Page images
PDF
EPUB
[blocks in formation]

Contracts with commercial
cerns other than educational in-
stitutions. [Revised]

Contracts with educational institu-
tions. [Revised]

3.704-3 Modification of contract clauses. [Added]

3.705 3.707

Procedure. [Amended] Cost-sharing rates.

[Revised]

[blocks in formation]

[Added]

Contract clauses. [Amended]

Approval of purchasing system.

[Amended]

3.903-4 Review of industrial subcontracts.

[Amended]

3.903-5 Disputes provisions in subcontracts. [Added]

Subpart A-Use of Negotiation § 3.101 Negotiation as distinguished from formal advertising.

Whenever supplies or services are to be procured by negotiation, price quotations (see Subpart B, Part 16 of this chapter), supported by statements and analyses of estimated costs or other evidence of reasonable prices and other vital matters deemed necessary by the contracting officer, shall be solicited from the maximum number of qualified sources of supplies or services consistent with the nature of and requirements for the supplies or services to be procured, in accordance with the basic policies set forth in Subpart C, Part 1 of this chapter, to the end that the procurement will be made to the best advantage of the Government, price and other factors considered. Negotiation shall thereupon be conducted, by contracting officers and their negotiators, with due attention being given to the following and any other appropriate factors:

[Introductory text amended, 26 F.R. 2603, Mar. 28, 1961]

(0) Consideration of the soundness of prospective contractor's management of labor resources, including wage rates, number of workers and total estimated labor hours, with particular attention to possible uneconomical practices found in labor management agreements or in company policy, especially in the selection of contractors for development and production of major weapon systems and subsystems;

(p) Consideration of the extent of subcontracting;

(q) Consideration of the existing and potential workload of the prospective supplier;

(r) Consideration of broadening the industrial base by the development of additional suppliers;

(s) Consideration of whether the contractor requires Government-furnished property, machine tools, or facilities; or Government-operated test facilities;

(t) Consideration of contract performance in facilities located in dispersed sites; and

[Paragraphs (0) through (t) amended, 27 F.R. 3447, Apr. 11, 1962]

(u) Advantages or disadvantages to the Government that might result from making multiple awards.

[Paragraph (u) added, 27 F.R. 3447, Apr. 11, 1962]

§ 3.102 General requirements for negotiation.

(c) Negotiated procurements shall be on a competitive basis to the maximum practical extent. Where a proposed procurement appears to be necessarily noncompetitive, the purchasing activity is responsible not only for assuring that competitive procurement is not feasible, but also for acting whenever possible to avoid the need for subsequent noncompetitive procurements. This action should include both examination of the reasons for the procurement being noncompetitive and steps to foster competitive conditions for subsequent procurements, particularly as to the availability of complete and accurate data, reasonableness of delivery requirements (§ 1.305-2(a) of this chapter), and possible breakout of components for competitive procurement. Except for procurement of electric power or energy, gas (natural or manufactured), water, or other utility services, contracts in excess of $10,000 shall not be negotiated on a noncompetitive basis without prior re

view at a level higher than the contracting officer to assure compliance with this subparagraph.

[Paragraph (c) added, 27 F.R. 1694, Feb. 22, 1962]

§ 3.103 Records and reports of negotiated contracts.

In addition to the records and reports described in §§ 1.308, 3.211-4, and 3.2164 of this chapter, each military department is required to maintain a record of the total value of all contracts negotiated by it during each fiscal year under each of the circumstances permitting negotiation enumerated in Subpart B of this part. These records and reports based thereon, are maintained through the Department of Defense procurement reporting system described in §1.110 of this chapter.

[27 F.R. 8871, Sept. 6, 1962]
Prior Amendments
1961: 26 F.R. 9635, Oct. 12.

§ 3.106 Information to unsuccessful offerors.

