tions estimated to be $2,500 or more; however, nonappropriated fund contracts or procurement transactions estimated to be less than $2,500 may be processed by such contracting officers at the discretion of the installation -commander.

(d) Appropriated fund contracting officers will provide advice and assistance to nonappropriated fund custodians for all nonappropriated fund procurements -estimated to be in excess of $1,000. [36 F.R. 8943, May 15, 1971]

Subpart D-Procurement Responsibility and Authority

SOURCE: The provisions of this Subpart D appear at 34 F.R. 9491, June 18, 1969, unless otherwise noted.

§ 591.401 Responsiblity of each procuring activity.

(a) Each head of procuring activity shall

(1) Insure that all purchases subject to provisions of ASPR and APP made within his procuring activity or by offices for which he exercises the functions of head of procuring activity (see § 591.40150) are made in accordance with ASPR and APP and only by contracting officers selected and appointed pursuant to § 1.405 of this title and § 591.405; and

(2) Maintain surveillance over procurement performance to insure adequacy of organizational structure, staffing, and training programs of each purchasing office, and that procurement actions taken reflect credit upon the Department of the Army.

(b) When not inconsistent with ASPR, APP, or other directives of higher authority, a head of procuring activity may delegate, with or without power of redelegation, the authority to carry out procurement functions with which he is charged.

§ 591.401-50 Exercise of functions of head of procuring activity.

In addition to those purchasing offices within his procuring activity, the following heads of procuring activities shall exercise the functions of a head of procuring activity for the offices designated

(a) Director of Requirements and Procurement, Headquarters, U.S. Army Materiel Command, for the

(1) U.S. Army Research Offices, Durham, N.C., and Arlington, Va.; and

(2) U.S. Military Academy, West Point, N.Y.

(b) Commanding General, 1st U.S. Army, for The Judge Advocate General's School.

(c) Commanding General, 6th U.S. Army, for the sole purpose of appointing and terminating appointments of contracting officers for the Armed Forces Radio and Television Service, Los Angeles, Calif.

(d) Commanding General, Military District of Washington, U.S. Army for the

(1) The Adjutant General's Office; (2) Industrial College of the Armed Forces; and

(3) National War College.

[34 F.R. 9491, June 18, 1969, as amended at 35 F.R. 8555, June 3, 1970; 37 FR 7084, Apr. 8, 1972]

§ 591.401-51 Purchasing offices not assigned to a Head of Procuring Activity.

The Deputy for Materiel Acquisition, Office of the Assistant Secretary of the Army (Installations and Logistics), shall exercise the functions of Head of Procuring Activity for any purchasing office within the Department of the Army which has not otherwise been assigned to a Head of Procuring Activity. [37 FR 7084, Apr. 8, 1972]

§ 591.401-52 Procurement conferences.

(a) Heads of procuring activities are encouraged to hold annual procurement conferences for key procurement personnel of purchasing offices under the jurisdiction of the head of procuring activity to

(1) Furnish guidance on new management and procurement techniques;

(2) Stimulate improvements in procurement methods and procedures;

(3) Resolve common or special procurement problems;

(4) Permit an exchange of information between procurement personnel of purchasing offices; and

(5) Promote a close relationship between head of procuring activity and purchasing office personnel.

(b) To the extent feasible, legal and supply personnel should be invited to attend procurement conferences.

(c) Department of the Army personnel will be made available to participate in procurement conferences upon request of the head of procuring activity.

§ 591.402 Authority of contracting officers.

(a) Subject to any limitation in his Certificate of Appointment, DD Form 1539, a contracting officer is granted all authority conferred by law, ASPR, APP, and head of procuring activity instructions. Unless otherwise specifically provided, the words "a contracting officer" shall also mean his duly appointed

successor.

