GENERAL PROVISIONS competitions. The results of such studies may be made available to industry as soon as they are known or at periodic intervals. Requirements for automatic data processing equipment, or support services to perform specified operations or achieve certain results, may also be suitable for advance review and comment by the private sector where diverse approaches to the accomplishment of mission objectives may be possible. The material made available in advance may vary from a comprehensive draft of a proposed requirement, to a partial draft; e.g., statement of work and/or specifications, or reports. 1.309-3 Procedure. (a) In making advance information available to industry, sufficient time should be allowed in the acquisition process to permit potential sources an opportunity, commensurate with the task, to prepare and submit a response to the solicitation for informational or planning purposes. Invitations for bids and requests for proposals will not be used for this purpose. Requests for informational or planning purposes shall be issued only with prior approval of the Procurement Officer. Such a request shall clearly state its purpose and, in addition, the following statement in capital letters shall be placed on the face of the request: THIS IS NOT A REQUEST FOR PROPOSALS. The foregoing statement does not prohibit the allowance, in accordance with 15.205-3, of the cost of preparing such information. Solicitations for informational or planning purposes will at least request an expression of interest in the contemplated requirement and will designate a time and place for submission of responses. Each solicitation will define, as explicitly as possible, the information the Government desires and will indicate whether it is contemplated that the solicitation will be followed by a conference. After approval by the Procurement Officer, the solicitation will be forwarded to potential sources and synopsized in accordance with the procedures set forth in 1.1003. (b) Each source responding to the solicitation will be advised of the details of any pending conference. The conference, when provided for, will be conducted by procurement personnel, and should be attended by technical, legal, and other personnel as appropriate. Care must be taken not to prejudice any future competition. Each source shall be furnished identical information in connection with the proposed requirement. Also, care shall be taken to safeguard any information received in confidence. (See 1.1004.) 1.309-4 Special Considerations. It should be understood that the foregoing procedure does not constitute procurement in the usual sense, 1.309-3 CFR TITLE 41 CHAPTER 18 GENERAL PROVISIONS where the Government is fully aware of its requirements and has incorporated them in a formal solicitation, or where firms are invited to make known their interest in a procurement by responding to a pre-invitation notice (2.205-4 (c)). Under the solicitations for informational or planning purposes procedure, interested firms may suggest changes in a proposed specification or statement of work, or propose alternatives in concept, method, design, system integration, and the like, that might result in lower costs without sacrificing performance, or other requirements in regard to the product or service involved. Care should be exercised in this connection to avoid potential conflict of interest situations. (See 1.113–2.) 1.310 Liquidated Damages. (a) This paragraph 1.310 applies to procurement by formal advertising and procurement by negotiation. Liquidated damages provisions may be used when both (i) the time of delivery or performance is such an important factor that the Government may reasonably expect to suffer damages if the delivery or performance is delinquent, and (ii) the extent or amount of such damages would be difficult or impossible of ascertainment or proof: When a liquidated damages provision is to be used in a supply or service contract, insert the provisior in 7.105-5 in accordance with the instructions thereof. (b) When a liquidated damages clause is used, the contract shall set forth the amount which is to be assessed against the contractor for each calendar day of delay. 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. If appropriate to reflect the probable damages, considering that the Government can terminate for default or take other appropriate action, the rate of assessment of liquidated damages may be in two or more increments which provide a declining rate of assessment as the delinquency continues. The contract may also include an overall maximum dollar amcunt or period of time, or both, during which liquidated damages may be assessed, to assure that the result is not an unreasonable assessment of liquidated damages. (c) The law imposes the duty upon a party injured by another to mitigate the damages which result from such NASA PROCUREMENT REGULATION GENERAL PROVISIONS 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 abtain 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. сп (d) Whenever any contract includes a provision for liquidated damages for delay, the Comptroller General, the recommendation of the Administrator, is authorized and empowered to remit the whole or any part cf such damages as in his discretion may be just and equitable. Recommendations concerning remissions of liquidated damages will be forwarded by the contracting officer, with appropriate documentation, via the head of the field installation to the Assistant Administrator for Procurement for submission to the Administrator. 1.311 Buying In. (a) "Buying In" refers to the practice of attempting to obtain a contract award by knowingly offering a price or cost estimate less than anticipated costs with the expectation of either (i) increasing the contract price or estimated cost during the period of performance through change orders or other means, or (ii) receiving future "follow-on" contracts at prices high enough to recover any losses on the original "buyin" contract. Such a practice is not favored by the National Aeronautics and Space Administration 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. (b) To avoid or minimize the opportunity for "buying in" on a procurement which is likely to be succeeded by one or more "follow-on" procurements, the Government should obtain from the contractor a binding price commitment covering as much of the entire program concerned as is practicable. Such a commitment may be secured through employment of the procurement technique of priced options for additional quantities which CFR TITLE 41 CHAPTER 18 GENERAL POLICIES together with the quantities being firmly contracted for, equal the anticipated total program requirements (see 1.1504). (c) In addition to the use of the technique noted in (b) above, it is important that other safeguards be provided against the contractor's recovering, through subsequent overpricing, from any initial loss situation due to buying in." For example, see 3.813 with respect to the amortization of nonrecurring costs, and 3.8012(c) concerning price quotations which the contracting officer considers unreasonable. 1.312 Voluntary Refunds. (a) General. A voluntary refund is a payment or credit, not required by any ccntractual or other legal cbligation, made to the Government by a contractor or subcontractor either as a payment or as an ad justment 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 jeoparidized or impaired by the contracting officer's proposed action. or be (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 Governmentowned property or in the disposition of contractor inventory, and retention by the contractor subcontractor of the amount in question would 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 ΟΙ subcontractor. The decision to solicit a voluntary refund shall be made by the Deputy Administrator or his designee after coordination with the Assistant Administrator for Procurement. (c) Disposition of Voluntary Refunds. NASA PROCUREMENT REGULATION GENERAL PROVISIONS (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 amcunt 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. 1.313 [Reserved] Next page is 1-3:177 CFR TITLE 41 CHAPTER 18 |