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other requirements are changed, the revised requirements shall be readvertised or, if appropriate, negotiated under one of the other authorities prescribed in Subpart 1-3.2 of this title.

(3) Cases of doubt in applying the illustration specified in § 1-3.210(a) (13) of this title shall be resolved in favor of formal advertising.

(b) Limitations. This authority shall not be used when negotiation is authorized by any other authority set forth in $$ 1-3.201 through 1-3.215 of this title. § 3-3.211 Experimental, developmental,

or research work. (a) Limitations. Whenever more than single unit quantities of equipment or supplies are to be procured under this authority, the quantity shall be justified as reasonable and essential by the program authority submitting the procurement request. § 3-3.212 Purchases not to be publicly

disclosed. (a) Limitations. This authority shall be used in preference to any other authority when competition is to be Umited because of the need for nondisclosure (also see $ 1-1.1003 of this title). 8 3–3.215 Otherwise authorized by law,

(a) When other statutory authority 1s the basis for negotiation, the proper citation for the contract is 41 U.S.C. 252 (c) (15) plus the section number, title of the Act, and the Public Law number (or U.S.C. citation) of the statute which permits negotiation. For example, the proper citation in a contract for the procurement of expert and consultant service would be 41 U.S.C. 252 (c) (15) and 5 U.S.C. 3109. Subpart 3–3.3—Determinations,

Findings, and Authorities SOURCE: The provisions of this Subpart 8-9.3 appear at 38 FR. 0004, June 11, 1970, unless otherwise noted. 8 3–3.301 General.

(a) Determinations a n d findings which authorize negotiation of contracts and determinations which support other procurement actions shall be made by the oficials specified in § 3-3.303 and $$ 3–3.303–50 and 3–3.303-52.

(b) Class determinations and findings shall be justified on the basis of need to avoid processing multiple determinations and findings when more than one con

tract must be negotiated under the same negotiation authority for the same program or project. The multiple procurements must be for items or services which are to be negotiated at or near the same time and are so related as to constitute a logical and distinct class. All class determinations and findings shall be limited to a period of 1 year or less. 83–3.302 Determinations and findings

required. The following determinations in connection with the negotiation of contracts are required to be made in writing, supported by written findings.

(a) The determination required by section 304(b) of the Act (41 U.S.C. 254 (b)) as to estimated cost of, and fees to be paid under, cost-plus-a-fixed-fee contracts (see 8§ 1-3.401, 1-3.405-4, and 1-3.405-5(c) (2));

(b) The determination required by section 304(b) of the Act that the use of & cost or a cost-plus-a-fixed-fee contract or an incentive-type contract is likely to be less costly than other methods or that it is impracticable to secure property or services of the kind or quality required without the use of a cost or cost-plus&-fixed-fee contract or an incentive-type contract (see $$ 1-3.404-4 and 1-3.405-1 of this title):

(c) The determination required by section 303(b) of the Act (41 U.S.C. 253(b)) that it is in the public interest to reject all bids:

(d) The determination required by section 305(c) of the Act (41 U.S.C. 255(c)) that the making of advance payments would be in the public interest (see 1-30.405 of this title);

(e) The determinations required with respect to waiving a requirement for the submission of cost or pricing data and the certification thereof (see § 1-3.8073(b) of this title) and for the inclusion of the clauses required by $$ 1-3.814-1 through 1–3.814_3 of this title in contracts with foreign governments or agencies thereof.

(f) The determinations required by section 304(c) of the Act (41 U.S.C. 254(c)) and Subpart 1-6.10 of Part 1-6 with respect to omitting the clause specified in § 1-7.101-10 or § 1-7.602–7 of this title from contracts with foreign contractors or subcontractors regarding the right of the Comptroller General of the United States to examine the contractor's records when it is determined (1) that the omission will serve the best Interests of the United States, or (2) that the public interest will best be served by the omission (see 8 1-6.1001 of this title).

(g) Exceptions to the restrictions of the Buy American Act (41 U.S.C. 10(and) and determinations under the Balance of Payments program; see Subpart 3-6.1 of Part 3-6 and Part 1-6 of this title.

(b) Use of time and materials or labor-hour type contract (see 1-3.406 of this title.

(1) Acquisition of construction of equipment or facilities on property not owned by the United States pursuant to an appropriation or other act incorporating the provisions of 10 U.S.C. 2353.

(j) Use of indemnification provision in & research contract pursuant to an appropriation or other act incorporating the provisions of 10 U.S.C. 2354.

(k) Use of letter contracts (see § 1-3.408). (37 FR 17472, Aug. 29, 1972) 8 3–3.303 Determinations and findings

by the head of the agency. The following determinations and findings shall be made by the Assistant Secretary for Health and Scientific Affairs (where health programs are involved), the Assistant Secretary for Education (where education programs

are involved), or the Assistant Secretary for Administration and Management (where other programs are involved).

(a) The determination required by § 1-3.211 of this title with respect to contracts which will require expenditure in excess of $25,000.

(b) The determinations required by 88 1-3.212 of this title and 3-3.213 of this part.

(c) The determination required for the omission of the Examination of Records clause from contracts with foreign contractors or subcontractors

(see $ 1-6.1004 of this title).

(d) Determinations in accordance with g 1-6.103–3. (37 FR 17472, Aug. 29, 1972) 8 3–3.303–50 Other determinations and

findings by the Assistant Secretary

for Health and Scientific Affairs. (a) The determination required for application of 10 U.S.C. 2353(b) (3).

(b) The determination required for application of 10 U.S.C. 2354 with respect to the use of an indemnification provision in a research contract. 187 FR 17472, Aug. 29, 1972]

& 3–3.303–51 Determinations and find.

ings by the Director, Office of Pro

curement and Materiel Management. The determination required by $ 1–3.202(d) that the making of advance payments is in the public interest shall be made by the Director, Office of Procurement and Materiel Management OSOASAM. (37 FR 17472, Aug. 29, 1972) § 3-3.303-52 Determinations and find.

ings by the head of the procuring

activity. (a) The following determinations and findings shall be made by the head of the procuring activity or his designee.'

(1): The determination required by $ 1-3.201 for reasons other than:

(i) Assistance to labor surplus areas or small business concerns, and

(ii) Administration of the Balance of Payments Program.

(2) The determinations and findings required by $$ 1-3.202 and 1-3.214.

(3)* The determinations and findings required by $$ 1-3.302(c) and 1-3.302(e).

(4) The determinations which support exceptions to restrictions of the Buy American Act (41 U.S.C. 10(a-d)) and the determinations and deviations required by Subpart 1-6.8 in administration of the Balance of Payments Program, within the limitations of Subpart 3–6.1 and Part 1-6.

(5) The determination required for application of 10 U.S.C. 2353, (b) (1), and (b) (2).

(6)‘All class determinations and findings except for the categories specified in $$ 3-3.303 and 3-3.303-51.

(7) The determinations and indings which support proposed payment of fixed fees in excess of: (1) 10 percent of estimated costs, exclusive of fee, of any costo plus-a-fixed-fee contract for experimental, developmental, or research work, or (i) 7 percent of estimated cost, exclusive of fee, for any other cost-plus-2fixed-fee contract, but see 3–75.104–2

(a).

(8)* The determinations required by § 1-3.406 with respect to the use of time and materials and labor hour contracts.

(9)' The determinations required by § 1-3.408 with respect to the use of letter contracts. [37 FR 17472, Aug. 29, 1972]

1 A designeo for making these determins tions must be at least one organizational lovel above that of the contracting oncor.

if any.

8 3–3.303-53 Determination and find. temaplated by $ 1-3.210(a) o; provided, the roings by the contracting officer.

quired (work, service, or product 1) has been

authorized by law. The following determinations and find

Date ings shall be made by the contracting officer, unless the head of the procuring

(Signature) activity decides otherwise: (a) The determinations required by

(2) Section 1-3.211. Individual con

tract. $$ 1-3.207; 1-3.208, 1-3.210; and 1-3.215,

DEPARTMENT OF HEALTH, EDUCATION, AND (b) The determination required by

WEFARE § 1-3.211 for contracts not in excess of

DETERMINATION AND FINDINGS $25,000.

Authority to Negotiate an Individual con. (c) The determinations required by

tract Under 41 U.S.C. 252(c) (11) § 1-3.302 (a) and (b). (d) Any other determinations and

I hereby find that:

(1) The (agency title) proposed to profindings not required to be made by

cure (describe work to be performed or prodhigher authority.

uct to be delivered) (identify program or (37 FR 17472, Aug. 29, 1972]

project and state estimated contract price). § 3-3.305 Form and requirements of

(2) The proposed procurement is for (exdeterminations and findings.

perimental, developmental, or research work,

or for the manufacture or furnishing of prop(a) Written determinations and find- erty for experimentation, development, reings shall be prepared in accordance search, or test ). (Set forth facts and cirwith § 3-3.305-50.

cumstances which support a judgment that

the work to be performed is in fact experi[35 FR 9004, June 11, 1970, as amended at 41 FR 19634, May 13, 1976]

mental, developmental, or research.)

