than anticipated costs with the expectation of either (a) increasing the contract price during the period of performance through change orders or other means, or (b) receiving future "follow-on" contracts at prices high enough to recover any losses on the original "buy-in" contract. Such a practice is not favored 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. § 18-1.312 Voluntary refunds. (a) General. A voluntary refund is a payment or credit, not required by any contractual or other legal obligation, made to the Government by a contractor or subcontractor either as a payment or as an adjustment 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 jeopardized or impaired by the contracting officer's proposed action. or (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 Government-owned property or in the disposition of contractor inventory, and retention by the contractor subcontractor of the amount in question would be 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 refunds shall not be requested, unless the overcharge or inadequate compensation was due, at least in part, to the fault of the contractor or subcontractor. The decision to solicit a voluntary refund shall be r Deputy Administrator or b after coordination with the Procurement. (c) Disposition of volunto (1) If a refund is offered p payment, it is preferable th tract price be appropriately reflect the refund. In such amount of the refund shall to the applicable appropriati the contract. (2) In cases where the refu made by check rather than by ment in the contract price, shall be made payable to th Aeronautics and Space Adm and shall be forwarded imm the Financial Management O appropriate installation. V warded, the check shall be ac by a letter identifying it as a refund, giving the number o tract or contracts involved a possible, giving the account the appropriation to which t should be credited. § 18-1.314 Disputes and appe (a) When a dispute cannot by agreement and a decision "Disputes" clause is necessary tracting officer shall review able facts pertinent to the disp making his final decision. Whe any doubt as to whether the iss pute is subject to the disputes 1 a decision will be made pursua "Disputes" clause. The dispu cedure shall not be invoked in c a dispute is clearly not subje procedure. The contracting off obtain, from assigned legal a advisors, such advice and assi is required to render a decis decision must be that of the co officer (or his representative representative has been autho the contracting officer to ma decisions pursuant to the "] clause); however, prior to ma decision, the contracting off representative authorized to rer decisions) may consult with a Government personnel involve dispute. (b) The final decision should a statement of facts sufficient t the contractor to understand I decision and the basis theref mally, the decision should (1) r contractor's claim or otherwise the nature of the dispute, with necessary references to pertinent contract provisions; (2) state the facts relevant to the dispute on which the parties are in agreement and, as clearly as possible, the facts on which they are in disagreement; and (3) set forth the contracting officer's decision and the basis therefor. (c) When a final decision of the contracting officer involves a dispute that is subject to the procedure of a "Disputes" clause, or when there is doubt as to whether the decision is subject to such procedure, a paragraph substantially as follows shall be included in such decision: This is the final decision of the Contracting Officer on the question involved in this dispute. Decisions on disputed questions of fact and on other questions that are subject to the procedure of the Disputes clause may be appealed in accordance with the provisions of the Disputes clause. If you decide to make such an appeal from this decision, written notice thereof (in triplicate) must be mailed or otherwise furnished to the Contracting Officer within 30 days from the date you receive this decision. Such notice should indicate that an appeal is intended and should reference this decision and identify the contract by number. The NASA Board of Contract Appeals is the authorized representative of the Administrator for hearing and determining such disputes. The Rules of the NASA Board of Contract Appeals are set forth in Appendix A to the NASA Procurement Regulation (34 F.R. 3613-3616, Feb. 28, 1969). (d) After an appeal has been filed, a controversy may be disposed of by agreement. However, processing of the appeal shall not be suspended by such efforts except upon order, or as otherwise authorized, by the NASA Board of Contract Appeals. (e) In the event of an appeal, any amount determined to be payable in the decision of the contracting officer, less any portion previously paid, normally should be paid promptly following the contracting officer's decision, without prejudice to the rights of either party in the event of a subsequent appeal. § 18-1.315 Procurement of