(3) Supply data for use in preparing replies to Congressional inquiries; and (4) Furnish essential facts in the event of litigation.

To the extent that retained copies of documents do not represent all actions taken, suitable memoranda or summary statements of undocumented actions should be prepared promptly and be retained in the contract file in chronological order.

(b) Each contract file shall include the following data, in the appropriate order and to the extent applicable:

(1) A copy of the procurement request;

(2) A copy of the Determination and Findings statement and justifications for authority to negotiate (see Subpart 183.3, of this chapter);

(3) A copy of the procurement plan (see § 18-3.852 of this chapter);

(4) The list of sources solicited or justification for limiting such sources;

(5) Any small business or labor surplus set-aside determinations;

(6) A copy of the invitation for bids or the request for proposals, including the drawings and specifications or an identifiable reference thereto;

(7) The Security Requirements Check List (DD Form 254);

(8) All bids or proposals received with an abstract thereof;

(9) The bidders' Statements of Contingent Fees;

(10) All preaward surveys;

(11) Selection of the successful contractor, including

(i) The reasons for selection;

(ii) Statement of the Source Evaluation Board (see § 18-3.856-2 of this chapter);

(iii) The contracting officer's determination of the contractor's responsibility; and

(iv) Any Small Business Administration Certificate of Competency (see § 181.705-6);

(12) All price and cost data submitted or used;

(13) A full record of negotiations, including but not limited to

(i) Participants;

(ii) Dates of meetings or phone calls; (iii) Government-furnished materials or facilities provided;

(iv) Subcontracting;

(v) Terms and conditions agreed to; (vi) Deviations, if any, from prescribed contract clauses;

(vii) Technical recommendations; and

(viii) Justification for final price; (14) Justification for type of contract used (see § 18-3.304, of this chapter);

(15) Any exceptions or exemptions from the Buy American Act or Appropriation Act restrictions (see Part 18-6 of this chapter);

(16) A copy of the contract or award; (17) Required approvals of contract; (18) All pertinent correspondence; (19) Copies of all change orders, and supplements, with supporting documents;

(20) Comprehensive termination data; (21) Copies of royalty reports received;

(22) Final release upon completion of the contract; and

(23) Evidence of legal review where required, and copy of comments, if any, made by legal counsel;

(24) Any additional documents considered necessary to present a complete résumé of the contract action.

(c) This does not apply in the case of small purchases (see § 18-3.603-2 (c), of this chapter).

§ 18-1.309

Solicitations for information or planning purposes.

It is the general policy of the NASA to solicit bids, proposals or quotations only where there is a definite intention to award a contract or purchase order. However, in some cases solicitation for informational or planning purposes may be justified. Invitations for bids and requests for proposals will not be used for this purpose. Requests for quotations may be issued for informational or planning purposes only with prior approval of the Procurement Officer. In such cases, the request for quotation shall clearly state its purpose and, in addition, the following statement in capital letters shall be placed on the face of the request: "The Government does not intend to award a contract on the basis of this request for quotation, or otherwise pay for the information solicited." The foregoing does not prohibit the allowance, in accordance with § 18-15.205-3, of the cost of preparing such quotations.

[33 F.R. 17949, Dec. 4, 1968]

§ 18-1.310 Liquidated damages.

(a) This applies to procurement by formal advertising and procurement by negotiation. Liquidated damages provisions normally will not be utilized but may be used where both (1) the time of

delivery or performance is such an important factor in the award of the contract that the Government may reasonably expect to suffer damages if the delivery or performance is delinquent, and (2) the extent or amount of such damages would be difficult or impossible to ascertain or prove. Where a liquidated damages provision is to be used in a supply or service contract, insert the clause set forth in § 18-7.105-5, of this chapter.

(b) The rate of assessment of liquidated damages must be reasonable, considered in the light of procurement requirements on a case-by-case basis, since liquidated damages fixed without reference to probable actual damages may be held to be a penalty and therefore unenforceable.

(c) The law imposes the duty upon a party injured by another to mitigate the damages which result from such wrongful action. Therefore, where a liquidated damages provision is included in a contract and a basis for termination for default exists, appropriate action should be taken expeditiously by the Government to obtain performance by the contractor or to terminate the contract. If delivery or performance is desired after termination for default, efforts must be made to obtain either delivery or performance elsewhere within a reasonable time. For these reasons, particularly close administration over contracts containing liquidated damages provisions is imperative.

