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more than 100 days in any fiscal year unless the President certifies that employment of such individual in excess of such number of days is necessary in the national interest: And provided further, That such contracts may be renewed annually;

(c) 5 U.S.C. 3109(b), in turn, provides authority to procure by contract: The temporary (not in excess of 1 year) or intermittent services of experts or consultants or an organization thereof, including stenographic reporting services.

§ 23-3.204-51 Limitations.

It is ACDA general policy to obtain personal services of experts and consultants by appointment rather than by contract. Contracts negotiated under other authority are not subject to the requirements and limitations of this § 23-3.204.

§ 23-3.206 Purchases outside the United States.

Section 31 of the Arms Control and Disarmament Act (22 U.S.C. 2571) limits the authority of the Agency to contract for the conduct of research, development, and other studies in the field of arms control and disarmament to U.S. private or public institutions or persons.

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(4) An additional adjustment to the base fee, not to exceed a stipulated maximum, which is awarded on the basis of the subjective evaluation by ACDA of contractor performance; and (5) Specific provision that the determination of fee adjustment shall not be subject to the contract article entitled "Disputes".

(b) Application. The cost-plusaward-fee contract is suitable for use when:

(1) A cost-reimbursement-type contract is found necessary or particularly pertinent;

(2) The work to be performed is such that specific quantitative or objective measurement is not feasible and effective incentive arrangements cannot be devised on the basis of cost or performance (see § 1-3.405-4 of this title);

(3) Agency procurement objectives will be advanced if the contractor is effectively motivated to exceptional performance; and

(4) Any added administrative effort and costs required to monitor and evaluate performance are justified by the anticipated benefits.

(c) Considerations of concept. (1) The opportunity for increase in earned fees is intended to motivate the contractor to manage effectively the required work to control costs, and to improve the timeliness, quality, and quantity of performance.

(2) The award fee should be earned by the contractor for exceptional performance, surpassing minimum acceptable levels and should be commensurate with the benefits accruing to the Agency from the contractor's performance. The contractual terms may generally obligate the contractor to devote a specified level of effort for a stated period of time to satisfy the various aspects of the scope of the work; it follows that the award of additional fee for exceptional performance in designated areas should be contingent upon an acceptable level of performance for all other contract requirements. Although determination of the amount of award fee is a unilateral one based on subjective evaluations, the decision may be aided by such quantifying devices as adjectival ratings, point systems or percentages of achievement. Ordinarily, the award

fee adjustments will be increases only, and contract arrangements for decreases in base fee (e.g., if certain criteria or levels of performance are not met) must be carefully scrutinized prior to approval for use. Such arrangement must provide that the contractor will be informed of the reasons for decrease in fee, and will be given specific opportunity to submit information on his behalf prior to decision by the official responsible for fee adjustment.

(d) Limitations. (1) The cost-plusaward-fee contract shall not be used (i) in procurements in which all factors affected by the incentive (e.g., cost, delivery, or performance) can be measured or objectively evaluated, or (ii) where the contract amount, term of performance or anticipated benefits are insufficient to warrant the additional administrative effort or cost.

(2) The maximum fee, comprising base fee, award fee and any other incentive fee payable under the contract may not exceed the maximum fee prescribed by law or regulation for research and development, or for supply contracts.

Subpart 23-3.50-Solicitation of Proposals and Quotations

§ 23-3.5001 Late proposals and modifications.

(a) This section shall apply only to purchases in excess of $2,500.

(b) Written requests for proposals shall contain the following provisions: Offerors using certified mail are cautioned to obtain a Receipt for Certified Mail showing a legible, dated postmark and to retain such receipt against the chance that it will be required as evidence that a late proposal was timely mailed.

(c) Proposals which are received in the office designated in the requests for proposals after the time specified for their submission are "Late Proposals". Unless a specified time for receipt of proposals is stated in the request for proposals, the time for such receipt shall be deemed to be the time for close of business of the office designated for receipt of proposals on the date stated in the request for proposals. Late proposals shall not be consid

ered for award, except under the following circumstances:

(1) Only one proposal is received; or (2) Under the circumstances set forth in § 1-2.303 of this title permitting consideration of late bids if proven to have been timely mailed or timely filed with the telegraph compa

ny.

(d) When it has been determined that a late proposal will not be considered for award, the offeror shall be notified promptly of the fact.

