accordance with the requirements of applicable law.

(b) Limitations. This authority shall not apply to the procurement by negotiation of any types of services authorized under any other provisions of this subpart. (For instructions regarding contracts for professional engineering, architectural, and landscape architectural services and delegations of authority under section 15 of the Public Buildings Act of 1959 (40 U.S.C. 614), see Federal Property Management Regulations (§§ 101-17.402(c) and 10117.501 of this title).)

[29 FR 10155, July 24, 1964, as amended at 31 FR 8116, June 9, 1966]

§ 1-3.205 Services of educational institutions.

Pursuant to the authority of section 302(c)(5) of the Act (41 U.S.C. 242(c)(5)), purchases and contracts inay be negotiated without formal advertising if "for any service to be rendered by any university, college, or other educational institution."

(a) Application. The following are illustrative of circumstances with respect to which this authority may be used:

(1) Educational or vocational training services to be rendered by any university, college, or other educational institution in connection with the training and education of personnel, and for necessary material, services, and supplies furnished by any such institution in connection therewith.

(2) Experimental, development, or research work (including services, tests and reports necessary or incidental thereto) to be conducted by any university, college, or other educational institution; and reports furnished in connection therewith.

(3) Analyses, studies, or reports (statistical or otherwise) to be conducted or prepared by any university, college, or other educational institution.

§ 1-3.206 Purchases outside the United States.

Pursuant to the authority of section 302(c)(6) of the Act (41 U.S.C. 252(c)(6)), purchases and contracts may be negotiated without formal advertising if "the supplies or services

are to be procured and used outside the limits of the United States and its possessions." This authority shall be used only for the procurement of property or services which are actually purchased from sources outside and used outside the limits of the United States and its possessions, such as property or services (including construction) for overseas installations or for the use of overseas personnel.

§ 1-3.207 Medicines or medical supplies.

Pursuant to the authority of section 302(c)(7) of the Act (41 U.S.C. 252(c)(7)), purchases and contracts may be negotiated without formal advertising if "for inedicines or medical property."

(a) Application. This authority shall be used only for such supplies as are peculiar to the field of medicine, including technical equipment, such as surgical instruments, surgical and orthopedic appliances, X-ray supplies and equipment, and the like.

(b) Limitations. (1) Every contract negotiated under this authority shall be supported by a determination and findings prepared in accordance with Subpart 1-3.3 and signed by the contracting officer.

of

(2) Whenever the probable cost of property to be purchased by negotiation under this authority will exceed $10,000, suitable advance publicity of the proposed purchase shall be given for a period of at least 15 days wherever practicable. The requirement "suitable advance publicity” shall be deemed to be complied with if circulation of notice of intent to negotiate is made to business concerns engaged in the manufacture and/or sale of the products involved, including qualified concerns known to have current interest in selling such products to the Government. When desirable, publication of the intention to negotiate through newspapers or other similar media may be used to supplement circularization.

§ 1-3.208 Property purchased for authorized resale.

Pursuant to the authority of section. 302(c)(8) of the Act (41 U.S.C. 252(c)(8)), purchases and contracts

may be negotiated without formal advertising if "for property purchased for authorized resale."

(a) Application. This authority shall be used only for purchases for resale through commissaries or other similar facilities, and ordinarily only for purchases of articles with brand names or of a proprietary nature as required by patrons of the selling activities.

(b) Limitations. (1) Every contract negotiated under this authority shall be supported by a determination and findings prepared in accordance with Subpart 1-3.3 and signed by the contracting officer.

(2) Whenever the probable cost of property to be purchased by negotiation under the authority will exceed $10,000, suitable advance publicity (see § 1-3.207(b)(2)) of the proposed purchase shall be given for a period of at least 15 days, whenever practicable. When exercising this authority, regardless of the probable cost, competitive proposals shall be solicited from all such qualified sources of supply as the contracting officer deems necessary to assure full and free competition, consistent with the type and character of the procurement.

$1-3.209 Subsistence supplies.

Pursuant to the authority of section 302(c)(9) of the Act (41 U.S.C. 252(c)(9)), purchases and contracts may be negotiated without formal advertising if "for perishable or nonperishable subsistence supplies."

(a) Application. This authority may be used for the purchase of any and all kinds of subsistence supplies.

(b) Limitation. When exercising this authority, competitive proposals shall be solicited from all such qualified sources of supply as the contracting officer deems necessary to assure full and free competition, consistent with the type and character of the procurement.

§ 1-3.210 Impracticable to secure competition by formal advertising.

Pursuant to the authority of section 302(c)(10) of the Act (41 U.S.C. 252(c)(10)), purchases and contracts may be negotiated without formal advertising if "for property or services

for which it is impracticable to secure competition."

(a) Application. The following are illustrative of circumstances with respect to which this authority may be used:

(1) When property or services can be obtained from only one person or firm (sole source of supply).

