§ 18-3.211-3 Limitation.

(a) This authority shall not be used for negotiated contracts with educational institutions where the authority provided by 10 U.S.C. 2304 (a) (5) is applicable.

(b) This authority shall not be used for quantity production, except that such quantities may be purchased hereunder as are necessary to permit complete and adequate experiment, development, research, or test. Accordingly, research or development contracts which call for the production of a reasonable number of experimental or test models, or prototypes, shall not be regarded as contracts for quantity production.

(c) This authority shall not be used when negotiation is authorized by the provisions of § 18-3.203 or § 18-3.206.

(d) In order for this authority to be used, the required determination must be made in accordance with the requirements of Subpart 18-3.3. Where property or supplies are procured under this authority, the findings required by Subpart 18-3.3 shall set forth those facts and circumstances that clearly and convincingly establish, with respect to the use of this authority, that formal advertising would not be feasible and practicable.

§ 18-3.211-4 Reports.

For implementation of the statutory

reporting requirement to Congress, see § 18-1.110 of this chapter.

§ 18-3.212 Classified purchases.

scribed for use of this authority. Th determination and findings shall also se forth those facts and circumstances tha clearly and convincingly establish tha

formal advertising would not be feasibl and practicable. This authority shal not be used when negotiation is author ized by any other authority set forth i §§ 18-3.201 through 18-3.217.

§ 18-3.213 Technical equipment re quiring standardization and inter changeability of parts.

§ 18-3.213-1 Authority.

Pursuant to 10 U.S.C. 2304 (a) (13) purchases and contracts may be negoti ated if:

for equipment that he [the Administrator determines to be technical equipment whos standardization and the interchangeabilit of whose parts are necessary in the publi interest and whose procurement by negotia tion is necessary to assure that standardiza tion and interchangeability.

(a) This authority may be used fo procuring additional units and replace ment items of technical equipment an spare parts by negotiation in order t assure standardization of equipment an interchangeability of parts where, i special situations or in particular locali

ties, such standardization and inter changeability are determined necessary For example, this authority could b utilized whenever it is necessary:

(1) To limit the variety and quantit of spare parts that must be carried in stock;

(2) To make possible, by standardiza tion, the availability of spare parts tha may be interchanged among items o damaged or worn equipment; or

(3) To procure from selected supplier technical equipment which is availabl from a number of suppliers, but which would have such varying performanc characteristics (notwithstanding detaile specifications and rigid inspection) a would prevent standardization and inter changeability of parts.

(b) Before making a determination t procure specified makes and models under this authority, consideration shall b given to:

(1) The practicability of interchang ing parts and cannibalizing equipment;

(2) The probability that future procurement of the selected item of equipment can be effected at reasonable prices;

(3) Whether the standardization will appreciably reduce the variety and quantity of parts that must be carried in stock;

(4) The value of similar equipment and its supporting parts on hand;

(5) Possible savings in training personnel and publishing technical literature;

(6) Whether the standardization will adversely affect existing specifications and standards; and

(7) The degree to which the current design of the specified make and model has been changed from the design of equipment of the same make and model now in the supply system.

(c) Actions taken under this authority shall be reviewed at least once every two years to determine whether the standardization should be continued, revised, or canceled.

(d) This authority may be used in situations where only one or a limited quantity of a particular item is to be purchased and where compatibility with existing equipment and interchangeability of parts is essential. The fact that this authority is used in such a case does not mean that a subsequent purchase of similar equipment will necessarily require the use of negotiation for purposes of standardization. The facts involved in each such case must be examined to determine whether compatibility with other equipment and interchangeability of parts are essential objectives.

§ 18-3.213-3 Limitation.

This authority shall not be used for initial procurements of equipment and spare parts, or for the purpose of selecting arbitrarily the equipment of certain suppliers; nor shall it be used unless the Administrator has determined, in accordance with the requirements of Subpart 18-3.3 that:

to assure that standardization and interchangeability.

§ 18-3.214

Technical or specialized supplies requiring substantial initial investment or extended period of preparation for manufacture.

§ 18-3.214-1 Authority.

Pursuant to 10 U.S.C. 2304 (a) (14), purchases and contracts may be negotiated if:

for technical or special property that he [the Administrator] determines to require a substantial initial investment or an extended period of preparation for manufacture, and for which he determines that formal advertising would be likely to result in additional cost to the Government by reason of duplication of investment or would result in duplication of necessary preparation which would unduly delay the procurement of the property.

(a) High starting costs which already have been paid for by the Government or by the supplier;

(b) Preliminary engineering and development work that would not be useful to or usable by any other supplier;

(c) Elaborate special tooling already acquired;

(d) Substantial time and effort already expended in developing a prototype or an initial production model; and

(e) Important design changes which will continue to be developed by the supplier.