jewel bearings. (a) It has been determined that the Government's interests require the continued maintenance of an active and versatile mobilization base for the production of jewel bearings. This base has been established at the Governmentowned William Langer Jewel Bearing Plant, Rolla, N. Dak. In support of this policy, Government purchases of jewel bearings shall be made from that plant in all cases where it can meet purchase requirements. Additionally, all procurements of items containing jewel bearings shall provide, in the solicitations and resulting contracts, a requirement that jewel bearings in the quantities, and of the types and sizes necessary for the end items to be supplied under the contract, be purchased from the William Langer Jewel Bearing Plant and be incorporated in the delivered items, subject to the criteria provided in paragraphs (b), (c), and (d) of this section, except: (1) When quantity requirements, quality standards, or delivery requirements cannot be satisfied by bearings manufactured at the William Langer Jewel Bearing Plant; (2) For purchases of commercial end items having jeweled components used in commercial end items, when the quantities of such end items or components are such that the contracting officer either knows or reasonably expects that all such commercial end items are already manufactured and available from the stock of any dealer, wholesaler, distributor, or manufacturer; or (3) For bearings used in items that are to be procured and used outside the United States, its possessions, and Puerto Rico. (b) In order to assure that all bidders or offerors are competing on the same basis, it is necessary that the solicitation for items containing jewel bearings clearly state: (1) The successful contractor will be required to purchase (directly or through subcontractors, as appropriate) William Langer Jewel Bearing Plant bearings at prices established in the U.S. Government Jewel Bearing Price List then in effect, and to incorporate such bearings in the items to be delivered; and (2) Bids or proposals are to be predicated on this requirement. If it should occur, after award, that the William Langer Jewel Bearing Plant rejects the contractor's (or subcontractor's) purchase order entirely or in part, the contractor (or subcontractor) shall be required to so notify the contracting officer who will effect an equitable adjustment in the contract price to reflect any costs or savings accruing to contractor by reason of any price differential for such bearings, pursuant to the clause of this contract entitled "Changes." porate or to have his subcontr porate the purchased William: Bearing Plant jewel bearings in be delivered under this contra quirement for use (but not the for purchase) of such bearings m in the discretion of the Contra when such waiver is determine be in the Government's interes1 agreement is reached for an equi ment in the contract price by re waiver. (c) To the extent William Langer Jewel Bearing Plant bearings are fungible with other bearings and it is not practical or would be costly to segregate jewel bearing inventories or work in process for items to be furnished the Government from that to be furnished commercial customers, or for other similar reasons, it may be in the Government's interest to waive the use requirements at the discretion of the contracting officer. No waiver will be granted to prospective § 18-1.316 Disclosure of con contractors prior to award and no assurance will be given prior to award to any prospective contractors that such waiver will be granted after award. Minor inconvenience to contractors alone will not satisfy the need for demonstrating that the Government's interests are served by such waiver. When the use requirement is waived, an equitable adjustment for cost savings resulting therefrom shall be made. (d) In circumstances where a procurement is not exempt from this procedure but it would be impractical or contrary to the Government's best interest to require actual use of all of the William Langer Jewel Bearing Plant bearings required to be purchased, the contracting officer may provide in the solicitation and resulting contract that a minimum fixed percentage of the total bearings requirements be of William Langer Jewel Bearing Plant origin, or that William Langer Jewel Bearing Plant bearings be purchased for and used in a certain number of the total items to be supplied. (e) In all procurements subject to these procedures, the following clause is required for use: REQUIRED SOURCES FOR JEWEL BEARINGS (JULY 1968) Jewel bearings required in the performance of this contract shall be procured from the William Langer Jewel Bearing Plant, Rolla, N. Dak., at prices established in the Official U.S. Government Jewel Bearing Price List dated (insert latest effective date). The Contractor agrees that the delivery dates specified for the quantities and types of jewel bearings so ordered will be reasonably related to manufacturing schedules and delivery requirements