(b) A contracting officer may enter into, amend, modify, and take other actions with respect to contracts, provided

(1) Any action he takes is within any limitation in his Certificate of Appointment;

(2) Any approvals by higher authority, including approval of award, has been obtained, if approval is required, and the contract embodies the award as approved;

(3) The contract is written on а standard or approved form, if such form is prescribed;

(4) The contract is authorized by law and complies with the provisions of ASPR and APP with respect to the use of contract clauses and does not contain any clause or involve any matter in conflict with the established policy of higher authority; and

(5) The contract complies with all other requirements of law, ASPR, and APP.

(c) Technical personnel and others whose duties may require contact and discussions with suppliers and contractors have no authority to obligate or commit the Government contractually and shall not authorize purchases or direct changes in work under contracts which may change the contractual terms thereof or result in claims against the Government.

(d) Commanders and others having administrative supervision over contracting officers shall bear in mind that acts exceeding the delegated powers of a contracting officer do not bind the Government and accordingly shall not direct contracting officers to take actions which might expose the contracting officer o serious consequences. The office of the contracting officer shall be placed in the local organization structure at a level

which shall protect it from intraorgani.. zational pressure which might lead the contracting officer to perform improper acts exposing him to personal risk and the Department of the Army to criticism.

(e) Contracting officers shall not be assigned additional duties which will interfere with performance of their procurement duties.

(f) A contracting officer may, when it is in the interest of the Government, consider a contract completed even though an inconsequential quantity of supplies or services called for by the contract has not been delivered. This authority may be exercised only when

(1) The action is within any limitation in his Certificate of Appointment;

(2) Payment is provided for on a unit price or other severable basis and no further performance is contemplated;

(3) Payment is made only for performance actually rendered;

(4) The undelivered portion is inconsequential and the cost of effecting a formal contract modification, including but not limited to taking termination action, is excessive in relation to the benefits to the Government from such action; and

(5) The contracting officer makes a written statement setting forth data identifying the contract, describing the circumstances to show clearly that the above criteria have been met, and stating that the contract is considered completed. This statement shall be distributed to the contractor, the finance and accounting officer concerned, any other appropriate Government official (e.g., consignee, inspector), and a copy shall be placed in the contract file. This statement shall not be necessary when quantities delivered fall within variations permitted by contract terms.

[34 F.R. 9491, June 18, 1969, as amended at 36 F.R. 20677, Oct. 28, 1971]

§ 591.402-50 Responsibilities of contracting officers.

(a) A contracting officer has primary responsibility for

(1) Knowing and observing the scope and limitations of his authority and not exceeding the authority conferred upon him;

(2) Safeguarding the interests of the United States in contractual relationships;

(3) Determining facts relating to contracts, where necessary;

(a) Only one contracting officer may exercise authority over a contract or modification thereto during any given period. Chiefs of purchasing offices may, however, designate a successor contracting officer in case of a predecessor contracting officer's demise, transfer, revocation of authority, or prolonged absence from duty. A successor contracting officer may also be designated during short periods of absence from duty of a predecessor when it is anticipated that contractual actions will be required during that time.

(b) Designations of successor contracting officers shall be in writing and shall state the effective date thereof; shall identify the contract or contracts involved; and, where appropriate and feasible, shall indicate the termination date thereof.

(c) Contractors affected by designations of successor contracting officers shall be notified promptly in writing of such designations; except that, in cases of designations for short periods of absence of predecessors, contractors need be notified only if contractual actions are taken by successor contracting officers.

(d) Only properly appointed contracting officers (see § 591.405) shall be designated as successor contracting officers.

(e) Sucessor contracting officers may not execute contractual documents nor bind the Government in amounts in excess of the monetary authority stated in their Certificates of Appointment, DD Forms 1539.

[36 FR 25920, Dec. 6, 1972]

§ 591.403 Requirements to be met before entering into contracts.

§ 591.403-50 Availability of funds.

(a) Except as authorized in §§ 1.309, 1.318, and 1.322 of this title, and in para

graphs (b) and (c) of this section, before soliciting bids, proposals, or quotations and before awarding any contract, purchase order, or delivery order, the contracting officer shall

(1) Insure that sufficient funds are available for the procurement contemplated; and

(2) Have in the files a citation of funds to be charged together with a statement in writing that funds are available; except when funding procedures are automated and furnish a consolidated commitment and obligation listing with a positive accounting trail from the solicitation, contract, purchase order, or delivery order to the consolidated listing.

