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§ 3-3.303-53

Determination and find

ings by the contracting officer.

The following determinations and findings shall be made by the contracting officer, unless the head of the procuring activity decides otherwise:

(a) The determinations required by §§ 1-3.207; 1-3.208, 1-3.210; and 1-3.215, if any.

(b) The determination required by § 1-3.211 for contracts not in excess of $25,000.

(c) The determinations required by § 1-3.302 (a) and (b).

(d) Any other determinations and findings not required to be made by higher authority.

[87 FR 17472, Aug. 29, 1972]

§ 3-3.305 Form and requirements of determinations and findings.

(a) Written determinations and findings shall be prepared in accordance with § 3-3.305-50.

[35 FR 9004, June 11, 1970, as amended at 41 FR 19634, May 13, 1976]

§ 3-3.305-50 Sample formats.

(a) Negotiation authority. Operating agencies will prescribe formats for determinations and findings made under §§ 1-3.202, 1–3.207, and 1-3.208. The following formats are prescribed for determinations and findings made under §§ 1-3.210 through 1-3.214:

(1) Section 1-3.210. Individual contract.

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate an Individual Contract Under 41 U.S.O. 252 (c) (10)

I hereby find that:

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

(2) It is impacticable to secure competition by formal advertising for the contract contemplated because:

(a) (Set forth facts and circumstances which support a judgment that competition by formal advertising is impracticable. Facts and circumstances presented must conform to the § 1-3.210 subparagraph selected as Justification for negotiation.)

I hereby determine that:

On the basis of the above findings, the proposed procurement is for (work, services, or products 2) for which it is impracticable to secure competition by formal advertising and that negotiation of a contract for such (work, services, or products") is authorized pursuant to 41 U.S.C. 252 (c) (10), as con

templated by § 1-3.210(a) *; provided, the required (work, service, or product1) has been authorized by law. Date

(Signature)

(2) Section 1-3.211. Individual contract. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate an Individual Contract Under 41 U.S.C. 252 (c) (11)

I hereby find that:

(1) The (agency title) proposed to procure (describe work to be performed or product to be delivered) (identify program or project and state estimated contract price).

(2) The proposed procurement is for (experimental, developmental, or research work, or for the manufacture or furnishing of property for experimentation, development, research, or test). (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 contract contemplated because:

(a) (Set forth reasons why the procurement contemplated can not be formally advertised, e.g. only ultimate objectives and general scope or 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 procurement is for (experimental, developmental, or research work, or for the manufacture or furnishing of property for experimentation, development, research, or test1) and that negotiation of a contract for such (work or property 1) is authorized pursuant to 41 U.S.C. 252(c) (11); provided, the (work or property 1) has been authorized by law.

Date

(Signature)

(3) Section 1-3.211. Class of contracts. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate a Class of Contracts Under 41 U.S.C. 252 (c) (11)

I hereby find that:

(1) The (agency title) proposes to negotiate approximately (number) contracts in

1 Use applicable word.

2 Use applicable word.

Insert appropriate § 1-3.210(a) subparagraph number.

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

Signature

(4) Section 1-3.212. Individual contract.

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

DETERMINATION AND FINDINGS

Authority to Negotiate an Individual Contract Under 41 U.S.O. 252 (c) (12)

I hereby find that:

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

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

(3) (Set forth reasons why the procurement can not be formally advertised.)

I hereby determine that:

On the basis of the above findings, procurement of the (property or services1) should not be publicly disclosed and the negotiation of a contract for such (property or services 1) is authorized pursuant to 41 U.S.C. 252 (c)

1 Use applicable word or statement.

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

(2) The proposed procurement was solicited by formal advertising under IFB (No. and date). The lowest responsive bid offered a (unit or aggregate 1) price of (8------) which is considered excessive in relation to the prices (8------), estimated as reasonable by (agency title).

(Note: If 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 IFB (No. and date) (are unreasonable; have not been independently arrived at in open competition 1) and that negotiation of a contract for (describe work, service or product) is authorized pursuant to 41 U.S.C. 252 (c) (14); provided, the required (property or service1) has been authorized by law and the limitations under 1-8.214 are complied with.

