§ 737.2-303-2 Consideration for award.

The determination as to whether a late bid may be considered for award normally shall be made by the contracting officer of the activity issuing the Invitation for Bids (see § 737.1401-51(b)). Where the number of late bids imposes an undue administrative burden on the contracting officer, he may delegate this responsibility on a continuing basis to a responsible official of the purchasing activity. Such delegation shall be made in writing and only to such person who, by reason of experience or otherwise, is considered by the contracting officer to be fully competent to discharge this responsibility.

§ 737.2-305 Late modifications and withdrawals.

(a) The determination as to whether late receipt of a modification or withdrawal was due solely to one of the reasons set forth in § 2.303-2 shall be made by the contracting officer of the activity issuing the Invitation for Bids (see 737.1-401-51(b)), except that such responsibility may be delegated under the same conditions as apply to late bids in § 737.2-303-2. This determination shall be made in advance of any determination which may be made in accordance with paragraph (b) of this section.

(b) Determinations, as to whether late modifications received from an otherwise successful bidder are favorable to the Government shall be made only by the contracting officer of the activity which evaluates the bids, which the prior approval of Counsel where Counsel is assigned to such activity.

8 737.2-400 Opening of bids and award of contract.

§ 737.2-404 Rejection of bids.

§ 737.2-404-2 Rejection of individual bids.

(a) Collusive Bids. In accordance with the requirements of § 1.111-2, the contracting officer shall report all bids he considers were not independently arrived at in open competition or are collusive, or were submitted in bad faith. Awards shall not be delayed because of the reporting requirements prescribed by § 1.111-2, except as otherwise deemed necessary or desirable by the contracting officer.

§ 737.2-406 Mistakes in bids.

§ 737.2-406-3 Other mistakes.

(a) Authority to make the administrative determinations described in § 2.406-3(a)(1) is hereby delegated, without power of redelegation, to the Head of the Contracts Division (as defined in § 737.1-201(c) of each purchasing activity of the Department of the Navy having legal counsel available. If legal counsel is not available, then the determination will be made by the Deputy Commander for Purchasing, Naval Supply Systems Command.

(b) Authority to make the administrative determinations described in § 2.406-3(a) (2), (3), and (4) is hereby delegated, without power of redelegation to the following:

(1) Assistant Commander for Contracts, Naval Facilities Engineering Command, when arising under invitation for construction, maintenance, or repair of public works; and

(2) Deputy Commander for Purchasing, Naval Supply Systems Command, when arising under invitations for supplies or services.

§ 737.2-407 Award.

§ 737.2-407-6 Equal low bids.

See § 737.1-850(f).

§ 737.2-407-9 Protests against award.

(a) Protests Before Award. Where it is known that protest against the making of an award has been lodged with the Comptroller General (GAO), a determination to proceed with award under § 2.407-8(b)(3) shall be made at the next higher level within the purchasing activity than the Contracting Officer who is to execute the contract. When a filed purchasing activity is notified that a protest against the making of an award has been lodged with the Comptroller General, the notice to the Comptroller General of the intent of the purchasing activity to make an award under § 2.4078(b)(3) shall be via the Command Bureau, or Headquarters which advised of the protest, and award shall be withheld until receipt of the advice of the Comptroller General concerning the current status of the case.

(b) Protests After Award. Protests addressed only to the purchasing activity shall be handled in accordance with § 2.407-8(a). In such matters field purchasing activities should obtain the views of the Systems Command, Bureau or Headquarters having procurement cognizance whenever such action is considered desirable. When a field purchasing activity is notified that a protest has been lodged with the Comptroller General (GAO), all information necessary to reply to the protest shall be submitted as promptly as practicable to the Systems Command, Bureau or Headquarters which forwarded notice of the protest. All pertinent records, documentation and factual data shall be reviewed by cognizant legal counsel prior to reply to the Comptroller General.

§ 737.2-450 Procedures for requesting decisions from the Comptroller General prior to contract award.

(a) Except for "mistake in bid" cases (see § 737.2-406-3), contracting officers may request advance decisions directly from the Comptroller General, when necessary for the prompt resolution of legal questions as to the award of an

advertised contract. Examples of questions which may be referred to the Comptroller General are those which involve late bids, nonconforming bids, and informalities in bids. Such requests shall be accompanied by all necessary records, exhibits, and factual data; shall be reviewed by Counsel; and, in the case of field activities, shall be submitted via the cognizant procuring activity. A copy of each written communication, as well as the Comptroller General's reply, shall be furnished to the Chief of Naval Material (MAT021).

(b) The foregoing procedure is not authorized (1) where the decision is likely to alter existing procedures or practices, or (2) where the question is one of unusual importance. Questions involving either of these two cases shall be referred through channels to the Chief of Naval Material (MAT021) for appropriate action.

Subpart C-Procurement by Negotiation

§ 737.3-200 Circumstances permitting negotiations.

§ 737.3-201 National emergency.

§ 737.3-201-50 Memorandum for file.

