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tion, or subsection of the FPR, the im- the deviation, and shall give the reaplementing or deviating part, subpart, sons for the requested action. section, or subsection of Chapter 23 (b) If a requested deviation is considwill be numbered and captioned to cor- ered appropriate, approval will be acrespond to the pertinent part, subpart, complished as follows: section, or subsection of the FPR.

(1) Where the deviation affects an (c) Where Chapter 23 supplements individual contract, written approval the FPR, numbers in the group 50 to will be included in the contract file. 99 will be assigned to the respective (2) Where the deviation applies to a supplementing part, subpart, or sec- class of cases under the FPR, necestion.

sary coordination with the General (d) Where the Agency determines Services Administration will be accomthat the subject matter contained in a plished on an expedited basis by the part, subpart, section, or subsection of Executive Director, unless in the conthe FPR requires no implementation, sidered judgment of the Executive Dithe ACDAPR will contain no corre- rector, circumstances preclude such sponding part, subpart, section, or sub joint effort, in which case he will section number and the subject matter notify the General Services Adminisas published in the FPR governs.

tration of the deviation.

(3) Deviations affecting a class of § 23-1.107–3 Citation.

cases under ACDAPR will be presentACDA procurement regulations will ed to the Director for his approval. be cited in accordance with FEDERAL (4) Such class deviations will become REGISTER standards approved for the effective within the Agency upon apFPR. Thus, the section, when referred proval by the Director and will be to in divisions of the ACDAPR, should issued as part of the ACDAPR. be cited as “$ 23-1.107-3 of this chapter.” When this section is referred to Subpart 23-1.2-Definition of Terms formally in official documents, such as legal briefs, it should be cited as “41 $ 23–1.201 Definitions. CFR 23-1.107-3”. Any section of the

For the purposes of this chapter, the ACDA Procurement Regulations may

following terms have the meanings set be informally identified, for purposes

forth in this subpart, unless otherwise of brevity, as ACDAPR followed by

indicated. the section number, e.g., “ACDAPR 23-1.107-3”.

$ 23–1.204 Head of the Agency. $ 23-1.108 [Reserved)

The “head of the agency” means the

Director or Acting Director of the U.S. $ 23-1.109 Deviation.

Arms Control and Disarmament Deviation from the Federal Procure

Agency. ment Regulations and the ACDA Pro

$ 23–1.205 Procuring activity. curement Regulations shall be kept to a minimum and controlled as follows:

The organizational element of (a) Deviations in individual cases

ACDA which has responsibility to conmust be approved in advance by the

tract for the procurement of personal Executive Director. This authority property and services (including conmay not be redelegated. Deviations in struction) and the acqusition of real classes of cases must be approved in property by lease is the Office of the advance upon request by the Execu Executive Director. tive Director. Requests for deviation

$ 23-1.206 Head of the procuring activity. (or in the case of a deviation affecting an individual contract signed in behalf The “head of the procuring activity” of the Agency by the Executive Direc within ACDA is the Executive Director, the memorandum for the record) tor. shall cite the specific parts and sections or subsections of the FPR and 923

$ 23-1.250 ACDA. ACDAPR from which it is desired to “ACDA” means the U.S. Arms Condeviate, shall set forth the nature of trol and Disarmament Agency.

F $ 23-1.251 Agency. ON “Agency” means the U.S. Arms Conbei trol and Disarmament Agency. ts: $ 23-1.252 Director.

“Director” means the head of the Agency.

ment by formal advertising or by negotiation, or during the performance of any contract, they will prepare and forward a complete report through the Executive Director to the Office of the General Counsel for appropriate action.

(b) In case of possible violation of the antitrust laws, the report will be prepared in accordance with Subpart 1-1.9 of this title.

Subpart 23-1.3—General Policies

Subpart 23-1.4-Procurement Authority and Responsibility

de $ 23-1.302 Procurement sources. 23-1.302-3 Contracts between the Gov.

ernment and Government employees or business concerns substantially owned or controlled by Government employ

ees.

