the conditions set forth below are present:

(1) Each order does not exceed $10,000;

(2) Title to the supplies will vest in the Government (i) upon delivery to a post office or common carrier for mailing or shipment to destination, or (ii) upon receipt by the Government when the shipment is by means other than post office or common carrier;

(3) The vendor agrees to replace, repair, or correct supplies not received at destination, damaged in transit, or not conforming to the order; and

(4) The supplies will be shipped transportation or postage prepaid. Therefore, no Government Bill of Lading (GBL) will ever be issued.

(b) Use of the fast payment procedure would not be indicated, for example, in small purchases by offices, vessels, air stations, bases, and other locations when material being purchased is destined for use at such activities and contract administration will be performed by the procurement office of such activities.

§ 12-3.652-3 Preparation of orders.

(a) Orders shall be issued on the appropriate purchase order form except that calls against blanket purchase agreements shall be issued in accordance with Administration procedures. Orders may be either priced or unpriced.

(b) Special data to be included on purchase orders or in blanket purchase agreements using fast payment procedures are:

(1) A requirement for the supplies to be shipped transportation or postage prepaid; and

(2) A requirement that invoices be submitted directly to the paying office designated in the order, or in the case of unpriced purchase orders, to the contracting officer.

§ 12-3.652-4 Fast payment clause.

The clause set forth in § 12-7.104-50 shall be included in all fast payment orders.

§ 12-3.703 Applicability.

Negotiated final overhead rates are authorized for use primarily in cost-reimbursement type contracts for research and development with commercial organizations and nonprofit or educational institutions. They may also be used in other cost-reimbursement type contracts, after a determination is made by the contracting officer that their use is advantageous to the Government. Where it is not apparent that any one of the major purposes enumerated in FPR 1-3.702 results or will result by the use of negotiated final overhead rates, the contracting officer will provide for settlement of overhead by audit determination.

forth in DOTPR 12-3.704-50 shall also be included in the contract. When the contract is a cost-plus-incentive-fee type, delete "Allowable Cost, Fixed Fee, and Payment" from paragraph (a) of the clause in FPR 1-3.704-1 and substitute "Allowable Cost, Incentive Fee, and Payment."

§ 12-3.704-2 Contracts with educational institutions.

When either the "Postdetermined" or "Predetermined" negotiated overhead rates clauses in FPR 1-3.704-2 is included in the contract, the appropriate "Indirect Costs" clause set forth in DOTPR 12-3.704-50 shall also be inIcluded in the contract.

§ 12-3.704-50 Interim payment of indirect costs.

(a) When the contract includes a "Negotiated Overhead Rate" clause as set forth in FPR 1-3.704-1 or 1-3.7042, one of the clauses set forth in DOTPR 12-7.203-950 (whichever is consistent with the contractor's normal method of interim and final overhead reimbursement) shall be inserted in the contract schedule.

(b) Prior to establishing or revising the negotiated provisional rates, the contracting officer should request the contractor to submit for review his proposed overhead rates with supporting cost data, with a copy to the cognizant audit activity.

(c) Provisional overhead rates may be revised after the contracting officer has received advice that the Department of Defense or other Government office sponsoring overhead negotiations with the contractor has negotiated acceptable overhead rates.

Subpart 12-3.8—Price Negotiation Policies and Techniques

§ 12-3.801-2 Responsibility of contracting officers.

In the event a contractor insists on a price or demands a profit or fee which the contracting officer considers unreasonable, and if the contracting officer is unable to obtain a satisfactory solution after exhausting the courses of action set forth in FPR 1-3.801-2(c), the matter shall be referred for resolution to the head of the procuring activity with a statement of facts and the contracting officer's recommendations.

§ 12-3.807-6 Refusal to provide cost or pricing data.

In addition to the data required by FPR 1-3.807-6, a referral to higher authority should indicate the impact on the affected procurement program if an award is not made to the refusing offeror, and include a recommended course of action.

§ 12-3.808-2 Factors for determining fee or profit.

In determining the fee or profit, consideration must be given to the tax posture of the organization. A fair and reasonable fee to a nonprofit or notfor-profit organization, with tax exemptions, would be considerably lower than a fee to a commercial enterprise with no tax exempt status.

§ 12-3.809 Contract audit as a pricing aid.

(a) In establishing the due date for receipt of the auditor's report, the minimum time which will be allowed by DOT contracting officers shall normally be 30 days. Exceptions to this 30-day minimum period may be made only when program considerations require a shorter time. Urgency caused by end of year funding considerations will not be a justification for requiring a shorter period for advisory audit review.

(b) When DCAA is assigned postaward audit responsibility under cost reimbursable contracts, the contractor shall be instructed to forward the first and final vouchers to the cognizant auditor for audit review. The cogni

zant DCAA auditor shall also be furnished a paid copy of each voucher furnished under the contract by the paying office.

§ 12-3.811 Record of negotiations.

The requirement in FPR 1-3.811(a) shall be satisfied by the preparation of a memorandum which summarizes the key procurement decisions and the principal elements of the negotiations. The format below shall be followed to the extent appropriate:

(a) Introduction. (1) Describe the products or services to be purchased.

(2) Specify the type and amount of proposed contract.

(b) Background. (1) Identify the requisitioning office and the individual responsible for requirement.

(2) Show the procurement request number and its total estimated cost.

(c) Solicitation of proposals. (1) Identify the RFP by number and date. (2) Show number of sources solicited, including requests received resulting from the synopsis.

(3) Reference any pre-bid conference held.

(4) Indicate date proposals were due. (5) Furnish explanation for opening date of less than 30 days.

(d) Proposals. (1) Indicate the number of proposals received.

(2) Identify offerors and the amounts of their price proposals.

(e) Technical evaluation of proposals. (1) Identify the memorandum received from the technical evaluation team.

(2) List the firms whose proposals were considered technically acceptable and their ratings.

(3) Identify those firms considered to be within a competitive range.

(f) Negotiations. (1) In addition to the applicable information described in FPR 1-3.811, this section of the memorandum should also:

(i) Summarize any pre-negotiation conference, including the primary objectives in the areas of price and technical and legal considerations.

(ii) Describe any special contract provisions negotiated. Provide an explanation if the delivery schedule or period for performance negotiated differs from that in the RFP. State the reasons for any substantive differ

ences between the RFP and the contract proposed for award.

(iii) Describe any consideration given to the use of an incentive type contract and, when used, the details of the incentive provisions.

(iv) Explain why the final negotiated price is fair and reasonable. Include a statement of receipt of the certificate of current cost or pricing data. Reference the prospective contractor's confirmation of the negotiated price, terms, and conditions of the contract.

(g) Other information. Provide details, if the procurement involves procedural or contractual innovations, protests by unsuccessful proponents, GAO or Congressional inquiries, or any other special circumstances which would be of interest to approving authority.

(h) Recommendations. Include a positive recommendation for award.

Subpart 12-3.50-Solicitation of Proposals

§ 12-3.5000 Scope of subpart.

This subpart applies to all negotiated procurement except small purchases.

§ 12-3.5001 Competition.

Competitive proposals shall be solicited from the maximum practicable number of qualified and eligible suppliers.

§ 12-3.5002 Preparation of request for proposals.

(a) Generally, requests for proposals shall be in writing. However, in appropriate cases, such as the procurement of perishable subsistence, proposals may be solicited orally. When the request is to be in writing, the following forms shall be used:

(1) For negotiated construction contracts, the standard forms in FPR 116.401.

(2) For other than construction, Standard Form 33 (Solicitation, Offer, and Award) and Standard Form 33A (Solicitation Instructions and Conditions).

(b) Requests for proposals shall indicate the type of contract contemplated by the Government. When technical

proposals are required, requests for proposals shall indicate the factors on which the Government will evaluate the proposals and list them in their relative order of importance. Any other factors, excluding price, which will be given paramount consideration in making an award shall also be indicated.

(c) The guidelines established in DOTPR 12-2.202-1 for minimum bidding times are applicable to requests for proposals.

§ 12-3.5003 Receipt and safeguarding of offers.

The instructions for the receipt and safeguarding of bids in FPR 1-2.401 shall also apply to the receipt and safeguarding of proposals.

§ 12-3.5004 Solicitation for informational or planning purposes.

See FPR 1-1.314.

§ 12-3.5005 Bidders mailing lists.

Bidders mailing lists for negotiated procurements shall be established, maintained, and utilized in accordance with FPR 1-2.205 and DOTPR 122.205-5.

§ 12-3.5006 Pre-proposal conferences.

§ 12-3.5006-1 General.

(a) The pre-proposal conference is a procedure which may be used, generally in complex negotiated procurement, as a means of briefing prospective offerors after a solicitation has been issued but before offers or proposals are prepared.

(b) Such a conference permits the Government to explain or clarify complicated specifications and requirements to interested firms. It may also be used to provide an opportunity for interested firms to examine a model of the equipment being procured, where for reasons such as security or limited quantities, such model can only be shown at a specific time and location.

those to whom solicitations have been issued as to the time, place, and general nature of the proposed conference. If time permits, prospective offerors should be asked to submit, in advance, any questions they may have.