(a) Pre-award notice of unacceptable offers. In any procurement in excess of $10,000 in which it appears that the period of evaluation of proposals is likely to exceed 30 days or in which a limited number of suppliers have been selected for additional negotiation (see § 3.805-1), the contracting officer, upon determination that a proposal is unacceptable, shall provide prompt notice of that fact to the source submitting the proposal. Such notice need not be given where disclosure will in some way prejudice the Government's interest or where the proposed contract is:

(1) For subsistence;

(2) Negotiated pursuant to 10 U.S.C. 2304(a) (4), (5), or (6) (see §§ 3.204, 3.205, or § 3.206);

(3) Negotiated with a foreign supplier when only foreign sources of supplies or services have been solicited; or

(4) To be awarded within a few days and notice pursuant to paragraph (b) of this section would suffice.

In addition to stating that the proposal has been determined unacceptable, notice to the offeror shall indicate, in general terms, the basis for such determination and shall advise that, since further negotiation with him concerning this procurement is not contemplated, a revision of his proposal will not be con

sidered.

(b) Post-award notice of unaccepted offers. (1) Promptly after making all awards in any procurement in excess of $10,000, the contracting officer shall give written notice to the unsuccessful offerors that their proposals were not accepted, except that such notice need not be given where notice has been provided pursuant to paragraph (a) of this section or the contract is for subsistence or is negotiated pursuant to 10 U.S.C. 2304(a) (4), (5), or (6) (see §§ 3.204, 3.205 or § 3.206); or is negotiated with a foreign supplier when only foreign sources of supplies or services have been solicited. Such notice shall also include:

(i) The number of prospective contractors solicited;

(ii) The number of proposals received; (iii) The name and address of each offeror receiving an award;

(iv) The items, quantities, and unit prices of each award; provided that, where the number of items or other factors makes the listing of unit prices impracticable, only the total contract price need be furnished; and

(v) In general terms, the reasons why the offeror's proposal was not accepted, except where the price information in subdivision (iv) of this subparagraph readily reveals such reason, but in no event will an offeror's cost breakdown, profit, overhead rates, trade secrets manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror. Additional information as to why an offeror's proposal was not accepted should be provided to the offeror upon his request to the contracting officer, subject to the limitation in subdivision (v) of this subparagraph.

(2) In procurements of $10,000 or less and subject to the exceptions in subparagraph (1) of this paragraph, the information described in subparagraph (1) of this paragraph shall be furnished to unsuccessful offerors upon request.

(c) Classified information. Classified information shall be furnished only in accordance with regulations governing classified information.

[28 F.R. 4882, May 16, 1963]

§ 3.107 Selection of research and development contractors.

[Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-1 General.

[Revoked, 27 F.R. 6123, June 29, 1962]

concerns.

§ 3.107-2 Small Business [Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-3 Selection of sources for solicitations.

[Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-4 Solicitation.

[Revised, 27 F.R. 3448, Apr. 11, 1962. Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-5 Conduct of negotiations. [Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-6 Evaluation for award. [Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-7 Cost and price estimates. [Amended, 26 F.R. 2603, Mar. 28, 1961. Revoked, 27 F.R. 6123, June 29, 1962] § 3.107-8 Documentation.

[Revoked, 27 F.R. 6123, June 29, 1962] 8 3.108 Negotiation of initial production contracts for technical or specialized military supplies.

(a) The production of important new technical or specialized military supplies generally involves development, evaluation, and initial production phases. Examples of such supplies are tanks, radar, guided missiles, aircraft, rockets, and equipment of similar complexity; major components of such equipment as the foregoing; and any items of technical or specialized nature necessary for the use, maintenance or operation of such equipment. Contracting officers shall avoid, wherever practicable, awarding initial production contracts for supplies until completion of the development and evaluation phases. At the time of placing the initial production contract, it is essential that the Government be completely free to select the contractor as the best interest of the Government may dictate. In the placement and administration of research or development contracts, no commitments shall be made to contractors with respect to obtaining subsequent production contracts. [Paragraph (a) amended, 27 F.R. 3448, Apr. 11, 1962]

[blocks in formation]

§3.112 Disclosure of mistakes after

award.