(e) Late modifications shall be subject to the rules applicable to late proposals set forth in this section. The normal revisions of proposals by selected offerors occurring during the usual conduct of negotiations with such offerors are not to be considered as late proposals or late modifications. (f) All the provisions of this section are equally applicable to late quotations.

§ 23-3.5002 Treatment of procurement information.

§ 23-3.5002-1 Restrictions on disclosure and use of data in proposals and quotations.

(a)(1) A proposal, whether solicited or unsolicited, may include data, such as a technical design or concept of financial and management plan, which the offeror does not want disclosed to the public for any purpose or used by the Government for any purpose other than evaluation of the proposal. If an offeror wishes so to restrict his proposal, he shall mark the title page with the following legend:

This data, furnished in connection with Request for Proposals No. ———, shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate the proposal; Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the contract. This restriction does not limit the Government's right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction is contained in Sheets

If proposal is unsolicited, delete "furnished in connection with Request for Proposals No.

(2) The offeror shall mark each sheet of data which he wishes to restrict with the following legend:

Use or disclosure of proposal data is subject to the restriction on the Title page of this proposal.

Contracting Officers and other Agency personnel shall not refuse to consider any proposal merely because it or the data submitted with it is so marked. Those portions of the proposal and data which are so marked (except for information which is also obtained from another source without restriction) shall be used only to evaluate the proposal and shall not be disclosed outside the Government without the written permission of the offeror. If it is desired to duplicate, use, or disclose the data of the offeror to whom the contract is to be awarded, for purposes other than to evaluate the proposal, the contract should so provide. (See Part 23-52 of this chapter for a description of "data" and, in general, for the policy, instructions, and contract clauses with respect to the acquisition and use of data.)

(b) Proposals of subcontractors which are included as part of a proposal submitted by a prime-offeror shall be marked as provided in paragraph (a) of this section if the subcontractor wishes so to restrict his proposal.

(c) The provisions in paragraphs (a) and (b) of this section are also applicable to quotations. In the case of a request for quotations, the legends in paragraph (a) of this section shall be appropriately modified.

PART 23-4-SPECIAL TYPES AND METHODS OF PROCUREMENT

Sec.

23-4.000 Scope of part.

Subpart 23-4.51-Unsolicited Proposals 23-4.5101 Definitions. 23-4.5102 Policy. 23-4.5103 Procedures.

AUTHORITY: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and sec. 41, 75 Stat. 631, 22 U.S.C. 2581.

SOURCE: 33 FR 19230, Dec. 24, 1968, unless otherwse noted.

§ 23-4.000 Scope of part.

This part implements and supplements the policies and procedures set

forth in Part 1-4 of the Federal Procurement Regulations.

Subpart 23-4.51-Unsolicited Proposals

§ 23-4.5101 Definitions.

An "unsoliciated proposal" is a written offer to undertake research, development or studies in the field of arms control and disarmament submitted by any offeror solely on his own initiative and not in response to a specific request made by ACDA.

§ 23-4.5102 Policy.

A limited exception to the general requirement of competition in Government procurement arises in connection with unsolicited proposals. When a proposal for services has been submitted by an offeror upon his private initiative, it might not be equitable for the Agency to seek competing proposals. Because the considerations here are equitable in nature, the determinations must depend on consideration of the facts of each case and the extent to which the inequity to the proposing party is so great that the Government may be limited in the method of procurement. Several guiding principles can be stated:

(a) An unsolicited proposal must be truly unsolicited, and not the result of formal or informal requests for proposals made by Agency representatives.

(b) An unsolicited proposal should not merely anticipate a particular research project. Thus, for example, an offeror reading the Congressional report of hearings on the Agency's appropriation and quickly submitting a proposal on a project which the Agency clearly contemplated undertaking by contract during the fiscal year in question, does not meet valid criteria governing unsolicited proposals.

(c) An unsolicited proposal should represent a considerable investment of time and effort by the offeror. Thus, in order to qualify for a contract negotiated without competition, an unsolicited proposal should be an unusual, detailed, original, thoroughly developed conception of a project, which

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could result in furthering the Agency's statutory responsibilities. (See § 233.5002-1 of this chapter for protection of proprietary data contained in proposals.)

§ 23-4.5103 Procedures.

(a) Each unsolicited proposal shall be examined in detail, the facts evaluated in light of the equities involved, and documentation of the factors considered in such evaluation retained. Contracting for research, development or studies on the basis of unsolicited proposals may be undertaken only after the following steps are taken:

(1) The designated representative of the Bureau or Office most likely to sponsor the work by reason of its responsibilities, considers, coordinates, analyzes, and evaluates the proposal.

(2) If the unsolicited proposal is deemed to be worthy of sponsorship by the Bureau or Office head, he shall submit a memorandum to the Research Council (see 22 CFR 603.14) recommending that the research should be conducted under a contract.

(3) If the Research Council approves the proposal, it is referred to the Director for his authorization of negotiation of the contract.

(b) When an unsolicited proposal has been determined to be unacceptable, the Bureau or Office head will notify the offeror in writing of this fact and the reasons therefor.

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§ 23-7.100 Scope of subpart.

(a) This subpart sets forth contract clauses to be used in fixed price supply contracts and, to the extent appropriate, in fixed price contracts for research and development.

(b) As used throughout this subpart, the terms "fixed price contract" shall mean any contract (1) entered into either by formal advertising or by negotiation (other than small purchases negotiated under the authority of 41 U.S.C. 252(c)(3)); (2) for a stipulated set sum of money (with or without provision for price redetermination, escalation or other form of price revision); (3) covering the acquisition of supplies or services, or both.

§ 23-7.102 Clauses.

§ 23-7.102-1 Definitions.

(a) Clause:

DEFINITIONS

As used throughout this contract, the following terms shall have the meaning set forth below:

(a) The term "head of the Agency," "Secretary" or "Director" means the Director of the U.S. Arms Control and Disarmament Agency; and the term "his duly authorized representative" means any person or persons or board (other than the Contracting Officer) authorized to act for the Director.

(b) The term "Contracting Officer" means the person executing this contract on behalf of the Government, and any other officer or civilian employee who is a properly designated Contracting Officer, and the term includes, except as otherwise provided in this contract, the authorized representative of the Contracting Officer acting within the limits of his authority.

(c) Agency means that U.S. Arms Control and Disarmament Agency.

(d) Except as otherwise provided in this contract, the term "subcontracts" includes agreements for experts and consultants and purchase orders under this contract.

(b) Additional definitions may be included in the clause set forth in paragraph (a) of this section to the extent they are consistent with the clause of this subpart.

§ 23-7.102-2 Changes. (a) Clause:

CHANGES

The Contracting Officer may at any time issue written directions requiring additional work or directing the omission of or variations in work covered by this contract and within the general scope thereof. If any such direction results in a change in the amount or character of the work provided for herein, an equitable adjustment shall be made in the contract price or delivery schedule (or both) and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within sixty (60) days from the date of receipt by the Contractor of the notification of change; Provided, however, That the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled "Disputes." However, nothing in this clause shall excuse the Contractor from proceeding with the contract as modified.

(b) In the foregoing clause the period of "sixty (60) days" within which any claim for adjustment must be asserted may be varied, but in no case may the period be for less than 30 days or for more than 120 days.

§ 23-7.150 Materials.

MATERIALS

(a) The term "Materials" as used herein includes: All writings representing the Contractor's documentary work in process, including but not limited to completed documents, working papers, drafts; all technical data (including but not limited to drawings, graphic or recorded matter) relating to uses, products, processes, patents and inventions; required for delivery to the Government under the contract. The Contractor shall identify and appropriately mark all data containing the Contractor's proprietary information which he is required to deliver to the Government under the terms of the contract.

(b) Requests for Materials to be supplied by the Agency to the Contractor shall be made to the Contracting Officer and shall specify as complete identifying information as possible concerning title, author or issuing agency, date, serial number, security classification, or administrative control, and the like. Such requests shall also explain the Contractor's need for the Materials requested. All Materials supplied by the Agency to the Contractor (either as a result of a request made by the Contractor or supplied voluntarily by the Agency) and all reproductions thereof, except as may be otherwise authorized by the Contracting Officer, shall be returned at the time of submission of the final report, or at such earlier time as the Contracting Officer may specify, directly to the source from which such Materials were received by the Contractor unless the Contractor is otherwise directed by the Contracting Officer.

(c) Upon the completion or earlier termination of this contract, the Contractor shall, except as otherwise authorized by the Contracting Officer, deliver to the Agency all Materials that bear a security classification or administrative control which the Contractor had developed or reported during the conduct of the work, including all reproductions thereof, and, unless otherwise specified by the Contracting Officer, copies of all other Materials which the Contractor has developed or reported during the conduct of the work or which the Contractor is required to deliver under other terms of this contract. It is understood and agreed that the Agency shall have the right to determine and specify which of such Materials bear, or should bear, a security classification or administrative control. The Con

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