(See AR 37-21, AR 37-42, and AR 37102.)

(b) Indefinite delivery requirements type contracts (§ 3.409-2 of this title), basic agreements (§ 3.410-1 of this title) basic ordering agreements (§ 3.410-2 of this title), and blanket purchase agreements § 3.605 of this title) may be established prior to insuring fund availability; however, orders or calls against such contracts and agreements shall not be placed until funds have been made available.

(c) Bids, proposals, or quotations may be solicited for high priority requirements before obtaining assurance of fund availability when the initiating and approving authority determines that the requirement has a high enough priority to insure that it will not be canceled. In such cases the comptroller activity shall inscribe and sign the following statement on the purchase request

The

This requirement is included or provided for in the financial plan for FY accounting classification will be This statement is not assurance of fund availability.

No contract shall be awarded nor shall a prospective contractor be notified of a pending award until funds have been certified available by the comptroller activity.

(d) In soliciting bids, proposals, or quotations under paragraph (c) of this section, the contracting officer shall be mindful of the administrative expense to the Government of preparing solicitations and to offerors in preparing offers. The authority in paragraph (c) of this section shall not be construed to permit indiscriminate solicitations subject to the

availability of funds. Further, the authority in paragraph (c) of this section is not intended to permit soliciting subject to the availability of "windfall" or "hoped for" funds, but is restricted to use in those cases where funds are reasonably assured of becoming available for obligation within the normal offer acceptance time.

§ 591.403-51 Boards of Awards.

(a) Heads of Procuring Activities shall establish, or authorize installation/ activity commanders to establish, Boards of Awards for the purpose of reviewing proposed awards of contracts and modifications in amounts of $10,000 or more, whether formally advertised or negotiated.

(b) Boards of Awards shall be composed of qualified procurement, legal, production, technical, and contract pricing representatives to the extent required and available. The appointing authority shall appoint the members of the board and shall designate a chairman and an alternate chairman.

(c) A contracting officer who is a member of a Board of Awards may participate in its proceedings on proposed contracts and modifications for which he is the contracting officer but may not participate in its findings and recommendations.

(d) The purpose of reviews by Boards of Awards shall be to insure that

(1) Applicable provisions of ASPR, APP, and other procedural requirements are satisfied, e.g. § 3.102(c) of this title;

(2) The proposed action represents a sound business judgment from the Government's viewpoint; and

(3) The proposed contract or modification is legally and technically sufficient.

(e) As a minimum, reviews by Boards of Awards shall cover the following aspects

(1) The procurement documents themselves, e.g. clarity; consistency; completeness; use of prescribed forms, clauses, and specifications;

(2) The procurement method used, e.g. formal advertising; negotiation; competition; sole source; suitability for small business or labor surplus area set aside; suitability for contracting with the Small Business Administration pursuant to §7.105-5 of this title; adherence to advance procurement (AP) plan or specific guidance from higher authority;

(3) Support for actions to be taken, e.g. existence of proper authority for use of negotiation and type of contract, if applicable; existence of Government estimate of price; preaward survey; adequacy of any justifications or determinations required of the contracting officer; need for technical data; adequacy of pricing data; inputs from members of the contracting officer's team; necessity for deviations from ASPR or APP; and

(4) Comparison with alternatives, e.g. how else could the procurement objectives be accomplished; what are the relative advantages and disadvantages of each.

(f) The depth of review of a proposed contract or modification, the number of board members required to participate in the review, and the need for a formal meeting of the board may vary to the extent determined by the board chair

man.

(g) Summaries of board reviews shall be prepared and a copy placed in appropriate contract files. Summaries shall indicate salient issues considered, personnel present when formal board meetings are held, deficiencies found in documents reviewed, and findings and recommendations to the contracting

officer.

