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more than 100 days in any fiscal year (4) An additional adjustment to the unless the President certifies that em- base fee, not to exceed a stipulated ployment of such individual in excess maximum, which is awarded on the of such number of days is necessary in basis of the subjective evaluation by the national interest: And provided ACDA of contractor performance; and further, That such contracts may be (5) Specific provision that the deterrenewed annually;

mination of fee adjustment shall not (c) 5 U.S.C. 3109(b), in turn, provides be subject to the contract article entiauthority to procure by contract: The tled “Disputes”. temporary (not in excess of 1 year) or (b) Application. The cost-plusintermittent services of experts or con award-fee contract is suitable for use sultants or an organization thereof, in when: cluding stenographic reporting serv. (1) A cost-reimbursement-type conices.

tract is found necessary or particularly

pertinent; 8 23–3.204-51 Limitations.

(2) The work to be performed is such It is ACDA general policy to obtain that specific quantitative or objective personal services of experts and con- measurement is not feasible and effecsultants by appointment rather than tive incentive arrangements cannot be by contract. Contracts negotiated devised on the basis of cost or perunder other authority are not subject formance (see § 1-3.405-4 of this title); to the requirements and limitations of (3) Agency procurement objectives this § 23-3.204.

will be advanced if the contractor is ef

fectively motivated to exceptional per$ 23–3.206 Purchases outside the United

formance; and States.

(4) Any added administrative effort Section 31 of the Arms Control and and costs required to monitor and Disarmament Act (22 U.S.C. 2571) evaluate performance are justified by limits the authority of the Agency to the anticipated benefits. contract for the conduct of research, (c) Considerations of concept. (1) development, and other studies in the The opportunity for increase in field of arms control and disarmament earned fees is intended to motivate the to U.S. private or public institutions or contractor to manage effectively the persons.

required work to control costs, and to

improve the timeliness, quality, and Subpart 23–3.4—Types of Contracts quantity of performance.

(2) The award fee should be earned $ 23-3.405 Cost-reimbursement-type con- by the contractor for exceptional pertracts.

formance, surpassing minimum accept

able levels and should be commensu§ 23–3.405-5 Cost-plus-a-fixed-fee contract. rate with the benefits accruing to the

Unless expressly approved by the Di Agency from the contractor's performrector in the case of each contract, the ance. The contractual terms may genfixed fee shall not exceed ten (10%) erally obligate the contractor to percent of the estimated cost of the devote a specified level of effort for a contract, exclusive of fee.

stated period of time to satisfy the

various aspects of the scope of the $ 23-3.405-50 Cost-plus-award-fee

work; it follows that the award of adtract.

ditional fee for exceptional perform(a) Description. The cost-plus-award- ance in designated areas should be fee contract, is a cost-reimbursement contingent upon an acceptable level of type contract with incentive fee provi performance for all other contract resion which includes:

quirements. Although determination (1) A target cost;

of the amount of award fee is a unilat(2) A base fee commensurate with eral one based on subjective evaluaminimum acceptable performance; tions, the decision may be aided by

(3) Criteria against which the con such quantifying devices as adjectival tractor's performance will be evaluat ratings, point systems or percentages

of achievement. Ordinarily, the award

con

ed;

fee adjustments will be increases only, and contract arrangements for decreases in base fee (e.g., if certain cri. teria 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.

ered for award, except under the fol. lowing 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 company.

(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.

nost

$ 23-3.5002 Treatment of procurement in

formation.

Subpart 23-3.50—Solicitation of

Proposals and Quotations

$ 23-3.5001 Late proposals and modifica

tions. (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 Certi. fied 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

8 23–3.5002–1 Restrictions on disclosure

and use of data in proposals and quo

tations. (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 “fur. forth in Part 1-4 of the Federal Pronished in connection with Request for Pro- curement Regulations. posals No. ---". (2) The offeror shall mark each

Subpart 23-4.51-Unsolicited sheet of data which he wishes to re

Proposals strict with the following legend:

Use or disclosure of proposal data is sub- 823-4.5101 Definitions. ject to the restriction on the Title page of

An "unsoliciated proposal” is a writthis proposal. Contracting Officers and other Agency

ten offer to undertake research, develpersonnel shall not refuse to consider any opment or studies in the field of arms proposal merely because it or the data sub control and disarmament submitted by mitted with it is so marked. Those portions any offeror solely on his own initiative of the proposal and data which are so and not in response to a specific remarked (except for information which is

is quest made by ACDA.