(2) When competition is precluded because of the existence of patent rights, copyrights, secret processes, control of basic raw material, or similar circumstances (however, the mere existence of such rights or circumstances does not in and of itself justify the use of this authority).

(3) When bids have been solicited pursuant to the requirements of Part 1-2, and no responsive bid has been received from a responsible bidder.

(4) When bids have been solicited pursuant to the requirements of Part 1-2 and the responsive bid or bids do not cover the quantitative requirements of the invitation for bids, in which case, negotiation is permitted for the remaining requirements.

(5) When the contemplated procurement is for electric power or energy, gas (natural or manufactured), water, or other utility services or when the contemplated procurement is for construction of a part of a utility system and it would not be practicable to allow a contractor other than the utility company itself to work upon the system.

(6) When the contemplated procurement is for training film, motion picture productions, or manuscripts.

(7) When the contemplated procurement is for technical nonpersonal services in connection with the assembly, installation, or servicing (or the instruction of personnel therein) of equipment of a highly technical or specialized nature.

(8) When the contemplated procurement is for studies or surveys other than those which may be negotiated under the authority cited in §§ 1-3.205 or 1-3.211.

(9) When the contemplated procurement involves maintenance, repair, alteration, or inspection and the exact nature or amount of the work to be done is not known.

(10) When the contemplated procurement is for stevedoring, terminal, warehousing, or switching services, and when either the rates are established by law or regulation, or the rates are so numerous or complex that it is impracticable to set them forth in the specifications of a formal invitation for bids.

(11) When the contemplated procurement is for commercial transportation, including time, space, trip, and voyage charters, except for such transportation services as are furnished by common carriers (for which negotiation is authorized under § 1-3.215 and section 321 of the Transportation Act of 1940, 49 U.S.C. 65, and including services for the operation of Government-owned vehicles, vessels, or aircraft.

(12) When the contemplated contract is for services related to the procurement of perishable subsistence, such as protective storage, icing, processing, packaging, handling, and transportation, and it is impracticable to advertise for such services a sufficient time in advance of the delivery of the perishable subsistence.

(13) When it is impossible to draft for an invitation for bids adequate specifications or any other adequately detailed description of the required property or services.

(14) When the contemplated procurement is for parts or components being procured as replacement parts in support of equipment specially designed by the manufacturer, where data available is not adequate to assure that the part or component will perform the same function in the equipment as the part or component it is to replace.

(15) When the contemplated procurement involves construction where a contractor or group of contractors is already at work on the site, and it would not be practicable to allow another contractor or an additional contractor to work on the same site or when the amount is too small to interest other contractors to mobilize and demobilize.

(b) Limitations. The authority cited in this § 1-3.210 shall not be used under the circumstances described in

paragraphs (3) and (4) of § 1-3.210(a) where "Small Business Restricted Advertising" has been used. However, it may be used in the case of partial setasides unless in the judgment of the contracting officer the failure to obtain sufficient responsive bids on the non-set-aside portion was caused by the existence of the set-aside. Every contract negotiated under this authority shall be supported by a determination and findings justifying use of the authority. The determination and findings shall be prepared in accordance with Subpart 1-3.3 and signed by the contracting officer.

§ 1-3.211 Experimental, developmental, or research work.

Pursuant to the authority of section 302(c)(11) of the Act (41 U.S.C. 252(c)(11)), purchases and contracts may be negotiated without formal advertising if "the agency head determines that the purchase or contract is for experimental, developmental, or research work, or for the manufacture or furnishing of property for experimentation, development, research, or test."

(a) Application. The following are illustrative of circumstances with respect to which this authority may be used:

(1) When the contemplated contract relates to theoretical analysis, exploratory studies, and experimentation in any field of science or technology.

(2) When the contemplated contract is for developmental work and calls for the practical application of investigative findings and theories of a scientific or technical nature.

(3) When the contemplated contract is for such quantities and kinds of equipment, supplies, parts, accessories, or patent rights thereto, and drawings or designs thereof, as are necessary for experimentation, development, research, or test.

(4) When the contemplated contract is for services, tests, and reports necessary or incidental to experimental, developmental, or research work.

(b) Limitations. This authority shall not be used for contracts for quantity production, except that such quantities may be purchased under this au

thority as are necessary to permit complete and adequate experimentation, development, research, or test; accordingly, research or development contracts which call for the production of a reasonable number of experimental or test models, or prototypes, shall not be regarded as contracts for quantity production. In order for this authority to be used, a determination and findings justifying use of the authority must be prepared in accordance with Subpart 1-3.3.

[29 FR 10155, July 24, 1964, as amended at 31 FR 1150, Jan. 28, 1966]

§ 1-3.212 Purchases not to be publicly disclosed.

Pursuant to the authority of section 302(c)(12) of the Act (41 U.S.C. 252(c)(12)), purchases and contracts may be negotiated without formal advertising if "for property or services as to which the agency head determines that the character, ingredients, or components thereof are such that the purchase or contract should not be publicly disclosed."