of this contract. The Contractor agrees to notify the Contracting Officer promptly of the rejection of his (or any subcontractor) purchase order in whole or in part by the William Langer Jewel Bearing Plant and further agrees to an equitable adjustment in the contract price pursuant to the "Changes" clause of this contract to reflect any costs or savings to the Contractor (or subcontractor) resulting from such rejection. The Contractor further agrees to incor formance data to other agencies and foreign gove (a) Subject to any applical requirements, NASA installa honor the requests of other G agencies for readily availabl tion relating to the perfor prime contractors. The agend ing the information shall be a it will be responsible for any 1 lease of such information. (b) Requests from foreign ments should similarly be hono such information is furnished eign government, a copy of t from the foreign government a formation furnished will be to the Assistant Administrato ternational Affairs, NASA Hea (c) If there is any question propriety of divulging the in to other Government agencies foreign government for any r cluding the security aspect, th shall be forwarded to the D Procurement for consideration explanation of the reasons wh lease of such information is q The Director of Procurement to approving the release of inf obtain the concurrence of: (1) The General Counsel; (2) The Assistant Administ International Affairs, if the re 1 Where less than total purchase of William Langer Jewel Bearing P ings is to be required, substitute tractor further agrees to purchase porate William Langer Jewel Bear bearings in items to be delivered contract equivalent to at least of the total quantity of bearings r perform this contract." (Percent= inserted by Contracting Officer.) of a percentage, the clause may specific quantities of items liste schedule for which William Lan Bearing Plant bearings must be and used. information is from a foreign government; and (3) The Director, Security Division, NASA Headquarters, if the information appears to involve a problem of security. § 18-1.317 Lease versus purchase criterion. (a) There are many situations in which the Government's equipment requirements may be more economically filled by lease than by purchase. This is particularly true in the case of certain expensive commercial equipments. The decision to lease rather than purchase must be made on a case-by-case basis. Leasing should be used where it is in the Government's interest. The criteria to be considered in each case include the following: (1) The Government requirement is of short duration, and purchase would be costlier than leasing (generally, longterm leasing should be avoided in the absence of compelling circumstances); (2) The probability that the equipment will become obsolete and that replacement within a short period will be necessary; and (3) The equipment is special or technical, and the lessor will provide the equipment, as well as maintenance and repair services, at a lower cost than would otherwise be available to the Government. (b) Lease versus purchase decisions should be based on an economic analysis and the contract file documented to support the final decision (see §§ 18-3.501 (b) (49) and 18-3.804-2(c)(2)). § 18-1.318 Contracts using annual funds. (a) Authorization to span fiscal years. When an appropriation act so provides, contracts for maintenance and operation of facilities, and contracts for support services may be entered into for periods not in excess of 12 months beginning at any time during the fiscal year covered by such act. This authority should be used to reduce the number of contracts that would otherwise have to be placed at the beginning of the new fiscal year. However, it shall not be used to place contracts that exceed a 12-month period. (b) Contracts conditioned upon the availability of funds. When it is necessary to initiate a procurement properly chargeable to funds of a new fiscal year prior to the availability of such funds, the following clause shall be included in the invitation for bids or other solicitation and the resultant contract: AVAILABILITY OF FUNDS (FEBRUARY 1967) Funds are not presently available for this procurement. The Government's obligation hereunder is contingent upon the availability of appropriated funds from which payment for the contract purposes can be made. No legal liability on the part of the Government for payment of any money shall arise unless and until funds are made available to the Contracting Officer for this procurement and notice of such availability, to be confirmed in writing by the Contracting Officer, is given to the Contractor. (c) The authority set forth in paragraph (b) of this section shall be used only for administrative operations and continuing services (such as rentals, utilities, and items of supply) which are necessary for normal operation and for which the Congress consistently appropriates funds. When this authority is used, the supplies or services