(d) When any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the Administrator, NASA, is authorized and empowered to remit the whole or any part of such damages as he may consider to be just and equitable. Recommendations concerning remissions of liquidated damages will be forwarded by the contracting officer, with appropriate documentation, via the Director of the field installation to the Director of Procurement for submission to the Administrator.

§ 18-1.311 Buying in.

"Buying in" refers to the practice in procurements involving price competition, of attempting to obtain a contract award by knowingly offering a price less than anticipated costs with the expectation of either (a) increasing the contract price during the period of performance through change orders or other means, or (b) receiving future "follow-on" con

tracts at prices high enough to recover any losses on the original "buy-in” contract. Such a practice is not favored since its long term effects may diminish competition and it may result in poor contract performance. Where there is reason to believe that "buying in" has occurred, contracting officers shall assure that amounts thereby excluded in the development of the original contract price are not recovered in the pricing of change orders or in follow-on procurements subject to cost analysis.

§ 18-1.312 Voluntary refunds.

(a) General. A voluntary refund is a payment or credit, not required by any contractual or other legal obligation, made to the Government by a contractor or subcontractor either as a payment or as an adjustment under one or more contracts or subcontracts. It may be unsolicited or it may be made in response to a request by the Government. Where it is desired to solicit a voluntary refund from a subcontractor, the prime contractor should be encouraged to facilitate the making of such refund. In deciding whether to solicit a voluntary refund or to accept an unsolicited refund, the contracting officer shall ask legal counsel to review the contract or contracts and all data relevant thereto to determine whether the Government's rights would be jeopardized or impaired by the contracting officer's proposed action.

(b) Solicited refunds. Voluntary refunds may be requested during or after contract performance. They shall be requested only when it is considered that the Government was overcharged under a contract or was inadequately compensated for the use of Government-owned property or in the disposition of contractor inventory, and retention by the contractor or subcontractor of the amount in question would be contrary to good conscience and equity. Generally, retention by the contractor or subcontractor shall not be considered contrary to good conscience and equity, and thus a voluntary refund shall not be requested, unless the overcharge or inadequate compensation was due, at least in part, to the fault of the contractor or subcontractor. The decision to solicit a voluntary refund shall be made by the Deputy Administrator or his designee after coordination with the Director of

Procurement.

(c) Disposition of voluntary refunds. (1) If a refund is offered prior to final

payment, it is preferable that the contract price be appropriately modified to reflect the refund. In such a case, the amount of the refund shall be credited to the applicable appropriation cited in the contract.

(2) In cases where the refund is to be made by check rather than by an adjustment in the contract price, the check shall be made payable to the National Aeronautics and Space Administration and shall be forwarded immediately to the financial management office of the appropriate installation. When forwarded, the check shall be accompanied by a letter identifying it as a voluntary refund, giving the number of the contract or contracts involved and, where possible, giving the account number of the appropriation to which the refund should be credited.

[32 F.R. 17002, Dec. 2, 1967, as amended at 33 F.R. 6400, Apr. 26, 1968]

§ 18-1.314 Disputes and appeals.

(a) When a dispute cannot be settled by agreement and a decision under the "Disputes" clause is necessary, the contracting officer shall review the available facts pertinent to the dispute before making his final decision. When there is any doubt as to whether the issue in dispute is subject to the disputes procedure, a decision will be made pursuant to the "Disputes" clause. The disputes procedure shall not be invoked in cases when a dispute is clearly not subject to the procedure. The contracting officer shall obtain, from assigned legal and other advisors, such advice and assistance as is required to render a decision. The decision must be that of the contracting officer (or his representative if such representative has been authorized by the contracting officer to make final decisions pursuant to the "Disputes" clause); however, prior to making the decision, the contracting officer (or representative authorized to render final decisions) may consult with any other Government personnel involved in the dispute.

(b) The final decision should include a statement of facts sufficient to enable the contractor to understand both the decision and the basis therefor. Normally, the decision should (1) recite the contractor's claim or otherwise describe the nature of the dispute, with necessary references to pertinent contract provisions; (2) state the facts relevant to the dispute on which the parties are in agreement and, as clearly as possible, the

facts on which they are in disagreement; and (3) set forth the contracting officer's decision and the basis therefor.

(c) When a final decision of the contracting officer involves a dispute that is subject to the procedure of a "Disputes" clause, or when there is doubt as to whether the decision is subject to such procedure, a paragraph substantially as follows shall be included in such decision:

This is the final decision of the Contracting Officer on the question involved in this dispute. Decisions on disputed questions of fact and on other questions that are subject to the procedure of the Disputes clause may be appealed in accordance with the provisions of the Disputes clause. If you decide to make such an appeal from this decision, written notice thereof (in triplicate) must be mailed or otherwise furnished to the Contracting Officer within 30 days from the date you receive this decision. Such notice should indicate that an appeal is intended and should reference this decision and identify the contract by number. The NASA Board of Contract Appeals is the authorized representative of the Administrator for hearing and determining such disputes. The rules of the NASA Board of Contract Appeals are set forth in Part 54 of the NASA Procurement Regulation (41 CFR 18-54, as amended in 29 F.R. 16769, Dec. 5, 1964, and 30 F.R. 133, Jan. 7, 1965).

(d) After an appeal has been filed, a controversy may be disposed of by agreement. However, processing of the appeal shall not be suspended by such efforts except upon order, or as otherwise authorized, by the NASA Board of Contract Appeals.

(e) In the event of an appeal, any amount determined to be payable in the decision of the contracting officer, less any portion previously paid, normally should be paid promptly following the contracting officer's decision, without prejudice to the rights of either party in the event of a subsequent appeal. § 18-1.315

ings.

Procurement of jewel bear

(a) It has been determined that the Government's interests require the continued maintenance of an active and versatile mobilization base for the production of jewel bearings. This base has been established at the Government-owned William Langer Jewel Bearing Plant, Rolla, N. Dak. In support of this policy, Government purchases of jewel bearings shall be made from that plant in all cases where it can meet purchase requirements. Additionally, all procurements of items containing jewel bearings shall provide,

in the solicitations and resulting contracts, a requirement that jewel bearings in the quantities, and of the types and sizes necessary for the end items to be supplied under the contract, be purchased from the William Langer Jewel Bearing Plant and be incorporated in the delivered items, subject to the criteria provided in paragraphs (b), (c), and (d) of this section, except:

(1) When quantity requirements, quality standards, or delivery requirements cannot be satisfied by bearings manufactured at the William Langer Jewel Bearing Plant;

(2) For purchases of commercial end items having jeweled components used in commercial end items, when the quantities of such end items or components are such that the contracting officer either knows or reasonably expects that all such commercial end items are already manufactured and available from the stock of any dealer, wholesaler, distributor, or manufacturer; or

(3) For bearings used in items that are to be procured and used outside the United States, its possessions, and Puerto Rico.

(b) In order to assure that all bidders or offerors are competing on the same basis, it is necessary that the solicitation for items containing jewel bearings clearly state:

(1) The successful contractor will be required to purchase (directly or through subcontractors, as appropriate) William Langer Jewel Bearing Plant bearings at prices established in the U.S. Government Jewel Bearing Price List then in effect, and to incorporate such bearings in the items to be delivered; and

(2) Bids or proposals are to be predicated on this requirement.

If it should occur, after award, that the William Langer Jewel Bearing Plant rejects the contractor's (or subcontractor's) purchase order entirely or in part, the contractor (or subcontractor) shall be required to so notify the contacting officer who will effect an equitable adjustment in the contract price to reflect any costs or savings accruing to contractor by reason of any price differential for such bearings, pursuant to the clause of this contract entitled "Changes."

(c) To the extent William Langer Jewel Bearing Plant bearings are fungible with other bearings and it is not practical or would be costly to segregate jewel bearing inventories or work in process

for items to be furnished the Government from that to be funrished commercial customers, or for other similar reasons, it may be in the Government's interest to waive the use requirements at the discretion of the contracting officer. No waiver will be granted to prospective contractors prior to award and no assurance will be given prior to award to any prospective contractors that such waiver will be granted after award. Minor inconvenience to contractors alone will not satisfy the need for demonstrating that the Government's interests are served by such waiver. When the use requirement is waived, an equitable adjustment for cost savings resulting therefrom shall be made.

(d) In circumstances where a procurement is not exempt from this procedure but it would be impractical or contrary to the Government's best interest to require actual use of all of the William Langer Jewel Bearing Plant bearings required to be purchased, the contracting officer may provide in the solicitation and resulting contract that a minimum fixed percentage of the total bearings requirements be of William Langer Jewel Bearing Plant origin, or that William Langer Jewel Bearing Plant bearings be purchased for and used in a certain number of the total items to be supplied.