Date.

(Signature)

(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

DETERMINATION AND FINDINGS

Authority To Use Cost Reimbursement Type Contract

I hereby find that:

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

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(2) (Set forth facts and circumstances that show why it is impracticable to secure 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 likely to be less costly than other methods.)

I hereby determine that:

On the basis of the above findings 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-plusa-fixed-fee") type of contract, or the (cost, cost-sharing, cost-plus-a-fixed-fee1) method of contracting is likely to be less costly than other methods." Date

or

(Signature)

(2) Time and materials or labor-hour contracts. The format prescribed by § 3-3.305-50 (b) (1) shall be followed except that the final paragraph shall read as follows:

I hereby determine that:

On the basis of the above findings, no other type of contract will suitably serve for the 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.

[35 FR 9004, June 11, 1970, as amended at 41 FR 19634, May 13, 1976]

§ 3-3.306 Procedure with respect determinations and findings.

to

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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 a determination and findings.

[37 FR 17472, Aug. 29, 1972]

§ 3-3.306-51 Briefing letter for authority to negotiate.

(a) Secretarial determinations. Each determination and findings to be made 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 sufficient to support a judgment that the proposed procurement action is proper, is authorized by law, and that negotiation of a contract(s) is justifled. As a 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; 1.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; identify 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

ment, describe the kind and amount and the basis for providing such property.

(6) Description of type(s) of contract contemplated and reasons for choice. If type of contract contemplated is not set out in Subpart 1-3.4, explain.

(7) Brief discussion of time-frame for procurement actions; i.e., estimated period for soliciting sources, evaluation of proposals, negotiation of contract, period of contract performance (renewal or extension contemplated), etc.

(b) Proposed procurements expected to exceed $1 million. In addition to the information covered in § 3-3.306-51(a), briefing letters for proposed procurements or classes of procurements expected to exceed $1 million will provide answers to the following questions:

(1) Is the proposed procurement an isolated task or is it part of a whole, balanced program?

(2) What is to be the end result of the experimental, developmental, or research work; specific use, or acquisition of general knowledge? How will the results be applied?

(3) Does the current level of technology support the feasibility of effort contemplated? How?

(4) To what degree has the effort been coordinated within and outside the Department in order to preclude duplication of effort?

(c) Determinations by heads of procuring activities. Contracting officers shall prepare and submit briefing letters providing the same information as prescribed in § 3-3.306-51(a) when determinations are to be made by the head of the procuring activity or a designee other than the contracting officer.

§ 3-3.306-52

Briefing letters for facilities construction determinations. Each determination to be signed by the Assistant Secretary for Health and Scientific Affairs pursuant to 10 U.S.C. 2353 shall be accompanied by:

(a) A briefing letter signed by the chief officer of the operating agency responsible for administration, or cognizant Regional Director. The letter shall contain:

(1) A description of the procurement which includes: (1) Contract type; (ii) estimated dollar amount of contract; (iii) property and/or services to be procured; (iv) contractor; (v) approximate duration of the research effort; (vi) any urgency considerations; and (vii) any explanation necessary to apprise the ap

proving authority of unique or unusual aspects.

(2) A description of the research, development, or test facilities and equipment and specialized housing therefor which are to be provided at Government expense. This information shall include: (1) Negotiated estimated total cost, including a breakdown of (a) nonseverable, and (b) severable items; (ii) details concerning ownership of land on which they are to be affixed; (iii) a statement as to whether any of the proposed facilities have general utility; (iv) details which show that the property is of a special character useful primarily for research, development, or test purposes: and (v) any explanation of why such property is necessary for the performance of the contract.

(3) An explanation as to whether the facilities and equipment are readily removable or separable without unreasonable expense or unreasonable loss of values and a description of the provisions to be included in the contract either for:

(1) Reimbursing the Government for the fair value of the property at or near the completion or termination of the contract;

(ii) An alternative provision such as an option afforded to the Government to abandon the facilities or to dismantle and remove the facilities without obligation to restore the premises to their former condition. An explanation shall be provided as to why such alternatives are considered adequate to protect the interests of the Government.

