8737.3-216-3 Limitation.

See Part 30 for instructions pertaining to the form of determinations and findings.

§ 737.3-217 Otherwise authorized by law. For small business set-asides see § 737.3-201-50(b).

8 737.3-217-2 Application.

10 U.S.C. 2304(a)(17) preserves the authority to negotiate contracts when negotiation is authorized by law other than 10 U.S.C. 2301 et seq. Contracts may be negotiated under this authority only with the prior written approval of the Chief of Naval Material (MAT 02) except that such approval is not required in the following cases:

(a) Architectural and Engineering services under 10 U.S.C. 7212.

by

(b) Transportation Service common carrier under 49 U.S.C. 65. (c) Training of Civilian Employees under 5 U.S.C. 2308.

(d) Contracts awarded to the Small Business Administration in accordance with Section 8(a) of the Small Business Act (15 U.S.C. 637(a)).

Contracts so negotiated shall also cite the applicable authorizing statute. For example: Negotiated contracts resulting from joint determinations of total or partial small business set-asides shall cite 10 U.S.C. 2304(a)(17) and Section 15 of the Small Business Act; Negotiated contracts for Architectural and Engineering Services shall cite 10 U.S.C. 2304(a)(17) and 10 U.S.C. 7212. Requests for authority to cite 10 U.S.C. 2304(a)(17) as the authority to negotiate in instances other than those noted above shall be submitted to the Chief of Naval Material (MAT 023) on the form "Request for Authority to Negotiate (NAVEXOS 2759)" generally following the procedures in § 737.3-306-52 except that Secretarial authority will not be required.

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

§ 737.3-300 Determinations and findings. 8737.3-303 Determinations and findings by a contracting officer.

(a) Determination and Findings. See Part 30 for guidance in the preparation of determinations and findings. (b) Memorandum for File. See

§ 737.3-201-50.

(c) Certification by Originator of Purchase Request. Contracting officers are authorized to make determinations and findings with respect to individual purchases and contracts as set forth in § 3.303. Each Navy procuring activity shall establish procedures whereby the individual submitting the purchase request (requisition or other request form upon which the determination to negotiate is based) will certify to the accuracy of the facts and representations contained in such request; except that such certifications are not required in procurements citing authority of 10 U.S.C. 2304(a), (3), (5), (6), (7), (8), and (9). When (1) a purchase request (requisition or other re

quest form upon which the determination to negotiate is based) cites Procurement Method Code (PMC) 3, 4, or 5 in accordance with NAVMATINST 4200.33A; (2) certification of facts would be required by the preceding sentence; and (3) the contracting officer has determined to negotiate a contract, then the contract file shall contain a statement signed by the contracting officer in lieu of the foregoing certification that the PMC data are accurate and current. These certifications and statements shall be retained in the contract file of the procuring activity concerned in those instances where the procurement does not require a Chief of Naval Material business clearance. Where a Chief of Naval Material business clearance is required, a copy of the determinations and findings with the certification or statement thereon, shall be furnished with the pre-negotiation clearance required by § 737.1-403-51(b). The Chief of Naval Material will, from time to time, conduct such reviews of procedures and records as appropriate to assure full compliance with this paragraph (c).

(a) Format. The customary and approved form of a determination and findings (D&F) contains a title or heading, a D&F number and Systems Command or activity identification (or other identifying number such as procurement request number), an opening statement of authorization, a series of numbered findings under the subhead "Findings," one or more determinations (depending on the specific exception used and on the facts of the particular case) under the subhead "Determination(s)," and places for date of signature and signature. Determinations and findings by a contracting officer may be written on Standard Form 1036 or on a separate sheet of paper. Determinations and findings requiring approval of the Secretary of the Navy shall be prepared on a separate sheet of paper. Determinations and findings shall be in proper form,

neat and free of grammatical, spelling and typographical errors.