(a) General. A memorandum for file shall be prepared to justify each procurement negotiated under authority of 10 U.S.C. 2034(a)(1). The memorandum for file shall be signed by the contracting officer unless the signature of a different person is prescribed. Where procurements are negotiated under 10 U.S.C. 2304(a)(1) in furtherance of small business, labor surplus, or disaster area programs, the memorandum for file shall indicate the particular program involved. (For procedures pertaining to labor surplus areas, see Part 1, Subpart H.

(b) Set-Asides for Small Business Concerns. §1.706-2 prescribes the negotiation authority to be used for small business set-asides. Where conventional negotiation has been used to place a contract involving a total setaside, based either upon a joint determination or upon a unilateral determination, the memorandum for file shall

set forth a brief justification for the use of conventional negotiation in lieu of Small Business Restricted Advertising.

[40 FR 1402, Jan. 7, 1975, as amended at 41 FR 55513, Dec. 21, 1976]

§ 737.3-202 Public exigency.

8 737.3-202-3 Limitation.

(a) In addition to the circumstances authorized in § 3.202-2, purchase requests citing "Rapid Development Capability (RDC)" as priority designator, are authorized to be negotiated under 10 U.S.C. 2304(a)(2). Contracting Officers need only cite this designator as justification in the determination and findings. However, purchase requests which do not cite (i) issue priority designator 1 through 6 under the Uniform Material Movement and Issue Priority System (UMMIPS), or (ii) Electronic Warfare QRC Priority, or (iii) Rapid Development Capability (RDC) Priority, shall be scrutinized and fully justified by the Contracting Officer prior to utilizing 10 U.S.C. 2304(a)(2) as authority for negotiation.

(b) In activities to which Counsel are assigned, the determination and findings required by § 3.202-3 shall be reviewed and approved as to form and legality by Counsel.

(c) Examples of the determination and findings required by § 3.202-3 are set forth in Part 30.

§ 737.3-205 Services of educational institutions.

§ 737.3-205-3 Limitation.

See 737.1-403-56 concerning approval requirement for civilian employee training involving tuition payment.

§ 737.3-207 Medicines or medical supplies.

§ 737.3-207-3 Limitation.

(a) In activities to which Counsel is assigned, the determination and findings required by ASPR 3-207.3 shall be reviewed and approved as to form and legality by Counsel.

(b) An example of the format of the determination and findings required by § 3.207-3 is set forth in Part 30.

§ 737.3-208 Supplies purchased for authorized resale.

§ 737.3-208-3 Limitation.

(a) In activities to which Counsel is assigned, the determination and findings required by § 3.208-2 shall be reviewed and approved as to form and legality by Counsel.

(b) An example of the determination and findings required by ASPR 3-208.3 is and findings required by § 3.208-3 is set forth below in Part 30.

§ 737.3-210 Supplies or services for which it is impracticable to secure competition by formal advertising.

§ 737.3-210-3 Limitation.

(a) The contracting officer's determination and findings, required by §3.210-3 to justify negotiation under § 3.210, shall include, directly below the date, the Roman numeral representing the applicable circumstances listed in § 3.210-2. Where none of the examples set forth in § 3.210-2 is applicable, the DD Form 350 coding of “26” may be inserted to denote "no example." This identification is to ensure accurate recording and correct statistical representation in the monthly Survey of Procurement Statistics of the Department of the Navy (NAVMAT P-4200).

(b) With respect to basic ordering agreements, see § 737.3-410-2(c).

(c) In activities to which Counsel are assigned, the D&F's required by § 3.210-3 shall be reviewed and approved as to form and legality by Counsel. Field purchasing offices without regularly assigned local counsel shall arrange with Counsel for their procuring activity for periodic reviews of such D&F's by Systems Command of Filed Counsel. See § 737.3-306-52(d) (6) for review by Counsel of D&F's that are submitted for Secretarial approval.

(d) Examples of the determination and findings justifying use of this authority are set forth in Part 30.

(e) The following is an example of a CDF with respect to Basic Ordering Agreements (BOAS) for the overhaul,

repair or modification of existing equipment under this authority:

CDF No.DETERMINATION AND FINDINGS-AUTHORITY TO NEGOTIATE CLASS OF CONTRACTS Upon the basis of the following findings and determination, which I hereby make as [insert title of official] the proposed classes of contracts described below may be negotiated without formal advertising pursuant to the authority of 10 U.S.C. 2304(a)(10).

FINDINGS

1. The classes of contracts proposed (orders issued under Basic Ordering Agreements) will be for services and materials consisting of:

(a)(i) Change kits, together with installation instructions, as required to retrofit changes in aircraft, including related equipment installed therein (excepting such equipment as has been procured by the Government from sources other than the airframe manufacturer), hereinafter called = "related equipment"; (ii) engineering, prototyping and testing of such changes; and (iii) technical manual changes or revisions, or new technical manuals, as required incident to such changes.

(b)(i) Change kits, together with installation instructions, for contractor-furnished 3 ground support equipment, and new items of ground support equipment, as required incident to aircraft changes referred in subparagraph (a) above (excepting such equipment as has been procured by the Government from sources other than the airframe manufacturer) and (ii) technical manual changes or revisions, or new technical manuals, covering ground support equipment, as required incident to such changes.

(c) Changes or revisions, other than those referred to in subparagraphs (a) and (b) above, to existing technical manuals covering out-of-production aircraft and related equipment delivered by the contractor, as required to provide up-to-date information on operation and maintenance of such aircraft and equipment. For purposes of the changes and revisions covered in this subparagraph (c), aircraft and related equipment shall be considered out-of-production at such time as the last publication, or change or revision thereto, has been delivered under the production contract for such aircraft and equipment.

(d) Change kits, consisting of selected parts, materials, additional training units, graphic aids, data, maintenance training parts and services consisting of instructor updating or refresher training and contractor technical assistance on site for set-up and checkout of the change material for maintenance, operational and weapon

system trainers, as required incident to aircraft changes referred to in subparagraph (a) above (excepting such equipment as has been procured by the Government from sources other than the airframe manufacturer).

(e)(i) Change kits, together with installation instructions, for contractor-furnished spares and repair parts and new items of spares and repair parts, as required incident to aircraft changes referred to in subparagraph (a) above (excepting such equipment as has been procured by the Government from sources other than the airframe manufacturer); and (ii) technical manual changes or revisions, or new technical manuals, covering spares and repairs parts, as required incident to such changes.

2. Orders within the scope of this Class Determination and Findings will include the furnishing of all parts, components, and documentation necessary to make changes to delivered aircraft, including their related equipment, their ground support equipment, and the affected spares therefor, and the installation instructions will present by text and illustration of such kits by Government personnel; however, such orders will include the furnishing of only such parts, components, and documentation as are necessary therefor. The work to be performed under each basic ordering agreement will relate only to previously produced aircraft and related equipment and documentation; it will not include any research and development effort, nor will it include the furnishing of any parts, components, subassemblies, or materials which are not an integral part of the work described above.

3. Changes and developments in the design, equipment, or outfitting of military aircraft are required on a continuing basis in order to improve safety, combat readiness, and general capabilities. Such changes and developments most frequently occur after partial delivery of aircraft and at a point in production where it is no longer practicable to incorporate them in production in some of the aircraft remaining to be delivered; and they may occur after the aircraft model is out of production. Accordingly, the proposed basic ordering agreements will be utilized to make aircraft of a particular model substantially identical in configuration, and to provide delivered aircraft with the latest changes and developments. Publications furnished by the contractor also require modification in a timely manner in order to reflect changes and developments made in the aircraft, its related equipment, and its ground support equipment, and to provide new and improved operational and maintenance techniques.

4. The classes of contracts proposed are to be negotiated with the firms listed below and will relate solely to the specific aircraft

indicated, including their related equipment, their ground support equipment, and the affected spares therefor. These firms are the designers, developers, and sole manufacturers of the respective aircraft. These items are complex, technical, and specialized, and a thorough knowledge of their design, production, and assembly is essential in order that the various categories of work described above may be timely performed. Such knowledge with respect to these aircraft is unique to the contractors listed below; no other contractors have the requisite knowledge of and familiarity with these highly technical items to accomplish within the necessary time frame the work that has to be done. In the case of related equipment and ground support equipment involved in orders within the scope of this Class Determination and Findings, although the airframe manufacturer concerned may have subcontracted large portions of design, development, and manufacture to subcontractors, it is necessary, since the airframe manufacturer retains overall design control, that orders for the work involved be placed with him so as to permit him to maintain the compatibility of the related equipment and ground support equipment with the airframe. Because it is impracticable to secure competition in these classes of procurements, the use of negotiation and not formal advertising is justified.

§ 737.3-211-3 Limitation.

(a) The Findings part of any D&F under this negotiation authority shall include sufficiently detailed description of the work involved so that it will readily appear, describe which category of research and development, as defined in § 4.101(a), the proposed contract is to cover. Additionally, the Determination part of the D&F shall be cast so as to identify that particular type of research and development work (e.g., "The proposed contract is for exploratory development work as defined in § 4.101(a)(2)”). The term "research and development," as defined in § 4.101(a), does not cover Category (7) "Operational System Development" and Category (8) "Management and Support." In a particular case however, and under exceptional circumstances, the facts may be such that Categories (7) and (8) of § 4.101(a) would involve a procurement within the meaning of research and development. Therefore, contracting officers must be assured, when Categories (7) and (8) are involved, that the procurement falls under research and development definition prior to utilizing 10 U.S.C. 2304(a)(11) as negotiation authority.

(b) Requirements for Counsel review of Secretarial D&Fs shall be in accordance with § 737.3-306-52(d)(6). In activities to which Counsel is assigned. contracting officer D&F shall be reviewed and approved as to form and legality by Counsel.

(c) Example of the determination and findings justifying use of this authority is set forth in Part 30.