(h) If approval of award of a proposed contract or modification by a higher authority is required, the review by the Board of Awards shall be made before seeking approval from the higher authority. A copy of the summary of the board review shall be included in the documents forwarded to the higher authority from which approval of award is required.

(i) The following need not be reviewed by Boards of Awards

(1) Contracts for utilities services (see § 591.450-6); contracts for contract surgeons; off-duty academic instruction contracts; general educational development contracts; contracts for training of military personnel and ROTC Scholarship Cadets at civilian institutions; dependent school teachers contracts; and modifications to any of the foregoing;

(2) Contracts subject to the provisions of AR 715-6 (such contracts shall be reviewed in accordance therewith); and

(3) Modifications for funding purposes which do not increase the total price of a contract beyond the amount contem

(a) Except as stated in paragraph (e) of this section, each proposed contract or modification of $10,000 or more, whether advertised or negotiated, shall be reviewed by Boards of Awards (see § 591.450-2). If approval of award at a higher level is required, the review shall be made before seeking approval.

(b) The purpose of the review shall be to insure that

(1) Applicable provisions of ASPR, APP, and other procedural requirements are satisfied, e.g. § 3.102(c) of this title;

(2) The proposed action represents a sound business judgment from the Government's viewpoint; and

(3) The proposed contract or modification is legally sufficient.

(c) As a minimum the review shall cover the following four major aspects

(1) The procurement documents themselves, e.g. clarity; consistency; completeness; use of required forms, clauses, and specifications;

(2) The procurement method, e.g. advertising, negotiation, completion, sole source, suitability for small business or labor surplus area set-aside, adherence to advance procurement (AP) plan or specific guidance from higher authority;

(3) Support for actions to be taken, e.g. existence of proper authority for use of negotiation and type of contract, if applicable; existence of Government estimate of price; preaward survey; adequacy of any justifications or determinations required of the contracting officer; need for technical data; adequacy of pricing data; inputs from members of the contracting officer's team; necessity for deviations from ASPR or APP; and

(4) Comparison with alternatives, e.g. how else could the procurement objective be accomplished, what are the relative advantages and disadvantages of each.

(d) The depth of review of a contract or modification and the number of Board members participating in the review may vary to the extent determined by the Board Chairman.

(e) The following need not be reviewed by Boards of Awards—

(1) Contracts for utilities services (see § 591.450-6), contracts for employing personnel in Army dependent schools, contracts for contract surgeons, off-duty

academic instruction contracts, educational service agreements; and modifications thereto;

(2) Contracts subject to the provisions of AR 715-6 [such contracts shall be reviewed in accordance therewith]; and

(3) Modifications for funding purposes which do not increase the total price of a contract beyond the amount contemplated in the contract previously reviewed by the Board.

[34 F.R. 9491, June 18, 1969, as amended at 37 FR 7084, Apr. 8, 1972]

§ 591.403-53 Contracts and modifications subject to approval.

If approval of a contract or modification by any officer or official of the Department of the Army other than the contracting officer is required (see § 591.450)

(a) The Approval of Contract clause in § 7.105-2 of this title shall be used;

(b) All changes and deletions shall have been made before approval is requested; and

(c) The contract or modification shall not be binding upon the Government until so approved, even though signed by the contractor and the contracting officer.

§ 591.403-54 Departmental preaward review and secretarial notation.

(a) Proposed awards to be reviewed at Department of the Army level for notation by the office of the Assistant Secretary of the Army (Installations and Logistics) shall consist of

(1) Procurements determined by a head of procuring activity to be of such an intricate, complex, or controversial nature that the proposed procurement should warrant attention of the Secretary;

(2) Procurements determined by the Commanding Generals, U.S. Army Materiel Command or U.S. Continental Army Command or their designees to be of such importance as to warrant attention of the Secretary; and

(3) Procurements which, from time to time, the Secretary may specifically request to be forwarded for review and notation.

(b) Proposed awards to be reviewed at Department of the Army level for notation by the office of the Assistant Secretary of the Army (Research and Development) shall consist of

(1) Procurements funded from RDTE appropriations which are determined by