(b) Heading. The following wording of a typical heading to a D&F for an individual contract is approved:

DETERMINATION AND FINDINGS

Authority To Negotiate Individual Contract For Experimental, Developmental, or Research Work

In a D&F for a class of contracts, the words "Class of Contracts" would replace the words "Individual Contract." It is desirable to indicate in the heading the precise negotiation authority covered by the D&F. As a general rule the bottom line of this heading would set forth, after the word "for," the title of the applicable paragraph of Part 3, Subpart B.

(c) Numbering. At the top right-hand corner of each D&F there should appear an identifying number or numbers. For purposes of administrative simplicity, it is suggested that D&F's (i) signed by a contracting officer or head of a procuring activity bear the same number as the procurement request, requisition or contract, or, (ii) signed by the Secretary be numbered by the originating activity in a simple numerical system which may bear a suffix of the originator's accounting number and/or the contract number to which the D&F applies. It is suggested that when numbering D&F's requiring approval by the Secretary no distinction be made between the numbering of D&F's and CD&F's (Class Determination and Findings).

(d) Scope of D&F. In general, it is desirable to confine each D&F to a single page, to set forth the four or five necessary findings as briefly as possible, and to confine them to only those facts which are necessary and relevant to support the one or more determinations being made. With respect to the determination or determinations, it is important to set forth only that one (or those) which are responsive to the various findings, and necessarily to confine them to the requirements and the particular language set forth under the applicable exception in the Act; further in this connection, it is important to guard against a determination in the alternative and to use cumulative language only when more than one determination is in fact supported by the findings (for example, under 10 U.S.C. 2304(a)(14), "substantial initial investment" and "extended period of preparation for manufacture"). Each D&F or CD&F for authority to negotiate shall clearly indicate that the use of formal advertising would be impracticable and the reasons therefor.

As used in this NDP.

(a) "Determination and Findings" (D&F) means the document signed by the Secretary, Head of a Procuring Activity, or a contracting officer, which justifies negotiation of an individual contract or procurement (see § 3.301);

(b) "Class Determination and Findings" (CDF) means the document signed by the Secretary, which justifies negotiation of a class of contracts or procurements;

(c) "Requests for Authority to Negotiate," or "RAN" (NAVEXOS Form 2759) is the memorandum transmitting the D&F or CDF to the Secretary via the Chief of Naval Material (MAT 023). This memorandum contains detailed factual information explaining the necessity for procuring supplies or services by negotiation rather than by formal advertising and includes supporting documents and information required by this NPD;

(d) "Advance Procurement Plan" or "APP" means the long-range advance plan prepared as required by § 737.12100 and forwarded to the Chief of Naval Material for review and approval; and

(e) "Negotiation Exception" and "EXCEPTION" refer to the authority to negotiate in subparagraphs of 10 U.S.C. 2304(a) as described in §3.201 through § 3.217.

§ 737.3-306-51 Submission of "Request for Authority to Negotiate" for individual purchase or contract.

(a) Except as provided in § 737.3306-51(b), the "Request for Authority to Negotiate" (NAVEXOS Form 2759) will be used to request authority to negotiate an individual purchase or contract when a Determination and Findings by the Secretary is required by § 3.302. An original and two good, legible copies of the RAN, numbered in accordance with instructions set forth in § 737.1-403-53, and of the D&F proposed for signature of the Secretary shall be submitted to the Chief of Naval Material (MAT 023) (the D&F shall be prepared in proper form, neat and free of grammatical, spelling and

typographical errors). The original (ribbon copy) of the RAN, when approved, and the signed D&F will be returned by the Chief of Naval Material. (Where negotiation EXCEPTIONS (11) or (13) under § 3.302 (i) or (iii) are cited, an original and three copies each of the RAN and the D&F shall be submitted to the Chief of Naval Material (MAT 023).)

(b) If an APP (Advance Procurement Plan) has been approved, as provided in § 737.1-2100, it may be used as the justification to support an individual procurement or a class of procurements as applicable. When the APP is used as the justification, the RAN (NAVEXOS Form 2759) should be utilized as the transmittal document for such APP and the accompanying D&F or CDF. The RAN should include:

(1) Any information necessary to update the APP and

(2) Any information required by this § 737.3-306 not previously furnished in the APP. All blocks including signature blocks, on the RAN should be completed.

