Subpart 9-3.2 Circumstances Permitting Negotiation

§9-3.200 Scope of subpart.

(a) Section 302(c) of the Federal Property and Administrative Services Act of 1949, as amended, authorizes the negotiation of contracts, and is applicable to AEC (now DOE) procurement. Section 302(c)(15) of the Federal Property & Administrative Service Act of 1949, as amended, permits negotiation when otherwise authorized by law, provided that in such event the requirements of that Act shall apply. Accordingly, when the Federal Property and Administrative Services Act of 1949, as amended, or the Atomic Energy Act of 1954, as amended, or other law is used as the basis for negotiation, the requirements of section 304 of the Federal Property and Administrative Services Act of 1949, as amended, are applicable, except as provided in these regulations.

(b) Contracts to support industrial mobilization plans may be negotiated under section 302(c)(1) of the Federal Property and Administrative Services Act of 1949, as amended, or section 302(c)(15) of that Act and the Atomic Energy Act of 1954, as amended, if the requisite circumstances exist and the required findings and determinations can be made.

§9-3.202 Public exigency.

This exception may be applicable where a facility must be altered or repaired immediately in order not to interfere with essential production and the need for the work could not have been reasonably foreseen.

§9-3.204 Personal or professional services.

(c) Formal advertising procedures shall not be used for contracts for architect-engineer or other professional engineering services. Such contracts may be negotiated under section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended, or section 302(c)(15) of that Act and the Atomic Energy Act of 1954, as amended. However, the exemption provided for in §9-3.405-5(b) does not apply to contracts negotiated under section 302(c)(4) of the Federal Property and Administrative Services Act of 1949, as amended. Professional architect-engineer services shall be negotiated in accordance with §9-4.10 and FPR 14.10.

(d) Surveying, mapping, and field or laboratory tests of construction workmanship and materials and equipment should be classified as professional services when they clearly require planning, direction, supervision, or interpretation by professional engineers as a condition of performance, or when the contractor will be required to assume responsibility for the professional adequacy and accuracy of results. Depending upon the nature and requirements of a particular contract, professional engineering services may involve activities such as the following: (1) Overall direction of the technical work;

(2) Supervision of work performed by technicians, sub-professionals, or nonprofessional employees;

(3) Determination of the methods or procedures for accomplishing the requirements of the contract;

(4) Interpretation of the methods or procedures for accomplishing the requirements of the contract; and

(5) Direct performance of required professional services.

(e) When the services are such that the planning and execution can be performed by personnel having only a practical knowledge of the use of instruments and techniques, such as routine aerial photographing and testing, and do not require any professional engineering competence

or judgment, the "personal or professional services" exception to the formal advertising requirement is not applicable.

(f) Surveying, mapping, and testing services.

In 1959, the American Society of Civil Engineers (ASCE) adopted a policy statement that land surveying, engineering surveying, geodetic surveying, and cartographic surveying, commonly designated as surveying and mapping, are a part of the civil engineering profession. The report of the ASCE Task Committee on Status of Surveying and Mapping may be used for guidance in determining which positions should be considered as professional and which should be considered subprofessional.

§9-3.213 Technical equipment requiring standardization and interchangeability of parts.

If section 302(c)(13) of the Federal Property and Administrative Services Act of 1949, as amended, and the Atomic Energy Act of 1954, as amended, are used as the bases for negotiation, the example of determinations and findings set forth in FPR 1-3.213(e)(2) shall be appropriately modified to state the authority for negotiations.

§9-3.215 Otherwise authorized by law.

(a) The Atomic Energy Act of 1954, as amended, and the Atomic Energy Community Act of 1955, as amended, contain various exemptions from section 3709 of the Revised Statutes, as amended. Pursuant to section 310 of the Federal Property and Administrative Services Act of 1949, as amended, these references to section 3709 shall be construed to authorize procurement pursuant to section 302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, without regard to the advertising requirements of sections 302(c) and 303 of that Act. The situations enumerated in FPR 1-3.201 through 1-3.214 are illustrative of situations which could support a determination and finding under the Atomic Energy Act of 1954, as amended, that advertising is not reasonably practicable or, as appropriate, that negotiation is necessary in the interest of common defense and security.