(b) The pre-proposal conference shall be conducted by the contracting officer or his representative, with participation by technical and legal personnel as appropriate.

(c) All prospective offerors shall be furnished identical information in connection with the proposed procurement. All conferees shall be advised that remarks and explanations at the conference shall not qualify the terms of the solicitation and specifications unless the solicitation is amended in writing. A summary shall be made of the conference and copies furnished prospective offerors.

§ 12-3.5007 Amendment of request for proposals-prior to closing date.

(a) If after issuance of a request for proposals, but before the closing date of its receipt, it becomes necessary to make changes in quantity, specifications, delivery schedules, or closing dates, or to correct a defect or ambiguity, such change shall be accomplished by issuance of an amendment to the request, whether or not a preproposal conference is held. SF-30 shall be used for amending requests for proposals.

(b) When it is considered necessary to issue an amendment to a request for proposals, the period of time remaining before closing and the need for extending this period by postponing the time set for closing must be considered. Where only a short time remains before the time set for closing, consideration should be given to notifying offerors of an extension of time by telegram or telephone. Such notification should be confirmed in

the amendment.

(c) Any information given to a prospective offeror concerning a request for proposals shall be furnished promptly to all other prospective offerors as an amendment to the request if the lack of such information would be prejudicial to uniformed offers. No award shall be made on request for proposals unless such amendment

thereto has been issued in sufficient time to permit prospective offerors to consider such information in submitting or modifying their proposals.

§ 12-3.5008 Treatment of procurement information.

§ 12-3.5008-1

Restrictions on disclosure and use of data in proposals. (a) Requests for proposals may require the offeror to submit data with his proposal which may include a design or plan for accomplishing the objectives of the procurement. Such data may include information which the offeror does not want disclosed to the public or used by the Government for any purpose other than evaluation of the proposals.

(b) Contracting officers and other Government personnel shall not refuse to consider any proposal merely because it or the data submitted with it is so marked with a restrictive legend. Those portions of the proposal and data which are so marked (except for information which is also obtained from another source without restriction) shall be used only to evaluate the proposal and shall not be disclosed outside the Government without the written permission of the offeror. If it is desired to duplicate, use, or disclose the data of the offeror to whom the contract is to be awarded, for purposes other than to evaluate the proposal, the contract should so provide.

§ 12-3.5008-2 Disclosure of information during the pre-award or pre-acceptance period.

(a) General. See FPR 1-3.805-1(b) for restrictions regarding the disclosure of information.

(b) Equal consideration and information to all prospective contractors. During the interval between mailing of requests for proposals and the making of awards, discussion of the procurement with prospective contractors and the transmission of technical or other information shall be conducted only by or with the knowledge of the contracting officer; except that necessary technical or other information during such period may be transmitted to prospective contractors by other personnel via contracting per

sonnel, at meetings arranged by contracting personnel, or by official correspondence from the contracting officer to the originating activity or technical office seeking clarification of the matter in question. In the conduct of necessary discussion of a request for proposals with suppliers, no personnel shall furnish any information to a supplier which may afford him any advantage over others. However, general information which would not be prejudicial to others may be furnished upon request, e.g., explanations of a particular contract clause or a particular condition of the schedule. When necessary to clarify ambiguities, or correct mistakes or omissions, an appropriate amendment to the solicitation shall be issued.

§ 12-3.5008-3 Pre-award notice of unacceptable offers.

In any procurement in excess of $10,000 in which it appears that the period of evaluation of proposals is likely to exceed 60 days or in which a limited number of suppliers have been selected for additional negotiation, the contracting officer, upon determination that a proposal is unacceptable, shall provide prompt notice of that fact to the source submitting the proposal. Such notice need not be given where the proposed contract is to be awarded within a few days and notice pursuant to FPR 1-3.103 would suffice. In addition to stating that the proposal has been determined unacceptable, notice to the offeror shall advise that, since further negotiation with him concerning this procurement is not contemplated, a revision of his proposal will not be considered. If the firm requests a debriefing, this shall be provided at the earliest feasible time after the request, but not prior to award of the contract.

§ 12-3.5009 Notice of award technique.

When time is of the essence, the notice of award technique may be used as an acceptance of a proposal. To assure that the notice of award will constitute a valid acceptance of the offeror's proposal, the contracting officer will insure that the proposal fully embodies the terms of the agreement