§ 737.3-306-52 Preparation of RAN-NAVEXOS Form 2759.

The determination to formally advertise or to negotiate is governed by the specific facts in a proposed procurement. (See § 737.3-306-52(c) for RAN's on Classes of items.) When the decision is to negotiate and Secretarial authority is required, the RAN will set forth the basic facts in the following

manner:

(a) Description of Item or Services to be Procured. So that it is clear to a nontechnical reader what is being procured, a brief general description is required, in addition to the customary military nomenclature; also, a statement of the general application and particular significance or specialized character is required. Though the description should avoid unnecessary technical details, it should cover in precise form all supplies or services being procured including the estimated value and the approximate number of items.

(b) Justification. The RAN must contain facts-not just conclusionsthat (1) clearly and convincingly es

90-111 0-82--36

6. Type of contract

7. Synopsis of proposed procurement 8. Government facilities

9. Additional information for all exceptions 10. Additional information for specific negotiation exceptions

(1) PROCUREMENT PLAN-Describe the procurement plan and proposed method of award. The following are examples of such a description: (i) (Where a number of named contractors are to be solicited for an R&D job) "Technical proposals will be solicited from the above-named firms after a conference on the objectives to be reached. Selection of the firm to perform the work will be on the basis of technical competence for the particular research and development work,"; (ii) (in the case of a competitive production item) "Award will be made to the responsive, responsible supplier offering the best price."

The plan specifically shall include:

a. The planned or estimated time to be allowed contractors to submit proposals;

b. An explanation of the urgency, if any, of the requirement, including the origin of the urgency representations, when lead time is cited as a basis for restriction of competition (such as delay in the procurement through use of formal advertising, etc.);

c. The basis for establishing the delivery requirements; and

d. The circumstances should be stated when the procurement requirement is the result of termination or other unusual action on a prior contract.

(2) ADVANCE PLANNING COORDINATION-In presenting information with respect to the procurement plan under (1), refer to any advance planning information previously prepared or furnished together with information with respect to change(s) proposed in the present RAN which represents a departure or modification of prior procurement plans.

any

(3) SELECTION OF PROSPECTIVE CONTRACTORS FOR NEGOTIATION

Include an analysis of possible sources, indicating the following:

a. Extent of competition available; identity and location of firms to be solicited; the size classification of each concern to be solicited shall be indicated by the symbol (S) for small business, (L) for large business and (NP) for nonprofit or educational; and whether it is located in a labor surplus area; b. Where appropriate, the caliber of technical or scientific personnel to be employed on the work;

c. A brief description of the method of evaluation used in selecting a contractor when the selection is based on technical skills, ability to produce, available capacity, or similar factors (this is particularly important when such evaluations result in a reduction in the number of firms to receive RFP's);

d. The exclusion of apparently qualified firms must be briefly and clearly explained (statements that the "XYZ Company is considered best qualified" or "no other sources are considered qualified" should be thoroughly supported in the justification presented);

e. The circumstances surrounding the proprietary position of a contractor;

f. The basis for representation as to advantageous lead time position of the selected contractor, including stage reached in the development or production of the item(s) (such as what production run) and the relation to the proposed procurement of any prior experience (such as R&D or the furnishing of prototype);

g. For follow-on contracts proposed for award on a single source basis, the method of original selection, of contractor should be identified, i.e., competition, design, competition, or technical competition.

(4) TECHNICAL DATA REQUIREMENTS-Where the absence of necessary technical data is a factor in contractor selection, the acquisition of technical data under the proposed procurement is basic to obtaining competition on future procurements (unless such data is already a requirement under another procurement). See NAVMAT Instruction 4000.15A. Each RAN shall state:

a. The procuring activity's time schedule to obtain, prepare, and issue technical data for purposes of obtaining competition;

b. The specific nature of technical data to be acquired, indicating the type and class of drawings, as defined in Specification MILD-70327 and MIL-STD-7, and including a reason for deviation if the drawings to be acquired do not fully comply with this specification;

c. The technical data to be required by the contract, or required by an existing contract, the delivery schedule for such data and for revisions;

d. Whether the technical data will be adequate for competitive procurement and when evaluation thereof is expected to be completed;

e. If the technical data will not be adequate for competitive procurement, in a full explanation state why data adequate for competition is not being procured and when it is expected that data adequate to obtain competition will be secured, evaluated, and made available for issue; and

f. If the technical data, though adequate for competitive procurement, will not be available in time for the next procurement of the item(s) concerned, an explanation as to why it is not feasible to effect delivery and evaluation of the data in time to permit their use for competitive procurement on the next buy, including information as to any delinquency in contract performance with respect to such data.

