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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.

§ 23-1.452 Availability of funds.

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

PART 23–3–PROCUREMENT BY

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Designations shall be rescinded in the same manner upon termination of the assignment (but special assignments may be self-rescinding, as, for example, an assignment made in terms of the life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).

Subpart 23-3.1-Use of Negotiation

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.

§ 23-1.450 Contracting officers' represen

tatives. (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 representative'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.

Subpari 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.

Subpart 23–3.50—Solicitation of Proposals and

Quotations

§ 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 authori. ties which would exceed the limitations imposed on the successor by existing directives.

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.

Subpart 23-3.1-Use of Negotiation

$ 23-3.100 Scope of subpart.

This subpart deals with the nature and use of negotiation as distinguished from formal advertising as a means of procurement, and with limitations on that use.

(c) Accordingly, the Agency normally procures research services by sending out a request for proposals to a number of possible sources ascertained to have qualifications in the particular area of service concerned. These requests for proposals are announced in the “United States Department of Commerce Synopsis of U.S. Government Proposed Procurements, Sales, and Contract Awards," in accordance with the provisions of 15 U.S.C. 637, for the information of any potential offeror. However, certain procurements need not be so announced, such as those of a classified nature, those for services from an educational institution, and those for personal or professional services.

$ 23-3.102 Factors to be considered during

the negotiation of contracts. Among those factors to be considered in the preparation of requests for proposals is the need for auditing of the contractor's records (see Subpart 1-3.8 of this title).

$ 23-3.103 Dissemination of procurement

information. In addition to FPR requirements for publication of procurement opportunities, information on current and proposed research and study programs is available upon request.

$ 23-3.101 General requirements for nego

tiation. (a) Under Section 31 of the Arms Control and Disarmament Act (22 U.S.C. 2571), the Director, in carrying out his responsibilities, is authorized to make arrangements (including contracts, agreements, and grants) for the conduct of research, development, and other studies in the field of arms control and disarmament by U.S. private or public institutions or persons.” This authority is initially exercised under the Federal Property and Administrative Services Act of 1949, as amended, and under the Federal Procurement Regulations issued by the General Services Administration pursuant thereto. Except under certain circumstances set forth in those regulations, Government contracts for supplies and services are required to be made only after formal advertising and competitive bidding. The purpose is to give all qualified persons an equal opportunity to compete for Government contracts; to avoid favoritism or collusion in the letting of contracts; and, most important of all, to increase the Government's chances of finding the particular organization or individual who will best supply the Government's needs for supplies or services, price, and other factors considered.

(b) For the same reasons, where formal advertising for bids is determined to be impracticable, as may be the case with Agency research contracts, the requirement for negotiated contracts resulting from competitive proposals obtains. The proposals must be obtained from all known qualified sources and the procurement opportunity synopsized to assure maximum full and free competition consistent with the needs of the Government.

§ 23-3.104 Disclosure of mistakes.

(a) If the contracting officer has reason to believe that an offeror has made a mistake he shall obtain verification of the proposal or quotation from the offeror.

(b) Correction of mistakes after entry into force of a contract shall be made in accordance with the provisions of § 1-2.406-4 of this title to the extent applicable. The extraordinary contractual authority established by Pub. L. 85-804 (50 U.S.C. 1431-1435) is not available to the Agency for the correction of mistakes.

$ 23-3.150 Contractor Selection Board.

$ 23-3.150-1 Establishment of the Board.

A Contractor Selection Board, whose membership is approved by the Director, is established for each prospective

30-110 0-78-4

contract for which competitive proposals are to be solicited.

ed if: “the public exigency will not admit of the delay incident to advertising."

$ 23-3.150-2 Evaluation of proposals.

(a) In evaluating proposals, unless otherwise set forth in the Request for Proposal, the Board shall give primary and equal consideration to (1) the degree of initiative and imagination displayed, (2) the caliber and experience of the personnel involved, and (3) the soundness of the offeror's approach.

(b) After elimination of proposals on the basis of the foregoing, then price and other factors in relation to the work to be performed will be considered for purposes of final selection.

§ 23-3.202–50 Application.

Examples of circumstances when use or the authority cited in § 23-3.202 may be justified include the following:

(a) Specialized studies to support elements of arms control proposals being considered urgently for international negotiations.

(b) Development or production of verification equipment urgently needed to support obligations assumed by the United States under executive agreement or treaty.

§ 23-3.150-3 Notification to unsuccessful

offerors. As deliberations of the Board progress and offerors are definitely eliminated from further consideration, the Chairman shall make recommendations to the Contracting Officer (and supply him with the pertinent information) with respect to the notification of unsuccessful offerors who have been eliminated from consideration.

$ 23–3.204 Personal or professional ser

vices. Pursuant to section 302(c)(4) of the Federal Property and Administrative Services Act (41 U.S.C. 252(c)(4)), purchases and contracts may be negotiated if “for personal or professional services."

$ 23-3.150-4 Recommendation to the Di.

rector. After the Contractor Selection Board has completed its evaluation of all proposals received, the Board shall recommend in writing to the Director its selection of the proposed contractor to perform the work.

§ 23-3.150-5 Restriction on disclosure of

Contractor Selection Board Reports. Because of the confidential nature of information supplied by the offeror(s) and of the evaluations contained in the Contractor Selection Board's report, the report shall not be made available to the public.

§ 23-3.204-50 Application.

(a) This authority shall be used when the following conditions have been satisfied:

(1) If personal services, they are required to be performed by an individual contractor in person (not by organization or other association) and are to be performed under Government supervision and paid for on a time basis.

(2) If professional services, they may be performed either by an individual person or by an association.

(3) Procurement of the services is authorized by law and is effected in accordance with the requirements of any such law.

(b) Under section 41(d) of the Arms Control and Disarmament Act (22 U.S.C. 2581), the Agency is authorized to: Procure services of experts and consultants or organizations thereof, including stenographic reporting services, as authorized by section 15 of the Act of August 2, 1946 (5 U.S.C. 3109(b)), at rates not to exceed $100 per diem for individuals, and to pay in connection therewith travel expenses of individuals, including transportation and per diem in lieu of subsistence while away from their homes or

Subpart 23-3.2-Circumstances

Permitting Negotiation

$ 23-3.202 Public exigency.

Pursuant to section 302(c)(2) of the Federal Property and Administrative Services Act (41 U.S.C. 252(c)(2)), purchases and contracts may be negotiat

regular places of business, as authorized by section 5 of said Act, as amended (5 U.S.C. 5703): Provided, That no such individual shall be employed for 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.

(2) A base fee commensurate with minimum acceptable performance;

(3) Criteria against which the contractor's performance will be evaluated;

(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

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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 beriefits 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.

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 proposais. Late proposals shall not be considered 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 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.

$ 23-3.5002 Treatment of procurement in

formation.

on

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 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

§ 23-3.5002-1 Restrictions 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

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