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302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, permits negotiation when otherwise authorized by law, provided that in such event the requirements of that Act shall apply. Accordingly when the Federal Property and Administrative Services Act of 1949, as amended, or the Atomic Energy Act of 1954, as amended, or other law is used as the basis for negotiation, the requirements of section 304 of the Federal Property and Administrative Services Act of 1949, as amended, are applicable, except as provided in these regulations.

(b) Contracts to support industrial mobilization plans may be negotiated under section 302(c)(1) of the Federal Property and Administrative Services Act of 1949, as amended, or section 302(c)(15) of that Act and the Atomic Energy Act of 1954, as amended, if the requisite circumstances exist and the required findings and determinations can be made.

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This exception may be applicable where a facility must be altered or repaired immediately in order not to interfere with essential production and the need for the work could not have been reasonably foreseen.

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(a) Formal advertising procedures shall not be used for tracts for architect-engineer or other professional engineering services. Such contracts may be negotiated under section 302(c) (4) of the Federal Property and Administrative Services Act of 1949, as amended, or section 302(c)(15) of that Act and the Atomic Energy Act of 1954, as amended. However, the exemption provided for in $9-3.405-5(b) does not apply to contracts negotiated under section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended.

(b) Surveying, mapping, and field or laboratory tests of construction workmanship and materials and equipment should be classified as professional services when they clearly require planning direction, supervision, or interpretation by professional engineers as a condition of performance, or when the contractor will be required to assume responsibility for the professional adequacy and accuracy of results. Depending upon the nature and requirements of a particular contract, professional engineering services may involve activities such as the following:

(1) Overall direction of the technical work.

(2) Supervision of work performed by technicians, subprofessionals, or non-professional employees.

(3) Determination of the methods or procedures for accomplishing the requirements of the contract.

(4) Interpretation of the methods or procedures for accomplishing the requirements of the contract.

(5) Direct performance of required professional services.

(c) When the services are such that the planning and execution can be performed by personnel having only a practical knowledge of the use of instruments and techniques, such as routine aerial photographing and testing, and do not require any professional engineering competence or judgment, the "personal or professional serices" exception to the formal advertising requirement is not applicable.

(d) Surveying, mapping, and testing services.

In 1959 the American Society of Civil Engineers adopted a policy statement that land surveying, engineering surveying, geodetic surveying, and cartographic surveying, commonly designated as surveying and mapping, are a part of the civil engineering profession. The report of the ASCE Task Committee on Status of Surveying and Mapping may be used for guidance in determining which positions should be considered as professional and which should be considered subprofessional.

59-3.212 Purchases not to be publicly disclosed.

The General Manager of AEC (now Administrator of ERDA) has made a class finding and determination in accordance with the requirements of section 302(c)(12) and section 307 of the Federal Property and Administrative Services Act of 1949, as amended, to the effect that procurements classified in accordance with applicable laws, regulations, and policies, because of their classified nature cannot be publicly disclosed and, based upon these findings and determinations, has authorized the negotiation of contracts falling within this class of procurement without further referral to Headquarters.

$9-3.213 Technical equipment requiring standardization and interchangeability of parts.

If section 302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, and the Atomic Energy Act of 1954, as amended, are used as the bases for negotiation, the example of findings and determinations set forth in FPR 1-3.213(c)(2) shall be appropriately modified to state the authority for negotiations.

$9-3.215 Otherwise authorized by law.

(a) The Atomic Energy Act of 1954, as amended, and the Atomic Energy Community Act of 1955, as amended, contain various exemptions from section 3709 of the Revised Statutes, as amended. Pursuant to section 310 of the Federal Property and Administrative Services Act of 1949, as amended, these references to section 3709 shall be construed to authorize procurement pursuant to section 302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, without regard to the advertising requirements of sections 302(c) and 303 of that Act. The situations enumerated in FPR 1-3.201 through 1-3.214 are illustrative of situations which could support a finding and determination under the Atomic Energy Act of 1954, as amended, that advertising is not reasonably practicable, or, as appropriate, that negotiation is necessary in the interest of common defense and security.

(b) The Atomic Energy Act of 1954, as amended, also provides in section 162 that the President may, in advance, exempt any specific action of the Commission (now ERDA) in a particular matter from the provisions of law relating to contracts whenever he determines that such action is essential in the interest of the common defense and security.

(c) Every contract negotiated under the authority of section 302(c) (15) of the Federal Property and Administrative Services Act of 1949, as amended, and the Atomic Energy Act of 1954, as amended, shall be supported by a determination and findings justifying use of such authority.

Subpart 9-3.3 Determinations, Findings, and Authorities

$9-3.301 General.

