, or create difficulties in segregating costs between contracts, and should be avoided. However, it is recognized that sometimes it is advantageous under carefully circumscribed conditions for ERDA to obligate a single firm to perform both architect-engineer and construction management services which may include performance of a segment of the construction work with the contractor's own forces. Unless otherwise authorized by the senior procurement official, Headquarters, or designee, the following combinations of contracts shall not be awarded to the same firm or to affiliated companies:

(1) CPFF and fixed-price contracts for construction services, for onsite architect-engineer services, or for construction and onsite architect-engineer services, on different construction projects, if the performance of any portion of the work under each contract is to be concurrent and in the same general location.

or

(2) A fixed-price contract or contracts, for both architectengineer and construction services on the same construction project, a CPFF contract for architect-engineer services and a fixed-price contract for construction services on the same construction project. If a firm is to be responsible under such contractual arrangements for

both design and construction services, title III architect-engineer services shall be performed by another organization selected by ERDA.

(3) A CPFF contract for both architect-engineer and construction services on the same project (engineer-constructor contract). If this contractual arrangement is used, the contract shall provide for performance of the title III architect-engineer services by contractor's engineering personnel who are not responsible to the contractor's construction personnel, or the title III services shall be performed by another organization selected by ERDA.

$9-1.5408 Protection and private use of

information and data by contractors.

(a) The contractor's obligations for protection of information and data received from ERDA and other contractors or subcontractors, and for the contractor's private use of contract data first produced in the performance of the contract, are set forth in subparagraph (b) (2) of each Rights in Technical Data clause in Subpart 9-9.2. This subparagraph provides that the contractor may, subject to patent, security or other provisions of the contract, use for its private purposes contract data it first produces in the performance of the contract provided that the contractor has met its data requirements (e.g., delivery of data in the form of progress or status reports specified to be delivered) as of the date of the private use of such data. It is not necessary that a "Final Report" be submitted in order to privately use data if all required progress and interim reports and other technical data then due have been delivered. Paragraph (b)(2) further provides that technical or other data received by the contractor in the performance of the contract must be held in confidence by the contractor in accordance with restrictions accompanying the data.

$9-2.000 Scope.

This part implements and supplements FPR Part 1-2.
Subpart 9-2.2 Solicitation for bids.

$9-2.201 Preparation of invitations for bids.

When an option to increase the quantities specified is employed, the percentage inserted in the option should not normally exceed 25 percent. The following language is suggested for incorporation in invitations for bids:

"The Government reserves the right to increase or decrease the quantity specified in any item of the schedule by percent without change in the unit price, if at any time during the life of the contract such an increase or decrease shall be determined to be in the interests of the Government.

When the contract contains a provision for termination for convenience of the Government, the words "or decrease" in the option may be deleted.

$9-2.202-50 Postponement of bid openings.

Whenever such action is determined by the head of the procuring activity or designee to be in the best interest of the Government, bid openings may be postponed by issuance and distribution to all prospective bidders of an amendment (see FPR 1-2.207) to the invitation for bids. Notices of Postponement shall be issued by mail or telegraph as early as possible, but in any event prior to the time specified for the opening of bids.

(b) When it is deemed necessary to use paid advertisements in newspapers, written authority for such publication shall be obtained from the head of the procuring activity or designee.

Subpart 9-2.4 Opening of Bids and Award of Contract.

$9-2.401 Receipt and safeguarding of bids.

Envelopes, or other outer covering, containing identified bids shall be time-stamped (indicating the place, date, and time of receipt) upon receipt, either in a mail room or other receiving point at the address specified in the invitation.