Digital and/or Analog Computers, either cable connected, or "self standing" and whether selected or acquired with the computers or separately (FSC 7410 or 7440);

(c) Punched Card Machines (PCM) and systems used in conjunction with or independently of Digital or Analog Computers (FSC 7410); and

(d) Digital and Analog Terminal and Conversion equipment that is acquired solely or primarily for use with a system which employs a Computer or Punched Card Machines (FSC 7410 or 7440). § 18-1.236 Nonprofit organization.

"Nonprofit organization" means any corporation, foundation, trust, or institution operated for scientific, educational, or medical purposes, not organized for profit, no part of the net earnings of which inures to the benefit of any private shareholder or individual.

Subpart 18-1.3-General Policies

§ 18-1.300 Scope of subpart.

This subpart sets forth general policies with respect to the procurement of supplies and services by formal advertising and by negotiation.

§ 18-1.301 Methods of procurement.

(a) Competition. All procurements, whether by formal advertising or by negotiation, shall be made on a competitive basis to the maximum practicable extent.

(b) Formal advertising. Procurements shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. Procurement by formal advertising shall be effected in accordance with the detailed requirements and procedures set forth in Part 18-2 of this chapter.

(c) Negotiation. If the use of formal advertising is not feasible and practicable, procurements may be negotiated in accordance with the detailed requirements and procedures set forth in Part 18-3 of this chapter.

Irrespective of whether the procurement of supplies or services from sources outside the Government is to be effected by formal advertising or by negotiation, competitive proposals ("bids" in the case of procurement by formal advertising, "proposals or quotations" in the case of procurement by negotiation) shall be solicited from all such qualified sources deemed necessary by the contracting officer to assure full and free competition consistent with the procurement of the types of supplies and services necessary to meet NASA's requirements and thereby obtain for the Government the most advantageous contract-prices, quality and other factors considered.

[35 F.R. 18803, Dec. 11, 1970, as amended at 36 F.R. 21454, Nov. 10, 1971]

§ 18-1.302-3 Production and research and development pools.

(a) Description. A production or research and development pool is a group of concerns (1) who have associated together for the purpose of obtaining and performing jointly, or in conjunction with each other, contracts for supplies or services or for research and development for Defense use, or to effectuate the purposes of the Small Business Act; (2) who have entered into a pool agreement governing their organization, relationship, and procedure; and (3) whose agreement has been approved either in accordance with section 708 of the Defense Production Act of 1950, as amended (Defense Production Pool), 50 U.S.C. App. 2158, or in accordance with section 9(d) or 11 of the Small Business Act, 15 U.S.C. 631-647 (Small Business Pools). Pool participants are exempt from the "manufacturer or regular dealer" requirement of the Walsh-Healey Public Contracts Act (see Subpart 18-12.6). In

formation on types of small business production pools, their purpose, and procedures for establishing such pools and for securing their approval by the Small Business Administration (SBA) is contained in the SBA publication "Small Business Production Pools for Defense."

(b) General rule. Except as provided in this § 18-1.302-3, a pool shall be treated for purposes of Government procurement on exactly the same basis as any other prospective or actual contractor.

(c) Ascertainment of status. The contracting officer is responsible for ascertaining whether a group of firms seeking to do business with the Government is a pool. In ascertaining the status of a group representing itself as a pool, contracting officers may rely on a copy of the Small Business Administration (SBA) or Office of Emergency Preparedness (OEP) notification of approval of the pool. If the contracting officer has any questions as to whether a given pool has been approved, he shall consult the regional office of the SBA. The Director of Procurement will expeditiously disseminate to field installations information received from SBA or OEP concerning the approval of production and research and development pools. In any case where the award of a contract to a group representing itself as a production or research and development pool is contemplated, and the contracting officer does not have data available as to the status of the pool, the group shall be requested to furnish to the contracting officer the following:

(1) A copy of the SBA or OEP notification of approval of the pool; and

(2) A list of the member companies of the pool and a statement regarding the type of organization and plan of operation of the pool.