Except as otherwise provided in §9-3.302, the determinations and findings required by FPR Subpart 1-3.3 shall be made. Except as otherwise provided in §9-3.303, the determinations and findings required by FPR Subpart 1-3.3 may be made and executed by contracting officers, or by ERDA Headquarters officials that have been delegated authority to select contractors.

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The determination and finding required by FPR 1-3.302(d) is not required when the contract is negotiated under the Atomic Energy Act of 1954, as amended.

$9-3.303 Determinations and findings by the Head of the Agency. determinations supporting negotiation under the

Findings and

authority of the Federal Property and Administrative Services Act of 1949, section 302(c) (11) (FPR 1-3.211), with respect to contracts which will not require the expenditure of more than $25,000 may be executed by the head of the procuring activity and senior program officials or designees. Findings and determinations for such contracts in excess of $25,000 and in support of contracts negotiated pursuant sections 302(c)(12) and 302(c) (13) of the Federal Property and Administrative Services Act of 1949 as amended, (FPR 1-3.212 and

to

1-3.213) shall be executed by the Head of the Agency.

Subpart 9-3.4 Types of Contracts

$9-3.404-50 Lump-sum contract for architect-engineer services with reimbursement for certain costs.

(a) Description: This type of contract normally provides for a fixed amount or lump sum for the A-E services (see $9-18.306-50(b)(1) for definition of these services) plus reimbursement of, or payment of an additional lump sum for certain costs to the extent they are incurred in connection with the work and approved by the contracting officer. These costs generally are not susceptible of reasonable estimation in advance due to a wide variation in the extent the related services are required for various projects, or they are for services not normally a part of titles I, II, and III.

(b) Compensation is included in the lump sum derived from the fee schedule for all drawings, plans, and documents prepared and reproduced under title I, except those which are reimbursable in conjunction with field surveys and sub-surface investigations; for all drawings, specifications, invitations for bid, and other related documents prepared and reproduced under title II, prior to approval of title II design by ERDA and for preparation of reproducible copies and furnishing 20 copies of such drawings and documents after approval by ERDA and for reproducible "as-built" record drawings and marked-up "as-built" specifications prepared under title III (including updated master linen tracings, or reproducible linen tracings from the master set, if so-specified in the contract). The provisions of the applicable Government Printing and Binding Regulations must also be observed.

(c) Where the contractor's responsible supervising representative, or an officer, proprietor, executive, or administrative head of the contractor participates directly in the performance of any of the services he may be compensated for the time actually so engaged. The rate of compensation, including the allocation of home office expenses, if any, shall be subject to approval by the contracting officer and commensurate with the cost of employing another qualified person to do such work, but the salary portion should not exceed the actual salary rate of the individual concerned.

(d)

The costs listed in paragraphs (a) and (c) of this section cover services that are normal to complete titles I, II, and III services. No profit should be included in the additional compensation for those services because the architect-engineer's profit for the service is included in the lump-sum amount determined from the fee schedule. In order to ensure adequate technical services, they may be paid for an on actual cost basis. However, if it is considered to be more advantageous to the Government, an additional lump sum should be negotiated to cover the costs, in the case of personal services such as inspectors, a daily rate may be negotiated. The calculation of the additional lump sum, or daily rate, should show clearly the amount

allowed for each of the services or elements of cost.

(e) Services may be furnished by ERDA instead of reimbursing the contractor for the expenses. The type of services that will be furnished should be stated in the contract.

(f) If services are furnished that are beyond titles I, II, and III, such as developmental work, special engineering studies, and the preparation of special documents such as operating and maintenance manuals, additional compensation, including profit, should be paid for such services. Note that preliminary proposals and construction completion reports normally are considered as part of titles I and

III.

(g) Use of lump-sum contract.

(1) A lump-sum contract for architect-engineer services should be used wherever it is practicable to compile, in advance of the preparation of plans and specifications, adequate information specifically describing the character and extent of services required.

(2) When there is insufficient scope information available to permit contracting for complete services (titles I, II, and III) on a lump-sum basis, and when it may be to the advantage of the Government to do so, consideration should be given to contracting only for a study contract or for the preliminary engineering (title L), on either a reimbursable or lump-sum bsis, in order to permit entering into a lump-sum contract for the remaining portion of architect-engineer services (titles II and III), based upon information developed in the first phase.

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(a) The authority to determine under FPR 1-3.405(d)(1)(ix) that the applicaton of the policy of limiting interim payments on cost-reimbursement type contracts to 80 percent of costs incurred would impose undue hardship on the contractor or adversely affect the interests of the Government is delegated to the head, procuring activities.

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