quest made by ACDA. also obtained from another source without restriction) shall be used only to evaluate 8 23-4.5102 Policy. the proposal and shall not be disclosed outside the Government without the written

A limited exception to the general permission of the offeror. If it is desired to requirement of competition in Governduplicate, use, or disclose the data of the of- ment procurement arises in connection feror to whom the contract is to be awarded, with unsolicited proposals. When a for purposes other than to evaluate the pro

proposal for services has been submitposal, the contract should so provide. (See

ted by an offeror upon his private iniPart 23-52 of this chapter for a description

tiative, it might not be equitable for of "data" and, in general, for the policy, instructions, and contract clauses with re

the Agency to seek competing proposspect to the acquisition and use of data.)

als. Because the considerations here

are equitable in nature, the determina(b) Proposals of subcontractors

tions must depend on consideration of which are included as part of a propos

the facts of each case and the extent al submitted by a prime-offeror shall

to which the inequity to the proposing be marked as provided in paragraph

party is so great that the Government (a) of this section if the subcontractor

may be limited in the method of prowishes so to restrict his proposal.

curement. Several guiding principles (c) The provisions in paragraphs (a)

can be stated: and (b) of this section are also applica

(a) An unsolicited proposal must be ble to quotations. In the case of a re

truly unsolicited, and not the result of quest for quotations, the legends in

formal or informal requests for proparagraph (a) of this section shall be

posals made by Agency representaappropriately modified.

tives.

(b) An unsolicited proposal should PART 23-4-SPECIAL TYPES AND

not merely anticipate a particular reMETHODS OF PROCUREMENT

search project. Thus, for example, an

offeror reading the Congressional Sec.

report of hearings on the Agency's ap23-4.000 Scope of part.

propriation and quickly submitting a Subpart 23-4.51–Unsolicited Proposals

proposal on a project which the

Agency clearly contemplated under23-4.5101 Definitions.

taking by contract during the fiscal 23-4.5102 Policy.

year in question, does not meet valid 23-4.5103 Procedures.

criteria governing unsolicited proposAUTHORITY: Sec. 205(c), 63 Stat. 390, 40 als. U.S.C. 486(c); and sec. 41, 75 Stat. 631, 22 (c) An unsolicited proposal should U.S.C. 2581.

represent a considerable investment of SOURCE: 33 FR 19230, Dec. 24, 1968, unless time and effort by the offeror. Thus, otherwse noted.

in order to qualify for a contract nego

tiated without competition, an unsoli$ 23-4.000 Scope of part.

cited proposal should be an unusual, This part implements and supple- detailed, original, thoroughly develments the policies and procedures set oped conception of a project, which

41-113 0–79--5

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.

Sec. 23-7.5001 Applicability. 23-7.5002 Clauses. 23-7.5002-1 Definitions. 23-7.5002-2 Changes. 23-7.5002-3 Limitation of cost. 23-7.5002-4 Allowable cost, fee and pay

ment. 23-7.5002-5 Subcontracts. 23-7.5002-6 Litigation and claims. 23-7.5002–7 Publication and release of in

formation. 23-7.5002-8 Materials. 23-7.5002-9 Government furnished proper

ty. 23-7.5002-10 Security. 23-7.5002-11 Order of precedence.

AUTHORITY: Secs. 31 and 41, 75 Stat. 631, 22 U.S.C. 2571 and 2581; and sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c).

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

$ 23–7.000 Scope of part.

This part sets forth contract clauses, in addition to those prescribed in Chapter 1 of this title, to be used by the U.S. Arms Control and Disarmament Agency in the procurement of personal property and services.

Subpart 23–7.1-Clauses for Fixed

Price Supply Contracts

PART 23–7–CONTRACT CLAUSES

Sec. 23-7.000 Scope of part. Subpart 23-7.1-Clauses for Fixed Price Supply

Contracts 23-7.100 Scope of subpart. 23-7.102 Clauses. 23-7.102-1 Definitions. 23-7.102-2 Changes. 23-7.150 Materials. 23-7.151 Government furnished property. 23-7.152 Security. 23-7.153 Excusabls delays. 23-7.154 Publication and release of infor

mation. 23-7.155 Order of precedence.

$ 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 revi. sion); (3) covering the acquisition of supplies or services, or both. $ 23-7.102 Clauses.

Subpart 23–7.50—Clauses for Cost

Reimbursement-Type Contracts 23-7.5000 Scope of subpart.

$ 23–7.102-1 Definitions.

(a) Clause:

(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.

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 in

led in the clause set forth in para graph (a) of this section to the extent they are consistent with the clause of this subpart.

8 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.

8 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 ot.

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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