(b) A written representation by the contractor, signed by an executive corporate official, or his equivalent in noncorporate entities, which expresses either unwillingness or financial inability to acquire the necessary resources. [37 FR 17472, Aug. 29, 1972]

§ 3-3.306-53 Briefing letter for other

determinations.

Each determination to be signed by an official designated to act as head of the agency (see § 3-3.303) or by the head of the procuring activity shall be accompanied by a briefing letter signed by the chief officer of the operating agency responsible for administration, or cognizant Regional Director. The letter shall contain as much supplemental information as is necessary to establish that each requirement or condition of the applicable law or regulation is being fully

complied with (e.g., Subpart 1-6.10, Omission of the Examination of Records Clause From Contracts With Foreign Contractors).

[37 FR 17473, Aug. 29, 1973]

§ 3-3.306-54

Briefing letters for advance payment determinations. Each determination to be signed by the Director, Office of Procurement and Materiel Management, OASAM, shall be accompanied by a briefing letter to be signed by the chief officer of the operating agency responsible for administration, or cognizant Regional Director.

The letter shall contain:

(a) A description of the procurement which includes: (1) Name of a contractor; (2) contract type; (3) property and/or services to be obtained; (4) amount of contract.

(b) A statement concerning the proposed financing and contractor's financial responsibility which includes: (1) Amount of advance payment required, including justification and rationale in support of the amount requested; (2) method of financing the advance payment; and (3) safeguards adequate to protect the interests of the Government.

(c) Factual information shall be given in sufficient detail to support a finding that the advance payment is necessary and is in the interest of the Government.

[37 FR 17473, Aug. 29, 1973]

Subpart 3-3.4-Types of Contracts § 3-3.405

tracts.

Cost-reimbursement type con

[87 FR 15860, Aug. 5, 1972]

§ 3-3.405-3 Cost-sharing contract.

(a) Purpose. This regulation prescribes policy relative to cost sharing in research contracts supported by HEW Programs in accordance with Office of Management and Budget (OMB) Circular A-100. The policy and procedures for cost sharing in research grants is set forth in Chapter 2-140 of the HEW Grants Administration Manual.

(b) Background. OMB Circular No. A-100 was issued to provide guidance for determining:

(1) The amount of cost sharing to be obtained when cost sharing is required by statute; and

(2) Whether contractors should be requested to participate in the cost of the research even though cost sharing is

not required by statute and, if so, in what amount.

(c) Policy. (1) In addition to utilizing cost-sharing type contracts when required by statute, the desirability of utilizing this type of contract should also be considered under certain circumstances when not required by statute. Contractors should be encouraged to contribute to the cost of performing research where there is a probability that the contractor will receive present or future benefits from such participation, such as, increased technical know-how, training to employees, acquisition of equipment, use of background knowledge in future contracts, etc. Cost sharing is intended to serve the mutual interest of the Government and the performing organization by helping to assure efficient utilization of the resources available for the conduct of research projects and by promoting sound planning and prudent fiscal policies by the performing organization. If cost sharing is not required by statute, encouragement should be given to organizations to contribute to the cost of performing research under research contracts unless the contracting officer determines that a request for cost sharing would not be appropriate because of the following circumstances:

(i) The particular research objective or scope of effort for the project is specified by the Government rather than proposed by the performing organization. This would usually include any formal Government requests for proposals for a specific project.

(ii) The research effort has only minor relevance to the non-Federal activities of the performing organization, and the organization is proposing to undertake the research primarily as a service to the Government.

(iii) The organization has little or no non-Federal sources or funds from which to make a cost contribution. Cost sharing should generally not be requested if cost sharing should mean that the Government would have to provide funds through some other means (such as fees) to enable the organization to cost share. It should be recognized that those organizations which are predominantly engaged in research and development and have little or no production or other service activities may not be in a favorable position to make a cost contribution.

(2) Cost sharing may be negotiated in either of two ways. When cost sharing is negotiated on a contract by con

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