(3) It is impracticable to secure compe§ 3-3.305-50 Sample formats.

tition by formal advertising for the contract (a) Negotiation authority. Operating

contemplated because:

(a) (Set forth reasons why the procureagencies will prescribe formats for de

ment contemplated can not be formally adterminations and findings made under vertised, e.g. only ultimate objectives and $81-3.202, 1-3.207, and 1–3.208. The fol- general scope or work can be outlined, work lowing formats are prescribed for deter- cannot be described by dofinito drawings minations and findings made under and specifications, etc.) $8 1-3.210 through 1-3.214:

I hereby determine that: (1) Section 1-3.210. Individual con

On the basis of the above findings, tho tract.

proposed procurement is for experimental,

developmental, or research work, or for the DEPARTMENT OF HEALTH, EDUCATION, AND manufacture or furnishing of property for WELFARE

experimentation, development, research, or

testa) and that negotiation of a contract for DETERMINATION AND FINDINGS

such (work or property 1) is authorized purAuthority to Negotiate an Individual Con- suant to 41 U.S.O. 252(c) (11); provided, tiho tract Under 41 U.S.O. 252(c) (10)

(work or property ") has been authorized by

law. I hereby and that:

Date (1) The (agency title) proposes to procure (describe the work, service, or product) (identity program or project).

(Signature) (2) It is impacticable to secure competi- (3) Section 1–3.211. Class of contracts. tion by formal advertising for the contract contemplated because;

DEPARTMENT OF HEALTH, EDUCATION, AND

WELFARE (a) (Set forth facts and circumstances which support & judgment that competition

DETERMINATION AND FINDINGS by formal advertising is impracticable. Facts and circumstances presented must conform Authority to Negotiate a Class of Contracts to the § 1-3.210 subparagraph selected as

Under 41 U.S.C. 252(C) (11) Justification for negotiation.)

I hereby find that: I hereby determine that:

(1) The (agency title) proposes to negoOn the basis of the above findings, the

tiate approximately (number) contracts in proposed procurement is for (work, services, or products a) for which it is impracticablo to secure competition by formal advertising 1 Use applicable word. and that negotiation of a contract for such ? Use applicable word. (work, services, or products a) 18 authorized * Insert appropriate $ 1-3.210(a) subparapursuant to 41 U.S.C. 252(c)(10), as con- graph number.

(12); provided, the required (property or service 1) has been authorized by law.

Dato:

(Signature) (5) Section 1-3.214. Individual con

tract. DEPARTMENT OF HEALTH, EDUCATION, AND

WELFARE

DETERMINATION AND YINDINGS

support of (identify program or project, and state the anticipated funding level).

(2) The proposed procurements are for (experimental, developmental, or research work, or for the manufacture or furnishing of property for experimentation, development, research, or test 1).

(a) (Set forth facts and circumstances which support a judgment that the work to be performed is in fact experimental, developmental or research).

(3) It is impracticable to secure competition by formal advertising for the contracts contemplated because:

(a) (Set forth reasons why the procurements contemplated cannot be formally advertised, e.g., only ultimate objectives and general scope of work can be outlined, work cannot be described by definite drawings and specifications, etc.)

I hereby determine that:

On the basis of the above findings, the proposed procurements are for (experimental, developmental, or research work, for the manufacture or furnishing of property for experimentation, development, research, or test 1) and that negotiation of contracts for such (work or property 1) is authorized pursuant to 41 U.S.C. 252(C) (11); provided the required (work or property 1) has been authorized by law.

This class determination shall remain in effect until (state terminal date (limit effective period to 1 year)).

Date

Authority To Negotiate an Individual con

tract Under 41 U.S.C. 252(C) (14) I hereby find that:

(1) The (agency title) proposes to procuro (describe work, service or product) (identity program or project).

(2) The proposod procurement was solice Ited by formal advertising under IFB (No. and date). The lowest responsive bid offered & (unit or aggregato 1) price of ($------) which is considered excessive in relation to the prices (8------), estimated as reasonablo by (agency title).

(Note: I applicable, use the following statement: “The prices of bids received were not independently arrived at in open competition.") (Set forth facts and circumstances to support this statement.)

I hereby determine that:

On the basis of the above findings, bid prices received under IPB (No. and date) (aro unreasonable; have not been independently arrived at in open competition 1) and that negotiation of a contract for (doscribe work, service or product) 18 authorizod pursuant to 41 U.S.C. 262 (c) (14); provided, tho required (property or service 1) bas been authorized by law and the limitations under § 1-3.214 are complied with. Date

Signature (4) Section 1-3.212. Individual con

tract. DEPARTMENT OF HEALTH, EDUCATION, AND

WILJARE DETERMINATION AND FONDINOS Authority to Negotiato an Individual con.

tract Under 41 U.S.O. 252 (c) (12) I hereby find that:

(1) Tho (agenoy title) proposes to procuro (describe the work, service, or product) idonHly program or project).