(b) The Atomic Energy Act of 1954, as amended, also provides in section 162 that the President may, in advance, exempt any specific action of Department of Energy in a particular matter carried out under the authority of the Atomic Energy Act of 1954, as amended, from the provisions of law relating to contracts whenever he determines that such action is essential in interest of common defense and security.

(c) Every contract negotiated under the authority of section 302(c)(15) of the Federal Property and Administrative Services Act of 1949, as amended, and the Atomic Energy Act of 1954, as amended, shall be supported by a determination and finding justifying use of such authority.

Subpart 9-3.3 Determinations, Findings, and Authorities

§9-3.301 General.

Except as otherwise provided in §9-3.302, the determinations and findings required by FPR Subpart 1-3.3 shall be made. Except as otherwise provided in §9-3.303, the determinations and findings required by FPR Subpart 1-3.3 may be made and executed by Contracting Officers, or by DOE Headquarters officials that have been delegated authority to select contractors.

§9-3.302 Determinations and findings required.

The determination and findings required by FPR 1–3.302(d) is not required when the contract is negotiated under the Atomic Energy Act of 1954, as amended.

§9-3.303 Determinations and findings by the Head of the Agency.

Determinations and findings supporting negotiation under the authority of the Federal Property and Administrative Services Act of 1949, section 302(c)(11) (FPR 1-3.211), with respect to contracts which will not require the expenditure of more than $25,000 may be executed by the senior procurement official, Headquarters. Determinations and findings for contracts in excess of $25,000 negotiated pursuant to section 302(c)(11), and in support of all contracts negotiated pursuant to sections 302(c)(12) and 302(c)(13) of the Federal Property and Adminstrative Services Act of 1949, as amended (FPR 1-3.212 & 1-3.213), shall be executed by the Head of the Agency.

Subpart 9-3.4 Types of Contracts

89-3.404 Fixed-Price Contracts

§9-3.404–50 Lump-sum contract for architect-engineer services with reimbursement for certain

costs.

(a) (Reserved)

(b) Description. This type of contract normally provides for a fixed amount or lump sum for the A-E services (see §9-18.306–50(b)(1) for definition of these services) plus reimbursement of, or payment of an additional lump sum for certain costs to the extent they are incurred in connection with the work and are approved by the Contracting Officer. These costs generally are not susceptible of reasonable estimation in advance due to a wide variation in the extent the related services are required for various projects, or they are for services not normally a part of titles I, II, and III.

(c) Compensation is included in the lump sum derived from the fee schedule in the contract for: all drawings, plans, and documents prepared and reproduced under title I, except those which are reimbursable in conjunction with field surveys and subsurface investigations; all drawings, specifications, invitations for bid, and other related documents prepared and reproduced under title II, prior to approval of title II design by DOE; and, preparation of reproducible copies and furnishing the specified number of copies of such drawings and documents after approval by DOE; and for reproducible “as-built” record drawings and marked-up “as-built” specifications prepared under title III (including updated master linen tracings, or reproducible linen tracings from the master set, if so specified in the contract). The provisions of the applicable Government Printing and Binding Regulations must also be observed.

(d) Where the contractor's responsible supervising representative, or an officer, proprietor, executive, or administrative head of the contractor participates directly in the performance of any of the services, he may be compensated for the time actually so engaged. The rate of compensation, including the allocation of home office expenses, if any, shall be subject to approval by the Contracting Officer and commensurate with the cost of employing another qualified person to do such work, but the salary portion should not exceed the actual salary rate of the individual concerned.

