Boards as needed in their POCs and respective elements. The Assistant Secretary for Management and Budget is responsible for establishing a Board in the Office of the Secretary. The principal regional officials are responsible for establishing Boards in their regional offices. The number and geographical location of Boards will be decided by the POC heads based upon the volume of noncompetitive procurements to be reviewed and the need for timely decisions, provided that the composition of the Boards meet the requirements of the following paragraph.

(c) The POC head, agency head, or principal regional official, as appropriate, shall appoint the Board members. The Board shall be established and delegated the authority by the appointing official to represent and make decisions on behalf of the appointing official with respect to approving or disapproving certain justifications for noncompetitive procurements. The Board shall be comprised of five members, or their alternates, as specified below:

(1) Chairperson. There will be a permanent chairperson on the Board who shall be the principal official responsible for administration. The chairperson should represent the appointing official and be able to review actions submitted to the Board from an activity-wide point of view. The chairperson will designate which of the alternate members will attend individual Board meetings and will assure that the proceedings of each meeting are recorded.

(2) Procurement official. There will be a key procurement official appointed to the Board. This official will be the principal official responsible for procurement. Where the activity has more than one contracting office, the principal officials responsible for procurement of the respective contracting offices will be designated alternate members. In this case, a principal official responsible for procurement will serve on the Board to review proposed noncompetitive procurements expected to be assigned to his/her office for procurement action. Whenever the principal official responsible for procurement and the contracting officer are the same individual, the official

one administrative level above the principal official responsible for procurement shall represent the contracting office in the Board actions.

(3) Program officials. Two representatives will be selected from officials at the activity level which have responsibility for program policy or operations, program planning and evaluation, scientific affairs, research, etc., and/or from the program divisions of the activity that sponsor contract projects. The members should be selected on the basis of their knowledge of a program as a whole, but should not ordinarily be involved in the initiation and management of particular or single projects.

(4) Contracting officer. The contracting officer responsible for the procurement to which the justification for noncompetitive procurement relates shall serve as a nonvoting member. When Board meetings consider justifications for procurements involving more than one contracting officer, each contracting officer may attend and offer opinions on the justification pertinent to him/her.

As a further note, the project officer, that individual in the program office who originated the justification and who will be responsible for the project management of the contract project, cannot be a member or alternate on the Board. However, the project officer may be invited by the chairperson to the Board meeting during which the justification will be discussed. The project officer should be prepared to answer questions raised by the Board.

(d) Meetings of the Board shall be conducted as follows:

(1) If the estimated amount of the procurement is more than $500,000, a formal meeting of the Board is required. If the estimated amount of the procurement is $500,000 or less, a formal meeting of the Board need not be held if the chairperson, procurement official, and contracting officer concur that a noncompetitive procurement is justified. If any one of these three persons is of the opinion that a noncompetitive procurement is not justified, a formal meeting must be held. Formal meetings will include all appropriate members and will be con

vened by the chairperson. No action shall be considered by the Board unless the chairperson, procurement official, and two program officials are present. Decisions of the Board will be by majority rule. In case of a tie vote, the action will be resolved in favor of seeking competition.

(2) The chairperson may seek independent counsel from any source inside or outside of the activity if he/ she feels that additional advice is necessary for the Board to reach a sound decision.

(3) The Board shall maintain a written record of the justifications reviewed and the decision made on each. If a justification is approved, only Board approval need be indicated. If a justification is disapproved, the reasons should be stated in writing and forwarded to the originator of the justification. The written decision of the Board should be made a part of the contract file.

§ 3-3.5308 Whole project buys.

(a) "Whole project buy" is a term used to describe a procurement concept whereby a project consists of distinctly identifiable segments or phases which are so interdependent that they must be viewed as a total package and must be procured from a single contractor to ensure consistency and to meet the overall project objectives. This concept is only to be used when it is necessary to procure the whole project or total package from a single contractor in order to complete the project successfully; that is, the identifiable segments or phases cannot be separated and procured individually from other than the single contractor without jeopardizing the successful completion of the project. The whole project buy concept serves as an excellent management tool in that it provides the Board or approving official with detailed and interrelated aspects of the proposed procurement action of a complex project. It also serves to motivate program and procurement personnel to focus their attention on the various aspects of the project and to plan and prepare an indepth analysis encompassing the total project and its component parts. This should result in the development of a procurement

plan which identifies all pertinent information concerning the segments or phases of a project, while providing a comprehensive overview of the total project.

(b) Any whole project buy which exceeds $100,000 in the aggregate and which contemplates any noncompetitive procurement actions of any dollar value at any time during the project life shall be submitted to the Board or approving official for approval. This requirement applies even if the first of a series of related procurements in a whole project buy is less than $100,000. It applies to projects with several related procurement actions where the first part of the project is either competitively or noncompetitively awarded, and there are to be subsequent noncompetitive procurements with the original contractor. This requirement applies to all procurements regardless of whether the noncompetitive procurement is called a renewal, follow-on, continuation, extension, etc., is to be effected by means of a contract modification, or is a new start.

(c) Justifications of whole project buys submitted to the Board or approving official shall fully describe what the complete requirement is, how the requirement will be divided into procurement actions, the total estimated cost of the whole project and each individual procurement action, the total period of time for the whole project and each procurement action, and whether all or what parts of the whole project will be procured noncompetitively. For projects where an end point cannot be forecast with certainty, as in the case of basic research, the whole project buy will be the circumscribed amount of time which the program office presently intends to continue the effort.