(a) Application. This authority may be used for purchases or contracts classified "Confidential" or higher, or where, because of other considerations, the contract should not be publicly disclosed.

(b) Limitations. In order for this authority to be used, a determination and findings justifying use of the authority must be prepared in accordance with Subpart 1-3.3.

$1-3.213 Technical equipment requiring standardization and interchangability of parts.

(a) Authority. (1) Pursuant to the authority of section 302(c)(13) of the Act (41 U.S.C. 252(c)(13)), purchases and contracts may be negotiated without formal advertising if "for equipment which the agency head determines to be technical equipment, and as to which he determines that the procurement thereof without advertising is necessary in special situations or in particular localities in order to assure standardization of equipment and interchangeability of parts and that such standardization and inter

(2) This § 1-3.213 provides authority only to employ negotiation as distinguished from advertising and does not constitute authority to make purchases of equipment. Authority for the latter must be elsewhere derived.

(b) Application. (1) This authority may be used for procuring additional units and replacement items of specified makes and models of technical equipment and spare parts by negotiation in order to assure standardization of equipment and interchangeability of parts where, in special situations or in particular localities, such standardization and interchangeability is determined necessary in the public interest. Examples of situations where this authority may be used are:

(i) Where, in special situations or in particular localities, it has been found necessary to limit the variety and quantity of parts that must be carried in stock.

(ii) Where standardization of technical equipment is necessary in special situations or in particular localities so that parts may be available and interchanged among items of damaged or worn equipment.

(iii) Where, in special situations or particular localities, technical equipment is available from a number of suppliers which would have such varying performance characteristics (notwithstanding detailed specifications and rigid inspection) as would prevent standardization and interchangeability of parts.

(2) Consideration shall be given to the following and other pertinent factors before making a determination to procure specified makes and models under the authority of this § 1-3.213:

(i) The practicability of interchanging parts and cannibalizing equipment. (ii) The probability that future procurement of the selected item of equipment can be affected at reasonable prices.

(iii) Whether the standardization will appreciably reduce the variety and quantity of parts that must be carried in stock.

(iv) The value of similar equipment and its supporting parts on hand.

will adversely affect existing specifications and standards.

(vii) The degree to which the current design of the specified make and model has been changed from the design of equipment of the same make and model already in the supply system.

(3) Standardization approval under this authority shall be for a stated period of time which bears a reasonable relationship to the life of the equipment.

(c) Justification. (1) In arriving at a determination that standardization of equipment and interchangeability of its parts are necessary in the public interest, such standardization must be in fact fully justified as genuinely “necessary in the public interest." It is not sufficient that it merely be generally desirable. Nor is an arbitrary or perfunctory conclusion sufficient. Facts must clearly show the compelling reasons why it is necessary, as for example:

(i) Substantial savings possible through standardization (estimated annual savings to be indicated when possible).

(ii) Minimizing potential breakdown of a specifically identified service or function which might endanger life, property or the orderly conduct of vital Government functions.

(2) The term "in special situations" precludes application of the authority to generally prevailing or generalized conditions. The law assumes that it will be necessary to employ the authority only under unusual or abnormal conditions.

(3) The term "particular localities" has reference to remote locations which are not only remote in the sense of physical distance from large metropolitan areas, but remote from available stocks or replacement parts and, possibly, related service facilities. For example, it is not enough to conclude that standardization is required of a motor vehicle in Alaska because of remote location if in fact replacement parts of various vehicle makes are readily available. It must be shown ex

pressly, and not by inference, (i) that the location involved is inaccessible because of stated conditions, such as the absence of a connected road system, or (ii) that there are not available within stated reasonable distances, adequate stocks of replacement parts or personnel and facilities necessary to perform required services, and that there are circumstances which make it impractical to maintain at the location such stocks and furnish such service for more than a particular number of makes of vehicles. Most using activities within the United States (excluding Alaska) could not be considered to meet these requirements. However, there may be cases where, because of extremely unusual conditions, standardization at a particular location within the United States may be necessary in the public interest.

(d) Limitations. (1) This authority shall not be used for initial procurement of equipment and spare parts which ultimately will be standardized, or for the purpose of selecting arbitrarily the equipment of certain suppliers; nor shall it be used unless and until the agency head has determined that:

(i) The equipment constitutes technical equipment:

(ii) Standardization of such equipment and interchangeability of its parts are necessary in the public interest; and

(iii) Negotiation is necessary in special situations or in particular localities in order to assure required standardization of equipment and interchangeability of parts.

(e) Determination and findings. (1) In order for this authority to be used, a determination and findings justifying use of the authority must be prepared in accordance with Subpart 13.3.

(2) The following example of findings and determinations is illustrative of the type and amount of information which may be considered sufficient to justify negotiation under section 302(c)(13) of the Act: