(a) Procurement shall be made by formal advertising whenever such method is feasible and practicable under the existing conditions and circumstances, even though negotiation may be authorized under Subpart 18-3.2. Among the factors to be considered in determining whether formal advertising is feasible and practicable are:

(1) The number and location of potential suppliers;

(2) The adequacy of the specifications for advertising;

(3) The nature of the items being purchased;

(4) The time available; and

(5) The type of contract contemplated.

(b) No contract shall be entered into by negotiation unless or until the following requirements have been satisfied.

(1) Formal advertising is not feasible and practicable;

(2) The contemplated procurement comes within one of the circumstances permitting negotiation set forth in 10 U.S.C. 2304(a);

(3) Any necessary determinations and findings have been made;

(4) Prescribed clearances or approvals have been obtained;

(5) The prospective contractor has been determined to be responsible; and (6) Other requirements of this chapter have been met.

§ 18-3.102 Factors to be considered in negotiated procurements.

(a) In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured. In any procurement publicized under § 18-1.1003, sources which have not been solicited, but which are not otherwise barred by law or regulation, shall be promptly furnished a copy of the solicitation on request; and shall be permitted to submit a proposal in response thereto. All proposals shall be supported by statements and analyses of estimated costs or other evidence of reasonable prices and other matters deemed neces

sary by the contracting officer. In all such negotiated procurements, including those subject to Source Evaluation Board procedures (see § 18-3.804-3), written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price and other factors considered: Provided, however, That written or oral discussions need not be conducted for:

(1) Procurements in implementation of authorized set-aside programs; or

(2) Procurements where it can be clearly demonstrated, from the existence of adequate competition or accurate prior cost experience with the product, that acceptance of an initial proposal without discussion would result in fair and reasonable prices and where the request for proposals notifies all offerors of the possibility that award may be made without discussion.

For procurements of $2,500 or less, see Subpart 18-3.6.

(b) During the course of negotiations, contracting officers and their negotiators shall give due attention to the following and any other appropriate factors:

(1) Comparison of prices quoted, and consideration of other prices for the same or similar supplies or services, with due regard to production costs, including extra-pay shift, multishift and overtime costs, and any other factor relating to price, such as profits, costs of transportation, and cash discounts;

(2) Comparison of the business reputations, capabilities, and responsibilities of the respective persons or firms who submit proposals;

(3) Consideration of the quality of the supplies or services offered, or of the quantity of the same or similar supplies or services previously furnished, with particular regard to the satisfaction of technical requirements;

(4) Consideration of delivery requirements;

(5) Discriminating use of price and cost analyses;

(6) Investigation of price aspects of any important subcontract;

(7) Individual bargaining, by mail or by conference;

(8) Consideration of cost sharing; (9) Effective utilization in general of the most desirable type of contract:

(10) Consideration of the size of the business concern;

(11) Consideration as to whether the prospective supplier requires expansion or conversion of plant facilities;

(12) Consideration as to whether the prospective supplier is located in a surplus labor area;

(13) Consideration as to whether the prospective supplier will have an adequate supply of qualified labor;

(14) Consideration of the extent of subcontracting;

(15) Consideration of the existing and potential workload of the prospective supplier;

(16) Consideration of broadening the industrial base by the development of additional suppliers;

(17) Consideration of whether the contractor requires Government-furnished property, machine tools, or facilities; or Government-operated test facilities; and

(18) Advantages or disadvantages to the Government that might result from making multiple awards.

(19) Consideration of the rules for the avoidance of organizational conflicts of interest (see § 18-1.113-2 and Appendix G).

(20) Consideration of the nature and effectiveness of the prospective contractor's cost reduction program. For those contractors who are participants in the NASA-Contractor Cost Reduction Program, information concerning an evaluation of their cost reduction program may be obtained from the installation cost reduction officer. This information shall be obtained for each proposed procurement in excess of $1 million. In order to obtain this information and evaluate the effectiveness of a prospective contractor's cost reduction program, a statement substantially as follows will be included in the request for proposals:

COST REDUCTION PROGRAM (JULY 1965) Offerors should submit information on their cost reduction programs in sufficient detail to indicate the nature and effectiveness of their programs. Information should be provided on each of the eight criteria spelled out in the "Guidelines for the NASA Contractor Cost Reduction Program," dated June 3, 1964. Such information should indicate not only that policies have been established to conform to the eight criteria, but also that those policies have been effectively implemented, with illustrative examples, where appropriate. In lieu of furnishing such information, offerors who are participants in the NASA-Contractor Cost Reduction Program or who have already furnished this information in connection with a previous procurement, may so indicate. Offerors who do not have a cost reduction program should so state.

Copies of the Guidelines may be obtained from the cost reduction officer and should be included in the request for proposals. On receipt of the proposals, the contracting offeror will:

(i) Obtain a documented evaluation from the installation cost reduction officer in those cases where the offeror has indicated that he is a participant in the NASA-Contractor Cost Reduction Program or that such information has previously been furnished, or

(ii) Furnish to the installation cost reduction offeror for evaluation the cost reduction information submitted by the offeror(s).

Government's interest or where the proposed contract is

(i) Negotiated pursuant to 10 U.S.C. 2304 (a) (4), (5), or (6) (see § 18-3.204, § 18-3.205, or § 18-3.206);

(ii) Negotiated with a foreign supplier when only foreign sources of supplies or services have been selected.

In addition to stating that the proposal has been determined unacceptable, notice to the offeror shall indicate, in general terms, the basis for such determination and shall advise that, since further negotiation with him concerning this procurement is not contemplated, a revision of his proposal will not be considered.

(2) In the case of procurements for which a Source Evaluation Board has been appointed and one or more than one offeror has been selected for negotiations, those offerors not selected for either preliminary negotiations or final negotiations will be notified, upon elimination by the Source Selection Official, of that fact in writing.

(b) Postaward notice of unaccepted offers. (1) Promptly after making all awards in any procurement in excess of $10,000, the contracting officer shall give written notice to the unsuccessful offerors that their proposals were not accepted, except that such notice need not be given where notice has been provided pursuant to (a) above or the contract is negotiated pursuant to 10 U.S.C. 2304(a) (4), (5), or (6) (see § 18-3.204, § 18-3.205, or § 18-3.206), or is negotiated with a foreign supplier when only foreign sources of supplies or services have been solicited. Such notice shall also include:

(i) The number of prospective contractors solicited;

(ii) The number of proposals received; (iii) The name and address of each offeror receiving an award; and

(iv) The items, quantities, and unit prices of each award; Provided, That, where the number of items or other factors makes the listing of unit prices impracticable, only the total contract price need be furnished.

Additional information as to why an offeror's proposal was not accepted should be provided to the offeror upon his written request to the contracting officer, except where the price information in subdivision (iv) of this paragraph (b) (1) readily reveals such reason, but in no event will any offeror's confi

dential business information be revealed, nor will a discussion be had of relative merits of the proposals. For guidelines relating to the provision of additional information see paragraph (d) of this section.

(2) In procurements of $10,000 or less and subject to the exceptions in subparagraph (1) of this paragraph (b), the information described in subparagraph (1) shall be furnished to unsuccessful offerors upon request.

(c) Classified information. Classified information shall be furnished only in accordance with regulations governing classified information.

(d) Debriefing. It is NASA policy to provide a debriefing to unsuccessful offerors in competitive procurements where Source Evaluation Board procedures are employed and when requested in writing. Such debriefing should be confined to a discussion of the unsuccessful offeror's proposal in relation to the Government's requirement. Care should be taken to avoid comparison of one company's proposal with another and disclosure of information contained in other offers or the Government's estimate. The policies and procedures governing debriefing are more fully set forth in NASA Management Instruction 5103.1. § 18-3.106-4

Disclosure of information prior to selection of contractor.

The policies and procedures governing the disclosure of information prior to selection of a contractor are set forth in § 18-3.804-4.

§ 18-3.106-5 Release of contractor award information.

The policies and procedures governing the release of contract award information are set forth in § 18-3.854.

§ 18-3.109 Restrictions on data and other information included in solicited proposals.

(a) Technical data in solicited proposals. Requests for proposals may require the offeror, including his subcontractor offerors, if any, to submit with the proposal technical data (such as plans, designs, suggestions, improvements, or concepts) which the offeror, or his subcontractor offeror, does not want used or disclosed for any purpose other than evaluation of the proposals. Each proposal containing technical data which the offeror or his proposed subcontractors so wish to restrict shall be

marked on the cover sheet with the following legend specifying the pages of the proposal which are to be restricted in accordance with the conditions of the legend:

Technical data contained in pages of this proposal furnished in connection with RFP No. shall not be used or disclosed, except for evaluation purposes: Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of this proposal, the Government shall have the right to use or disclose this technical data to the extent provided in the contract. This restriction does not limit the Government's right to use or disclose any technical data obtained from another source without restriction. (February 1966)

Contracting officers shall not refuse to consider any proposal merely because technical data submitted with the proposal is marked. Technical data so marked shall be used only to evaluate proposals and shall not otherwise be used or disclosed without the written permission of the offeror except under the conditions provided in the legend. Solicited proposals submitted with restrictive legends or statements differing from the above legend will be treated under the terms of the above legend. The Government assumes no liability for disclosure or use of unmarked technical data and may use or disclose the data for any purpose.

(b) Technical data in solicited quotations. The provisions in paragraph (a) of this section are also applicable to quotations. The legend in paragraph (a) of this section shall be appropriately modified when used on quotations.

(c) Financial and management information in solicited proposals and quotations. For treatment of financial and management information in solicited proposals and quotations, see § 181.304-4.

(d) Technical and other data involved in formal advertising. See § 18-2.404-4.

(e) Technical data in unsolicited proposals. The policy and procedures concerning restrictions on the disclosure and use of technical data in unsolicited proposals are set forth in § 18-1.304-2.

§ 18-3.110 Solicitations for informational or planning purposes.

See § 18-1.309.

§ 18-3.111 Protests against award.

Protests against award of negotiated procurements shall be treated substantially in

accordance with § 18

2.407-8 and will be acted upon by the Director of Procurement with the concurrence of the Office of General Counsel. However, when the selection of a contractor has been made by the Administrator, either after proceedings of a Source Evaluation Board or otherwise, the final action will be directed by the Administrator.

§ 18-3.112 Disclosure of mistakes after award.

When a mistake in a contractor's proposal is not discovered until after award, the authority to correct mistakes contained in § 18-2.406-4 may be utilized in accordance with the limitations and procedure set forth therein.

Subpart 18-3.2-Circumstances
Permitting Negotiation
Scope of subpart.

§ 18-3.200

(a) The authority of this § 18-3.201 shall be used only to the extent determined by the Administrator to be necessary in the public interest, and then only in accordance with this § 18-3.201.

(b) For the duration of the national emergency declared pursuant to Presidential Proclamation 2914, dated December 16, 1950, the Administrator, by NASA Management Instruction 5101.6A, has determined that only the following procurements may be made pursuant to the authority of 10 U.S.C. 2304 (a) (1):

(1) Procurements made in keeping with

(i) Labor surplus set-aside programs, including, when no other negotiating authority is appropriate and the use of formal advertising is not feasible and