CONFORM

(5) EVALUATION AND ANCE WITH SPECIFICATIONS-Where service evaluation requirements are operative for the procurement under consideration, the RAN shall present the following, where applicable:

a. Status and results of service testing of the equipment. If tests have not yet been made, information as to why not and as to when such tests will be commenced and completed;

b. Where technical evaluation or operational evaluation by the Navy Operational Test and Evaluation Force has been completed, information as to whether equipment to be procured meets the operational specifications;

c. If the equipment to be procured does not meet the operational specification, information as to what waivers or deviations are being granted, why, and the source of approval of such waivers or deviations, with identification of the approving document(s);

and

d. In the case of Requests for Authority to Negotiate under Exception (14), included in this paragraph (instead of under the "Basis of urgency representation," (10)d(i) below) information as to whether the procurement covers property being acquired in advance of approval for service use, and one of the following:

(i) A statement that, pursuant to OPNAVINST 4720.9B of 13 February 1963, the item(s) concerned require(s) only technical evaluation and that no further CNO approval is required;

(ii) A reference to CNO approval for service use; or

(iii) A reference to CNO authorization to procure in advance of CNO approval for service use. (In this case a copy of the related waiver of prior CNO approval for service use should be attached to the RAN.)

(6) TYPE OF CONTRACT-RAN's should specify the type of contract tentatively con

templated and, where a cost, CPFF, CPIF, of redeterminable fixed price type contract is being considered, a statement shall be inIcluded as to (i) the reasons for selection of such type of contract, and (ii) plans for use of a more advanced type of contract (i.e., firmed fixed price or fixed price incentive) on any continuing portion of the program. (Where a firm fixed price or fixed price incentive type contract is contemplated on the current procurement, a brief statement to that effect is sufficient except that where the bases for selection of a fixed price incentive over a firm fixed price are not readily apparent the intention to use an incentive type contract should be explained).

(7) SYNOPSIS OF PROPOSED PROCUREMENTS-Where the proposed procurement will not be publicized, a brief statement of explanation shall be included with reference to the specific basis for exemption under § 1.1003-1.

(8) GOVERNMENT FACILITIES-The Request shall indicate the type and estimated amounts of additional Government facilities, materials, equipment, special tooling, services, or property of any type to be furnished the contractor, such as Governmentfurnished materials to be incorporated into end-items or products, use of existing Government land, building or equipment, construction such as civil or public works or other incidental construction, modification, alteration, rearrangement or improvement of Government or contractor facilities, construction or installation of nonseverables, and Government-furnished services of any type. If facilities requirements or amounts cannot be precisely determined, so state and include known facts. If a facilities contract is involved or if a facilities business clearance memorandum was furnished the Chief of Naval Material pursuant to § 737.1-40351(b)(2)a(xiii), reference should be made to such documents.

(9) ADDITIONAL INFORMATION FOR ALL EXCEPTIONS-Justifications for negotiation shall include:

a. The estimated cost of the proposed procurement, how obtained, and a brief description of the basis on which the estimated cost of the procurement was derived;

b. A description of the content of the RFP relating to the range of stepladder quantities, if applicable, and;

c. Where procurements involve electronic equipment requiring radio frequency approval, a statement that the frequency allocation has been approved by the Director, Naval Communications, in accordance with OPNAVINST 2410.11E.

(10) ADDITIONAL INFORMATION TO BE FURNISHED FOR SPECIFIC NEGOTIATION EXCEPTIONS.

a. When EXCEPTION (11) is proposed for use, include the following where applicable: