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GENERAL PROVISIONS

such bids to the Attorney General of the United States for appropriate action see 2.404-1(b) (vi)). Similarly, evidence of such violations in negotiated procurements will be referred to the Attorney General (see 3.215–2). Practices which are designed to eliminate competition or restrain trade and which may evidence possible violations of such laws include collusive bidding, follow-theleader pricing, rotated low bids, uniform estimating systems, sharing of the business, identical bids, or similar actions.

(b) When bids or proposals are received and, in the opinion of the contracting officer, are indicative of possible antitrust violations, he shall report such circumstances to the General Counsel, NASA Headquarters, through the Procurement Office (Code KDP-1). Reports of such bids or proposals should not be submitted automatically, but only when there is some reason to believe that those bids or proposals may not have been arrived at independently. Such reports shall be submitted with conformed copies of bids or proposals, contract documents, and other supporting data, and shall set forth:

(i) the noncompetitive pattern or situation under consideration;
(ii) purchase experience in the same product or service for a reasonable

period of time (one or more years) prior to the receipt of the bids
or proposals under consideration, including unit and total contract

price and abstracts of bids; (iii) community of financial interest among bidders, insofar as it is

known; (iv) the extent, if any, to which specification requirements or patents

restrict competition; (v) information which may be available with respect to the pricing

system employed in bids or proposals believed to reflect noncom

petitive practices; and
(vi) any other information considered pertinent.

(c) Evidence of noncompetitive bid practices which, in the opinion of the General Counsel, NASA Headquarters, may violate the antitrust laws shall be forwarded to the Attorney General of the United States.

(d) The reports required by this paragraph are separate and apart from the reporting requirement contained in 1.114.

1.112 Relationship of This Regulation to the Armed Services Procurement Regulation (ASPR) and the Federal Procurement Regulation (FPR).

(a) Since NASA is governed by the same procurement law as the Department of Defense (Chapter 137, Title 10, U.S. C.), and both agencies deal to a considerable extent with the same segment of industry, it is NASA policy to prescribe procurement regulations which, to the maximum practicable extent, are consistent with policies and procedures adopted by the Department of Defense in the ASPR.

(b) NASA and the General Services Administration have also reached agreement concerning the relationship between the FPR and the NASA Procurement Regulation. NASA has agreed to participate in the publication program established by the FPR system. Therefore, the NASA Procurement Regulation will be published in Chapter 18 of Title 41 of the Code of Federal Regulations and will utilize the numbering system employed by the FPR.

INTRODUCTION

1.113 Code of Conduct.
1.113-1 Government Personnel.

(a) A number of Federal statutes prohibit certain acts by Government personnel and special Government employees as defined in 18 U.S.C. 202 in relation to procurement activities for the Government. Among these statutes are the following: (i) 18 U.S.C. 201 relating to bribes in order to secure a Government contract; (ii) 18 U.S.C. 203 relating to compensation for services rendered in connection with any proceeding or claim in which the United States has an interest; (iii) 18 U.S.C. 205 relating to acting as an agent or attorney for prosecuting any claim against the United States; (iv) 18 U.S.C. 208 relating to transacting business as an officer or agent of the United States with firms of which such officer or agent, his spouse, minor child, or partner is an official or in which he has a pecuniary interest; and (v) 18 U.S.C. 209 relating to compensation from non-Government sources in connection with Government services. These statutory prohibitions, and their application to NASA personnel, are discussed in NASA Management Instruction 1910.1 "Conflict of Interest Statutes", NASA Management Instruction 1930.1 "Gifts and Gratuities”, and NASA Management Instruction 1940.1 “Financial Interests and Investments”. All NASA personnel involved in procurement actions shall become familiar with these statutory prohibitions. Any questions concerning them shall be referred to legal counsel. In addition to criminal penalties, the statutes provide that transactions entered into in violation of these prohibitions are voidable (18 U.S.C. 218).

(b) Aside from such statutory prohibitions, as set forth above, procurement personnel shall maintain the highest standards of conduct in connection with dealings on behalf of the Government. Such conduct must at all times be beyond reproach and must be such that each individual involved in NASA procurement activities would have no reticence in making a full public disclosure of all actions taken in connection with such activities.

1.113–2 Organizational Conflicts of Interest.

(a) NASA Management Instruction 5101.19, dated July 1, 1968, Subject: Avoiding Conflict-of-Interest Situations in the Placing of NASA Contracts, is set forth in this Regulation as Appendix G.

(b) Appendix G provides guidelines for avoiding situations where the placing of a contract may give rise to conflicts of interest and describes examples of various organizational conflicts of interest which might come into being and methods for avoidance of such conflicts. It provides that action must be taken to avoid placing a contractor in a position where his judgment might be biased or where he would have an unfair competitive advantage within the scope and intent of the rules. All prospective contractors, in such situations, will be advised of the extent of applicability of these rules by a notice in solicitations and by a clause in resulting contracts. Such clause shall spell out the specific extent of any future restrictions on the contractor which are imposed by the contract. A standard form of notice for use in solicitations or contract clause is not prescribed in this Regulation since such notices in solicitations and contract clauses must be adapted to apply the principle of these rules to the specific facts of each contractual situation. The rules for avoidance of organizational conflict, as such, do not impose any

GENERAL PROVISIONS

contractual obligation on the contractor. Such obligation is imposed only by the contract clause designed to carry out such rules. The contracting officer shall not impose restrictions on any contractor in reliance on these rules in the absence of a specific contractual agreement with the contractor, without the approval of the head of the installation. Contracting officers will forward to the Procurement Office, NASA Headquarters (Code KDP-1) a copy of each notice included in solicitations and clause incorporated in contracts.

1.114 Reporting of Identical Bids.

(a) General. Executive Order 10936 dated April 24, 1961, as implemented by the Department of Justice, requires a report to be submitted to the Attorney General on each formally advertised procurement (including small business restricted advertising) over $10,000 which involves identical bids.

(b) Definitions.
(1) Identical bids are two or more bids for the same line item which:
(i) are identical on their face (regardless of such evaluation factors

as discount, transportation, etc.) either as to unit price or total

line item amount; or (ü) are identical as evaluated as to either unit price or total line

item amount. (2) The term "line item” means each object of procurement specified in an invitation for bids which, under the terms of the invitation, is susceptible to a separate contract award. The reporting requirements herein established for line items are applicable to invitations calling for line item bidding, even though such bids contain qualifying or restrictive limitations on award (e.g., all-or-none bids; lump sum awards in the case of construction contracts; award on one item conditioned on award of other items).

(c) Information To Be Obtained from Bidders. Each invitation for bids for a procurement estimated to exceed $10,000 will include substantially the following:

PARENT COMPANY AND EMPLOYER IDENTIFICATION NUMBER (MARCH 1963)

(a) Bidder represents that he is, is not, owned or controlled by a parent company. For this purpose a parent company is defined as one which either owns or controls the activities and basic business policies of the bidder. To own another company means the parent company must own at least a majority (more than 50 percent) of the voting rights in that company. To control another company such ownership is not required; if another company is able to formulate, determine or veto basic business policy decisions of the bidder, such other company is considered the parent of the bidder. This control may be exercised through the use of dominant minority voting rights, use of proxy voting, contractual arrangements, or otherwise.

(b) If the bidder is owned or controlled by a parent company, insert in the space below the name and main office of the parent company.

Name

Address (c) Bidder will provide in the applicable space below, if he has no parent company, his own Employer's Identification Number (E.I. No.) (Federal Social Security Identification Number as used on Federal Tax Return); or, if he has a parent company, the E.I. No. of his parent company. Bidder's E.I. No.-----Parent Company's E.I. No.--

INTRODUCTION

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The information required by this paragraph (c) will be included on reports of identical bids. If identical bids are involved and bidders fail to provide this information, one inquiry will be made to obtain such information. Failure on the part of bidders to provide the above information on invitation for bids shall be indicated on all reports of identical bids, but shall not be considered a basis for rejection of bids.