(d) Contracting with pools. (1) a bid or proposal of a pool is not eligible for award to the pool unless submitted either by the pool in its own name or by an individual member expressly disclosing that it is on behalf of the pool. Except for contracts to be awarded to incorporated pools, the contracting officer shall, prior to award to a pool, require to be deposited with him a certified copy of a power of attorney from each member of the pool who is to participate in the performance of the contract authorizing an agent to execute the bid, proposal, or contract on behalf of such member. A copy of each such power of attorney shall be appended to each

executed copy of the contract retained by the Government.

(2) Membership in a pool shall not of itself preclude individual members from submitting bids or proposals as individuals on appropriate procurements. Bids or proposals submitted by an individual member of a pool shall not be considered when the individual member has participated in the bid or proposal submitted by the pool.

(e) Responsibility of pool member. Where a member of a production pool has submitted a bid or proposal in his own name and not on behalf of a pool, the pool agreement shall be a factor to be considered in determining the pool member's responsibility, pursuant to Subpart 18-1.9.

(f) Small Business Status. Approval of an organization as a defense production or research and development pool under the Defense Production Act of 1950, as amended, does not confer upon such pool the preferences and privileges accorded to "small business concerns". Such preferences and privileges shall be accorded only to those pools which have been approved under the Small Business Act, Public Law 85-536, as amended. [35 F.R. 18803, Dec. 11, 1970, as amended at 36 F.R. 21454, Nov. 10, 1971]

§ 18-1.302-4 Contracts between the Government and its employees or business organizations substantially owned or controlled by Government employees.

(a) Contracts shall not knowingly be entered into between the Government and employees of the Government or business organizations which are substantially owned or controlled by Government employees, except for the most compelling reasons, such as cases where the needs of the Government cannot reasonably be otherwise supplied.

(b) When a contracting officer has reason to believe that an exception as described in paragraph (a) of this section should be made, approval of the Director of Procurement shall be obtained prior to entering into any such contract. [36 F.R. 21454, Nov. 10, 1971] § 18-1.302-50 Proposed

subcontracts

between NASA contractors and Government employees.

In the approval of subcontracts under NASA prime contracts, NASA contracting officers shall consider the policy

restrictions of § 18-1.302-6 to apply to subcontracts.

[36 F.R. 21455, Nov. 10, 1971]

§ 18-1.302-51

New sources of scientific and technical competence.

As a Government agency whose mission calls for substantial Federal expenditures and use of substantial national resources, NASA has a strong interest in assisting in the accomplishment of collateral national economic goals within the framework of applicable statutory and administrative authority in such manner as will not impair program effectiveness. Utilization and the accompanying development of the potential of all geographical regions in the space program will effectively contribute to achieving national goals. To advance the further development of competence and capacity of sources, it is NASA's policy to encourage the placing of subcontracts over wider geographic areas. To carry out these objectives, the following clause shall be inserted in all research and development contracts of $500,000 and over to be performed within the United States. GEOGRAPHIC PARTICIPATION IN THE AEROSPACE PROGRAM (JUNE 1966)

(a) It is the policy of the National Aeronautics and Space Administration to advance a broad participation by all geographic regions in filling the scientific, technical, research and development, and other needs of the aerospace program.

(b) The Contractor agrees to use his best efforts to solicit subcontract sources on the broadest feasible geographic basis, consistent with efficient contract performance, and without impairment of program effectiveness or increase in program cost.

(c) The Contractor further agrees to insert this clause in all subcontracts of $100,000 and over.

[36 F.R. 21455, Nov. 10, 1971]

(b) Where purchases of major items are involved or where a procurement office deems it desirable, it should request appropriate information (on both the end item and on major subcontracted components) from other procurement offices responsible for buying similar items. Each office receiving such requests shall furnish the information requested. The contracting officer, early in a negotiation of a contract, or in connection with the review of a subcontract, shall request the contractor to furnish information as to the contractor's or subcontractor's previous Government contracts and subcontracts for the same or similar end items and major subcontractor components. [36 F.R. 21455, Nov. 10, 1971]

§ 18-1.304 Restrictions other information.

on

data and

§ 18-1.304-1 Selection of items involving proprietary data.

