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• 9-1.607 The 41–Poble Contees, proper

§ 9–1.5407

Title 41—Public Contracts, Property Management

solicitation or, if discovered after award, may result in termination at no cost to the Government, disqualification under subsequent related contractual efforts, and such other remedial action as may be permitted or provided by law or the resulting contract. The attention of the offeror in complying with this provision is directed to 18 U.S.C. $1001.

(e) Notwithstanding any other provision contained in this subpart, the contract clause set forth in 89-7.103-54 shall be included in all contracts or arrangements for technical consulting and management support services and may be used, after any appropriate modification, in any contract or arrangement for evaluation services. The disclosure provision set forth in $9-1.5406(d) and the contract clause set forth in $9-7.103-54 need not apply to contracts or arrangements for (1) research and development and (2) architect-engineer services, both as defined in 99-1.5405.

$9-1.5407 Guides applicable prior to selection of

contractor and execution of contract.

(a) A contractor who, in connection with the performance of a study contract, will be given information by ERDA regarding ERDA's plans or programs which is not available to interested industrial firms, should not be permitted to compete with such firms for work relating to such plans or programs.

(b) Development contractors generally should not be prohibited from consideration as a supplier for a product which they develop and design. In development work it is normal to select firms which have done the most advanced work and which are the most experienced in the field. It is to be expected that these firms will develop and design around their own prior knowledge. Also, a contractor who participates in an early stage of development is not precluded from getting a contract for a later stage of development or production. As part of ERDA's overall planning for the development, design, and the production stages, consideration. should be given to the likelihood of competitive solicitations for procuring parts of the design or product effort. The arrangement for such procurement should provide for the maximum competition consistent with satisfying ERDA requirements. Where the designer and developer is permitted to compete with others for the furnishing of the final product, heads of procuring activities or designees should take appropriate steps to see that the information furnished ERDA under the design and development contract is available to other potential bidders, on a timely basis.

(c) If a single contractor, other than a company which has participated in the development referred to in paragraph (b) undertakes a contract which essentially is to assist ERDA or a contractor of ERDA in preparation of a statement of work, or to provide material leading directly and predictably to a statement of work to be used in the competitive procurement of a product or service, that contractor should not be allowed to supply the service, or the product or major components thereof either as a prime or subcontractor or vendor, except when it is determined and justified in accordance with established criteria that such contractor is a sole source for the required product or service. The content of a statement of work is not considered predictable if two or more contractors, unaffiliated with each other, are involved substantially in the preparation of material leading to it. Generally, feasibility studies which do not propose in detail the characteristics of a possible final product, are not work statements and a company should not be barred from bidding subsequently on the product.

(d) If a contractor agrees to prepare and furnish essentially complete specifications to be used in competitive procurement, that contractor should not be allowed to compete either as a prime or subcontractor vendor, for a reasonable period including, at least, the initial procurement. This prohibition should not be applied to:

(1) Contractors who have furnished at ERDA request specifications or data with respect to a product sold to ERDA, even though the specifications or data may have been paid for separately or in the price of the product.

(2) Contractors acting as industry representatives who assist ERDA in preparing, refining, or coordinating specifications, if such assistance is supervised and controlled by ERDA representatives.

(3) Contracts for a developmental or prototype item. However, the principle in the concluding sentence of paragraph (b) should be applied.

(4) Purchases from divisions of or companies affiliated with the performing contractor, provided such purchases are supervised and controlled by ERDA representatives.

(e) A contractor performing evaluation or consulting services for ERDA in connection with a competitive procurement should not be allowed to evaluate or give other consulting services: (1) on a product or service which the contractor provides; (2) on the product or services of any company with which the contractor has a consulting relationship; or (3) on its own product or on similar services which he has performed for others. Such a contractor should not be allowed to give consulting services to prospective bidders on a procurement item for which it has performed or will perform evaluation services for ERDA. It is recognized that under contracts for the operation of ERDA facilities and certain research and development contracts, the performing contractor may solicit proposals and advise ERDA concerning proposed purchases from competitors as well as from its own affiliated divisions or companies not directly engaged in the performance of the ERDA contract. In such cases the contracting officer should assure by appropriate review and supervision that the action taken is sound.

(f) A contractor's judgment may be biased because of past or present relationships of its officers or employees with other organizations and because of organizational relationships (e.g., interlocking directorships). In selecting a contractor to develop technical specifications in connection with competitive procurement or to perform evaluation services on technical proposals, consideration should be given to present and past relationships of the contractor's organization and personnel to the companies whose proposals are to be organization and personnel to the companies whose proposals are to be evaluated. In order to avoid or minimize organizational conflicts of interest and to avoid assignments of work which would create unavoidable conflicts of interest, these relationships may require that an organization be eliminated from consideration for selection, or that a reasonable period of restraint, for example, 1 year, be imposed on the organization or on the use of certain employees in the performance of contract work.

(g) Combinations of contracts for architect-engineering and construction services, which may result in self-inspection of construction work, tend to prevent a contractor from rendering unbiased decisions, or create difficulties in segregating costs between contracts, and should be avoided. However, it is recognized that sometimes it is advantageous under carefully circumscribed conditions for ERDA to obligate a single firm to perform both architect-engineer and construction management services which may include performance of a segment of the construction work with the contractor's own forces. Unless otherwise authorized by the senior procurement official, Headquarters, or designee, the following combinations of contracts shall not be awarded to the same firm or to affiliated companies:

(1) CPFF and fixed-price contracts for construction services, for onsite architect-engineer services, or for construction and onsite architect-engineer services, on different construction projects, if the performance of any portion of the work under each contract is to be concurrent and in the same general location.

(2) A fixed-price contract or contracts, for both architectengineer and construction services on the same construction project, or a CPFF contract for architect-engineer services and a fixed-price contract for construction services on the same construction project. If a firm is to be responsible under such contractual arrangements for both design and construction services, title III architect-engineer services shall be performed by another organization selected by ERDA.

(3) A CPFF contract for both architect-engineer and construction services on the same project (engineer-constructor contract). If this contractual arrangement is used, the contract shall provide for performance of the title III architect-engineer services by contractor's engineering personnel who are not responsible to the contractor's construction personnel, or the title III services shall be performed by another organization selected by ERDA.

$9-1.5408 Protection and private use of

information and data by contractors.

(a) The contractor's obligations for protection of information and data received from ERDA and other contractors or subcontractors, and for the contractor's private use of contract data first produced in the performance of the contract, are set forth in subparagraph (b) (2) of each Rights in Technical Data clause in Subpart 9-9.2. This subparagraph provides that the contractor may, subject to patent, security or other provisions of the contract, use for its private purposes contract data it first produces in the performance of the contract provided that the contractor has met its data requirements (e.g., delivery of data in the form of progress or status reports specified to be delivered) as of the date of the private use of such data. It is not necessary that a "Final Report" be submitted in order to privately use data if all required progress and interim reports and other technical data then due have been delivered. Paragraph (b)(2) further provides that technical or other data received by the contractor in the performance of the contract must be held in confidence by the contractor in accordance with restrictions accompanying the data.

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Subpart 9-2.4 Opening of Bids and Award of Contract


Receipt and safeguarding of bids.
Opening of bids.
Mistakes in bids.
Other mistakes disclosed before award.
Disclosure of mistakes after award.
Protests against award.

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