(d) Reportable Bids. All identical bids shall be reported when the bid value of all line items covered by the invitation for bids exceeds $10,000 (based on the apparent low bid for each line item), regardless of whether:

(i) they were the low bids;
(ii) award is made on the line item;
(i) the invitation was canceled; or
(iv) any other disposition was made subsequent to public opening of

the bids.
(e) Conditions Under Which Identical Bids Are Not Reportable. Reports
shall not be submitted when:

(i) bids are received only from foreign sources on invitations for bids

involving delivery and performance outside the United States, its

possessions, or Puerto Rico; (ii) there is no line item on which the apparent low bids exceed $2,500

(line item evaluation computations beyond those normally made

to determine low bidders are not required); or (iii) no identical bids are discovered in the normal process of evaluating

bids for award and no identical bids are apparent on the face of the

bid. (f) Information To Be Reported. When an invitation results in the submission of identical bids to be reported under paragraph (d) above, a report shall be submitted showing the entire bid proceeding for each line item in which identical bids are received. A copy of the invitation for bids and a copy of the completed abstract of all bids received shall be filed with the report, except that an abstract will not be furnished if the number of line items on the invitation for bids exceeds 100. In such case, the report shall be annotated to indicate both the number of line items and the total number of bidders on the invitation.

(g) Submission of Reports.

(1) Identical Bid reports shall be submitted on Department of Justice Form DJ-1500 (Federal Stock No. 7540-823–7870), available from General Services Administration stores and depots. Instructions for completing this form are printed as the cover sheet of each pad of the forms. Reports shall be made within 20 days following the final disposition of all bids received in response to the invitation for bids involved. Two completed copies of the report, with attachments, and of the completed bid, shall be sent directly to the Attorney General (Code AT-IBR), Washington, D.C., 20530. One copy of the completed report (including abstract of bids, if appropriate) shall be retained by the reporting installation.

(2) This reporting requirement is in addition to and will not be deemed a substitute for the reports of noncompetitive practices required by 1.111.

GENERAL PROVISIONS

1.115 Noncollusive Bids and Proposals

(a) In order to promote full and free competition for Government contracts, the following certification shall be included in all (i) invitations for bids and (ii) requests for proposals or quotations (other than for small purchases made in accordance with Part 3, Subpart 6 of this Regulation and other than requests for technical proposals in connection with two-step formal advertising) involving firm fixed-price contracts and fixed-price contracts with escalation:

CERTIFICATE OF INDEPENDENT PRICE DETERMINATION (JUNE 1964)

(a) By submission of this bid or proposal, each bidder or offeror certifies, and in the case of a joint bid or proposal, each party thereto certifies as to his own organization, that in connection with this procurement:

(1) the prices in this bid or proposal have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or offeror or with any competitor;

(2) unless otherwise required by law, the prices which have been quoted in this bid or proposal have not been knowingly disclosed by the bidder or offeror and will not knowingly be disclosed by the bidder or offeror prior to opening, in the case of a bid, or prior to award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor; and

(3) no attempt has been made or will be made by the bidder or offeror to induce any other person or firm to submit or not to submit a bid or proposal for the purpose of restricting competition. (b) Each person signing this bid or proposal certifies that:

(1) he is the person in tbe bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein and that he has not participated, and will not participate, in any action contrary to (a)(1) through (a) (3) above; or

(2)(a) be is not the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein but that he has been authorized in writing to act as agent for the persons responsible for such decision in certifying that such persons have not participated, and will not participate, in any action contrary to (a)(1) through (a) (3) above, and as their agent does hereby so certify; and (b) he has not participated, and will not participate, in any action contrary to (a)(1) through (a) (3) above.

(c) This certification is not applicable to a foreign bidder or offeror submitting a bid or proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico.

(d) A bid or proposal will not be considered for award where (a)(1), (a)(3), or (b) above has been deleted or modified. Where (a)(2) above has been deleted or modified, the bid or proposal will not be considered for an rd unless the bidder or offeror furnishes with the bid or proposal a signed statement which sets forth in detail the circumstances of the disclosure and the Administrator, or his designee, determines that such disclosure was not made for the purpose of restricting competition.

(b) The fact that a firm (i) has published price lists, rates, or tariffs covering items being procured by the Government, (ii) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (iii) has sold the same items to commercial customers at the same prices being offered the Government does not constitute, without more, a disclosure within the meaning of paragraph (a)(2) of the Certificate.

(c) It is not required that a separate written authorization be given to the signer of the bid or proposal for each procurement involved where the

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