When a mistake in a contractor's proposal is not discovered until after award, the authority to correct mistakes contained in § 2.406-4 of this chapter may be utilized in accordance with the limitations and procedure set forth therein. [26 F.R. 9635, Oct. 12, 1961]

Subpart B-Circumstances Permitting Negotiation

§ 3.201-2 Application.

*

(b) For the duration of the national emergency declared pursuant to Presidential Proclamation 2914, dated December 16, 1950, the Assistant Secretary of Defense (Installations and Logistics) has determined that only the following procurements may be made pursuant to the authority of 10 U.S.C. 2304(a) (1):

(1) Procurements made in keeping with (i) labor surplus set-aside programs, including, when no other negotiating authority is appropriate and the use of formal advertising is not feasible and practicable, the placement of contracts for the total or any part of the requirements set-aside which are not filled by awards made in accordance with the provisions of the Notice of Labor Surplus Area Set-Aside (see § 1.804-2(c) of this chapter), or (ii) disaster area programs; and

(2) Procurements made in keeping with the small business programs (i) after unilateral determinations for setasides, or (ii) to place the total or any part of the requirements set-aside which are not filled by awards to small business concerns, when no other negotiating authority is appropriate and the use of formal advertising is not feasible and practicable (see § 1.706-7 of this chapter).

[blocks in formation]
[blocks in formation]

(d) Construction needed at once to preserve a structure or its contents from damage; or

(e) Essential equipment for, or repair to, missiles or missile support equipment, when such equipment or repair is needed at once to preclude impairment of launch capabilities or mission performance. [Paragraphs (d) and (e) added, 26 F.R. 9635, Oct. 12, 1961]

(f) Purchase request citing an issue priority designator 1 through 6, inclusive, when the priority designator has been assigned in accordance with the Uniform Materiel Issue Priority System.

NOTE: Requirements citing an issue priority designator 7 through 20 may justify negotiation under this or other negotiation authority, but in such cases the specific circumstances must be set forth in the determination and findings.

[Paragraph (f) added, 27 F.R. 6123, June 29, 1962]

[blocks in formation]

Every contract negotiated under the authority of §§ 3.202 through 3.202-3 shall be accompanied by a determination and findings justifying its use, signed by the contracting officer and prepared in accordance with the requirements of Subpart C of this part, except that in the case of a contract resulting from a purchase request citing an issue priority designator 1 through 6, the determination and findings need only cite the designator as justification. The authority of §§ 3.202 through 3.202-3 shall not be used when negotiation is authorized by the provisions of § 3.203 or 3.206. [27 F.R. 6123, June 29, 1962] Prior Amendments 1961: 26 F.R. 2603, Mar. 28. § 3.203-2 Application.

Purchases or contracts aggregating not more than $2,500 shall be made in ac

[blocks in formation]
[blocks in formation]

(p) when the contract is a facilities contract as defined in § 13.101-16 of this chapter and the performance required can be obtained from only one person or firm.

[Paragraph (p) added, 26 F.R. 2603, Mar. 28, 1961]

(q) When the contemplated procurement involves construction where a contractor or group of contractors is already at work on the site, and it would not be practicable to allow another contractor or an additional contractor to work on the same site or when the amount is too small to interest other contractors to mobilize and demobilize.

[Paragraph (q) added, 26 F.R. 9635, Oct. 12, 1961]

§ 3.210-3 Limitation.

The authority of §§ 3.210 through 3.210-3 shall not be used when negotiation is authorized by any other authority set forth in §§ 3.201 through 3.217, except that this authority shall be used in preference to § 3.212. The authority illustrated in § 3.210-2 (c) and (d) shall not be used in cases where "Small Business Restricted Advertising" has been used. However, the authority may be used in the case of partial set-asides unless in the judgment of the contracting officer the failure to obtain sufficient responsive bids was caused by the existence of set-aside. The authority contained in § 3.210-2 (m) and (o) shall not be used in procurements in excess of $10,000 unless its use is approved in advance at a level higher than the contracting officer.

« PreviousContinue »