shall not be accepted by the Government until funds are available to the contracting officer for the procurement and until the contracting officer has given notice to the contractor (to be confirmed in writing) of such availability. Appropriate records will be maintained to insure adequate administrative control of funds. § 18-1.319 Renegotiation performance reports. The provisions of this section are applicable to all contracts except, (a) purchase orders made pursuant to the provisions of Subpart 18-3.6; (b) delivery orders placed under Federal Supply Schedule contracts; and (c) those contracts known to be exempt from renegotiation. (c) To the extent William Langer Jewel Bearing Plant bearings are fungible with other bearings and it is not practical or would be costly to segregate jewel bearing inventories or work in process for items to be furnished the Government from that to be furnished commercial customers, or for other similar reasons, it may be in the Government's interest to waive the use requirements at the discretion of the contracting officer. No waiver will be granted to prospective contractors prior to award and no assurance will be given prior to award to any prospective contractors that such waiver will be granted after award. Minor inconvenience to contractors alone will not satisfy the need for demonstrating that the Government's interests are served by such waiver. When the use requirement is waived, an equitable adjustment for cost savings resulting therefrom shall be made. (d) In circumstances where a procurement is not exempt from this procedure but it would be impractical or contrary to the Government's best interest to require actual use of all of the William Langer Jewel Bearing Plant bearings required to be purchased, the contracting officer may provide in the solicitation and resulting contract that a minimum fixed percentage of the total bearings requirements be of William Langer Jewel Bearing Plant origin, or that William Langer Jewel Bearing Plant bearings be purchased for and used in a certain number of the total items to be supplied. (e) In all procurements subject to these procedures, the following clause is required for use: REQUIRED SOURCES FOR JEWEL BEARINGS (JULY 1968) Jewel bearings required in the performance of this contract shall be procured from the William Langer Jewel Bearing Plant, Rolla, N. Dak., at prices established in the Official U.S. Government Jewel Bearing Price List dated (insert latest effective date). The Contractor agrees that the delivery dates specified for the quantities and types of jewel bearings so ordered will be reasonably related to manufacturing schedules and delivery requirements of this contract. The Contractor agrees to notify the Contracting Officer promptly of the rejection of his (or any subcontractor) purchase order in whole or in part by the William Langer Jewel Bearing Plant and further agrees to an equitable adjustment in the contract price pursuant to the "Changes" clause of this contract to reflect any costs or savings to the Contractor (or subcontractor) resulting from such rejection. The Contractor further agrees to incor porate or to have his subcontra porate the purchased William I Bearing Plant jewel bearings in be delivered under this contra quirement for use (but not the for purchase) of such bearings m in the discretion of the Contra when such waiver is determined be in the Government's interest agreement is reached for an equit ment in the contract price by rea waiver. § 18-1.316 Disclosure of con formance data to other agencies and foreign gover (a) Subject to any applicak requirements, NASA installat honor the requests of other G agencies for readily available tion relating to the perfor prime contractors. The agenc ing the information shall be ac it will be responsible for any f lease of such information. (b) Requests from foreigr ments should similarly be hono such information is furnished eign government, a copy of tl from the foreign government a formation furnished will be : to the Assistant Administratc ternational Affairs, NASA Hea (c) If there is any question propriety of divulging the in to other Government agencies foreign government for any re cluding the security aspect, th shall be forwarded to the Di Procurement for consideration explanation of the reasons wh lease of such information is qu The Director of Procurement to approving the release of inf obtain the concurrence of: (1) The General Counsel; (2) The Assistant Administ International Affairs, if the re 1 Where less than total purchase of William Langer Jewel Bearing P ings is to be required, substitute tractor further agrees to purchase porate William Langer Jewel Bear bearings in items to be delivered u contract equivalent to at least of the total quantity of bearings re perform this contract." (Percenta inserted by Contracting Officer.) of a percentage, the clause may specific quantities of items liste schedule for which William Lan Bearing Plant bearings must be and used. |