$9-17.101 Authority.

Subpart 9-17.1 General.

(a) Pursuant to Public Law 85-804, and Executive Order No. 10789, the ERDA has been authorized to exercise the authority provided for in the Act. This authority, which expands ordinary contracting authority, enables it to achieve procurement objectives and pursue policy goals which otherwise might be unattained. The authority of the Act, the Executive order, and these regulations establish no rights in any party outside the agency and the exercise of authority is wholly discretionary with the agency.

(b) The authority vested in the head of the agency by the Act and the Executive order, as amended, is delegated to:

(1) The senior procurement official, Headquarters, ΟΙ designee: Provided, That such delegation does not include authority to deny relief in contractual fairness cases as defined in §9-17. 204-52, and by the senior procurement official, Headquarters, to heads of procuring activities with respect to contractual fairness cases only (not to exceed $50,000), provided that such delegation does

not include authority to deny relief.

(2) The Board of Contract Appeals (which for the purpose of this part is designated as a Contract Adjustment Board) with respect to contractual fairness cases as defined in §9-17.204-52, and such other matters as may be referred to the Board by the senior procurement official headquarters or designee.

(c) The delegations of authority in paragraph (b) of this section are subject to the limitations in FPR 1-17.205-1 and, in the case of contractual fairness cases under $50,000, also of FPR 1-17.205-2. The delegation of authority to the heads of procuring activities may not be redelegated.

§9-17.102 General authority.

(a) The authority may be used only when there exist the following two conditions pertaining directly to the interests of national defense:

(1) The agency is exercising a function in connection with the national defense; and

(2) The agency finds that the use of the authority will facilitate the national defense.

(b) The basis for satisfying the condition in paragraph (a) (2) of this section is a determination that the use of the authority under the Act will:

(1)

Effect the accomplishment or implementation of an important procurement objective or policy goal of the agency; or

(2) Provide fair and equitable treatment by the agency to persons directly or indirectly involved in procurement or other contract activities by the agency.

(d) If a determination is made pursuant to §9-17.102(b), the required statutory finding that the use of the authority will facilitate the national defense is conclusively established without need for further consideration.

$9-17.103 Types of action.

The three types of actions under FPR 1-17.103 are classified as follows for agency purposes:

(a) Cases of special management consideration; and

(b) Cases of contractual fairness.

$9-17.105 Reports.

The senior procurement official or designee is responsible for preparing the annual report to the Congress required by FPR 1-17.105.

Subpart 9-17.2 Requests for Contractual Adjustment

$9-17.204 Standards for deciding cases.

$9-17.204-50 General.

(a) The types of situations identified in FPR 1-17.204 are divided into cases requiring special management consideration and cases giving rise to questions of contractual fairness.

(b) The authority under the Act may be exercised to accomplish or implement important procurement objectives or policy goals of

the agency when ordinary means are deemed to be lacking or inadequate. In cases of special management consideration, the authority is a management tool available for use as the need requires.

(c) The procurement mission of the agency requires a firm policy of fair and equitable treatment by the agency of contractors, subcontractors, vendors, suppliers, consultants, and all others who directly or indirectly, perform services for or furnish material or capacity to the agency. In contractual fairness cases, exercise of the authority under the Act is proper when the normal administrative means for the agency to assure fair and equitable treatment to those involved in its procurement or other contract activities are inadequate.

(d) All requests for use of authority under the Act shall be decided as expeditiously as possible and in accordance with applicable policy and procedural standards in this part.

$9-17.204-51

Cases of special management consideration.

(a) These are cases concerned with facilitating the national defense through the accomplishment of an important procurement objective or policy goal of the agency. Such cases include the amendment of contracts under FPR 1-17.204-2(a), advance payments, and the exercise of residual powers under FPR 1-17.3. In addition to amendments without consideration in essentiality cases, examples of cases for special management consideration are:

(2) Special terms and conditions such as indemnification or wage stabilization agreements in contracts, and

(3) Resolution of problems arising out of relationships between a prime contractor and its subcontractors, vendors, suppliers, and consultants.

(b) The exercise of the authority in cases of special management consideration may immediately concern anyone directly or indirectly involved in procurement or other contract activities of the agency, including prime contractors, subcontractors, vendors, suppliers, and consultants.

These are cases concerned with facilitating the national defense through fair and equitable treatment by the agency of its prime contractor, and of its subcontractors, vendors, suppliers, consultants, and other persons directly or indirectly involved in procurement or other contract activities of the agency. Such cases include:

(a) Correction or mitigation of the effects of a mistake in a prime contract of the agency (FPR 1-17.204-3):

(b) Formalizing informal commitments (FPR 1-17.204-4); and

(c) Adjustments in contracts based on agency action (FPR 117.204-2(b)).

$9-17.207 Requests by contractors.

$9-17.207-1 Filing requests.

A request for use of the authority may be made by any party who performs services for or furnishes material or facilites to the agency, either directly or indirectly. The request shall be filed in quintuplicate with the cognizant head of the procuring activity or designee. If such filing is impractical, requests will be deemed to be properly filed if filed with the senior procurement official, Headquarters, or designee.

In addition to the requirements of FPR 1-17.207-2, if the request is by a subcontractor, vendor, supplier, or consultant under a agency prime contract, a copy of the request by the requesting party to the prime contractor for a statement of his position with respect to the proposed use of authority under the Act and a copy of his reply, if available, shall also be filed with the head of the procuring activity or designee. All possibilities for dispostion of any claim between the prime contractor and the party requesting relief should be exhausted prior to requesting the use of the authority under the Act. In instances where the possibilities for disposition have not been exhausted, the matter will be referred to the prime contractor for consideration.

$9-17.207-50 Procedure for handling cases.

(a) Special management consideration cases:

(1) All requests for the exercise of authority under the Act in cases of special management consideration shall be referred to the senior procurement official headquarters or designee for consideration provided that requests under $50,000 may be referred by the senior procurement official, Headquarters, or designee to the cognizant head of the procuring activity for disposition.

(b) Cases of contractual fairness:

(1) Requests for use of the authority under the Act in cases of contractual fairness (not to exceed $50,000) shall be referred to the head of the procuring activity having cognizance over the contract or subcontract involved, or in the case of Headquarters contracts, the senior procurement official, Headquarters, or designee.

(2) Thereupon, steps shall be taken to ascertain promptly whether or not the request contains the information called for under $9-17.207-2 and if it does not, additional information needed to cure the deficiency shall be requested from the person requesting relief.

(3) Where a request cannot be resolved by the head of a procuring activity solely because the request for relief is in excess of $50,000, he shall forward the request to the senior procurement official, Headquarters, or designee with his recommendation.

(4) In the event the resolution proposed by the head of the procuring activity or designee is unacceptable to the person making the request, it shall be referred to the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board) for disposition in accordance with this part.

(c) The senior procurement official, Headquarters, or designee or head of the procuring activity may, in their discretion, refer requests at any time to the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board).

(a) When submitting cases for consideration by the senior procurement official, Headquarters, or designee, heads of procuring activities shall submit four copies of the following along with the

cases:

(1) The contractor's request in the form described in FPR

1-17.207-2,

(2) The preliminary record required by FPR 1-17.207-3, (3) The facts and evidence described in FPR 1-17.207-4, unless the senior procurement official, Headquarters, shall approve their omission, and

(4) The recommended course of action.

(b) Cases within the jurisdiction of the Board of Contract Appeals (acting in its capacity as a Contract Adjustment Board)