Any exception, as described in 1$ 1.302-3 of this title, must be supported

by written findings and a determina-
tion signed by the Director.
§ 23–1.317 Noncollusive bids and propos-

als.
The Executive Director is designated
to make the determinations described
in paragraph (d) of the Certificate of
Independent Price Determination pre-
scribed in § 1-1.317 of this title.
$ 23-1.350 Execution of contracts.

Contracts, purchase orders, delivery orders, Government bills of lading, and other types of purchasing documents will be executed only by the Executive Director, the Chief of the Contracts Branch, or Contract Specialists acting within the scope of their delegated authority (See Part 23-51). They may also be executed by other officials holding valid written delegations or redelegations or procurement authority issued by the Director or other officer of the Agency designated by the Director in writing to make such delegations or redelegations. The approval of legal counsel as to form and legality will be required for contracts, and for other contractual instruments where specific legal questions arise.

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$ 23–1.402 Authority of contracting offi

cers. (a) An employee binds the Government only when his actions are in accordance with authority actually granted to him. Contracting officers are agents of the Government and shall act in accordance with law, regulations including FPR and ACDAPR, other pertinent directives, and sound judgment, and within the limits of their prescribed duties and authorities.

(b) Contracting officers shall personally sign all contracts and modifications entered into by them (see § 231.104). Duplicate original signatures, including facsimile signatures reproduced from a master signed manually by the contracting officer, are valid and acceptable. § 23–1.404-2 Designation.

Delegations and redelegations of authority are generally directive on specific positions, rather than specific individuals. When a specific position carries delegated or redelegated contracting authority, an individual appointed to such a position is, therefore, a contracting officer. Such appointments are normally made by means of administrative personnel actions. When an individual is designated as a contracting officer by an instrument other than a personnel action, a copy of the designating instrument shall be forwarded to the appropriate personnel office for inclusion in the file of the individual affected.

$ 23-1.352 Fraud against the Government

and other violations of law. (a) In the event procurement personnel have reason to believe there exists evidence of fraud against the Government or any other violation of law of any nature whatsoever in the procure

PART 23-3—PROCUREMENT BY

NEGOTIATION

Subpart 23-3.1-Use of Negotiation

$ 23–1.404-3 Termination of designation.

Designations shall be rescinded in the same manner upon termination of the assignment (but special assignments may be self-rescinding, as, for example, an assignment made in terms of the life of a specific contract, in which case a separate recission instrument would not be required). 8 23-1.450 Contracting officers' repre

sentatives. (a) Any properly qualified Government employee or group of employees, or a firm or individual under contract to the Government for this purpose, may be designated to act as the authorized representative of a contracting officer. Such designation shall be in writing and shall define the scope and limitations of the authorized rep. resentative's authority.

(b) A designation authorized by this § 23-1.450 may be made by instructions referring to particular contractual instruments or categories of instruments and may empower the authorized representative to take specified actions thereunder within the scope of the contract. In no event shall an authorized representative, by virtue only of his designation as such, be empowered to modify the terms of the contract or make a final decision under the Disputes clause of a contract.

Sec. 23-3.100 Scope of subpart. 23-3.101 General requirements for negotia

tion. 23-3.102 Factors to be considered during

the negotiation of contracts. 23-3.103 Dissemination of procurement in

formation. 23-3.104 Disclosure of mistakes. 23-3.150 Contractor Selection Board. 23-3.150-1 Establishment of the Board. 23-3.150-2 Evaluation of proposals. 23-3.150-3 Notification to unsuccessful of.

ferors. 23-3.150-4 Recommendation to the Direc

tor. 23-3.150-5 Restriction on disclosure of

Contractor Selection Board Reports.

Subpart 23–3.2-Circumstances Permitting

Negotiation

23-3.202 Public exigency. 23-3.202-50 Application. 23-3.204 Personal or professional services. 23-3.204-50 Application. 23-3.204-51 Limitations. 23-3.206 Purchases outside the United

States.

Subpart 23-3.4—Types of Contracts 23-3.405 Cost-reimbursement type con

tracts. 23-3.405-5 Cost-plus-a-fixed-fee contract. 23-3.405-50 Cost-plus-award-fee contract.

$ 23-1.451 Assignment of duties to con

tracting officers in other agencies. A contracting officer may assign administration of a specific contractual instrument to another contracting officer, provided the assignee contracting officer's delegated authority permits, and the contractor shall be so notified. Such an assignment shall define the extent to which part or all of the original contracting officer's authority is transferred but shall not pass on to the successor any authorities which would exceed the limitations imposed on the successor by existing directives.

Subpart 23-3.50—Solicitation of Proposals and

Quotations 23-3.5001 Late proposals and modifica

tions. 23-3.5002 Treatment of procurement infor

mation. 23-3.5002-1 Restrictions on disclosure and

use of data in proposals and quotations. AUTHORITY: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c); sec. 302, 63 Stat. 393, 41 U.S.C. 252; sec. 304, 63 Stat. 395, 41 U.S.C. 254; sec. 307, 63 Stat. 396, 41 U.S.C. 257; sec. 1, 81 Stat. 54, 5 U.S.C. 552; sec. 41, 75 Stat. 631; 22 U.S.C. 2581.

SOURCE: 33 FR 19228, Dec. 24, 1968, unless otherwise noted. oth

§ 23-1.452 Availability of funds.

No contractual obligation may be in curred until the contracting officer has satisfied himself that adequate funds are available.

Subpart 23-3.1–Use of Negotiation

number of possible sources ascertained to have qualifications in the particular

area of service concerned. These re§ 23-3.100 Scope of subpart.

quests for proposals are announced in This subpart deals with the nature

the “United States Department of and use of negotiation as distinguished

Commerce Synopsis of U.S. Governfrom formal advertising as a means of

ment Proposed Procurements, Sales, procurement, and with limitations on

and Contract Awards,” in accordance that use.

with the provisions of 15 U.S.C. 637,

for the information of any potential § 23-3.101 General requirements for nego

offeror. However, certain tiation.

procure

ments need not be so announced, such (a) Under Section 31 of the Arms

as those of a classified nature, those Control and Disarmament Act (22 for services from an educational instiU.S.C. 2571), the Director, in carrying

tution, and those for personal or proout his responsibilities, is authorized

fessional services. to make arrangements (including contracts, agreements, and grants) for $ 23-3.102 Factors to be considered during the conduct of research, development,

the negotiation of contracts. and other studies in the field of arms control and disarmament by U.S. pri

Among those factors to be considvate or public institutions or persons.”

ered in the preparation of requests for This authority is initially exercised

proposals is the need for auditing of under the Federal Property and Ad. the contractor's records (see Subpart ministrative Services Act of 1949. as 1-3.8 of this title). amended, and under the Federal Procurement Regulations issued by the 82

$ 23-3.103 Dissemination of procurement General Services Administration pur

information. suant thereto. Except under certain In addition to FPR requirements for circumstances set forth in those regu- publication of procurement opportunilations, Government contracts for sup ties, information on current and proplies and services are required to be posed research and study programs is made only after formal advertising available upon request. and competitive bidding. The purpose is to give all qualified persons an equal $ 23-3.104 Disclosure of mistakes. opportunity to compete for Govern

(a) If the contracting officer has ment contracts; to avoid favoritism or

reason to believe that an offeror has collusion in the letting of contracts;

made a mistake he shall obtain verifiand, most important of all, to increase the Government's chances of finding

cation of the proposal or quotation

from the offeror. the particular organization or individ

(b) Correction of mistakes after ual who will best supply the Government's needs for supplies or services,

entry into force of a contract shall be price, and other factors considered.