In general, this authority shall be used in situations where it is preferable to place a production contract with the supplier who had developed the equipment, and thereby either assure to the Government the benefit of the tech

(b) Standardization of such equipment and interchangeability of its parts are necessary in the public interest; and (c) Procurement of such equipment or of its parts by negotiation is necessary

acquired by that supplier, or avoid undue delay arising from a new supplier having to acquire such techniques, tooling, and equipment. However, this exception should not be used to avoid duplication of private investment unless this

duplication would be likely to result in additional cost to the Government or would result in duplication of necessary preparation which would unduly delay the procurement.

§ 18-3.214-3 Limitation.

This authority shall not be used unless and until the Administrator has determined, in accordance with the requirements of Subpart 18-3.3, that:

(a) The supplies are of a technical or specialized nature requiring a substantial investment or an extended period of preparation for manufacture; and

(b) Procurement by formal advertising either

(1) Would be likely to result in additional cost to the Government by reason of duplication of investment; or

(2) Would result in duplication of necessary preparation which would unduly delay procurement.

for property or services for which he [the Administrator] determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (1) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (ii) the negotiated price is lower than the lowest rejected bid of any reasonable bidder, as determined by the head of the agency; and (iii) the negotiated price is the lowest negotiated price offered by any responsible supplier.

§ 18-3.215-2 Limitation.

This authority shall not be used unless the Administrator has determined, in accordance with the requirements of Subpart 18-3.3, that the bid prices, after formal advertising for such supplies or services, are unreasonable or were not

independently reached in open competition. Also, after such determination by the Administrator and after rejection of all bids, no contract shall be negotiated under this authority unless:

(a) Prior notice of intention to negotiate and a reasonable opportunity to negotiate have been given by a contract

The following are examples of othe statutes which authorize negotiation:

(a) Small Business Act (Public La

85-536 as amended—15 U.S.C. 631-647) Contracts for partial or total set-aside for small business made pursuant to joint determination by the NASA and Small Business Administration (includ ing contracts entered into pursuant to "Small Business Restricted Advertising") shall cite as authority 10 U.S.C. 2304(a) (17) and Section 15 of the Small Busi ness Act (15 U.S.C. 642).

(b) Section 321 of the Transportation Act of 1940 (49 U.S.C. 65). This law permits negotiation for transportation services when the services required car be procured from any common carrier § 18-3.218 Construction work. § 18-3.218-1

Application.

Contracts to construct or repair an building, road, sidewalk, sewer, main, of similar item are subject to 10 U.S.C 2304(c).

§ 18-3.218-2 Limitation.

(a) Work in the United States. Con tracts for construction work to be per formed within the United States shall b formally advertised and may not b negotiated unless authorized pursuant t 10 U.S.C. 2304(a) (1), (2), (3), (10), (11) or (15).

(b) Work outside of the United States. Contracts for construction work to be performed outside of the United States shall be formally advertised and may not be negotiated unless authorized pursuant to subsections (1) through (17) of 10 U.S.C. 2304(a), as appropriate (note that such contracts to be performed in possessions of the United States or Puerto Rico may not be negotiated pursuant to 10 U.S.C. 2304(a) (6)).

§ 18-3.218-3 Citation of authority to negotiate.

Negotiated contracts for construction work shall cite as authority for their negotiation the applicable subsection of 10 U.S.C. 2304(a). Subpart 18-3.3-Determinations and Findings

§ 18-3.300 Scope of subpart.

This subpart enumerates the procedures to be followed in making the determinations and findings referred to in 10 U.S.C. 2304(a) and Subpart 18-3.2. § 18-3.301 Nature of determinations

and findings.

(a) Determinations and findings required in connection with negotiated contracts fall into three categories, based on the official authorized to make such determinations and findings:

(1) Those which the Administrator or Deputy Administrator of NASA must -make;

(2) Those to be made by the Director of Procurement; and

(3) Those which may be made by a contracting officer.

The determinations and findings which fall into each of the above categories are listed in §§ 18-3.302, 18-3.303, and 18-3.304.

(b) Determinations and findings ordinarily will be made only with respect to individual purchases or contracts. However, in special cases, based on the recommendation of the head of a field installation and with the concurrence of the Director of Procurement, the Administrator may make determinations and findings for classes of purchases or contracts. Class determinations and findings shall be restricted to circumstances where greater operational flexibility in the processing of determina

to

and

tions and findings is necessary minimize delays to a research development project or program where several negotiated contracts may be issued in furtherance of the project or program. Before negotiating a contract under the authority of a class determination and findings, for procurements under 10 U.S.C. 2304(a) (11) for property and supplies, and for any procurements under 10 U.S.C. 2304 (a) (12), the contracting officer shall establish that procurement by formal advertising is not feasible and practical (see § 18-3.101 (b)). Each class determination and findings shall specify an effective period, which shall not exceed one year. § 18-3.302 Determinations and findings to be made by the Administra

tor.