(e) The costs listed in paragraphs (b) and (d) of this section cover services that are normal to complete titles I, II, and III services. No profit should be included in the additional compensation for those services because the architect-engineer's profit for the service is included in the lump-sum amount determined from the fee schedule. In order to ensure adequate technical services, they may be paid for on an actual cost basis. However, if it is considered to be more advantageous to the Government, an additional lump sum should be negotiated to cover the costs; in the case of personal services such as inspectors, a daily rate may be negotiated. The calculation of the additional lump sum, or daily rate, should show clearly the amount allowed for each of the services or elements of cost.

(f) Services may be furnished by DOE instead of reimbursing the contractor for the expenses. The type of services that will be furnished should be stated in the contract.

(g) If services are furnished that are beyond titles I, II, and III, such as developmental work, special engineering studies, and the preparation of special documents such as operating and maintenance manuals, additional compensation, including profit, should be paid for such services. Note that preliminary proposals and construction completion reports normally are considered as part of titles I and III.

(h) Use of lump-sum contract.

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(1) A lump-sum contract for architect-engineer services should be used wherever it is practicable to compile, in advance of the preparation of plans and specifications, adequate information specifically describing the character and extent of services required.

(2) When there is insufficient scope information available to permit contracting for complete services (titles I, II, and III) on a lump-sum basis, and when it may be to the advantage of the Government to do so, consideration should be given to contracting only for a study contract or for the preliminary engineering (title I), on either a reimbursable or lump-sum basis, in order to permit entering into a lump-sum contract for the remaining portion of architect-engineer services (titles II and III), based upon information developed in the first phase.

(3) Refer to §9-3.808-2 in determining profit or fee.

89-3.405 Cost-Reimbursement Type Contracts

89-3.405-5 Cost-plus-a-fixed-fee contract.

(a) The authority to determine under FPR 1–3.405–5(d)(1)(ix) that the application of the policy of limiting interim payments on cost-reimbursement type contracts to 80 percent of costs incurred would impose undue hardship on the contractor or adversely affect the interests of the Government, is delegated to the Heads of Procuring Activities.

(b) Pursuant to section 602(d)(13) and (20) of the Federal Property and Administrative Services Act of 1949, as amended, the 10 and 6 per centum cost and fee restrictions on contracts for architect-engineer services are not applicable to those former AEC functions, as well as those of the Bonneville Power Administration, now being performed by DOE.

89-3.405-50 Cost-plus-award-fee (CPAF) contract.

(a) Description.

(1) The CPAF contract is a cost-reimbursement type contract with special fee provisions. It provides a means of applying incentives in contracts which are not susceptible to finite measurements of performance essential to structured incentive contracts. The fee established in a CPAF contract consists of two parts: (i) a fixed amount (base fee) which does not vary with performance and which could be zero; and (ii) an award amount (award fee), in addition to the fixed amount, sufficient to encourage attainment of excellent contract performance in stated areas such as quality, timeliness, ingenuity, and cost effectiveness. Award fee may be earned by the contractor in whole or in part. The amount of award fee to be paid is determined after a subjective evaluation by the Government of the contractor's performance, judged against performance criteria established by the Government and furnished in writing to the contractor.

(2) The number and kinds of performance goals and performance evaluation criteria used will differ widely from one contract to another. Therefore, when determining performance goals, criteria and rating plans, the contracting activity should select the plan which will motivate the contractor in a positive way to exceptional performance in specific areas. Evaluation reports will be prepared by the Government and results should be communicated to the contractor. Additionally, the contractor may be asked to provide an assessment of its performance in relation to each performance evaluation criterion. The decision that all or part of the award fee has been earned is a unilateral determination made by a fee determination official, not subject to the Disputes clause of the contract.

(b) Application. The CPAF contract is suitable for use when:

(1) A cost-reimbursement type contract is found necessary;

(2) The work to be performed is such that specific quantitative or objective measurement is not feasible;