made in accordance with the provi(b) For the same reasons, where

sions of § 1-2.406-4 of this title to the formal advertising for bids is deter

extent applicable. The extraordinary mined to be impracticable, as may be

contractual authority established by the case with Agency research con

Pub. L. 85-804 (50 U.S.C. 1431-1435) is tracts, the requirement for negotiated not available to the Agency for the contracts resulting from competitive correction of mistakes. proposals obtains. The proposals must be obtained from all known qualified

$ 23-3.150 Contractor Selection Board. sources and the procurement opportu

$ 23-3.150-1 Establishment of the Board. nity synopsized to assure maximum full and free competition consistent A Contractor Selection Board, whose with the needs of the Government. membership is approved by the Direc

(c) Accordingly, the Agency normal. tor, is established for each prospective ly procures research services by send contract for which competitive proposing out a request for proposals to a als are to be solicited.

$ 23-3.150-2 Evaluation of proposals. $ 23-3.202–50 Application.

(a) In evaluating proposals, unless Examples of circumstances when use otherwise set forth in the Request for of the authority cited in § 23-3.202 Proposal, the Board shall give primary may be justified include the following: and equal consideration to (1) the (a) Specialized studies to support degree of initiative and imagination elements of arms control proposals displayed, (2) the caliber and experi. being considered urgently for internaence of the personnel involved, and (3) tional negotiations. the soundness of the offeror's ap- (b) Development or production of proach.

verification equipment urgently (b) After elimination of proposals on needed to support obligations assumed the basis of the foregoing, then price by the United States under executive and other factors in relation to the agreement or treaty. work to be performed will be considered for purposes of final selection.

$ 23–3.204 Personal or professional serv

ices. $ 23–3.150-3 Notification to unsuccessful

Pursuant to section 302(c)(4) of the offerors.

Federal Property and Administrative As deliberations of the Board prog- Services Act (41 U.S.C. 252(c)(4)), purress and offerors are definitely elimi chases and contracts may be negotiatnated from further consideration, the ed if "for personal or professional Chairman shall make recommenda services." tions to the Contracting Officer (and supply him with the pertinent infor- $ 23-3.204-50 Application. mation) with respect to the notifica (a) This authority shall be used tion of unsuccessful offerors who have when the following conditions have been eliminated from consideration. been satisfied:

(1) If personal services, they are re$ 23-3.150-4 Recommendation to the Di

quired to be performed by an individurector.

al contractor in person (not by organiAfter the Contractor Selection zation or other association) and are to Board has completed its evaluation of be performed under Government suall proposals received, the Board shall pervision and paid for on a time basis. recommend in writing to the Director (2) If professional services, they may its selection of the proposed contrac be performed either by an individual tor to perform the work.

person or by an association.

(3) Procurement of the services is $ 23-3.150-5 Restriction on disclosure of authorized by law and is effected in

Contractor Selection Board Reports. accordance with the requirements of Because of the confidential nature any such law. of information supplied by the

(b) Under section 41(d) of the Arms offeror(s) and of the evaluations con

Control and Disarmament Act (22 tained in the Contractor Selection

U.S.C. 2581), the Agency is authorized Board's report, the report shall not be

to: Procure services of experts and made available to the public.

consultants or organizations thereof, including stenographic reporting serv

ices, as authorized by section 15 of the Subpart 23-3.2-Circumstances

Act of August 2, 1946 (5 U.S.C. Permitting Negotiation

3109(b)), at rates not to exceed $100

per diem for individuals, and to pay in $ 23-3.202 Public exigency.

connection therewith travel expenses Pursuant to section 302(c)(2) of the of individuals, including transportaFederal Property and Administrative tion and per diem in lieu of subsistServices Act (41 U.S.C. 252(c)(2)), pur- ence while away from their homes or chases and contracts may be negotiat. regular places of business, as authored if: “the public exigency will not ized by section 5 of said Act, as amendadmit of the delay incident to adver- ed (5 U.S.C. 5703): Provided, That no tising."

such individual shall be employed for

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