(2) This procurement can not be publicly disclosed becauso (explain either the basis for classification of the contract or the other considerations which the Socrotary should know in order to determino that tho property or services should not be publicly disclosed).

(8) (set forth reasons why the procurement can not be formally advertised.)

I hereby determine that:

On the basis of tho above findings, procurement of the (proporty or services') should not be publicly disclosed and the negotiation of a contract for such (property or services -) 18 authorized pursuant to 41 U.S.C. 262 (c)

(Signaturo) (6) Section 1-3.213. (Note sample determination and findings prescribed by § 1-3.213.)

(b) Type of contract-(1) Cost reimbursement contracts. The following format is prescribed for determinations required by 1-3.302 (a) and (b): DEPARTMENT OF HEALTH, EDUCATION, AND

WELFARE

DSTRIMINATION AND FINDINGS

Authority To Use Cost Reimbursement Type

Contract I hereby find that:

(1) The (agency title) proposes to con. tract with (name of proposed contractor, for (describe work, service, or product) (identify program or project). The estimated cost is ($------) (11 contract is CPFF type, Insert, "plus a fixed Tee of ($------) which

1 Use applicable word or statement.

is

percent of the estimatod cost oxclusive of fee").

(2) (Set forth facts and circumstances that show why it is impracticable to securo property or services of the kind or quantity required without the use of the proposed type of contract or why the proposed method of contracting is Ukely to be less costly than other methods.)

I hereby determine that:

On the basis of the above indings it is impracticable to secure the property or services of the kind or quality required without the use of a (cost, cost-sharing, or cost-pluss-fixed-fee ) type of contract, or the (cost, cost-sharing, or cost-plus-a-fixed-fce ) method of contracting 18 Ukely to be lesa costly than other methods."

Date

(Signature) (2) Time and materials or labor-hour contracts. The format prescribed by $ 3-3.306–80 (b) (1) shall be followed except that the fipal paragraph shall read as follows:

I hereby determine that:

On the basis of the abovo findings, no other type of contract will suitably servo for tho procurement of the required work or services.

(c) Section 1-3.302 (c) and (e). Operating agencies will prescribe formats for determinations required by 1-3.302 (c) and (e).

(d) Advance payments. The prescribed format for advance payments determination and findings is set forth in $ 1-30.410.

(e) Buy American Act exceptions. The prescribed format for determinations in support of exceptions to the Buy American Act is set forth in 3-6.103.

(f) 10 U.S.C. 2353 (Reserved).

(g) Fixed fee. Format for the determination required by $ 3–3.302(b) will be prescribed by operating agencies. [85 FR 9004, June 11, 1970, as amended at 41 FR 19634, May 13, 1976] § 3-3.306 Procedure with respect to

determinations and findings. § 3–3.306–50 Preparation and submis

sion. Determinations and findings to be made by an Assistant Secretary shall bo prepared in an original and four copies (including the yellow box-imprinted copy) and forwarded to the Assistant Secretary through the Office of Procurement and Materiel Management, OASAM. The accompanying briefing leta

ter shall be prepared in an original and three copies. Proposed procurement actions shall be planned so as allow a minimum of 20 working days to process & determination and findings. (37 FR 17472, Aug. 29, 1972) § 3-3.306–51 Briefing letter for author

ity to negotiate. (a) Secretarial determinations. Each determination and findings to be mado by an Assistant Secretary shall be accompanied by a briefing letter signed by the head of the procuring activity. The letter will present facts and information suficient to support a judgment that the proposed procurement action is proper, Ls authorized by law, and that negotiation of a contract(s) is justified. As & minimum, the letter shall include:

(1) A concise description in nontechnical language of the work or services to be performed and the products to be delivered. If a cost reimbursement type contract is contemplated, note scope of work discussion in § 1-3.405-5(e).

(2) Identification of the program or project to be supported and an explanation of why contracting is the proper method of acquiring the required work, service, or property; including a citation of contracting authority.

(3) A statement that appropriated funds are available for the proposed contract(s) and the estimated dollar value of the proposed procurement(s).

(4) A statement setting forth facts and circumstances that clearly and convincingly explain why formal advertising is not feasible or practicable for the proposed procurement. Details must be furnished to support statements such as "only ultimate objectives and general scope of work can be outlined:" "work cannot be described by definite drawings and specifications;" etc.

(5) Discussion of the extent of competition contemplated; i.e., “between five and ten of the most qualified sources will be solicited because (state reasons) :" "only a single or sole source will be solicited because (state reasons; idenify source) ;" "procurement will be synopsized;" include pertinent information obtained from preliminary discussion with potential source or sources. Briefly discuss proposed source evaluation criteria. If the successful contractor will be allowed to acquire, or if the Government is to furnish facilities or equip

1 Use applicable word or statement. * Use applicable words.

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