(d) If the Board or approving official clearly approves the noncompetitive procurement action(s) at the outset of a whole project buy, and the whole project buy results in an original contract followed by either a noncompetitive new contract, or noncompetitive modification to the original contract for work, dollars, and time approved by the Board or approving official, these subsequent noncompetitive pro

curement actions will not have to be resubmitted for approval. However, whole project buys may not be approved in excess of three (3) years, and approval is limited to that explicitly contained in the justification. If a part of the whole project buy is not included in the justification or there are changes in the project which would amend the whole project buy as approved, the excluded part and/or changes will require a separate review and approval. If there are questions as to what was approved, the questionable material shall be submitted to the Board or approving official for clarification.

(e) Once a whole project buy has been approved at an appropriate level, any RFP issued for the procurement shall contain a notification to all potential offerors that the RFP is for the first phase of a whole project buy, the balance of which is projected to be awarded noncompetitively to the successful offeror. It shall also contain as complete a description as possible of the project so that potential offerors may gain an understanding of the full scope of the project. Finally, the notification shall also state that the Government reserves the right to conduct competitive procurements for the subsequent phases if this becomes possible.

Subpart 3-4.9-Unsolicited Proposals

SOURCE: 45 FR 33995, May 21, 1980, unless otherwise noted.

§ 3-4.906 Contents of unsolicited proposals.

(a) through (c) [Reserved]

(d) Certification by offeror. To ensure against contacts between Department employees and prospective offerors which would exceed the limits of advance guidance set forth in § 14.905 resulting in an unfair advantage to an offeror, the principal official responsible for procurement (or designee) shall ensure that the following certification is furnished to the prospective offeror and the executed certification is included as part of the resultant unsolicited proposal:

UNSOLICITED PROPOSAL CERTIFICATION BY OFFEROR

This is to certify, to the best of my knowledge and belief, that:

a. This proposal has not been prepared under Government supervision.

b. The methods and approaches stated in the proposal were developed by this offeror. c. Any contact with employees of the Department of Health and Human Services has been within the limits of appropriate advance guidance set forth in § 1-4.905.

d. No prior commitments were received from departmental employees regarding acceptance of this proposal.

Date: Organization:

Name:

Title:

(This certification shall be signed by a responsible official of the proposing organization or a person authorized to contractually obligate the organization.)

§ 3-4.907 Time of submission.

The principal official responsible for procurement shall establish procedures governing the time for submission and number of copies of proposals for the purpose of maintaining orderly and efficient evaluation procedures.

§ 3-4.908 Agency point of contact.

The principal official responsible for procurement or his/her designee shall be the point of contact for coordinating the receipt and handling of unsolicited proposals. Contacts made outside of the procuring activity shall

be promptly coordinated with the prir.cipal official responsible for procurement or his/her designee.

§ 3-4.909 Receipt, review and evaluation. The principal official responsible for procurement or his/her designee shall be accountable for the receipt and handling of unsolicited proposals. Accordingly, he/she shall establish procedures for controlling the receipt, evaluation, and timely disposition of unsolicited proposals in accordance with § 1-4.909. These procedures shall include controls on the reproduction and disposition of proposal material, particularly data identified by the offeror as subject to duplication, use, or disclosure restrictions.

(a)-(e) [Reserved]

(f) An unsolicited proposal shall not be refused consideration merely because it was initially submitted as a grant application. However, contracts shall not be awarded on the basis of unsolicited proposals which have been rejected for grant support on the ground that they lack scientific merit.

§ 3-4.910 Method of procurement.

(a) [Reserved]

(b) In lieu of the justification for noncompetitive procurement required by § 1-4.910(b), the program office shall prepare a "Justification for Acceptance of Unsolicited Proposal."

(1) The "Justification" shall address the factors listed in § 1-4.909(d) and include the following findings:

(i) The unsolicited proposal was selected on the basis of its overall merit, cost, and contribution to the activity's program objective.

(ii) The substance of the unsolicited proposal does not closely resemble that of a pending competitive solicitation;

(iii) The substance thereof is not available to the Government without restriction from another source.

(2) The "Justification for Acceptance of Unsolicited Proposal" shall be submitted to the contracting officer together with, but as a separate document from, the request for contract and shall be signed by the same official of the program office who signs the request for contract. Approval of the "Justification" shall be made at

the same level as prescribed in § 33.5306 for approval of a justification for noncompetitive procurement.

§ 3-4.913 Limited use of data.

The legend, Use and Disclosure of Data, prescribed in § 1-4.913(a) is to be used by the offeror to restrict the use of data for evaluation purposes only. However, data contained within the unsolicited proposal may have to be disclosed as a result of a request submitted pursuant to the Freedom of Information Act. Because of this possibility, the following notice shall be furnished to all prospective offerors of unsolicited proposals whenever the legend is provided in accordance with § 1-4.905(b)(9):

The Government will attempt to comply with the "Use and Disclosure of Data" legend. However, the Government may not be able to withhold a record (data, document, etc.) nor deny access to a record requested by an individual (the public) when an obligation is imposed on the Government under the Freedom of Information Act, 5 U.S.C. 552, as amended. The Government's determination to withhold or disclose a record will be based upon the particular circumstances involving the record in question and whether the record may be exempted from disclosure under the Freedom of Information Act. Records which the offeror considers to be trade secrets and commercial or financial information and privileged or confidential must be identified by the offeror as indicated in the referenced legend.

Subpart 3-4.10-Architect-Engineer Services

SOURCE: 41 FR 27835, July 7, 1976, unless otherwise noted.

§ 3-4.1001 General policy.

Pursuant to Pub. L. 92-582 dated October 27, 1972, which amended, it is the policy of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 471, et seq.), it is the policy of the Federal Government to publicly announce all requirements for Architect/Engineer (A/E) services, and to negotiate contracts for A/E services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices. The acquisition of such services in connec