In some cases the procurement of an item would involve proprietary data (see § 18-9.201(b)) or other factors which would restrict sources of procurement or limit competition, but alternative items may be procured which would meet the needs of NASA. In such cases, consideration will be given, in selecting the item to be procured, to the relative advantages for aeronautical and space purposes of the item which involves such proprietary data or other factors as against the disadvantages of a restricted source of supply and possibly increased cost to the Government because of lack of competition. However, when a particular item best meets the needs of NASA, the contracting officer will not refrain from procuring the item solely because it would involve such restrictions or limitations. § 18-1.304-2 of technical

data.

Treatment

(a) General. Technical data (such as plans, designs, suggestions, improvements or concepts) acquired by NASA may have been obtained under conditions which restrict NASA's right to use the data. Therefore, care must be taken when considering the use of technical data to assure that NASA has sufficient rights to use the data in the manner desired. One of the principal ways in which NASA receives technical data is by means of proposals. NASA has a continuing interest in receiving and evaluating proposals which are pertinent to its potential needs in carrying out its objectives and missions. Some proposals are offered and

received under conditions which may prevent NASA from using the technical data contained therein other than for evaluation purposes. Proposals received by NASA are of two types-solicited and unsolicited.

(b) Definitions—(1) Unsolicited proposal. An unsolicited proposal is a written offer to perform work which does not result from (i) a formal written request for proposals or quotations, or (ii) an oral quotation solicited under the small purchase procedures (§ 18-3.604-2).

(2) Solicited proposal. A solicited proposal is a written offer to perform work which results from (i) a formal written request for proposals or quotations, or (ii) an oral quotation solicited under the small purchase procedures (§ 18-3.604-2) by NASA.

(c) Policy for unsolicited proposals. It is the policy of NASA to use technical data included in unsolicited proposals for evaluation purposes only. However, due to the administrative problems involved in handling the large number of unsolicited proposals received, the Government cannot assume liability for disclosure or use of such technical data unless it is marked by the submitter in accordance with the following requirements. Each proposal containing technical data, which the submitter intends to be used by NASA for evaluation purposes only, should be marked on the cover sheet with the following legend and shall specify the pages of the proposal to be restricted in accordance with the conditions of the legend:

Technical data contained in pages

of this proposal shall not be used or disclosed, except for evaluation purposes: Provided, That if a contract or grant is awarded to this submitter as a result of or in connection with the submission of this proposal, the Government shall have the right to use or disclose this technical data to the extent provided in the contract or grant. This restriction does not limit the Government's right to use or disclose technical data obtained from another source without restriction (October 1969).

Contracting officers and other Government personnel shall not refuse to consider any proposal merely because the proposal is restrictively marked. Proposals, or portions thereof, so marked shall be used only for evaluation and shall not otherwise be used or disclosed without the written permission of the submitter except under the conditions provided in the legend. In the event an unsolicited proposal is submittetd with

more restrictive conditions than that provided in the legend above, NASA may be unable to consider it, in which case the submitted should be so advised, see § 18-1.304-2(f) (2). (d) Policy

for solicited proposals. NASA recognizes that requests for pro posals may require the offeror, including his subcontractors, if any, to submit technical data which the offeror or his subcontractor does not want used or disclosed for any purpose other than evaluation of the proposal. Each proposal containing technical data which the offeror or his proposed subcontractors desires to restrict shall be marked on the cover sheet with the legend set forth in paragraph (c) of this section, specifying the pages of the proposal to be restricted in accordance with the conditions of the legend. Proposals, or portions thereof, so marked shall be used only for evaluation and shall not otherwise be used or disclosed without the written permission of the submitter except under the conditions provided in the legend. NASA assumes no liability for disclosure or use of unmarked technical data in solicited proposals and may use or disclose the data for any purpose. See § 18-3.501(b) (45) for language to be inserted in the RFP.

(e) NASA notice for handling proposals. In order to assure that both unsolicited and solicited proposals are handled in accordance with the policies set forth in paragraphs (c) and (d) of this section, the following notice shall be affixed to each unsolicited proposal upon receipt by NASA, and to each solicited proposal if the solicited proposal is to be disclosed outside the Government for NASA evaluation purposes in accordance with the policies and procedures set forth in paragraph (f) of this section. Application of the following notice in no way alters any obligation of the Government, nor diminishes any rights in the Government to use or disclose technical data or business information.