The following determinations (or similar approvals) and written findings in support thereof are required to be made by the Administrator or Deputy Administrator:

(a) The determinations required by 10 U.S.C. 2304 (a) (1) and (11) through (16) except that determinations under Section 2304 (a) (11) with respect to contracts requiring the expenditure of not contracting officer (see § 18–3.304); more than $100,000 may be made by the

(b) Within the limitations imposed by 10 U.S.C. 2306(d), approval of fixed fees in excess of

(1) 10 percent of the estimated cost, exclusive of fee, of any cost-plus-fixedfee contract for experimental, developmental, or research work; or

(2) 7 percent of the estimated cost, exclusive of fee, of any other cost-plusfixed-fee contract.

(c) The determinations required under 10 U.S.C. 2306(f) with respect to waiving the requirement for submission by contractors and subcontractors of cost and pricing data and the certification thereof; and

(d) Determinations and findings for classes of purchases or contracts. § 18-3.303 Determinations and findings to be made by the Director of Pro

curement.

The following individual determinations (or similar approvals) and written findings in support thereof are author

ized to be made by the Director of Procurement:

(a) Determinations with respect to advance payments as required by 10 U.S.C. 2307(c) and 2310(b); and

(b) Any other determinations and findings not required to be made by higher authority.

§ 18-3.304 Determinations and findings to be made by a contracting officer. The following individual determinations and findings may be made by a contracting officer, subject to any limitations imposed by the designating official:

(a) Determinations and findings under 10 U.S.C. 2304 (a) (11) with respect to contracts requiring the expenditure of not more than $100,000;

(b) Determinations and findings justifying negotiations on the basis of public exigency under 10 U.S.C. 2304(a) (2) as required by § 18-3.202-3.

(c) Determinations and findings justifying negotiation under 10 U.S.C. 2304(a) (7) as required by § 18-3.207-3.

(d) Determinations and findings required by 10 U.S.C. 2306(c) prior to the making of any cost, cost-plus-fixed-fee, or incentive contract shall set forth those facts and circumstances that clearly indicate why the type of contract selected is likely to be less costly than any other type or that it is impracticable to obtain property or services of the kind or quality required except under such contract;

a

(e) Determinations and findings required by 10 U.S.C. 2306(d) of the estimated costs of contracts or projects on the basis of which maximum allowable fee percentages are measured;

(f) Determinations and findings required by 10 U.S.C. 2306(f) with respect to significant sums by which contracts may be adjusted; and

(g) Any other determinations and findings called for by this chapter and not required to be made by higher authority.

authority. Determinations and finding authorizing negotiation shall set forth those facts and circumstances tha clearly and convincingly establish tha formal advertising would not be feasible and practicable. Instructions for the preparation of determinations and find ings and sample determinations and findings under 10 U.S.C. 2304(a) (11) and

10 U.S.C. 2304 (a) (14) are set forth in this § 18-3.305.

§ 18-3.305-1

Individual contract under 10 U.S.C. 2304 (a) (11). (Se §§ 18–3.211 and 18–3.301 (b).) (a) Findings. In the first paragraph under "Findings" describe briefly and clearly the scope and nature of the work to be performed. In the second para graph, set forth the facts and circum stances that are clearly illustrative of the conditions set forth in 10 U.S.C 2304(a) (11) for use of this authority (See §§ 18-3.211 and 18-3.211-2.) In the third paragraph, set forth those facts and circumstances that clearly and convincingly establish, with respec to the use of this authority, that forma advertising would not be feasible and practicable.

(b) Determination. Following the format set forth in the sample below, use the appropriate terms to state precisely whether the proposed procurement is for experimental, developmental, or research work or the making or furnishing of property for experiment, test, development, or research; or for a combination of these.

(c) Sample format.

DETERMINATION AND FINDINGS Decision To Negotiate an Individual Contrac Under 10 U.S.C. 2304(a) (11)

FINDINGS

1. The proposed procurement is to develop and obtain a compressor unit to provide high pressure helium to the hypervelocity jets of the Hypersonic Aerothermal Dynamics Facil ity for the investigation of the aeroelasti

Each determination and findings authorizing negotiation under the authority of 10 U.S.C. 2304(a) (11)–(15) shall set forth the facts and circumstances that are clearly illustrative of the conditions described for use of the particular

exit and reentry and the reentry problems of other vehicles, such as Apollo or luna space vehicles, where the largest flight dy namic pressures may be encountered.

2. The proposed contract will require the contractor to do development work in the design and engineering of the compressor unit. Research work will be necessary to support the development stage of the work