This subpart sets forth introductory information pertaining to the purpose, applicability, and content of this chapter. § 18-1.101 Purpose of this chapter.

This chapter, issued by the Director of Procurement under authority delegated by the Administrator, establishes for the National Aeronautics and Space Administration (NASA) uniform policies and procedures relating to the procurement of property and services under the authority of the National Aeronautics and Space Act of 1958, as amended (Public Law 85-568; 42 U.S.C. 2451 et seq.), Chapter 137, Title 10, of the United States Code, or other statutory authority. § 18-1.102 Applicability.

This chapter applies to all purchases and contracts made by NASA, within or outside the United States, for the procurement of property or services which obligate appropriated funds, unless otherwise specified herein.

Policies and instructions concerned with procurement which, while directive, are essentially procedural in nature, will be published as appendices to this chapter when applicable to, or required by, substantially all users of and subscribers to this chapter. Such policies and instructions will be published as supplements to the NASA procurement regulation when they are not applicable to, or required by, substantially all users of and subscribers to this regulation.

[33 F.R. 6400, Apr. 26, 1968]

§ 18-1.107 Dissemination and effective date of this chapter and revisions. (a) The NASA Procurement Regulation, and Revisions thereof, will be distributed directly to NASA installations by the U.S. Government Printing Office. The number of copies of the Regulation, and Revisions thereof, will be distributed on the basis of the requirements furnished by each Headquarters Staff Office, Headquarters Program Office, and NASA field installation, to the Office of Procurement, NASA Headquarters (Code KDP).

(b) Heads of field installations will ensure that copies of the NASA Procurement Regulation are distributed to all interested NASA activities and individuals within their installation.

(c) Copies of the NASA Procurement Regulation, and Revisions thereof, may be purchased by private concerns and individuals from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(d) Compliance with a revision of this Chapter 18 shall be permissive effective with the date of issuance thereof, and shall be mandatory effective 60 days thereafter, except (1) as may be otherwise prescribed in the revision, and (2) that procurements initiated after receipt of new or revised clauses should, to the maximum practicable extent, include such clauses prior to the mandatory date.

(e) Unless otherwise stated, invitations for bids which have been issued

and bilateral agreements upon which negotiations have been completed prior to the receipt of new or revised contract clauses need not be amended to include the new or revised clauses if such amendment would unduly delay the procurement action.

§ 18-1.109 Deviations and other procurement publications.

§ 18-1.109-1 Applicability.

A deviation shall be considered to be any of the following:

(a) When a prescribed contract clause is set forth verbatim in NASA procurement regulations, use of a contract clause or a schedule provision covering the same subject matter which varies from, or has the effect of altering, the prescribed NASA clause, or changing its application;

(b) When a contract clause is set forth in NASA procurement regulations but not for use verbatim, use of a contract clause covering the same subject matter which is inconsistent with the intent, principle and substance of the NASA procurement regulation clause or related coverage of the subject matter;

(c) Omission of any mandatory contract clause constitutes a deviation;

(d) When a standard, NASA, or other form is prescribed by NASA procurement regulations, use of any other form for the same purpose;

(e) Alteration of a standard or NASA form except as authorized by NASA procurement regulations;

(f) When limitations are imposed by NASA procurement regulations upon the use of a contract clause, form, procedure, type of contract, or any other procurement action, the imposition of lesser or greater limitations; or

(g) When a policy, procedure, method, or practice of conducting procurement actions is prescribed in NASA procurement regulations, any policy, procedure, method, or practice inconsistent therewith.

[33 F.R. 6400, Apr. 26, 1968]

§ 18-1.109-2 Approval of deviations.

Deviations from NASA procurement regulations will be authorized only when essential to effect necessary procurement or where special circumstances make such deviations clearly in the best interest of the Government. Such deviations will be approved only by the Director of Procurement, or his authorized representative:

§ 18-1.109-3 Requests for deviations.

Requests for authority to deviate from the provisions of this chapter and other procurement publications shall be submitted to the Office of Procurement (Code KDP). Such requests shall be signed by the Procurement Officer of a field installation (or the Director in the case of the Headquarters Contracts Division and the Office of University Affairs) or his deputy. Such requests shall be submitted as far in advance as the exigencies of the situation will permit. Each request for a deviation shall contain as a minimum:

(a) Identification of the NASA procurement regulation requirement from which a deviation is sought;

(b) A full description of the deviation and the circumstances in which it will be used;

(c) A description of the intended effect of the deviation;

(d) A statement as to whether the deviation has been requested previously, and, if so, circumstances of the previous request;

(e) The name of the contractor and identification of the contract affected, including the dollar value; and

(f) Detailed reasons supporting the request, including any pertinent background information which will contribute to a fuller understanding of the deviation sought.

[33 F.R. 6400, Apr. 26, 1968]

§ 18-1.110 Reports of contracis.

(a) Special reports concerning NASA contracts prescribed by NASA Headquarters are designed to meet statutory and other Congressional requirements, requirements of other Government agencies, and to provide all levels of management with data on which to formulate procurement policy as well as to determine the extent of compliance with prescribed policy.

(b) Basic recurring reports are set forth in Subpart 18-16.9. The statistics furnished in these reports are also used in the preparation of reports furnished to the President, the Congress, other Government agencies, and management within NASA. The accuracy, completeness, and timeliness of all reports are fully dependent on careful preparation and prompt submission.

§ 18-1.111 Reports of noncompetitive

practices.

(a) Unless bids or proposals are genuinely competitive, contract prices tend to be higher than they should be. If the Administrator, NASA, or his representative considers that any bid received after formal advertising evidences a violation of the antitrust laws, he is required by 10 U.S.C. 2305(d) to refer such bids to the Attorney General of the United States for appropriate action (see § 18-2.4041(b)(6) of this chapter). Similarly, evidence of such violations in negotiated procurements will be referred to the Attorney General (see § 18-3.215-2 of this chapter). Practices which are designed to eliminate competition or restrain trade and which may evidence possible violations of such laws include collusive bidding, follow-the-leader 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 Office of Procurement (Code KDP). 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:

(1) The noncompetitive pattern or situation under consideration;

(2) 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;

(3) Community of financial interest among bidders, insofar as it is known;

(4) The extent, if any, to which specification requirements or patents restrict competition;

(5) Information which may be available with respect to the pricing system employed in bids or proposals believed to reflect noncompetitive practices; and (6) Any other information considered pertinent.

(c) Evidence of noncompetitive bid practices which, in the opinion of the

(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 Armed Services Procurement Regulation (ASPR).

(b) NASA and the General Services Administration have also reached agreement concerning the relationship between the Federal Procurement Regulation (FPR) and the NASA Procurement Regulation. NASA has agreed to participate in the publication program established by the FPR system.

§ 18-1.113 Code of conduct.

§ 18-1.113-1 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: (1) 18 U.S.C. 201 relating to bribes in order to secure a Government contract; (2) 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; (3) 18 U.S.C. 205 relating to acting as an agent or attorney for prosecuting any claim against the United States; (4) 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 (5) 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 NHB 1900.1 "Standards of Conduct for NASA Employees."

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 in paragraph (a) of this section, 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.

§ 18-1.113-2 Organizational conflicts of interest.

(a) NASA Management Manual Instruction 3-3-16, dated December 9, 1963, Subject: Avoiding Conflict-of-Interest Situations in the Placing of NASA Contracts, is set forth in this chapter 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 chapter 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 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 Field Installation. Contracting officers will forward to the Office of Procurement (Code KDP) a copy of each such notice included in solicitations and clause incorporated in contracts.

§ 18-1.114 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

(ii) 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 policles 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