NASA NOTICE FOR HANDLING PROPOSALS
(OCTOBER 1969)

This proposal shall be used, or duplicated, only for NASA evaluation purposes and this notice shall be applied to any reproduction or abstract thereof.

Disclosure of this proposal outside the Government for NASA evaluation purposes shall not be made unless the policy and procedures prescribed by NASA Procurement Regulation 1.304-2(f), including the requirements for approval and for an arrangement

with the outside evaluator prior to disclosure, are followed.

The restrictions contained in this notice do not apply to technical data or business information obtained from another source without restriction.

(f) Disclosure of solicited and unsolicited proposals outside Government(1) Policy. It is the policy of NASA to have proposals evaluated by the most competent technical and management sources available in NASA and the Jet Propulsion Laboratory (JPL), see § 183.804-4. Proposals being considered by a Source Evaluation Board will be handled in accordance with paragraph 305 of the Source Evaluation Board Manual (NPC 402). Proposals being considered for flight experiments by the Space Science and Applications Steering Committee and the Manned Space Flight Experiments Board will be handled in accordance with NMI 7100.1, "Conduct of Space Science Programs-Selection and Support of Scientific Investigations and Investigators," dated April 29, 1964. However, in processing a proposal for evaluation by Board, Committee, or otherwise, NASA may find in some instances that it is necessary to disclose a proposal outside the Government to meet its evaluation needs. Such outside evaluation may be made, provided the requirements in subparagraphs (2) and (3) of this paragraph are met.

(2) Approval. Decisions in NASA Headquarters to disclose solicited proposals outside the Government (or JPL) for NASA evaluation purposes shall be made by the Director, Headquarters Contracts Division, and at NASA field installations by the Procurement Officer. The decision to disclose either a solicited or unsolicited proposal outside the Government (or JPL) for the purpose of obtaining a NASA evaluation shall take into consideration the NASA Rules for the Avoidance of Organizational Conflicts of Interest (Appendix G) and the competitive relationship between the originator of the proposal and the prospective outside evaluator. In addition, should a solicited or unsolicited proposal under consideration contain a restrictive use legend or statement other than that prescribed in § 18-1.304–2(c), the legend or statement should be reviewed to assure that it does not preclude NASA from disclosing the proposal outside of the Government (or JPL) for purposes of obtaining a NASA evaluation. In the

event NASA is so precluded and an outside evaluation is nevertheless desired, the submitter should be advised that NASA may be unable to consider the proposal unless the submitter consents in writing to having the proposal evaluated outside the Government.

(3) Agreement with evaluator. Where it is determined to disclose a proposal outside the Government pursuant to subparagraph (2) of this paragraph, the following agreement, or a similar appropriate arrangement for the treatment of the proposal, shall be obtained from the recipient prior to such disclosure. Also, review should be made to assure that the NASA notice required by paragraph (e) of this section is affixed to the proposal before it is disclosed to the evaluator.

CONDITIONS FOR EVALUATING PROPOSALS

(OCTOBER 1969)

Whenever NASA furnishes a proposal for evaluation, the recipient agrees to use the technical data and business information contained in the proposal only for NASA evaluation purposes.

This requirement does not apply to technical data or business information obtained from another source without restriction.

Any notice or legend placed on the proposal by either NASA or the originator of the proposal shall be applied to any reproduction or abstract thereof. Upon completion of the evaluation, the recipient shall return all copies of the proposal and abstracts, if any, to the NASA office which initially furnished the proposal for evaluation.

Unless authorized by the NASA initiating office, the recipient shall not contact the originator of the proposal concerning any aspect of its contents.

(g) Evaluation and testing of equipment and material. Should evaluation of a proposal include the evaluation and testing of equipment or material, neither the Government nor any person acting on behalf of the Government assumes any liability to the submitter of the proposal, or any person acting on his behalf, in connection with any damage, loss, injury, or destruction resulting from such evaluation and testing. Nothing contained herein shall preclude the Government from asserting any action against the submitter or any person acting on his behalf arising out of the above circumstances.

§ 18-1.304-3 Technical and other data involved in formal advertising. See § 18-2.404-4.