(e) In all procurements subject to these procedures, the following clause is required for use:

REQUIRED Sources for JEWEL BEARINGS
(JULY 1968)

Jewel bearings required in the performance of this contract shall be procured from the William Langer Jewel Bearing Plant, Rolla, N. Dak., at prices established in the Official U.S. Government Jewel Bearing Price List dated (insert latest effective date). The Contractor agrees that the delivery dates specified for the quantities and types of jewel bearings so ordered will be reasonably related to manufacturing schedules and delivery requirements of this contract. The Contractor agrees to notify the Contracting Officer promptly of the rejection of his (or any subcontractor) purchase order in whole or in part by the William Langer Jewel Bearing Plant and further agrees to an equitable adjustment in the contract price pursuant to the "Changes" clause of this contract to reflect any costs or savings to the Contractor (cr subcontractor) resulting from such reJection. The Contractor further agrees to incorporate or to have his subcontractors incorporate the purchased William Langer Jewel Bearing Plant jewel bearings in the

items to be delivered under this contract.1 The requirement for use (but not the requirement for purchase) of such bearings may be waived in the discretion of the Contracting Officer when such waiver is determined by him to be in the Government's interest, and where agreement is reached for an equitable adjustment in the contract price by reason of such waiver.

[33 F.R. 17949, Dec. 4, 1968]

§ 18-1.316 Disclosure of contractor performance data to other government agencies and foreign governments.

(a) Subject to any applicable security requirements, NASA installations shall honor the requests of other Government agencies for readily available information relating to the performance of prime contractors. The agency requesting the information shall be advised that it will be responsible for any further release of such information.

(b) Requests from foreign governments should similarly be honored. When such information is furnished to a foreign government, a copy of the request from the foreign government and the information furnished will be forwarded to the Assistant Administrator for International Affairs, NASA Headquarters.

(c) If there is any question as to the propriety of divulging the information to other Government agencies or to any foreign government for any reason, including the security aspect, the request shall be forwarded to the Director of Procurement for consideration, with an explanation of the reasons why the release of such information is questioned. The Director of Procurement will, prior to approving the release of information, obtain the concurrence of:

(1) The General Counsel;

(2) The Assistant Administrator for International Affairs, if the request for information is from a foreign government; and

1 Where less than total purchase and usage of Wiliam Langer Jewel Bearing Plant bearings is to be required, substitute "The Contractor further agrees to purchase and incorporate William Langer Jewel Bearing Plant bearings in items to be delivered under this contract equivalent to at least

% of the total quantity of bearings required to perform this contract." (Percentage to be inserted by Contracting Officer.) In lieu of a percentage, the clause may refer to specific quantities of items listed in the schedule for which William Langer Jewel Bearing Plant bearings must be purchased and used.

(3) The Director, Security Division, NASA Headquarters, if the information appears to involve a problem of security.

§ 18-1.317 Lease versus purchase criterion.

(a) There are many situations in which the Government's equipment requirements may be more economically filled by lease than by purchase. This is particularly true in the case of certain expensive commercial equipments. The decision to lease rather than purchase must be made on a case-by-case basis. Leasing should be used where it is in the Government's interest. The criteria to be considered in each case include the following:

(1) The Government requirement is of short duration, and purchase would be costlier than leasing (generally, longterm leasing should be avoided in the absence of compelling circumstances);

(2) The probability that the equipment will become obsolete and that replacement within a short period will be necessary;

(3) The equipment is special or technical, and the lessor will provide the equipment, as well as maintenance and repair services, at a lower cost than would otherwise be available to the Government.

(b) Lease versus purchase decisions should be based on an economic analysis and the contract file documented to support the final decision. (See §§ 18-3.501 (b) (49) and 18-3.804-2(c) (2).) § 18-1.318

funds.

Contracts using annual

(a) Authorization to span fiscal years. When an appropriation act so provides, contracts for maintenance and operation of facilities, and contracts for support services may be entered into for periods not in excess of 12 months beginning at any time during the fiscal year covered by such act. This authority should be used to reduce the number of contracts that would otherwise have to be placed at the beginning of the new fiscal year. However, it shall not be used to place contracts that exceed a 12-month period.

(b) Contracts conditioned upon the availability of funds. When it is necessary to initiate a procurement properly chargeable to funds of a new fiscal year prior to the availability of such funds, the following clause shall be included in the invitation for bids or other solicitation and the resultant contract: